Federal Court of Australia

Joukhador v Network Ten Pty Ltd [2021] FCAFC 37

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the applicant to amend the application for leave to appeal in accordance with the document annexed to his submissions in reply filed on 16 December 2020.

2.    The applicant file and serve the amended application for leave to appeal on or before 24 February 2021.

3.    Leave to appeal be granted.

4.    The appeal be allowed.

5.    The orders made by the primary judge on 1 June 2020 be set aside and in lieu thereof it be ordered that:

(a)    The applicant be granted an extension of the limitation period in which to commence the proceeding, pursuant to s 56A of the Limitation Act 1969 (NSW), up to and including the date of filing of the originating application being 3 October 2019.

(b)    The respondent pay the applicant’s costs.

6.    The respondent pay the appellant’s costs, including the costs of the application for leave to appeal.

7.    The appellant file and serve on or before 26 February 2021 a notice of appeal in the form annexed to the affidavit of Paul Svilans sworn on 15 June 2020 but:

(a)    amending draft ground 1 by adding “not” before “finding”,

(b)    adding ground 11 in the form of ground 2k in his amended application for leave to appeal.

8.    Each party be granted leave to apply, within seven days of the delivery of the reasons for judgment of the Court, to vary orders 5(b) and 6 by filing and serving written submissions limited to 2 pages and any affidavits in support and, if such submissions are filed and served, the opposing party file and serve any written submissions limited to 2 pages and affidavits in opposition within seven days thereafter.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal, by leave, from the primary judge’s decision to refuse to grant the appellant, Marcel Joukhador, an extension of the one year limitation period under ss 14B and 56A of the Limitation Act 1969 (NSW) in which to commence proceedings in defamation against the respondent, Network Ten Pty Ltd, in respect of its broadcast during its 10 News First program on 20 September 2017 of the first of three matters complained of.

2    After hearing argument, the Full Court granted Mr Joukhador leave to appeal, and made orders allowing the appeal and granting the extension of time he had sought. These are our reasons for allowing the appeal.

The legislative context

3    Relevantly, s 14B of the Limitation Act sets out the limitation period for an action for defamation:

14B     Defamation

An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.

4    However, s 56A provides for the extension of the limitation period stipulated in s 14B if the following conditions are satisfied:

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).

(emphasis added)

The circumstances

Mr Joukhador’s arrest and detention

5    At about 9:45am on 20 September 2017, three police officers arrived at the offices of Thomas Booler Lawyers and arrested Mr Joukhador, who was the principal of the firm. The officers took him to a waiting police car, and then to Auburn police station where they charged him with 12 counts, namely:

(a)    one count of knowingly directing the activities of a criminal group, contrary to s 93T(4A) of the Crimes Act 1900 (NSW). In effect, this count alleged that Mr Joukhador participated in a criminal group which was responsible for making deductions from clients’ settlement monies in connection with a fraudulent advisory service, without the clients’ knowledge or authorisation. The total amount involved was alleged to be about $22,000, and

(b)    11 counts of dishonestly obtaining a financial advantage, or causing disadvantage by deception, contrary to s 192E(1)(b) of the Crimes Act. In effect, these counts alleged that Mr Joukhador had dishonestly caused a financial disadvantage to his clients by the deduction from settlement monies, without their knowledge or authorisation, of $2,000 each, totalling $22,000.

6    On the evening of his arrest, during its 10 News First program, Network Ten broadcast the first matter complained of and subsequently republished it in a Facebook post and a tweet that remained accessible online.

7    When the television broadcast complained of occurred on 20 September 2017, Mr Joukhador was in no position to see it because he was being held in police cells and had no access to a television, computer or smart phone. Until 16 September 2019, he was not aware of the broadcast complained of, or that it had been subsequently republished by being made available online through the Facebook post and tweet.

8    Mr Joukhador was held in the cells at Auburn police station until later in the day, when he was transferred to Burwood police station. He continued to be held in custody until he appeared, for the first time, in the Burwood Local Court on 21 September 2017, represented by counsel, who applied for bail. Despite the prosecutor agreeing to the grant of bail with $20,000 security, the magistrate refused bail, saying that neither that sum nor a further offer of $250,000 was sufficient. The magistrate remanded Mr Joukhador in custody.

