Court of Appeal (ACT)|2016-08-10|Before: Murrell CJ

Piscioneri v Reardon [2016] ACTCA 33 (10 August 2016)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Applications dismissed. Applicant to pay the respondent's costs.

APPEALS - LEAVE TO APPEAL - Jurisdiction, practice and procedure - whether decision is final or interlocutory - where leave to appeal required - appeal out of time - leave not granted

LIMITATION OF ACTIONS - POSTPONEMENT OF BAR - Defamation cases - ss 21B, 33 Limitation Act 1985 (ACT) - where identity concealed - operation of provisions

Arrow International Australia Ltd v Group Konstrukt Pty Ltd [2012] ACTCA 37; (2012) 7 ACTLR 48

Bienstein v Bienstein (2003) 195 ALR 225

Brisciani v Piscioneri (No 4) [2016] ACTCA 32

Capital Property Projects (ACT) Pty Ltd and Anor v Planning and Land Authority (ACT) [2008] ACTCA 9; [2008] 2 ACTLR 44

Carr v Finance Corporation of Australia Ltd [1981] HCA 20; (1981) 147 CLR 246

Commonwealth of Australia v Mewett (1997) 191 CLR 471

Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148

Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423

Hodgson v Dimbola Pty Limited t/as Towers Removals [2010] ACTCA 22

McColley v Commonwealth of Australia [2014] ACTCA 21

Piscioneri v Reardon [2015] ACTSC 61

Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311

David Price, Gordon McGrath and Ian Davidson, Limitation of Actions Handbook - New South Wales (Butterworths, 1998)

Court/Tribunal: Supreme Court of the Australian Capital Territory

Citation: [2015] ACTSC 61

1. On 28 October 2014, Refshauge J (the primary judge) dismissed the applicant's application under s 33 of the Limitation Act 1985 (ACT) (Limitation Act) to extend the time within which to bring defamation proceedings against the respondent. The primary judge held that, if the requirements of s 33 were satisfied, then the relevant limitation bar was postponed by statutory operation. However, s 33 did not empower a court to extend a limitation period.

2. Section 33 applies to all causes of action. Among other things, it provides that, where the identity of a prospective defendant is "deliberately concealed", the limitation period is suspended until the prospective plaintiff "first discovers or may with reasonable diligence discover" the concealment.

3. Pursuant to s 21B(1) of the Limitation Act, a one-year limitation period applies to defamation actions, but under s 21B(2) a court must extend that period to a period of up to three years if the court is satisfied that "it was not reasonable in the circumstances" for the plaintiff to have commenced proceedings within one year of the defamatory publication.

4. The applicant sought leave to appeal the decision of the primary judge and an extension of time within which to seek leave to appeal.

(a) Was the primary judge's decision a final decision or an interlocutory decision requiring leave to appeal?

(b) Was the correctness of the primary judge's decision sufficiently in doubt as to warrant a grant of leave to appeal and would the applicant suffer an injustice if leave was not granted?

(c) Should leave be granted to appeal and to extend the time within which to appeal?

(d) Was the applicant denied procedural fairness by the primary judge?

6. The applicant alleged that, in January 2010 and on later dates, she was defamed on the website ZGeek.com by a number of people, including a person who used the fictional name "Sagacious".

7. The applicant brought pre-trial discovery proceedings. After a significant delay, the proceedings were heard on 18 October 2013. The applicant said that on 18 October she learned that the respondent was "Sagacious".

8. The applicant suggested that, on 2 September 2014, she attempted to file an originating claim and statement of claim but the Supreme Court Registry refused to accept the documents, probably because the Registry believed that the applicant was seeking to lodge a claim outside the 12 month limitation period applicable to defamation proceedings. It was not clearly established that the applicant did attempt to file an originating claim and statement of claim on 2 September 2014, but I have assumed that she did so.

9. On 8 September 2014 the applicant lodged the originating application seeking an order that the time for filing and serving an originating claim and statement of claim on the respondent be extended pursuant to s 33 of the Limitation Act and an order permitting service by email, facsimile or registered mail to the respondent's business address. The supporting affidavit annexed the originating claim and statement of claim that the applicant wished to file.

