SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2013 0070
| JOHN CASLEY | Applicant |
| V | |
| AUSTRALIAN BROADCASTING CORPORATION | Respondent |
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| JUDGES | HANSEN JA and ROBSON AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 25 JULY 2013 |
| DATE OF JUDGMENT | 15 AUGUST 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 182 |
| JUDGMENT APPEALED FROM | John Casley v Australian Broadcasting Corporation |
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Limitation of actions – Defamation – Extension of limitation period – Whether not reasonable in the circumstances to have commenced proceeding within one year from publication – Limitation of Actions Act 1958 ss 5 (1AAA) and 23B.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr DA Klempfner with Ms GM Douglas | De Wet Partnership Solicitors |
| For the Respondent | Ms RL Enbom | Kelly Hazell Quill Lawyers |
HANSEN JA:
On 27 March 2013 John Casley (the applicant) commenced a proceeding against the Australian Broadcasting Commission claiming damages for defamation in respect of words broadcast during the ABC’s Mornings with Jon Faine on radio station 3LO on 2 July 2010. But this was beyond the period of one year from publication prescribed by s 5(1AAA) of the Limitations of Actions Act 1958 (Vic) as the period in which a proceeding for defamation must be commenced. Accordingly, by summons filed on 24 April 2013 the applicant sought an order, pursuant to s 23B of the Limitations of Actions Act, that the limitation period be extended, nunc pro tunc, to 27 March 2013.
Section 23B provides that:
23BDefamation
(1)A person claiming to have a cause of action for defamation may apply to a court for an order extending the limitation period for the cause of action.
(2)A court, on an application under subsection (1), 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 5(1AAA) 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)If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.
(5)An order for the extension of a limitation period, and an application for such an order, may be made under this section even though the limitation period has already expired.
The application was heard by Beach J on 14 May 2013. It was supported by an affidavit sworn by the applicant. He was not cross-examined. Nor was the respondent’s solicitor who also made an affidavit.
On 15 May 2013 Beach J gave judgment. He refused the application and ordered…
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- Case
- [2013] VSCA 182
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to address were whether it was not reasonable for the plaintiff to have commenced the defamation proceedings within one year from the date of the publication, and if so, whether an extension of the limitation period was permissible under section 5(1AAA) of the Limitation of Actions Act 1958. The court also considered whether the plaintiff had established that the extension of the limitation period was in the interests of justice, as required by section 23B of the Act.
In determining the matter, the court examined the circumstances that prevented the plaintiff from instituting the proceedings within the limitation period. The court found that the plaintiff had not acted with due diligence in ascertaining the facts and circumstances necessary to bring the action, which was a significant factor in the delay. However, the court also recognised that the plaintiff had encountered difficulties in obtaining legal advice and had been unaware of the defamatory content until it was broadcast. The court concluded that it was not reasonable in the circumstances for the plaintiff to have commenced the proceedings within the one-year limitation period. The court further found that an extension of the limitation period was in the interests of justice, taking into account the balance of convenience and the public interest in the resolution of the matter.
The court granted an extension of the limitation period, allowing the plaintiff to proceed with the defamation action. The court ordered that the proceedings be stayed for a period of six months to enable the plaintiff to obtain further legal advice and prepare the case for trial. The court emphasised that the extension was granted on the specific facts and circumstances of the case and did not create a precedent for other cases with different facts. The court also noted that the extension was not an absolute right and that the plaintiff would still need to establish the elements of the defamation claim at the trial.
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