FEDERAL COURT OF AUSTRALIA Joukhador v Network Ten Pty Limited [2020] FCA 746 File number: NSD 1680 of 2019 Judge: ABRAHAM J Date of judgment: 1 June 2020 Catchwords: LIMITATION OF ACTIONS – action for defamation – application for extension of time pursuant to s 56A of the Limitation Act 1969 (NSW) – where proceedings commenced out of time and are not maintainable by operation of s 14B of the Limitation Act 1969 (NSW) – whether it was not reasonable in the circumstances for the applicant to have commenced an action in relation to the matter complained of within 1 year from the date of the publications – where the applicant, a solicitor, was facing criminal charges and suspension of practising certificate – where the applicant was unaware of the particular publications the subject of the matter complained of Legislation: Limitation Act 1969 (NSW) ss 14B, 56A, 56A(2) Evidence Act 1995 (Cth) s 75 Cases cited: Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 Australian Securities and Investments Commission v Schlaepfer [2017] NSWCA 247 Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304; (2017) 96 NSWLR 478 Carey v Australian Broadcasting Corporation [2010] NSWSC 709; (2010) 177 NSWLR 136 Carey v Australian Broadcasting Corporation [2012] NSWCA 176; (2012) 290 ALR 348 Cassar v Network Ten Pty Ltd [2012] NSWSC 680 Corby v Channel Seven Sydney Pty Ltd [2008] NSWSC 245 Houda v State of New South Wales [2012] NSWSC 1036 Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 Hunter v Hanson [2014] NSWCA 263 John Casley v Australian Broadcasting Corporation [2013] VSCA 182; (2013) 39 VR 526 Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537 Ritson v Gay & Lesbian Community Publishing Ltd & Ors [2012] NSWSC 483 Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 R v Crabbe [1985] HCA 22; (1985) 156 CLR 464 Schlaepfer v Australian Securities and Investments Commission [2017] NSWSC 47 Spedding v Dailymail.com Australia Pty Ltd [2018] NSWSC 1963 State of Queensland v O'Keefe [2016] QCA 135 Wookey v Quigley (No 2) [2010] WASC 209 Date of hearing: 17 March 2020 Registry: New South Wales Division General National Practice Area: Other Federal Jurisdiction Category: Catchwords Number of paragraphs: 76 Counsel for the Applicant: Mr K P Smark SC with Ms S Chrysanthou Solicitor for the Applicant: Mark O'Brien Legal Counsel for the Respondent: Mr S Dawson SC with Ms L Barnett Solicitor for the Respondent: Banki Haddock Fiora ORDERS NSD 1680 of 2019 BETWEEN: MARCEL JOUKHADOR Applicant AND: NETWORK TEN PTY LIMITED Respondent JUDGE: ABRAHAM J DATE OF ORDER: 1 june 2020 THE COURT ORDERS THAT: 1. The application pursuant to s 56A of the Limitation Act 1969 (NSW) to extend the limitation period in which to bring this defamation action be dismissed. 2. The applicant is to pay the costs of the respondent to be agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ABRAHAM J: 1 These proceedings which were commenced on 3 October 2019, concern publications by Network Ten Pty Limited on 20 September 2017 being a broadcast over the Ten Network, a Facebook publication and a Tweet (collectively, the publications). The publications allege, inter alia, that the applicant, a solicitor, engaged in (and in fact directed) a Compulsory Third Party Insurance (CTP) fraud syndicate in which $11 million of fake Green Slip claims were made. 2 The proceeding was commenced out of time and therefore is not currently maintainable by reason of the operation of s 14B of the Limitation Act 1969 (NSW) (Limitation Act) which provides that the limitation period for a cause of action for defamation is 1 year running from the date of publication of the matter complained of. The limitation period expired on 21 September 2018. 3 Pursuant to s 56A of the Limitation Act, the applicant seeks an extension of time to 3 October 2019. The applicant read the affidavit of Paul Svilans sworn on 4 December 2019 (the Svilans affidavit), solicitor for the applicant, in support of the application. The application is opposed. 4 For the reasons below, the application is dismissed. Evidence relied on in support of the application 5 As noted above, the applicant read the Svilans affidavit in support of the application. 6 The respondent did not object to the affidavit save for clarifying that certain aspects were relied on for a limited purpose and that in being adduced for this application, the respondent had not foreclosed their position in relation to this evidence for the purpose of the broader proceedings. However, the respondent did point out the applicant, a solicitor, did not give evidence, but rather chose to provide evidence from his solicitor based on what the applicant had told him. The submission was directed to the weight to be given to the evidence. 7 As the applicant correctly observed, s 75 of the Evidence Act 1995 (Cth) provides an exception to the hearsay rule, permitting such an approach to evidence adduced in interlocutory hearings. The applicant submitted that if I was otherwise satisfied that leave should be granted, that the evidence is not from the applicant should not be a basis to refuse the extension of time. 8 The applicant submitted, referring to two authorities, that it should be inferred that there is a proper forensic reason why it was appropriate to rely on an affidavit from the applicant's solicitor, as opposed to the applicant himself. 9 In particular, reference was made to observations of McCallum J in Corby v Channel Seven Sydney Pty Ltd [2008] NSWSC 245 at [31]-[32]: 31. Another relevant consideration is whether the making of the order would unduly stultify the plaintiff's ability to pursue the proceedings. There was evidence from the plaintiff's solicitor, on information and belief, that if the plaintiff were required to pay $100,000 by way of security, she would be unable to continue to prosecute these proceedings. I have some hesitation in relying on evidence on information and belief in an application of this kind. Mr TDF Hughes placed considerable emphasis on the fact that the plaintiff has not sworn an affidavit herself in opposition to the defendants' present application. For my part, I find it unsurprising that she did not do so, in circumstances where it appears likely that the outcome of the proceedings will turn upon a battle as to the credibility of the plaintiff on the one hand and that of the sixth defendant on the other. In those circumstances, most experienced trial advocates would not expose their client to a pre-trial cross-examination on an ancillary application if they could possibly avoid it, and I do not think that I should draw any inference adverse to the plaintiff about the form of the evidence. 