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Cain v Seven Network (Operations) Ltd[2018] QDC 2

Cain v Seven Network (Operations) Ltd[2018] QDC 2

DISTRICT COURT OF QUEENSLAND

CITATION:

Cain v Seven Network (Operations) Limited [2018] QDC 2

PARTIES:

JOHNATHON CAIN

(plaintiff)

v

SEVEN NETWORK (OPERATIONS) LIMITED

ACN 052 845 262

(defendant)

FILE NO/S:

4520/17

DIVISION:

Applications

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

25 January 2018

DELIVERED AT:

Brisbane

HEARING DATE:

18 January 2018

JUDGE:

Ryrie DCJ

ORDER:

  1. The application to extend time is dismissed;
  2. The applicant shall pay the defendant’s cost of the application to be assessed on a standard basis or as agreed between the parties.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – OTHER CAUSES OF ACTION AND MATTERS – where s 10AA of the Limitations of Actions Act 1974 (Qld) provides that an action for defamation must not be brought after the end of one year from the date of publication of the material complained of – whether it was not reasonable in the circumstances for the plaintiff to have commenced an action within one year from the publication date – whether the limitation period should be extended pursuant to s 32A.

Limitations of Actions Act 1974 (Qld) s 10AA; s 32A.

Noonan v MacLennan [2010] QCA 50 discussed;

Houda v State of New South Wales [2012] NSWSC 1036 considered;

Jamieson v Chiropractic Board of Queensland [2011] QCA 56 considered;

Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 applied;

Schoch v Palmer [2016] QSC 147 applied;

State of Qld v O'Keefe [2016] QCA 135 applied;

Mowen v The Morning Bulletin/APN and Ors [2013] QCA 36 considered.

COUNSEL:

Ms RM De Luchi for the Plaintiff/Applicant

Mr PL Somers for the Defendant/Respondent

SOLICITORS:

Robinson Locke Litigation Lawyers for the Plaintiff/Applicant

Schweikert Harris for the Defendant/Respondent

Background

  1. [1]
    This is an application seeking an order pursuant to s 32A of the Limitations of Actions Act 1974 (Qld) (the Act) that the limitation period for the plaintiff’s (Mr Cain) claim in defamation against the defendant (Seven Network), filed on 23 November 2017 be extended to that date.
  1. [2]
    In short, Mr Cain’s claim relates to a news broadcasting of alleged defamatory matters about him on its’ network on or around 16 December 2014. The statement of claim sets out those matters at paragraph 3. Mr Cain first became aware of that broadcast on the 16 December 2014 after being told about it, at which time he immediately viewed it himself using the internet[1]. As such, his claim is outside the one (1) year limitation period set out in s 10AA of the Act. This application to extend time is opposed by the defendant.

Preliminary point.

  1. [3]
    Both parties provided to me helpful submissions (marked Exhibits 1 and 2 respectively) for the purpose of this Application. Raised in the defendant/respondent’s submission was a preliminary point regarding admissibility of evidence as it related to medical reports which had been annexed to the affidavit of Mr Tindall,[2] the solicitor for Mr Cain.
  1. [4]
    Before the commencement of the hearing, I raised that preliminary point with both parties. Seven Network advised that it still maintained its objection to the receipt of those reports in the form which they were being sought to be tendered. The defendant also submitted that if allowed to be admitted in that form, it had been denied the right or opportunity to cross examine the doctors. I invited Mr Cain’s counsel to advise me whether it still wished to rely on those reports and if so, whether more time was needed or an adjournment was needed in order for them to be able to place those reports before the court in the appropriate way provided for under the Uniform Civil Procedure Rules 1999 (Qld), or to make available those authors, if I maintained Seven Network’s objection to their admission. Instructions were subsequently obtained by Mr Cain’s counsel who informed me that it would not be seeking to rely on that evidence upon the hearing of this application if I upheld the defendant’s objection to its’ admission. I informed the plaintiff’s counsel that I would be upholding the defendant’s objection but I would nevertheless allow them the opportunity in any event to place that evidence before me in the appropriate form in order to make the doctors available for cross examination if required. Mr Cain’s counsel indicated that the hearing should proceed without that evidence being tendered as part of Mr Cain’s application. As such, the hearing of the application proceeded upon that basis before me.

