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Newcombe v O'Connor & O'Connor[2022] QDC 19

Newcombe v O'Connor & O'Connor[2022] QDC 19

DISTRICT COURT OF QUEENSLAND

CITATION:

Newcombe v O'Connor & O'Connor [2022] QDC 19

PARTIES:

DENISE NEWCOMBE

(Plaintiff)

v

CAROLYN O'CONNOR

(First Defendant)

AND

TIMOTHY O'CONNOR

(Second Defendant)

FILE NO:

2769/21

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

19 January 2022 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

19 January 2022

JUDGE:

Porter QC DCJ

ORDERS:

  1. The application filed 22 October 2021 is dismissed.
  2. The plaintiff shall pay defendants’ costs of the application on the standard basis.

CATCHWORDS:

CIVIL PROCEDURE – LIMITATIONS OF ACTIONS – TORT – DEFAMATION – Application for an extension of the limitation period – Whether it was reasonable for the plaintiff to have not commenced an action within the limitation period – Whether pre-litigation steps towards alternative dispute resolution gives rise to reasonable grounds for an extension to the limitation period. 

LEGISLATION:

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

Defamation Act 2005 (Qld) Part 3

CASES:

Noonan v MacLennan [2010] QCA 50

Carey v Australian Broadcasting Corporation [2012] NSWCA 176

Ahmed v Harbour Radio Pty Ltd (2009) 180 FCR 313

Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175

Robertson v Hollings [2009] QCA 303

Carey v Australian Broadcasting Corporation (2012) NSWLR 90

COUNSEL:

M. White for the Plaintiff 

R. Anderson for the First and Second Defendants

SOLICITORS:

Clutch Legal for the Plaintiff

Bennett & Philip Lawyers for the First and Second Defendants

  1. [1]
    This is an application by the plaintiff for an extension to the limitation period for filing a claim for defamation under section 32A of the Limitation of Actions Act 1974 (Qld) (the Act). 
  2. [2]
    Section 10AA of the Act provides that the limitation period for the commencement of proceedings for a cause of action for the tort of defamation is one year from the date the cause of action accrued.  Section 32A provides the Court with the power to extend that time.  The version of s. 32A, by agreement of counsel, is a historical version of the provision, not the current version.  That provision, it is agreed by counsel, relevant to these proceeding, is the provision as set out in paragraph 10 of Mr White’s outline of argument.
  3. [3]
    It is with some gratitude to Mr White that I can summarise principles that have been articulated as broadly relevant to the approach to that section as follows: 
    1. (a)
      The onus rests on the plaintiff to satisfy the Court that it was not reasonable in the circumstances for them to have brought proceedings within the limitation period.[1]
    2. (b)
      The Court must be satisfied on the evidence and does not have a discretion to extend the time on grounds of fairness or where it may be just and reasonable to do so.[2]
    3. (c)
      To this end, it has been said that the plaintiff’s excuse for not commencing the proceedings within the limitation period, the merits of the plaintiff’s claim, and any prejudice the plaintiff may suffer on account of the court not granting the extension sought are not relevant considerations for the court.
    4. (d)
      The words ‘not reasonable in the circumstances’ place a high onus on the plaintiff to show that a reasonable person in the plaintiff’s position would not have commenced the action within the time period.
    5. (e)
      The test is not whether it was reasonable for the plaintiff not to have commenced within time, but whether it would not have been reasonable for the plaintiff to have commenced in the time specified. This has been described as a higher threshold to overcome.[3]
    6. (f)
      ‘The circumstances’ refer to the objective circumstances as they appear to the court and not the circumstances the plaintiff believed, however, unreasonably to exist. The plaintiff’s ignorance as to the limitation period is not a reasonable basis for not commencing proceedings.[4]
    7. (g)
      Only in relatively unusual circumstances will a court be satisfied that it was not reasonable to seek to vindicate the plaintiff’s rights in accordance with the law within the time period stipulated.[5]
    8. (h)
      The circumstances must be so compelling as to make it positively unreasonable for a person defamed not to exercise his or her legal rights to sue within the statutorily designated period.[6]
    9. (i)
      It has been held that the test is not satisfied where a plaintiff fails to take legal advice within the limitation period to be advised of the time limit.
    10. (j)
      It would not be reasonable for a plaintiff to commence proceedings within the limitation period if they are unable to prove the extent of the defamation, or one or more of the elements of the cause of action, within the limitation period.[7]
    11. (k)
      If the plaintiff does not know of the existence of the publication or cannot prove the publication until after the limitation period has expired, it would not be reasonable in the circumstances to commence proceedings.[8]
    12. (l)
      The onus will be difficult to meet where the plaintiff knows of the publication and chooses not to sue or does not sue. It is relevant what the plaintiff did and why the plaintiff did not commence proceedings within the limitation period.[9]
    13. (m)
      If, however, the plaintiff is able to satisfy the court as to the reasonableness of his or her failure to commence proceedings within the limitation period, the court must grant an extension, although the period of such an extension remains in the discretion of the court.[10]
  4. [4]
    Mr Anderson QC accepted the correctness of those propositions. 
  5. [5]
    It is important to keep firmly in mind that the question for the Court is not whether it was reasonable to commence the proceedings outside the one-year limitation period, but rather whether it was not reasonable, in the circumstances, for the plaintiff to have commenced the action within the one-year period.
  6. [6]
    A distinction which I think has some relevance, and which I also bear particularly in mind, is that the onus is on the plaintiff to persuade the Court that its power should be exercised and that the Court of Appeal in Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 and Noonan v MacLennan [2010] QCA 50 have made clear that limitation periods broadly are there for a purpose and should not be avoided except for good reason, and that the test that it is not reasonable in the circumstances places a high onus on the plaintiff to show a reasonable person in their position would not have commenced the action within the statutory year.
  7. [7]
    The plaintiff is a breeder of German Shorthaired Pointer dogs.  She has registered on the Dogs Queensland Breeder Register and has a registration name of “Delaquois”. There is a profile for Delaquois on the Dogs Queensland website with her name and contact details.
  8. [8]
    In around August 2019, Ms O'Connor, the first defendant, bought a German Shorthaired Pointer and called it Odin.  Between June 2020 and June 2021, the first and second defendant made various posts on a Facebook group.  The Facebook group was the German Shorthaired Pointers – Australia group (“the GSP Australia Facebook group”). 
  9. [9]
    Posts were allegedly made on at least eight different days, variously, by one or other of the defendants.  There were posts, importantly, on 17 June 2020 and the principal statements complained of are articulated in paragraph 7(a) of the statement of claim as follows:
    1. (i)
      The Plaintiff is “wanting a fast buck”;
    2. (ii)
      “We will take that breeder for damages through negligence and put her out of action”; and
    3. (iii)
      “Carol and I have an obligation to end this stupidity of that breeder”.
  10. [10]
    There was, allegedly, a post by the first defendant, certainly under her name, on the GSP Australia Facebook group on the 30 August 2020 and the statements, subject of the complaint, are set out in paragraph 7(b) of the statement of claim as follows: 
    1. (i)
      The Plaintiff “had a pup that had lupus”;
    2. (ii)
      The Plaintiff “has caused a lot of problems”; and
    3. (iii)
      That “unfortunately it comes down to money”.
  11. [11]
    There were further statements allegedly made: on two occasions on 24 November 2020, on 19 January 2021, on two occasions on 4 May 2021 and, on 2 June 2021. The content of those posts is alleged in paragraph 7(c)-(i) and it is convenient to set them out as set out in the statement of claim: 
    1. (c)
      On 24 November 202, the first defendant published comments to the GSP Australia Facebook group which contained the following statements:
      1. “unfortunately I fell into the trap of the breeder that talks the talk and is popular with many of you”; and
      2. The plaintiff “is putting us through hoops as we have requested a refund and half the costs”.
    1. (d)
      On 24 November 2020, the first defendant commented on a post in the GSP Australia Facebook group stating, about the plaintiff, that “the breeder said she was cross-breeding”.
    2. (e)
      On 19 January 2021, the first defendant published comments to the German Shorthaired Pointers QLD Events Group on Facebook which contained the following statements:
      1. “I got a pup from GSP breeder and ended up with hip dysplasia at 5 moths … and then had a total hip replacement. Not all registered breeders are good breeders…”
      2. “How do we stop them from doing this to other people. That breeder cost me a fortune. It is not fair on the pups”.
    3. (f)
      On 4 May 2021, the first Defendant contacted Micheal Milton, a buyer, via Facebook Messenger and made the following statement:
      1. “Hi Michael. I got a pup from this breeder and had to have a total hip replacement. She doesn’t test for hip dysplasia. Hope you have better luck.”
    4. (g)
      In or around May 2021, the first defendant contacted another prospective buyer, Whitney Quayle, and made statements about the plaintiff to the effect that the plaintiff was responsible for the hip dysplasia of Odin.
    5. (h)
      On 2 June 2021, the first defendant commented in the GSP Australia Facebook group that:
      1. Odin “was from a litter of 11. One died at birth, 2 had parvovirus and mine had hip dysplasia. But she continues to breed. It’s a business for them”;
      2. The plaintiff “doesn’t want to know about his problems or help me with the $26,000 vet bills. I have tried reporting her but the hoops you have to jump through are ridiculous so she will just keep going. These poor pups don’t deserve this shit”;
      3. The plaintiff “boasted to me that she breeds about 100 pups a year sometimes with 3 litters on the go. She is registered.”
    6. (i)
      In that same thread on the GSP Australia Facebook group, the First Defendant directly identified the Plaintiff by her breeder prefix ‘Delaquois’.
  12. [12]
    The plaintiff complains that the natural and ordinary meanings of all the statements were, in broad terms, that the plaintiff was an untrustworthy, greedy, and unreliable breeder of German Shorthaired Pointer dogs.  Paragraph 8 of the statement of claim articulates exactly what the imputations are, but for the purpose of this application, I think that is sufficient summary.  Without purporting to decide the matter, one can see how most of the imputations articulated might be taken from the language allegedly used.
  13. [13]
    The plaintiff commenced these proceedings on 22 October 2021.  That means that the limitation period for the first two publications had expired before the commencement of the proceedings.  In the case of the 17 June 2020 allegation, by four months and in the case of the 30 August 2020 allegation, by about two and a half months.  Thus, the plaintiff needed to bring this application if it was not to face the striking out of paragraph 7(a) and (b).
  14. [14]
    The argument for the plaintiff, who bears the onus as to why she should have an extension is articulated in Mr White’s outline of argument from paragraph 16 to 29.  Those arguments have been fully canvassed in argument in court.  The gravamen of it is this: it was not reasonable for the plaintiff to have commenced proceedings within a year of the 17 June and 30 August 2020 publications because, although a cause of action had accrued (in the sense that the publications sufficiently identified or was capable of identifying Ms Newcombe), for a variety of reasons, Ms Newcombe’s case was very weak until 2 June 2021.
  15. [15]
    It can be seen from the extract from the statement of claim above, that the importance of the publications on 2 June 2021 is that one or other of the defendants identified Ms Newcombe by her breeding name, Delaquois.  It is submitted for the plaintiff that, until that time, the case was a very weak one because the plaintiff would not have been able to demonstrate that any person would have identified her as the subject of the preceding publications until her breeding name was stated.   It was the publication of that additional fact to the GSP Australia Facebook group that changed an unreasonable situation to a reasonable one.  That is so because once her breeding name had been used, it made it possible reasonably to plead the impact of the publications on the plaintiff’s reputations in what is presumably a rather small community of persons interested in this kind of dog.
  16. [16]
    Those points were raised by Mr White, at paragraph 27 of his Outline, to echo what Keane JA said in Noonan v MacLennan [2010] QCA 50 at paragraph [17]: 