9    On 21 September 2017, the Law Society of New South Wales provisionally suspended Mr Joukhador’s practising certificate due to the laying of the charges against him.

10    Mr Joukhador was transferred to remand centres in metropolitan prisons until 26 September 2017, when the Supreme Court granted him bail on the provision of security of $250,000. The bail conditions prohibited Mr Joukhador from contacting staff of his firm or its clients, or accessing the firm’s accounts. The bail conditions also required Mr Joukhador to report to a police station each week, and he did so until 25 July 2019.

11    Shortly after his release on bail, many friends and acquaintances mentioned the institution of criminal proceedings to him and said 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”. And Mr Joukhador’s mother also said to him, at the time, 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 [compulsory third-party insurance] because of you”.

12    On 14 October 2017, the Law Society suspended Mr Joukhador’s practising certificate as his application to have it reinstated was refused

13    On about 24 October 2018, the prosecution withdrew the first count, and one of the 11 other counts in the charges.

14    Because of the negative publicity in the media about the charges he was facing, Mr Joukhador applied for a judge alone trial, which was granted on 1 July 2019.

15    On 6 July 2019, the Director of Public Prosecutions approached Mr Joukhador’s senior counsel and verbally proposed to withdraw the remaining charges against him on the basis that Mr Joukhador would not seek costs or make a claim for malicious prosecution. Mr Joukhador rejected that proposal. He had always believed that he was completely innocent of the charges, and has never understood why he was charged.

16    On 24 July 2019, Mr Joukhador was served with the last police brief in the criminal proceedings.

17    On 25 July 2019, the police withdrew the remaining charges against him.

18    On 26 August 2019, the Director of Public Prosecutions consented to Mr Joukhador’s application for costs in the criminal proceeding, and on 6 September 2019 a judge of the District Court of New South Wales granted a certificate for costs on discharge. His Honour certified that if, before the proceedings were instituted, the prosecution had possession of all of the facts, it would not have been reasonable to institute the proceeding, and that any act or omission of Mr Joukhador that had contributed to the institution or continuation of the proceedings was reasonable in the circumstances.

19    At about the time when the last charges were dropped, Mr Joukhador’s senior counsel told him that the reason why the prosecution had withdrawn the charges was because the prosecutor had inspected the legal files of the clients alleged to have been defrauded by Mr Joukhador through deducting of disbursements from settlement amounts without authorisation. Senior counsel told Mr Joukhador that only then had the prosecutor became aware that there was signed documentation in place that authorised each of the deductions.

20    At the time of his arrest, Mr Joukhador’s firm employed about 30 staff, including six solicitors. Since then, the firm initially lost about 20 clients per week and about half its staff. As at December 2019, Mr Joukhador was in the process of transferring his firm’s client base to another legal practice which he also operated and the combined firms then employed about 15 staff, including three other lawyers besides Mr Joukhador.

Mr Joukhador’s knowledge of the matters complained of

21    Mr Joukhador gave unchallenged evidence, through his solicitor, Paul Svilans, on information and belief pursuant to s 75 of the Evidence Act 1995 (Cth). That included the following statements:

z.     As a result of the charges being laid against him, Mr Joukhador became depressed and felt that his life had disappeared. He suffered from reflux, and for a period of about 18 months he vomited most mornings. He had suicidal thoughts. Although he had separated from his wife, Mr Joukhador was hopeful for a reconciliation, however, as a result of the charges and the publicity given to those charges, the prospects for any such reconciliation were derailed and are at present still only low.

aa.     Although Mr Joukhador tried to avoid the media and avoided Googling his name, he was aware that material about him and the laying of criminal charges against him had been published. Mr Joukhador's primary objective at the time however was to fight the criminal charges that had been laid against him and prove his innocence. His fear was that if he was found guilty, he would lose his right to practice as a solicitor, and that his life would be effectively destroyed. 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.

22    On about 14 August 2019, Mr Joukhador had a telephone conversation with a barrister and instructed him that he had been charged with a number of serious fraud offences relating to his conduct as a solicitor, but that the charges had since been dropped. He said that a lot of material had been published about him in the media concerning the charges, and sought advice as to whether to issue proceedings. The barrister had said that he was able to assist, and asked Mr Joukhador to send to him the material. After sending a letter of instructions to the barrister on 19 August 2019, Mr Joukhador heard nothing further.

