Rametta v Deakin University

The claim for an extension 12 The application for interlocutory relief was not originally accompanied by any affidavit material in support. When the matter came on for its first directions hearing on 16 September 2010, the Court adjourned the hearing of the interlocutory relief in the absence of such affidavit material. As the docket judge was about to commence a period of long leave the Court adjourned that hearing to 2 December 2010. Counsel for Ms Rametta was concerned that by then three years would have elapsed since 31 October 2007 when the asserted defamatory statements were allegedly made. 13 Counsel had in mind the provisions of the Limitation of Actions Act 1958 (Vic) ("the Victorian Act"). 14 Section 5(1AAA) of the Victorian Act provides: An action for defamation must not be brought after the expiration of 1 year from the date of the publication of the matter complained of. 15 Section 23B of the Victorian Act 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. 16 Given the uncertainty at the first directions hearing as to whether Ms Rametta would be entitled, on 2 December 2010, to seek an extension, and given the undesirability of a duty judge having to deal with the claim for interlocutory relief instead of the docket judge, I made an order granting the extension of time requested on a provisional basis out of an abundance of caution. That provisional basis was that the order granting the extension not be entered, pending the determination of the motion which was listed for hearing on 2 December 2010. 17 The parties were informed and understood that that order was intended only to maintain Ms Rametta's right to have her interlocutory relief determined and that she bore the onus on 2 December 2010 of showing why that order should be entered. The matter was then dealt with on the basis that Ms Rametta's claim to be entitled to her extension of time was to be tested on 2 December 2010.

The test 18 A claim for defamation must be made within one year of the publication concerned but may be extended for up to three years from the date of publication. Such an extension is sought in this case. The sole criterion on which the extension may be granted is if the Court is satisfied "that it was not reasonable for the plaintiff to have commenced an action in relation to the matter complained of within one year of the date of the publication"; see s 23B(2) of the Victorian Act. 19 The same test is propounded by s 32A (2) of the counterpart Queensland legislation-the Limitation of Actions Act 1974 (Qld) ("the Queensland Act"). Section 10AA of the Queensland Act is materially identical to s 5(1AAA) of the Victorian Act. Those provisions were examined by the Court of Appeal in Queensland in Noonan v MacLennan [2010] QCA 50. 20 At [8] in the judgment of Keane JA (as the Chief Justice then was), his Honour said: In Robertson v Hollings, Dutney J observed that the issue which arises under s 32A(2) of the Act is not whether a court is satisfied that it was reasonable for the plaintiff to commence the proceeding only after the period of one year has expired, but whether it was not reasonable to commence an action during that period. 21 Further at [15] Keane JA said: Section 32A(2) of the Act proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence an action to vindicate his or her legal rights in accordance with the time limits provided by law. While s 32A(2) proceeds on this assumption it is obvious that only in relatively unusual circumstances will a court be satisfied that it was not reasonable to seek to vindicate one's rights in accordance with the law. The burden is on a plaintiff to point to circumstances which make it not reasonable to seek to enforce his or her legal rights in the way required by the law. 22 His Honour went on at [16] to give an example of a situation where such an extension could be granted as "…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." At [18], Keane JA referred to the lack of evidence in the matter before him of the plaintiff holding off litigating "by reason of the prospect that a negotiated settlement of his claim would render an action unnecessary." Further at [20], his Honour stressed that the test was an objective one such that the circumstances to be considered are those that "appear objectively to the court" and not from the subjective viewpoint of the plaintiff. 23 At [30], Holmes JA said that s 32A of the Queensland Act …requires more of an applicant for an order extending the limitation period for a defamation action than that he show that it would have been reasonable for him not to commence an action within the one year period; he must go further and establish something rather more difficult: that it would not have been reasonable for him to do so. 24 At [47], Chesterman JA said: …The subsection is unusual. It requires a court to extend time if it be satisfied that the described precondition has been fulfilled. The court has no discretion in the matter. If so satisfied it must extend time. However, there is a discretion 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. 25 Further at [48], Chesterman JA said: The subsection is unusual in a second respect. It does not, as does other legislation allowing for an extension of a limitation period, permit the extension where it was reasonable, because of defined circumstances, to extend time. To obtain an extension an applicant must demonstrate that it would have been unreasonable for him in the particular circumstance to have commenced an action within the first year after publication. That is to say an applicant must demonstrate affirmatively that he would have acted unreasonably in suing within time. 26 Further at [49], his Honour said: …an applicant does not have to account for every day or week in the limitation year. What he has to do is satisfy the court that it was not reasonable in the circumstances to have commenced an action within the limitation period. That, obviously, involves the identification of the circumstances which made it unreasonable to commence the action in time. 27 At [50], Chesterman JA described the test as "a difficult one for a plaintiff to satisfy". The circumstances which might justify an extension, his Honour observed at [51], were "at large" but "must be so compelling as to make it positively unreasonable for a person defamed not to exercise his legal rights to sue within the statutorily designated period". 28 The case of Murphy v Lewis [2009] QDC 37, in the District Court of Queensland, was discussed by Chesterman JA at [55] ff. There a university employee had chosen to pursue redress through internal university procedures in preference to commencing legal proceedings. Discussing that case, Chesterman JA said at [59] about the applicant in that matter: His preference for the private remedy did not make it unreasonable for him to commence legal proceedings. He understood he had a choice, and he made it. It is not apparent why it would be unreasonable for him to accept the consequences of the choice. 29 At [61] in referring to the Judge who decided Murphy, his Honour said: I agree with Judge Kingham's opinion that a plaintiff who wishes to claim damages for defamation does not act reasonably (if no more is shown) in delaying the start of proceedings while some investigative or disciplinary proceeding, affecting the parties to, and the subject matter of, the defamation, is undertaken. 30 Chief Justice Martin of the Supreme Court of Western Australia applied Noonan in Rayney v The State of Western Australia (No 3) [2010] WASC 83 at [41] and by Kenneth Martin J of the same Court in Wookey v Quigley (No 2) [2010] WASC 209, while each noted that there were differences between the Queensland and Victorian Acts and the counterpart Western Australian provisions.

