Meyer v Solomon

[2021] WASCA 168

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   MEYER -v- SOLOMON [2021] WASCA 168

CORAM:   BUSS P

MURPHY JA

MITCHELL JA

HEARD:   20 APRIL 2021

DELIVERED          :   17 SEPTEMBER 2021

FILE NO/S:   CACV 23 of 2020

BETWEEN:   BENJAMIN JACOB MEYER

Appellant

AND

MARCUS NATHAN SOLOMON

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   KENNETH MARTIN J

File Number            :   CIV 1938 of 2018

Catchwords:

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)

Result:

Leave to appeal granted
Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant	:	Mr S Fitzpatrick
Respondent	:	Ms R Young & Mr J Winton

Solicitors:

Appellant	:	Mackay Chapman
Respondent	:	Williams & Hughes

Case(s) referred to in decision(s):

ABT17 v Minister for Immigration [2020] HCA 34; (2020) 94 ALJR 928

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27

Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247

Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485

Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304; (2017) 96 NSWLR 478

Burns v Minister for Health [2012] WASCA 267; (2012) 45 WAR 276

Casley v Australian Broadcasting Corporation [2013] VSCA 182; (2013) 39 VR 526

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503

Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423

House v The King (1936) 55 CLR 499

Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605

Meyer v Solomon [2019] WASC 458

Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194

Noonan v MacLennan [2010] QCA 50; (2010) 2 Qd R 537

Pedersen v The State of Western Australia [2010] WASCA 175

Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

The Commonwealth of Australia v Mewett [1997] HCA 29; (1997) 191 CLR 471

The Commonwealth of Australia v Verwayen [1990] HCA 39; (1990) 170 CLR 394

Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510

Vagh v The State of Western Australia [2007] WASCA 17

TABLE OF CONTENTS

BUSS P

The filing and serving of the appellant's writ of summons and the appellant's application for an extension of time

Various background facts and circumstances asserted by the appellant

The relevant scheme of the Act

The proceedings before the primary judge

Ground 1:  the appellant's submissions

Ground 1:  the respondent's submissions

Ground 1:  its merits

Ground 2:  the appellant's submissions

Ground 2:  the respondent's submissions

Ground 2:  its merits

Conclusion

MURPHY JA

MITCHELL JA

Summary

Factual background

Legislation

Primary judge's decision

Section 40(2) confers a discretion as to the length of the extension

Did the exercise of the primary judge's discretion miscarry?

Re-exercise of the discretion

Orders

BUSS P:

1. On 6 August 2019, the appellant (as plaintiff) filed a chamber summons in the General Division of the Supreme Court in which he applied for an extension of time until 1 June 2018, pursuant to s 40 of the Limitation Act 2005 (WA) (the Act), to commence proceedings against the respondent (as defendant) in respect of alleged defamatory statements contained in an email (the 3 June 2015 email) published by the respondent on or about 3 June 2015.

2. The appellant's extension application sought leave nunc pro tunc in respect of an action commenced by the appellant on 1 June 2018, when he filed a writ of summons in the General Division of the Supreme Court.

3. On 24 September 2019, Kenneth Martin J heard the extension application.  On 17 December 2019, his Honour ordered that the extension application and the action commenced by the writ of summons be dismissed.  His Honour published reasons for decision.  See Meyer v Solomon.[1]

   [1] Meyer v Solomon [2019] WASC 458.

4. The appellant has applied for leave to appeal to this court. Leave to appeal is required under s 60(1)(f) of the Supreme Court Act 1935 (WA) because his Honour's order dismissing the extension application was interlocutory. See, generally, Hall v Nominal Defendant.[2]

   [2] Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423, 441, 445.

5. The appellant relies upon two grounds of appeal.

6. Ground 1 alleges that the primary judge erred in law in dismissing the appellant's extension application by rejecting a construction of s 40 of the Act to the effect that, if the court is satisfied that it was not reasonable in the circumstances for the appellant (as plaintiff) to have commenced an action in relation to the alleged defamatory statements within one year from the publication, the applicable limitation period is three years from publication and, instead, deciding that s 40 conferred a discretion on the court in respect of the length of any extension of time.

7. Ground 2 alleges, in the alternative to ground 1, that his Honour erred in law in dismissing the appellant's extension application and in dismissing the appellant's action, by deciding in the exercise of his discretion that the appropriate extension was for a period ending before 1 June 2018.

8. Neither ground of appeal has been made out.  I would grant leave to appeal, but the appeal must be dismissed.

The filing and serving of the appellant's writ of summons and the appellant's application for an extension of time

1. As I have mentioned, the alleged defamatory statements were contained in the 3 June 2015 email published by the respondent on or about that date.

2. By s 15 of the Act, an action relating to the publication of defamatory matter cannot be commenced if one year has elapsed since the publication.

3. However, by s 40(1) of the Act, a plaintiff may apply to a court for leave to commence an action relating to the publication of defamatory matter even though one year has elapsed since the publication. Section 40(2) provides that, subject to s 40(3), on an application under s 40(1), a court, 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 one year from the publication, must extend the time in which the action can be commenced. However, by s 40(3), an action relating to the publication of defamatory matter cannot be commenced if three years have elapsed since the publication.

4. On 1 June 2018, the appellant filed a writ of summons in the General Division of the Supreme Court.

5. The indorsement of claim on the writ reads:

   The plaintiff claims damages in connection with defamatory representations … made directly or indirectly by the defendant to the plaintiff's employer, being Star-K Kosher Certification … on or around 3 June 2015, as a result of which the plaintiff suffered direct and indirect losses including loss of income.

   Pursuant to s 40(1) and (2) of [the Act], the plaintiff seeks leave for an extension of the time permitted to commence these proceedings.

6. On 29 May 2019, the appellant served the writ on the respondent.

7. By a chamber summons filed on 6 August 2019, the appellant made the application for an extension of time pursuant to s 40 of the Act. The orders sought in the chamber summons included an order that, pursuant to s 40(2) of the Act, the limitation period for the appellant's cause of action in defamation against the respondent be extended to 1 June 2018, being the date on which the appellant filed the writ.

Various background facts and circumstances asserted by the appellant

1. Various background facts and circumstances are asserted in the appellant's affidavits affirmed 2 August 2019 and 30 August 2019, which the appellant relied upon in support of his extension application.  The facts and circumstances set out at [17] to [28] below are taken from those affidavits.

2. In late November 2014, the appellant commenced a relationship with Dr Alzena MacDonald (who subsequently became his wife).  The appellant is Jewish.  Dr MacDonald was not Jewish.

3. In February 2015, the appellant and Dr MacDonald decided to marry.

4. When the appellant and Dr MacDonald decided to marry, they also decided that Dr MacDonald would apply for conversion to Judaism under the auspices of the Sydney Beth Din.

5. On 12 April 2016, Dr MacDonald converted to Judaism.

6. On 3 July 2016, the appellant and Dr MacDonald were married in Perth.

7. Between September 2005 and May 2015, the appellant worked part-time for Star-K Kosher Certification (Star-K).  Star-K is a corporation based in Baltimore in the United States of America.  Star-K provides kosher certification to companies throughout the world.  The appellant's work involved visiting factories in various parts of the world for the purpose of verifying that the products being produced complied with Jewish kosher dietary laws.

8. On 19 July 2015, an email written by Joel Weinberger, the director of Star-K's South Asia office, which appeared to be intended for Rabbi Avraham Mushell, the senior administrator of Star-K in Baltimore responsible for South and East Asia, was accidentally forwarded to the appellant, stated in effect that the appellant should not anticipate any work opportunities in the following months.

9. The appellant's last engagement with Star-K was in April/May 2015.  Since that time Star-K has not given the appellant any further work.

10. The respondent is a Rabbi.  At all material times he practised in Perth as a barrister.

11. During 2015 and 2016 the appellant corresponded with various people about his lack of employment opportunities with Star-K.

12. In early August 2016, the appellant telephoned Rabbi Mushell, who told the appellant that he had not received any further work from Star-K because he did not have 'a shem tov' (that is, a good name) in Perth.

13. In early September 2016, the appellant telephoned Rabbi Mushell again, who informed the appellant that Star-K had been told by a Perth based 'Rabbi who was a lawyer' that the appellant did not have 'a shem tov'.  Rabbi Mushell also informed the appellant that he would be re‑engaged by Star-K if he 'moved to Melbourne or Sydney, or some other community' or if he obtained a letter from the respondent attesting favourably to his reputation. 

14. The respondent did not file any affidavits in opposition to the appellant's extension application.

The relevant scheme of the Act

1. Part 2 of the Act is headed 'Limitation periods' and comprises s 11 to s 29.

2. Section 11(1) provides, relevantly, that div 3 of pt 2 has effect subject to pt 3. Division 3 is headed 'Limitation periods for particular causes of action' and comprises s 14 to s 29.

3. By s 15:

An action relating to the publication of defamatory matter cannot be commenced if one year has elapsed since the publication.

1. Part 3 of the Act is headed 'Extension or shortening of limitation periods' and comprises s 30 to s 54.

2. In s 3(1) of the Act the term 'extension application' is defined to mean an application under s 38, s 39, s 40, s 41 or s 42.

3. Division 1 of pt 3 is headed 'Extension for persons under 18 years when cause of action accrues' and comprises s 30 to s 34.  Section 34 provides that s 30, s 31, s 32 and s 33 do not apply to an action relating to the publication of defamatory matter.

4. Division 2 of pt 3 is headed 'Extension for persons with mental disability' and comprises s 35 to s 37.  Section 37 provides that s 35 and s 36 do not apply to an action relating to the publication of defamatory matter.

5. Division 3 of pt 3 is headed 'Extension by courts' and comprises s 38 to s 44.

6. Section 38 empowers a court to extend time to commence actions in cases of fraud or improper conduct.  Section 38(4) provides that s 38 does not apply to an action relating to the publication of defamatory matter.

7. Section 39 empowers a court to extend time to commence actions for personal injury or under the Fatal Accidents Act 1959 (WA). Obviously, s 39 does not apply to an action relating to the publication of defamatory matter.

8. As I have mentioned, s 40 empowers a court to extend time to commence defamation actions. Section 40 provides:

   (1)A plaintiff may apply to a court for leave to commence an action relating to the publication of defamatory matter even though one year has elapsed since the publication.

   (2)Subject to subsection (3), on an application a court, 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 one year from the publication, must extend the time in which the action can be commenced.

   (3)An action relating to the publication of defamatory matter cannot be commenced if 3 years have elapsed since the publication.

9. Section 41 empowers a court to extend time to commence action by a person who was under 18 years of age when a cause of action accrued to that person.  Section 41(4) provides that s 41 does not apply to an action relating to the publication of defamatory matter.

10. Section 42 empowers a court to extend time to commence action by a person who suffers a mental disability at any time after a cause of action accrues to that person.  Section 42(4) provides that s 42 does not apply to an action relating to the publication of defamatory matter.

11. Section 43 is concerned with jurisdiction and procedure.  By s 43(1), relevantly, an extension application is to be made by summons in the jurisdiction in which the existing action, if any, has been brought or the proposed action would be brought if the application were successful, as is relevant to the case.  By s 43(5), an extension application can be sought or determined at any time before or after the issue, or close of, pleadings.

12. Section 44 specifies certain matters which a court must consider when deciding, on an extension application, whether to extend the time for the commencement of an action. Section 44 provides:

    When deciding, on an extension application, whether to extend the time for the commencement of an action, a court is to have regard to ‑

    (a)whether the delay in commencing the proposed action, whatever the merit of the reasons for that delay, would unacceptably diminish the prospects of a fair trial of the action; and

    (b)whether extending the time would significantly prejudice the defendant (other than by reason only of the commencement of the proposed action).

