Mowen v The Morning Bulletin/APN
[2013] QCA 36
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- Notable Unreported Decision
- Appeal Determined (QCA)
- Mowen v The Morning Bulletin/APN[2013] QCA 36
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Mowen v The Morning Bulletin/APN[2013] QCA 36
Mowen v The Morning Bulletin/APN[2013] QCA 36
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 8 March 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14 February 2013 |
JUDGES: | Holmes and Fraser JJA and Dalton J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
|
CATCHWORDS: | Limitation of actions – Limitation of particular actions – Other cases and matters – where appellant alleged the respondents defamed him – where appellant was barred by s 10AA Limitation of Actions Act 1974 (Qld) – where appellant’s application to extend time pursuant to s 32A Limitation of Actions Act 1974 (Qld) was dismissed – where appellant’s claim and statement of claim were struck out – where appellant complains that the primary judge failed to recognise that the relevant stories were still being published – where appellant argues ignorance of the law as a ground of appeal – whether the primary judge erred in dismissing the appellant’s application – whether the primary judge erred in striking out the appellant’s claim and statement of claim Appeal and new trial – Appeal - practice and procedure – Queensland – Powers of court – Further evidence – where appellant sought leave to introduce new evidence – where much of the material the appellant wished to rely upon was available to him at the hearing before the primary judge – whether the appellant’s application to adduce further evidence should be dismissed Anti‑Discrimination Act 1991 (Qld), s 46 Limitation of Actions Act 1974 (Qld), s 5(2), s 10AA, s 29, s 32A Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, considered |
COUNSEL: | The appellant appeared on his own behalf R Anderson for the first and second respondents No appearance for the third respondent |
SOLICITORS: | The appellant appeared on his own behalf Bennet & Philip Solicitors for the first and second respondents No appearance for the third respondent |
[1] HOLMES JA: I agree with the reasons of Dalton J and the orders she proposes.
[2] FRASER JA: I agree with the reasons for judgment of Dalton J and the orders proposed by her Honour.
[3] DALTON J: In May 2009 the appellant stood trial on criminal charges in the District Court at Rockhampton. He was acquitted. On 21 May 2012 he filed proceedings alleging that on 7 August 2006 and 19 May 2009 the defendants published articles in The Morning Bulletin which concerned that criminal case, were inaccurate, and defamed him. He alleged publication locally in the paper, and on the internet. He was met by the defence that the action was barred by s 10AA of the Limitation of Actions Act 1974 (Qld).
[4] The appellant brought an application to extend time pursuant to s 32A of the Limitation of Actions Act. This was heard on 16 July 2012. The appellant, who has at all times represented himself, explained on affidavit that he was ignorant of the law and only aware that there was a three year limitation period for claims for damages. It might be remarked that the claim was filed just outside three years from the last defamation alleged in it. On 18 July 2012 the primary judge dismissed the application and struck out the appellant’s claim and statement of claim.
[5] Section 10AA of the Limitation of Actions Act provides that an action for defamation must not be brought more than one year from the date of the publication. Section 32A of the same Act provides:
“(1)A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.
(2)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 1 year from the date of the publication, extend the limitation period mentioned in section 10AA to a period of up to 3 years from the date of the publication.
(3)A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2).
(4)An order for the extension of a limitation period, and an application for an order for the extension of a limitation period, may be made under this section even though the limitation period has already ended.”
[6] As to the relevant case law the primary judge said, correctly:
“[5]A useful summary of the relevant principles on applications of this type was essayed by Hislop J in Cassar v Network Ten Pty Limited [2012] NSWSC 680 at [16]:
‘It has been held in respect of s 56A (or its equivalent in other States) that:
- the burden that must be discharged is to establish 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 the publication — Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537; Rayney v Western Australia (No 3) [2010] WASC 83 at [41];
- the onus rests with the plaintiff — Rayney [41], Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676; Carey v Australian Broadcasting Corporation [2010] NSWSC 709; (2010) 77 NSWLR 136 at [45];
- the test is objective — Noonan [20], Carey [48];
- it is a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances — Rayney [41];
- if the plaintiff proves the fact then the court is obliged to extend time. Extension in these circumstances is mandatory — Ahmed [28], Carey [45];
- section 56A limits the period of extension to an extension “of up to three years running from the date of publication”. This has been described as involving the exercise of a discretion in the sense of involving a normative judgment — Ritson v Gay and Lesbian Community Publishing Ltd [2012] NSWSC 483 at [24], [25].’
…
[13]… As Keane JA explained in discussing these provisions in Noonan v MacLennan & Anor [2010] QCA 50 at [22]:
‘Consideration of the issue of reasonableness must commence from the position that the Act lays down strict time limits for the commencement of proceedings for damages for defamation. No doubt the legislature was moved to fix these strict limits for good reason. These limits are part of the law of the land to be observed by all persons save where s 32A(2) is engaged. And on any view of s 32A(2) of the Act, it operates by reference to what is reasonable. Mere ignorance of the strict time limits fixed by the Act cannot afford a reasonable basis for not complying with them. Generally speaking, ignorance of the law has never been thought to be a reasonable basis to relieve a person of the consequence of non-compliance with the law.’”