10. The Registry issued a requisition that stated:

1. These are the incorrect documents for this type of proceeding

1.File an originating claim or

2.File an originating claim with the application in proceedings or

3.File an originating application seeking the orders sought in the application in proceeding.

11. On 3 October 2014, the application for an extension of time came before the primary judge. The bench sheet recorded:

1. His Honour adjourned the matter until 28 October 2014 at 9 am for a hearing of the application.

2. ...

3. His Honour directs the applicant to file and serve submissions on or before 16 October 2014.

4. His Honour orders the defendant to file and serve submissions on or before 22 October 2014.

5. Defendant has undertaken not to argue the limitation period for the time between today's date and the next court date.

12. The respondent furnished the undertaking in the context that, if a 12 month limitation period operated from 18 October 2013, then the limitation period would expire before the hearing on 28 October 2014. It was understood that the respondent's undertaking effectively extended the limitation period by 25 days, from 18 October 2014 to 10 November 2014.

13. In accordance with the timetable fixed on 3 October, both parties filed and served submissions. On 27 October 2014, the day before the hearing, the applicant noticed that the daily court list on the Supreme Court website stated that the matter was listed for mention only on 28 October.

14. The applicant said that, as a consequence of reading the daily court list, when she attended Court on 28 October she was not prepared for a hearing. In addition, the presentation of her case was hampered because, when she attended Court, she was accompanied by a small child for whom she was caring.

15. On 28 October, the applicant provided submissions in reply, which were filed in Court.

16. When the applicant informed the primary judge that she had not realised that the matter would be heard, the primary judge indicated that the matter had been listed for hearing and it would proceed.

His Honour: ...The Limitation Act says that a claim in defamation is not maintainable unless brought within a year. But that's very different from saying you can't file a statement of claim. Of course you can file a statement of claim.

Ms Piscioneri: Well (indistinct) that if I filed it it would have been rejected.

His Honour: Well, you didn't even try, did you?

Ms Piscioneri: At various times a long time ago I tried to add this defendant as a co-defendant, and I ...

... that was my understanding, that it would have been rejected if I had attempted to file it.

His Honour: Well, that's not based on any law, is it?

Ms Piscioneri: I have attempted to file it, because I've made this application along with the--

His Honour: But that's not an attempt to file a statement of claim.

Ms Piscioneri: Well, it is.

His Honour: No. You file the statement of claim by handing the original and two copies to the registry clerk and paying the fee. That's how you file a document. You know that. You're a lawyer, Ms Piscioneri. You must have filed many proceedings.

Ms Piscioneri: Well, not these type, no.

...

His Honour: ... You're only out of time if the defendant pleads the statute of limitations and the court accepts it. You see the difficulty with the limitation defence - and it is a defence - and under the rules of pleading you don't anticipate a defence. That defence has to be determined on the facts. I have no facts here.

...

Ms Piscioneri: Well, I understand what your Honour is saying now, but certainly that wasn't - I anticipated that if I did file it they would have said it was out of time and they would have rejected it. But I understand what your Honour is saying, and I note that this wasn't raised in submissions in reply...

His Honour: But I mean it seems to me there is no prejudice from you in simply filing and paying the filing fee and getting on with it.

Ms Piscioneri: All right. I hear you.

...

His Honour: ... But it seems to me, at the moment, that I had no jurisdiction to deal with the application that you've made. There is no provision I could find in the rules or in the Limitation Act that gave me the power to give you leave to file this application.

18. His Honour decided the applications by making the following orders:

1. The application be dismissed.

2. If the plaintiff files an originating claim substantially in the form of a document on the court file and initialled by me but subject to the terms of order (3), then it be filed in these proceedings as the originating process and numbered accordingly.

3. The plaintiff must provide on the originating claim an address the service being a street address within the Australian Capital Territory...

4. That the plaintiff pay the costs of the application except for, at this time, the cost of preparing and filing the submissions of the defendant dated 20 October 2014.

