CITATION : WOOKEY -v- QUIGLEY [No 2] [2010] WASC 209

Defamation - Limitation of action - Extension application - Leave to amend writ and statement of claim to include further publications as independent causes of action

Defamation Act 2005 (Qld)

Defamation Act 2005 (WA)

Limitation Act 1935 (WA), s 38

Limitation Act 2005 (WA), s 40

Limitation Legislation Amendment and Repeal Act 2005 (WA), s 3, s 4

Limitation of Actions Act 1974 (Qld), s 32A

Rules of the Supreme Court 1971 (WA), O 21, O 26A

Ibrahim v Wadworth [2009] WASC 317

In De Braekt v Powell [2007] WASCA 55; (2007) 33 WAR 389

Murphy v Lewis [2009] QDC 37

Noonan v MacLennan [2010] QCA 50

Rayney v The State of Western Australia [No 3] [2010] WASC 83

Wookey v Quigley [2009] WASC 284

1 This is an application by chamber summons of 17 March 2010 by the plaintiff, seeking leave to further amend the writ of summons and the statement of claim in these proceedings, which commenced on 27 January 2009.

2 The amendments proposed concern a series of communications by facsimile letters sent by the defendant to the plaintiff's employer, the Australian Government Solicitor (AGS), in Canberra. There are nine communications in all, sent between 13 January 2009 to 16 February 2009 which form the subject of the proposed further amendments to the indorsement of claim on the writ, as well as to the statement of claim. In respect of four of the nine communications, a limitation of action issue arises by reason of the fact that the one-year period of limitation set under s 15 of the Limitation Act 2005 (WA) (Limitation Act 2005) has now elapsed. If fresh causes of action grounded upon the four communications as independent defamatory publications are indeed time-barred under s 15, allowing amendments to the writ (or the statement of claim) would be futile.

3 Ordinarily in the Commercial and Managed Cases List, there is a right to amend a pleading without first seeking leave to amend, as long as this occurs seven weeks before the commencement of the trial: see Consolidated Practice Directions of the Supreme Court of Western Australia 4.1.2.2, Usual Order 8. However here, the plaintiff seeks to amend both its writ as well as the statement of claim by adding fresh causes of action upon alleged further defamatory publications. Accordingly, the application has been approached by the parties on the basis that the plaintiff needs to obtain leave to amend its writ (see Rules of the Supreme Court 1971 (WA) (RSC) O 21 r 1(3)(b)). The defendant firmly opposes the proposed amendments to the writ and in consequence, to the statement of claim.

4 The plaintiff and the defendant have been engaged in litigation by this action since the plaintiff issued her writ on 27 January 2009. At that time the indorsement to the writ articulated grievances over alleged defamatory publications against her by the defendant, as follows:

1.1 [B]y email addressed to the then Ombudsman of Western Australia dated 24 July 2003 sent at 9.13 pm.

1.2 [P]ublication of eight anonymous letters to officers of the Australian Government Solicitor's Office on or about 10 December 2009.

1.3 [P]ublication by the Defendant to Robert Taylor, journalist of West Australian Newspapers Limited on or about 13 January 2009 in circumstances where the Defendant intended republication of the same.

1.4 [I]n statements made in an interview on radio station 6PR on 19 January 2009 at 9.50 am.

5 It was common ground at the hearing before me on 10 June 2010, that there is an obvious error in par 1.2 of the indorsement. The intended reference should correctly have been to anonymous letters published on or about 10 December 2008. I granted leave for that correction to be made to the writ, instanter.

6 On 10 March 2009, the plaintiff filed an amended writ pursuant to leave granted by Hasluck J the previous day. This amendment saw an augmentation to the indorsement of claim, by the plaintiff additionally claiming in respect of another four emails raised as alleged defamatory publications against her by the defendant and sent to the Office of the Information Commissioner (WA) between 15 April 2005 and 24 May 2005.

7 Insofar as the plaintiff complains about defamatory publications in 2003 and 2005, her contention is that these publications occurred before 15 November 2005, so that they are governed by the provisions of the Limitation Act 1935 (WA) (as amended), pursuant to s 4(2) of the former Limitation Legislation Amendment and Repeal Act 2005 (WA) (see also s (3) thereof). Therefore, under s 38(1) of the Limitation Act 1935, the publications are subject to a six-year limitation period: see In De Braekt v Powell [2007] WASCA 55; (2007) 33 WAR 389, 402 [15] (Buss JA).

8 Defamatory publications after 15 November 2005 are governed by the Limitation Act 2005. Accordingly, the four January 2009 facsimile communications that the plaintiff wishes to pursue as further independent causes of action in defamation against the defendant are governed by the Limitation Act 2005. Critically, in that respect, s 15 provides:

1. An action relating to the publication of defamatory matter cannot be commenced if one year has elapsed since the publication.

9 The four facsimile communications the subject of proposed amendments to the plaintiff's writ under its application for leave are asserted (by the proposed further amended indorsement to the writ) to have been published respectively on 13, 14, 19 and 21 January 2009.

10 The plaintiff seeks leave by this application to further augment the indorsement to her writ by reference to nine additional publications made between January and February 2009. Contentiously, in respect of the four January 2009 publications, she seeks to allege that they each raise an independent cause of action as defamatory publications in their own right.

11 The plaintiff seeks to raise the remaining five publications on a basis that they aggravate the four defamatory publications. The intended reference to the five publications as matters going only to aggravation is less contentious between the parties. No issues of limitation arise in that respect.