[7] The primary judge correctly described the appellant’s pleaded case as relying on publication on 7 August 2006 and 19 May 2009. He accepted the respondents’ point that even if the limitation time were to be extended for a period of three years from these dates, it would not avail the appellant for he would still be out of time in which to sue. In my view, the logic of that conclusion cannot be denied.
[8] The primary judge went on to consider a second alternative point: whether or not it would be open to him to extend time pursuant to s 32A of the Limitation of Actions Act. The primary judge summarised the appellant’s submissions in this regard as follows:
“Mr Mowen submitted, not always with any evidence to support his contentions:
(a)that he was not legally trained;
(b)that he had only a grade 8 education;
(c)that he was distracted by the need to attend to the serious criminal charges brought against him that were the subject of the articles complained of and which came to trial only in the week of the second publication;
(d)that he had not acted in defiance of the limitation period but rather in ignorance of it;
(e)that he had endeavoured to get legal assistance but was impecunious and so had been unsuccessful in those attempts.”
[9] The primary judge also recorded that the appellant relied upon his ignorance of limitation times for defamation actions. The primary judge concluded, having regard to Noonan, extracted above, that the appellant’s ignorance was not sufficient to make it “not reasonable” within the meaning of s 32A(2) for the appellant to have commenced his action within time. Particularly so, when the appellant knew that there was some limitation time, although he was mistaken about its length, and although uneducated, was not an ignorant man, and not unfamiliar with litigation – paragraph [14] of the reasons below. Even together with the unintentional nature of his conduct and the fact that he was unrepresented, the primary judge did not conclude that the appellant showed sufficient to justify an extension of time pursuant to s 32A.
[10] The primary judge accepted that in the year following the 7 August 2006 publication the appellant had to deal with serious criminal charges which he was then facing. However, he was not persuaded that the existence of these charges prevented the appellant from pursuing a defamation claim during that year. As the primary judge notes at paragraph [12] of his reasons for decision, the sworn material from the appellant was not entirely satisfactory and certainly did not explain how it was that his attention to the criminal charges precluded him from pursuing the defamation matter. As the primary judge noted, this argument is not of any assistance in relation to the May 2009 article, by that time the appellant had been acquitted.
[11] It seems to me that the primary judge correctly applied the law as to when extensions should be granted pursuant to s 32A of the Limitation of Actions Act and was correct to conclude that the appellant had not demonstrated that it “was not reasonable in the circumstances for [him] to have commenced an action in relation to the matter complained of within one year from the date of publication” within the meaning of s 32A(2) of that Act. It follows that for both the reasons relied upon by the primary judge, the appellant’s application below ought to have been dismissed. In circumstances where the appellant made no submission to the contrary, it was also correct for the primary judge to strike out the claim and statement of claim.
[12] In his first and seventh grounds of appeal before this Court, the appellant complains that the primary judge failed to recognise that the stories relating to the appellant were still being published – there was evidence before the primary judge that even on the day before the application for extension of time was heard, it was possible to obtain a copy of the 7 August 2006 article on the internet. There was no evidence as to the May 2009 article. The primary judge correctly determined the matter before him based on the claim and statement of claim filed by the appellant. Those documents did not rely upon the continuing availability of the August 2006 story on the internet. The primary judge was well aware of this evidence, and mentioned it in his reasons, correctly summarising the appellant’s position at paragraphs [7] and [8] of his reasons for decision. The primary judge suggested to the appellant in the course of argument that the appellant might wish to rely upon what was available online as a new defamation and sue on that, and the appellant told him that it was not a new defamation and he did not wish to take that course – see t7 below.
[13] There might be difficulties in this appellant’s relying upon the availability of a story on the internet as the publication complained of in a defamation action. There might also be considerable difficulty in establishing that any damage flows from the continuing availability of an article on the internet long after it was first published. If the appellant has a cause of action in relation to these matters, it is a different cause of action from that asserted in the claim and statement of claim which the primary judge struck out. There was no submission below that the claim ought not to be struck out, or that leave ought to be given to amend that claim and to file a new statement of claim pursuing a new cause of action. To the contrary, the appellant expressly rejected such a course. There was no material before the primary judge which would have inspired confidence that a new cause of action was available to the appellant. In these circumstances the primary judge did not err in relation to the evidence of the continuing availability of the August 2006 story on the internet.
[14] The second and third grounds of appeal before this Court went to the appellant’s ignorance of the law of limitations and his difficulty in informing himself of the law. Particular mention was made of the fact that members of the public are only permitted to access the material in the Supreme Court Library in Rockhampton during limited hours. There was no material before the primary judge, or for that matter before this Court, showing that the restrictions on members of the public using the Supreme Court Library had in fact hampered the appellant in any relevant way. Otherwise, my view is that the primary judge was correct in his assessment that ignorance of the limitation period itself was not sufficient to justify an extension of time under s 32A of the Limitation of Actions Act.