23    Subsequently, he retained one of his current counsel and sent a letter of instructions on 10 September 2019.

24    At the time he gave instructions to both counsel, Mr Joukhador still was not aware of any publication by Network Ten the subject of the proceeding and, accordingly, the advice sought did not relate to any of the matters complained of.

25    On about 16 September 2019, Mr Joukhador conducted a Facebook search for any further material that had been published about him, and only then located the second matter complained of. The Facebook publication contained an embedded video of the television broadcast of 20 September 2017. Mr Joukhador said he was shocked and outraged at what he viewed. Mr Joukhador had been aware that other matters had been published about him that referred to the laying of the criminal charges, some of which did not name him or show his face; however, the Facebook publication not only named him but, he said, falsely stated that he was guilty of fraud and was at the centre of a compulsory third-party insurance premiums fraud syndicate involving “…$11 million worth of dodgy green slip claims and a long syndicate of middle eastern refugees staging accidents and faking injuries”.

26    Mr Joukhador said that he was extremely hurt and distressed after he became aware of the Network Ten publications to the potentially 160,000 followers of its Facebook page, as well as to the many viewers of the evening broadcast on the day of his arrest, 20 September 2017.

27    On 24 September 2019, Mr Joukhador received advice from counsel. On 25 September 2019, Mr Joukhador gave instructions to his current solicitors and asked them to act on his behalf. He instructed them to send a letter of demand to Network Ten on 26 September 2019.

28    In the absence of any response from Network Ten, Mr Joukhador instituted the proceeding on 3 October 2019 and sought an extension of the limitation period up to then under s 56A(2) of the Limitation Act.

29    The statement of claim alleged that the matters complained, the transcript of which is annexed to these reasons, each convey the following six imputations, namely that:

(a)    Mr Joukhador directed a giant CTP fraud syndicate which staged car crashes and faked injuries,

(b)    Mr Joukhador, a solicitor, breached his duties as a solicitor by directing a criminal group,

(c)    Mr Joukhador’s fraudulent activities have negatively impacted the entire community by driving up green slip prices,

(d)    Mr Joukhador is a despicable individual whose greed motivated him to engage in a scam that involved 16 people,

(e)    Mr Joukhador acted fraudulently by directing the making of $11 million worth of fake greenslip claims, and

(f)    Mr Joukhador had so conducted himself by engaging in fraud that he should be gaoled for years.

The primary judge’s reasons

30    Both parties were represented before her Honour by experienced, but different, senior counsel to those who appeared at the hearing of the application for leave to appeal before the Full Court.

31    Her Honour noted that Network Ten had submitted that Mr Joukhador, a solicitor, had not given evidence directly, but had chosen to provide evidence on information and belief, under s 75 of the Evidence Act in support of his application for an extension of time. She noted that Network Ten had not objected to Mr Svilans’ affidavit being read. She found that the affidavit was silent as to some matters relevant to the circumstances in which the application was made. The primary judge observed that, because the affidavit failed to address adequately, or at, all some relevant matters that Mr Joukhador readily could have dealt with, that affected the Court’s ability and willingness to draw factual inferences that he sought in relation to those matters.

32    Her Honour stated principles that apply to an application under s 56A of the Limitation Act. She noted that the legislative policy for the amendment that reduced the limitation period for a defamation action from six years to one year was to “encourage plaintiffs to seek to vindicate their reputations at the earliest possible opportunity”, citing the second reading speech for the Defamation Amendment Bill 2002 (NSW) and Barrett v TCN Channel Nine Pty Ltd (2017) 96 NSWLR 478 at 485 [21]–[22] per McColl JA, with whom Simpson and Payne JJA agreed. The primary judge also recorded that the authorities established that the power to extend the limitation period would apply in circumstances that were “relatively unusual”, “special” or “compelling”: Noonan v MacLennan [2010] 2 Qd R 537 at [15] per Keane JA; Barrett 96 NSWLR at 492–493 [70]–[71] per McColl JA and at 500 [110] per Payne JA.

