Carey v Australian Broadcasting Corporation

The appeal concerned a defamation proceeding commenced in Western Australia. The Australian Broadcasting Corporation (ABC) sought to rely on section 23 of the *Defamation Act 2005* (WA), which requires leave of the court to bring further defamation proceedings in that jurisdiction. The appellant, Carey, also sought an extension of the one-year limitation period for commencing defamation proceedings under section 56A of the *Limitation Act 1969* (WA). The appeal was heard by Beazley and McColl JJA and Sackville AJA.

The primary legal issues before the court were whether an order granting leave under section 23 of the *Defamation Act 2005* (WA) could be made retrospectively, and whether section 23 was a procedural provision whose non-compliance could be cured retrospectively by an order *nunc pro tunc*. Additionally, the court had to determine whether the test under section 56A(2) of the *Limitation Act 1969* (WA) for granting an extension of the limitation period was wholly objective, and whether the court was satisfied that it was not reasonable in the circumstances to have commenced proceedings within the limitation period.

The Court of Appeal dismissed the appeal. It held that section 23 of the *Defamation Act 2005* (WA) was a substantive provision, not merely procedural, and therefore could not be cured retrospectively by an order *nunc pro tunc*. The court also found that the test under section 56A(2) of the *Limitation Act 1969* (WA) was not wholly objective, and that the appellant had not satisfied the court that it was not reasonable to have commenced proceedings within the limitation period. Consequently, the appellant was ordered to pay the respondent's costs.