Richards v Hutchinson[2024] QSC 73

SUPREME COURT OF QUEENSLAND

1. [1]
   The plaintiff (Ms Richards) was the councillor for the Pullenvale Ward in the Brisbane City Council until about 28 March 2020.  She had been elected in 2016 as a candidate endorsed by the Liberal National Party (LNP). In February 2019, Ms Richards applied to be endorsed as the LNP candidate for that Ward in the local government election to be held on 28 March 2020.  On 8 December 2019, she withdrew her application for endorsement.  Ms Richards contested the 2020 election as an independent candidate but was unsuccessful. 
2. [2]
   In late 2019 and early 2020, the tenth defendant (Mr O'Dwyer) was the state director of the LNP, and the other defendants were members of the state executive of the LNP.  The first defendant (Mr Hutchinson) was the state president.  The second defendant (Mr O'Neil) and the third defendant (Ms Hardy) were state vice presidents. The fourth defendant (Ms Forrest) was honorary legal adviser.  The fifth defendant (Mr Fraser) was treasurer.  The sixth defendant (Mr Spence) was immediate past state president.  The seventh defendant (Mr Ponting), the eighth defendant (Mr Springborg), and the ninth defendant (Mr Tucker) were trustees of the LNP. The eleventh defendant (Mr Schrinner) was Lord Mayor of Brisbane City Council and leader of the LNP local government team.  The twelfth defendant (Mr Cole) was an honorary media adviser to the LNP. 

The progress of the proceeding

3. [3]
   On 8 December 2020, when Ms Richards commenced the proceeding, she claimed damages for defamation against the 12 defendants “in their capacity as the State Executive of the Liberal National Party of Queensland”.  She alleged each of the defendants “wrote, authorised and published” a media release (annexure A) on or about 10 December 2019.  She alleged annexure A was defamatory of her.
4. [4]
   On 10 June 2022, Ms Richards filed an amended statement of claim that “entirely replaces and supersedes” the original pleading.  This is her current pleading.  By it, Ms Richards maintained her original cause of action for damages for defamation concerning annexure A and added two new causes of action: damages for defamation for causing the publication of another document (annexure C) between 10 December 2019 and 1 March 2020; and damages for civil conspiracy.
5. [5]
   By the current pleading, Ms Richards appears to press her three causes of action against all 12 defendants, each of whom is now sued “in their representative capacity on behalf of the LNP”, rather than as the state executive.  In addition, she sues six of the defendants “in their personal capacities”.^[1]

The present applications

6. [6]
   The defendants have applied for summary judgment, pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). 
7. [7]
   Nine of the defendants^[2] seek summary judgment on Ms Richards’ claim concerning annexure A.  They say there is no evidence they were involved in the publication of annexure A and no other basis to hold them responsible for its publication. 
8. [8]
   All 12 defendants seek judgment on Ms Richards’ claim concerning annexure C.  They say they should have judgment because she brought the claim after the limitation period had expired.^[3] 
9. [9]
   Seven of the defendants^[4] seek summary judgment on Ms Richards’ civil conspiracy claim.  They say it is not alleged any of them was a party to the alleged conspiracy. 
10. [10]
    Alternatively, the defendants seek the determination of separate questions about the annexure A and annexure C defamation claims, pursuant to r 483 of the UPCR.  For the reasons that follow, there is no utility in determining the separate questions in advance of a trial. 
11. [11]
    By her application, Ms Richards seeks an extension of the limitation period for her annexure C defamation claim, under s 32A of the Limitation of Actions Act 1974 (Qld) (LAA).  The issues raised by her application overlap with the defendants’ application for summary judgment on the annexure C claim.
12. [12]
    It is convenient to first consider the defendants’ application for summary judgment on the annexure A defamation claim, then jointly consider Ms Richards’ application for an extension of the limitation period for the annexure C defamation claim and the related part of the summary judgment application. I will then consider whether summary judgment should be granted in respect of the civil conspiracy claim.

Summary judgment

13. [13]
    At the hearing, there was no dispute that to obtain summary judgment, ordinarily, a defendant must satisfy the Court that the plaintiff has no real prospect of succeeding on all or a part of their claim and that there is no need for a trial of the claim or the part of the claim.^[5]   

The facts that are agreed or are common ground

14. [14]
    For the purposes of these applications, the parties agreed on a statement of facts.  The agreed facts included:

    1. Mr Hutchinson, Mr O'Dwyer and Mr Cole were the publishers of annexure A.  Mr Cole prepared annexure A and sent it to a journalist on 10 December 2019.  Mr Hutchinson approved annexure A for publication.  Mr O'Dwyer knew it was to be sent. 
    2. Ms Forrest was given annexure A before it was published for the sole purpose of providing legal advice.  She did not authorise its publication. 
    3. The other defendants did not see annexure A until after it had been published. 
    4. Mr Hutchinson, Mr O'Dwyer and Mr Cole were the publishers of annexure C.  Mr Cole prepared and sent it to a journalist on 29 February 2020.  Mr Hutchinson approved it before publication.  Mr O'Dwyer knew it was to be sent. 
    5. Ms Forrest was given annexure C before it was published for the sole purpose of providing legal advice.  She did not authorise its publication. 
    6. The other defendants did not see annexure C until after it had been published. 
15. [15]
    It is common ground that, at the material times, the LNP was an unincorporated voluntary association, which is to say it was not a legal entity.  It consisted of all the persons who were members of the LNP at the relevant time.^[6] 

Ms Richard’s annexure A defamation claim

16. [16]
    Ms Richards alleges that on 10 December 2019, the LNP caused annexure A to be disseminated to numerous media organisations.  She alleges the LNP dod this through Mr Hutchinson, Mr O'Dwyer and a person who is not a defendant.  She also says that this was done with the knowledge, acquiescence and approval of the other defendants.
17. [17]
    Ms Richards alleges that annexure A was defamatory of her, and that its publication injured her business, personal and professional reputation, and brought her into public disrepute, odium, ridicule, and contempt.
18. [18]
    As the LNP was an unincorporated voluntary association, the effect of Ms Richards allegation is that all those who were LNP members on 10 December 2019 caused annexure A to be disseminated to media organisations.  In other words, she alleges the entire membership of the LNP, at the time of annexure A’s dissemination, committed the tort.  This is the basis on which Ms Richards claims damages for defamation against all the defendants as “representatives” of the members of the LNP.  Ms Richards says Mr O'Neil, Ms Hardy, Mr Fraser, Mr Spence, , Mr Springborg, and Mr Tucker are sued only in a representative capacity and not on the basis of “any personal wrongdoing”.^[7] 
19. [19]
    The explanation submitted for Ms Richards’s case against the individual members of the LNP may be summarised in this way:

    1. As LNP members, they were bound by the LNP Constitution, which provided that:

“The State Executive shall, subject to the provisions hereof, have power to manage all the affairs of the Party.  It shall not have power to alter the provisions hereof or the platform and policy of the Party.” 

2. The members of the state executive “permitted LNP personnel, LNP facilities and LNP resources to be used for the creation and distribution” of annexure A, and:

“by standing by as such publications continued to be made, and by taking no steps to disavow them after the event, the members of the State Executive clothed the publications as being disseminated with, at least, the apparent or ostensible authority of agents of the LNP”.

3. On this basis, “the LNP, as an unincorporated association, is therefore liable for such dissemination”.
4. In oral submissions, Mr Morris KC relied on other provisions in the LNP Constitution, which are not mentioned in the pleading, including a provision that public statements on behalf of the LNP “may be made only by the President or the State Director”, and: 

“No member shall make any statement or comment, either on or off the record, to any journalist or media organisation about the affairs of the Party without the prior approval of the President or State Director.”

5. Mr Morris submitted that “by providing the letterhead paper” to the president and state director of the LNP “in order to make a press release”,

“the members of the LNP by this constitution have done, in effect, exactly the same thing as Fairfax, Nationwide News and Australian new channels did in the Voller case of providing a form of resource which invites and encourages the making of comments about a particular range of issues.”

6. Mr Morris relied on the following passage from Webb v Bloch, quoted with approval by Kiefel CJ, Keane and Gleeson JJ in Fairfax Media Publications v Voller:^[8]

“Without reference to the precise degree in which the defendant has been instrumental to such publication, since if he has intentionally leant his assistance to its existence, for the purpose of being published, his instrumentality is evidence to show a publication by him.”^[9]

7. He submitted that, in light of the LNP Constitution, each member of the LNP at the material time, simply by being a member, authorised the president and the state director to publish annexure A, and so is liable for any loss and damage suffered by Ms Richards as a result of its publication.  

Consideration of the plaintiff’s submissions on the “representative” defendants

20. [20]
    There are two problems with the submissions in support of Ms Richards’ claim against the defendants as representatives of the LNP. 
21. [21]
    The first is the erroneous submission that the LNP, as an unincorporated association, is liable for a publication by three of its members. ^[10]
22. [22]
    As Debelle J found in Chapman v Conservation Council of South Australia Inc^[11] a plea that, “by reason of their membership” of an unincorporated association, members either published a pamphlet of the association or caused it to be published or participated in its publication, is bad.  As authority for this proposition, His Honour cited a passage from the reasons of Swinfen Eady LJ in Mercantile Marine Service Association v Toms, which concerned a request for an order appointing the chairman, secretary and vice-chairman of the (unincorporated) Imperial Merchant Service Guild as representatives all other members of the Guild:

“The action is for libel, and the plaintiffs must prove who published the libel, and prima facie only those who have published it either by themselves or by their servants or agents or have authorized its publication are liable.  The various members of this association may be in a wholly different position.  If the members of the management committee were sued, and if in fact they had authorised the publication of the libel, they could raise such defences as might be open to them.  … The other members of the association, if sued, might say that, however defamatory the words complained of might be, they did not authorize their publication; that they were on the high seas and knew nothing about the matter.”^[12] 

23. [23]
    Mason P^[13] observed in Trustees of the Roman Catholic Church v Ellis, that there is “a categorical distinction between an incorporated and an unincorporated body as regards amenability to claims to damages.”  An unincorporated association cannot be liable for the acts of its members because it is not a legal person.  If a member acts or fails to act in a way that gives rise to a tortious claim, then that member may be liable for it as a principal.  If members of a committee act or fail to act in such a way, they may be liable for their conduct.  Their liability “remains personal not representative in nature.”^[14]
24. [24]
    In Ellis, Mason P quoted, with approval, the judgment of Linskey J in Baker v Jones:

“The association, being an unincorporated body, could not be liable for the tortious acts either of its officials or council members.  The members of the association, individually, would not be liable for such tortious acts, except in so far as they individually authorised such acts.”^[15]

25. [25]
    So, the plea that the LNP (meaning its members) engaged in the alleged conduct through the three members is bad in law. 
26. [26]
    The second problem is the erroneous submission that, by being a member of the LNP at the relevant time, each individual member authorised the president and the state director to publish annexure A.
27. [27]
    In Voller, the High Court confirmed that:

“a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher.  All that is required is a voluntary act or participation in its communication.

… [P]ublication may involve acts of participation other than, and which may precede, the actual physical distribution of the defamatory material.”^[16]

“Application of the strict the strict common law rule as to publication, as has been emphasised, has long captured within the meaning of ‘publisher’ all persons who have intentionally assisted in the process of publication. It is unsurprising, therefore, that statements can be found in some cases describing a publisher’s liability for defamatory matter as arising by reason of the person ‘assisting and encouraging’ another to do an act, or that all those who contribute to publication of a libellous book are ‘joint tortfeasors in respect of the ultimate publication’.

Equally clear, however, is that the strictness of the common law rule ensures that all degrees of intentional participation in the process of publication constitute publication for the purposes of the law of defamation. Unlike other areas of tort law or criminal law, where ‘mere assistance’ or ‘mere similarity of design’ may be insufficient to establish liability of an assister as a principal, liability in defamation depends upon ‘mere communication’ of the defamatory matter to a third person, provided the defendant intentionally participated to any degree in that process.”^[17]

28. [28]
    In Voller, the appellant media companies had maintained a Facebook page to which they posted content and facilitated and encouraged the posting of comments by third-party users.  The members of the LNP on 10 December 2019 were not in an analogous position.  There is no evidence that the LNP members, by any voluntarily act, participated in the communication of annexure A to a third person.  There is no evidence that they encouraged or facilitated the publication or that they intentionally lent assistance or contributed, to any extent, to the publication or that they were in any degree accessories to the publication.  The payment of membership fees is not such an act.  Rather, it is agreed for present purposes that the wider LNP members knew nothing about the intended publication of annexure A.  The submission must be rejected that the LNP members authorised its publication by joining or being members of an association for which only the president and state director are authorised to speak publicly.
29. [29]
    The submission that, as a consequence of “inaction” on the part of the state executive members after the publication of annexure A, Mr Hutchinson, Mr O'Dwyer and Mr Cole were or became “agents” of the wider LNP membership at the time of publication must also be rejected.
30. [30]
    Ms Richards’ cause of action for defamation is for damage caused by the original publication of annexure A.  She seeks to recover, as a foreseeable consequence of its publication, the damage which she suffered by reason of its repetition, on the basis that the defendants are responsible for that repetition.^[18] 
31. [31]
    To the extent it is necessary, I respectfully agree with the analysis of “silence” as a means of publication in the reasons of Wigney J in Rush v Nationwide News (No 2), including his Honour’s conclusion that:  

“silence, or the failure to object, to a defamatory communication will not itself constitute a defamatory publication unless the defendant is aware of the entirety of the defamatory publication, and had the opportunity, ability and power to put a stop to it.”^[19]

