DISTRICT COURT OF QUEENSLAND

1. [1]
   The Bailey Henderson Hospital in Toowoomba provides health services to patients suffering from mental health disorders. In January 2000, Raymond Murphy and Peter Lewis, both registered nurses, worked together at the Hospital’s Ridley Unit. Mr Lewis complained to his supervisor, Mr Vonhoff, about the way he said Raymond Murphy treated him. He accused Mr Murphy of bullying, aggressive and intimidating behaviour. When asked to, Mr Lewis put the complaint in writing by letter dated 11 January 2007. Raymond Murphy became aware of this letter when Mr Vonhoff and the Nursing Director, Patrick Murphy (no relation to the plaintiff) discussed it with him in mid January 2007.

2. [2]
   In July 2008 Raymond Murphy commenced proceedings against Peter Lewis claiming damages for defamation, based on statements Mr Lewis made in the letter. As proceedings were commenced more than one year after its publication, the claim is statute barred unless this court extends the limitation period.^[1] Raymond Murphy has applied for such an order. Peter Lewis opposes it being made.

3. [3]
   The parties are in dispute about:

a) the test the court must apply in considering the application; and

b) whether the order to extend time should be made in the circumstances of this case.

A. What is the test the court must apply?

4. [4]
   The limitation period for defamation claims was drastically curtailed from six years to one when the Defamation Act 2005 (Qld) commenced on 1 January 2006. That Act became law in the context of an agreement between the State and Territory Attorney-Generals in 2004 to develop uniform defamation laws. Amongst other significant reforms, new provisions were inserted into the Limitation of Actions Act 1974 (Qld) (“LOA”). S10AA imposed the one year limitation period. S32A provides for its extension in prescribed circumstances.

An unusual feature of this provision is that, once satisfied of the specified matter, the court has no discretion to extend: s 31A(2) mandates the court must do so.  Further, the circumstances in which the court can extend the limitation period are confined, by s 32A(3) to those specified in s 32A(2).

5. [5]
   The parties are at odds about the interpretation of s 32A. Raymond Murphy contends for a liberal interpretation. His counsel argued the general principles expounded for provisions such as s 31 of the LOA and those applied by the court when granting parties leave to proceed under r389 should guide the court in making its decision under s 32A(2).

6. [6]
   Counsel for Peter Lewis argued for a more restrictive approach. He submitted a legislative intention to permit extension in only limited and exceptional circumstances is clear from the ordinary meaning of the language used. That meaning is confirmed, he contended, by reference to passages of the explanatory notes for the Defamation Bill 2005 and its second reading speech. The reforms were introduced to ensure “prompt and effective vindication of reputation”^[2] and “promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter.”^[3]

7. [7]
   In applying limitation provisions and exercising its power to extend them, courts are cognizant of the broad rationales for limitation periods.^[4] Four broad rationales were identified by Justice McHugh in Brisbane South Regional Health Authority v Taylor which may be paraphrased as:

• Relevant evidence may be lost with the passage of time;
• It is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed;
• People should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them ;
• Insurers, public institutions and businesses, particularly limited liability companies have a significant interest in knowing they have no liabilities beyond a definite period; and
• The public interest requires disputes be settled as quickly as possible.”

8. [8]
   Given the objects of the Defamation Act and the statements in the explanatory notes to the Bill and the Minister’s second reading speech, the final rationale identified by Justice McHugh is of particular significance to the interpretation of s 32A.

9. [9]
   It appears the section has not been the subject of judicial consideration in Queensland. Counsel referred to a number of decisions in defamation actions made by judges of the District Court of New South Wales.^[5] The discussion of principles in those cases provides limited guidance.  All but one relates to a provision in the NSW Act^[6] in different terms to s 32A.  Until 1 January 2006, that section provided, relevantly, as follows:

Limitation Act 1969 (NSW) s 56A

(3) A person claiming to have a cause of action to which this section applies may apply to the court for an order extending the limitation period for the cause of action.