33    Her Honour distinguished between a court accepting that, if the claimant was unaware of a defamatory publication, it may not be reasonable for him or her to bring defamation proceedings within the limitation period, and a situation where the absence of knowledge may not be sufficient because, objectively considered, there were “ample grounds to suspect the defendant may have published such material”.

34    The primary judge then summarised Mr Joukhador’s case as follows:

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.

35    The primary judge accepted, and it is common ground in the appeal, that Mr Joukhador was not aware of the matters complained of at any time until 16 September 2019. However, she observed that the mere fact that Mr Joukhador was not aware, until September 2019, of the matters complained of “says nothing as to whether he was on notice of the existence of such publications”. The primary judge emphasised that what Mr Svilans had described as Mr Joukhador’s mental state of depression was only a lay description of his emotional state at the time, and that there was no medical evidence or diagnosis to support it or that condition had impeded his ability to act.

36    Her Honour’s reasons analysed, in considerable detail, other cases dealing with applications for an extension of the one year limitation period to bring defamation proceedings in various Australian jurisdictions. However, she said, correctly, that it was important to focus on the circumstances of the present case and that, ultimately, the submissions and facts specific to it informed the assessment of the reasonableness, or not, of the steps taken by Mr Joukhador.

37    Network Ten had submitted to the primary judge that Mr Joukhador was wilfully blind as to the existence of the publications complained of. However, her Honour did not consider that it was necessary to make such a finding. Instead, she reasoned that, in light of the comments made by his friends and mother, Mr Joukhador had become aware immediately after his grant of bail, or, at the very least, “was on notice of” the possibility, that the source of those comments may have been publications in the media. Her Honour referred to Mr Svilans’ evidence that Mr Joukhador had found the second matter complained of, being the Facebook publication, but said that there was no evidence as to how or where the remaining items were found. That was erroneous to the extent that the Facebook publication revealed the embedded video of the television broadcast on 20 September 2017.

38    Her Honour concluded, as to the first basis of Mr Joukhador’s submissions:

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.

39    The primary judge considered the second and third bases of Mr Joukhador’s case together, again by detailed reference to other cases and their facts to distinguish them. Much of the argument before her Honour concerned whether there was an overlap between the criminal and defamation proceedings, and whether that made it objectively justifiable for Mr Joukhador to focus only on the criminal charges and the suspension of his practising certificate. Her Honour found that there was no evidence that any delay in instituting proceedings was because Mr Joukhador, a solicitor, had considered an assessment of the merits of any defamation action should only occur after conclusion of the criminal proceeding, or that he had taken this into account. She noted that the basis of his decision to put off dealing with any possible defamation claim was that his primary objective was to fight the criminal charges and the suspension of his practising certificate, and that he did not feel he could fight on two fronts.

40    Nonetheless, her Honour accepted that there was some overlap between the criminal charges and what Mr Joukhador later learnt were the matters complained of. She said that the impact of the overlap was a question of degree. Her Honour said that, given her conclusion in relation to the first basis of Mr Joukhadors submissions “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”. She noted Mr Joukhador had emphasised that he was relying on all of three bases, considered together, to support his application, and not on any single basis alone.

41    Her Honour then reasoned:

73    … 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 [v State of New South Wales [2012] NSWSC 1036] 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 [v Australian Broadcasting Corporation (2012) 290 ALR 348] 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.

(emphasis added)

Network Ten’s submissions

42    Network Ten argued that the primary judge was correct for the reasons that she gave. It argued that any objectively reasonable solicitor, in the position of Mr Joukhador, would have been aware that there were limitation periods applicable to different causes of action, and that he might lose any cause of action in defamation if he did not bring his proceedings within time. It argued that because of the statements that his friends and mother made to him after his release on bail, it would have been apparent to Mr Joukhador that the source of those statements was likely to have been a publication in the media, because they appeared, on their face, to be unrelated to the subject matter of the charges. Accordingly, Network Ten submitted, Mr Joukhador should have realised that such a publication raised issues distinct from those involved in the criminal proceedings, and that a reasonable person in his position, who was also a solicitor, would have taken steps to find out whether there was some publication in which the statements were made.

