Piscioneri v Reardon
[2015] ACTSC 61
•28 October 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Gabriella Jean Piscioneri v Marek Janusz Michael Reardon |
Citation: | [2015] ACTSC 61 |
Hearing Date(s): | 28 October 2014 |
DecisionDate: | 28 October 2014 |
Publication of Reasons Date | 14 April 2015 |
Before: | Refshauge J |
Decision: | 1. The application is dismissed. 2. The Applicant pay the costs of the application, except for the costs of the preparing and filing of the submissions of the Defendant dated 20 October 2014. 3. Liberty be reserved to the Defendant to apply for the Plaintiff to pay the costs of the submission referred to in Order 2 when any defence pleaded in the proceedings that the applicable limitation period has expired is determined, as the proceedings themselves are determined or otherwise brought to an end. 4. The Applicant be permitted to use a Post Office box as an address for service. |
Category: | Principal Judgment |
Catchwords: | DEFAMATION – Time for commencement of proceedings – No requirement for leave before filing originating process LIMITATION PERIOD – Fraud and Concealment – Concealing identity – Online username LIMITATION PERIOD – Application seeking extension of time – Statutory bar does not affect the jurisdiction of the court – Expiry of limitation period defence must be specifically pleaded |
Legislation Cited: | Legislation Act 2001 (ACT), s 126(1) Limitation Act 1985 (ACT), ss 21B, 33, 41, 44 Court Procedures Rules 2006 (ACT), r 650 |
Cases Cited: | Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 |
Parties: | Gabriella Jean Piscioneri (Plaintiff) Marek Janusz Michael Reardon (Defendant) |
Representation: | Counsel Gabriella Jean Piscioneri Self-represented (Plaintiff) Mr S Malcolmson (Defendant) |
| Solicitors Self-represented (Plaintiff) Reardon & Associates Lawyers (Defendant) | |
File Number(s): | SC 395 of 2014 |
Refshauge J:
The Plaintiff, Gabriella Jean Piscioneri, is a lawyer, who does not appear to be in current practice. She appears to have ceased practice in 2007.
On 8 September 2014, she filed in this Court an Originating Application seeking orders as follows:
1.That the time for filing and serving an originating claim and statement of claim relating to the defendant Marek Janusz Michael Reardon is extended pursuant to Section 33 of the Limitations Act 1985 (ACT).
2.That the defendant can be served by email or fax or registered mail to Reardon and Associates.
3.Any other orders that the Court considers appropriate.
She filed two affidavits in support of the application.
On 14 October 2014, the Defendant, Marek Janusz Michael Reardon, filed a Notice of Intention to Respond.
On 28 October 2014, I dismissed the application. I said that I would give my reasons later. These are my reasons.
I also made other orders to which I will briefly refer below.
The facts
From the affidavits filed in the proceedings, I was able to make the following findings of fact about this matter, but only for the purpose of hearing and determining the application. The hearing was of an interlocutory application, without cross-examination of the deponent of the affidavits nor, indeed, the need for opposing affidavits. As a result, these findings must be regarded as for the purpose of this application only. Save as is clear from what I say below, I am not making a finding, to use the words of Debelle J in Milojevic v Roh Industries Pty Ltd (1991) 56 SASR 78 at 83, “necessarily and with complete precision” and, of course, have not heard the evidence by cross-examination or other evidence that may subsequently be adduced.
Ms Piscioneri claims that she has been defamed by certain publications on an Internet Website, “ZGeek.com”. The publications, called “posts” on the Website, were, it appears, made by persons who use pseudonyms, including “Sagacious”. Comments posted on the Website by “Sagacious” were published on 11 January 2010 and, apparently, subsequently.
At the time her attention was drawn to the comments on the website, Ms Piscioneri did not know the identity of “Sagacious”. She said that she made various attempts to ascertain his or her identity. I do not need to set out all the efforts she made.
