Federal Court of Australia

Landrey v Nine Network Australia Pty Ltd [2024] FCAFC 76

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 1 and 2 of the orders made in proceeding NSD809/2022 on 27 January 2023 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 21 September 2022.

(b)    The respondents pay the applicant’s costs of the interlocutory application for an extension of time.

3.    The respondents pay the appellant’s costs of the application for leave to appeal, and of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

1    The appellant, Mr Landrey, commenced a proceeding in the Court on 21 September 2022 seeking damages, an injunction, and other relief in relation to a television broadcast initially published on 15 October 2019, and which was also published thereafter online.

2    The subject matter of the broadcast was a segment on A Current Affair titled, “Where’s our money, Geoff?”. The proceeding was commenced outside the one-year limitation period for causes of action in defamation provided for by s 14B of the Limitation Act 1969 (NSW). In the originating application, the appellant sought an extension of the limitation period pursuant to s 56A of the Limitation Act, and an order that the proceeding be stayed until further order pending the conclusion of criminal proceedings against the appellant. The appellant sought an extension of the limitation period on the ground that it was not reasonable in the circumstances for him to have commenced the proceeding within one year of publication.

3    The one-year limitation period in relation to the initial publication of the broadcast expired on 15 October 2020: see Interpretation Act 1987 (NSW) s 36(1). At the time of the initial publication, the single publication rule for the purposes of limitation periods brought about by s 14C of the Limitation Act, which commenced on 1 July 2021, had not been enacted: see Defamation Amendment Act 2020 (NSW), Sch 2, cl [2]. The primary judge noted that it was common ground that the limitation period for any cause of action based on the downloads of the online publication expired no later than 30 June 2022: see Landrey v Nine Network Australia Pty Ltd [2023] FCA 27 (J) at [3], and the transitional provisions in Sch 2, cl [5] of the 2020 amending Act.

4    The application for an extension of the limitation period was made on grounds including that, throughout the period following the first publication of the broadcast, the appellant faced the prospect of criminal proceedings arising out of some transactions that were the subject matter of the publication. The primary judge considered the evidence and dismissed the application, holding that the appellant’s explanation for his failure to commence proceedings within one year of publication was objectively insufficient. As a consequence, his Honour dismissed the proceeding.

5    The applicable provision is s 56A of the Limitation Act in the form it took before the amendments effected by the 2020 amending Act: see Limitation Act, Sch 5, cl 11(4). It is settled that under that provision, and the corresponding provisions in the legislation of the other States and Territories, there are two steps. The first step is that if an applicant satisfies the court that it was not reasonable in the circumstances to have commenced the proceeding within one year of publication, then the court must extend the limitation period. There is no discretion involved in the first step: what is involved is an evaluative conclusion. The second step is that if the first step is satisfied there is then a discretion as to the length of the period, not exceeding three years from publication, by which the limitation period should be extended. In the present case, only the first step is in issue, that is, whether it was not reasonable for the appellant to have commenced the proceeding within one year. The discretionary element was not put in issue by the respondents.

6    The orders of the primary judge were interlocutory. At the outset of the hearing of the appeal we granted leave to appeal, being satisfied that the primary judge’s decision was attended by sufficient doubt as to warrant its reconsideration by the Full Court, and that substantial injustice would result if leave to appeal were refused. Counsel for the respondents did not oppose leave being given.

The form of the evidence

7    The appellant’s application to the primary judge was supported by an affidavit of his solicitor, John Michael Whitfield, sworn 11 November 2022. That affidavit produced a number of documents, such as communications with police by and on behalf of the appellant, court attendance notices, and a Crown case statement. Mr Whitfield deposed to many facts on the basis of information given to him by the appellant. There were other facts deposed to by Mr Whitfield that were evidently within his knowledge. Before the primary judge, no objection was taken to the admissibility of any aspect of Mr Whitfield’s affidavit, and no cross-examination of Mr Whitfield took place. As the affidavit contained hearsay representations of the appellant, it was open to the respondents to request that he give evidence: see Evidence Act 1995 (Cth) ss 166(f), 169; Joukhador v Network Ten Pty Ltd [2021] FCAFC 37; 283 FCR 1 (Joukhador) at [62]–[63] (Rares, Wigney and Bromwich JJ). No such request was made.

8    The respondents relied on an affidavit of their solicitor, Marlia Ruth Saunders, affirmed 25 November 2022. That affidavit produced a number of documents, including court documents in proceedings in the Supreme Court of Queensland. The subject matter of these documents was central to the primary judge’s dismissal of the application.

Background facts

9    Whether the broadcast was defamatory of the appellant, and if so in what meanings, is a question for a trial. What can be said is that the appellant was named in the broadcast, which referred to investments in property which were not genuine, investors being fleeced of their savings, the falsification of documents, threats by the appellant, companies that were “phoenixed”, and police investigations. The imputations alleged by the appellant pick up these themes.

10    It is apparent that the broadcast and the criminal proceedings that were the subject of the evidence related to the appellant’s involvement in transactions relating to investments in land in Edmonton, which is a suburb of Cairns in Queensland. The transactions included loans, transfers of land, and mortgages. As we have mentioned, the broadcast referred to the falsification of documents. The falsification of documents was also a principal subject of the offences alleged against the appellant.

11    The primary judge summarised the background facts at J[19]–[34] in terms that were not disputed. The following account draws upon the primary judge’s summary and supplements it with some additional facts and observations.

12    In August 2018, the appellant was made aware of the risk of criminal charges when his former business partner, a Mr Michael McCarthy, showed him some emails sent by a Mr George Frederic Barnes that referred to an investigation concerning the appellant by the New South Wales Police. Mr Barnes was the director of a company, Naturelink Environmental Services Pty Ltd (Naturelink).

13    The appellant was at relevant times the sole director of a company, Combined Property Holdings Pty Ltd (Combined Property Holdings). On 7 December 2018, Combined Property Holdings commenced a proceeding (the Galea proceeding) in the Supreme Court of Queensland against its former solicitors. The defendants included a Mr Galea, who was named in the broadcast. The subject of the proceeding was a complex array of alleged transactions concerning land, loans, and securities over the land involving Combined Property Holdings, Naturelink, and another company, Stony Creek Pty Ltd (Stony Creek). One of the allegations was that the defendants had been negligent in failing to advise Combined Property Holdings to register some mortgages. The period of retainer of the defendants by Combined Property Holdings was alleged to be between 12 December 2012 and 29 July 2013. It can be inferred that the appellant gave instructions on behalf of Combined Property Holdings to commence the Galea proceeding and that, at that time, he was aware of information that he was being investigated by the police in connection with certain transactions that were the subject of the Galea proceeding.