32. Nonetheless, the position remains that there is no direct sworn evidence as to the likelihood that an order for security would stultify the prosecution of her claim. I am left to assess the reliability of that contention against the other material. Mr Hughes QC relied on evidence that discloses that the plaintiff has received a substantial sum by way of payment for a book about Schapelle Corby of which the plaintiff was a co-author. Mr Littlemore relied on the evidence as to the amount of costs that the defendants have already incurred defending the proceedings, and, in effect, invited me to infer that an individual plaintiff would also incur substantial costs in preparing for such a trial. Otherwise, there was no evidence before me as to the actual means of the plaintiff other than the evidence on information and belief referred to above. 10 Reliance was also placed on Australian Securities and Investments Commission v Schlaepfer [2017] NSWCA 247 where the Court of Appeal (Meagher and Payne JJA and Sackville AJA) was considering an application for leave to appeal an order granting an extension of time to commence defamation proceedings. A ground of the appeal was that the primary judge had erred in inferring matters favourable to the applicant's state of mind in circumstances where neither he nor his advisors gave evidence. Like this case, an affidavit of the applicant's solicitor based on instructions from the applicant, was relied upon in support of the application. The solicitor was not cross-examined. Leave to appeal was refused. The Court observed, inter alia, that the evidence could have been challenged in a number of ways including cross-examination, but it was not. 11 In reaching its conclusion the Court at [52] referred to McColl JA in Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 who accepted that while the applicant in that case was required to lead evidence appropriate to give the Court a satisfactory understanding of why it was that proceedings were not commenced in time, went on at [55] to observe that this requirement: 55. …does not mean the applicant must personally give such evidence. As the appellant submits, Mr Moran's evidence was admissible pursuant to s 75 of the Evidence Act. Accordingly the hearsay rule did not apply, and the appellant's statements recited by Mr Moran were admissible "to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation": see s 59(1), Evidence Act. Provided the relevant requirements of the legislation were satisfied by the evidence, the source of that evidence was irrelevant so long as it was otherwise admissible on an interlocutory application of the kind in question: Richard Crookes Constructions Pty Ltd v Kozul [2005] NSWCA 312 ("Kozul") (at [21]) per Tobias JA (with whom Young CJ in Eq and Hunt AJA agreed) explaining Doeland; see also (at [41]) per Young CJ in Eq. Kozul concerned an application for an extension of time pursuant to s 60C(2) Limitation Act 1969 (NSW), however in my view their Honours' observations have equal application in the present context. Further, the fact that the evidence was hearsay did not permit "the primary judge to do other than address it on its terms as reasonably understood": Brierley v Ellis [2014] NSWCA 230; (2014) 67 MVR 282 (at [28]) per Meagher JA (Basten and Gleeson JJA agreeing). 12 The applicant is correct that s 75 permits evidence in this form to be relied upon in a hearing of this nature. It may also be accepted that while it is yet unknown whether there will be credibility issues at any hearing, if the extension of time was granted, there may be proper forensic reasons why the applicant may not provide the direct evidence in this application. 13 The respondent did not object to the affidavit being read, nor did it seek to challenge the evidence by cross-examination of the deponent. The affidavit is admitted on this application. 14 That said, the onus to establish that the extension of time ought to be granted rests with the applicant. As is apparent from the authorities referred to above, that will ordinarily include leading evidence appropriate to give the Court a satisfactory understanding of why the proceedings were not commenced. The issue with the affidavit in this case is not so much that it stems from information provided to the applicant's solicitor, but rather, as explained below, there are aspects of the affidavit where it is silent on matters which are relevant to the circumstances in which this application is made. When an affidavit (including as here, from the applicant's solicitor) fails to address or adequately address relevant matters, (to which the applicant could readily speak), it affects a Court's ability and willingness to draw the factual inferences sought by the applicant in relation to those matters. Legal principles 15 Section 56A of the Limitation Act is in the following terms: 56A Extension of limitation period by court (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). 16 Section 56A(2) of the Limitation Act provides that the Court must extend the limitation period if it is 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. 17 The limitation period for a cause of action of defamation is one year, it having been reduced from 6 years in 2002, to "encourage plaintiffs to seek to vindicate their reputations at the earliest possible opportunity": Second Reading Speech, Defamation Amendment Bill 2002 (NSW). The policy behind the one year limitation period includes the encouragement of early and/or speedy resolution of disputes: Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304; (2017) 96 NSWLR 478 (Barrett) at [21]-[22] per McColl JA, with whom Simpson and Payne JJA agreed. It has been recognised that the power to extend time will only apply in circumstances which are "relatively unusual", "special" or "compelling": Noonan v MacLennan [2010] QCA 50;[2010] 2 Qd R 537 (Noonan) at [15] per Keane JA; Barrett at [70]-[71] per McColl JA and [110] per Payne JA. 18 The summary of the relevant principles applicable to the application of s 56A in Cassar v Network Ten Pty Ltd [2012] NSWSC 680 (Cassar) at [16] by Hislop J is as follows: It has been held in respect of s 56A (or its equivalent in other States) that: (a) the burden that must be discharged is to establish 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 date of the publication - Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537, Rayney v The State of Western Australia (No 3) [2010] WASC 83 at [41]; (b) the onus rests with the plaintiff - Rayney [41], Ahmed v Harbour Radio Pty Limited [2010] NSWSC 676, Carey v Australian Broadcasting Corporation [2010] NSWSC 709, (2010) 77 NSWLR 136 at [45]; (c) the test is objective - Noonan [20], Carey [48]; (d) it is a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances - Rayney [41]; (e) if the plaintiff proves the fact then the court is obliged to extend time. Extension in these circumstances is mandatory - Ahmed [28], Carey [45]; (f) section 56A limits the period of extension to an extension "of up to three years running from the date of publication". This has been described as involving the exercise of a discretion in the sense of involving a normative judgment - Ritson v Gay and Lesbian Community Publishing Limited [2012] NSWSC 483 at [24], [25]. 