[1913] HCA 60
CAL No 14 Pty Ltd v Motor Accidents Insurance Board
Source
Original judgment source is linked above.
Catchwords
[2012] FCA 1355
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485[1993] HCA 15
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541[1996] HCA 25
Bull v Attorney-General (NSW) (1913) 17 CLR 370[1913] HCA 60
CAL No 14 Pty Ltd v Motor Accidents Insurance BoardCAL No 14 Pty Ltd v Scott (2009) 239 CLR 390[2009] HCA 47
Carey v Australian Broadcasting Corp (2012) 84 NSWLR 90[2012] NSWCA 176
Casley v Australian Broadcasting Corporation (2013) 39 VR 526[2013] VSCA 182
Casley v Australian Broadcasting Corporation [2013] VSC 251
Cave v Robinson Jarvis & Rolf [2002] 2 All ER 641[2002] UKHL 18
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384[1997] HCA 2
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297[1981] HCA 26
Director of Public Prosecutions (Cth) v Thomas (2016) 315 FLR 31[2016] VSCA 237
Director of Public Prosecutions v George (2008) 102 SASR 246[2008] SASC 330
Donovan v Gwentoys Ltd [1990] 1 WLR 4721 All ER 1018
Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157
[1917] HCA 64
Minister for Immigration and Border Protection v Kumar (2017) 91 ALJR 466
[2017] HCA 11
Noonan v MacLennan [2010] Qd R 537
[2010] QCA 50
O'Sullivan v Farrer (1989) 168 CLR 210
[1989] HCA 61
Oshlack v Richmond River Council (1998) 193 CLR 72
[1998] HCA 11
Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
[1998] HCA 28
Public Transport Commission v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336
[1991] HCA 21
Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628
[1987] HCA 57
State of Queensland v O'Keefe [2016] QCA 135
State of Queensland v Stephenson (2006) 226 CLR 197
[2006] HCA 20
SZTAL v Minister for Immigration and Border Protection
SZTGM v Minister for Immigration and Border Protection (2017) 91 ALJR 936
[2017] HCA 34
Western Australian Planning Commission v Southregal Pty Ltd (2017) 259 CLR 106
[2017] HCA 7
Zhao and Jin v Commissioner of the Australian Federal Police (2014) 43 VR 187
Judgment (18 paragraphs)
[1]
SWCA 174
Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Ghosh v Ninemsn Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334
Hall v Jones (1942) 42 SR (NSW) 203
Houda v New South Wales [2012] NSWSC 1036
In re Davis (1947) 75 CLR 409; [1947] HCA 53
IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30
Jamieson v Chiropractic Board of Australia [2011] QCA 56
Johnston v Holland (No 2) [2017] VSC 597
M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 146; [2003] FCAFC 131
Macatangay v New South Wales (No 2) [2009] NSWCA 272
Metropolitan Coal Co of Sydney Ltd v Australian Coal and Shale Employees' Federation (1917) 24 CLR 85; [1917] HCA 64
Minister for Immigration and Border Protection v Kumar (2017) 91 ALJR 466; [2017] HCA 11
Noonan v MacLennan [2010] Qd R 537; [2010] QCA 50
O'Sullivan v Farrer (1989) 168 CLR 210; [1989] HCA 61
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Public Transport Commission v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28
Rayney v State of Western Australia (No 3) [2010] WASC 83
Re Rouss (1917) 116 NE 782
Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611
Ritson v Gay and Lesbian Community Publishing Ltd [2012] NSWSC 483
Saraswati v R (1991) 172 CLR 1; [1991] HCA 21
Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628; [1987] HCA 57
State of Queensland v O'Keefe [2016] QCA 135
State of Queensland v Stephenson (2006) 226 CLR 197; [2006] HCA 20
SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 91 ALJR 936; [2017] HCA 34
Western Australian Planning Commission v Southregal Pty Ltd (2017) 259 CLR 106; [2017] HCA 7
Zhao and Jin v Commissioner of the Australian Federal Police (2014) 43 VR 187; [2014] VSCA 137
Texts Cited: Civil Law (Wrongs) Amendment Bill 2005 (No 2), Second Reading Speech, Australian Capital Territory Legislative Assembly, Parliamentary Debates (Hansard), 15 December 2005
Defamation Amendment Bill 2002, Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 12 November 2002
Defamation Bill 2005, Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 September 2005
Defamation Bill 2005, Second Reading Speech, Queensland Legislative Assembly, Parliamentary Debates (Hansard), 25 October 2005
Defamation Bill 2005, Second Reading Speech, South Australian House of Assembly, Parliamentary Debates (Hansard), 2 March 2005
Defamation Bill 2005, Second Reading Speech, Victorian Legislative Assembly, Parliamentary Debates (Hansard), 7 September 2005
Defamation Bill 2006, Second Reading Speech, Northern Territory Legislative Assembly, Parliamentary Record No 5 (Hansard) Volume LXXVI, 22 February 2006
Explanatory Note to the Model Defamation Provisions
Model Defamation Provisions
Category: Principal judgment
Parties: Luke Barrett (Applicant)
TCN Channel Nine Pty Ltd (Respondent)
Representation: Counsel:
T Molomby SC and L Goodchild (Applicant)
B McClintock SC and M Richardson (Respondent)
[2]
Solicitors:
Brydens Lawyers Pty Limited (Applicant)
Mark O'Brien Legal (Respondent)
File Number(s): 2016/384753
Publication restriction: No
Decision under appeal Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Common Law
Citation: [2016] NSWSC 1663
Date of Decision: 28 November 2016
Before: Davies J
File Number(s): 2015/307417
[3]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[4]
HEADNOTE
[This headnote is not to be read as part of the Judgment]
The appellant, Luke Barrett, sought leave to appeal from a decision of Davies J in which his Honour dismissed the appellant's motion seeking an extension under s 56A of the Limitation Act 1969 (NSW) (Limitation Act) of the one year limitation period prescribed by s 14B of the same Act, to bring defamation proceedings against the respondent, TCN Channel Nine Pty Ltd (Channel Nine).
On 29 June 2013 the appellant and a friend, Jake Innes, were socialising at the Bradbury Hotel where they had a number of drinks. At about 11.30pm they left and travelled north on the Hume Highway in a car. Their car was speeding and, after a police pursuit, collided with a guard rail on the right hand side of an exit ramp. Mr Innes suffered such serious injuries that he died within a relatively short period of time of the accident. The appellant was ejected from the car, thrown several metres away and suffered serious injuries including brain trauma. He was unable to recall the incident, in particular, whether he or Mr Innes had been driving.
On 24 February 2014 a short promotional video entitled "Driver regret - 9 News Sydney" was published on a number of occasions on Channel Nine. On the same day, the same video was uploaded to YouTube, the Nine News Facebook page and Twitter, and at 6pm a news segment was shown on Nine News in which the appellant appeared to agree with a journalist's statement that he had killed his best mate in the accident.
The appellant first consulted a solicitor on 10 March 2014 with a view to pursuing personal injury proceedings. An initial police report obtained by the solicitor indicated that he was the driver of the vehicle. However, the findings from a subsequent coronial inquest, published on 27 February 2015, identified Mr Innes as the driver. Following a conference with counsel on 12 May 2015, the appellant's solicitor offered to act on his behalf in a defamation claim against Channel Nine. On 19 May 2015 the appellant gave the solicitor instructions to investigate and prosecute a defamation case against Channel Nine.
The statement of claim commencing defamation proceedings against Channel Nine was filed on 20 October 2015. There was no explanation as to why it was filed on that date, rather than earlier in the period after the appellant gave instructions to pursue the defamation case. Applying the one year limitation period for defamation causes of action running from the date of the publication of the matter complained of in s 14B of the Limitation Act, the proceedings ought to have been instituted by 23 February 2015. The appellant sought an extension of the limitation period under s 56A of the Limitation Act. Pursuant to s 56A(2), in order to obtain such an extension, the applicant must establish that "it was not reasonable in the circumstances…to have commenced an action in relation to the matter complained of within 1 year from the date of publication" (not reasonable test). Once this has been established, the Court "must…extend the [one year] limitation period…to a period of up to 3 years running from the date of the publication."
The primary judge held that the appellant had satisfied the not reasonable test because had he and his solicitor turned their minds to s 345 of the Legal Profession Act 2004 (NSW) with regard to the defamation proceedings they would not properly have been able to commence proceedings during the 12 months following publication of the matter complained of. It was only when the Coroner's report was published shortly after the end of the 12 month period that the provisions of the Legal Profession Act were able to be satisfied.