The evidence 31 Has Ms Rametta demonstrated that it would have been unreasonable for her, in the particular circumstances of her case, to have commenced an action within the first year after the publication of the alleged defamatory material, that is by 31 October 2008? 32 In support of her interlocutory application, Ms Rametta has filed an affidavit sworn on 28 September 2010. 33 Ms Rametta says that the University did not supply her with "a true copy of the Smith complaint" until on or about 21 December 2007. Before then she says that she had only been provided by the University with an edited version of the first eight pages of the "Smith complaint". 34 Ms Rametta also states that by 21 December 2007, the "complaint" had been referred to an Inquiry Panel of the Harassment and Discrimination Complaints Procedure of the University. She also says that in January 2008, Dr Smith withdrew his complaint. 35 In her affidavit, Ms Rametta says: Between October 2007 and November 2008, I was fighting for my position and my career as my duties and responsibilities were progressively stripped away from me and others were appointed to take over my functions. In that regard, Ms Rametta refers to a statement dated 10 June 2009, tendered in proceedings in the Australian Industrial Relations Commission, which referred to what she was doing in the relevant period to assert her rights ("the AIRC statement"). 36 In the AIRC statement, Ms Rametta refers to a letter dated 3 December 2007, from her solicitor. The letter refers to a meeting that day with a Ms Wilson of the University, "to respond to the allegations and discuss resolution". The letter also refers to Ms Rametta being "committed to re-establishing relationships with the complainants" and "committed to the mediation process". She says that the complainants refused to engage in mediation and "seemed intent on a hearing under the University's internal individual complaint procedures". 37 The AIRC statement refers to Dr Smith withdrawing his complaint and to the other complainant persisting in taking her complaint to a hearing by an Inquiry Panel within the University's procedures. The AIRC statement catalogues Ms Rametta's alleged treatment by the University, including "censure, transfer and demotion". 38 The AIRC statement says that the inquiry panel reported in late February 2008, but that Ms Rametta did not receive a copy of the report apart from an incomplete version not containing recommendations, which she was able to access in July 2008. It also states that the inquiry panel reported its outcome to her on 7 March 2008. 39 The AIRC statement says that as a consequence of the findings, Ms Rametta received a caution and was required to comply with behavioural objectives and undergo training. Ms Rametta was also cautioned that future similar conduct would lead to action being taken under the Unsatisfactory Performance or Misconduct provisions of the Agreement. 40 Ms Rametta went on to say that "(i)n the subsequent months, I did everything in my power to comply and be an effective team member". She says she underwent training and was advised by management at a meeting held on 10 November 2009 that her behaviour was satisfactory. 41 The AIRC statement also refers to what Ms Rametta claims to be humiliating and aggressive behaviour directed at her by University officers from March to July 2008. 42 Many other matters referred to in the statement have no relevance to the period of one year from the publication of Dr Smith's complaint, that is, up to 31 October 2008. 43 In her affidavit, Ms Rametta also relies on various paragraphs in her statement of claim as relevant to the current question before the Court. So far as is relevant to the period 31 October 2007 to 31 October 2008 those paragraphs refer to: the commencement of a Ms Fornaro in the human research ethics office on 3 December 2007 and the assumption by Ms Fornaro of a substantial proportion of Ms Rametta's duties from December 2007 to June 2008; the appointment of a Ms Victoria Emery to work in research ethics without reference to Ms Rametta on 5 February 2008; the reappointment and promotion of Ms Fornaro on 2 June 2008 with Ms Emery as her supervisor. 44 In her affidavit, Ms Rametta claims that steps were in train in the latter part of 2007 and the first half of 2008 to permanently remove her from her position. She also claims that throughout 2008 she was suspicious of what was happening to her but was fighting for her future and accepted assurances from the University in the hope that they were true. 45 At paragraph 17 of her affidavit she says: In the circumstances, it would not have been reasonable for me to have commenced defamation proceedings against the University as my employer within one year of the publication of the defamatory material. It would almost certainly have led to negative consequences against me and would have ended all hope that I would recover my position and career. 46 Ms Rametta also refers to her lack of financial resources and the cost consequences at the time of any unsuccessful action. She believes the University would have vigorously contested any such proceeding. She said she maintained hope that the University might make some amends for the defamation. She was also concerned about the effect on her career from publicity arising from the institution of defamation proceedings. She says that the University was on notice from 28 December 2007 that defamation was an issue. Ms Rametta refers to her solicitor's letter of that date to the University, in which the claims in Dr Smith's complaint are described as "grossly defamatory" amongst other things. 47 Ms Rametta claims that it was not until July 2009 that she thought redress could occur "through formal defamation proceedings".

