Casburn v Dick[2021] QDC 336

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:   On 15 December 2021, the applicant, Joanne Casburn, filed the originating application by which this proceeding was commenced.  In that application, she seeks, among other things, an order pursuant to 32A of the Limitations of Actions Act 1974 extending the limitation period or periods for causes of action for defamation to 7 January 2022.  She also seeks consequential orders giving her leave to file a claim and statement of claim on or before 7 January 2022 notwithstanding the Court vacation and other consequential orders. 

The background to the application is that the applicant contends that, by two emails sent on 7 January 2019 and 7 February 2019 by the respondent to another officer within the Australian Taxation Office, which is the employer of both the applicant and the respondent, the respondent made a large number of defamatory statements about the applicant.  It is alleged, in the proposed statement of claim that is exhibited to Ms Casburn’s affidavit filed in support of the application, that not only were those statements defamatory, but they effectively led to her being demoted and thus losing a substantial portion of her salary and employment benefits, as well as, of course, causing her substantial distress. 

Section 10AA of the Limitations of Actions Act provides:

An action on a cause of action for defamation must not be brought after the end of a limitation period of one year running from the date of the publication of the matter complained of. 

Of course, this application seeks, effectively, to extend that period pursuant to section 32A of the Limitation of Actions Act.  Section 32A of that Act as it currently stands, was introduced into the Act by the Defamation (Model Provisions) and Other Legislation Amendment Act 2021.  By section 2 of that Act, it commenced on 1 July 2021, at least so far as is relevant to this proceeding.  Section 50 of the Limitation of Actions Act provides that the amendments made to section 10AA and section 32A, as amended by the Defamation (Model Provisions) and Other Legislation Amendment Act 2021, apply in relation to the publication of defamatory matter after the commencement of the section.  It is clear from that provision that the amended section 10AA and, most relevantly, the amended section 32A of the Limitation of Actions Act do not apply to this application or the proposed proceeding for defamation, because the proposed proceeding concerns the publication of defamatory matter well before the commencement of the new sections. 

That means that I should consider the application for the extension under section 32A as it stood before it was amended in July this year.  That section, section 32A of the Limitation of Actions Act, then read as follows:

1. (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. (2)The Court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the date of publication, extend the limitation period mentioned in section 10AA for a period of up to three years from the date of the publication.
3. (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. (4)An order for the extension of the limitation period and an application for an order for the extension of the limitation period may be made under this section even though the limitation period has already ended.

That last subsection, of course, means that this application may be heard and determined by this Court, notwithstanding that the limitation period in respect of these two alleged defamatory publications expired or ended in January and February 2020 respectively. 

The first question for the Court to consider, therefore, is whether it is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matters complained of within one year from the dates of publication.  That question has been the subject of quite considerable comment and construction by the Court of Appeal in particular.  In Noonan v MacLennan [2010] 2 Qd R 537, Justice Keane said at 15 that:

Section 32A(2) 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 the time limits provided by law and 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. 

At paragraph 17, his Honour said the following:

One cannot seek to give an exhaustive list of the kinds of cases which might fall within s 32A(2) of the Act, 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.

As his Honour also mentioned at paragraph 20, the test is an objective one and, when s 32A(2) refers to “the circumstances”, it means the circumstances as they appear objectively to the Court and not the circumstances which the plaintiff believed, however unreasonably, to exist.

In Pingel v Toowoomba Newspapers Proprietary Limited [2010] QCA 175 at 87, Justice Applegarth summarised the relevant propositions.  I refer to those and I am familiar with those and have reread them for the purpose of this application and I shall not read them out.  But they have been accepted by Courts later.

It has also been said by the Court of Appeal that, in determining the answer to the question under subsection (2) of that section, the Court must have regard only to the circumstances during the relevant one-year period.  It should not have regard in determining that question to any circumstances outside the limitation period.  That was made clear by the Court of Appeal in State of Queensland v O'Keefe [2016] QCA 135 at [126].  In that case in particular, it was an error of law, according to the Court of Appeal, that the primary judge considered that a position adopted by the respondent in the appeal’s solicitors during the limitation period was reasonable in the light of what was disclosed after the expiration of that period. 

