Rawlings v Hadfield
[2013] VCC 1315
•16 October 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-13-01629
| SUSAN RAWLINGS | Plaintiff |
| V | |
| SHELLEY HADFIELD & ORS | Defendants |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 29 August and 7 October 2013 | |
DATE OF RULING: | 16 October 2013 | |
CASE MAY BE CITED AS: | Rawlings v Hadfield & Ors | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1315 | |
REASONS FOR RULING
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Catchwords: Application under section 23B of the Limitation of Actions Act 1958 to extend the limitation period for a defamation action.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. J. McLean | Gibsons |
| For the Defendants | Mr D. Gilbertson | Kelly Hazel Quill |
HER HONOUR:
The application
1 By a Writ and Statement of Claim filed on 8 April 2013 the plaintiff seeks damages for allegedly defamatory publications by the first and second defendants on 5 December 2011 (the Schedule A Article) and by the first and third defendants on and from 5 December 2011 and continuing (the Schedule B Article). The plaintiff also seeks injunctive relief to prevent further defamatory publications.
2 By summons filed on 12 June 2013 the plaintiff applied for an order pursuant to section 23B of the Limitation of Actions Act 1958 (the Act) extending the limitation period nunc pro tunc to 8 April 2013, as well as an order for payment of the plaintiff's costs.
3 Section 23B of the Act provides as follows:
1) A person claiming to have a cause of action for defamation may apply to a court for an order extending the limitation period for the cause of action.
2) A court, on an application under subsection (1), 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 section 5 (1AAA) to a period of up to 3 years from the date of the publication.
3) A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2).
4) If the court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.
5) An order for the extension of the limitation period, and an application for such an order, may be made under this section even though the limitation period has already expired.
4 The principles applied to an application for an extension of time were summarised in two recent decisions of His Honour Justice Beach in May 2013.[1] They are as follows:
[1]Casley v Australian Broadcasting Corporation [2013] VSC 251 [28] and TrikuljavDoberijevic and others [2013] VSC 261 [20]
1) First, under s23B the burden is on the applicant for an extension of time to point to circumstances which make it not reasonable in the circumstances to have commenced a proceeding within one year from the date of the publication.
2) Secondly, the circumstances that might give rise to an extension are left at large.
3) Thirdly, the test posed by s23B (2) is an objective one. It is not satisfied by showing that the applicant believed that he or she had good reason not to sue.
4) Fourthly, if the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period, then it must extend the limitation period. Unlike other extension of time provisions, there is no discretion whether or not to extend time. However, a discretion exists as to the length of the extension to be granted which, in any event, may not exceed three years from the date of the defamatory publication.
5) Fifthly, the section requires more of an applicant than to show that it would have been reasonable not to commence a proceeding until after the one-year period had expired: the court must be satisfied that it was not reasonable in the circumstances of the plaintiff to have commenced a proceeding within the one-year period.
6) Sixthly, the circumstances must be sufficiently compelling to satisfy the court that it was not reasonable in the circumstances to commence a proceeding within the one-year period the law ordinarily requires litigants to commence proceedings.
7) Seventhly, s23B of the Act proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence a proceeding to vindicate his or her legal rights in accordance with that time limit.
5 As His Honour further explained, the test requires the Court to consider whether, on an objective basis, the plaintiff's reasons point to the conclusion that it was not reasonable to commence a proceeding.[2]
[2]Ibid, [29] and [21] respectively
6 The plaintiff's application was confined to her cause of action in respect to the Schedule A article (the Article), where the limitation period had expired some four months and three days prior to the filing of the plaintiff's Writ.
7 It was submitted on behalf of the plaintiff that her ability to instruct solicitors to proceed during the relevant period, had been impaired by symptoms of anxiety and depression, as well as medications prescribed in the treatment of her condition. This particular circumstance, she argued pointed to the conclusion that it was not reasonable in the circumstances for her to have commenced a proceeding within one year from the date of publication of the Article.
8 In her evidence, the plaintiff drew attention to other related circumstances which she said also explained her inability to commence proceedings over this period. These included her physical condition over some months in 2012 (as described in her doctor’s evidence), her inability to pay a large sum of money required by at least one firm of solicitors and the advice received from another solicitor, regarding the merits of her claim.
