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  •   Notable Unreported Decision

Findley v Morand

 

[2014] QSC 297

 

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial

PROCEEDING:

Application

DELIVERED ON:

9 December 2014

DELIVERED AT:

Brisbane 

HEARING DATE:

16 October 2014

JUDGE:

Alan Wilson J

ORDERS:

The order of the court is that:

  1. The period of limitation for the applicant’s action for defamation in respect of the TICA publication of 25 January 2012 be extended under s 32A of the Limitation of Actions Act 1974 (Qld) such as to permit the applicant to file proceedings for defamation on or before 25 January 2015;
  2. The costs of and incidental to this application be reserved to the judge who hears and determines any defamation proceeding brought pursuant to this order, or earlier order.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – OTHER CAUSES OF ACTION AND MATTERS – where the applicant had previously rented a property owned by the respondents – where the applicant alleges that he discovered in June 2014 that the respondents had posted two entries on tenancy database TICA about the applicant in March 2011 and January 2012 – where the applicant applied to QCAT for the entries to be removed, and an order to that effect was made in July 2014 – where the applicant wishes to commence proceedings for defamation against the respondents, but where the limitation period set by s 10AA of the Limitation of Actions Act 1974 (Qld) has passed – where the applicant seeks an extension of that limitation period under s 32A of the Limitation of Actions Act 1974 (Qld) – whether an extension of time should be granted

Civil Proceedings Act 2011 (Qld), s 25

Defamation Act 2005 (Qld), s 21, Sch 5

Limitation of Actions Act 1974 (Qld), s 10AA, s 32A

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 459, s 460, s 464, Ch 9

Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld)

Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676

Arab Monetary Fund v Hashim (No 4) [1992] 4 All ER 860, cited

Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498, cited

Jamieson v Chiropractic Board of Australia [2011] QCA 56, cited

Noonan v MacLennan [2010] 2 Qd R 537, cited

Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175, cited

Rayney v State of Western Australia (No 3) [2010] WASC 83, cited

COUNSEL:

The applicant Joshua Findley appeared on his own behalf

The respondents Anthony Morand and Nancy Morand appeared on their own behalves, and for E Morand Pty Ltd

SOLICITORS:

The applicant Joshua Findley represented himself

The respondents Anthony Morand and Nancy Morand represented themselves, and E Morand Pty Ltd

[1] Wilson J:  The Queensland Residential Tenancies and Rooming Accommodation Act 2008 anticipates the creation, or expects the existence of, tenancy databases containing personal information about residential tenants and their conduct.[1]  The databases are plainly intended to enable letting agents and landlords to alert others to problems with named tenants, with obvious ramifications.

[2] Under s 459 of that Act a person can be listed on a tenancy database if they were named as a tenant under a residential tenancy agreement[2] and if there is a legitimate reason, prescribed under a regulation pursuant to the Act, for the listing.  Under the regulations[3] reasons may include unpaid rent, amounts owing after abandonment of a tenancy, and objectionable behaviour.[4]

[3] Mr Findley alleges that he was a tenant in residential student accommodation at Ashmore in 2010 but he left that accommodation, and Australia, on 31 December 2010 and then studied overseas.  He returned to Australia in January 2012, renting new accommodation here on 23 January 2012 and remaining in that accommodation for the next 2.5 years. 

[4] In mid 2014 he sought a new residential tenancy elsewhere.  His application was refused and he first became aware, he alleges, on 4 June 2012 that the respondents had made an adverse entry about him in such a tenancy database on two occasions – 9 March 2011, and 25 January 2012.  The tenancy database is called TICA.[5]  Mr Findley searched TICA and discovered two entries both of which bear the same reason, pursuant to the Regulations: ‘OBJECTIONABLE BEHAVIOUR WITHIN CARAVAN PARK’.

[5] He alleges that the behaviour complained of in both TICA reports concerned information he provided, after he left, to other tenants at the premises at which he resided in 2010 involving, as he alleged, carpet cleaning charges which had been illegally added to current tenants’ contracts.  He sent an email to all the student tenants alerting them to these charges and describing them as a ‘scam’. 

[6] Immediately upon discovery of the TICA entries he applied, as s 460 of the RTRA allowed, to the Queensland Civil and Administrative Tribunal for an order removing the entries from the TICA tenancy database.  At the hearing before me he provided a copy[6] of an order he says was made in QCAT on 3 July 2014 directing TICA, and Mr and Mrs Morand, to remove his name and all other information from the database so far as it relates to his tenancy in the Ashmore premises.  Mr and Mrs Morand were also ordered to pay to reimburse him for his filing fees.  He sought compensation, but it was not awarded – the RTRA only gives the Tribunal a power of that kind in the event that a party fails to comply with the Tribunal’s order.[7]

[7] In the present application Mr Findley seeks an extension of time to bring defamation proceedings against the Morands, and the company E Morand Pty Ltd. 

[8] Under s 10AA of the Limitation of Actions Act 1974 (Qld) the limitation period for an action for defamation expires after the end of one year from the date of publication – here, the expiration dates for the two entries under that time limit appear to be 9 March 2012, and 25 January 2013.

[9] Under s 32A, however, a person claiming to have a cause of action for defamation may apply to the court for an extension of that limitation period.  Section 32A(2) provides that a court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the date of publication, extend the limitation period mentioned in s 10AA for a period of up to three years from the date of publication.

[10] It is too late for an extension, under that provision, in respect of the tenancy database entry lodged on 9 March 2011; the three year period had already expired by the time Mr Findley discovered it in June 2014.  The time for the later entry on 25 January 2012 might, however, be extended to 25 January 2015. 

