York v Morgan

District Court of NSW|2015-06-11|Before: Hunt J

Judgment

This is an application by the plaintiff pursuant to s 56A Limitation Act 1969 (NSW) to extend the limitation period of one year for the commencement of defamation proceedings under s 14B of that legislation.
The plaintiff, who at all relevant times has acted for himself, commenced proceedings in the Parramatta registry of this court by statement of claim filed on 6 May 2014 (as amended on 4 March 201), pleading a claim for defamation against the defendants as follows: "4. Defendants falsely stated in both internal and external school report that Mr York on a number of occasions exposed his penis to students in a weekly swimming program. As a result of Defendants' affirmative statements of fact, Mr York has incurred substantial loss of reputation and severe emotional distress. Mr York employment has ended with the DEC as a result of the statements and the loss of his reputation. … 5. Defendants negligently or maliciously published false, defamatory statements of fact about the Plaintiff, a school teacher. The false statements include, but not limited to: (a) Mr York engaged in conduct which could amount to misconduct; (b) in that, more than one occasion Mr York undressed in the presence of students attending a weekly swimming program; and (c) Mr York exposed his penis."
The plaintiff has at all relevant times had difficulty identifying the precise form of the publication (or publications), but is nevertheless able to set out in his pleading the imputations which he asserts are likely to arise, namely: 1. Falsely accusing Mr York of child abuse; and 2. Stating Mr York engaged in conduct which could amount to misconduct; and 3. Stating Mr York on more than one occasion undressed in the presence of students attending a weekly swimming program; and 4. Stating Mr York exposed his penis to students; and 5. Portraying Mr York as being a Paedophile.
As the dates for these publications fall three weeks outside the limitation period, the plaintiff filed a notice of motion on 2 April 2015 seeking leave to extend the limitation period to the date upon which proceedings were commenced, namely 6 May 2014.