14    On 12 August 2019, Detective Senior Constable Shawn Schussler of the Financial Crimes Squad of the New South Wales Police contacted the appellant by email. DSC Schussler informed the appellant of complaints alleging that he had committed fraud. The allegations of fraud were said to relate to the uttering of backdated Queensland mortgages and a false deed of loan valued at $1.5 million. DSC Schussler invited the appellant to partake in an electronically recorded interview under caution in relation to the allegations, and urged him to seek legal advice.

15    On 19 August 2019, the appellant responded by email to DSC Schussler. The entire response is not in the appeal book, but it is clear enough that the appellant gave his account of events, including by providing some details as to the nature of meetings, transfers of land, mortgages and agreements pertaining to the allegations: see J[23]. The appellant denied the allegations, claiming that they were defamatory and should be withdrawn. The appellant did not take up the opportunity to participate in a recorded interview.

16    On 2 September 2019, Combined Property Holdings filed a third amended statement of claim in the Galea proceeding in Queensland. The amendments did not alter the substance of the claims to which we referred at [13] above.

17    On 15 October 2019, the broadcast was initially published. Those interviewed during the program included Mr Barnes, Mr Galea, and a police officer, Linda Howlett. In relation to the broadcast, Mr Whitfield stated at [16] of his affidavit –

As outlined above, at the time the Program aired, the Applicant was on notice that significant criminal charges were being considered by NSW Police against him. This, in my view, would have been particularly apparent to him by the airing of allegations by Detective Inspector Howlett who appeared on the Program, as well as the other allegations made by Galea and Barnes in the Program, which overlapped with the email sent by DC Schussler on 12 August 2018 (paragraph [7] above).

18    In early December 2019, Combined Property Holdings was served with papers in another proceeding which was commenced in the Supreme Court of Queensland by Barnes Super Pty Ltd, Stony Creek, and the liquidator of Stony Creek (the Barnes proceeding). Combined Property Holdings and others were named as defendants. Although the papers were served in December 2019, the Barnes proceeding had been commenced about a year earlier in December 2018. The subject matter of the Barnes proceeding involved claims by the plaintiffs for declaratory relief concerning the validity of transfers of real property between various entities with which the appellant had direct or indirect connexions on the ground that the transfers were made with the intent to defraud the creditors of Stony Creek. The appellant was alleged to have been the director of Stony Creek at the relevant times.

19    On 18 December 2019, DSC Schussler emailed the appellant again. DSC Schussler stated that he was concluding his investigation and that he had a number of questions for the appellant, which he set out.

20    On 5 January 2020, Mr Whitfield sent a letter to the Nine Network in Sydney stating that the appellant was intending to sue in relation to the content of the broadcast. In relation to this letter Mr Whitfield stated at [19] of his affidavit –

At the time I sent that letter, the Applicant remained the subject of allegations being pursued by the Police. Following this email, I and my client discussed the viability of bringing the prospective Defamation Action. I was instructed by the Applicant that before bringing any defamation proceedings he believed that he had to deal with the criminal charges given the likely overlap of subject matter, witnesses and evidence. In that respect, I repeat my comments at paragraph 16 above.

21    The terms of the letter that Mr Whitfield sent to the Nine Network were consistent with this evidence. The letter did not evince any immediate intention to bring proceedings, and did not set out any imputations, or make any demand for substantive relief. Rather, the letter sought only that the original tape of the program not be destroyed, and that all source documents be retained.

22    On 21 January 2020, Mr Whitfield replied on behalf of the appellant to DSC Schussler’s email of 18 December 2019. Amongst other things, Mr Whitfield stated that –

As you indicate it is not necessary for him to reply and he will not further respond other than to say using your categories as below.

23    What followed were brief, pithy responses with the email taking up one A4 page. Mr Whitfield concluded the email by stating that the persons supplying information to DSC Schussler upon which the allegations were based were misinterpreting the information, or knew the information to be false, in an effort to mislead him.

24    On 24 January 2020, in the Galea proceeding, Combined Property Holdings filed a reply to a defence dated 23 September 2019 and some further and better particulars of its statement of claim.

25    On 10 April 2020, the appellant was served with a court attendance notice. A court attendance notice (or, “CAN”) is a process by which committal proceedings in New South Wales may be commenced: see Criminal Procedure Act 1986 (NSW) s 47. The notice served on the appellant in April 2020 was not produced in evidence, but Mr Whitfield stated at [21] of his affidavit –

In my view at the time, the CAN raised matters which overlapped with the potentially defamatory statements made in the Program. This CAN was withdrawn.

26    On 21 July 2020, the appellant was served with a further court attendance notice. The further notice was in evidence. By this notice the appellant was required to attend the Parramatta Local Court on 21 October 2020. The details of the offences set out in the notice were 19 counts of using a false document with the intention of obtaining property, which is a serious indictable offence under s 254(b)(i) of the Crimes Act 1900 (NSW), and one count of dishonestly obtaining a financial advantage by deception, which constitutes the serious indictable offence of fraud under s 192E(1)(b). The court attendance notice was accompanied by a facts sheet, which alleged various transactions involving, inter alios, the appellant, his former wife, Mr Galea, Mr Barnes, Mr Whitfield, Combined Property Holdings, Naturelink, and Stony Creek. The facts sheet alleged the backdating by the appellant of mortgages, deeds of loan, and a trust deed, and the making by the appellant of a fraudulent representation. At around the time of the service of the further court attendance notice, the appellant was also served with an informal brief of evidence by the police.

27    On 15 October 2020, the one-year limitation period in relation to the initial publication of the broadcast expired. Pausing here, at this point in time the appellant was in receipt of the July 2020 court attendance notice that required his attendance at court six days later, on 21 October 2020. Whether a hearing proceeded on that day was not the subject of evidence. As we recount below, in May 2021 the appellant was discharged in relation to the charges the subject of the July 2020 court attendance notice.

28    On 17 November 2020, the appellant made what was described by Mr Whitfield in his affidavit as a detailed submission to the Law Enforcement Conduct Commission complaining about the conduct of the police during their investigation into allegations against him, the handling of the charges subsequently laid, and the relationship between the police and Mr Barnes.

29    On or about 18 December 2020, an additional brief of evidence was served on the appellant.

30    On 13 May 2021, the appellant was discharged by order of the Local Court in relation to the charges the subject of the July 2020 court attendance notice. Mr Whitfield stated that he had sought a discharge under s 68(2)(a) of the Criminal Procedure Act on behalf of the appellant on the ground that the prosecution had failed to file and serve a charge certificate within six months. Mr Whitfield deposed to his contemporaneous belief that notwithstanding the discharge of the appellant, the charges were not going to go away, and that the police were likely to re-file charges against him. That belief turned out to be well founded, for that is what occurred.

