Plaintiff v Defendants

2 The writ in this proceeding was issued on 9 January 2013, outside the one-year limitation period prescribed in s 5(1AAA) of the Limitation of Actions Act 1958. By a summons filed 5 April 2013, the plaintiff seeks an order pursuant to s 23B of the Limitation of Actions Act that the limitation period in relation to the publication of the first letter and the second letter be extended to 9 January 2013 (being the date upon which the proceeding was commenced). The defendants oppose the plaintiff's application.

3 The writ in this proceeding was issued with a general endorsement. Notwithstanding the abolition of awards of exemplary damages in defamation proceedings by s 37 of the Defamation Act 2005, the general endorsement makes a claim for both aggravated and exemplary damages.

4 The plaintiff filed the statement of claim in this proceeding on 28 February 2013. The statement of claim annexes the first letter, a translation of the first letter from Serbian to English, the second letter and a translation of the second letter from Serbian to English.

5 In respect of the first letter, the plaintiff pleads the following false innuendos:[1]

That he, a member of the Church:

(a) involves himself in antichrist activities;

(b) involves himself in anti-Church activities;

(c) falsely promotes himself as an expert in sexual and personal relationships;

(d) owns and publishes an antichrist website;

(e) is unworthy of his membership in the Church.[2]

6 In respect of the second letter, the plaintiff pleads the following false innuendos:[3]

That he, a member of the Church:

(f) involves himself in antichrist activities;

(g) involves himself in anti-Church activities;

(h) publishes an antichurch website;

(i) is unworthy of his membership in the Church.

Section 23B of the Limitation of Actions Act 1958

7 Section 23B of the Limitation of Actions Act 1958 provides:

(1) A person claiming to have a cause of action for defamation may apply to a court for an order extending the limitation period for the cause of action.

(2) A court, on an application under subsection (1), 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 5(1AAA) 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) If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.

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

The plaintiff's affidavit in support of the application

8 On 5 April 2013, the plaintiff swore an affidavit in support of his application for an extension of time. The affidavit describes the plaintiff's involvement with the church from 1978 to date. In the affidavit, the plaintiff deposes to an earlier dispute involving the transfer of church property, and the fact that he had previously reported the first defendant to the Australian Federal Police Fraud Squad and urged them to conduct an investigation.

9 In his affidavit in support, the plaintiff admits receiving the second letter at the time it was written.[4] The plaintiff then says that he was "reluctant to take legal action against the church because [he] had been a church member from 1978 to 2007 and [his] late mother and two children had also had longstanding connections with it".

10 Notwithstanding these matters, on 27 April 2011, the plaintiff issued a summons and originating motion "against the president and the church committee members of St Stephan Archdeacon".[5] It would seem that the purpose of this proceeding was to obtain a copy of the first letter. The plaintiff's affidavit then describes the conduct of this preliminary discovery proceeding, before ultimately concluding that he received a copy of the first letter on 25 September 2011.[6]

11 Relying upon his affidavit, the plaintiff maintained before me that he did not receive a copy of the first letter until 25 September 2011. However, the English translation of the first letter attached to the statement of claim contains a certificate that the translation was prepared on 29 July 2011. In the defendants' affidavit in opposition to the plaintiff's application,[7] it is asserted, on information and belief, that the translation was performed by a person engaged by the plaintiff. This allegation was never answered by the plaintiff. During the course of argument, the plaintiff's counsel was unable to offer any explanation as to the date of the translation of the first letter shown by the annexure to the statement of claim. In the circumstances, it seems likely that the plaintiff in fact had a copy of the first letter on, if not before, 29 July 2011.

In November 2011, I was contacted by a Serbian bishop who had been bishop in Australia in 1990. The bishop said words to the effect of: "Don't sue (the first defendant) because that will not be good for the Serbian church in Australia. No church member has sued a Serbian bishop in Australia in the past 50 years. Please just send a letter about your concerns to the head of the Serbian church in Belgrade, Serbia.

13 This conversation is put slightly differently in the plaintiff's outline of submissions as follows:

When [the preliminary discovery proceedings] were settled but before the expiration of the relevant period, the plaintiff was contacted by a Serbian bishop who asked him not to sue the first defendant (the bishop of the church in Australia). Instead he should seek redress through the procedures set out in Part 3 of the Defamation Act 2005 for the Resolution of Civil Disputes Without Litigation.