19 In Carey v Australian Broadcasting Corporation [2012] NSWCA 176; (2012) 290 ALR 348, Beazley JA (with whom McColl JA and Sackville AJA agreed) endorsed McCallum J's (as her Honour then was) construction of section 56A stating at [55]: Her Honour, at [45], construed s 56A as imposing an onus on a plaintiff to satisfy the court that it was not reasonable in the circumstances for him or her to bring proceedings within the limitation period. Her Honour considered that s 56A did not involve the consideration of any prejudice to a defendant. Her Honour also held that s 56A did not confer a discretion. Rather, if the court was satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced the action within one year, the court was required to extend the period of time in which to bring proceedings: see Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676. The same construction has been given to equivalent provisions in other jurisdictions: see Murphy v Lewis [2009] QDC 37 at [11]- [14]; Noonan v MacLennan [2010] QCA 50; 2 Qd R 537 at [15]- [18] per Keane JA; at [30] per Holmes JA and at [48] and [58] per Chesterman JA; Rayney v State of Western Australia (No 3) [2010] WASC 83 at [41] per Martin CJ. I agree with this construction of s 56A. The statutory test does not direct attention to whether it was reasonable not to have commenced proceedings. It requires the court to be satisfied it was not reasonable to have commenced an action within one year from the date of publication of the defamatory matter. This view is consistent with the preferred view given to the section in Noonan v MacLennan. 20 In relation to the objective nature of the test under s 56A and the approach taken by McCallum J at first instance, Beazley JA also agreed at [57]: … her Honour considered that the phrase in s 56A: "not reasonable in the circumstances", invited inquiry into the plaintiff's reasons for not commencing proceedings within the limitation period. Her Honour accepted that to describe the test as objective meant that a person could not bring themselves "within the test by proving only a subjective belief that it was not reasonable to bring the proceedings". I consider that this is the correct approach to s 56A. 21 In the first instance judgment in Carey v Australian Broadcasting Corporation [2010] NSWSC 709; (2010) 177 NSWLR 136, endorsed by the Court of Appeal, McCallum J described at [48] that: …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. [Counsel for the defendant] 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. 22 In Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676, recognising that the circumstances in which the onus is met are limited, Simpson J (as her Honour then was) observed at [52]: Section 56A entitles the plaintiff to an extension of time if it was not reasonable, in the circumstances that existed, to have commenced proceedings within one year of the publication of the broadcast. One can envisage circumstances in which it would not be reasonable for a plaintiff to commence proceedings within that time. One is where the plaintiff is unaware of the publication. Another is where the plaintiff is unable to identify the publisher or prove publication. (In this regard the obligations of legal practitioners under s 347 of the Legal Profession Act 2004 and the provisions of s 348 thereof are to be borne in mind.) Another circumstance may be where the plaintiff is engaged in non-litigious processes to vindicate his or her rights: see Noonan v MacLennan [2010] QCA 50 at [17]. 23 While a court might accept that it was not unreasonable to not bring an action within the 12 month period if the person was unaware there had been a defamatory publication (see for example Cassar at [19] per Hislop J; Carey at [61] per Beazley JA; Schlaepfer v Australian Securities and Investments Commission [2017] NSWSC 47 at [17] per Garling J; Wookey v Quigley (No 2) [2010] WASC 209 (Wookey) at [58] per Martin J) as is discussed below at [48] to [52], an absence of knowledge of the defamatory matter may not be sufficient where, objectively considered, there is "ample ground to suspect" the defendant may have published such material: Cassar at [21]. Consideration 24 As was acknowledged by the parties at the outset of the hearing, the principles relevant to determining this application are not in dispute between the parties, the issue is with their application to the facts in this case. 25 The applicant puts his submission on three bases; first, that the applicant was not aware of the publications; second, that the applicant "had his hands full" in focussing on other matters being the criminal proceedings and matters associated with the suspension of his practising certificate; and third, that there is overlap between the publications and the criminal offences with which he was charged such that the resolution of the criminal proceedings impacted on any defamation proceedings that might be brought. 26 The applicant referred, in particular, to three cases, Houda v State of New South Wales [2012] NSWSC 1036 (Houda); State of Queensland v O'Keefe [2016] QCA 135 (O'Keefe); and Spedding v Dailymail.com Australia Pty Ltd [2018] NSWSC 1963 (Spedding) as being illustrative of the fact that those factors are relevant to satisfying the onus and were sufficient in those cases to do so. From that it was submitted that this case has like features and, on the evidence, the onus is discharged by the applicant. 27 On the other hand, the respondent submitted that the applicant has not established that the extension should be granted. The respondent submitted that the applicant was wilfully blind about the publications such that any unawareness of the specific publications is insufficient to satisfy the onus. The respondent submitted that this was not a case like Houda, Spedding or O'Keefe because amongst other things, there was not the same overlap between the criminal proceedings and any defamation proceedings. It submitted that this case was more akin to Cassar in which Hislop J refused the application for an extension in circumstances where the applicant was a lawyer and on the facts would have been expected to take prompt action to ascertain if the defendant had published material about the incident and if such material was defamatory. 28 In reply the applicant sought to distinguish Cassar. He submitted that the affidavit evidence was sufficient to find that the applicant was unaware of the publications and that he was not wilfully blind. The applicant submitted that comments made to him by family and friends were not sufficient to put him on notice (in the manner that occurred in Cassar) of the publications. 