The hearing.

  1. [5]
    In addition to the written submissions received, oral submissions were also made by both parties. I have taken into account for the purpose of this decision all of the submissions made and in particular, the contents of the affidavit material relied upon by Mr Cain. It was indicated that neither Mr Cain nor Mr Tindall, his solicitor, were required for cross examination.

The relevant law.

  1. [6]
    Section 10A of the Act states…
  1. [7]
    “An action on a cause of action for defamation must not be brought after the end of 1 year from the date of the publication of the matter complained of.”
  1. [8]
    Section 32A(2) of the Act states…
  1. [9]
    “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 10AA to a period of up to 3 years from the date of the publication.”
  1. [10]
    The onus is on Mr Cain to show why the extension he is seeking should be granted. He is required to satisfy this court that it was not reasonable for him to have commenced his action within the year following the said broadcast by the Seven network (the relevant publication date being 16 December 2014, which is the day when Mr Cain says he became aware of it).
  1. [11]
    In the recent decision of State of Qld v O'Keefe,[3] a helpful summary is provided regarding the relevant considerations which must be applied by the court when considering s 32A of the Act That summary also had regard to certain cases, which included reference to Keane JA’s reasoning in Noonan v MacLennan.[4] In Schoch v Palmer[5], a case subsequent to O'Keefe, Justice Applegarth also comprehensively summarised the relevant considerations to be applied by the court when considering s 32A of the Act. What can be gleaned from the decisions to which I have just referred is that it will only be in relatively unusual circumstances that the court will be satisfied that it was not reasonable to commence an action within the one year period. The statutory requirement in s 32A of the Act is objective. The circumstances that might give rise to an extension are left at large, however the focus must be on what circumstances existed prior to the expiry of the relevant 1 year period in order to evaluate whether those circumstances made it ‘not reasonable’  for a claimant to have commenced an action within that 1 year period. As Justice Applegarth pointed out in Schoch v Palmer[6], s 32A requires that the court must be satisfied that it was not reasonable in the circumstances for the applicant to have commenced an action within the 1 year period.[7]
  1. [12]
    As I understand the submissions made, one of the primary circumstances which it was submitted made it not reasonable for Mr Cain to have commenced his action in time was because he was in fact the subject of a police investigation throughout the whole of that relevant period. That police investigation was only formally closed in November 2016, a date well after the relevant period had expired. As it turned out, Mr Cain was not ever charged with any offence arising out of that subject investigation. While the material available shows that investigation was closed in November 2016, Mr Cain deposes that it was only in March 2017 that he was actually told that the police investigation was finished at the time, at the point when he had gone to collect his personal property from the police station where it was being held for the purpose of that investigation.[8] .
  1. [13]
    Counsel for the Mr Cain submitted that because that police investigation against Mr Cain was still underfoot throughout the whole of the relevant period and only formally closed at a time subsequently, that made it not reasonable for him to have commenced his action for defamation during that time. At page four 4 of Exhibit 1, it was submitted that it would not have been reasonable for him to have done so, particularly because Mr Cain was not aware of what evidence the police might actually have had against him at that stage, that the police investigation itself arose from the same factual matrix that resulted in the defamation itself, and therefore it was prudent for him to await the outcome of that investigation (or at least presumably wait and see if any criminal charges were laid against him) before Mr Cain would be able to take proper legal advice on the prospects of bringing any defamation action, particularly because it could not be known at that stage whether any defamation claim he did bring, might well be defensible.
  1. [14]
    Counsel in oral submissions developed her argument on this last point further[9] to the effect that there may well have been defences available to the Seven Network, such as defence of truth (justification), especially if Mr Cain was found guilty in any subsequent criminal proceedings. It was submitted that there may well be other defences also available to the Seven Network, namely the possible application of the defence of contextual truth and/or qualified privilege. As such, it submitted that it was not reasonable for Mr Cain to have commenced his claim for defamation in time under those circumstances, before having received the benefit of proper legal advice regarding the wisdom or otherwise of him instituting any claim for defamation against the Seven Network.
  1. [15]
    Before addressing this submission, which seems to be one of the main points of the argument made on behalf of the Mr Cain in support of this Application, it ought to be noted at this stage that there were other circumstances also relied upon in support of this Application, apart from the primary one which to which I have just referred. These include the state of Mr Cain’s own psychological health during the relevant period, his lack of financial means at that time, his own unsuccessful attempts to obtain legal advice with respect to bringing any claim in defamation during that period, as well as other events that were also happening in his life at that same time, such as the criminal matter involving his own mother regarding her role if any in the death of two grandchildren and the custody proceedings that was on foot as it related to certain other children who had been removed by the relevant Department at the same time that the police had attended Mr Cain’s home in December 2014 to execute a search warrant in respect of suspected possession of child exploitation material as it related to Mr Cain himself as a suspect.
  1. [16]
