In Johnston v Holland (No 2) [2017] VSC 597 Dixon J heard and upheld an appeal from a decision of Associate Justice Derham in Johnston v Holland [2017] VSC 448.

FACTS

The plaintiff, Johnson,  appealed the judgment of Associate Justice Derham refusing an application brought under s 23B of the Limitation of Actions Act 1958 (Vic) (‘the Act’):

1. to extend the limitation period;
2. to permit him to join Wayne Murray as a second defendant to a proceeding; and
3. to amend his statement of claim.

Johnson is the principal of The Peninsula School in Mount Eliza, Victoria and the defendant, Holland, is a former director of marketing at the School and a parent of students or former students who attended the school [2].

Johnson is suing for damages for defamation arising from:

• a series of ‘tweets’ (to approximately 26 followers) and
• an email (to at least 30 recipients) published on 2 April 2015 to the staff, parents and students of the School.

Johnson proposed to allege that Murray was the author and publisher of the email [2].

The uncontroverted facts are:

• Johnston learned of the email on 1 May 2015 and considered that Murray was aware of the identity of its author, stated to be a ‘Mr T’ [16].
• by 18 June 2015, Johnston’s solicitors established that Murray:
  • would not co-operate in identifying the author,
  • rejected the contention that he ‘owned’ the email account
  • did not distinctly address the issue of whether he was its author or publisher [16].
• Johnston’s solicitors pursued other inquiries and on 10 July 2015, Johnston applied for preliminary discovery from Murray [16]
• after service of the application Murray’s solicitors
  • stated that Murray:
    • did not know the identity of Mr T,
    • did not receive the 2 April email and
    • suggested that Mr T might be Holland or another person.
  • through their response concealed any involvement by Murray in publishing the 2 April email [16]
• on 4 August 2015, Murray’s solicitors, on instructions, advised that Murray at no time sent an email to or received an email from the email account [18].
• on 14 August 2015, the court made orders for preliminary discovery against Murray
• Murray’s computer was inspected on 28 August 2015 which revealed an email from the email account
• Johnston sought to establish whether Holland was the author of the tweets and the email. Misleadingly, Holland, at [17], said she:
  • was not Mr T
  • did not know who was.
  • said she was ‘aware of the Twitter account’ as she followed it for a time
  • concealed any involvement by Murray in publishing the 2 April email.
• Murray’s affidavit of documents and the inspection of those documents gave Johnston a proper basis to believe that Holland was the author of the tweets and the email, including by reference to another email in which Holland identified herself as Mr T
• Johnston issued this proceeding against Holland on 24 November 2015;
• regarding the author of the 2 April email Holland’s solicitors denied that she was the publisher,
• Johnston’s solicitors requested, in specific detail, discovery relating to the description of the publisher of the email which elicited no response;
• Johnston did not immediately follow through on his stated intention to enforce discovery under r 32.03 or r 32.04 which could have been heard on 12 February 2016.
• on 2 February 2016, Holland filed her defence where, at [21]:
  • she admitted that she wrote and uploaded the tweets,
  • she denied publishing the email but pleaded substantive defences to publication of the email.
• in March 2016 Johnston’s solicitors followed up on his request for discovery to which Holland responded that no documents would be provided and the only issue in the proceeding was whether she published the email rather than the identity of the publisher.
• on 6 April 2016, just after the expiry of the limitation period, Holland abandoned the substantive defences to publication of the email [21].
•  after the expiry of the limitation period, Holland filed a further defence
• on 31 May 2015, Johnston renewed his request for discovery of documents relevant to the identity of the publisher of the email. The Court noted that Holland’s response was not consistent with her later answers to interrogatories [22].
• on 7 June 2016, Johnston issued an application for  discovery [22].
• on 16 June 2016, T Forrest J ordered discovery and interrogatories noting that he was satisfied that Johnston was then unable to ascertain the description of the author of the email sufficiently to commence proceedings against the person [23].
• on 1 December 2016, Johnston’s solicitors advised Murray’s solicitors that he would join Murray as a defendant and sought his consent to an extension of the limitation period.
• the application to extend the limitation period did not issue until 27 February 2017 but that the period from 1 December 2016 until 27 February 2017 does not tell against Johnston on this application.

