Whitehall v CASA

The evidence

1. The plaintiff relies upon his own affidavit, sworn on 18 June 2020.
2. The defendant relies upon the affidavit of Stephen Coyle (the solicitor for the defendant) affirmed on 17 July 2020 and two affidavits of Dr Brown, a Qantas medical officer, affirmed on 17 July and 18 August 2020.
3. Dr Brown was cross-examined by Mr Whitehall. His evidence that the first matter complained of was circulated to a number of CASA staff over the period of time during which the plaintiff's entitlement to fly was under consideration is relevant to the extent of publication both inside and outside the limitation period.

The publications and the form of the pleadings

1. The plaintiff has had a long career as a pilot and at the time he commenced these proceedings he still held an Airline Pilot Transport License ("ATPL").
2. The plaintiff was notified on June 7, 2017 by CASA that his fitness to fly was being investigated. He suspected, correctly, that this was because a complaint had been made about him by one of his neighbours, Mr Oxborough. Although he was not able to obtain copies of these complaints at the time (for reasons set out in more detail below), he believed these to be a letter dated 18 May 2017 and emails dated 12 July and 1 August 2017.
3. The defendant operates a confidential reporting system ("CRS") to enable members of the public to make anonymous complaints about aviation personnel or practices. The defendant investigates these complaints and where there is an allegation about the health or fitness of an air crew member, the report is referred to the aviation medical licensing section of the defendant, known as "AVMED".
4. Although the plaintiff finally obtained copies of the three publications sent by Mr Oxborough to the defendant, he was concerned there were more publications. It was for this reason that he filed a Summons on 17 August 2018 seeking discovery pursuant to rule 5.3(1) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") for production of 10 categories of documents purporting to be complaints or allegations about the plaintiff's behaviour or mental health. As noted above, this was filed concurrently with the statement of claim, identifying publication of Mr Oxborough's letter and emails to Qantas on or before 27 August 2017.
5. The manner in which these three publications were described in the statement of claim indicates that publication to a series of persons over a period of time (as opposed to publication on a single date) was claimed, the plaintiff's intention apparently being to obtain this more precise information from the Summons and/or discovery.
6. The three matters complained of were pleaded as follows: 1. The first series of publications: "At some point in time prior to the 27 August 2017, the defendant provided a copy of the first written report labelled "anonymous safety concerns Qantas pilot" to the applicant's employer. The report was distributed to various officers within Qantas Airways Ltd (Qantas); the report was then distributed amongst senior management pilots within Qantas Airways. The report included certain defamatory words of and concerning the plaintiff, a copy of the transcript of which is annexed and marked schedule A." 2. The second series of publications: "At some point prior to the 27 August 2017 the defendant published a second document to the applicant's employer in the form of an email written by Mr Oxborough. The email requested that the matters complained of in schedule A be "investigated as a matter of urgency". The email was distributed to various senior officers within Qantas Airways Ltd and then distributed to senior Qantas management pilots. The report included further certain words of defamatory nature concerning the plaintiff, a copy of the transcript of which is annexed and marked schedule B." 3. The third series of publications: "At some point in time prior to the 27 August 2017, Mr Oxborough wrote an email that he represented as being written by the plaintiff to Ms Margaret Dobell on the 1 August 2017. Ms Margaret Dobell is in fact a fictitious person "created" by Mr Oxborough in order to provide corroboration to Mr Oxborough's allegations. The letter was then presented to the respondent who in turn published it to the applicant's employer Qantas Airways Ltd, whereby it was distributed to various senior officers within Qantas as well as forwarded to senior management pilots. The report included certain defamatory words of and concerning the plaintiff, a copy of the transcript of which is annexed and marked schedule C."
7. This is not the correct way to plead republication of the Speight v Gosnay kind. However, the form of these pleadings has never been challenged by the defendant. The plaintiff is entitled to a degree of leeway in their interpretation, as he is a litigant in person.

The issues for determination

1. The issues for determination are: 1. Whether the plaintiff has pleaded publication on only one date (i.e. on a date before 27 August 2017 which the defendant says is 5 June 2017) or publication over a series of occasions for which the dates have not yet been ascertained and, if so, whether a part or all of the claim for the first matter complained of is time-barred. 2. Whether the plaintiff is entitled to an extension of time for publications more than one year prior to the limitation period (i.e. prior to 17 August 2017).
2. As to the explanation lying behind the application for extension, the plaintiff submits he could not commence proceedings earlier than he did because CASA sued him in the Supreme Court and sent him a letter warning of the consequences if he used the correspondence from Mr Oxborough for any purpose.

Other relevant litigation between the plaintiff, CASA and Mr Oxborough

1. The plaintiff brought separate proceedings for defamation against Mr Oxborough, by statement of claim filed on 18 May 2018, but this claim was for the earlier publications by Mr Oxborough to CASA, namely his letter of 18 May 2017 and two subsequent emails, all of which were sent on defined dates. No limitation issue arose in those proceedings.
2. The matters complained of were not given to the plaintiff, but obtained by him in circumstances which led CASA, after service of the Summons and statement of claim on 17 August 2018, to take the extraordinary step, on 23 August 2018, of seeking and obtaining an urgent injunction from the Supreme Court preventing the plaintiff from using Mr Oxborough's letter and emails at all, in both the proceedings against CASA and the proceedings against Mr Oxborough. These proceedings could not progress as a result, as is set out first by Kunc J in Civil Aviation Safety Authority v Whitehall [2018] NSWSC 1345 and in my subsequent judgment Whitehall v Oxborough [2018] NSWDC 315.
3. As noted in my judgment at [14] - [22], the effect of the application by CASA seeking to restrain the plaintiff from using the material effectively brought all defamation proceedings against both defendants to a grinding halt, pending the hearing of the claim by CASA against the plaintiff for breach of confidence, which was listed for hearing in the Supreme Court but subsequently not proceeded with.
4. CASA discontinued those proceedings in about mid-2019 and was ordered to pay the plaintiff's disbursements.

The plaintiff's attempts to obtain the matters complained of

1. The first disputed issue is what documents the plaintiff had during the period of time after he first became aware of the complaints made against him, and when he was able to obtain them.
2. In the defendant's submissions, it is acknowledged that the plaintiff was not given these documents officially at any time. The defendant acknowledges the plaintiff telephoned Dr Brown of Qantas on several occasions in June 2017 asking for copies of "the allegations" and adds that he was shown the documents on 22 November 2017. In addition, on 29 November 2017, Dr Brown emailed the plaintiff the introductory paragraphs from the first of Mr Oxborough's letters to the plaintiff.
3. The plaintiff says he was not able even to see on a computer screen a copy of the matters complained of until 22 November 2017 and, even then, all he could do was to take handwritten notes (affidavit, paragraph 146). He emailed Dr Brown, a doctor at Qantas, asking him to provide the first few paragraphs of the first matter complained of, which Dr Brown did on 29 November 2017.
4. On 2 November 2017, the plaintiff filed an application in the Administrative Appeals Tribunal (AAT) seeking merit review of the decision by the defendant to suspend him. This effectively meant that he was engaging in litigation with the entity charged with determining his ability to perform his job and which was also the publisher of the matters complained of. At this stage, he still had not seen the matters complained of. The documents he received in January 2018 referred, in an opaque fashion, only to "Further correspondence from a member of the public" (plaintiff's affidavit, paragraph 175), with the notation that the plaintiff "has not been informed" about the allegations made against him. The plaintiff's evidence is that he was never contacted by any investigating officer of the defendant as to the contents or veracity of the claims made by Mr Oxborough.
5. On Christmas Day 2017, the plaintiff's younger brother died and he was in a distraught state during the following weeks. He next contacted the defendant on 13 February 2018, when he telephoned the defendant's Information Officer, Ms Robertson. He asked if there were any further reports received and he specifically asked if any further reports had been received (plaintiff's affidavit, paragraph 207). Ms Robertson replied that she had four reports, although the first two were the same. The reports had been through the FOI redaction process in response to the plaintiff's FOI request (which had been refused) so Ms Robertson said it was necessary to access them from another source. The plaintiff asked if she would send them to her, to which Ms Robertson replied: "I guess so, they have been through the FOI process". The plaintiff gave his email address to her and she sent him the reports.
6. This is an important conversation as, in the proceedings in the Supreme Court of New South Wales before Kunc J, the defendant alleged that the plaintiff "duped" Ms Robertson into providing these documents which, prior to that day, they say he did not have. The plaintiff disputes this.
7. Following the plaintiff's conversation with Ms Robertson, he made another FOI application, on 21 February 2018, the response to which indicated the existence of further correspondence between the defendant and an unnamed third party.
8. Over this period, Mr Oxborough sent a number of emails to the plaintiff which the plaintiff says included threats (plaintiff's affidavit, paragraph 220). The plaintiff had sought an Apprehended Personal Violence Order against Mr Oxborough, which had been listed for hearing on 17 January 2018. That was the day of the plaintiff's brother's funeral, so he had not attended court and the order had accordingly lapsed. The plaintiff did not attempt to seek a fresh order.
9. In late February 2018, the plaintiff made a phone call to Mr Anastasis, a legal officer employed by the defendant, and told him that he was suing Mr Oxborough for defamation. He added: "I am probably going to sue CASA for defamation in publishing the documents to my employer without any attempt to verify the contents".
10. The plaintiff had a similar conversation with Ms Canny, the defendant's in-house lawyer. In addition, on 18 March 2018, he sent her a draft of the statement of claim for defamation which he later filed on 17 August 2017.
11. On 11 May 2018, the plaintiff received an email from Mr Anastasis: "Australian Government Civil Aviation Safety Authority LEGAL AND REGULATORY AFFAIRS DIVISION 11 May 2018 Nate Whitehall By email: natewhitehall@gmail.com UNAUTHORIED ACCESS TO CASA RECORDS By email of 18 July 2017, you requested access to document under the Freedom of Information Act, including all correspondence to or from Mr Terry Oxborough. On 17 October 2018, I decided on an internal review that the documents the subject of your request were exempt documents, and they were not release to you. On 23 February 2018, you made a similar request for access to documents, and when doing so attached a letter from Terry Oxborough to CASA dated 18 May 2014 (complaint letter) as well as other documents. On 23 February 2018, I asked you where you obtained these documents. You declined to advise how you obtained them. On 13 February 2018, a person impersonating Mr Terry Oxborough (the impersonator) contacted CASA requesting to be provided with a copy of the complaint letter. On that day, a CASA officer emailed the complaint letter and other documents to baybluhoings@gmail.com being the address that the impersonator asked that the documents be sent to. You were a director of Bayblu Holding Pty Ltd before it was deregistered in 2011. On 29 April 2018, you sent to Mr Oxborough an email using the baybluholdings@gmail.com email address. Having regard to all of the above, I consider you impersonated Mr Oxborough on 13 February 2018, for the purpose of obtaining the complaint letter and that you thereby obtained the complaint letter on the basis of a deception. CASA hereby demands: 1. You return or destroy in a permanent manner by 15 May2018, all paper and electronic copies of the documents emailed to the above email address on 13 February 2015. Which includes the complaint letter; 2. If you provided the documents to a third party, CASA also demands that you retrieve any and all copies of such documents and return or destroy them as specified above; 3. You confirm in writing by 16 May, you have done the above things. You are place on the notice that CASA will take into account your response to this letter and that extent of your compliance with the demands listed above in determining whether your conduct in this matter should be referred for consideration in CASA's coordinated enforcement processes with a specific focus on whether your conduct reflects on your fitness and propriety to be the holder of a flight crew licence."
12. The plaintiff explained his delay between commencing proceedings against Mr Oxborough in May 2018 and against CASA in August 2017 as being partly because of this letter of 11 May 2018 and partly because he considered it possible that the defendant could reconsider its position and issue a certificate so he could resume his career. He said that he had to consider his position very carefully, not least because he had received a "very serious threat" from the defendant. He understood that threat to be that, should he seek to use these documents in any legal arena, he might lose not only his C1M but even his pilot's licence as well (affidavit, paragraphs 232 - 235).

Summary of relevant dates

1. Reconciliation of the evidence of the plaintiff and defendant demonstrates the following: 1. The defendant received publications from Mr Oxborough on 29 May, 2 June and 5 June 2017 (affidavit of Mr Coyle at paragraphs 5, 7 and 8). The first matter complained of, the relevant date of publication to Qantas being 5 June 2017, was shown to the plaintiff on 7 June 2017 on Dr Brown's computer. He requested copies and, in or about 29 November 2017, Dr Brown emailed a portion of this document to the plaintiff at his request (affidavit of Dr Brown, paragraph 28). This was one of three documents attached to the plaintiff's FOI request made on 23 February 2018. The plaintiff thus had copies and was clearly aware of their defamatory contents by 23 February 2018. 2. Copies of the second email report, which is schedule B to the statement of claim, and the email attached to the second email report, which is schedule C of the statement of claim, were attached to the plaintiff's FOI request of 23 February 2018 and thus also in his possession at that time. 3. The plaintiff told Mr Anastasis in February 2018 and Ms Canny on 18 March 2018 that he intended to sue for defamation and he provided her with a draft copy of the statement of claim which was later filed on 17 August 2018. 4. The plaintiff commenced proceedings against Mr Oxborough for defamation on 17 May 2018, three months before commencing the proceedings against CASA, which were not commenced until 17 August 2018. 5. It was not until after the plaintiff commenced proceedings against CASA that the course of action foreshadowed in CASA's email of 11 May 2018 was commenced in the Supreme Court.

The parties' submissions

1. At paragraph 151 of his affidavit, the plaintiff gives the date of 22 November 2017 as being the first day he was able to commence legal action: "Accordingly, I was only capable of proving all the elements of defamation against the respondent as of the date I viewed the documents in Dr Brown's office, being 22 November 2017. I filed the action in defamation against the defendant on 17 August 2018."
2. The plaintiff has to explain, however, why he allowed the limitation period for the letter the defendant sent on 5 June 2017 to lapse, at a time when he had not only threatened to sue but provided the defendant with a draft of the statement of claim he would later file on 17 August 2017. His explanation is essentially a forensic one; he was hoping CASA would not proceed. He also says he was afraid, and that it was unreasonable for him to be expected to commence proceedings while he was under investigation by CASA.
3. The defendant submits that, from the time of the first meeting between the plaintiff and Dr Brown, the plaintiff was aware of the contents of the report provided for Qantas, because he was shown a copy and permitted to take notes of its contents. He was also aware that Mr Oxborough was the author of this document. He was aware of the extent of publication by CASA to Qantas because, as the plaintiff states in paragraphs 107 and 116 of his affidavit, he was told this by Captain Gardiner and Captain Tobiano of Qantas.
4. The defendant submits that there was no reason why the plaintiff could not have commenced proceedings in June 2017 in relation to the first matter complained of, or, at the latest, on 29 November 2017, when he was sent an extract from this publication from Dr Brown. Alternatively, the plaintiff had all three matters complained of in his possession as at 23 February 2018, when he attached them to a FOI application. He then foreshadowed to CASA in February and March 2018 that he proposed to commence defamation proceedings against them. He did in fact commence proceedings for defamation concerning this publications against Mr Oxborough on 11 May 2018. The plaintiff was thus well aware of his cause of action within the limitation period and no extension should be granted.

Was it unreasonable to have commenced while under investigation by CASA?

1. In Akbari v State of Queensland [2021] QDC 87, the plaintiff raised a similar argument, namely that pursuing defamation proceedings may have been viewed as an unlawful reprisal and could ultimately be used against him in the AHPRA investigation. Muir DCJ said: "[38] There is a distinction between the plaintiff pursuing his lawful legal entitlement to commence defamation proceedings against the defendants and making his dispute with the defendants public by going to the media and writing a book. It is understandable, as a matter of common sense, that the latter may inflame and distract those undertaking the AHPRA investigation. The view of Mr Davidson about the dangers of making any complaint against the defendants whilst the investigation was on foot (as set out in the 26 November email referred to in paragraph 13 of these Reasons) is consistent with this conclusion. But it is instructive that Mr Davidson did not refer to defamation proceedings. As a matter of common sense, it is reasonable to assume as I do, that the commencement of defamation proceedings in a court of competent jurisdiction by the plaintiff would not have been greeted with open arms by the defendants. But it is difficult to see how the commencement of such lawful proceedings under a legislative regime which imposes strict time frames could be viewed by AHPRA as an unlawful reprisal by the plaintiff. [39] Overall, I am not satisfied on the evidence as it stands that the pursuit of defamation proceedings by the plaintiff may have been viewed as an unlawful reprisal under s 261 of the Health Ombudsman Act 2013 and ultimately used against the him in the AHPRA investigation. [40] It follows that I reject the plaintiff's general submission that it was not reasonable to commence legal proceedings because of the ongoing AHPRA investigation. This finding is consistent with the observations of Chesterman JA in Noonan (expressly endorsing the observations of Kingham DCJ in JA Murphy v Lewis [2009] QDC 37) that: [29] "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." (some citations omitted).
2. The situation here is similar. Moreover, despite these fears, Mr Whitehall not only warned he was intending to sue, but sent the defendant a draft of the statement of claim. He was still under investigation when he did commence proceedings. The reason for the selection of the particular date (17 August 2017) for commencing proceedings is not explainable in terms of the reasons he puts forward.
3. Having made these findings of fact, I set out the relevant statutory provisions and their interpretation.

The relevant statutory provisions

1. Section 14 B of the Limitation Act 1969 (NSW) provides: "14B Defamation An action on a cause of action for 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."
2. Section 56A of the Limitation Act provides: "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 3 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)."
3. Section 56D of the Limitation Act provides: "56D Prior expiry of limitation period An order for the extension of a limitation period, and an application for such an order, may be made under this Division even though the limitation period has already expired."
4. The principles relevant to applications for an extension of time in defamation proceedings are set out by Hislop J in Cassar v Network Ten Pty Ltd [2012] NSWSC 680 at [16]: "It has been held in respect of s 56A (or its equivalent in other States) that: (a) the burden that must be discharged is to establish 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 date of the publication - Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537, Rayney v The State of Western Australia (No 3) [2010] WASC 83 at [41]; (b) the onus rests with the plaintiff - Rayney [41], Ahmed v Harbour Radio Pty Limited [2010] NSWSC 676, Carey v Australian Broadcasting Corporation [2010] NSWSC 709, (2010) 77 NSWLR 136 at [45]; (c) the test is objective - Noonan [20], Carey [48]; (d) it is a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances - Rayney [41]; (e) if the plaintiff proves the fact then the court is obliged to extend time. Extension in these circumstances is mandatory - Ahmed [28], Carey [45]; (f) section 56A limits the period of extension to an extension "of up to three years running from the date of publication". This has been described as involving the exercise of a discretion in the sense of involving a normative judgment - Ritson v Gay and Lesbian Community Publishing Limited [2012] NSWSC 483 at [24], [25]."
5. These provisions have been most recently considered by the Full Court of the Federal Court in Joukhador v Network Ten Pty Ltd [2021] FCAFC 37. In those proceedings, as is the case here, there was overlap between the criminal proceedings Mr Joukhador faced and the matters complained of. In the present case, the overlap is even greater, in that the matters complained of were documents dealing with Mr Oxborough's complaints, which was the matter under consideration by CASA.
6. The Full Court stated at (53 to 57): "53 The Limitation Act does not evince an intention that, at all costs, a claimant must commence a defamation action within one year of the publication. The interests of justice, usually, will not require that a claimant commence, or continue with, a defamation action that raises issues concurrent with a criminal prosecution against him or her while there is a real risk of prejudice to his or her defence of the unresolved criminal charge: cf. Zhao 255 CLR at 59-60 [39], [43]-[44]. 54 Thus, importantly, s 14B of the Limitation Act evinces the legislative intention that a defamation action must be commenced within one year of the publication of the matter complained of, in the context of the co-existence of the power conferred on the Court to extend that period for up to three years if the statutory criteria in s 56A can be satisfied. 55 It is safe to infer that Parliament was aware that defamation actions arise out of the way in which the media and others in our society, report, or misreport, the laying of criminal charges. Cases such as Lewis v Daily Telegraph Ltd [1964] AC 234, Mirror Newspaper Ltd v Harrison (1982) 149 CLR 293 and Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 are well known instances of a report that contains additional material that may go beyond a fair report of the hearing, or circumstances in which the claimant was charged, so as to impute, or be capable of imputing, not merely that there was a reasonable suspicion that he or she was guilty, but that, in fact, he or she was guilty, 56 Equally, Parliament would have been aware that, because of possible misreporting of that nature, a claimant may have to use his or her resources and energy to defend the criminal charges before being in a position to make it reasonable that he or she bring a defamation proceeding. Obviously, pursuant to s 42(1) of the Defamation Act 2005 (NSW), a conviction on the charge will be available to a publisher as conclusive evidence that the claimant committed the offence in order to support a defence of justification or contextual truth under ss 25 and 26 of that Act. The real possibility of a conviction, at the time of publication (especially one contemporaneous with the institution of a criminal proceeding), will often mean that it would not be reasonable for a claimant to begin a defamation action that raises, or is likely to raise, a concurrent issue of his or her guilt or innocence, when that issue will be concluded, in both the criminal and civil proceedings, adversely against him or her if convicted. 57 Moreover, in selecting the criteria in s 56A(2), Parliament would have been conscious that any litigation imposes strain upon the litigants, especially individuals (as Gummow, Hayne, Crennan, Kiefel and Bell JJ recognised in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 214 [100]-[101]), and that such strain is, as a matter of common sense, likely to be the greater where an individual's liberty is potentially at risk in a criminal proceeding. Likewise, Parliament would have been aware of the common law presumption of innocence for a person charged with a criminal offence, and of the compulsory processes ordinarily applicable in civil litigation, including requirements to give discovery, properly articulate one's case and give evidence, that often warrant the staying of concurrent civil litigation in which a party or witness is facing a criminal charge that may involve a real risk of prejudice to his or her defence of the charge: see eg Zhao 225 CLR at 58-60 [36]-[44] per French CJ, Hayne, Kiefel, Bell and Keane JJ; Gregg [2017] FCA 440 [15]-[21] per Rares J."
7. As the Full Court noted at [58], there is no exhaustive list of the kinds of cases that will fall within the statutory criterion that the section provides. The critical consideration is that it be not reasonable "in the circumstances" of the case. This requires the court to weigh together all of the relevant circumstances that meshed together to bring about the objective fact that the plaintiff did not sue within the one year of publication. This is a much more generous approach than that taken by State appellate courts.
8. The combined weight of each of the factors identified by the plaintiff in establishing that it was not reasonable for him to have commenced proceedings before he actually did, must therefore be taken into account. These are as follows: 1. He did not actually even see any of the matters complained of until 22 November 2017 and was then only able to take notes. This accounts for the first six months of the limitation period. It cannot be said that he did not make every possible attempt to obtain these documents during that period. 2. He was concerned as to what CASA would do if he commenced proceedings for defamation relying upon these documents. 3. As was the case for Mr Joukhador, the plaintiff was facing, if not criminal charges, nevertheless serious proceedings which would result in the loss of his career as a pilot, and there was an almost complete overlap between those proceedings and the matters complained of. Like Mr Joukhador, the plaintiff was engrossed in saving his career. 4. As was also the case for Mr Joukhador (at [67]), the plaintiff was under considerable personal stress over the whole 12-month period. First, his younger brother died on Christmas Day 2017. The plaintiff was already under great stress when this occurred by reason of the loss of his career. This was increased by the campaign of Mr Oxborough to hurt and distress the plaintiff, which included sending emails such as his email of 5 June 2017 (an exhibit to the plaintiff's affidavit), where he boasted that he "had a big bucket of brown stuff coming, and if only half sticks, it will be good for me".
9. In Joukhador v Network Ten Pty Ltd the Full Court held: "In our opinion, it was not reasonable in those circumstances for Mr Joukhador to embark on the investigation and pursuit of a possible action in defamation that his emotional state could not cope with or support. Moreover, to the extent that there was an overlap between the statements made by his friends and mother and the charges he was facing, that would make it highly likely that he would be exposed to further, significant, strain, with which he felt he could not cope, if he embarked on a defamation action while the criminal charges were unresolved. It was objectively justifiable for Mr Joukhador to act as he did, namely, to focus his efforts on dealing with the criminal charges and recovering his practising certificate, and to put to one side the investigation and pursuit of any defamation action arising out of reporting about the criminal charges until after those matters, that profoundly affected his liberty, peace of mind and the practice of his profession, had resolved: cf. O'Keefe [2016] QCA 135 at [33]-[34] per Mullins J, with whom Philip McMurdo JA and Douglas J agreed."
10. The court added at 69: "The combined effect of ss 14B and 56A of the Limitation Act does not require a person to commence a defamation action within one year of publication at all costs. It would not have been reasonable for a person in Mr Joukhador's position to bring defamation proceedings before he did so."
11. However, the principal reason for success for Mr Joukhador on appeal was that he did not know about the publication in question. He did not warn the defendant's legal representatives that he was considering defamation proceedings, or send a draft statement of claim. That is not the case here. Joukhador can be distinguished on the facts for these reasons.
12. The plaintiff has failed to demonstrate that, in the circumstances of the case, it was not reasonable to have commenced proceedings by at least February 2018, when he warned the defendant's legal representatives he intended to sue the defendant for defamation, or by March 2018, when he forwarded a draft statement of claim. His motive for delay was, I am satisfied, one of forensic advantage.
13. Mr Whitehall knew the first matter complained of had been in Dr Brown's possession prior to 7 June 2017 because the plaintiff was first contacted about the complaint on that date. This means he knew that a defamatory publication had been made about him at a time outside the twelve months prior to the filing of the statement of claim on 17 August 2018. He knew there was a 12-month limitation period. Although a litigant in person, he has a degree in law.
14. Mr Whitehall, being aware of the limitation period and allowing it to lapse, cannot satisfy even the more generous interpretation of the legislation given by the Full Court of the Federal Court in Joukhador v Network Ten Pty Ltd.
15. Accordingly, the plaintiff's application for an extension of time is refused.

