Extensions of time
11Sections 14B and 56A of the Limitation Act 1969 provide:
"14B Defamation
An action on a cause of defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.
56A Extension of Limitation Period by Court
(1)A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.
(2)A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 14B to a period of up to three years running from the date of the publication.
(3)A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2)."
12Section 56D enables an order under s 56A to be made even though the limitation period has already expired.
13Section 56A in this form was introduced as part of a package of amendments introduced at the time of enactment of the Defamation Act 2005 (see Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [26] per Simpson J). Similar provisions are to be found in all states and territories, although there are differences (see Rayney v The State of Western Australia [No 3] [2010] WASC 83 at [65] to [66], per Martin CJ). I have been referred to a number of first instance level decisions of this Court concerning these provisions (Ahmed, Carey v Australian Broadcasting Corporation [2010] NSWSC 709; (2010) 177 NSWLR 136; Lakaev v Denny [2010] NSWSC 1480 and Barach v University of New South Wales [2011] NSWSC 1327) as well as first instance decisions of other state Supreme Courts (Rayney, Wookey v Quigley [No 2] [2010] WASC 209) and two decisions of the Queensland Court of Appeal (Noonan v McClellan [2010] QCA 50; [2010] 2 Qd R 537; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175). For purposes of this matter it is only necessary for me to note four points.
14First, the burden imposed upon a party applicant seeking an extension is a heavy one. It is not sufficient for them to prove that it was reasonable for them to delay commencing proceedings. Rather they are driven to demonstrating that it was not reasonable for them to start within the 12 month period (Ahmed at [39]). Not surprisingly this has been described as a "difficult hurdle" (Rayney at [41]) and one which can only be satisfied in "relatively unusual circumstances" (Noonan at [15], per Keane JA).
15Second, the test is an objective one requiring a consideration of the circumstances "as they appear objectively to the court" (Noonan at [20], per Keane JA). Ignorance on the part of the plaintiff as to the time limits specified cannot afford a reasonable basis for not commencing proceedings (Noonan at [22] per Keane JA). However, this does not mean that the plaintiff's motivations or thought processes are irrelevant (Carey at [46] to [48]). In Carey McCallum J approved the following as a statement of the correct approach (at [48]):
" .... the test requires attention to the plaintiff's actual reasons, as they are a vital part of the circumstances pertinent to whether it was reasonable or not to bring to the proceedings within the nominated period."
16In Carey the applicant for an extension asserted that he did not have funds available to him to obtain legal advice in relation to proceedings against the ABC. It seems that he was subject to an asset freezing order which restricted the amount he could expend to $4000 a week. McCallum J was sceptical as to whether that prevented him from obtaining advice but, in any event, considered that it was open to him to approach the Court or the "Receiver" (of the Westpoint companies) to vary the order sought (at [50] - [51]). However, McCallum J also found that the application of the test in s 56B did not differentiate between those plaintiffs who had access to legal advice and those who did not (at [54]). This highlights a tension in the application of s 56B(2). On the one hand the test involves the application of an objective test but on the other it is to be applied "in the circumstances". To what extent do the "circumstances" embrace matters subjective to the plaintiff's position? In Carey at [54] one subjective "circumstance" of a plaintiff, namely impecuniosity, was considered irrelevant.
17One further aspect of Carey should be noted. At [56] McCallum J noted a submission that it was not reasonable for Mr Carey to have commenced defamation proceedings because he had initiated a complaint via the ABC's internal complaints procedure. McCallum J rejected that contention on the basis that "there is no evidence that it was a reason that Mr Carey in fact took into account" (at [56]). On this approach a matter or circumstance cannot lead to a conclusion that it was "not reasonable" to commence proceedings unless it was known to and operative upon the party seeking an extension. While that was no doubt the correct approach to the postulated circumstance in Carey I doubt that it is always the case. In this case there was a significant impediment to the commencement of defamation proceedings, namely the restrictions on the use of documents obtained in the course of proceedings discussed in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125. It seems that for part of the period in which the plaintiff asserts it was not reasonable to commence he was not aware of this impediment. However, even if, as here, a plaintiff is unaware of that restriction its existence seems to me to be a matter that informs the application of the test posed by s 56B. If the section does not place those who do not have access "to legal advice in a separate class of being excused from the limitation period that applies to those who do" (Carey at [54]) then an objective "circumstance" preventing the commencement of proceeding applies to all members of that one class who seek an extension.
18Two examples of where the statutory test may be satisfied is where the plaintiff is unaware of the publication or the identity of the publisher (Ahmed at [52]). Walmsley AJ granted an application for an extension on the former basis in Barach. In Noonan at [17] Keane JA considered a case where the plaintiff was not able to establish the extent of the defamation or did not have the evidence necessary to establish their case during the year after the publication as examples that may fall within the provision.
19One particular category of "circumstance" that has been considered in the cases is where the potential plaintiff has pursued other forms of redress within the statutory period. In Noonan at [16], Keane JA considered that the pursuit of an alternative means of redress provided for under the Defamation Act 2005 (Qld) in a 12 month period may lead to the conclusion that it was "unreasonable to disrupt those processes and to incur needless expense by commencing proceedings". However, such a contention failed on the facts in Pingel. In Noonan the pursuit of an internal grievance procedure with the University was not considered sufficient to lead to a conclusion that it was not reasonable to commence proceedings against two employees of the University (see Noonan at [23], per Keane JA). According to Chesterman JA at [59] the mere preference for the private remedy did not make it unreasonable for him to commence legal proceedings.
