Herdy v Targato

Case [2019] QDC 39

DISTRICT COURT OF QUEENSLAND

CITATION:

Herdy v Targato [2019] QDC 39

PARTIES:

MONIQUE JILLIAN NATALIE HERDY
(applicant)

v

CARLY TARGATO
(respondent)

FILE NO/S:

D214/18

DIVISION:

Civil

PROCEEDING:

Originating application

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

28 March 2019

DELIVERED AT:

Maroochydore

HEARING DATE:

28 February 2019

JUDGE:

Long SC DCJ

ORDER:

Application dismissed.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – OTHER CAUSES OF ACTION AND MATTERS – where the respondent published a notification form to the Office of the Health Ombudsman on 3 November 2016 asserting that the respondent had formed a reasonable belief that the applicant had been practising her profession while intoxicated by alcohol or drugs – where the notification triggered an investigation by the Australian Health Practitioner Regulation Agency enquiring into whether the applicant had a physical or mental impairment, disability, condition or disorder that detrimentally affected or was likely to affect her capacity to practice in her profession – where the applicant contends that the notification was false and defamatory – where the applicant was advised on 14 December 2017 that no further action would be taken on the notification – where the applicant wrote to the respondent on 17 December 2017 advising that she would be instructing a legal adviser to commence defamation proceedings – where the applicant did not commence an action for defamation within one year of the publication date pursuant to s 10AA Limitation of Actions Act 1974 (Qld) – where this originating application was filed on 21 December 2018 – where no claim or statement of claim has been filed in the court, or presented as ready to be so filed – whether it was not reasonable for the applicant to have commenced an action for defamation within one year after the respondent’s publication of the notification and, if so what extension of limitation period would be appropriate in the circumstances

LEGISLATION:

Health Practitioner Regulation National Law Act 2009 s 237
Health Practitioner Regulation National Law (Queensland) s 177(a)
Limitation Act 1969 (NSW) s 56A
Limitation of Actions Act 1974 (Qld) ss 32A, 10AA

CASES:

Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304
Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90
Houda v State of New South Wales [2012] NSWSC 1036
Mowen v The Morning Bulletin/APN & Ors [2013] QCA 36
Noonan v MacLennan [2010] 2 Qd R 537
Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175
Ritson v Gay and Lesbian Community Publishing Ltd [2012] NSWSC 483
State of Queensland v O’Keefe [2016] QCA 135

COUNSEL:

M White for the applicant

G Barr for the respondent

SOLICITORS:

Butler McDermott for the applicant

Brennans Solicitors for the respondent

The circumstances

  1. On 21 December 2018 the applicant filed an originating application seeking, as the primary relief:

“That pursuant to s 32A of the Limitation of Actions Act 1974 (Qld) the limitation period for the Applicant’s claim for defamation against the Respondent be extended to 3 November 2019.”

  1. The seeking of such an…

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AGLC
Herdy v Targato [2019] QDC 39
Case
[2019] QDC 39
Decision Date

CaseChat Overview and Summary

The matter before the court was an originating application filed by Herdy, the applicant, against Targato, the respondent. The applicant sought an extension of the limitation period for bringing a defamation action against the respondent. The respondent had published a notification form to the Office of the Health Ombudsman, which alleged that the applicant had been practising her profession while intoxicated by alcohol or drugs. This triggered an investigation by the Australian Health Practitioner Regulation Agency. The applicant contends that the notification was false and defamatory, and that she was advised on 14 December 2017 that no further action would be taken on the notification. The applicant wrote to the respondent on 17 December 2017 advising that she would be instructing a legal adviser to commence defamation proceedings. However, the applicant did not commence an action for defamation within one year of the publication date, as required by section 10AA of the Limitation of Actions Act 1974 (Qld). The originating application was filed on 21 December 2018, but no claim or statement of claim had been filed in the court, or presented as ready to be so filed.

The legal issues before the court were whether it was not reasonable for the applicant to have commenced an action for defamation within one year after the respondent’s publication of the notification, and if so, what extension of the limitation period would be appropriate in the circumstances. The court considered the relevant statutory provisions, case law, and the facts of the case. The court noted that the applicant had been aware of the respondent’s notification and its contents from 3 November 2016, and had taken steps to seek legal advice regarding a potential defamation action. However, the court also noted that the applicant had not taken any further action to pursue a defamation claim until 17 December 2017, and had not commenced an action within one year of the publication date. The court found that it was not unreasonable for the applicant to have commenced an action for defamation within one year after the respondent’s publication of the notification, and that there were no exceptional circumstances that would justify an extension of the limitation period.

The court dismissed the originating application and made no orders for an extension of the limitation period. The court noted that the applicant had not demonstrated any exceptional circumstances that would warrant an extension of the limitation period, and that the applicant had not taken any steps to pursue a defamation claim until after the limitation period had expired. The court also noted that the respondent had not acted in a way that would have caused the applicant to delay in commencing a defamation action. The court held that it was not appropriate to extend the limitation period in these circumstances.

Orders

Orders of the court

Application dismissed.

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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