Terry Patrick Sharples v Adam Mark Hanson

[2006] FCAFC 161

FEDERAL COURT OF AUSTRALIA

Terry Patrick Sharples v Adam Mark Hanson [2006] FCAFC 161

PRACTICE AND PROCEDURE - whether leave required to appeal

LIMITATION OF ACTIONS – limitation period for defamation action - trade practices and claims under the corporations legislation - relevant periods of limitation having expired - when time commences to run - whether just to grant an extension to institute proceedings – whether re-publication of defamation – whether fraudulent concealment 

Federal Court Rules O 13
Limitations of Actions Act 1974 (Qld) ss 10, 29, 38

Duke of Brunswick v Harmer (1849) 14 QB 185 Considered
Hall v Nominal Defendant (1966) 117 CLR 423 Applied

JC Gatley, Gately on Libel and Slander, 10^th edn, Sweet & Maxwell, London, 2004

TERRY PATRICK SHARPLES v ADAM MARK HANSON, PAULINE LEE HANSON, LEONARD WILLIAM HARRIS, ROSS BINSTEAD AND CATALYST NEWSPAPER PTY LTD
QUD 153 OF 2006

KIEFEL, STONE & ALLSOP JJ
10 NOVEMBER 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 153 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

TERRY PATRICK SHARPLES
Appellant

AND:

ADAM MARK HANSON
First Respondent

PAULINE LEE HANSON
Second Respondent

LEONARD WILLIAM HARRIS
Third Respondent

ROSS BINSTEAD
Fourth Respondent

CATALYST NEWSPAPER PTY LTD
Fifth Respondent

JUDGES:	KIEFEL, STONE & ALLSOP JJ
DATE OF ORDER:	10 NOVEMBER 2006
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.Time is extended for the bringing of an application for leave to appeal.

2.Leave to appeal is refused.

3.The applicant pay the costs and/or expenses of the first, second and third respondents.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 153 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

TERRY PATRICK SHARPLES
Appellant

AND:

ADAM MARK HANSON
First Respondent

PAULINE LEE HANSON
Second Respondent

LEONARD WILLIAM HARRIS
Third Respondent

ROSS BINSTEAD
Fourth Respondent

CATALYST NEWSPAPER PTY LTD
Fifth Respondent

JUDGES:	KIEFEL, STONE & ALLSOP JJ
DATE:	10 NOVEMBER 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT:

1. In this matter Spender J made an order dismissing an application by the applicant for an extension of time in which to bring his proceedings, the relevant periods of limitation having expired.  His Honour made an order striking out the application and the statement of claim as statute-barred, and ordered the applicant to pay the first and second respondents' costs.  The applicant has filed a notice of appeal but was subsequently informed that leave may be necessary, since the order was not final.  The applicant contends to the contrary and relies upon the judgment of Barwick CJ in Hall v Nominal Defendant (1966) 117 CLR 423. His Honour was, however, in dissent on this issue, the majority of the High Court holding that an application for an order of this kind was not a final order. That judgment binds this Court. Leave is therefore required.

2. The applicant has apparently served the first and second respondents' former solicitors with the papers for this appeal.  There are issues about attempts to serve the third and fourth respondents.  The fifth respondent is a party joined by the applicant in his amended pleading, but without leave.  In view of the conclusion we have reached, it will be not necessary to resolve these matters. 

3. The applicant's application and statement of claim initially filed claimed damages for defamation under the Defamation Act 1889 (Qld); for breach of section 52 of the Trade Practices Act 1974 (Cth); for breach of the civil penalty provisions under section 232(2), (4) and (6) of the Corporations Law 1999 and for conspiracy to injure at common law; a compensation order pursuant to section 1317H of the Corporations Act 2001 (Cth) and together with various declarations and orders ancillary to the other claims. The focus of the proceedings was the action for defamation. The other causes of action were dependent upon the same publication. The period within which the relevant publication of the article, containing the alleged defamatory matter, was said to have been made was between 19 August 1999 and 30 September 1999. The first and second respondents filed a motion seeking to strike out the statement of claim as statute-barred, together with further orders. The matter came before his Honour on 14 November 2005 and his Honour made an order allowing the applicant to amend his statement of claim, in a form which he had foreshadowed, by 18 November 2005. That document is not before this Court, but his Honour, in his reasons, said that the document, filed out of time on 5 December 2005, went well beyond what had been foreshadowed. The applicant had apparently changed the dates of publication, extending the period in question to 30 November 1999 and added the fifth respondent without leave. In the face of the first and second respondents' outstanding motion, and applications by the applicant for various orders against the respondents, including discovery, his Honour dealt with the matter on the basis that the applicant had applied for an extension of time within which to bring his proceedings as the applicant needed to do. His Honour considered that it could not be said that the matter involved no federal aspect and proceeded to deal with the application on its merits. However, for the sake of completeness, we should not be taken to agree with everything that his Honour said about the operation of section 32 of the Federal Court of Australia Act1976 (Cth).