    As noted by the Court of Appeal in the cases which I earlier referred to above, the Court is to have regard to all of the circumstances which Mr Cain points to show that it was not reasonable for him to have commenced the proceedings for defamation within the limitation period.
  1. [17]
    Returning then to the primary submission made on behalf of Mr Cain, reference was made to certain decisions namely Houda v State of New South Wales[10], State of Qld v O'Keefe[11] and Jamieson v Chiropractic Board of Queensland[12] in support of that submission.What is immediately apparent from those decisions is that each of the claimants had been the subject of actual charges having been laid against them during the relevant subject periods under consideration or as in Jamieson, during at least one of the relevant subject periods under consideration.
  1. [18]
    In Houda v State of New South Wales[13], the claimant in that matter was a solicitor who had been charged on the 16 September 2010 with certain criminal offences. A defamatory statement had been issued by the police on the 17 September 2010 (the relevant publication date). Mr Houda was however exonerated on the 7 October 2011 of those charges at which time the limitation period had expired. Mr Houda provided evidence in support of his application to extend time, that he was under a great deal of stress in respect of that criminal proceedings during that time and therefore did not turn his mind to bringing any defamation claim. The strength of Crown case against him was considered by the Court to be an important consideration in the assessment of the prospects of success in any defamation action. As McCullum J stated, it does not necessarily follow that every person facing criminal charges should automatically have an extension of the limitation period. She noted however when granting the relevant extension, that her decision was based on the fact that there was on a complete overlap between the issues raised in the criminal proceedings and the claim in defamation and the the fact that the claimant was a solicitor facing the prospect of professional ramifications if he had misjudged the seriousness of the criminal allegations against him. She accepted in those circumstances, that Mr Houda’s necessary focus would have been on the criminal proceedings and its ultimate outcome during the relevant subject period making it not reasonable for him to have commenced any action for defamation at that time.
  1. [19]
    In State of Qld v O'Keefe[14], Mr O'Keefe was faced not only during the relevant 1 year limitation period with criminal charges, but as noted by Justice Mullins[15] with the additional pressure of the suspension from his duties as a police without remuneration. While Her Honour noted that the alleged defamatory statements did not coincide entirely with the particulars of the criminal charges against Mr O'Keefe, as it didn’t include an allegation that Mr O'Keefe had knowingly included false information in the QP9 that had been incorporated in the defamatory internally created briefing note, nevertheless, it was considered that it had made it objectively justifiable for Mr O'Keefe to have focused his attention on the criminal charges during that time in conjunction with responding to his suspension from the QPS without remuneration, rather than on any civil claim for defamation. It was also important to note in that case that Mr O'Keefe’ solicitor had thought that the said briefing note provided to him on the 20 June 2014, might have been published on an occasion of qualified privilege and as such, may have raised a complete defence. It was only after that solicitor had received the full brief of evidence on 22 August 2014 after the limitation period had expired, that he realised it may not. That fact was relied on (erroneously) at first instance by the sitting Judge as a circumstance which had it turn made it not reasonable for Mr O'Keefe to have commenced his action in time. Notwithstanding that error, the Court of Appeal nevertheless considered, for the reasons I have just set out, that it was still not reasonable for Mr O'Keefe to have commenced his action in defamation in time.
  1. [20]
    In Jamieson v Chiropractic Board of Queensland,[16] the claimant in that case was charged on the 21 September 2006 with offences under the Chiropractors Regulation Act 2001. On the 17 April 2007 those charges were tried before the Court. On that same day, certain matters were published on the internet about the claimant by the Chiropractors Board which were clearly defamatory. He however only found out about that publication after being told by others, namely on 30 June 2007 and October 2008. Even though he had been told about it in June 2007, Mr Jamieson said he didn’t actually see that publication himself on the first of those occasions and only saw it for himself in October 2008. Mr Jamieson deposed that he had become very distressed after he was initially charged and subsequently while being pursued by the relevant Chiropractors Board. He deposed that even though he was formally acquitted of the charges in May 2007 his business had continued to fail nevertheless and he suffered financially. He said that after viewing the defamatory publication in 2008, he said his health had even further suffered. Mr Jamieson had also made attempts himself to resolve the issue with the Chiropractic Board’s publication and any retraction and removal of it himself unsuccessfully. His practice continued to suffer financially even though he had been formally acquitted in May 2007 of the charges. He only eventually got himself into a financial position to be able to instruct his solicitors to commence defamation proceedings in September 2009. At that point he was still in time to commence his proceedings in defamation but unfortunately his solicitor did not realise it. He had prior to that made many attempts unsuccessfully to get solicitors to also help him with his dealings with the Chiropractic Board in order to have the publication removed but it had refused notwithstanding that he had been formally acquitted of the charges and the defamatory publication had stated that he had been found guilty.
  1. [21]