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.

  1. [17]
    Mr White submits that Ms Newcombe falls squarely within the circumstance contemplated by his Honour in that passage because it would have been speculative, even irresponsible, for her to commence proceedings without evidence sufficient to identify her as being the subject to the relevant publications to at least some of the recipients of those publications.
  2. [18]
    Mr White’s next step in the argument is to submit that once that additional fact was published, Ms Newcombe acted promptly:
    1. (a)
      She issued a concerns notice on 20 July 2021 and there was a response to that on 27 July 2021;
    2. (b)
      On 4 August 2021, she instructed her solicitors to seek further and better particulars as to the response of the first and second defendant and, on 12 August 2021, they refused to provide any further comment in relation to the concerns notice. 
  3. [19]
    I note that even after that event on 12 August 2021, the 30 August 2020 allegation was not out of time.  So, 18 days before the expiry of the limitation period for that allegation, it was made crystal clear that the concerns notice process had failed. Proceedings were not commenced by the plaintiff within that 18 day period.
  4. [20]
    I am not persuaded that the plaintiff has discharged the onus of establishing that it was not reasonable to have commenced proceedings within the year.  The reasons that emerged in the course of argument are as follows.
  5. [21]
    First, I am not satisfied that prior to the publication of her breeding name Delaquois, the plaintiff has established she did not have a cause of action that was worth pursuing.  These publications were made to the GSP Australia Facebook group.  I think it is safe to assume that at least in Brisbane, they are not commonly seen dogs.  In addition, the GSP Australia Facebook group is clearly a group particularly focused on that kind of dog.  Delaquois is a breeder of that kind of dog.  I am not willing to assume that there are a large number of such breeders (even in the whole of Australia).  Further, the posts within the year identify the breeder as a female.  I do not make any assumption about the balance of genders, but that narrows the field again from what, at least in the absence of evidence to the contrary, I think would likely be a small group of known breeders.  It might be the case that in the absence of identification of the breeder criticised in the posts, there was not a realistic prospect of ordinary members identifying Ms Newcombe, but that is not something I am willing to infer given the factors I have identified.   
  6. [22]
    Second, Mr Anderson submitted that if the focus of the plaintiff’s argument is on whether it was worth commencing a proceeding, there was no evidence as to how widely the earlier publications had been current on Facebook when such evidence can be obtained.  Such evidence as there was indicated that the 17 June 2020 post was viewed by 82 people.  By contrast on the evidence before the Court, the post identifying the plaintiff’s breeder name does not appear to have been seen by anybody other than the person to whom the defendant in question was responding.
  7. [23]
    Mr Anderson thus submits that on that evidence, the identification of the breeder’s name did not seem to change the situation much at all from the perspective of assessing the extent to which damages would be available such that, that which was not reasonable within the year, became reasonable after.  I agree with that submission, particularly bearing in mind that the onus was on the plaintiff and a great deal more, I suspect, could have been done to obtain evidence about how widely the two publications were likely seen.    That is not to criticise those who brought this application.  They might have very good reasons for having left the evidence as it was.
  8. [24]
    Third, and compellingly, the matter which on the plaintiff’s case was the key to converting a not reasonable proceeding into a reasonable one, (the publication of the name Delaquois), occurred within the limitation period for both publications: two weeks or so before the expiry of the 12 months for the first alleged defamatory mutation and some months before the expiry of the 12 months for the second.  So even on the plaintiff’s case, it had a reasonable cause of action within the limitation period for both publications.
  9. [25]
    I reject Mr White’s submission that it was not reasonable to commence proceedings forthwith because the plaintiff engaged the alternative dispute resolution process, under the Defamation Act 2005 (Qld).  It is true that that parties should be encouraged to make use of those procedures rather than to litigate.  In Pingel, Fraser JA analysed the proposition that the ADR process justifies delaying the commencement of proceedings.
  10. [26]
    Fraser JA recognised that there may be circumstances in which the pursuit of pre-litigation procedures made it not reasonable to have commenced within the year and reasonable to have commenced thereafter.  His Honour’s conclusion about that matter is at paragraphs [42] and [43] of His Honour’s reasons.  His Honour accepted that the participation in Division 1 processes may be one of the circumstances which result in it not being reasonable for the plaintiff to pursue within the limitation period but said it should not be assumed that the mere fact that the parties do participate in it renders it not reasonable to commence.  It really depends on the circumstances.
  11. [27]
    His Honour also identified, at [47], that the one-year period was introduced in amendments that introduced the pre-litigation process. He inferred from that, that Parliament considered it ought ordinarily to be possible for those procedures to be followed within a year.  His Honour also observed, importantly, I think, in this case, that there is nothing in the Act that prevents those procedures from being pursued before, during or after the commencement of litigation (although there might be circumstances where they are a little less efficacious if done after the commencement of proceedings).
  12. [28]
    Pingel is authority for the fact that although it might be a factor, delay to follow pre-litigation procedures as an excuse for not commencing within the limitation period depends on the circumstances.  Here, there are many circumstances other than the circumstances relating to the pursuit of the pre-litigation processes that are not favourable to the granting of the extension.
  13. [29]
    They include:
    1. (a)
      There was a series of allegedly defamatory statements over a period of a year at regular intervals.  There is no reason for me to assume the plaintiff did not know about them.  Certainly, it was a Facebook group that she would have been interested in and when on the 2 June 2021, she was finally identified, she should have been well aware of the circumstances and of her potential claims and capable of moving promptly;
    2. (b)
      There was no reason why she could not have sought legal advice prior to 2 June 2021 about these matters, such that matters could have been pursued promptly when the 2 June 2021 publication occurred.  Indeed, there is no evidence about whether she did or she did not;
    3. (c)
      There is no reason why a concerns notice process could not have been commenced from the very beginning.  In fact, one might think that if that had been done, the parties would not be in this position because the defendants, who had for many, many months held off mentioning her name, only mentioned it at the end of a series of posts.  No explanation has been given as to why a concerns notice process was not pursued.  In fact, one would have thought that that would have been exactly the thing to do in a situation like this, at least by the end of November 2020; 
    4. (d)
      There was no concerns notice issued until 20 July 2021, some seven weeks after the 2 June 2021 publication.  No explanation is given for that delay. Nor is there any explanation as to when legal advice was sought nor about advice that might have been given about the limitation period. There is no evidence of any step to try to address the pending expiry of the limitation periods by writing to the other side about it or commencing a proceeding on the basis that no defence would be required while the process was followed or anything like that.  And if that is true in respect of the 17 June 2020 publication, it applies a fortiori to the 20 August 2020 publication in respect of which, as I observed earlier, the concerns notice process had run its course before the 12 months expired.  Solicitors have experience of getting in a pleading in the shadow of an expiry of a limitation period and I cannot see why that could not have been done so as to preserve, at least, the 20 August 2020 publication claim.
  14. [30]
    The cases make clear what is in any event obvious from the short limitation period Parliament has imposed: that the standard position is that the limitation period applies.  The plaintiff bears the onus of demonstrating that it was not reasonable to commence proceedings within the year and that should not be lightly accepted.  I am not persuaded, on the evidence, the plaintiff has made out her onus for the reasons I have given.  The application is dismissed.
  15. [31]
    I will order the plaintiff to file and serve an amended statement of claim by 16 February 2022.