5. Liberty will be reserved to the defendant to apply for the plaintiff to pay the costs of the submissions referred to in order (4) when any defence pleaded in the proceedings that the applicable limitation period has expired is determined or the proceedings themselves are determined or otherwise brought to an end.

19. The primary judge indicated that he would publish his reasons in due course. Eventually, on 14 April 2015, the reasons were published: Piscioneri v Reardon [2015] ACTSC 61 (Piscioneri v Reardon).

Events after the hearing before the primary judge

20. In accordance with order (2) made on 28 October 2014, on that day the applicant filed an originating claim against the respondent, together with a statement of claim. In her affidavit of 22 October 2015 filed in these applications, the applicant confirmed that:

I filed an originating claim in accordance with the order of Refshauge J. I understood that it was valid for service for 12 months and that time expires in a couple of weeks.

21. On 20 November 2014, the applicant tried to lodge a notice of appeal against the primary judge's decision, but the Registry requisitioned the applicant, observing there were seven days within which to seek leave to appeal an interlocutory decision and that the applicant needed to request additional time within which to seek leave to appeal. In addition, the requisition noted the absence of the necessary associated documents.

22. It was not until 28 October 2015 that the applicant filed an application for leave to appeal against the judgment of 28 October 2014 and sought an extension of time within which to make the application.

23. The applicant said that, in mid-2015 she was preoccupied preparing for other litigation in the Supreme Court. Consequently, after the reasons of the primary judge were published in April 2015, there was a delay before she could consider the reasons and file the applications.

24. The application for leave to appeal also sought an order that the Supreme Court Registrar and/or the Solicitor-General of the Australian Capital Territory be joined as a party to the proceedings, but those applications were not the subject of evidence or submission and the basis upon which the Court could or should make such an order was never clarified.

25. By agreement, the appeal proceeded on the basis of evidence contained in the applicant's supporting affidavit of 22 October 2015 and written submissions.

26. The primary judge was not asked to consider s 21B(2) of the Limitation Act which, as stated above, empowers the Court to extend the limitation period applicable to defamation proceedings. Rather, the applicant's application related to s 33 of the Limitation Act, which provides:

(a) there is a cause of action based on fraud or deceit; or

(b) a fact relevant to a cause of action or the identity of a person against whom a cause of action lies is deliberately concealed;

the time that elapses after a limitation period fixed by or under this

Act for the cause of action begins to run and before the date when a

person having (either solely or with other persons) the cause of

action first discovers, or may with reasonable diligence discover, the

fraud, deceit or concealment, as the case may be, does not count in

the reckoning of the limitation period for an action on the cause of

action by him or her or by a person claiming through him or her

against a person answerable for the fraud, deceit or concealment.

(3) Without limiting subsection (1), deliberate commission of a breach

of duty in circumstances in which it is unlikely to be discovered for

some time amounts to deliberate concealment of the facts involved

27. His Honour accepted that the use of the pseudonym "Sagacious" was a "deliberate concealment" of the respondent's identity within the meaning of s 33(1)(b).

28. However, his Honour found that the application for extension of the limitation period was "entirely misconceived".

29. First, his Honour found that there was no power under s 33 of the Limitation Act for the Court to grant an extension of time: Piscioneri v Reardon at [52]. Section 33 does not enable a court to extend the limitation period; rather, it provides that, where there has been "deliberately concealment", time is suspended until the claimant discovers (or could with reasonable diligence) discover the concealment. Assuming that the earliest time when the applicant could with reasonable diligence have discovered the identity of "Sagacious" was 18 October 2013, then, in effect, the limitation period ran from that date.

30. Second, his Honour observed that there was no need for an application for extension of time because the s 21B limitation period does not extinguish a right of action but merely bars a remedy; the bar does not operate until the limitation is pleaded by a defendant. Consequently, a court registry cannot refuse to accept (or even requisition) a claim on the basis that a limitation period appears to have expired.

Is the primary judge's decision a final decision or an interlocutory decision?

