Mowen v Morning Bulletin/APN & Ors [2012] QSC 194

Bennett & Philp Lawyers for the first and second respondents

[1] McMEEKIN J: Mr Mowen applies under s 32A of the Limitation of Actions Act 1974 (Qld) ("the Act") for an extension of the limitation period in which to bring an action for damages for defamation against two named individuals and an entity described as "The Morning Bulletin/APN". The connection between the named individuals and the alleged defamatory publication is not identified in the Statement of Claim but the respondents refer to the second defendant as a journalist. It would seem that the third respondent has never been served in accordance with the Rules. The respondents have taken the limitation point against Mr Mowen in their defence.

[2] Mr Mowen is not represented and appears in person.

[3] The application is opposed. There are two grounds argued:

(a) The Court has power under s 32A to extend for only three years from the accrual of the cause of action and that period has now elapsed;

(b) Mr Mowen is not able to satisfy the test laid down in s 32A which would justify an extension being granted.

An action on a cause of action for defamation must not be brought after the end of 1 year from the date of the publication of the matter complained of.

(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."

[5] A useful summary of the relevant principles on applications of this type was essayed by Hislop J in Cassar v Network Ten Pty Limited [2012] NSWSC 680 at [16]:

"It has been held in respect of s 56A (or its equivalent in other States[1]) that:

(a) the burden that must be discharged is to establish 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 date of the publication - Noonan v MacLennan [2010] QCA 50 ; [2010] 2 Qd R 537; Rayney v Western Australia (No 3) [2010] WASC 83 at [41];

(b) the onus rests with the plaintiff - Rayney [41], Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676; Carey v Australian Broadcasting Corporation [2010] NSWSC 709; (2010) 77 NSWLR 136 at [45];

(c) the test is objective - Noonan [20], Carey [48];

(d) it is a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances - Rayney [41];

(e) if the plaintiff proves the fact then the court is obliged to extend time. Extension in these circumstances is mandatory - Ahmed [28], Carey [45];

(f) section 56A limits the period of extension to an extension "of up to three years running from the date of publication". This has been described as involving the exercise of a discretion in the sense of involving a normative judgment - Ritson v Gay and Lesbian Community Publishing Ltd [2012] NSWSC 483 at [24], [25]."

[6] Mr Mowen's pleaded case is that the Morning Bulletin published defamatory matters about him on 7 August 2006 and 19 May 2009. He filed proceedings on 21 May 2012. The respondents submit that even if an extension was warranted and granted it could only be for three years as s32A(2) expressly provides, and that is not sufficient in relation to either publication. The claims would still be out of time and subject to a successful limitation defence.

[7] Mr Mowen's answer to this argument was that the publication of defamatory matter continued after 19 May 2009. Indeed he led evidence that a search of the Morning Bulletin website revealed that the offending article of 7 August 2006 could still be accessed on the day before the hearing. But his pleaded case is not that he complains of publications within the last 12 months. His point was wider than that. He contended that the articles were defamatory of him because later articles did not retract the implications that he says were evident in the articles complained of nor modify the inaccuracies that he says were hurtful to his reputation. He contended that one should look at all the articles published in their entirety - and two followed the two pleaded and were arguably within the three year period - and taken as a whole they were defamatory.

[8] Mr Mowen's submission I think misconstrues the effect of these later publications. They might well be relevant to issues such as damages and malice but the crucial date for limitation purposes is the date of publication of the alleged defamatory matter. Section 10AA says as much. And Mr Mowen's pleaded case is quite clear that he relies on the publication of articles on the dates I have mentioned.

[9] I think that the respondents' first point is right - the Court simply has no power to assist Mr Mowen.

[10] I think that the respondents' second point is right too.

[11] The issue is whether Mr Mowen can demonstrate to the Court's satisfaction 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 date of the publication".

[12] Mr Mowen submitted, not always with any evidence to support his contentions:

(c) that he was distracted by the need to attend to the serious criminal charges brought against him that were the subject of the articles complained of and which came to trial only in the week of the second publication;

(d) that he had not acted in defiance of the limitation period but rather in ignorance of it;

(e) that he had endeavoured to get legal assistance but was impecunious and so had been unsuccessful in those attempts.