14 In any event, it would appear that nothing happened between December 2011 and April 2012. The plaintiff's affidavit went on:

On 16 May 2012, I sent such a letter "Concern Notice" to his Holiness Serbian Patriarch Irinej in Belgrade, Serbia. I also sent a copy to the Diocesan Executive Board and the Church Committee of the St Stephan the Archdeacon. I then awaited a response from the Patriarch.

15 The concerns notice referred to was tendered by the plaintiff during the hearing of this application. It is a lengthy document, containing material in bold and material that is underlined in bold. The document records that the plaintiff is "taking legal action in Supreme Court Melbourne against [the third defendant]". The document is not conciliatory; it makes a number of peremptory demands.

16 The concerns notice makes no reference to the conversation in November 2011. Further, it might be said that the notice does not appear to disclose any reticence on the part of the plaintiff to commence proceedings. For example, paragraphs 18 to 20 (as typed in the document) provide:

1. You would be well advised to comply with these demands immediately and to inform me in writing of your agreement to do by 18 June 2012 at 4:00pm
2. Please note that in the event that these matters are not agreed, Milorad Trkulja will instructions my solicitor to issue legal proceedings against you without further notice, and Milorad Trkulja's claim will include a claim for Defamation and claim for aggravated and exemplary damages pursuant to the Defamation Act 2005 (Vic). Australia
3. This letter does not purport to constitute a complete or exhaustive statement of all of myself Milorad Trkulja rights, contentions or legal theories. Nothing contained herein is intended as, nor should it be deemed to constitute, a waiver or relinquishment of any of our Client's rights or remedies whether legal or equitable, all of which are hereby expressly reserved.

17 So far as the first defendant is concerned, amongst other statements, the notice provided (again as typed):

1. During NATO lead by USA Generals was booming our innocent Serbian children and People. The Irinej Dobrijevic came to Belgrade on-behalf of USA Government send by criminal Bill Clinton to save 2 USA Criminals Pilots who boomed our Serbian innocent children and People.
2. The USA SPY is appointed to the Serbian Bishop in Australia to force and steal our Serbian Church's and Properties to be transfer to Serbian Orthodox Church In Australia and New Zealand Properties LTD ACN:129 465 194 date 31/01/2008 with Bishop appointed himself as Director without and approval from our Church Members and Church Members in Australia.

18 The plaintiff's affidavit went on, describing how, on 1 July 2012, he travelled to Banja Luka in Bosnia and Herzegovina. The plaintiff then deposed to having a meeting with Bishop Jefrem on 17 August 2012, during which the plaintiff said to Bishop Jefrem that if the Serbian Patriarch did not respond to his letter by 1 October 2012, then he would instruct his solicitor to issue proceedings in the Supreme Court of Victoria against the first defendant.

I was also contacted over this period by many Serbian church members and priests in Australia who begged me not to sue the Serbian bishop. Some said words to the effect of: "If you sue the Serbian bishop, you will be the most hated person in the Serbian community, here and overseas".

For the reasons above, especially because of the pleas of my fellow church members not to sue, I did not rush to commence proceedings in relation to the first and second matters complained of.

In [the] name of justice, I seek an order from this Honourable Court to extend the limitation period in relation to the first and second matters complained of to 9 January 2013.

20 The principles to be applied in an application for an extension of time under s 23B were recently stated in Casley v ABC[8] as follows:

(a) First, under s 23B the burden is on the applicant for an extension of time to point to circumstances which make it not reasonable in the circumstances to have commenced a proceeding within one year from the date of the publication.

(b) Secondly, the circumstances that might give rise to an extension are left at large.

(c) Thirdly, the test posed by s 23B(2) is an objective one. It is not satisfied by showing that the applicant believed that he or she had good reason not to sue.

(d) Fourthly, if the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period, then it must extend the limitation period. Unlike other extension of time provisions, there is no discretion whether or not to extend time. However, a discretion exists 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.

(e) Fifthly, the section requires more of an applicant than to show that it would have been reasonable not to commence a proceeding until after the one year period had expired: the court must be satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period.

