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:
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 [2010] NSWSC 676.
Justice Beech-Jones' decision in Ritson v Gay & Lesbian Community Publishing Limited & Ors [2012] 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.
Background
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.
Decision
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 year.
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 3½ 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.
Comment
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).
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