Federal Court of Australia

Landrey v Nine Network Australia Pty Ltd [2023] FCA 27

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s claim for interlocutory relief referred to in the amended originating application dated 28 October 2022 be dismissed with costs.

2.    Within seven days of the making of this order, the proceedings be dismissed with costs.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1    Mr Geoffrey Landrey seeks an order under s 56A of the Limitation Act 1969 (NSW) (Limitation Act) extending the one-year limitation period for bringing an action in defamation, along with an order staying this proceeding pending the conclusion of criminal proceedings brought against him.

2    This proceeding was commenced on 21 September 2022. It relates to a publication by Nine Network Australia Pty Limited (Nine Network), being a television programme broadcast on 15 October 2019, namely a segment of the programme “A Current Affair” entitled “Where’s our money, Geoff?” (Television Broadcast). The Television Broadcast was subsequently published online and made available to view and download on websites, including the 9now.nine.com.au website, from at least 19 September 2020.

3    As would already be obvious, the proceeding was commenced out of time and therefore is not currently maintainable by reason of the operation of s 14B of the Limitation Act, which provides that the limitation period for a cause of action for defamation is one year, running from the date of publication of the impugned matter. The limitation period, at least in respect of the Television Broadcast, expired on 14 October 2020. It is common ground that the limitation period for any cause of action based on the downloads expired no later than 30 June 2022.

4    Counsel for Mr Landrey confirmed that there are three reasons put forward for an extension of time which, in any combination, support a conclusion that it was not reasonable for Mr Landrey to commence defamation proceedings within time. These three matters, as they were developed in submissions, were: first, the fact that the timely commencement of a defamation proceeding carried with it a real and unacceptable risk of prejudice to Mr Landrey’s maintenance of his “right to silence” in relation to unresolved criminal charges; secondly, Mr Landrey’s need to focus his attention on defending the extant criminal proceeding (which has diverted his attention away from commencing a defamation proceeding); and thirdly, his ill health.

B    RELEVANT PRINCIPLES

5    The applicable iteration of s 56A of the Limitation Act is that in force prior to the commencement of the amendments caused by the Defamation Amendment Act 2020 (NSW), being in the following terms:

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).

6    As is clear from the above, the Court’s task under s 56A is to determine whether it has reached a required state of satisfaction. If that requirement is satisfied, the Court must extend the time, although the Court retains a discretion as to the period of the extension granted: Casley v Australian Broadcasting Corporation [2013] VSC 251 (at [39]–[41] per Beach J).

7    The relevant principles informing this analysis are well established, and were helpfully summarised by McWilliam AsJ in Paule v McKay (No 2) [2022] ACTSC 190; (2022) 18 ACTLR 135 (at 140–144 [17]–[34]); see also Joukhador v Network Ten Pty Ltd [2021] FCAFC 37; (2021) 283 FCR 1 (at 11–12 [49]–[54] per Rares, Wigney and Bromwich JJ); Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304; (2017) 96 NSWLR 478 (at 492–493 [69]–[72], 499 [103] per McColl JA, with whom Simpson JA and Payne JA agreed).

8    It suffices to note that s 56A requires the Court to engage in an evaluative (as opposed to discretionary) analysis. In Paule v McKay, McWilliam AsJ explained as follows (at 140–141 [21]–[22]):

21.    The circumstances in which it will not have been reasonable to commence proceedings within the period cannot be exhaustively defined. They are likely to be “relatively unusual”, “special” or “compelling”: Noonan at [51] per Keane JA. See also Barrett at [70]-[71] per McColl JA, where her Honour explained that in recognition of the strict time limit and the public interest in the timely commencement of actions for defamation, too ready an acceptance of circumstances that are said to have made it unreasonable to sue within the year would undermine that public interest, citing Noonan at [67] and Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 (Pingel) at [42].

22.    The applicable principles that have emerged from the authorities are as follows:

(a)    The statutory tests respectively require the Court to determine whether on an objective basis the reasons why the plaintiff did not commence the suit within time point to the conclusion that it was not reasonable to commence the action: [Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175] at [115].

(b)    What is meant by “on an objective basis” is that the circumstances are as they appear objectively to the court and not the circumstances which the plaintiff believed, however unreasonably, to exist: Barrett at [70] citing [Noonan v MacLennan [2010] QCA 50; (2010) 2 Qd R 537] at [20]. The focus must be on the individual circumstances of the case: Pingel at [42], and the plaintiff’s actual reasons are a vital part of the circumstances pertinent to whether it was reasonable or not to bring the proceedings within the nominated period: Carey v Australian Broadcasting Corporation [2010] NSWSC 709; 77 NSWLR 136 at [48].

