Practice and procedure - Defamation action - Limitation periods - Extension of time in which action can be commenced - Amendment of writ - Whether new cause of action - Whether there is residual discretion which allows the court to extend the time in which cause of action commenced - Effect of Model Defamation Provisions and legislation of other states and territories - Structure of Pt 3, div 3 of the Limitation Act 2005 (WA)

Defamation Act 2005 (TAS), s 20A

Defamation Act 2005 (WA), s 14(2),

Limitation Act 1969 (NSW), s 56A

Limitation Act 1985 (ACT), s 21B

Limitation Act 2005 (WA), s 3, s 15, s 38, s 39, s 40, s 41, s 42, s 43, s 44, s 79

Limitation of Actions Act 1936 (SA), s 37

Limitation of Actions Act 1958 (VIC), s 23B

Limitation of Actions Act 1974 (Qld), s 32A

To the extent that there is an application to allow the amended writ of summons dated 24 February 2010 to stand as the amended writ of summons, that application is allowed

To the extent that there is an application to strike out the amended writ of summons dated 24 February 2010, that application is disallowed

Australian Securities Commission v Marlborough Gold Mines [1993] HCA 15; (1993) 177 CLR 485

Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Mirror Newspapers v Harrison [1982] HCA 50; (1982) 149 CLR 293

Morgan v Banning (1999) 20 WAR 474

Noonan v MacLennan [2010] QCA 50

Rayney v The State of Western Australia [No 2] [2009] WASC 133

Stone James v Pioneer Concrete (WA) Pty Ltd (1985) WAR 233

Weldon v Neal (1887) 19 QBD 394

(This judgment was delivered extemporaneously on 7 April 2010 and has been edited from the transcript.)

1 The plaintiff applies by summons for orders that the time for the plaintiff to commence that part of his defamation action which includes matter published on 16 August 2007, 22 August 2007 and 29 August 2007 as part of his cause of action be extended to the date of the order; and secondly, that the amended writ of summons dated 24 February 2010 stand as the amended writ of summons.

2 For reasons that will become apparent, it has also been agreed between the parties that this application should be treated as an application by the defendant to strike out the amended writ of summons filed and served on or about 24 February 2010 on the grounds, amongst other things, that it would include a cause of action or causes of action which are barred by reason of provisions of the Limitation Act 2005 (WA) (Limitation Act).

3 The plaintiff's wife, Corryn Rayney, was last seen alive by anybody who has admitted that fact on the evening of 7 August 2007 when she left a boot scooting class at the Bentley Community Centre. She failed to report to work the following day and her disappearance was notified to police. Her vehicle was discovered in Kershaw Street, Subiaco on 14 August 2007 and on 16 August 2007 her body was found by police buried in Kings Park.

4 Detective Senior Sergeant Lee, a police officer, made statements to the media on each of 16 August 2007, 22 August 2007, 29 August 2007 and 20 September 2007. I will return to what is said about those statements in the amended statement of claim later in these reasons. On 18 August 2008 the plaintiff by his solicitors wrote to the State giving notice of concerns pursuant to s 14(2) of the Defamation Act 2005 (WA) (Defamation Act). In that letter an explanation was given for the delay in writing to the State which is consistent with the evidence which has been filed by the plaintiff justifying the delay in commencement of proceedings. The reason given is essentially to the effect that Mr Rayney was concerned that any commencement of defamation proceedings might be misinterpreted by the media and might in some unspecified way impair the investigation into the death of his wife.

5 In the letter reference was made to the statements made by Detective Senior Sergeant Lee at a press conference on Thursday, 20 September 2007. The letter went on to refer to prior media statements made by Detective Senior Sergeant Lee. The letter asserted that by reason of statements made to the media prior to the publication on 20 September 2007:

... the police had expressly drawn a clear distinction in media statements between a person of interest and a suspect. In doing so they conveyed unmistakably to the readers of The West Australian, other newspapers and viewers on television and repeats on radio and repeats on the World Wide Web that a suspect was a person against whom evidence existed to establish that they had committed the offence.