Nevertheless, for reasons that may be important, I note that she made various inquiries. In particular, she made inquiries of Anthony Scott Brisciani. The material before me does not disclose why she made inquiries of him. He appears to be Communications Administrator of Credit Corp Group Ltd. It was suggested that he may be the owner of the Website. He made it clear that Ms Piscioneri would have to get a court order before he would disclose the identities of persons who post on the Website.
She came to the view that a lawyer connected with a legal firm, Reardon and Associates, was “Sagacious”. When requested by her, Patrick Earl of that firm declined to give any information about the identities of any persons who might have posted a comment on the Website.
It also appears that Mr Earl told Special Magistrate Cush on 6 April 2010, in circumstances not otherwise identified, that he was “aware of who Sagacious is”.
Having been unable to obtain any information through the inquiries she had made, Ms Piscioneri looked at other avenues to find the identity of “Sagacious”.
In particular, she commenced proceedings in this Court to ascertain the identities of persons who posted comments on the Website. This was apparently a claim for Pre-Trial Discovery under r 650 of the Court Procedures Rules 2006 (ACT) and was numbered SC No 859 of 2010. I had no details of the parties to those proceedings. The material before me suggests that Ms Piscioneri is probably the Plaintiff and Anthony Scott Brisciani is probably the Defendant.
The proceedings were heard on 18 October 2013 when Mr Brisciani gave evidence and was cross-examined by Ms Piscioneri. During that cross-examination, he said that “‘Sagacious’ is Marek Reardon and you can contact him at Reardon & Associates”. Mr Brisciani agreed that Mr Reardon was a principal of that firm and stated an email address.
Ms Piscioneri says that this was the first time that she knew the identity of “Sagacious”.
She said that, subsequently, she made contact with Mr Reardon about the comments she claims were defamatory but received no reply.
She also said that, on 5 February 2014, she sent, by registered mail, copies of the Amended Originating Claim and the Amended Statement of Claim in the proceedings for Pre-Trial Discovery (SC No 859 of 2010) and other documents to Mr Reardon by facsimile transmission but had received no reply to that communication either.
The Limitation Issue
Ms Piscioneri was understandably concerned that her claim in defamation against Mr Reardon as “Sagacious” may be statute barred.
The limitation period applicable to proceedings in defamation is set by s 21B of the Limitation Act 1985 (ACT), which provides:
Defamation proceedings generally to be commenced within 1 year
(1)An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.
(2)However, a court must, 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 1 year from the date of the publication, extend the limitation period mentioned in subsection (1) to a period of up to 3 years running from the date of the publication.
That would mean that Ms Piscioneri’s claim for damages for a defamatory publication on 11 January 2010 would be barred by this provision by 8 September 2014, even with any extension under s 21B(2) of the Limitation Act.
Ms Piscioneri, however, sought to rely on s 33 of the Limitation Act as a postponement of the statutory bar. That section provides:
33 Fraud and concealment
(1) Subject to this section, if—
(a) there is a cause of action based on fraud or deceit; or
(b) a fact relevant to a cause of action or the identity of a person against whom a cause of action lies is deliberately concealed;
the time that elapses after a limitation period fixed by or under this Act for the cause of action begins to run and before the date when a person having (either solely or with other persons) the cause of action first discovers, or may with reasonable diligence discover, the fraud, deceit or concealment, as the case may be, does not count in the reckoning of the limitation period for an action on the cause of action by him or her or by a person claiming through him or her against a person answerable for the fraud, deceit or concealment.
(2) Subsection (1) has effect whether the limitation period for the cause of action would, apart from this section, end before or after the date mentioned in that subsection.
(3) Without limiting subsection (1), deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.
(4) For subsection (1), a person is answerable for fraud, deceit or concealment if, but only if—
(a) he or she is a party to the fraud, deceit or concealment; or
(b) he or she is, in relation to the cause of action, a successor of a party to the fraud, deceit or concealment under a devolution from the party occurring after the date when the fraud, deceit or concealment first occurs.
