Carey v ABC [2010] NSWSC 709 (30 June 2010)

Last Updated: 1 July 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Carey v ABC [2010] NSWSC 709


JURISDICTION:
Common Law

FILE NUMBER(S):
09/297543

HEARING DATE(S):
9 & 10 June 2010

JUDGMENT DATE:
30 June 2010

PARTIES:
Norman Phillip Carey (Plaintiff)
Australian Broadcasting Corporation (Defendant)

JUDGMENT OF:
McCallum J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
Mr T Molomby SC (Plaintiff)
Mr J Sheahan SC / A T S Dawson (Defendant)

SOLICITORS:
RBHM Commercial Lawyers (Plaintiff)
ABC Legal Services (Defendant)


CATCHWORDS:
DEFAMATION - application under s 23 of the Defamation Act 2005 for leave to bring further proceedings - whether leave may be given retrospectively - DEFAMATION - appliction for extension of time within which to bring proceedings - substantive law applicable - whether "not reasonable in the circumstances" for plaintiff to have commenced an action within the limitation period - where plaintiff had limited access to funds - where complaint made under defendant's internal complaints process

LEGISLATION CITED:
Choice of Law (Limitation Period) Act 1993 (NSW)
Defamation Act 1974
Defamation Act 2005 (NSW)
Limitation Act 1969 (NSW)
Limitation Act 2005 (WA)

CATEGORY:
Principal judgment

CASES CITED:
Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676
Commercial Union Assurance Co v Ferrcom Pty Ltd (1991) 22 NSWLR 389
D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575
Macquarie Bank Limited v Berg [2002] NSWSC 254
Maple v David Syme & Co Ltd [1975] 1 NSWLR 97
Murphy v Lewis [2009] QDC 37
Noonan v Maclennan [2010] QCA 50
Rainey v The State of Western Australia (No 3) [2010] WASC 83
Rodgers v Nine Network Australia Pty Ltd (No 2) [2008] NSWDC 275
Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177
Spautz v Kirby (1989) 21 NSWLR 27

TEXTS CITED:


DECISION:
1. The plaintiff’s oral application for leave under s 23 of the Defamation Act 2005 to bring the present proceeding is dismissed.
2. The plaintiff’s notice of motion dated 1 May 2009 is dismissed.
3. The proceedings are dismissed with costs.



JUDGMENT:

- 19 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

McCALLUM J

30 JUNE 2010

09/297543 NORMAN PHILLIP CAREY v AUSTRALIAN BROADCASTING CORPORATION

JUDGMENT

1 HER HONOUR: These are proceedings for defamation arising out of the defendant’s broadcast of a documentary called “The Boys” on the Four Corners programme on ABC television. The subject of the documentary was the collapse of the Westpoint group of companies and its impact on investors. The documentary was highly critical of the plaintiff, Mr Norman Carey, who was described by the journalist as “the man at the source of all this investor misery”. Mr Carey sues on the broadcast and also on the publication of a transcript of the broadcast on the ABC’s website.

2 Two threshold matters arise for the Court’s determination. The application formally before the Court is a notice of motion filed by Mr Carey seeking an extension of the time within which the action may be brought. The programme was originally broadcast on 8 May 2006. It was common ground at the hearing of Mr Carey’s application that any cause of action he has in respect of that broadcast is governed by a one year limitation period, either under s 14B of the Limitation Act 1969 (NSW) or under s 15 of the Limitation Act 2005 (WA). The present proceedings were not commenced within that period. The statement of claim was filed on 1 May 2009, together with the notice of motion presently before the Court.

3 The second threshold matter is an issue raised by the ABC in correspondence with Mr Carey’s solicitor as to whether the proceedings can be maintained in any event. On 8 May 2007, a writ of summons against the ABC was filed on Mr Carey’s behalf in the Supreme Court of Western Australia in relation to the same broadcast. Mr Carey accepted that the writ was filed with his knowledge and approval. However, it has never been served and the period within which it was valid for service has expired. There has been no application to extend that period.