9 On 9 August 2013, before the conclusion of her submissions, the plaintiff applied (unopposed), for the further hearing of the summons to be adjourned to allow her to obtain an affidavit from her treating doctor.
10 When the hearing resumed on 7 October 2013, the plaintiff's summons was supported by:
Ø two affidavits sworn by her on 9 June 2013 and 23 August 2013 respectively. She gave evidence and was cross-examined;
Ø an affidavit sworn on 23 August 2013 by treating general practitioner, Dr Sophie Richmond. The doctor also gave evidence and was cross-examined.
11 The defendants objected to the affidavit of solicitor, Kevin Michael Dorey, affirmed and filed electronically on 8 August 2013, the day before the first hearing date. This affidavit was eventually withdrawn.
12 A solicitor acting on behalf of the defendants swore an affidavit on 30 September 2013, to which was attached a copy affidavit the plaintiff agreed had been sworn by her on the morning of 5 December 2012, in respect to Supreme Court proceedings issued against her in November 2012.
13 As my discussion of the evidence below reveals, at times there were inconsistencies in the plaintiff’s evidence. However, I formed the view that, while her recollection was at times unreliable, the plaintiff, who has a long-standing diagnosis of clinical depression and anxiety, had done her best to recall and recount her reasons for the failure to commence her defamation action within the time limit. Relevantly, I was assisted in reaching this conclusion by the evidence of the treating doctor and psychologist, particularly where their evidence acted to corroborate various circumstances described by the plaintiff.
14 The evidence is summarised in the following paragraphs.
The plaintiff's evidence
15 The plaintiff has a history of mental health problems. In her oral evidence she confirmed that, in 2007, she had been referred by her doctor to psychiatrist, Dr Keryn Fitzpatrick, who prescribed anti-depressant medications in the treatment of depression. The plaintiff said she had not continued these medications because they had not worked and produced undesirable side-effects.
16 The plaintiff alleged that in October 2011, while living with a male housemate and friend in a property next door to and owned by his mother (the property), she was twice assaulted by his mother, Patricia Mansbridge and sister, Donna Ould. According to the plaintiff, these assaults and police indifference to her complaint had caused anxiety and depression, in the treatment of which her general practitioner, Dr Sophie Richmond prescribed medication.
17 Exhibit "SR-1" to the plaintiff's first affidavit confirmed that, on 5 October 2011, she obtained ex parte interim intervention orders against the mother and the sister. These matters were next listed for contested hearings in the Melbourne Magistrates’ Court on 26 October 2011. It appears that both matters returned for a further contested hearing on 14 December 2011.
18 In November 2011, the plaintiff was referred by her general practitioner to psychologist, Dr Heather McCormack. In a written report dated 1 June 2013, Dr McCormack stated that when first consulted by the plaintiff on 9 November 2011 she was: "suffering from severe anxiety and depression. She had recently suffered a very disturbing incident in her personal life which had left her feeling traumatised and very mistrustful of people".[3] I infer that the disturbing incident to which the psychologist referred was the alleged assault/s.
[3]Plaintiff’s affidavit, Exhibit “SR-2”
19 On November 24 2011, the plaintiff was served with Supreme Court proceedings, commenced by the mother seeking to remove her from the property. The plaintiff said that this event had exacerbated her mental health problems, such that she experienced panic attacks and had been unable to leave her home or face other people.
20 Without naming the plaintiff, the Article published in the Herald Sun on 5 December 2011 under the headline "Woman banned from her yard" reported the taking out of the interim intervention order against the mother and an alleged dispute between the mother and the plaintiff, whom the mother claimed was squatting in the property, in which her deaf son resided.
21 In the days preceding the publication, the plaintiff said that she had unsuccessfully sought assistance from police and from Victoria Legal Aid regarding the mother’s Supreme Court proceeding.
22 On the morning of the publication the plaintiff said she had not answered the telephone and when reporters came to her door seeking an interview, she had declined. However, at about 12 pm, believing that she was about to suffer a panic attack, the plaintiff asked her housemate to collect her medication from a car parked outside the property, at which time he also collected a newspaper from the letterbox.
