Time Limits in Defamation Matters

Limitation Period Defamation Actions

The national, uniform defamation laws provide that a defamation action must be commenced within one (1) year from the date of the defamatory publication.

In all States and Territories of Australia, the legislation provides that the time limit for commencing a defamation action can be extended by the Court to three (3) years from the date of publication if the Court finds that it was not ‘reasonable’ for the Plaintiff to commence within one (1) year. In Queensland, New South Wales, Victoria, South Australia and the Northern Territory the relevant legislation also provides that the Court is not to grant any further extensions of time beyond the additional three (3) years.

Schedule 2[1] of the Defamation Amendment Bill 2020 [NSW] which is due to commence imminently following proclamation, provides for the one (1) year limitation period for the commencement of defamation proceedings to be automatically extended by an additional period if a Concerns Notice is given to the proposed Defendant on a day within the period of fifty-six (56) days before the limitation period expires.

The limitation period will be extended by fifty-six (56) days less any days remaining in the limitation period. For example, if there are seven (7) days left in the limitation period at the time that the Concerns Notice (including the day the Concerns Notice was issued) was served then the limitation period will be extended by 56 minus six (6) days left in the limitation period which would be a total of fifty (50) days.

Generally, in personal injuries matters in Australia, the limitation period is three (3) years from the date the cause of action accrued, for civil matters it is six (6) years, and in some matters in the Northern Territory it is three (3) years. The reason that the limitation period in defamation matters is much shorter than in other matters is because one of the essential elements of the cause of action is damage to reputation.  In all causes of action, the Plaintiff has a common law obligation to mitigate damages.  Hence, the longer the publication has been in existence and able to circulate through the ‘grapevine effect’ the greater the damage to the Plaintiff’s reputation.  In addition to mitigating damages there is an intention on the part of the legislators to limit the amount of time for which a publisher may be exposed to liability. The Courts talk about reducing the amount of time that a Defendant may have the possibility of litigation ‘hanging over their head’ and the right of a Defendant to ‘get on with their lives’. The legislative intent behind the one (1) year limitation period includes the encouragement of early and/or speedy resolution of disputes¹ and to “encourage plaintiffs to seek to vindicate their reputations at the earliest possible opportunity”². 

After the expiration of a limitation period a matter is said to be ‘statute barred’.

Concerns Notices – 12 months

The usual first step in a defamation matter is to issue a Concerns Notice to the Defendant. While the legislative amendments have not yet commenced as at the date this article was written, New South Wales will make is compulsory for a Plaintiff to issue a Concerns Notice if a person is defamed by a publication.

The Concerns Notice, whilst not the commencement of Court proceedings, must therefore be issued to the Defendant within the one (1) year limitation period. This is detailed by Section 14 (1) of the Defamation Act 2005.

Offer to Make Amends – 28 days

Under the national, uniform defamation laws, the Defendant has twenty-eight (28) days within which to serve an Offer to Make Amends on the Plaintiff from the date of receipt of the Concerns Notice. After the expiration of the twenty-eight (28) days, a Defendant can no longer issue an Offer to Make Amends. It is not compulsory to issue an Offer to Make Amends, however, the legislation provides that if the offer is reasonable and it is made at the earliest possible time, then the aggrieved person must not maintain their defamation claim. This is detailed in Section 17 of the Defamation Act 2005.

Further Particulars Notice – 14 days

A person who has received a Concerns Notice may serve a Further Particulars Notice on the aggrieved requesting particulars of the imputations of the alleged defamatory material. The aggrieved then has fourteen (14) days within which to provide the further particulars.

If the further particulars are not provided within the fourteen (14) days, then an aggrieved is taken not to have given a Concerns Notice. This is detailed by Section14 (4) of the Defamation Act 2005.

Applying to Court to Extend the Limitation Period

The common law does allow a party to commence proceedings out of time. The Plaintiff would need to make an application to the Court for a Court order extending the limitation period. When exercising its discretion on extending limitation periods, the Court considers all of the circumstances of the case, including the following:

1. whether the applicable legislation requires the Plaintiff to show that it was ‘not reasonable’ to commence proceedings within the time limit;
2. whether the overriding principle of justice will be served between the parties;
3. whether the Defendant will be biased by the delay;
4. the reasons for the delay;
5. whether there is an adequate explanation for the delay that is reasonable in the circumstances;
6. when the events the subject of a trial took place;
7. whether a fair trial can take place between the parties, despite the delay; and
8. whether there are special or compelling circumstances why the extension of time should be granted.