The relevant principles

Section 14B 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."
The limitation period may be extended in accordance with s 56A: "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)."
The statutory provisions are a difficult hurdle for a plaintiff to overcome. The principles are summarised by Hislop J in Cassar v Network Ten Pty Ltd [2012] NSWSC 680 at [16] as follows: "[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 Western Australia (No 3) [2010] WASC 83 at [41]; (b) the onus rests with the plaintiff - Rayney [41], Ahmed v Harbour Radio Pty Ltd [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 Ltd [2012] NSWSC 483 at [24], [25]."
As Beazley JA noted in Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90 at [55], the test does not direct attention to whether it was reasonable not to have commenced proceedings, but instead requires the court to be satisfied that it was "not reasonable" to have commenced the action prior to expiry of the limitation period.
The harshness of the test has been remarked upon in a number of judgments, notably Rayney v State of Western Australia (No 3) [2010] WASC 83 at [41] and Wookey v Quigley (No 2) [2010] WASC 209. It is irrelevant that a plaintiff is in poor health, or lives in a remote rural community where access to legal advice is limited, or seeks alternatives to commencing proceedings to find out who has defamed him. All of those factors are present in this case. Indeed, the facts of this case are a particularly good illustration of the hardships caused to plaintiffs who essentially know only in general terms what was said, where there is doubt as to when and to whom the statement was made, and who have limited resources and little in the way of skilled legal assistance.
The problem is that the legislation requires, as Kenneth Martin J notes in Wookey v Quigley (No 2) at [47], that where a person does not know the content of a publication, and only knows of its existence in circumstances where they suspect it may be defamatory, that person "would ordinarily be expected to take prompt steps to obtain access to the publication". What Kenneth Martin J does not say is how those steps should be taken, but it is clear from decisions such as Noonan v MacLennan [2010] QCA 50 and Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 that those steps require the commencement of proceedings. In Pingel v Toowoomba Newspapers Pty Ltd the court held that even attempts to obtain an apology or retraction under the uniform legislation, in the form of an Offer of Amends, was not an excuse for failing to commence defamation proceedings within one year of publication.
The plaintiff's explanation for this three week delay (apart from his ill health and lack of legal advice) is that he thought that he had to exhaust his remedies in other courts to find out about these publications, there being proceedings between the parties in the Industrial Relations Commission of New South Wales (Stephen York and NSW Department of Education and Communities [2015] NSWIRComm 1011), as well as through employment-related administrative procedures relating to the circumstances in which he sought to response to the complaints in question. He also thought he had one year from the date he found out about the publication, and not from the date of publication. His mistaken interpretation of the law is no excuse, as Keane JA noted in Noonan v MacLennan [2010] 2 Qd R 537 at [22]: "[22] Consideration of the issue of reasonableness must commence from the position that the Act lays down strict time limits for the commencement of proceedings for damages for defamation. No doubt the legislature was moved to fix these strict limits for good reason. These limits are part of the law of the land to be observed by all persons save where s 32A (2) is engaged. And on any view of s 32A (2) of the Act, it operates by reference to what is reasonable. Mere ignorance of the strict time limits fixed by the Act cannot afford a reasonable basis for not complying with them. Generally speaking, ignorance of the law has never been thought to be a reasonable basis to relieve a person of the consequence of non-compliance with the law."
One of the few exceptions is where the plaintiff is unaware of the publication, or unable to identify the publisher or prove publication (Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [52]). Simpson J went on to say that another exception may be where the plaintiff is engaged in "non-litigious processes to vindicate his or her rights" (at [52]), which at first sight would appear to give some hope.
Unfortunately, her Honour's observations on this issue have not met with approval in other courts. The fact that a plaintiff is pursuing other avenues of redress is irrelevant: Ritson v Gay and Lesbian Community Publishing Ltd [2012] NSWSC 483 at [13]-[27]. This is reinforced by the Queensland Court of Appeal's decision in Pingel v Toowoomba Newspapers Ltd, where an application for extension was refused although the plaintiff was engaged in precisely the kind of activity that Simpson J appears to have been referring to, namely negotiating an Offer of Amends. (Applegarth J, dissenting, noted at [178] - [180] the inconsistency between refusal to extend time and the policy of the legislation to promote alternatives to litigation). Using what Simpson J called "non-litigious processes" to vindicate a plaintiff's rights is thus an insufficient basis for an extension of the limitation period.
Where a plaintiff discovers that a defamatory publication exists, but cannot prove, prior to the limitation period expiry, who said it, or what was said, or whether it is actionable, what should he or she do? A plaintiff has three options: 1. Bring an application for pre-action discovery against a wide range of persons (Snezana Angeleska (Known As Slaveska) v State of Victoria and Others (According To The Attached Schedule) [2015] VSCA 140 at [119] - [126]; Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 at [22]). This could be an expensive and time-consuming process, and the risk would be that the correct person might not be identified before the limitation period expires. 2. Throw caution to the winds and commence proceedings in the hope of discovering further publications, either by an application for leave to administer interrogatories as to publication (Kaiser v George Laurens (NSW) Pty Ltd [1982] 1 NSWLR 294) or, if there is at least one publication to go on with, to bring further applications during the conduct of the proceedings: Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611. This would be an expensive course if the wrong defendants were sued. 3. Although it may sound like a course which is contrary to natural justice, a plaintiff can commence proceedings and simply not serve the statement of claim on the defendants. In Hunter v Hanson [2014] NSWCA 263 at [72] the Court acknowledged that a plaintiff who feared to commence proceedings in case the publication was made on an occasion of absolute privilege was thereby facing the "high" test under s 56A if he failed to commence proceedings; a plaintiff in those circumstances was therefore "between Scylla and Charybdis". The court held (by majority) that the course taken by the plaintiff of commencing proceedings but withholding service for one and a half years (rather than serving them within the one-month period to effect service) was entitled to do so. However, this requires the court to continue to extend the time for service of the statement of claim, which not all courts may be prepared to do. 4. Wait until one or more of the defendants publish further material within time (preferably on the Internet). This would require a grant of leave under s 23 if previous proceedings had been commenced, but would not require leave if proceedings had not been commenced (Leech v Green & Gold Energy Pty Ltd [2011] NSWSC 999 at [8]). The defendant cannot be heard to complain about failure to bring prior proceedings: Moran v Schwartz (No 3) [2015] WASC 215 at [52] - [74].
The strict test in s 56A has in fact been substantially undermined by modern technology, due to the failure of the legislation to implement the single publication rule. As a result, limitation arguments (particularly against media, website or social media publishers) are now much less common, because of the ease and continuous nature of electronic publication. There is a fresh publication with every download, which means there is no single date of publication of the kind traditionally the case for print media. If any of these publications had been available on the Internet, this application would not have been necessary. For example, in Leech v Green & Gold Energy Pty Ltd, a plaintiff defamed on the Internet since 2007 (well outside even the 3-year limitation period) simply restricted the claim for damages to the year prior to commencing proceedings; no reduction of those damages for the delay in commencing proceedings was considered necessary by the trial judge, nor did the trial judge comment on the plaintiff's dilatoriness in commencing proceedings.
However, the plaintiff in these proceedings took none of these steps, and the test under s 56A ("not reasonable" to have commenced proceedings) must therefore be applied.

"Not reasonable" to have commenced proceedings

It is not in dispute that proceedings are not maintainable without an order extending time. The plaintiff must therefore satisfy the court that it was not reasonable for him to have commenced proceedings by 12 April 2014.
The statement of claim filed in these proceedings did in fact identify the statements made by Mr Morgan to the Performance and Conduct Unit of the Department of Education and Training in paragraphs 19, 23 and 25. This included Mr Morgan's conduct, in or about April 2013, in altering the words of the original complaint from "one occasion" to "a number of occasions" and adding in the allegations of misconduct which lay at the heart of this unmeritoriously altered complaint, namely that the plaintiff exposed his penis to students. This had never formed a part of the original complaint, which had only been of the student seeing the plaintiff undressing in the inadequate sports changing room cubicle provided to the plaintiff for that purpose, a complaint that had been resolved in favour of the plaintiff.
I am satisfied that the plaintiff was sufficiently aware of the publications in question prior to the expiry of the limitation period, notwithstanding the fact that he only recently obtained the actual publication upon which he bases this claim, this being information he obtained on subpoena (which is in itself another problem: Miller v R L Polk & Co (Australia) Pty Ltd, Supreme Court of New South Wales, Hunt J, 4 July 1985). It is therefore not reasonable for the plaintiff not to have commenced proceedings until 6 May 2014, taking into account that he could have done so a matter of weeks earlier and still have been within the limitation period.
The plaintiff complains that the defendants were less than frank in providing him with the material he sought. Nevertheless, his submission that this amounts to fraud is not made out, as there was no concealment of the identity of the person making the claim (cf Piscioneri v Reardon [2015] ACTSC 61) and, additionally, the likelihood of vicarious liability of the fifth defendant for the statements of its servants or agents (whoever they may have been) was already known to the plaintiff.
The plaintiff submits that the court should exercise its discretion in his favour to extend time. However, s 56A does not afford any such discretion. This means I cannot take into account the fact that the plaintiff lives in a remote rural part of New South Wales, many hours' travel from the office of a solicitor, or his health problems, or the fact that he thought the 12-month period ran from the date of his first learning of these publications (namely a letter handed to him on 15 May 2013) when in fact the period runs from the date of publication of the matters complained of. Nor can I take into account the unfairness arising from the raising of an allegation already known, from prior investigation, to be groundless, the circumstances of the alteration of that complaint, and the amount of litigation and personal upheaval that this has caused to him.
Accordingly, an extension of time cannot be granted, and both the notice of motion and the proceedings should be dismissed.

Costs

The plaintiff filed the statement of claim on 6 May 2014 in the Parramatta Registry. The proceedings were listed on two occasions (26 June and 13 November 2014) before the parties were able to have the matter transferred to the Defamation List in Sydney at the commencement of 2015, a delay of seven months. This delay is no fault of the parties.
The defendants have taken a responsible and constructive approach to the conduct of this litigation, as is appropriate given the State of New South Wales' position as a model litigant. I am indebted to Ms Chrysanthou for her careful and helpful submissions. While costs should follow the event, the exceptional facts of this case, the plaintiff's ongoing health problems and the circumstances in which he has struggled to respond to a groundless complaint of great seriousness, all warrant a departure from the usual rule. Accordingly, there should be no order as to costs.

Orders 1. Plaintiff's application to extend time pursuant to ss 14B and 56A Limitation Act 1969 (NSW) is dismissed. 2. Statement of claim struck out and dismissed. 3. No order as to costs.

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: 26 June 2015

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