13. Section 79 is concerned with the burden of proof.  By s 79(1), relevantly, a defendant in an action has the burden of proving that the action cannot be commenced because the applicable limitation period has expired.  By s 79(3), the plaintiff in an extension application has the burden of proving that a court should extend the relevant limitation period.

The proceedings before the primary judge

1. As I have mentioned, in the proceedings before the primary judge:

   (a)the appellant relied upon the affidavits referred to at [16] above in support of his extension application; and

   (b)the respondent did not file any affidavits in opposition to the extension application.

2. His Honour found, in effect, that the appellant did not become aware of the existence of the 3 June 2015 email until about 9 June 2017.  His Honour said that 'at least by 9 June 2017' the appellant 'now knew that there had been a 3 June 2015 email concerning him' that had been sent by the respondent to Amos Benjamin of Star-K.  His Honour added that, as a result, since at least 9 June 2017 the appellant 'had knowledge that he might hold some cause of action against [the respondent], depending upon a proper assessment once the actual content of the 3 June 2015 email itself concerning [the appellant's] "shem tov" (good name) was fully seen and evaluated' [48] (original emphasis).

3. The appellant filed the writ of summons on 1 June 2018 without having seen the 3 June 2015 email. The appellant did not pursue a third party discovery action against Mr Benjamin, pursuant to O 26A of the Rules of theSupreme Court 1971 (WA), or pre-action discovery against the respondent, pursuant to O 26A, to obtain a copy of the 3 June 2015 email. As the primary judge noted, 'the 3 June 2015 email has still not been seen by [the appellant]' and whether 'its content is arguably defamatory of [the appellant's] reputation … still remains a matter for an assessment' [61].

4. The appellant contended before his Honour that:

   (a)it was not reasonable for him to have commenced proceedings against the respondent within one year from the publication of the 3 June 2015 email;

   (b)if it was not reasonable for him to have commenced proceedings within one year from the publication, the court was required under s 40(2) of the Act to grant an extension of time;

   (c)if the court was required under s 40(2) to grant an extension of time, the court had no discretion as to the length of the extension and was bound to grant an extension of three years from the date of publication, being the limit specified in s 40(3); and

   (d)the court could grant leave nunc pro tunc to regularise the filing by the appellant of the writ of summons before an extension of time was granted.

5. The primary judge accepted that:

   (a)it was not reasonable for the appellant to have commenced proceedings against the respondent within one year from the publication of the 3 June 2015 email [82];

   (b)in those circumstances, the court was required to grant the appellant an extension of time [83]; and

   (c)the court could grant leave nunc pro tunc to regularise the filing of the writ [55], [193].

6. However, his Honour rejected the appellant's contention that the court had no discretion as to the length of the extension. In particular, his Honour rejected the appellant's contention that if it was not reasonable for the appellant to have commenced proceedings against the respondent within one year from the publication, the court was bound to grant an extension of three years from the date of publication [56], [73], [83]. Rather, his Honour held that s 40(2) conferred on the court a discretion at large to extend time for a period of up to the three year limit from the date of publication referred to in s 40(3) [56].

7. The primary judge decided 'as a matter of discretion' that his Honour 'would not extend the time period … beyond, say, 11 August 2017' [140]. His Honour was of the view that an extension until 11 August 2017 would have allowed sufficient time for the appellant to await a response from the respondent to an email of 11 July 2017 sent by the appellant to the respondent (in fact, there was no response) and for the appellant to obtain 'some urgent legal advice about his defamation position in all those circumstances' [140]. His Honour then observed that 'if [his Honour] were thought to be too harsh or wrong about that, then [his Honour] would, in the alternative, grant a further extension of only six more months beyond 11 July 2017 to [the appellant] to apply for leave, namely, to 11 January 2018' [141]. His Honour considered that an extension of that length would have allowed for prompt action by the appellant after he became aware in June 2017 of the existence of the 3 June 2015 email [141]. The prompt action referred to by his Honour would have involved the appellant either invoking the court process to obtain a copy of the 3 June 2015 email [141] or seeking leave under s 40 before commencing proceedings [63], [155]. His Honour was of the view that the appellant's 'inaction from beyond December 2017 by not seeking leave … under s 40(2) … [was] not at all satisfactorily explained' [63]. His Honour stated his conclusion, at the end of his reasons, that '[i]n all the circumstances, [his Honour] would be amenable to grant an extension of time pursuant to s 40(2) … to 11 January 2018' [205].

1. However, in the result, the extension of time which the primary judge would have been willing to grant the appellant to commence the proceedings (namely, to 11 August 2017 or alternatively to 11 January 2018) was insufficient to bring the writ of summons within time.  Accordingly, his Honour dismissed both the appellant's extension application and the action the subject of the writ [63], [205].

Ground 1:  the appellant's submissions

1. Counsel for the appellant submitted that, having regard to the text and structure of s 15 and s 40 of the Act:

   (a)s 15 prescribes the ordinary rule in relation to the limitation period for defamation actions, being one year from publication;

   (b)s 40(1) permits a plaintiff to seek leave to commence a defamation action, notwithstanding that one year has elapsed since publication;

   (c)s 40(2) requires a court to extend time if it is satisfied that it was not reasonable for the plaintiff to have commenced proceedings within one year from publication; and

   (d)s 40(3) prescribes a substituted rule, namely the limitation period for defamation actions, where time is extended under s 40(2), is three years from publication.

2. Counsel accepted that his submissions as to the proper construction of s 15 and s 40 were different from the construction adopted by intermediate appellate courts of counterpart provisions in New South Wales, Queensland and Victoria. See Barrett v TCN Channel Nine Pty Ltd;[3] Pingel v Toowoomba Newspapers Pty Ltd;[4] and Casley v Australian Broadcasting Corporation.[5] It was contended that this difference was of no consequence. First, although s 40 of the Act was enacted against the background of the Model Defamation Provisions (MDP) prepared by the Parliamentary Counsel's Committee, and approved by the Standing Committee of Attorneys-General on 21 March 2005, the provision was not a component of uniform national legislation to which consistent interpretation should be given across Australian jurisdictions. Secondly, and more significantly, notwithstanding the defamation reform across the States and Territories which led to the drafting of model legislation, it is apparent that each State and Territory has enacted local legislation in different terms, to give effect to their particular policy preferences. For example, references to extensions of 'up to three years', which appear in the legislation of other Australian jurisdictions,[6] are not replicated in s 40.

   [3] Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304; (2017) 96 NSWLR 478.

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

   [5] Casley v Australian Broadcasting Corporation [2013] VSCA 182; (2013) 39 VR 526.

   [6] See s 56A of the Limitation Act 1969 (NSW); s 23B of the Limitation of Actions Act 1958 (Vic); s 32A of the Limitation of Actions Act 1974 (Qld); s 37B of the Limitation of Actions Act 1936 (SA); s 20A of the Defamation Act 2005 (Tas); s 44A of the Limitation Act 1981 (NT); and s 21BB of the Limitation Act 1985 (ACT).

3. Counsel noted that s 40 is contained in pt 3, div 3 of the Act, together with other provisions for court ordered extensions of time in cases of fraud or improper conduct (s 38), personal injury claims or actions under the Fatal Accidents Act (s 39), causes of action that accrued to persons under the age of 18 (s 41) and causes of action that accrued to persons with mental disabilities (s 42). Each of s 38, s 39, s 41 and s 42 uses the expression 'a court may extend' and conditions the extension power by a reference to a period 'up to' a stated maximum. Both of those aspects of each of s 38, s 39, s 41 and s 42 point to a discretion as to the length of any extension to be granted.

4. Counsel emphasised that, by contrast, s 40 (as a qualification to s 15) operates differently. Section 40 read with s 15 codifies the limitation rule for defamation actions. That codification is reinforced by s 38(4), s 41(4) and s 42(4), which expressly exclude defamation actions from the operation of s 38, s 41 and s 42 respectively. Section 39 also has no application to defamation actions because it deals with claims for personal injury and claims under the Fatal Accidents Act.

5. It follows, so it was submitted, that s 15 and s 40 are to be construed together. Also, s 15 and s 40 are to be construed separately from s 38, s 39, s 41 and s 42. On its proper construction, the scheme enacted by s 15 and s 40 contains an ordinary one year limitation period for defamation actions (s 15) which is replaced, on the application of a plaintiff, by a three year limitation period where it was not reasonable in the circumstances for the plaintiff to have commenced the defamation action within one year from publication (s 40).

6. It was argued that it is apparent from the structure of s 40 that:

   (a)s 40(1) enacts a facultative provision, which permits a plaintiff to apply to a court for leave to commence a defamation action where the action has not been commenced within one year from publication;

   (b)s 40(2) requires that a court 'must', if satisfied of a stated condition ('it was not reasonable in the circumstances for the plaintiff to have commenced an action … within one year from the publication'), extend the time for bringing an action; and

   (c)s 40(3) prohibits the commencement of a defamation action if three years has elapsed since the publication.

7. Counsel contended that s 40 does not contain any words of discretion. Also, the text of s 40 does not imply any discretion. To the contrary, the power to extend time is expressed with binary logic, namely if satisfied, the court 'must' extend time.

8. Counsel submitted that the only qualification on the power conferred by s 40(2) is found in the words '[s]ubject to subsection (3)'. However, those words in s 40(2) and the language of s 40(3) do not confer a discretionary power to grant an extension of time. Rather, so it was submitted, s 40(3) is a self-executing substantive limitation rule. There is no basis for construing s 40(3) as providing for a discretionary extension of 'up to' a maximum of three years. Counsel submitted that the relationship between s 40(2) and s 40(3) is that the extension to be granted, when s 40(2) is engaged, is 'subject' to s 40(3) in the sense that a three year period then applies.

9. According to counsel, the scheme of the Act is, relevantly, that s 15 sets the default period which may, by the operation of s 40(2), be replaced by the extended period in s 40(3).

10. It was argued that the primary judge erred in reading into s 40 a discretion to provide an extension for a period other than the three year period prescribed by s 40(3). In particular, it was argued that there is no basis for rejecting the construction of s 40 advanced by the appellant by reading into s 40 a discretion to which s 44 applies. Counsel contended that s 44 does not apply to s 40. Nevertheless, the definition of 'extension application' in s 3 has work to do in respect of s 40 by reference to s 43 and s 79.

11. Counsel referred to extrinsic materials which, it was submitted, confirm the appellant's construction of s 40. The extrinsic materials relied upon by counsel comprise:

    (a)clause notes to the Limitation Bill 2005 (WA), which was introduced into the Legislative Assembly on 7 April 2005;

    (b)the second reading speech of the Attorney-General on 7 April 2005 in relation to the Limitation Bill;

    (c)the explanatory memorandum to the Defamation Bill 2005 (WA), which was introduced into the Legislative Assembly on 17 August 2005;

    (d)the second reading speech of the Attorney-General on 17 August 2005 in relation to the Defamation Bill;

    (e)the speech of the Parliamentary Secretary in the Legislative Council on 19 October 2005 in relation to amendments made in committee to the Limitation Bill; and

    (f)the report of the Standing Committee on Uniform Legislation and Statutes Review tabled in the Legislative Council on 19 October 2005, which summarised the 'Central Features of the Defamation Bill 2005 (WA)'.