Relevant Statutory Provisions

The relevant statutory provisions in Australia are as follows:

Queensland

Defamation Act 2005 (Qld)

Limitation of Actions Act 1974 (Qld)

• s10AA – limitation period in defamation actions is 12 months.
• s32A – limitation period can be extended to up to 3 years if it was not ‘reasonable’ for Plaintiff to commence proceedings within 1 year – Court cannot grant further extensions of time.

New South Wales

Defamation Act 2005 (NSW)

Limitation Act 1969 (NSW)

• s14B – limitation period in defamation actions is 1 year from the date of publication.
• s56A – limitation period can be extended to 3 years if it was not reasonable for the Plaintiff to commence proceedings – no further extensions to be granted.

ACT

Civil Law (Wrongs) Act 2002 (ACT)

Limitation Act 1985 (ACT)

• s21B(1) – limitation period in defamation actions of 1 year from date of publication.
• s21B – limitation period can be extended to 3 years from date of publication if it was not ‘reasonable’ for Plaintiff to commence within 1 year.

Victoria

Defamation Act 2005 (Vic)

Limitation of Actions Act 1958 (Vic)

• s5(1AAA) – limitation period in defamation case of 1 year from date of publication.
• s23B – limitation period of 1 year can be extended to 3 years if it was not reasonable for the Plaintiff to commence within 1 year – Court not to provide further extensions of time.

Tasmania

Defamation Act 2005 (Tas)

• s20A(1) – limitation period of 1 year from date of publication.
• s20A(2) – limitation period can be extended to 3 years if it was not ‘reasonable’ for the Plaintiff to commence proceedings within 1 year.

South Australia

Defamation Act 2005 (SA)

Limitation of Actions Act 1936 (SA)

• s37(1) – limitation period in defamation matters of 1 year from date of publication.
• s37(2) – limitation period can be extended to 3 years if it was not ‘reasonable’ for the Plaintiff to commence within 1 year – No further extensions to be granted by Court.

Western Australia

Defamation Act 2005 (WA)

Limitation Act 2005 (WA)

• s15 – defamation actions must be commenced within 1 year from the date of publication.
• see also s8 – Special Provisions For Certain Defamation Actions (where there are multiple causes of action s15 does not apply)
• s40 — Court can extend limitation period to 3 years if it was ‘not reasonable’ for the Plaintiff to have commenced proceedings within 1 year.

Northern Territory

Defamation Act 2006 (NT)

Limitation Act 1981 (NT)

• s12(2)(b) – defamation action to be commenced within 1 year of date of publication.
• s44A – Court can extend limitation period up to 3 years if it was ‘not reasonable’ for the Plaintiff to commence proceedings within 1 year – Court cannot provide further extensions.

Case Studies

Brain Injury and Awaiting Coroner’s Report

In Barrett v TCN Channel Nine Pty Ltd³, the Appellant was applying for an extension of time in New South Wales, arguing that once he had shown to the Court that it was ‘unreasonable’ to have filed within one (1) year from the date of publication, the Court must extend for the whole three (3) years. The Court held that it had an ‘unfettered discretion’ as to what extension of time to grant and that an extension of time may be for less than the whole three (3) years. In this case, the Appellant, had suffered a brain injury in a car accident which led to significant memory loss and was awaiting a coroner’s report regarding the accident. An extension of time was granted to the Appellant to commence his proceedings.

Lack of Funds to Pay Lawyers

In Carey v Australian Broadcasting Corporation⁴, Justice McCallum dismissed an application for an extension of time in a defamation matter stating at⁵:

“However, I do not think that the absence of certain access to funds is a circumstance by reason of which it is “not reasonable” to commence proceedings within the prescribed period.”

Not Aware of Publications and was Depressed and Unwell

In Joukhador v Network Ten Pty Ltd⁶, the Applicant applied for an extension of time to file defamation proceedings, argued that he was unaware of the existence of the alleged defamatory publications as he was in jail and following his release, he had to defend criminal charges and became depressed and unwell. The Court held that he was wilfully blind to the existence of the publications and that there was no medical evidence tendered in support of his argument that he was depressed and unwell and thus, dismissed his application for an extension of time. Justice Abraham of the Federal Court of Australia stated⁷:

“It has been recognised that the power to extend time will only apply in circumstances which are “relatively unusual”, “special” or “compelling”: Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50 (Noonan) at [15] per Keane JA; Barrett at [70]–[71] per McColl JA and [110] per Payne JA.”