31. Section 37E(4) of the Supreme Court Act 1933 (ACT) (Supreme Court Act) provides that an appeal may be brought against an interlocutory order of the Court constituted by a single judge only with the leave of the Court of Appeal. Under s 37J(1)(a) and (b) of the Supreme Court Act, the Court of Appeal may be constituted by a single judge for hearing and deciding whether there should be leave to appeal.

32. Pursuant to r 5312 of the Court Procedures Rules 2006 (CPR), an applicant for leave to appeal must file the application for leave and associated documents not later than seven days after the day that the interlocutory order is given, or within such further time as is allowed by the judge who made the interlocutory order or by the Court of Appeal.

33. The applicant submitted that the primary judge's decision to dismiss the application for an extension of time pursuant to s 33 of the Limitation Act was a final decision because it finally determined the rights of parties in a principal cause between them.

34. Whether a judgment is an interlocutory judgment or a final judgment depends upon the legal rather than the practical effect of the judgment: Carr v Finance Corporation of Australia Ltd [1981] HCA 20; (1981) 147 CLR 246 (Carr) at 248 per Gibbs CJ. The question is whether the consequence of the order, as made, finally determines the rights of the parties in a principal cause of action: Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at 443 per Windeyer J, Carr at 248, Bienstein v Bienstein (2003) 195 ALR 225 (Bienstein). A strike out order is an interlocutory order although the practical effect of the order may be to finally determine the proceedings: McColley v Commonwealth of Australia [2014] ACTCA 21. The position is otherwise if the order also provides that the proceedings are dismissed: Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148. The law concerning interlocutory and final judgments was discussed extensively by the Court Appeal in Arrow International Australia Ltd v Group Konstrukt Pty Ltd [2012] ACTCA 37; (2012) 7 ACTLR 48 (Arrow).

35. Consistent with this approach, it is well settled that the refusal to extend the time for bringing proceedings is an interlocutory decision not a final decision. In Bienstein the High Court (McHugh, Kirby and Callinan JJ) said at [25] that the refusal to grant an extension of time was not a final judgment because the unsuccessful party could make a further application for the same relief, although the application might have very little prospect of success. In Hodgson v Dimbola Pty Limited t/as Towers Removals [2010] ACTCA 22 (Hodgson) the Court of Appeal rejected an argument that a refusal to extend the time to commence proceedings was a final judgment and held that it was necessary to obtain leave to appeal such a decision.

36. Consequently, the applicant requires both leave to appeal against the interlocutory decision of the primary judge and an extension of time within which to seek leave to appeal.

Extension of time and leave to appeal an interlocutory decision

37. Although rules of court that prescribe time limits should ordinarily be observed, they should not be allowed to become instruments of injustice: Capital Property Projects (ACT) Pty Ltd and Anor v Planning and Land Authority (ACT) [2008] ACTCA 9; [2008] 2 ACTLR 44 (Capital Property Projects) at [17]-[18]. The determination of whether to extend time because the rules might otherwise work an injustice involves a consideration of the history of the proceedings, the conduct of parties, the nature of the litigation, the consequences of granting or refusing leave, the prospects of success on appeal and the explanation for the delay: Capital Property Projects at [18]-[20] applying Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 at 459 per McHugh J.

38. The requirement for leave to appeal from an interlocutory judgment was discussed by Refshauge J in Capital Property Projects [23] and [24] and Arrow where, at [58], his Honour said:

58. The principles on which a court will grant leave to appeal have been dealt with by the courts. The principles, which I set out in Capital Property Projects (ACT) Pty Ltd and Anor v Planning and Land Authority (ACT) [2008] ACTCA 9; (2008) 2 ACTLR 44, may be summarised as follows:

a) leave will be granted sparingly to avoid delaying and fragmenting the hearing of cases;

b) a court will be particularly hesitant to grant leave where the decision is one in respect of practice and procedure or is made in the exercise of a discretion;

c) decisions which, though interlocutory, determine substantive rights will more readily be the subject of the grant of leave;

d) the party seeking leave bears the onus of satisfying the court of the necessary criteria to justify the grant of leave;

e) the court will ordinarily grant leave where the decision is wrong and prejudice will be suffered by the appellant;