29 The applicant set out the chronology of events from the evidence: (1) 14 July 2000 – applicant admitted as a solicitor; (2) 2005 – applicant purchased the law firm Thomas Booler Lawyers (TBL); (3) 5 April 2017 – New South Wales Police executed a search warrant at TBL; (4) 20 September 2017 – TBL employed about 30 staff, including 6 solicitors; (5) 20 September 2017 – applicant arrested at offices of TBL; (6) 20 September 2017 – applicant charged with knowingly directing the activities of a criminal group and dishonestly obtaining an advantage by directing clients' settlement monies in the amount of $22,000 without authorisation; (7) 20 – 21 September 2017 – applicant held on remand; (8) 20 September 2017 (evening) – publications broadcast and uploaded onto the internet – applicant did not see them, as he was on remand; (9) 21 September 2017 – applicant applied for bail, and bail was refused; (10) 21 September 2017 – Law Society provisionally suspended the applicant's practising certificate; (11) 21 – 26 September 2017 – applicant incarcerated at Emu Plains and then transferred and held at Silverwater Correctional Complex; (12) 26 September 2017 – applicant granted bail including on condition that he not contact the staff or clients of TBL; (13) 14 October 2017 – Law Society suspended the applicant's practising certificate, an application to have the suspension lifted by the applicant was refused; (14) 23 November 2017 – Supreme Court amended bail conditions to allow the applicant to contact employees of TBL; (15) 26 September 2017-25 July 2019 – applicant required to report to Day Street, Sydney Police station every week; (16) 24 October 2018 – New South Wales Police withdrew the charge of knowingly directing activities of a criminal group; (17) 1 July 2019 – Court ordered that the criminal proceedings be heard by judge alone because of negative publicity; (18) 24 July 2019 – Final brief of evidence served in criminal proceeding against applicant; (19) 25 July 2019 – Police withdrew remaining charges against applicant; (20) 26 July 2019 – Criminal proceedings against the applicant were formally dismissed; (21) 14 August 2019 – applicant spoke to Roger Rasmussen regarding defamation; (22) 19 August 2019 – applicant briefed Roger Rasmussen to advise regarding defamation (but does not thereafter hear from him); (23) 26 August 2019 – DPP consented to pay the applicant's costs of the criminal proceedings; (24) 6 September 2019 – Judge Mark Williams issued a Certificate for Costs on Discharge; (25) 10 September 2019 – applicant briefed Sue Chrysanthou to advise regarding defamation; (26) 16 September 2019 – applicant first became aware of publications; (27) 24 September 2019 – applicant received advice regarding defamation from Sue Chrysanthou; (28) 25 September 2019 – applicant instructed Mark O'Brien Legal (MOBL); (29) 26 September 2019 – MOBL sent letter of demand to the respondent in relation to publications; (30) 3 October 2019 – Proceedings commenced; (31) December 2019 – TBL employed 15 staff, including 3 solicitors. 30 Those facts were not in dispute. 31 The applicant contended that he did not see any of the publications at the time they were broadcast and uploaded onto the internet because he was on remand and not granted bail until 5 days after those publications; he then defended himself against the charges which went for two years; he became depressed and unwell; while he was generally aware of some publicity about his charges, he was unaware of any of the Network Ten publications during the limitation period and he avoided seeking out any such publications because he was focussed on meeting the criminal charges which had threatened, and continued to threaten, his livelihood. 32 It may be accepted, and it was not seriously disputed, that the applicant was not aware of the publications during the time of the limitation period and did not became aware until September 2019, at a time after he sought advice in relation to defamation proceedings. However, that says nothing as to whether he was on notice of the existence of such publications. It also may be accepted that the applicant decided that his primary objectives were fighting the criminal charges against him and the related matter of regaining his practising certificate. The applicant's solicitor described that the applicant "became depressed" and the emotional and physical impact on him. The applicant accepted the use of the description "depressed" is a lay description by him of his emotional state at the time and is not a reference to a medical diagnosis. As the respondent correctly pointed out, there was no medical evidence presented to support any conditions or that they impeded his ability to act. 33 Before considering the substance of the submissions there are three preliminary observations. 34 First, it is important to focus on the circumstances of this case, mindful that there is a danger in applying cases by example or analogy for to do so may be to treat them as providing some gloss on the legislation: John Casley v Australian Broadcasting Corporation [2013] VSCA 182; (2013) 39 VR 526, at [54] per Hansen JA; see also Carey at [61] per Beazley JA. The task is to determine if the statutory test is satisfied; in the circumstances was it not reasonable for the applicant to have commenced an action within the period of one year from the date of publication. In that context, other cases may provide guidance as to the application of the statutory test to the particular circumstances of the case, however ultimately, it is the submissions and facts specific to this case that will inform the assessment of the reasonableness, or not, of the steps taken by the applicant. 35 Second, and aligned with that, it does not automatically follow that every person facing criminal proceedings should have an extension of the limitation period: Houda at [37]. 36 Third, the issue is not whether the period of delay is explicable. A delay might be explicable but nonetheless not excusable such as to satisfy the test. Nor is it sufficient to prove that it was reasonable for the applicant to delay commencing proceedings: Ritson v Gay & Lesbian Community Publishing Ltd & Ors [2012] NSWSC 483 at [14]–[27] per Beech-Jones J. Rather, as noted above, it must be established that it was not reasonable for them to start within the 12 month period. 37 Against that background I turn to consider the bases of the application. While the applicant submitted that the first basis was sufficient in itself to satisfy the test, there is overlap between the bases, and it is the combination of bases relied on. First basis 38 In the above context, while the applicant may not have been aware of the publications during the limitation period, there is a broader issue of whether, in the circumstances, he was wilfully blind to their existence. 