12. After referring to those extrinsic materials, counsel made this submission in support of the proposition that the extrinsic materials did not 'compel an alternative to the appellant's construction of s 40':

    The appellant accepts that the extrinsic materials speak of a 'discretion' in respect of extensions to the defamation limitation period. However, in the language of parliamentarians, that may be interpreted to be a reference to the evaluative question under s 40(2), and its 'not reasonable' standard, in relation to whether an extension should be granted. The extrinsic materials then, with a single exception (which was based directly on the MDP and does not accord with the Second Reading speech or the amended form of the provision addressed in the Legislative Council), describe a limitation period being extended from one year 'to three years', rather than 'up to three years'.

13. Counsel submitted that it is not to the point that, under the construction of s 40 advanced by the appellant, a plaintiff who is eligible for an extension under s 40 may have a longer period in which to consider commencing proceedings than a plaintiff who is subject to s 15. It was submitted that it is only by an a priori assumption that the appellant's construction of s 40 could be questioned on that basis. The interests of a plaintiff who has been defamed may be manifold and may change over time, with an immediate priority regarding vindication of reputation later being supplemented or replaced by a desire for compensation for the financial consequences of reputational harm. According to counsel, the appellant's construction of s 40 gives effect to the objective manifestation of Parliament's intent and should be accepted.

14. During his oral submissions at the hearing of the appeal, counsel formulated a primary argument and an alternative argument in relation to the length of any extension under s 40(2). The appellant's primary argument was that if the court's power under s 40(2) is engaged then the limitation period for the defamation action is extended to three years from publication. The alternative argument was that if the court's power under s 40(2) is engaged then there is a discretion to extend time up to three years, but the extension within that limit must be efficacious to enable the defamation action to be commenced.

Ground 1:  the respondent's submissions

1. Counsel for the respondent submitted that:

   (a)Section 40(1) provides a plaintiff with the ability to apply to extend time to commence a defamation action.

   (b)Section 40(2) provides a court with the power to extend time on an application under s 40(1). The power must be exercised if the court is satisfied that the precondition for the exercise of the power is met.

   (c)Section 40(3) imposes a limit on the court's power to extend time. That is, the power to extend time is 'subject to' the limitation that a defamation action cannot be commenced if three years have elapsed since the publication of the defamatory matter. Accordingly, s 40(3) sets the outer bounds of the court's power to extend time.

2. It was contended that the text of s 40 is silent on the length of any extension of time that must be granted within the limit imposed by s 40(3). This silence compels the conclusion that a discretion must exist as to the length of any extension.

3. Counsel submitted that s 44 is an important contextual indicator that s 40 confers a discretion. It was argued that s 44 prescribes mandatory relevant considerations to which a court must have regard in exercising the court's power in respect of an extension application. The language of s 44 is clearly indicative of a discretion. Section 40 is subject to s 44.

4. It was submitted that the existence of a discretion within s 40 is consistent with the existence of a discretion within every other provision in div 3 of pt 3.

5. Counsel argued that the evident purpose of s 15 is to provide for an absolute time limit on when a defamation action can be commenced. Section 40 then provides a mechanism for alleviating any injustice that might be brought about in a particular case by s 15. That mechanism enables a plaintiff to seek to commence a defamation action within a further absolute time limit and provides a court with a discretion, on being satisfied of the condition specified in s 40(2), to extend time, as appropriate in the circumstances and subject to the limit in s 40(3).

6. According to counsel, that construction broadly conforms to the overall statutory scheme established in respect of all other causes of action under the Act; that is, the setting of absolute limitation periods, tempered by the conferral of a discretion on the court (both as to whether to extend time and as to the length of any extension) if the court is satisfied of certain conditions. Significantly, the purpose of the discretion conferred on the court by each extension provision is to enable the court to do justice according to the circumstances of each particular case.

7. Counsel contended that the extrinsic materials referred to by the appellant do not confirm the construction of s 40 advanced by the appellant. Counsel contended that instead the extrinsic materials reveal that Parliament had always intended that s 40 would confer a discretion as to the length of any extension of time.

8. It was submitted that the essential components of s 40 are indistinguishable from the essential components of the counterpart provisions in New South Wales, Queensland and Victoria, which were considered in Barrett, Pingel and Casley. Although those cases are not binding on this court, they have persuasive force and support the respondent's construction of s 40.

Ground 1:  its merits

1. The focus of statutory construction is upon the text of the provisions having regard to their context and apparent purpose.

2. The statutory text is the surest guide to Parliament's intention.  A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision.  See Project Blue Sky Inc v Australian Broadcasting Authority;[7] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT);[8] Travelex Ltd v Federal Commissioner of Taxation;[9] SZTAL v Minister for Immigration and Border Protection.[10]

   [7] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ).

   [8] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).

   [9] Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 [82] (Crennan & Bell JJ).

   [10] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14] (Kiefel CJ, Nettle & Gordon JJ).

3. The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.  See CIC Insurance Ltd v Bankstown Football Club Ltd.[11]

   [11] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).

4. However, legislative history and extrinsic materials cannot displace the meaning of statutory text.  Further, the examination of legislative history and extrinsic materials is not an end in itself.  See Federal Commissioner of Taxation v Consolidated Media Holdings Ltd;[12] Alphapharm Pty Ltd v H Lundbeck A/S.[13]

   [12] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39] (French CJ, Hayne, Crennan, Bell & Gageler JJ).

   [13] Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247 [121] (Kiefel & Keane JJ).

5. The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions.  See Certain Lloyd's Underwriters v Cross.[14]  The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose.  See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd.[15]

   [14] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J).

   [15] Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).

6. Section 18 of the Interpretation Act 1984 (WA) provides that, in the interpretation of a provision of a written law (including all Acts for the time being in force), a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.  The requirement in s 18 that one construction be preferred to another can apply only where two constructions are otherwise open.  If the ordinary meaning conveyed by the text of a provision is to be modified by reference to the purposes or objects underlying the written law, the modification must be able to be identified precisely as that which is necessary to give effect to those purposes or objects and it must be consistent with the text otherwise adopted by the draftsperson.  Section 18 requires a court to construe a written law, and not rewrite it by reference to its purposes or objects.  See Mills v Meeking.[16]

   [16] Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 235 (Dawson J).

7. The High Court has stated emphatically that an intermediate appellate court is bound to follow the decision of another intermediate appellate court on the interpretation of uniform national legislation unless convinced that the decision is plainly wrong.  See Australian Securities Commission v Marlborough Gold Mines Ltd;[17] Farah Constructions Pty Ltd v Say-Dee Pty Ltd.[18]

   [17] Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, 492 (Mason CJ, Brennan, Dawson, Toohey & Gaudron JJ).

   [18] Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [135] (Gleeson CJ, Gummow, Callinan, Heydon & Crennan JJ).

8. I am satisfied, on a proper construction of s 40 of the Act in the context of the Act as a whole, that:

   (a)s 40(1) enables a plaintiff to apply to a court for leave to commence a defamation action even though the one year limitation period prescribed by s 15 has elapsed;

   (b)s 40(2) requires the court, if satisfied on an application made under s 40(1) that it was not reasonable in the circumstances for the plaintiff to have commenced the defamation action within one year from the publication, to extend the time in which the action can be commenced;

   (c)subject to s 40(3), although under s 40(2) the court must grant the plaintiff an extension of time in which the defamation action can be commenced if the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced the action within one year from the publication, the court has a discretion as to the length of the extension;

   (d)by s 40(3), a defamation action cannot be commenced if three years have elapsed since the publication; and

   (e)the court's discretion as to the length of any extension under s 40(2) is subject to the three year limit prescribed by s 40(3).

   My reasons for those opinions are as follows.

9. First, there are material differences between the Act and comparable legislation in other Australian jurisdictions. The Act (in particular, s 40 read with other relevant provisions) is not a component of uniform national legislation. Decisions of courts in other jurisdictions are of limited assistance.

10. Secondly, s 11, s 15 and s 40 of the Act must be read and construed together and in the context of the Act as a whole. Section 11(1) provides, relevantly, that div 3 of pt 2 (which includes s 15) has effect subject to pt 3 (which includes s 40). It follows that the limitation period specified in s 15 is subject to the power of a court to extend time under s 40.

1. Section 15 states that an action relating to the publication of defamatory matter 'cannot be commenced' if one year has elapsed since the publication. The traditional form of provisions creating time bars in limitation statutes has been construed as procedural rather than substantive in character. In other words, the limitation period bars the remedy and not the right. The expiry of the limitation period does not extinguish the plaintiff's cause of action against the defendant. Rather, the expiry of the limitation period confers on the defendant a defence to the cause of action. If the defendant wishes to rely upon the time bar then, ordinarily, the rules of court require that the time bar be pleaded. See The Commonwealth of Australia v Verwayen;[19] The Commonwealth of Australia v Mewett.[20] However, the proper construction of a provision creating a time bar must, of course, depend upon the text, context and apparent purpose or object of the particular provision. See, for example, s 75(a) of the Act which expressly provides that a person's right and title to land is extinguished if the person does not commence an action to recover the land before the expiry of the limitation period provided for under the Act.

   [19] The Commonwealth of Australia v Verwayen [1990] HCA 39; (1990) 170 CLR 394, 405 (Mason CJ).

   [20] The Commonwealth of Australia v Mewett [1997] HCA 29; (1997) 191 CLR 471, 534 (Gummow & Kirby JJ).

2. The phrase in s 15 that '[a]n action … cannot be commenced' should be construed as a provision which, consistently with the traditional form of provisions creating time bars in limitation statues, bars the remedy and not the right. In other words, the expiry of the limitation period in s 15 does not extinguish the plaintiff's cause of action in defamation. Unlike, for example, s 75(a), s 15 does not indicate that upon the expiry of the limitation period the plaintiff's cause of action is extinguished. Further, as I have mentioned, s 11(1) provides, relevantly, that div 3 of pt 2 (which includes s 15) has effect subject to pt 3. Section 40(1) (which is within pt 3) permits a plaintiff to apply to a court for leave to commence a defamation action even though the limitation period in s 15 has expired. Section 40(1) does not purport to revive an extinguished cause of action. It is consistent with s 15 barring the remedy and not the right. Section 15 is a procedural and not a substantive bar. See, in the context of s 7 of the Act, the observations in Burns v Minister for Health.[21]

   [21] Burns v Minister for Health [2012] WASCA 267; (2012) 45 WAR 276 [9] (Martin CJ; Newnes JA agreeing), [65] ‑ [68] (Pullin JA).

3. Thirdly, s 40(1) enables a plaintiff to apply for an extension of the limitation period in s 15 so that the plaintiff will not be met with a successful limitation defence.

4. Section 43(1) provides, relevantly, that an extension application is to be made by summons in the jurisdiction in which:

   (a)the existing action, if any, has been brought; or

   (b)the proposed action would be brought if the application were successful,

   as is relevant to the case.

5. It is apparent from the text of s 43(1)(a) that an extension application may be made in respect of a writ of summons that has already been filed. Section 15 does not preclude a plaintiff from filing a writ with an indorsed claim in defamation.

6. Fourthly, s 40(2) confers on a court, in respect of an application made under s 40(1), power to extend the time in which the defamation action 'can be commenced'. The court's power is engaged if the court is satisfied that 'it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to' the defamatory matter within one year from the publication. The court does not have a residual discretion to extend time if that condition is not satisfied.