[15] The fourth ground of appeal is to the effect that the primary judge failed to observe the provisions of the UCPR in another decision concerning the applicant. The decision referenced was one in which the applicant applied for an injunction, ex parte, to compel the State Government to hold a referendum as to the sale of Queensland Rail. The application was dismissed on the basis that the appellant did not have standing in that matter. I cannot understand the appellant’s reference before us to the failure to observe provisions of the UCPR in relation to that decision, and I cannot see that that decision is in any way relevant to the present appeal.
[16] The fifth ground of appeal before us was that the primary judge failed to recognise that the defendants had been malicious because there were publications by the defendants on 21 and 22 May 2009. The primary judge might be forgiven for missing this point given that these publications are not pleaded; malice is not pleaded, and the appellant made no mention of the matter of malice in argument, or in evidence, before the primary judge. In any event, matters going to malice could not affect the primary judge’s logic in relation to extension of the limitation time. Nor, moving to the appellant’s sixth ground of appeal, could a publication made on 22 May 2009 (just under three years before the filing of the proceedings below), which allegedly demonstrated malice in the earlier publications relied upon, save the appellant’s action from the expiry of the limitation time.
[17] As well as relying upon the grounds of appeal in his Notice of Appeal, the appellant before us sought leave to introduce new evidence to show that: (a) he attempted to pursue this matter; (b) he was (or was not, it is unclear) impecunious; (c) that he was restricted in gaining access to the information he required; (d) that he tried to undertake education on the law by applying to University but was refused; (e) that he attempted to obtain legal representation but was refused and (f) that he is disabled. At the hearing of the matter we reserved our decision on the question of this application.
[18] In support of his application the appellant filed an affidavit containing the new evidence he hoped to rely upon. He recognised that much of the material he wished to rely upon was properly available to him at the hearing before the primary judge on 16 July 2012. He swore that on 11 July 2012 he was involved in an unpleasant traffic incident and was “badly shaken up and very sore due to the aggravation this hard impact collision caused to my permanent injuries, for which I have been the recipient of a full disability pension since approval on the 16th December 1993”. Had the appellant not been well enough to prepare for or pursue the application on 16 July 2012 he could have asked for an adjournment. He did not. In fact, in relation to evidence from another potential witness, the appellant was advised he had a right to ask for the matter to be adjourned, but did not want that to occur – t7 below.
[19] The new matters upon which the appellant seeks leave to rely principally relate to efforts the appellant made to obtain a loan to obtain legal representation in the defamation action (apparently some time in or about January 2012); some correspondence which proved up the position in relation to limited availability of the Supreme Court Library in Rockhampton (19 July 2011); correspondence with University of Central Queensland effectively refusing him access to the library there (February 2011); some detail of his approaches to lawyers to represent him in the defamation proceedings, and, lastly, some correspondence with the Crime and Misconduct Commission and with the Australian Broadcasting Commission, the relevance of which entirely escapes me.
[20] Insofar as these matters go to the appellant’s efforts to obtain legal representation and access to law libraries, they are relevant to s 32A considerations. I am not persuaded that there is any good reason why they were not put before the Court on 16 July 2012. The application before the primary judge, and the affidavit made by the appellant in support of it, were filed on 29 June 2012, well before the traffic incident of 11 July 2012. In any case, this material – exhibited to the appellant’s affidavit before us – was sketchy and added little to what was already before the primary judge as to the appellant’s attempts to access the law and legal representation, and it must be said that all the material shows attempts which were very late in the scheme of things – between May 2011 and May 2012.
[21] Lastly, as to the further evidence sought to be relied upon in this Court, the appellant wished to rely upon his status as a disabled pensioner to attract the operation of s 29 of the Limitation of Actions Act which provides for an extension of the limitation period in cases where a person is under a disability. The difficulty with this is that by s 5(2) of the same Act it is provided that a person is to be taken to be under a disability for the purposes of the Act, “while the person is an infant or of unsound mind”. The section therefore does not apply to the appellant.
[22] The application to rely upon further evidence should be refused. Neither of the first two tests mentioned in Clarke v Japan Machines (Australia) Pty Ltd[1] are satisfied: the evidence was available to the appellant at the time the application below was made, and the matters now sought to be relied upon are not such that they would have had an important influence on the result below.
[23] The appellant made some oral submissions that he had been discriminated against in the provision of goods and services within the meaning of s 46 of the Anti‑Discrimination Act 1991 (Qld). There was nothing on the material before us which would give any support to such a claim. Nonetheless, if the appellant did have such a claim he would need to bring it in a way authorised by the Anti‑Discrimination Act. It does not bear on matters which we must decide on this appeal.
[24] For the above reasons I would dismiss the appeal.
[25] The primary judge dismissed the application before him with costs to be paid on the indemnity basis. There was no separate appeal made against the costs order, and no argument was advanced before us about it by the appellant. As will appear from the above reasons, my view is that the proceedings before us were utterly devoid of merit and I accede to the respondents’ submissions that costs of this appeal should also be ordered on an indemnity basis. I propose the following orders:
1.The application to adduce further evidence is dismissed.
2.The appeal is dismissed.
3.The appellant is to pay the respondents’ costs of and incidental to the appeal on an indemnity basis.
Footnotes
[1] [1984] 1 Qd R 404, 408.