Supreme Court New South Wales Medium Neutral Citation: Linnell v Channel Seven Sydney Pty Ltd [2014] NSWSC 20 Hearing dates: 3 February 2014 Decision date: 03 February 2014 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) Order that the plaintiff's notice of motion filed 19 December 2013 be dismissed. (2) Order that paragraphs 4 to 25 of the Amended Statement of Claim filed 3 December 2013 be struck out. (3) Order the plaintiff to serve any proposed Amended Statement of Claim on or before 10 February 2014. (4) Direct the plaintiff to file any notice of motion seeking leave to file any proposed Amended Statement of Claim by 10.02.14, such motion to be returnable in the Defamation List on 3 March 2014. (5) Order the plaintiff to pay the defendant's costs of the plaintiff's notice of motion filed 19 December 2013. (6) Order the plaintiff to pay the defendant's costs of the defendant's notice of motion filed 28 January 2014. (7) Order the plaintiff to pay the defendant's costs thrown away by reason of the filing of the Amended Statement of Claim on 3 December 2013. (8) Order that the exhibits be returned. Catchwords: DEFAMATION - limitation period - power of amendment - whether new cause of action arises out of the same or substantially the same facts as existing cause of action - s 65(2)(c) Civil Procedure Act. Legislation Cited: Civil Procedure Act 2005 (NSW), s 65 Competition and Consumer Act 2010 (Cth), Sch 2, s 1 Limitation Act 1969 (NSW), s 14B Cases Cited: Dank v Whittaker (No 1) [2013] NSWSC 1062 Rossen v Airey [2012] WASCA 26 Category: Interlocutory applications Parties: Michael Linnell (Plaintiff) Channel Seven Sydney Pty Ltd (First Defendant) David Richardson (Second Defendant) Timothy Collins (Third Defendant) Patricia Cselko (Fourth Defendant) Bernadette Martin (Fifth Defendant) Andre Kubeca (Sixth Defendant) Representation: Counsel: R. Rasmussen (Plaintiff) M. Richardson (Defendants) Solicitors: McMahons Lawyers (Plaintiff) Johnson Winter & Slattery (Defendants) File Number(s): 2012/373810 ex tempore Judgment 1Before me are two notices of motion. In one of them the plaintiff, Michael Linnell, seeks orders granting him leave to file a proposed further Amended Statement of Claim. In the other the defendants, being Channel Seven Sydney Pty Ltd ("Channel 7") and five other persons, seek to strike out certain paragraphs of the existing Amended Statement of Claim. 2The background to the matter is somewhat convoluted. It is necessary to set it out even though, in the light of the manner in which the matter developed and the fair concessions of counsel, the issue I ultimately have to resolve is a fairly narrow one. 3On each of 27 October 2011, 30 November 2011 and 27 December 2011, Channel 7's Today Tonight programme broadcast a story concerning the plaintiff, Mr Linnell. It is only necessary to describe the nature of the stories briefly. The first two stories involved interviews and discussions with various people, together with a commentary and footage concerning Mr Linnell. The common theme of everything that was uttered was that Mr Linnell had manipulated his position as a tenant to occupy premises but avoid paying rent and thereby caused hardship to the owners. 4The third broadcast, on 27 December 2011, depicted Mr Linnell as part of some form of "rogues gallery" constituted by generally "dodgy" people, who had been allegedly uncovered by the Today Tonight programme during the calendar year 2011. 5On 30 November 2012, Mr Linnell filed a Statement of Claim in this Court. He brought a cause of action in defamation. There were three matters complained of, namely, the programme broadcast on 30 November 2011, the making available on the internet of the programme broadcast on 30 November 2011, and the making available on the internet of the programme broadcast on 27 October 2011, with the latter restricted to the period that it was available on the internet from 30 November 2011. There was no cause of action brought in respect of the free-to-air television broadcast of the programme on 27 October 2011. 6On or about 3 December 2013, Mr Linnell filed an Amended Statement of Claim. This was filed pursuant to orders made by McCallum J on 2 December 2013. 7The Amended Statement of Claim retained the causes of action for defamation pleaded in the original Statement of Claim and in respect of the same matters complained of. The Amended Statement of Claim also added a cause of action in defamation in respect of the free-to-air broadcast of the programme on Today Tonight on 27 October 2011. It can be seen immediately that that amendment was brought over two years after the date of that broadcast. Thus, even if the amendment dated back to the commencement of the proceedings, the proceedings were still commenced outside the one year limitation period that ran in respect of the free-to-air broadcast of that programme on 27 October 2011 (Limitation Act 1969 (NSW), s 14B). 8The Amended Statement of Claim also included a cause of action under s 18(1) of Schedule 2 of the Competition and Consumer Act 2010 (Cth), concerning the 27 October 2011 free-to-air broadcast. It is not necessary to state anything further in respect of that. 9Also included in the Amended Statement of Claim was a series of pleaded allegations against the individuals who provided interviews to Today Tonight for inclusion in the broadcasts on 27 October 2011 and 30 November 2011. The persons who provided those interviews are the third to sixth defendants. In broad terms, what was pleaded was that in their interviews they uttered defamatory statements concerning the plaintiff and that it was the natural and probable consequence of their actions that their words and images would be published on the Today Tonight programme on either 27 October 2011 or 30 November 2011 or, in the alternative, they authorised their publication on those dates. 