Section 14B of the Limitation Act 1969 (NSW) 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."
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(2) provides the Court with the power to extend the limitation period, subject to the "not reasonable" test:
"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."
The court's role in determining the factual issues is explained in Casley v Australian Broadcasting Corporation [2013] VSCA 182 at [54]:
"The first observation is that the task is to determine if the statutory test is satisfied. That is to say, in the circumstances was it not reasonable for the applicant to have commenced an action within the period of one year from the date of publication. The concentration is upon the circumstances of the particular case. While it is understandable that on occasions judges have essayed an attempt to identify circumstances in which an applicant might satisfy the test, the danger thus introduced is that the example or analogy may come to be treated as in the nature of a gloss on the legislation."
The test is generally agreed to be a high one: Carey v Australian Broadcasting Corporation (2012) 290 ALR 348 at [55], [61]. It does not involve the consideration of any prejudice to a defendant, does not confer a discretion and does not direct attention to whether it was reasonable not to have commenced proceedings, but instead requires the court to be satisfied it was not reasonable to have commenced an action within one year from the date of publication of the defamatory matter. Hislop J summarised the law with respect to s 56A in Cassar v Network Ten Pty Limited [2012] NSWSC 680 at [16] as follows:
""It has been held in respect of s 56A (or its equivalent in other States) that:
(a) the burden that must be discharged is to establish that 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 - Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537; Rayney v Western Australia (No 3) [2010] WASC 83 at [41];
(b) the onus rests with the plaintiff - Rayney [41], Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676; Carey v Australian Broadcasting Corporation [2010] NSWSC 709; (2010) 77 NSWLR 136 at [45];
(c) the test is objective - Noonan [20], Carey [48];
(d) it is a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances - Rayney [41];
(e) if the plaintiff proves the fact then the court is obliged to extend time. Extension in these circumstances is mandatory - Ahmed [28], Carey [45];
(f) section 56A limits the period of extension to an extension "of up to three years running from the date of publication". This has been described as involving the exercise of a discretion in the sense of involving a normative judgment - Ritson v Gay and Lesbian Community Publishing Ltd [2012] NSWSC 483 at [24], [25].""
However, three is a well-recognised reason for extension arises where the plaintiff is unaware of relevant factors concerning the publication within the relevant period, as Simpson J noted in Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [52]; see also Cassar v Network Ten Pty Limited at [19], Han v The Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 at [24] and Wookey v Quigley (No 2) [2010] WASC 209 at [58]. That is effectively what the plaintiff claims here, by reason of the unusual nature of the matter complained of being an anonymous letter placed in letter boxes in the area of Sydney in which his mother lives.
Applications of this kind tend to turn on their facts. In Schlaepfer v Australian Securities and Investments Commission [2017] NSWSC 47 Garling J was satisfied that it was not reasonable for the plaintiffs to have commenced defamation proceedings within the limitation period in circumstances where they were unaware of the publications (see [94]-[97]). Parties are expected to take appropriate steps such as pre-trial discovery in order to ascertain who the anonymous author is (see, for example, Evertz v Report Card Pty Ltd [2016] NSWSC 1298) where the publication is able to be discovered, such as posts on the internet: Clark v Ibrahim [2014] VSC 30 (plaintiffs aware of anonymous posts on the internet); Cassar v Network Ten Pty Ltd (the plaintiff discovered publication when he googled his own name).
However, the nature of anonymous letters in the post boxes of neighbours of the plaintiff's mother would not be readily discoverable in the same way as an internet post. In addition, the plaintiff in these proceedings has been proactive. He commenced proceedings within time in relation to the publication drawn to his attention on 13 September 2016.
In addition, most unusually for an application of this nature, the defendant denied publication in the first two versions of his defence. I consider that a denial of publication in a verified pleading is a strong factor in enabling an applicant for extension of time to succeed.