Footnotes

[1] Noonan v MacLennan [2010] QCA 50 at [15]; Carey v Australian Broadcasting Corporation [2012] NSWCA 176 at [48].

[2] Ahmed v Harbour Radio Pty Ltd (2009) 180 FCR 313 at [27]; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [87].

[3] Robertson v Hollings\ [2009] QCA 303 [1][7]; Noonan v MacLennan [2010] QCA 50 at [8] and [30].

[4] Noonan v MacLennan [2010] QCA 50 at [19] – [20], and [22]; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [87].

[5] Noonan v MacLennan [2010] QCA 50 at [15].

[6] Noonan v MacLennan [2010] QCA 50 at [51]

[7] Noonan v MacLennan [2010] QCA 50 at [17].

[8] Ahmed v Harbour Radio Pty Ltd (2009) 180 FCR 313 at [52]; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [56].

[9] Carey v Australian Broadcasting Corporation (2012) NSWLR 90 at [48].

[10] Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [87] per Applegarth J summarising the principles espoused in Noonan v MacLennan [2010] QCA 50.

Close

Editorial Notes

  • Published Case Name:

    Newcombe v O'Connor & O'Connor

  • Shortened Case Name:

    Newcombe v O'Connor & O'Connor

  • MNC:

    [2022] QDC 19

  • Court:

    QDC

  • Judge(s):

    Porter QC DCJ

  • Date:

    19 Jan 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Ahmed v Harbour Radio Pty Ltd (2009) 180 FCR 313
3 citations
Jump To
Cite 1 - (2009) 180 FCR 313
Cite 2 - (2009) 180 FCR 313
Cite 3 - (2009) 180 FCR 313
Carey v Australian Broadcasting Corporation [2012] NSWCA 176
2 citations
Jump To
Cite 1 - [2012] NSWCA 176
Cite 2 - [2012] NSWCA 176
Carey v Australian Broadcasting Corporation (2012) NSWLR 90
2 citations
Jump To
Cite 1 - (2012) NSWLR 90
Cite 2 - (2012) NSWLR 90
Noonan v MacLennan[2010] 2 Qd R 537; [2010] QCA 50
10 citations
Jump To
Cite 1 - [2010] QCA 50
Cite 2 - [2010] QCA 50
Cite 3 - [2010] QCA 50
Cite 4 - [2010] QCA 50
Cite 5 - [2010] QCA 50
Cite 6 - [2010] QCA 50
Cite 7 - [2010] QCA 50
Cite 8 - [2010] QCA 50
Cite 9 - [2010] QCA 50
Cite 10 - [2010] QCA 50
Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175
6 citations
Jump To
Cite 1 - [2010] QCA 175
Cite 2 - [2010] QCA 175
Cite 3 - [2010] QCA 175
Cite 4 - [2010] QCA 175
Cite 5 - [2010] QCA 175
Cite 6 - [2010] QCA 175
Robertson v Hollings [2009] QCA 303
2 citations
Jump To
Cite 1 - [2009] QCA 303
Cite 2 - [2009] QCA 303

Cases Citing

Case NameFull CitationFrequency
Hoogendoorn v State of Queensland [2022] QDC 831 citation
1

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