Van Garderen v Channel Seven Melbourne Pty Ltd
[2016] VCC 953
•8 July 2016
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
Revised
Not Restricted
Suitable for PublicationDEFAMATION LIST Case No. CI-15-00776
ELSA DIANE VAN GARDEREN Plaintiff v CHANNEL SEVEN MELBOURNE PTY LTD First Defendant and SEVEN WEST MEDIA LTD Second Defendant and GLENN CONNLEY Third Defendant ---
JUDGE:
HIS HONOUR JUDGE O'NEILL
WHERE HELD:
Melbourne
DATE OF HEARING:
17 and 20 June 2016
DATE OF RULING:
8 July 2016
CASE MAY BE CITED AS:
Van Garderen v Channel Seven Melbourne Pty Ltd & Ors (Ruling)
MEDIUM NEUTRAL CITATION:
[2016] VCC 953
RULING
---Subject: DEFAMATION – LIMITATION OF ACTIONS
Catchwords: Application for extension of time within which writ may be issued pursuant to s23B of the Limitation of Actions Act 1958 – whether it was “not reasonable in the circumstances for the plaintiff to have commenced an action … within one year from the date of publication …” – publication concerned allegations about plaintiff’s daughter on news programs, internet video and Facebook page – failure by solicitor for the plaintiff to issue proceedings within 12 months of publication – proceedings issued within several days of the 12-month limitation period – attempts by plaintiff and her solicitors to resolve issues in dispute by pre-hearing settlement negotiations – delays and distractions brought about by related and unrelated litigation – delays by solicitor and counsel – difficulties encountered by plaintiff’s solicitors in filing writ electronically immediately prior to the 12-month limitation period
Legislation Cited: Limitation of Actions Act 1958 (Vic); County Court Civil Procedure Rules 2008; Defamation Act 2005 (Vic); Limitation of Actions Act 1974 (Qld); Civil Procedure Act 2010
Cases Cited: Casley v Australian Broadcasting Corporation (ABC) [2013] VSC 251; Casley v Australian Broadcasting Corporation (2013) 39 VR 526; Noonan v MacLennan [2010] 2 Qd R 537; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; Wookey v Quigley (No 2) [2010] WASC 209; York v Morgan [2015] NSWDC 109; Rayney v State of Western Australia (No 3) [2010] WASC 83; Ritson v Gay & Lesbian Community Publishing Ltd & Ors [2012] NSWSC 483; Han v Australian Kung Foo (Wu Shu) Federation Inc [2011] VSC 498; Chen v Evans [2014] VSC 230; Tsiadis v Patterson (2001) 4 VR 114
Ruling: Application dismissed.
---
APPEARANCES:
Counsel Solicitors For the Plaintiff Mr J Kirkwood Holding Redlich For the Defendants Ms R L Enbom Corrs Chambers Westgarth HIS HONOUR:
Preliminary
1 In this proceeding, the plaintiff seeks damages against the defendants alleging various publications on a Channel Seven news bulletin, on a related internet news service and on a website, were defamatory. It is alleged the publications suggested Dr van Garderen abducted her young daughter after the breakup of the relationship with the child’s father, Mr Jarrod Massie.
2 The proceeding was issued electronically in this Court either in the early hours of the morning of the day after the twelve-month period after publication; alternatively, within five days of that date. In either event, it was issued outside the twelve-month limitation period prescribed by the Limitation of Actions Act 1958 (Vic) (“the Act”).
3 By her Summons filed 4 May 2016, the plaintiff sought orders:
“1Pursuant to s23B of the Limitation of Actions Act 1958 (Vic) (‘the Act’) the limitation period under s5(1AAA) of the Act for the plaintiff’s action be extended nunc pro tunc until 23 February 2015.
2Pursuant to Rule 2.04 of the County Court Civil Procedure Rules 2008 (Vic) (‘the Rules’) compliance with Rule 5.04 of the Rules be dispensed with nunc pro tunc until 23 February 2015.
3Costs
… .”
4 The facts surrounding this application are not in significant contention and are extensively set forth in the following affidavits:
(i) Affidavit of the plaintiff, affirmed 29 April 2016;
(ii) Affidavit of the plaintiff’s solicitor, Fiona Margaret MacRae, sworn 3 May 2016;
(iii) Affidavit of Ms MacRae’s general practitioner, Dr Colin Andrew Rattray-Wood, affirmed 3 May 2016;
(iv) Affidavits of defendants’ solicitor, Richard Alexander Leder, sworn 24 May 2016.
5 It is not necessary to recite the facts. There is no issue the plaintiff’s proceeding was issued out of time, albeit in unfortunate circumstances. Unlike provisions of the Act which permit an extension of the time within which various causes of action might be brought on the grounds that such an extension is “just and reasonable” in the circumstances, in a defamation proceeding, an applicant must prove, on balance, “that it was not reasonable in the circumstances for the plaintiff to have commenced an action … within one year of the date of the publication … .”.
6 The plaintiff’s Statement of Claim pleads four publications which are said to be defamatory:
· the first concerns a news broadcast on “Seven News” on 18 February 2014;
· the second concerns a broadcast news item on “Yahoo? Seven News” website from 18 February 2014 and continuing until about July 2014;
· the third concerns a news broadcast item on “Seven News YouTube” website on 18 February 2014 and continuing; and
· the fourth concerns the publication of an item by a journalist employed by Channel 7 on a website “Bring Addie Home” from 18 February 2014 and continuing.
7 By their joint Defence, the defendants plead the first publication is statute barred and that the second, third and fourth publications are statute barred only as to the publication on 18 February 2014, but not thereafter.
8 It is accepted by the plaintiff that the limitation period within which defamation proceedings may be issued in respect of the publications on 18 February 2014, is the end of the day on 18 February 2015.