12 The proposed amendment to the indorsement of claim in respect of which leave to amend is sought (see O 21 r 1(3)(b) and r 5(1) of the RSC), is in these terms:

1.6 In four letters published by the Defendant to the Chief Executive Officer of the Australian Government Solicitor dated:

1.6.1 13 January 2009;

1.6.2 14 January 2009;

1.6.3 19 January 2009;

1.6.4 21 January 2009; and

aggravated by the Defendant by five other letters he published to the Chief Executive Officer of the Australian Government Solicitor dated:

1.6.5 16 January 2009;

1.6.6 6 February 2009;

1.6.7 9 February 2009;

1.6.8 9 February 2009; and

1.6.9 16 February 2009.

13 The plaintiff applied by her chamber summons of 17 March 2010 for leave to make these further amendments to the writ. Leave to amend has not yet been obtained, so on the face of it, the one-year limitation period set by s 15 of the Limitation Act 2005 has now expired. However, in the present application the plaintiff also seeks to invoke s 40 of the Limitation Act 2005, which allows a court to extend time to commence a defamation action beyond the 12-month period under s 15 in prescribed circumstances.

14 Section 40 of the Limitation Act 2005 is in these terms:

(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.

15 The plaintiff, now well outside the 12-month period stipulated under s 15, nevertheless remains within the three year cut-off period set under s 40(3). The essential issue is whether she can meet the threshold requirements for an extension of the 12 month period, by reference to the criteria of s 40(2). In this regard the onus to establish the basis for an extension of time under s 40(2) falls squarely upon the plaintiff: see s 79(3) of the Limitation Act 2005. If the plaintiff can establish a basis for an extension of time under s 40(2), then her proposed amendments will not be futile and, all things being equal, she should be granted leave to further amend the writ and, consequentially, the statement of claim.

16 It is plain from the terms of the Limitation Act 2005 that it is drawn with an eye to the unique nature of publications of defamatory matter. The publication of defamatory matter is excluded at a number of points from broader limitation extension provisions that otherwise would apply: see for instance s 34, s 37 and s 38(4).

17 Section 40 is in pt 3 div 3 of the Limitation Act 2005. Within that division, s 44 applies to an 'extension application', which is defined by s 3(1) of the Limitation Act 2005, in terms ostensibly applicable to the consideration of an extension application under s 40. But I note that the question was left open by Le Miere J in Ibrahim v Wadworth [2009] WASC 317 [8].

18 Section 44 of the Limitation Act 2005 provides:

When deciding, on an extension application, whether to extend the time for the commencement of an action, a court is to have regard to -

(a) whether the delay in commencing the proposed action, whatever the merit of the reasons for that delay, would unacceptably diminish the prospects of a fair trial of the action; and

(b) whether extending the time would significantly prejudice the defendant (other than by reason only of the commencement of the proposed action).

19 Opposing this application for leave to further amend the writ, particularly by reference to raising the four further alleged defamatory publications of January 2009 as additional causes of action, the defendant does not raise any issue of prejudice by reference to s 44(a) or s 44(b). Accordingly, it is not necessary for me to address the impact of s 44 against a s 40(2) application for an extension of the 12 month limitation period set by s 15.

20 The substantive issue in dispute concerns the defendant's strong objection to the plaintiff's attempt to raise (under its proposed further amended writ) additional causes of action in defamation based upon the four January 2009 facsimile publications. The defendant contends that the plaintiff has not met the onus which she carries to obtain an extension of time beyond 12 months, having regard to the force and effect of s 40(2) of the Limitation Act 2005.

21 Two particular aspects of concern were emphasised by the defendant in argument. These arose in the context of the particular facts surrounding this application. First, the defendant contends that the plaintiff was dilatory in prosecuting an (ultimately successful) application to this court for non-party discovery against the plaintiff's employer, the AGS. The plaintiff ultimately obtained access to all nine 2009 publications by the orders of Hasluck J of 17 December 2009, pursuant to O 26A of the RSC. Those orders caused the AGS to file an affidavit verifying a list of documents as non-party discovery on 13 January 2010, with an attached schedule of 12 documents spanning the period between 13 January 2009 to 16 February 2009.

22 Materials filed on this application show that the plaintiff's solicitors were provided by AGS with copies of these listed documents, the following day, (14 January 2010).

23 On 15 January 2010, the plaintiff's solicitors wrote to the solicitors for the defendant advising that their inspection of documents provided by the AGS on 14 January 2010, had caused them to form the view that there were now further defamatory publications against the plaintiff that would be raised.

24 The defendant contends that the plaintiff took far too long to pursue her application for non-party discovery against her employer, in circumstances where in March and again in April 2009, the plaintiff was explicitly informed by her superior at AGS Canberra that a copy of a complaint the AGS had received from the defendant about the plaintiff would not be provided to the plaintiff, unless the AGS was required to do so by order of a court. The defendant says that faced with this clear stance from the AGS from at least April 2009, the plaintiff unduly delayed in bringing her application for non-party discovery, which was only commenced by chamber summons on 25 November 2009 (with the plaintiff's affidavit in support of 20 October 2009). The defendant contends that it was not reasonable in all the circumstances for the plaintiff to have delayed for as long as she did in bringing the application for non-party discovery, against her employer, having regard to the threshold requirements of s 40(2).

25 The second particular aspect of grievance raised by the defendant is that the plaintiff's solicitors, having inspected copies of the 2009 communications from the defendant to the AGS on 14 January 2010, swiftly reached the view that there were further 2009 defamatory publications of the defendant to the AGS that the plaintiff would wish to raise (as the plaintiff's solicitors explicitly advised the defendant's solicitors on 15 January 2010). Nevertheless, the defendant says that the plaintiff delayed once again in commencing suit upon these 2009 communications so that, having regard to s 40(2), it was not reasonable to have taken until 18 March 2010 to bring this application by chamber summons, seeking leave to further amend her writ (with the accompanying minute of proposed further amended statement of claim, as attachment B to the chamber summons).

