Defamation - Limitation Act 2005 (WA) - Application under s 40(1) of the Limitation Act for leave to commence an action relating to the publication of defamatory matter even though one year had elapsed since the publication - Proper construction of s 40 of the Limitation Act - Whether, if the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within one year from publication, the applicable limitation period is three years - Whether, if the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within one year from publication, the court has a discretion in respect of the length of any extension of time, subject to the three year limit prescribed by s 40(3) - Whether the primary judge erred in law in dismissing the appellant's extension application and in dismissing the appellant's action against the respondent by deciding, in the exercise of his discretion, that the appropriate extension under s 40(2) was for a period ending before the appellant filed his writ of summons
Legislation:
Limitation Act 2005 (WA) Rules of the Supreme Court 1971 (WA)
[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.
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Details
AGLC
Meyer v Solomon [2021] WASCA 168
Case
[2021] WASCA 168
Decision Date
CaseChat Overview and Summary
The Court of Appeal of the Supreme Court of Western Australia heard an appeal brought by Benjamin Jacob Meyer against the decision of Kenneth Martin J to dismiss his defamation action and his application for an extension of the limitation period under section 40 of the Limitation Act 2005 (WA). The appeal was dismissed. The appellant, Meyer, commenced proceedings against Marcus Nathan Solomon alleging defamation on 1 June 2018, more than three years after the alleged defamatory email was sent by Solomon on 3 June 2015. Meyer sought an extension of time to bring his action, but the primary judge dismissed both the action and the application for an extension. The Court of Appeal found that the primary judge's construction of section 40 of the Limitation Act was correct and that the discretion exercised by the primary judge in determining the length of the extension was not miscarried. However, the Court of Appeal found that in the exercise of its discretion, the primary judge had failed to give adequate weight to the tragic events that occurred in the appellant's family in December 2017, which led to the conclusion that the extension granted was unreasonable. The Court of Appeal re-exercised its discretion and would have granted an extension only until 8 December 2017. However, given the late commencement of proceedings by Meyer, there would be no utility in granting such an extension.