9 The affidavits, in particular the affidavit of Dr van Garderen and Ms MacRae, set out in detail the steps which were taken, including investigations made, the preparation and provision of a “Concerns Notice” pursuant to Part 3 of the Defamation Act 2005 (Vic) and the response thereto, the seeking and provision of advice from counsel, a meeting between plaintiff’s counsel and the defendants’ solicitor where settlement discussions took place, and an offer by the defendants, the drawing of a Statement of Claim and the unfortunate events which befell Ms MacRae over the period of 17 and 18 February 2015.
Relevant legislation
10 Section 5(1AAA) of the Act provides:
“An action for defamation must not be brought after the expiration of 1 year from the date of the publication of the matter complained of.”
11 Section 23B provides:
(1)A person claiming to have a cause of action for defamation may apply to a court for an order extending the limitation period for the cause of action.
(2)A court, on an application under subsection (1), must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 5(1AAA) to a period of up to 3 years from the date of the publication.
(3)A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2).
(4)If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.
(5)An order for the extension of a limitation period, and an application for such an order, may be made under this section even though the limitation period has already expired.”
The Authorities
12 In Casley v Australian Broadcasting Corporation (ABC),[1] Beach J[2] stated a number of propositions applicable to an extension of time under s23B of the Act. That proceeding concerned allegedly defamatory comments on a radio talk back program. Proceedings were not issued within twelve months. According to the plaintiff’s affidavit, the delay was caused by him pursuing a complaint to an industry media body which he said provided an alternative resolution process to the bringing of a defamation proceeding in the Courts.
[1][2013] VSC 251
[2]As his Honour then was
13 His Honour referred to the objects of the Defamation Act 2005 (Vic) which included:
“(a) to enact provisions to promote uniform laws of defamation in Australia; and
(b) …
(d) to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter.”
14 Having considered a number of authorities, including Noonan v MacLennan[3] and Pingel v Toowoomba Newspapers Pty Ltd,[4] his Honour set forth the relevant propositions to be considered:
[3][2010] 2 Qd R 537
[4][2010] QCA 175
“(a) First, under s 23B the burden is on the applicant for an extension of time to point to circumstances which make it not reasonable in the circumstances to have commenced a proceeding within one year from the date of the publication.
(b) Secondly, the circumstances that might give rise to an extension are left at large.
(c) Thirdly, the test posed by s 23B(2) is an objective one. It is not satisfied by showing that the applicant believed that he or she had good reason not to sue.
(d) Fourthly, if the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period, then it must extend the limitation period. Unlike other extension of time provisions, there is no discretion whether or not to extend time. However, a discretion exists as to the length of the extension to be granted which, in any event, may not exceed three years from the date of the defamatory publication.
(e)Fifthly, the section requires more of an applicant than to show that it would have been reasonable not to commence a proceeding until after the one year period had expired: the court must be satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period.
(f) Sixthly, the circumstances must be sufficiently compelling to satisfy the court that it was not reasonable in the circumstances to commence a proceeding within the one year period the law ordinarily requires litigants to commence proceedings.
(g) Seventhly, s 23B of the Act proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence a proceeding to vindicate his or her legal rights in accordance with that time limit.”
15 His Honour went on to say that the test posed by s23B(2) was not an easy one for a plaintiff to establish. He said there may[5] be circumstances where settlement negotiations between parties would make it not reasonable to commence a defamation proceeding within the one-year time limit but that it was equally plain that settlement negotiations would not necessarily lead to the conclusion that it was not reasonable to commence proceedings within the period. He noted that the pursuit of the complaint through the industry body was never likely to produce an award of damages as subsequently sought. He found that while it was reasonable for the plaintiff to pursue the course he undertook, he was not satisfied that it was not reasonable for the plaintiff to commence the proceeding within one year after publication, and the application for an extension of time was refused.
[5]My emphasis
16 An application for leave to appeal was dismissed.[6] The Court of Appeal noted that there was no error in Beach J’s finding that the plaintiff determined to proceed via the industry body rather than to sue for defamation. It was thus a “true alternative to litigation”. It was clear, said the Court that the plaintiff had determined to pursue the industry complaint process and not to litigate. In other words, there was no evidence that the plaintiff was seeking to avoid defamation litigation by achieving a satisfactory outcome through the industry process.
[6]Casley v Australian Broadcasting Corporation (2013) 39 VR 526
17 While the principles enunciated by Beach J have application to this proceeding, the circumstances of Casley are significantly different to the present case. Here, the plaintiff argues that she was pursuing a resolution of the defamation proceeding by negotiation prior to the issue of proceedings.
18 In Pingel v Toowoomba Newspapers Pty Ltd,[7] the Queensland Court of Appeal (Fraser JA and Fryberg J; Applegarth J dissenting) considered an application for an extension of time under s32A of the Limitation of Actions Act 1974 (Qld).[8] In that case, allegedly defamatory material was published in a newspaper article in June 2008. The plaintiff consulted solicitors shortly afterwards, although it was not until February 2009 that her solicitors wrote to the defendant claiming the article had defamed her. The letter was said to constitute a concerns notice under the relevant provisions of the Queensland Act. Thereafter followed correspondence and discussions between the parties which attempted a settlement purportedly under the non-litigious resolution provisions of the Defamation Act. The twelve-month period passed. The reason given by the plaintiff for not issuing within time was because “the respondent (defendant) had indicated a willingness to resolve the matter without the institution of proceedings, and I had accepted that a resolution could be reached on that basis”.
