Jamieson v Chiropractors Board of Queensland
[2010] QDC 134
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- Unreported Judgment
- Jamieson v Chiropractors Board of Queensland[2010] QDC 134
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Jamieson v Chiropractors Board of Queensland[2010] QDC 134
Jamieson v Chiropractors Board of Queensland[2010] QDC 134
DISTRICT COURT OF QUEENSLAND
CITATION: | Jamieson v Chiropractors Board of Queensland [2010] QDC 134 |
PARTIES: | JOHN WILLIAM JAMIESON Applicant v CHIROPRACTORS BOARD OF QUEENSLAND ABN 36 413 433 890 Respondent |
FILE NO: | 334 of 2009 |
DIVISION: | Civil |
PROCEEDING: | Application for extension of limitation period |
ORIGINATING COURT: | District Court at Maroochydore |
DELIVERED ON: | 9 April 2010 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 7 April 2010 |
JUDGE: | K S Dodds, DCJ |
ORDER: | The application is dismissed. |
CATCHWORDS: | LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIOD – OTHER CAUSES OF ACTION AND MATTERS – defamation – defamatory material uploaded onto internet and downloaded by persons who brought it to the applicant’s attention – where action for defamation not commenced within one year of publication – whether 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 Limitations of Actions Act 1974 s 10AA, s 32A Cases cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Noonan v MacLennan & Anor [2010] QCA 50 |
COUNSEL: | T Nielsen for the applicant R Anderson for the respondent |
SOLICITORS: | Butler McDermott Lawyers for the applicant Rodgers Barnes & Green Lawyers for the respondent |
- [1]This is an application filed 3 December 2009 for extension of the limitation period for a defamation action.
- [2]Section 10AA of the Limitations of Actions Act 1974 provides a one year limitation period “from the date of the publication of the matter complained of”.
- [3]Section 32A of the Limitations of Actions Act 1974 enables a Court to grant an extension of the one year period but only in the circumstances provided for in subsection (2). That subsection provides that if the Court is 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” then it “must extend the limitation period to a period of up to three years from the date of the publication”.
- [4]The matter for consideration if any extension of the limitation period is to be granted by the Court is unique in the Act. Once the Court is satisfied in the circumstances “as they appear objectively to the court” Noonan v MacLennan & Anor [2010] QCA 50 per Keane JA (as he then was) at [20] that it was not reasonable for the applicant to have commenced action within one year from the date the publication complained of, the court must extend the limitation period.
- [5]The circumstances surrounding the defamation in question are as follows: the applicant worked with pets as a pet chiropractor. The respondent took issue with whether he could properly describe himself to the public as a “chiropractor”. It commenced a prosecution against him for breach of provisions of the Chiropractors Registration Act 2001. The trial took place on 17 April 2007. On 4 May 2007 the charges were dismissed in the Magistrates Court.
- [6]On 17 April 2007, a statement was posted on the respondent’s website. It was dated 17 April 2007 (the statement). Its content was false. It was headed “Chiropractors Board of Queensland STATEMENT RE John Jamieson”. It was defamatory of the applicant. The applicant was told about it on 30 June 2007, but has claimed he was stressed and distracted at that time and did not take it in. A printed out copy of the statement was posted to him but there is an inference available the letter was not opened until about September 2008 by a friend, Ms Farrow. He accepts the article posted on the respondent’s website was brought to his attention in late October 2008 when he was told about it and shown it by Ms Farrow who had accessed it on the internet.
- [7]The applicant says he suffered a downturn in business, roughly coincidental with the time the charges were dismissed in the Magistrates Court. On 6 November 2008 he wrote to the respondent requesting the article be removed from the website and that he be compensated for damage arising from the publication. It appears the article was promptly removed and an apology posted on the website. Between November 2008 and March 2009, without prejudice correspondence passed between the parties. In May 2009, the applicant sought legal advice, was advised of the limitation period of one year from the date of publication and that the period had expired. That advice suggests the date of publication was regarded as 17 April 2007, the day the material was uploaded onto the website. He was advised he could apply for an extension. He decided at that time he did not have the financial capability to fund necessary legal costs. In September 2009 when in a better financial position he instructed his solicitors to take action. Sometime, apparently shortly prior to 6 October 2009, a Mr Parker loaned $20,000 to the applicant to assist with legal fees.
- [8]McHugh J in the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 discussed the policy underlying limitation periods. He said “a limitation period should not be seen--- as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the Legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated---”.[1] As Chestermann JA remarked in Noonan at [30] “it is only in special and specified circumstances that a limitation period may be extended”.
