DEFAMATION - STATUTORY LIMITATION - Publication - Slander-Privilege

Civil Law (Wrongs) Act 2002 (ACT) s 119

Defamation Act 2005 (NSW) s 7

Limitation Act 1985 (ACT) ss 11, 21B

Limitation Act 1969 (NSW) ss 14, 14B

Habib v Radio 2UE [2009] NSWCA 231

Hillebrand v Penrith Council [2000] NSWSC 1058

Pullman v Hill & Co [1891] 1 QB 524

Jones v Jones [1916] UKHL 2; [1916] 2 A.C. 481

1. Denise Egan-Green, whom I will call the Plaintiff in these proceedings, seeks redress in the form of damages and injunctive relief for defamation against Janice McLean, whom I will call the Defendant in these proceedings.

2. The proceedings have reached the stage where a statement of claim has been filed which annexes to it a document for which it is claimed the defendant is responsible in law and which is said by the Plaintiff to record the defamation. A defence to that statement of claim has been filed and the Plaintiff has filed a reply to that defence. There are difficulties with the pleadings which would require attention at some stage but the current application does not turn on these difficulties.

3. By an application in the proceedings, the Defendant now moves for summary judgement, claiming that the cause of action is not maintainable owing to the impact of either the applicable limitation act applying in the Australian Capital Territory or alternatively New South Wales.

4. An affidavit of Father Julian Wellspring was read on the application as was an affidavit of the Plaintiff. There was no cross examination.

5. For reasons that are not necessary to recite, the Plaintiff's marriage of some 30 years came to an end in 1995 under secular law. In 1996, the Plaintiff says she decided, against the background of her former husband's pending marriage to another woman and with their child on the way, to seek an annulment of her marriage under Catholic Church canon law.

6. The Plaintiff initiated that process by lodging an Application at the Newcastle office of the Tribunal of the Catholic Church.

7. By way of summary, the process requires relevantly, the taking of statements from witnesses, the administrative marshalling of those statements, a review by the appointed Defender of the Bond and then for a tribunal of three "judges" to determine the matter. Those judges are appointed by the Judicial Vicar for New South Wales. The judges appointed in this case were members of the Church: Reverent Blayney, Father Doherty and Sister Symonds. Support staff assisted the process at each stage although whether they actually read any documents will never be known.

8. The Application was successful before the Tribunal but that circumstance has the consequence that it is then necessary for the National Appeal Tribunal to review the matter in accordance with canon law.

9. The file does not reveal the constitution of the Appeal Tribunal who reviewed the decision. There is evidence that, given that the length of marriage was 30 years, three "judges" would have been appointed to constitute the Appeal Tribunal. Prior to that event the Judicial Vicar would have considered the documents of the case in order to appoint the Tribunal members. A Defender of the Bond would also have been appointed to the National Appeal Tribunal to assist the Appeal Tribunal judges. Again, support staff would assist in this process and may or may not have read documents. In addition, under canon law at both the Regional Tribunal and the National Appeal Tribunal notaries would have been appointed. The notaries would have had access to the documents.

10. The National Appeal Tribunal's decision in this case was to affirm the decision of the Tribunal and accordingly a Decree of Nullity issued.

11. One of the witnesses who provided a "statement" for the purposes of the Application was the Defendant. The Defendant is the older sister of the Plaintiff's former husband. To the statement in question is appended the words "Oath to tell the truth taken" and "Canberra". It is dated 24 March 1997. Contrary to the Defence filed, it was not raised as an issue on this application, that the statement conveyed defamatory imputations in respect of the Plaintiff. Having read the statement, I regard that concession as being soundly based.

12. The statement is not signed. Apparently, the process is that a witness will make statements orally to an "auditor", in this case Kerri Barrett, who will make notes or tapes of the interview. The auditor will then draft the "testimony" and when the auditor is satisfied that the testimony reflects the evidence, the notes or tapes are disposed of in accordance with policy. By paragraph 2(a) of her Defence, the Defendant "admits that she provided orally the information contained in Annexure A, of the Statement of Claim, to Kerri Barrett on 24 March 1997."

13. The Plaintiff says in her affidavit that she knew nothing of this statement until 13 July 2015. Because of other matters occurring between herself and the Catholic Church she sought to examine her Annulment file. The Plaintiff says that she was deeply shocked by what she read and that no one had ever drawn her attention to this document or the contents of it between March 1997 and July 2015.

14. It appears from the evidence that no other person was concerned with the Application after it was determined until it was reread for purposes relating to the Royal Commission in early 2015 as part of a review of all Tribunal cases. Neither party claimed anything turned on this fact for the purposes of the application. The Plaintiff did not plead republication of the statement against the Defendant no doubt because the Defendant, in 1997, could not have envisaged its republication in 2015 as part of the Royal Commission's inquiries. See Habib v Radio 2UE [2009] NSWCA 231 at [122]- [124].

15. The cause of action must have arisen in 1997. The defamatory words were first said to Ms Barrett, at the latest 24 March 1997, and then came to the attention of a number of people in that year. The admission made in the defence, as to the date of the communication to Ms Barrett, is 24 March 1997.

16. I should interpolate here to record, that the process attending an Application for annulment is a confidential one. The description set out in paragraphs [6] - [10] above set out the likely limits of the publication although this could be explored at any trial.