(c)    The burden of establishing that it was not reasonable to commence within the one-year period is on the plaintiff: [Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA; (2017) 96 NSWLR 478] at [70], citing Noonan at [15], although a plaintiff does not have to account for every day or week in a limitation year: Noonan at [49].

9    A person in the position of Mr Landrey bears the burden of persuading the Court to the necessary state of satisfaction. In considering whether this burden has been discharged, the Court is required to examine the circumstances as they appear and consider what is reasonable in the context of the circumstances as found.

10    In Joukhador, the Full Court made an important point often overlooked in submissions made on applications of this type: the statutory task cannot be assayed at a level of abstraction. Observations made in other cases based on bespoke facts cannot be elevated to inflexible rules of general application: see also Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 (at [90] per Applegarth J). The focus must always be on the circumstances revealed by the evidence and the nature of the statutory test. As the Full Court noted (at 12 [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...

11    Notwithstanding the importance of grounding any assessment in the circumstances of the case (rather than superficially relying on arguments by way of analogy), it is worth pausing to say something further about Joukhador, especially in the light of Mr Landrey’s heavy reliance upon this case in his submissions.

12    Mr Joukhador, a solicitor, was arrested and charged with fraud. The Director of Public Prosecutions (DPP) alleged that he had made deductions from the settlement monies of his clients without their knowledge or authorisation. On the night of his arrest, while Mr Joukhador was in police custody without access to a television, computer, or phone, Network Ten Pty Ltd (Network Ten) broadcast a news report alleging that he was part of a syndicate that had made millions of dollars through fraudulent insurance claims. More than two years after the broadcast, after the DPP had withdrawn the charges, Mr Joukhador commenced defamation proceedings against Network Ten.

13    Observations made by the Full Court (at 12 [52]–[53]) were to the effect that the interests of justice usually do not require a claimant to commence or continue with a defamation action that raises issues concurrent with a criminal proceeding while there is a real risk of prejudice to the defence of unresolved criminal charges. In allowing the appeal, Rares, Wigney and Bromwich JJ made the following additional observations:

(1)    the Limitation Act does not evince an intention that a claimant must commence a defamation action within one year of the publication at all costs (at 12 [53]) and often it would not be reasonable for a claimant to begin a defamation action that raises, or is likely to raise, a concurrent issue of guilt or innocence, when that issue will be concluded in both the criminal and civil proceedings (at 12–13 [56]); and

(2)    in selecting the criteria in s 56A(2), Parliament would have been conscious that any litigation imposes strain upon the litigants, especially individuals, and that such strain is, as a matter of common sense, likely to be greater where an individual’s liberty is potentially at risk in a criminal proceeding. Parliament would also have been aware of the common law presumption of innocence in favour of 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 defence of the charge (at 13 [57]).

14    These general observations are, with respect, no doubt correct and will ordinarily be highly relevant. As already mentioned, however, the Full Court was careful to observe that the mere fact that an extant criminal proceeding is on foot is not determinative; all the relevant circumstances fall to be considered (at 13 [59]); see also Houda v State of New South Wales [2012] NSWSC 1036 (at [37] per McCallum J). Indeed, the need to have regard to the entirety of the circumstances can be seen from the analysis in Joukhador itself (at 15–16 [67]–[68]). In addition to facing a serious criminal prosecution, it was also relevant that Mr Joukhador’s practising certificate was suspended until the prosecution came to an end. This had an immediate impact upon him professionally and financially. He was in the throes of separation from his wife and the prosecution had put their reconciliation in doubt. He was suffering from reflux and vomiting on most mornings for about 18 months. There was also evidence of Mr Joukhador being depressed, suffering from suicidal thoughts, and not feeling capable of undertaking any litigation. At the risk of repetition, it was by reference to all these circumstances (see 12 [51]) that the Full Court considered that the primary judge had fallen into error in refusing the extension and allowed the appeal.

C    THE APPLICATION

15    When the matter first came before me for a first case management hearing on 25 October 2022, counsel for Mr Landrey explained that the proceeding had been commenced to avoid the three-year hard stop limitation period under s 56A(2) of the Limitation Act which, in respect of the television broadcast, was due to expire on 15 October 2022, and that Mr Landrey did not seek to progress the matter until the resolution of the criminal proceedings: T3.20–26. On that basis, the orders presently sought are said to be necessary to “protect that position”: T3.30. It was said this case is on all fours with that of Mr Joukhador: T4.5.

16    Mr Landrey relies on an affidavit of his solicitor, Mr John Michael Whitfield, sworn on 11 November 2022 (Whitfield Affidavit). Such evidence on information and belief is, of course, admissible in a hearing of this nature pursuant to s 75 of the Evidence Act 1995 (Cth) (EA). It is noteworthy that no objection was made to any aspect of the Whitfield Affidavit or its exhibits; nor was any attempt made to challenge any representations made by Mr Whitfield, including representations said to have been made to him by Mr Landrey: see, similarly, Joukhador (at 14 [62]).