The Court noted that unreasonable delay was argued by Holland before T Forrest J in the context of an argument that the discovery application was futile because the limitation period had expired to which the Court concluded that:

• Johnston did not ‘sit on his hands’,
• Johnson’s solicitors were proactive and were ‘stonewalled’ by Holland,
• Holland’s solicitors did not respond for 3 months and then deflected the inquiry.

which findings were consistent with concealment [27].

The primary judge found that:

• the period relevant to the assessment of the reasonableness of Johnston’s failure to issue proceedings against Murray within time commenced from February 2016 [19] & [20].
•  Holland’s answers to the interrogatories identified that Murray was the author of the 2 April email signed by Mr T, and that Holland set up the email account and provided the login and password to him [23].
• the process of discovery by that application took 3 months and 3 weeks [23].
• that Johnston clearly was not aware of a sufficient factual basis to allege that Murray was the publisher of the email until he saw Holland’s answers to interrogatories on 27 September 2016 [25]
• at all times from about 1 May 2015 when he learned of it until the expiry of the limitation period, there was no proper basis to allege that Murray was the publisher of the email & it would have been entirely speculative for Johnston to allege against Murray that he was the publisher of the email [25].
• there were periods of inactivity by Johnston during that period when he might have taken pre-action steps, as were later taken, to obtain discovery to identify the author of the email to which full weight must be given [26].
• on 2 February 2016 Johnston was, quite reasonably, unsure of the basis of Holland’s denial of publication of the email and uncertain as to the circumstances of its actual authorship and publication [26].
• with Murray denying publishing the email it would not have been appropriate for Johnston to then seek to join Murray because there was no proper basis to allege that he was the author or publisher of the email [26].
• he did not conclude that it was not reasonable for Johnston to have commenced proceedings against Murray before 2 April 2016 because:
• of Johnston’s failure to obtain the information that he later obtained by discovery from Holland in a timely manner as the basis for the application issued on 7 June 2016 was known to Johnston in late 2015
• in the period of January to March 2016 there was an unreasonable paucity of activity which would have otherwise have identified the proper basis to proceed against Murray [27].
•  there was a significant period during which Johnston sat on his hands and that he was not bound by T Forrest J’s observations.
• there were ‘considerable gaps’ in Johnston’s activity.
• Johnston had not met the standard of timeous action required when swift action was needed. When there was no room for delay Johnston’s conduct was desultory.

DECISION

The orders sought on appeal were:

(a) Wayne Murray be added as the second defendant to the proceeding;

(b) the limitation period for the plaintiff’s cause of action in defamation against Wayne Murray be extended under section 23B(1) of the Act;

(c) the plaintiff be given leave, pursuant to rule 36.01, to file and serve a Further Amended Statement of Claim in the form which is exhibit “ZCS-1” to the Affidavit of Zoe Claire Schwarz sworn 21 February 2017; and

(d) Wayne Murray and the defendant pay the plaintiff’s costs of this application and the plaintiff’s summons dated 21 February 2017.

In an appeal from a decision of an Associate Justice in an interlocutory application the applicant must demonstrate legal, factual or discretionary error in the order of the associate judge [29].  Johnson contended that the primary judge erred in concluding that:

(a) he had not established it was not reasonable to bring proceedings against Murray in respect of the email in the one year period following its publication on 2 April 2015 (“the decision on the first limb of s 23B”);

(b) if the limitation period must be extended in respect of the email, it should not be extended beyond December 2016 (“the decision on the second limb of s 23B”);

(c) the letter from the solicitors for Murray dated 23 July 2016 (exhibit ZCS 8) is subject of without prejudice privilege under s 131 of the Evidence Act 2008 (‘The decision on without prejudice privilege’); and

(d) leave be refused to file and serve the proposed further amended statement of claim against the defendant as it has not sufficiently pleaded co-publication by the defendant of the email (‘The pleading issue’).