43    Network Ten’s written submissions asserted that, because Mr Joukhador had not given evidence himself, the evidence of his solicitor could not be described as undisputed because, first, he had deprived it of the opportunity to test that evidence and, secondly, there was no medical evidence to support Mr Joukhador’s description of his state of mind or health.

44    Network Ten argued that Mr Joukhador’s reliance on there being an overlap between the criminal proceedings and the defamation action was insupportable because, first, at all relevant times he was unaware of the publications complained of, and, secondly, they raised substantially different issues to those in the criminal proceeding. Network Ten pointed to the discrepancy between Mr Joukhador’s knowledge that his impugned conduct the subject of the charges involved about $22,000, and his friends’ and mother’s statements to him that asserted that he had made “millions”, was involved in “staging accidents” and that his actions had caused CTP premiums to be the larger than they should have been.

45    Network Ten submitted that, even if Mr Joukhador had been convicted of the charges, if it were to rely on the convictions in mitigation of damages, the effect would be relatively small given the greater severity of imputations (a), (c), (d) and (e) as compared to imputations (b) and (f), being the only two that could be justified by the convictions.

46    Network Ten contended that her Honour was correct to find that there was no evidence that Mr Joukhador’s mental state had impeded his ability to act, and that there was no medical evidence to support his description of his condition. Network Ten submitted that the primary judge was correct to conclude that Mr Joukhador knew of the potential existence of defamatory material yet chose not to make enquiries about its source and whether he would or should take proceedings in respect of them. It argued that, because he was a solicitor, it would have been a simple matter for him to have instructed counsel to search for the publications that could have provided the source of the comments that his friends and mother made. Network Ten submitted that Mr Joukhador also could have spoken with counsel, after he had heard those comments, to ascertain whether he should have taken action at that time, yet he had not done so. Network Ten argued that Mr Svilans’ affidavit said nothing about Mr Joukhador’s knowledge, or lack of action, in those respects. It contended that cases dealing with overlapping facts between criminal charges and the subject matter of publications complained of were distinguishable from the present case. Moreover, Network Ten contended that the graver imputations, being imputations (a), (c), (d) and (e), would not allow a defence of contextual truth based on any conviction on the charges. Network Ten submitted that Mr Joukhador did not act as an ordinary reasonable person in his position would have acted, and should have appreciated that the apparently defamatory statements that his friends and mother conveyed to him were unrelated to the subject matter of charges.

47    In argument on the appeal, Network Ten accepted that it was fair to infer that the basis of Mr Joukhador’s application for a judge alone criminal trial did not include any reference to the matters complained of, and that, consistently with what he told Mr Svilans, they had not come to the attention of his then lawyers.

Consideration

48    In our opinion, her Honour erred in failing to draw the inference that it was not reasonable in the circumstances for Mr Joukhador to have commenced an action in defamation within one year of the broadcast of 10 News First on 20 September 2017. Network Ten accepted that if that inference were drawn, there was no basis for the Court to refuse to exercise its discretion under s 56A(2) to extend the limitation period to 3 October 2019, when Mr Joukhador filed the originating application.

49    Noonan [2010] 2 Qd R 537 is the leading authority on the construction of s 56A of the Limitation Act, and its analogues in all the States and Territories except Western Australia and the Northern Territory (as Martin CJ identified in Rayney v The State of Western Australia [No 3] [2010] WASC 83 at [45]–[46]): see Barrett 96 NSWLR at 492–493 [69]–[72], 497–498 [95]–[97] per McColl JA, with whom Simpson and Payne JJA agreed on this issue (at 500 [108] and [110]); Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [34] per Fraser JA and see too at [87] per Applegarth J (who, although dissenting in the result, summarised the principles in Noonan [2010] 2 Qd R 537 that Mullins J, with whom Philip McMurdo JA and Douglas J agreed, approved in State of Queensland v O’Keefe [2016] QCA 135 at [21]. Payne JA, with whose additional reasoning Simpson JA agreed, also cited Applegarth J’s summary with approval in Barrett 96 NSWLR at 501 [114]–[115]).