23 After seeing the Article, her housemate had, the plaintiff claimed, flown into a rage and blamed her for the Article. According to the plaintiff, due to her housemate’s aggressive reaction to the Article, at that time she only read the headline (but later told the Court that she had browsed through the Article "without taking much notice").
24 Under cross-examination, the plaintiff confirmed that on the day of the publication she was anxious and depressed and had suffered panic attacks. However, the plaintiff agreed that she had been wrong in also telling the Court that she had not left her house that morning and only left the house that day to visit her son.
25 As it transpired, having already seen the headline (and, at the very least, browsed through the Article), on the morning of the publication the plaintiff attended the offices of Rigby Cook, the solicitors she had selected from three firms nominated by the free legal referral service, PILCH, to represent her in the Supreme Court proceeding. This was, the plaintiff said, her first meeting with the solicitor, at which time, as she also agreed, she swore an affidavit in support of the Supreme Court proceeding. A copy of this affidavit was attached to solicitor, Daniel Leon Stuk’s affidavit, sworn on behalf of the defendants on 30 September 2013.
26 Accordingly, despite having previously deposed that she had not been legally represented in the Supreme Court proceeding, in the course of her application the plaintiff acknowledged that she was represented.
27 It appears that the Supreme Court proceeding was fixed for hearing on 7 December 2011, on which date a Deed of Settlement was executed. While the plaintiff agreed that she had received legal advice about the content of the Deed, she, nonetheless claimed not to have understood the content of the Deed.
28 Apart from the undertaking given by the mother, the settlement entered by the parties required the plaintiff to vacate the property by 21 January 2012.
29 According to the plaintiff, on the day the Article was published, she was still suffering from anxiety, depression and having panic attacks. The effect of having read the article, the plaintiff claimed, was immediate, in that her panic attacks grew more frequent, her depression and anxiety increased and she had been unable to think, concentrate or function properly.
30 The treating psychologist’s report makes no reference to the Article or any potential defamation action. I was unable to confirm from reading the report whether, in the aftermath of the publication, as claimed, the plaintiff had immediately sought treatment from this psychologist or whether she had also been obliged to increase the frequency of her attendances. What we do know from the psychologist's unchallenged evidence is that there were 10 consultations between December 2011 and June 2012, when the plaintiff terminated the therapy. I will discuss this report in more detail and Dr Richmond’s evidence shortly.
31 The plaintiff deposed that, during this period, her employment suffered. She had been criticised by her employer for her lack of focus and poor concentration and, because she suffered panic attacks, she was forced to reduce her working hours by several shifts per week. Under cross-examination, the plaintiff explained that some two to three months had elapsed before she had been able to reinstate the shifts lost (about five in all).
32 The materials indicate that, on 14 December 2011, an intervention order was made against the sister, with an expiry date of 21 January 2012. On the same date, without admitting the content of the complaint made, the mother gave a signed undertaking for the same period, in accordance with the terms of a Deed of Settlement executed by the plaintiff and the mother on 7 December 2011.
33 I understood from the plaintiff’s evidence that she rejected the proposition that, in the 12 months following publication, her symptoms of anxiety and (presumably the frequency of) the panic attacks were intermittent. Rather, the plaintiff said that there were periods when she thought her symptoms subsided, although she could never be sure they had. The evidence the plaintiff gave was to the effect that, the symptoms of depression and anxiety fluctuated, so that, even if she felt well in the morning, this could change unexpectedly later the same day.
34 The plaintiff had, nonetheless deposed that, on 16 January 2012, during a period when her anxiety and panic attacks had subsided, she consulted a solicitor, George Zolis in Spring Street, Melbourne regarding a possible defamation action. The plaintiff was advised the following day by this solicitor that her action had no prospect of success. In her second affidavit the plaintiff recalled that the advice received had left her with a sense of hopelessness, and feeling depressed and, at the time, she had “just wanted to vanish".[4]
[4]Plaintiff's second affidavit, paragraph 2
35 Accepting for the moment the accuracy of this evidence, as was submitted on the plaintiff’s behalf, there are circumstances where a litigant should not be burdened by delay caused by a solicitor’s conduct.[5] Whether or not this authority applies to this case, as submitted by the defendants, any delay attributable to Mr Zolis’ advice was not a circumstance that explained all of the subsequent delay, particularly where other solicitors had indicated to the plaintiff a preparedness to proceed if instructed.
