The application of these principles to the evidence
As paragraph 5 of the plaintiff's affidavit makes clear, the plaintiff was aware of the broadcast after the time of publication, He sought legal advice relatively promptly. He knew about the limitation period before it expired. However, he sued the wrong defendant.
I am satisfied that at all relevant times the plaintiff knew that he had been very seriously defamed by a broadcast which was still available online, had legal advice and gave instructions to, and did, commence proceedings within time. These matters make it difficult for the plaintiff to assert that it was not reasonable for him to commence proceedings against the present defendants within the first year.
Parizian v Seven Network Limited [2018] NSWDC 296 | Case summary | Zoe
Taking all of the above into account, the plaintiff cannot establish that it was not reasonable to identify Channel Seven Adelaide Pty Limited as the broadcaster of Today Tonight at any time within the first twelve months after publication.
The result is that the plaintiff is not entitled to bring proceedings against the second defendant for the free to air broadcast on 20 February 2018 and any subsequent online publication up to the date of joinder of the second defendant as a party to these proceedings, which occurred on 7 June 2018.
However, by operation of the multiple publication rule, that portion of the claim relating to publication for 12 months prior to the filing of the statement of claim still remains (subject to proof of downloading, which should be particularised in any amended statement of claim). I have provided for this in the orders set out below.
[2]
Conclusions concerning the application
The plaintiff has failed to satisfy the very harsh requirements necessary for an extension of time under s 56A Limitation Act 1969 (NSW), in that he cannot establish that it was "not reasonable in the circumstances for the plaintiff to have commenced" the action within the one year limitation period. The extension of time is accordingly refused.
This will require the plaintiff to file an Amended Statement of Claim identifying the period of time over which either defendant is asserted to be liable for online publication, together with particulars of such publication to third parties by downloading. I have provided for this in my orders below. I note, however, that the evidence provided in support of this application suggests that any claim against the first defendant is hopeless, so I have made orders of a general nature to accommodate all amendments the plaintiff may need to make in relation to the identity of the defendants.
[3]
Costs
As I was not addressed on costs, I have reserved all costs issues.
[4]
Orders
1. Plaintiff's notice of motion seeking an extension of time to commence proceedings pursuant to s 56A Limitation Act 1969 (NSW) is dismissed.
2. Costs reserved with liberty to apply.
3. The plaintiff is to file and serve any amended statement of claim (if still pursued) in 14 days, such amendments to restrict the claim to the 12-month period prior to the filing of the statement of claim.
4. The parties have liberty to bring in Short Minutes of Order concerning a timetable for the future conduct of the proceedings.
[5]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 29 October 2018
Section 56A of the Limitation Act 1969 (NSW) provides:
"56A Extension of limitation period by court
(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 14B to a period of up to 3 years running 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)."
Section 14B Limitation Act 1969 (NSW) provides:
"14B Defamation
An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of."
It has been stated many times the onus which lies upon a plaintiff in such an application is a heavy one to discharge: Wookey v Quigley (No 2) [2010] WASC 209 at [27]; Rayney v Western Australia (No 3) [2010] WASC 83 at [41]. The burden which must be discharged is to establish that it was "not reasonable" to commence within the limitation period: Houda v State of NSW [2012] NSWSC 1036 at [14].
The test is an objective one and the moving party's evidence must deal with the whole of the limitation period: Pingel v Toowoomba Newspapers [2010] QCA 175 at [51].
If the plaintiff satisfies the court it was not reasonable to commence within one year then time must be extended: Rayney v Western Australia (No 3) at [50]; Noonan v MacLennan [2010] QCA 50 at [47]. The court does retain a discretion as to the length of any extension and relevant matters which go to the explanation for the delay may be considered in limited context: Barrett v TCN Nine Pty Limited [2017] NSWCA 304; the court does not otherwise have a discretion to exercise.
Where a plaintiff has already commenced defamation proceedings within the prescribed time, the task of establishing that it was not reasonable to commence proceedings is even more difficult, as was noted in Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90:
"[95] I agree with Beazley JA's reasons for concluding that the primary judge did not err in refusing to make an order extending the limitation period for the appellant's cause of action for defamation: Limitation Act 1969, s 56A. In my view it is also relevant to take into consideration in this respect that the appellant did, within the one-year limitation period prescribed by s 15 of the Limitation Act 2005 (WA), commence proceedings in respect of these publications in the Supreme Court of Western Australia by the filing of a writ of summons against the respondent on 8 May 2007. It is difficult in those circumstances to see how he could demonstrate that it was "not reasonable in the circumstances" for him to have done the same in New South Wales."