6 The letter went on to assert that the imputation that arose from the statement made on 20 September 2007 was that Mr Rayney had murdered his wife.

7 The writ was issued by the plaintiff on 16 September 2008, shortly before the first anniversary of the statement made by Detective Senior Sergeant Lee on 20 September 2007. The limitation period specified by s 15 of the Limitation Act for the commencement of defamation proceedings is one year. The terms of the indorsement of claim on that writ are of significance to these applications. The relevant provision is par 1.1 of the indorsement which identifies that the plaintiff's claim arises in respect of:

A media statement published of and concerning the Plaintiff by a member of the Western Australian Police Force, Detective Sergeant Lee, on or about 20 September 2007 which media statement was grossly and falsely defamatory of the Plaintiff.

8 A statement of claim was filed on 23 October 2008. In par 3 of that pleading the statements made by Detective Senior Sergeant Lee on 20 September 2007 were identified. By par 4 it was said that those statements meant and were understood to mean in their natural and ordinary meaning that the plaintiff had murdered his wife. By par 5 it was asserted that further and alternatively, the statement made on 20 September 2007 bore the meaning pleaded by way of innuendo, that is, that the words bore a meaning other than their natural and ordinary meaning by reason of extrinsic material known to the persons to whom the words were published. Extensive particulars were given of the matters that were said to give to the words a meaning other than their natural and ordinary meaning. They included, by par 5.1.2 the statements made by Detective Senior Sergeant Lee to journalists on 16 August 2007; by par 5.1.14 the statements made on 22 August 2007; and by pars 5.1.20 and 5.1.22 the statements made on 29 August 2007.

9 A defence was filed on 14 November 2008. No objection was taken to the statement of claim and no limitation defence was foreshadowed at that point. That was not unreasonable of course because at that point there was no suggestion on the face of the pleading that statements published prior to 20 September 2007 were relied upon as part of the tortious conduct giving rise to the cause of action. By letter of 14 January 2009, the State foreshadowed an application to strike out pars 4 and 5 of the statement of claim on various grounds.

10 The parties then conferred. No limitation point was raised in the course of conferral, probably for the reason that I just enunciated, namely, that at that point on the face of the pleading there was no suggestion that conduct prior to 20 September 2007 formed part of the conduct said to form part of the cause of action. On 23 January 2009 a belated application was made for an extension of time within which to bring a strike-out application. With some reluctance I granted the extension of time sought.

11 Before that application was heard, however, the statement of claim was amended by a document filed on 11 March 2009. The only significance of that amendment was to introduce into par 4 an alternative imputation, that is, that the plaintiff so conducted himself so as to give rise to a reasonable suspicion that he murdered his wife; that is to say, an imputation along the lines identified by the High Court in the decision in Mirror Newspapers v Harrison [1982] HCA 50; (1982) 149 CLR 293. The innuendo plea advanced in par 5 remained in the same terms as originally pleaded.

12 The strike-out application was heard by Anderson AuJ on 7 May 2009. The defendant submitted in written submissions filed prior to that application and in the course of the application itself, that prior statements were incapable of constituting extrinsic facts so as to support a plea of a true innuendo. That argument was not accepted by Anderson AuJ. However, he did strike out par 5 of the statement of claim essentially on the basis that in his view, the prior utterances pleaded extensively in par 5 were incapable of giving to the words spoken on 20 September 2007 a meaning different to their natural and ordinary meaning and therefore incapable of giving rise to a true innuendo (Rayney v The State of Western Australia [No 2] [2009] WASC 133 [19] - [20]).

13 Liberty was granted to re-plead and that liberty was exercised by a further amended pleading filed on 29 May 2009. In that pleading the general structure which now remains was first adopted, albeit in terms somewhat differently enunciated. An alternative proposition was advanced to the effect that the statement made on 20 September 2007 should, in addition to being viewed in its own light, be joined with statements made on previous occasions which together formed a single statement that was defamatory and gave rise to the meanings pleaded. In that version of the pleading, only the prior statements of 22 August 2007 and 29 August 2007 were identified.