The first question, therefore, for me to determine is whether I am satisfied that it was not reasonable in the circumstances for the plaintiff – or the applicant today - to have commenced an action in relation to the matters complained of within one year of the dates of the publications.  The reasons given by the applicant’s counsel, Mr Amerena, for me to reach that conclusion are effectively that, during that period, the applicant was not aware of either publication, for a start and, although parts of the publications were copied in a document that was provided to her as part of a review of her position by senior officers in the Australian Taxation Office, the document that was provided to her said that the complaints – or the comments made about her - both positive and negative, in the review process had been made by at least 12 participants, only one of whom was the respondent. 

None of the comments was identified by reference to the speaker or provider of the information and, therefore, it would not have been possible for the plaintiff to commence proceedings based upon the document provided to her, or it would have been unreasonable for her to do so given that she would have had no idea who out of at least the 12 people named had made the comments about her.  Even if she were to assume that it was a person or persons senior to her who had made the allegedly defamatory comments, there were at least two persons listed, both the respondent and another person, who were senior to her and it would have been unreasonable for her to have commenced a proceeding against both of them, suing them in the alternative in respect of each of the alleged defamatory publications.

The first time when the plaintiff saw the emails the subject of the proposed proceeding was when she obtained them in the course of proceedings in the Administrative Appeals Tribunal, which was only in October 2021.  She was conscious at that stage, she deposes, that she was not entitled to use the documents which she had received as part of that process for any reason other than the purposes of that proceeding.  It was therefore necessary for her to make an application under the Freedom of Information Act (Cth) to obtain documents including those that are the subject of the proposed proceeding.  She received those documents under the Freedom of Information Act on 7 December 2021.  It was only then that she was able to obtain legal advice about them and to commence the steps that have led to the filing of this application. 

Mr Amerena took me to the existing section 32A - that is, the section as it has been since July this year – as indicating the sorts of factors which might be taken into account by the Court in determining whether to extend the limitation period and, if so, for how long.  It has been helpful for me to consider the matters in that light but I should consider the questions really in the light of the Act as it was and as it applies to this application.  But I accept that, in considering whether or not any extension should be for any particular period, I should take into account the reasons for the plaintiff’s delay and the length of that delay, when the plaintiff became aware of the publications and what she did after becoming aware of them. 

That goes not to the question of whether it was not reasonable in the circumstances for the plaintiff to have commenced an action within the one year, but to whether, if I am satisfied of that, I should order any extension and, if so, for how long.  In answer to the first question, I am satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matters complained of within one year from the dates of the publications.  Therefore, under section 32A(2), as it applies to this proceeding, I must extend the limitation period mentioned in section 10AA to a period of up to three years from the date of the publications. 

That gives rise then to the question of how long I should extend the limitation period.  In that respect, in King v Comiskey Management Services Proprietary Limited [2020] QCA 229, Justice Fraser, with whom Justices McMurdo and Jackson agreed, said this at [14]:

The object of the discretion about the length of the extension is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to the officer’s view of the justice of the case, including looking at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.  Factors that may be taken into account as support for an extension of sufficient length to allow the prosecution of a claim include the necessary finding that it was not reasonable for the applicant to have commenced an action within the limitation period of one year and any other circumstance indicating that the applicant may suffer an injustice if the necessary extension is not granted.

Factors that may be taken into account in opposition to an extension of the necessary length include the public interest and the prompt determination of defamation actions and that, the limitation period having expired, any extension of that period will impose a new legal liability on the respondent to the application.  It is for the judge considering the appropriate length of an extension of time to decide upon the weight to be given to the relevant factors in the particular circumstances of the case as revealed by the evidence.

Obviously, if I were to grant an extension of time for some period that expires or would have expired before the hearing of this application, that would be useless and would defeat the purpose of the section.  I am obliged to grant an extension of time and it seems to me that, in the exercise of my discretion as to length of that time, I must take into account how much time remains available, up to the maximum of three years, for the proposed plaintiff to commence the proceeding.  I should also take into account the steps that the plaintiff has taken and the circumstances in which she discovered the allegedly defamatory publications and what she has done since that discovery.  I have already canvassed some of those issues. 