The court found that the evaluative nature of a decision under the first limb of s 23B(2) requires a a single correct answer which is identified by reference to the touchstone of reasonableness.  In that way it was not a discretionary decision of the kind subject to the limitations on appellate review expressed in House v The King [29] with his Honour citing Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175.

 In considering the evidence and the primary judge’s reasoning the court stated that:

• Johnston was actively seeking to establish how he might vindicate his rights immediately he became aware of the tweets and the email in May 2015 and the court was far from persuaded that there were any periods of unreasonable inactivity in this endeavour [31].
• it was  significant that Murray persuaded Johnston not only to switch his focus to Holland as publisher but also to abandon the benefit of an order for oral examination of Murray [31].
• when Johnston made a demand on Holland, she did not identify Murray as the author and began ‘stonewalling’ [31].
• the period of 3 months and 3 weeks that expired from the issue of the discovery application against Holland until receipt of the answers to interrogatories was not, and is not now, challenged as dilatory or unreasonable.
• The reasonable time for Johnston to discover a proper basis to allege that Murray published the email was 4 months.
• the relevant period of ‘significant inactivity’ in proactively enforcing rights to discovery must be prior to 2 December 2015.  There was no period of significant inactivity prior to that date [32] – [33].
• the primary judge held that when Johnston issued his writ on 24 November 2015 it was reasonable for him to have concluded on the discovery provided by Murray that Holland published the email as it was not until 15 December 2015 that Holland’s solicitors first stated that Holland would allege that she did not publish the email. It took Johnston’s solicitors a mere 8 days to request discovery relating to that assertion.
• notwithstanding that the primary judge identified the principle that it is not necessary to account for every day or week in the limitation year such an analysis is precisely what his Honour undertook [36].
• the primary judge took no account of the period of 3 months between Johnston’s initial discovery of the allegedly defamatory publication of the email on 1 May 2015,  his letter of demand on 15 June 2015, Murray’s affidavit of documents on 4 September, the issue of proceedings on 25 November 2015 which the court found that it could not be said that Johnston was acting unreasonably during this period [37];
• the primary judge failed to identify why Johnston did not discover the facts about publication of the email during this period [37] which was an important omission because:
  •  Johnston alleged that the tortfeasor disguised his or her identity by the use of the pseudonyms ‘Tan Twat’ and ‘Mr T’ and social media accounts disguised by using the names ‘@tanpersonsays’ and ‘notthetannedtwat@gmail.com’.
  • Johnston proposed to allege Murray defamed him in the email in a manner that concealed his identity.
  • Johnston also alleged that Holland and Murray were complicit in a campaign against him of which the publications were part.
  • One critical aspect of the campaign allegation is the use of these related pseudonyms in both the email and the tweets. These were open acts of concealment of the identity of the tortfeasor at the time of commission of the tort.
• Murray continued to conceal his identity and his tort by:
  • failing to respond to the plaintiff’s enquiries, and
  • by responding in a misleading way both personally and by his solicitors.
• notwithstanding that the primary judge found that  Murray’s responses may have been strictly accurate but were dissembling the court noted that :
  • Murray misled Johnston into believing that Mr T, the author of the email, was not a pseudonym that he had used
  • Holland’s answers to interrogatories were seriously erroneous or Murray had misinformed or misled his former solicitors.
• Johnston was persuaded to abandon an order that had been made for oral examination because it was not necessary as Holland had been identified as Mr T and as the publisher of the defamatory material. In so doing, Johnston acted to his detriment [39].
• the primary judge erred in accepting Murray’s submission that Johnston’s prosecution of his claim was desultory and his delay was not adequately explained because the primary judge was obliged to determine whether it was not unreasonable for Johnston not to have commenced his proceeding against Murray by 2 April 2016 to take into account all of the circumstances [40]
• Holland’s stonewalling conduct, her prevarication about her defence to the allegation that she published the email was  misleading required Johnston to focus on understanding the defence being taken by Holland who in the first months of 2016 up to the expiry of the limitation period was presenting a variable response to Johnston’s allegations with two amended defences and an evasive response to solicitor’s correspondence.
• Holland’s actions contributed to Johnston’s pause in seeking to identify Murray’s precise role in publication which occurred against the backdrop of Johnston’s allegations that Holland and Murray were, at the times of publication, conducting a campaign against him [41].
• the primary judge’s unchallenged conclusion was that it was Holland’s answers to interrogatories that mark the point when Johnston had a sufficient and proper basis to allege that Murray published the email and it was not reasonable for Johnston to have commenced proceedings against Murray when each of Murray and Holland had concealed, or constructively concealed, Murray’s involvement or contended that the issue was irrelevant [42].