14 In response to that amended pleading, the State wrote to the plaintiff advancing various objections. The plaintiff then presented to the defendant a revised pleading dated 3 July 2009 which took the same approach in different words; that is to say, in the alternative to group the statements made on 22 August 2007, 29 August 2007 and 20 September 2007 as a single utterance which gave rise to the defamatory imputations relied upon.

15 The State responded to that draft pleading objecting to its terms and reserving its position in relation to any limitation defence that might arise from a pleading filed in those terms. That was the first occasion upon which that point was taken. That was not unreasonable given that the first occasion the plaintiff had suggested that the prior statements were to be relied upon as forming part of the conduct giving rise to the tort of defamation was 29 May 2009.

16 Between 7 July 2009 and 3 August 2009, conferral took place between the parties, including conferral in relation to a minute of proposed amended statement of claim dated 13 July. A letter from the State to the plaintiffs dated 14 July 2009 again reserved the State's position in relation to any limitation defence and also observed for the first time that the plaintiff's now plea exceeded the indorsement of the writ.

17 An amended statement of claim was filed on 3 August 2009, which is in almost the same terms as the pleading filed on 24 February 2010 save that the document filed on 3 August 2009 did not make reference to the media conferences on 16 August 2007, whereas the most recent version of the statement of claim includes those conferences.

18 The pleading to which I will now refer is the amended substituted statement of claim filed on 24 February 2010. An amended writ was also filed on that day, which I shall soon refer. By par 3 of the statement of claim, reference is made to media conferences held on each of the four dates that I have mentioned; that is, 16 August 2007, 22 August 2007, 29 August 2007 and 20 September 2007, and the words said to have been spoken in the course of those conferences are set out in a schedule to that statement of claim. It is also pleaded by par 4 that the words spoken on 20 September 2007 should be heard in the context of and together with the words spoken on the three previous occasions or, in the alternative, viewed in isolation.

19 Paragraph 6 pleads that in their natural and ordinary meaning, either viewed collectively as the four statements or viewed singly as the statement of 20 September 2007, the words meant that the plaintiff murdered his wife or, alternatively, had so conducted himself as to give rise to a reasonable suspicion that he murdered his wife. For the purposes of this application it should be assumed that the words of the gist of those particularised in the schedule to the statement of claim were spoken.

20 The defence that was filed on 5 February 2010 accepts the gist of the words spoken in relation to all the statements other than those on 16 August 2007. That statement had not been pleaded as part of the cause of action at the time the defence was filed, but the defence refers to a media conference on 16 August 2007 in terms which are not dissimilar to those contained in the schedule to the statement of claim. Relevantly for present purposes, by pars 47 and 48 of that pleading the State pleads a limitation defence and relies on s 15 of the Limitation Act.

21 Before I leave the factual matrix it is necessary to refer to the affidavit of Mr Rayney sworn in support of this application. In that affidavit he describes his reasons for deferring the commencement of proceedings. He states that he made a deliberate decision to defer commencing any defamation proceedings after the conference on 20 September 2007. He says that while the impact on him was immediately adverse he did not want to take any step at that time which could have impaired the investigation by police and considered that issuing defamation proceedings may have adversely impacted in some way on the investigation, in particular as a result of media reaction. He asserts that he continued to encourage a thorough and competent investigation so that his wife's murderer was brought to justice as soon as possible and that he felt it was proper and appropriate to allow the police investigation to take precedence over his intention to issue defamation proceedings. That evidence is not challenged in these proceedings.

22 The media conference on 16 August 2007 made no reference whatever to Mr Rayney and was quite incapable of being separately defamatory of him. The same can be said of the statement made on 22 August 2007 in which Detective Senior Sergeant Lee said:

Mr Rayney has fully cooperated with the police in this investigation. I wish to emphasise that Mr Rayney is not a suspect, and any further speculation regarding his involvement in this offence may be detrimental to the investigation.