State of satisfaction 48 Ms Rametta has not satisfied the Court that it would have been unreasonable for her to have commenced an action in defamation by 31 October 2008. She had a copy of the allegedly defamatory material by 21 December 2007. The outcome of the inquiry panel and its recommendations did not constitute the alleged defamatory material. Her undermining by the appointment of Ms Fornaro or Ms Emery does not bear on the question before the Court. She appears to have made a deliberate choice to "tough things out" at work rather than to institute defamation proceedings. That is despite her evidence about being undermined and humiliated at work from March to July 2008. 49 With respect to the position advanced in her affidavit, the question is not whether it would not have been reasonable for Ms Rametta to commence such a proceeding. The question is whether it would have been unreasonable for her to have commenced it. One can readily understand the possible adverse consequences of suing one's employer, but such adverse consequences are less likely at the hands of a larger employer with a human resources or industrial relations department, such as a University, than would apply with a smaller employer. Termination of employment in response to the assertion of one's legal rights would only give an employee an enhanced case in breach of contract in addition to any remedy arising from a defamation proceeding. 50 Further, the cost associated with legal proceedings cannot logically support the view that the institution of defamation proceedings was unreasonable. If this proposition was accepted, the institution of any proceeding by an individual, given the likely costs involved, would always be unreasonable unless that individual was wealthy. In this regard see Carey v ABC [2010] NSWSC 709 at [58], per McCallum J. 51 Nothing in the material advanced by Ms Rametta satisfies the Court that it would have been unreasonable for her to issue a defamation proceeding. It may be that had she instituted such a proceeding, officers of the University may have been less reluctant to disregard her legal and industrial rights as she asserts they did. Ms Rametta made a deliberate decision to see if the University would act in a way to redress the allegedly defamatory material. Such an approach is equivalent to electing to let an investigative or disciplinary proceeding run its course rather than commence a proceeding: see Noonan at [59] and [61], per Chesterman JA, referred to at [28] and [29] above and Carey at [56] and [57]. There is also no evidence of the engagement by Ms Rametta in the pursuit of any non-litigious process to assert her rights with respect to Dr Smith's publication; see Keane JA in Noonan at [16] as discussed at [22] above. 52 The provisions of s 23B (2) of the Victorian Act are not engaged as the Court is not satisfied that it was not reasonable in the circumstances for Ms Rametta to have commenced an action in relation to Dr Smith's complaint within one year from the date of its publication.

Orders 53 The Court will order that the applicant's notice of motion dated 29 September 2010 is dismissed and reserve costs. In reserving costs the Court is only reserving the University's right to request that such an order be made. Whether a costs order is open to be made in the circumstances may require an examination of the judgments of the members of the Full Court in Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62. On the directions hearing aspect of the proceeding, the Court will order that the applicant file and serve an amended statement of claim by 22 December 2010 to reflect the result of the motion. The directions hearing is otherwise adjourned to 9.30 am on 3 February 2011. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.