    Counsel for the plaintiff submits that the cases referred to above, which she conceded were not exactly on point, nevertheless support her ultimate submission that where, such as in the present case, the success or otherwise of the defamation action is closely linked to the outcome of the police investigation because, had the investigation resulted in criminal charges being brought against Mr Cain and had he been convicted, then the defence of truth would inevitably have been available to the defendant (and perhaps even other defences such as contextual truth and/or qualified privilege). Counsel argued that to bring such an action while that investigation was still pending would not have been reasonable to do so. That is particularly so, Counsel submitted, where it would not be reasonable to have commenced such an action, before even obtaining proper legal advice on the merits of doing so or otherwise.
  1. [22]
    While the penultimate submission made certainly holds some real attraction, I am nevertheless regrettably unable to accept the submission made. I now shall explain why.
  1. [23]
    As pointed out by Justice Keane (as he then was) in Noonan v MacLennan,[17] the starting point when having regard to s 32A of the Act proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence an action to vindicate his or her legal rights in accordance with the time limits provided by law. As he noted, while the section proceeds on that assumption, the burden nevertheless will be on a plaintiff to point to circumstances which make it not reasonable to seek to enforce his or legal rights in the way required by law. As Justice Keane noted, it will be only in relatively unusual circumstances will a court be satisfied that it is not reasonable to seek to vindicate one’s rights in accordance with the law.
  1. [24]
    Turning then to this case, the evidence available shows that Mr Cain was well appraised of the reasons why he was being investigated by the police. He knew himself that it specifically related to the suspected possession of child exploitation material by him.[18] The Freedom of Information material obtained from the Police,[19] while redacted in places, nevertheless in my mind shows that the initial search warrant executed, the seizure of property which resulted and the police interview conducted with Mr Cain himself and the investigation that followed, supports a conclusion being made that the general tenor of the investigation itself was only ever involved with the suspected possession of child exploitation material by Mr Cain. As such, it cannot be said that Mr Cain was not aware regarding what the Police were actually investigating him for at that time.
  1. [25]
    While it is accepted that there is some overlap between the matters which the police were investigating and the matters which were the subject of the alleged defamatory statements made during the broadcast by Seven Network as set out in the Statement of Claim, it is evidently clear that the broadcast in question extended well beyond what was the actual subject matter of the police investigation at that time, which on the material before me, related to suspected unlawful possession of child exploitation material by Mr Cain. Put another way, that investigation, based on the QPS material available to me did not extend to any allegations of child molestation against Mr Cain and/or any investigation regarding his possible involvement in his mother’s alleged serious criminal conduct involving the death of two children.
  1. [26]
    While it is accepted that had Mr Cain been ultimately charged with possession of child exploitation material that if convicted, the defendant would have had the defence of justification (truth) available to them at any trial in respect of the defamatory statements made during its’ broadcast, nevertheless it is evident from the imputations relied on in the said Statement of Claim and the nature of the broadcast itself, that it extended well beyond what may have been or given rise to the particulars of any criminal charges which may have resulted from the police investigation against Mr Cain in respect of any unlawful possession of child exploitation material. As such, it is difficult at this point for me, based on the material I have, to see how the defence of justification could arguably be raised as a complete defence in any event by Seven Network in those circumstances. The nature of the broadcast and the imputations which Mr Cain says follows included for example that Mr Cain was in fact a child molester and/or a child murderer himself or was by his association with his mother who was accused of that criminal act/s, complicit in that crime. The available QPS material shows that at no time was Mr Cain ever the subject of an investigation which extended to or was remotely connected with that type of alleged criminal conduct by him, especially the last of those types just outlined. In those circumstances, it is therefore difficult then for me to see that the defences of contextual truth or qualified privilege could have been possible defences would ultimately may have been available to the Seven Network (had Mr Cain be charged with possession of child exploitation material and found guilty of it), having regard to the circumstances of this particular case.
  1. [27]
    As such, there is, at least in my mind, no objective basis having regard to what I have just said, which allows me to conclude that it was not reasonable for Mr Cain to commence proceedings in time against the Seven Network, having regard to the extent and degree of the alleged defamatory statements made against Mr Cain during the relevant broadcast on 16 December 2014. The fact that Mr Cain was the subject of a police investigation for suspected possession of child exploitation material during the relevant period does not in itself, mean that it follows that it was therefore not reasonable for Mr Cain to seek to enforce his legal rights in the way required by the law
  1. [28]
    Indeed, the available evidence shows that Mr Cain certainly knew and believed he was entitled to pursue Seven Network for defamation as early as February 2015.[20] Indeed, he wrote to various legal practitioners seeking their legal help regarding pursuing the Seven Network in respect of its defamatory broadcast and was at least confident that he wouldn’t be charged at all by the Police.[21] Mr Cain was also aware of the defamatory matter and the extent of it having viewed it himself on 16 December 2014. That broadcast was in tangible form available and could readily be obtained. This is therefore not a case in my mind where a plaintiff may not be able to be sufficiently appraised in order to commence a proceedings such as those discussed by Justice Keane in Noonan v MacLennan[22].