The primary judge granted an extension of the limitation period, but only until 30 June 2015, being 6 weeks after the appellant gave instructions for the investigation and prosecution of the defamation case. In his Honour's opinion, that period allowed for the late conference with counsel and six weeks to draft and file originating process. The unexplained period of delay between when the appellant gave instructions to commence the proceedings and their commencement, told against a discretion being exercised in his favour to extend the limitation period to the date when the statement of claim was filed.
In so doing, his Honour rejected the appellant's submission that, once he satisfied the not reasonable test, the Court must extend the limitation period to the date the statement of claim was filed. Rather, his Honour followed dicta of Chesterman JA in Noonan v MacLennan [2010] Qd R 537; [2010] QCA 50, to the effect that s 56A(2) conferred a discretion as to the length of any extension of the limitation period and that it would not be "a proper exercise of [the] discretion to extend time beyond the period within which it was thought unreasonable to have sued." (Noonan test)
The principal issue on appeal was whether, after finding that the appellant had satisfied the not reasonable test, the primary judge erred in not granting a "mandatory" extension to the date the appellant filed his statement of claim, rather than limiting it to a period after the one year from the date of publication within which it was not reasonable for the appellant to have commenced the proceedings.
Held, granting leave to appeal and dismissing the appeal, per McColl JA (Simpson and Payne JJA agreeing):
(1) The meaning of s 56A(2) is to be discerned from its text, context and purpose, regarding context in its widest sense, as including such things as the existing state of the law and the mischief which one may discern the Limitation Act was intended to remedy: [64] - [68].
SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 91 ALJR 936; [2017] HCA 34 applied.
(2) Section 56A(2) confers a general discretion as to the length of any extension of the limitation period, confined only by the scope and purposes of the Limitation Act, in the latter respect being confined to the extent any extension cannot exceed three years from the date of publication, and to be exercised in the context of the rationales for the existence of limitation periods: [75], [82], [106], [108], [119].
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25; O'Sullivan v Farrer (1989) 168 CLR 210; [1989] HCA 61 applied.
Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; Jamieson v Chiropractic Board of Australia [2011] QCA 56; Casley v Australian Broadcasting Corporation (2013) 39 VR 526; [2013] VSCA 182; State of Queensland v O'Keefe [2016] QCA 135 followed.
Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611; Johnston v Holland (No 2) [2017] VSC 597 discussed.
(3) The Noonan test should be rejected to the extent it imposes a fetter on the exercise of an unfettered discretion: [92] - [105], [113] - [118].
Noonan v MacLennan [2010] Qd R 537; [2010] QCA 50 discussed.
(4) The primary judge erred to the extent that he applied the Noonan test. However, his Honour reached the same conclusion by applying a general discretion in terms which conform to the discretion conferred by s 56A(2) such that it was unnecessary to re-exercise the s 56A(2) discretion: [4], [106].
[5]
Judgment
McCOLL JA: The applicant, Mr Luke Barrett, seeks leave to appeal from a decision of Davies J in which his Honour dismissed the applicant's motion seeking an extension under s 56A of the Limitation Act 1969 (NSW) (Limitation Act) of the one year limitation period prescribed by s 14B of the same Act, to bring defamation proceedings against the respondent, TCN Channel Nine Pty Ltd (Channel Nine). [1] His Honour so acted because he concluded that an unexplained period of delay between when the applicant gave instructions to his lawyers to commence such proceedings and the commencement of those proceedings, told against a discretion being exercised in his favour to extend the limitation period to the date when the statement of claim was filed.
Leave to appeal was required because the order below was interlocutory. [2] The application for leave to appeal was heard concurrently with the appeal so that, if leave to appeal was granted, the argument on the application would be treated as the argument on appeal. I would grant leave to appeal as the question whether s 56A(2) confers a discretion as to the length of the extension of the limitation period for a defamation cause of action has not been determined in this Court, and has been the subject of different conclusions of first instance judges of this Court. [3] Further, although the order below was interlocutory, it was final in effect. [4]
The central issue for determination is whether, as the appellant contends, after finding that the appellant had discharged the onus of demonstrating that it was not reasonable for him to have commenced the defamation proceedings within one year from the date of publication, [5] his Honour erred in not granting a "mandatory" extension to the date the appellant filed his statement of claim, rather than limiting it to a period after the one year from the date of publication within which it was not reasonable for the appellant to have commenced the proceedings.
For the reasons that follow, I would hold that once an applicant for an extension of the defamation limitation period satisfies the court that it was not reasonable for him or her to have commenced such proceedings within one year from the date of publication, while the court must then extend the limitation period, s 56A(2) confers a general discretion as to the length of that extension. The discretion so conferred is confined only by the scope and purposes of the Limitation Act, in the latter respect being confined to the extent any extension cannot exceed three years from the date of publication, and to be exercised in the context of the rationales for the existence of limitation periods. Although the primary judge applied what I refer to below as the not reasonable test to the question of the period of the extension of the limitation period (and, with respect, erred in so doing), he also reached that conclusion by applying a general discretion. In so doing, his Honour cannot be said to have acted in a manner extraneous to the purpose of s 56A(2).
[6]
Legislative framework
Section 14B of the Limitation Act provides:
"14B Defamation
An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of."
Section 56A provides:
"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)."
I will describe the question whether it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the date of the publication as the "not reasonable test" and the question as to the length of any extension the "discretionary test".
Pursuant to s 63 of the Limitation Act, subject to s 63(2), on the expiration of a limitation period fixed by or under that Act for a cause of action to recover, relevantly, any damages, the right and title of the person formerly having the cause of action to the damages is extinguished, as against the person against whom the cause of action formerly lay.
Both the one year limitation period for which s 14B of the Limitation Act provides and Division 2A (Defamation) in which s 56A is found, were inserted into that Act at the time the Defamation Act 2005 (NSW) (2005 Act) was enacted. [6] The objects of the 2005 Act, as found in s 3(d), include the promotion of "speedy and non-litigious methods of resolving disputes about the publication of defamatory matter."
[7]
Legislative history
As I explained in Fairfax Media Publications Pty Ltd v Kermode, [7] "[t]he 2005 Act and its interstate counterparts were the product of an agreement between the Attorneys General of the States and Territories to support the enactment in their respective jurisdictions of uniform model provisions in relation to the law of defamation." Relevantly, for present purposes, among the principal features of the model provisions described in the Explanatory Note to the Model Defamation Provisions, which "was adopted verbatim as the Explanatory Memorandum to the Bill which became the 2005 Act", [8] was "(h) the imposition of a limitation period for civil actions for defamation of 1 year, subject to an extension (in limited circumstances) to a period of up to 3 years following publication…".
Clause 48 (Amendment of other Acts) of the Explanatory Note provided:
"Schedule 4 has effect.
Jurisdictional note. Each jurisdiction is to make provision for the amendment of existing legislation as a consequence of the enactment of the new legislation, including (in particular) provisions in relation to the limitation period for defamation."
Schedule 4 (Amendment of other Acts) in the Model Defamation Provisions explained:
"Statute of limitations
Schedule 4.1 amends the [insert relevant Act of jurisdiction]* to provide that, generally, a civil action for defamation must be commenced within 1 year following the date of publication of the matter of which the plaintiff complains. However, a court must extend this limitation period to a period of up to 3 years if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced the action within the 1 year period.
Under their existing laws, both New South Wales and the Australian Capital Territory provide for a 1 year limitation period that can be extended for a limited further period. In South Australia and Western Australia actions for slander are subject to a limitation period of 2 years. In other cases and in other jurisdictions, the limitation period is generally 6 years."
Schedule 4.1 relevantly provided:
"4.1 Statute of limitations
Jurisdictional note. Provisions along the following lines should be inserted in the statute of limitations of each jurisdiction:
1 Proceedings generally to be commenced within 1 year
(1) An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.
(2) However, 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 subsection (1) to a period of up to 3 years running from the date of the publication."
[8]
Factual background
The following statement of facts emerges from the primary judgment.
On 29 June 2013 the appellant and his close friend and workmate, Mr Jake Innes, were socialising at the Bradbury Hotel where they had a number of drinks and played gaming machines and pool.
At about 11:30pm the two of them left the Bradbury Hotel and travelled north on the Hume Highway in a car. The car was speeding, despite wet conditions. The car was noticed by a police vehicle which pursued it. Near the exit at Denham Court the car exited an off ramp, collided with the guard rail on the right hand side and suffered extensive damage.
