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Australia – Clarification Of Principles Regarding Extending Time To Commence Proceedings In Defamation.

29 October, 2012

 

Legal News & Analysis – Asia Pacific – Australia – Dispute Resolution

 

Carey v Australian Broadcasting Corporation [2012] NSWCA 176 and Cassar v Network Ten Pty Limited [2012] NSWSC 680

 

In brief

 

  • Two recent cases in which plaintiffs sought extensions of time beyond the one year limitation period to commence proceedings in defamation suggest that the test in section 56A of the Limitation Act 1969 (NSW) is a difficult hurdle to overcome, absent unusual circumstances.

 

The New South Wales Court of Appeal and Supreme Court have both recently given consideration to the principles regarding extending time for commencing proceedings in defamation in Carey v Australian Broadcasting Corporation [2012] NSWCA 176 (Carey) and Cassar v Network Ten Pty Limited [2012] NSWSC 680 (Cassar).

 

Section 56A Limitation Act 1969

 

Section 14B of the Limitations Act 1969 (NSW) (the Act) provides that an action must be brought within one year from the publication of defamatory material. However, section 56A permits that limit to be extended by up to three years post-publication provided the court is satisfied it was not reasonable in the circumstances for the plaintiff to have commenced in time.

 

In Cassar, Justice Hislop sets out a helpful six point list explaining how section 56A applications are decided. In summary:

 

  • a) The necessary burden is to establish that it was not reasonable in the circumstances for the plaintiff to have commenced an action within one year from the publication date of the matter complained of.
  • b) The onus rests with the plaintiff.
  • c) The test is objective (although in Carey, the Appeal Court held that the test is not wholly objective as "not reasonable in the circumstances" invites inquiry into the plaintiff's reasons for not commencing an action. The test is described as objective because it cannot be met by a plaintiff merely proving their subjective belief that it was not reasonable to commence proceedings in time).
  • d) It is a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances.
  • e) If the plaintiff meets the onus then the court must extend time.
  • f) While granting an extension is, therefore, not discretionary, the fact that section 56A limits the allowable period of extension to up to three years post-publication has been described as involving the exercise of a discretion in the sense of involving a normative judgment (ie, an extension cannot be allowed beyond the period in which it was unreasonable for the plaintiff to commence proceedings).

 

Carey v Australian Broadcasting Corporation

 

Carey concerned a Four Corners broadcast on 8 May 2006 and publication of the broadcast's transcript online from 8 May 2006 until mid-2009. Mr Carey filed a statement of claim in the Supreme Court of New South Wales on 1 May 2009, submitting his filing had been delayed because he had been bound by orders or undertakings, to confine his personal expenditure to $4,000 per week and had engaged the ABC's complaint's handling procedures (which was not pressed on appeal). Beazley JA held that even though Carey's Receiver had declined previous requests to fund litigation, there was a real possibility he could access sufficient funds to bring proceedings and declined his application.

 

Beazley JA (with whose reasoning both Sackville JA and McColl JA agreed) noted that the question involves an evaluative process depending on the facts. Since her Honour was not satisfied Carey lacked access to funds, he failed to satisfy the onus of proof and his appeal failed. McColl JA added that since Carey had filed a WA Supreme Court writ pertaining to the same publications in time, it was difficult for him to assert he could not have followed suit in NSW.

 

Cassar v Network Ten Pty Limited

 

Cassar concerned a news item broadcast on Network Ten on 19 August 2010 reporting that Cassar had been charged with assault (he was subsequently acquitted). The report was newsworthy because at the time Cassar was a candidate for the Federal seat of Robertson. On 20 January 2012, Cassar filed his first summons seeking an extension of time to file. Cassar asserted he was googling himself on 22 November 2011 when he first became aware of Ten's broadcast, although he was aware that the charge had been reported in the media and assumed it had been on television. Network Ten filed an affidavit asserting that a reporter had spoken to Cassar and his solicitor on 18 August 2010 seeking comment and had clearly stated that he was calling from Ten News in Sydney. His Honour held that in the circumstances, Cassar or his lawyer would be expected to take prompt action to ascertain whether Ten had published defamatory material about Cassar and having failed to do so, Cassar failed to meet his burden and his application was refused.

 

 

 

For further information, please contact:

 

Robert Todd, Partner, Ashurst

robert.todd@ashurst.com

 

Susan Goodman, Ashurst

susan.goodman@ashurst.com

 

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