26 The application for extension under s 40(2) is complicated here by the somewhat unusual surrounding phenomenon that the parties have been actively engaged in defamation litigation by these proceedings since 27 January 2009. Having regard to the submissions of the respective parties, it is apparent that a close analysis of some specific events in the running of this litigation is required. Before considering those matters, however, it is necessary to make some observations upon the state of the law concerning s 40(2), insofar as it has been considered both in this State and by reference to some broadly analogous statutory counterparts elsewhere in Australia.

Threshold requirement under Limitation Act 2005, s 40(2)

27 I have earlier set out the content of s 40. The elliptical character of s 40(2)'s wording is immediately apparent. By way of overview, it may broadly be observed of s 40(2) that:

(a) a court needs to be affirmatively 'satisfied' before granting leave to commence defamation proceedings, where the 12 month period set by s 15 has expired;

(b) the onus lies upon the plaintiff (see also s 79(3) of the Limitation 2005) to make good the basis for an extension beyond the 12 month period;

(c) the satisfaction required by the court is objectively assessed by reference to what is, in effect, the plaintiff's inaction in failing to commence proceedings within one year of the defamatory publication. The relevant conduct (more correctly, the relevant inaction) which the court must scrutinise then is the omission (failure to commence proceedings within 12 months) which is assessed by the court on a basis of the hypothetical commencement of proceedings in the 12 month window, being viewed as 'not reasonable in the circumstances'. Application of this negative reasonableness standard presents as a somewhat jarring double negative combination, not only in concept, but also in practical application;

(d) once a court is affirmatively satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within one year from the publication, the court is obliged to extend time. This language results from the use of the word 'must' in s 40(2). So, at that point there is no element of discretion involved for the court;

(e) an application only allows a maximum period of extension of three years from the publication by reason of s 40(3); and

(f) use of the phrase 'must extend' in s 40(2) suggests that the relevant scrutiny upon whether it has been 'not reasonable' for the plaintiff to commence action is focused exclusively towards an analysis of what has (not) occurred during the 12-month period. In other words (and as the plaintiff submits here), it would appear to be impermissible for the court to examine events occurring after the expiry of the one-year period, on the s 40(2) application for leave to extend time (although there could be an intervention of up to a further two years before the global three-year cut off period set under s 40(3) is reached). Against that, however, the matters referred to in s 44 as regards delay and prejudice to a defendant, would rather seem to suggest that the whole period of plaintiff inactivity should be examined. [Like Le Miere J in Ibrahim, it is not necessary for me to resolve any issue regarding s 44, as there is no suggestion of prejudice to the defendant raised in resisting this application.]

28 In Noonan v MacLennan [2010] QCA 50, the Queensland Court of Appeal considered the local provision, s 32A(2) of the Limitation of Actions Act 1974 (Qld) (as amended) which, by its terms, presents some similarities in concept to s 40(2) of the Limitation Act 2005. [However, I note an absence of equivalents to the Queensland provisions, s 32A(3) and s 32A(4) in the Western Australian legislation, and I would mention the observations of Martin CJ in Rayney v The State of Western Australia [No 3] [2010] WASC 83 [45] as to an overall lack of uniformity across the Australian States regarding limitation provisions for defamation actions.]

29 Section 32A of the Limitation of Actions Act 1974 (Qld) provides:

Defamation actions

(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 10AA to a period of up to 3 years 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).

(4) An order for the extension of a limitation period, and an application for an order for the extension of a limitation period, may be made under this section even though the limitation period has already ended.

30 In Noonan, Keane JA at [18] said he was inclined to regard as correct the reading of s 32A(2) earlier favoured by Dutney J in Robertson v Hollings (Unreported, QSC Library No 2263, 6 April 2009) (see also [8]). In discussing the subsection, Keane JA observed:

Section 32A(2) proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence an action to vindicate his or her legal rights in accordance with the time limits provided by law. While s 32A(2) proceeds on this assumption, it is obvious that only in relatively unusual circumstances will a court be satisfied that it is not reasonable to seek to vindicate one's rights in accordance with the law. The burden is on a plaintiff to point to circumstances which make it not reasonable to seek to enforce his or her legal rights in the way required by the law [15]. (emphasis added)

31 After referring to the structure of the Defamation Act 2005 (Qld) and the procedure for a concerns notice, before an offer to make amends (in like terms to the Defamation Act 2005 (WA)), Keane JA observed upon the circumstances in which the threshold requirements of s 32A(2) might be met. His Honour said:

One cannot seek to give an exhaustive list of the kinds of cases which might fall within s 32A(2) of the Act, but other cases which come to mind are cases where a plaintiff is not able to establish the extent of the defamation or is without the evidence necessary to establish his or her case during the year after the publication. An action brought in such circumstances might be said to be speculative or irresponsible. In such cases it might be said that the commencement of proceedings and the incurring of costs would be so disproportionate to the prospects of success or to the quantum of damages which might have been expected to be recoverable as to render the commencement of proceedings unreasonable [17].

32 After reviewing observations by Dutney J in Robertson v Hollings and an earlier decision by Kingham DCJ in Murphy v Lewis [2009] QDC 37 [32], Keane JA observed:

The test posed by s 32A(2) is an objective one. When s 32A(2) refers to 'the circumstances', it means the circumstances as they appear objectively to the court and not 'the circumstances which the plaintiff believed, however unreasonably, to exist' [20].