Simpson J in Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 stated at [52]-[55]:
"[52] Section 56A entitles the plaintiff to an extension of time if it was not reasonable, in the circumstances that existed, to have commenced proceedings within one year of the publication of the broadcast. One can envisage circumstances in which it would not be reasonable for a plaintiff to commence proceedings within that time. One is where the plaintiff is unaware of the publication. Another is where the plaintiff is unable to identify the publisher or prove publication. (In this regard the obligations of legal practitioners under s 347 of the Legal Profession Act 2004 and the provisions of s 348 thereof are to be borne in mind.) Another circumstance may be where the plaintiff is engaged in non-litigious processes to vindicate his or her rights: see Noonan v MacLennan [2010] QCA 50 at [17].
[53] Here, it is not and could not be suggested that the plaintiff did not know the identity of Mr Hadley, or that he was the broadcaster who spoke at least some of the words she claims defamed her. Annexure A to the Statement of Claim makes it quite clear that she had actual knowledge of that fact. The only basis on which it is suggested that she did not commence proceedings against him within the time limit is that she was unaware of the nature of the defence that the defendant would file and eventually did file, and that it was not until receipt of that defence that the implication of the views attributed to the Chief Judge at Common Law, and canvassed in Rodgers, struck her legal advisors.
[54] The test posed by s 56A was described by Malcolm CJ in Rayney v Western Australia (No 3) [2010] WASC 83 as:
… a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances … and: … not a burden which is discharged by showing that it was not unreasonable to have not commenced within one year. (at [41])
[55] The plaintiff falls far short of establishing that it was not reasonable in the circumstances for her to have commenced an action against Mr Hadley within the time specified in s 14B of the Limitation Act."
Two principal issues arise. The first is whether the test can be satisfied where the plaintiff's solicitor, and not the plaintiff, was the reason for delay, and the second is whether the correct identity of the broadcaster was the subject of uncertainty or doubt.
"The sins of the solicitor"
Of particular relevance in the present circumstance are the observations made by O'Neill J in Van Garderen v Channel Seven Melbourne Pty Limited [2016] VCC 953 as to whether an error by a legal practitioner in defamation proceedings should constitute an explanation warranting an extension of time. O'Neill J did not consider this was the case:
"85 There is a further matter to be considered. That is, whether the sins of the solicitor (or counsel) ought to be visited upon the plaintiff. In applications for extension of time in respect of personal injury proceedings it is often said that if a plaintiff promptly consults a solicitor and does everything reasonable to provide instructions and prosecute a proceeding, otherwise leaving the conduct in the hands of his or her lawyers, the failure of those lawyers ought not lead to a refusal to extend time unless specific or general prejudice to the defendant can be shown. The availability of a cause of action against the solicitor is a relevant matter to take into consideration. I was not taken to, nor have been able to find authority on point in respect of an extension of time in defamation proceeding.
86 Although the affidavit material does not critically examine the point, it would appear Dr van Garderen had done everything reasonable in the prosecution of the proceeding. She sought advice promptly and provided instructions from time to time as were needed. She gave instruction finally to issue. That aside, she left the conduct of the proceeding in the hands of her solicitor and counsel. There is nothing in the affidavit of Ms MacRae to suggest that there was any particular difficulty in obtaining instructions, although given the nature of the application, evidence to that effect would not be expected.
87 In Pingel, Fraser JA said that the considerable delays on the part of the plaintiff's solicitor and counsel "for present purposes" must be attributed to the respondent. In that case, the Court refused to extend the time in circumstances where the delay in bringing proceedings largely was attributed to the failures of the plaintiff's solicitors and counsel.
88 The Act provides a drastically short limitation period within which a defamation proceeding may be brought. The rationale for such a period is that the repair to reputation caused by a defamation should be acted upon promptly. Further, while the legislation provides, even encourages parties to undertake negotiations, nonetheless the test to obtain an extension of the limitation period is a harsh one and difficult for a litigant to overcome. All of those matters point to different policies underlying the limitation legislation as applied to defamation proceedings. In personal injuries litigation, it may be just and reasonable to grant an extension of time when a litigant has done no more than place him or herself in the hands of a solicitor who has neglectfully failed to issue within a limitation period. That concept does not exist in applications for extension in defamation proceedings."
There are additional reasons for taking this view. O'Neill J's observations as to the approach taken in personal injury proceedings where a solicitor has been dilatory (citing the relatively old decision of Tsiadis v Patterson (2001) 4 VR 114) are not necessarily applicable today. Any presumption of indulgence to a plaintiff whose solicitor is speedily displaced where there are legislative requirements for a plaintiff to commence and conduct proceedings expeditiously, as is the case in relation to the Motor Accidents Compensation Act 1999 (NSW) where the solicitor's failure to file proceedings may, if not fully and satisfactorily explained, be fatal (for a typical decision of this kind in this court, see Homsi v Nabulsi [2017] NSWDC 16).
Nor is it the case that the plaintiff's lack of awareness of the limitation period until shortly before it expires, due to incompetent legal advice, constitutes grounds for sympathy.