(f) Sixthly, the circumstances must be sufficiently compelling to satisfy the court that it was not reasonable in the circumstances to commence a proceeding within the one year period the law ordinarily requires litigants to commence proceedings.

(g) Seventhly, s 23B of the Act proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence a proceeding to vindicate his or her legal rights in accordance with that time limit.

21 While the test posed by s 23B(2) is an objective one, this does not mean that the Court should ignore the plaintiff's reasons for not commencing proceedings within the limitation period. The test requires the Court to consider whether, on an objective basis, the plaintiff's reasons point to the conclusion that it was not reasonable to commence a proceeding. Further, it is not enough for a plaintiff to prove a subjective belief that it was not reasonable to bring the proceeding in the 12 month period following publication.[9]

22 In his written submissions in support of his application for an extension of time, the plaintiff puts his case as follows:

11. The plaintiff submits that it was not reasonable for him to commence proceedings within one year in respect of the first two matters complained of because for the period until the very end of September 2011 he could not be sure exactly what had been published about him and could not make a judgment about how that material might affect his claim.

12. By the time he it (sic) was reasonably clear to him what the relevant material consisted of, he was restrained by his concern for the church to seek resolution of the proceedings without litigation ... .

13. It is submitted that in a matter as profound as adherence to religion, it is not reasonable for the plaintiff to commence proceedings in the face of a plea by a senior churchman to the contrary, without first exhausting the available non-litigious processes.

23 In the course of argument, the plaintiff placed substantial reliance on the judgment of Keane JA[10] in Noonan v MacLennan.[11]

24 Noonan v MacLennan was a case which concerned s 32A of the Limitation of Actions Act 1974 (Qld). Section 32A is the Queensland equivalent of s 23B.[12] In Noonan v MacLennan, Keane JA said:[13]

Some assistance in understanding the legislative intention which informs s 32A(2) may be gleaned from Div 1 of Pt 3 of the Defamation Act 2005 (Qld) ("the Defamation Act") which provides for procedures involving "an offer to make amends" by a potential defendant to a defamation claim in response to the giving of a "concerns notice" by a potential plaintiff. These procedures are intended to resolve civil disputes without recourse to litigation. In this context one can understand that s 32A(2) of the Act is apt to encompass 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.

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.

25 The plaintiff also relied upon s 9 of the Civil Procedure Act 2010. Section 9 of the Civil Procedure Act provides:

9. Courts powers to further the overarching purpose

(1) In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects-

(a) the just determination of the civil proceeding;

(b) the public interest in the early settlement of disputes by agreement between parties;

(c) the efficient conduct of the business of the court;

(d) the efficient use of judicial and administrative resources;

(e) minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for-

(i) the fair and just determination of the real issues in dispute; and

(ii) the preparation of the case for trial;

(f) the timely determination of the civil proceeding;

(g) dealing with a civil proceeding in a manner proportionate to-

(i) the complexity or importance of the issues in dispute; and

(ii) the amount in dispute.

(2) For the purposes of subsection (1), the court may have regard to the following matters-

(a) the extent to which the parties have complied with any mandatory or voluntary pre-litigation processes;

(b) the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;

(c) the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;

(d) the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;

(e) the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;

(f) any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court;

(g) the public importance of the issues in dispute and the desirability of a judicial determination of those issues;

(h) the extent to which the parties have had the benefit of legal advice and representation.

(3) This section does not-

(a) limit any other power of a court to make orders or give directions; or

(b) preclude the court from considering any other matters when making any order or giving any direction.

26 The plaintiff placed particular reliance upon s 9(1)(b) and s 9(2)(a) and (b). It was said that subsequent to the enactment of ss 5(1AAA) and 23B of the Limitation of Actions Act, the Parliament had enacted the Civil Procedure Act, and that the Civil Procedure Act emphasised the importance of settling disputes generally and/or settling disputes without the need for recourse to the courts.

27 The plaintiff had a copy of the second letter on the day it was published. There is a dispute about the day on which the plaintiff first obtained a copy of the first letter. In my view, this dispute is of little moment. Whether the plaintiff obtained a copy of the first letter on or before 29 July 2011, or in late September 2011 (as he asserts), this fact alone would not make it not reasonable to commence a proceeding in respect of the first letter within the one year limitation period.