7. By s 79(3), the plaintiff has the burden of proving that the court should extend the limitation period.

8. The condition for engaging the court's power to extend time under s 40(2) (namely, that it was not reasonable in the circumstances for the plaintiff to have commenced the defamation action within one year from publication) is more demanding than, and is not to be equated with, whether it was reasonable in the circumstances for the plaintiff not to have commenced the action within the one year period. The condition for engaging the court's power under s 40(2) relates to the period of one year from publication and not to any period after one year from publication. This reflects, no doubt, the short and strict time limit under s 15 for the commencement of a defamation action. The condition for engaging the court's power under s 40(2) is objective in character. The circumstances referred to in s 40(2) are the circumstances as found objectively by the court and not the circumstances as they appeared subjectively to the plaintiff. For example, the condition for engaging the court's power under s 40(2) is not satisfied by the plaintiff merely establishing a belief that he or she had good reason not to commence the action within one year from publication. The court's decision as to whether it is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced the defamation action within the one year period does not include any element of discretion. Rather, the decision involves an evaluative judgment having regard to the evidence adduced in the particular case by the plaintiff and the defendant. See, generally, the discussion in Noonan v MacLennan[22] and Pingel v Toowoomba Newspapers Pty Ltd,[23] in relation to s 32A(2) of the Limitation of Actions Act 1974 (Qld), which includes a provision comparable to the condition for engaging the court's power under s 40(2).

   [22] Noonan v MacLennan [2010] QCA 50; (2010) 2 Qd R 537 [20], [22] (Keane JA), [30] (Holmes JA), [48], [65] (Chesterman JA).

   [23] Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 [34], [41] ‑ [42] (Fraser JA), [113] ‑ [115] (Applegarth J).

9. Fifthly, if the court is satisfied, on an application made under s 40(1), that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the defamatory matter within one year from the publication, the court 'must extend the time in which the action can be commenced'. In other words, if the condition for engaging the court's power to extend time under s 40(2) is satisfied, the court is bound to extend the time in which the action can be commenced. However, s 40(2) does not specify the duration of the extension. For example, s 40(2) does not state that the court must extend the time in which the action can be commenced for a particular period or up to a particular date. A critical issue in this appeal is the implication to be made, on a proper construction of s 40 in the context of the Act as a whole, as to the length of any extension of time which the court is empowered to grant under s 40(2) and whether the length of any extension is discretionary.

10. Sixthly, s 40(2) is expressed to be subject to s 40(3). The subsections must therefore be read together. Section 40(3) provides that a defamation action 'cannot be commenced if 3 years have elapsed since the publication'. By contrast with comparable legislation in other Australian jurisdictions, s 40(2) does not include, at the end of the subsection, the words 'for a period of up to 3 years'. Rather, the sole express limit on the court's power to extend time under s 40(2) is contained in s 40(3); that is, a defamation action cannot be commenced if three years have elapsed since the publication. If the appellant's primary argument is correct then the text of s 40(3) would have been to the effect that if an extension of time is granted under s 40(2) then an action relating to the publication of defamatory matter can be commenced within three years after the publication. The text would not have been as formulated in s 40(3).

11. Seventhly, s 38, s 39, s 41 and s 42, which empower a court to extend time in other circumstances, are not of material assistance in construing s 40. Section 38 and s 39 confer power to extend time by 'up to 3 years' and s 42 confers power to extend time by 'up to 12 years'. Section 41 confers power to extend time 'up to when the plaintiff reaches 21 years of age'. As I have mentioned, s 38, s 39, s 41 and s 42 do not apply to an action relating to the publication of defamatory matter. A court's power under s 38, s 39, s 41 and s 42 is wholly discretionary. Those sections do not include a mandatory provision of the kind embodied in s 40(2). Also, the subject matter of the condition which enlivens the court's power to extend time under each of s 38, s 39, s 41 and s 42 is materially different from the condition which enlivens the court's power under s 40(2). The differences to which I have referred preclude any inference to the effect that the absence of the words 'up to' in s 40 means that if the condition for engaging the court's power under s 40(2) is satisfied then time is extended to three years from publication.

12. Eighthly, s 44 provides that when deciding, on an 'extension application, whether to extend time for the commencement of an action', a court is to have regard to:

    (a)whether the delay in commencing the proposed action, whatever the merit of the reasons for that delay, would unacceptably diminish the prospects of a fair trial of the action; and

    (b)whether extending the time would significantly prejudice the defendant (other than by reason only of the commencement of the proposed action).

13. In s 3(1) the term 'extension application' is defined to mean 'an application under section 38, 39, 40, 41 or 42'.

14. The text of s 44, read with the text of the definition of 'extension application' in s 3(1), establishes that s 44 applies to an extension application made by a plaintiff under s 40.

15. Section 40 read with s 44 and in the context of the Act as a whole contemplates that, although the court is bound to extend time under s 40(2) if the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a defamation action within one year from the publication, the court has a discretion as to the length of the extension, subject to the three year limit prescribed by s 40(3).

16. In my opinion, nothing in the context or the apparent purpose or object of s 40 read with s 44 in the context of the Act as a whole indicates that, despite the definition of 'extension application' in s 3(1), s 44 applies only to extension applications made under s 38, s 39, s 41 and s 42 and does not apply to an extension application under s 40.

17. Ninthly, I do not consider that any of the extrinsic materials referred to by counsel for the appellant and counsel for the respondent are of any material assistance in resolving the issues raised in this appeal; in particular, the proper construction of s 40 and related provisions having regard to their text, context and apparent purpose.

18. Tenthly, although the court must extend time under s 40(2) if the condition for engaging the court's power is satisfied, a number of factors, in addition to my reasons at [84] ‑ [102] above, indicate that:

    (a)the court has a discretion as to the length of any extension under s 40(2), subject to the three year limit prescribed by s 40(3); and

    (b)a plaintiff is not entitled to an extension of three years (being the appellant's primary argument) or an extension of a duration up to three years that would enable the plaintiff to commence the defamation action within time (being the appellant's alternative argument).

19. In particular:

    (a)The phrase 'extend the time in which the action can be commenced', within s 40(2), reflects the phrase '[a]n action … cannot be commenced if one year has elapsed', within s 15. Both the language of the phrase in s 15 and the language of the phrase in s 40(2) are concerned with a procedural limitation upon the commencement of a defamation action. The words 'can be commenced' in s 40(2) mean, in substance, permitted by the court to be commenced.

    (b)The ordinary and natural meaning of s 40(2) read with s 40(3) does not support the appellant's primary argument or his alternative argument. Section 40(2) read with s 40(3) does not indicate, in effect, that if the court must extend time under s 40(2) then the action can be commenced up to three years after the publication of the defamatory matter. Similarly, s 40(2) read with s 40(3) does not indicate, in effect, that if the court must extend time under s 40(2) then the extension must be of a length that would enable the plaintiff to commence the action within time.

    (c)On the appellant's primary argument, if the condition for engaging the court's power under s 40(2) is engaged, the court would declare its satisfaction that it was not reasonable in the circumstances for the plaintiff to have commenced an action within the one year period. Section 40(2) read with s 40(3) would then operate on that declaration and the one year limitation period would automatically be extended to three years. No order of the court would be necessary to extend the limitation period to three years. In my opinion, nothing in the text, context or apparent purpose or object of s 40 supports that outcome.

    (d)On the appellant's alternative argument, if the condition for engaging the court's power under s 40(2) is engaged then, where the plaintiff's application for leave is retrospective in the sense that the plaintiff has already filed a writ of summons, the date on which the writ was filed within the three year limit specified in s 40(3) would effectively fix the length of the extension. In my opinion, nothing in the text, context or apparent purpose or object of s 40 supports that outcome.

    (e)A plaintiff may apply to a court under s 40(1) for leave to commence a defamation action after the one year period has elapsed. That is apparent from the text of s 40(1) (which refers to a plaintiff applying to a court for leave to commence a defamation action 'even though one year has elapsed since the publication') read with the text of s 40(2) (which is concerned with whether the court is satisfied 'that it was not reasonable in the circumstances for the plaintiff to have commenced an action … within one year from the publication'). The focus of the condition for engaging the court's power to extend time under s 40(2) is whether it was not reasonable in the circumstances for the plaintiff to have commenced an action within the one year period. The condition is not concerned with any delay by the plaintiff in making the application under s 40(1) after the one year period elapsed.

    (f)However, having regard to the short and strict time limit under s 15 for the commencement of a defamation action and having regard to the nature of the process and the power under s 40 (namely, a plaintiff applying for, in effect, dispensation from the ordinary limitation period and the court granting, in effect, a more generous limitation period), it is inherently unlikely that Parliament would have intended that any delay by the plaintiff in making the application under s 40(1) after the one year period elapsed should not be a relevant consideration in determining the length of any extension.

    (g)If a plaintiff were to make an application under s 40(1) upon 14 months having elapsed since the publication of the defamatory matter and without the plaintiff having filed a writ of summons, and if the plaintiff were to satisfy the court under s 40(2) that it was not reasonable in the circumstances for the plaintiff to have commenced the action within one year from the publication, then, on the appellant's primary argument, the plaintiff would have three years from the publication to commence the action, even if it would be reasonable for the plaintiff to commence the action within, say, 16 months. It is inherently unlikely, having regard to the short and strict time limit under s 15, that Parliament would have intended that result.

20. Ground 1 fails.

Ground 2:  the appellant's submissions

1. Counsel for the appellant submitted that if, contrary to ground 1, s 40 confers a discretion to extend the limitation period for up to three years from the date of publication, the primary judge erred in the exercise of that discretion.

2. First, it was submitted that the primary judge relied upon extraneous or irrelevant matters in the exercise of the discretion.  Counsel complained that, in analysing whether the appellant's conduct before 1 June 2018 entitled the appellant to a limitation extension to that date, the primary judge referred (on five occasions) to the appellant's conduct after that date.  Those references were to the service of the writ in May 2019, being towards the end of the writ's (unextended) period of validity [32], [36], [63], [87], [173].

3. His Honour was critical of the appellant's conduct and that conduct was operative in the determination of the extension application.  In particular, his Honour said:

   (a)'the further delay in effecting service post writ is unexplained and would provide another negative factor if evaluated against a grant of leave for the [extension] period as sought' [63]; and

   (b)'[the appellant] does not seek to explain in any of his materials the reason for waiting so long before [effecting] service' [173].

4. Counsel argued that no explanation can properly be required of the appellant for serving the writ within the period afforded to a plaintiff by the rules of court.

5. Also, counsel argued that the event to which his Honour gave attention (namely, service of the writ on a particular date) was logically premised on the existence of a writ capable of commencing valid proceedings, which was the subject of the very application before his Honour.  To take into account the subsequent event against that premise involved a miscarriage of discretion in that his Honour permitted an extraneous or irrelevant matter to affect his decision.

6. Secondly, it was submitted that the primary judge failed to take into account a relevant consideration in the exercise of his discretion. As I have mentioned, his Honour was willing, in the alternative, to extend the time to 11 January 2018, but his Honour was not prepared to extend time beyond that date because the appellant's 'inaction from beyond December 2017 … is not at all satisfactorily explained' [63].

7. Counsel argued that his Honour's view about the appellant's inaction from beyond December 2017 could only be taken if his Honour's sole focus was on steps in pursuit of information concerning the appellant's potential claim, and not on his broader circumstances.  Counsel noted that his Honour had mentioned the unexpected death of the appellant's wife on 16 December 2017, followed by the death of the appellant's grandmother 12 days later [147], [153].  However, according to counsel, his Honour appears to have excluded those matters from his consideration of the extension application on the following basis [147]:

   Nothing said in these reasons should be read as in any way detracting from the sympathy that should be afforded [to the appellant] in such sad personal circumstances for him.  The personal evaluation, however, must proceed according to law.

