The Supreme Court of New South Wales has again indicated that
plaintiffs in defamation actions are unlikely to succeed in
applications to have the limitation period extended unless there
are compelling reasons why the plaintiff did not commence a
proceeding in time.
In May this year, we reported on the New South Wales Supreme
Court's decision in Ritson v Gay & Lesbian Community
Publishing Limited & Ors  NSWSC 483 which
highlighted the need for potential plaintiffs in defamation actions
to move swiftly to commence an action once they have discovered
that they have been defamed. The decision in Cassar v Network
Ten Pty Limited  NSWSC 680 arguably goes further by
placing an onus on plaintiffs to move expeditiously even if they
have no actual knowledge that they have been defamed but suspect
that they might have been.
The limitation period for defamation actions is one year
commencing from the date of the allegedly defamatory publication.
Section 56A(2) of the Limitation Act (NSW) (which has
cognate provisions in all other jurisdictions) provides that the
"[m]ust, if satisfied that it was not reasonable in the
circumstances for the plaintiff to have commenced an action ...
within 1 year ... extend the limitation period ... to a period of
up to 3 years."
However, the test imposed by 56A(2) is "...a difficult
hurdle for a plaintiff to overcome unless there are unusual
circumstances ...": Rayney v Western Australia (No 3)
 WASC 83
In Cassar, the plaintiff was an independent candidate in the
2010 Federal Election. In the week preceding the election, he was
involved in an incident which led to assault charges being laid
against him (of which he was ultimately acquitted).
On 19 August 2010, Channel Nine broadcast on its evening news a
description of the incident in which the plaintiff was involved
which was allegedly defamatory of him. The plaintiff sued Channel
Nine on 9 August 2011.
On 20 January 2012, the plaintiff filed a summons seeking an
extension of time in which to commence proceedings against Channel
Ten in respect of an allegedly defamatory publication on its
evening news, also broadcast on 19 August 2010. The plaintiff did
not have actual knowledge of the Channel Ten broadcast and only
became aware of it on 22 November 2011 when he undertook an
internet search of his name.
During the application for an extension of time, the plaintiff
conceded various points including that:
he was aware that the charges against him had been reported in
he saw newspaper articles about the charges and realised that
other media sites had information about the charges
he was contacted by a number of journalists about the
he assumed the incident could have been on television.
Channel Ten also led evidence that one of its reporters had
contacted the plaintiff and sought his comment on the incident.
Justice Hislop endorsed the remarks by Martin CJ in
Wookey to the effect that where a person does not know the
content of a publication yet they suspect it may be defamatory of
them, "the person would ordinarily be expected to take prompt
steps to obtain access to the publication, with a view to assessing
whether the communication is defamatory or not...".
On this basis, Justice Hislop stated:
"In the circumstances of the present case, the plaintiff or
his lawyer would be expected to take prompt action to ascertain if
the defendant had published material about the incident and if such
material is defamatory."
As the plaintiff had failed to do this, his Honour found that
the plaintiff could not establish that it was not reasonable for
him to have commenced an action against Channel Ten within the one
year limitation period.
Courts have traditionally tended to accept that it is not
reasonable for a plaintiff to have commenced an action within the
one year limitation period if the plaintiff is unaware of the
publication. This decision however indicates that it is incumbent
on the plaintiff to take positive steps to investigate the
possibility that he or she has been the subject of a defamatory
publication if there is a reasonable basis for them to suspect
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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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