Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304 Hearing dates: 5 April 2017 Decision date: 28 November 2017 Before: McColl JA at [1],
Simpson JA at [108],
Payne JA at [109]Decision: (1) Grant leave to appeal;
(2) Direct the appellant to file a notice of appeal in the form of the draft within the White Book within seven days;
(3) Dismiss the appeal with costs.Catchwords: LIMITATION OF ACTIONS – defamation – extension of limitation period – application for extension of one year limitation period pursuant to s 56A, Limitation Act 1969 (NSW) – where appellant established not reasonable test – where primary judge granted extension limited to period after the expiry of the limitation period within which it was not reasonable for appellant to have commenced proceedings – whether mandatory to extend limitation period to date appellant filed statement of claim
STATUTORY INTERPRETATION – Limitation Act 1969 (NSW), s 14B, s 56A – whether discretion as to date to which limitation period should be extended – nature of the discretion
WORDS & PHRASES – “up to”Legislation Cited: Civil Law (Wrongs) Amendment Bill 2005 (No 2)
Defamation Act 2005 (NSW)
Defamation Act 2005 (TAS)
Defamation Act 2005 (Vic)
Defamation Amendment Act 2002 (NSW)
Defamation Amendment Bill 2002
Defamation Bill 2005
Interpretation Act 1987 (NSW)
Legal Profession Act 2004 (NSW)
Limitation (Amendment) Act 1998 (ACT)
Limitation Act 1969 (NSW)
Limitation Act 1981 (NT)
Limitation Act 1985 (ACT)
Limitation Act 2005 (WA)
Limitation of Actions Act 1936 (SA)
Limitation of Actions Act 1958 (Vic)
Limitation of Actions Act 1974 (Qld)
Supreme Court Act 1970 (NSW)Cases Cited: Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448; [2012] FCA 1355
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Bull v Attorney-General (NSW) (1913) 17 CLR 370; [1913] HCA 60
CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott (2009) 239 CLR 390; [2009] HCA 47
Carey v Australian Broadcasting Corp (2012) 84 NSWLR 90; [2012] NSWCA 176
Casley v Australian Broadcasting Corporation (2013) 39 VR 526; [2013] VSCA 182
Casley v Australian Broadcasting Corporation [2013] VSC 251
Cave v Robinson Jarvis & Rolf [2002] 2 All ER 641; [2002] UKHL 18
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26
Director of Public Prosecutions (Cth) v Thomas (2016) 315 FLR 31; [2016] VSCA 237
Director of Public Prosecutions v George (2008) 102 SASR 246; [2008] SASC 330
Donovan v Gwentoys Ltd [1990] 1 WLR 472; 1 All ER 1018
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Details
- Case
- [2017] NSWCA 304
- Decision Date
CaseChat Overview and Summary
The appeal concerned an application for an extension of the one-year limitation period for defamation proceedings under section 56A of the *Limitation Act 1969* (NSW). The appellant, Mr Barrett, sought to extend the limitation period beyond the usual one year from the date of publication of the defamatory material. The primary judge had granted an extension, but only to the date upon which it was considered unreasonable for the appellant to have commenced proceedings, rather than to the date the statement of claim was filed. The appeal was heard by McColl, Simpson and Payne JJA in the Court of Appeal of New South Wales.
The central legal issues before the Court of Appeal were whether section 56A of the *Limitation Act 1969* (NSW) conferred a discretion on the court regarding the date to which a limitation period could be extended, and if so, the nature and scope of that discretion. Specifically, the court had to determine whether the primary judge was mandated to extend the limitation period to the date the appellant filed their statement of claim, or if they had a discretion to fix an earlier date. This involved an interpretation of the phrase "up to" within the context of the statutory provision.
The Court of Appeal held that section 56A of the *Limitation Act 1969* (NSW) did grant a discretion to the court regarding the date to which the limitation period could be extended. The court reasoned that the phrase "up to" indicated a maximum limit, not a mandatory endpoint. Therefore, the primary judge had correctly exercised their discretion by extending the limitation period to the date it was no longer reasonable for the appellant to have commenced proceedings, rather than to the date the statement of claim was filed. The court found no error in the primary judge's approach.
The Court of Appeal granted leave to appeal, directed the appellant to file a notice of appeal in the specified form within seven days, and ultimately dismissed the appeal with costs.
The central legal issues before the Court of Appeal were whether section 56A of the *Limitation Act 1969* (NSW) conferred a discretion on the court regarding the date to which a limitation period could be extended, and if so, the nature and scope of that discretion. Specifically, the court had to determine whether the primary judge was mandated to extend the limitation period to the date the appellant filed their statement of claim, or if they had a discretion to fix an earlier date. This involved an interpretation of the phrase "up to" within the context of the statutory provision.
The Court of Appeal held that section 56A of the *Limitation Act 1969* (NSW) did grant a discretion to the court regarding the date to which the limitation period could be extended. The court reasoned that the phrase "up to" indicated a maximum limit, not a mandatory endpoint. Therefore, the primary judge had correctly exercised their discretion by extending the limitation period to the date it was no longer reasonable for the appellant to have commenced proceedings, rather than to the date the statement of claim was filed. The court found no error in the primary judge's approach.
The Court of Appeal granted leave to appeal, directed the appellant to file a notice of appeal in the specified form within seven days, and ultimately dismissed the appeal with costs.
Orders
Orders of the court
(1) Grant leave to appeal;
(2) Direct the appellant to file a notice of appeal in the form of the draft within the White Book within seven days;
(3) Dismiss the appeal with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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