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Herdy v Targato[2019] QDC 39

DISTRICT COURT OF QUEENSLAND

CITATION:

Herdy v Targato [2019] QDC 39

PARTIES:

MONIQUE JILLIAN NATALIE HERDY
(applicant)

v

CARLY TARGATO
(respondent)

FILE NO/S:

D214/18

DIVISION:

Civil

PROCEEDING:

Originating application

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

28 March 2019

DELIVERED AT:

Maroochydore

HEARING DATE:

28 February 2019

JUDGE:

Long SC DCJ

ORDER:

Application dismissed.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – OTHER CAUSES OF ACTION AND MATTERS – where the respondent published a notification form to the Office of the Health Ombudsman on 3 November 2016 asserting that the respondent had formed a reasonable belief that the applicant had been practising her profession while intoxicated by alcohol or drugs – where the notification triggered an investigation by the Australian Health Practitioner Regulation Agency enquiring into whether the applicant had a physical or mental impairment, disability, condition or disorder that detrimentally affected or was likely to affect her capacity to practice in her profession – where the applicant contends that the notification was false and defamatory – where the applicant was advised on 14 December 2017 that no further action would be taken on the notification – where the applicant wrote to the respondent on 17 December 2017 advising that she would be instructing a legal adviser to commence defamation proceedings – where the applicant did not commence an action for defamation within one year of the publication date pursuant to s 10AA Limitation of Actions Act 1974 (Qld) – where this originating application was filed on 21 December 2018 – where  no claim or statement of claim has been filed in the court, or presented as ready to be so filed – whether it was not reasonable for the applicant to have commenced an action for defamation within one year after the respondent’s publication of the notification and, if so what extension of limitation period would be appropriate in the circumstances

LEGISLATION:

Health Practitioner Regulation National Law Act 2009 s 237

Health Practitioner Regulation National Law (Queensland) s 177(a)

Limitation Act 1969 (NSW) s 56A

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

CASES:

Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304

Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90

Houda v State of New South Wales [2012] NSWSC 1036

Mowen v The Morning Bulletin/APN & Ors [2013] QCA 36

Noonan v MacLennan [2010] 2 Qd R 537

Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175

Ritson v Gay and Lesbian Community Publishing Ltd [2012] NSWSC 483

State of Queensland v O'Keefe [2016] QCA 135

COUNSEL:

M White for the applicant

G Barr for the respondent

SOLICITORS:

Butler McDermott for the applicant

Brennans Solicitors for the respondent

The circumstances

  1. [1]
    On 21 December 2018 the applicant filed an originating application seeking, as the primary relief:

“That pursuant to s 32A of the Limitation of Actions Act 1974 (Qld) the limitation period for the Applicant’s claim for defamation against the Respondent be extended to 3 November 2019.”

  1. [2]
    The seeking of such an extension to a date later this year is consistent with the circumstance that there has been no such claim or statement of claim in support of it filed in the court, or even presented as ready to be so filed.
  1. [3]
    The cause of action which the applicant seeks to pursue is identified in her affidavit,[1]as being in respect of the publication of the notification form received by the Office of the Health Ombudsman, from the respondent on 3 November 2016 and in respect of the respondent’s interactions with and observations of the applicant on 21 October 2016, near to and in conjunction with her employment as a nurse in a medical practice at Nambour. Without at this stage any need to delve into the finer details of that notification, there was assertion that the respondent had formed a reasonable belief that the health practitioner had behaved in a way that constituted notifiable conduct, by practising the practitioner’s profession while intoxicated by alcohol or drugs. The applicant states:

“I consider the following imputations to be carried by the statements made by the respondent in the notification form:

  1. (a)
    that I had, on 21 October 2016, caused myself to become intoxicated at my place of work, during work hours, through the inhalation of the analgesic methoxyflurane (“Penthrox”), and by sniffing nail polish;
  1. (b)
    that my level of intoxication was such that I was singing, dancing, talking to myself and falling over in the staff bathroom; and
  1. (c)
    that I then continued to perform my clinical duties later that afternoon, which included the treatment of patients, within an hour of this incident, in an intoxicated state.”[2]
  1. [4]
    The applicant avers that such imputations are false and considered by her to be “highly defamatory to me and to my reputation as a health practitioner” and that the publication by way of the notification form by the respondent, triggered a comprehensive investigation process by the Australian Health Practitioner Regulation Agency (“AHPRA”), which involved the undertaking of enquiry as to whether she had a “physical or mental impairment, disability, condition or disorder that detrimentally affected or was likely to affect [her] capacity to practice in [her] profession.”[3]She further avers that:

“As part of the investigative process I was required to undergo a health assessment pursuant to section 169 of the Health Practitioner Regulation National Law (Queensland).”[4]

And avers that in the course of that she was subjected to urine, hair and blood drug and alcohol testing and screening and:

“The fact that I was compelled to participate in such in an invasive process as a health practitioner myself was very distressing, and deeply humiliating.”[5]

  1. [5]
    The applicant further avers to participation in a psychiatric assessment with a consultant psychiatrist and the requirement that she gather and provide materials in the form of statements and references from witnesses, patients and colleagues, in respect of the circumstances surrounding the allegations made in the notification form and her history of professional conduct as a nurse practitioner. It may be noted that in this context she avers that:

“The entire process undertaken by AHPRA was emotionally distressing and profoundly embarrassing to me in my capacity as a health care professional. Whilst I was ultimately vindicated by AHPRA’s finding, the hurt and distress I suffered was caused solely by the false and defamatory matters published by the Respondent in the notification form.”[6]

  1. [6]
    It is otherwise noted that:
  1. (a)
    The applicant deposes to first receiving a call, on 15 November 2016, from a person identifying them self as a representative of the Nursing and Midwifery Board of Australia, inquiring about her health and asking her questions regarding her fitness to practice as a nurse. And that, on 17 November 2016 she received an email from AHPRA which advised as to the receipt of the notification submitted to the Office of the Health Ombudsman;[7]
  1. (b)
    By letter dated 14 December 2017, the applicant was advised that, on 7 December 2017, the Queensland Notifications Committee of the Nursing and Midwifery Board of Australia had decided to take no further action under s 177(a) of the Health Practitioner Regulation National Law (Queensland);[8]and
  1. (c)
    On 17 December 2017, the applicant wrote to the respondent advising her, as she explained, that:

“(a) I considered the statements made by her in the Notification Form to have been purely fictitious, and published with the primary intent of causing me harm;

  1. (b)
    as a consequence of the Respondent instigating the process undertaken by AHPRA by her submitting the Notification Form, I have suffered considerable cost, inconvenience, embarrassment and degradation, continuing emotional distress, and loss of time and loss of opportunity;
  1. (c)
    I would be instructing a legal adviser to commence proceedings against the Respondent for defamation.”[9]
  1. [7]
    In the circumstances, it may be comfortably assumed that the damages intended to be sought by the applicant would be within the monetary limit on the jurisdiction of this court and that accordingly this court has jurisdiction to deal with the originating application.

The relief sought

  1. [8]
    The applicant seeks relief pursuant to s 32A of the Limitation of Actions Act 1974 (Qld), because of the concession that she has not complied with the requirements of s 10AA of the Limitation of Actions Act 1974 in that:

“An action on a cause of action for defamation must not be brought after the end of 1 year from the date of the publication of the matter complained of.”[10]

  1. [9]
    It is convenient to set out the terms of s 32A of the Limitation of Actions Act 1974:

“(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.

  1. (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.
  1. (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).
  1. (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.”
  1. [10]
    Leaving aside an issue that arose in the applicant’s written submissions and as to the admissibility of some material relied upon by the respondent, there are two issues to be decided:
  1. (a)
    The primary issue is as to whether the applicant can satisfy the court that it was not reasonable in the circumstances for her to have commenced her action for defamation within one year after 3 November 2016;
  1. (b)
    And secondly and if that primary issue is decided in favour of the applicant, it will be necessary to determine the extension of the limitation period which is to be appropriately allowed.

Primary issue – principles to be applied

  1. [11]
    The terms of s 32A of the Limitation of Actions Act 1974 are repeated in other enactments of the states of Australia as part of a national scheme. Accordingly it is appropriate to have regard to decisions of other state courts in respect of the cognate provisions and the Court was referred to some such decisions along with a number of Queensland decisions. It is appropriate to commence by noting the following acknowledgements in the more recent of the decisions of the Queensland Court of Appeal and to which was reference was made.
  1. [12]
    In Mowen v The Morning Bulletin/APN & Ors,[11]it was observed:

“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:

  1. (a)
    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];
  1. (b)
    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];
  1. (c)
    the test is objective — Noonan[20], Carey[48];
  1. (d)
    it is a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances — Rayney[41];
  1. (e)
    if the plaintiff proves the fact then the court is obliged to extend time. Extension in these circumstances is mandatory — Ahmed[28], Carey[45];
  1. (f)
    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 vMacLennan & 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.’”[12]