4. His Honour observed that the trade practices claim and those under the corporations legislation at the relevant time were required to be brought within three years.  The action for defamation had to be brought within six years of the date upon which the cause of action arise by virtue of the Limitation of Actions Act 1974 (Qld).  The latter time period expired on 30 September 2005.  The proceedings were not brought until 3 October 2005. 

5. In what follows in his Honour's reasons, it would appear that his Honour considered whether time should be extended with respect to the defamation action alone, no doubt because the expiry of its limitation period was closer in time to the bringing of the proceedings.  The other actions had been statute-barred for three years.  It does not appear to us that they could have been extended, in any event.

6. The applicant's explanation for the delay was that, although he had been aware of the publication in late 2001, he received legal advice in March 2002 that he had insufficient evidence to found a claim in damages.  This does not provide a ground for an extension of time.  Despite this advice the applicant, at some point, decided to pursue his action.  He then said that, despite his best efforts, he could not obtain a copy of the publication to enable him to commence proceedings until he searched the State archives in September 2005.  He said that the newspaper which published the article in question was limited in its circulation to supporters and members of the One Nation Party.  Another fact appears to be that Atkinson J gave judgment on 18 August 1999 in the Supreme Court of Queensland, which led to the de-registration of that political party. 

7. His Honour held that time runs from the date of publication of the defamation.  The applicant does not contend to the contrary.  His Honour was clearly correct:  see JC Gately, Gately on Libel and Slander, 10^th edn, Sweet & Maxwell, London, 2004, par 18.18.  The applicant however contended that there had been a re-publication in December 1999 when a witness, Mr Ettridge, said that he had received a copy of the article in the post from a Mr Pitt, the proprietor of another newspaper.  That person is not said to be connected to the newspaper in question.  The action brought by the applicant, as framed, was not however limited to the re-publication, or progressive re-publications as he described them in his submissions. 

8. It is clear that each and every subsequent publication of defamation gives a distinct and separate cause of action:  Gatley at par 18.19.  If there was re-publication, the applicant would be correct in his contention that time could be taken to run from December 1999.  An example provided by Gatley is the case where the newspaper which originally published the article provided a copy of the original issue:  Duke of Brunswick v Harmer (1849) 14 QB 185. However, as that case shows, the publisher must be identified with the act of publication. In the present case, there is nothing to link the sending of the copy of the article to Mr Ettridge to any of the respondents in these proceedings or to the proposed fifth respondent.

9. His Honour concluded that no basis was shown for an extension of time.  Time did not commence to run, in the case of defamation, when a person realised that they had suffered damage.  To these observations may be added that the applicant had the means of obtaining a copy of the article, but he was not aware of it at the time.  Beyond that, there was no evidence that the applicant was prevented from obtaining it.  His Honour also observed that fraudulent concealment stands as an exception to the statutory provisions limiting time.  By inference, his Honour did not consider that circumstance to be present in this case.

10. Section 10 of the Limitation of Actions Act 1974 (Qld) provides for a limitation of six years within which a person may bring an action based in tort. Section 29 provides for an extension of time in the case of a person under a disability, but it is not applicable here. Recent amendments, specifically addressed to defamation actions, and which further limit the period to only one year and curtail the prospect of any extension of that period do not apply to the present case. Section 38 provides for the postponement of the limitation period in the case of fraud or mistake. The period of limitation does not commence until the fraud in question is discovered or could, with reasonable diligence, have been discovered. The section extends to a case where the right of action is concealed by the fraud of the person to be sued. Here there is simply no evidence of concealment. Moreover, it is apparent that the applicant may have obtained a copy of the article at an earlier time. He knew of the publication and its nature. It may be that he could have brought an application for discovery before pleading, but it is not necessary to further consider that question.

11. There may also be questions about the use which may be made of the Queensland provisions in granting an extension of time in proceedings in this Court, but we do not need to determine that issue.  The applicant is unable to point to a statutory justification for an extension of time and there is no other general discretion.  We add that, although his Honour referred to the provisions of Order 13 of the Federal Court Rules at an earlier point in his reasons, that provision is concerned only with the power to allow an amendment, notwithstanding that it is statute-barred.  It does not apply in a case such as this, where an extension of time is necessary for the bringing of the initiating action. 

12. The correctness of his Honour's conclusion is reinforced by the applicant's submissions on his application for leave to bring an appeal.  He proceeds to a large extent upon a misunderstanding that there exists some general discretion to permit an extension of time to bring proceedings so that he may investigate the matter to see if he has a case.

13. The appeal is doomed to failure and, for that reason, in our view leave should be refused.  The applicant should pay any legal expenses incurred by the first, second and third respondents and any expenses associated with their attendance.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel, Stone & Allsop.

Associate:

Dated:        20 November 2006

For the Appellant:	In Person
For the First Respondent:	In Person
For the Second Respondent	In Person
For the Third Respondent	In Person
Date of Hearing:	10 November 2006
Date of Judgment:	10 November 2006