31    On 13 October 2021, a new court attendance notice was served on the appellant, although this notice was not in evidence. In any event, on 21 October 2021, an expanded version of that notice was served on the appellant. This notice required the appellant to attend the Penrith Local Court on 23 November 2021. The notice charged the appellant with three counts of dishonestly obtaining a financial advantage by deception, and 22 counts of using a false document to obtain a financial advantage. All alleged offences were serious indictable offences under the Crimes Act. The notice was accompanied by a facts sheet which grouped the 25 charges into three categories of allegations: first, allegations that the appellant knowingly used false mortgage documents to induce the liquidators of Stony Creek to determine that transfers of land between Stony Creek and Combined Property Holdings were valid; secondly, allegations that the appellant defrauded the Australian Taxation Office using false mortgage documents; and thirdly, allegations that the appellant made a false representation about the existence of a valid deed of loan in order to induce a payment of money to Combined Property Holdings under terms of settlement.

32    The primary judge stated that it appeared from the public record that in November 2021 the prosecutor filed a charge certificate identifying the offences and certifying that the evidence available to the prosecutor could establish each element of the offences: see Landrey v Director of Public Prosecutions (NSW) [2022] NSWCA 211; 110 NSWLR 127 at [14]. The prosecutor later filed a document known as a Crown Case Statement. Over the following two months, the Local Court proceedings were adjourned, and the appellant and the prosecutor exchanged correspondence with respect to particulars of the charges and other matters.

33    On 4 February 2022, the appellant made a complaint to the Australian Taxation Office about the evidence of a Mr Nathan Northey, who gave a statement that was included in the police brief of evidence served on him in relation to the charges. Mr Whitfield stated in his affidavit that he was provided with, and reviewed, final copies of this complaint, and the complaint to the Law Enforcement Conduct Commission of 17 November 2020 to which we referred at [28] above. The primary judge stated at J[31] that without explanation the complaints were not put into evidence. We observe that because the complaints were referred to in Mr Whitfield’s affidavit, they were amenable to a notice to produce for inspection under r 20.31 of the Federal Court Rules 2011 (Cth), and that it was therefore open to the respondents to inspect the complaints and tender them if they supported the respondents’ case. In any event, the primary judge inferred that it was more likely than not that the complaints were detailed documents, settled by Mr Whitfield, reflecting the appellant’s instructions and, presumably to some extent, an account of the relevant facts.

34    On 26 June 2022, the appellant commenced a proceeding in the Common Law Division of the Supreme Court of New South Wales by way of summons, challenging the constitutional validity of the committal regime in the Criminal Procedure Act.

35    The next relevant date is 30 June 2022. As we mentioned towards the outset, it was common ground before the primary judge that the limitation period in respect of any online publication expired no later than 30 June 2022. Pausing again, at this time charges of serious indictable offences remained on foot, the committal process had not concluded, and a proceeding brought by the appellant that challenged the constitutional validity of the committal process was on foot.

36    On 5 August 2022, the proceeding in the Common Law Division of the Supreme Court of New South Wales was removed to the Court of Appeal, where the summons was dismissed on 21 October 2022. On 11 November 2022, the appellant filed an application seeking special leave to appeal that decision to the High Court. The primary judge stated that the criminal prosecution had been adjourned pending the outcome of the special leave application.

The Queensland civil proceedings

37    There were two civil proceedings of relevance on foot in the Supreme Court of Queensland: (1) the Galea proceeding; and (2) the Barnes proceeding.

38    The Galea proceeding was commenced in 2018, prior to the publication of the broadcast. The appellant was not a party to the Galea proceeding, but he was the sole director of Combined Property Holdings, which was the plaintiff. On 7 February 2020, the defendants in the Galea proceeding filed an application for security for costs. The plaintiff, Combined Property Holdings, opposed the application and made a cross application for leave to file a fourth amended statement of claim. The appellant made two affidavits in relation to the interlocutory applications: an affidavit dated 29 May 2020; and a second affidavit dated 22 October 2020. To place these affidavits in context, both affidavits were made after the appellant had been served with court attendance notices in relation to the criminal charges. The applications were heard on 22 October 2020, and on 6 November 2020, Henry J made an order for security for costs, and in the event that security was provided, gave leave to Combined Property Holdings to amend its third amended statement of claim: Combined Property Holdings Pty Ltd v Galea [2020] QSC 338.

39    The two affidavits of the appellant filed by the plaintiff in the Galea proceeding appear to have been intended, in part, to set out a factual foundation for the allegations in the plaintiff’s third amended statement of claim and the proposed fourth amended statement of claim, a draft of which was annexed to the first affidavit. We will refer to those affidavits later in these reasons.

40    As to the Barnes proceeding, Combined Property Holdings was the first defendant. In evidence before the primary judge was a notice of intention to defend and a defence filed 9 January 2020, both signed by the appellant as sole director on behalf of the company.

The appellant’s reasons for not commencing the defamation proceeding within one year

41    As we noted at [20] above, Mr Whitfield deposed at [19] of his affidavit that he was instructed by the appellant that before bringing any defamation proceedings he believed that he had to deal with the criminal charges given the likely overlap of subject matter, witnesses, and evidence. This evidence was unchallenged by any cross-examination. The primary judge inferred at J[49] that advice was given to the appellant that the criminal proceedings should be resolved prior to any existing or contemplated civil proceeding, and this finding is not challenged on appeal. His Honour went further to state that this would have been the advice of any competent criminal lawyer.

42    Mr Whitfield later stated in his affidavit –

53.    The Applicant has exercised his right to silence in relation to all criminal charges brought against him. He has entered a plea of ‘not guilty’ in those proceedings.

54.    I have been involved in preparing the above applications over a period of almost three years. This has involved a great deal of time on my part and on the part of the Applicant who has been providing instructions to me and reviewing documents and evidence in relation to the criminal charges and the Constitutional Application.

55.    I am informed by the Applicant that this process of seeking a review of the charges brought against him and the way he was pursued by the Police was his top priority and was consuming a great deal of this time and energy.

43    There were other circumstances relied on by the appellant that were the subject of Mr Whitfield’s affidavit. In summary, they were –

(a)    Mr Whitfield had observed that the proceedings relating to the criminal charges had dominated the appellant’s life since mid-2019;

(b)    the appellant had to deal with the two proceedings in the Queensland Supreme Court, which Mr Whitfield identified, and which Mr Whitfield stated had placed an additional strain upon the appellant, based upon his many interactions with the appellant and his familiarity with the claims and discussions with the appellant;

(c)    Mr Whitfield stated that in his view as a solicitor and based on his familiarity with the various proceedings and his client, it would have been difficult, if not impossible, for him to have commenced yet further proceedings alleging defamation, particularly against a sophisticated and well-resourced respondent such as Nine Network Australia Pty Ltd;

(d)    the appellant had suffered a strain on his health, which resulted in an increase in the amount of prescription medications that he was taking, and a number of afflictions, and referrals to specialists that were listed in a report from a general practitioner that Mr Whitfield annexed to his affidavit;

(e)    Mr Whitfield had observed a deterioration in the appellant’s health since 2019, including changes in his physical appearance, looking markedly older, and having reduced mobility; and

(f)    in March 2021, the appellant was diagnosed with diabetes following a period of more than 12 months where he felt tired and lethargic.