4 The ABC contends that, as a result of the filing of the writ in Western Australia, and notwithstanding the fact that it was never served, the present proceedings required leave pursuant to s 23 of the Defamation Act 2005 (NSW). The ABC submitted further that, having been commenced without such leave, the proceedings are incompetent and that leave cannot now be given retrospectively.

5 Section 23 of the Defamation Act 2005 (NSW) provides:

“If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought.”

6 There is no doubt that the present proceedings are brought in relation to “the same publication of the same matter” (the broadcast) and also in relation to an “other publication of like matter” (the transcript on the website) so as to fall within the reach of the section. The writ filed in Western Australia claims:

“Damages, including special, aggravated and exemplary damages, interest and costs for defamation arising from the publication by the defendant of defamatory statements on 8 May 2006 and repeat publication dates thereafter in the defendant’s television broadcast of the documentary “The Boys” reported by Ticky Fullerton” (Exhibit 1).

7 Mr Molomby, who appeared for Mr Carey, accepted (correctly in my view) that, notwithstanding the fact that the writ has not been served, defamation proceedings have been “brought” in Western Australia within the meaning of the section. He acknowledged on that basis that leave was required, and made an oral application for such leave, which he submits may be given retrospectively. The ABC did not oppose my determining that application together with Mr Carey’s notice of motion. It is logical to consider that issue first.

Can leave under s 23 be given retrospectively?

8 As noted by Mr Sheahan, who appeared with Mr Dawson for the ABC, s 23 plainly contemplates that leave must be sought before the commencement of the further proceedings. So much is clear from the reference to leave of the court in which the further proceedings “are to be brought”. It is accordingly necessary to determine whether leave can be given after the commencement of the further proceedings and, if so, whether leave should be given in the present case.

9 Prior to the commencement of the Defamation Act 2005 (which came into force on 1 January 2006), there was a provision in substantially the same terms as s 23 in s 9(3) of the Defamation Act 1974. That section provided:

“Where a person has brought proceedings (whether in New South Wales or elsewhere) for defamation against any person in respect of the publication of any matter, that person shall not bring further proceedings for defamation against the same defendant in respect of the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought.”

10 The question whether leave could be given retrospectively under that section was considered by Hunt J (when his Honour was the Defamation List Judge) in Spautz v Kirby (1989) 21 NSWLR 27. Dr Spautz had instituted criminal prosecutions alleging criminal defamation against a number of people, including Justice Michael Kirby. Dr Spautz had later commenced civil proceedings for defamation over the same publications. An application was filed on behalf of Justice Kirby for a permanent stay of the civil proceeding against him on the basis that it had been commenced without leave first having been obtained under s 9(3).

11 Hunt J observed that the circumstances of the litigation “clearly enough would normally have warranted the grant of leave”. His Honour also noted that the grant of such leave, whether or not required in law, would obviate the need to determine the issue raised by the stay application. The defendant had argued, however, that such leave could not be granted retrospectively. His Honour therefore considered it logical to start by resolving that question.

12 Hunt J concluded that a failure to obtain leave under s 9(3) in advance of proceedings for which such leave was required rendered the proceedings invalid and incapable of being revived by leave retrospectively given (at 30E).

13 For completeness, Mr Sheahan drew my attention to the fact that the view expressed by Hunt J on that issue has subsequently been described as “probably obiter dicta”: see Macquarie Bank Limited v Berg [2002] NSWSC 254 at [23] per Smart AJ. Smart AJ expressed reservations as to the correctness of the decision, pointing to “other classes of important litigation” where leave is granted retrospectively. His Honour said, at [26]:

“A grant of leave nunc pro tunc would not defeat the object of s 9(3) as the Court would only grant leave in a proper case, for example, where the material appeared to be defamatory and there was an explanation such as ignorance of s 9(3) for not seeking leave.”

14 However, since counsel in Berg had not sought to challenge the correctness of the decision of Hunt J on the point of granting leave nunc pro tunc, Smart AJ proceeded to follow the approach stated in Spautz v Kirby.