[5]Fanning v Harding [2013] VSCA 208 [23]
36 The plaintiff said that after approaching the Victims of Crime Assistance Tribunal (VOCAT) in May 2012, she was referred to another solicitor in Bentleigh, whose name she was unable to recall. Under cross-examination, the plaintiff recalled that, at the time, she had been trying to take control and knew that she had to act. The plaintiff further indicated that she was probably alright “at that moment”, but still symptomatic.
37 Accordingly, despite ongoing mental health problems (“… my depression, anxiety and panic attacks were still present and I was still attending upon Ms McCormack and still on medications"[6]), the plaintiff said that she attended this solicitor at Bentleigh and was advised that she would have problems with a defamation action due to the confidentiality clause contained in the Deed of Settlement.
[6]Plaintiff's first affidavit, paragraph 12
38 Apparently this solicitor also advised the plaintiff that he required a large sum of money deposited into his trust account before commencing any defamation action. By the plaintiff’s account, another reason for her not commencing proceedings at this time was that her finances had been depleted after her working hours were shortened. As discussed above, the plaintiff also attributed her reduced working hours to her anxious and depressed state during this period.
39 The plaintiff deposed that in mid to late November 2012, her depression and anxiety abated (“somewhat”), although she still suffered panic attacks. Under cross-examination, the plaintiff again emphasised that her symptoms came and went.
40 The plaintiff said that she consulted another firm of solicitors, Slater and Gordon in Melbourne, where she had been advised by a lawyer, whose name she was unable to recall, that she had a potential defamation action. This lawyer apparently indicated that the firm would consider the matter and get back to the plaintiff. The plaintiff said that within two days, the solicitor requested that the plaintiff attend to provide full instructions.
41 Under cross-examination, the plaintiff explained that she had not attended to provide instructions because the prospect of having to show the Article had substantially increased the level of her anxiety and depression and panic attacks.
42 In effect, as deposed in her second affidavit, on this and earlier occasions, after reaching the stage where the plaintiff felt able to contact a lawyer, she did not proceed, because showing the Article also exacerbated her mental health symptoms ("… When the article was first published I felt exposed and embarrassed and just wanted to disappear. I became extremely anxious and depressed and at one time looked into changing my name… Whenever I considered showing the article to someone else will discuss it with someone else my anxiety and depression would increase substantially”[7]).
[7]Plaintiff's second affidavit, paragraph 4
43 Under cross-examination, plaintiff agreed that she had shown the Article to Mr Zolis, the solicitor consulted in Bentleigh and to her current solicitors. I did not, however, find this conduct incompatible with the evidence that, on the occasions alleged, the prospect of showing the Article, had exacerbated the plaintiff’s symptoms of depression and anxiety to the extent claimed.
44 Evidently the solicitor to whom the plaintiff spoke at Slater and Gordon also drew her attention to the deadline for the bringing of a defamation action, but advised the plaintiff that she could obtain an extension of time.
45 If this sort of reassurance was given, it appears that the advice did not directly contribute to further delay, as the following day the plaintiff attended another firm of solicitors, where a female lawyer had advised her that she did not have a defamation action because the content of the Article was true. The plaintiff was, she said, dissatisfied with this advice and, without nominating the date of this, in December 2012, the plaintiff contacted a defamation barrister she had located on the Internet. On this barrister’s advice, the plaintiff apparently contacted her current solicitors.
46 The plaintiff first telephoned Gibsons Solicitors on about 10 December 2012, although she said that anxiety and panic attacks again prevented her from attending their offices until 17 December 2012. In any event, by the time the plaintiff contacted this firm, the limitations period had expired.