28 The real issue in this application concerns the plaintiff's claim that it was not reasonable to commence his proceeding until he had attempted to settle the dispute or resolve it by other non-litigious means.

29 The passages that the plaintiff relies upon in the judgment of Keane JA in Noonan v MacLennan[14] have been the subject of consideration in subsequent cases. In Pingel v Toowoomba Newspapers Pty Ltd,[15] Fraser JA said:

Whether or not it is not reasonable for a plaintiff to commence an action within the limitation period in circumstances in which the parties have invoked the statutory process must depend upon the evidence in the particular case. I do not understand Keane JA to have suggested otherwise. Given that the one year limitation period in s 10AA of the Limitation of Actions Act was introduced as part of the same statutory scheme which introduced the non-litigious process in Div 1 of Pt 3 of the Defamation Act, it should not be assumed that the mere fact that the parties participate in that process of itself necessarily renders it not reasonable for the aggrieved person to start litigation within the limitation period; rather, that period should to be taken to allow sufficient time for the operation of so much of that process as should occur before the commencement of litigation, in the absence of some unusual circumstance. The expressed object in s 3(d) of the Defamation Act favours "speedy and non-litigious" resolution of defamation claims, not speedy or non-litigious resolution. The legislature has evidently identified a public interest in the prompt commencement of proceedings for defamation. That is evidenced also by the relative shortness of the limitation period and the relatively unusual strictness of the test in s 32A(2). As Chesterman JA observed in Noonan v MacLennan, that public interest should not be undermined by too ready an acceptance that it was not reasonable to start the proceedings within one year.[16]

30 In the same case, Applegarth J[17] said:

The appellant submits that the obiter dicta of Keane JA that I have quoted should not be followed. However, I respectfully agree with it. His Honour did not state that the pursuit of the processes in Div 1 or other non-litigious processes to vindicate rights was itself sufficient to meet the statutory test in s 32A(2). Whether it will be unreasonable to disrupt those processes and to incur expense by commencing proceedings must depend on the circumstances of the particular case, having regard to the policies the Act seeks to advance.[18]

31 Applegarth J went on to note that "a potential plaintiff who chooses to continue negotiations rather than to commence an action within time runs a substantial risk that the court will not be satisfied that an extension of time should be granted".[19] His Honour then went on:

The policy of resolution without litigation and the policy of requiring litigants to commence litigation in a timely way may comfortably co-exist. The expiry of the limitation period may provide an incentive for a plaintiff to either accept or refuse an offer to make amends under Div 1 or any other offer that remains open. This may serve one of the Act's objectives which is "to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter".

On some occasions, however, a tension or conflict exists between the policy of encouraging non-litigious methods of resolving disputes and the policy of requiring proceedings to be commenced within a year. As Keane JA observed in Noonan v MacLennan, in a case where the plaintiff has been engaged in the pursuit of non-litigious processes to vindicate his or her rights, it may well be unreasonable to disrupt those processes and to incur needless expense by commencing proceedings. I do not interpret that observation as any kind of invitation to allow negotiations to drift to the detriment of the policies that underlie the Act, including the policies that underlie the limitation period enacted by it. The Act is intended to provide effective remedies. Therefore, the early vindication of reputation should be encouraged. The timely resolution of disputes in a defendant's favour may remove what would otherwise be excessive self-censorship on the further publication and discussion of matters of public interest and importance. Such self-censorship may be inconsistent with another of the Act's objects, which is "to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance".[20]

32 As the authorities concerning s 23B and its cognate provisions show, there may be circumstances where settlement negotiations between the parties make it not reasonable to commence a defamation proceeding within the one year time limit. However, as is equally plain, merely because there are settlement negotiations between the parties does not necessarily lead to the conclusion that it will not be reasonable to commence a proceeding during the one year limitation period.

33 In the present case, there were no settlement negotiations between the parties during the one year limitation period. The concerns notice[21] was not given until May 2012. Nothing was done between the time when the unnamed Serbian bishop requested the plaintiff not to sue the first defendant (November 2011) and the sending of the concerns notice. Time was simply allowed to elapse. Further, while no details are given in respect of the "many Serbian church members and priests in Australia who begged [the plaintiff] not to sue the Serbian bishop",[22] like the November 2011 Serbian bishop, none of these people asked the plaintiff not to sue the second and third defendants in respect of the publication of the second letter.

