Newcombe v O'Connor and O'Connor

DISTRICT COURT OF QUEENSLAND

CITATION: 

Newcombe v O’Connor & O’Connor [2022] QDC 19

PARTIES: 

DENISE NEWCOMBE

(Plaintiff)

v

CAROLYN O’CONNOR

(First Defendant)

AND

TIMOTHY O’CONNOR

(Second Defendant)

FILE NO:

2769/21

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT: 

Brisbane District Court

DELIVERED ON:

19 January 2022 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE: 

19 January 2022

JUDGE:

Porter QC DCJ

ORDERS:

1.   The application filed 22 October 2021 is dismissed.

2.   The plaintiff shall pay defendants’ costs of the application on the standard basis.

CATCHWORDS:

CIVIL PROCEDURE – LIMITATIONS OF ACTIONS – TORT – DEFAMATION – Application for an extension of the limitation period – Whether it was reasonable for the plaintiff to have not commenced an action within the limitation period – Whether pre-litigation steps towards alternative dispute resolution gives rise to reasonable grounds for an extension to the limitation period.  

LEGISLATION:

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

Defamation Act 2005 (Qld) Part 3

CASES:

Noonan v MacLennan [2010] QCA 50

Carey v Australian Broadcasting Corporation [2012] NSWCA 176

Ahmed v Harbour Radio Pty Ltd (2009) 180 FCR 313

Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175

Robertson v Hollings [2009] QCA 303

Carey v Australian Broadcasting Corporation (2012) NSWLR 90

COUNSEL:

M. White for the Plaintiff  

R. Anderson for the First and Second Defendants

SOLICITORS:

Clutch Legal for the Plaintiff

Bennett & Philip Lawyers for the First and Second Defendants

1. This is an application by the plaintiff for an extension to the limitation period for filing a claim for defamation under section 32A of the Limitation of Actions Act 1974 (Qld) (the Act). 

2. Section 10AA of the Act provides that the limitation period for the commencement of proceedings for a cause of action for the tort of defamation is one year from the date the cause of action accrued. Section 32A provides the Court with the power to extend that time. The version of s. 32A, by agreement of counsel, is a historical version of the provision, not the current version. That provision, it is agreed by counsel, relevant to these proceeding, is the provision as set out in paragraph 10 of Mr White’s outline of argument.

3. It is with some gratitude to Mr White that I can summarise principles that have been articulated as broadly relevant to the approach to that section as follows: 

   (a)The onus rests on the plaintiff to satisfy the Court that it was not reasonable in the circumstances for them to have brought proceedings within the limitation period.[1]

   [1] Noonan v MacLennan [2010] QCA 50 at [15]; Carey v Australian Broadcasting Corporation [2012] NSWCA 176 at [48].

   (b)The Court must be satisfied on the evidence and does not have a discretion to extend the time on grounds of fairness or where it may be just and reasonable to do so.[2]

   [2] Ahmed v Harbour Radio Pty Ltd (2009) 180 FCR 313 at [27]; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [87].

   (c)To this end, it has been…