32. [32]
    The fact that a person remains “silent” after publication does not render them a publisher, an accessory or otherwise a participant in the publication.  Once annexure A was published, none of the LNP members (including the “representative” defendants on the state executive) had the opportunity, ability or power to stop the publication.  Ms Richards does not sue on any republication.  So, any conduct of the purely “representative” defendants – including silence – after the original publication cannot make them participants in the original publication.   
33. [33]
    Given the agreed facts, the summary judgment application must be determined on the basis that, at trial, Ms Richards will not be able to prove her allegation that annexure A was created and published with the knowledge, acquiescence and approval of each of the 12 defendants.  Only Mr Hutchinson and Mr O'Dwyer will be found to have approved or known of the publication of annexure A.  Mr Cole will be found to have published it.
34. [34]
    Mr Morris disavowed the suggestion that Ms Richards’s case against the LNP members was that they were vicariously liable for the defendants’ conduct (or the conduct of Mr Hutchinson, Mr O'Dwyer and Mr Cole).  Of course, a person is not vicariously liable for the conduct of a direct tortfeasor simply because the person was a fellow member of a voluntary association.
35. [35]
    During oral submissions, Mr Morris told the Court that:

“if there is no basis for a representative claim against the members of the State Executive on behalf of the party as a whole, then so be it, and my client will persist in her claim only against the named individuals who published.”

36. [36]
    Ms Richards has not sought an order under r 76 of the UCPR that the 12 defendants represent persons having the same interest.  She would not be entitled to such an order, for the same reasons given by Gowans J in Attorney General for Victoria v City of Brighton, where, in respect of nuisance allegedly committed by some members of the Brighton Aquatic Club:

“Some members might deny participation at a particular point of time in any such conduct as is alleged; other members might deny participation in any particular form of the conduct alleged at any time.  In truth, the form of the common allegation that the members of the club engaged in the conduct alleged obscures the diversity of the allegations put forward. … In my opinion, the plaintiffs are not entitled to sue members of the club guilty of the conduct alleged through a representative party, and the relief claimed by way of and by virtue of a representative order could not be granted on this statement of claim. This conclusion … emerges from the nature of the allegations in the pleadings.”^[20] 

37. [37]
    Mr Morris submitted that to the extent that there may be any doubt as to whether:

“the embrace of liability constituted by participation in any degree in the act of publication includes membership of an organisation which arms people with authority to make public statements on behalf of the members of that collective about a specifically defined range of issues, then that’s a matter that should go to trial and should not be determined summarily.”

38. [38]
    Like the submission considered at paragraphs [21]-[25] above, this submission appears to assume that the LNP is a legal entity capable of “arming” individuals with authority to speak on behalf of all members.  It is not.  If accepted, Mr Morris’s concept of membership as an “embrace of liability” would place each member in the invidious position of being unable to avoid personal liability for an unanticipated wrongful act of the president or state director.  If a person resigned their membership once they learned of a defamatory publication, it would be too late.
39. [39]
    Ms Richards has no real prospect of succeeding on her claim for damages for defamation in respect of annexure A against the members of the LNP, whom the defendants “represent” in the proceeding.  It follows she does not have any real prospect of succeeding in the claim against the defendants “in their representative capacity on behalf of the LNP.” 
40. [40]
    Ms Richards has sued Mr O'Neil, Ms Hardy, Mr Fraser, Mr Spence, Mr Springborg and Mr Tucker only in their “representative capacity”.  She has brought no personal claim against any of them.  She has not pleaded material facts that would constitute a recognised cause of action against any of them.  She has not filed or served the proposed evidence in chief of any witness that could allow the Court to grant judgment or any other relief against any of these defendants.  She has adduced no such evidence in response to the application for summary judgment.
41. [41]
    On the agreed facts, Ms Richards has no real prospect of succeeding in her claim that Ms Forrest participated in any degree in the act of publication of annexure A.  She has not filed, served or pointed to any evidence on which the claim could succeed. 
42. [42]
    From these circumstances, the agreed statement of facts, and the submissions made on her behalf, I infer that Ms Richards does not intend to allege or call any evidence at trial in support of any personal claim against Mr O'Neil, Ms Hardy, Ms Forrest, Mr Fraser, Mr Spence, Mr Ponting, Mr Springborg, Mr Tucker, or Cr Schrinner intentionally assisted in the process of publication of annexure A.  I am satisfied that Ms Richards has no real prospect of succeeding on her claim against them with respect to the publication of annexure A.
43. [43]
    The continuation of this part of her claim against those defendants would cause undue delay in the proceeding.  It would cause the parties to incur additional expense.  It would also interfere with the just and expeditious resolution of the real issues in the proceeding.  Bearing in mind the force of r 5(2) of the UCPR,^[21] and that there is no real prospect of this part of her claim succeeding, I am satisfied there is no need for a trial of Ms Richards’s claim against Mr O'Neil, Ms Hardy, Ms Forrest, Mr Fraser, Mr Spence, Mr Ponting, Mr Springborg, Mr Tucker, or Cr Schrinner and the Court should, in respect of the annexure A defamation claim, give judgment for these defendants pursuant to r 293(2) of the UCPR. 
44. [44]
    For the same reason, the Court should, pursuant to r 658 of the UCPR, strike out paragraph 10 of the amended statement of claim, so that Ms Richards does not continue to maintain the annexure A defamation claim against Mr Hutchinson, Mr O'Dwyer, and Mr Cole “in their representative capacity on behalf of the LNP.”