Should the whole of the first matter complained of be struck out?

1. In Ogbonna v CTI Logistics Pty Ltd, the Court of Appeal of the Supreme Court of Western Australia confirmed on appeal the summary dismissal of a claim containing a pleading of Speight v Gosnay liability for publication. However, the court noted that the power to grant summary disposal is to be exercised with great care, especially in the case of a self-represented litigant as well as warning, at [49], that "the fact-sensitive nature of the inquiry, and the established principle that summary judgment should be awarded only in the clearest of cases, where one party can demonstrate that the question will certainly be resolved in their favour".
2. It was clear, from Dr Brown's helpful answers in cross-examination, that the first matter complained of percolated far and wide to fellow investigators, senior staff and persons from whom advice was sought. Each such publication may be a separate action. Each such publication may, by reason of the manner of the plaintiff's pleading, be actionable, provided that it was published within the year prior to commencement of pleadings.
3. As a matter of practical reality, the parties are unlikely to have more precise details of the extent of publication until subpoenae are issued to Qantas and other relevant third parties. This does not mean, however, that the pleading in its present form should be struck out.
4. The plaintiff's application to extend time to bring proceedings for publications prior to 17 August 2017 should be refused, but his entitlement to bring proceedings for the remaining publications should remain.

Costs and other orders

1. Costs should follow the event.
2. The parties are at liberty to agree upon a timetable for the further conduct of these proceedings.

Orders: 1. Plaintiff's application for an extension of time pursuant to ss 14B, 56A and 56D of the Limitation Act 1969 for publications prior to 17 August 2017 of the first matter complained of is refused. 2. Plaintiff to pay defendant's costs of the application. 3. Parties to bring in Short Minutes of Order for a timetable in these proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 August 2021