Forbes v Brisbane City Council - [2020] QDC 239

DISTRICT COURT OF QUEENSLAND

CITATION:

Forbes v Brisbane City Council & another [2020] QDC 239

PARTIES:

Douglas Forbes

(Plaintiff/Applicant)

v

Brisbane City Council (ABN 72 002 765 795)

(First Defendant/Respondent)

and

Natalie Gyetvay

(Second Defendant/Respondent)

FILE NO/S:

2079/20

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

24 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

2 September 2020

JUDGE:

Byrne QC DCJ

ORDERS:

1. Application granted.

2. Pursuant to section 32A of the Limitation of Actions Act 1974 (Qld), the limitation period in respect of the plaintiff’s cause of action for defamation against the first and second defendants is extended to 18 July 2020.

3. The parties’ costs of the application be costs in the proceeding.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DEFAMATION – LIMITATION PERIOD – where the plaintiff has commenced defamation proceedings after the limitation period – where the plaintiff did not have access to the alleged defamatory material – whether under section 32A of the Defamation Act it was not reasonable for the plaintiff to commence proceedings within the limitation period.

LEGISLATION:

Criminal Code Act 1899 (Qld), s 365.

Defamation Act 2005 (Qld), s 10AA, s 32A.

Limitation of Actions Act 1974 (Qld), s10AA.

Uniform Civil Procedure Rules 1999 (Qld), r 376.

CASES:

Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304.

Noonan v MacLennan [2010] 2 Qd R 537.

Nyoni v Hee (No 2) [2013] FCA 703.

Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175.

Ritson v Gay and Lesbian Community Publishing Ltd [2012] NSWSC 483.

Schoch v Palmer [2016] QSC 147.

State of Queensland v O’Keefe [2016] QCA 135.

COUNSEL:

Mr A. O’Brien for the applicant.

Ms. A. Nicholas for the respondent.

SOLICITORS:

Nyst Lawyers for the applicant.

Barry Nilsson Lawyers for the respondent.

Introduction

On 17 July 2020 the plaintiff filed a Claim and Statement of Claim seeking damages for defamation. The applicant alleged the single defamatory statement was published by the second defendant on 1 May 2019. The applicant alleges that the publication by the second respondent was on behalf of, and as a servant of the first defendant.[1]
[1]Statement of Claim at [13].

Pursuant to section 10AA of the Limitation of Actions Act 1974 (“the Act”), an action for defamation must not be brought more than 12 months after the date of publication of the matter complained off.

On 17 July 2020, the same day as the Claim and the Statement of Claim were filed, the plaintiff applied pursuant to section 32A of the Act for an order extending the limitation period of one year or such other period as the Court deems meet. It is that application which is before me for determination.

Factual background

The plaintiff had previously worked for the first defendant between January 2012 and April 2014. His Statement of Claim asserts that in late 2014 the City Council offered him a voluntary redundancy package, which the he accepted.[2]
[2]Statement of Claim at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Forbes v Brisbane City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] QDC 239
Decision Date: 24 September 2020

CaseChat Overview and Summary

In the matter of Forbes v Brisbane City Council, the plaintiff, Forbes, sought to bring defamation proceedings against the Brisbane City Council and related parties. Forbes claimed that the defendants defamed him through statements made in public communications. The dispute centred on whether Forbes' action was time-barred due to the expiration of the statutory limitation period. Forbes argued that he was not aware of the defamatory statements until a later date, and thus, it was not reasonable for him to commence proceedings within the limitation period.

The primary legal issue the court had to address was whether the statutory limitation period could be extended under section 32A of the Limitation of Actions Act 1974 (Qld). The court examined whether Forbes' lack of access to the defamatory material justified an extension of the limitation period. The court had to balance the principle that limitation periods are designed to encourage prompt action against the circumstances where a plaintiff could not reasonably have been expected to discover the cause of action within the prescribed time.

The court found that Forbes' lack of access to the defamatory material until after the limitation period had expired justified an extension under section 32A. The court reasoned that it was not reasonable for Forbes to commence proceedings within the limitation period given his circumstances. Consequently, the limitation period was extended to 18 July 2020. The court granted the application and ordered that the costs of the application be costs in the proceeding.

Orders

Orders of the court

1. Application granted.

2. Pursuant to section 32A of the Limitation of Actions Act 1974 (Qld), the limitation period in respect of the plaintiff’s cause of action for defamation against the first and second defendants is extended to 18 July 2020.

3. The parties’ costs of the application be costs in the proceeding.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Forbes v Brisbane City Council & another [2020] QDC 239
PARTIES:	Douglas Forbes (Plaintiff/Applicant) v Brisbane City Council (ABN 72 002 765 795) (First Defendant/Respondent) and Natalie Gyetvay (Second Defendant/Respondent)
FILE NO/S:	2079/20
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	24 September 2020
DELIVERED AT:	Brisbane
HEARING DATE:	2 September 2020
JUDGE:	Byrne QC DCJ
ORDERS:	1. Application granted. 2. Pursuant to section 32A of the Limitation of Actions Act 1974 (Qld), the limitation period in respect of the plaintiff’s cause of action for defamation against the first and second defendants is extended to 18 July 2020. 3. The parties’ costs of the application be costs in the proceeding.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DEFAMATION – LIMITATION PERIOD – where the plaintiff has commenced defamation proceedings after the limitation period – where the plaintiff did not have access to the alleged defamatory material – whether under section 32A of the Defamation Act it was not reasonable for the plaintiff to commence proceedings within the limitation period.
LEGISLATION:	Criminal Code Act 1899 (Qld), s 365. Defamation Act 2005 (Qld), s 10AA, s 32A. Limitation of Actions Act 1974 (Qld), s10AA. Uniform Civil Procedure Rules 1999 (Qld), r 376.
CASES:	Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304. Noonan v MacLennan [2010] 2 Qd R 537. Nyoni v Hee (No 2) [2013] FCA 703. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175. Ritson v Gay and Lesbian Community Publishing Ltd [2012] NSWSC 483. Schoch v Palmer [2016] QSC 147. State of Queensland v O’Keefe [2016] QCA 135.
COUNSEL:	Mr A. O’Brien for the applicant. Ms. A. Nicholas for the respondent.
SOLICITORS:	Nyst Lawyers for the applicant. Barry Nilsson Lawyers for the respondent.