23 The position is not quite so clear in relation to the statements made on 29 August 2007. Amongst the statements made was a statement made in response to the question, 'Have you completely eliminated Lloyd Rayney from your investigation?' to which the answer was, 'No. Mr Rayney is a person of interest as are many other people in this investigation' The next question was, 'Last week you've ruled him out as a suspect though? He is not a suspect though that has not changed?', as to which it is said that Detective Senior Sergeant Lee responded:

A suspect indicates that there is some level of evidence against a person having committed a crime. There is no evidence against Mr Rayney having committed any crime, he is not a suspect in this matter.

24 I put to counsel for the State that those publications (16 August 2007, 22 August 2007 and 29 August 2007) were incapable of giving rise to any imputation defamatory of the plaintiff. Counsel for the State resisted that proposition and indeed advances the proposition that it may be arguable that the statement made on 29 August 2007 was capable of giving rise to the second of the imputations pleaded in these proceedings; namely, that the plaintiff was suspected on reasonable grounds of having murdered his wife or had so conducted himself as to give rise to a suspicion on reasonable grounds that he had murdered his wife.

25 I do not accept that proposition. Although the question posed by the media was not answered in express terms, it seems to me to be clear that the words spoken by Detective Senior Sergeant Lee, to the effect that Mr Rayney was not a suspect and that there was no evidence of him committing any crime, would prevent the reasonable listener hearing those words from concluding by any rational process of reasoning that the plaintiff had so conducted himself as to give rise to reasonable grounds to suspect that he had murdered his wife.

26 That is not to say that the statements made on 29 August 2007 might not be arguably defamatory of the plaintiff, but they are not arguably defamatory of him in the ways in which the imputations have been formulated in these proceedings. So the statements made by Detective Senior Sergeant Lee up to 29 August 2007 were not capable of giving rise to the cause of action that has been relied upon in these proceedings.

27 That all changed, however, on 20 September 2007 when Detective Senior Sergeant Lee said that the plaintiff was the 'prime' and 'only suspect' in the case and went on to expand upon those observations. So the point I draw from all of that is that until the statement made by Detective Senior Sergeant Lee on 20 September 2007 there was nothing that would have grounded these proceedings, at least in the way in which they have been formulated. That is of some significance to the issue which I am required to determine with respect to the application to amend the writ.

28 The amended writ that was filed on 24 February 2010 refers to the statement made on 20 September 2007 (in the same terms as in the original indorsement of claim) but then goes on to add, cumulatively not alternatively, that that statement was published in circumstances where it was apparent on the face of the words spoken by Detective Senior Sergeant Lee that he intended the words spoken to the media on or about 20 September 2007 should be heard in the context of and together with the words which he had spoken to the media on 16 August 2007, 22 August 2007 and 29 August 2007.

29 Counsel for the State takes the point that the terms in which the indorsement is formulated do not correspond exactly to the terms of the current form of the pleading. At a technical level that may be correct in the sense that the indorsement of claim does not expressly state that there are two alternative causes of action pursued, that is, one which relies only on the statement of 20 September 2007 and another which relies on that statement heard in the context of and together with the earlier words. However, that sense comes clearly from the terms of the indorsement of claim. There is no confusion or uncertainty in relation to the way in which the plaintiff formulates his claim. The words that have been used in the indorsement of claim sufficiently enunciate the two senses in which the plaintiff advances his claim, namely, one sense in which he relies only on the words spoken on 20 September 2007 and the other sense in which he relies on those words heard in the context of the words earlier spoken by Detective Senior Sergeant Lee on the three prior nominated occasions. So I do not accept that the amendment should be disallowed because of a failure to correspond with the terms of the current pleading.

30 The legal context for these applications is set by the provisions of the Limitation Act. Section 15 provides:

An action relating to the publication of defamatory matter cannot be commenced if one year has elapsed since the publication.

Section 40(1), however, provides:

A plaintiff may apply to a court for leave to commence an action relating to the publication of defamatory matter even though one year has elapsed since the publication

and by s 40(2), subject to s 40(3) on an application:

... a court, 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 one year from the publication, must extend the time in which the action can be commenced.