39 The respondent highlighted that the Svilans affidavit deposes to the following: x. After Mr Joukhadour was released on bail on 26 September 2017, many friends and acquaintances mentioned the institution of the criminal proceedings to him, saying to him words to the following effect: "Are you staging accidents?" "Have you made millions?" "I guess it's only a rort if you're not part of it". y. Shortly after his release on bail, Mr Joukhador's mother said to him words to the following effect: "We're getting phone calls from friends asking if you're a fraud. One friend said to me that they were paying more for CTP because of you". 40 At the very least, the first of those statements, "are you staging accidents" bears no correlation to the offences with which the applicant was charged. That would have been obvious to the applicant from the conversations. It is also plain from the evidence that the statements were made to him by multiple people. 41 The respondent submitted that from then the applicant was on notice that there were publications which were potentially defamatory and in that context he could have, but did not, ascertain whether that was so. The applicant submitted in reply, in effect, that there was no basis to infer that the applicant understood those statements to have come from the media. It was submitted that "it did not need to be the case that he would conclude 'the media have said I am staging accidents'". 42 A problem for the applicant is that the affidavit is silent on the applicant's understanding of those statements nor does it contain any elucidation of his reaction to those statements with his many friends and family which could, and probably would, have shed light on whether he had knowledge that the friends and family were basing their statements off what they had heard or read in the media. 43 The applicant accepted that there were some matters which could have been explored in the affidavit and submitted that he "might have said, 'Yes, it could have come from the media, I don't know' or 'I suppose'. But, ultimately, he couldn't have said, 'It must have come from the media'. He just wouldn't know". The applicant submitted that given the applicant's state he was not "joining the dots in the ordinary way". However, that does not overcome the lack of evidence in the context where the onus is on the applicant. I note that in respect to the last submission, there is also no evidence in the affidavit to that effect. 44 I am not prepared to draw the inference the applicant seeks. The obvious inference is that the applicant would have had some interaction at the time with the persons putting the statements to him. Given the content and nature of the statements, that the applicant remained silent at the time this information was imparted on each occasion is inherently improbable. In any event, the fact of the statements being made to him by many people, given their content, gives rise to the inference that the statements were based on what had been obtained from the media. At the very least, the first of the statements, the staging of car crashes, he knew to be inaccurate by reference to the charges laid. Even accepting his state of mind at the time, the applicant was on notice that the media were publishing stories and, at the very least, some stories may be inaccurate and possibly defamatory. 45 Thereafter, the applicant refrained from making any inquiry. On the solicitor's evidence, the applicant tried to avoid the media and avoided Googling his name, giving rise to the inference that he did not want to see what was published. This is in a context where the affidavit deposes to the applicant being aware that material about him, and the charges against him, had been published in the media. Indeed, the affidavit deposes that he: …had made a decision not to take any action regarding material that may have been published in the media about him because of his primary objectives of fighting the criminal charges that had been laid against him and regaining his practicing certificate, and only thereafter to look at potentially taking action in relation to defamatory matter that may have been published about him. 46 The applicant decided not to take any action in relation to any information in the media as he did not consider he could fight both; he did not feel like he could deal with the issue (being the defamation proceedings). That of itself reflects that he was aware, at least of the possibility, that there were statements in the media which could likely found some defamation proceedings. The concept of wilful blindness encompasses a person who "deliberately refrains from making inquiries because he prefers not to have the result, when he wilfully shuts his eyes for fear that he may learn the truth…he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring": R v Crabbe [1985] HCA 22; (1985) 156 CLR 464 at 470 per Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ cited in Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 at [84] per Gaudron, McHugh and Gummow JJ. While that statement was made in a criminal context, the concept nevertheless arguably has some application in this circumstance. However, one does not need to go that far. 47 As Martin J observed in Wookey at [77] (recited in Cassar at [20]): Where a person does not know the content of a publication to someone which they know exists, yet they suspect it may be defamatory of them, the person would ordinarily be expected to take prompt steps to obtain access to the publication, with a view to assessing whether the communication is defamatory or not... 48 In Cassar, where the applicant submitted that he did not know of the publication, Hislop J addressed the defendant's submission at [21], that: …the plaintiff could only succeed if he could establish, objectively, that it was not reasonable in the circumstances for him to have commenced an action in relation to the matter complained of within one year from the date of the publication. This he had not done. The plaintiff knew that the matter was of significant interest to the media; that the defendant was interested in the story; he knew the defendant had only one side of the story; and he assumed the incident could have been on television. There was thus ample ground to suspect the defendant may have published material in respect of the assault which was defamatory of the plaintiff. If he had searched Google for his name as he did in November 2011 or had otherwise taken steps to inform himself he would have found the defendant's publications about him. 49 The Court concluded at [22]: In my opinion, in the circumstances of the present case, the plaintiff or his lawyer would be expected to take prompt action to ascertain if the defendant had published material about the incident and if such material was defamatory. The plaintiff failed to do this. In my opinion, the plaintiff has not established that it was not reasonable in the circumstances for him to have commenced an action in relation to the matter complained of within one year from the date of the publication. 