Talk-back caller’s claim does not get on: Casley v ABC [2013] VSC 251

Jon Faine is the talk-show host on ABC Radio in the morning in Melbourne. On 2 July 2010, he took a call from a self-described “well known and frequent caller to radio talkback programs” and the “secretary of the People Yes Party.” Faine had asked listeners to ring in and express their views about the mining tax.

According to the plaintiff, who was the caller, the conversation went like this:

Jon Faine
Jon Faine

Faine: John in Sandringham. Morning to you John.

Casley: Oh good morning, Jon. Look, er the tax doesn’t stop the profits being taken out by the bucketful every year and this is the enormous problem that’s facing Australia.

Faine: Its John from Brighton isn’t it?

Casley: Er no, Sandringham.

Faine: Yeah Brighton. Its John Casley. Good morning how are you?

Casley: Hello Jon.

Faine: Have you moved?

Casley: Ah, yes.

Faine: OK. Well, John from Brighton in Sandringham. But let’s just be clear, your um – status with ABC talkback I don’t think has changed, John.

Casley: Well, all I wanted to say was that the People Yes Party has a policy which puts a tax…

Faine: You’re not welcome to come on and spruik a political party and, John, owing to your repeated racist utterances on the program, as you well are aware, you have been banned. So John from Sandringham or John from Brighton, its still the same guy.”

Putting to one side the imputations that the broadcast carried, the first problem that Casley faced was the timing of his case. The limitation period is 12 months from the time of publication and the plaintiff filed his statement of claim on 27 March 2013, more than two and a half years after the event. The ABC applied to strike the case out.

To get the claim off the ground, the plaintiff had to show that it would not have been reasonable for him to have brought the proceedings within 12 months of the broadcast. So the issue was this: what is the excuse?

The plaintiff said that he had made a complaint to the Australian Communications and Media Authority (ACMA) and spent most of his time waiting for a response from them.

The problem with that was that on his own timeline, there were still large gaps when the plaintiff did not act. At first, he wrote to ACMA on 20 August 2010 to complain. ACMA responded on 18 October and 19 November 2010 saying that the plaintiff had to raise the matter with the ABC first. So the plaintiff raised it with the ABC and on 19 May 2011, ACMA wrote to the plaintiff again and expressed a preliminary view that there had been no breach of the ABC’s Code of Practice. The plaintiff was invited to comment before a final decision was reached.

There was further correspondence and then on 6 July 2011, just over a year after the broadcast, ACMA gave the plaintiff a final report. It concluded there had been no breach of the ABC’s Code of Practice.

The plaintiff said that he had not brought proceedings to that stage because he did not want to jeopardise the ACMA investigation. However, no steps were taken by the plaintiff between July 2011 and December 2011. On 23 December 2011, he again wrote to ACMA and said that he wanted ACMA’s decision to be appealed to the Administrative Appeals Tribunal.

On 7 May 2012, ACMA wrote back and told him that he had no formal right to have ACMA review its decision, and could not appeal to the AAT. Thereafter, the plaintiff did not act further until 27 March 2013, when he issued these defamation proceedings.

Justice Beach concluded that it is not easy for a plaintiff to get an extension of time, and that there were no circumstances which made it unreasonable for the plaintiff to bring the proceedings within the twelve month period. The ACMA complaint route was not an alternative to litigation and it was not the same as settlement negotiations. Therefore, the plaintiff lost.

His Honour went further and stated that, even if he had been satisfied that it was not reasonable for the plaintiff to have commenced the proceedings within a year of the broadcast, as a matter of discretion, he would not have extended the limitation period to 27 March 2013, but the proper exercise of His Honour’s discretion would have extended the period to 12 months from 6 July 2011, when ACMA sent its final report to the plaintiff. On any view, the case was statute barred and struck out.

Next caller please.