15 Mr Sheahan submitted that I should pause over the proposition that the decision of Hunt J on that issue was obiter dicta. He noted that the reasons given by Hunt J were very carefully structured so as to consider that point first. Mr Molomby submitted, conversely, that the two decisions identify two competing views, both obiter dicta, and that I should consider the point open.

16 There may be force in the contention that the view stated by Hunt J in Spautz v Kirby was obiter dicta. The binding rule of the decision is confined to that which it was necessary to decide and which was actually decided: D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 at [243]. Arguably, the only matter which it was necessary for his Honour to decide in Spautz v Kirby was whether a prosecution for criminal defamation constitutes “proceedings for defamation” within the meaning of s 9(3).

17 His Honour’s consideration of the question whether leave under that section could be given retrospectively appears to have arisen only in response to the proposition that the determination of the primary question could be obviated by granting leave in any event, whether or not it was in law required (29E-G). Accordingly it appears, in truth, to have been a matter determined in passing, not a matter brought forward for the Court’s necessary determination by the defendant’s application for a permanent stay.

18 Even if his Honour’s analysis of s 9(3) was within the binding rule of the decision, I am not relieved of my duty to bring my own judgment to bear on the point: Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [57] per Tobias JA, Beazley and Basten JJA agreeing. Nonetheless, due respect must be accorded to the fact that the matter was identified by Hunt J as one which it was appropriate (if not necessary) to decide and which was actually decided by his Honour.

19 As noted by Hunt J, the critical question is whether the legislature intended that a failure to comply with the requirement to obtain leave should invalidate the act done. Central to his Honour’s conclusion on that issue is the proposition that it is an abuse of process to bring separate and successive proceedings against the same defendant in respect of the same matter. The abuse in question is “to divide the remedy where there is a complete remedy in the Court in which the suit was first started”: Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 at 99E and 102D (a case successfully argued by Hunt J when his Honour was at the Bar).

20 The particular vice to which the decision in Maple v David Syme was directed was the oppression on a defendant of having to defend itself twice in two separate actions “when the plaintiff could not only vindicate his honour, but also obtain complete monetary compensation, if successful, for the whole of the publication ... in the one action” (at 102F).

21 The oppression there referred to plainly does not arise if, owing to the plaintiff’s failure to serve the writ, the defendant does not in fact have to defend itself against one of the two separate actions.

22 In Spautz, Hunt J said (at 30D):

“The requirement that leave be obtained is on its face intended to prevent an abuse of process when separate and successive proceedings are brought against the same defendant in respect of the same matter (as defined). There is nothing in the statute that warrants an interpretation of s 9(3) that the plaintiff may validly bring the proceedings without leave provided that leave is obtained subsequently if and when objection is taken to them. The abuse has already happened by that stage.”

23 In my view, it pre-empts the question to be determined on the application for leave to say that the abuse has already happened at that stage. Implicit in the power to grant leave under s 23 is the recognition that the commencement of a further proceeding will not amount to an abuse of process in every case.

24 As noted by Hunt J, however, the only true guide to the intention of the legislature is to be found in the language of the relevant provision and the scope and object of the whole statute. As already noted, Hunt J was of the view that nothing in the language of the old statute warranted an interpretation of s 9(3) that proceedings could validly be brought without leave. The same may be said of s 23. The clear language of the section evinces an intention to address the vice of multiple proceedings. It does so by placing the onus on a plaintiff who already has an action on foot first to persuade the court in which the further proceeding is to be brought that it would not be an abuse of process to do so. Although that requires a punctilious approach, it is the approach apparently seen fit to be introduced by the legislature.

25 Accordingly, I do not think that I have power to grant leave retrospectively under s 23 to bring the present proceedings.

