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
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
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
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
In considering the application, Justice Fullerton referred to
the decision of the Queensland Court of Appeal in Noonan v
MacLennan  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
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.
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.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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