  1. [13]
    To that may be added the following further observations of Keane JA in Noonan v MacLennan:

Section32A(2)of theActproceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence an action to vindicate his or her legal rights in accordance with the time limits provided by law. Whiles32A(2)proceeds on this assumption, it is obvious that only in relatively unusual circumstances will a court be satisfied that it is not reasonable to seek to vindicate one's rights in accordance with the law. The burden is on a plaintiff to point to circumstances which make it not reasonable to seek to enforce his or her legal rights in the way required by the law.

One cannot seek to give an exhaustive list of the kinds of cases which might fall withins32A(2)of theAct,but other cases which come to mind are cases where a plaintiff is not able to establish the extent of the defamation or is without the evidence necessary to establish his or her case during the year after the publication. An action brought in such circumstances might be said to be speculative or irresponsible. In such cases it might be said that the commencement of proceedings and the incurring of costs would be so disproportionate to the prospects of success or to the quantum of damages which might have been expected to be recoverable as to render the commencement of proceedings unreasonable.”[13]

  1. [14]
    It is also desirable to observe that although in his judgment, Keane JA posited an alternative test for the application of s 32A(2) and as arguably more favourable to an applicant and to the effect that an extension of time might be allowed upon a court being “satisfied that it was reasonable in the circumstances for the plaintiff not to have commenced an action”,[14] which he indicated he did not favour as correct,[15] he nevertheless found that even such a more favourable test could not be satisfied by the respondent in that case.[16]It should be noted that not only was the test which Keane JA favoured, determined to be the appropriate test, as reflecting the actual wording of the provision, by the other judges constituting the Court of Appeal, it has consistently been adopted as the appropriate approach in subsequent cases. For instance, it may be noted that Holmes JA observed in Noonan v MacLennan:

“As Keane and Chesterman JJA have explained,s32Aof theLimitation of Actions Act 1974is an unusual provision. It requires more of an applicant for an order extending the limitation period for a defamation action than that he show that it would have been reasonable for him not to commence an action within the one year period; he must go further and establish something rather more difficult: that it would not have been reasonable for him to do so. I agree with their Honours that as the respondent in this case failed to adduce evidence meeting that requirement, the order at first instance should not have been made. Accordingly, I agree also with the orders their Honours propose.”[17]

  1. [15]
    This was the approach taken most recently in State of Queensland v O'Keefe,[18] where and after reference to some of the observations of Keane JA in Noonan v MacLennan,[19] it was further noted that:

Pingel v Toowoomba Newspapers Pty Ltd[2010] QCA 175 was another matter where the Court of Appeal considered whether there was any error in the granting of the extension to Ms Pingel to commence an action for defamation. Fraser JA stated at [34]:

“Under s 32A the answer to the question whether it was not reasonable in the circumstances for the plaintiff to have sued within the limitation period determines the result of an application for an extension of time. Noonan v MacLennan & Anor established that the test is an objective one. No element of judicial discretion is involved in the decision whether or not an extension should be granted.”

Applegarth J at [87] of Pingelsummarised the propositions from Noonan:

‘1. The burden is on the applicant for an extension of time to point to circumstances which make it not reasonable in the circumstances to have commenced an action within one year from the date of the publication.

  1. The circumstances that might give rise to an extension are left at large.
  1. The test posed by s 32A(2) is an objective one. It is not satisfied by showing that the applicant believed that he or she had good reason not to sue.
  1. If the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within the one year period, then it must extend the limitation period. Unlike other extension of time provisions, there is no discretion whether or not to extend time. A discretion exists as to the length of the extension to be granted which, in any event, may not exceed three years from the date of the defamatory publication.
  1. Thesection requires more of an applicant than to show that it would have been reasonable not to commence an action until after the one year period had expired: the court must be satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within the one year period.
  1. The circumstances must be sufficiently compelling to satisfy the court that it was not reasonable in the circumstances to commence an action within the one year period the law ordinarily requires litigants to commence proceedings.
  1. Section 32A of the Act proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence an action to vindicate his or her legal rights in accordance with that time limit.’