33 In Noonan, Chesterman JA also reached the conclusion that the requirements of s 32A(2) had not been met by the plaintiff. His Honour said:

The application required the primary judge to address s 32A(2) of the Limitation Act. The subsection is unusual. It requires a court to extend time if it be satisfied that the described precondition has been fulfilled. The court has no discretion in the matter. If so satisfied it must extend time. However, there is a discretion as to the length of the extension to be granted which, in any event, may not exceed three years from the date of the defamatory publication [47].

34 The observations by Chesterman JA in respect of discretion as to the length of extension, appear to refer to s 32A(4) in the Queensland statute by reference to the use of the word 'may'.

The subsection is unusual in a second respect. It does not, as does other legislation allowing for an extension of a limitation period, permit the extension where it was reasonable, because of defined circumstances, to extend time. To obtain an extension an applicant must demonstrate that it would have been unreasonable for him in the particular circumstance to have commenced an action within the first year after publication. That is to say an applicant must demonstrate affirmatively that he would have acted unreasonably in suing within time [48].

36 Like Keane JA, Chesterman JA thought that the test imposed was a difficult one for a plaintiff to satisfy. His Honour agreed that the test was objective (see [65]).

37 The third member of the Queensland Court of Appeal in Noonan, Holmes JA, agreed with Keane and Chesterman JJA that s 32A(2) of the Limitation of Actions Act 1974 (Qld) was an unusual provision. He said:

It requires more of an applicant for an order extending the limitation period for a defamation action than that he show that it would have been reasonable for him not to commence an action within the one year period; he must go further and establish something rather more difficult: that it would not have been reasonable for him to do so [30].

Holmes JA joined the other members of the court in allowing the appeal and dismissing the respondent's application for extension under s 32A.

38 In Rayney [No 3], Martin CJ assessed the plaintiff's proposed amendments to a writ of summons. The amendments were allowed by his Honour by the application of O 21 r 5 of the RSC (see [34], [38] - [39]). However, the Chief Justice also assessed an alternative argument of the plaintiff, on a basis that the proposed amendment to the writ would introduce a new cause of action, thereby raising a scenario outside O 21 r 5. On that hypothesis it would have been necessary for the plaintiff to obtain an extension under s 40(2) of the Limitation Act 2005. The Chief Justice made some brief observations concerning s 40(2). He noted the decision of the Queensland Court of Appeal in Noonan. He then observed, by reference to the 'not reasonable' threshold as found in s 40(2) of the Limitation Act 2005 (having regard to the failure of the plaintiff there to commence action within one year from publication of the allegedly defamatory matter), that:

That is a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances such as, for example, the plaintiff being unaware of the publication within the period of one year from the publication having occurred. The important points to note are that by virtue of s 79 of the Limitation Act the onus of proving that it was not reasonable to have commenced within the period of one year rests with the plaintiff, and as the Court of Appeal of Queensland observed in the case of Noonan v MacLennan [2010] QCA 50, the burden that must be discharged is to establish that it was not reasonable to have commenced within one year. It is not a burden which is discharged by showing that it was not unreasonable to have not commenced within one year [41].

Martin CJ concluded that in the circumstances presented by Rayney [No 3], the plaintiff faced an almost impossible burden to discharge the onus under s 40(2). Had it been necessary to rule on the alternative argument, his Honour would have refused the extension sought in reliance upon that provision (see [43]). He also observed that there was no residual discretion in the court to extend time, in the event of a failure by a plaintiff to meet s 40(2) of the Limitation Act 2005 (see [44]). See also the Chief Justice's observations at [50], to the effect that there is no general discretionary power under s 40 to extend time, and conversely that 'if the plaintiff satisfies the onerous conditions specified by s 40(2), there is a duty to extend time'.

39 It is apparent that the nine facsimile communications of January/February 2009 the subject of the proposed further amendments to the writ (including four communications of January 2009 raised as discrete further defamatory causes of action) were not seen by the plaintiff until the inspection of copies provided by the AGS (to her solicitors) under the non-party discovery orders of Hasluck J. The inspection only occurred on 14 January 2010. By then the one-year limitation period had run in respect of two of the four January 2009 facsimiles.

40 It is convenient to set out par 49A from the minute of proposed further amended statement of claim, which shows how these four January 2009 communications are proposed to be relied upon by the plaintiff. Paragraph 49A reads (relevantly):

49A. Between 13 January 2009 and 16 February 2009, using Parliamentary letterhead, the Defendant published a series of letters to the AGS (by its Chief Executive Officer De Gruchy) of and concerning the Plaintiff as follows:

49A.1 a letter by facsimile dated and sent on 13 January 2009, with the subject line 'Complaint and application for compensation', totalling 15 pages (First Letter), [see Schedule 1 to the Minute claim setting out the text of the First Letter];

49A.2 a letter by facsimile dated and sent on 14 January 2009, with the subject line 'Complaint and application for compensation', totalling 2 pages (Second Letter) [see Schedule 2 to the Minute];

49A.3 ...

49A.4 a letter by facsimile dated and sent on 19 January 2009, with the reference line 'Ms D Wookey', totalling six pages, including the Defendant's letter to the AGS dated 19 January 2009 being an application for access to documents of the AGS under Freedom of Information legislation (Fourth Letter) [see Schedule 4 to the Minute containing the text of the Fourth Letter]; and

49A.5 a letter by facsimile dated and sent on 21 January 2009, with no subject or reference line, totalling four pages (Fifth Letter); [see Schedule 5 to Minute containing text of Fifth Letter of 21 January 2009].

