Section 14B of the Limitation Act (NSW) (Limitation Act) prescribes a one year limitation period for actions in defamation running from the date of publication of the defamatory material. Under section 56A of the Limitation Act, the limitation period can be extended for a period of up to three years running from the date of publication if the court is satisfied that:

"it was not reasonable in the circumstances for the plaintiff to have commenced an action... within one year from the date of publication...".

Similar provisions are contained in legislation in other states and territories.

In Lakaev v Denny, the plaintiff alleged that she had been defamed by emails to various recipients in March 2007 and then later in 2007 on two internet websites. Justice Fullerton found that the primary limitation period for the last of the matters complained of expired on 6 December 2008.

The plaintiff was unaware of the identities of the authors of the publications and, in 2009, sought and obtained preliminary discovery. Experts then assessed the material produced on preliminary discovery. Following this process, the authors' identities were revealed.

The plaintiff filed a statement of claim on 3 March 2010. She then filed a motion seeking an extension of the limitation period.

The plaintiff's primary explanation for not commencing an action within a year of publication was that she was unaware of the proper defendants' identities until 2009. The plaintiff submitted that it was necessary for her to apply for preliminary discovery before initiating proceedings and this was a time consuming procedure.

In response, the defendants emphasised that the plaintiff took no steps within the primary limitation period to ascertain the identity of the proper defendants and had not sought preliminary discovery until 12 months after the expiration of the primary limitation period. The defendants also referred to the evidence (accepted by the judge) that:

  • the plaintiff was aware during the primary limitation period that it would expire within one year of publication
  • the plaintiff deliberately took a "non-litigious attitude" to the relevant publication. In this case, the court accepted that the plaintiff had engaged in "retaliatory blogging".

In considering the application, Justice Fullerton referred to the decision of the Queensland Court of Appeal in Noonan v MacLennan [2010] QCA 50 and commented that:

"[i]t is only in relatively unusual circumstances (or special or compelling circumstances) that a court would be satisfied that it was not reasonable for a plaintiff to seek to vindicate their rights in accordance with the time frame fixed by law."

Her Honour found that the plaintiff had not discharged the burden of proving that it was not reasonable for her to have commenced an action within the one year limitation period.

Comment

Prior to its amendment in 2006, section 56A conferred a discretion on the court to extend the limitation period if it was "just and reasonable to do so". Under this test, it was not as difficult for a defamation plaintiff to obtain an extension of the limitation period.

Lakaev v Denny illustrates the considerable burden now faced by defamation plaintiffs in applications for an extension of a limitation period. Plaintiffs should be mindful of this in deciding whether to commence an action or engage in other means of seeking redress for defamation before resorting to litigation.

For defendants, while there is sense in not opposing an application that is likely to succeed, the authorities that have been delivered since section 56A was amended suggest that there are often reasonable prospects of resisting a plaintiff's application for an extension of time.