(5) If property is, after the first occurrence of fraud, deceit or concealment, purchased for valuable consideration by a person who is not a party to the fraud, deceit or concealment and does not, at the time of the purchase, know or have reason to believe that the fraud, deceit or concealment has occurred, subsection (1) does not, in relation to that fraud, deceit or concealment, apply to a limitation period for a cause of action against the purchaser or a person claiming through him or her.
Ms Piscioneri submitted that the identity of Mr Reardon could not be found by her until 18 October 2013. Thus, the statutory bar was postponed until 18 October 2014.
She submitted that the fact that both Mr Earl and Mr Brisciani knew the identity of “Sagacious” but expressly declined to reveal it to her meant that the identity of the person against whom she wished to commence her proceedings had been deliberately concealed.
Mr S D Malcolmson, who appeared for Mr Reardon, submitted that Ms Piscioneri could not rely on s 33 of the Limitation Act. He submitted first that s 33(1)(b) did not apply because the cause of action for which Ms Piscioneri was taking the proceedings was defamation and not fraud or deceit. In my view, that mis-states the meaning of the section. The two paragraphs, joined by “or” are true alternatives, as is clear from the heading to the section (a part of the Act: s 126(1) of the Legislation Act 2001 (ACT)) which refers to the two alternatives: fraud (s 33(1)(a)) and concealment (s 33(1)(b)). This also follows from what the Full Court of the Federal Court of Australia said about the provision in Paramasivam v Flynn (1998) 90 FCR 489 at 511. Indeed, that is made expressly clear in Commonwealth v Cornwell (2007) 229 CLR 519 at 523; [8]. The section is apt to cover the circumstances of Ms Piscioneri.
Mr Malcolmson then submitted that there was no concealment as Ms Piscioneri had “known of the pseudonym of the defendant since at least early 2010”. This is a very curious submission. I did not think that Mr Malcolmson was suggesting that Ms Piscioneri could have commenced proceedings against “Sagacious”. Quite apart from the difficulty of service, this is not in accordance with principle as set out in Re a Former Officer of Australian Security Intelligence Organisation [1987] VR 875 and L & A Services Pty Ltd v J & R [1995] 2 Qd R 10 at 44-5.
Indeed, a pseudonym is a false or fictitious name. As is clear from the use of pseudonyms (as, for example, in Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 at [1]), the use of a pseudonym is to preserve anonymity, that is to conceal the true identity of the person, namely a deliberate concealment. I reject the submission of Mr Malcolmson.
Mr Malcolmson then made a further curious submission, at least superficially at odds with the earlier submission. He submitted that:
The poster’s identity was concealed, a pseudonym – in fact a user name – having been employed, but the fact of that concealment was express and overt and in no way itself concealed.
This submission apparently accepted that the use of a pseudonym is a concealment, a conclusion I had reached above (at [24]) when rejecting his earlier submission. He then seemed now to submit that, because it was clear that Mr Reardon’s identity was being concealed because a pseudonym (perhaps because an obvious pseudonym) was being used, therefore there was no deliberate concealment of the fact that the identity was being concealed.
Section 33(1)(b) of the Limitation Act does not require that the deliberate concealment is itself concealed. The words of the section are clear; there only needs to be deliberate concealment of, relevantly here, “the identity of a person against whom a cause of action lies”. That may be quite overt as in the refusal of a person who knows that identity of such a person declining to give the plaintiff, or proposed plaintiff, the name of the proposed defendant, as happened here. I reject that submission also.
Mr Malcolmson then referred to Commonwealth v Cornwell. In this case, the Court considered s 33 of the Limitation Act, though, ultimately, not needing to make any determination about it. What their Honours said, however, is to be accorded considerable respect and to be paid due regard. I have already referred above (at [25]) to the plurality stating the that construction of s 33 involved two classes of case, in a passage to which, perhaps unsurprisingly, Mr Malcolmson did not refer.
He did refer to a passage at 523-4; [9]-[10], relating to concealed fraud. While an important part of the background to s 33 of the Limitation Act, neither the section nor the High Court required that, for s 33(1)(b), there had to be a fraudulent concealment.