Evidence
- [9]The applicant has sworn two affidavits for the purposes of the application. In his first affidavit sworn on 2 December 2009 before the application first came before the Court, he deposed that he first became aware of the publication of the defamatory material in late October 2008 after a friend Lorraine Farrow brought it to his attention. He first sought legal advice in May 2009. He was advised of the one year limitation period and that it had expired, but that he could apply for an extension. He decided he could not afford to pursue legal action. In September 2009 when in a better financial position, he instructed his solicitors to “take the matter further”. (That may have been after Mr Parker loaned him the money earlier referred to).
- [10]In his second affidavit sworn 6 April 2010 the applicant deposed that subsequent to the application being before the court in December 2009 and after discussion with his legal representative, he recalled a former client phoning him and telling him she had seen some disparaging comments about him on the internet. All he could recall at first was the name, Lorraine Summers. Ms Farrow located a printed copy of the statement after searching through files of the applicant which she had created. When shown the statement she located, he had no recollection of ever seeing it before. His recollection of his telephone conversation with the woman who phoned him who it appears was one Lorraine Burkett, was that she said words to the effect “Doc I found some stuff on the internet where people have been bagging you, I think you should do something about it”, to which he replied words to the effect “I won the case, don’t worry about it, I have bigger issues to deal with”. He recalls saying on a number of occasions not to worry about it. He recalled Ms Burkett saying she was going to post the documents to him. He deposed to being in good mental health until the respondent began to pursue him which culminated in the prosecution. He consulted his then general practitioner, a Dr Drew, now deceased, in early 2007 and was provided with sleeping tablets, anti-depressant medication and analgesics. (Dr Drew’s medical records have been unable to be obtained despite appropriate steps being taken to obtain them). He was suffering from stress and anxiety prior to the finalisation of the Magistrates Court proceedings. After the Magistrates Court’s decision, the stress lifted and he felt relieved, positive and confident he could successfully move on although he avoided thoughts and topics associated with the trauma of the prosecution. Subsequent to the Magistrate’s Court proceedings, he was neglecting to deal with mail. Around September 2008 Ms Farrow began to help him, opening and sorting mail and dealing with some business matters. He consulted a Dr Reynolds-Hutchison, a counsellor, in late 2008 after Ms Farrow had brought the statement to his attention and he had experienced an “emotional relapse”. She referred him to a General Practitioner, Dr Clarkeson. Dr Clarkeson’s patient records as at 6 November 2009 are exhibited to the applicant’s second affidavit. They reveal contact with the practice and Dr Clarkeson on 11 December 2008. There is reference to a prolonged court case, depression and prescription of “Avanza” tablets. The next reference is to contact on 24 December 2008, further prescription for “Avanza”. The next reference is to a contact on 14 June 2009 of being in limbo until he “finds a solicitor to handle his case”. Valium was prescribed. He also deposed to other stressful events occurring in 2007 and early 2008; being the subject of an enquiry by the Greyhound Racing Authority which had the potential to effect his income earning, the deterioration of his relationship with his pregnant partner throughout 2007, subsequent to the Magistrate’s Court proceedings. He also deposed to commencing to communicate with the respondent and the respondent’s solicitors in November 2008, and communicating with members of parliament, ombudsman and attempting to find a legal firm which would assist him in early 2009.
- [11]In an affidavit by Lorraine Burkett sworn 23 February 2010, Ms Burkett deposed to her friendship with the applicant and to downloading statement on 30 June 2007 at the same time she also downloaded material from a Dogzonline forum which contained comments about the applicant, references to the applicant and the court proceedings in the Magistrates Court. On the same date she telephoned the applicant. She told him what she had found and he told her that he had been found not guilty. He also told her he had a lot of other problems on his plate and sounded very stressed out. Ms Burkett was not cross examined about the content of her affidavit. However it was agreed between Counsel that what she was referring in her affidavit when she said she told the applicant what she had found, was that she told him about the statement and about the internet blog (the Dogzonline material) being the two documents which she subsequently posted to him. She told him that the statement she had found on the internet said that he had been found guilty. She posted the documents to him on 30 June 2007.
- [12]The applicant was cross examined about his recollection of what Ms Burkett told him on 30 June 2007. In answer to a suggestion that it was likely that Ms Burkett had told him about the existence of the Chiropractors Board statement, he said she didn’t mention the Chiropractors Board, she said that she had found comments. She had told him that she had found some stuff on the internet that he should look at and that he was found guilty.