49A.6 ...

41 Keeping in mind that the plaintiff issued her writ in these proceedings on 27 January 2009, I will set out below a table in respect of the four further defamatory publications of January 2009 which are proposed to be raised as new causes of action and highlighting in each instance the relevant expiry date for the applicable 12-month time limit.

Section 15 Limitation Act 2005 Expiration date, 12 months from date of publication

Copy of alleged defamatory publication inspected by plaintiff's solicitors

42 It will be seen that the 12-month period of limitation applicable under s 15 of the Limitation Act 2005 had already expired in respect of the facsimile communications of 13 and 14 January 2009 before that material had been inspected by the plaintiff's solicitors. Senior counsel for the defendant asserted from the bar table during the hearing that the second facsimile had not in fact actually been published until a day later (ie on 15 January 2009), based on an AGS facsimile receipt stamp observable on the facsimile communication. But that information was not otherwise put before me. Even then, it would only push events back by one day, for that one publication. It would mean that the plaintiff's solicitors were inspecting the 14 January 2009 document on the very day (ie 14 January 2010) that the 12-month limitation period was to expire.

43 In respect of the third publication of 19 January 2009, the plaintiff's solicitors had (excluding Thursday 14 January 2010, when inspection by the plaintiff's solicitors took place) Friday 15 January 2010, an intervening weekend, then Monday 18 January 2010, as allowable time to act, before the 12-month limitation period expired that day.

44 For the last publication, the publication of 21 January 2009, the plaintiff's solicitors had from Friday 15 January 2010, until close of business on Wednesday 20 January 2010, to meet the looming 12-month s 15 Limitation Act limitation deadline (ie four working days plus a weekend, excluding the day of inspection on Thursday 14 January 2010).

45 As regards both publications of 19 and 21 January 2009, it would have been possible for the plaintiff's solicitors to have issued out of the Supreme Court a generally indorsed writ commencing fresh proceedings in respect of those allegedly stand alone defamatory communications to the AGS, before the expiry of the 12-month limitation period, tight as that working time frame would have been. Instead, from 15 January 2010 the plaintiff's solicitors pursued what proved to be an ultimately fruitless conferral process with the defendant's solicitors through correspondence, before finally issuing on behalf of the plaintiff the chamber summons presently under consideration of 17 March 2010 (filed 18 March 2010) - seeking leave to further amend the writ and the statement of claim, in the terms I have set out.

46 The consequence of the plaintiff proceeding as she did, is that in the wake of strong opposition from the defendant and a need for the matter to be programmed for argument at a special appointment, the plaintiff's application to amend the writ was not heard until 10 June 2010. Counsel for the plaintiff submitted that the conferral and amendment approach that was adopted was the proper way to proceed, bearing in mind a need for conferral and the already active defamation proceedings, extant since January 2009. Mr Bennett referred me to a component of the original statement of claim of 23 February 2009 (par 32.3), which by amendment on 17 March 2009 became par 48.3, that mentions specifically the defendant 'lodging a complaint against the plaintiff with her employer, the AGS'. The argued significance of the original reference is that the subject matter of a complaint to the plaintiff's employer by the defendant was already within the purview of the existing proceedings - so that the course of pursuing an amendment, rather than immediately issuing fresh proceedings, was preferred if not required, in order to avoid overlap and associated concerns as to potential abuse of process by a duplicity of proceedings.

47 Accordingly, from at least 23 February 2009, under par 32.3 (later 48.3) of the statement of claim as filed, the plaintiff has articulated a grievance against the defendant, based upon the defendant's contact with her employer (the AGS) (albeit she did not at that point know the content of the complaint communication(s), as I will explain below). At that time, the plaintiff was relying upon a complaint to her employer by the defendant as a publication essentially bearing upon her other claims for aggravated damages (see par 49 of the amended statement of claim).

48 Unless relevant to a submission as to the defendant's prejudice, by reference to s 44(a) or s 44(b) of the Limitation Act 2005 (which there is not), conduct occurring subsequent to the expiry of the one-year limitation period does not, as I have observed, appear to bear upon the required objective assessment to be made by the court under s 40(2). A court 'must' extend the time, where the requirements of s 40(2) are satisfied, by reference to its assessment of the inaction of the plaintiff over the period ending at the point of an expiry of one year from the date of publication.

Extension: The communications of 19 and 21 January 2009 as separate defamatory publications

49 If a looming 12 month limitation deadline was not a pressing consideration, it might have been understandable for the plaintiff and her advisers to have sought to incorporate the further publications of 19 and 21 January 2009 by way of proposed amendments into the existing proceedings and then to proceed by way of conferral with the defendant's solicitors to seek to have them accept that course, by reference to O 59 r 9 of the RSC. But the plaintiff's conduct in only filing an application (pursuant to her chamber summons of 17 March 2010) for leave to further amend her writ and statement of claim, once the 12-month limitation period had expired is, in my assessment, difficult to reconcile with s 40(2), which as has been seen imposes an onerous threshold for a plaintiff seeking an extension under that provision.

