The issue on this application
11 The issue on this application is a narrow one. The respondents do not dispute that that it was not reasonable in the circumstances for the applicant to have commenced a proceeding in relation to the email within one year of publication. This Court is therefore required by the terms of s 23B(2) to extend the limitation period. The maximum period to which the limitation period may be extended is to 7 June 2020, being three years from the date of publication. The practical question is whether, in the exercise of its discretion, the Court should extend the limitation period until the date this proceeding was commenced on 24 April 2020.
12 The concession by the respondents that it was not reasonable for the applicant to have commenced a proceeding in relation to the email within one year of publication was properly made. The concession reflects the condition necessary to engage s 23B. For the purposes of considering the length of time by which the limitation period should be extended I would go further and hold that it was not reasonable for the applicant to have commenced a proceeding at any time before the Supreme Court of Victoria ruled on 8 November 2019 that upon the email being received into evidence the applicant was not bound by any obligations which limited the use to which the email could be put. The respondents did not contest this latter proposition either.
13 The affidavit evidence relied on by the applicant plots his activities between November 2019 and the commencement of this proceeding by annexing a selection of contemporaneous documents. In overall terms, those activities constituted various steps taken by the applicant to prosecute his other proceedings in the Supreme Court of Victoria, including an appeal to the Court of Appeal, and in the Fair Work Commission. During this period, the applicant also moved with his family to live in France, where he now resides. The applicant sought to adduce evidence of extracts of without prejudice communications passing between him and the lawyers acting for the State. I ruled this evidence to be inadmissible under s 131(1) of the Evidence Act 1995 (Cth). While there is authority that without prejudice communications are admissible at common law to explain delay in commencing a proceeding, there is no such exception in terms under s 131 of the Evidence Act: see, Muller v Linsley & Mortimer [1996] PNLR 74 at 79-80 (Hoffmann LJ), cited in Unilever Plc v The Procter & Gamble Co [2000] 1 WLR 2436 at 2442-2443.
14 Upon examining what evidence remains, there are references in the remnants of the correspondence to a "global settlement". The evidence does not support any finding that the applicant sought to negotiate with the respondents a compromise of any defamation claim relating to the email until the applicant sent a concerns notice to the first respondent on 17 April 2020, and there is no evidence of any demand on the first respondent before this time. No concerns notice was sent to the second respondent, the State of Victoria. This would appear to be of little moment, as the liability of the State of Victoria is vicarious: Crown Proceedings Act 1958 (Vic), s 23(1)(b). The solicitors for the first respondent, who also acted for the State in the Supreme Court proceedings, responded to the concerns notice on 24 April 2020. They stated that the applicant's claim had no basis, and amongst other things claimed that the limitation period expired on 9 June 2018. They also stated that the State, the State Revenue Office and the first respondent would not respond to any further correspondence from the applicant on the issue. Later on 24 April 2020, the applicant commenced this proceeding.
15 In summary, the evidence is that by his letter to the solicitors for the State dated 21 October 2021 the applicant referred to a possible claim in defamation arising from the publication of the email. That possibility was referred to again by the applicant in submissions that he made to the Associate Judge in the Supreme Court of Victoria at the hearing on 8 November 2019. However, there is no evidence of any overt acts of the applicant in furtherance of the claim until he sent the concerns notice to the first respondent on 17 April 2020.
16 The respondents relied on authority that pointed to the legislative policy that sets a short limitation period for defamation claims, and which demands that parties and their advisers act timeously in respect of the narrow limitation window that is allowed: Wookey v Quigley (No 2) [2010] WASC 209 at [82] (Kenneth Martin J). While the observations in Wookey at [82] were made in the context of assessing whether it was "not reasonable in the circumstances" for a claimant to have commenced a proceeding within one year of publication, there are other statements made in the context of the discretionary decision as to the period of the extension to which I referred earlier.
17 Once it is accepted that the limitation period here must be extended, other considerations come into play, because the Court has a general discretion as to the length of the extension. To start with, viewing the whole of the period from 8 November 2019 to 24 April 2020, I do not consider that the applicant is required to account for every month, week, or day since 8 November 2019 which was not spent prosecuting his defamation claim: see in an allied context, Noonan at [49] (Chesterman JA) and Lehrmann at [25] (Lee J). Such an examination would distort the relevant discretionary question. It is appropriate to consider whether it would have been reasonable for the applicant to have some time to consider his position before incurring the cost and expense, and taking the risk, of commencing a proceeding. This is one of the purposes of providing for a limitation period, as Lee J pointed out in Lehrmann at [22]. By parity of reasoning, in a case where a claimant was unable to commence a proceeding within one year because he or she was unaware of the publication, any extension of the limitation period beyond the date of discovery of the publication might serve similar purposes. These purposes might include, as Lee J pointed out in Lehrmann at [169], the taking of steps by an applicant in this Court who is obliged under s 6 of the Civil Dispute Resolution Act 2011 (Cth) to identify in a statement the genuine steps he or she had taken to resolve the issues prior to the commencement of proceedings. In this proceeding, the applicant in his genuine steps statement relied on his concerns notice of 17 April 2020.