8. It was contended that the approach apparent from that passage in his Honour's reasons is inconsistent with the exercise of what his Honour described as 'the court's wider discretion … which is at large' [84]. It was argued that the effect of his Honour's decision was that, in order for the appellant to be granted a limitation extension, he should have taken litigation-related steps in the immediate aftermath of tragic personal events. It was contended that, in the circumstances, it must be concluded that his Honour failed to take into account a relevant consideration in the exercise of his discretion.

1. Thirdly, it was submitted that the primary judge's decision was unreasonable or plainly unjust.

2. Counsel contended that:

   (a)Early in the appellant's investigation of his dismissal as a kashrut inspector by his former employer, Star-K, the respondent sent an email on 22 September 2016 to the appellant's wife in which the respondent stated that he and another Rabbi were 'not aware of any advice from [the Perth kosher certification organisation to Star-K] regarding your courtship' or 'a letter from a Perth Rabbi to Star-K advising that anyone is "not good in standing"'.  The language of the email appears to have been chosen carefully to avoid disclosure of the 3 June 2015 email from the respondent personally to Star-K regarding the respondent's relationship with a non-Jewish woman [104] ‑ [108].  A more candid response from the respondent would have greatly reduced the length of the appellant's enquiries in relation to the 3 June 2015 email.

   (b)During the period in respect of which his Honour placed emphasis, the respondent refused to respond to the enquiries made by the appellant on 11 July 2017 and 3 August 2017 [140], [143]. When the appellant wrote to the respondent again on 7 March 2018 the respondent refused to provide a copy of the 3 June 2015 email [150] ‑ [151]. The respondent responded similarly to further enquiries made by the appellant on 28 March 2018 and 16 April 2018 [154].

   (c)His Honour's decision was unreasonable or plainly unjust because the appellant's delay was, at least in part, the product of the respondent's unhelpful conduct and, further, the respondent did not adduce any evidence of prejudice that he would suffer if the extension sought by the appellant were to be granted [85].

Ground 2:  the respondent's submissions

1. Counsel for the respondent submitted that the primary judge did not make any of the errors alleged by the appellant.

2. As to the appellant's assertion that his Honour relied upon extraneous or irrelevant matters in the exercise of the discretion, counsel for the respondent submitted that:

   (a)his Honour acknowledged that a 'question arises within the application as to whether [an explanation for the delay in serving the writ] is necessary or not' [36]; but

   (b)his Honour ultimately concluded that '[a]lbeit not necessary as a further factor for consideration the further delay in effecting service post writ is unexplained and would provide another negative factor if evaluated against a grant of leave for the period sought' [63] (emphasis added).

3. Accordingly, so it was submitted, his Honour determined the extension application without reference to the appellant's delay in serving the writ.  His Honour's exercise of discretion was not guided or affected by the delay.

4. In any event, it was submitted that if his Honour took that delay into account, it was not an irrelevant consideration.  In any determination as to whether to extend time, questions as to the length of the delay and the reason for that delay (that is, the conduct of the plaintiff who is seeking the extension) will be relevant.

5. Counsel argued that the appellant's contention that he was entitled to delay serving the writ is beside the point. Counsel argued that whether the appellant was entitled to delay or not, it was relevant to take into account the total lapse of time that occurred because the appellant delayed serving the writ until a few days prior to the validity of the writ expiring under O 7 r 1 of the Rules of the Supreme Court and, accordingly, the appellant delayed applying for an extension of time in which to commence his action.

6. The question for his Honour was ultimately whether it was in the interests of justice for the appellant to be granted leave to commence an action out of time, having regard to the total lapse of time between the accrual of the cause of action and the making of the extension application.  It was relevant, in making that assessment, to have regard to:

   (a)the appellant's gross, and only partly explained, delay in commencing the action;

   (b)the appellant's gross, and unexplained, delay in serving the writ; and

   (c)the appellant's further unexplained delay in applying for leave to commence his action out of time (the appellant not having made the extension application until some 14 months after he commenced his action without leave and which was foreshadowed by the indorsement on the writ).

7. Accordingly, so it was submitted, even if his Honour had taken into account the appellant's delay in serving the writ, that consideration would not have been irrelevant.

8. As to the appellant's assertion that his Honour failed to take into account a relevant consideration, namely the reason for the appellant's inaction after December 2017 (being the deaths of the appellant's wife and grandmother), counsel for the respondent submitted that the appellant had taken his Honour's comments at [47] out of context.

9. It was submitted that, when his Honour's reasons were read as a whole, it is clear that his Honour:

   (a)had regard to, and took into account, the deaths of the appellant's wife and grandmother in December 2017 [147], [153];

   (b)nevertheless found, as a matter of discretion and having regard to his Honour's factual findings, that time should not be extended beyond 11 August 2017 (that is, a time before the death of the appellant's wife and grandmother) [140];

   (c)found, alternatively, that if this were thought to be too harsh or wrong, that his Honour would grant a further extension of only six more months beyond 11 July 2017 for the appellant to apply for leave, namely to 11 January 2018 [141];

   (d)found that, 'highly sympathetic' though his Honour was personally to the appellant's loss of his wife and grandmother in December 2017, the appellant's delay in doing anything more than he did following the communications of July 2017 was not explained sufficiently [153]; and

   (e)found, alternatively again, that as at 20 April 2018, there was still some potential time for the appellant to have acted urgently and to have applied to the court for an extension of time; however, that did not occur and there was no sufficient explanation given by the appellant for his having failed to act in that manner [155] ‑ [156].

10. Accordingly, so it was submitted, his Honour did have regard to the explanation for the delay following the deaths of the appellant's wife and grandmother, but his Honour found that the appellant's inaction, both before and after their deaths, was not explained satisfactorily.  It therefore followed that any delay occasioned by the deaths of the appellant's wife and grandmother was not to the point.

11. Counsel submitted that, to the extent the appellant alleges that his Honour did not give sufficient weight to the delay occasioned by the deaths of the appellant's wife and grandmother, that allegation must be rejected in that a weighting error does not demonstrate appealable error in the exercise of a judicial discretion.

12. As to the appellant's assertion that his Honour's decision was unreasonable or plainly unjust, counsel for the respondent submitted that the appellant's characterisation of the respondent's conduct as 'unhelpful' and as 'hampering' the appellant, finds no basis in his Honour's factual findings or in the evidence.

13. It was submitted that the respondent replied promptly and courteously to the appellant's emails and those of his wife.

14. Also, it was submitted that although (as his Honour found) the appellant was 'tenacious and persistent by his correspondence to the [respondent]' a 'lack of a response to his interrogatories of July 2017 did not provide a sufficient basis for him to delay further until March 2018, at which time he simply wrote to the [respondent] and copied others in on his correspondence' [153].

15. Further, it was submitted that the appellant's argument that the appellant 'proceeded on a reasonable expectation that, in light of the respondent's religious and professional positions, he would accede to appropriate requests' was without foundation.  It was submitted that the appellant had not identified, in the evidence or elsewhere, any aspect of the respondent's religious or professional positions which would provide support for the conclusion that the respondent would, or should, accede to a demand to produce copies of his private correspondence.

16. Counsel submitted that his Honour's findings and the evidence provide no support for an argument that the respondent's conduct caused, or contributed to, the appellant's delay in commencing his action or applying for an extension of time.

17. According to counsel, his Honour weighed carefully his findings of fact and all relevant considerations.  His Honour made allowances in favour of the appellant as a litigant in person.  Having done so, his Honour concluded that time could not, on any view, be extended as far as 1 June 2018.  That conclusion was clearly open to his Honour and cannot be said to be unreasonable or plainly unjust.

Ground 2:  its merits

1. Section 44 of the Act provides that when deciding, on an extension application, 'whether to extend the time for the commencement of an action, a court is to have regard to' the matters specified in pars (a) and (b) of s 44.

2. The discretionary nature of a court's power under s 38, s 39, s 41 and s 42 in relation to whether to grant an extension of time and, if so, the length of the extension, and the discretionary nature of a court's power under s 40(2) in relation to the length of any extension, indicate that the phrase 'whether to extend the time' in s 44 must be construed as 'whether and to what extent to extend the time'.

3. The phrase 'a court is to have regard to' in s 44 indicates that the matters in pars (a) and (b) are mandatory considerations. Those matters are mandatory considerations in relation to whether to extend the time and, also, in relation to the length of any extension. However, the stipulation in s 44 is not, in my opinion, an exhaustive statement of the matters that may or must be taken into account by the court in deciding upon the length of any extension under s 40(2). The factors which the court is entitled or bound to consider (in addition to the mandatory considerations specified in s 44) are to be ascertained by implication from the subject matter, scope and apparent purpose of s 40 in the context of the Act as a whole. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[24]

   [24] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 ‑ 40 (Mason J).

4. In my opinion, relevant considerations that a court may take into account in deciding upon the length of any extension under s 40(2) include:

   (a)the nature and extent of any delay by the plaintiff, after the one year period since the publication elapsed, in making the extension application;

   (b)the reasons for any such delay; and

   (c)when it would be or would have been reasonable in the circumstances for the plaintiff to commence or to have commenced the defamation action.

5. The matters to which I have referred at [136(a) and (b)] above are ordinarily taken into account by courts in deciding whether it is in the interests of justice to grant an extension of time to a litigant or potential litigant in curial proceedings. The matter to which I have referred at [136(c)] above reflects the text of the condition for engaging the court's power under s 40(2). The matters I have mentioned at [136] above are consistent with the subject matter, scope and apparent purpose of s 40, in the context of the Act as a whole. It is unnecessary, in this appeal, to attempt to identify and state all relevant considerations that may or must be taken into account.

6. In the present case, I am satisfied that the primary judge did not make any of the errors alleged in ground 2. 

7. As to the assertion that his Honour took into account an extraneous or irrelevant matter, namely the appellant's delay in serving the writ of summons on the respondent:

   (a)his Honour noted at [36] that the respondent had complained in the proceedings before his Honour that the appellant had 'not at all explained' the delay in effecting service of the writ on the respondent and his Honour observed at [36] that '[a] question arises within the [extension] application as to whether that is necessary or not'; and

   (b)his Honour concluded at [63]:

   Even allowing six more months as from June 2017 for something to be done by the plaintiff, the plaintiff's inaction from beyond December 2017 by not seeking leave to commence under s 40(2) of the Limitation Act is not at all satisfactorily explained. Nor can it be excused. As such, the plaintiff's application must necessarily be dismissed. Albeit not necessary as a further factor for consideration the further delay in effecting service post writ is unexplained and would provide another negative factor if evaluated against a grant of leave for the period as sought.

8. I am satisfied, on a fair reading of [36] and [63] of his Honour's reasons in the context of his reasons as a whole, that his Honour did not take into account the appellant's delay in serving the writ of summons on the respondent in deciding upon the appropriate length of the extension of time.  His Honour merely indicated that, '[a]lbeit not necessary as a further factor for consideration', the appellant's delay in serving the writ 'would provide another negative factor' for arriving at the conclusion he did in relation to the length of the extension.  Accordingly, even if (which it is unnecessary to decide) the appellant's delay in serving the writ was an extraneous or irrelevant matter, that factor did not influence or affect the exercise of his Honour's discretion.  However, the nature and extent of the appellant's delay, after the one year period from publication had elapsed, in making the extension application and any reasons given for the delay were relevant considerations which his Honour was entitled to take into account in deciding the length of the extension.