f) leave may also be granted where the decision is attended with sufficient doubt to warrant its reconsideration or, to put it another way, where the decision is 'attended with difficulty and [its] correctness is open to dispute' (Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCAFC 844; (1991) 33 FCR 397 at 400) and, if it is wrong, significant consequences will be suffered by the applicants; and

g) it may be a factor favouring the grant of leave that:

i) the decision involves a matter of public importance; or

ii) the decision may affect the fairness of the trial, a consideration under s 21 of the Human Rights Act 2004 (ACT), though this can also weigh against the decision if the appeal results in unfair delay or fragmentation of the trial.

39. In this case, important considerations are whether the decision of the primary judge "is attended with sufficient doubt to warrant its reconsideration" and whether the applicant would suffer significant adverse consequences if the decision was wrong. Although a decision to dismiss an application for extension of time may have very significant adverse consequences for the applicant, leave to appeal will be refused where the proposed appeal has no prospects of success, as was the case in Hodgson.

Should an extension of time and leave to appeal be granted in this case?

40. The order of the primary judge was made on 28 October 2014. Although full reasons were not published until 14 April 2015, at the hearing on 28 October 2014 the essential reasons were explained to the applicant and she indicated that she understood the explanation. The applicant's statement that, for part of the 12 month period between the making of the orders and the lodging of the application for leave to appeal, she was distracted because she was attending to other litigation is inadequate to explain the lengthy delay of 12 months. The alleged defamation occurred in 2010, six years ago.

41. Nevertheless, if I considered that the applicant should be granted leave to appeal the primary judge's decision because the correctness of that decision was open to dispute and, if wrong, would cause the applicant to suffer an injustice, then I would extend the time within which to seek leave to appeal.

42. The decision of the primary judge is not attended with sufficient doubt to warrant its reconsideration. Nor would any error in the decision cause the applicant to suffer a significant injustice.

43. There is a fundamental difference between the suspension or postponement of a limitation bar (which occurs by statutory operation) and the extension of a limitation period (which may be decided by a court). For example, s 21B(2) of the Limitation Act requires a court to extend the limitation period in certain circumstances. On the other hand, s 33 provides that the time is not to be counted as part of the limitation period while certain facts apply, i.e. certain facts operate to suspend the running of the limitation period and thereby postpone the operation of the statutory bar. Relevantly, the fact that identity of the defendant is "deliberately concealed" suspends the running of the limitation period and postpones the operation of the statutory bar.

44. Section 33 of the Limitation Act is in similar terms to s 55 of the Limitation Act 1969 (NSW), except that the NSW statute uses the expression "fraudulently concealed" rather than "deliberately concealed". In David Price, Gordon McGrath and Ian Davidson, Limitation of Actions Handbook - New South Wales (Butterworths, 1998) [55.35] the authors state:

Section 55 is not a provision which empowers the court to make an order extending [the] limitation period. It postpones the operation of [the] statutory bar. [This] section may be relied on, by way of reply, as an answer to a defence pleading the expiry of the limitation period. The application of [this] section is a matter that would usually be dealt with at the trial: Mann v Department of Immigration and Ethnic Affairs (SC(NSW), Master Malpass, 16 April 1996, unreported).

45. There is no doubt about the correctness of the primary judge's finding at [51] that the application was "entirely misconceived" because there is no power under s 33 of the Limitation Act for the court to grant an extension of time.

46. Further, as the primary judge observed at [54] and [56], unless and until the expiry of a limitation period is pleaded, the expiry of the period does not become an issue affecting the proceedings. Provisions such as s 21B that impose limitation periods do not extinguish causes of action; they merely bar remedies: Commonwealth of Australia v Mewett (1997) 191 CLR 471, Briscani v Piscioneri (No 4) [2016] ACTCA 32 at [12].

47. Even if the correctness of the primary judge's decision was doubtful (which it is not), any error would cause no significant injustice to the applicant. On 28 October 2014 the applicant filed an originating claim and statement of claim against the respondent. Thereafter, she was in a position to prosecute that claim.

