Case: Ebert v The Union Trustee Company of Australia Ltd [1960] HCA 50 ; (1960) 104 CLR 346
Outcome: discussed
letter refers to the applicant's husband, but it does not refer to the applicant. On the face of it, the letter does not refer to the applicant and cannot be defamatory of her. Furthermore, no facts which might identify her as a subject of the letter were identified. For this reason, the applicant has not shown a prima facie case or a case with a reasonable probability of success in relation to the first publication. In Ebert v The Union Trustee Company of Australia Ltd [1960] HCA 50 ; (1960) 104 CLR 346 , Dixon CJ, McTiernan and Windeyer JJ said (at 350): "Section 52 ( j ) makes it necessary that a debtor served with a bankruptcy notice, if he does not comply with its requirements, should satisfy the Court of Bankruptcy that he has a counter-claim, set-off or cross demand which equals or exceeds the amount of the judgment debt. The debtor clearly must satisfy the Court that there exists in him a counter-claim, set-off or cross demand. 'Cross demand' is the word relied upon here. The appellant cannot satisfy the Court that a cross demand exists by showing no more than that she propounds one and states how she suggests that she can make it out. In Re Duncan ; Ex parte Modlin Street J. said that the debtor need not satisfy the Court that there are reasonable grounds for believing that he will establish his cross action, but only that he has a bona fide claim which he is fairly entitled to litigate. This perhaps is expressed too favourably to the debtor. In Re A Debtor Roxburgh J. said: 'But not every demand will suffice. A demand made in bad faith would not be good enough. The debtor must satisfy the Court that he has a genuine demand. ... But in my opinion a demand must be more than bona fide: the Court must be satisfied that it has a reasonable probability of success'. Perhaps the standard may be expressed by saying that the debtor must show that he has a prima facie case, even if then and there he does not adduce the admissible evidence which would make out a prima facie case before a court trying the issues that are involved in his counter-claim, set-off or cross demand." (Citations omitted.) Had my conclusion on the first point been otherwise, it would have been necessary to consider a number of alternative arguments advanced by the respondent. I will identify these arguments. In the case of two of these alternative arguments, they are alternative reasons for the conclusion that the applicant does not have a cross demand within the provisions of the Act with respect to the first publication. First, the respondent submitted that the applicant does not "have" a cross demand at the present time. It is accepted by the applicant that the limitation period under the Limitation of Actions Act 1936 (SA) (" Limitation of Actions Act ") has expired and did so in December 2004 (that is, after six years). The applicant relies on her ability to seek an extension of time under s 48 of the Limitation of Actions Act . The respondent contends that the effect of the Limitation of Actions Act is to exclude liability or bar a right of action and, in those circumstances, the applicant does not have a cross demand even though she may apply for an extension of time under s 48. I do not propose to decide this point. I do not need to decide the point and I have not had the benefit of submissions on both sides of the issue.