50    Relevantly, the claimant has the burden of proof under s 56A(2) to satisfy the court that, objectively, it was not reasonable in the circumstances for him or her to have commenced proceedings for defamation within one year of the publication: Noonan [2010] 2 Qd R at 541–542 [15]. That factual issue requires the court to examine “the circumstances” as they appear, objectively, to it, not as the claimant may have believed them to be. And, the consideration of what is reasonable in this context requires the court to have regard to the legislative intention that ss 14B and 56A express; namely, that unless it is not reasonable for the claimant to have commenced a defamation action within the one year limitation period, he or she will not be able to maintain the cause of action: Noonan [2010] 2 Qd R at 543 [20], [22]–[23].

51    A consideration of “the circumstances” includes the objective situation of the claimant. The question of what is not reasonable in the circumstances requires the court to evaluate all of the objective circumstances as a whole, not piecemeal. In the end, that evaluation is a question of fact, but the assessment proceeds by reference to the claimant’s position and whether, objectively, it would not have been reasonable for him or her, in light of all of the circumstances, to commence the proceeding within one year of the publication complained of.

52    Where a person is facing a criminal charge, and the allegedly defamatory publication raises questions about his or her guilt or innocence that would be likely to cause any trial of, or interlocutory processes (such as discovery in the defamation claim) to be stayed, ordinarily, it will not be reasonable for him or her to commence civil proceedings of a kind that, realistically in the circumstances, could allow forensic examination of matters bearing on his or her guilt or innocence that could prejudice the claimant’s defence of the criminal proceeding: see eg. Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 at 58–60 [36]–[44] per French CJ, Hayne, Kiefel, Bell and Keane JJ, where an analogous situation arose; see too Gregg v Fairfax Media Publications Pty Ltd [2017] FCA 440 at [15]–[21] per Rares J.

53    The Limitation Act does not evince an intention that, at all costs, a claimant must commence a defamation action within one year of the publication. The interests of justice, usually, will not require that a claimant commence, or continue with, a defamation action that raises issues concurrent with a criminal prosecution against him or her while there is a real risk of prejudice to his or her defence of the unresolved criminal charge: cf. Zhao 255 CLR at 59–60 [39], [43]–[44].

54    Thus, importantly, s 14B of the Limitation Act evinces the legislative intention that a defamation action must be commenced within one year of the publication of the matter complained of, in the context of the co-existence of the power conferred on the Court to extend that period for up to three years if the statutory criteria in s 56A can be satisfied.

55    It is safe to infer that Parliament was aware that defamation actions arise out of the way in which the media and others in our society, report, or misreport, the laying of criminal charges. Cases such as Lewis v Daily Telegraph Ltd [1964] AC 234, Mirror Newspaper Ltd v Harrison (1982) 149 CLR 293 and Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 are well known instances of a report that contains additional material that may go beyond a fair report of the hearing, or circumstances in which the claimant was charged, so as to impute, or be capable of imputing, not merely that there was a reasonable suspicion that he or she was guilty, but that, in fact, he or she was guilty,

56    Equally, Parliament would have been aware that, because of possible misreporting of that nature, a claimant may have to use his or her resources and energy to defend the criminal charges before being in a position to make it reasonable that he or she bring a defamation proceeding. Obviously, pursuant to s 42(1) of the Defamation Act 2005 (NSW), a conviction on the charge will be available to a publisher as conclusive evidence that the claimant committed the offence in order to support a defence of justification or contextual truth under ss 25 and 26 of that Act. The real possibility of a conviction, at the time of publication (especially one contemporaneous with the institution of a criminal proceeding), will often mean that it would not be reasonable for a claimant to begin a defamation action that raises, or is likely to raise, a concurrent issue of his or her guilt or innocence, when that issue will be concluded, in both the criminal and civil proceedings, adversely against him or her if convicted.

57    Moreover, in selecting the criteria in s 56A(2), Parliament would have been conscious that any litigation imposes strain upon the litigants, especially individuals (as Gummow, Hayne, Crennan, Kiefel and Bell JJ recognised in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 214 [100]–[101]), and that such strain is, as a matter of common sense, likely to be the greater where an individual’s liberty is potentially at risk in a criminal proceeding. Likewise, Parliament would have been aware of the common law presumption of innocence for a person charged with a criminal offence, and of the compulsory processes ordinarily applicable in civil litigation, including requirements to give discovery, properly articulate one’s case and give evidence, that often warrant the staying of concurrent civil litigation in which a party or witness is facing a criminal charge that may involve a real risk of prejudice to his or her defence of the charge: see eg Zhao 225 CLR at 58–60 [36]–[44] per French CJ, Hayne, Kiefel, Bell and Keane JJ; Gregg [2017] FCA 440 [15]–[21] per Rares J.