[11] The discretion arising under s 32A is, as Chesterman JA observed in Noonan v MacLennan,[8] unusual.  It requires a court to extend time if it is satisfied that the prescribed pre-condition has been fulfilled.  The court has no discretion in the matter.  If so satisfied, it must extend time (although there is a discretion as to the length of the extension).

[12] The principles to be applied when the discretion is called up were, with respect, helpfully summarised by Applegarth J in Pingel v Toowoomba Newspapers Pty Ltd,[9] albeit in a dissenting judgment.  The burden, his Honour said, is upon an applicant to point to circumstances which make it not reasonable for them to have commenced an action within one year from the date of publication; the circumstances that might give rise to a right to an extension are left, by the provision, at large; the test posed by s 32A(2) is an objective one; and, if the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within the stipulated one year period, then it must extend the limitation period – i.e., unlike other extension of time provisions, there is no discretion whether or not to extend time.

[13] Although I was not referred to any other decisions by any of the parties there are a number of Queensland cases on the provision.[10]  None of them, however, address the rather unusual circumstances relied upon by Mr Findley – namely, that the limitation period passed him by because he was unaware of the alleged defamatory publication, and had no reason or cause to be alerted to it until, as occurred, he sought to enter into a new residential tenancy agreement. 

[14] There is, however, a decision of the Victorian Supreme Court in which it was observed that, the circumstances which might justify an extension being at large, the authorities recognise that one circumstance in which it may not be reasonable for a plaintiff to commence proceedings within one year was where the plaintiff was simply unaware of the publication, or was unable to identify the publisher: Han v Australian Kung Fu (Wu Shu) Federation Inc.[11] 

[15] In that case, Mukhtar AsJ referred to several Australian decisions in which judges had, at least, adverted to just that circumstance.

[16] In Noonan, Keane JA (as His Honour then was) observed that an exhaustive list of the kinds of cases which might attract the statutory discretion was impossible, but those which came to mind included instances where a plaintiff was not able to establish the extent of the defamation, or was without the evidence necessary to establish their case, during the year after publication.[12] 

[17] The second is Pingel, in which Fryberg J said: ‘Obviously, it is not possible for a person to commence proceedings for defamation if … unaware of the fact of publication …’.[13]

[18] The later judgment of White JA in Jamieson indicates agreement with the proposition that the discretion will be attracted in that circumstance.[14]  Examples can also be found in other States, in Rayney v State of Western Australia (No 3)[15] and Ahmed v Harbour Radio Pty Ltd.[16]

[19] Mr Findley’s evidence, while terse, is sufficient to establish on the balance of probabilities that he was not alerted to the alleged defamatory statements in the database until June 2014.  That, for the reasons mentioned earlier, is too late to save any remedy he might have had in respect of the first entry on 9 March 2011 but, in the face of these authorities, warrants an extension of time under s 32A such as to permit him to file proceedings for defamation on or before 25 January 2015. 

[20] Because the action is yet to be brought and because, at the hearing of this application, Mr and Mrs Morand spoke in terms of possible defences, it is appropriate to order that the costs of and incidental to the application before me be reserved to the judge who hears and determines any defamation proceeding brought pursuant to this order, or earlier order. 

[21] Two other matters should be mentioned.  The first is that, with both parties self-represented, I was not assisted by reference to any authority including, in particular, any authority or statute which might provide a bar to relief.

[22] Secondly, when pressed at the hearing, Mr Findley spoke of damages associated with difficulties obtaining accommodation and, also, possible adverse effects on his future employment as a result of the alleged defamatory entries.  It does seem, however, that any damages would be unlikely to exceed the present jurisdiction of the Magistrates Court

[23] The Queensland Uniform Defamation Act 2005 permits proceedings in any Australian court – a term defined, in Sch 5, to mean any court established by or under a law of an Australian jurisdiction.  Because there is presently no ‘proceeding pending in the Supreme Court’ for damages for defamation, I do not think that s 25 of the Civil Proceeding Act 2011 allows me to transfer the matter to that court, or to the District Court.[17]   

[24] One difficulty with any attempt to remit the matter to the Magistrates Court may arise under s 21 of the Defamation Act, which provides that, absent a contrary order by a court, a plaintiff or a defendant in defamation proceedings may elect for trial by jury.  Mr Findley should, in any event, be alert to the question of the amount of his potential damages if he succeeds in an action, and the monetary jurisdiction of the Queensland lower courts, when and if he comes to institute proceedings permitted by this order.

Footnotes

[1] Residential Tenancies and Rooming Accommodation Act, Ch 9.

[2] Section 459(1)(a).

[3] Section 459(1)(c).

[4] Residential Tenancies and Rooming Accommodation Regulation 2009, Part 4.

[5] The name does not appear to be an acronym but, rather, the name of the corporate entity which operates the database.

[6] Ex 2.

[7] s 464.

[8] [2010] 2 Qd R 537, at 547.

[9] [2010] QCA 175, at [87].

[10] See, e.g., Jamieson v Chiropractic Board of Australia [2011] QCA 56.

[11] [2011] VSC 498.

[12] Supra, at [17].

[13] Supra, at [56].

[14] Supra, at [21].

[15] [2010] WASC 83, at [41].

[16] [2010] NSWSC 676, at [52].

[17] Arab Monetary Fund v Hashim (No 4) [1992] 4 All ER 860.

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Editorial Notes

  • Published Case Name:

    Findley v Morand & Ors

  • Shortened Case Name:

    Findley v Morand

  • MNC:

    [2014] QSC 297

  • Court:

    QSC

  • Judge(s):

    A Wilson J

  • Date:

    09 Dec 2014

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status