Extension of the limitation period and summary judgment in respect of the annexure C defamation claim

45. [45]
    Ms Richards alleges that between 10 December 2019 and 1 March 2020, through Mr Hutchinson, the LNP caused annexure C to be disseminated to the news department of the Australian Broadcasting Corporation (ABC) and other media organisations. She also says that this was done with the knowledge, acquiescence and approval of the other defendants. She alleges that annexure C was defamatory of her, and that its publication injured her business, personal and professional reputation, and brought her into public disrepute, odium, ridicule, and contempt. Like her annexure A defamation claim, Ms Richards advances her annexure C defamation claim against all those who were LNP members “on an unknown date between 10 December 2019 and 1 March 2020.”
46. [46]
    The defendants submit this claim is barred by s 10AA of the LAA because the document was published on 29 February 2020, and her claim was not brought until 10 June 2022, more than two years and three months after its publication. Section 10AA of the LAA relevantly provides:

“10AA Defamation actions

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.”

47. [47]
    Ms Richards brought her claim more than 15 months after the limitation period had expired.  She seeks an order extending the period.  Unless the Court extends the limitation period, Ms Richards’s claim is barred. 
48. [48]
    It is common ground that Ms Richards’ application to extend must be made and determined under s 32A of the LAA in the form of that provision at the time annexure C was published.^[22]  It is agreed the provision was then in these terms:

“32A Defamation actions

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.  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.

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.  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.”

49. [49]
    So, Ms Richards must satisfy the Court that it was not reasonable in the circumstances for her to have commenced an action in relation to annexure C within 1 year of 29 February 2020. 
50. [50]
    The Court of Appeal considered an application under the relevant form of s 32A in Noonan v MacLellan. In this case, Keane JA observed:

“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.

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.

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.”^[23]

51. [51]
    Chesterman JA noted one of the unusual aspects of the then s 32A(2) was that:

“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.

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.”^[24]

52. [52]
    His Honour observed that, while the circumstances that might justify an extension are left “at large”:

“Nevertheless they must be so compelling as to make it positively unreasonable for a person defamed not to exercise his legal rights to sue within the statutorily designated period.”^[25]

53. [53]
    After considering three decisions of single judges,^[26] his Honour concluded that:

“To succeed in his application the respondent had to show that he should not have commenced proceedings in time. I do not mean to gloss the statute but I think that is the import of the statutory test: that it was not reasonable to commence an action within the year.

One must therefore examine the circumstances to identify why it would have been unreasonable to sue in time.”^[27]

54. [54]
    In another decision of the Court of Appeal, Pingel v Toowoomba Newspapers Pty Ltd,^[28] Fraser JA followed the decision in Noonan:

“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. …

… a decision under s 32A, where the touchstone of reasonableness allows for a single correct answer just as it does in a decision whether a defendant failed to take reasonable care.”^[29] 

55. [55]
    The enactment of s 32A in the relevant form was part of a uniform approach to the defamation statutes in several Australian jurisdictions.  As might be expected, decisions of single judges in other jurisdictions^[30] have followed the approach in Noonan. 
56. [56]
    In Carey v Australian Broadcasting Corporation, after adopting the approach of Keane JA in Noonan, McCallum J accepted as “plainly right” a submission that:

“The terms of the section in the phrase ‘not reasonable in the circumstances’ necessarily invite inquiry into the plaintiff’s reasons for not commencing proceedings within the limitation period. … [T]o describe the test as an objective one means no more than that a person cannot bring himself or herself within the test by proving only a subjective belief that it was not reasonable to bring the proceedings. Otherwise, the test requires attention to the plaintiff’s actual reasons, as they are a vital part of the circumstances pertinent to whether it was reasonable or not to bring the proceedings within the nominated period.”^[31]

57. [57]
    From the agreed facts and Ms Richards’s own evidence, the following chronology may be constructed:

    1. On 29 February 2020, with the approval of Mr Hutchinson and the knowledge of the Mr O'Dwyer, Mr Cole prepared and sent annexure C to a journalist.
    2. On 1 March 2020, parts of the text in annexure C were included in an online article on the ABC News website by “state political reporter Josh Bavas”.  The article included comments, in direct speech, described as having been made by Mr Hutchinson, as president of the LNP in “a statement to ABC News”.
    3. On 31 March 2020, Ms Richards received annexure C by text message.  In her second sworn statement of evidence, Ms Richards called it “the LNP Undated Media Release”.  Annexure C is written as if the author held authority in the LNP.  As Mr Morris put it, “it’s obviously from someone on the inside”.  The author refers to their “20 years of involvement with the LNP and its predecessor parties”.  The author says of the LNP, “We have the toughest candidate vetting procedures in Australia”, “We understood [referral of complaints about Ms Richards to the Crime and Corruption Commission] was an extraordinary step for a political party to take, and we knew it would create damaging headlines”, and “we did it because we take issues of integrity very seriously.”  Of Ms Richards, the author says, “she is not our candidate”, “it would have been irresponsible for us to recommend her to the people of Pullenvale”, and “We are better off without her". 
    4. As at 31 March 2020, Ms Richards was aware that:
       3. (i)
          the “LNP had given” annexure C to the ABC; and
       3. (ii)
          the ABC had published an online news article on 1 March 2020 about her, noted at (c) above, “referencing ‘a statement to ABC News’ from which the ABC directly” quoted Mr Hutchinson, and that:

“the highly defamatory material referred to in [annexure C] had been widely disseminated across the internet on a number of news handles …, across social media platforms … and in the couriermail.com.au.”

5. On 10 June 2020, Ms Richards “presumed” that “the LNP” was the publisher of annexure C.
6. On 10 August 2020, Ms Richards knew the Mr Cole was the publisher of annexure C and that Mr Hutchinson and Mr O'Dwyer were involved its publication. 
7. On 20 September 2020, Ms Richards “thought the publisher [of annexure C] to be the LNP given the media publications” and that the LNP had prepared the terms of annexure C “which was then provided to the media”.    She “had no knowledge of who was the actual person that published” annexure C.
8. On 20 September 2020, Ms Richards engaged solicitors to act for her concerning a claim for damages for defamation against the LNP.  She briefed them “with all documents relating to the defamation of my character” including annexure C and the ABC News online article of 1 March 2020.^[32] 
9. On 8 November 2020, her solicitors sent concerns notices to 33 individuals, including the 12 defendants, requesting the LNP take remedial steps.  
10. On 8 December 2020, her solicitors filed the claim and original statement of claim, claiming damages for defamation against the 12 defendants on the basis that they wrote, authorised and published annexure A “on or about 10 December 2019”.  The proceeding was commenced the day before expiry of the limitation period for making a defamation claim in relation to annexure A. In the statement of claim, she alleged that each defendant was “jointly and severally liable for the publication” of annexure A “in that [each] wrote, authorised or contributed to its production and publication.”  This pleading was not settled by counsel. 
11. At midnight on 28 February 2021, the limitation period for a defamation proceeding in respect of annexure C expired.
12. On 7 February 2022, Mr Morris was briefed and gave advice about “the claim based on” annexure C.  
13. On 10 June 2022, the amended statement of claim was filed including her claim based on annexure C.  In it, Ms Richards alleged that the LNP, “through” Mr Hutchinson, created annexure C and caused its publication “with the knowledge, acquiescence and approval of each of the Defendants.”  She alleged that annexure C was published “between 10 December 2019 and 1 March 2020”.
14. On 5 August 2022, when she received from her solicitor a copy of the defence to the amended statement of claim, “it was made known” to Ms Richards that Mr Cole was “the publisher” of annexure C. 
15. It was not until 23 May 2023 that she “learnt categorically” that Mr Cole was the publisher of annexure C.

