Time limits in defamation: the one year rule and how it can be extended

Defamation has one of the shortest limitation periods in Australian civil law. A claim must be commenced within one year of publication, compared with six years for most other torts.¹ The short period reflects a deliberate policy that reputational disputes should be resolved quickly, and the courts have repeatedly declined to treat it as a soft deadline. Since the 2021 reforms the period interacts with the mandatory concerns notice process, and the test for extending it has been relaxed in most jurisdictions. This article explains how the period is calculated, how it can be extended automatically and by court order, and what the decided cases say about the reasons for delay that will and will not be accepted.

The one year rule

In New South Wales, s 14B of the Limitation Act 1969 provides that an action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of one year running from the date of the publication of the matter complained of.² Queensland’s provision, s 10AA of the Limitation of Actions Act 1974, is in the same terms.³ Each other state and territory has an equivalent, set out in the table below.

The period runs from publication, not from the date the complainant learned of the publication or suffered harm. For matter in electronic form, the statutes define the date of publication as the day on which the matter was first uploaded for access or sent electronically to a recipient.² An article posted online on 1 March 2026 therefore has a limitation date of 1 March 2027, whether or not anyone read it that day and even if the complainant did not discover it until much later. Late discovery is relevant to an application to extend time, discussed below, but does not stop time running.

The single publication rule

At common law, every communication of defamatory matter to a new reader is a separate publication and gives rise to a separate cause of action. The High Court affirmed that rule in Dow Jones & Company Inc v Gutnick, and held that online material is published where and when it is downloaded in comprehensible form.⁴ Applied to limitation periods, the rule meant that an article left online was republished every time someone opened it, so that a fresh one year period began with every download and the limitation period never really expired.

The 2021 reforms changed that for limitation purposes. Section 14C of the NSW Act, and its equivalents elsewhere, provide that where a person publishes matter to the public and the same publisher or an associate later publishes substantially the same matter, the cause of action for the later publication is treated as having accrued on the date of the first publication for the purpose of calculating both the one year period and the three year outer limit for extensions.⁵ An “associate” means an employee or contractor of the publisher or an associated entity within the meaning of the Corporations Act.⁵

Three qualifications matter in practice. First, the rule applies only to the first publisher and its associates. A third party who shares, reposts or republishes the material is a new publisher and time runs afresh against that person. Second, the rule does not apply where the manner of the later publication is materially different from the first, having regard to matters such as the prominence given to it and the extent of publication.⁵ An article that was buried on a website and is later promoted on the front page or pushed to social media followers may be a new publication for limitation purposes. Third, the rule does not limit the court’s power to extend time.⁵ Western Australia, which has not adopted the 2021 reforms, has no single publication rule, so the common law position described in Gutnick continues to apply there.

Automatic extension when a concerns notice is given

Since July 2021 a complainant cannot commence proceedings without first giving a concerns notice and waiting for the applicable period, ordinarily 28 days, to elapse. That requirement would be unworkable if the limitation period expired during the waiting period, so the limitation statutes now contain an automatic extension.

Where a concerns notice is given within the 56 days before the limitation period expires, the period is extended by 56 days less the number of days remaining after the notice day. The statutory example is a notice given seven days before the period expires. That leaves six days remaining after the notice day, so the period is extended by 50 days (56 minus six).² The effect is that a complainant who gives a notice at any time in the final 56 days always has 56 days from the notice in which to commence proceedings, which accommodates the 28 day response period and, in most cases, the later period that applies where the publisher asks for further particulars.

The extension depends on a valid concerns notice. A notice that does not satisfy the statutory content requirements is not a concerns notice and will not trigger it. Complainants approaching the end of the year should treat the notice as time critical and should not assume that a defective notice can be corrected after the period has run.

Extension by court order

Each jurisdiction allows the court to extend the period to a maximum of three years from publication, but the test for doing so has changed. Before 2021 the court was required to extend time if, and only if, satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within one year. Since 2021, in every jurisdiction other than Western Australia, the court may extend time if the plaintiff satisfies it that it is just and reasonable to allow an action to proceed, having regard to all the circumstances and in particular to the length of and reasons for the delay, the date on which any newly discovered facts became known and how promptly the plaintiff then acted, and the extent to which the delay has made relevant evidence unavailable or less cogent.⁶ The application may be made, and the order granted, after the period has expired.⁷

