Le Busque v Acp Publishing Pty Limited [2005] ACTSC 138 (12 December 2005)

Last Updated: 7 February 2006

ALAN LE BUSQUE v ACP PUBLISHING PTY LIMITED

[2005] ACTSC 138 (12 December 2005)

EX TEMPORE JUDGMENT

DEFAMATION - date of publication - limitation period - proceedings commenced out of time.

Limitation Act 1985, s21(1)(b)

Evidence Act 1995, s160

Supreme Court Rules 1937, O10, O17, O29 rule 4

No. SC 355 of 2004

Judge: Master Harper

Supreme Court of the ACT

Date: 12 December 2005

IN THE SUPREME COURT OF THE )

) No. SC 355 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ALAN LE BUSQUE

Plaintiff

AND: ACP PUBLISHING PTY LIMITED

Defendant

ORDER

Judge: Master Harper

Date: 12 December 2005

Place: Canberra

THE COURT ORDERS THAT:

1. There be summary judgment for the defendant in relation to the plaintiff's claim in respect of publication in the ACT.

2. The notice of motion be otherwise dismissed.

1. In this action the plaintiff claims damages for defamation arising out of publication of a magazine apcmag.com by the defendant, which contained an article which the plaintiff says is defamatory of him. In the statement of claim the plaintiff pleads that the defamatory material was published in each State and Territory of Australia and that it was also published on the World Wide Web so that it could be accessed on the internet anywhere in the world. The defendant has appeared and delivered a defence, setting out in some detail defences applicable in each of the States and Territories, including defences based upon the action being out of time under limitation legislation in some jurisdictions, including the Australian Capital Territory.

2. Section 21(1) of the Limitation Act 1985 is in the following terms:

(1) An action on a cause of action for defamation is not maintainable if brought after the first to end of a limitation period of 1 year running from the date of the first publication of the matter complained of.

(2) For an action in a court, the court shall, if satisfied that it was not reasonable for the plaintiff to have known about the publication of the matter complained of within 1 year from the date of the first publication, extend the limitation period mentioned in subsection (1) to 2 years.

3. It is clear from an affidavit sworn by the plaintiff last month that he first became aware of the article well within the initial limitation period of one year. He deposes in the affidavit that he first became aware of the article on 26 May 2003, so that subsection (2) has no application, and it appears to me that there is no discretion or power in the court to extend the limitation period of one year running from the date of first publication.

4. The defendant makes the present application by notice of motion seeking orders under Order 29 that the proceedings be dismissed and, in the alternative, summary judgment under Order 17. Order 29 rule 4 empowers the court to order that any pleading be struck out on the ground that it discloses no reasonable cause of action, with ancillary powers to order that the action be stayed or dismissed or that judgment be entered for the other party.

5. It appears to me that Order 29 is directed at the situation where the originating process itself, the pleading itself, must fail. This is not such a case. It is not incumbent upon a plaintiff to assert as part of his cause of action that the action has been commenced within time. Rather, non-compliance with a limitation provision is a matter available to a defendant to raise by way of defence, as has been raised here. In those circumstances, it cannot be said that the statement of claim discloses no reasonable cause of action. The appropriate order for consideration is Order 17 which provides a mechanism for summary judgment on behalf of a defendant which, relevantly, can be ordered where the Court is satisfied that there is a good defence to the action on the merits. It is submitted on behalf of the defendant that that is the situation here: the limitation point having been pleaded, the plaintiff can have no answer to it and the defence must succeed.

6. The publication, as I have said, was a magazine published by the defendant and I take it printed in Sydney, which was then delivered in bulk to Australia Post at its Strathfield Business Centre for delivery to some 17,500 addresses: 16,684 of those were addressed to individual subscribers and another 855 to newsagents for delivery to named customers of those newsagents. 647 were addressed to customers in the Australian Capital Territory with another 60 being addressed to newsagents in the Australian Capital Territory, a total of 707 copies. There is in evidence a list of the names and addresses of the 647 subscribers in the Australian Capital Territory. Whilst they include government departments and instrumentalities, schools and companies, the overwhelming majority of the subscribers are individuals with residential suburban Canberra addresses.

7. Mr Parsons, the managing director of a division of the defendant company in Sydney, has deposed to the system for delivery of the magazine to subscribers and has annexed to his affidavit documentation which reveals that some thousands of copies of the magazine were delivered by his company to Australia Post at Strathfield. It is common ground that they were individually wrapped and individually addressed. I am satisfied that the majority of these were delivered to Australia Post on

14 and 15 May, and that Australia Post raised invoices to the defendant company for the cost of delivering them to the addresses around Australia.

8. Mr Parsons has also annexed to his affidavit a document dated November 2001 of Australia Post entitled Print Post Service Guide, which sets out the arrangements which Australia Post offers to persons or companies wishing to make use of its bulk delivery services. The service guide includes what I describe as delivery standards, which set out the number of days within which Australia Post expects to deliver articles to different parts of Australia from the date of lodgment with Australia Post. The standard for documents lodged in Sydney for delivery in Canberra is one day. The delivery standards are based on business days and do not include weekends.

9. Whilst I rejected Mr Parsons' attempt to express an opinion as to compliance by Australia Post with the standards, I must, I think, accept that the defendant regarded the service provided by Australia Post as generally a reliable one having regard to its cost. There is, not surprisingly, little evidence of receipt by addressees in the Australian Capital Territory of the magazine. But the defendant's solicitors have been able to obtain from one addressee, the Australian Competition and Consumer Commission, evidence that its copy of the magazine was date stamped with a stamp reading: "Australian Competition and Consumer Commission, Canberra Library, 16 May 2003". I draw the inference that on 16 May 2003, which was either one or two days after lodgment at Stratified, depending on which bundle the ACCC's copy of the magazine was lodged, that copy of the magazine had been received at the ACCC's library in Canberra.