17    The only additional evidence relied on by Mr Landrey, which became Exhibit A on the application, was a proposed further amended statement of claim, which resolved several pleading issues raised in the respondents’ written submissions. The evidence relied upon by the respondent was an affidavit of Ms Marlia Ruth Saunders affirmed on 25 November 2022 (Saunders Affidavit). It will be necessary in due course to refer to a number of the documents either exhibited or annexed to these affidavits.

D    THE RELEVANT CHRONOLOGY

18    The following chronology of events was established by unchallenged evidence.

19    In August 2018, Mr Landrey was made aware of the risk of criminal charges when his former business partner, Mr Michael McCarthy, showed him emails sent by Mr George Frederic Barnes referring to an investigation concerning Mr Landrey by the New South Wales Police (NSW Police). As will be seen, Mr Barnes was the director of Naturelink Environmental Services Pty Ltd (Naturelink): Whitfield Affidavit (at [4]–[5]).

20    Shortly thereafter, on 7 December 2018, Combined Property Holdings Pty Ltd (Combined Property Holdings), of which Mr Landrey is the sole director, commenced a proceeding in the Supreme Court of Queensland, namely Combined Property Holdings Pty Ltd v Galea (SC No 660 of 2018) (Galea Proceeding). In that proceeding, Combined Property Holdings sues its former solicitors, including Mr Paul Galea, concerning their alleged failure to give advice as to the registration of mortgages over property forming part of a residential subdivision development in Edmonton, south of Cairns (subdivision property).

21    Sometime later in 2018, a second proceeding was commenced in the Supreme Court of Queensland, being Barnes Super Pty Ltd v Combined Property Holdings Pty Ltd (SC No 13705 of 2018) (Barnes Proceeding), in which (as would be obvious) Combined Property Holdings is a defendant. Declaratory relief is sought concerning the validity of the transfer of lots of the subdivision property between various entities with which Mr Landrey had a direct or indirect connexion. It is alleged transfers were made with the intent to defraud the creditors of Stony Creek Pty Ltd (Stony Creek), which acquired the subdivision property in 2007, and of which Mr Landrey was the sole director.

22    On 12 August 2019, Detective Sergeant Constable Shawn Schussler of the NSW Police contacted Mr Landrey by email. DSC Schussler informed Mr Landrey of two allegations of fraud received by the State Crime Command Financial Crime Squad. Those allegations were said to “relate to the uttering of [backdated] Queensland [m]ortgages and a false Deed of Loan valued at $1.5 million.” DSC Schussler invited Mr Landrey to “partake in an electronically recorded interview” under caution in relation to the allegations: Whitfield Affidavit (at [7]–[9]).

23    On 19 August 2019, Mr Landrey sent an email to DSC Schussler, in which he gave his account of events, including by providing details as to the nature of meetings, transfers of land, mortgages and agreements pertaining to the allegations. Mr Landrey stated:

I produced no document, I induced no person, and I received no funds.

The allegations are defamatory and should be withdrawn immediately; they amount to criminal defamation.

24    On 2 September 2019, a third amended statement of claim was filed in the Galea Proceeding.

25    On 15 October 2019, the Television Broadcast was aired. Those interviewed during the programme included Mr Barnes and Mr Galea.

26    On 18 December 2019, DSC Schussler contacted Mr Landrey again, setting out a series of questions for Mr Landrey in relation to the ongoing police investigation: Whitfield Affidavit (at [17]).

27    On 5 January 2020, Mr Whitfield sent a letter of demand on behalf of Mr Landrey to Nine Network, foreshadowing a defamation proceeding: Whitfield Affidavit (at [18]).

28    On 21 January 2020, Mr Whitfield replied to DSC Schussler on behalf of Mr Landrey. In that email, Mr Whitfield provided further details as to the allegations, concluding:

I place on the record that the person/s supplying you with the information upon which you are basing the allegations is misinterpreting it and/ or knows it to be false and has misinformed you in an effort to mislead you. These allegations have been rejected at all levels of law and government for seven years now. Previous investigations have been a vehicle for permitting Mr Barnes and Mr Galea and other parties to run a private vendetta pushing their own agenda to damage my client and his reputation.

My client’s perception is that Mr Barnes and others have been emboldened by your giving the allegations credence, to harass my client using the good offices in this case of the NSW Police Force.

29    On 10 April 2020, Mr Landrey was served with a Court Attendance Notice (CAN). That notice was not produced in evidence and the Whitfield Affidavit states simply (at [21]):

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.