Further, Mr Cain also does not actually depose to the fact that he was unable to commence his proceedings within the relevant period simply because he was the subject of a police investigation at that time which as a consequence, had caused him significant distress. This is not a case such as that described in Houda v State of New South Wales.[23] Mr Houda provided evidence that he was under so much stress in respect of the criminal proceedings that he was facing that he in turn therefore did not turn his mind to bringing any defamation claim. Mr Cain does not suggest that it was the police investigation itself which was on foot during the relevant period which had caused him to be unable to commence his defamation proceedings in time. Rather, Mr Cain deposes that it was the broadcast itself by the Seven Network that compounded his symptoms of panic disorder, anxiety and agoraphobia which he says had initially arisen earlier in time as a result of the unfortunate loss of two of his children.[24] While I accept that the said broadcast in question itself would have been very distressing for Mr Cain, and that it may well have caused him to suffer psychologically as a consequence as he deposed, it does not follow however that the police investigation which was underfoot against him was the true cause behind why he couldn’t commence his action in time. Indeed, it is evident that it was the broadcast itself that he says compounded his symptoms. It is also a relevant fact in my mind that Mr Cain attempted to engage lawyers commencing early 2015 and thereafter to act for him in respect of bringing a defamation claim against the Seven Network. That evidence shows in my mind that Mr Cain was not only capable but more than psychologically able to pursue his legal rights even at that time, notwithstanding that he says that his psychological state subsisting at that time of which he gave (unchallenged) evidence about in his affidavit was causing him some real difficulties.[25]