58    The matters discussed above are examples of questions that can arise in considering an application for an extension of the limitation period under s 56A. And, while the onus of proof on the claimant under s 56A(2) will only be discharged in relatively unusual circumstances, as Keane JA observed in Noonan [2010] 2 Qd R at 542 [15] and [17], there is no exhaustive list of the kinds of cases that will fall within the statutory criterion that the section prescribes.

59    The critical legislative consideration in that section is that the Court must be “satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced” (emphasis added) a defamation action during the one year limitation period. Thus, the question of what is “not reasonable in the circumstances” requires the court to weigh together all of the relevant circumstances that cohered to bring about the objective fact that the claimant did not sue within one year of the publication. The criterion in s 56A(2) requires the Court to consider “the circumstances” by weighing all of the evidence and “the weight which is to be given to the united force of all the circumstances put together”: Belhaven and Stenton Peerage (1875) 1 App Cas 278 at 279 per Lord Cairns LC, whose reasoning Gibbs CJ and Mason J applied in Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 535, in a passage that Gummow, Hayne and Crennan JJ cited with approval in R v Hillier (2007) 228 CLR 618 at 638 [48].

60    As Lord Cairns LC advised the House of Lords, in a passage that reflects a similar direction still given to juries in assessing circumstantial evidence (Belhaven 1 App Cas at 279):

You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and, when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel.

61    Here, Mr Joukhador contended that the combined weight of each of the three factors which he identified established that it was not reasonable for him to have commenced the proceeding before he actually did. His case was that he was not aware of the matters complained of during the one year after the broadcast and, moreover, because of the significant emotional and physical reactions he experienced as a result of his arrest, the criminal charges themselves and their immediate and (while the charges remained on foot) enduring impact on his life and career, he was not in a position where he could begin fighting yet another significant battle.

62    Network Ten’s argument that, in effect, Mr Joukhador had deprived it of the opportunity to test the evidence of his circumstances by relying on Mr Svilans’ affidavit pursuant to s 75 of the Evidence Act was misconceived and a distraction. Network Ten could have made a request to Mr Joukhador that he call himself as a witness in accordance with s 166(c) and (e) of the Evidence Act. That is because, self-evidently, he was concerned in the production of the affidavit as it related to the previous representations in the information that he gave to Mr Svilans (s 167(a)). Had Network Ten made such a request and Mr Joukhador failed or refused to call himself without reasonable cause, her Honour could have exercised a power under s 169(1) to order him to be called as a witness or exclude any evidence the subject of the request. In Telstra Corp v Australis Media Holdings (unreported, NSWSC, McLelland CJ in Eq, 18 March 1997) BC9700773 at pp 2–3, McLelland CJ in Eq held that a party could make a request under ss 166(c), (d) and 167 on an interlocutory application that a person be called as a witness who was the source of hearsay evidence given pursuant to s 75. Had Network Ten wished to challenge the credibility of the information that Mr Joukhador gave to Mr Svilans, it could have done so by making such a request. It did not do so. Accordingly, his evidence should be considered as unchallenged, albeit subject to an assessment of its weight.

63    We were satisfied that, taking the evidence as a whole (even allowing for the fact that it may not have been expressed as clearly or precisely as it could have been), the impact of the charges, their sequel, and the personal consequences for Mr Joukhador, together with his statement that he was not capable of fighting on any other front until those matters were resolved, provided a sufficient direct and inferential explanation for his decision not to take any action in defamation about material that may have been published about him. It was not reasonable, in those circumstances, that he take on a new case until he had dealt with the criminal charges and the suspension of his practising certificate. To the extent that her Honour found that these factors did not amount to a sufficient impediment to his commencing a defamation action earlier, we consider that she should have drawn the inference that they did.