This is clear from what the plurality said in Commonwealth v Cornwell at [40], [43]-[45] as follows:
Deliberate concealment
40The phrase ‘deliberately concealed’ as it appears in s 33 of the Limitation Act has its provenance in United Kingdom legislation, s 32 of the Limitation Act 1980 (UK) (‘the 1980 UK Act’). In Cave v Robinson Jarvis & Rolf, Lord Millett explained the matter as follows:
A defendant was formerly unable to take advantage of the Limitation Acts if he had been guilty of 'concealed fraud'. This equitable doctrine was given statutory effect by section 26(b) of the Limitation Act 1939 [(UK)], which postponed the start of the limitation period where the plaintiff's right of action had been 'concealed by the fraud of [the defendant or his agent]'. This was an inapt and inelegant expression which caused much difficulty. It put the emphasis on the fraud rather than the concealment.
...
43.Section 33 of the Limitation Act supplements the use of the term ‘deliberately concealed’ in s 33(1)(b) by additional provision in s 33(3). This states:
Without derogating from the generality of subsection (1), deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.
This text reflects that of s 32(2) of the 1980 UK Act.
44.What amounted to deliberate concealment for the purposes of s 32 of the 1980 UK Act was considered in Cave. The House of Lords held that what was included was a deliberate breach of duty either concealed or undisclosed and committed in circumstances such that it was unlikely to be discovered for some time, and also the taking of active steps to conceal a breach of duty after becoming aware of it; but what was not included was failure to disclose a negligent breach of duty that the actor was not aware of committing.
45.The respondent accepts that the Territory legislation is based on s 32 of the 1980 UK Act, and refers to Cave. It may be assumed, without now deciding, that what was said in Cave respecting the United Kingdom legislation applies also to s 33 of the Territory legislation.
(footnotes omitted)
What is clear are two things:
· the provision for postponement of the bar in s 33(1)(b) of the Limitation Act is added to, not circumscribed by, s 33(3); and
· the construction of the section in Cave v Robinson Jarvis & Rolf [2003] 1 AC 384 (Cave) is adopted.
When turning to Cave, the issue is illuminated. Lord Millett explained the position with reference to the English provision, s 32 of the Limitation Act 1980 (UK), relevantly very similar to s 33 of the Limitation Act, so that s 32(1)(b) of the English Act is very close to s 33(1)(b) of the ACT Act and s 32(2) of the English Act is very similar to s 33(3) of the ACT Act. His Lordship said (at 390; [7]-[8]):
7But this assumes that the plaintiff knows or ought to know that he has a cause of action. In common justice a plaintiff ought not to find that his action is statute-barred before he has had a reasonable opportunity to bring it. To this end the Limitation Acts contain provisions which extend, suspend or postpone the commencement of the limitation period in prescribed circumstances. The particular provision with which your Lordships are concerned is contained in section 32(2) of the Limitation Act 1980.
8Section 32(1)(b) of the 1980 Act postpones the commencement of the limitation period where ‘any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant’. In such a case the period of limitation does not begin to run until the plaintiff discovers the concealment or could with reasonable diligence discover it. The rationale for this provision is plain: if the defendant is not sued earlier, he has only himself to blame.
His Lordship then considered s 32(2) of the English Act, a matter with which these proceedings are not concerned.
Turning then to the purpose of s 32(1)(b) of the English Act, his Lordship said, in the passage quoted in the High Court, but with the rest of the passage, a very relevant statement, at 392-3; [19]:
19A defendant was formerly unable to take advantage of the Limitation Act if he had been guilty of ‘concealed fraud’. This equitable doctrine was given statutory effect by section 26(b) of the Limitation Act 1939, which postponed the start of the limitation period where the plaintiff’s right of action had been ‘concealed by the fraud of [the defendant or his agent]’. This was an inapt and inelegant expression which caused much difficulty. It put the emphasis on the fraud rather than the concealment.
