Murphy v Lewis

[2009] QDC 37

DISTRICT COURT OF QUEENSLAND

CITATION:

Murphy v Lewis [2009] QDC 37

Raymond Leo Murphy

(plaintiff)

v

Peter Lewis  

(defendant)

FILE NO/S:

52 of 2008

DIVISION:

Civil

PROCEEDING:

Application to extend limitation period

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

 27 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2009

JUDGE:

Kingham DCJ

ORDER:

1.   The application is refused.

2.   The plaintiff must pay the costs of the defendant as assessed on the standard basis

CATCHWORDS:

DEFAMATION -  whether time to commence action should be extended

LIMITATION OF ACTIONS – limitation period for defamation claims – circumstances in which period may be extended – test to be applied – whether leave to extend should be granted

Defamation Act 2005 (Qld), s3(d), Hansard; 25 October 2005; p 3425, Explanatory Notes p 3,

Limitation Act 1969 (NSW), s 56A

Limitation of Actions Act 1974 (Qld), s 10AA, s 31, s 32A

Motor Accident Insurance Act 1994, s57(2)(b)

Al-Shennag v Statewide Roads Ltd and Anor [2006] NSWSC 1226 cited

 Boland v Dillon; Cush v Dillon (No 2) [2007] NSWDC 77 cited

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, discussed

Buckley v Newcastle Newspapers Pty Ltd [2008] NSWDC 90 cited

Carr v Reynolds Porter Chamberlain [2007] NSWSC 21 cited

Dehsabzi and Dehsabzi v John Fairfax Publications Pty Ltd [2007] NSWDC 247 cited

Morrison-Gardner v Car Choice Pty Ltd [2005] 1 Qd R 378 applied

Rodgers v Nine Network Australia Pty Ltd (No 2) [2008] NSWDC 275 considered

Winters v Doyle [2006] 2 Qd R 285 applied.

COUNSEL:

D Spence for the plaintiff

M Burns SC for the defendant

SOLICITORS:

McInnes Wilson for the plaintiff

Gadens for the defendant

[1]      The Bailey Henderson Hospital in Toowoomba provides health services to patients suffering from mental health disorders. In January 2000, Raymond Murphy and Peter Lewis, both registered nurses, worked together at the Hospital’s Ridley Unit. Mr Lewis complained to his supervisor, Mr Vonhoff, about the way he said Raymond Murphy treated him.  He accused Mr Murphy of bullying, aggressive and intimidating behaviour. When asked to, Mr Lewis put the complaint in writing by letter dated 11 January 2007. Raymond Murphy became aware of this letter when Mr Vonhoff and the Nursing Director, Patrick Murphy (no relation to the plaintiff) discussed it with him in mid January 2007.

[2]      In July 2008 Raymond Murphy commenced proceedings against Peter Lewis claiming damages for defamation, based on statements Mr Lewis made in the letter. As proceedings were commenced more than one year after its publication, the claim is statute barred unless this court extends the limitation period.[1] Raymond Murphy has applied for such an order. Peter Lewis opposes it being made.

[1]Limitation of Actions Act 1974 (Qld) ss10AA, 32A.

[3]      The parties are in dispute about:

a)the test the court must apply in considering the application; and

b)whether the order to extend time should be made in the circumstances of this case.

A.     What is the test the court must apply?