9. As to the assertion that his Honour failed to take into account a relevant consideration in the exercise of his discretion, namely the reason for the appellant's delay after December 2017, being the death of the appellant's wife on 16 December 2017 and the death of his grandmother on 28 December 2017:

   (a)his Honour decided 'as a matter of discretion' that his Honour 'would not extend the time period … beyond, say, 11 August 2017' [140];

   (b)his Honour said that an extension until 11 August 2017 would have allowed sufficient time for the appellant to await a response from the respondent to an email of 11 July 2017 sent by the appellant to the respondent (in fact, there was no response) and for the appellant to obtain 'some urgent legal advice about his defamation position in all those circumstances' [140];

   (c)his Honour then observed that 'if [his Honour] were thought to be too harsh or wrong about that, then [his Honour] would, in the alternative, grant a further extension of only six more months beyond 11 July 2017 to [the appellant] to apply for leave, namely, to 11 January 2018' [141];

   (d)although his Honour was 'highly sympathetic' to '[the appellant's] loss of his wife and his grandmother over the period at the end of 2017, his delay in doing anything more than he did following the communications of July 2017 … is … not sufficiently explained' [153]; and

   (e)his Honour found, again in effect in the alternative, that as at 20 April 2018 'there was still some potential time for [the appellant] to act urgently and to apply to this court for an extension of time', but '[t]hat did not happen' and '[n]o sufficient explanation for not acting is provided' [155] ‑ [156].

10. I am satisfied, on a fair reading of [140] ‑ [141], [153] and [155] ‑ [156] of his Honour's reasons in the context of his reasons as a whole, that his Honour acknowledged and had regard to delay occasioned by the death of the appellant's wife on 16 December 2017 and the death of his grandmother on 28 December 2017.  However, his Honour's primary finding was that an extension of time should not be granted beyond 11 August 2017.  On that basis, any delay occasioned by the deaths of the appellant's wife and his grandmother was irrelevant.  Further, on the alternative finding of an extension to 11 January 2018, his Honour referred to their deaths at [147] and [153] of his reasons.  However, his Honour considered that the delay between 11 August 2017 and 16 December 2017 was unexplained.  It is apparent, on a fair reading of his Honour's reasons as a whole, that the appellant's inaction during that four month period was decisive in his Honour's refusal, on the alternative finding, to extend time beyond 11 January 2018.  In any event, the appellant did not file his writ until 1 June 2018 and he did not file his extension application until 6 August 2019.

11. The appellant's complaint in relation to delay occasioned by the deaths of his mother and his grandmother is, in substance, an assertion of a weighting error.

12. An alleged failure by a judge who has exercised a discretion to give any or sufficient weight, or a complaint that a judge who has exercised a discretion gave excessive weight, to a relevant consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge.  See Mallet v Mallet;[25] Dinsdale v The Queen;[26] Vagh v The State of Western Australia;[27] Pedersen v The State of Western Australia.[28]  A complaint about the attribution of weight to a relevant consideration therefore does not ordinarily give rise to an express error that enlivens an appellate court's jurisdiction to intervene in an appeal against a judge's discretionary decision or judgment.  In the absence of a failure to exercise the discretion conferred on the judge, a weighting error is, ordinarily, merely a conclusion that is implicit in, and flows from, a finding by an appellate court that the outcome or result of the judge's  exercise of the discretion is unreasonable or plainly unjust.  Ordinarily, a weighting error is not, of itself, an independent ground which justifies appellate intervention.

    [25] Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614 (Gibbs CJ).

    [26] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26] (Gaudron & Gummow JJ).

    [27] Vagh v The State of Western Australia [2007] WASCA 17 [76] (McLure JA).

    [28] Pedersen v The State of Western Australia [2010] WASCA 175 [37] (Buss JA; McLure P & Mazza J agreeing).

13. In the present case, it is not reasonably arguable that the primary judge failed to exercise the discretion conferred on his Honour in relation to the length of the extension of time.

14. As to the assertion that his Honour's decision in the exercise of his discretion was unreasonable or plainly unjust, it is necessary to examine that assertion having regard to the following unchallenged findings of fact made by his Honour:

    (a)The appellant is a very intelligent, well-educated and articulate man [39].

    (b)By about mid-December 2016, the appellant was familiar with s 40 of the Act [131].

    (c)By 9 June 2017, the appellant knew that there had been a 3 June 2015 email concerning him sent by the respondent to Mr Benjamin [48], [128] ‑ [129].  As a result, the appellant then had knowledge that 'he might hold some cause of action against [the respondent], depending upon a proper assessment of the actual content of the 3 June 2015 email' [48] (original emphasis).

    (d)By 11 July 2017, the appellant had sufficient information to enable him to carry out further investigations for the purpose of assessing whether or not he might have an arguable cause of action in defamation [128] ‑ [129].

    (e)By 11 July 2017, the appellant appeared to have 'a fulsome appreciation of the potentiality of [the 3 June 2015 email] being a defamatory publication made against him by [the respondent]' [135].

    (f)By 11 July 2017, the appellant was attributing responsibility to the respondent for the provision of information to Star-K which the appellant thought had resulted in him not being engaged for further certification work [140].

    (g)The appellant must have known that 'a three-year outer limit window, he having earlier taken personal regard to s 40 … would provide a permanent cut-off date for the duration of any extension, even if he was completely successful upon an extension to commence application' [153].

    (h)Between 11 July 2017 and mid-December 2017, the appellant failed to pursue investigations and his failure was not adequately explained [140] ‑ [141], [153].

    (i)Between 20 April 2018 (when the appellant received an email from the respondent in which the respondent again declined to provide the appellant with a copy of the 3 June 2015 email) and 1 June 2018 (when the appellant filed his writ of summons), the appellant could have but failed to take steps to investigate or pursue a defamation action against the respondent and that failure was not adequately explained [155] ‑ [156].

1. The respondent was not obliged to give the appellant a copy of the 3 June 2015 email or to reveal its contents.  In June 2017, the appellant became aware of the existence of the 3 June 2015 email.  It was open to the appellant to obtain a copy of that email by pursuing a third party discovery action against Mr Benjamin or by pre-action discovery against the respondent.

2. The evidence before his Honour and his Honour's findings do not support a contention that the respondent's conduct caused or contributed to the appellant's failure to investigate, without delay, whether he had a cause of action for defamation against the respondent or to the appellant's failure to institute, without delay, an extension application under s 40.

3. The absence of evidence as to any specific prejudice which the respondent would suffer if time had been extended to 1 June 2018 does not, either of itself or in combination with any other circumstances, establish implied error in relation to his Honour's exercise of discretion.

4. I am not persuaded that his Honour's decision as to the extension of time which should be granted to the appellant was unreasonable or plainly unjust.  The decision was reasonably open to his Honour on the facts as found and the facts that were not in dispute.

5. Ground 2 fails.

Conclusion

1. I would grant leave to appeal.

2. However, the appeal must be dismissed.

MURPHY JA:

1. I have had the advantage of reading the draft reasons of Buss P and Mitchell JA.  I agree with their Honours that ground 1 should be dismissed.  In relation to ground 2, the starting point for the difference between Buss P and Mitchell JA concerns the proper construction of the primary judge's reasons and whether his Honour the primary judge found that an extension of time should not be granted beyond 11 August 2017.  There is, in my respectful opinion, merit in each of the competing constructions of the primary judge's reasons in that regard.  On Buss P's construction of the primary judge's reasons, I would agree with Buss P's conclusions and dismiss ground 2 on that basis.  On Mitchell JA's construction of the primary judge's reasons, his Honour has discerned error by the primary judge in the exercise of discretion, but in his Honour's re‑exercise of discretion, his Honour would grant an extension of the limitation period only to 8 December 2017.  If there were error by the primary judge in this regard, I would also agree with Mitchell JA that, in the re‑exercise of any discretion by this court, the limitation period should be extended only to 8 December 2017.  For these reasons, I would grant leave to appeal, but dismiss the appeal.

MITCHELL JA:

Summary

1. On 1 June 2018, the appellant commenced the primary proceedings, claiming damages resulting from the respondent's publication of an allegedly defamatory email on 3 June 2015. The ordinary limitation period for bringing such a claim is 12 months from the date of publication, pursuant to s 15 of the Limitation Act 2005 (WA) (Act). 

2. Section 40(2) of the Act empowers the court to extend the time in which a defamation action can be commenced. The court must extend the time in which a defamation action can be commenced if it is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within one year from the relevant publication. However, even when an extension of time is granted, s 40(3) of the Act provides that a defamation action cannot be commenced if 3 years have elapsed since the relevant publication. Therefore, the latest possible limitation period in the present case

expired on 2 June 2018, which was the day after the commencement of the primary proceedings. 

1. After commencing the primary proceedings, the appellant applied for an extension of the limitation period.  The primary judge published reasons indicating he was not prepared to extend the limitation period beyond 11 January 2018.  After publication of the judge's reasons, the parties consented to orders dismissing the extension application and the primary proceedings.  The appellant now appeals against those orders.

2. The principal question raised by the appeal concerns the proper construction of s 40 of the Act. The appellant contends that, when the power to grant an extension exists, s 40 requires or provides for the automatic extension of the limitation period to 3 years after the relevant publication. In my view, the primary judge was correct to reject that contention. Once the court is satisfied that it was not reasonable for the plaintiff to have commenced proceedings within one year from a defamatory publication, it is required to extend the limitation period. However, the court has a discretion as to the length of the extension (up to 3 years from the date of the relevant publication) which should be granted.

3. The appellant also alleges that, if there is a discretion, the exercise of the discretion miscarried in this case.  I accept that appellable error in the exercise of the discretion has been demonstrated in one respect.  However, in re-exercising the discretion, I would not extend the time to commence the primary proceedings to 1 June 2018 (which is the period the appellant requires).  I would dismiss the appeal on that basis.

Factual background

1. From September 2005 to May 2015, the appellant worked part‑time for Star-K Kosher Certification (Star-K).  Star-K is a Baltimore, USA-based company which provides kosher certification to companies around the world.  The appellant's work for Star-K involved visiting factories in various parts of the world to verify that the products being produced were compliant with Jewish kosher dietary rules.[29] 

   [29] Primary decision [41].

2. In November 2014, the appellant began a relationship with Dr Alzena MacDonald, who was not, at that time, Jewish.  Dr MacDonald subsequently decided to apply for conversion to the Jewish faith.  In April 2015, she and the appellant travelled to Sydney to seek permission from Rabbi Ulman of 'the Sydney Beth Din'.[30]  A 'Beth Din' was described by the primary judge as 'a Jewish court of law composed of three rabbinic judges, responsible for matters of religious law and for the settlement of civil disputes'.[31]

   [30] Primary decision [93].

   [31] Primary decision [118].

3. The appellant's last engagement with Star-K was in April - May 2015.  From about July 2015, the appellant's work with Star‑K essentially stopped.[32] 

   [32] Primary decision [42], [94].

4. Dr MacDonald was converted to Judaism on 12 April 2016.  She and the appellant married on 3 July 2016.[33] 

   [33] Primary decision [98] - [99].