[7]Supra
[8]The equivalent provision to s23B of the Act
19 The majority noted that ordinarily, defamation claims ought to be pursued very promptly. It was appropriate to enter a phase of negotiation, especially given that litigation was likely to result in a wider publication of the allegedly defamatory material. However, the attempts at resolution revealed a “surprisingly desultory approach on the respondent’s (plaintiff’s) behalf”. Considerable periods of time elapsed before a response was made to offers to make amends. There was a lapse of seven months between discovery of the publication and the first complaint. Those delays were in part due to the plaintiff’s solicitor, but also delays by counsel in settling the concerns notice and other relevant material. Fraser JA said:
“… for present purposes the delays must be attributed to the respondent.”[9]
[9]at paragraph [37]
20 Further:
“… In so far as the respondent’s explanation for her failure to commence action within the limitation period relied upon the incompleteness of the process under Div 1 of Pt 3, the evidence suggests that the respondent must be regarded as the author of her own misfortune. … .”[10]
[10]at paragraph [37]
21 However, the Court did not resolve the appeal on that basis. His Honour said:
“Before receiving the offer to make amends the respondent (plaintiff) had about seven months to investigate the efficacy of her potential claim for defamation and the parties had been corresponding about it for about two months. The plaintiff articulated what she claimed were the defamatory imputations in her concerns notice, more than four months before expiry of the limitation period. … There was no evidence and the respondent did not submit that before the expiry of the limitation period on 21 June 2009 the respondent lacked a reasonable period of time or the necessary materials for a comprehensive assessment of her threatened litigation, including as to the reasonableness of the appellant’s offer to make amends.”[11]
[11]at paragraph [39]
22 Further:
“Whether or not it is not reasonable for a plaintiff to commence an action within the limitation period in circumstances in which the parties have invoked the statutory process must depend upon the evidence in the particular case. … Given that the one year limitation period in s 10AA of the Limitation of Actions Act was introduced as part of the same statutory scheme which introduced the non-litigious process in Div 1 of Pt 3 of the Defamation Act, it should not be assumed that the mere fact that the parties participate in that process of itself necessarily renders it not reasonable for the aggrieved person to start litigation within the limitation period; rather, that period should to be taken to allow sufficient time for the operation of so much of that process as should occur before the commencement of litigation, in the absence of some unusual circumstance. The expressed object in s 3(d) of the Defamation Act favours ‘speedy and non-litigious’ resolution of defamation claims, not speedy or[12] non-litigious resolution. The legislature has evidently identified a public interest in the prompt commencement of proceedings for defamation. That is evidenced also by the relative shortness of the limitation period and the relatively unusual strictness of the test in s 32A(2). As Chesterman JA observed in Noonan v MacLennan, that public interest should not be undermined by too ready an acceptance that it was not reasonable to start the proceedings within one year.
I accept that in a particular case the parties’ participation in the Div 1 process may be one of the ‘circumstances’ mentioned in s 32A which result in it not being reasonable for the plaintiff to sue within the limitation period. … .”[13]
[12]Emphasis added
[13]paragraphs [42] – [43]
23 Fraser JA noted that a party may continue with the non-litigious resolution process even after the issue of a writ.
24 Fryberg J divided the twelve-month period up into various stages and then assessed the steps that were taken, or which had not been taken within those various periods. He said:
“… However the applicant’s evidence must at least in broad terms deal with the whole of the year and must demonstrate why there was no significant period in which it would have been reasonable to have commenced an action. A would-be litigant who could reasonably commence an action postpones doing so at his or her own peril. If supervening events make it difficult or unreasonable to do so at a later time, they will not be sufficient to satisfy the requirements of the subsection.”[14]
[14]at paragraph [52]
25 Further:
“… The negotiations proceeded with reasonable dispatch (albeit without any sense of the urgency which might have been expected as the end of the limitation period approached). It does not matter whether Div 1 was engaged or not. Were there evidence of a substantial possibility that a negotiated settlement might have been reached, together with evidence that in the circumstances, there was a significant risk that commencing an action would prejudice that settlement, it might have been possible to uphold his Honour’s conclusion.
However the evidence discloses little sign that the parties were close to a settlement. On the contrary it suggests that the solicitors for The Chronicle were negotiating with one eye on the clock. I do not mean by that that they were negotiating in bad faith or that they misled Ms Pingel’s solicitors in any way. The correspondence simply does not justify any confidence that a settlement would be achieved, let alone that it was close. Moreover even on a sanguine view of it, there is no reason to think that any settlement would have been impeded by the commencement of an action. The proposed defendant was a newspaper company and its solicitors were doubtless experienced defamation lawyers. They would hardly have viewed the commencement of an action as other than a normal step which would be expected on competent advice in the situation.
… .”[15]
[15]at paragraph [69] and [70]
26 Applegarth J, dissenting, observed that the plaintiff was not named in the article. He said:
“The paramount interest in open justice requires plaintiffs to be identified by name in court proceedings, save for exceptional circumstances. Where, as in this case, the potential plaintiff is not identified by name in the original publication, the reporting of defamation proceedings inevitably supplies the plaintiff’s identity to persons who did not identify the plaintiff when they read the offending publication.[16]
…
Where, as here, a potential plaintiff is not identified by name in the publication complained of, the negotiation of a resolution prior to litigation that includes a correction, retraction or apology may be in a form that does not identify the plaintiff by name, and does not thereby exacerbate the defamation.[17]
In short, the negotiation and resolution of defamation disputes without resort to litigation serves the interests of many potential plaintiffs.”[18]
[16]at paragraph [135]
[17]at paragraph [139]
[18]at paragraph [140]
27 Likewise, said his Honour, resolution of defamation proceedings without resort to litigation often serves the interests of potential defendants. He noted that by commencing proceedings, the stakes are increased and often negotiations are brought to an end. At the very least, negotiations are disrupted.
28 Applegarth J did not consider the primary judge gave too much weight to the promotion of non-litigious resolution of defamation disputes. He said that the policy of promoting resolution by non-litigious means carried substantial weight. He took the view that the primary judge was not in error in determining that it was not reasonable in the circumstances to have commenced the proceeding within twelve months.