[13] Mr Mowen's principal point is that he was ignorant of the one year limitation period and that given his background his ignorance was understandable. He swore, and I accept, that he learnt of the existence of the one year period only from the respondents' solicitors when they wrote alerting him to what they perceived were fatal defects in his case. That ignorance, however, cannot afford any proper basis for an extension. As Keane JA explained in discussing these provisions in Noonan v MacLennan & Anor [2010] QCA 50 at [22]:

"Consideration of the issue of reasonableness must commence from the position that the Act lays down strict time limits for the commencement of proceedings for damages for defamation. No doubt the legislature was moved to fix these strict limits for good reason. These limits are part of the law of the land to be observed by all persons save where s 32A(2) is engaged. And on any view of s 32A(2) of the Act, it operates by reference to what is reasonable. Mere ignorance of the strict time limits fixed by the Act cannot afford a reasonable basis for not complying with them. Generally speaking, ignorance of the law has never been thought to be a reasonable basis to relieve a person of the consequence of non-compliance with the law."

[14] It is worth noting that Mr Mowen was not ignorant of the fact that there was a limitation period applicable to his causes of action - he thought that it was three years not one. He missed the three year period too as it happens. But the point is that conscious that limitation periods applied to his causes of action he did not check to see what those periods were. Mr Mowen may have had little formal education but he is by no means an ignorant man and, this was an elementary step to take. Mr Mowen is not unfamiliar with litigation and has certainly shown an ability in the past to research legislation relevant to issues in that litigation: see Mowen v Queensland State Government [2011] QSC 12; and on appeal Mowen v State of Queensland [2011] QCA 137.

[15] Mr Mowen's next and best point is that he was distracted from pursuing any defamation action by the pending criminal charges which had potentially serious consequences for his liberty and it was reasonable that he await their resolution.

[16] If accepted - and I am not convinced it can provide a sufficient excuse - that would assist him in relation to the first article but hardly the second. That is so because the distraction of the criminal charges existed for the whole of the year following the earlier publication but not the second. The publication on 19 May 2009 apparently followed the first day of a four day trial. So four days delay is accounted for by this excuse. Mr Mowen was then found not guilty and the charges were no longer a distraction. No explanation, save ignorance of the limitation period, is offered for the delay that ensued. That comes nowhere near justifying the inaction for the 361 days that followed.

[17] As to the first publication, while I can readily accept that the criminal charges were a distraction I am not persuaded that the existence of competing claims on a person's attention and focus can satisfy the statutory test. The examples that Keane JA suggested in Noonan would satisfy the test were of a very different nature - "a case where the plaintiff has been engaged in the pursuit of non-litigious processes to vindicate his or her rights. In such a case, it may well be unreasonable to disrupt those processes and to incur needless expense by commencing proceedings" and "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."[2]

[18] I appreciate that his Honour did not intend that his list be treated as exhaustive but the relevant character of the matters Keane JA discussed each go to the unreasonableness of commencing an action - not to whether it might be reasonable for an intending litigant to delay because of other pressures. It is worth noting that the preferred construction of the provision so far favoured in the authorities[3] is not that it is sufficient for the applicant to show that it was "reasonable in the circumstances that he or she not commence an action within one year". Rather 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": Noonan v MacLennan & Anor at [15] per Keane JA. Chesterman JA put it this way in Noonan: "...an applicant must demonstrate affirmatively that he would have acted unreasonably in suing within time."[4] A decision to focus on other issues does not meet that test.

[19] I note that Noonan itself was a case where the applicant had concentrated on other matters - certain grievance procedures - rather than pursuing his defamation action. It was held that Mr Noonan could not meet the statutory test. Similarly in Murphy v Lewis [2009] QDC 37 per Kingham DCJ.[5]

[20] Mr Mowen made reference in his submissions to his difficulties in obtaining any legal advice. His submissions were not supported by any affidavit material and hence are difficult to assess. Why he formed the view that a three year period pertained to defamation proceedings is not explained. Assumptions about the law formed without research or advice is hardly reasonable - if that indeed occurred here. It is not irrelevant that for some period, not specified, he did have ready access to legal advice. I refer to those acting for him in relation to his criminal charges. At some point Mr Mowen dismissed those practitioners. I am given no information as to what enquiries were made of them, if any, and if none were made why not.