Mr Goldsmith submits that if leave is granted, his client will be deprived of a significant advantage at the trial and will have to consider pleading justification. That would result in a lengthy trial, which would be contrary to the overriding principles set out in s 56 Civil Procedure Act 2005 (NSW).
These are not factors of relevance to an application such as the present, where discretionary factors play no part on the "not reasonable" test (even if these were sufficiently relevant, which I do not accept).
Taking all of the above factors into account, I am satisfied that the plaintiff should be granted the extension of time sought as well as leave to amend the statement of claim conformably with the draft dated 13 September 2018.
[2]
Costs
Although the granting of an extension of time is generally seen as an indulgence, the circumstances of this case are unusual, for the reasons set out above. Costs should follow the event.
[3]
Orders
1. The plaintiff's Notice of Motion filed 13 September 2018 is granted.
2. The plaintiff has leave to file a Further Amended Statement of Claim in the form served on 13 September 2018.
3. Pursuant to s 56A of the Limitation Act 1969 (NSW) the limitation period for the cause of action pleaded in paragraph 1 of the Further Amended Statement of Claim is extended to 11 August 2017.
4. Pursuant to s 56A of the Limitation Act 1969 (NSW) the limitation period for the cause of action pleaded in paragraphs 2A and 2B of the Further Amended Statement of Claim is extended to the date upon which the leave sought in order 1 is granted plus 1 day.
5. The defendant is to pay the plaintiff's costs of the notice of motion and hearing.
6. Matter stood over to the Defamation List on Thursday 22 November 2018.
[4]
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: 14 November 2018
The plaintiff, who was not required for cross-examination, explained the circumstances in which he came to learn of the matter complained of and to commence proceedings were as follows:
"3. On or about 13 September 2016 I received a telephone call from my mother, Moya Byrne (my "Mother"), with words to the following effect:
My Mother: "The Taylors have shown me a letter they have received making all sorts of accusations about you. It says that a copy has been sent to all of our neighbours. I don't know who else has received it but it is highly embarrassing. It doesn't say who it's from though the person obviously doesn't know anything about our family."
Me: "Can you read it to me?"
4. Jan and Peter Taylor reside at 3 Lobelia Street, Chatswood.
5. At the time of that conversation I was at LAX in Los Angeles, USA waiting to collect my luggage after a flight. A copy of a note I made of the call with my mother is annexed and marked "B" (the redacted portion of the note relates to unrelated matters). The second note on that page relates to a telephone call I received from my brother.
6. Prior to receiving the call from my mother as set out in paragraph 3 above I had no knowledge of the existence of or contents of the Lobelia Street Letter, or the fact that it had been published.
7. From 13 September 2016 I have always believed and understood (and still believe and understand) that the publication of the Lobelia Street Letter occurred in about September 2016. On that basis at all material times I believed and understood that I had until about September 2017 to commence proceedings for defamation against the defendant.
8. On 11 August 2017 I commenced these proceedings seeking damages in relation to the publication of the Lobelia Street Letter.
9. If I was aware that the limitation period in relation to the Lobelia Street Letter expired in about late July 2017 (which I do not accept) I would have commenced these proceedings prior to the expiry of that date."
The plaintiff accordingly commenced proceedings within one year of the publication coming to his mother's attention.
If the evidence of the plaintiff and his mother is accepted, publication occurred in or about early to mid-September 2016. However, the defence gives the date of the letter being placed in the letter box as late July 2016 and the limitation period is accordingly pleaded.
It would be possible (and indeed sensible) for this application to be determined at the trial, where the court has the benefit of hearing the evidence of the parties. Whenever the anonymous letter was placed in the plaintiff's mother's letter box, there could be no publication until a third party had read it (Marshall v Megna; Megna v Tory; Tory v Megna [2013] NSWCA 30 at [329], [330]), and much will turn on the evidence at the trial in relation to this issue. However, Mr Goldsmith opposed the hearing of the application to extend time being deferred to the hearing and, as the application is before me for that purpose, I accordingly have proceeded to hear it.