30    On 21 July 2020, Mr Landrey was served with a further CAN (21 July 2020 Notice), charging him with one count of dishonestly obtaining a financial advantage by deception pursuant to s 192E(1)(b) of the Crimes Act 1900 (NSW) (Crimes Act), and 19 counts of using a false document with the intention of obtaining a financial advantage pursuant to s 254(b)(ii) of the Crimes Act. At around that time, Mr Landrey was also served with an “informal” brief of evidence by the NSW Police. On or about 18 December 2020, an additional brief of evidence was served on Mr Landrey: Whitfield Affidavit (at [24]).

31    On 17 November 2020, Mr Landrey made what is described in the Whitfield Affidavit (at [41(a)]) as “a detailed submission to the Law Enforcement Conduct Commission [(LECC)] complaining about the Police’s conduct during their investigation into allegations against him, the handling of the charges subsequently laid and the relationship of the Police with Mr Barnes”. On 4 February 2020, Mr Landrey is also said to have made a complaint to the Australian Taxation Office (ATO) “about the evidence of Nathan Northey who gave a statement included in the brief of evidence served on him in relation to the police charges”. Mr Whitfield states that he was provided with, and reviewed, final copies of these complaints, (although, without explanation, they were not put into evidence): Whitfield Affidavit (at [41]). I infer from the evidence before me that it is more likely than not that they were detailed documents, settled by Mr Whitfield, reflecting Mr Landrey’s instructions and, presumably to some extent, an account of the relevant facts.

32    On 13 May 2021, the charges in the 21 July 2020 Notice were dropped: Whitfield Affidavit (at [26]).

33    On 13 October 2021, a new CAN was served on Mr Landrey, although this notice, again, is not in evidence. In any event, on 21 October 2021, an expanded version of that notice was served on Mr Landrey (21 October 2021 Notice), charging him with two counts of dishonestly obtaining a financial advantage pursuant to s 192E(1)(b) of the Crimes Act, together with 23 counts of using a false document with the intention of obtaining a financial advantage pursuant to s 254(b)(ii) of the Crimes Act. Those 25 sequences can be grouped into three broad categories of allegations. First, sequences 1 to 12 are allegations that Mr Landrey knowingly used false mortgage documents to induce the liquidators of Stony Creek to determine transfers of land between Stony Creek and Combined Holdings were valid; secondly, sequences 13 to 24 allege Mr Landrey defrauded the ATO using false mortgage documents; and thirdly, sequence 25 alleges that Mr Landrey made a false representation about the existence of a valid deed of loan in order to obtain a payment of money out of the Supreme Court of Queensland.

34    It appears 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. The prosecutor later filed a document known as a “Crown Case Statement”. Over the following two months, the proceedings were adjourned, and the applicant and the prosecutor exchanged correspondence with respect to particulars of the charges and other matters. On 26 June 2022, Mr Landrey commenced proceedings in the Common Law Division of the New South Wales Supreme Court by way of summons, challenging the Constitutional validity of the committal regime in the Criminal Procedure Act 1986 (NSW). On 5 August 2022, that proceeding was removed to the New South Wales Court of Appeal, where the summons was dismissed on 21 October 2022: Landrey v Director of Public Prosecutions (NSW) [2022] NSWCA 211. On 11 November 2022, Mr Landrey filed an application seeking special leave to appeal that decision in the High Court. The criminal prosecution has been adjourned pending the outcome of that special leave application: Whitfield Affidavit (at [52]). In short, Mr Landrey has made forensic decisions in his defence of the criminal proceedings which, at least in part, have contributed to an adjournment of those proceedings (thus making it necessary that he protect himself against the expiry of the long stop period by commencing proceedings and seeking a stay).

35    It is against this background that I turn to considering the three matters called in aid by Mr Landrey to establish it was not reasonable in the circumstances for him to pursue defamation proceedings within the limitation period.

E    PREJUDICE IN THE CRIMINAL PROCEEDINGS

36    Mr Landrey submits that since the Television Broadcast was first published, he has either been aware of the prospect of, or has been facing, criminal charges, to which he has pleaded not guilty and in respect of which he says he has maintained his “right to silence”: Whitfield Affidavit (at [53]). Given this factual overlap, Mr Landrey submits it was not reasonable for him to commence the current proceedings as the alleged defamatory imputations raise questions about Mr Landrey’s guilt or innocence that would likely prejudice his defence of criminal charges. Specifically, counsel for Mr Landrey emphasised the following pleaded imputations (amended statement of claim (at [7](e)–(j))):

(e)    The Applicant falsified documents.

(f)    There are reasonable grounds to suspect that the Applicant falsified documents.

(g)    The Applicant falsified documents to induce persons to think they were buying genuine properties when they were not in fact doing so.

(h)    There are reasonable grounds to suspect that the Applicant falsified documents to induce persons to think they were buying genuine properties when they were not in fact doing so.