Mr Innes was found lying inside the car with his head against the driver's door. He suffered such serious injuries including a depressed skull fracture and an unstable fracture to the neck that he died within a relatively short period of time of the accident.
The appellant had been ejected from the car and had been thrown several metres away. He received very serious injuries during the accident, including brain trauma, and remained in hospital for ten weeks. He was unable to recall the accident, in particular, whether he or Mr Innes had been driving. His last memory before waking up in hospital was of visiting his sister's place early on the day before the accident. When he woke up in hospital he was told he had been in a car accident. He swore an affidavit to this effect.
On 24 February 2014 a short promotional video entitled "Driver regret - 9 News Sydney" was published on a number of occasions on Channel Nine (the first matter complained of). The same video was uploaded on the same day to YouTube, the Nine News Facebook page and Twitter (the second, third and fourth matters complained of). The fifth matter complained of was a news segment shown on Nine News during the 6pm news on the same day, featuring the appellant in which he appeared to agree with a journalist's statement that he had killed his best mate in the accident.
On 10 March 2014 the appellant first consulted his present solicitor, with an apparent view to obtaining compensation for the injuries suffered in the accident. Since he could not advise the solicitor whether or not he was the driver of the vehicle, the solicitor set about obtaining a copy of the police report. The solicitor said in her affidavit that she was instructed at that time as to various publications on television and social media regarding the accident which resulted in the death of Mr Innes, depicting the appellant as being at fault.
[9]
Primary judgment
The defamation proceedings relate to five publications of the same, or a similar, video (matter complained of) on Nine News, YouTube, the Nine News Facebook page and Twitter on 24 February 2014 promoting a news item concerning a motor vehicle accident in which the appellant and a friend (who died from injuries suffered in the accident), were involved. The statement of claim filed on 20 October 2015 identified the first, third, fourth and fifth matters complained of. An amended statement of claim was filed on 7 January 2016, adding the second matter complained of. Although separate imputations were pleaded in relation to each matter complained of, common to all imputations was the imputation "that the plaintiff killed his best friend."
Applying the one year limitation period for defamation causes of action running from the date of the publication of the matter complained of, the defamation proceedings ought to have been instituted by 23 February 2015. The statement of claim was filed almost eight months out of time.
The appellant sought an extension of the limitation period under s 56A for the bringing of the five counts in defamation. An extension of the limitation period was only needed for the second, third and fourth counts to the extent that they involved publication more than 12 months before 7 January 2016 (count 2) or 20 October 2015 (counts 3 and 4). Publication had continued of the promotional video on the social media sites. [19]
The primary judge held that the appellant had satisfied the not reasonable test because had he and his solicitor turned their minds to s 345 of the Legal Profession Act 2004 (NSW) with regard to the defamation proceedings they would not properly have been able to commence proceedings during the 12 months following publication of the matter complained of. It was only when the Coroner's report was published shortly after the end of the 12 month period that the provisions of the Legal Profession Act were able to be satisfied. [20]
The primary judge granted an extension of the limitation period, but only until 30 June 2015, being 6 weeks after the instructions were given by the appellant on 19 May 2015 for the investigation and prosecution of a defamation case. [21] In his Honour's opinion, a period of six weeks allowed for the late conference with counsel and a six week period to draft and file the originating process. The effect of this ruling was that the first and fifth matters complained of were statute barred. They were the allegedly defamatory matters broadcast on Channel Nine which had been the most extensively published of all the matters of which the appellant complained.
[10]
Appellant's submissions
The appellant does not challenge the primary judge's characterisation of the period between him instructing his solicitors to investigate and prosecute his defamation case and the commencement of proceedings as "delay". He simply submits that fact is irrelevant.
Rather, the appellant's primary submission is that once he satisfied the first limb of s 56A(2), the primary judge had no discretion as to whether to grant an extension of the limitation period shorter than that sufficient to allow his defamation action to be brought. In other words, the appellant's argument was that once it was held that it was not reasonable for him to have commenced his action within a year of the date of publication, the grant of an extension of the limitation period to the date he filed his statement of claim was mandatory.
The appellant submitted that the construction of s 56A(2) for which he contended was the necessary implication to be drawn from s 56A(1) and the reference in s 56A(2) to "extend the limitation period". He argued that if that was not the correct interpretation, the legislature had engaged in the "bizarre absurdity of specifying a novel test without mentioning at all an important qualification that undermines it." That qualification was that there were then two tests: first the "not reasonable test", then that for the exercise of the discretion.
The appellant submitted if that was the case, the test for the exercise of the discretion became the determinative test for an effective extension of the limitation period, while the role of the "not reasonable" test was reduced to screening cases for consideration according to the discretionary test. He argued that such an interpretation of s 56A(2) undermined the force of the mandate inherent in the use of the word "must", but, rather, interpreted it as if "must" meant "may". He contended that that could not have been the intention of the legislature. Had it been, it would have used the word "may". Accordingly, the use of the word "must" pointed ineluctably to its intention being that for which he contended as being the correct interpretation of s 56A(2).
The appellant submitted that the words "up to three years" in s 56A(2) could not be taken to import a discretion as to the length of any extension of the limitation period but, rather, were simply an acknowledgement, that depending upon the facts of individual cases, the limitation period would need to be extended for varying periods, but in no case was to exceed three years. Without those words, the appellant submitted, there would be an extension of three years in every case which nearly always would be more than necessary.
[11]
Respondent's submissions
The respondent submitted that the interpretation of s 56A for which the appellant contended could not be supported by its text or by authority as, even though there was some slight disagreement as to its nature, all authority was unanimous that s 56A(2) conferred a discretion as to the length of any extension.
The respondent supported the primary judge's construction of s 56A(2). It argued that the natural meaning of the words "up to" in s 56A(2) was to grant the court a discretionary power as to the length of the extension. In addition, it submitted that s 56A(3) did not control the construction of subsection (2), in particular the import of the words "up to" in that provision.
The respondent contended that the logical corollary of the appellant's position was that there was effectively a mandatory extension, such that a plaintiff who discovered a defamation on the first day after the first year lapsed, and accordingly could establish it was not reasonable to commence within that year, could sit on his or her hands, do nothing and wait for two years until the last day before the expiry of the three year limitation, and then file proceedings as of right. It contended that this was an absurd result which would make a mockery of a provision intended to ensure plaintiffs brought defamation proceedings expeditiously. It would have the effect of transferring the discretion from the court to the plaintiff.
The respondent argued that the interpretation for which the appellant contended, that a plaintiff who could establish that it was not reasonable to sue within the first 12 months, obtained an automatic and unfettered right to an extension to whenever he or she commenced defamation proceedings, was not a sensible one. On that interpretation, s 56A(2) required reasonable action during year one, but then permitted plaintiffs to wait as long as they wish during years two and three.
The respondent submitted that s 56A(2) ameliorated the severity of the one year limitation period in s 14B by providing that if at all times during that year it was not reasonable for the plaintiff to sue, there was a prima facie eligibility for an extension of the limitation period albeit with a three year final cut off and the court was required to consider the appropriate period "up to" which any such extension should be granted.
[12]
Consideration
The meaning of s 56A(2) is to be discerned from its text, context and purpose, regarding context in its widest sense, as including such things as the existing state of the law and the mischief which one may discern the Limitation Act was intended to remedy. [29]
"[E]nactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'". [30] Limitation provisions give effect to an underlying policy that "a defendant should be spared the injustice of having to face a stale claim, that is to say one with which he never expected to have to deal". [31] A limitation period is not "an arbitrary cut off point unrelated to the demands of justice or the general welfare of society … [but] represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated." [32]
Conversely, extension provisions constitute "legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case [and whose purpose]…is 'to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.' But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action." [33]
Those rationales include the law's recognition of "the need to commence actions promptly and to prosecute them promptly once commenced", the fact that "as time goes by, relevant evidence is likely to be lost", that "it is oppressive, even 'cruel', to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed", that "people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them", that "[i]nsurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period" and that "the public interest requires that disputes be settled as quickly as possible". [34]
There are divergent views concerning the question whether extension provisions are beneficial or remedial in nature. McHugh J held, in effect, that they were not in Brisbane South. [35] Kirby J held to the contrary in Stephenson. [36] If they are to be regarded as beneficial or remedial, they are to be construed liberally to the extent that to do so is consistent with the statutory language. [37] Nevertheless, "a court or tribunal is not at liberty to give [a beneficial provision] a construction that is unreasonable or unnatural." [38]
[13]
Section 56A(2)
The following propositions concerning the extension provision have been extracted from decisions of this Court and of other intermediate appellate courts, and were not challenged by either party in their application to s 56A(2).
The extension provision "proceeds on the assumption that there may be [relatively unusual] 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 …[t]he burden [being] on a plaintiff to point to [such] circumstances". [39] It poses an objective test, requiring evaluation of "the circumstances as they appear objectively to the court and not 'the circumstances which the plaintiff believed, however unreasonably, to exist'." [40]
Consideration of whether the applicant for an extension of the limitation period has established the not reasonable test "must commence from the position that the [Limitation] Act lays down strict time limits for the commencement of proceedings for damages for defamation", demonstrating that the legislature "has identified some public interest in the speedy commencement and determination of actions for defamation". [41] That public interest "should not be undermined by too ready an acceptance of circumstances that are said to have made it unreasonable to sue within the year." [42] Thus, it has been said that the not reasonable test is a difficult one to satisfy, requiring the applicant to demonstrate the failure to commence the defamation proceedings within the limitation period was the consequence of "relatively unusual", "special" or "compelling" circumstances. [43]
The not reasonable test is itself unusual, requiring the applicant to establish the difficult proposition that it would not have been reasonable to commence a defamation action within the one year limitation period. [44] Also unusually, if the applicant for an extension of the limitation period establishes the not reasonable test, it has been held that s 56A(2) requires the court to extend the period of time in which to bring proceedings. [45] The logic of this, at least from the plaintiff's perspective, is presumably that he or she should not be prejudiced by failing to do something that would not have been reasonable. [46]
The contestable area turns on how the court is required to exercise the obligation to extend the limitation period: whether, as the appellant submits, by extending it to whatever date the plaintiff commenced the defamation proceedings or, as the respondent submits, by exercising a discretion as to the length of the extension.
[14]
The authorities
The issue which arises has been considered in only four appellate decisions.
In Noonan, Keane, Holmes and Chesterman JJA agreed, for separate reasons, that the applicant had failed to satisfy the not reasonable test. However, Chesterman JA also considered what the outcome may have been had the applicant done so. While his Honour held that in that case s 32A(2) required the Court to extend time, he also held that it conferred a discretion as to the length of any extension to be granted. [62] In this respect, his Honour said "[i]t would not have been a proper exercise of discretion to extend time beyond the period within which it was thought unreasonable to have sued." I shall refer to this as the "Noonan test". As is apparent, Chesterman JA's statements were obiter. The brevity of his Honour's statement makes it uncertain, with respect, whether he intended to confine his observation to the circumstances of that case or intended it to be a statement as to the proper interpretation of the Queensland extension provision. If it was the latter, as I have said, I disagree with it.
In Pingel, [63] Fraser JA stated parenthetically that the selection of the period of any extension was discretionary, but did not otherwise comment upon the matter as it was not relevant to the appeal. I assume his Honour was referring to Noonan, as he had discussed Noonan on other issues elsewhere in his reasons. [64] Applegarth J (who dissented on the question whether the applicant for the extension had satisfied the not reasonable test, but not on any statement of principle) also approved Chesterman JA's statement in Noonan to the extent his Honour held there was a discretion as to the length of any extension of the limitation period in his summary of the propositions which may be drawn from that case. [65] Notably, neither Fraser JA or Applegarth J approved the Noonan test, merely referring to a general discretion as to the period of extension.
Applegarth J's summary was referred to with apparent approval in Jamieson, [66] in which the Court of Appeal allowed an appeal from the rejection of an extension application and granted an extension of the limitation period to the date the statement of claim was filed. White JA did not apply the Noonan test, simply stating in terms indicative of the exercise of a general discretion, that the matter was "important to the applicant … [t]here is no prejudice to the Board [and] [i]t is in the interests of justice that the applicant be given an extension of time." [67]
[15]
Conclusion
My conclusion that s 56A(2) confers an unfettered discretion as to the length of any extension of the limitation period does not, of course, mean that it is never open to a court to consider as a relevant factor the period within which it was thought unreasonable for a plaintiff to have sued, by reference to when the proceedings were actually commenced. That is one way of considering the need to commence actions promptly. It follows from my interpretation of s 56A(2), with respect, that the primary judge erred to the extent that he applied the Noonan test. However, his Honour reached the same conclusion by applying a general discretion in terms which conform to that I have identified. In my view, the Court could not hold that his Honour's exercise of his discretion was "definitely extraneous to any objects the legislature could have had in view" in enacting s 56A. [83] It is not, accordingly, necessary to re-exercise it.
[16]
Orders
I propose the following orders:
1. Grant leave to appeal;
2. Direct the appellant to file a notice of appeal in the form of the draft within the White Book within seven days;
3. Dismiss the appeal with costs.
SIMPSON JA: I agree with the orders proposed by McColl JA, for the reasons given by her Honour. I also agree with the additional reasoning of Payne JA.
PAYNE JA: I have had the benefit of reading the reasons of McColl JA in draft. I gratefully adopt her Honour's summary of the facts and the submissions of the parties. I agree with the orders her Honour proposes and her Honour's identification of a discretion in the setting of the date to which the limitation period should be extended under s 56A(2) of the Limitation Act 1969 (NSW). I would prefer briefly to express my own reasons for that conclusion, which are not intended to be inconsistent with her Honour's reasons.
The construction of s 56A(2) of the Limitation Act proposed by the appellant is inconsistent with the text of the section in its context as an exception to the period of limitation of one year provided by s 14B of the Limitation Act. That statutory exception has correctly been described as applying "only in relatively unusual circumstances": Noonan v MacLennan (2010) 2 Qd R 537; [2010] QCA 50 per Keane JA at [15].
The appellant's construction gives no work to do to the phrase "up to 3 years" appearing in s 56A(2). Having satisfied the "not reasonable to have commenced" test throughout the initial period of 12 months, the appellant's construction would have the effect that the Court was then bound to extend the limitation period for a plaintiff during whatever period that plaintiff chose to commence proceedings, subject only to an outer limit of three years. That would be so, regardless of the circumstances in which that subsequent delay occurred. I would reject that construction as giving no work to the words "up to" to do, in the context of a scheme of provisions plainly designed to encourage the timely resolution of defamation disputes.
Where, as in the present case, the court was faced with an unexplained delay of five months after the time that the plaintiff was aware of all the matters relating to the alleged defamation and had access to legal advice about possible causes of action, the appellant's construction would have the effect that the primary judge was bound to treat as irrelevant that unexplained delay of five months in commencing proceedings. I would strain to avoid that result.
[17]
Endnotes
Barrett v TCN Channel Nine Pty Ltd [2016] NSWSC 1663.
Supreme Court Act 1970 (NSW) s 101(2)(e); Macatangay v New South Wales (No 2) [2009] NSWCA 272 (at [11]) per curiam (Allsop P, Tobias JA and Handley AJA).
I will accordingly refer to the applicant as the appellant in the balance of these reasons.
Ghosh v Ninemsn Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334 (at [39]) per Macfarlan JA (Leeming JA and Adamson J agreeing).
Primary judgment (at [54]).
2005 Act, Sch 5, cl 5.2 [1] and [2]. However, as I explain later in these reasons, New South Wales had enacted a one year limitation period for defamation actions in 2002 in an earlier form of s 14B which the current form replaced.
See s 44A, Limitation Act 1981 (NT); s 20A, Defamation Act 2005 (TAS); s 37, Limitation of Actions Act 1936 (SA); s 21B, Limitation Act 1985 (ACT); s 23B, Limitation of Actions Act 1958 (Vic); s 32A, Limitation of Actions Act 1974 (Qld). The only real outlier in this respect is Western Australia which is the only jurisdiction which did not adopt the phrase "to a period of up to 3 years running from the date of the publication" in respect of the extension of the limitation period: see s 40, Limitation Act 2005 (WA).
Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 (at 637 - 638) per curiam (Wilson, Deane, Dawson, Toohey and Gaudron JJ); [1987] HCA 57; cf Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Brisbane South) (at 561) per Kirby J; [1996] HCA 25.
As can be seen, s 14B(3) was the genesis of Sch 4.1, cl 1(1).
Section 56A(4) as inserted by the 2002 Act was clearly the basis of Sch 4.1, cl 1(2).
Defamation Amendment Bill 2002, Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 12 November 2002 (at 6560).
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 September 2005 (at 17641).
Second Reading Speech, Australian Capital Territory Legislative Assembly, Parliamentary Debates (Hansard), 15 December 2005 (at 4886).
[18]
Amendments
29 November 2017 - Coversheet - Year added to legislation.
[21] Year added to legislation.