17. The Plaintiff alleges that she first became aware of the contents of the document on 13 July 2015 and I will act on that basis on this application.

18. The Originating Claim in these proceedings was filed on 12 July 2016. The Plaintiff says, for reasons set out below, that this was the last possible day to file within time.

19. Although I have not set out above all of the events which occurred from the material filed, it appears that they all occurred within New South Wales and the ACT and any defamation occurred within those jurisdictions. The Defendant on this application cautiously dealt with both jurisdictions.

20. A further refinement may be made. The statement of claim alleges by paragraph four that:

On or about 24 March 1997 the Defendant dictated, signed and published a Statement("the document") addressed to the Catholic Church's Tribunal in Canberra that set up to hear and determine the Plaintiff's Annulment of her Marriage.

21. As I have already referred to above, the Defendant in answer to this paragraph says:

Admits that she provided orally the information contained in Annexure "A", of the statement of claim, to Kerri Barrett on 24 March 1997;

Otherwise denies paragraph four.

22. It is clear, therefore, that the Plaintiff relies upon a cause of action in slander with its publication in the ACT on 24 March 1997. See Pullman v Hill & Co [1891] 1 QB 524.

23. In 1997 an action in tort in NSW was governed by s14 of the Limitation Act 1969. The limitation period was six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the claims. This situation changed in New South Wales on 18 December 2002 when a new limitations period came into play through s14B of that Act but this provision will not assist the Plaintiff.

24. In NSW, long before 1997, the various defamation statutes had provided that special damage was not required for a cause of action in slander.

25. In 1997 an action in tort in the ACT was governed by s11 of the Limitation Act 1985. A six year limitation applied. On 27 November 1998 section 21B was inserted to apply to defamation actions. This later provision is as follows:

(1) An action on a cause of action for defamation is not maintainable if brought after the expiration of a limitation period of 1 year running from the date of the first publication of the matter complained of.

(2) For the purposes of an action in a court, the court shall, if satisfied that it was not reasonable for the plaintiff to have known about the publication of the matter complained of within 1 year from the date of the first publication, extend the limitation period mentioned in subsection (1) to 2 years.

26. The legislature in the ACT followed the New South Wales lead and had, many years prior to 1997, abolished the need for special damage in that jurisdiction for a cause of action in slander.

27. It is upon the provision set out at [25] above that Plaintiff relies, to submit that she has filed the proceedings on the last day possible. However, she makes an important distinction between a cause of action in slander and a cause of action in libel under this provision.

28. The Plaintiff's process of reasoning is as follows-

(1) The law in force in the ACT in 1997 distinguished between slander and libel.

(2) Unlike libel, a cause of action in slander only commences to run when the Plaintiff becomes aware of the slander.

(3) The cause of action in slander commenced to run on 13 July 2015.

(4) At that time, the limitation provision set out above in par [25] was the applicable limitation period.

(5) The Originating Claim was filed on the last day.

29. I am unable to agree with this process of reasoning. I accept that so long as slander, at common law, required the Plaintiff to suffer special damage, the cause of action in slander would accrue and only run from the time when that special damage had been suffered. That might mean, in a given case, that time would not run from the publication of the slander but rather from the time the tort was complete by the suffering special damage. However, the suffering of special damage may or may not coincide with the discovery of the slander.

30. For present purposes, I will not enter into what constituted special damage for this rule nor the basis for the rule. There is an informative English historical analysis in Jones v Jones [1916] UKHL 2; [1916] 2 A.C. 481 at 489 et seq. Some of the historical development in Australia, going back to 1847 in New South Wales, is set out in pars 17.7 to 17.13 in Law of Torts 4th Ed, 2009, Balkin and Davis.

31. However, the law of the ACT changed many years before 1997 when the legislature abolished the need for the suffering of special damage in slander. The current embodiment of this change is s119 of the Civil Law (Wrongs) Act). The consequence is that the cause of action runs from the date of publication. This may be thought to be reflected in the specific reference to "first publication" in s21B(1) and (2) above.

32. For completeness, a similar change was made to the law of New South Wales. The current embodiment of the change is in s7 of the Defamation Act 2005.

33. After I had heard argument and reserved my decision, the Plaintiff filed an application in the Registry seeking to amend the statement of claim to add a claim of "republication" of the contents of the document to Father Wellspring. I reconvened the Court.

34. It will be remembered that Father Wellspring gave evidence as to the process followed for an Annulment. For this purpose, he read the file kept by the Church and hence considered the defamatory material. Such a publication to Father Wellspring will attract privilege being a matter necessary for the administration of justice. The proceedings were not only contemplated but on foot. His affidavit was read without objection.

35. I add that the document in question was annexed by the Plaintiff to the statement of claim in any event.

36. I dismiss the application to amend the statement of claim. There is no utility in such an amendment.

37. In my view, for the reasons given above, the Plaintiff has not commenced her action against the Defendant within the time permitted. There is no basis upon which this period could be extended. The trial of the action must be resolved in favour of the Defendant. There is no reason not to give judgement at this point when it is known that the Defendant will plead and rely upon a limitations defence at trial. See Hillebrand v Penrith Council [2000] NSWSC 1058.

38. Since I regard the matter as a clear case there is no reason to discuss discretionary factors urged upon me by counsel for the Defendant.

40. I order that the Plaintiff pay the costs of the Defendant of and incidental to the proceedings

I certify that the preceding [40] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson.