Under section 14B of the Limitation Act (Act), the
limitation period for defamation actions in New South Wales (NSW)
is one year from the date of publication. However, under section
56A(2) of the Act the Court:
"[m]ust, if satisfied that it was not reasonable in the
circumstances for the plaintiff to have commenced an action ...
within 1 year... extend the limitation period... to a period of up
to 3 years."
If it was not reasonable for the plaintiff to commence a
defamation action within this time, an extension is mandatory:
Ahmed v Harbour Radio Pty Ltd  NSWSC 676.
Justice Beech-Jones' decision in Ritson v Gay &
Lesbian Community Publishing Limited & Ors  NSWSC
483 clarifies that, even if the plaintiff meets the threshold in
section 56A(2), it does not follow that he or she automatically
obtains an extension for a further two years.
The plaintiff was a former policeman who was involved in a
proceeding in the NSW Administrative Decisions Tribunal (ADT)
against the Commissioner of Police. During the course of the ADT
proceeding, the plaintiff issued a summons to the Commissioner for
production of documents. The plaintiff obtained access to the
documents produced by the Commissioner on 24 March 2010 and, on
inspection of the documents, learned of a broadcast by a community
radio station and an e-mail sent by the station's volunteer
announcer, both of which allegedly defamed him.
The broadcast was made and the e-mail sent on 17 April 2009;
accordingly, the plaintiff only learned of their existence about
three weeks before the expiry of the limitation period. At this
time, however, the plaintiff was subject to the implied undertaking
not to use the documents for any purpose extraneous to the ADT
proceeding, including to commence a defamation action against the
station and the announcer.
The plaintiff made an application in late August 2011 (which was
opposed) to use the documents to commence a defamation action. The
ADT granted leave to use the documents on 21 November 2011. The
plaintiff filed a statement of claim against parties including the
station and the announcer on 30 December 2011.
The plaintiff then sought leave to have the limitation period
extended up to 30 December 2011.
The parties agreed that it would not have been reasonable for
the plaintiff to have commenced a defamation action prior to his
becoming aware of the publications.
Justice Beech-Jones also held that it would not have been
reasonable for the plaintiff to have commenced a defamation action
within the one year period having regard to the steps that needed
to be taken for him to be released from the implied undertaking.
Accordingly, the court was bound, because of the mandatory nature
of section 56A(2), to extend the limitation period beyond one
His Honour then considered whether the court was bound to extend
the limitation period beyond the period in which it was not
reasonable to commence an action. His Honour considered authorities
which referred (in obiter) to a "discretion" as to the
length of the extension to be granted.
Justice Beech-Jones commented that the language of section
52A(2) does not readily lend itself to giving rise to a
"discretion". However, his Honour thought that the
authorities disclosed that it is appropriate to apply a
"normative judgment as to the period of extension" and
that the limitation period should not be extended beyond the point
at which it ceased to be not reasonable for the plaintiff to have
commenced an action.
His Honour thought that a period of 3˝ months would have
been more than sufficient for the plaintiff to have applied to be
released from the implied undertaking and then to have commenced a
defamation action. His Honour therefore declined to extend the
limitation period up to 30 December 2011 and struck out the
defamation action against the station and the broadcaster.
When in 2005, the limitation period for defamation was reduced
to one year with scope for an extension, early authorities
suggested that the court could not take into account the length of
the plaintiff's delay in commencing an action after the
limitation period expired.
This decision now confirms the position that had started to
emerge, that a potential plaintiff in a defamation action is
required to move with reasonable dispatch to commence an action,
even if he or she meets the threshold in section 52A(2).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Middletons has been awarded a 2012 EOWA Employer of Choice for
Women citation acknowledging our commitment to workplace
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.