In Jamiesonv Chiropractic Board of Australia [2011] QCA 56, White JA at [20] cautioned against restating the unusual wording of s 32A(2) of the Act with different expressions that may carry different meanings of emphasis: compare Noonan at [48] and [51].”[20]

  1. [16]
    However, it is necessary to note that the decision of the Court of Appeal in State of Queensland v O'Keefe,[21]in dismissing the appeal, brought, with leave, from the primary decision which granted an extension pursuant to s 32A(2), involved:
  1. (a)
    initial identification that the primary judge had erred in the application of the appropriate test “by not applying the objective test under s 32A(2) of the Act to the circumstances that applied to Mr O'Keefe within the limitation period”, by specifically taking into account a development as to the circumstances which arose after the limitation period had expired;[22] and
  1. (b)
    determination, after particular reference was made to Houda v State of New South Wales,[23] and particular notation of the practical wisdom of consideration of not just the known elements of a cause of action but also any likely defences to such an action and accordingly the potential significance of any unresolved criminal charge, where there is a “significant overlap” between the charge and the alleged defamatory statements, that:

Even giving weight to the policy reason that underpins the limitation period of one year, Mr O'Keefe has discharged the onus he bears to show it was not reasonable due to the criminal charge arising out of the same factual matrix that resulted in the alleged defamatory statements in addition to his suspension for him to have commenced the proceeding for defamation before the expiry of the limitation period.”[24]

And by way of apparent elaboration of the perceived significance of such circumstances (for the subsequent purpose of determining the extension to be granted), it was later observed:

“It would not have been reasonable for Mr O'Keefe to pre-empt the outcome of the criminal proceeding by prematurely commencing the civil proceeding for the defamation claim involving much the same allegations.”[25]

  1. [17]
    Finally and notwithstanding the requirement as to an objective examination of the circumstances pertaining to the opportunity of an applicant to have commenced the action within the limitation period, it may also be noted that the decided cases typically proceed by having regard to the reasons or contentions made by the applicant for not doing so.

Primary Issue - Discussion

  1. [18]
    In the first instance, the applicant seeks to align her circumstances with those of the respondent in State of Queensland v O'Keefe, by reference to her involvement in the disciplinary or regulatory investigation which followed the notification made by the respondent. Secondly, she contended that the expectation or prospect of vindication of a position by that regulatory process is a relevant consideration.
  1. [19]
    As to the second contention, the applicant deposes:

“I expected that my claim against the Respondent for defamation would be vindicated by the outcome of AHPRA’S enquiry.”[26]

However, there is no objective justification for such a conclusion.

  1. [20]
    First, it attempts a misapplication of the following further observations of Keane JA in Noonan v MacLennan:

“[16]  Some assistance in understanding the legislative intention which informs s 32A(2) may be gleaned from div 1 of pt 3 of the Defamation Act 2005 ("the Defamation Act") which provides for procedures involving "an offer to make amends" by a potential defendant to a defamation claim in response to the giving of a "concerns notice" by a potential plaintiff. These procedures are intended to resolve civil disputes without recourse to litigation. In this context one can understand that s 32A(2) of the Act is apt to encompass a case where the plaintiff has been engaged in the pursuit of non-litigious processes to vindicate his or her rights. In such a case, it may well be unreasonable to disrupt those processes and to incur needless expense by commencing proceedings.”[27]

It may be seen that it is the vindication of the rights of an applicant in respect of a cause of action in defamation, rather than the sense of vindication as to the falsity of the publication, which is identified as the subject of those observations.

  1. [21]
    Moreover and as the respondent correctly contends:
  1. (a)
    The applicant was well aware of the notification, soon after it was made and is noted to have described, in her responses to the notification made in November 2016, the details of the notification to be “so inaccurate as to be almost fictitious”;[28]
  1. (b)
    The applicant has not and is unable, to point to any right she may have had in respect of the AHPRA investigation, which may have been abrogated by commencement of an action for defamation;[29]
  1. (c)
    Neither is there or could there be any circumstance, such as was expressly noted in Houda v State of New South Wales,[30]where the prospective action and the assessment of the wisdom or reasonable prospects of a prospective action, including as to defences of justification or truth, may have resulted from the outcome of the disciplinary proceedings.[31]
  1. [22]
    In short, there is not the necessary sense of “overlap”, primarily because of the nature and purpose of the investigative process involved in the regulatory proceeding. As the applicant herself describes,[32]that process entailed an enquiry as to whether she had any “physical or mental impairment, disability, condition or disorder (including a mental illness) that detrimentally affects or is likely to detrimentally affect her capacity to practise the profession”.[33]The decision notified to the applicant, by letter dated 14 December 2017, was “to take no further action under section 177(a) of the Health Practitioner Regulation and National Law, as in force in Queensland”.[34]
  1. [23]
    Further and as the respondent notes in respect of the Applicant’s reliance upon the requirement for her to undergo a heath assessment pursuant to s 169 of the Health Practitioner Regulation and National Law (Qld), as part of the cumulative effect of the process upon her, this is specifically noted as being prompted by the following circumstances:

“The Committee considered the inconsistencies in the information provided by the practitioner when compared with her medical records and the other documents provided which raised sufficient concerns to indicate she has a physical or mental impairment, disability, condition or disorder that detrimentally affects, or is likely to detrimentally affect, her capacity to practise the profession. The practitioner was therefore referred for a heath assessment on 8 March 2017 as well as urine and drug screening and hair testing on 31 March 2017.”[35]

  1. [24]
    It may be further noted that the regulatory rather than inter-party nature of the processes that may be engaged by a notification made under the Health Practitioner Regulation National Law Act 2009 informs the following provisions in s 237 of that Act:

237 Protection from liability for persons making notification or otherwise providing information

  1. (1)
    This section applies to a person who, in good faith—
  1. (a)
    makes a notification under this Law; or …
  1. (2)
    The person is not liable, civilly, criminally or under an administrative process, for giving the information.
  1. (3)
    Without limiting subsection (2)—
  1. (a)
  1. (b)
    no liability for defamation is incurred by the person because of the making of the notification or giving of the information.”
  1. [25]
    In these circumstances, the applicant has not satisfied the court that it was not reasonable for her to have commenced her proposed action for defamation, within the period of one year after the respondent’s publication of the notification on 3 November 2016.

Considerations as to an allowable extension

  1. [26]
    Whilst that conclusion necessitates the refusal of this application and notwithstanding the difficulty as to the absence of a contrary conclusion as a basis for doing so, it is nevertheless appropriate to make some observations as to the extension that might conceivably have been allowed, if a different conclusion had been reached.
  1. [27]
    The additional question that may arise under s 32A(2) has been described as an exercise of discretion, or a normative exercise.[36]
  1. [28]
    An immediate difficulty is that the provisions of s 32A provide no assistance as to how an appropriate period of extension might be determined, apart from providing that:
  1. (a)
    If satisfied it was not reasonable for the action to have been commenced within the limitation period, then the court “must” extend the limitation period mentioned in s 10AA (one year): s 32A(2);
  1. (b)
    An outer limit of three years is provided, in that the court may only extend the limitation period “to a period of up to three years from the date of publication”: s 32A(2); and
  1. (c)
    Application for such an order may be made and the order made “even though the limitation period has already expired”: s 32A(4).
  1. [29]
    Some considerable assistance is to be found, in this regard, in the judgment and extensive discussion of the issue, as it arises in the equivalent provision in s 56A of the Limitation Act 1969 (NSW), in Barrett v TCN Channel Nine Pty Ltd.[37]In the judgment of McColl JA (with whom, Simpson and Payne JJA effectively agreed), it is noted that:
  1. (a)
    “[t]he contestable area turns on how the court is required to exercise the obligation to extend the limitation period”;[38]and this was noted (at fn 46) to be despite the recognition of an otherwise arguable proposition that “must” in s 56A(2) “should be read as conferring a discretion”.
  1. (b)
    “the period of the extension which the court must grant is at large, save to the extent that it must not exceed three years from the date of publication.”;[39]and
  1. (c)
    the favoured interpretation of s 56A(2) “gives effect to the proposition that extension provisions are an exception to the general rule, permitting the court to alleviate the injustice a plaintiff may face by the imposition of an inflexible limitation period, but weighing that against, amongst other matters, the prompt commencement and prosecution of defamation proceedings”, which “rationale does not disappear once the not reasonable test is satisfied”.[40]
  1. [30]
    Accordingly, that appellant’s contention that it was simply a matter of extension to the date whereby the plaintiff had commenced the action, was not accepted, with the further observations:

“[82]  In my view, s 56A(2) confers an unfettered discretion as to the length of the extension of the limitation period, a discretion confined only by the scope and purposes of the Limitation Act, in the latter respect being confined to the extent any extension cannot exceed three years from the date of publication, and also by the requirement that the discretion be exercised in the context of the rationales for the existence of limitation periods.