26 In case my conclusion on that question is wrong, it is appropriate to indicate that, leaving aside the issue of the limitation period, a grant of leave would, in my view, have been warranted in the present case. Mr Sheahan submitted that any such application must fail in the absence of a full and frank explanation from Mr Carey as to why he did not pursue the proceedings commenced in Western Australia. I am not persuaded that was necessary in circumstances where the writ was never served.

27 During the hearing of the application, Mr Carey undertook to discontinue the proceedings brought in Western Australia (see the plaintiff’s further submissions at paragraph 16). In that circumstance, and since the writ has never been served and is no longer valid for service, the ABC has not in fact been beleaguered by a multiplicity of actions.

28 This question is, however, inextricably bound up with the question of the limitation period, to which I now turn.

Application for an extension of time

29 In case my conclusion as to the proper construction of s 23 of the Defamation Act 2005 is wrong, it is appropriate to consider the application for an extension of time. The plaintiff’s notice of motion invokes s 56A of the Limitation Act 1969 (NSW), which provides for an extension of the limitation period of up to three years from the date of publication. Mr Sheahan submitted, however, that the application ought more properly be considered under the relevant limitations provisions in the State of Western Australia. The ABC’s position on that issue derives from s 11(2) of the Defamation Act 2005 (NSW), which provides:

“If there is a multiple publication of matter in more than one Australian jurisdictional area, the substantive law applicable in the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection must be applied in this jurisdiction to determine each cause of action for defamation based on the publication.”

30 It was submitted on behalf of the ABC that Mr Carey’s evidence on the application established that he was ordinarily resident in Western Australia at the time of the publication. Further, it was submitted that his reputation was in Western Australia, given that he had worked and lived there for a number of years prior to the broadcast. On that basis, Mr Sheahan submitted that, to the extent that Mr Carey suffered harm as a result of the broadcast, he suffered the greatest harm in that State and that the substantive law of Western Australia must be applied. A limitation law of Western Australia is to be regarded as part of that substantive law: see s 5 of the Choice of Law (Limitation Period) Act 1993 (NSW).

31 Mr Molomby did not dispute the legal analysis underlying that contention, but did not accept that the harm occasioned by the publication as a whole has its closest connection with Western Australia. He noted that, at the time of the publication, Mr Carey was sharing his time equally between Perth and Sydney and was heavily involved with a business undertaking in Sydney. He noted, further, that harm to reputation does not necessarily have its closest connection with the place in which the person is known.

32 Section 11(3) of the Act lists matters the Court may take into account in determining the relevant jurisdiction. It is true that those matters include the place where the plaintiff was ordinarily resident at the time of publication. However, they also include the extent of publication in each relevant jurisdiction and the extent of harm sustained by the plaintiff in each jurisdiction. There is no evidence as to either of those matters before me on the present application.

33 For my part, I doubt whether it is possible to make any reliable determination on the evidence before me as to the jurisdiction with which any harm occasioned to Mr Carey’s reputation has its closest connection. Accordingly, I think it is necessary to consider the present application against the limitation provisions of each jurisdiction. Happily, there is substantial similarity between the two tests.

34 Section 56A of the Limitation Act 1969 (NSW) provides:

“(1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.

(2) A court 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 14B to a period of up to 3 years running 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).”

35 The relevant provisions in Western Australia are ss 15 and 40 of the Limitation Act 2005 (WA). Section 15 provides that an action relating to the publication of defamatory matter “cannot be commenced if one year has elapsed since the publication”. An extension of that period may be granted under s 40, which provides:

“(1) A plaintiff may apply to a court for leave to commence an action relating to the publication of defamatory matter even though one year has elapsed since the publication.

(2) Subject to subsection (3), on an application a court, 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 one year from the publication, must extend the time in which the action can be commenced.

(3) An action relating to the publication of defamatory matter cannot be commenced if 3 years have elapsed since the publication.”

36 In each case, the critical question is whether I am satisfied that it was “not reasonable in the circumstances” for Mr Carey to have commenced an action within the one-year limitation period.

Are the extension provisions enlivened at all?

