Barrett v TCN Channel Nine Pty Ltd [2016] NSWSC 1663

Supreme Court New South Wales

Medium Neutral Citation: Barrett v TCN Channel Nine Pty Ltd [2016] NSWSC 1663 Hearing dates: 21 November 2016 Date of orders: 28 November 2016 Decision date: 28 November 2016 Jurisdiction: Common Law Before: Davies J Decision: (1) Dismiss the Plaintiff's Notice of Motion filed 29 January 2016.

(2) The Plaintiff is to pay the Defendant's costs. Catchwords: TORTS – defamation – news broadcaster published statements that plaintiff was driver of motor vehicle involved in a fatal accident – uncertainty about identity of driver – plaintiff waited until Coroner's report before commencing action – action commenced out of time

LIMITATION OF ACTIONS – defamation – application to extend one year limitation period – s 56A Limitation Act 1969 – whether it was not reasonable in the circumstances for the plaintiff to have commenced the action in one year from the date of publication – delay after one year in commencing action – whether discretion to extend time beyond one year – test for extending time beyond one year – whether "not reasonable" test applicable – failure to explain delay subsequent to one year from publication – effect of such failure

PROFESSIONS AND TRADES – lawyers – duties – Legal Profession Act 2004 s 345 – whether proceedings enjoyed reasonable prospects of success without Coroner's decision Legislation Cited: Defamation Act 2005 (NSW) Defamation Amendment Act 2002 (NSW) Evidence Act 1995 (NSW) Legal Profession Act 2004 (NSW) Limitation Act 1969 (NSW) Cases Cited: Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 Carey v Australian Broadcasting Corporation (2010) 77 NSWLR 136; [2010] NSWSC 709 Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176 Casley v Australian Broadcasting Corporation (2013) 39 VR 526; [2013] VSCA 182 Cassar v Network Ten Pty Ltd [2012] NSWSC 680 CRA Ltd v Martignago (1995) 39 NSWLR 13 Houda v State of New South Wales [2012] NSWSC 1036 Lakaev v Denny [2010] NSWSC 1480 McMahon v Watkinson [2014] VSC 123 Noonan v MacLennan [2010] 2 QdR 537; [2010] QCA 50 Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 Rayney v Western Australia (No. 3) [2010] WASC 83 Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611 Ritson v Gay & Lesbian Community Publishing Ltd & Ors [2012] NSWSC 483 Spadotto and Co Pty Limited (in liquidation) v Raber [1995] NSWCA 442 Wookey v Quigley (No. 2) [2010] WASC 209 Category: Procedural and other rulings Parties: Luke Barrett (Plaintiff) TCN Channel Nine Pty Ltd (Defendant) Representation: Counsel: T Molomby SC & L Goodchild (Plaintiff) M Richardson (Defendant)