(4) After hearing such of the persons likely to be affected by the application as it sees fit, the court may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines. However, the court cannot extend the period beyond three years running from the date on which the defamatory matter concerned was published.”

(emphasis added)

10. [10]
    It is apparent the section is in materially different terms to s 32A. It conferred on the court the discretion to extend time if satisfied “that it is just and reasonable to do so”.  That formulation is in keeping with the terminology used in provisions such as s 57 (2)(b) Motor Accident Insurance Act 1994 and s 31 LOA but differs markedly from the language of s 32A.

11. [11]
    S 56A in the NSW Act has now been recast in identical terms to s 32A. In Rodgers v Nine Network Australia Pty Ltd,^[7] Judge Gibson of the NSW District Court considered the amended provision.  She noted that previously, as a general rule, applications for an extension of time had been successful where a reasonable explanation was put forward, the delay was not substantial, and there was no assertion of actual prejudice.^[8]  She rejected the submission the amended section imposed a more restrictive test.

12. [12]
    Counsel for Mr Murphy contended this court should adopt the same approach as Judge Gibson did in Rodgers v Nine Network Australia and grant the application if satisfied he has given a reasonable explanation for his delay, the delay is not substantial, and there is no actual prejudice to Mr Lewis.

13. [13]
    With great respect to her Honour, the court is not persuaded the test formerly applied in New South Wales under a materially different provision assists in interpreting s 32A.

14. [14]
    Necessarily, the court’s determination rests on its assessment whether it was not reasonable for the plaintiff to commence proceedings within time. Matters such as length of delay and potential prejudice are considerations relevant to the exercise of discretion. It is difficult to see how they relate to the question whether it was not reasonable for the plaintiff to commence proceedings within time. There may be some scope for arguing, in the particular circumstances of a case, that they have some bearing on that question. That argument has not been put here. It seems the section directs the court’s attention to the plaintiff’s conduct in the circumstances that applied during the limitation period itself, not the impact his failure might have on the defendant’s ability to fairly conduct his defence.

15. [15]
    There is no contest that s 32A casts the onus on the plaintiff to satisfy the court that it was not reasonable for him to have commenced an action within time. He bears the burden of demonstrating the justice of the case requires the extension.^[9]  It is a serious matter to ask the court to override a defence otherwise available to Mr Lewis.^[10]

Should time be extended?

16. [16]
    Given the court’s conclusions about how s 32A is to be interpreted, the question is whether the court is satisfied that it was not reasonable for Mr Murphy to commence proceedings within time. If the court is so satisfied, there is no discretion, and the court must make the order sought.

17. [17]
    At the hearing, affidavit evidence was led from a number of witnesses. Three of them were cross-examined: the plaintiff and, for the defendant, Patrick Murphy and Jeffrey Vonhoff. Most of the cross-examination of the latter two gentlemen dealt with what steps they took to investigate Mr Lewis’ complaint. Central to Mr Murphy’s application was his assertion that it was not reasonable for him to commence proceedings until an internal investigation had been concluded. He gave evidence that, in December 2007, Patrick Murphy informed him the investigation had concluded. Until then, he said, he did not know that no further action would be taken about Mr Lewis’ letter. After this he sought and obtained legal advice but did not know about the limitation period until it had expired.

18. [18]
    The plaintiff’s evidence is contrary to that given by Patrick Murphy and Jeffrey Vonhoff.

19. [19]
    Patrick Murphy said no formal investigation was conducted. He met with the plaintiff and Jeffrey Vonhoff in January 2007. His contemporaneous notes of the meeting were annexed to his affidavit. The plaintiff contested their accuracy in two respects: the date of the meeting (whether it was the 15^th or 16^th of January); and whether Patrick Murphy offered him mediation.  Patrick Murphy conceded it was possible the date was out by a day but was quite sure it was not because he had been away the preceding weekend for personal reasons which gave him a particular reason to recall the date he returned to work and met with the plaintiff.  In any case, little turns on that if the notes accurately record the terms of their discussion.  On that point, under challenge, Patrick Murphy was insistent mediation was offered and Mr Vonhoff confirmed his account.

