Paule v McKay (No 2)

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.