50 The applicant attempted to factually distinguish Cassar on the basis that there was evidence in that case that a journalist had approached the applicant for comment on a story the journalist had written giving the victim's side of the story in relation to a criminal charge of which he was the defendant. Plainly that is more direct than the evidence in this case, but it does not render the reasoning process any less applicable. While the evidence might be less direct, given the nature of the statements in the media, that they were coming from many friends and family in a context where he was aware that material about him had been published, the obvious inference is that the source of the statements was the media. At the very least, the applicant was on notice of that possibility. 51 During the hearing, the applicant noted that it was ultimately a Facebook search, not a Google search that revealed the matter complained of to the applicant, and that this was rather a specific type of search to find the material, but no evidence was provided in the Svilans affidavit to support that claim. The affidavit deposes to the second item being found in the Facebook search although there is no evidence on how or where the remaining items were found. Nor was there any evidence to suggest that if a search had been conducted in a timely fashion, that the publications would not have been located. The applicant submitted in reply that there was no evidence that a Google search would have revealed anything, although he acknowledged that he was not suggesting he, or others on his instructions, could not have tried to do so. However, the absence of evidence is in the context where the onus is on the applicant. 52 As was accepted by the applicant at the hearing, it is not open to an applicant to say that because they were unaware "ipso facto, satisfaction is achieved". In the circumstances of this present case, if appropriate searches were made at the time, which he chose not to do, there is no basis to infer, nor evidence to suggest, that the publications would not have been located. Second and third bases 53 I will address these bases together, as they involve a consideration of the applicant's reliance on Houda, O'Keefe and Spedding, noting at the outset that the applicant's submission is that he is in a stronger position than Houda because of the existence of the first basis. 54 In Houda, the applicant was a solicitor who was charged with two offences, (resisting a police officer in the execution of his duty and failing to comply with a request to submit to a search), which were later dismissed by a Magistrate who found that the prosecution had not made out a prima facie case. Thereafter the applicant commenced defamation proceedings, but required an extension of time. The applicant gave evidence of his decision not to proceed with the defamation proceedings until the criminal proceedings were finalised, and that he considered he would do so if he was successful in the criminal proceedings. That is, the criminal case bore on the assessment of the prospects of the defamation case. 55 The extension was granted, with McCallum J concluding at [34]-[37]: 34. I am satisfied that it was not reasonable for Mr Houda to commence proceedings for defamation before the conclusion of the criminal proceedings against him. The wisdom of that course was inextricably linked with the fate of the criminal charges, which demanded priority as the forum in which he had to vindicate his reputation. 35. Further, Mr Houda was intending to pursue other causes of action against the defendant that also depended on the fate of the criminal proceedings. In my view, it would not have been reasonable for him to launch the juggernaut of defamation proceedings before he was in a position to assess the prospects of success of those claims. Had he been convicted of the criminal charges, the prospect of then vindicating his reputation in a civil action would have been derisory. Indeed, a premature decision to commence such action may have compounded the very harm sought to be vindicated. 36. Although Mr Houda faced the dilemma of having otherwise to allow the limitation period to expire, in my view it was not reasonable for him to attempt to pre-empt the outcome of the criminal proceedings when so much was at stake. Those acting for a plaintiff have an obligation to give proper advice as to the steps available to preserve a cause of action within the limitation period. However, that obligation should not be seen as a straight-jacket constraining the responsible assessment by a plaintiff in the circumstances of Mr Houda as to whether to take on the burden of litigating the truth of a defamatory imputation while defending the same allegation in criminal proceedings. 37. It does not necessarily follow that every person facing criminal charges should automatically have an extension of the limitation period. My decision in the present case is based on the complete overlap between the issues raised in the criminal proceedings and by the claim in defamation, the fact that the plaintiff is a solicitor who faced the prospect of professional ramifications if he misjudged the seriousness of the criminal allegations against him and the fact that Mr Houda seeks to pursue other causes of action at the same time as the claim in defamation. 56 The applicant in this case submitted in the context of Houda, that if there was a criminal conviction in this case it would mitigate any damages that could be obtained, therefore it is relevant to any decision to bring an action. The applicant also submitted that while her Honour found there was a total overlap in Houda, her Honour was not saying that but for the complete overlap, the extension would not have been granted. 