18 The respondents did not claim that they would suffer any specific prejudice if the limitation period was extended, other than the loss of a limitations defence. It was not submitted by the respondents that an extension of time would be futile on the ground that the applicant's claim was untenable, and otherwise the respective merits of the applicant's claim and the respondents' defences were not pressed as being relevant to the discretionary element of s 23B. The main submission advanced on behalf of the respondents was that the applicant had not accounted for the period of delay between 8 November 2019 and 17 April 2020 when he sent the concerns notice to the first respondent. The respondents relied on the absence of any explanation by the applicant to support their submission that it would not be just to extend the limitation period for a period of about five-and-a-half months after the applicant knew that he was not inhibited from bringing a claim for defamation based on the email. This was against the background that the evidence showed that the applicant had contemplated a defamation claim from at least 21 October 2019 when he raised it in correspondence. It was submitted that it would not be right to take away a substantive defence available to an individual respondent in the absence of any explanation of the relevant delay. To support these submissions, the respondents relied on the reasoning at first instance in Barrett v TCN Channel Nine Pty Ltd [2016] NSWSC 1663 at [61], which was upheld on appeal. There, the absence of explanation of a five month delay was determinative. On appeal in Barrett, McColl JA at [87], in referring to the object of the discretion, applied the language of McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541 at 554, that -
"[t]he object of the discretion [in s 56A(2)] … 'is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case' ... [including] look[ing] at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period"
19 This passage was cited with approval by Fraser JA (McMurdo JA and Jackson J agreeing) in King v Comiskey Management Services Pty Ltd [2020] QCA 229 at [14]. Fraser JA went on to state -
Factors that may be taken into account as support for an extension of sufficient length to allow the prosecution of a claim include the necessary finding that it was not reasonable for the applicant to have commenced an action within the limitation period of one year and any other circumstance indicating that the applicant may suffer an injustice if the necessary extension is not granted. Factors that may be taken into account in opposition to an extension of the necessary length include the public interest in the prompt determination of defamation actions and that, the limitation period having expired, any extension of that period will impose a new legal liability on the respondent to the application. It is for the judge considering the appropriate length of an extension of time to decide upon the weight to be given to the relevant factors in the particular circumstances of the case as revealed by the evidence.
(Citations omitted.)
20 In response, the applicant submitted that he had not adduced any evidence of the reasons for the delay from 8 November 2019 because he understood that the test under s 23B of the Limitation of Actions Act was objective. This involves a misunderstanding of the authorities. The determination of the first stage, namely whether in the circumstances it was not reasonable to commence a proceeding within one year of publication is objective. The determination is objective in the sense that, in relation to the first stage, s 23B poses a test requiring evaluation of the circumstances as they appear objectively to the court, and not the circumstances which the plaintiff believed, however unreasonably, to exist: Barrett at [70] (McColl JA), citing Noonan at [20] (Keane JA), and [65] (Chesterman JA). Attention is required to the claimant's actual reasons because they are part of the circumstances pertinent to whether it was not reasonable to commence a proceeding within one year of the publication: Carey v Australian Broadcasting Corporation [2010] NSWSC 709; 77 NSWLR 136 at [48] (McCallum J), followed in Paule v McKay (No 2) [2022] ACTSC 190; 18 ACTLR 135 at [22] (McWilliam AsJ), which was itself followed in Landrey v Nine Network Australia Pty Ltd [2023] FCA 27 at [8] (Lee J), and in turn in Lehrmann at [11] (Lee J).
21 In a case such as this, a claimant's explanation for delay is relevant to the discretionary question of what further period of limitation should be allowed. That is because, as I have explained, the policy of the legislation is that claimants should move quickly. On the state of the evidence, I am not able to draw any conclusions about the reasons for the applicant's delay from 8 November 2019. I am left to speculate. In circumstances where the applicant had alluded to a defamation claim in correspondence on 21 October 2019, the situation may be no more than that the applicant left the service of the concerns notice on the first respondent and the commencement of the proceeding to a time of his choosing. Such a conclusion would be supported by the evidence of other activities involving other court process in which the applicant engaged. I do take account of the fact that a refusal of this application has consequences for the applicant. But I have to balance the applicant's interests against those of the respondents and examine the facts and circumstances of this application. In circumstances where a favourable exercise of discretion in the applicant's favour would deprive the respondents of a defence, I am not persuaded to exercise my discretion favourably to the applicant in the absence of cogent evidence directed to his explanation for the delay that occurred. It may be accepted that if the applicant had moved quickly after 9 November 2019 and applied for an extension of the limitation period, the Court would have been required to extend time for a period. But the applicant did not do that, and as with Barrett, the absence of sufficient evidence about the reasons for the applicant's delay is an unsatisfactory basis on which to extend the limitation period until 24 April 2020.