50 As I have mentioned, the plaintiff's counsel argued that the issuing of fresh proceedings by a separate writ based on the early 2009 complaints to the AGS would have potentially constituted an abuse of process, having regard to subsisting par 32.3. However, I am not moved by that contention. Any ensuing overlap could readily have been excised by amendment made in these proceedings, in due course. Realistically, there was no obstacle to the plaintiff issuing fresh proceedings swiftly, once her solicitors had been provided with copies of the documents under the non-party discovery orders on Thursday 14 January 2010. Indeed, on Friday 15 January 2010, the plaintiff's solicitors took little time at all to write to the defendant's solicitors in terms which reflected their complete appreciation of the significance of new materials, as well as the looming s 15 limitation of action deadline, that was manifest (see annexure JTB4 to the supplementary affidavit of John Toby Bishop sworn 27 May 2010):

Yesterday I was able to inspect the documents discovered by the Australian Government Solicitor. It is plain that by the communications by your client to my client's employer (9 in total) were defamatory of my client.

This will occasion further amendment to the statement of claim and thus the defence.

...

I will need to analyse further the communications from your client to the Australian Government Solicitor. The first two of them are dated 13 and 14 January 2009. This will require my client to make an application under section 40 of the Limitation Act, 2005.

Given that:

1. your client refused to produce copies of these documents despite request;
2. the Australian Government Solicitor would not produce them until ordered to do so by the Supreme Court;
3. inspection has only just been able to be carried out;

kindly let me know (for the purpose of conferral), whether your client consents to an extension of time being granted by the court pursuant to section 40 of the Limitation Act in respect of those publications.

51 Thus the plaintiff, through her solicitors, as of 15 January 2010, had quickly assessed the January 2009 communications as potentially defamatory. The plaintiff's advisers were also very well aware of the looming expiry of the one-year limitation period. Indeed, in respect of two of the communications inspected (of 13 and 14 January 2009), it was apparent that her solicitors then appreciated that the 12-month limitation period had already expired (as of 15 January 2010).

52 Given that the 12-month limitation period was due to expire within a matter of mere days in respect of the communications of 19 and 21 January 2009, the looming limitation period expiry issue was obviously of the utmost urgency. Swift protective action was called for. There was no room for any potential delays.

53 The looming 12-month limitation deadline in respect of the communications of 19 and 21 January 2009 could have been easily met by the immediate issue of a fresh writ addressing each of these 2009 publications, if they were to be relied upon as further stand alone defamatory causes of action. This protective action was well capable of being implemented by competent solicitors in a matter of only hours, rather than across days or weeks. Any ensuing concerns over duplication, or overlap as against the existing pleadings in this action (in particular, towards par 48.3 of the amended statement of claim) could have been addressed and resolved if necessary, far less urgently. If there really was any live duplication issue raising a potential abuse of process, par 48.3 in the amended statement of claim in these proceedings could have been excised from the pleading. The fresh proceedings as between the same parties could then have been consolidated with this existing action - see O 83 RSC.

54 Whilst I do not assess the plaintiff or her advisers to have acted unreasonably in pursuing the amendment course they followed, that is not the applicable standard test in the application of s 40(2): see the cases to which I have earlier referred. The standard is set at a more onerous level.

55 Here, I am not satisfied that in respect of the facsimile communications of 19 and 21 January 2009, it was 'not reasonable' in all the circumstances for the plaintiff to have delayed past Friday 15 January 2010, when her solicitors wrote to the defendant's solicitors showing their correct appreciation of the position. In my assessment, the plaintiff should have immediately commenced fresh proceedings by the issue of a generally indorsed writ, by the close of business on Friday 15 January 2010: see O 6 r 2 and r 3(b) of the RSC. The fresh proceedings, in due course, could then have been consolidated with these proceedings. Protective conduct of that nature would have obviated all arguments over the elapsing of the one-year s 15 limitation period subsequent to publication of these alleged defamatory facsimiles of 19 and 21 January 2009.

56 Accordingly, I must refuse the plaintiff's application under s 40(2) seeking the extension of time in respect of the communications of 19 and 21 January 2009, at least to the extent that it is sought to raise those publications as separate defamatory causes of action. That, of course, is to say nothing about their potential utility in the litigation for other ends, particularly as to circumstances of aggravation relevant to the plaintiff's damages case upon her subsisting causes of action.

Extension: The communications of 13 and 14 January 2009, as separate defamatory publications

57 In the context of the extension of time sought by reference to s 40(2), it is necessary to separately assess the defendant's facsimile communications of 13 and 14 January 2009 to the AGS, where it is apparent that somewhat different factual considerations present. The 12-month limitation period had already expired by the time the AGS provided copies of the 2009 complaint communications to the plaintiff's solicitors to facilitate their inspection, on 14 January 2010.

58 Where potentially defamatory material has not been seen by a plaintiff until after the expiry of the one-year period of limitation, that fact may be thought, ordinarily, to lend some support to a plaintiff's application to extend time by leave under s 40(2). I mention again the observations of Keane JA in Noonan [17] in terms of obtaining an extension where a plaintiff may not be able to establish the extent of a defamation, until after the one-year period of limitation has elapsed. I also note observations in Rayney [No 3] [41] by the Chief Justice, who mentions the s 40(2) hurdle for a plaintiff as being potentially overcome where a plaintiff was unaware of the publication within the period of one year from publication.

59 However, in this case, the plaintiff had been well aware throughout most of 2009 of the existence of at least one communication in the nature of a complaint by the defendant against her to her employer the AGS. Indeed, the plaintiff expressly pleaded such a complaint in her statement of claim of 23 February 2009 (par 32). Given what was already raised in this defamation litigation extant between the parties since 27 January 2009, the plaintiff and her legal advisers must have had at least a strong suspicion about possible defamatory content in this complaint, although the precise content of what had been said, and indeed the extent of communications to the AGS by the defendant, was unknown to the plaintiff during 2009.

