Error
42 The much more vexed question for present purposes is whether the Primary Judgment presents sufficiently as a product of error that might be corrected on appeal if leave is granted. That, it seems to me, turns significantly upon whether or not the power conferred by s 40(2) of the Limitation Act is one that contemplates the exercise of a judicial discretion.
43 In general terms, a discretionary decision is one in which "…'no one [consideration] and no combination of [considerations] is necessarily determinative of the result' [and in which] the decision-maker is allowed some latitude as to the choice of the decision to be made": Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, [19] (Gleeson CJ, Gaudron and Hayne JJ; hereafter, "Coal and Allied"), citing Jago v District Court (NSW) (1989) 168 CLR 23, 76 (Gaudron J). Typically, a statutory power conditioned by the attaining of a particular state of satisfaction, especially as to something as subjectively open to opinion as what is or is not reasonable in given circumstances, would qualify as one that involves the exercise of a discretion: Coal & Allied, [20] (Gleeson CJ, Gaudron and Hayne JJ); Avon Downs Pty Ltd v Commissioner of Taxation (Cth) (1949) 78 CLR 353, 360 (Dixon J).
44 In Norbis v Norbis (1986) 161 CLR 513, Mason and Deane JJ had occasion to consider the exercise of a statutory power that was exercisable by a court only if it were "…satisfied that, in all the circumstances, it [was] just and equitable" to do so. Their Honours observed (at 518):
…"Discretion" signifies a number of different legal concepts: see, e.g., the discussion in Pattenden, The Judge, Discretion, and the Criminal Trial (1982), pp. 3-10. Here the order is discretionary because it depends on the application of a very general standard - what is "just and equitable" - which calls for an overall assessment in the light of the factors mentioned in s. 79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion.
45 The characterisation of a judgment as one involving the exercise of a judicial discretion is significant. In House v The King (1936) 55 CLR 499, the plurality (Dixon, Evatt and McTiernan JJ, with whom Starke J agreed) explained it as follows (at 504-505), namely:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
46 Thus, a judgment that engages a statutory power that is exercisable upon the court's being "satisfied" as to the existence of some particular circumstance (here, that it was not reasonable to commence a defamation action within one year) is generally only amenable to review on appeal if it can be shown that there was some error in the process by which the state of satisfaction was reached.
47 But for the analysis that follows, I would not doubt that a decision made pursuant to s 40(2) of the Limitation Act would qualify as one that involves the exercise of a judicial discretion. Indeed, to my mind, it presents as a quintessential example. It is to be recalled that the power to extend the statutory limitation rests upon the court's being "…satisfied that it was not reasonable in the circumstances" for an action to have been commenced within a year. The state of satisfaction by which the exercise of the power is conditioned is expressly reserved unto the court (here, the learned primary judge). The subject matter about which it envisages that an opinion will be formed (namely, what was or was not reasonable in the circumstances) is, by nature, resistant to precise measurement. To adopt the language of the High Court, there is no one consideration - and no combination of considerations - that is necessarily determinative of what is reasonable in any given set of circumstances.
48 At the least, I would be inclined to accept that a decision to grant an extension under s 40(2) of the Limitation Act is one that involves the determination of an objective fact by means of value judgments (as to the distinction, see Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315, 324-325 [33]-[34] (Derrington J, with whom Perry and O'Sullivan JJ relevantly agreed)). In Singer v Berghouse (1994) 181 CLR 201, Mason CJ, Deane and McHugh JJ - addressing what was described as "the context of family provision cases" (which were said to involve an equivalent evaluative exercise based necessarily upon the formation of value judgments) - concluded (at 212) that the "correct approach" in matters of that kind was that "…the principles that govern appellate review of discretionary decisions should apply".
49 That being so, I would ordinarily be inclined to measure the Owens's prospects of overturning the Primary Judgment on appeal by the standards established by House v The King: that is to say that the question as to whether the Primary Judgment was attended with doubt sufficient to warrant appellate consideration would turn not upon whether it was or wasn't reasonable in the circumstances for the action to have been commenced more timeously; but upon an assessment as to whether or not the learned primary judge could be thought to have formed the relevant state of satisfaction otherwise than in a way that s 40(2) of the Limitation Act authorised.
50 If the question of error or doubt was to be assessed in that way, the case that the Owens hope to agitate on appeal would, with respect, present with some considerable weakness. As the proposed grounds of appeal (and the written and oral submissions advanced on the present application) disclose, the proposed appeal would, principally, charge the learned primary judge not with having wrongly formed the state of satisfaction that he formed; but, rather and more simply, with having mistakenly favoured the view that it was not reasonable in the circumstances for the respondents to commence their action within one year of when the Impugned Posts were created. They seek, in effect, to relitigate their resistance to the extension that the respondents sought and were given.
