Surie v MacDonald

The respondent sued the applicants in defamation for imputations published in a letter to the Department of Education. It was later discovered through non-party disclosure from the Department that the imputations were published in an email, not a letter. The applicants had not disclosed the email. The limitation period subsequently accrued, and the respondent filed and served an amended statement of claim. The primary judge extended the limitation period, and the applicants sought leave to appeal the primary judge’s findings and orders. Justice Brown, with whom Mullins P and Crowley J agreed, concluded that the primary judge made no errors. First, the primary judge’s conclusion that the applicants breached their disclosure obligations was upheld, as the email was “directly relevant” to proving or disproving that the applicants had published defamatory imputations to the Department. Second, a fresh concerns notice was not required before amendments could be made to the statement of claim as the concerns notice provisions apply before proceedings have been issued and not to amendments to existing proceedings. The application for leave to appeal was dismissed.

Mullins P, Brown JA and Crowley J

13 December 2024

Background

The respondent brought a defamation action against the applicants within the relevant limitation period. The respondent pleaded that the applicants published defamatory imputations about her in a “letter” sent by the applicants to the Department of Education (“the Department”). The applicants did not make disclosure of the “letter”. The respondent later discovered – through non-party disclosure from the Department – that the publication was made via email to the Department in almost exactly the same terms as the pleaded letter. Shortly after the respondent obtained the email, the limitation period for the defamation action expired. As a result of the discovery of the email, the respondent amended her claim and statement of claim to add further causes of action outside the limitation period. The respondent subsequently served the amended statement of claim and applied for leave to amend the claim and statement of claim. [3], [11]–[12], [15]–[21].

The primary judge granted leave to extend the limitation period for the additional causes of action and further ordered that an email referred to in the amended statement of claim and sent from the first applicant’s email address should have been disclosed on the basis of the issues in dispute. [23]. In the Court of Appeal, the applicants sought to appeal the primary judge’s orders and to have them set aside, arguing that the primary judge erred, relevantly:

(a)in finding that the applicants breached their duties of disclosure under r 5 Uniform Civil Procedure Rules 1999 (“UCPR”) by not providing the email referred to in the statement of claim and ordering the applicants to disclose the email;

(b)in extending the limitation period; and

(c)in finding that no new concerns notice needed to be issued as a result of the additional causes of action which were added in the amended statement of claim. [4], [5], [24].

Was there an obligation to disclose the email?

The applicants argued that because it was specifically pleaded that the publication of the defamatory imputations was made by a “letter”, it did not need to disclose the email. The respondent contended, and Brown JA agreed, that the applicants’ approach was overly technical and that the primary judge did not err. The primary judge considered that it made no difference to the obligation to disclose that the statement of claim was mistaken that the physical form of the alleged defamatory content was in an email and not a letter. The primary judge also found that the approach of the applicants in adopting fine distinctions about disclosure was contrary to the approach that should be adopted in identifying the real issues, particularly in light of r 5 UCPR. Justice Brown agreed with the respondent that the applicants’ approach was overly technical and that the primary judge did not err. [27], [29]–[30].

Justice Brown considered that the email was “directly relevant” to the matters in issue in the sense of being “something which tends to prove or disprove the allegation in issue”: Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Ltd [2011] QSC 183, [16]. That was because the commonality in language between the email and letter, and the fact that the email was sent directly to the Department apparently by the applicants could by inference directly prove or disprove the allegation that the applicants published defamatory imputations to the Department. Justice Brown’s view was that the primary judge made no error in concluding that the applicants drew very fine distinctions as to what was in issue on the pleadings and that that approach was contrary to resolving the real issues in dispute in the most expeditious way in the context of r 5 UCPR. [31]–[34].

Did the primary judge err in extending the limitation period?

The applicants complained that the primary judged erred in exercising his discretion in determining that it was just and reasonable to extend the limitation period pursuant to s 32A Limitation of Actions Act 1974. [35]. Justice Brown considered that this complaint was of no substance as the primary judge stated that he would have concluded, irrespective of whether he concluded that the applicants breached their disclosure obligations, that there was a satisfactory reason for the delay by the respondent in amending the statement of claim as the respondent was not aware of the email and the process of non-party disclosure was time-consuming. Justice Brown concluded that the primary judge weighed all the relevant factors and turned his mind to all relevant considerations when considering the question of delay, and was not in error in finding it was just and reasonable to allow the extension of time. [40]–[46].

Was a fresh concerns notice required?