  1. [29]
    At this juncture, I should point out that while the plaintiff did not seek to place any medical reports, after being given the opportunity to do so, before me after formal objection was taken by the defendant , that even if that evidence had been admitted by me over objection, it would not have changed my mind in any event.
  1. [30]
    The evidence from Dr Flegg suggested that in her opinion[26] Mr Cain has been so debilitated psychologically (the date of her report being 14 December 2017) that he had been unable to pursue his legal rights until recently. That in my mind, does not sit well with the evidence available before me, which was that Mr Cain had been communicating by email with various lawyers during 2015 with a view to attempting to pursue his legal rights against Seven Network. He admitted himself that he had contacted the Queensland Law Society with a view to getting a list of names in order that he could pursue those legal rights. I accept the defendant’s submission on this point, that had one of those lawyers which he had communicated with by e mail had been prepared to take on his case at that time, then I have no doubt that Mr Cain would have been both able and psychologically capable of pursuing his legal rights against 7 Network at that time notwithstanding that he was nevertheless complaining that he was suffering psychologically at that time.
  1. [31]
    It is also evident from the scant content of the reports of Dr Flegg, Dr Lao and Dr Berry[27] respectively that none of them actually attributed any presenting symptomology as being directly attributable to the police investigation itself that was or had been pending up until, according to Mr Cain, March 2017 at which time he was finally advised that the investigation was formally closed. Rather, it seems that the general tenor of those reports is that it was the actual broadcast and the subsequent distress it caused Mr Cain which was what had psychologically affected him.
  1. [32]
    Indeed even accepting that the medical evidence shows that Mr Cain was psychologically effected and distressed by the subject broadcast during the relevant period (particularly if regard had been given to Drs Flegg, Lao and Berry reports and in particular to Mr Cain’s own unchallenged evidence on this issue), the fact remains the same. Mr Cain was still nevertheless able to pursue his legal rights during the relevant period even notwithstanding. The emails he sent to the various solicitors, having regard to the content of those communications, coupled with the fact that he himself was also able to contact the Police each week from 15 December 2014 to March 2017 to obtain an update on the police investigation on him and the fact that he was also involved to some degree it seems with his partner’s attempts, during the relevant period, to obtain custody of the children who had been removed on the 16 December 2014 from his home,[28] in my mind demonstrates that fact, or at least allows such a reasonable inference to that effect to be drawn.
  1. [33]
    Mr Cain also said that following the broadcast itself, he had consulted various doctors regarding his increasing psychological symptoms[29] which in turn had an effect on his ability to go out in public such as shopping centres and crowded places.[30] He deposed that it was because of those reasons that he was unable to seek legal advice properly other than by the email attempts which he had made. It is evident from Mr Cain says here that he was consulting doctor/s during the months immediately after the broadcast and that a reasonable inference might be drawn that he was attending personally upon that doctors’ respective clinic. Even if I put aside for the moment that last fact, I nevertheless find having regard to the emails prepared and sent by Mr Cain to the various legal  practitioners during 2015, that it demonstrates in any event that Mr Cain was capable and able psychologically to provide the instructions regarding his subject defamation claim against the Seven Network. There was nothing in my mind which prevented him from providing the necessary instructions and/or receive legal advice regarding the wisdom of doing so or otherwise in respect of any defamation claim by phone. It is also not clear to me what list of legal practitioners Mr Cain was provided by the Queensland Law Society when he contacted them in or around February 2015 and whether the lawyers he subsequently made contact with by e mail were in fact the same ones he had been provided by the relevant body. The Statement of Claim filed also shows that this was not a complex case of defamation. The defamatory nature of the broadcast was in tangible form and was readily accessible which would have in turn allowed the filing of the necessary proceedings in time. The nature of the defamatory content of the broadcast also far exceeded what Mr Cain was being investigated for by the Police at that time, a fact he was well aware of as evident by the emails he sent and the QPS Freedom of Information documentation available for consideration. It is also not an uncommon practice that in the event a client (or potential client) is unable to attend at the solicitors’ office physically to provide necessary instructions and/or to have an initial consultation in order to seek legal advice, that consultation can be done by telephone. There is unfortunately no evidence available before me to show that Mr Cain continued to attempt to nevertheless seek to arrange to have an initial consultation with any other legal practitioners (other than those which he contacted by e mail) in order for him to be able to receive some legal advice regarding whether he should commence an action against the Seven Network or not. There is also insufficient evidence available for me to find that Mr Cain, even having regard to what he says regarding his inability to go out in public places such as shopping centres and crowded places, meant that he couldn’t have attended nevertheless upon a solicitor at his or her office to receive a consultation with them in private in order to obtain legal advice.
