Dadon v Fairfax Media Publications Pty Ltd [2025] FCA 899

1. It is the applicant's position that his reluctance to issue proceedings within the 12 months following publication was principally due to the advice he was receiving to deal with the Civil Penalty Proceeding, which made such serious allegations about him personally, first. The applicant submits that this advice highlighted the very issues referred to by Lee J in Lehrmann (at [26]), and the Full Court in Joukhador (at [39], and [56]).
2. Properly considered, the applicant submits, the "ordinary position" as described in Lehrmann and Joukhador relating to criminal proceedings remains apposite to the present circumstances because there is little difference to the seriousness of the allegations made against him or the personal (emotional and financial) impact of the penalties sought to be imposed upon him. Why, the applicant submits, should an individual be compelled to conduct two pieces of serious litigation which concern the same facts at once where an adverse outcome in the first could have serious consequences and other repercussions for the second? The applicant submits that success in the Civil Penalty Proceeding would have caused a sensible media organisation, informed of that fact, to take the offending article down. For these reasons the applicant submits that the allegations in the Civil Penalty Proceeding are readily comparable to criminal charges or disciplinary proceedings. He submits therefore that it was reasonable in the circumstances for him to concentrate his efforts on defending the Civil Penalty Proceeding allegations as a priority, and not take steps which could risk a successful defence, at the cost of commencing defamation proceedings in relation to the February 2023 Article within 12 months from the date of publication.
3. The applicant submits also that he made multiple attempts to resolve the issues in the proceeding with the respondent by way of correspondence and offers of compromise (although of course this was after the one year limitation period had run and the Civil Penalty Proceeding had been withdrawn).
4. The applicant submits that the publication of the February 2023 Article and the June 2024 Article continue to cause him serious reputational harm, some of which is described in Ms Good's evidence. He submits that in these circumstances it would be neither just nor reasonable to deny him the ability to pursue an action against the respondent based solely on a ten month delay in commencing proceedings and absent very clear evidence of some form of prejudice suffered by the respondent as a result of this delay. In this regard the applicant submits that there is no basis upon which to suggest that the relevant evidence is likely to be unavailable to the respondent, or less cogent, than if the action had been brought within the limitation period.
5. Further, it is the applicant's position that the June 2024 Article is not time-barred, and that in these circumstances the respondent would have to mount a defence in any event. The applicant submits that it is just and reasonable, given the justiciable issues potentially raised in the June 2024 Article and the fact that the February 2023 Article caused the initial harm to the applicant's reputation, that he be permitted to seek redress for that damage.

1. The respondent contends that it would not be just and reasonable to extend the limitation period. It points to the applicant's delay before commencing the proceedings, the lack of any overlap with criminal proceedings as in Lehrmann and Joukhador, and the applicant's failure to act promptly to resolve the dispute. The respondent makes the point that it was not even advised of the applicant's complaint about the February 2023 Article until it received the First Concerns Notice. This was some 16 months after the February 2023 Article had been published and four months after the limitation period had expired. The respondent submits, referring to the terms of s 23B(3)(b) of the Limitation Act, that by 26 March 2023 all the facts relevant to the cause of action were known to the applicant. That is, five weeks after the commencement of the limitation period commenced to run.
2. The respondent also submits that whatever advice the applicant received as to any perceived forensic advantage in delaying the commencement of a proceeding in defamation during the pendency of the Civil Penalty Proceeding was incorrect and speculative, and could not provide a proper basis for extending the limitation period. The respondent refers in this regard to Pro-Teeth Whitening (Aust) Pty Ltd v Commonwealth [2014] QSC 107 at [19]- [22] (Mullins J). The respondent maintains that the applicant appears to have been indifferent to the limitation period, or perhaps disregarded it altogether in circumstances where the advice from counsel in the Second Advice was that his prospects were, in substance, poor.
3. The respondent submits that, properly understood, the only advice the applicant had by 7 July 2023 was the advice in the Preliminary Advice from counsel, and that this did not contain advice in terms that defamation proceedings should not be commenced until after the Civil Penalty Proceeding had been resolved. The respondent maintains that, in reality, there was no advice to the applicant not to commence defamation proceedings until the Civil Penalty Proceeding was resolved, and that all he has done is exercise a forensic choice to delay commencing such proceedings while defending another civil proceeding.
4. Insofar as the lack of any overlap with criminal proceedings is concerned, it is the respondent's position that the present circumstances are readily distinguishable from criminal proceedings where a person's liberty is at risk and the right to silence may be compromised by the issuing of defamation proceedings. The stress an applicant might experience in these circumstances is not comparable, the respondent submits, to whatever stress may have been suffered by the applicant in circumstances where he was confronted by the Civil Penalty Proceeding.
5. The respondent also submits that the applicant's claim is weak, and that it is objectively unlikely that he will be able to prove serious harm.
6. For all these reasons the respondent submits that the circumstances of this case do not provide a proper basis to depart from the default position that an action in defamation must not be brought after one year from the date of the publication complained of.