29 In Wookey v Quigley (No 2),[19] Martin J considered an extension application. In January and February 2009, various allegedly defamatory publications were made. It was not until March 2010 that leave was sought to amend an existing proceeding to include those publications. The application was thus several months out of time. However, the plaintiff was only provided with copies of the various publications in December 2009 by an affidavit of documents by non-party discovery. In January 2010, the plaintiff’s solicitors wrote to the solicitors for the defendant advising that they had obtained the documents which represented further defamatory publications. It was contended that the plaintiff had delayed for too long in bringing the non-party discovery application.
[19][2010] WASC 209
30 Martin J said:
“… But the plaintiff’s conduct in only filing an application (pursuant to her chamber summons of 17 March 2010) for leave to further amend her writ and statement of claim, once the 12-month limitation period had expired is, in my assessment, difficult to reconcile with s 40(2), which as has been seen imposes an onerous threshold for a plaintiff seeking an extension under that provision.”[20]
[20](supra) at paragraph [49]
31 His Honour observed that given the relatively brief period within which an amendment had to be sought, swift action without room for delays was called for. He found that while the actions of the plaintiff and her advisers was not unreasonable in pursuing the amendment course which they followed, that was not the applicable test. The test was more onerous. He found that it was not reasonable in all the circumstances for the plaintiff to have delayed past the appropriate date to issue the application for an amendment. Even accepting that the pleadings were not concluded until November 2009, that was not a sufficient basis to justify the bringing of the non-party discovery application at such a late time. He said that where a person knows that a publication may exist and suspects it may be defamatory, that person would ordinarily be expected to take prompt steps to obtain access to the publication.
32 In York v Morgan,[21] Gibson DCJ considered an application for extension of time in a defamation proceeding where the plaintiff was acting for himself. The allegations concerned sexual misconduct and the proceeding for defamation was not issued until three weeks after the limitation period had expired. His Honour commented:
“The statutory provisions are a difficult hurdle for a plaintiff to overcome.”[22]
[21][2015] NSWDC 109
[22](supra) at paragraph [7]
33 Further:
“The harshness of the test has been remarked upon in a number of judgments, notably Rayney v State of Western Australia (No 3) [2010] WASC 83 at [41] and Wookey v Quigley (No 2) [2010] WASC 209. It is irrelevant that a plaintiff is in poor health, or lives in a remote rural community where access to legal advice is limited, or seeks alternatives to commencing proceedings to find out who has defamed him. All of those factors are present in this case. Indeed, the facts of this case are a particularly good illustration of the hardships caused to plaintiffs who essentially know only in general terms what was said, where there is doubt as to when and to whom the statement was made, and who have limited resources and little in the way of skilled legal assistance.”[23]
[23](supra) at paragraph [9]
34 Further:
“The plaintiff’s explanation for this three week delay (apart from his ill health and lack of legal advice) is that he thought that he had to exhaust his remedies in other courts to find out about these publications, there being proceedings between the parties in the Industrial Relations Commission of New South Wales …, as well as through employment-related administrative procedures relating to the circumstances in which he sought to (scil a) response to the complaints in question. He also thought he had one year from the date he found out about the publication, and not from the date of publication. His mistaken interpretation of the law is no excuse, … .”[24]
[24](supra) at paragraph [11]
35 Referring to Pingel[25] and Ritson v Gay & Lesbian Community Publishing Ltd & Ors,[26] his Honour said that using a “non-litigious process” to vindicate a plaintiff’s rights is thus an insufficient basis for an extension of the limitation period.[27] He referred to various options which may be open to a plaintiff in circumstances where it was difficult to know who said what and to who, and whether it was actionable, including to issue a proceeding but not serve the writ, and to bring an application for pre-hearing discovery on a wide basis.
[25]supra
[26][2012] NSWSC 483 at paragraphs [13] – [27]
[27](supra) at paragraph [13]
36 His Honour found that the plaintiff was sufficiently aware of the publications before the expiry of the limitation period and that it was therefore not reasonable for him not to have commenced proceedings within time. He said:
“The plaintiff submits that the court should exercise its discretion in his favour to extend time. However, s 56A does not afford any such discretion. This means I cannot take into account the fact that the plaintiff lives in a remote rural part of New South Wales, many hours’ travel from the office of a solicitor, or his health problems, or the fact that he thought the 12-month period ran from the date of his first learning of these publications (namely a letter handed to him on 15 May 2013) when in fact the period runs from the date of publication of the matters complained of. Nor can I take into account the unfairness arising from the raising of an allegation already known, from prior investigation, to be groundless, the circumstances of the alteration of that complaint, and the amount of litigation and personal upheaval that this has caused to him.”[28]
[28](supra) at paragraph [21]
37 In Ritson v Gay & Lesbian Community Publishing Ltd & Ors,[29] Beech-Jones J reviewed a number of authorities. He commented that it was established that the burden imposed by the section on a party seeking an extension is a heavy one. It was not sufficient for that party to prove it was reasonable for them to delay in commencing proceedings but rather that it was not reasonable for them to commence proceedings within the twelve-month period. He noted the test was an objective one, requiring a consideration of the circumstances “as they appear objectively to the court”.[30] “Ignorance on the part of the plaintiff as to the time limits specified cannot afford a reasonable basis for not commencing proceedings.”[31] However, he noted that a plaintiff’s motivation or thought process is not irrelevant and the test requires attention to a plaintiff’s actual reasons for the delay. There were two examples where a statutory test may be satisfied where, firstly, a plaintiff is unaware of the publication or the identity of the publisher or whether a plaintiff was not able to establish the extent of the defamation or did not have available evidence necessary to establish a case within the twelve-month period. He referred to Pingel[32] and Noonan[33] where the pursuit of alternative proceedings was not considered sufficient to lead to a conclusion that it was not reasonable to commence proceedings within time.