The primary judge’s reasons

44    The primary judge accepted that the criminal allegations and the defamatory matter involved a common substratum of facts. His Honour identified as an issue the existence of any rational connection between the appellant deferring commencement of the defamation proceeding and protecting his forensic position in relation to his criminal defence. His Honour considered that potential prejudice was to be informed by the extent to which the appellant had chosen to go into evidence or to make other non-privileged, voluntary representations as to this common factual substratum, notwithstanding the pendency of criminal charges.

45    The primary judge held that the appellant had been “anything but shtum” since learning of the allegations made against him. First, his Honour referred to the active steps taken by the appellant in the two Queensland proceedings, and in particular the two affidavits made by the appellant in the interlocutory applications in the Galea proceeding in May and October 2020 at a time when criminal proceedings were on foot. Secondly, his Honour held that the appellant had not maintained his right to silence as that course would be generally understood, because he had cooperated with the investigation to a certain extent by providing answers to police enquiries, referring to the appellant’s email to DSC Schussler of 19 August 2019 and Mr Whitfield’s email on the appellant’s behalf of 21 January 2020. Thirdly, the primary judge referred to the complaints made by the appellant to the Law Enforcement Conduct Commission and the Australian Taxation Office, which his Honour held were settled by Mr Whitfield and were likely to be detailed.

46    His Honour held at J[48] that although the evidence was unchallenged by cross-examination, the evidence that the appellant’s decision not to proceed with a defamation proceeding was made, in part, because it would serve to undermine a decision made by the appellant to exercise his “right to silence” was “contrary to compelling inferences” from the available facts. Nonetheless, his Honour at J[49] also accepted that advice was given to the appellant that the criminal proceeding should be resolved prior to any existing or contemplated civil proceeding, and that this would have been the advice of any competent criminal lawyer. His Honour also accepted that there was a difference between engaging in extant civil proceedings and actively taking steps to commence proceedings. However, his Honour had regard to the extent of the appellant’s activities during the relevant period on multiple fronts. His Honour held that in circumstances where the appellant had no difficulty in engaging in other civil proceedings, it was unclear why the appellant did not commence the defamation proceeding and then seek a stay pending the determination of the criminal proceedings, as he had now done.

47    As to the appellant’s claimed health issues, the primary judge was not impressed by the evidence in support, stating that it had a number of shortcomings that his Honour identified. In particular, it did not appear that the general practitioner who wrote the letter that was annexed to Mr Whitfield’s affidavit had been treating the appellant during the relevant period. His Honour considered that the observations of Mr Whitfield as to the deterioration of the appellant’s health were of limited probative value. Overall, his Honour did not consider that the claimed health afflictions were dire, and was not satisfied that the evidence explained how the afflictions actually affected the appellant such that it was not objectively reasonable for him to commence a defamation proceeding. One matter that struck his Honour was why the appellant was sufficiently unburdened by ill health and distractions to commence proceedings and make an application when he did, and yet was incapable of commencing proceedings and seeking a stay during the one-year window following the publications.

48    Overall, the primary judge held that the appellant’s explanation for not commencing defamation proceedings was “objectively insufficient”, particularly where there was no concern about delving into detail about the facts which were the subject matter of the criminal proceedings in the Galea and Barnes proceedings. His Honour stated that the additional time and effort involved in commencing a defamation proceeding, and then presumably seeking a stay, would have been, at most, incremental given the steps he was taking in the other proceedings and, in any event, would have been less intrusive and imposing than the steps the appellant had taken in the Galea proceeding.

49    In conclusion, the primary judge stated that his decision was fact-dependent and should not be taken as in any way disputing or undermining the notion that prior to the three-year long-stop period, it will ordinarily not be reasonable to commence a defamation case if that realistically could allow forensic examination of matters bearing upon guilt or innocence in extant or reasonably anticipated criminal proceedings.

Grounds of appeal

50    There is one ground of appeal, accompanied by particulars, which challenges the primary judge’s conclusion that it was not reasonable to commence a proceeding within the one-year limitation period –

1.    The primary judge erred in failing to conclude that it was not reasonable for the Applicant to commence the proceedings within the limitation period.

Particulars

a.    The primary judge misapprehended the nature of, and failed to give appropriate weight to, an accused’s right to silence (including the privilege against self-incrimination) in criminal proceedings.

b.    The primary judge failed to consider, and/or give appropriate weight to, the potential prejudice that the Applicant may have suffered in his defence of the criminal proceedings had he commenced defamation proceedings within the limitation period.

c.    The primary judge gave excessive weight to the prospect of the Applicant commencing proceedings in time but procuring a stay.

d.    The primary judge failed to give appropriate weight to the Applicant’s health.

e.    The primary judge failed to give appropriate weight to the accused’s focus on his criminal proceedings and the extant civil proceedings in which he was involved.

Summary of the parties’ submissions

Submissions on behalf of the appellant

51    Counsel for the appellant submitted that there were criminal allegations that were extant for the whole period of limitation. Counsel submitted that the primary judge’s critical findings were at J[49] to which we referred at [46] above. Counsel submitted that the counterfactual that the primary judge had in mind was the commencement of a defamation proceeding, and then the seeking of a stay. It was submitted that an underlying premise of that course was a recognition that the appellant would suffer prejudice of the relevant kind in the defence of the criminal proceedings. It was submitted that it would be a very extreme case where it would be appropriate to consider ordering a stay of a defamation proceeding on the ground that there were criminal proceedings in prospect, and at the same time it would be reasonable for the applicant to commence a proceeding.

52    Counsel for the appellant referred to the Full Court’s decision in Joukhador at [50]–[53], [57] and [63]–[68], to which it will be necessary to return. By reference to Joukhador at [53], counsel submitted that the fact that the appellant could have started proceedings and sought a stay was not consistent with the legislative policy which underpins the extension of limitation period provision, so the mere fact that a proceeding might have been commenced, and a stay sought, is not a reason not to extend the limitation period.