Relevant also is s 44 which provides:

When deciding on an extension application, whether to extend the time for the commencement of an action, a court is to have regard to -

(a) whether the delay in commencing the proposed action, whatever the merit or the reasons for that delay would unacceptably diminish the prospects of a fair trial of the action;

(b) whether extending the time would significantly prejudice the defendant (other than by reason only of the commencement of the proposed action).

31 In that context, s 3 of the Limitation Act is relevant because it defines an extension application expressly so as to include an application made pursuant to s 40. However, s 44 is not the only provision in the Limitation Act which refers to an extension application and, therefore, not the only provision to which the definition provided by s 3 would be relevant. Relevant also are s 43 and s 79 of the Limitation Act which contain provisions that would be of application to an extension application brought under s 40.

32 In the way in which the case has unfolded, the first question that requires determination is not so much a question of whether an application for an extension of time under s 40 should be granted, but rather it is the question of whether or not such an extension is necessary. That question turns upon whether the amendment made by the writ is of a kind which would introduce into the proceedings a cause of action which is barred by the Limitation Act and therefore impermissible in accordance with the rule in Weldon v Neal (1887) 19 QBD 394 or, alternatively, whether the amendment proposed is of a kind that would fall within the scope of O 21 r 5 of the Rules of the Supreme Court 1971 (WA) (RSC). Order 21 r 5(5) RSC relevantly provides that an amendment to a writ may be allowed:

... notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.

33 It is common ground that I should treat this application either as an application by the plaintiff for leave to amend the writ in terms of the document filed on 24 February 2010 or an application by the defendant to strike out the writ, the amendment having been made without leave, so to give rise to the determination of the question of whether or not the amendment falls within the scope of O 21 r 5 RSC or alternatively is precluded by reason of the operation of s 15 of the Limitation Act.

34 The principles that arise in this area are well known and have been established in a number of cases including Stone James v Pioneer Concrete (WA) Pty Ltd (1985) WAR 233, Morgan v Banning (1999) 20 WAR 474 and Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431. I will not go through those cases in detail. It is sufficient to say that questions of fact and degree are involved in the judgment that has to be made in relation to the application of O 21 r 5 RSC. A value judgment has to be made as to whether the cause of action asserted by the amendment arises out of the same or substantially the same facts as a cause of action previously asserted. No hard and fast line can be drawn to identify clearly and with precision in advance which cases are going to fall on one side of the line and which cases are going to fall on the other. Rather, each case will depend upon its particular facts and circumstances.

35 In this case it is of considerable significance that the essence and sting of the plaintiff's claim has at all times been the statements made by Detective Senior Sergeant Lee in the course of the media statement on 20 September 2007. As I have indicated, the three prior statements made by Detective Senior Sergeant Lee were incapable of giving rise to the cause of action asserted by the plaintiff in these proceedings viewed in isolation. They are only relied upon as providing a context to the audience to whom Detective Senior Sergeant Lee spoke the words on 20 September 2007. They are only relied upon as giving contextual meaning to those words, they are not relied upon as a cause of action independent in themselves.

36 That seems to me to distinguish this case from Dye v Griffin Coal Mining Co in which prior conduct said to be separately and independently tortious was introduced by the amendment, and to bring it within the line of case in which (taking a generous approach to the construction of the indorsement of claim - as suggested by the authorities) the matters now relied upon are substantially the same as the facts relied upon for the cause of action first enunciated in the indorsement of claim filed on 16 September 2008.

37 This case focuses critically upon the meanings conveyed by the words spoken on 20 September 2007 either viewed in isolation, as was always pleaded or, as is now suggested viewed in the context of the three earlier statements previously made. Those three previous statements do not seem to me to alter the essence of the cause of action which is asserted. That cause of action remains the same. It is to the effect that the words spoken on 20 September 2007, either with or without the previous statements, gave rise to imputations to the effect that the plaintiff murdered his wife or had so conducted himself as to give rise to reasonable grounds for suspicion that he murdered his wife.