20Similarly in Carey, even if Mr Carey had considered it to be a reason for not commencing, McCallum J did not consider that his engagement of the ABC's internal complaints procedure afforded any justifiable reason not to commence defamation proceedings (Carey at [57]).
21Third, once the plaintiff has met the threshold to invoke s 56A(2) it does not follow that they obtain an extension for a further two years from the date of publication. In Ahmed at [28] Simpson J stated that once it is demonstrated that it was not reasonable to commence proceedings within time then there is no discretion in the Court to extend the limitation period. Her Honour stated that an "[e]xtension, in those circumstances, is mandatory" (see also Rayney at [50]). However her Honour did not address the period of the extension. Subsection 56A(2) refers to an extension being granted to a period of "up to" three years.
22In Noonan Chesterman JA agreed that there was an obligation to extend time but stated that there was a "discretion" as to its length (at [47]):
" ... The subsection is unusual. It requires a court to extend time if it be satisfied that the prescribed pre-condition 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."
23His Honour continued at [66], in obiter:
" ... Assuming the court was satisfied of what s 32A(2) required, time had to be extended. The length of the extension was a matter for discretion. It would not have been a proper exercise of discretion to extend time beyond the period within which it was thought unreasonable to have sued. In this case that would have produced an extension of time of six months, to October 2008. Such an extension would not assist the respondent who did not commence proceedings until a further eight months had elapsed." (emphasis added)
24In Lakaev at [19] Fullerton J, referred to these passages from Noonan (and a similar statement in Pingel at [34], per Fraser JA). Her Honour described the function vested in the Court of selecting a period to extend "up to a period of three years" as involving the exercise of a discretion (at [16]).
25The language of s 56B(2) does not readily lend itself to being described as a discretion in any respect. However, it may be that the discussion in the above cases used the phrase discretionary in the sense of involving a normative judgment as to the period of extension. Chesterman JA in Noonan at [66] stated that the extension allowed could not extend beyond the period in which it was unreasonable for the plaintiff to commence proceedings. If this aspect of the function conferred by s 56B(2) was discretionary that would constitute the outer limit of the period that could be fixed. On that approach a shorter period might be selected if, say, the prospective defendant could demonstrate the occasioning of prejudice in the interim. However, if this aspect of s 56B(2) only involves a normative judgment then the period identified by Chesterman JA in Noonan is not the outer limit but the particular point to which the period of extension "must" be granted. In that event a question might arise as to whether any particular prejudice to the prospective defendant arising from the extension is one of the "circumstances" that must be considered in determining when it ceased to be "not reasonable" to commence. It is not necessary for me to attempt to resolve these matters on this application.
26Fourth, it is necessary to consider the decision in Wookey in detail as the third and fourth defendants placed particular emphasis on that decision. The plaintiff in Wookey commenced defamation proceedings on 27 January 2009 in respect of certain publications which included eight letters that had been sent to her employer, the Australian Government Solicitor ("AGS"), on or about 10 December 2008 (at [4] to [5]). On 14 January 2010 the plaintiff's solicitors obtained, via non-party discovery, copies of other communications sent to AGS by the defendant including communications between 13 January 2009 and 21 January 2009 (at [2] and [22]). On 17 March 2010 the plaintiff sought an extension of time and leave to amend their pleading by adding a cause of action in defamation arising out of those additional publications.
27Martin J refused the application for extension. In relation to the communications dated 19 and 21 January 2009, his Honour found that having obtained the material on 14 January 2010 and assessed its significance as at 15 January 2010 it was not reasonable to delay commencing fresh proceedings beyond the expiry of the 12 month period (at [51] to [56]). For the publications in respect of which time had already expired, his Honour found that they should have been obtained via an application for non-party discovery at an earlier point in the litigation (at [82] to [86]).
28Mr Hmelnitsky for the third and fourth defendants points to the outcome in this case as indicative of the high burden that is imposed on a litigant who discovers material late and seeks an extension. In essence he submits that nothing short of extreme urgency is required which may only accommodate a few days at most in taking action.
29In the context of that submission I make three observations about the decision in Wookey. First, while the case reinforces the need for expedition in the pursuit of applications to extend time it is not authority for any proposition that a plaintiff must move within a matter of days upon becoming aware of defamatory material just prior to the expiry of the limitation period. Each case will turn upon its own "circumstances". Second, an important consideration in Wookey was the fact that, at the time the further publications were or should have been discovered, the plaintiff had already commenced the defamation proceedings against the alleged defamer. The plaintiff was thus armed with the means of taking urgent action (see Wookey at [80]). Third, it is not apparent from the judgment whether there was, or needed to be, any consideration given to the obligation described in Hearne at [96] (per Hayne, Heydon and Crennan JJ), as inhibiting the plaintiff in that case from using the material obtained via non-party discovery from commencing fresh proceedings against the same defendant. As I will explain an impediment of that kind existed in this case.