  1. [34]
    I should also point out at this juncture, the point which I discussed with Counsel during the hearing of this Application regarding the Indemnity Receipt provided by the QPS for certain property, such receipt created on 24 November 2015.[31] The receipt of the property returned which was the subject of police investigation,[32] does not in my mind on its’ face allow me to make a finding one way or another regarding whether Mr Cain himself actually attended at the relevant police station on that day to pick up that property. As such, I make no finding adverse or otherwise against Mr Cain in respect of it.
  1. [35]
    As I have already indicated earlier in this decision, when having regard to s 32A of the Act, this court must be satisfied that it was not reasonable in all the circumstances for the applicant to have commenced his action for defamation within the relevant 1 year period. As such, all of the relevant circumstances need to be considered and not just the one to which I have just referred. There were other circumstances which were in fact relied on by Mr Cain, which it was submitted on his behalf, when considered as a whole, would satisfy the court that it was not reasonable for Mr Cain to have commenced his action in time.
  1. [36]
    Aside from the circumstances which I have already just outlined and discussed, I shall now address those other circumstances. Mr Cain deposed[33] that his lack of financial means during the relevant period also contributed to his inability to engage a law firm to commence proceedings for him. That evidence however does not sit well with emails which he sent to the various legal practitioners during 2015 to which I have already referred. It is evident from those emails that he was not impecunious or destitute. Nor was Mr Cain asking any of them to act pro bono or take his matter on, on a speculative basis. He was in fact happy to come to some costs agreement or arrangement if they were prepared to take on his case for him. Mr Cain also says that he has been in receipt of a disability pension since 2013 and had remained on it particularly during the relevant time. This is somewhat inconsistent with the claim for loss of earnings contained in his Statement of Claim. Even putting aside that last fact which I have just simply observed, the evidence shows that Mr Cain was confident in any event that he did have sufficient money to fund his action in defamation had a solicitor taken his case on. That is evident in my mind from his emails.
  1. [37]
    I have also had regard to the other unfortunate circumstances that were subsisting during the relevant time which included the criminal proceedings regarding his own mother into her part in the death of two children which undoubtedly would have been distressing for both Mr Cain and his family. The media coverage which would have followed that event I accept would have been distressing even for him. I also accept that the subsequent need for him, but more likely his partner, to have sought custody of the children who had been removed from his home on the day the police attended at his home in December 2014 would have also been a significant matter for him. While I accept that the combination of those circumstances I have just outlined would have been both distressing for Mr Cain and may well have aggravated his psychological health even further, having regard to the evidence which I have already referred to in this decision, I am nevertheless not satisfied that on the whole of the evidence available to me, that Mr Cain was in fact suffering from any (psychological) disability to such a degree that it actually prevented him from being unable to commence his action in time. Labouring under a disability, can be a relevant factor when considering whether it was not reasonable to have commence an action in time.[34]
  1. [38]
    As such, having regard to the whole of the circumstances which Mr Cain has pointed to in support of this Application, I regrettably find that he has not discharged the burden placed upon him. Put another way, I am not satisfied that it was not reasonable for him to have commenced his action within the time provided.
  1. [39]
    The application to extend time is therefore dismissed. The usual order is that costs should follow the event. I shall hear from the parties, in written form, no more than 4 pages, after 28 days has expired from the publication of this judgment but only if the parties submit another cost order should be made other than the one proposed.