[83]  I accept that there may be seen to be some irony in s 56A(2) mandating an extension of the limitation period, but allowing for a discretion as to the length of the extension, exercise of which may lead to an extension which falls short of that which will permit the action to proceed. As McCallum J has observed of the discretionary approach, “in some circumstances, the section mandates the making of an order which has no efficacy.”

[84]  However, first, as I have said, there are other provisions of the Limitation Act which have a similar structure. Secondly, an interpretation of s 56A(2) which confers a discretion as to the period of any extension of the limitation period recognises the public interest in the speedy determination of defamation actions inherent in the s 14B one year limitation period. Thirdly, conferral of a discretion accepts that the applicant will have satisfied the court that it was not reasonable for him or her to have commenced defamation proceedings in the one year limitation period. The defendant, on the other hand, has been deprived of the benefit of the plaintiff’s cause of action having been extinguished by the operation of s 63 of the Limitation Act. The court is then given an unfettered discretion, to be exercised in the manner I have explained, which enables it to take those competing factors into account, albeit not confining its consideration in that respect.”[41] (citations omitted)

And after examining various considerations as to the implications of the appellant’s contention and noting guidance to be obtained from authorities dealing with the more general approach to limitation period provisions,[42] and some principles of statutory interpretation, it was concluded:

“[91]  In short, it would be contrary to the scope and object of the Limitation Act to adopt an interpretation of s 56A(2) which paid no consideration to the expiry of the limitation period, or the fact that any extension of that period imposes a new legal liability on the defendant and, in effect, without more, rewards the applicant by extending the limitation period to whenever he or she chooses to commence the proceedings.

[92]  The conclusion I have reached is supported by the interstate authorities discussed below with which I agree, save to this extent that, as will be apparent, I do not agree with Chesterman JA’s reasons in Noonan, to the extent that his Honour appears to have held that the extension discretion is constrained by the not reasonable test. That interpretation, in my view, imposes a fetter on the exercise of what, as I have explained, should be an unfettered discretion. A gloss should not be placed on the generality of the s 56A(2) discretion which would detract from the words of the provision by seeking to restrict the circumstances in which it should be exercised.”[43]

  1. [31]
    Then and after a review of authority including the Queensland cases, in which the question as to the period of allowable extension has been considered, McColl JA finally concluded:

“[106]  My conclusion that s 56A(2) confers an unfettered discretion as to the length of any extension of the limitation period does not, of course, mean that it is never open to a court to consider as a relevant factor the period within which it was thought unreasonable for a plaintiff to have sued, by reference to when the proceedings were actually commenced. That is one way of considering the need to commence actions promptly. It follows from my interpretation of s 56A(2), with respect, that the primary judge erred to the extent that he applied the Noonan test. However, his Honour reached the same conclusion by applying a general discretion in terms which conform to that I have identified. In my view, the Court could not hold that his Honour’s exercise of his discretion was “definitely extraneous to any objects the legislature could have had in view” in enacting s 56A. It is not, accordingly, necessary to re-exercise it.”[44] (citation omitted)

  1. [32]
    It remains to note that Simpson JA agreed with both the reasons of McColl JA and the additional reasons of Payne JA, which additional reasons Payne JA described as “not intended to be inconsistent with” the reasons of McColl JA. But those additional reasons included the following observations:
  1. “[110]
    The construction of s 56A(2) of the Limitation Act proposed by the appellant is inconsistent with the text of the section in its context as an exception to the period of limitation of one year provided by s 14B of the Limitation Act. That statutory exception has correctly been described as applying “only in relatively unusual circumstances”: Noonan v MacLennan (2010) 2 Qd R 537; [2010] QCA 50 per Keane JA at [15].

[111] The appellant’s construction gives no work to do to the phrase “up to 3 years” appearing in s 56A(2). Having satisfied the “not reasonable to have commenced” test throughout the initial period of 12 months, the appellant’s construction would have the effect that the Court was then bound to extend the limitation period for a plaintiff during whatever period that plaintiff chose to commence proceedings, subject only to an outer limit of three years. That would be so, regardless of the circumstances in which that subsequent delay occurred. I would reject that construction as giving no work to the words “up to” to do, in the context of a scheme of provisions plainly designed to encourage the timely resolution of defamation disputes.

[112]  Where, as in the present case, the court was faced with an unexplained delay of five months after the time that the plaintiff was aware of all the matters relating to the alleged defamation and had access to legal advice about possible causes of action, the appellant’s construction would have the effect that the primary judge was bound to treat as irrelevant that unexplained delay of five months in commencing proceedings. I would strain to avoid that result.