5. In late August 2016, the appellant spoke on the phone with Rabbi Mushell, who was a senior administrator of Star-K based in Baltimore.  Rabbi Mushell said that the actual reason for the appellant's non‑employment was that the appellant did not have a 'shem tov' (or good name) in Perth.  In a subsequent telephone call in early September 2016, Rabbi Mushell said that Star-K had been told that the appellant did not have a 'shem tov' by a Perth-based Rabbi who was a lawyer.  Rabbi Mushell referred to a letter that this Rabbi had written to Star-K.  The appellant was aware that the respondent was the only Rabbi in Perth who practised law.[34]

   [34] Primary decision [45], [100].

6. Dr MacDonald wrote to the rabbinic board of the Kashrut Authority of Western Australia (KAWA) to investigate the 'shem tov' allegation.  The board comprised the respondent and two other Rabbis.  On 22 September 2016, the respondent replied with a letter that, in part, stated he was 'not aware of a letter from a Perth Rabbi to Star K advising that anyone is "not in good standing".'[35]  The appellant reasonably interpreted this email to mean that the respondent had not spoken or written to Star-K regarding him or Dr MacDonald.[36]

   [35] Primary decision [101], [106].

   [36] Primary decision [107] - [108].

7. The appellant continued to try to find out why Star-K was not employing him.  In the course of doing so he spoke with the president of Star-K on 13 December 2016.  The president said that an issue as to the appellant's good name had arisen due to the community being concerned that he had testified in court in a relative's family law proceedings.[37]  It appears that participating in secular court proceedings in these circumstances is something which is forbidden by a form of Jewish tradition.[38]

   [37] Primary decision [110], [114].

   [38] Primary decision [115].

8. On 9 June 2017, the respondent sent a further email to Dr MacDonald.  In that email, the respondent said that, in June 2015, he was approached by a person who was concerned that the appellant was undertaking supervision work while romantically involved with a non‑Jewish woman.  The respondent was also told that the appellant had approached the Sydney 'Beth Din' to apply for conversion of the woman.  The respondent said that he had spoken to Amos Benjamin, an employee of Star-K, and verified that the appellant was undertaking supervision work for Star-K.  The respondent said he also spoke to Rabbi Ulman and Rabbi Gutnick (Rabbis of the Sydney 'Beth Din') and verified the information 'regarding the non-Jewish woman'.  The respondent's email of 9 June 2017 then said:[39]

   Having verified that information, by email dated 3 June 2015 I advised Amos Benjamin of the advice I received from the Sydney Beth Din and I copied that email to Rabbi Moshe Gutnik of the Sydney Beth Din.  The email was not sent in my capacity as a member of KAWA and simply conveyed the advice I had received regarding the woman with whom Binyamin was said to be romantically involved and her prospective conversion.  (emphasis added)

   [39] Primary decision [127].

9. On 11 July 2017, the appellant sent a long email to the respondent, posing a series of questions which revealed the appellant's appreciation that the email of 3 June 2015, referred to by the respondent, potentially contained material which was defamatory of him.[40]  There was no response to this email, or other correspondence sent by the appellant.

   [40] Primary decision [135], [138].

10. Tragically, on 16 December 2017 Dr MacDonald died unexpectedly from a rare bacterial infection.  The appellant's grandmother died 12 days later.[41]

    [41] Primary decision [147].

11. Although he never obtained a copy of the respondent's 3 June 2015 email, the appellant commenced the primary proceedings by writ filed on 1 June 2018.  The endorsement on the writ indicated that the appellant claimed damages resulting from 'defamatory representations' the respondent had made to Star-K 'on or around 3 June 2015'.[42]  The writ was served on the respondent on 29 May 2019, which was just prior to the expiry of the writ.[43]  The respondent entered a conditional appearance on 7 June 2019.[44] 

    [42] Primary decision [6].

    [43] Primary decision [32].

    [44] Primary decision [33].

12. On 6 August 2019, the appellant sought an extension of time to commence the action under s 40(2) of the Act.[45]  On 12 February 2020, the primary judge made orders dismissing this application and the primary proceedings.  The present appeal is against those orders.

    [45] Primary decision [34].

Legislation

1. Section 15 and s 40 of the Act make special provision for limitation periods in defamation actions. Under s 15 of the Act:

   An action relating to the publication of defamatory matter cannot be commenced if one year has elapsed since the publication.

2. Section 11(1) of the Act provides for pt 2 div 3 of the Act (in which s 15 is contained) to have effect subject to pt 3 of the Act (in which s 40 is contained).

3. Section 30 - s 33 and s 35 - s 36 of the Act provide for extended limitation periods in certain circumstances. However, s 34 and s 37 of the Act provide that those sections do not apply to the publication of defamatory matter.

4. Section 38, s 39, s 41 and s 42 of the Act provide for the court's power to extend limitation periods in certain circumstances. However, these sections do not apply to defamation actions either expressly (in the case of s 38(4), s 41(4) and s 42(4)) or by virtue of the subject matter of the section (in the case of s 39).

5. Section 40 of the Act provides:

   (1)A plaintiff may apply to a court for leave to commence an action relating to the publication of defamatory matter even though one year has elapsed since the publication.

   (2)Subject to subsection (3), on an application a court, 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 one year from the publication, must extend the time in which the action can be commenced.

   (3)An action relating to the publication of defamatory matter cannot be commenced if 3 years have elapsed since the publication.

6. Also, under s 44 of the Act:

   When deciding, on an extension application, whether to extend the time for the commencement of an action, a court is to have regard to —

   (a)whether the delay in commencing the proposed action, whatever the merit of the reasons for that delay, would unacceptably diminish the prospects of a fair trial of the action; and

   (b)whether extending the time would significantly prejudice the defendant (other than by reason only of the commencement of the proposed action).

7. The term 'extension application' is defined in s 3(1) to include an application under s 40 of the Act.

Primary judge's decision

1. The primary judge was satisfied that it was not reasonable in the circumstances for the appellant to have commenced the primary proceedings within 12 months of the publication of the email on 3 June 2015.[46]  That was because the appellant was not aware of the existence of the 3 June 2015 email until he received the respondent's email of 9 June 2017.[47] The primary judge also held that the court had power to grant leave under s 40 after an action had been commenced within 3 years of the relevant publication.[48]  None of these conclusions are challenged on appeal.

   [46] Primary decision [82].

   [47] Primary decision [48], [128].

   [48] Primary decision [177] - [204].

2. The primary judge rejected the appellant's argument that, once the 'not reasonable' threshold was passed, he was entitled to an automatic extension of the limitation period by 3 years from the date of publication.  Rather, his Honour held that, once the court was satisfied that it was not reasonable for the plaintiff to have commenced proceedings within 12 months of the defamatory publication, the court had a discretion as to the length of the extension (up to 3 years from the date of publication) which should be granted.  Ground 1 of the appellant's appeal challenges this conclusion.

3. After considering the circumstances, the primary judge said that he would not exercise his discretion to extend time beyond 11 January 2018.[49]  Ground 2 of the appellant's appeal challenges this conclusion, essentially on the basis that the exercise of his Honour's discretionary power miscarried.

   [49] Primary decision [205].

Section 40(2) confers a discretion as to the length of the extension

1. Section 40(2) of the Act confers a power with an express precondition to the existence of the power, and a duty to exercise the power when the precondition is satisfied. The court only has the power to extend time once it is 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 one year from the publication. I shall refer to that state of satisfaction as the court being satisfied of the 'Precondition'.  Once satisfied of the Precondition, the court 'must' extend the time in which the action can be commenced.  This creates a duty to exercise the power where the court is satisfied of the Precondition.

2. The issue raised by appeal ground 1 is whether, once the court is satisfied of the Precondition, s 40 provides for an automatic extension, or requires the court to extend time, to 3 years from the date of the relevant publication. The appellant contends that s 40 has this effect. The respondent contends that the length of the extension which the court must grant is a matter in the court's discretion.

3. In my view, the primary judge was correct to hold that s 40(2) of the Act confers a discretion on the court as to the length of the extension which is to be granted once the court is satisfied of the Precondition. That construction of s 40 is more consistent with the text of the provision, the context in which it appears in the Act and the evident purpose of the provisions of the Act prescribing special limitation periods for defamation actions.

4. As to text, the specification of an end point is inherent in the concept of extending the time in which something can be done. A limitation period can only be extended to a point in time, otherwise what is granted is not an extension but a removal of a limitation period. In extending the time in which the action must be commenced the court must indicate a new time within which the action must be commenced. Section 40 requires the court to extend time, rather than itself providing for the extension of the limitation period, where the court is satisfied of the Precondition. Section 40(2) does not operate by expressly requiring the court to extend the time to 3 years from the date of publication. Rather, it gives the power to extend time without specifying for how long time is to be extended. By the opening words of s 40(2), that power is conferred subject to the requirement in s 40(3) that a defamation action be commenced within 3 years of the date of publication.

5. The ordinary and natural meaning of the statutory text is that the court has a power, which it must exercise when satisfied of the Precondition, to extend the time for commencing a defamation action for such period (up to 3 years from the date of publication) as the court thinks fit in the exercise of its discretion.

6. As to context, s 44 of the Act provides a strong indication that the power conferred by s 40(2) has a discretionary element to it. Section 44 requires the court, when deciding whether to extend time on an 'extension application' under s 40(2), to have regard to matters concerning the impact of delay and any extension on the fair trial of the action. Those matters could not be relevant to the question of whether the court is satisfied of the Precondition. They could have no significance for the exercise of the power under s 40 at all if a 3-year extension automatically followed from the court being satisfied of the Precondition.

7. Section 44 of the Act provides for mandatory relevant considerations to be taken into account in deciding whether to extend time. Inherent in the concept of a decision whether to extend time is a decision as to the extent to which time shall be extended. That is, s 44 provides for matters to which the court must have regard both in deciding whether to extend time at all and in deciding the length of any extension which is to be granted. The first aspect does not arise under s 40(2), as the court must grant an extension once satisfied of the Precondition. However, the matters in s 44 are relevant to the second aspect of the length of the extension to be granted. If, as the appellant contends, s 40(2) confers no discretion as to either aspect, then the express application of s 44 to an extension application under s 40(2) of the Act becomes nonsensical. For that reason, the application of s 44 to an extension application under s 40(2) indicates that the court has a discretion under s 40(2) and the matters referred to in s 44 are logically relevant to the exercise of that discretion.

8. As to statutory purpose, it is evident from the statutory text of s 15 and s 40 of the Act that Parliament has determined that defamation actions must be brought promptly. That is indicated by the comparatively very short limitation period of 12 months, and provision for an extension of that period only where action could not reasonably have been commenced within 12 months of the relevant publication. These provisions stand in contrast to other provisions of the Act providing for much longer limitation periods, and more generous provisions for extensions of time from which defamation actions are expressly excluded. A requirement that a person who could reasonably commence a defamation action within 13 months, for example, from publication must be allowed 3 years from the relevant publication date to commence a defamation action would be inconsistent with this statutory purpose.

1. I note two matters debated in submissions which I have not found to be of assistance in construing s 40 of the Act. The first is extrinsic Parliamentary material which I have found to be unclear and sometimes contradictory. It does not seem to me to point clearly to one construction or the other. The second is decisions dealing with the limitation legislation in other States, which is cast in materially different terms to s 40 of the Act, and in particular expressly provides for time to be extended up to 3 years from the date of publication. That said, the construction of s 40 I have adopted is, in any event, broadly consistent with the approach adopted by the New South Wales Court of Appeal in Barrett v TCN Channel Nine Pty Ltdin relation to a somewhat similar provision in that State.[50]

   [50] Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304; (2017) 96 NSWLR 478.

2. For the above reasons, in my view the court, once satisfied of the Precondition, must grant an extension of time.  However, the court has a discretion as to the length of the extension to be granted. 