47 The plaintiff was advised by her solicitors that she would be required to make this application and, by about 11 January 2013, the plaintiff had signed and returned a Retainer Agreement to her solicitors. On 15 January 2013, she received a draft Concerns Notice to which she gave approval on 16 January 2013.
48 Thereafter, it appears that correspondence was exchanged between the plaintiff’s solicitors and legal representatives acting for the second and third defendants, who sought to assert defences to the defamation action.
49 According to the plaintiff, the defendants’ response heightened her anxiety and increased her panic attacks. She was reluctant to proceed if this entailed attending court. Indeed, she deposed that, in about February 2013, her anxiety and depression worsened such that she contemplated suicide, telephoned "Beyond Blue" (an organisation providing a help line for those at risk of suicide) a number of times and eventually consulted Dr Richmond. This circumstance was corroborated by Dr Richmond who deposed that, in February 2013, the plaintiff presented at the clinic with significant depression, suicidal ideation and memory disturbance and was referred to a neuropsychologist, on whom the doctor believed the plaintiff attended for an initial consultation. As far as I can tell, the plaintiff made no reference to this referral or any consultation in either her affidavit or oral evidence.
50 On 4 March 2013, the plaintiff instructed her solicitors to proceed and, as mentioned, on 8 April 2013 the proceeding seeking damages for defamatory publications was filed.
51 The plaintiff deposed and gave evidence to the effect that she continues to suffer from anxiety, depression and panic attacks.
The medical evidence
52 Dr Richmond's evidence was to the following effect:
Ø she has been the plaintiff's main treating general practitioner at the Ashwood Medical Group since 2005;
Ø the plaintiff has a history of treatment for clinical depression;
Ø Dr Richmond had diagnosed the plaintiff as suffering from depression, prior to referring the plaintiff for treatment by psychiatrist, Dr Keryn Fitzpatrick, in 2007;
Ø when she referred the plaintiff to Dr Fitzpatrick, the plaintiff met the DSM-V criteria for a diagnosis of depression;
Ø she had been advised by Dr Fitzpatrick that the plaintiff had trialled three different antidepressant medications. I note that the copy report, dated 5 June 2007 from Dr Fitzpatrick, tendered through Dr Richmond, confirmed that the psychiatrist had assessed the plaintiff as suffering from depression and anxiety and, at that time, she intended to trial the plaintiff on another antidepressant medication;[8]
[8]Exhibit A
Ø the plaintiff had not tolerated the antidepressant medications for more than three days at a time before she ceased taking the medications due to their side-effects;
Ø in the period between 2011 and 2013, having reportedly investigated the side-effect profile of these, the plaintiff had resisted numerous requests to trial new types of antidepressant medication. I infer from this evidence that, throughout the relevant period the doctor believed that the plaintiff required additional treatment for symptoms of depression, which were not adequately controlled by therapy alone;
Ø in October 2011, the plaintiff consulted Dr Richmond complaining of significant anxiety in association with incidents that had occurred at her shared accommodation. She reported feeling very fearful and distressed, suffering from insomnia, suffering poor concentration, having an increased alcohol consumption and an inability to work. The plaintiff was referred to a psychologist;
Ø in the months that followed the consultation in October 2011, the plaintiff attended Dr Richmond regularly and reported that she had major issues finding alternative accommodation. Over this period, Dr Richmond noted that the plaintiff continued to have significant symptoms of anxiety and depression;
Ø in addition to treatment for anxiety and depression, between March and September 2012, the plaintiff was treated for other conditions (a hand injury and neck and back pain) with painkilling medication, namely Endone, for three weeks in March 2012 and Panadeine Forte from March 2012 to September 2012. In Dr Richmond's opinion, during this period, the plaintiff's pain level and the medication prescribed to treat pain could have impaired the plaintiff's capacity to reason and make decisions in her best interests;
Ø in February 2013, the plaintiff presented with significant depression, suicidal ideation and memory disturbance. As mentioned she was referred to a neuropsychologist on whom Dr Richmond understood the plaintiff attended for an initial consultation;
Ø medications to assist with sleep, Normison and Stilnox and anti-anxiety medication, Valium, were prescribed from late 2011 to early 2013. Under cross-examination, the doctor said that Normison was prescribed on average every three months (25 tablets each and was not being heavily used), there were three prescriptions for Stilnox (14 tablets each to be taken as required for sleep) and the plaintiff was prescribed Valium for anxiety, panic attacks and insomnia;
Ø in Dr Richmond's opinion, the medications prescribed could have impaired the plaintiff’s mental and physical functions from time to time. Under cross-examination, Dr Richmond said that she could not determine how much of the plaintiff's mental state related to the side effects of medication and how much related to her underlying anxiety. In effect, she agreed that she could only say that, over the relevant period, it was possible that the medication had adversely affected the plaintiff's ability to think rationally, reason, make decisions and give instructions to her solicitors to commence legal proceedings;
Ø by definition, depression affects a person's ability to think rationally, it can have a major influence on their ability to act decisively and it can cause a person to act irrationally;
Ø her diagnosis (namely chronic major depression with anxiety as a co-existing condition) has not changed since 2007 and the plaintiff remained symptomatic;
Ø chronic major depression can be a relapsing, remitting condition, which means that the level to which a sufferer is impaired may fluctuate.