[29]Supra
[30]Noonan v MacLennan (supra)
[31]Noonan v MacLennan (supra) per Keane JA at paragraph [22]
[32]Supra
[33]Supra
38 Beech-Jones J made three observations on the decision in Wookey.[34] First, there was no requirement that a plaintiff act within days upon becoming aware of defamatory material. Each case would turn upon its own “circumstances”. Secondly, the further publications were discovered at a time when the plaintiff had already commenced defamation proceedings against the alleged defamer. He was thus said to be armed with the means of taking urgent action. Thirdly, there was no apparent reference to there being an inhibition on the part of the plaintiff in using material obtained via a non-discovery process and thus issuing fresh proceedings.
[34]Supra
39 His Honour refused to grant an extension of time in circumstances where the plaintiff had pursued alternative proceedings through an administrative decisions tribunal, in the course of which he discovered various alleged defamatory publications. His Honour did not consider that, and alternative proceedings appealing a conviction in a Magistrates’ Court, as sufficient to grant the extension.
Submissions on behalf of the Plaintiff
40 Mr Kirkwood, for the plaintiff, noted Dr van Garderen became aware of the publications shortly after 18 February 2014 when work colleagues emailed her alerting her to the broadcasts. On 19 February 2014, she sought advice from Ms MacRae as to what to do about the publications.
41 Mr Kirkwood then divided the steps taken by Dr van Garderen and Ms MacRae into three periods of time:
The period up to 2 February 2015
42 Ms MacRae was not experienced in defamation proceedings. She worked in a small outer suburban practice. She obtained information and instructions from Dr van Garderen, and briefed Mr Maher of Counsel and met with him on 16 April 2014. He was then briefed to prepare the Concerns Notice. This was produced in the form of a letter to Channel Seven’s solicitors in June 2014. The letter was sent on 12 June 2014. Throughout this period, Dr van Garderen was living in France.
43 Mr Kirkwood emphasised there were a range of reasons why Dr van Garderen sought to resolve the matter with Channel Seven without resorting to litigation. These included:
· She wanted to avoid the expense and stress of going to court.
· The publications concerned her daughter and thus it was a matter of considerable intimacy, which called for privacy.
· Her daughter, Adelaide, who was two years old at the time, was unsettled and sleeping poorly. As her sole carer, Dr van Garderen was distracted with her daughter.
· There was family law litigation undertaken in France. Initially, a document was signed by her and Mr Massie and registered with the French legal system to address matters of child custody and access. On 13 September 2013, Mr Massie commenced family law proceedings in a French tribunal in relation to Adelaide’s custody. On 7 October 2013, the tribunal made interim orders. The proceedings continued until final judgment in June 2014. This judgment was appealed by Mr Massie in September 2014. That appeal was heard in January 2015 and judgment rendered on 10 February 2015. At one point, in September 2014, Mr Massie did not return Adelaide from a scheduled access visit, the police were called and there were further proceedings in the French courts over following months. Dr van Garderen said her attention was significantly distracted by these proceedings.
· In July 2014, Mr Massie allegedly assaulted Dr van Garderen’s mother in the apartment where she was living in Tours, France. Mr Massie was tried in a police court and given a suspended fine. There were subsequent proceedings brought by Dr van Garderen’s mother seeking compensation. Again, Dr van Garderen said these proceedings were distressing and distracted her from the defamation.
44 In June 2014, Ms MacRae, and a family law barrister, travelled to France and met with Dr van Garderen over several days. In July 2014, Channel Seven’s solicitors, Corrs Chambers Westgarth (“Corrs”), responded to the Concerns Notice, seeking further particulars pursuant to s14(3) of the Defamation Act. Details of the imputations arising from the defamatory publication were sought. At the time, Corrs indicated that, without an admission of liability, steps had been taken to remove one of the news reports from the YouTube address.
45 On 30 July 2014, Ms MacRae sent a letter providing further particulars of the imputations concerned. Nothing further was heard and a follow-up letter was sent on 14 September 2014. In that month, there was further correspondence as to whether the earlier letters complied with the requirements of s14 of the Defamation Act.
46 After further communication, a meeting was arranged between Corrs and Mr Maher of Counsel on 22 October 2014, following which Corrs said they would seek their clients’ instructions. Having heard nothing further, Ms MacRae sent a letter on 2 December 2014. The letter concluded that unless instructions were obtained, Mr Maher would be briefed to draw a statement of claim, and proceedings would be issued. On 5 December 2014, Corrs sent Ms MacRae a “without prejudice” offer. Instructions were then sought from Dr van Garderen and Mr Maher. Advice was received from Mr Maher on 2 February 2015 and a responding letter sent.
47 As at this date, that is 2 February 2015, it appeared to Dr van Garderen and Ms MacRae that despite the discussions which had taken place, it was unlikely further discussion would lead to a resolution of the proceeding before the expiration of the limitation period.
48 Up to that point, said Mr Kirkwood, it was appropriate for the plaintiff to pursue these negotiations and, in all of the circumstances which prevailed over the period, it was not reasonable for her to have instituted proceedings, in particular, where it was said that Corrs had indicated a willingness to participate in non-litigious discussions as envisaged by Part 3, Division 1, of the Defamation Act.
The period from 2 February to 16 February 2015
49 According to Mr Kirkwood, the plaintiff and her solicitor had determined by 2 February 2015 that the matter was unlikely to be resolved without the issue of a proceeding. A Statement of Claim was prepared. Although she had not previously utilised the County Court CITEC eFiling system, Ms MacRae created an account and obtained access to the system. On 16 February 2015, she logged into the portal to familiarise herself with the system, although the Statement of Claim was not yet finalised. On the evening of 16 February 2015, she obtained instructions from Dr van Garderen to issue the proceeding and file the Statement of Claim. Mr Kirkwood submitted it was appropriate for the Statement of Claim to be properly formulated and for the originating process to be got in order.
50 In the circumstances, he submitted it would not have been reasonable to commence the proceedings within this period.
The period 17 to 18 February 2015
51 Mr Kirkwood submitted that a series of unfortunate and extraordinary events befell Ms MacRae over these two days. There was an incident involving her grandson that was extremely distressing and triggered her pre-existing heart condition, sufficient to warrant medical attention and treatment. It was not unreasonable for her to rest for the remainder of 17 February 2015.