1. When all the relevant circumstances are weighed in the balance, I have come to the view that it would be just and reasonable to extend the limitation period with respect to the February 2023 Article.
2. As the Victorian Court of Appeal observed in Hardie v The Herald and Weekly Times Pty Ltd (No 2) [2016] VSCA 130 at [17] (Ashley, Tate and Beach JJA), the law of defamation is one of the more complex areas of law with which an individual might have to engage (see also, in this vein, Bauer Media Pty Ltd v Wilson (No 3) [2018] VSCA 164 at [12] (Tate, Beach and Ashley JJA)). In the present case the applicant was actively contesting the Civil Penalty Proceeding when the respondent published the February 2023 Article. The Civil Penalty Proceeding involved serious allegations against the applicant personally, including that he had condoned sexual harassment, and it sought the imposition of civil penalties on him. The evidence discloses that the applicant took advice in relation to the February 2023 Article from Ms Good (and others).The applicant ultimately, for reasons that cannot fairly be criticised, appears to have accepted that the better course was to focus his attention on the Civil Penalty Proceeding and not "poke the bear" (to use Ms Good's language in her email to the applicant of 3 July 2023) and commence a second front by instituting defamation proceedings against the respondent. I accept that the applicant had received this advice from Ms Good by 3 July 2023 in her email to him of that date, if not before then. Mr Landeryou's email of 20 June 2023 suggests that Ms Good may have given advice to a similar effect in June, or even earlier.
3. Insofar as the respondent submits that the Preliminary Advice from counsel did not advise that the commencement of defamation proceedings should await the finalisation of the Civil Penalty Proceeding, I would not read that advice so narrowly and definitively. Ms Good's email to the applicant of 6 July 2023, which recounted the Preliminary Advice, identified the risks attendant on commencing a defamation proceeding while simultaneously defending a Civil Penalty Proceeding. This advice, in certain respects, might fairly be said to be a more developed version of the advice Ms Good had given the applicant on 3 July 2023 when she said that she was "reluctant to poke the bear". Subsequent advice, as well as the apparently unsuccessful attempt by the applicant to obtain a second opinion, did not alter the burden of that advice.
4. Having regard to the circumstances in which the applicant found himself after the publication of the February 2023 Article, and the fact that he is a small business person who can be presumed not to have unlimited means, the course that he took in the face of this advice from Ms Good (and others) was, objectively, a reasonable one. Once the Civil Penalty Proceeding had been discontinued, no doubt emboldened by his success on that front, the applicant took up the cudgels against the respondent with respect to the February 2023 Article. He did so within a matter of days. Although the proceeding against the respondent was not then commenced for some months, I am satisfied that this was not unreasonable having regard in particular to the back and forth that occurred between the parties during this period.
5. Although the respondent is correct to submit that Parliament has determined that a one year limitation period is to apply for actions in defamation (reflecting the importance placed by the legislature upon parties to defamation proceedings engaging in prompt and early resolution), this is not, so to speak, a drop dead rule. The statutory regime contemplates that this period can be extended in certain circumstances. I consider that when one stands back and looks objectively at the applicant's conduct, informed by advice from a number of quarters, he had good reason to delay commencing an action in defamation against the respondent. He did not delay doing so for an unreasonable period of time once the Civil Penalty Proceeding had been withdrawn. I accept that it was reasonable for him to have delayed in circumstances where the Civil Penalty Proceeding concerned the same facts as the contemplated defamation action, and where an adverse outcome in the Civil Penalty Proceeding could have had serious consequences for the defamation proceeding. Insofar as the respondent submits that it is not just and reasonable to extend time for "speculative considerations of expedience", I do not accept that this characterisation of what occurred is a fair one in all the circumstances.
6. Even though the Civil Penalty Proceeding was not a criminal proceeding and the applicant was therefore not facing criminal charges (as to which see Lehrmann and Joukhador), it was still a very serious matter for him to be confronted with. In this sense the observations made by the Full Court in Joukhador at [55]-[57] are not irrelevant. I do not accept the respondent's submission that, to the extent that there would have been any overlap between the defamation proceeding and the Civil Penalty Proceeding, that overlap would have been insignificant. In a practical sense, from the applicant's viewpoint, there was an overlap. Nor do I accept the respondent's submission that it is not apparent that conducting two proceedings would have imposed a strain on the applicant. Notwithstanding his strenuous defence of the Civil Penalty Proceeding, and his engagement about that with Ms Ko at various times, it is axiomatic that litigation of this kind takes its toll, particularly on individuals. It was, in these circumstances, not unreasonable for the applicant to delay the commencement of the defamation proceeding to prioritise the defence of the Civil Penalty Proceeding.
7. Insofar as the respondent is critical of the advice the applicant received as incorrect and speculative, I do not consider that the respondent's criticisms of this advice much affects matters. I am prepared to accept that the applicant took the advice that he had received not to fight on two fronts. This was a reasonable approach to adopt in all the circumstances, whether or not he was advised that there was a one year limitation period for commencement of the prospective defamation proceeding.
8. As to the respondent's submission that the applicant's case is weak, and that it is unlikely he will be able to prove that he suffered or was likely to suffer serious harm to his reputation as a result of the articles, I consider that it is difficult to form a definitive view about this at the present stage of the litigation. This is particularly so having regard to the fact that the respondent has not yet filed a defence, and the mass media publication of the two articles (see generally, in relation to serious harm, Peros v Nationwide News Pty Ltd (No 3) [2024] QSC 192 at [81] (Applegarth J) (Peros); Deeming v Pesutto (No 3) [2024] FCA 1430 at [524]- [525] (O'Callaghan J); Mond v The Age Company Pty Ltd [2025] FCA 442 at [370]- [371] and [409]-[412] (Wheelahan J)).
9. Turning finally to the issue of prejudice to the respondent, it is of course well established that there is a presumption of prejudice in favour of a respondent in these situations. Even absent specific prejudice there is no principle which compels an exercise of discretion to extend the limitation period in favour of an applicant: see Griffiths v Nillumbik Shire Council [2022] VSCA 212 at [111] (Beach JA, Keogh and J Forrest AJJA). Nonetheless, the respondent has not suggested that relevant evidence is likely to be unavailable or less cogent than if the action had been brought within the one year limitation period (to use the statutory language). Nor has the respondent identified some other form of actual prejudice it may face in defending the applicant's claims. This is an important consideration in determining whether the limitation period should be extended.
10. Having regard to all of these matters I am satisfied that it is just and reasonable to extend the limitation period to 9 December 2024. There will, accordingly, be an order to this effect.