The Court stated that the test posed by s 23B is objective with the issue to be evaluated being fact sensitive [43]  and that:

• first, the primary judge was objectively satisfied that:
  • Holland’s answers to interrogatories marked the point.
  • it was not reasonable for Johnston to have commenced a proceeding against Murray [43]
• second, having been so satisfied the primary judge was obliged by the language of the section to extend the limitation period.

The Court found that:

• the primary judge embarked on a speculative analysis of what might have happened had different steps been taken during a small part of the limitation period which was too confined [44].
• by identification of the possibilities that may have been revealed by alternative hypothetical conduct, the primary judge asked the wrong question.

The Court stated that the question must be focused on the conduct of the parties during the course of the limitation period when assessing whether it was not reasonable in the circumstances to have commenced a proceeding within one year from the date of the publication.  In that context it found that:

• the primary judge was in error in failing to consider the material circumstances of concealment and misleading conduct by Murray and Holland which had deflected Johnston from the proper inquiry about Murray’s involvement in the publication of the email at an earlier point when time was running.
• proper weight given to the circumstances compelled the conclusion that it was not reasonable to have commenced a proceeding against Murray on or before 2 April 2016 [46].
• Murray’s conduct was such that Johnston acted to his detriment in:
  • foregoing the benefit of an order for Murray’s oral examination which delayed him in how to put his case against Murray until Holland answered interrogatories.
  • being forced onto an alternate track of pursuing Holland as publisher of the email, Johnston was then further delayed by her conduct.

which delay led to the expiration of the limitation period.

• it was unconscionable for Murray to contend that it was reasonable for Johnston to have sued him on or before 2 April 2016 and in that way to benefit from his concealment of his tortious conduct [47]

The Court cited Levy v Watt where the Court of Appeal, per Santamaria stated regarding the operation of s 5(1AAA) and s 23B of the Act:

• Section 23B of the Act makes it clear that the only circumstances in which time can be extended to file a claim for defamation is under the regime set out in s 23B [51].
• regarding fraudulent concealment it is a material circumstance that the identity of the publisher was unknown in the exercise of the discretion in s 23B as to the period of the extension to be allowed.

The Court, at [52] & [53], found that:

• the primary judge was in error in:
  • not determining that there would be no extension of the limitation period
  • applying as a limitation governing the discretion the question as to whether it remained unreasonable for the plaintiff to have commenced proceedings against Murray. The text of s 23B(2) does not have a qualification on the discretion applied by the primary judge [54]
• there is no decision of an intermediate appellate court that has determined the proper construction of s 23B(2)  required that the discretion as to the period of any extension of the limitation period is constrained in the manner adopted by the primary judge [71].
• Johnston established that it was not reasonable for him to have sued Murray before the limitation period expired because the concealing conduct of Holland and Murray was continuing at least until 27 September 2016 and that the limitation period should be extended .
• regarding the operation of s 23B the Court stated that the power to extend the limitation period is not discretionary, it is evaluative and that evaluation is to the ‘not reasonable’ test [56]. Once that test is satisfied the only constraint is that the limitation period can only be extended for a period of no more than 2 years [56].
•  the proper period of extension was 12 months from 27 September 2016.