[113]  Further, the construction of s 56A of the Limitation Act proposed by the appellant is also inconsistent with intermediate appellate authority from Queensland and Victoria about a provision which is part of uniform model provisions in relation to the law of defamation. Subject to the exceptions explained by McColl JA at [15], all of the States except Western Australia have adopted a provision in substantially the same form as s 56A(2). I would only depart from the construction of that provision identified in the Courts of Appeal of Queensland and Victoria if satisfied that those decisions were clearly wrong. To the contrary, I regard those authorities as correctly decided.”[45]

And, after specific reference to the summary of applicable principles in Pingel v Toowoomba Newspapers Pty Ltd[46] and the State of Queensland v O'Keefe,[47] it was further observed:

  1. “[116]
    With regard to the discussion of Noonan by the primary judge in this case, I doubt that Chesterman JA was intending to express any different test in Noonan to that explained by Applegarth J in Pingel and Mullins J in O'Keefe, but as McColl JA points out, Chesterman JA’s statement is in any event obiter. The later Queensland authorities are clear and the exercise of the discretion in a way consistent with that identified by McColl JA is part of the ratio of O'Keefe.

[117]  In the Victorian Court of Appeal in Casley v ABC [2013] VSCA 182, Hansen JA, with whom Robson AJA agreed, rejected a like submission to that made by the appellant in the present case:

“[73] The difficulty confronting this submission is the requirement stated by the High Court that intermediate appellate courts should not depart from the decision of an intermediate appellate court in another jurisdiction on the interpretation of uniform national legislation unless convinced that that interpretation is plainly wrong. In my view the impugned construction, that there is a discretion as to the length of an extension, is not plainly wrong. It would be a curious result, and one seemingly not consistent with the intention of the uniform law, that on the test in s 23B(2) being satisfied, the limitation period be extended for the whole three year period. That would be open on the applicant’s submission, even if such an extension went beyond the time within which, acting reasonably, a proceeding might be commenced. That would seem to deny operation to the words ‘up to’, and could well operate to allow a potential plaintiff a period of time within which to commence a defamation proceeding that was greater than the limitation period of one year.” (footnotes omitted)

[118]  I respectfully agree with Hansen JA’s analysis of the equivalent Victorian provision. I also agree with the reasons of McCallum J in Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611 at [37] which I regard as consistent with the test described in the intermediate Courts of Appeal cited above.”[48]

  1. [33]
    The application of such principles provides no support for a submission made for the applicant, that there should be a minimum period of extension of one year, and neither is such to be found in the reference to the obita dictum of Chesterman J in Noonan v MacLennan.[49]  In any event, that would not suffice for the applicant here. The effect of the applicant’s position is no different to the rejected position of the appellant in Barrett v TCN Channel Nine Pty Ltd, except that here the choice as to the timing of commencement of proceedings has not yet occurred.
  1. [34]
    The essential difficulty for the applicant is that her materials provide no explanation as to why no proceeding has yet been commenced or even formulated. And there is simply no explanation as to what has occurred since she wrote to the respondent on 17 December 2017, except that this application was prepared and filed on 21 December 2018.
  1. [35]
    In this respect the applicant’s position stands in stark contrast to those in the decision to which she seeks to align herself. In State of Queensland v O'Keefe, it was noted that “[t]he date to which the limitation period was extended was two weeks after the order granting the extension” and that the claim and statement of claim had been filed by that date,[50] and concluded that a like exercise of discretion was appropriate in circumstances where:

“The delay between the advice given by the DPP in May 2015 that the prosecution would not proceed and bringing the application to extend the limitation period was satisfactorily explained by the steps taken on Mr O'Keefe’s behalf in connection with his suspension from the QPS and seeking advice from counsel on pursuing the claim for defamation.”[51]

 It had earlier been noted that the application had been heard on 20 August 2015, with an extension being granted to 3 September 2015[52]:

“Mr O'Keefe’s solicitor sought advice from counsel in July 2015 about the  defamation claim. The application seeking the extension of time to bring the defamation claim was then filed on 13 August 2015.”[53]