[21] Crucial to the cogency of submissions of this type are factors such as the timing of any enquiry, the precise nature of the enquiry, and whether any response that came justified some further step being taken, or not, by Mr Mowen. I have no knowledge of such matters. In the circumstances I can give these submissions little weight.

[22] The hurdle that Mr Mowen faces is a high one and justly described as "a difficult hurdle for a plaintiff to overcome".[6] In my view he has not done so.

[24] In these circumstances the respondents asked that the applicant's pleadings be struck out. There is an inherent jurisdiction to do so[7] and r 171 of the Uniform Civil Procedure Rules 1999 ("UCPR") gives a wide discretion to the Court to strike out. Where the cause of action disclosed by the pleading is irretrievably barred from success by reason of the expiry of a limitation period then it seems to me that to allow the pleadings to stand would unduly vex the respondents and effectively be an abuse of the process of the Court. There is simply no point to allowing the pleadings to stand.

[25] Mr Mowen made no submission to the contrary.

[26] I order that the Claim and Statement of Claim be struck out.

[27] There is no reason why the usual rule that costs should follow the event should not apply: r 681 UCPR. The issue here is whether the order should be on the indemnity basis. I note that r171(2) UCPR expressly preserves the jurisdiction to so order. Prior to bringing this application the respondents, by their solicitors, on three occasions pointed out the limitation difficulties that Mr Mowen faced and asked him to discontinue. He obviously declined to do so.

[28] The principles relevant to an award of indemnity costs were discussed by Sheppard J in Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225 at 232-4; Rolfe A/JA (as he then was) in Huntsman Chemical Company Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242 at 273; the Court of Appeal in NSW in Rosniak v Government Insurance Office (1997) 41 NSWLR 608; White J in Di Carlo v Dubois [2002] QCA 225; and Cullinane J in Smits v Tabone; Blue Coast Yeppoon Pty Ltd v Tabone [2007] QCA 337.

[29] In Emanuel Management Pty Ltd (in liquidation) v. Foster's Brewing Group Ltd & Ors [2003] QSC 299 Chesterman J (as he then was) adopted a test of irresponsibility in the conduct of the losing party which exposed its opponent to costs which should, in fairness, be ordered on the indemnity basis.

[30] I take the principles relevant to this case to include:

(a) that the normal order for costs is on the standard basis and some special reason is required for any departure from that;

(b) that generally speaking evidence of unreasonable or irresponsible conduct is required;

(c) persistence in a hopeless case may provide special reason;

(d) imprudent refusal of an offer to compromise also may provide such special reason.

[31] Here I do not think the respondents can argue that any offer of compromise was made - for example there was no reference to their position on costs, and nor did they seek to make offers under the rules.

[32] I do not think it fair to characterise the bringing of the proceedings as involving a degree of unreasonableness justifying a description such as irresponsible - Mr Mowen demonstrated that his reputation has suffered from comments published in the Morning Bulletin. That does not mean the comments were defamatory or that the respondents would not be able to demonstrate defences to the suit, but his complaint was far from frivolous.

[33] However the solicitors did point out the fundamental difficulties that Mr Mowen faced and Mr Mowen determined to attempt to overcome those problems, without however any authority to support his position. It is the persistence in the suit by requiring the hearing of the application that was doomed to fail that involves some degree of unreasonable conduct.

[34] While I have some sympathy for Mr Mowen being unrepresented and in a notoriously technical area of the law it seems to me only just that the respondents be protected where they have taken the trouble to alert Mr Mowen to his problems and given him the prospect of at least limiting his exposure to costs. He chose not to.

[35] I order that the applicant pay the respondents' costs of the application on the indemnity basis and its costs of the proceedings on the standard basis.

[2] Noonan v MacLennan & Anor [2010] QCA 50 at [16] -[17] per Keane JA

[3] Noonan v MacLennan & Anor [2010] QCA 50 at [18] per Keane JA; at [30] per Holmes JA; Robertson v Hollings unreported, Dutney J, SC No 2263, Supreme Court of Queensland, 6 April 2009.

[5] Cited with apparent approval by Chesterman JA in Noonan at [55]-[57]

[6] Rayney [41]; and see Noonan at [50] per Chesterman JA

[7] See the discussion in von Risefer v Permanent Trustee Company Limited [2005] QCA 109; [2005] 1 Qd R 681 at [11] and [14]-[21] per Keane JA