Supreme Court New South Wales Medium Neutral Citation: Brooks v Fairfax Media Publications Pty Ltd [2015] NSWSC 986 Hearing dates: 29 May 2015 Date of orders: 12 June 2015 Decision date: 12 June 2015 Jurisdiction: Common Law Before: McCallum J Decision: Application to dismiss proceedings as an abuse of process dismissed. Catchwords: DEFAMATION – procedure – application to have proceedings dismissed – whether proceedings are an abuse of process – where print article statute-barred – where greater proportion of harm to reputation caused by print article not sued upon – consideration of principle of proportionality as applied in Bleyer v Google Inc Legislation Cited: Defamation Act 2005 (NSW), s 38 Cases Cited: Bleyer v Google Inc [2014] NSWSC 897 Schellenberg v British Broadcasting Corporation [2000] EMLR 296 Category: Procedural and other rulings Parties: Neil Brooks (First Plaintiff) Elle Brooks (Second Plaintiff) Fairfax Media Publications Pty Ltd (Defendant) Representation: Counsel: S Chrysanthou (Plaintiffs) T Blackburn SC (Defendant) Solicitors: Kalantzis Lawyers (Plaintiffs) Banki Haddock Fiora (Defendant) File Number(s): 2014/376115 Publication restriction: None Judgment 1. HER HONOUR: Neil Brooks is an Australian Olympic gold medallist. On 5 March 2012, a segment of the program A Current Affair purported to expose him as an international conman. In separate proceedings, Mr Brooks and his wife, Ms Elle Brooks, have sued the proprietor of Channel Nine for defamation in respect of that broadcast. Those proceedings were brought within time and are pending in the Court, having a hearing date listed for 16 November 2015. 2. The present action concerns a short newspaper article published in the Sydney Morning Herald relating to the allegations made on A Current Affair. It is trite to say that the publication of that matter gives rise to a separate cause of action. 3. The article was published in the print edition of The Sydney Morning Herald at about the same time as the broadcast of A Current Affair. However, the plaintiffs did not sue on the printed article within the limitation period of 12 months and, accordingly, any action on that publication is now statute-barred. 4. On 23 December 2014, Mr Brooks and his wife commenced the present action, suing for publication of the same article on the Internet edition of the Sydney Morning Herald. The statement of claim specifies that the relevant publications sued on are any downloads of the Internet article within the 12 month period preceding the filing of the statement of claim. 5. The first listing of the proceedings in the Defamation List was on 27 March 2015. On that occasion, the defendant foreshadowed an application to have the proceedings struck out as an abuse of process. This judgment determines that application. 6. The evidence relied upon by the defendant in support of the application establishes that by far the greater portion of the harm to reputation caused by the publication of the article would have been caused by the publication of the printed article (which is now statute-barred). 7. The defendant relied upon an affidavit, affirmed by Mr Senior which establishes that downloads of the matter complained of in the 12 month period preceding the commencement of the proceedings were as follows: 1. according to a Google Analytics search, there were 48 views in the 12 month period preceding commencement of the proceedings; 2. according to a Data Collector search, there were 52 views in the 12 month period preceding commencement of the proceeding; 3. those page views represent 0.44% of the total page views disclosed from the Google Analytics search from March 2012 to March 2015. 1. In response to a request by the plaintiffs at the hearing of the dismissed application that the defendant comply with the obligation in the Practice Note (SC CL 4) to inform the Court of any admission as to publication, further information was provided for the months of March, April and May 2015, as follows: 1. May 2015: 11 downloads; 2. April 2015: 97 downloads; 3. March 2015: 56 downloads. 1. The plaintiffs responded to Mr Senior's affidavit and the dismissal application with a lengthy explanation, set out in an affidavit sworn by the plaintiffs' solicitor, Mr Kalantzis, as to the circumstances in which it came about that the plaintiffs did not commence proceedings within the one year limitation period after publication of the article. 2. I have had regard to the whole of the contents of the affidavit. In short, the affidavit sets out a lengthy series of personal considerations as well as adverting to the fact that, although Mr Kalantzis had agreed to act in the Channel Nine proceedings on a speculative basis at the time he was first approached by the Brooks he was not prepared also to act on that basis, in any proposed proceedings against Fairfax. 3. In those circumstances, the defendant contends that the prosecution of the action in respect of the limited Internet publication particularised amounts to an abuse of process. It was submitted that there were, in effect, four strands to the abuse of process argument. 4. First, the defendant contended that, the plaintiffs having done nothing to sue on the articles until 23 December 2014 and having taken no steps to seek an extension of the limitation period in respect of the print article, it could be inferred that they did not care about the Fairfax publication. The contents of Mr Kalantzis' affidavit persuade me otherwise. 5. In my view, the explanation there set out (although perhaps not affording a sufficient basis for obtaining extension of the limitation period) adequately explains the circumstances which constrained or discouraged the plaintiffs from commencing proceedings within time. 6. Secondly, it was submitted as a strand of the abuse of process argument that the Court ought not to accept (or at least to accept without scepticism) Mr Kalantzis' evidence that he was not prepared to accept instructions in the Fairfax proceedings on a speculative basis. 