[97] Amended reference to legislation.
[109] Typographical error corrected.
[111] Typographical error corrected.
[116] Typographical error corrected.
Endnote 31 Typographical error corrected.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 29 November 2017
I would, accordingly, dismiss the appeal with costs.
Despite the intention that the Model Defamation Provisions be adopted in each State and Territory, as Martin CJ explained in Rayney v State of Western Australia (No 3), [9] that did not occur. However, each of the relevant limitation acts of all jurisdictions other than Western Australia either adopted the Sch 4.1, cl 1 draft precisely, or, at least, adopted substantially the same version of cl 1(2) in Sch 4.1 as became s 56A(2) of the Limitation Act. The only differences are as to syntax, rather than substance. [10] In these reasons, where necessary, I refer to the like provisions to s 56A(2) in those other jurisdictions as the "extension provision".
Not all, however, have the same version of s 56A(1) or (3), neither of which appeared in Sch 4.1. Nothing turns on this, in my view (nor on either party's submissions), to the extent that decisions of other jurisdictions with an extension provision comparable to s 56A(2) have considered that provision's interpretation. [11]
Prior to the enactment of the 2005 Act, New South Wales had already adopted a one year limitation period for defamation actions when it passed the Defamation Amendment Act 2002 (NSW) (2002 Act). The 2002 Act inserted a new s 14B into the Limitation Act which applied (subject to a transitional provision) to defamation causes of action which accrued after the commencement of the section, subsection (3) of which provided:
"(3) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of one year running from the date on which the defamatory matter was published." [12]
The 2002 Act also introduced a new s 56A relevantly in the following terms:
"56A Extension of limitation period by court
(1) Except as provided by subsection (2), this section applies to a cause of action based on the publication of defamatory matter that accrues after the commencement of this section.
…
(3) A person claiming to have a cause of action to which this section applies may apply to the court for an order extending the limitation period for the cause of action.
(4) After hearing such of the persons likely to be affected by the application as it sees fit, the court may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines. However, the court cannot extend the period beyond 3 years running from the date on which the defamatory matter concerned was published." [13]
In the Second Reading Speech in the New South Wales Legislative Assembly to the Defamation Amendment Bill 2002 which became the 2002 Act, the Hon Mr Stewart, Parliamentary Secretary, speaking on behalf of the Attorney General, said the following in relation to the limitation period:
"To encourage plaintiffs to seek to vindicate their reputations at the earliest possible opportunity, the bill will insert a new section 14B into the Limitation Act 1969. The new section will shorten the limitation period for bringing a defamation action from six years to one year, with a discretion to extend the period in appropriate cases. To ensure that the one-year limitation period is not extended by the courts to an unreasonable extent, the bill provides for a new section 56A of the Limitation Act that will enable the court to extend the limitation period, when the interests of justice require, to a maximum of three years from the date of publication." [Emphasis added.] [14]
In the Second Reading Speech to the Defamation Bill 2005 which became the 2005 Act, the Attorney General, the Hon Bob Debus MP, relevantly said:
"The relevant limitation period provisions have also been updated, but are essentially unchanged. The limitation period will continue to be one year from the date of publication, extendable to three years if the court considers it was not reasonable in the circumstances for the plaintiff to have commenced the action in time." [15]
Mr J Stanhope, the Chief Minister of the Australian Capital Territory, said the following in respect of the limitation period provisions relating to defamation causes of action introduced by the Civil Law (Wrongs) Amendment Bill 2005 (No 2):
"The bill would set a limitation period of one year from commencement of civil defamation actions. Early correction, restoration of reputation and resolution of defamation disputes is in the interests of the parties and the public." [16]
Similar statements concerning the desirability of early and/or speedy resolution of disputes were made by the relevant Ministers in most other jurisdictions. [17] In addition, the Attorney General for Victoria, the Hon Rob Hulls MP, attributed the one year limitation period to "empirical research referred to by the New South Wales Law Reform Commission in its 1995 report on defamation law which showed that 80 per cent of defamation actions were commenced within six months of the date of publication and only 8 per cent of proceedings commenced more than 12 months from the date of publication." [18]
The solicitor obtained a copy of a police report which indicated that the appellant was the driver of the vehicle. On 22 May 2014, she sought advice from counsel. By a letter dated 22 May 2014, the solicitor informed the appellant of counsel's advice that the appellant did not enjoy reasonable prospects of success because he was the driver of the vehicle. This appears to have been in relation to any claim for personal injuries. The letter advised about time limitations for the lodgement of a personal injury claim form and commencement of proceedings for personal injury damages, but advised that the solicitors would proceed to close their file.
On 18 and 19 February 2015 a coronial inquest into the accident was held. On 27 February 2015 the Coroner's findings were published, including, relevantly, that the car had been driven by Mr Innes and identifying the evidence that pointed to that conclusion.
On 20 March 2015 the solicitor met the appellant and his grandfather at the latter's request. A copy of the Coroner's report was provided to the solicitor who, after learning of the Coroner's findings, arranged a conference between the appellant and Ms Louise Goodchild of counsel to take place on 12 May 2015.
Following this conference, on 14 May 2015 the principal of the firm of solicitors wrote to the appellant referring to the conference with Ms Goodchild. The letter said that Ms Goodchild had brought to the solicitor's attention a Channel Nine program which covered the subject accident and was defamatory of the appellant. The solicitor offered to act on behalf of the appellant in a defamation claim against Channel Nine.
On 19 May 2015 formal instructions were provided by the appellant to investigate and prosecute a defamation case.
The statement of claim was filed on 20 October 2015, and an amended statement of claim on 7 January 2016.
In so doing, his Honour rejected the appellant's submission that once he demonstrated that it was not reasonable to have commenced an action within one year, the Court must extend the time and thereafter there was no discretion involved in that process. [22] Rather, his Honour followed dicta of Chesterman JA in Noonan v MacLennan, [23] to the effect that s 56A(2) conferred a discretion as to the length of any extension of the limitation period and that it would not be "a proper exercise of [the] discretion to extend time beyond the period within which it was thought unreasonable to have sued."
The fact that the appellant's lawyers delayed in commencing proceedings for five months after receiving instructions was unexplained and therefore the appellant had failed to demonstrate that it was not reasonable to institute the proceedings until 20 October 2015. [24]
His Honour followed Noonan in preference to McCallum J's conclusion in Riske v Oxley Insurance Brokers Pty Ltd (No 2) [25] that "there is no warrant in the language of [s 56A] for concluding that the so-called discretion as to the term of the extension is constrained by the 'not reasonable' test which applies in the first step in the task." However, her Honour accepted "that the determination of the appropriate term of the extension should be informed by the expectation that a party would ordinarily be expected to take prompt steps to obtain access to the information required to commence proceedings".
The primary judge held that even if he had applied McCallum J's alternative approach in Riske "and take[n] the view that there was a general discretion which would, presumably, be informed by a just and reasonable test (the test most usually applied to extend limitation periods) the Plaintiff would not satisfy that test in the absence of any explanation for the delay from May to October 2015." [26]
The appellant also submitted that the limited operation of s 56A(2) for which he contended was supported by s 56A(3), in particular the use in that subsection of the word "circumstances". He argued that was a reference to the circumstances specified in s 56A(2), and that anything else was positively excluded.
The appellant submitted that the genesis of the proposition that there is a discretion as to the period of the mandatory extension of the limitation period which follows from satisfaction of the not reasonable test, rather than an obligation to extend to a time sufficient to allow the action to be brought, lay in Chesterman JA's reasons in Noonan. [27] He argued that his Honour's statement was "weak obiter" which was "short, dogmatic, and entirely without reasons or analysis". Rather, the appellant submitted, s 56A prescribed only one test. He also contended that his Honour's statement had been applied by other courts without any reasons or analysis.
The appellant submitted that Chesterman JA's statement in Noonan of the test for the exercise of the discretion could not be correct. If it was it undermined the legislation and, in effect, rewrote it. If the limitation period could not be extended beyond the period within which it was not reasonable to have sued, then the applicant for an extension bore the burden of having to establish not merely that it was not reasonable to have commenced proceedings within the period of one year, but, rather, that it was not reasonable to have commenced proceedings over the whole period up to the date on which the action was begun.