37 One further preliminary point raised by the ABC requires consideration. The ABC contended that, by reason of the commencement of the proceedings in Western Australia within time, the provisions relating to extension of time invoked by the plaintiff’s application in New South Wales are not enlivened at all.

38 The basis for that contention is that the extension provisions in each jurisdiction “necessarily assume that the plaintiff has not commenced an action in relation to the matter complained of within one year from the publication”. I do not think that is correct, as an unqualified statement of principle. It is well established that the publication of defamatory matter in more than one jurisdiction gives rise to a separate cause of action in each such jurisdiction. The fact that it may be regarded as vexatious (and amount to an abuse of process) to prosecute such causes of action by bringing more than one suit does not derogate from the correctness of that principle. Further, the fact that the common law favours the resolution of all causes of action in a single action does not mean that the commencement of an action in one jurisdiction necessarily comprehends all causes of action in all jurisdictions.

39 It may be accepted that the extension provisions that apply to a cause of action for publication in, say, New South Wales are not engaged where a person has already commenced proceedings (in any jurisdiction) that include the cause of action for publication in New South Wales. The critical question in the present case is whether Mr Carey, by his proceedings brought in Western Australia, has already commenced an action in relation to publication within New South Wales. The writ of summons is silent on that issue. Absent any express indication that Mr Carey sought by those proceedings to sue on any cause of action outside the jurisdiction in which the proceedings were brought, I do not think that can be assumed. Accordingly, I am satisfied that, leaving aside my conclusion as to the application of s 23, Mr Carey’s application to extend the limitation period is properly brought.

The test under s 56A

40 At the time of the hearing, the parties informed me that the application of s 56A of the New South Wales Act had not previously been considered by this Court. Since argument was heard in this case, Simpson J has given a judgment applying that section: Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676. Her Honour reached the same conclusion as I have as to the proper construction of the provision. Nonetheless, it is appropriate for me to set out my reasons by reference to the matters argued in the present case.

41 Section 56A arose for consideration in the District Court in Rodgers v Nine Network Australia Pty Ltd (No 2) [2008] NSWDC 275. In that case, Gibson DCJ observed that, “under the limitation provisions that applied before the commencement of the present legislation, applications to commence proceedings out of time have been successful, where a reasonable explanation is put forward, the delay is not substantial and there is no assertion of actual prejudice” (at [19]).

42 Her Honour noted, not unreasonably, that upon the introduction of the new legislation, the Attorney-General described the relevant limitation period provisions as “essentially unchanged”. On that basis, her Honour rejected an argument that the test posed under s 56A is stricter than the test under that section in the form in which it appeared before the commencement of the Defamation Act 2005.

43 Support for the stricter approach may be found in a number of decisions in other jurisdictions since the decision in Rodgers: see Murphy v Lewis [2009] QDC 37 at [11]- [14]; Noonan v Maclennan [2010] QCA 50 at [18] per Keane JA; at [30] per Holmes JA and at [48] and [58] per Chesterman JA; Rainey v The State of Western Australia (No 3) [2010] WASC 83 at [41] per Martin CJ. I note that Simpson J also favoured the strict approach in Ahmed at [51] to [52].

44 The critical task is to construe the words of the section itself. The contents of the speeches made upon the introduction of the relevant legislation into Parliament may properly be taken into account in resolving an ambiguity, but the present provision does not appear to me to suffer from that vice. With great respect to Gibson DCJ, I think the test posed under the present provision is stricter than the test under s 56A as in force immediately prior to the commencement of the Defamation Act 2005. That section relevantly provided:

“(3) A person claiming to have a cause of action to which this section applies may apply to the court for an order extending the limitation period for the cause of action.

(4) After hearing such of the persons likely to be affected by the application as it sees fit, the court may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines. However, the court cannot extend the period beyond 3 years running from the date on which the defamatory matter concerned was published.”