Of course, if I did not extend the period of limitation accordingly, then the plaintiff would lose any rights she might otherwise have had.  That is a considerable factor relevant to the exercise of my discretion.  But, as Mr Amerena quite properly observed, I must also consider the respondent’s position and whether he would be prejudiced in any way should I grant an extension that effectively enables the applicant to bring the proceeding against him.  Of course, one factor was that pointed to by his Honour Justice Fraser, namely, that to grant an extension would be to impose a new legal liability on the respondent that does not currently exist, or at least the risk of a new legal liability, which risk does not presently exist as a result of the limitation periods having expired. 

Most relevantly, though, the question is, if the limitation were extended, how prejudiced would the respondent be in obtaining a fair trial of the proceeding.  Mr Amerena submitted that there was no or very little, if any, prejudice to the respondent in this case for the following reasons.  First, the alleged defamatory statements were in writing and they are to be exhibited to the proposed statement of claim.  There is no question of whether something was said orally that may or may not be defamatory or what, in fact, was said.  Secondly, the applicant commenced Fair Work proceedings in the Federal Court of Australia, seeking a reinstatement, having been demoted, and other relief.  That gives rise to issues about the basis upon which she was demoted, including any complaints about her conduct and it must have had the effect, submitted Mr Amerena, of ensuring that any documents about the overall dispute, including all background documents to the complaints about her, would have been retained and, one might think, would have or will be disclosed or discovered in the Federal Court proceeding.  Furthermore, the applicant, who has been employed by the Australian Taxation Office for many years, gives evidence that she has knowledge of the taxation office’s record-keeping systems.  Years’ worth of historical emails, memoranda and other documents are stored securely by the tax office, either electronically or in hard copy, and she would estimate that at least the last seven years’ of all documents relevant to her proposed defamation proceeding would be safely secured by the ATO. 

I think that is inevitable.  The Australian Taxation Office would keep documents for a very long time, if not forever, given the nature of that office and also given its obligations under the Commonwealth Archives Act.  Therefore, any documents that are relevant to the allegations made by the applicant or to any defences that may be raised by the respondent in a proceeding would be accessible or available, even if only by non-party disclosure or other means, to both parties so as to enable full airing of the facts or allegations that had been made over time. 

Mr Amerena also pointed out that, even to the extent that some matters upon which, perhaps, the defendant might rely would be discussions that took place between officers of the Australian Taxation Office or other persons - and one must accept that memories fade over time - the oldest of such discussions would, at most, have occurred in, say, 2016.  It is frequent that in this Court or any Courts, evidence is given of discussions that occurred many years before and there is no basis for believing that any particular witness has died or is unable to give evidence and, particularly, the defendant and other witnesses upon whose evidence he might wish to rely. 

It would be, as I have said, useless for this Court to extend the limitation period to some date earlier than today.  The first of the limitation periods expired on or about the 7^th of January 2020.  The reason for this application having been brought and brought on for hearing promptly is that the maximum period of extension that this Court could grant would expire on 7 January 2022.

The statement of claim the applicant proposes to file and the claim are exhibited to her affidavit and, on a quick reading of those documents, it seems to me that they are properly pleaded so as to raise appropriately arguable causes of action.  In those circumstances, it seems to me appropriate to extend the period of time, especially given that the registry of this Court is closed until 4 January 2022, to 7 January 2022.

A couple of other matters require consideration before I make any orders, however.  The first is whether it is necessary for this Court to grant leave to the applicant to bring proceedings notwithstanding that she has only recently provided a concerns notice to the respondent.  Section 12B of the Defamation Act now provides that a person cannot commence defamation proceedings unless the person has given the proposed defendant a concerns notice and the applicable period for an offer to make amends has elapsed, that period being 28 days from receipt of the concerns notice.  Under subsection (3) of that section, the Court may grant leave for proceedings to be commenced, despite the fact that that the period has not expired, only if the proposed plaintiff satisfies the Court of one or other of two things.