20. [20]
    Both Patrick Murphy and Jeffrey Vonhoff asserted, and the plaintiff agreed, that he responded positively to their suggestion that the plaintiff and Mr Lewis would be rostered on different shifts. Patrick Murphy denied the plaintiff said anything to indicate he wanted management to take the matter further or that the plaintiff wished to make a full response to the allegations. His notes attributed the following statements to the plaintiff: “I will deal with it in my own way” and “I’ll handle it – no problem”. He took that to mean that the plaintiff was not asking for anything further to happen.  Although allegations of bullying are serious, because the complaint did not involve allegations of improper patient care, he did not consider a formal process was warranted.

21. [21]
    Jeffrey Vonhoff’s account of the meeting in January 2007 was to like effect. He confirmed no formal investigation was undertaken, although he did speak to other employees about what they had observed between the two men. Later the plaintiff was willingly transferred to another unit in the hospital at Mr Vonhoff’s instigation. Mr Vonhoff was surprised by Raymond Murphy’s letter of April 2007, because he took his statements in their January meeting to indicate he wanted nothing further done about it.

22. [22]
    Both he and Mr Murphy interpreted a statement in the plaintiff’s letter as an indication that the plaintiff was considering taking legal action against Mr Lewis. That followed, they thought, from this passage:

“Lastly, Mr. Lewis expresses his fear that this matter could result in major repercussions aimed towards him. In this regard Mr. Lewis may be correct as I intend to take further action in this matter.  I believe Mr. Lewis has made “false and malicious” statements against me to senior management which has tended to damage my reputation.”

(letter from Raymond Murphy to Patrick Murphy dated 04/04/07)

23. [23]
    The plaintiff said the language he used (“false and malicious statements….which tended to damage my reputation”) was derived from a handout on workplace violence he obtained in a nursing seminar and was not an indication he would take legal action. Further, and surprisingly, when he said “further action I intend to take” he intended that to be a request to Qld Health to take further action which, he assumed without hearing further from anyone, it would take. It is hardly surprising that Patrick Murphy and Jeffrey Vonhoff read the letter differently.

24. [24]
    Some time after he received the plaintiff’s letter, Patrick Murphy says he was advised an external mediator could be made available to the two men if they wished to mediate their dispute. By that time, it appears, the plaintiff had been or was about to be transferred to another unit of the hospital. Patrick Murphy spoke to Mr Lewis who said he was willing to engage in mediation. He offered mediation to the plaintiff who declined it. Patrick Murphy then informed Mr Lewis of the plaintiff’s attitude. Whilst Patrick Murphy could not be sure exactly when his discussion with the plaintiff occurred, he thought it took place in or about July 2007. In his affidavit, Mr Lewis confirmed Patrick Murphy’s account of his conversations with him in or about that month. From that point, Patrick Murphy considered the matter was concluded as far as his involvement was concerned.

25. [25]
    Specifically, he denied the plaintiff’s allegations that he told the plaintiff in December 2007 that:

• Qld Health would close or had closed their investigation;
• That there would be no formal letter issued to the plaintiff dismissing the complaint;
• That it was necessary for the plaintiff to seek legal advice if he thought the complaint was not genuine;
• That he needed to seek legal redress if he thought that was appropriate.

26. [26]
    During cross-examination, the plaintiff denied he was offered or rejected mediation in their meeting in January 2007 or in a conversation with Patrick Murphy in July that year. He said from January 2007 he believed a formal investigation was under way. He maintained that he did not know until December 2007 the investigation had concluded. Importantly, however, he stepped back from the specific terms of some of the assertions he made in his affidavit. He conceded that statements had not been made to him in the terms he set out in his affidavits but rather that he believed an investigation was under way because he drew assumptions based on what was said to him and what he said to others, and based on what he believed to be a proper response to such a serious complaint. His explanation for the different versions he told during evidence in court and that recorded in his affidavits was that he was tired and under pressure at the time he swore the first affidavit.