3. That discretion as to the length of the extension is subject s 40(3), and so cannot be exercised to extend time by more than 3 years from the date of the relevant publication.

4. The discretion must be exercised having regard to the statutory purpose that defamation actions must be commenced promptly. 

5. It is also implicit from the specification of the Precondition that the discretion will be exercised having regard to when it was reasonable in the circumstances for the action to have been commenced.  While the power is not limited to an extension to the earliest time at which the action could reasonably have been commenced,[51] that will be a matter to which the court may have regard in determining the appropriate length of the extension. Further, within the constraint imposed by s 40(3), it would not ordinarily be appropriate for the court to grant an extension for a period shorter than that which the court considered was reasonably required for the action to be commenced.

   [51] See, in a similar statutory context, Barrett [91], [106].

6. The discretion as to the length of the extension must also be exercised having regard to the mandatory relevant considerations identified in s 44 of the Act. It is also implicit that the discretion be exercised reasonably and, being a discretion conferred on a court, judicially.

7. For these reasons, I do not accept the appellant's argument that s 40 of the Act provides for an automatic extension of time, or requires the court to grant an extension of time, to 3 years from the date of the relevant publication whenever the court is satisfied of the Precondition. Nor do I see any proper basis in the statutory language for the appellant's alternative contention that, when the application for an extension is determined after proceedings have been commenced within 3 years of publication, there must be an extension which is an 'efficacious' extension for the date of the actual commencement of the proceedings.[52]

   [52] Appeal ts 3, 7 - 8, 10.

Did the exercise of the primary judge's discretion miscarry?

1. I turn to consider the appellant's second ground of appeal, which seeks to impugn the primary judge's exercise of the discretion as to the length of the extension.

2. There is, in my view, some ambiguity in the primary judge's reasons as to the extent of the extension which his Honour thought appropriate.  The construction of the reasons is complicated by the fact that no extension order was ever actually made.  Rather, following the publication of the primary judge's reasons, the parties consented to orders dismissing the extension application and the primary proceedings.

3. On one view of his Honour's reasons, he concluded that the appropriate length of the extension was to 11 August 2017.  On that reading of the judge's reasons, his Honour also considered an alternate scenario if he were wrong in that primary conclusion, which might see an extension to 11 January 2018.  If his Honour's reasons are read in that way, to succeed the appellant needs to successfully impugn both the primary conclusion that there should be an extension to 11 August 2017 and the alternative conclusion (which only arose if the primary conclusion were wrong) that the extension should be to 11 January 2018.

4. On another view, his Honour ultimately came to the view that the appropriate extension period was to 11 January 2018.  On that view of the judge's reasons, it is only necessary for the appellant to successfully impugn that decision.  The difference is significant for the appellant's argument based on the tragic events of December 2017.

5. After referring to the appellant's email to the respondent of 11 July 2017, the primary judge said:[53]

   Hence, as a matter of discretion, I would not extend the time period (accepting that there must be some period of extension granted, for the reasons as already canvassed) beyond, say, 11 August 2017.  An extension until then would allow:

   (a)sufficient time to wait for a response from the defendant - in fact, there was not a response; and

   (b)for the plaintiff to obtain some urgent legal advice about his defamation position in all those circumstances.

   However, if I were thought to be being too harsh or wrong about that, then I would, in the alternative, grant a further extension of only six more months beyond 11 July 2017 to the plaintiff to apply for leave, namely, to 11 January 2018. 

   [53] Primary decision [140] - [141].

1. His Honour indicated that an extension to 11 January 2018 would enable the appellant to obtain the 3 June 2015 email by third party or pre-action discovery.

2. Later, his Honour observed:[54]

   I have now indicated, on my objective assessment, a reasonable plaintiff ought to have commenced third party discovery and pre-action discovery applications against the defendant seeking to obtain a copy of the 3 June 2015 email by compulsory orders of this court at a time well before the plaintiff's email to the defendant of 7 March 2018.  I have indicated my view that such action ought to have occurred within six months of 11 July 2017.  (emphasis added)

   [54] Primary decision [152].

3. His Honour's ultimate conclusion was stated in the following terms:[55]

   In all the circumstances, I would be amenable to grant an extension of time pursuant to s 40(2) of the Limitation Act to 11 January 2018.  However, an extension of that duration is not enough to redress the underlying defectiveness of the plaintiff's action, as it was commenced by his writ of 1 June 2018.  (emphasis added)

   [55] Primary decision [205].

4. The better view seems to me to be that his Honour thought it was appropriate to extend time to 11 January 2018 and this was not simply an alternative view expressed against the contingency that his Honour was wrong about the appropriate extension being only to 11 August 2017. That seems to me to follow from the statement, in the passage quoted at [204] above, that the judge was amenable to granting an extension to 11 January 2018.

5. In my view, that outcome of the exercise of the primary judge's discretion was, in the circumstances of the present case, unreasonable.  In my view, if the appropriate extension was thought to be until 11 January 2018 then account must be taken of the impact of the unexpected death of the appellant's wife on 16 December 2017 and the death of his grandmother 12 days later.  In my view, the appellant could not reasonably be expected to do anything to progress contemplated litigation in the month following these tragic events, particularly given the Christmas and New Year holiday period which closely followed Dr MacDonald's death.  It was, in these circumstances, unreasonable to extend the time to a date less than one month from Dr MacDonald's unexpected death.

6. While the primary judge did not ignore the events of December 2017, he does not seem to have given them any weight in the exercise of his discretion.[56] While a weighting error is not sufficient to show error in the exercise of a discretion, in my view in the circumstances of this case the failure to give adequate weight to the death of the appellant's wife and grandmother has resulted in a decision which is legally unreasonable. This court can correct an outcome which is unreasonable as it infringes the implied condition that the discretion conferred by s 40(2) must be exercised reasonably.[57]  Further, as was established by the decision in House v The King,[58] error may be inferred from an outcome of the exercise of a discretionary judgement which is unreasonable or plainly unjust. 

   [56] Primary decision [147], [153].

   [57] See ABT17 v Minister for Immigration [2020] HCA 34; (2020) 94 ALJR 928 [19] - [20].

   [58] House v The King (1936) 55 CLR 499, 504 - 505.

7. I do not accept the appellant's submission that the primary judge took into account an irrelevant consideration, being the time of service of the writ, or that the result is unreasonable given the respondent's role in causing the delay in the appellant commencing proceedings.  I reject those submissions essentially for the reasons Buss P has given.  However, for the reasons I have explained above, in my view the exercise of the primary judge's discretion did miscarry in the circumstances of this case.

Re-exercise of the discretion

1. Given I have found error to have been established in the exercise of the discretion, in my view it falls on this court (which has the necessary materials) to itself exercise the discretion conferred by s 40(2) of the Act.

2. This discretion is to be re-exercised having regard to the following unchallenged findings of the primary judge which were supported by the affidavit evidence:

   (1)By the time of his telephone discussion in early September 2016, the appellant apprehended that the respondent had told Star-K that the appellant did not have a 'shem tov'.[59]

   (2)By mid-December 2016, the appellant was aware of the provisions of s 40 of the Act.[60]

   (3)By 9 June 2017 the appellant knew that the respondent had sent Star-K an email concerning him on 3 June 2015.[61]

   (4)The appellant's email to the respondent on 11 July 2017 demonstrated the appellant's appreciation of the potential that the respondent's 3 June 2015 email was a defamatory publication.[62]

   [59] Primary decision [45].

   [60] Primary decision [131].

   [61] Primary decision [48], [128] - [129].

   [62] Primary decision [135].

3. In my view, in these circumstances the action ought reasonably to have been commenced within 6 months of the appellant becoming aware, on 9 June 2017, of the existence of the 3 June 2015 email.  That 6-month period allows time for correspondence with the respondent, the obtaining of legal advice and an application for pre-action or third‑party discovery of the 3 June 2015 email.  In my view, allowance must be made for time to obtain discovery of the 3 June 2015 email given:

   (1)the appellant did not have a copy of the email; and

   (2)the respondent's email of 9 June 2017 merely admitted informing Star-K of the fact that the appellant and Dr MacDonald were in a relationship and had applied to the Sydney 'Beth Din' for Dr MacDonald to convert to Judaism (an uncontested true statement which is not defamatory).

4. In my view, having regard to the legislative policy that defamation actions be brought promptly, these steps should reasonably have been taken, and the primary proceedings commenced, within 6 months of the appellant becoming aware of the existence of the 3 June 2015 email.  The appellant unreasonably delayed commencing the primary proceedings when he failed to take any steps to obtain pre-action or third‑party discovery, or to commence the primary proceedings, within that 6‑month period.

5. I note that there is no specific evidence that delay in commencing the action has unacceptably diminished the prospects of a fair trial of the action, or that extending time would significantly prejudice the respondent.  However, in considering the appropriate length of an extension, it remains appropriate to give weight to the legislative policy that actions for defamation be instituted promptly if they are to be brought at all.

6. In my view, the primary proceedings could reasonably have been commenced shortly after 9 June 2017, when the appellant became aware of the 3 June 2015 email, and should reasonably have been commenced within 6 months of that date.  There has been no reasonable explanation for the appellant's failure to take appropriate steps, including obtaining discovery of the 3 June 2015 email, during that 6-month period. 

7. I do not accept the appellant's submission that his investigations of the impact of his testimony in the Family Court proceedings on his employment with Star-K (a matter not concerning the respondent) provides a reasonable explanation for delaying commencing proceedings against the respondent beyond that 6-month period.  It was only necessary for the appellant to show that any defamatory statements made by the respondent were a cause of his loss and damage.  If the appellant considered inquiries about the Family Court proceedings to be necessary to decide whether he could establish causation, he should have made those inquires in the 6-month period.  That was, in my view, adequate time to make such inquires as were likely to be productive.

8. In these circumstances, I would grant an extension of the limitation period only to 8 December 2017 (being 6 months after the appellant became aware of the 3 June 2015 email). 

9. Given my conclusion as to when proceedings should reasonably have been commenced, the significance of the tragic deaths in the appellant's family for the determination of the extension application diminish.  That is because, in my view, the appellant ought reasonably to have commenced the proceedings prior to Dr MacDonald's unexpected death on 16 December 2017.  I note that, if I had thought it otherwise appropriate to extend time to or beyond the time of Dr MacDonald's death, I would have allowed for a reasonable period (which would be well after 11 January 2018) for inaction by the appellant as he grieved her death and the death of his grandmother.  However, even if I were to have taken that approach, I cannot see a basis on which I would have extended the limitation period as far as 1 June 2018.

Orders

1. For these reasons, I would grant an extension of time for the appellant to commence defamation proceedings in respect of the 3 June 2015 email to 8 December 2017.  However, there would be no utility to an order granting that extension of time given that proceedings were not commenced until 1 June 2018.  This is reflected in the approach taken at first instance by the parties who, on 12 February 2020 following publication of the primary judge's reasons, consented to orders dismissing the extension application and the action itself.  Given the conclusions I have reached, the foundation for those consent orders remains, and the orders disposing of the extension application and the primary proceedings continue to be appropriate.  I would therefore not interfere with the orders made by the primary judge.

2. Given the significant question of construction of s 40 of the Limitation Act raised by ground 1, my view that ground 2 is, in part, established and the significance of the primary judge's decision for the appellant's substantive rights, I would grant leave to appeal.  However, for the reasons I have explained above, in my view the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

TW

Associate to the Honourable President Buss

17 SEPTEMBER 2021