The former test and why it still matters

The former test was unusually strict. In Noonan v MacLennan the Queensland Court of Appeal held that the test was objective, that the plaintiff bore the onus, and that only in relatively unusual circumstances would a court be satisfied that it was not reasonable to vindicate one’s rights in accordance with the law.⁸ Keane JA observed that mere ignorance of the time limit could not afford a reasonable basis for not complying with it, and Chesterman JA held that a plaintiff does not act reasonably in delaying proceedings while some investigative or disciplinary process concerning the same subject matter is undertaken.⁹ The New South Wales Court of Appeal adopted the same construction in Carey v Australian Broadcasting Corporation, confirming that the statute did not ask whether it was reasonable not to have sued, but whether it was not reasonable to have sued, and observing that a plaintiff unaware of the publication would probably satisfy the test whereas a plaintiff asserting lack of funds faced a more contestable argument.¹⁰

Those authorities remain relevant for three reasons. The former test continues to apply in Western Australia, where s 40 of the Limitation Act 2005 (WA) still requires the court to extend time if satisfied that it was not reasonable in the circumstances to have commenced within one year.¹¹ It applies to publications made before the 2021 amendments commenced in each jurisdiction. The reasoning in those cases about what counts as a good reason for delay also informs the new test, since the “length of, and the reasons for, the plaintiff’s delay” is the first factor the court must consider.

The current test

The new test confers a discretion rather than imposing a duty, and it asks a broader question. In Lehrmann v Network Ten Pty Ltd (Limitation Extension), Lee J described the discretion to extend as broad but not at large, confined by the duty to act judicially, by the scope and purposes of the Limitation Act and by the legislative policy encouraging prompt resolution of defamation disputes.¹² The parties in that case agreed that the application should be decided under the former test. The applicant had deferred suing, on legal advice, while facing a criminal prosecution concerning the same allegations. The court held it would not have been reasonable to act contrary to that advice while his resources were directed to the criminal allegations, that he had acted promptly once the prosecution was discontinued, and granted the extension, adding that it would also have been satisfied that an extension was just and reasonable under the current wording.¹³

The current test has since been applied directly. In Dadon v Fairfax Media Publications Pty Ltd, McEvoy J held that the amended s 56A does not require the applicant to show that it was not reasonable to have sued in time; the question is whether, having regard to all the circumstances and in particular the matters listed in the section, it is just and reasonable to allow the action to proceed. The applicant had prioritised the defence of regulatory proceedings over the defamation claim, and the court accepted that this was not unreasonable, that the delay of about ten months beyond the year was explained, and that no actual prejudice to the evidence had been identified.¹⁹

What the cases suggest is that an extension is likely where the plaintiff did not know of the publication, where the plaintiff was reasonably engaged in the statutory pre action process, where legal advice or parallel criminal proceedings made it unreasonable to sue, or where facts essential to the claim emerged only after the year expired and the plaintiff then moved quickly. An extension is unlikely where the plaintiff simply did not know the law, chose another process in preference to litigation, or gave the matter low priority. In every case the plaintiff must explain the delay with evidence. Publishers opposing an extension should focus on the reasons for delay and on any prejudice to the evidence, since the statute directs attention to those matters.

Other time limits in the process

The limitation period is not the only clock. A publisher who receives a concerns notice has 28 days from the notice to make an offer to make amends. If the publisher requests further particulars of the notice and the complainant provides them more than 14 days after the notice was given, the publisher instead has 14 days from receiving the particulars; the Act fixes no deadline for the request itself, but the complainant must answer it within 14 days or any longer period agreed. An offer to make amends must remain open for at least 28 days. A complainant who refuses an offer and sues faces the s 18 defence if the offer was reasonable. The limitation extension provisions are designed so that these steps can all occur within time, but they leave little margin. A complainant who first seeks advice eleven months after publication has few options other than an immediate concerns notice and, potentially, an application to extend.

Other causes of action that may arise from the same publication, such as injurious falsehood or misleading or deceptive conduct, are not subject to the one year rule and generally attract the six year period that applies to torts and statutory claims.¹ Whether those claims are available is a separate question, but their longer limitation period is sometimes the reason they are pleaded.

Jurisdiction table

The Northern Territory provisions reflect the reforms that commenced there on 11 August 2025. Transitional provisions in each jurisdiction determine which test applies to publications made before the amendments commenced; those provisions are not uniform and should be checked for any publication that predates the reforms.

Getting advice

Limitation rules in defamation are strict, and the single publication rule means that the apparent continued availability of material online does not keep a claim alive. Anyone contemplating a claim should identify the first publication date immediately. Anyone defending a claim should check whether the proceedings were commenced in time and whether any concerns notice was valid, since a limitation defence is a complete answer.