51 Contrary to my inclination, the authorities suggest that they are entitled to do as they propose (subject, of course, to obtaining leave to appeal).
52 In Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 (Fraser JA, Fryberg and Applegarth JJ; "Pingel"), the Supreme Court of Queensland (Court of Appeal division) had occasion to consider an appeal from a decision to grant an extension of a kind equivalent to that with which the Primary Judgment here was concerned. As to the nature of the decision in question, Fraser JA observed (at [34]-[36], references omitted):
Under s 32A the answer to the question whether it was not reasonable in the circumstances for the plaintiff to have sued within the limitation period determines the result of an application for an extension of time. Noonan v MacLennan & Anor established that the test is an objective one. No element of judicial discretion is involved in the decision whether or not an extension should be granted. (The selection of the period of any extension is discretionary, but that is not relevant in this appeal). The decision does involve an evaluation but that was also true in Warren v Coombes: trial judges are routinely called upon to evaluate the relative weight to be afforded to competing circumstances in the course of deciding whether the defendant failed to act with reasonable care. In relation to the principles governing appellate review it is not easy to identify any significant conceptual difference between that task and the task under s 32A.
Other decisions which have been found to attract limitations upon appellate review similar to those in House v The King include decisions about the quantum of costs, an apportionment of damages in a negligence case (regarded for this purpose as a discretionary decision) and a valuation (where an appellate tribunal is not justified in substituting its own opinion unless the valuation was invalidated by error of law or was "entirely erroneous"). In decisions of that kind, as in discretionary sentencing decisions, the approach of the law is that there is a range of valid answers to the question in issue. Those kinds of decisions may be contrasted with a decision under s 32A, where the touchstone of reasonableness allows for a single correct answer just as it does in a decision whether a defendant failed to take reasonable care.
It does not follow that the evaluative character of the decision under s 32A is irrelevant in appellate review. Under the appeal provisions mentioned earlier an appellant can succeed only by establishing that the decision appealed against resulted from factual, legal or discretionary error. As Allsop J observed in Branir v Owston Nominees (No 2) Pty Ltd "demonstration of error may not be straightforward where findings or conclusions involve elements of fact, degree, opinion or judgment." The evaluative character of a decision is one of the matters which must be borne in mind by an appellate court in fulfilling its obligation to give respect and weight to the decision appealed against; but if after conscientiously fulfilling that obligation the appellate court concludes that the decision is wrong, it must give effect to that conclusion.
53 Fryberg J considered it unnecessary to determine the nature of the appeal and whether it attracted the principles established by House v The King: Pingel, [80]. Although in dissent as to the result, Applegarth J agreed with Fraser JA as to the principles that should guide the appeal. His Honour held (at [153], [155]-[156], references omitted):
The appeal is against a finding of fact, not an exercise of discretion…
…
The issue…of whether it was "not reasonable in the circumstances" involves a value judgment, as do many findings of fact that involve a legal category of indeterminate reference such as reasonableness…
The appeal is by way of rehearing, but the court does not deal with the case as if it was determining the matter at first instance. The appellant needs to show error by the primary judge. Where a determination of fact involves "elements of degree, opinion or judgment, a simple preference in the appellate court for a view different from that taken by the trial judge may not carry with it the conclusion of error". The appellate court might conclude that there could not be said to be only one possible correct determination. If, however, the appellate court is persuaded that the evaluative judgment reached by the primary judge is wrong, it thereby identifies error.
54 This court has accepted that decisions granting extensions of time to commence defamation proceedings (on the basis that doing so more promptly was not reasonable) are decisions that do not involve an exercise of judicial discretion: see, for example, Landrey v Nine Network Australia Pty Ltd [2023] FCA 27, [8] (Lee J). That the principles governing the appellate review of discretionary decisions do not apply seems not to be doubted in state courts either: see, for example, Johnston v Holland (No 2) [2017] VSC 597, [29] (John Dixon J); Paule v McKay (No 2) [2022] ACTSC 190, [19] (McWilliam AsJ).
55 That also appears to be the approach that was adopted by the full court of this court in Joukhador v Network Ten Pty Ltd (2021) 283 FCR 1 (Rares, Wigney and Bromwich JJ). There, the court granted leave and allowed an appeal from a primary decision that refused an extension of time under an analogous statutory power. En route to doing so, their Honours observed (at 12 [51]):
…The question of what is not reasonable in the circumstances requires the court to evaluate all of the objective circumstances as a whole, not piecemeal. In the end, that evaluation is a question of fact, but the assessment proceeds by reference to the claimant's position and whether, objectively, it would not have been reasonable for him or her, in light of all of the circumstances, to commence the proceeding within one year of the publication complained of.