Section 32(1)(b) and section 32(2) of the 1980 Act were designed to clarify and, if necessary, change the law by removing all reference to fraud and substituting the more appropriate concept of ‘deliberate concealment’. In such circumstances reference to the antecedent statute and case law is of limited value, since there can be no assumption that the later statute merely reproduced the pre-existing law. But in my opinion it can be referred to if it helps either to identify the mischief which the later statute set out to remedy or to explain why Parliament chose to adopt the particular language or drafting technique which it did when enacting the later statute.
I see no reason, especially in the light of the High Court’s approval of Cave, not to adopt exactly this approach to s 33(1)(b) of the Limitation Act (the ACT Act).
His Lordship then summarised his views, explaining the relationship between the two sub-sections as follows at 394; [23]-[25]:
23As I have explained, in enacting the 1980 Act Parliament substituted ‘deliberate concealment’ for ‘concealed fraud’. This is a different and more appropriate concept. It cannot be assumed that the law remained the same. But reference to the old law explains why Parliament enacted section 32(2) and did not rely on section 32(1)(b) alone to cover the whole ground. With all reference to fraud or conscious impropriety omitted, there was an obvious risk that ‘deliberate concealment’ might be construed in its natural sense as meaning ‘active concealment’ and not as embracing mere non-disclosure. Section 32(2) was therefore enacted to cover cases where active concealment should not be required. But such cases were limited in two respects: first, the defendant must have been guilty of a deliberate commission of a breach of duty; and secondly, the circumstances must make it unlikely that the breach of duty will be discovered for some time.
24Given that section 32(2) is (or at least may be) required to cover cases of non-disclosure rather than active concealment, the reason for limiting it to the deliberate commission of a breach of duty becomes clear. It is only where the defendant is aware of his own deliberate wrongdoing that it is appropriate to penalise him for failing to disclose it.
25In my opinion, section 32 deprives a defendant of a limitation defence in two situations: (i) where he takes active steps to conceal his own breach of duty after he has become aware of it; and (ii) where he is guilty of deliberate wrongdoing and conceals or fails to disclose it in circumstances where it is unlikely to be discovered for some time. But it does not deprive a defendant of a limitation defence where he is charged with negligence if, being unaware of his error or that he has failed to take proper care, there has been nothing for him to disclose.
Here, the concealment was as to the identity of Mr Reardon as the author of the allegedly defamatory material. There is no occasion for using the extension in s 33(3) of the Limitation Act, the ACT Act. It is not necessary to find, given the findings I have made, but it does seem to me that the refusal of Mr Brisciani and Mr Earl, as a member (whether employee or partner I cannot tell) of Mr Reardon’s legal firm, to provide the identity of “Sagacious”, constituted deliberate concealment because of their close association with Mr Reardon and his alleged publication.
I accept, as Mr Malcolmson submits, that Mr Reardon did not fraudulently conceal his identity, at least there is no evidence of this and it is not pleaded. That, however, is not to the point and is irrelevant to a proper consideration of s 33(1)(b) of the Limitation Act (the ACT Act). That submission is irrelevant to the issue in this case.
Mr Malcolmson says further that Ms Piscioneri knew the cause of action. She knew she wished to sue in defamation. She did not, however, know the author of the alleged defamation. She knew a pseudonym but could not sue a pseudonym.
He submits that Ms Piscioneri could, at any stage, have sought, by proper means, the identity of Mr Reardon, undermining his earlier submission that Ms Piscioneri knew all she had to know. She did make inquiries and did ultimately take steps provided for in the Court Procedures Rules for Pre-Trial Discovery.
Mr Malcolmson also referred to the steps taken by Ms Piscioneri between the date of the alleged publication of the allegedly defamatory statements and the discovery by her of the identity of Mr Reardon as “Sagacious”.
This is relevant to the issue under s 33(1) of the Limitation Act (the ACT Act) of when Ms Piscioneri may “with reasonable diligence” have discovered the concealment. That, however, is not a matter that is before me on this application.