57 In that context the applicant referred to O'Keefe, where the factual circumstances were that there was not a complete overlap between the criminal and the defamation proceedings. The applicant was a police officer who was charged with misconduct in public office and suspended from his duties (after a short time, it was without pay). Ultimately an indictment was not presented. The defamation allegation related to a briefing note published by a Police Inspector in the course of his duties. The existence of this document was not known until the brief of evidence in the criminal trial had been served. Referring to Houda, the Court of Appeal (Mullins J with McMurdo JA and Douglas JJ agreeing) concluded at [33]: As McCallum J observed, it is not every person facing a criminal charge arising out of circumstances linked to the defamatory statement who will be able to show that it was not reasonable to have commenced the proceeding for defamation within the limitation period, whilst the criminal charge was extant. In Mr O'Keefe's case, however, he was not only faced during the one year limitation period with the criminal charge, but also with the additional pressure of the suspension from his duties as a police officer without remuneration. The alleged defamatory statements do not coincide entirely with the particulars of the criminal charge against Mr O'Keefe, as the criminal charge did not include the allegation that Mr O'Keefe had "knowingly included false information in the QP9" that was incorporated in the briefing note. There was sufficient overlap between the criminal charge against Mr O'Keefe and the alleged defamatory statements in the briefing note that made it objectively justifiable for Mr O'Keefe to focus his attention on the criminal charge in conjunction with responding to his suspension from the QPS, rather than any civil claim for defamation. 58 The applicant highlighted, in particular, that in O'Keefe there was not a total overlap between the proceedings and therefore, the outcome of the criminal proceedings would not dispose of the defamation proceedings. 59 The applicant contended that there was sufficient overlap in this case, such that a criminal trial if there was a conviction would prove some of the imputations, with the mitigating effect also as to damages. It was submitted that the overlap was substantial. 60 The respondent submitted that Houda, O'Keefe and Spedding were very different cases to the current application. 61 A number of observations can be made about the alleged similarities between this case and Houda and O'Keefe (the cases to which oral submissions were directed). 62 First, the applicant submitted that he was in a stronger position than Houda in establishing that an extension should be granted because he, unlike Mr Houda, was unaware of the publications. However, that proposition is incorrect because, as explained above, while it is accepted that the applicant was unaware of the publications, he was on notice that such publications may exist. Moreover, there are other features of the evidence, referred to below at [66] to [68] which differentiate Houda from this case. 63 Second, the respondent submitted one point of difference with Houda is that, unlike Mr Houda who may have had to give evidence in his criminal proceedings and where the outcome of the proceedings was unsure, in this case, due to the disparity between the proceedings and the existence of facts known by the applicant, the applicant in this case was aware that there was no basis to the charges. It was submitted therefore, the applicant should have known that the outcome of the criminal proceedings would not have impeded any concurrent claim in defamation. This was said to be based on the evidence in the affidavit that the applicant was told the criminal charges, relating to deducting money from client files without authorisation, which were ultimately withdrawn when the prosecution located signed authorisations. From that it was submitted that an inference should be drawn, that the applicant must have known those documents existed and therefore, that ultimately he should have known that he would be found not guilty. 64 At one level that may be so. However, the unchallenged facts are: the applicant was arrested; he was initially remanded in custody; when given bail, it was on strict conditions; his practising certificate was suspended; attempts to have that lifted failed; it took one year for one of the charges to be withdrawn and then others remained; and it took another year for the remaining charges to be withdrawn. I am not persuaded by the underlying factual premise of this aspect of the respondent's submission. Moreover, it does not diminish the unchallenged evidence of the effect upon him of the charges and the suspension of his practising certificate. Nor does it diminish the evidence that he made the choice to focus on defending the charges. 65 Third, much of the argument was directed to whether there was overlap between the criminal and defamation proceedings such that it made it objectively justifiable for the applicant to focus on his criminal charges and suspension of his practising certificate. The respondent's submission recited in the second observation is applicable to this argument. 66 The issue of overlap in this application is not as simple as determining the degree of any overlap between the proceedings. A more fundamental issue arises for consideration. In Houda there was evidence that the applicant considered that if he successfully defended the criminal proceedings he would take action in relation to the statements made and therefore he had to wait until the finalisation of the charges. From that it was submitted that the outcome of those proceedings were important in assessing any possible claim for defamation. An argument was also advanced in Houda that the applicant may have suffered a forensic disadvantage in the criminal proceedings if he had commenced the civil proceedings on the basis that the proper pursuit of those proceeding, for practical purposes, may have abrogated the applicant's right to silence in the criminal proceedings. In O'Keefe, while there is less information in the judgment as to the circumstances, it appears that the applicant and his solicitor decided to first focus on the criminal proceeding. Further, despite the fact there was not the same degree of overlap as in Houda, the Court held that there was "sufficient overlap" such that it concluded at [37] that it "would not have been reasonable for Mr O'Keefe to pre-empt the outcome of the criminal proceeding by prematurely commencing civil proceeding for the defamation claim involving much the same allegations". I note in Spedding, which also involved the need for an extension in circumstances where the applicant had been charged with a criminal offence, the evidence was that the applicant received legal advice from counsel not to commence defamation proceedings until after the criminal proceedings had been resolved. Unlike this case, the applicant in Spedding provided detailed evidence of the legal advice he was provided, with McCallum J ultimately finding at [34] that the evidence established that "Mr Spedding was advised in the strongest terms by senior and junior counsel with relevant expertise not to commence proceedings" prior to the resolution of the criminal proceedings and that this was "clearly a relevant factor" in considering the reasonableness of Mr Speeding's actions. 