10. Whilst I cannot infer that any official of the ACCC read the offending article on that day, or indeed at any time, it does seem to me that I can draw some inferences. Counsel for the defendant has argued that I am bound by a rebuttable presumption contained in section 160 of the Evidence Act 1995 relating to postal articles. The presumption is that a postal article sent by prepaid post addressed to a person at a specified address in Australia is received at that address on the fourth working day after having been posted. Counsel for the plaintiff conversely argues that the presumption does not apply because patently the method of delivery adopted between the defendant and Australia Post for these magazines could not be described as sending by prepaid post.

11. I think I must accept that submission. It is clear that whilst the defendant was billed for the delivery cost of these magazines, the billing took place after the time of lodgment, and there was no requirement by Australia Post for prepayment or immediate payment. Rather invoices and statements were sent by Australia Post to the defendant, which I take it were expected to be, and were, paid in the ordinary course of business some time after delivery had taken place. It seems to me that section 160 raises a presumption in relation to the more familiar arrangement with Australia Post where the ordinary consumer of its services buys a stamp and affixes the stamp to the article being sent, that truly being prepaid post. I am not satisfied that the presumption raised by section 160 has direct application in this case.

12. On the other hand, it seems to me that the presumption is a generous one in favour of the recipient of a postal service. I note that the section applies to external territories of Australia as well as Australia itself, and express the tentative view that it was intended to cover the worst case scenario as to the longest time one would reasonably expect Australia Post to take to deliver a letter or article, so that the presumption would have every prospect of being a realistic one. I note, by way of comparison, that in the Rules of this Court, Order 10 as to service of documents in Australia, service of a document sent by prepaid post is taken to have been made two days after the copy is posted, unless the contrary is proved.

13. I can be satisfied on the evidence that Australia Post, in accordance with its service guide, despatched through its postal system the magazines to the various parts of Australia, including the 647 addressed to addresses in the Australian Capital Territory, promptly. I can infer from the fact that at least one was received by an organisation with a post office box address at Dickson in the Australian Capital Territory, that being the ACCC, on 16 May 2003, that at least a substantial number and probably the overwhelming majority of the magazines addressed to ACT addresses were delivered by Australia Post within at worst two or three days of lodgment at Strathfield. I am also satisfied that of those which were so received, a substantial number, and probably the vast majority, were received by individual subscribers with residential addresses. I infer that people in that category were people with a special interest in the subject matter of the magazine who were likely in most cases to have read the magazine reasonably promptly after receiving it.

14. Having regard to those findings, I am satisfied that there must have been, and that there were, a substantial number of subscribers to the magazine in the Australian Capital Territory who received the magazine and read the offending article on or before 20 May, that being in most cases six days and in some cases five days after delivery to Australia Post at Strathfield. In arriving at that conclusion I take account of the fact that two of the days between lodgment and the 20th were weekend days. Nevertheless, I am comfortably satisfied that a substantial number of subscribers must have read the article on or before 20 May. In those circumstances, it seems to me that the limitation period in respect of publication of the magazine in the Territory runs from the date of first publication of the matter, that date being some time prior to 21 May.

15. The originating application accompanied by the statement of claim was lodged at this Court on 21 May and filed on that day. It seems to me unavoidable in those circumstances that I find that the action was brought after the end of the limitation period of one year running from the date of first publication, and that the plaintiff's action against the defendant is not maintainable in respect of the physical delivery of the magazines to subscribers in the Territory. The plaintiff submits that notwithstanding that there remains a good cause of action in this Territory by reason of the publication on the World Wide Web. It is not in contention that what was published on the World Wide Web and therefore available to be accessed on the internet was an identical copy of the magazine. This did not happen until 1 June 2003.

16. If the publication on the Web gives rise to a separate cause of action then that action would be within time. Counsel have not been able to refer me to an authority directly on the issue of whether the publication of a magazine on the World Wide Web is a separate publication from the publication of a magazine in physical form. Whilst I might have had some doubt about that if there had been any difference between the two publications, in this case I am informed that what was published on the Web was identical to the magazine which had been physically delivered, and in those circumstances I am not satisfied that it was a separate publication. It appears to me that it was simply a later publication of the matter complained of.

17. For those reasons I conclude that the defendant should have summary judgment in relation to publication in the Australian Capital Territory. That is the only publication of which the defendant complains in this application. Counsel for the defendant submitted in the course of argument that if I were to arrive at the conclusion that I have this Court would have no jurisdiction in the matter, and the balance of the action would fall. That seems to be an incorrect conclusion. It seems to me that this Court retains jurisdiction to deal with the rest of the action relating to publication in other parts of Australia. I recognise that different limitation periods apply in different jurisdictions.

18. The appropriate order is that there be summary judgment for the defendant in relation to the plaintiff's claim in respect of publication of the defamatory matter in the Australian Capital Territory. The notice of motion is otherwise dismissed.

19. I am not satisfied that either party should have its costs now. I am not satisfied that anything that is likely to happen in the future in the action is going to change that. The parties should bear their own costs of this application regardless of the outcome. I make no order as to costs.

I certify that the preceding nineteen (19) numbered paragraphs are

a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 16 December 2005

Counsel for the plaintiff: Mr TD Blackburn SC

Solicitors for the plaintiff: Pamela Coward & Associates

Counsel for the defendant: Mr JS Wheelhouse SC

Solicitors for the defendant: Phillips Fox

Date of hearing: 12 December 2005

Date of judgment: 12 December 2005