38 For these reasons, I would, to the extent that there is an application before me for leave to amend the writ, allow that application. To the extent that there is an application to strike out the amendment made without leave I would disallow the application.

39 That is sufficient to dispose of the contentious issues. However, in case the matter goes further it is necessary for me to go on and deal with the other issues raised that relate to the application for extension of time on the assumption that such an extension is necessary because the amendment to the writ would introduce a new cause of action not falling within O 21 r 5 RSC.

40 The first question which arises is whether the plaintiff has brought himself within the express provisions of s 40(2) of the Limitation Act which require a court to grant an extension of time if satisfied that it was not reasonable for the plaintiff to have commenced an action within one year from the publication.

41 That is a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances such as, for example, the plaintiff being unaware of the publication within the period of one year from the publication having occurred. The important points to note are that by virtue of s 79 of the Limitation Act the onus of proving that it was not reasonable to have commenced within the period of one year rests with the plaintiff, and as the Court of Appeal of Queensland observed in the case of Noonan v MacLennan [2010] QCA 50, the burden that must be discharged is to establish that it was not reasonable to have commenced within one year. It is not a burden which is discharged by showing that it was not unreasonable to have not commenced within one year.

42 The problem the plaintiff faces in this case is that the one year period expired on 20 September 2008. He had in fact commenced proceedings within one year of that date by these proceedings which were commenced on 16 September 2008. It would have been quite possible for him to have included in the writ a reference to the three earlier statements made on that occasion. Given that the plaintiff carries the burden of showing that it was not reasonable for him to have commenced proceedings by 20 September 2008, it seems to me that in the circumstances of this case that is an almost impossible burden to discharge and that he has failed to discharge it.

43 For those reasons I find that the plaintiff has not established that the court is obliged to give an extension of time by reason of the provisions of s 40(2) of the Limitation Act (on the assumption that an extension of time is necessary).

44 The remaining issue for determination is whether, notwithstanding the plaintiff's failure to bring himself within s 40(2) of the Limitation Act, he could nevertheless invoke a residual discretion which the court has to extend time. That issue gives rise to a question of statutory construction. A number of arguments have been raised. They include reference to the Model Defamation Provisions (prepared by the Parliamentary Counsel's Committee and approved by the Standing Committee of Attorneys-General on 21 March 2005) which preceded the enactment of the Limitation Act and to which reference is made in the parliamentary debates which preceded the enactment of each of the Limitation Act and the Defamation Act. Reference has been made to the principle in Australian Securities Commission v Marlborough Gold Mines [1993] HCA 15; (1993) 177 CLR 485 and Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 to the effect that where there is uniform legislation, it should be given a uniform construction.

45 With respect to the able arguments that have been advanced, I have not found them to shed light on the construction to be adopted. With respect to the argument based upon the construction of uniform national legislation, this is not in fact uniform national legislation. The submissions that have been helpfully filed show that three different verbal formulations have been adopted in the various States and Territories that have defamation legislation along the lines of the defamation legislation in this state. There is the form which is to be found in s 40 of the Limitation Act of this state which is also to be found in s 44A of the Limitation Act (NT). There is the form that was set out in the Model Defamation Provisions themselves which can be found in s 20A of the Defamation Act 2005 (TAS), s 37 of the Limitation of Actions Act 1936 (SA) and s 21B of the Limitation Act 1985 (ACT). Then there is another form which is to be found in s 56A of the Limitation Act 1969 (NSW); s 23B of the Limitation of Actions Act 1958 (VIC); and s 32A of the Limitation of Actions Act 1974 (Qld). These sections expressly provide that 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 the equivalent of s 40(2) of the Limitation Act.