64    Mr Joukhador’s evidence disclosed that the remarks made by his friends and mother when they mentioned the institution of the criminal charges also indicated that there may have been some publication in connection with those charges that raised matters apparently extraneous to them, namely the staging of accidents, making millions and paying more for CTP insurance. In this context, there was a degree of overlap between any such publication and the charges. That is because of the apparent link that those who spoke to him drew or conveyed between the extraneous matters and the institution and content of the charges that arose apparently from the one source coupled with his understanding that there had been publicity in the media about the charge.

65    In our opinion, her Honour erred in finding that there was no evidence that the question of overlap between the subject matter of the criminal proceeding and any potential defamation action formed any part of Mr Joukhador’s reasons for not taking proceedings against Network Ten. Mr Joukhador was overwhelmed by the weight of the criminal charges and other circumstances confronting him. Of course, he did not know of the broadcast or other matters complained of; however, as the evidence made pellucid, he knew that the conversations with his friends and mother, that the primary judge said had put him on notice of the possibility of such a publication, were made in direct connection with his being charged. And, because of that direct connection, litigating about the subject matter of any such publication necessarily would involve an overlap between the criminal and civil proceedings and, what Mr Joukhador considered with every justification, would then be a fight on another front. However, as a matter of common sense, on the evidence set out at [21] above, it is safe to infer that Mr Joukhador was so concentrated on, and overwhelmed by, the criminal charges and other immediate crises that he was facing that he decided that, until those issues in his life resolved, he could, and would, not look at or investigate the possibility of taking a proceeding in defamation in respect of any publication that might have been connected to the charges.

66    Her Honour concluded, on the basis of Network Ten’s correct concession, that, had Mr Joukhador found the matters complained of and brought a proceeding on them within one year of the broadcast, it was likely that the action would have been stayed because of the objective overlap of subject matter between the criminal and civil proceedings. It is difficult to see how the immediate institution of a defamation action that was likely, but not certain, to be stayed would serve the legislative purpose of requiring a claimant to bring such an action timeously in light of Parliament’s awareness that, in situations such as that which faced Mr Joukhador, it would be expected to be stayed so that the criminal matter would take precedence.

67    In all the circumstances, it was not reasonable for Mr Joukhador to have commenced the proceeding against Network Ten earlier than he did. He was facing a serious criminal prosecution. His practicing certificate was suspended until, at least, the prosecution came to an end. That had an immediate impact on him professionally and financially. His firm’s clientele shrank very significantly. He was already in the throes of separation from his wife, and the prosecution had put their reconciliation in doubt. He was experiencing suicidal thoughts, suffering from reflux and vomiting on most mornings for about 18 months, all being objective matters for which medical evidence was neither necessary, nor in all probability would add very much. Her Honour admitted, as lay evidence of his condition (see s 66A of the Evidence Act), Mr Joukhador’s description of himself as being depressed and not feeling capable of undertaking any other litigation or dealing with fighting defamation proceedings if it transpired that he had a cause of action.

68    In our opinion, it was not reasonable in those circumstances for Mr Joukhador to embark on the investigation and pursuit of a possible action in defamation that his emotional state could not cope with or support. Moreover, to the extent that there was an overlap between the statements made by his friends and mother and the charges he was facing, that would make it highly likely that he would be exposed to further, significant, strain, with which he felt he could not cope, if he embarked on a defamation action while the criminal charges were unresolved. It was objectively justifiable for Mr Joukhador to act as he did, namely, to focus his efforts on dealing with the criminal charges and recovering his practising certificate, and to put to one side the investigation and pursuit of any defamation action arising out of reporting about the criminal charges until after those matters, that profoundly affected his liberty, peace of mind and the practice of his profession, had resolved: cf. O’Keefe [2016] QCA 135 at [33]–[34] per Mullins J, with whom Philip McMurdo JA and Douglas J agreed.

Conclusion

69    The combined effect of ss 14B and 56A of the Limitation Act does not require a person to commence a defamation action within one year of publication at all costs. It would not have been reasonable for a person in Mr Joukhador’s position to bring defamation proceedings before he did so.

Associate:

Dated:    16 March 2021

ANNEXURE A

Transcript – 10 News First Sydney

20 September 2017