Paule v McKay (No 2)

Case [2022] ACTSC 190


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Paule v McKay (No 2)

Citation:

[2022] ACTSC 190

Hearing Date:

31 August 2020, 28 October 2021

DecisionDate:

27 July 2022

Before:

McWilliam AsJ

Decision:

(1) Pursuant to s 21B of the Limitation Act 1985 (ACT) the limitation period for the plaintiff’s causes of action for defamation in respect of the publications included at Schedule A and Schedule B of the Amended Statement of Claim respectively is extended to 15 July 2019.

(2)     To the extent necessary to do so, the extension of the limitation period in order 1 is similarly extended pursuant to the following:

(a) s 56A of the Limitation Act (NSW);

(b) s 23B of the Limitation of Actions Act 1958 (Vic);

(c) s 32A of the Limitation of Actions Act 1974 (Qld);

(d) s 37(2) of the Limitation of Actions Act 1936 (SA);

(e) s 20A(2) of the Defamation Act 2005 (Tas);

(f) s 40(2) of the Limitation Act (WA).

(3)     The costs of the plaintiff’s application in proceedings filed on 10 June 2020 be paid by the defendant, with such costs to:

(a)    include the costs of the application to amend the originating application and statement of claim determined by Crowe AJ on 5 June 2020; and

(b)    not be recoverable until the conclusion of the proceeding.

Catchwords:

LIMITATION OF ACTIONS — Defamation – application for extension of limitation period to commence action in defamation pursuant to s 21B of the Limitation Act 1985 (ACT) – whether it was not reasonable in the circumstances for applicant to have commenced action in defamation within one year of the publication complained of – where circumstances included the publication being produced in other court proceedings and the plaintiff was unable to get access to the publication or to obtain a release from the Harman undertaking – application granted

Legislation Cited:

Limitation Act 1985 (ACT) ss 21B; 102
Limitation Act 1969 (NSW) ss 14B; 56A;
Limitation of Actions Act 1958 (Vic) ss 5(1AAA), 23B
Limitation of Actions Act 1974 (Qld) ss 10AA; 32A
Limitation of Actions Act 1936 (SA) s 37
Defamation Act 2005 (TAS) s 20A
Limitation Act 2005 (WA) ss 15; 40(2)
Civil Law (Wrongs) Act 2002 (ACT) s 123(1)

Civil Law (Wrongs) Amendment Act 2021 (ACT) sch 1(1.3)

Cases Cited:

Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676

Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304; 96 NSWLR 478
Bidstrup v Cullen [2013] SASC 136
Carey v Australian Broadcasting Corporation [2010] NSWSC 709; 77 NSWLR 136
Carey v Australian Broadcasting Corporation [2012] NSWCA 176
Findex Group Ltd v iiNet Ltd [2018] NSWSC 1567
Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198
Findex Group Ltd v McKay [2019] NSWCA 93
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street [2008] HCA 36
Houda v State of New South Wales [2012] NSWSC 1036
Joukhador v Network Ten Pty Ltd [2021] FCAFC 37; 283 FCR…

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Paule v McKay (No 2) [2022] ACTSC 190
Case
[2022] ACTSC 190
Decision Date

CaseChat Overview and Summary

The plaintiff, Spiro Paule, sought leave to pursue defamation proceedings against the defendant, David McKay, for an email sent by McKay to ASIC representatives on 24 August 2016. Leave was required due to a statutory limitation period of one year. The limitation period expired on 15 July 2017, but Paule filed his statement of claim on 15 July 2019. The present application was filed on 10 June 2020, seeking an extension of the time within which to commence the proceedings. The Court must determine whether it was not reasonable in the circumstances for Paule to have commenced an action in relation to the matter complained of within one year from the date of the publication, as required by s 21B(2) of the Limitation Act 1985 (ACT). The Court must consider the totality of the objective circumstances that cohered to bring about the fact that Paule did not sue within one year of the publication. The Court found that it was not reasonable for Paule to have commenced proceedings within the one-year period, as he did not have access to the relevant documents and was unaware of their existence or content. The Court exercised its discretion to extend the time in which to commence proceedings to the date when Paule's statement of claim was filed, being 15 July 2019. The defendant was ordered to pay the costs of the plaintiff's application in proceedings filed on 10 June 2020, including the costs of the application to amend the originating application and statement of claim determined by Crowe AJ on 5 June 2020. The costs were not to be recoverable until the conclusion of the proceeding.

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