The appellant submitted that the approach for which he contended which, in effect, would permit a plaintiff to wait up to three years before commencing defamation proceedings, reflected the approach under traditional limitation periods of six years which enabled the plaintiff to wait five years and eleven months before commencing proceedings. He argued that such an interpretation could be seen to reflect a political compromise embedded in the Model Defamation Provisions having regard to the fact that prior to the introduction of s 56A(2) and its equivalent in the other jurisdictions, for all those jurisdictions other than this State (by virtue of the introduction of s 14B in 2002) and the ACT (by virtue of the introduction of s 21B of the Limitation Act 1985 (ACT) [28] ) the scheme involved the reduction of the traditional limitation period from six years to three, with a fairly rigorous test requiring commencement in most cases within a year of publication.
The appellant submitted there was no inconsistency or illogicality in being willing to continue the approach that previously applied to the six year limitation period for the reduced period of three years, while simultaneously prescribing a test that required most cases to begin within a year. If there was thought to be an inconsistency, he argued, that was a reason for amending the section, not for interpreting it to say something that not only did it plainly not say, but also that negated the mandatory force of what it did say.
The respondent submitted that Chesterman JA's conclusion, that the Queensland extension provision conferred a discretion, was sound as otherwise, as the primary judge observed, the words "up to" would be otiose.
The respondent challenged the appellant's submission that if the Noonan approach was correct, the test for the exercise of the discretion became "the determinative test for an effective extension of time". It submitted the discretionary test only became relevant once the plaintiff discharged the not reasonable onus in respect of the first 12 months. It did not, however, embrace the proposition that exercise of the discretion as to the length of any extension of the limitation period was governed by the same test as the first 12 months as Chesterman JA appeared to hold in Noonan.
The respondents also challenged the appellant's submission concerning "must" meaning "may" on the primary judge's approach. It submitted that if that was the case, the Court would not be obliged to extend time if the not reasonable test was discharged. It accepted that an extension was obligatory, subject to there being a discretion as to its length.
Finally, the respondent submitted that the appellant's suggestion that his interpretation was consistent with a political compromise represented in the introduction of the one year limitation period for defamation causes of action was not supported by the Second Reading Speeches for the Model Defamation Provisions and would subvert the whole point of the introduction of the one year limitation period.
In my view, the text of s 56A(2) does not support the construction for which the appellant contends.
The not reasonable test confines the court's consideration to the circumstances of the plaintiff's failure to commence the defamation action within the one year limitation period. Once that test is satisfied, there is no focus on any particular act or date. Rather, the period of the extension which the court must grant is at large, save to the extent that it must not exceed three years from the date of publication. The generality of the words "extend the limitation period … to a period of up to 3 years…" [emphasis added] clearly, in my view, gives the court a discretion as to the period of the extension. The court is required to choose the date to which the limitation period should be extended.
Contrary to the appellant's submission, s 56A(3) does not detract from this conclusion. Rather, the meaning of s 56A(3) depends on the interpretation given to s 56A(2). [47] Properly understood in the hierarchy of s 56A, while s 56A(3) limits the circumstances in which an extension of the limitation period for a defamation cause of action may be ordered, it does so in circumstances which permit the court to exercise a discretion as to "up to" when that period will be extended.
The appellant's proposed interpretation that, once the not reasonable test was satisfied, s 56A(2) mandated an extension of the limitation period to the date the appellant commenced proceedings, lent itself to a precise formulation absent from s 56A(2), which tells against that being its proper interpretation. [48]
It might, of course, also be said that, just as one would expect that if the extension provision was intended to have the precise focus for which the appellant contended the legislature would have said so, so, too, would one expect that if the legislature had intended the court had a discretion as to the period for which the limitation period could be extended, that, too, could have been given more precise expression. [49]
However, the danger of seeking to define more precisely a discretionary extension than by the use of broad words such as "up to" is that there is then a risk the discretion is treated as a confined one.
Further, the construction of s 56A(2) which I favour is supported by its context, not only in the Limitation Act, but also by reference to the 2005 Act. First, the objects of the 2005 Act to which I have referred concerning speedy methods of resolving disputes about the publication of defamatory matter. Secondly, the Limitation Act provisions complement that object. Taken in conjunction of course with s 14B, s 56A conforms to the pattern in the Limitation Act of there being a general rule for a limitation period for particular causes of action, and an exception to that rule in extension provisions, of which s 56A is an example. [50] Thus other provisions in the Limitation Act, such as s 58, s 59 and ss 60F - 60I, also provide for a threshold test an applicant for an extension must satisfy, but nevertheless give the court a discretion as to whether to extend the limitation period.
The interpretation of s 56A(2) I favour also gives effect to the proposition that extension provisions are an exception to the general rule, permitting the court to alleviate the injustice a plaintiff may face by the imposition of an inflexible limitation period, but weighing that against, among other matters, the prompt commencement and prosecution of defamation proceedings. That rationale does not disappear once the not reasonable test is satisfied. Yet, the construction for which the appellant contends would have the potential to lead to dilatory conduct of defamation proceedings, a consequence contradicted not only by the legislative purpose evident in the 2005 Act as I have said, but, too, by that inherent in s 14B.
In my view, s 56A(2) confers an unfettered discretion as to the length of the extension of the limitation period, a discretion confined only by the scope and purposes of the Limitation Act, in the latter respect being confined to the extent any extension cannot exceed three years from the date of publication, and also by the requirement that the discretion be exercised in the context of the rationales for the existence of limitation periods. [51]
I accept that there may be seen to be some irony in s 56A(2) mandating an extension of the limitation period, but allowing for a discretion as to the length of the extension, exercise of which may lead to an extension which falls short of that which will permit the action to proceed. As McCallum J has observed of the discretionary approach, "in some circumstances, the section mandates the making of an order which has no efficacy." [52]
However, first, as I have said, there are other provisions of the Limitation Act which have a similar structure. Secondly, an interpretation of s 56A(2) which confers a discretion as to the period of any extension of the limitation period recognises the public interest in the speedy determination of defamation actions inherent in the s 14B one year limitation period. Thirdly, conferral of a discretion accepts that the applicant will have satisfied the court that it was not reasonable for him or her to have commenced defamation proceedings in the one year limitation period. The defendant, on the other hand, has been deprived of the benefit of the plaintiff's cause of action having been extinguished by the operation of s 63 of the Limitation Act. The court is then given an unfettered discretion, to be exercised in the manner I have explained, which enables it to take those competing factors into account, albeit not confining its consideration in that respect.
Although I accept that in the ordinary course, "[c]onsideration of a statutory provision's legislative history, and particularly the provision's predecessors, serves to illuminate the meaning most apt to be attributed to it, especially where its meaning appears equivocal", [53] in the present case little can be gained from a perusal of s 56A as inserted by the 2002 Act. The current provision originates in the Model Defamation Provisions. What can be gleaned from that origin is the concern of all the States and Territories that there be speedy commencement of defamation proceedings and a limited extension of the limitation period, effectively up to two years later than its expiry.
The appellant was not daunted by the proposition that his proposed construction of s 56A(2) has unreasonable consequences. As the respondent submitted, it would mean the legislature intended to give an applicant for an extension of the limitation period free rein after satisfying the not reasonable test to prolong the period after the limitation period had expired in which he or she commenced proceedings without the court being able to consider the reasons for when the proceedings were commenced, or any prejudice to the defendant. Nothing in the language of the provision supports attributing such an improbable intention to the legislature.
Contrary to the appellant's submission, and, again, adopting McHugh J's reasons in Brisbane South, "'to qualify is not to succeed'". [54] Rather, in my view, "[t]he object of the discretion [in s 56A(2)] … 'is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case' …[including] look[ing] at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period." [55]
The appellant's submissions tend to demonstrate the erroneous approach McHugh J identified in the Court of Appeal's reasons in Brisbane South. They appear to treat the limitation period as little more than a point of reference and pay no regard to the rationales of limitation periods to which I have referred. They "give no weight to the fact that the [respondent's] potential liability expired at the end of [the one year limitation] period and that to extend the period may result in the imposition of a new legal liability on the [respondent]." [56]
There are other reasons for concluding that s 56A(2) confers a discretion as to the date to which any extension should be granted. Such a construction is consistent with the purpose of limitation periods. [57] It is also consistent with the fact that "the repository of the power is a judge whose functions generally and under [limitation] legislation, often require the exercise of discretions according to the justice of the case". Secondly, "by providing for an extension of the period of limitation, the Act affords an exceptional entitlement, the exercise of which may expose an alleged tortfeasor to liability long after it would have been reasonable to assume that all liability was terminated by the descent of the limitation bar." [58]
Finally, the improbability of the legislature having intended s 56A(2) to have the construction for which the appellant contends, and the consequences to which I refer, tells against accepting it. [59] As McHugh J (Toohey J agreeing) said in Saraswati v R, [60] "while consequences cannot alter the meaning of legislative provisions, they may help to fix their meaning." And, as Jordan CJ said in Hall v Jones, [61] "a Court is entitled to pay the Legislature the not excessive compliment of assuming that it intended to enact sense and not nonsense."