7. In that context, I should note that, having regard to the nature of the present application, I refused an application by Mr Blackburn SC, who appears for the defendant, to cross-examine Mr Kalantzis on his affidavit. Accordingly, this particular submission may only be rejected with a careful approach to that evidence. 8. In my view, the application to cross-examine and the submission on the basis of what would presumably have been put to Mr Kalantzis had cross-examination been allowed, is misconceived. There is no obligation on any solicitor in this or presumably any other jurisdiction in this country to accept instructions on a speculative basis. In any event, whether or not the Brooks took adequate steps to obtain legal advice or could have obtained legal advice from other sources or on other terms is, in my view, irrelevant to the question of abuse of process. Although this contention was put as one of the strands of the abuse of process argument, I reject that characterisation. 9. The third strand of the argument was that the present proceedings would have practically complete overlap with the Channel Nine proceedings. It was observed that in the Channel Nine proceedings defences of truth and contextual truth have been pleaded. It was submitted that there would be a substantial common factual premise between the two proceedings. On that basis, it was submitted that it would be a waste of the Court's time for the two proceedings to be heard separately when it is likely that each will occupy about three weeks of hearing time. 10. That aspect of the argument has a degree of overlap with the fourth strand of the abuse of process argument which was the critical issue on which the present application turns; that is, the argument based on the principle of proportionality which I considered in my decision in Bleyer v Google Inc [2014] NSWSC 897. 11. On this fourth strand of the argument, the defendant submitted that, having regard to the very small number of downloads that has been identified, the fact that the proceedings were commenced late and the likely small award of damages, the time occupied by hearing the proceedings would be wholly disproportionate to the interest at stake. 12. A fifth argument (which is really an aspect of the Bleyer v Google Inc point) is that any damages awarded in the Channel Nine proceedings would substantially mitigate any damages that might be awarded in these proceedings, in accordance with s 38(1)(c) of the Defamation Act 2005 (NSW). 13. The circumstances in Bleyer were very different from the present case. As recorded in the concluding paragraphs of the judgment it was, in effect, an action to vindicate the plaintiff's reputation potentially only in respect of a single download of a response to a search of Mr Bleyer's name. The complexity of the issues that would have to have been determined in order to prosecute the action was manifest, as recorded in the judgment at [97]: The complexity of the issues raised by the action will be apparent from this judgment. There will at least be issues to be determined as to whether Google Inc has a defence of innocent dissemination under s 32 of the Defamation Act and the availability of a defence under clause 91 of schedule 5 to the Broadcasting Services Act 1992. It is acknowledged that, if the plaintiff is successful, he will be unable to enforce any award of damages. The interest at stake is his entitlement to vindicate his reputation in the eyes of one person. In all the circumstances, I am persuaded that the resources of the court and the parties that will be expended to determine the claim are out of all proportion to that interest. 1. In the present case, it is clear that the plaintiffs have a discrete cause of action in respect of the newspaper article. The number of downloads is not as miniscule as it was in Bleyer. The authorities relied upon by Ms Chrysanthou, who appears for the plaintiffs, persuade me that there is a viable cause of action which the Court would be extremely slow to preclude the plaintiffs from prosecuting. 2. In my view, the contention that the proceedings amount to an abuse of process based on the principles stated in Bleyer must be rejected. 3. The defendant also relied upon the English decision of Schellenberg v British Broadcasting Corporation [2000] EMLR 296. That also was a very different case from the present case. The defamation action struck out by Eady J in that case was in circumstances in which the claimant had previously abandoned similar defamation actions and compromised them on the grounds that he was likely to be unsuccessful in the face of defences of justification and fair comment. A premise of the application was the contention that the proceedings had no real prospect of success. 4. As to the prospect of duplication with the Channel Nine proceedings, two matters may be observed. One is that whilst a defendant should of course bring a strike-out application on the grounds of an abuse of proceedings at an early point, in these proceedings no defence has yet been filed. Without criticising the defendants for bringing the application early, I would simply observe that, the application having been brought before the pleadings are closed, it is difficult to sustain the contention that they raise identical issues to those raised in other proceedings where the pleadings have closed. 5. The defendants separately argued that the present action amounts to an attempt to subvert the limitation period. In my view, having regard to the fact that the action is confined to publication of the matter complained of on the Internet during the 12 month period preceding the commencement of the proceedings, that argument is misconceived. The fact that the plaintiffs did not commence proceedings in respect of the newspaper article within the 12 month limitation period is to their detriment but, in my view, it does not follow that the commencement of an action for such cause of action as they still have is an abuse of process. 6. In all the circumstances, I have not been persuaded that the present action is an abuse of process and accordingly the application is dismissed. 7. I order the defendant to pay the plaintiffs' costs of the first listing and the present application. ********** 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: 23 July 2015