58. [58]
    Mr Morris submitted it would have been imprudent for Ms Richards to institute a claim based on annexure C, with no greater knowledge than she had at 31 March 2020 (i.e., that in paragraph [57](d) above), “without taking full and proper advice.”  That submission may be accepted.  However, Ms Richards has not explained why she did not seek advice about a claim based on annexure C until 7 February 2022, nearly two years after its publication. 
59. [59]
    More acutely, Ms Richards has not explained why she did not take “full and proper advice” in time to permit her to file a claim for damages before 28 February 2021.  Ms Richards’s actual reasons for an apparently lengthy period of inaction would be relevant to whether it was not reasonable for her to bring the proceedings within the limitation period.
60. [60]
    By 31 March 2020, Ms Richards had annexure C and the evidence of its publication.  She had the 1 March 2020 ABC News online article.  It was from a reputable news site.  It was written by the ABC’s state political reporter.   The online article quoted part of annexure C as direct speech from Mr Hutchinson, attributing it to a “statement to ABC News” by him in his capacity as LNP president.  With this information, Ms Richards could have sought legal advice about her right to recover damages for any defamatory matter published in annexure C.  Short of this, she could have sent Mr Hutchinson a concerns notice (as she had done in respect of annexure A) or sought pre-action disclosure from him, Mr O'Dwyer or the secretary of the LNP. 
61. [61]
    From the documents she had by 31 March 2020, Ms Richards also knew that annexure C could not have been published later than 1 March 2020, when the direct quotes from it were republished by ABC News. 
62. [62]
    By 10 August 2020, Ms Richards knew enough of the involvement of Mr Hutchinson, Mr O'Dwyer and Mr Cole to sue them for damages for defamation caused by the publication of annexure C. 
63. [63]
    By 20 September 2020, she had engaged solicitors to act for her concerning a claim for damages for defamation.  By then she had given annexure C and the ABC News online article to her solicitors, amongst other documents “relating to the defamation of [her] character”.  If Ms Richards and her solicitors had turned their minds to a defamation claim for the publication of annexure C, as one would reasonably expect them to have done, then they would have known the relevant limitation period would expire sometime between her filing her original claim on 8 December 2020 and 28 February 2021.
64. [64]
    In respect of annexure A, Ms Richards commenced the proceeding on 8 December 2020, the day before expiry of the limitation period for that claim. From this I infer that she or her legal advisers were conscious of the statutory limitation period under s 10AA of the LAA. This inference is not necessary for the present decision.  She could have included a claim for publication of annexure C in this proceeding when it was commenced.  Alternatively, she could have included it by amending her pleading any time before 1 March 2021.  A further alternative would have been to commence a separate proceeding claiming damages for publication of annexure C before 1 March 2021.  She did not do any of these things.  In these respects, she is in a somewhat similar position to the applicant before Martin CJ in Rayney v The State of Western Australia (No 3).^[33]
65. [65]
    On the evidence before the Court, Ms Richards seems to have “sat on her hands” with respect to annexure C for at least 14 months.  She seems not to have sent any concerns notices about the publication of annexure C.  So, she did not have to consider an offer to make amends for its publication, before deciding to commence a claim.  Although from 8 December 2020 she was engaged in litigation with the defendants about the publication of annexure A, she seems not to have sought specific advice on a claim based on annexure C until long after the limitation period had expired. 
66. [66]
    Ms Richards had solicitors acting for her.  She had briefed them with the relevant documents.  Much of the text of annexure C was not republished in the ABC News online article.  Nor, it seems, did the text make its way into other republications put into evidence.  A logical explanation for Ms Richards’s failure to sue on the publication of annexure C between 8 December 2019 and 1 March 2020 may be that she did not consider it worthwhile. 
67. [67]
    In the amended pleading, Ms Richards alleges the LNP, through Mr Hutchinson, created annexure C and caused it to be “disseminated to the news department of the [ABC] and other media organizations.”  I infer Ms Richards gave instructions for the amended pleading to be filed and served in the first half of 2022.^[34]  By that time, it does not appear she knew anything more about the publication of annexure C than she had known since September 2020.  Her amended pleading was settled by Queen’s Counsel.  It was settled, filed and served with the benefit of any order for disclosure of any documents about the creation or publication or annexure C.  When she made the annexure C claim, she did so against the same 12 defendants she had sued for publication of annexure A.  She did so in the same proceeding.  
68. [68]
    On 29 July 2022, the amended defence would be filed in response to the amended statement of claim.  In it, the defendants would say: that Mr Cole, with Mr Hutchinson’s knowledge, created annexure C; that Mr Cole sent it to a journalist at each of The Courier Mail and the Brisbane Times; and that Mr O'Dwyer authorised its publication.  On 28 August 2023, Ms Richards swore it was not until she read an email from her former solicitor and the attached amended defence that “it was made known” to her that Mr Hutchinson, Mr O'Dwyer and Mr Cole were involved in the publication of annexure C.  This statement seems at odds with her evidence, in the same affidavit, of her knowledge of the publication at 31 March, and 10 August 2020.  Her evidence may be reconciled on the basis that by the words “it was made known” Ms Richards meant that she then learned that the three defendants had admitted acts amounting to publication in the amended defence.
69. [69]
    As Fraser JA noted in Pingel, defamation claims “should ordinarily be pursued very promptly.”^[35]  Ms Richards’s approach here was even more lethargic than the “surprisingly desultory” approach of the plaintiff in that case. 
70. [70]
    Ms Richards has not identified any circumstance in which the Court could conclude that it was not reasonable for her to have taken advice in time to commence an action in relation to the publication of annexure C before 1 March 2021. 
71. [71]
    On the evidence, Ms Richards has failed to satisfy me that it was not reasonable in the circumstances for her to have commenced an action in relation to the publication of annexure C within 1 year from its publication.  Accordingly, an order cannot be made extending the limitation period.  It follows that the Court may not order the extension of the limitation period and her claim in respect of annexure C is barred.  There is no need for a trial on this claim as it has no real prospect of success. A defence based on s 10AA of the LAA will defeat it. 
72. [72]
    The defendants should have summary judgment against Ms Richards on this part of her claim.