In short, it would be contrary to the scope and object of the Limitation Act to adopt an interpretation of s 56A(2) which paid no consideration to the expiry of the limitation period, or the fact that any extension of that period imposes a new legal liability on the defendant and, in effect, without more, rewards the applicant by extending the limitation period to whenever he or she chooses to commence the proceedings.
The conclusion I have reached is supported by the interstate authorities discussed below with which I agree, save to this extent that, as will be apparent, I do not agree with Chesterman JA's reasons in Noonan, to the extent that his Honour appears to have held that the extension discretion is constrained by the not reasonable test. That interpretation, in my view, imposes a fetter on the exercise of what, as I have explained, should be an unfettered discretion. A gloss should not be placed on the generality of the s 56A(2) discretion which would detract from the words of the provision by seeking to restrict the circumstances in which it should be exercised.
In Casley v Australian Broadcasting Corporation, [68] Hansen JA (Robson AJA agreeing), dismissed an application for leave to appeal against a decision of Beach J who had refused an application pursuant to s 23B of the Limitation of Actions Act 1958 (Vic) for an extension of the one year limitation period provided for in s 5(1AAA) of that Act on the basis that the applicant had failed to establish the not reasonable test. Beach J had agreed with Applegarth J's analysis in Pingel of Noonan which included accepting Chesterman JA's statement that the extension provision conferred a discretion as to the period of an extension of the limitation period. [69] The applicant sought to challenge that conclusion on the basis that the Queensland authorities (Noonan, Pingel and Jamieson) allowing for a discretion as to the length of the extension were wrongly decided and should not be followed. [70]
Hansen JA rejected that submission, in part applying the principle of judicial comity that intermediate appellate courts are required to observe, as to not departing from the decision of another intermediate appellate court in another jurisdiction on the interpretation of uniform national legislation unless convinced that that interpretation was plainly wrong. [71] His Honour was not so satisfied. He said:
"[73] … It would be a curious result, and one seemingly not consistent with the intention of the uniform law, that on the test in s 23B(2) being satisfied, the limitation period be extended for the whole three year period. That would be open on the applicant's submission, even if such an extension went beyond the time within which, acting reasonably, a proceeding might be commenced. That would seem to deny operation to the words 'up to', and could well operate to allow a potential plaintiff a period of time within which to commence a defamation proceeding that was greater than the limitation period of one year."
The appellant has criticised Hansen JA for failing to recognise that Chesterman JA's statement in Noonan was not a determination of an intermediate appellate court in another jurisdiction. To the extent that his Honour appears to have been of the view that the Marlborough principle applied to his consideration of Chesterman JA's reasons in Noonan I cannot, with respect, agree. I do not understand the Marlborough principle to require an intermediate appellate court to apply obiter of a single judge of another intermediate appellate court, [72] nor the obiter of another intermediate appellate court. [73] Such decisions are not authoritative determinations of an Australian intermediate appellate court. [74]
However the appellant's submission overlooks two matters. First, the fact that in Jamieson, the Court unanimously approved Chesterman JA's conclusion that the extension provision confers a discretion as to the length of any extension of the limitation period. As I have said, in Casley the applicant sought also to challenge the correctness of Jamieson. To that extent, Hansen JA was clearly correct to apply the Marlborough principle. Secondly, in doing so, and in determining the Queensland authorities were not plainly wrong, his Honour gave his own reasons for concluding that the extension provision conferred a discretion as to the length of any extension of the limitation period. [75] I respectfully agree with those reasons.
Finally, in State of Queensland v O'Keefe, [76] the Queensland Court of Appeal (Mullins J (Philip McMurdo JA and Douglas J agreeing)), again accepted that there the Queensland extension provision confers a general discretion as to the length of the extension to be granted. Her Honour did not apply the Noonan test.
Other than these cases, there are several first instance decisions to which the primary judge referred all of which have accepted that the court has a discretion (or as Beech-Jones J described it, is required to make a normative judgment [77] ) as to the period of the extension of the limitation period. Of these decisions, only Beech-Jones J [78] and the primary judge have applied the Noonan test. [79]
In Riske, [80] McCallum J held that there was "no warrant in the language of [s 56A(2)] for concluding that the so-called discretion as to the term of the extension is constrained by the 'not reasonable' test". Accordingly, her Honour rejected the Noonan test. Rather, in her Honour's view, "the determination of the appropriate term of the extension should be informed by the expectation that a party would ordinarily be expected to take prompt steps to obtain access to the information required to commence proceedings".
Most recently, in Johnston v Holland (No 2), [81] John Dixon J held that the Victorian extension provision conferred a discretion as to the length of any extension of the limitation period. His Honour also rejected the Noonan test as not found in the text of the relevant provision. In so doing, his Honour referred to the primary judge's application of the Noonan test in this case, but refused to accept his Honour's analysis in this respect. [82]
As is apparent, the only aspect of the intermediate appellate authorities I consider to be clearly wrong is the Noonan test, which has not been adopted by any other intermediate appellate court. My interpretation of s 56A(2) is consistent with those interstate appellate decisions.
Further, the construction of s 56A of the Limitation Act proposed by the appellant is also inconsistent with intermediate appellate authority from Queensland and Victoria about a provision which is part of uniform model provisions in relation to the law of defamation. Subject to the exceptions explained by McColl JA at [15], all of the States except Western Australia have adopted a provision in substantially the same form as s 56A(2). I would only depart from the construction of that provision identified in the Courts of Appeal of Queensland and Victoria if satisfied that those decisions were clearly wrong. To the contrary, I regard those authorities as correctly decided.
In Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175, Applegarth J at [87] summarised the relevant propositions about the construction of the equivalent Queensland provision:
"[87] 1. The burden is on the applicant for an extension of time to point to circumstances which make it not reasonable in the circumstances to have commenced an action within one year from the date of the publication.
2. The circumstances that might give rise to an extension are left at large.
3. The test posed by s 32A(2) is an objective one. It is not satisfied by showing that the applicant believed that he or she had good reason not to sue.
4. If the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within the one year period, then it must extend the limitation period. Unlike other extension of time provisions, there is no discretion whether or not to extend time. A discretion exists as to the length of the extension to be granted which, in any event, may not exceed three years from the date of the defamatory publication. (italics added)
5. The section requires more of an applicant than to show that it would have been reasonable not to commence an action until after the one year period had expired: the court must be satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within the one year period.
6. The circumstances must be sufficiently compelling to satisfy the court that it was not reasonable in the circumstances to commence an action within the one year period the law ordinarily requires litigants to commence proceedings.
7. Section 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 that time limit." (footnotes omitted)
Mullins J (with whom Philip McMurdo JA and Douglas J agreed) in State of Queensland v O'Keefe [2016] QCA 135 cited this passage with approval and applied it at [35]-[37]. I respectfully agree with her Honour's decision. Far from thinking that her Honour was "clearly wrong", I regard her decision as correct.
With regard to the discussion of Noonan by the primary judge in this case, I doubt that Chesterman JA was intending to express any different test in Noonan to that explained by Applegarth J in Pingel and Mullins J in O'Keefe, but as McColl JA points out, Chesterman JA's statement is in any event obiter. The later Queensland authorities are clear and the exercise of the discretion in a way consistent with that identified by McColl JA is part of the ratio of O'Keefe.
In the Victorian Court of Appeal in Casley v ABC [2013] VSCA 182 , Hansen JA, with whom Robson AJA agreed, rejected a like submission to that made by the appellant in the present case:
"[73] The difficulty confronting this submission is the requirement stated by the High Court that intermediate appellate courts should not depart from the decision of an intermediate appellate court in another jurisdiction on the interpretation of uniform national legislation unless convinced that that interpretation is plainly wrong.[ In my view the impugned construction, that there is a discretion as to the length of an extension, is not plainly wrong. It would be a curious result, and one seemingly not consistent with the intention of the uniform law, that on the test in s 23B(2) being satisfied, the limitation period be extended for the whole three year period. That would be open on the applicant's submission, even if such an extension went beyond the time within which, acting reasonably, a proceeding might be commenced. That would seem to deny operation to the words 'up to', and could well operate to allow a potential plaintiff a period of time within which to commence a defamation proceeding that was greater than the limitation period of one year." (footnotes omitted)
I respectfully agree with Hansen JA's analysis of the equivalent Victorian provision. I also agree with the reasons of McCallum J in Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611 at [37] which I regard as consistent with the test described in the intermediate Courts of Appeal cited above.
