55 An underlying thread in the applicant's submissions was that the overall period from the applicant's complaint to ACMA on 28 August 2010 until the final decision on 6 July 2011 was relevant, not just because by the latter date the period of one year had past, but because of a seeming unfairness. Of course it was not said that ACMA deliberately delayed, but there was a tenor about the way the point was put. This overlooks the true course of the correspondence that indicates when ACMA could commence its investigation, and the lengthy and detailed report provided in May 2011 (prior to the expiration of the period of one year) and the final report in July 2011. Moreover, the preliminary report indicated as clearly as may be what the final report would conclude. As the respondent submits, the May 2011 preliminary report put the applicant on notice, and he could have commenced his defamation proceeding within the one year period.

56 Nevertheless, the applicant submitted that the fact of the delay until 6 July 2011 was relevant to the question whether it was not reasonable for the applicant to have commenced proceedings prior to the expiry of the limitation period. In particular:

(1) The ACMA investigation could only be pursued if proceedings for defamation were not commenced.

(2) The outcome of the ACMA complaint was relevant to an assessment of any damages to which the applicant might be entitled in a defamation proceeding.

57 The first point is based on cl 7.1 which precludes the Code complaint procedure, including a complaint to ACMA, in the event of litigation. It was submitted to be important for the applicant to pursue relief from ACMA because it could provide relief to the applicant not otherwise available under the Defamation Act. There could be, under s 152(2), a recommendation that the ABC publish an apology or retraction, whereas the only remedy in defamation was damages. As the ACMA investigation was finalised four days after the expiration of the one year period, the applicant was thus precluded from launching defamation proceedings prior to this date without prejudicing his right to relief from ACMA.

58 With respect, this submission is flawed. ACMA did not provide 'relief', at least in any sense comparable to that which might be obtained at law in a defamation proceeding. ACMA could only recommend action which may include broadcasting or otherwise publishing an apology or retraction. Hence, even if there were to be a recommendation of action, the action may not have included an apology or retraction. And, of course, even if it did the ABC was not obliged to implement any such recommendation. Furthermore, if the ABC's response to the applicant were an indication of likely response in the event of a recommendation of an apology or retraction or otherwise, it was on the cards that it would have maintained its prior position and declined to act in accordance with the recommendation.

59 There is another fundamental point. The premise in the submission is that the applicant was taking the ACMA route in aid of, or as complementary to, a future defamation proceeding. There were a few strands to this: an apology or retraction would complement his position in relation to relief in a defamation proceeding, and would be relevant to damages in such a proceeding. Further, the latter consideration would bear on his decision whether to commence such a proceeding.

60 But this does not sit with the applicant's own words. In his letter to the ABC dated 2 July 2010, and his letter to ACMA dated 16 November 2010, he stated that he wanted a right of reply on air, and, in the latter letter, that character attack and business damage was irrelevant, and he did not seek money or an apology. He confirmed this in his further letter to ACMA dated 2 December 2010 which made clear that he wanted the right to reply on air. This was his chosen course. This is inconsistent with the submission, and consistent with a decision not to go the route of a proceeding for defamation.

61 The applicant's submissions then turned to his Honour's finding (referred to in point 2(a) above) that on the applicant's materials the ACMA complaint route was a true alternative to litigation in the sense that one either took that route or one could issue defamation proceedings.[21] That was said to be erroneous: the ACMA procedure was not a true alternative and hence the applicant did not elect between the two courses of action. This was because the applicant could have relief via the ACMA complaint that was not available in a defamation proceeding, but pursuing the ACMA complaint left him free to pursue defamation. It was said further that his Honour erred in his understanding of the applicant's material; that, considered objectively, he had not made an election as suggested. Further, the finding ignored the object of the Defamation Act of promoting speedy and non-litigious methods of resolving disputes.