- [13]In an affidavit by Sharon Farrow sworn 6 April 2010, Ms Farrow deposed to having met the applicant in February 2008 when he treated her dog. At that time he appeared positive and focussed on his business, but would seem depressed and irrational when forced to discuss and relive details of the prosecution by the respondent. This seemed to get worse at the end of 2008 after she had brought the statement on the internet to his attention. She had noticed a quantity of unopened mail in the applicant’s home and offered to assist him with his paperwork and general office administration. The applicant had told her he could not bring himself to open his mail. This was in September 2008. As part of the work she did, she opened and sorted mail which had piled up unopened, some for over a year. She sorted this mail which required her to read the mail sufficiently to understand what it was about and what attention it required. In October 2008, by use of the search engine Google, she searched the applicant’s name and as a result saw the defamatory material on the Office of Health Practitioners Registration Board website under the respondent’s letterhead. She brought it to the applicant’s attention and made him read it. In December 2009 subsequent to this application being before the Court she spoke to the applicant. He told her he remembered a female client in 2007 who phoned him not long after his acquittal in the Magistrate’s court telling him she had seen some things on the internet about him which were bad. She had told him she would print it out and send it to him. The applicant said he thought the woman’s name was Lorraine Summers. She then went to the files she had created in the applicant’s business and located a file for a Lorraine Burkett who had a dog named Summer. On opening the file she found, amongst other things, a printed copy of the statement which she had seen on the internet and the blog referred to above. She believed she was the person who opened the envelope which contained the documents in the file. She recalled seeing and briefly reading the documents when she was sorting out the applicant’s paperwork and mail.
- [14]An affidavit by one Charmaine Daly sworn 7 April 2010 was relied upon in the application. Ms Daly is a registered psychologist. Exhibited to her affidavit is a report dated 6 April 2010. It revealed she understood that the applicant was referred to her by a medical practitioner for the purposes of stabilising symptoms of stress. She first saw him on 11 March 2010 and on 2 subsequent occasions – 17 March and 23 March 2010. On that last occasion she was asked by the applicant to provide a report for the purposes of the application. She made it clear to him that any such report would not be done under expert witness conditions, but that she would provide a brief summary of sessions to date. She made it very clear she could not and would not express opinions about the presence or absence of psychiatric or psychological disorders and levels of incapacity or otherwise at any time prior or subsequent to the first session she had with the applicant on 11 March 2010. In her affidavit, she deposed that based upon the information supplied to her by the applicant, and the deep level of his rumination about the loss of his business, it was likely he had been depressed and anxious since his business activities began to suffer from his interaction with the respondent which she understood to be following the court proceedings in April 2007.
Discussion
- [15]The material before the Court establishes that the defamatory material was uploaded onto the respondent’s website on 17 April 2007 and that it was accessed by Ms Burkett on 30 June 2007 and by Ms Farrow in late October 2008. It is necessary then to consider the periods 30 June 2007 to 30 June 2008 and late October 2008 to late October 2009 as periods relevant to the application for extension of the limitation period.
- [16]One may feel sympathy for the applicant. As observed earlier the statement was false and was defamatory, and it may be inferred, likely to adversely impact the applicant’s business. Placing it on the website on 17 April 2007 was premature. Leaving it on the website subsequent to the applicant’s acquittal by the Magistrate was at the very least, careless.
- [17]However, that is not to the point. The Legislature has provided what the law is regarding the limitation period and what is required if it is to be extended. The onus is on the applicant.
- [18]The period from 30 June 2007 to 20 June 2008 was a period in which the applicant had been told of material on the internet which said he had been found guilty and the statement and blog on the internet had been printed and posted to him. During the whole of that period, the material on the internet was available to him, either by him looking at it himself or by reading what had been posted to him. The evidence simply does not establish that the applicant was under such disadvantage that his ability to ascertain and comply with the applicable time limit, was impeded to adapt what Keane JA (as he then was) said in Noonan at [23]. The evidence tendered about his mental state at various times before and after the Magistrate’s Court proceeding is a long way short of showing that between June 2007 and June 2008, his mental state was such that it was objectively not reasonable in the circumstances for him to commence an action for defamation.
- [19]The other period was from late October 2008 to late October 2009. The evidence shows the applicant consulted solicitors within that 12 month period, was informed about the limitation period, that an extension of the limitation period may be applied for, and did not pursue the matter any further at that point in time. The evidence also shows that he instructed his solicitors to take the matter further in September 2009, which was still within the 12 month period, but that was not done. It cannot be concluded that it was not reasonable in the circumstances for him to commence an action within that 12 month period.
- [20]The conclusions that I have just expressed mean that the application must fail. Once those conclusions are reached, then the Court has no discretion to do anything other than refuse the application.
- [21]The application is dismissed.
Footnotes
[1] At 553.