52 On 18 February 2015, Ms MacRae went to the office to prepare for the filing of the Statement of Claim electronically. Mr Kirkwood noted Ms MacRae’s office was a considerable distance from the County Court and it was efficacious to file the process electronically. Again, Ms MacRae suffered cardiac symptoms and again, sought medical treatment. In the afternoon of 18 February 2015, Ms MacRae encountered technical difficulties which prevented the filing of the document. These difficulties persisted until the early hours of the morning of 19 February 2015.
53 Mr Kirkwood emphasised that Dr van Garderen herself was unaware of this turn of events, and was not responsible for any delay in the filing of the document over those two days.
54 Mr Kirkwood submitted, in these rather extraordinary circumstances, it was not reasonable for the writ to be filed.
55 Looking at the whole period, Mr Kirkwood submitted that it was perfectly reasonable, particularly given the sensitive nature of the allegedly defamatory publications, for every attempt to be made to reach resolution of the issues without resort to litigation. It was perfectly reasonable for the plaintiff’s solicitor and counsel to allocate a significant proportion of the year to that end. It could not be said the plaintiff’s advisers were playing a “dangerous game”. It was not, said Mr Kirkwood, as if the plaintiff and her advisers had sat idly by, doing nothing. The plaintiff gave instructions within time for the proceeding to be instituted. He said it was not prudent in the circumstances, to commence a proceeding while the negotiations were on foot. The plaintiff’s solicitors had threatened to commence proceedings on a number of occasions, but this was no more than a threat to bring down the shutters to prompt a response. He emphasised the dissenting judgment of Applegarth J in Pingel,[35] where his Honour pointed to the importance of a negotiated settlement and the risk that the bringing of proceedings would, at the very least, impair negotiation, if not bring it to an end. He submitted many of the observations of the majority in Pingel were obiter dictum. He submitted that ultimately, each case had to be assessed upon its own facts, and none of the other authorities upon which the defendants relied contained the same confluence of facts and circumstances as the present case.
[35]Supra
Submissions on behalf of the Defendants
56 Ms Enbom, for the defendants, said the question was not whether the conduct of the plaintiff or her advisers was reasonable in the circumstances, rather that the test under s23B required the plaintiff to prove that it was not reasonable for her to have commenced the proceeding within the twelve months. She said the test was an objective one and the evidence must deal with the whole period. She said that merely because settlement negotiations were on foot, which in fact did not lead to the plaintiff making an offer, did not mean that it was not reasonable to commence the proceeding.
57 The legislation deliberately set a short limitation period within which the proceeding had to be brought. She said that reflected the fact that a defamation proceeding concerned a person’s reputation which required prompt action in order to repair or compensate for the damage done.
58 Ms Enbom said the authorities emphasised that persons who postpone the bringing of an action, even with the onset of supervening events, acted at their own peril. Issues such as the prejudice by delay, or the relative merits of the plaintiff’s defamation claim were not relevant considerations. She said that when looking at the cases across Australia concerning applications to extend time, success was rare and, to her knowledge, had occurred in only two cases.[36] In both of these cases, the limitation period expired before knowledge of the publication was gained.
[36]Han v Australian Kung Foo (Wu Shu) Federation Inc [2011] VSC 498 and Chen v Evans [2014] VSC 230
59 Ms Enbom emphasised that the whole of the evidence indicated there was a substantial lack of diligence, even negligence, on the part of the plaintiff’s advisers in the preparation of the claim, the negotiations which were undertaken and then the bringing of the proceeding.
60 In respect of those authorities where a plaintiff claimed they were engaged in the pursuit of a non-litigious process, the applications had comprehensively failed. She noted the statement of Beech-Jones J in Ritson,[37] that the fact that a person was pursuing other avenues of redress is irrelevant.
[37]Supra
61 In relation to the negotiation process, Ms Enbom noted that at no time had the plaintiff or her solicitors made any offer of settlement. There was only one made, and that was by the defendants. That offer was simply rejected. This did not reflect any real attempt to resolve the issues by negotiation.
62 Ms Enbom noted the facts in the present case were similar to those in Pingel. There was a similar “desultory approach” by the plaintiff and lapses of considerable time periods where little, if anything, was done. She noted it took Ms MacRae and Counsel four months to send a Concerns Notice. There was nothing particularly complex about the Notice and it could have been prepared and despatched much more rapidly. Further, there was a delay in making a response to the further particulars required, of about three weeks. It then took a further two months for the plaintiff to respond to the defendants’ offer. She submitted none of these delays had properly been explained. She referred to Pingel, where Fryberg J said that the mere giving of a concerns notice would not ordinarily delay the commencement of proceedings.
63 The defendants’ offer was provided in early December 2014. There was thus two months within which the proceeding could have been commenced. What followed was delays by Counsel, and his advice was not provided until 2 February 2015. There were then a further two weeks within which the proceeding could have been issued. There was no proper explanation as to why it was that the Writ and Statement of Claim took so long to be finalised and it was left to the last minute for the document to be issued. It was apparent that there had been, over the whole year, abundant time to not only attempt to negotiate a resolution of the matter, but to properly prepare and issue the proceeding. To leave matters to the last day or two was treading a dangerous path.
Conclusions
64 As has been said in many of the authorities, the task facing an applicant seeking an extension of time is a difficult one. The wording of s23B of the Act makes it clear that it is not a question whether the steps taken by a plaintiff, whether in pursuit of non-litigious resolution of the issues, or in respect of his or her conduct generally, were reasonable, but rather that it was not reasonable to have issued the proceeding within the twelve month time period after publication.