Cross Application filed by the Defendant

  1. [40]
    There was a cross application filed by the defendant seeking judgement against the plaintiff or strike out, in the event that the plaintiff’s application seeking an extension was dismissed. I make no order as to costs in respect of that application. The only basis that application was brought was in reliance of the pleaded defence that the plaintiff’s claim was statute barred.

Orders

  1. The Application to extend time is dismissed;
  2. The applicant (Mr Cain) shall pay the defendant’s cost of the Application to be assessed on a standard basis or as agreed between the parties.

Footnotes

[1] Affidavit of J Cain filed 14 December 2017 at paragraph 12 – Court Document 3.

[2] Affidavit of AJ Tindall filed 14 December 2017 at annexures AJT-3, AJT-4 & AJT5 – Court Document 4.

[3] [2016] QCA 135;

[4] [2010] QCA 50;

[5] [2016] QSC 147;

[6] Ibid;

[7] Ibid at paragraph [20];

[8] Affidavit of J Cain filed 14 December 2017 at paragraph 15-16 – Court Document 3

[9] Transcript – T1-13;

[10] [2012] NSWSC 1036;

[11] [2016] QCA 135;

[12] [2011] QCA 56;

[13] [2012] NSWSC 1036;

[14] [2016] QCA 135;

[15] ibid at paragraph 33

[16] [2011] QCA 56;

[17] [2010] QCA 50;

[18] Affidavit of J Cain filed 14 December 2017 at paragraph 14 – Court Document 3.

[19] Affidavit of AJ Tindall filed 14 December 2017 at annexures AJT-2 – Court Document 4

[20] Affidavit of J Cain filed 14 December 2017 at annexure JC1-5 – Court Document 3;

[21] ibid;

[22] [2010] QCA 50 at paragraph [17];

[23] [2012] NSWSC 1036;

[24] Affidavit of J Cain filed 14 December 2017 at paragraphs 5, 6 & 33 to 36 – Court Document 3;

[25] Affidavit of J Cain filed 14 December 2017 at paragraphs 34 to 36 – Court Document 3;

[26] Affidavit of AJ Tindall filed 14 December 2017 at annexures AJT-3 – Court Document 4

[27] Ibid at annexures AJT-3 to AJT-5;

[28] Affidavit of J Cain filed 14 December 2017 at paragraph 27 & annexure JC-4 – Court Document 3;

[29] Affidavit of J Cain filed 14 December 2017 at paragraph 35 – Court Document 3;

[30] ibid at paragraph 36;

[31] Affidavit of AJ Tindall filed 14 December 2017 at annexures AJT-2 (at p31) – Court Document 4

[32] Ibid at annexure AJT-2 (at p30);

[33] Affidavit of J Cain filed 14 December 2017 at paragraph 41 – Court Document 3;

[34] Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at paragraph 56;

Close

Editorial Notes

  • Published Case Name:

    Cain v Seven Network (Operations) Limited

  • Shortened Case Name:

    Cain v Seven Network (Operations) Ltd

  • MNC:

    [2018] QDC 2

  • Court:

    QDC

  • Judge(s):

    Ryrie DCJ

  • Date:

    25 Jan 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Houda v State of New South Wales [2012] NSWSC 1036
4 citations
Jump To
Cite 1 - [2012] NSWSC 1036
Cite 2 - [2012] NSWSC 1036
Cite 3 - [2012] NSWSC 1036
Cite 4 - [2012] NSWSC 1036
Jamieson v Chiropractic Board of Australia [2011] QCA 56
3 citations
Jump To
Cite 1 - [2011] QCA 56
Cite 2 - [2011] QCA 56
Cite 3 - [2011] QCA 56
Mowen v The Morning Bulletin/APN [2013] QCA 36
1 citation
Jump To
Cite 1 - [2013] QCA 36
Noonan v MacLennan[2010] 2 Qd R 537; [2010] QCA 50
4 citations
Jump To
Cite 1 - [2010] QCA 50
Cite 2 - [2010] QCA 50
Cite 3 - [2010] QCA 50
Cite 4 - [2010] QCA 50
Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175
2 citations
Jump To
Cite 1 - [2010] QCA 175
Cite 2 - [2010] QCA 175
Schoch v Palmer [2016] QSC 147
2 citations
Jump To
Cite 1 - [2016] QSC 147
Cite 2 - [2016] QSC 147
State of Queensland v O'Keefe [2016] QCA 135
5 citations
Jump To
Cite 1 - [2016] QCA 135
Cite 2 - [2016] QCA 135
Cite 3 - [2016] QCA 135
Cite 4 - [2016] QCA 135
Cite 5 - [2016] QCA 135

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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