IS THE JUNE 2024 ARTICLE SUBSTANTIALLY THE SAME?

1. The respondent also advances the argument, relying on s 5A(1)-(2) of the Limitation Act and the introduction of the single publication rule in the limitation regime for defamation, that the June 2024 Article is "substantially the same" as the February 2023 Article. The respondent says that the only difference between the two articles is the clarification inserted into the June 2024 Article. The applicant's position is that the June 2024 Article is a wholly new publication because it carries different meanings. The respondent disputes this analysis, referring to the observations of Applegarth J in Peros at [47]-[49] in relation to the construction of s 10A of the Defamation Act.
2. Having regard to my conclusion that it would be just and reasonable to extend the limitation period in relation to the February 2023 Article, it may be that this issue of substantial similarity in relation to the June 2024 Article recedes in significance in this proceeding. Nonetheless, I accept the applicant's submission that, if this remains an issue, it should not be taken further until the respondent files a defence. The parties will be directed to consult and provide an agreed minute of orders, or competing minutes, timetabling the further conduct of the proceeding. If there is no agreement the matter will be listed for case management hearing at the first available date.

1. The applicant sought his costs of and incidental to this application if he was to be successful. The respondent's position in the event of success by the applicant was that as the applicant was seeking the court's indulgence, there should be no order as to costs.
2. I do not consider that it is correct to characterise the application pursuant to s 23B of the Limitation Act as seeking an indulgence. Under the Limitation Act the one year limitation period can be extended to a period of up to three years if an applicant can satisfy the court that it is just and reasonable to allow the action to proceed. This is all that has happened here. It is appropriate therefore that costs should follow the event. The applicant should have his costs of and incidental to this application, to be agreed or assessed.

I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.