It follows for these reasons that I agree with the test to be applied under s 56A(2) of the Limitation Act identified by McColl JA at [75], [79] and [82].
See Dr Peter Toyne, Minister of Justice and Attorney General, Defamation Bill 2006, Second Reading Speech, Northern Territory Legislative Assembly, Parliamentary Record No 5 (Hansard) Volume LXXVI, 22 February 2006: see s 44A, Limitation Act 1981 (NT); the Hon Ms L D Lavarch, Minister for Justice and Attorney General, Defamation Bill 2005, Second Reading Speech, Queensland Legislative Assembly, Parliamentary Debates (Hansard), 25 October 2005 (at 3427); the Hon Mr M J Atkinson, Attorney General, Defamation Bill 2005, Second Reading Speech, South Australian House of Assembly, Parliamentary Debates (Hansard), 2 March 2005 (at 1835, 1840).
Defamation Bill 2005, Second Reading Speech, Victorian Legislative Assembly, Parliamentary Debates (Hansard), 7 September 2005 (at 635).
Primary judgment (at [6]).
Ibid (at [52]).
Ibid (at [59], [62]).
Ibid (at [22], [56]). As shall become apparent, the appellant modified that submission in this Court.
[2010] Qd R 537; [2010] QCA 50 (Noonan) (at [66]) (Keane and Holmes JJA agreeing).
Primary judgment (at [57], [60] - [62]).
[2014] NSWSC 1611 (Riske) (at [38]).
Primary judgment (at [61]).
(At [47], [66]).
Introduced by the Limitation (Amendment) Act 1998 (ACT).
SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 91 ALJR 936; [2017] HCA 34 (at [14]) per Kiefel CJ, Nettle and Gordon JJ, referring with approval to CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 (at 408) per Brennan CJ, Dawson, Toohey and Gummow JJ; [1997] HCA 2.
Brisbane South (at 551) per McHugh J (Dawson J agreeing).
Cave v Robinson Jarvis & Rolf [2002] 2 All ER 641; [2002] UKHL 18 (Cave) (at [6]) per Lord Millett (Lord Mackay of Clashfern and Lord Hobhouse of Woodborough agreeing); Donovan v Gwentoys Ltd [1990] 1 WLR 472 (at 479); 1 All ER 1018 (at 1024) per Lord Griffiths (Lord Bridge of Harwich, Lord Templeman, Lord Oliver of Aylmerton and Lord Lowry agreeing); Brisbane South (at 546) per Toohey and Gummow JJ.
Brisbane South (at 553).
Ibid.
Ibid (at 552 - 553).
Ibid; see also State of Queensland v Stephenson (2006) 226 CLR 197; [2006] HCA 20 (Stephenson) (at [97]) per Heydon J.
(At [51] - [56]); see also Cave (at [5]).
Bull v Attorney-General (NSW) (1913) 17 CLR 370 (at 384) per Isaacs J; [1913] HCA 60.
IW v City of Perth (1997) 191 CLR 1 (at 12) per Brennan CJ and McHugh J; [1997] HCA 30.
Noonan (at [15]) per Keane JA.
Ibid (at [20]) per Keane JA; (at [65]) per Chesterman JA.
Ibid (at [22]) per Keane JA; (at [67]) per Chesterman JA.
Ibid (at [67]) per Chesterman JA; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 (Pingel) (at [44]) per Fraser JA.
Noonan (at [15]) per Keane JA; (at [50] - [51]) per Chesterman JA.
Ibid (at [30]) per Holmes JA (as her Honour then was); see also (at [48]) per Chesterman JA although his Honour's statement in this respect was criticised in Jamieson v Chiropractic Board of Australia [2011] QCA 56 (Jamieson) (at [20]) per White JA (Muir JA and Philippides J agreeing); Pingel (at [34]) per Fraser JA; Carey v Australian Broadcasting Corp (2012) 84 NSWLR 90; [2012] NSWCA 176 (Carey) (at [55]) per Beazley JA (McColl JA and Sackville AJA agreeing).
Noonan (at [47]) per Chesterman JA; Carey (at [55]). The respondent did not challenge this proposition, accepting, no doubt, that it was the subject of binding authority (including I accept in Carey to which I was party).
Notwithstanding this apparent logic, in my view, there is an argument to be advanced for the proposition that, having regard to the content of the power the extension provision confers and the nature and the purpose of the extension of a limitation period, "must" should be read as conferring a discretion: see In re Davis (1947) 75 CLR 409 (at 418 - 419) per Starke J; [1947] HCA 53; Director of Public Prosecutions v George (2008) 102 SASR 246; [2008] SASC 330 (at [191]) per White J (Doyle CJ and Vanstone J agreeing); Metropolitan Coal Co of Sydney Ltd v Australian Coal and Shale Employees' Federation (1917) 24 CLR 85 (at 96 - 97) per Isaacs and Rich JJ; [1917] HCA 64; M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 146; [2003] FCAFC 131 (at [54]) per curiam (Goldberg, Weinberg and Kenny JJ); cf Interpretation Act 1987 (NSW), s 9, although that is subject to any contrary intention which appears in an Act or instrument (s 5, Interpretation Act). However, I am bound by Carey and intermediate appellate court decisions to the contrary which the respondent did not contend were plainly wrong.
Cf Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (at [69] - [70]) per McHugh, Gummow, Kirby and Hayne JJ.
Cf Minister for Immigration and Border Protection v Kumar (2017) 91 ALJR 466; [2017] HCA 11 (Kumar) (at [20]) per Bell, Keane and Gordon JJ.
Cf Kumar; Riske (at [36]) per McCallum J.
Cf Brisbane South (at 553).
O'Sullivan v Farrer (1989) 168 CLR 210 (at 216) per Mason CJ, Brennan, Dawson and Gaudron JJ; [1989] HCA 61; Brisbane South (at 551).
Riske (at [30]); see also (at [37]).
Western Australian Planning Commission v Southregal Pty Ltd (2017) 259 CLR 106; [2017] HCA 7 (at [69]) per Gageler and Nettle JJ.
Brisbane South (at 554).
Ibid; see also (at 544) per Dawson J.
Ibid (at 555).
See Brisbane South (at 546) per Toohey and Gummow JJ; (at 551) per McHugh J (Dawson J agreeing).
Ibid (at 564) per Kirby J - although his Honour was in dissent as to the outcome of the appeal, in my view, his Honour's observations in this respect were consistent with the majority view on this point.
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 (at 320 - 321) per Mason and Wilson JJ; [1981] HCA 26; see also Public Transport Commission v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 (at 350) per Gibbs J; [1975] HCA 28.
(1991) 172 CLR 1 (at 22); [1991] HCA 21, referring to Re Rouss (1917) 116 NE 782 (at 785) per Cardozo J.
(1942) 42 SR (NSW) 203 (at 208) (Halse Rogers and Street JJA agreeing).
Casley v Australian Broadcasting Corporation [2013] VSC 251 (at [28]).
Casley (at [72]).
Casley (at [73]), referring to Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 (at [135]); Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 (at 492); [1993] HCA 15 (Marlborough principle).
CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott (2009) 239 CLR 390; [2009] HCA 47 (at [49] - [51]) per Gummow, Heydon and Crennan JJ; Director of Public Prosecutions (Cth) v Thomas (2016) 315 FLR 31; [2016] VSCA 237 (at [131]) per curiam (Redlich, Santamaria and McLeish JJA).
Cf Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448; [2012] FCA 1355 (at [103]) per Perram J.
Cf Zhao and Jin v Commissioner of the Australian Federal Police (2014) 43 VR 187; [2014] VSCA 137 (at [31]) per curiam (Nettle, Tate and Beach JJA).
Casley (at [73]).
[2016] QCA 135 (at [35]).
Ritson v Gay and Lesbian Community Publishing Ltd [2012] NSWSC 483 (at [25]).
Ibid (at [22] - [25], [61] - [62]).
McCallum J accepted she had a discretion to extend the limitation period in Houda v New South Wales [2012] NSWSC 1036, but did not expressly apply the Noonan test.
(At [38]).
[2017] VSC 597 (at [13], [53] - [57]); see also (at [60] ff).
Ibid (at [72]).
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 (at [22], [31]) per Gaudron and Gummow JJ.