Defamation law exists to protect individuals from false statements that may damage their reputation.
In Australia, there are strict time limits within which defamation actions must be commenced. However, in certain cases, the court may grant an extension of this limitation period.
This blog post discusses the factors that courts consider when deciding whether to extend the limitation period for defamation actions, with reference to the decision in Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385 and other relevant cases.
General Principles
Section 56A of the earlier and relevant version of the NSW Limitation Act outlines the circumstances in which a court may extend the limitation period for defamation actions. The court must be satisfied that it was not reasonable for the plaintiff to have commenced the action within one year from the date of the publication, and may extend the limitation period up to a maximum of three years from the date of publication.
As explained in Landrey v Nine Network Australia Pty Ltd [2023] FCA 27 and Paule v McKay (No 2) [2022] ACTSC 190, the court engages in an evaluative analysis to determine whether it was not reasonable for the plaintiff to have commenced the action within the one-year period. This analysis is based on objective factors and the individual circumstances of each case.
Factors Considered by the Court
In determining whether it was not reasonable for the plaintiff to have commenced the action within the one-year period, the court may consider factors such as:
1. The plaintiff's contemporary, subjective views and reasoning: The court will examine the plaintiff's actual reasons for not commencing the action within the one-year period, as explained in Carey v Australian Broadcasting Corporation [2010] NSWSC 709.
2. Changing circumstances during the limitation period: The court must consider any changes in the plaintiff's situation during the limitation period and how these changes may have impacted the reasonableness of commencing the action.
3. The "ordinary" position when criminal allegations are made: As noted in Joukhador v Network Ten Pty Ltd [2021] FCAFC 37, the court must evaluate the plaintiff's situation in light of any related criminal allegations and the potential impact on the defamation action.
4. The discretion conferred by s 56A(2) of the Limitation Act: The court has the discretion to extend the limitation period if it is satisfied that it was not reasonable for the plaintiff to have commenced the action within the one-year period.
Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385
In Lehrmann, the court identified several key factors that influenced its decision to extend the limitation period for the defamation action. These factors included:
1. The plaintiff receiving express advice to defer any defamation proceedings and relying on that advice.
2. The possibility of prosecution being a real concern for the plaintiff, leading him to prioritize the criminal allegations over the defamation action.
3. The potential prejudice to the plaintiff's defense in the criminal case if he pursued the defamation action simultaneously.
4. The plaintiff's efforts to engage with the Australian Federal Police (AFP) in an attempt to avoid prosecution, which aligned with his broader defense strategy.
5. The unique and compelling circumstances of the case, including the high-profile nature of the criminal allegations and the plaintiff's need to direct his resources and energies towards his defense.
Key Take-Aways
When determining whether to extend the limitation period for a defamation action, courts consider a range of factors that may render it not reasonable for the plaintiff to have commenced the action within the one-year period.
Ultimately, the court's decision will depend on the individual circumstances of each case, as well as an objective evaluation of the relevant factors.
In light of the cases discussed, it is clear that courts will carefully examine factors such as the plaintiff's subjective views and reasoning, changing circumstances during the limitation period, any related criminal allegations, and the potential impact of the defamation action on other legal proceedings. Importantly, the court's evaluation is not based on a set of rigid rules, but rather a holistic assessment of the circumstances surrounding the plaintiff and the defamation claim.
Individuals considering pursuing a defamation action should be aware of the strict time limits that apply and the factors that courts consider when assessing an application for an extension of the limitation period. It is crucial to consult with a legal professional experienced in defamation law to ensure that any potential claim is pursued in a timely manner and within the appropriate legal framework.
Moreover, individuals facing both defamation claims and related criminal allegations should carefully weigh the potential consequences of pursuing both legal actions simultaneously. In such cases, prioritising one's defence in criminal proceedings may be a compelling factor in convincing a court to extend the limitation period for a defamation action.