Section 12B, however, was introduced by the Amendment Act to which I have referred, which commenced on 1 July 2021.  Section 50 of the Defamation Act, also introduced by the Amendment Act, provides, similarly to section 50 of the Limitation of Actions Act, that an amendment made to this Act by the Amendment Act applies in relation to the publication of defamatory matter after the commencement of the amendment.  I am satisfied therefore that section 12B as it currently exists is not applicable to this proposed proceeding and it is unnecessary for me to consider whether to grant leave, because the subsection preventing an aggrieved person from commencing defamation proceedings unless the matters set out therein have been complied with does not apply.

The final matter I should consider is the fact – which, perhaps, I should have considered first – that the respondent is not here.  The respondent is not here because it seems unlikely that this proceeding has been drawn to his attention.  Mr Amerena submitted that I should accept that he has been informally served in a manner described in rule 117 of the Uniform Civil Procedure Rules because, as the plaintiff deposed, she sent a copy of the originating application and a copy of her affidavit with all its exhibits to him at his email address at the Australian Taxation Office.

She did so in circumstances where, on 14 December 2021, she received an email said to be from the respondent but the subject of which was “Automatic Reply.”  That email said:

I am currently on leave and will be returning to the office on Monday 10 January 2022.

It went on to say that another person would be stepping in during that period, and his EA –which I interpret as meaning executive assistant – would be monitoring his inbox during his leave and directing emails to the most appropriate contact.  On 17 December 2021, the applicant’s solicitors sent an email to the respondent’s email address at the Australian Taxation Office that attached a copy of the sealed originating application, a concerns notice and an unaffirmed affidavit by the applicant in terms of the affidavit that was ultimately filed on 17 December 2021.  Ms Casburn deposes in her affidavit that, as an employee at his level, the respondent is able to access his home or work computers and his work mobile phone for all communications made to his work email address and also that his executive assistant is efficient and diligent and, as she would be monitoring his inbox, she would have ensured that this correspondence was promptly brought to Mr Dick’s attention.

Mr Amerena submitted that I should accept therefore that Mr Dick has been informally served with the proceeding and that it has been brought to his notice.  Under rule 117 of the UCPR, of course, the Court must be satisfied on the evidence before it that the relevant document came into the person’s possession on or before a particular day and may decide that possession is service for the Rules.

I am not satisfied, on the basis of the evidence, that the originating application or the other documents – in particular, the applicant’s affidavit – have come into the possession of the respondent even though they may have come into his inbox and he might, in some circumstances, have had the opportunity to see them in his inbox, and even though it is possible that his executive assistant has drawn them to his attention.  There is no evidence of any follow-up phone call or email to his executive assistant to find out whether she has, in fact, been able to draw the documents to his attention, nor is there any other evidence on which I can conclude that the respondent has seen the documents and has them in his possession.

It is quite feasible that, even though he may see his work emails on a computer or mobile phone, he does not have access to such computer or mobile phone or to services that would enable him to access emails while away.  For example, he could be in areas where there is no internet or mobile phone service.  Therefore, I am not satisfied that he has been served and I have treated the application as an ex parte application.

I am satisfied that Mr Amerena has, so far as I can tell, complied with his obligation as counsel appearing on an ex parte application.  Of course, if I make orders that will affect the rights of the respondent, as the orders sought would do, under rule 667 of the Uniform Civil Procedure Rules, the respondent is entitled at any time to seek an order setting aside those orders.  Mr Amerena submitted that I should make an order limiting the time within which such an application could be made.  I do not think that that is appropriate.  The rule allows him to bring such an application at any time and, of course, if he delays in bringing an application, that would affect the exercise of the discretion of the Court in determining whether or not to set aside any orders I make today.

If he were to make such an application and were successful, then the orders I make today would have no effect and any proceeding that was filed would therefore have been filed out of time and would be subject to being dismissed summarily.  In that respect, therefore, even though this is ex parte, the respondent’s rights to oppose this application and the orders which are sought are preserved so that he is not inevitably and irrevocably adversely affected by those orders. 

So it seems to me in the circumstances that I should make the following orders: 

1. (1)
   The period of limitation for the causes of action for defamation pleaded in the draft claim and draft statement of claim comprising exhibit JC11 to the affidavit of Joanne Casburn filed on 17 December 2021 in this proceeding be extended to 7 January 2022. 
2. (2)
   The costs of the application be reserved.