(i)    The Applicant falsified documents for the purposes of deceiving people into handing over their life savings.

(j)    There are reasonable grounds to suspect that the Applicant falsified documents for the purposes of deceiving people into handing over their life savings.

37    Mr Landrey submits that the overlap with the criminal proceedings is such that, even if the defamation proceeding had been commenced within time, it would have been necessary to seek a stay. The Whitfield Affidavit (at [19]) describes the following discussion between Mr Landrey and Mr Whitfield regarding the decision not to pursue his cause of action:

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.

(Emphasis added).

38    Despite attempts to obtain any file notes or documentation in relation to this conversation, and an initial (and obviously futile) assertion of legal professional privilege by Mr Whitfield, the evidence is that no file notes were made of this conversation.

39    It was not disputed, and may be accepted, that the criminal allegations and the alleged defamatory matters involve a common substratum of facts (see T30.1–7). But as counsel for Mr Landrey accepts (T14.16–22), relevant to the assessment as to the weight to be given to his solicitor’s evidence (including the evidence Mr Landrey was maintaining his “right to silence”) is the existence of any rational connexion between deferring commencement of the defamation proceeding and protecting his forensic position in relation to his criminal defence. Potential prejudice is informed, obviously enough, by the extent to which Mr Landrey has 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.

40    Put bluntly, Mr Landrey has been anything but shtum since learning of the allegations made against him.

41    First, Mr Landrey has been taking active steps in two ongoing civil proceedings since 2018, being the Galea Proceeding and the Barnes Proceeding, both of which partly concern the same factual substratum. In the Galea Proceeding, two affidavits were affirmed and read by Mr Landrey in response to an application for security for costs in the Galea Proceeding: one dated 29 May 2020 (May Affidavit), and one dated 22 October 2020 (October Affidavit). Although the orthodox course would have been for the respondents to tender the relevant representations contained in these affidavits by Mr Landrey as admissions (see Pt 3.4 of the EA), those acting for Mr Landrey were content for these affidavits to go into evidence holus-bolus (as annexures to the Saunders Affidavit).

42    In the May Affidavit, and presumably to bolster submissions as to the merit of the claim, Mr Landrey provides his detailed account as to the events concerning the subdivision property beginning in 2004, including the purported transfers of ownership of substantial parts of the subdivision property between various entities affiliated with or controlled by Mr Landrey. This includes, relevantly, the agreements concerning the acquisition of the subdivision land in 2007 by Stony Creek and the subsequent transfer of 11 titled lots in 2012 to Naturelink. In the October Affidavit, filed on the day of the hearing of the security for costs application, Mr Landrey provides yet further details as to these transactions, and the financial positions of the relevant entities.

43    Indeed, if the overlap as to the factual background provided in these affidavits and the present proceeding was not already clear, the May Affidavit makes it explicit (at [48]):

I am also aware of the First Defendant’s appearance on, and statements in, a segment aired on the television program[me] ‘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[me] at the time when issues arising out of the transactions to which the program[me] appears to have been addressed are before this Honourable Court. At the time of affirming this affidavit, this video can be found by going to the following link ...

(Emphasis added).

44    It is important to recall that the affidavits were affirmed at a time when proceedings against Mr Landrey had been commenced. Despite this, the criminal proceeding is not mentioned, nor is there any suggestion details are being withheld as to relevant matters by reason of maintaining a forensic position as to the defence to the charges or by reason of any other concern regarding the criminal allegations made against him. To the contrary, Mr Landrey emphasises in the May Affidavit that he has gone into such detail to provide the proper context to the history of the matter (at [5]–[6], [8]):

5.    ... 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.

(Emphasis added).

45    The overlap with the criminal proceedings was noted by Henry J in his Honour’s reasons concerning the security for costs application: Combined Property Holdings Pty Ltd v Galea [2020] QSC 338 (at [9], [15], [18], [41]). In particular, his Honour observed the following in regard to an inconsistency concerning a mortgage exhibited to the May Affidavit (at [9]):

Such an inconsistency is surprising given Mr Landrey must be well aware his conduct relating to Stony Creek’s purported execution of the investor mortgages is the subject of criminal charges pending against him. That prosecution case alleges in part that Mr Landrey later used false, backdated purported versions of eleven such “mortgages” to advantage the plaintiff company.

(Citation omitted).

46    Secondly, and relatedly, the affidavit evidence on this application puts the matter far too highly. Mr Landrey has not maintained his right to silence as the course would be generally understood, and as was suggested by the Whitfield Affidavit. Mr Landrey made the decision to cooperate with the criminal investigation, at least to a certain extent, by providing answers to police inquiries. As outlined in the chronology above, Mr Landrey’s account of events as to the allegations made against him to DSC Schussler on 19 August 2019, and again through his solicitor on 21 January 2020, is that the NSW Police was being used as a vehicle to “harass” him.