The issue in contest about the pleading amendment was paragraph 18A alleging that Holland was a co-publisher of the email with Murray.  It provided, at [79]:

18A. The first defendant:

(a) authorized; and/or;

(b) assented to; and/or

(c) enabled; and/or

(d) lent her assistance to;

publication of the Email and thereby published the Email.

Particulars

(i) The first defendant set up the Email Account in or around February 2015;

(ii) The first defendant provided the login and password details to the second defendant with the knowledge and intention that the second defendant would use the Email Account for the purpose of writing and sending an email or emails about the plaintiff as part of the Campaign.

Further particulars may be provided after discovery and interrogatories.

Regarding the pleading the primary judge reasoned that:

• the allegation of the material fact that Holland was a primary publisher of the email was deficient with the particulars being  material allegations of fact that need to be pleaded to set up the basis for joint publication and that those allegations themselves would need to be properly particularised
• the only facts supporting the allegations of authorisation, assent, enabling or assistance  went no further than  Holland setting up the email account, providing the login and password details to Murray with the knowledge and intention that Murray would use the email account for the purpose of writing and sending an email(s) about Johnson as a part of the Campaign.  That may arm Murray with the ability to send the email but could not make Holland liable for its content [81]
• the particulars did not:
  • link Murray to the particular email sued on.
  • enable the conclusion that Holland intentionally lent her assistance to the ‘existence’ of the email for the purpose of being published [80].
•  because of the difficulty of attributing to Holland sufficient facts to constitute her a primary publisher of the email paragraph 18A may not have disclosed a reasonable cause of action

The Court categorically rejected the primary judge’s analysis stating that:

• the relevant fact in issue is whether Holland published the email [84].
• the essential characteristic of the allegation in paragraph 18A is that Holland was an accessory to Murray’s publication.
• the notion that Holland was an accessory to Murray’s conduct did not depend on Holland’s knowledge of the content of the email as participating by any means whatever in publication and is not limited to the actual writing or sending of the email, nor is participation limited to suggesting defamatory matter [85].
• to constitute joint tortfeasors two or more persons must act in concert in committing a tort, including defamation  citing Thompson v Australian Capital Television Pty Ltd  [86]
• it is  assumed when considering a pleading amendment that the pleader can make the allegation good at trial,
• the material allegation was correctly framed because it turned on the notion that Holland was complicit to some degree in the conduct of Murray and proof of any single form of the conduct alleged would be sufficient to conclude that Holland was engaged in concerted action to a common end/ Holland and Murray were acting in pursuance of a common design and as such Holland was a publisher with Murray of the email [87].
• the particulars were adequate as:
  • there was no doubt as to what evidence would be called to meet the allegations and
  • the particulars identified that Holland knew and intended that Murray would use the email account in the Campaign which claimed that that Holland was a publisher with Murray of the email [89]
  • the Campaign as alleged was well understood by the parties, was a term used by Holland in the tweets and referred to elsewhere in the pleadings and particulars.
  • the Campaign is a material circumstance that may ground an inference that Holland published the email as alleged [90].

The Court allowed the appeal in respect of the refusal of leave to file the proposed further amended statement of claim [91]

ISSUE

It is with some relief that there was an appeal and it was successful.  The original decision was particularly stringent and was very narrowly focused. The decision is a very forceful and comprehensive rebuttal, lest there is any doubt as to the appropriate approach to take in similar situations.

The decision is long and involved and traverses many significant issues in defamation practice, the foremost of which is the limitations issues.  With a one year limitations period and the fact that more publications these days involve complications regarding identification of publishers time is of the essence.  Often a multi step process is required in discovering internet addresses and other ways of demasking anonymous authors.  It is a not uncommon situation that defamation practitioners face. With obfuscation from defendants and structural lack of co operation from internet service providers and telecommunications companies making application during the limitations period can be complicated time wise.

His Honour’s comments on pleading joint tortfeasors is also very useful.