Cassar v Network Ten Pty Limited (2012) NSWSC 680
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 [2012] 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 [2012] 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 Court:
"[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) [2010] 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 the media
- 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 incident
- 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.
Conclusion
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 so.
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.