65 In various legislation in this state, most notably the Civil Procedure Act 2010, there is a positive obligation on parties, their solicitors, and even insurers, to take steps to resolve or determine matters in dispute.[38] Practitioners are encouraged, because of the vast cost of litigation and the limited judicial resources available, to make every effort to resolve a proceeding at a stage when they have available a sufficient understanding of the facts of the case to make an assessment of all of the litigious risks. Resolution of proceedings through mediation has become an essential element of the litigious process.
[38]Civil Procedure Act 2010, s7, s8, s9 and s19
66 That is particularly so in circumstances, as in the present case, where, firstly, the allegations the subject of the claim are necessarily sensitive, involving a young child, and the distress of the break-up of a relationship, but also the prospect that the issue of proceedings and then a trial brings the risk of even further publicity.
67 It is clear from the provisions of Part 3 of the Defamation Act 2005 that the legislation intends the parties to enter negotiations in an attempt to make amends for the allegations without the need to resort to litigation. However, as was said in Pingel,[39] the imprimatur for speedy and non-litigious resolution of claims is not expressed as being exclusive to the strict limitation provision. The rationale behind the relatively short twelve-month limitation period, and the harsh test prescribed by s23B is to ensure that damage to reputation should be repaired at an early time. The conclusion must be that reasonable effort should be made to resolve the issues, but with a careful eye on the clock.
[39](supra) at paragraphs [42] – [43]
68 A litigant who postpones commencement of an action acts at his or her own peril.[40] Later supervening unexpected events will not be sufficient to satisfy the section.
[40]Pingel (supra) per Fryberg J at paragraph [52]
69 In submissions, Mr Kirkwood divided the twelve-month period into three timespans. While that is not an inappropriate way to look at what was undertaken, in my view, it is more appropriate to look at the whole twelve-month period and take into account all of the facts and circumstances involved. I will start with a consideration of the various matters which occurred in Dr van Garderen’s life over the relevant twelve-month period and which were said to provide a significant distraction, such that it was difficult for her to concentrate upon and give instructions in relation to the proposed defamation proceeding.
70 I accept without reservation that the break-up of her relationship with Mr Massie and the dispute about the custody of, and access to, their daughter, Adelaide, would have been extremely distressing. Compounding that were the text messages sent by Mr Massie and his threats of publication of very private matters in the Australian press. These threats indeed came to fruition when Dr van Garderen was advised by work colleagues within days of their publication. However, notwithstanding this, and despite being resident overseas, Dr van Garderen approached Ms MacRae to seek advice about the publications and what could be done to make amends. This advice was sought within days.
71 As the year progressed, the acrimony between Dr van Garderen and Mr Massie increased. Throughout much of the relevant period, litigation was undertaken through the French courts which would no doubt have been, again, a distressing and time-consuming experience. Further, there was the assault upon Dr van Garderen’s mother which, according to the photographs exhibited to Dr van Garderen’s affidavit, would suggest a frightening event, not only to the mother, but also to Dr van Garderen, given she was living with her mother at the time. Again, the episode ended up in the French courts. There was further reference to some difficulties with the health of Adelaide which was undoubtedly distracting to Dr van Garderen.
72 However, there was no evidence, either medical or otherwise, to suggest that these events were so distressing or so distracting that it rendered Dr van Garderen incapable of giving instructions to attempt to resolve the defamation matter by negotiation or the issue of proceedings when those negotiations petered out. Looked at alone, these events do not provide a basis upon which it could be said that it was not reasonable for Dr van Garderen to issue proceedings within the twelve-month period.
73 The next matter to consider is the negotiations undertaken in an attempt to resolve the matter.
74 As previously noted, negotiations in any proceeding, let alone one where the subject of the proposed litigation is sensitive, ought to be pursued. I note, and accept the comments by Applegarth J in Pingel that very often in negotiation, the issue of the proceeding at the very least stalls, and even puts an end to valid attempts at resolution. However, I accept the submission of Ms Enbom that the negotiation proceeded at a very leisurely pace. There were significant gaps during the negotiation process where little appeared to be done. While Ms MacRae was consulted promptly at the outset, it was not until mid-April 2014 that she, being less experienced in defamation litigation, sought advice from Mr Maher of Counsel. Once received, Mr Maher was then briefed to draw the Concerns Notice. It was not then until June 2014 that that Notice was sent to the defendants. There was some further delay in July 2014 in replying to Corrs’ request for further particulars. A response was eventually provided, as drafted by Mr Maher. By late July 2014, the imputations said to have arisen from the complaint of material were detailed. It is to be inferred there was, by then, nothing significant to prevent the drafting of the Statement of Claim, from around that time.
75 It was not then until September 2014 that arrangements were made for a conference between Mr Maher and Mr Leder. This occurred in late October 2014. The delay over that period would appear to be due to a combination of events, including Mr Maher becoming ill and the delay in arranging the conference.
76 The meeting of October 2014 took place, although apparently no settlement offer was made. This did not occur until December 2014 when the defendants made an offer. It is fair to note that the delay over this period was more in the camp of the defendant.
77 With all of these delays over the latter part of 2014, it must have been evident to Ms MacRae and Dr van Garderen, that the prospect of being able to resolve the issues without recourse to litigation was starting to wane. That was evidenced by the fact that no responding offer by the plaintiff was made. True it was that in July 2014, some of the offending material was taken down from a website. Further, while it could not be said that the defendants’ solicitor was encouraging discussions with the prospect of resolution, certainly those discussions were not being discouraged. The indication was, as eventually transpired, that an offer would be made.
78 However, by at least mid-December 2014, negotiations were in a sufficiently parlous state for Ms MacRae to instruct Mr Maher to draw a statement of claim. There was then a considerable delay from that time until the document was finally provided on 16 February 2015. This delay was significant, because it was so close to the expiration of the limitation period, and with the Christmas period intervening. In part this delay appears to be explained by illness and pressure of work on the part of Mr Maher, the provision of a response to the defendants’ offer and the obtaining of final instructions from Dr van Garderen to issue proceedings. In my view, none of these matters justify this delay.