45 As noted by Gibson DCJ, a reasonable explanation for the delay together with the absence of actual prejudice to the defendant was sufficient warrant under that provision for the Court to exercise its discretion to grant an extension. The present provision, however, imposes a burden on the plaintiff to satisfy the Court that it was not reasonable in the circumstances for him or her to bring proceedings within the limitation period. It is difficult to imagine a circumstance in which the question of prejudice to the defendant would ever arise in the application of that test. As noted by Simpson J in Ahmed at [28], s 56A does not confer a discretion. The test focuses squarely on the reasonableness or otherwise of bringing the action within the period prescribed by Parliament, and mandates a result depending on the Court’s determination of that issue.

46 Mr Molomby accepted that the plaintiff carried the burden of satisfying that stricter test. He submitted, however, that the test is wholly objective and does not permit consideration of the plaintiff’s motivations or thought processes during the year within which proceedings were not brought. Mr Molomby submitted that the Court might have regard only to matters “as they presented to the plaintiff”.

47 In support of that contention, Mr Molomby relied on the statement of Keane JA in Noonan v MacLennan at [20] where his Honour said:

“The test posed by s 32A(2) [which, relevantly, is in the same terms as s 56A] is an objective one. When s 32A(2) refers to “the circumstances”, it means the circumstances as they appear objectively to the Court and not “the circumstances which the plaintiff believed, however unreasonably, to exist.”

48 I accept, as submitted by Mr Sheahan, that his Honour was not there saying that one removes from consideration what the plaintiff did and why. The terms of the section in the phrase “not reasonable in the circumstances” necessarily invite inquiry into the plaintiff’s reasons for not commencing proceedings within the limitation period. Mr Sheahan submitted, further, that to describe the test as an objective one means no more than that a person cannot bring himself or herself within the test by proving only a subjective belief that it was not reasonable to bring the proceedings. Otherwise, the test requires attention to the plaintiff’s actual reasons, as they are a vital part of the circumstances pertinent to whether it was reasonable or not to bring the proceedings within the nominated period. In my view, that analysis is plainly right.

Circumstances relied upon in the present case

49 Mr Carey submitted that it was not reasonable in the circumstances for him to have commenced an action within one year from 8 May 2006 for two reasons:

(a) he was throughout that period bound either by orders of the Federal Court or by undertakings given by him to that Court which confined his personal expenditure to $4,000 per week;

(b) he had engaged procedures for handling complaints offered by the ABC and outlined in its Statement of Editorial Policies (Exhibit C).

Access to funds

50 Mr Carey swore an affidavit in which he stated that, out of the amount of $4,000 allowed in the receivership of his estate, there was nothing he could use to pay for legal advice in relation to proceedings against the ABC. He provided a list of expenditures relating to his own expenses and those of his children, which amounted to some $4,600.

51 Although a more sceptical approach may be warranted, I am prepared to assume that Mr Carey was committed to a lifestyle that reasonably absorbed over $4,000 a week. The obvious step for him to have taken, if he wished to bring proceedings within the limitation period, was to approach the Receiver and, failing agreement, the Court to have the orders varied so as to enable him to retain a solicitor.

52 Mr Molomby submitted that it is not relevant for me to consider whether Mr Carey should have done so, contending that the only relevant circumstances are those that existed, not those that might have existed had Mr Carey decided to change them. I think that misconceives the issue. The plaintiff carries the burden of satisfying the Court that it was not reasonable for him to commence proceedings within the limitation period. I am mindful of the fact that the evidence put before the Court by Mr Carey was informed by Mr Molomby’s analysis of s 56A discussed above. For that reason I have not drawn any inference of the kind explained in Commercial Union Assurance Co v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418E per Handley JA.

53 Nonetheless, it is difficult to be satisfied in the terms of s 56A when there appears to have been a real possibility of gaining access to the funds required. It is not a question of drawing any inference adverse to Mr Carey. It is simply a question of the incompleteness of the evidence relied upon in support of the contention that the plaintiff had no access to funds.