47    Thirdly, and consistently with his approach of not being reticent in advocating for his account of the facts, as noted above, Mr Landrey also took active steps to make complaints to the LECC and the ATO. Although the details concerning these complaints are scant, Mr Landrey bears the relevant onus. What we do know is that his complaint to the LECC was made during the relevant period and concerned the NSW Police’s conduct of the investigation and relationship with Mr Barnes, and that the complaint to the ATO concerned a witness’ evidence contained in the brief of evidence provided to Mr Landrey. As recorded above, I am also prepared to make the finding that it was likely the accounts were detailed and settled by his solicitor.

48    The privilege against self-incrimination is a basic and substantive common law right and reflects the long-standing antipathy of the common law to compulsory interrogations about criminal conduct: Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 (at 202 [1] per French CJ). The importance of a person being able to avoid taking a positive step which may tend to bring them into “the peril and possibility of being convicted as a criminal” (Lamb v Munster (1882) 10 QBD 110 (at 111 per Field J)) (except by express statutory abrogation) is central to our criminal justice system. But the present case is far removed from circumstances where, upon the advice of lawyers, an actual or potential accused in a pending or anticipated criminal proceeding has elected to avoid taking positive steps to go into evidence and make representations about relevant facts to protect their position. Although unchallenged in cross-examination, the evidence that the decision not to proceed with a defamation proceeding was made, in part, because it would serve to undermine a decision made by Mr Landrey to exercise his “right to silence” is contrary to compelling inferences from the available facts.

49    Notwithstanding this, I do accept that advice was given that the criminal proceeding should be resolved prior to any existing or contemplated civil proceeding. This would have been the advice of any competent criminal lawyer and would have meant, of course, that if a counterfactual defamation proceeding had been commenced within time, then a stay would have been sought to prevent, among other things, the possibility of cross-examination on Mr Landrey’s account prior to resolution of the criminal case. One of the curiosities of this application is that by reason of the effluxion of time (and subject to the present application for an extension), Mr Landrey now finds himself in the same position he would have been in if he commenced within time, that is, he has now commenced a defamation proceeding (to avoid the long stop) and sought a stay, despite criminal proceedings remaining extant.

F    FOCUS ON THE CRIMINAL PROCEEDINGS

50    Mr Landrey also relies on the fact he has been vigorously defending the criminal proceedings by all means lawfully available to him, such that it was not reasonable in the circumstances to open a new front by commencing defamation proceedings. In this regard, the Whitfield Affidavit provides as follows (at [54]–[62]):

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.

Other circumstances

56.    My observation of the nature and number of charges brought against the Applicant, including the volume of materials included in the brief of evidence, is that the two proceedings (relating to the charges and the Constitutional Application) brought against the Applicant have dominated his life since mid-2019. This is based on my many interactions with the Applicant during this time, my familiarity with the charges and the documents provided and prepared in the proceedings.

57.    In addition, I believe that he has also had to deal with two further civil proceedings during this period as detailed in paragraphs below. I was informed by the Applicant about these proceedings. These, in my observation placed a further strain on him as it, again, required the providing of instructions and the review of documents. This is based on my many interactions with the Applicant during this time, my familiarity with the claims and my discussions with the applicant as to the nature of and progress in the proceedings.

58.    On 2 December 2019, George Barnes Superannuation Pty Ltd (Barnes Super) served a statement of claim (SoC) against two companies the Applicant is a director of, alleging alienation of land (the Barnes Action) (SC OLD 13705/18). A copy of that SoC is at JW 1 :77. One of those companies is CPH.

59.     On 9 January 2020, CPH filed a defence to the claims in the Barnes Super SoC. A copy of the Defence is at JW-1:88. The Barnes Action is ongoing.

60.    Around this time, in separate proceedings in the Queensland Supreme Court (SC660/2018), I believe based on information provided to me by the Applicant that CPH filed proceedings against LawCover, the insurer of Queensland solicitor Galea, who also appeared in the Program (LawCover Action). By that action, I am informed that CPH claims $3,300,000 for breach of fiduciary duty. It is ongoing.

61.    I am informed by the Applicant that Galea acted as solicitor for CPH and Barnes’ company Naturelink Environmental Services Pty Ltd including in relation to matters relating to property the subject of the criminal charges. In relation to the LawCover Action, I was informed by the Applicant and do believe that the Legal Services Commission of Queensland found that there was a conflict of interest amounting to professional misconduct and unprofessional conduct against Galea.

62.    In all of the circumstances outlined above, in my view as a solicitor and based on my familiarity with the various proceedings and the client, it would have been difficult, if not impossible, for him to have commenced yet further proceedings alleging defamation. This is particularly so, in my view, against a sophisticated and well-resourced responded such as Nine Network Australia Pty Ltd.