34 In my view, the plaintiff has not established that it was not reasonable to commence defamation proceedings in respect of the first letter within one year from the date of its publication. This is not a case of the kind contemplated by Keane JA in Noonan v MacLennan,[23] where it might be said to be not reasonable to disrupt settlement (or other non-litigious) processes and to incur expense by commencing a proceeding. Further, the material filed by the plaintiff [24]does not support the submission that it was not reasonable for the plaintiff to commence a proceeding because of some matter "as profound as adherence to religion".[25]

35 Similarly, in my view, the plaintiff has not established that it was not reasonable to commence defamation proceedings in respect of the second letter within one year from the date of its publication. The plaintiff's case for an extension of the limitation period with respect to the second letter is even weaker than his case for an extension of time in relation to the first letter. The plaintiff had a copy of the second letter on the day it was published. Further, there was no conversation with any Serbian bishop or other church member in which the plaintiff was asked not to sue the publishers of the second letter (the second and third defendants).

36 Whether one considers the plaintiff's reasons for not commencing a proceeding within the relevant one year periods alone or in combination (including accepting the plaintiff's claim that he did not receive a copy of the first letter until late September 2011), I am unable to conclude that it was not reasonable to commence proceedings within the prescribed time periods. Accepting all of the plaintiff's evidence, one might perhaps conclude that his conduct was not unreasonable. However, that is not the test. The plaintiff was required to show, in respect of each publication, that it was not reasonable to commence a proceeding within one year from the date of that publication. The plaintiff has failed to do this. His application must be dismissed.

37 For the sake of completeness, I should say that little, if anything, was added to the argument by the plaintiff's submissions concerning s 9 of the Civil Procedure Act 2010. The importance of the just, timely and efficient resolution of civil disputes by settlement or other non-litigious processes was acknowledged by courts of high authority long before the commencement of s 9 of the Civil Procedure Act. While the plaintiff was correct when he submitted that the Civil Procedure Act was enacted after the Defamation Act 2005 and s 23B of the Limitation of Actions Act 1958, the enactment of the Civil Procedure Act did not alter the proper construction or operation of s 23B of the Limitation of Actions Act. Section 23B still remains to be construed in accordance with ordinary principles of statutory construction. The importance of appropriate alternative dispute resolution mechanisms (and the acknowledgment of their importance in legislation such as the Civil Procedure Act) cannot change the result in this case. The short point is that the plaintiff has not established that it was not reasonable for him to commence proceedings in relation to the first letter or the second letter within one year from the date of their respective publications.

38 The plaintiff's application for an order that the limitation period in relation to the publication of the first letter and the second letter be extended to 9 January 2013 will be dismissed.

[3] Again, as typed in the statement of claim.

[4] Plaintiff's affidavit, paragraph [25]. See further, paragraph 9 of the affidavit of Anthony Thomas Maher sworn 19 April 2013 on behalf of the defendants.

[5] Plaintiff's affidavit, paragraph [28].

[6] Plaintiff's affidavit, paragraph [37].

[7] Affidavit of Anthony Thomas Maher sworn 19 April 2013.

[8] [2013] VSC 251 [28].

[9] See Lakaev v Denny [2010] NSWSC 1480 [18]; Houda v State of New South Wales [2012] NSWSC 1036 [11]-[12]; and Casley v ABC [2013] VSC 251 [29]-[30].

[11] [2010] QCA 50; [2010] 2 Qd R 537.

[12] See further, Casley v ABC [2013] VSC 251 [20]-[27].

[13] [2010] QCA 50; [2010] 2 Qd R 537, 542 [16]-[17].

[14] [2010] QCA 50; [2010] 2 Qd R 537, 542 [16]-[17].

[15] [2010] QCA 175.

[18] [2010] QCA 175 [89].

[20] Ibid [105]-[106] (Citations omitted). See further, paragraphs [107]-[108].

[21] Cf s 14(2) of the Defamation Act 2005.

[22] Plaintiff's affidavit, paragraph [47].

[23] [2010] Qd R 537.

[24] Including the terms of the concerns notice, to which I have already referred.

[25] See paragraph [13] of the plaintiff's written submissions filed 10 May 2013.