54 Separately I accept, as submitted by Mr Sheahan, that the relevant provisions should not be interpreted so as to place plaintiffs that do not have access to legal advice in a separate class of being excused from the limitation period that applies to those that do. Finally, I do not accept that access to funds is synonymous with access to justice. That Mr Carey in fact had access to the resources required to commence proceedings is evidenced by the writ of summons filed in Western Australia.

55 Mr Molomby submitted that the issue is not whether Mr Carey had sufficient funds to obtain preliminary legal advice about commencing proceedings but whether he had a sufficient fund to conduct the proceedings once commenced. I accept that it would be prudent for a potential litigant to consider those matters. However, I do not think that the absence of certain access to funds is a circumstance by reason of which it is “not reasonable” to commence proceedings within the prescribed period.

The complaints process

56 As to the fact that Mr Carey had engaged the ABC’s internal complaints procedure, I do not think that procedure afforded any reason not to commence proceedings. There is no evidence that it was a reason that Mr Carey in fact took into account. As already indicated, I reject Mr Molomby’s submission that I should not have regard to Mr Carey’s actual reasons for not commencing proceedings.

57 However, even assuming the correctness of Mr Molomby’s interpretation of the section, I do not think the existence of an internal inquiry, viewed objectively, affords any reason not to commence defamation proceedings. The ABC’s complaints process is not directed to redressing any damage to reputation caused by an ABC broadcast. It is directed, rather, to the integrity of the journalist, focusing on whether her documentary was balanced and factually accurate. A complaint invoking that process and an action to recover damages for harm to reputation could comfortably travel alongside one another.

Conclusion

58 Accordingly, I am not satisfied in terms of either of the relevant limitation provisions that it was not reasonable for Mr Carey to commence the present proceedings within the one year limitation period. It follows that, even if I have power under s 23 of the Defamation Act 2005 (NSW) to grant leave to bring the proceedings, the application under s 56A of the Limitation Act must be refused. A grant of leave under s 23 would accordingly be futile.

Further application

59 In further written submissions on behalf of Mr Carey provided on the second day of the hearing before me, Mr Carey sought to make a new application pursuant to s 23 of the Defamation Act 2005 (NSW) for leave to begin future proceedings “for the continuing publication of the transcript of the Four Corners program on the ABC website over the past year”. Mr Molomby submitted that there is sufficient foundation for that application to be heard and determined by me in the present proceedings.

60 Mr Sheahan submitted that there is no proper basis for granting such leave at this stage. As suggested by Mr Molomby, however, it is difficult to see why, as a matter of principle, it would be necessary to go much beyond the material before me in order to determine such an application.

61 A purposive construction of s 23 directs attention primarily to the question whether the further proceeding would amount to an abuse of process. There are two reasons why it would not in the present case. First, as I have already noted, Mr Carey has undertaken to abandon the proceedings brought by him in Western Australia. Secondly, any cause of action Mr Carey has in respect of the “continuing publication” of the transcript on the ABC’s website had not accrued at the time Mr Carey commenced the proceedings in Western Australia.

62 In accordance with the principles stated by the High Court in Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575, it would be necessary, in order to maintain any further proceeding, for Mr Carey to establish (by inference or otherwise) that the transcript had been downloaded within the year before commencement of the further proceedings. If there is no witness able to give evidence on that issue, the strength of the further claim will rest entirely on the strength of that inference. That, however, is an issue for another day. The basis for the inference does not appear to me to be manifestly unarguable and accordingly it is doubtful whether it would be appropriate to place any great weight on that consideration in considering whether to grant leave under s 23.

63 Procedurally, however, I think the appropriate course would be for Mr Carey to produce a draft pleading of the cause of action he seeks leave to bring and to seek leave by summons to file it. I should also hear the parties as to costs in that context.

64 The orders I make are:

1. The plaintiff’s oral application for leave under s 23 of the Defamation Act 2005 to bring the present proceeding is dismissed.

2. The plaintiff’s notice of motion dated 1 May 2009 is dismissed.

3. The proceedings are dismissed with costs.

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LAST UPDATED:
30 June 2010