60 Towards these two publications, the defendant's submission essentially is that the plaintiff ought to have proceeded more diligently during 2009, in pursuing her non-party discovery application against her employer, the AGS. To evaluate this submission, it is necessary to scrutinise more closely the progress of this litigation.

61 After issuing her writ on 27 January 2009, the plaintiff filed the first statement of claim on 23 February 2009. The matter was then judicially case-managed, as are all defamation actions, in the Commercial and Managed Cases List. On 9 March 2009, Hasluck J granted the plaintiff leave to amend the writ and to file an amended statement of claim by 17 March 2009. That all followed.

62 There appear to have ensued a number of conferrals between the parties' solicitors over the acceptability of various pleadings. Conferral between solicitors is proper, and indeed required under O 59 r 9 RSC, and is the custom in defamation matters where pleading disputes are a common feature of the interlocutory phase of the litigation.

63 Meanwhile, by late January or early February 2009, the plaintiff had spoken to her department head at the AGS (Ms Louise Vardanega) in Canberra, about contact between the defendant and AGS (par 4 of the plaintiff's affidavit sworn 26 May 2010). From a conversation with Ms Vardanega, the plaintiff knew that 'the defendant [had] corresponded with the (AGS)' (par 3 of the affidavit). The plaintiff's oral request for access to correspondence from the defendant was rebuffed. She was informed that the defendant's correspondence would not be provided voluntarily, but would be under court order. This stance was orally communicated direct to the plaintiff by Ms Vardanega (see DAW1 to the plaintiff's affidavit of 26 May 2010). The matter did not end there, however.

64 By a letter of 2 March 2009 the plaintiff formally requested her employer to reconsider the decision not to voluntarily provide copies of communications from the defendant concerning her. She wrote:

I ask that AGS reconsider that decision. I enclose a copy of the Statement of Claim filed in my defamation against Mr Quigley. I refer you, in particular, to para 32.3 of that document. You will see from that that I request copies of the relevant documents for a legitimate forensic purpose in the litigation.

65 [Paragraph 32.3 of the statement of claim, as I have mentioned, raised the issue of 'Lodging a complaint against the plaintiff with her employer, the AGS'. This became par 48.3 in the amended statement of claim of 17 March 2009.]

66 The plaintiff related the response to her formal letter of request under par 10 of her affidavit of 26 May 2010. She swore:

In or around March or April 2009, Ms Vardanega advised me in words to the effect that 'the Australian Government Solicitor would not voluntarily provide me with access to the correspondence but would do so either at the consent of the defendant or if required to do so by Court order'.

67 By April 2009 at the latest then, the plaintiff plainly knew that her employer, the AGS, would only provide her with access to the defendant's complaint against her under the compulsion of a court order.

68 On 8 May 2009, the defendant filed a defence in this action. Conferral between solicitors was unable to resolve the plaintiff's objections to that pleading. In the end, the plaintiff needed to pursue a contested strike-out application against the defence, heard by Hasluck J on 15 September 2009.

69 The plaintiff's strike-out application against the defence was ultimately successful: see Wookey v Quigley [2009] WASC 284.

70 This led to the filing of a substituted defence on 7 October 2009. More difficulties were raised over that pleading. The process of solicitor conferral ultimately led to the filing of an amended substituted defence on 9 November 2009, at which time grievances over the pleadings appear to have (temporarily) abated.

71 The plaintiff swore an affidavit of 20 October 2009 in furtherance of non-party discovery orders against her employer. She referred to her unproductive requests to her employer, including with Ms Vardanega. In par 6 of that affidavit of 20 October 2009, she concluded:

I verily believe by reason of the matters pleaded in my statement of claim and in particular the matters pleaded in paragraph 48 and 49 which are pleaded to by the defendant in his Substituted Defence in paragraphs 27 and 28 that the Canberra office of the Australian Government Solicitors has in its possession documents which may relate to this matter in question between myself and the defendant.

72 Paragraph 27 of the substituted defence sees the defendant admit publishing the further publications mentioned in par 48 of the amended statement of claim (constituting, therefore, an admission as to the making of the defendant's complaint to the plaintiff's employer). The defence under par 27(b) goes on to assert that the further publications of the defendant (including to the AGS) 'were a direct and reasonable response to an attack by the plaintiff and her solicitors on the defendant's reputation'.

73 On 25 November 2009, the plaintiff's solicitors filed the chamber summons seeking non-party discovery against the AGS concerning the defendant's complaints. The plaintiff's supporting affidavit had been sworn a month earlier, on 20 October 2009.

74 On 17 December 2009, Hasluck J made the orders sought by the plaintiff for non-party discovery. It appears that the defendant did not, in the end, oppose those orders, which relevantly, were:

Pursuant to O 26A r 5, Rules of the Supreme Court, discovery be given by the Australian Government Solicitor's Office of all correspondence or documents comprising communications to the Australian Government Solicitor by the defendant from 20 December 2008 until the date hereof.

It will be seen that no time for providing the non-party discovery was actually stipulated in the order made against the AGS.

75 As mentioned, non-party discovery was finally provided by the AGS by the filing of a list of documents verified on oath by a Ms De Gruchy on 12 January 2010. The plaintiff's solicitors were able to obtain copies of the documents the subject of that list from AGS two days later. So, finally an inspection of the defendant's complaint communications to the AGS occurred on 14 January 2010, some 8 1/2 months after the AGS advised the plaintiff that a court order would be required.

