Pro Teeth Whitening (Aust) Pty Limited v Commonwealth of Australia
[2014] QSC 107
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- Pro Teeth Whitening (Aust) Pty Limited v Commonwealth of Australia[2014] QSC 107
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Pro Teeth Whitening (Aust) Pty Limited v Commonwealth of Australia[2014] QSC 107
Pro Teeth Whitening (Aust) Pty Limited v Commonwealth of Australia[2014] QSC 107
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Application for extension of the limitation period |
DELIVERED ON: | 26 May 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 April 2014 |
JUDGE: | Mullins J |
ORDER: | 1.The application to extend the limitation period for the claims for damages for defamation is dismissed. 2.Costs reserved. |
CATCHWORDS: | LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – OTHER CAUSES OF ACTION AND MATTERS – where the plaintiff sold teeth whitening products to Australian consumers – where in February 2012 a compulsory recall notice was issued in respect of two of the plaintiff’s products and the second and third defendants publicised the recall – where the plaintiff commenced an action for defamation almost 14 months after the alleged defamation – where the plaintiff applied for an extension of the limitation period pursuant to s 32A Limitations of Actions Act 1974 (Qld) to pursue the claim for damages for defamation – whether in the circumstances the plaintiff satisfied the court that the limitation period should be extended Limitation of Actions Act 1974 (Qld), s 10AA, s 32A Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50, followed Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175, considered Mowen v The Morning Bulletin/APN & Ors [2013] QCA 36, considered |
COUNSEL: | G J Harrison, sole director and shareholder of the plaintiff, by leave for the plaintiff G Del Villar for the defendants |
SOLICITORS: | Australian Government Solicitor for the defendants |
[1] The plaintiff filed its claim and statement of claim in this proceeding on 2 April 2013. The plaintiff’s claim includes a claim for damages for defamation pursuant to the Defamation Act 2005 (Qld) (DA) in respect of certain publications made by the second and third defendants on 6 February 2012.
[2] As s 10AA of the Limitation of Actions Act 1974 (Qld) (the Act) provides that an action on a cause of action for defamation must not be brought after the end of one year from the date of the publication of the matter complained of, the plaintiff applies for an extension of the limitation period pursuant to s 32A of the Act to pursue its claim for damages for defamation. That is opposed by the defendants.
Background
[3] The plaintiff sold teeth whitening products to Australian consumers. On 6 February 2012 the second defendant acting under s 132J of the Competition and Consumer Act 2004 (Cth) to certified that compulsory recall notices should issue without delay in respect of two products of the plaintiff that was supplied to consumers and applied by consumers without supervision. On the same day the second defendant, acting under s 122 of the Australian Consumer Law, issued a notice requiring the plaintiff to take specified actions including recall the goods.
[4] The plaintiff challenged the validity of these decisions made by the second defendant by applying for judicial review in the Federal Circuit Court. The judicial review application was dismissed in the Federal Circuit Court on 9 May 2013: Pro Teeth Whitening (Aust) Pty Ltd v Parliamentary Secretary to the Treasurer, David Bradbury MP [2013] FCCA 188. The plaintiff appealed successfully to the Federal Court which made its decision on 20 December 2013: Pro Teeth Whitening (Aust) Pty Ltd v Parliamentary Secretary to the Treasurer, David Bradbury MP [2013] FCA 1376.
[5] After the defendants filed their defence in this proceeding in which the second and third defendants did not plead to the allegations relevant to the claims of damages for defamation against the second and third defendants, the plaintiff applied for an extension of the limitation period to pursue those claims.
Issue
[6] The only basis on which the court has power to extend the limitation period for an action for defamation is that set out in s 32A(2) of the Act:
“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.”
[7] The issue to be decided on this application is whether the plaintiff can show that it was not reasonable in the circumstances for the plaintiff to have commenced its action for defamation against the defendants within one year from 6 February 2012.
Relevant authorities
[8] Section 32A was introduced into the Act by the DA. It was considered by the Court of Appeal in Noonan v MacLennan [2010] 2 Qd R 537 where Keane JA observed at [15]-[17]:
“[15]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. While s 32A(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.
[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 (Qld) (‘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.
[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.”
[9] Holmes JA in Noonan stated at [30]:
“As Keane and Chesterman JJA have explained, s 32A of the Limitation of Actions Act 1974 (Qld) is 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.”
[10] In the course of the reasons of Chesterman JA in Noonan, the difference between s 32A of the Act and other extension of limitation period provisions was emphasised, including at [48]-[49]:
“[48]The subsection is unusual in a second respect. It does not, as does other legislation allowing for an extension of a limitation period, permit the extension where it was reasonable, because of defined circumstances, to extend time. To obtain an extension an applicant must demonstrate that it would have been unreasonable for him in the particular circumstance to have commenced an action within the first year after publication. That is to say an applicant must demonstrate affirmatively that he would have acted unreasonably in suing within time.
[49]It is no doubt right that an applicant does not have to account for every day or week in the limitation year. What he has to do is satisfy the court that it was not reasonable in the circumstances to have commenced an action within the limitation period. That, obviously, involves the identification of the circumstances which made it unreasonable to commence the action in time.”
See also Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [34] per Fraser JA.
[11] It was made clear in Noonan that the test posed by s 32A(2) of the Act is objective and the reference to “the circumstances” is “the circumstances as they appear objectively to the court”: Noonan at [20] per Keane JA and [65] per Chesterman JA. According to Keane JA at [22], “[c]onsideration of the issue of reasonableness must commence from the position that the Act lays down strict time limits for the commencement of proceedings for defamation”.