46 In all of the states other than Western Australia and the Northern Territory, the legislation has been drafted in terms which expressly provide that it is only in the circumstance specified in the equivalent of s 40(2) of the Limitation Act that the court can extend the limitation period. That gives rise to arguments either way about the inference to be drawn as to the intention of the Parliament of this state. The first possibility is that because this was intended to be uniform legislation, the Western Australian legislation should be construed in line with the legislation in other states and consistently with that legislation. The alternative argument which seems to me to be equally persuasive is to the effect that as that the legislature of Western Australia has not adopted the model provisions advanced and has not legislated in the terms found in New South Wales, Victoria and Queensland, it is to be inferred that the legislature of Western Australia expressly intended some different result to ensue. No assistance on the resolution of this issue is provided by the parliamentary debates which are ambiguous on this topic. I therefore do not draw any strength from the references to uniform legislation or from the principles relating to the construction of uniform legislation in those circumstances. It seems to me that what I am required to do is to go to the natural and ordinary meaning of the legislation to be drawn from the words used in the context of the Limitation Act as a whole.

47 Again there are competing considerations within the Limitation Act as to different approaches that might be taken. For example, the plaintiff asserts that s 44 of the Limitation Act, which by virtue of the definition of 'extension application' should be taken to apply to s 40, would only make sense if s 40 provides a general discretion beyond the scope of the imperative duty imposed by s 40(2). By contrast, the defendant asserts that, firstly, the inclusion of s 40 within the definition of 'extension application' by s 3 has utility because of the provisions of s 43 and s 79 and, secondly, s 44 on its proper construction should be construed as applying only to the circumstances in which there is a discretion. Put another way, the words 'whether to extend the time' within s 44, connote that the section only applies where there is a discretion, such as in s 38, s 39 and s 41, and therefore, the defendant contends, s 44 does not on its face apply to s 40.

48 These are not easy issues to determine but it seems to me that the answer to the question lies in a consideration of the structure of div 3 of pt 3 of the Limitation Act. If one goes, for example, to s 38, s 39, s 40, s 41 and s 42, each commences by empowering a plaintiff to apply to the court for leave to commence an action, even though the limitation period has expired. Each is then followed by a specification of the powers of the court, so that in s 38(2) the power of the court is conditioned upon the satisfaction of certain conditions, after which a discretion arises. The same is true of s 39(3) and s 41(2). In each of those sections and also in s 42, there is an express provision conferring power upon the court. The structure of each of these sections is to give a right to a plaintiff to apply to a court by the introductory words and then by words that follow to identify the powers of the court if an application is made.

49 In all of the sections other than s 40 those powers are specified in discretionary terms, sometimes subject to conditions being satisfied. However, in s 40 the only power that is conferred upon the court is expressed in terms of a duty which must be performed if the plaintiff has satisfied the burden to which I have referred. There is nothing in s 40 which confers a general power upon the court. There are no words in s 40 which are apt to confer such a general power. The plaintiff's contention would require one to read into s 40 words that are not there, contrary to well established principles of statutory construction and inconsistently with the structure which has been adopted in other provisions of the Limitation Act.

50 For these reasons, I conclude that there is no general discretionary power under s 40 to extend time but rather if the plaintiff satisfies the onerous conditions specified by s 40(2), there is a duty to extend time. I should, however, go on to express the view to which I would have come had I not reached that conclusion.

51 If I had concluded that as a matter of construction there was a general discretion to extend time, I would have unhesitatingly exercised that discretion. It is clear that the State has at all times been on notice of the plaintiff's contention that the statement made on 20 September 2007 was to be construed in the context of the statements earlier made and although there were different legal formulations of that approach, the State has been on notice of that fact since a time prior to the expiry of the one year period.

52 The reasons for the line now taken in the pleading come about essentially because of legal technicalities and the view taken by Anderson AuJ in relation to the innuendo plea. It could not be suggested, and the State does not suggest, that there is any fault or delay which can be attributed to the plaintiff personally and the State properly concedes that it suffers no prejudice by reason of the delay that has occurred. So had I concluded that there was a general discretionary power to extend time, I would have had no hesitation in exercising that in the plaintiff's favour. However, for the reasons that I have given, it does not seem to me that those issues arise. Rather, it seems to me that to the extent that there is an application to amend the writ and statement of claim, I will allow it and to the extent that there is an application to strike the amendments out I will disallow it.