53 Under cross-examination Dr Richmond further indicated the plaintiff had not told her that she had been served with a Supreme Court writ in November 2011, or, it seems, told this doctor (until more recently) that she had contacted the various solicitors named by the plaintiff in her evidence, regarding a possible defamation action.
54 Accordingly, the evidence of the doctor and the psychologist did not help corroborate the plaintiff's assertion as part of this application that, over the relevant period, she had sought to pursue her legal rights by consulting a number of lawyers. However, her conduct in not disclosing this matter to her treating doctors could also be viewed as a further example of the plaintiff's reluctance to discuss what she considered to be defamatory material with others.
55 Relevantly, the report from the psychologist, Dr McCormack, further indicated that, when the plaintiff terminated therapy in June 2012, the symptoms of depression and anxiety had not resolved and she still found it hard to cope with the pressures in her life. Moreover, the plaintiff presented to the psychologist as genuinely fearful for her safety and very mistrustful of people.
56 As at June 2012, Dr McCormack considered that the plaintiff was still very debilitated by the trauma she had experienced in 2011, the impact of which she believed would continue for some time. Moreover, in June 2013 the psychologist supported the plaintiff’s claim that she had not been psychologically strong enough to approach the Court or speak to a lawyer during the latter part of 2012.
Conclusions
57 The defendants contended that:
Ø there was an inherent difficulty in the plaintiff's claim that she had been unable to follow through with instructions to commence legal proceedings because she had since taken this step; and
Ø the objective evidence was inconsistent with the plaintiff's claim that, during the whole of the relevant period, her mental health condition was such that, she had been unable to follow through by instructing solicitors to legal proceedings.
58 These submissions are flawed.
59 The first submission, if upheld, would be fatal to the making of any extension application, notwithstanding the strong evidence that difficult to manage clinical depression and anxiety (and possibly the medications prescribed in the treatment of symptoms) probably had impaired on the plaintiff's ability to act decisively by instructing solicitors to commence a proceeding to vindicate her legal rights within the time limit.
60 The second appears to assume that a relapsing, remitting chronic condition may not be sufficient to satisfy the Court that it was not reasonable to commence a proceeding. The evidence taken as a whole is consistent with the plaintiff wanting to vindicate any legal rights in respect to the publication of the Article. Leaving to one side for the moment other contributing circumstances, such as the plaintiff’s diminished finances after her working hours were shortened, the evidence also shows that before and after any cause of action accrued and since the expiry of the time limit, fluctuating symptoms and possibly the effects of prescribed medication, as claimed, impacted the plaintiff's psych and likely significantly impaired her ability to act decisively in respect to this proceeding.
61 I was satisfied that the circumstances described by the plaintiff, in particular the impact of ongoing mental health problems on her ability to finally instruct solicitors was sufficiently compelling, such that it was not reasonable for the plaintiff to commence the defamation proceeding to vindicate her legal rights in accordance with the time limit.
62 Accordingly I propose to extend the time limit to accord with the application made.
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