  1. [36]
    Accordingly and in these circumstances and in any event, it would not have been appropriate to have granted any extension to the application which may have allowed her to commence the proceeding.
  1. [37]
    Such conclusion makes it unnecessary also to deal with the material contending prejudice to the respondent’s position, consequently upon the applicant’s delay, nor with the ultimate concession for the applicant that such material might be relevant to the exercise of “discretion” pursuant to s 32A(2) of the Limitations and Action Act 1974.[54]However, it may be noted that, as was clarified in the course of hearing for the applicant, there is difficulty in pointing to anything in the enquiries made by the solicitor for the respondent and since the filing of this application and as to the availability of potentially confirmatory evidence as to the conduct of the applicant on 21 October 2014 and which led to the applicant’s notification to the regulatory authority, had occurred after the end of the limitation period allowed by s 10AA of the Limitations of Actions Act 1974. And there is some obvious difficulty in contending that the potential availability of a defence pursuant to s 237 of the Health Practitioner Regulation National Law Act 2009 is, relevantly, such a matter of prejudice to be so taken into account.

Conclusion

  1. [38]
    Accordingly, the application should dismissed, with the parties to be heard as to any further orders.

Footnotes

[1]  Affidavit of MJN Herdy filed 21/12/18.

[2]  Ibid at [10].

[3]  Ibid at [11]-[13].

[4]  Ibid at [16].

[5]  Ibid at [17].

[6]  Ibid at [28].

[7]  Ibid at [4]-[6] and Ex. MJNH-1.

[8]  See MJNH-2 at p 9.

[9]  Affidavit of MJN Herdy filed 21/12/18 at [29].

[10]  It is conceded that that period was likely to have ended on 3 November 2017.

[11]  [2013] QCA 36.

[12]  Ibid at [6].

[13]  [2010] 2 Qd R 537 at [15] and [17].

[14]  Ibid at [21].

[15]  Ibid at [18].

[16]  Ibid at [21].

[17]  Ibid at [30].

[18]  [2016] QCA 135.

[19]  Ibid at [16]-[19], with particular reference to Noonan v MacLennan [2010] 2 Qd R 537 at [15], [17], [20] and [22].

[20]  Ibid at [20]-[22].

[21]  Ibid.

[22]  Ibid at [26]-[27].

[23]  [2012] NSWSC 1036.

[24]State of Queensland v O'Keefe [2016] QCA 135 at [34].

[25]  Ibid at [37].

[26]  Affidavit of MJN Herdy filed 21/12/18 at [24].

[27]  [2010] 2 Qd R 537 at [16].

[28]  See Ex. MJNH-2 at p 12 at v.

[29]  Cf. Houda v State of New South Wales [2013] NSWSC 1036 at [27].

[30]  Ibid at [19], [23], [24]-[25] and [35].

[31]  Cf. s 80, Evidence Act 1977 (Qld).

[32]  Affidavit of MJ N Herdy filed 21/12/18 at [13].

[33]  See Ex. MJNH-2 at p 9.

[34]  Ibid.

[35]  See Ex. MJNH-2 at p 13 at f.

[36]Noonan v MacLennan [2010] 2 Qd R 537 at [47]; Ritson v Gay and Lesbian Community Publishing Ltd [2012] NSWSC 483 at [24]-[25]; Mowen v The Morning Bulletin/APN & Ors [2013] QCA 36 at [6]; Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90 at [55].

[37]  [2017] NSWCA 304.

[38]  Ibid at [73].

[39]  Ibid at [75].

[40]  Ibid at [81].

[41]  Ibid at [82]-[84].

[42]  Including Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

[43]Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304 at [91]-[92].

[44]  Ibid at [106].

[45]  Ibid at [110]-[113].

[46]  [2010] QCA 175 at [87].

[47]  [2016] QCA 135 at [35]-[37].

[48]Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304 at [116]-[118].

[49] [2010] 2 Qd R 537.

[50]  [2016] QCA 135 at [36].

[51]  Ibid at [37].

[52]  Ibid at [2].

[53]  Ibid at [10].

[54]  From what has been noted above and as to the more recent authority upon the approach to provisions such as s 32A(2), there may remain a question as to how any aspect of prejudice to a respondent’s position is able to be taken into account. As was noted in Pingel at [87], unlike other extension of time provisions “there is no discretion whether to extend time”, rather “[a] discretion exists as to the length of the extension”.

Close

Editorial Notes

  • Published Case Name:

    Herdy v Targato

  • Shortened Case Name:

    Herdy v Targato

  • MNC:

    [2019] QDC 39

  • Court:

    QDC

  • Judge(s):

    Long DCJ

  • Date:

    28 Mar 2019

Appeal Status

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