[12] The plaintiff in Noonan was acting on his own behalf during the year after the defamation and was ignorant of the limitation period that applied to a proceeding for damages for defamation. Keane JA stated at [22]:
“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.”
[13] The same approach was taken in Mowen v The Morning Bulletin/APN & Ors [2013] QCA 36 at [14] per Dalton J, where the appellant who appeared for himself was unsuccessful in relying on his ignorance of the limitation period and his difficulty in informing himself of the law.
The plaintiff’s submissions
[14] The plaintiff relied on certain factual matters largely deposed to by Mr Harrison in his affidavit filed on 28 March 2014 for the delay in bringing the proceeding for defamation, but supplemented by the submissions (both written and oral) made by Mr Harrison in support of the application. The first is Mr Harrison who represents the plaintiff and has no legal training was unaware of the limitation period for the filing of the defamation proceeding until about March 2013 which was after 12 months from the date of the initial publications. That is not relevant, however, in the light of the objective test imposed by s 32A(2) of the Act and authorities such as Noonan.
[15] The second matter is that the plaintiff commenced its application for judicial review of the second defendant’s decisions within 28 days of the making of the decisions, the hearing of the judicial review application took place in July 2012, and the plaintiff could not reasonably have anticipated that the decision of the Federal Circuit Court would take 10 months to be handed down after the hearing and therefore after the expiry of the limitation period for suing for defamation. It was possible that some facts could have been established from the reasons of the Federal Circuit Court decision which could have been material to the plaintiff’s case for defamation.
[16] The third matter (to which the correspondence that was marked exhibits 1 and 2 on the hearing of this application relates) is the application by the plaintiff to the first and third defendants on 11 December 2012 for compensation pursuant to “The Scheme for Compensation for Detriment caused by Defective Administration” (CDDA Scheme) under the Financial Management and Accountability Act 1997 (Cth). The final rejection letter in response to the CDDA Scheme application was dated 28 March 2013. The plaintiff made this application, because the decision on the judicial review application was delayed. By making the CDDA Scheme application in the course of which the plaintiff claimed compensation for the damage to its reputation by the compulsory recall of its products and expressly referred to defamation, the defendants were on notice of a proposed defamation action prior to the expiration of the time limit.
[17] The last matter is that as soon as Mr Harrison became aware of the limitation period applying to a claim for defamation, he expedited the filing of the claim in this proceeding, even though it was prior to the Federal Circuit Court’s decision.
[18] Neither in his affidavit or submissions did Mr Harrison suggest that he was not aware of the impugned publications at the time they were made on 6 February 2012.
Has the plaintiff discharged the burden under s 32A(2) of the Act?
[19] No doubt the fact that the plaintiff is acting by its director has had an effect subjectively on how the plaintiff has approached its claims and disputes over the compulsory recall of two of its products. In lay terms, it might make sense to wait for the outcome of one court action, before starting the next. That approach does not, however, take into account the important policy considerations that underpin the limitation period that applies to the commencement of an action for defamation nor the purposes that may be served by different court actions. The purpose of the plaintiff’s judicial review action was to traverse the process of decision making undertaken by the second defendant which can be contrasted with the purpose of an action for defamation which is to seek damages under the DA for the publication of the alleged defamatory matter.
[20] The plaintiff may have been distracted by waiting for the Federal Circuit Court to decide the judicial review application, but objectively that was not a reason not to start the action for defamation before the expiry of the limitation period. It was speculative on the plaintiff’s part, as to whether anything would emerge in the Federal Circuit Court’s decision that would assist the defamation action.
[21] The fact that the proposed defendants may have been notified of the allegations of defamation in general terms by the plaintiff’s application under the CDDA Scheme or the plaintiff was endeavouring to resolve its dispute by this alternative course does not objectively justify a delay in the commencement of the defamation proceeding for which a strict time limit applies.
[22] The fact that Mr Harrison acted quickly to commence the proceeding for defamation on becoming aware of the limitation period (after it expired) would be relevant only if it were a matter of discretion in deciding whether the limitation period for defamation proceedings were extended. Just as it is irrelevant to the issue to be decided under s 32A(2) of the Act that the plaintiff was acting by its director who was ignorant of the limitation period, so it is irrelevant that the plaintiff endeavoured to make amends by acting quickly after the limitation period expired.
[23] None of the arguments relied on by the plaintiff either alone or in combination shows objectively that, in the circumstances that pertained between the publication of the alleged defamation and the expiry of the limitation period, it was unreasonable for the plaintiff to have commenced its action for defamation against the second and third defendants within the limitation period. The test under s 32A(2) of the Act, as explained by the relevant authorities, precludes the plaintiff’s success on this extension application.
Orders
[24] The plaintiff’s application filed on 28 March 2014 sought the extension of the limitation period and also leave to file a further amended statement of claim to include the claim for misfeasance in public office by the fourth defendant in the terms which appeared in the pleading that was exhibited to Mr Harrison’s affidavit filed on 28 March 2014. I dismissed the latter application when both matters were heard on 3 April 2014 and reserved the costs of the application. Consistent with that costs order, I will also reserve the costs in respect of the application for extension of the limitation period.
[25] The orders are therefore:
1.The application to extend the limitation period for the claims for damages for defamation is dismissed.
2.Costs reserved.