27. [27]
    He agreed that he was not told during the meeting in January 2007 that there would be an investigation, but he assumed that there would be because of the seriousness of the complaint. He insisted the statements recorded in Patrick Murphy’s notes indicated his intention to make a full written response, although he conceded he did not actually say as much. He explained the time he took to provide that response was due to the pressures he was under: working numerous shifts at a number of hospitals and family responsibilities, including providing and caring for his two step children and his one year old son. He said it took him some time to check staff rosters and patient records, although he conceded that Mr Lewis only referred to events on 2 dates. He said it was not easy to confirm records were correct and a paper trail needed to be covered. Staff who did not attend due to illness, for example, still appeared on the day’s roster. In accessing patient records, he did not want to draw attention to his investigations. Further, he said he needed to talk to a number of other staff first. Finally, and tellingly, he agreed it was not a high priority at that time.

28. [28]
    The plaintiff said he had no recollection of a discussion about mediation with Patrick Murphy in July 2007. He thought he saw Mr Murphy three or four times between the January meeting and the discussion he said took place in December. On those occasions, he said, there was no discussion of the matter. He said that, although he made no inquiries of Patrick Murphy until December 2007, he assumed there was a formal investigation under way. He said he did not inquire because, Queensland Health moves slowly and it was not a high priority at the time.

29. [29]
    The plaintiff bears the onus of proof in this application. There are inconsistencies between his account of his dealings with Patrick Murphy and the account given by Patrick Murphy and Jeffrey Vonhoff. It is significant that there are also inconsistencies between the accounts given by the plaintiff in each of his two affidavits (16/10/08 and 18/02/09) and also with the evidence he gave under cross-examination. This necessarily affects the credibility and reliability of his evidence. On the other hand, there was no difference in the evidence given by Patrick Murphy or Jeffrey Vonhoff in their affidavits and under examination. I see no basis for not accepting their evidence. Accordingly, where there is a conflict in the evidence given by the plaintiff and that given by Patrick Murphy or Jeffrey Vonhoff, I prefer the evidence of the latter gentleman. On that basis, there is nothing in the way in which the complaint was handled to establish that it was not reasonable for the plaintiff to commence proceedings within the limitation period. Nor has the plaintiff persuaded me there were any other circumstances which meant it was not reasonable for him to do so.

30. [30]
    Even were the court to accept the plaintiff’s final account given during the hearing, it would not satisfy me that it was not reasonable for him to commence proceedings within time. He assumed a formal investigation was under way, based as much on what he said in the January meeting as on what he said was said to him. He did not respond to the complaint for some months and made no inquiry about the assumed investigation until December, because of other personal and work pressures and because it was not then a high priority for him. He did not allege anyone ever suggested to him that he should not explore his legal rights pending the outcome of an internal investigation. He was not hampered or restricted in any way from doing so. In short, he was not conscientious in exploring his remedies or in complying with obligations imposed on him as a potential plaintiff.^[11]

31. [31]
    For reasons already adverted to, I have some reservations about accepting the plaintiff’s account of his attempts to obtain legal advice prior to first consulting the firm Gilshenan & Luton in February 2009. Given the interpretation of s 32A which I have adopted, the reason for his delay in commencing proceedings after the limitation period expired has no bearing on the outcome of this application. What I must be satisfied of is that it was not reasonable to commence proceedings within time, not that any subsequent delay can be explained.

32. [32]
    There is no evidence the plaintiff was aware of the limitation period until it expired and I accept he was not. That is not to the point. There is no evidence he made any attempt to obtain advice about or explore his rights of redress. He was not hampered from doing so. His assumption an investigation was under way, even if accepted, is not determinative. It would not preclude other action and he took no steps to keep abreast of its progress. The view I have formed from the plaintiff’s evidence as a whole is that his choice not to explore legal redress earlier is explained by what his priorities were at the time. It is perfectly understandable that he would rate the complaint low on his list of priorities. That does not establish it was not reasonable to commence proceedings within time. Given the clear legislative intention behind the very restrictive limitation period applied to such actions by s 10AA, the plaintiff has not discharged the onus he bears in this application and it is refused.