76 The essential question is whether the plaintiff's failure to apply earlier against her employer to compel non-party discovery, impacts against her obtaining an extension under s 40(2). The plaintiff says that it would have been inappropriate to bring the application to compel non-party discovery until outstanding issues surrounding the state of the pleadings in this litigation were resolved. This did not occur, it is said, until the filing of the amended substituted defence of 9 November 2009. However, I do not accept this argument as a sufficient basis to justify failing to bring the application for non-party discovery much earlier.

77 Where a person does not know the content of a publication to someone which they know exists, yet they suspect it may be defamatory of them, the person would ordinarily be expected to take prompt steps to obtain access to the publication, with a view to assessing whether the communication is defamatory or not. In the present case, the plaintiff made requests to her employer, but then delayed essentially until the pleadings in this litigation had closed, before filing the application to compel non-party discovery - notwithstanding that she obviously knew of at least one communication to the AGS by the defendant in the form of a complaint made against her. She was of course engaged since 27 January 2009 in the pursuit of this litigation against the defendant - about distinct publications which she contends were defamatory of her and had been published to other persons. She was also posted overseas in the Solomon Islands as part of her employment during parts of 2009.

78 In my view, the affidavit sworn by the plaintiff of 20 October 2009 is insightful in terms of its (non) content. Apart from par 6, there is nothing at all in that affidavit used in support of the application for non-party discovery, which could not have been put before a court at a much earlier time - from at least from April 2009, when the plaintiff's employer had confirmed its decision to decline to make the complaint communication(s) from the defendant voluntarily available to her.

79 Paragraph 6 of the plaintiff's affidavit of 20 October 2009 adds information to the effect that the defendant, by his defence, admits the authorship and the dispatch of the Further Publications, as referred to in the statement of claim (including, therefore, the publication of a complaint to AGS). But this material hardly advanced matters. After all, the plaintiff already knew about a complaint by the defendant against her to the AGS. In fact, her employer had told her about it: see par 5 in the plaintiff's affidavit of 26 May 2010, where she says 'at the time I had the Conversation, I was not aware of the contents of any correspondence other than it was a complaint about me'.

80 Given the intense defamation litigation as between these parties since 27 January 2009 and what was pleaded by the plaintiff from at least 23 February 2009, concerning the defendant's communications with a series of third persons against her of a defamatory character, the plaintiff and her advisers must surely have suspected that a 2009 'complaint' made against her from the defendant to her employer could be potentially defamatory. Access to the complaint(s) document should have been pursued diligently, in order for it to be evaluated from the perspective of founding litigation.

81 There was, in my assessment, no sufficient justification for the plaintiff to delay until late November 2009 (until after the close of pleadings), in bringing the application for third party discovery against the AGS - particularly given the short 12-month period of limitation under s 15, of which her solicitors were well aware.

82 The statutory policy underlying s 15 deliberately sets a short limitation period. This demands that parties and their advisers act timeously in respect of the narrow limitation window that is allowed. Not bringing the application for non-party discovery much earlier (after April 2009, when the plaintiff was told once again, in formal response to her letter of 2 March 2009, that the communications from the defendant to AGS would not voluntarily be provided to her) until 25 November 2009, injected a period of approximately seven to eight months' delay - as regards the accessing of the complaint materials by the defendant which were in the possession of the AGS. Once the application was filed and the orders made by Hasluck J on 17 December 2009, the complaint documents were obtained relatively swiftly from AGS - in less than a month.

83 In all the circumstances, even though the plaintiff's solicitors did not actually have the opportunity to view and assess these two publications until 14 January 2010 (when the 12-month limitation period had then expired in respect of the publications of 13 and 14 January 2009), I would assess the cause of them not having that opportunity until then and of the 12 month period expiring before suit was brought, as the plaintiff's failure to pursue the non-party discovery application more diligently, after April 2009.

84 I repeat that the threshold imposed under s 40(2) to secure an extension of time is a high one, especially in the face of a period of delay that may be explicable, albeit not excusable.

85 Here, in all the circumstances, I am once again not satisfied that it was 'not reasonable' for this plaintiff to have waited until the pleadings closed in November 2009, before pursuing her application for non-party discovery against her employer. Accordingly, the plaintiff has not met the threshold for an extension as imposed under s 40(2). I would also decline therefore to grant an extension under s 40(2), as regards the communications of 13 and 14 January 2009.

86 I reach this conclusion somewhat reluctantly, mindful of the consideration that copies of documents to which the plaintiff's advisers finally obtained access from the AGS on 14 January 2010 would appear at all times to have been in the possession of the defendant (as author), but were not produced by the defendant's solicitor, notwithstanding requests that they be voluntarily provided. In the end, however, this countervailing consideration against the defendant is not sufficient for the plaintiff to overcome the high threshold that is set under s 40(2). Here, there was an unjustifiable delay by the plaintiff in not bringing the non-party discovery application about AGS for some seven to eight months, which simply cannot be overlooked.

87 Accordingly, the application for an extension of time under s 40(2) must be dismissed in its entirety and leave to further amend the writ and statement of claim under each minute as submitted to date, will be refused.

88 However, the plaintiff has indicated that she would propose to rely upon the nine 2009 complaint publications by the defendant to AGS in this litigation in a distinct context of supporting her claim for aggravated damages - based on existing causes raised upon other allegedly defamatory publications. The defendant raised no in-principle objection to that course during the argument before me.

89 In all the circumstances, it seems to be appropriate for the plaintiff to bring in further minutes of amended writ and amended statement of claim on the application, which are limited to pleading reliance upon the nine 2009 complaint publications as materials going to raise circumstances of aggravation.

90 I will hear the parties as to the appropriate orders upon the publication of these reasons.