23 In my view, it pre-empts the question to be determined on the application for leave to say that the abuse has already happened at that stage. Implicit in the power to grant leave under s 23 is the recognition that the commencement of a further proceeding will not amount to an abuse of process in every case.
24 As noted by Hunt J, however, the only true guide to the intention of the legislature is to be found in the language of the relevant provision and the scope and object of the whole statute. As already noted, Hunt J was of the view that nothing in the language of the old statute warranted an interpretation of s 9(3) that proceedings could validly be brought without leave. The same may be said of s 23. The clear language of the section evinces an intention to address the vice of multiple proceedings. It does so by placing the onus on a plaintiff who already has an action on foot first to persuade the court in which the further proceeding is to be brought that it would not be an abuse of process to do so. Although that requires a punctilious approach, it is the approach apparently seen fit to be introduced by the legislature.
25 Accordingly, I do not think that I have power to grant leave retrospectively under s 23 to bring the present proceedings.
26 In case my conclusion on that question is wrong, it is appropriate to indicate that, leaving aside the issue of the limitation period, a grant of leave would, in my view, have been warranted in the present case. Mr Sheahan submitted that any such application must fail in the absence of a full and frank explanation from Mr Carey as to why he did not pursue the proceedings commenced in Western Australia. I am not persuaded that was necessary in circumstances where the writ was never served.
27 During the hearing of the application, Mr Carey undertook to discontinue the proceedings brought in Western Australia (see the plaintiff's further submissions at paragraph 16). In that circumstance, and since the writ has never been served and is no longer valid for service, the ABC has not in fact been beleaguered by a multiplicity of actions.
28 This question is, however, inextricably bound up with the question of the limitation period, to which I now turn.
Application for an extension of time
29 In case my conclusion as to the proper construction of s 23 of the Defamation Act 2005 is wrong, it is appropriate to consider the application for an extension of time. The plaintiff's notice of motion invokes s 56A of the Limitation Act 1969 (NSW), which provides for an extension of the limitation period of up to three years from the date of publication. Mr Sheahan submitted, however, that the application ought more properly be considered under the relevant limitations provisions in the State of Western Australia. The ABC's position on that issue derives from s 11(2) of the Defamation Act 2005 (NSW), which provides:
"If there is a multiple publication of matter in more than one Australian jurisdictional area, the substantive law applicable in the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection must be applied in this jurisdiction to determine each cause of action for defamation based on the publication."
30 It was submitted on behalf of the ABC that Mr Carey's evidence on the application established that he was ordinarily resident in Western Australia at the time of the publication. Further, it was submitted that his reputation was in Western Australia, given that he had worked and lived there for a number of years prior to the broadcast. On that basis, Mr Sheahan submitted that, to the extent that Mr Carey suffered harm as a result of the broadcast, he suffered the greatest harm in that State and that the substantive law of Western Australia must be applied. A limitation law of Western Australia is to be regarded as part of that substantive law: see s 5 of the Choice of Law (Limitation Period) Act 1993 (NSW).
31 Mr Molomby did not dispute the legal analysis underlying that contention, but did not accept that the harm occasioned by the publication as a whole has its closest connection with Western Australia. He noted that, at the time of the publication, Mr Carey was sharing his time equally between Perth and Sydney and was heavily involved with a business undertaking in Sydney. He noted, further, that harm to reputation does not necessarily have its closest connection with the place in which the person is known.
32 Section 11(3) of the Act lists matters the Court may take into account in determining the relevant jurisdiction. It is true that those matters include the place where the plaintiff was ordinarily resident at the time of publication. However, they also include the extent of publication in each relevant jurisdiction and the extent of harm sustained by the plaintiff in each jurisdiction. There is no evidence as to either of those matters before me on the present application.
33 For my part, I doubt whether it is possible to make any reliable determination on the evidence before me as to the jurisdiction with which any harm occasioned to Mr Carey's reputation has its closest connection. Accordingly, I think it is necessary to consider the present application against the limitation provisions of each jurisdiction. Happily, there is substantial similarity between the two tests.
34 Section 56A of the Limitation Act 1969 (NSW) provides:
"(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)."
35 The relevant provisions in Western Australia are ss 15 and 40 of the Limitation Act 2005 (WA). Section 15 provides that an action relating to the publication of defamatory matter "cannot be commenced if one year has elapsed since the publication". An extension of that period may be granted under s 40, which provides:
"(1) A plaintiff may apply to a court for leave to commence an action relating to the publication of defamatory matter even though one year has elapsed since the publication.
(2) Subject to subsection (3), on an application a court, 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 one year from the publication, must extend the time in which the action can be commenced.
(3) An action relating to the publication of defamatory matter cannot be commenced if 3 years have elapsed since the publication."
36 In each case, the critical question is whether I am satisfied that it was "not reasonable in the circumstances" for Mr Carey to have commenced an action within the one-year limitation period.