Barrett v TCN Channel Nine Pty Ltd

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.