67 In this case the evidence was: …Mr Joukhador had made a decision not to take any action regarding material that may have been published in the media about him because of his primary objectives of fighting the criminal charges that had been laid against him and regaining his practicing certificate, and only thereafter to look at potentially taking action in relation to defamatory matter that may have been published about him. Because he felt depressed, Mr Joukhador did not in any event feel capable of 'fighting any other front' other than the criminal charges that he was facing. He felt like he was in a very dark place and did not feel like he could deal with the issue. 68 There is no evidence in the affidavit read in this case, that any delay in instituting proceedings was because the applicant (who is a solicitor) considered an assessment of the merits of any defamation action could only occur after the criminal proceedings had been completed. There is no evidence that it was a factor he took into account. Nor is there evidence of any legal advice being obtained or being acted upon. To the contrary, the basis of the applicant's decision was that his primary objective was fighting the criminal charges (and suspension of his practising certificate) and he did not feel he could fight on two fronts. There is no evidence that the question of overlap of the subject matter formed any part of the applicant's reasons. That is different from Houda, O'Keefe and Spedding in that regard. In the circumstances of this case, it is not a factor which was operative on the applicant's decision: see, for example: Carey at [56]. 69 Fourth, in any event, while there is some overlap between the criminal and defamation proceedings in this case, the impact is a question of degree. While the applicant made submissions as to the overlap between some imputations in these proceedings and the criminal proceedings, the applicant placed some focus on the relevance of this issue to the issue of mitigation. The applicant submitted that irrespective of whether or not the overlap may bear upon the truth of the defamatory imputations, the overlap was "in the same sector" and therefore, "[i]t would be highly material, [in any potential defamation proceedings] at least, on the question of damages". The respondent submitted the overlap between the imputations and the proceedings was not that contended for, and not as significant as in Houda or O'Keefe. There is no complete overlap of proceedings as in Houda. Given the publications and imputations, the potential overlap appears not to be to the degree in O'Keefe. As noted above, the respondent submitted that the applicant did not need to await the outcome in the criminal proceedings to assess his prospects on a defamation claim. Here, the most significant potential relevance was said to relate to the issue of damages. 70 The cases referred to during argument provide illustrations of the application of s 56A. That said, it is important to recall that each case must be considered on its own facts. 71 In practical terms, while comparisons were sought to be drawn by the applicant between those cases and this, the evidence in the cases is different. Given the conclusion above in relation to the first basis relied on by the applicant, in practical terms, the remaining reasons in the affidavit for not proceeding within the limitation period boil down to focusing on the criminal proceedings and the consequent suspension of his practising certificate. It was what was referred to during oral submissions as the "hands too full" basis. 72 The respondent contended that on the authorities, that basis alone has not been sufficient. The applicant in reply did not take issue with the submission as to the state of the authorities, but did not accept that, as a matter of principle, that basis alone could not be sufficient. Whether it is sufficient, the applicant contended, is a matter of degree and extent. Given that each case must turn on its own facts, that must be correct. The applicant emphasised that he was not relying on this basis alone, and all bases relied on were to be considered together. 73 The respondent also contended that there was an alternative approach available to the applicant which was not, but could have been taken and that the applicant needs to establish that it was not reasonable for him to have taken that alternative action, relying on Hunter v Hanson [2014] NSWCA 263 at [72] per McColl JA with Macfarlan JA agreeing at [79]. Although that may be stating the position too highly, that there was an alternative approach is nonetheless plainly a relevant consideration. As the respondent submitted, the applicant could have commenced the proceedings within time and then applied for a stay of those proceedings pending the resolution of the criminal proceedings: see for example Houda at [32]. Although the applicant submitted that a stay being granted cannot be guaranteed, as the respondent correctly submitted it is unlikely in the circumstances that it would have been refused. 74 That a person is facing criminal charges does not automatically provide a basis on which to grant an extension: Houda at [37]. While the applicant did not know of the publications, it was because he chose not to make any inquiries in circumstances where he was on notice of the possibility of material of this nature and in circumstances where he determined to consider any defamation proceedings after his criminal proceedings. Although the applicant by his solicitor described that the effect on him and his state at the time was such he considered he could not fight on more than one front, there is no medical evidence relied on, and in particular, no evidence that it impeded his ability to do so. On the evidence before me, it was a decision he made. The applicant's circumstances may engender sympathy for his predicament, and may provide an explanation for the delay, but that is not the test. Rather the applicant must satisfy the Court it was not reasonable, in the circumstances, for him to have commenced proceedings within the limitation period. The matter must be considered objectively. 75 The threshold imposed under s 56A to secure an extension is a high one, in a context of the legislature deliberately imposing a short limitation period: see for example, Cassar at [16] per Hislop J; Carey at [55] – [57] per Beazley JA; McColl JA and Sackville AJA agreeing; Rayney v The State of Western Australia (No 3) [2010] WASC 83 at [41] per Martin CJ; Noonan at [15] - [20] per Keane JA. The applicant has not discharged that burden. Conclusion 76 The application for an extension of the limitation period is refused, with costs. I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham. Associate: Dated: 1 June 2020