(Emphasis in original).

51    Again, this evidence is pitched very highly but was not the subject of challenge by way of cross-examination. Although I accept that the “charges” may have dominated Mr Landrey’s life to some extent, they were not brought against Mr Landrey until 10 April 2020. Although the allegations and subsequent charges caused real distraction and no doubt prompted careful thought as to his strategy in defending the charges, the chronology surveyed above necessarily leads to the conclusion that Mr Landrey was not so preoccupied that he could not focus on other litigation.

52    Although I accept that there is a difference between engaging in extant civil proceedings and actively taking steps to commence proceedings (particularly against well-resourced respondents), the extent of Mr Landrey’s involvement in the civil proceedings speaks volumes. Far from consolidating all his efforts towards the criminal allegations, around January 2020, Mr Landrey, in his capacity as sole director of Combined Property Holdings, “filed proceedings against LawCover, the insurer of Queensland solicitor Galea who also appeared in the Program[me]”. Furthermore, in the Galea Proceeding, in addition to defending the security for costs application by taking the active step of adducing detailed affidavit evidence, Combined Property Holdings also applied for leave to pursue a claim for equitable compensation for breach of fiduciary duty, and for leave to include a new cause of action that was statute-barred.

53    In the face of his activity during the relevant period, it seems to me that Mr Landrey has not demonstrated any real difficulty in being able to engage in fights on multiple fronts. I have some scepticism about the evidence as to his extent of distraction, but in any event, despite any subjective views he might have held, looking at the matter objectively, it is unclear to me why, in circumstances where he had no difficulty engaging in other civil proceedings, Mr Landrey did not commence proceedings and then seek a stay pending the determination of the criminal proceedings. That is the very course he now seeks to embrace because of the long stop.

G    HEALTH ISSUES

54    Mr Landrey is a man of advanced years and submits that his deteriorating health is also a relevant circumstance.

55    The evidence supporting this assertion is limited to the following (Whitfield Affidavit at [65]–[66]):

65.    Furthermore, the strain on the applicant's health, particularly with respect to the Program[me] has been significant. I say this for the following reasons:

(a)     The Applicant is now on seven prescribed medicines. I am informed by him that only two of these was taken prior to October 2019. These are set out in a letter from the Applicant's treating GP dated 9 November 2022 at JW-1 :94.

(b)     The Applicant’s also reports three serious medical conditions afflicting him. These are set out in a letter from the Applicant’s treating GP dated 9 November 2022 at JW-1 :94.

(c)     The Applicant consults four medical specialists in relation to the conditions described by his GP. These are set out in a letter from the Applicant's treating GP dated 9 November 2022 at JW-1 :94.

(d)     Outwardly, the Applicant's health has also appeared to deteriorate since 2019. I have observed changes in his physical appearance including that he looks markedly older for the years that have passed he has lost mobility and does not concentrate as well as he did some years ago. I am informed by him that he is now 77 years old and a pensioner.

66.     In my view, it is particularly significant that in March 2021, that the Applicant was diagnosed with diabetes. He told me that he experienced tiredness and lethargy for more than twelve months which he was later informed was likely caused by that illness.

(Emphasis added).

56    This evidence, including the exhibited (but very general) letter of 9 November 2022 from Mr Landrey’s treating general practitioner, Dr Yvette Hauser (Hauser Letter), was not the subject of objection.

57    The evidence has a number of shortcomings.

58    Most importantly, there is no evidence that Dr Hauser was treating Mr Landrey during the relevant period (that is, after publication and prior to the expiry of the limitation period). Although Mr Landrey was a patient of Dr Hauser’s practice from 1992 to 2010, he only recommenced consulting Dr Hauser in May 2021. The evidence is opaque as to Mr Landrey’s condition during the entirety of the relevant period. The Hauser Letter indicates that Mr Landrey is currently prescribed seven prescription medications, five of which, according to Mr Whitfield, were prescribed sometime from October 2019. It also provides that Mr Landrey “reports” a number of health conditions. However, there is no indication of when and how these conditions have affected him, or precisely when any medications were prescribed. There is an orthodox way of deploying medical evidence to demonstrate how health difficulties impact upon a person’s decision making and ability to give instructions, or otherwise affect their ability to take steps; this task was not attempted, except in the most cursory, superficial and incomplete way.

59    Counsel accepted (at T15.33) that the high-water mark of the evidence is in the Whitfield Affidavit (at [66]), specifically, the suggested general deterioration of Mr Landrey’s health, including his mobility and ability to concentrate, as well as his diagnosis of diabetes and the resulting feelings of tiredness and lethargy during the relevant period.