62 There is, I think, an element of misunderstanding of his Honour's reasons in this submission. His Honour's finding was based on his view of the applicant's materials. There is no reason to suppose that his Honour did not determine the case on an objective basis. Moreover, in my view the finding was well open on the evidence. That is, that the applicant determined to proceed via the ABC and ACMA complaint route rather than to sue for defamation. Thus understanding the matter, it was 'a true alternative to litigation'.[22]

63 The applicant's submissions then turned to his Honour's statement that the ACMA complaint route was never likely to produce an award of damages as claimed in the defamation proceeding.[23] This, it was said, showed that his Honour focussed on the remedy rather than the nature of the applicant's cause of action. While damages is the only relief in a defamation proceeding, an award of damages is not the only purpose for bringing such a proceeding. The underlying reason is vindication for harm to reputation. The submission was that his Honour had ignored the inter-relationship between methods of vindication for harm done to one's reputation and an award of damages.

64 The next step in the submission was that the potential 'relief' via the ACMA complaint route, of an apology or retraction, could affect the amount of damages which the applicant might otherwise recover, and thus could have borne on his decision whether to commence a defamation proceeding.

65 Of course vindication for harm to reputation underlies the claim in defamation, but that does not deny validity to the point that his Honour was making. The point about an apology operating to reduce damages is correct, but the reference to 'relief' in the context of ACMA's powers is erroneous to the extent it likens the ACMA complaint procedure to that of a proceeding at law. His Honour was drawing the distinction.

66 Finally, I reject the submission that his Honour gave no consideration to the fact that damages are awarded in defamation actions 'as a vindication of the plaintiff to the public and as consolation to him for a wrong done'.[24] This is well-known, and is to be taken as known to his Honour who is the judge in charge of defamation matters in this court.

67 Progressing on, it was submitted that the ACMA complaint constituted an alternative dispute resolution process. As to this, it was submitted that the authorities establish that the engagement in such a process may satisfy the 'not reasonable' test in s 23B(2).[25] As already mentioned, this process provided the potential for relief in the form of an apology or retraction which might affect or even eliminate the need for any other remedy. It was submitted that his Honour sidelined the significance of the ACMA process on the basis that it was not an 'alternative to litigation of the same kind that settlement negotiations might be' (at [34]). In so characterising the ACMA complaint and discounting its significance as an alternative dispute resolution procedure, his Honour erred. It was further submitted that his Honour's reasoning was not consonant with both the Defamation Act and the Civil Procedure Act 2010 which encourages litigants to undertake non-litigious avenues to remedy their disputes.

68 With respect, the submission lacks substance. While the authorities (being those referred to above) postulate that pursuing an alternative dispute resolution process may mean it was not reasonable to commence proceedings, that result does not automatically follow. That is, as mentioned earlier, the question, objectively determined, is whether in the circumstances it was not reasonable to have commenced litigation within one year from publication. Hence, it would be erroneous to suggest, as perhaps the applicant seems to do, that if the ACMA complaint process was to be characterised as an alternative dispute resolution process that he would, ipso facto as it were, fall into an accepted category and warrant the extension.

69 Reading his Honour's impugned statement in the overall context of his analysis, it is clear that underlying his reasons was that the applicant had chosen to pursue the ACMA complaint process and not to litigate. The applicant's correspondence made his position plain in that respect, and doubtless the reference to the 'plaintiff's material' is to be so understood. Moreover, and putting the point another way, there was no evidence that the applicant was seeking to avoid defamation litigation by achieving a satisfactory outcome through the ACMA process, or that he would commence defamation proceedings if the ACMA process did not satisfactorily resolve the matter. Thus understood, it was not an alternative to litigation and nor was it analogous to settlement negotiations as an alternative to litigation. Finally, the submission concerning the Defamation Act and the Civil Procedure Act misapprehends the strictures of s 23B(2) which his Honour was bound to, and did, act under.

70 Under these grounds the applicant renewed a submission made to his Honour that once the test in s 23B(2) was satisfied the court 'must' extend the limitation period. While the power is to extend the period for 'up to' three years, in this case, on the test being satisfied, the period should have been extended to the date of commencement of the proceeding. That is, there was no discretion as to the length of the extension. On this construction it was irrelevant to consider, and the judge erred in considering, the applicant's delay in commencing the extension proceeding.