53    Counsel also relied on the significance of any conviction of the appellant on the criminal charges as informing the question whether or not it was reasonable to commence a defamation proceeding within one year. Counsel alluded to s 42 of the Defamation Act 2005 (NSW), under which proof of a conviction of an offence is conclusive evidence that a person committed the offence, citing Lehrmann v Network Ten Pty Ltd (Limitation Extension) [2023] FCA 385 (Lehrmann) at [143] (Lee J), itself citing Houda v New South Wales [2012] NSWSC 1036 at [29] (McCallum J).

54    Counsel for the appellant sought to draw a distinction between the affidavits that the appellant had made for the purposes of the interlocutory applications in the Galea proceeding and what would be in prospect should a defamation proceeding commence and not be stayed, which might involve a full-blown investigation of the facts giving rise to the criminal matter, and the potential for cross-examination of the appellant at trial. Counsel also relied on what Lee J said in relation to a stay in Lehrmann at [135], [138], and [140]–[142], submitting that while a stay was an available course, it was not without its difficulties, because ultimately it would depend upon the Court exercising its discretion to favour the granting of a stay. Just as in Lehrmann at [140], the appellant would be taking a step into the unknown.

55    Counsel for the appellant submitted that there was a non-fanciful risk of prejudicing the defence of the criminal proceedings if defamation proceedings which went to the heart of the facts underlying the charges were commenced, citing Lehrmann at [142]. It was submitted that it was unclear why the reasoning in Lehrmann would not apply mutatis mutandis to the appellant’s circumstances. Counsel submitted that the matters which the Full Court took into account in Joukhador and which Lee J identified in Lehrmann were significant, and are matters that this Court should take into account in evaluating the appellant’s case.

56    Counsel for the appellant also addressed the primary judge’s reasons for rejecting the application. It was submitted that the language of the appellant’s explanation being “objectively insufficient” was inapposite. It was submitted that this was not an application for relief against the consequences of some default or extension of time under the rules of procedure. The question was an objective question, namely whether it was not reasonable to have commenced a proceeding within the one-year period of limitation.

57    To the extent that the primary judge relied on the Barnes proceeding, counsel pointed out that the appellant was not a party to that proceeding himself but had conducted a defence on behalf of Combined Property Holdings. Counsel also submitted that there was not the same overlap of issues between the criminal proceedings and the Barnes proceeding, submitting also that the primary judge made no findings about the degree of overlap.

58    In relation to the affidavits made by the appellant in the Galea proceeding, counsel submitted that there was no consideration by the primary judge of the actual extent of overlap of issues with the criminal proceedings, and no consideration of the actual peril in which the appellant placed himself. Counsel pointed out that the applications in the Galea proceeding were interlocutory, where ordinarily there would be no cross-examination, and there was no material to suggest that the appellant was in fact cross-examined. It was submitted that the appellant had not committed to giving evidence, and in the Galea proceeding could have claimed privilege against self-incrimination, which was hardly a practical course open to the appellant as an applicant in a defamation proceeding.

59    Counsel for the appellant submitted that despite the voluntary statements made by the appellant, he had not lost his right not to be compelled to answer questions, whether in court, or under some other process. It was submitted that the appellant’s responses to email communications from investigating police were not of the same order as submitting to a recorded interview, which the appellant had been given the opportunity to participate in, but which he did not take up. Counsel compared the appellant’s situation with that in Lehrmann, where the applicant had submitted to a formal police interview.

60    It was submitted that the primary judge had made a factual error at J[64] in stating that the appellant had acted as the solicitor for both Combined Property Holdings and Naturelink. It was submitted that this specific error undermined his Honour’s conclusion that the additional time and effort involved in commencing defamation proceedings, and then presumably seeking a stay, would have been incremental.

61    In relation to the primary judge’s findings concerning the complaints to the Law Enforcement Conduct Commission and the Australian Taxation Office, counsel for the appellant submitted that his Honour was in error in finding that the complaints presumably contained an account of the relevant facts. Counsel submitted that there was nothing inherent in the complaints that would necessitate an exposition of the facts. Counsel accepted that, because the complaints had not been tendered, an inference was open that the complaints did not assist the appellant, but submitted that this was as far as it went, and that it was not open to his Honour to fill an evidentiary gap.

62    Counsel submitted that the primary judge’s finding that the proposition that the appellant’s decision not to commence defamation proceedings was made, in part, because it would undermine a decision to exercise his right to silence was “contrary to compelling inferences” was wrong, and could not be reconciled with the findings at J[49].

63    As for the evidence concerning the appellant’s health, counsel submitted that this went unchallenged. Counsel submitted that the evidence about the appellant’s lethargy added to the difficulties that he had experienced during the relevant period. However, this was not at the forefront of the appellant’s argument, because counsel relied on what was described as the potency of the concurrent criminal proceedings as the leading issue. Nonetheless, counsel submitted that to the extent his Honour observed that the appellant’s health issues were not unusual for a man of his age, and did not seem dire, the appellant’s age should not have been relevant, nor was it necessary that the health issues rise to the level of being dire, before they could assume relevance.

Submissions on behalf of the respondents

64    Counsel for the respondents did not challenge the correctness of the Full Court’s decision in Joukhador. Counsel accepted by reference to Joukhador at [52] that where a person is facing a criminal charge and an allegedly defamatory publication raises questions about the person’s guilt or innocence that would be likely to cause the defamation proceedings or process within it to be stayed, then ordinarily it will not be reasonable to commence the defamation proceeding. It was submitted, however, that Joukhador plainly did not lay down an inflexible rule and that it admits of cases where, even though there is an overlap of criminal proceedings and the defamation proceedings that would involve a forensic examination of questions bearing upon guilt or innocence, an applicant will nonetheless be required to commence defamation proceedings within time.

65    Counsel submitted that the appellant’s actual reasons for not commencing proceedings within the one-year limitation period were a vital part of the Court’s consideration and, in this case, the reasons were not ventilated adequately.

66    It was submitted that the active steps that the appellant had taken while time was running for the purpose of his limitation period were steps that, in the language of the Court in Joukhador at [52], inevitably exposed him to a forensic examination of matters bearing upon his guilt or innocence that could prejudice his defence of the criminal charges. Counsel pointed to the fact that the appellant had notice of the nature of proposed criminal charges in the email of 12 August 2019, which was prior to the broadcast. Counsel relied on the two email communications to the New South Wales Police and submitted that there was a clear and emphatic denial of the criminal allegations, and the setting up of a counterfactual.