10The defendants' Notice of Motion seeks to strike out the new allegation that the plaintiff was defamed by the 27 October 2011 broadcast. It follows from what I have already stated that that application must be allowed. Counsel for the plaintiff ultimately conceded this. Even if all of the amendments dated back to the time when the proceedings were commenced, that cause of action would still be out of time. No application under the Limitation Act for an extension has been brought concerning these amendments. 11The defendants' Notice of Motion also seeks to strike out so much of the Amended Statement of Claim as pleaded causes of action in defamation in respect of the interviews that were conducted with the third to sixth defendants for inclusion in the two broadcasts. In respect of those interviews that were conducted for the purposes of the broadcast on 27 October 2011, as a matter of logic it must follow that they were conducted before then. Thus, for the same reason it was ultimately conceded on behalf of the plaintiff that those causes of action are out of time and that the application to strike them out must be upheld. 12I will return to consider the interviews conducted for the purpose of the broadcast on 30 November 2011. 13On or about 19 December 2013, the plaintiff served a proposed further Amended Statement of Claim. It is that document which he seeks leave to file. The proposed further Amended Statement of Claim retains all the causes of action that were claimed in the Amended Statement of Claim, some of which, as I have explained, will be struck out. 14It also includes two further causes of action. Proposed paragraph 32 seeks to plead a cause of action in defamation for the publication on 27 October 2011, on free-to-air television of a promotion for the programme that was broadcast on that day. For the reasons I have already explained, and as ultimately conceded by counsel for the plaintiff, that cause of action is clearly time barred. Leave to raise that cause of action is refused. 15The other cause of action sought to be added by the proposed further Amended Statement of Claim is found in paragraph 34. It seeks to plead a cause of action in defamation in respect of the broadcast on 27 December 2011. If that amendment was allowed and dated back to the time of the commencement of the proceedings, then it would be in time. As I have already noted, the proceedings were commenced on 30 November 2012. However, the only suggested source of power to allow an amendment which would have that effect, is s 65(2) of the Civil Procedure Act 2005 (NSW), and in particular s 65(2)(c). Section 65 relevantly provides: "65 Amendment of originating process after expiry of limitation period (1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings. (2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as: ... (c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process. (3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced." 16As became clear during the course of argument, the difficulty for the plaintiff in seeking to invoke s 65(2)(c) was in identifying the connection between the facts that gave rise to an existing cause of action and the facts in respect of the new cause of action. The facts that gave rise to the existing cause of action, being those either set out in the Statement of Claim or the Amended Statement of Claim, concern a publication in the form of the broadcast on 30 November 2011. It was ultimately accepted on behalf of the plaintiff that there was no way of characterising a cause of action in respect of a broadcast on 27 December 2011 as arising from the same, or substantially the same, facts as those that gave rise to the existing cause of action, namely the fact of the broadcast of the programme on 30 November 2011. Thus, as was ultimately conceded by plaintiff, leave to file an amended pleading raising that cause of action has to be refused. 17The remaining contentious aspect of the pleading is one to which I have already adverted, namely that part of the existing Amended Statement of Claim that pleads causes of action arising from the alleged defamatory utterances by the third to sixth defendants in the course of interviews being conducted for the broadcast on 30 November 2011. 18Counsel for Channel 7 and the other defendants, Mr Richardson, submitted that, irrespective of whether these causes of action could be brought within s 65(2)(c) of the Civil Procedure Act, as a matter of fact the interviews were conducted before 30 November 2011 so that it must also follow that they are time barred, even if the amendments dated back to the time when proceedings were commenced. To that end he read an affidavit from his instructing solicitor, Mr Lynch, who, on information and belief, deposed as to the times when the various persons were interviewed. He also annexed a script as a form of business record indicating that the interviews had all been conducted by 25 November 2011. 