The proceedings
Ms Piscioneri filed her Originating Application on 8 September 2014, as noted above (at [2]). It was made returnable on 24 September 2014. On 22 September 2014, for reasons not presently relevant, the date of 24 September 2014 was vacated and the proceedings stood over to 3 October 2014.
When the matter came on for hearing on 3 October 2014, Mr Malcolmson sought an adjournment. That was opposed because Ms Piscioneri was concerned that, since she had obtained the identity of Mr Reardon as “Sagacious” on 18 October 2013, she only had until 18 October 2014 within which to commence the proceedings to comply with s 21B of the Limitation Act (the ACT Act).
As Mr Malcolmson wished to have the adjournment, it seemed to me that he could, in the circumstances, be permitted to that indulgence, so long as his client was prepared to protect Ms Piscioneri’s position. That would require an undertaking from his client not to plead the Limitation Act (the ACT Act) in respect of the period of the adjournment, namely, in respect of the period from 3 to 28 October 2014. He gave that undertaking.
It may be that a neater way of dealing with that would be for me to have extended time under s 21B(2) of the Limitation Act (the ACT Act), to cover the period between 18 and 28 October 2014. That, however, would ultimately be complicated, for such an extension may, by necessary implication, have included the period prior to 18 October 2014 and, for reasons I set out below, that period may still be in issue.
Nevertheless, it seems to me that if, for any reason, the period between 18 and 28 October 2014 becomes an issue, then once the earlier period is resolved (either because the defence available to Mr Reardon under the Limitation Act (the ACT Act) is not pleaded or, if pleaded, is resolved in Ms Piscioneri’s favour) and if there remains some issue or dispute, the court could be asked to deal with it under that provision and, given the history, it would seem to me that such an extension would be highly likely to be made for that period.
The application
When the application came on for hearing, however, it seemed to me that it was entirely misconceived. There was no power under s 33 of the Limitation Act (the ACT Act) for the court to grant an extension of time.
In the first place, the Limitation Act (the ACT Act) does not so provide. To compare, for example, s 21B(2) and s 33 makes this clear. The latter section may also be compared with ss 36, 37, 38, 39 and 40 where the Act makes express provision for an application. Section 33 is more like ss 30, 30B, 32 and 34 which do not provide for, nor require, an application to the Court.
In the second place, there is no need for such an application or occasion for it. To understand this, the pleading status of the Limitation Act (the ACT Act) needs to be understood.
The effect of the statutory bar is, ordinarily and unless the statute otherwise provides, not to extinguish the right on which the plaintiff relies, but to bar the remedy. See Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 488-9; Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 at 74-5; Ronex Properties Ltd v John Laing Constructions Ltd [1983] QB 398 at 404. Thus, the statutory bar does not, as Toohey J pointed out in Commonwealth v Verwayen (1990) 170 CLR 394 at 413, go to the jurisdiction of the court to entertain the claim. See also per Mason CJ at 405. It goes to the defences which may be pleaded, including that the proceedings are statute-barred and, if not pleaded, this constitutes a waiver of that defence.
Under s 41 of the Limitation Act (the ACT Act), the ending of a limitation period in relation to a cause of action to recover or obtain goods extinguishes the right or title to the goods, but this is not such a claim. Even there, however, s 45 requires the extinguishment to be pleaded. See, to similar effect, s 44 of the Act.
The effect of a defendant not pleading the defence that the limitation period has expired is to waive the reliance on the statute. The expiry of the limitation period must be specifically pleaded and, if it is not, then the statutory bar is not an issue in the proceedings. See Robinson v Craven (1994) 63 SASR 267. See also Workcover Queensland v Amaca Pty Ltd (2010) 241 CLR 420 at 434; [31]. If this happens, then the proceedings may be prosecuted in the ordinary way, without any regard to the limitation period.
Ms Piscioneri submitted, however, that she had not earlier lodged her Originating Claim because she feared that, without the court’s leave to commence the proceedings, it would be rejected.
As is clear from the analysis above, the Court Registry would not be in a position to refuse, or even to requisition a claim, simply because it appeared that the limitation period had expired. That is not relevant until pleaded in the defence. Thus, rejection of an originating process by the Registry staff on this basis would be quite inappropriate, even in cases where the right or cause of action had been extinguished.