67    Counsel submitted that the appellant had energetically prosecuted other civil proceedings. It was submitted that there was an overlap between the subject matter of the criminal charges, and the Galea proceeding. At the risk of over-simplifying counsel’s submission, the criminal charges related to two matters: (1) the backdating of documents; and (2) fraudulently claiming that a deed of loan was valid and enforceable in order to induce a payment of $360,748 for the benefit of Combined Property Holdings. Counsel relied on the correspondence between the identities of the purported mortgagees identified in the criminal charges relating to the falsification of mortgage documents, and several of the 38 beneficiaries Combined Property Holdings identified in the third amended statement of claim as persons for whom it acted as nominee and trustee in relation to dealings in land. This was also the subject of further and better particulars of the third further amended statement of claim, which counsel for the respondents submitted made positive allegations in relation to the conversations alleged in them in relation to unregistered mortgages. It was submitted that the appellant plainly gave instructions in relation to the further and better particulars, and that this was inconsistent with the asserted strategy of resolving the criminal proceeding before doing anything about civil claims.

68    Counsel for the respondents relied on the dates of the third amended statement of claim and the further particulars in the Galea proceeding, noting that they post-dated the appellant’s knowledge of the criminal investigations, and in the case of the particulars, post-dated the publication and the letter from Mr Whitfield to the Nine Network. Counsel also pointed to the timing of the May affidavit in the Galea proceeding, which was made after the appellant had received the advice from Mr Whitfield, and submitted that the appellant had acted inconsistently with that advice. Counsel relied in particular on the appellant’s account of the facts in paragraphs [8] onwards of the May affidavit.

69    Counsel for the respondents submitted that, had the Galea proceeding not been stayed, then it would inevitably have involved a forensic examination of the matters bearing upon the appellant’s guilt or innocence of the charges he faced. It was submitted that the Galea proceeding could not be conducted without the appellant giving evidence, and being subjected to cross-examination. Counsel fairly accepted that the Barnes proceeding was of less relevance, and was not in any way dispositive of the application, but maintained that the appellant had actively taken steps on behalf of Combined Property Holdings to defend that proceeding.

70    Counsel for the respondents was critical of the absence of an explanation by the appellant in the evidence as to why he had pursued the Galea proceeding on behalf of Combined Property Holdings, and defended the Barnes proceeding, but was seemingly unable to take steps in a defamation proceeding. It was submitted that the claim that the appellant did not bring defamation proceedings because of a desire on his part to maintain his right to silence could not be reconciled with his conduct generally, but in particular the Galea proceeding, and that ultimately this is why the decision of the primary judge should be affirmed.

Consideration

71    We will commence with some general propositions.

72    First, this appeal is an appeal by way of rehearing from orders that did not involve the exercise of any discretion. In addition, the primary judge did not enjoy any relevant advantage over this Court because the evidence was by affidavit, and there was no cross-examination. Therefore, the task of this Court is to conduct a real review of the evidence that was before the primary judge in circumstances where we are in as good a position as the primary judge to assess the evidence. If, upon reviewing all the evidence, the Court is persuaded that the decision below was wrong, then it is the duty of the Court to give effect to its own conclusions.

73    Secondly, the question in issue for the purposes of s 56A of the Limitation Act is whether it was “not reasonable” for the appellant to have commenced a defamation proceeding during the one-year limitation period. The effect of the authorities was not put in issue, and the primary judge’s summary of them was not disputed. Further, there is no suggestion that the primary judge erred in stating the relevant principles that have been developed through the authorities to guide the consideration of an application under s 56A to extend the limitation period. Because the principles are not in issue on this appeal, it is only necessary that we highlight the main points made in Joukhador at [50]–[59], concerning whether a court should reach the state of satisfaction that engages s 56A –

(a)    the question whether it was not reasonable to commence a defamation proceeding within the one-year limitation period is evaluative, and not discretionary;

(b)    the burden is on the applicant to establish that it was not reasonable to commence the proceeding, although the applicant does not have to account for every day or week within the one-year period;

(c)    the test in s 56A is an objective one, requiring that attention be given to all the circumstances as they appear objectively to the court, but where the applicant’s actual reasons for not commencing a proceeding are a part of those circumstances;

(d)    whether it was not reasonable to have commenced a proceeding is to be informed by the legislative context, which includes as a feature that there is a short time limit of one year within which to commence a defamation proceeding, which furthers the public interest in the timely commencement of such proceedings;

(e)    the outcome of the application of these principles is that the onus on an applicant will likely be discharged only in unusual circumstances; and

(f)    one such unusual circumstance may be 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.

74    There is one further point that was well made by the primary judge at J[10], and which deserves to be highlighted. That is, that observations in other cases about the application of the applicable principles to the facts of those cases cannot be elevated into inflexible rules of general application. This is a theme that runs through the law. Factual findings in other cases are not binding, and one should not reason from factual conclusions in one case to a factual conclusion in another. The scope and extent of a principle of law may be illustrated by showing the way it has been applied in other cases, but databases of decided cases “should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application”: Teubner v Humble (1963) 108 CLR 491 at 503 (Windeyer J), quoted in Bus v Sydney County Council (1989) 167 CLR 78 at 89 (Mason CJ, Deane, Dawson and Toohey JJ).

75    The appellant’s case that it was not reasonable for him to have commenced a defamation proceeding within one year of publication was not clear-cut, and we can see why the primary judge was troubled by some of the circumstances that were the subject of the evidence. However, having considered all the circumstances for ourselves, we have respectfully come to a different view from that taken by the primary judge.

76    The relevant period on which to focus at the outset is the one-year period immediately following the initial broadcast on 15 October 2019. We have summarised the relevant events before and during that period at [12] to [27] above. Over that entire period, the appellant was the subject of ongoing investigation by the police, and was served with a court attendance notice in April 2020, and a further court attendance notice in July 2020. Significantly, the further court attendance notice required the appellant to attend the Parramatta Local Court on 21 October 2020, which was a little less than a week after the one-year limitation period for the television broadcast expired. The spectre of the criminal proceedings did not abate over the balance of the total limitation period that falls for consideration, being the period ending 30 June 2022 that the parties accepted was applicable in respect of any ongoing online publications: see [3] above. For these reasons, and because of the overlap of subject matter that we identify later, objectively it would not have been reasonable for the appellant to have commenced a defamation proceeding in these circumstances. That objective assessment is not gainsaid by some steps that the appellant took during that period.