The respondent had originally provided the applicants with a concerns notice which referred to the “letter” and its contents, but no concerns notice was provided in relation to the email. The applicants contended that the extension of the limitation period should not have been granted because no concerns notice was served in relation to the new causes of action introduced in the amended statement of claim, and therefore that the institution of the proceedings was in respect of a different matter than the matter the subject of the amended statement of claim. The applicants also contended that s 12B Defamation Act 2005 operated as a bar to the new causes of action without a new concerns notice having been issued. [47]–[48]. Section 12B provides:

“12BDefamation proceedings can not be commenced without concerns notice

(1)An aggrieved person can not commence defamation proceedings unless—

(a)the person has given the proposed defendant a concerns notice in respect of the matter concerned; and

(b)the imputations to be relied on by the person in the proposed proceedings were particularised in the concerns notice; and

(c)the applicable period for an offer to make amends has elapsed.

(2)Subsection (1)(b) does not prevent reliance on—

(a)some, but not all, of the imputations particularised in a concerns notice; or

(b)imputations that are substantially the same as those particularised in a concerns notice.

(3)The court may grant leave for proceedings to be commenced despite non-compliance with subsection (1)(c), but only if the proposed plaintiff satisfies the court—

(a)the commencement of proceedings after the end of the applicable period for an offer to make amends contravenes the limitation law; or

(b)it is just and reasonable to grant leave.

(4)The commencement of proceedings contravenes the limitation law for the purposes of subsection (3)(a) if the proceedings could not be commenced after the end of the applicable period for an offer to make amends because the court will have ceased to have power to extend the limitation period.”

The primary judge rejected the applicants’ arguments at first instance and considered that s 12B did not apply to amendments to the proceedings. [49]. Justice Brown agreed with this conclusion, holding that the better view is that s 12B applies before proceedings have been issued and not to amendments to proceedings. Her Honour reached that conclusion having regard to, inter alia:

(a)the wording of s 12B(1) referring to a person not being able to “commence defamation proceedings unless” the preconditions in s 12B(1)(a)–(c) are met;

(b)the fact that this construction is supported by the Explanatory Note to the relevant amending Act and the second reading speech; and

(c)the fact that if an offer to make amends is made and not accepted, s 18 provides it is a defence to the action for defamation in relation to the matter if the preconditions in s 12B(1)(a)–(c) are satisfied, but an offer to make amends cannot be made if a defence has been served in relation to the matter. [51].

Justice Brown also relied on cases in other jurisdictions which provided some support for that construction. For example, in Newman v Whittington [2022] NSWSC 1725, [27], Rothman J considered that the purpose of the equivalent New South Wales provisions was “to ensure that proceedings commenced for defamation related to reputational damage that caused serious harm and, to the extent possible, to bring forward and to encourage the early resolution and settlement of the issues between the parties” and that the prohibition in s 12B of the New South Wales legislation did not apply to the amendment of the statement of claim to add two further publications after the plaintiff had already commenced proceedings. [52]–[53]. Further, in Cooper v Nine Entertainment Company Pty Ltd (2023) 169 ACSR 584, McElwaine J rejected the argument that a concerns notice was a statutory pre-requisite to each and every publication relied on and held that a new concerns notice did not need to be issued for each publication. His Honour stated at 597 [36]:

“The requirement to inform the publisher ‘of the defamatory imputations …’ is concerned with the defamatory stings and not with multiple causes of action which the aggrieved person may have based on separate publication of material complained about.”

His Honour considered that the Tasmanian equivalent of s 12B(1)(a) was satisfied where the aggrieved person identifies in a concerns notice a publication, or some of many, which the person contends to be defamatory. Once that is identified, the proceeding subsequently commenced is in respect of the identified matter. [55]–[58].

Justice Brown considered that the approaches of McElwaine and Rothman JJ accords with the terms of the Defamation Act 2005 and is consistent with the apparent intent of the provisions in Pt 3 Div 1 to encourage parties to resolve a matter before proceedings are commenced. Her Honour therefore held that s 12B does not operate as a statutory bar to the additional causes of action absent a fresh concerns notice. In any event, although the concerns notice stated that the defamatory material was contained in a “letter”, the email the material was actually contained in was in substantially the same terms as the “letter” and the concerns notice set out in detail those contents. Justice Brown held that there was no error in the primary judge finding that the concerns notice issued by the respondent was sufficient to identify the “matter” in question, particularly considering the broad definition of “matter”. [59], [61]–[63], [66].

Disposition

Mullins P and Crowley J joined in Brown JA’s conclusions. As there were no reasonably arguable errors in the primary judge’s findings, leave to appeal was refused and the applicants were ordered to pay the respondent’s costs of the application. [1], [68]–[71].

A Lukacs