56 The court went on to assess the correctness of the primary judge's rejection of the contention that had been advanced before her (namely, that it was not reasonable for the defamation action to have been commenced within one year of the impugned representation). Their Honours concluded that, in fact, it was not reasonable for the action there to have been commenced within the applicable one-year limitation period; and proceeded, on that basis, to grant leave to appeal, to set aside the primary judgment and to grant the extension that had been sought.
57 The respondents maintain that the principles established by House v The King are applicable to decisions to grant or not grant extensions of time under s 40(2) of the Limitation Act. They cite Australian Securities and Investments Commission v Schlaepfer [2017] NSWCA 247 (Meagher and Payne JJA and Sackville AJA) as authority for that proposition. That matter concerned (as this one does) an application for leave to appeal from a decision to grant an extension of time to commence a defamation action. Under the heading, "Principles governing the application", the court made the following observations (at [40], references omitted):
The principles governing an application for leave to appeal from a decision to grant an extension of time for the commencement of proceedings were stated by Ward JA in Dagg v Davis in uncontroversial terms:
"[13] The decision to grant an extension of time for the commencement of the proceedings is an interlocutory decision from which leave to appeal is necessary. There are no exhaustive or rigid rules of practice or criteria governing the grant of leave to appeal (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170). Nevertheless, it has been recognised that leave should be granted only where there are substantial reasons to allow an appellate review (Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564), such as where there is an error of principle which, if uncorrected, will result in substantial injustice (Minogue v Williams (2000) 60 ALD 366; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756; Niemann v Electronic Industries Ltd [1978] VR 431; Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401). Where there is no question of principle, leave to appeal will usually be refused (Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; Zelden Sewell Henamast Pty Ltd [2011] NSWCA 56).
[14] Moreover, in The Age Company Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 286, Bathurst CJ said (at [13]) that:
Generally speaking, it is only appropriate to grant leave in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable."
58 Respectfully, Schlaepfer does not stand as authority for the proposition that the respondents draw from it. In declining to grant leave to appeal, the court was not concerned to focus upon whether or not the primary decision was a product of discretionary error. On the contrary, the analysis did not venture beyond the factual correctness of what had initially been found.
59 Accepting, as I think I must, that the learned primary judge's conclusion - more specifically, his satisfaction that it was not reasonable in the circumstances for the respondents to commence their action within a year of the creation of the Impugned Posts - was a finding of fact that did not involve the exercise of discretion, the immediate hurdle for the Owens becomes substantially easier to clear.
60 All that they must demonstrate is that the correctness of that conclusion is attended with doubt that is sufficient to warrant its reconsideration. In Shockthorap v Electricity Network Corporation [2019] FCA 619, Banks-Smith J concluded (at [12]) that "sufficient doubt":
…must mean a doubt that is sufficient in the circumstances. Interlocutory orders cover a spectrum from those concerned solely with mechanical orders (such as case management orders and practice and procedure orders) to those which may, for one reason or another, have a significant impact upon the scope and outcome of proceedings and which ought to be given consideration on appeal: Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [43]-[44].
61 Given the state of the law, I am satisfied that the correctness of the Primary Judgment is attended with the requisite degree of doubt. I do not consider that it is necessary or advisable to trace in detail the various bases upon which the Owens sought before the learned primary judge - and propose on appeal - to avoid the finding that it was not reasonable in the circumstances for the respondents to commence their action sooner than they did. It suffices, I think, to make what is surely an uncontroversial observation: namely, that whatever might be said about the correctness of the Primary Judgment, it would be an unusual case in which there is only one plausible argument about what was or wasn't reasonable.
62 Naturally, the respondents maintain that the learned primary judge was correct to decide as he did on that score. The full court might well agree. But, equally, it might not. The submissions that the learned primary judge rejected could not be thought to be so obviously wrong as to be incapable of raising doubt sufficient to warrant the granting of leave to appeal. I accept that they are at least compelling enough to do so.
63 For that reason, the conclusion that the Primary Judgment is attended with doubt sufficient to warrant appellate consideration is all-but-inescapable.
64 Had it been the case that the principles that regulate the appellate review of discretionary decision-making would apply if leave were granted, I would very much have been inclined not to conclude as I have. Respectfully - even on the 'rough and ready' analysis that is appropriate at the present stage - I discern no discretionary error in the conclusion to which the learned primary judge was drawn, nor any failure on his Honour's part properly to comprehend the statutory task entrusted to him, or to consider and exclude from consideration that which he was obliged (respectively) to consider or exclude from consideration. I consider it most unlikely that the court, on appeal, would conclude that the Primary Judgment was the product of House v The King error; and, if that were the correct test to apply on appeal, it would follow that I would not consider that the Primary Judgment was attended with doubt sufficient to warrant its reconsideration and would not, for that reason, grant leave to appeal.