71 In construing s 23B(2) his Honour relied upon, and followed, the authority of decisions in the Queensland Court of Appeal.[26] The following passage in the judgment of Chesterman JA in Noonan v MacLennan explains the accepted construction:

The length of the extension was a matter for discretion. It would not have been a proper exercise of discretion to extend time beyond the period within which it was thought unreasonable to have sued.[27]

72 It was submitted for the applicant that the Queensland authorities were wrongly decided in this respect, and should not be followed. It was stated, correctly, that the Court of Appeal in Victoria has not previously had occasion to consider the construction of s 23B and the relevant Queensland authorities, and that this Court should consider afresh the proper construction of s 23B(2).

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.[28] 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.

74 Finally, if and to the extent that the applicant challenged the actual exercise of discretion as to the period of extension, his Honour's decision as to that was open and relevant error is not shown. Indeed, in my view, the exercise of discretion was correct.

75 For these reasons leave to appeal must be refused.

76 I have had the advantage of reading in draft the reasons for judgment of Hansen JA. I agree that leave to appeal should be refused and I do so for the reasons given by his Honour.

77 At the commencement of submissions on behalf of the applicant, counsel for Mr Casley submitted that this case provided this Court with the opportunity to consider the scope and operation of s 23B of the Limitations of Actions Act as it had not previously done so. I do not consider that reason by itself is an appropriate ground for granting leave to appeal. As Hansen JA has shown, there are no valid grounds to grant leave to appeal arising out of the decision of the trial judge and the matter is not made any more appropriate for leave to be granted because this Court has not previously examined s 23B.

[1] Casley v Australian Broadcasting Corporation [2013] VSC 251.

[2] Defamation Act 2005 (Vic) s 3(d).

[3] Defamation Act 2005 (Vic), Part 3, Division 1.

[4] But cf (as Beach J noted in footnote 2) the plaintiff's second letter written on 24 January 2011 to ACMA in which he stated that he understood that the investigation "could take a lengthy period".

[5] Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; Jamieson v Chiropractic Board of Australia [2011] QCA 56; Mowen v Morning Bulletin APN & Ors [2012] QSC 194.

[6] Rayney v The State of Western Australia (No 3) [2010] WASC 83; Wookey v Quigley (No 2) (2010) WASC 209; Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676; Lakaev v Denny [2010] NSWSC 1480; Barach v University of New South Wales [2011] NSWSC 1327; Ritson v Gay & Lesbian Community Publishing [2012] NSWSC 483; Carey v Australian Broadcasting Corporation [2012] NSWCA 176; (2012) 290 ALR 348; Houda v State of New South Wales [2012] NSWSC 1036. See further, Rametta v Deakin University [2010] FCA 1341.

[7] [2010] QCA 50; [2010] 2 Qd R 537.

[8] Limitations of Actions Act 1974 (Qld).

[9] [2010] QCA 50; [2010] 2 Qd R 537, 541 [15]. Section 32A(2) was the equivalent provision in the Queensland legislation to s 23B(2).

[11] [2010] QCA 175.

[13] [2011] QCA 56, [22].

[15] [2010] NSWSC 1480, [18].

[17] [2012] NSWSC 1036, [11]-[12].

[18] Cf s 152 of the Broadcasting Services Act 1992 (Cth).

[19] Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537, 547 [47]; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175, [87] (Proposition 4); and Jamieson v Chiropractic Board of Australia [2011] QCA 56, [22].

[20] Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537, 547 [47].

[24] Uren v John Fairfax & Sons [1966] HCA 40; (1966) 117 CLR 118, 150.

[25] Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537, [16]; Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676, [52]; Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498, [4].

[26] Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537, 547 [47]; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175, [87] (Proposition 4); and Jamieson v Chiropractic Board of Australia [2011] QCA 56, [22].

[27] [2010] QCA 50; [2010] 2 Qd R 537, 550 [66].

[28] Farah Constructions v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, 151-152 [135]; Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, 492.