19Counsel for the plaintiff, Mr Rasmussen, submitted that, where the Court is considering an application to strike out on the basis that the relevant cause of action has expired and a question of fact is involved, then the Court should either decline to consider the matter or should not act unless the fact is clearly established. He submitted that the evidence relied on being, to a large extent, hearsay, was not satisfactory for that purpose. 20It seems to me inherently unlikely that any of the interviews for the programme were conducted on the day that it was broadcast, but any such impression on my part is certainly not sufficient to base a finding of fact to strike out a matter by reference to the expiry of a limitation period. 21Further, while Mr Lynch's evidence goes a long way to proving that, ultimately I do not propose to address this matter on the basis that Channel 7 has established all the interviews were conducted before 30 November 2011, notwithstanding my strong suspicion that that is the case. 22The real difficulty for the existing pleading is that the amendment granting it was not supportable under s 65(2)(c) of the Civil Procedure Act such that the amendment does not obtain the benefit of s 65(3) and does not date back to the time when the proceedings were commenced. 23The essence of a claim in defamation is, of course, the making of the relevant (defamatory) publication. For the purposes of s 65(2)(c) the facts that give rise to the existing cause of action are in this case the fact of the publication in the form of the broadcast of the programme on 30 November 2011. The new cause of action, being an interview with each of the third to sixth defendants, involves a different publication to a different person. 24Questions as to whether the new cause of action arises from the same or substantially the same facts as those giving rise to the existing cause of action are always matters of fact and degree. However, at least in the context of defamation, the authorities indicate that the fact of a different publication to a different person tells, apparently decisively, against any favourable conclusion for the plaintiff (see Rossen v Airey [2012] WASCA 26 at [31]ff). 25In this case at the time of the filing of the Amended Statement of Claim the proposed amendments did not have the benefit of s 65(3) of the Civil Procedure Act so that those amendments could not be said to have taken effect from the date on which the proceedings were commenced, namely 30 November 2012. It follows therefore those amendments were out of time, even if it can not be demonstrated as a matter of fact that the interviews were conducted before 30 November 2011. Accordingly, I will order that those parts of the Amended Statement of Claim be struck out as well. 26Counsel for the plaintiff, Mr Rasmussen, submitted that, even if the Court ordered that those parts of the Amended Statement of Claim be struck out, his client should be granted liberty to replead its case against the third to sixth defendants. It seems that the reformulation of the case against those defendants occurred partly out of a concern raised by the decision of McCallum J in Dank v Whittaker (No 1) [2013] NSWSC 1062 which was said to raise a doubt as to whether a person who is interviewed for a programme assumes responsibility for its broadcast or publication. 27Mr Rasmussen submitted that, if these paragraphs are struck out, his client should be allowed the opportunity to reformulate its case so as to make the third to sixth defendants responsible for the 30 November 2013 broadcast and, if necessary, to challenge the correctness of Dank. 28Mr Richardson, counsel for the defendants, opposed that course. He indicated the proceedings have been on foot for quite a period of time. He submitted that Mr Rasmussen's client had effectively elected the course it would take and should bear the consequences of that choice. 29I think the best course is not to shut Mr Rasmussen out of making an argument in respect of Dank. However, I think this should be done by the service of a proposed further Amended Statement of Claim that not only reformulates the pleading and particulars in light of those paragraphs that have been struck out, but also identifies how it is said that the third to sixth defendants bear responsibility for the broadcast on 30 November 2012. 30If the plaintiffs wish to re-agitate some aspect of Dank then the forum in which they could do so is at the time of seeking leave to file any such proposed Amended Statement of Claim. [Parties addressed on costs.] Orders (1)I order that the plaintiff's notice of motion filed 19 December 2013 be dismissed. (2)I order that paragraphs 4 to 25 of the Amended Statement of Claim filed 3 December 2013 be struck out. (3)I order the plaintiff to serve any proposed Amended Statement of Claim on or before 10 February 2014. (4)I direct the plaintiff to file any notice of motion seeking leave to file any proposed Amended Statement of Claim by 10 February 2014, such motion to be returnable in the Defamation List on 3 March 2014. (5)I order the plaintiff to pay the defendants' costs of the plaintiff's notice of motion filed 19 December 2013. (6)I order the plaintiff to pay the defendants' costs of the defendant's notice of motion filed 28 January 2014. (7)I order the plaintiff to pay the defendants' costs thrown away by reason of the filing of the Amended Statement of Claim on 3 December 2013. (8)I order that the exhibits be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 February 2014