79 Mr Kirkwood submits it is reasonable to allow time before the commencement of a proceeding to ensure the claim is properly formulated and the originating process in order. The drafting of a statement of claim in a defamation proceeding requires precision and accuracy. The defamatory nature of the publications and the imputations arising must be clearly set out, with the risk that at best, the document would need amendment, or at worst, be struck out. However, even accepting that, in my view, those advising Dr van Garderen ought to have been in a position to have provided the Statement of Claim at an earlier time, certainly before Christmas 2014. At that time, negotiations had withered and all of the issues, both of a factual and legal nature necessary to draw the document were at hand. On Mr Maher’s part, he ought to have acted more promptly. On Ms MacRae’s part, if Mr Maher was not able to draw a statement of claim, another counsel should have been engaged. At the very least, consideration ought to have been given to the issue of a generally indorsed writ.
80 Given these matters, I am of the view that the delay caused by attempting to resolve the matter was not, of itself, sufficient to delay the instigation of proceedings.
81 This is not a case where time elapsed without those involved knowing of the deadline within which the proceeding had to be brought. Quite to the contrary, not only the lawyers, but the plaintiff herself was aware of the deadline. This is an unusual case as they all fully expected to issue the proceeding within time. However, that expectation was frustrated by a number of events, in particular the failure to provide the Statement of Claim at an earlier date, and the most unfortunate events which befell Ms MacRae over the period 17 and 18 February 2014.
82 I accept the account of events provided by Ms MacRae and her general practitioner of what transpired over those two days. I accept she was particularly distressed by the illness of her grandson whom she was looking after on the morning of 17 February 2014. I accept that this led to disabling health issues on her own part. I accept there were times over those several days where she was quite incapable of finalising the issue of the proceeding. She was then left with a window of opportunity on the afternoon of 18 February 2014 to electronically file the document. Her lack of experience with the eFiling system, complications which arose and probably her distressed state due to ill health, all culminated in the passing of the deadline without lodgment of the Writ and statement of claim. Dr van Garderen did not know what had occurred. Looking at the events of these two days alone, I accept it would not have been reasonable for the proceeding to have been issued in that time. However, that is not the end of the matter.
83 It was not so much what Ms MacRae did or did not do over those two days that was the problem, rather she had not allowed a sufficient time buffer to protect against unexpected contingencies. She was not experienced in defamation proceedings. She was not experiencing in utilising the Court’s eFiling system. To leave matters to the last moment as she did was to undertake a perilous course.
84 It is appropriate, when considering the test to be applied pursuant to s23B to consider all of the events which befell Dr van Garderen and her advisers, as a whole. Although the test is an objective one, it requires a consideration of all the facts and circumstances at the time. Accepting there were a range of issues in Dr van Garderen’s life over the twelve-month period which were distressing and distracting, and accepting that it was reasonable for her to pursue a non-litigious resolution of the claimed defamation, and taking into account the events which befell Ms MacRae on 17 and 18 February 2014, I am not satisfied, the onus being upon the plaintiff, that it was not reasonable for the proceeding to be issued by 18 February 2014. There were distracting and distressing events present over the course of the year. It was reasonable to pursue negotiations, although the pace of pursuit was languid. However, by December, or even January, it was reasonable for the proceeding to have been issued, leaving a sufficient buffer to ensure any late supervening event did not result in a breach of the limitation period.
85 There is a further matter to be considered. That is, whether the sins of the solicitor (or counsel) ought to be visited upon the plaintiff. In applications for extension of time in respect of personal injury proceedings[41] it is often said that if a plaintiff promptly consults a solicitor and does everything reasonable to provide instructions and prosecute a proceeding, otherwise leaving the conduct in the hands of his or her lawyers, the failure of those lawyers ought not lead to a refusal to extend time unless specific or general prejudice to the defendant can be shown. The availability of a cause of action against the solicitor is a relevant matter to take into consideration.[42] I was not taken to, nor have been able to find authority on point in respect of an extension of time in defamation proceeding.
[41]Division 2 of Part II and Division 3 of Part IIA of the Act
[42]Tsiadis v Patterson (2001) 4 VR 114
86 Although the affidavit material does not critically examine the point, it would appear Dr van Garderen had done everything reasonable in the prosecution of the proceeding. She sought advice promptly and provided instructions from time to time as were needed. She gave instruction finally to issue. That aside, she left the conduct of the proceeding in the hands of her solicitor and counsel. There is nothing in the affidavit of Ms MacRae to suggest that there was any particular difficulty in obtaining instructions, although given the nature of the application, evidence to that effect would not be expected.
87 In Pingel,[43] Fraser JA said that the considerable delays on the part of the plaintiff’s solicitor and counsel “for present purposes” must be attributed to the respondent. In that case, the Court refused to extend the time in circumstances where the delay in bringing proceedings largely was attributed to the failures of the plaintiff’s solicitors and counsel.
[43](supra) at paragraph [37]
88 The Act provides a drastically short limitation period within which a defamation proceeding may be brought. The rationale for such a period is that the repair to reputation caused by a defamation should be acted upon promptly. Further, while the legislation provides, even encourages parties to undertake negotiations, nonetheless the test to obtain an extension of the limitation period is a harsh one and difficult for a litigant to overcome. All of those matters point to different policies underlying the limitation legislation as applied to defamation proceedings. In personal injuries litigation, it may be just and reasonable to grant an extension of time when a litigant has done no more than place him or herself in the hands of a solicitor who has neglectfully failed to issue within a limitation period. That concept does not exist in applications for extension in defamation proceedings.
89 Absent any supporting authority, and given the authorities to which I have referred, the delays which may be directed to Ms MacRae and Mr Maher ought be attributed to Dr van Garderen.
90 For these reasons, the plaintiff’s application fails.
91 I shall hear from the parties as to costs.
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