60    This is an interlocutory hearing, and one must be careful not to adopt a counsel of perfection. But Mr Landrey bears the relevant onus and, at best, it is difficult to ascertain how Mr Landrey’s health was impacted during the relevant period. In any event, even accepting the objective evidence at its highest, the health afflictions of Mr Landrey do not seem to be dire. It is far from unusual for a man of his stage of life to see several specialists and be prescribed with medication. The observations made by his solicitor are of limited probative value, particularly in circumstances where aspects of the affidavit material have already been demonstrated to pitch the matter too highly by reference to objective, verifiable facts. Despite any health concerns Mr Landrey may have subjectively held, no sufficient basis is set out in the evidence as to how or why these health issues actually impacted upon Mr Landrey such that it was not objectively reasonable for him to commence the defamation proceedings.

H    EVALUATION AND CONCLUSION

61    As I have repeatedly noted, the burden of establishing that it was not reasonable to commence a proceeding within the one-year period is on Mr Landrey. I am conscious that in assessing whether this burden has been discharged the focus must be upon an objective assessment of the individual circumstances of the case. Despite this, it is worth stressing three matters of principle which transcend individual circumstances: first, the general notion that where a person is facing a criminal charge (or reasonably anticipating a criminal charge) and the publication raises questions of the applicant’s guilt or innocence, it will ordinarily not be reasonable to commence civil proceedings of a kind that realistically could allow forensic examination of matters bearing upon guilt or innocence; secondly, too ready an acceptance of circumstances that are said to have made it unreasonable to sue would undermine the evident statutory intention; and thirdly, the Court is required to evaluate all of the objective circumstances as a whole, not piecemeal.

62    For the reasons I have explained, I am less than convinced as to Mr Landrey’s actual reasons for failing to commence a proceeding in time. I do not discount the possibility that the evidence as to his subjective reasons may be correct, but the affidavit material is less than compelling, particularly as to Mr Landrey’s concerns about maintaining his right to silence and as to his health. Mr Landrey seemed content to proceed on the basis that all that need be done is to point to extant criminal proceedings and the general observations of the Full Court in Joukhador.

63    I have already partly explained why this case is quite different from Joukhador, but additionally, it was accepted that Mr Landrey, unlike Mr Joukhador, became aware of the Television Broadcast when it first aired. Indeed, far from failing to investigate the matter further, Mr Landrey sought the advice of his solicitor, who subsequently sent a letter of demand on behalf of Mr Landrey to Nine Network on 5 January 2020, putting them on notice that Mr Landrey intended to commence a defamation proceeding: Whitfield Affidavit (at [18]).

64    It is relevant to note that, by this time, Mr Landrey had not yet been charged, and the only communications in evidence that he had received from the NSW Police were the two communications from DSC Schussler. It was not until 10 April 2020 that the first CAN was served on Mr Landrey. Yet, despite the asserted need to focus his attention on the criminal allegations made against him, Mr Landrey was actively engaged in various civil proceedings during this time. This included filing a defence in the Barnes Proceeding on 9 January 2020 and a reply and particulars in the Galea Proceeding on 24 January 2020. Furthermore, the evidence is that Mr Landrey was acting as the solicitor for both Combined Property Holdings and Naturelink, including in relation to “matters relating to the property the subject of the criminal charges”, although at some point in time, he was unable to renew his practising certificate: Whitfield Affidavit (at [61], [64]).

65    Looking at the matter objectively, and even making necessary allowances for some health difficulties and the vexation of criminal proceedings, Mr Landrey’s explanation is 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. The additional time and effort involved in commencing defamation proceedings (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, as the respondents submit, would have been less intrusive and imposing than the steps Mr Landrey took in the Galea Proceeding. One matter not addressed in Mr Landrey’s submissions is why he is sufficiently unburdened by ill health and distractions to commence proceedings and make an application now, and yet was incapable of commencing proceedings and seeking a stay application during the one-year period.

66    This is a fact-dependent decision and should not be taken as in any way disputing or undermining the notion that prior to the long stop, 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. But as I have explained, this is no ordinary case. Having regard to an objective evaluation of all the circumstances as they are revealed in the evidence and, in particular, the three matters relied upon by Mr Landrey, I have not reached the requisite level of satisfaction that it was not reasonable for Mr Landrey to have commenced within time.

67    It was not expressly conceded that the necessary consequence of such a result would be the dismissal of the proceeding with costs. I should not make assumptions in this regard as, for example, it may be that some without prejudice communications as to costs may bear upon the terms of an order concluding the proceeding. Accordingly, I will make an order that the proceeding be dismissed with costs seven days from the date of this judgment. If any party advocates for an alternative order, then they have leave to approach my Chambers to be heard within this period.

Associate:

Dated:    27 January 2023

SCHEDULE OF PARTIES