Alternative basis for summary judgment for the “representative” defendants

73. [73]
    It is not necessary to consider the additional submissions on behalf of Mr O'Neil, Ms Hardy, Mr Fraser, Mr Spence, Mr Springborg and Mr Tucker that they should have summary judgment against Ms Richards on her annexure C defamation claim, because they are sued only as “representatives” of the LNP.  Nor is it necessary to consider the submissions on behalf of Ms Forrest that she should also have summary judgment on the annexure C defamation claim because the claim that she participated to any extent in its publication has no prospect of succeeding.  
74. [74]
    However, in case my conclusion with respect to Ms Richards’ application for an extension of the limitation period is later found to have been affected by error, I should record that, for the reasons set out at paragraphs [20] to [43] above, Ms Richards’s claim against Mr O'Neil, Ms Hardy, Ms Forrest, Mr Fraser, Mr Spence, Mr Springborg, and Mr Tucker for damages for defamation in respect of the publication of annexure C has no real prospect of success.  There is no need for a trial of that part of her claim.  It would follow that Mr O'Neil, Ms Hardy, Ms Forrest, Mr Fraser, Mr Spence, Mr Springborg, and Mr Tucker are entitled to judgment against Ms Richards on the annexure C defamation claim. 

The civil conspiracy claim against the defendants in a “representative” capacity

75. [75]
    On the current pleading, it is unclear which defendants, and on what basis, Ms Richards advances her civil conspiracy claim against. During the hearing, Mr Morris gave notice of Ms Richards’s intention to amend the current pleading to clarify that her civil conspiracy claim was advanced against Mr Hutchinson, Mr Ponting, Mr O'Dwyer, Mr Schrinner and Mr Cole.  Ms Richards wished to contend these five defendants (and only them) are personally liable to her for the damages claimed for civil conspiracy.  She does not intend to sue the other seven defendants for civil conspiracy in any capacity.
76. [76]
    This makes sense when one considers the whole of the current pleading.  Ms Richards does not allege that “the LNP” through any of the defendants, conspired with any other defendants (or anyone else) to cause her harm by unlawful means.  Nor does Ms Richards allege that all members of the LNP (as members of an unincorporated voluntary association), at the material time, personally participated in any of the alleged principal overt acts involved in the alleged civil conspiracy with full knowledge that it was a concerted action which constituted a civil conspiracy.^[36] 
77. [77]
    In the circumstances, Ms Richards has no real prospect of succeeding in her civil conspiracy claim against Mr O'Neil, Ms Hardy, Ms Forrest, Mr Fraser, Mr Spence, Mr Springborg, and Mr Tucker.  Indeed, she does not intend to pursue that part of her claim against them.  There is no need for a trial of that part of her claim.  They are entitled to summary judgment on the civil conspiracy claim.  
78. [78]
    Subject to any orders made on the present applications, if Ms Richards wishes to continue her civil conspiracy claim against the other defendants,^[37] she should further amend her pleading to claim the relevant relief only against the intended five defendants. 

Costs

79. [79]
    Costs should follow the event.  The defendants have obtained the relief they sought.  The plaintiff has not. 

Final Disposition

80. [80]
    For the reasons set out above, the order of the Court will be:

    1. Ms Richards’s amended application filed 25 October 2023 is dismissed. 
    2. Pursuant to r 293(2) of the UCPR:
       3. (i)
          Mr O'Neil, Mr Hardy, Ms Forrest, Mr Fraser, Mr Spence, Mr Ponting, Mr Springborg, Mr Tucker and Cr Schrinner have judgment against Ms Richards for the part of the claim pleaded in paragraphs 46 to 50 of the amended statement of claim filed 10 June 2022; and
       3. (ii)
          the defendants have judgment against Ms Richards for the part of the claim pleaded in paragraphs 51 to 55 of the amended statement of claim; and 
       3. (iii)
          Mr O'Neil, Mr Hardy, Ms Forrest, Mr Fraser, Mr Spence, Mr Springborg, and Mr Tucker have judgment against Ms Richards for the part of the claim pleaded in paragraphs 17 to 45, 56 and 57 of the amended statement of claim.
    3. Pursuant to r 658 of the UCPR, paragraph 10 of the amended statement of claim be struck out.
81. [81]
    The Court also directs that the parties file and serve any evidence and submissions in relation to costs within 14 days of these reasons.