77    One of the features of the case that causes us to come to a different view is that the evidence adduced by the appellant was not challenged by cross-examination. If leave to cross-examine was required, it was not sought: cf Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156 at [27]–[28] (Lee J). In any event, the point is that Mr Whitfield was not cross-examined and, further, there was no request that the appellant attend court to give evidence. In this context, the primary judge held at J[48] that the evidence that the decision not to proceed with the defamation proceeding was made, in part, because it would undermine a decision made by Mr Landrey to exercise his “right to silence” was contrary to compelling inferences from available facts. The evidence on this question at [53] of Mr Whitfield’s affidavit is set out at [42] above, and it includes the statements that the appellant “has exercised his right to silence in relation to all criminal charges brought against him” and that he “has entered a plea of ‘not guilty’ in those proceedings”. The bare statement by Mr Whitfield that the appellant had exercised his right to silence “in relation to all criminal charges” was one that was capable of different interpretations. The different nuances that were open were not exposed by cross-examination. In those circumstances, we consider that the evidence that the appellant had exercised his right to silence in relation to the criminal charges was supported by objective evidence to the extent, and in the sense, that: (1) although on 19 August 2019 the appellant responded to the email from DSC Schussler of 12 August 2019, he did not take up the opportunity afforded to him to participate in a recorded interview; and (2) in Mr Whitfield’s email of 21 January 2020 to DSC Schussler set out at [22] above, Mr Whitfield stated that the appellant would not further respond to the allegations other than to say what was set out in the email. There is a qualitative difference between rebutting allegations and asserting innocence by relatively brief emails, and submitting to a formal recorded interview. The latter would be capable of being regarded as being inconsistent with maintaining a right to silence, but not necessarily the former.

78    As for the steps taken by the appellant in making complaints to the Australian Tax Office and the Law Enforcement Conduct Commission, the content of those complaints is not before the Court, because they were not tendered. As we have mentioned, there is a challenge to the primary judge’s finding that they were detailed documents settled by Mr Whitfield setting out the appellant’s instructions as to relevant events. Putting that challenge to one side, we consider there to be a qualitative difference between the controlled preparation of documents of this type and the submission to a formal recorded interview by investigating police.

79    As for the documents in the Queensland civil proceedings, they fall into two categories. The first category is the pleadings. The pleadings are not those of the appellant, but of Combined Property Holdings. In addition to the third amended statement of claim and the proposed fourth amended statement of claim, there were other pleadings of the plaintiff in the Galea proceeding that were in evidence before the primary judge — namely, a reply filed 24 January 2020, and further and better particulars filed 24 January 2020. All the pleadings were settled by counsel, and were signed by the solicitor acting for Combined Property Holdings, albeit that there is an inference that they did so upon the instructions of the appellant who was the company’s sole director. Having reviewed the pleadings, the criminal charges, and the reasons of Henry J in Combined Property Holdings Pty Ltd v Galea [2020] QSC 338, we accept that there is a prospect of overlap between the second count of dishonestly obtaining financial advantage and the facts alleged in paras [68]–[69] of the Crown Case Statement and the matters in question between the parties in the Galea proceeding. As for the Barnes proceeding, the defence of Combined Property Holdings in that proceeding was prepared by the appellant himself. The defence did little more than traverse and put the plaintiffs to proof of the allegations made in the statement of claim.

80    The purpose of pleadings is to frame issues. Generally, pleadings will not be treated in the same way as other forms of admission: see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 86 (Mason CJ and Brennan J). This is particularly so in relation to any positive averments in defences. But there is also a real issue as to whether the allegations in the Galea proceeding by Combined Property Holdings, which claimed to be acting as a trustee, could constitute admissions by the appellant.

81    The second category is the two affidavits that the appellant made in the Galea proceeding which appear, in part, to depose to the factual foundation for the claims made in the pleadings in that proceeding. The facts deposed to by the appellant in the affidavits appear to be generally consistent with the allegations in the pleadings propounded on behalf of Combined Property Holdings. The appellant’s account in these affidavits was criticised by Henry J in his Honour’s reasons for judgment in Combined Property Holdings Pty Ltd v Galea [2020] QSC 338, which referred at [8] to an aspect of the evidence as being “muddy”, and at [37] to “yawning evidentiary gaps”. The appellant’s May affidavit in the Galea proceeding contained the following paragraphs, to which the primary judge referred at J[43] and [44] and upon which the respondents to the appeal relied –

5.    In that regard, I offer the following comments as background to assist the Court in its preliminary understanding of the issues for the purposes of the current applications, the reason why they have arisen, and the need for the issues to be properly and comprehensively addressed by this Court should the parties not be otherwise able to resolve them between themselves. I acknowledge that much of what I say herein is the same as that pleaded by the Plaintiff in its statement of claim, however I have said the same here as I believe it properly describes the facts as they occurred, and when read in its entirety it gives proper context to those facts and the history of the matter.

6.    Whilst I accept that many of the facts asserted by the Plaintiff are disputed by the Defendants, and that such issues are to be determined by this Court if the parties cannot otherwise resolve the claim, I say and sincerely believe that they are facts and thus issues that must be properly tested in open Court because they concern the Defendant’s conduct as solicitors and officers of this Honourable Court.

…

8.    I am aware of the following facts because I was personally involved in the circumstances of the dealings as they are described, or that I have become aware of since being appointed as the Director of the Plaintiff including by reference to the Plaintiff’s books and records.

…

48.    I am also aware of the First Defendant’s appearance on, and statements in, a segment aired on the television program ‘A Current Affairs’ [sic] publicly in or around October 2019 wherein he made comments about the dealings between Naturelink, Stony Creek, and the Plaintiff and my involvement therein. I say, and sincerely believe it to be correct, that it should be a matter of serious concern that an officer of this Court is making such statements on a television program at the time when issues arising out of the transactions to which the program appears to have been addressed are before this Honourable Court. At the time of filming this affidavit, this video can be found by going to the following link:

https://www.9now.com.au/a-current-affair/20l9/clip-ck21n77f900070hmbo520jjxi

Mr Galea appears from 3 minutes onwards in this clip.

82    In the October affidavit in the Galea proceeding, the appellant referred again to the A Current Affair program in the context of a claim that his asset position be kept confidential –

25.    In relation to my asset and income position I request that this material remain confidential, and only shown to the Court and the solicitors for the parties. The reason for this is that the First Defendant has appeared on A Current Affair previously making allegations against me that are denied. A known acquaintance of the First Defendant regularly emails a wide range of people making allegations against me of criminal conduct, all of which is denied and I believe can be disproved. I am concerned that my private financial position and the matters disclosed would, if not sealed, be the subject of further mass emails and broadcast on national television. Exhibited hereto and marked with the letters C-GVL-17 is confidential exhibit detailing my asset position.

83    It is reasonably clear that the matrix of facts to which the appellant deposed in the May affidavit forms part of the milieu out of which the allegations the subject of the criminal proceedings against the appellant arise. For instance, it appears from the reasons of Henry J at [41]–[42] that the defendants in the Galea proceeding had put in issue the question whether an alleged loan involving Combined Property Holdings and Naturelink was valid and enforceable. There were other references by Henry J to the criminal proceedings against the appellant at [9], [15], and [18]. The relationship is also supported by evidence that Mr Galea had given a sworn statement to police in relation to the charges the subject of the court attendance notices. Collateral support is found in a notice of non-party disclosure, which is a form of non-party discovery, issued by the Supreme Court of Queensland on 31 August 2020 and directed to the New South Wales Commissioner of Police, with notice to the appellant, seeking the production of documents that are set out in a schedule, which included court attendance notices and fact sheets.