48. As the decision of the primary judge is not attended with sufficient doubt to warrant its reconsideration and the applicant could suffer no significant injustice as a result of any error in the decision, the application for an extension of time within which to seek leave to appeal and the application for leave to appeal should be dismissed.

49. The applicant said that, when she attended Court on 28 October 2014, she expected that her case would be for mention only, but the primary judge proceeded to hear it. She asserted that she had been denied procedural fairness and a fair trial because she had been deprived of the opportunity to properly prepare and present her case. She said that not only had her capacity to present her case been hampered by lack of notice that the case was listed for hearing but also because, when she attended Court on 28 October 2014, she had been accompanied by a child for whom she was responsible.

50. Quite apart from the fact that the issue of procedural fairness was not clearly ventilated before the primary judge and his Honour made no decision about it, the claim lacks merit. On 3 October when the matter first came before the primary judge, it was fixed for hearing on 28 October. Prior to 27 October when the applicant noticed that the daily list stated that the matter was for mention only, the applicant proceeded on the basis that the matter would be heard on 28 October. She filed written submissions. On 28 October, she presented the primary judge with written submissions in reply to the respondent's written submissions. She did not indicate that she wanted to present oral submissions or required an adjournment in order to prepare them. The primary judge informed the applicant that her application was misconceived because no limitation issue arose until it was pleaded as a "defence" and there was nothing to prevent her from filing her claim and "getting on with it". She indicated that she understood the advice.

51. There is no evidence that the applicant's preparation and presentation of her case on 28 October 2014 was hampered in any material way.

52. In his written submissions, the respondent complained that the applicant's assertion that she feared for her safety if the respondent were to be given her residential address was "scurrilous and scandalous". The respondent asked for "particulars" of the allegations and other orders concerning the allegations.

53. I will not address those submissions. If the respondent wished to dispute the applicant's assertion that she harboured asserted beliefs, then the respondent should have required her for cross-examination. If the respondent wished to seek orders, then the respondent should have filed an application.

54. The respondent sought indemnity costs "on the grounds that the allegations made by the (applicant) are both scandalous and fail to condescend to particulars". Further, the respondent noted that the applicant, a former legal practitioner, had chosen to pursue an unmeritorious application which amounted to "an abuse of process".

55. As stated above, these applications were not an appropriate vehicle for the respondent to assert that the allegations made by the applicant were "scandalous and fail to condescend to particulars". The Court has found the applications to be unmeritorious, but not that they were "an abuse of process".

56. The Court has a broad discretion in relation to costs. In determining the appropriate costs order, some allowance should be made for the difficulties faced by litigants in person. Such difficulties include both a lack of legal expertise and an emotional involvement with the proceedings which may cloud perspective. However, in an appropriate case, a court may make an indemnity costs order against a litigant in person. New South Wales courts have done so where proceedings were "obviously doomed to fail" and the litigant in person maintained the proceedings after having been told of that fact, or of a procedural defect in the formulation of their claim: Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311 (Quach) at [10]. In determining whether to order indemnity costs, a relevant consideration is whether the party seeking the order for indemnity costs has notified the litigant in person of its intention to do so if the litigant continues to press the claim: Quach at [12].

57. In this case, the applicant's claims were unmeritorious but, in the course of the proceedings, the respondent also made inappropriate assertions. The parties agreed that the hearing should be conducted on written submissions, and that agreement enabled the matter to proceed efficiently. The applicant was a litigant in person. She had practised as a lawyer, but it appeared that her emotional investment as a litigant in person had clouded her judgement. There was no evidence that, prior to serving his written submissions, the respondent had warned the applicant that, if she pursued the applications, then he would seek indemnity costs. In these circumstances, the respondent should not receive indemnity costs.

59. The applicant is to pay the respondent's costs.

I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

Procedure Rules 2006

Procedures Rules 2006

Piscioneri v Reardon [2016] ACTCA 33

At a glance

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Judgment (107 paragraphs)

Piscioneri v Reardon [2016] ACTCA 33 (10 August 2016)

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Legislation Cited (4)

Cases Cited (8)