That is to be distinguished from the power of the Registry to reject a document which is in improper form or, for example, under s 145(2) of the Road Transport (Third-Party Insurance) Act 2008 (ACT) where an originating process is statutorily required to be accompanied by another document. Even there, however, it may be that the Registry may not reject the originating process which is not a nullity as held in Racic v Haltinen [2010] ACTSC 63. See also Singh v Rodden [2013] ACTSC 272.
This approach is also entirely consistent with the principle mentioned in James v Australia & New Zealand Banking Group Ltd (1986) 64 ALR 347 at 396, that a court would not consider the matter of the limitation period of its own motion.
This is even clearer when it is appreciated that the onus is on a defendant to prove the limitation defence once raised. This was so held by the Appeal Division of the Victorian Supreme Court after its detailed consideration of the issue in Pullen v Gutteridge Haskins & Davey Pty Ltd. In this case, Ms Piscioneri may bear the onus of proving deliberate concealment given its placement along with fraud and deceit in s 33 of the Limitation Act (the ACT Act) and in reliance on what was said in Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, but she bears no initial onus to show that the limitation period has not expired. This shows that her application was misconceived.
In any event, there are likely to be matters of fact and, frequently, matters of contested fact that will need to be considered when determining whether as a fact the limitation period has expired. This would usually be appropriately, perhaps even best, determined in the context of the trial itself.
Nevertheless, there may be occasions where a case is so obvious that a defendant may raise the statute bar without pleading a defence, where, as Lawton LJ said in Riches v Director of Public Prosecutions [1973] 1 WLR 1019 at 1027, “[t]he delivery of the defence occupies time and waste of money”. That would not appear to be the case here.
Even in that case, however, neither the Registry, nor the court of its own initiative, should act. As Stephenson LJ, with whom Sir Sebag Shaw, said in Ronex Properties Ltd v John Laing Constructions Ltd at 408:
There are many cases in which the expiry of the limitation period makes it a waste of time and money to let a plaintiff go on with his action. But in those cases it may be impossible to say that he has no reasonable cause of action. The right course is therefore for a defendant to apply to strike out the plaintiff’s claim as frivolous and vexatious and an abuse of the process of the court, on the ground that it is statute-barred. Then the plaintiff and the court know that the Statute of Limitations will be pleaded; the defendant can, if necessary, file evidence to that effect; the plaintiff can file evidence of an acknowledgement or concealed fraud or any matter which may show the court that his claim is not vexatious or an abuse of process; and the court will be able to do, in I suspect most cases, what was done in Riches v Director of Public Prosecutions [1973] 1 WLR 1019: strike out the claim and dismiss the action.
As the claim that deliberate concealment postpones the statutory bar, this would probably not be appropriate here.
For these reasons, I held that the application by Ms Piscioneri should be dismissed. As costs ordinarily follow the event, I also ordered that Ms Piscioneri pay the costs of the application.
Given that Mr Malcolmson did not submit that the application of Ms Piscioneri was misconceived, though he did make extensive submissions as if the application were able to proceed, it seemed to me that his client, Mr Reardon, should not receive the costs of those submissions, as they were not directed to the issue on which I dealt with the application.
Nevertheless, it may be that his client will plead the limitation defence and those submissions may be used in that context, though I have expressed grave doubts about aspects of them in the light of the relevant authorities.
If, however, they are used in their current form and find favour with the court, despite my comments, it may be that his client should recover the costs of them in that context. That would depend on the court being persuaded that they were appropriately so used on another occasion. Accordingly, I reserved to Mr Reardon, leave to apply should that occasion arise.
I also permitted Ms Piscioneri to keep undisclosed her street address on the basis that she had what seemed to me a well-founded fear that it may expose her to harassment from other (not, of course, Mr Reardon, who, in any event, already knew it). Her address for service could be a post office box.
| I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 14 April 2015 |
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