84    As to the Barnes proceeding, except to the extent that the appellant may be called as a witness and cross-examined on the subject matter of the criminal proceedings, there does not seem to be much scope for overlap between the Barnes proceedings and the criminal proceedings. This bears on the question whether the appellant’s participation in those proceedings as director of Combined Property Holdings carried much risk of jeopardising his defence in the criminal proceedings.

85    It is also important to bear in mind that the appellant was the sole director of Combined Property Holdings. The Galea proceeding was commenced before the criminal prosecution of the appellant was anything more than speculative. The Barnes proceeding was commenced against Combined Property Holdings. As a director of Combined Property Holdings, the appellant owed general law and statutory duties to it both to prosecute and to defend proceedings if appropriate. It is also relevant that the appellant alleges that Combined Property Holdings claimed that it held its interest in the loans and mortgages on trust for the investors. Therefore, if true, the trustee company would have a duty to the beneficiaries of the trust to get in the trust property, including by pursuing any viable claim for damages against the company’s solicitors for negligence or other breach of duty, and to defend that property from proceedings that may result in diminution of it. Therefore, the appellant’s role in the Galea and Barnes proceedings is as director (to give instructions to the company’s solicitors) and, potentially, as witness. The company could, of course, compel the appellant to give evidence, should the need arise, by subpoena. If the occasion had arisen, the appellant could have invoked the common law privilege against self-incrimination that was applicable in Queensland. These are all matters that should be taken into account when considering the nature and extent of the appellant’s involvement in the Galea and Barnes proceedings, the high point of which was making the two affidavits. In our assessment, making an affidavit in a civil proceeding does not undermine the interest of an accused in his right to silence in the same way as submitting to cross-examination or waiving the privilege against self-incrimination. There is no evidence that the appellant was cross-examined on the affidavits.

86    Returning to the primary judge’s reasons, his Honour referred appropriately at J[48] to authority concerning the importance of the common law privilege against self-incrimination, reflecting the long-standing antipathy of the common law to compulsory interrogations about criminal conduct: see Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 at [1] (French CJ) and Lamb v Munster (1882) 10 QBD 110 at 111 (Field J). Indeed, the object of the privilege goes further, because it protects an individual not only from self-incrimination directly under a compulsory process, but also from derivative evidence which might be the result of inquiries set in train by information obtained under some compulsory process: see Reid v Howard (1995) 184 CLR 1 at 7 (Deane J). It may readily be accepted that the appellant’s decision to make the affidavits in the Galea proceeding, or to make the two complaints, might not have been aligned with the protections afforded by the privilege against self-incrimination. However, these processes were not coercive, and the information that the appellant gave was information of his choice.

87    For the above reasons, we would not go so far as to conclude that Mr Whitfield’s evidence that the appellant had maintained his right to silence “in relation to all criminal charges brought against him” in the sense and to the extent that we earlier identified was contrary to compelling inferences.

88    We therefore return to the central question, which is whether it was not reasonable for the appellant to have commenced the defamation proceeding during the relevant period because of the anticipated criminal proceedings. The key finding on this question was made by the primary judge at J[49] and is unchallenged on appeal. That finding was that advice was given to the appellant that the criminal proceedings should be resolved prior to any existing or contemplated civil proceeding, and that this would have been the advice of any competent criminal lawyer. The finding is supported by contemporaneous objective evidence. We referred at [20]–[21] above to the letter that Mr Whitfield sent to the Nine Network in Sydney stating that the appellant intended to sue, but demanding no more than the preservation of documents. No imputations were alleged. No immediate proceedings were foreshadowed. No other demand was made. This evidence also supports a finding that the appellant acted on the advice. Indeed, it would not have been reasonable for the appellant to act contrary to that advice.

89    Bearing in mind the point we highlighted at [74] above concerning the application of decisions on questions of fact in one case to other cases, the general observations made by the Full Court in Joukhador at [52]–[53] are apposite to the objective circumstances of the appellant in the present case –

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 [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 46 at [39], [43]-[44].

90    The Full Court in Joukhador elaborated at [54]–[57] on why the legislation should be taken to accommodate the situation of a person facing criminal charges concerning the subject of a defamatory matter as a circumstance in which it would not be reasonable to commence a defamation proceeding within the primary one-year limitation period.

91    In the objective circumstances of this case, there was throughout the relevant period a real prospect that if the appellant commenced and then pursued a defamation proceeding, he would be cross-examined about the subject matter of the criminal charges before the trial of the criminal matters took place. It is no answer that the appellant might have commenced a defamation proceeding and in conjunction sought a stay, as he has now done. We accept the submissions made on behalf of the appellant that the considerations that would justify a stay are the same considerations which rendered it not reasonable for the appellant to have commenced a defamation proceeding during the primary one-year limitation period.

92    While the steps taken by the appellant on behalf of Combined Property Holdings in the Queensland civil proceedings and the making of the two complaints relating to the subject of criminal charges are worthy of scrutiny, and might also invite comment as to the wisdom of taking those steps, they do not rise so high as to affect our conclusion that it was not reasonable for the appellant to have commenced a defamation proceeding having regard to the objective circumstance of the anticipated criminal proceedings. At the relevant times, the spectre of criminal prosecution continued to loom over the appellant. Likewise, the appellant had been advised — unimpeachably — not to commence defamation proceedings in those circumstances. Whether the appellant acted wisely in steps he took in other litigation does not change the fact that in the objective circumstances it was not reasonable for the appellant to have commenced defamation proceedings within the primary one-year limitation period. This is sufficient to establish the appellant’s claim to extend the limitation period. It is not necessary to address the other elements of the ground of appeal: Boensch v Pascoe [2019] HCA 49; 268 CLR 593 at [7]–[8] (Kiefel CJ, Gageler and Keane JJ), [101] (Bell, Nettle, Gordon and Edelman JJ).

Disposition

93    The appellant has established that it was not reasonable to have commenced a proceeding within the primary one-year limitation period. As we mentioned earlier, the second step, involving a discretion as to the period of extension, was not put in issue by the respondents. Therefore, the appeal will be allowed. The orders of the primary judge will be set aside, and in their place it will be ordered that the limitation period be extended up until the appellant commenced his proceeding. The appellant will have his costs of the application before the primary judge, and of the application for leave to appeal, and the appeal.

Associate:

Dated:    31 July 2024

SCHEDULE OF PARTIES