Keep an eye on the time: Defamation and Limitation

By Alex Tharby Mark Donaldson

30 July 2024

Being defamed can, understandably, leave you clouded, overwhelmed and unsure of what to do next.

But, amid the distress, it is important to seek legal advice as soon as possible.

As soon as you have been defamed, the clock is ticking on your opportunity to sue the perpetrator.

Or it may have already started ticking without your awareness.

This is because the time limit to begin proceedings starts at the time of publication of the defamatory material. In all Australian states and territories, you have one year to begin proceedings from the date of publication.¹

So, if you are the victim of a defamatory publication, but you do not become aware of the publication for a significant period, your time limit to begin proceedings may already be up.

Courts do have the power to extend the limitation period, particularly if you have good reason for not being aware of the material or being unable to commence proceedings. But this is a last and costly resort.

A recent example of this was seen in the high-profile Lehrmann v Network Ten Pty Ltd [2023] FCA 835 (‘Lehrmann’) case. Former Liberal staffer Bruce Lehrmann sought to have the limitation period for his defamation action against Network Ten and News Life Media extended because news items from both sources were published almost two years prior to him commencing proceedings. As such, his one-year time limit had expired. In short, the court granted him the extension because it was unreasonable to expect him to have begun proceedings while he faced criminal charges, which were ultimately withdrawn, over the rape of Brittany Higgins.

But as seen in the recent Pastor v Aegis Aged Care Staff Pty Ltd [No 4] [2024] WASCA 24 (‘Pastor’) case discussed below, an extension – such as Lehrmann’s – is difficult to obtain. This is particularly so in WA, where the courts apply a more stringent ‘not reasonable’ test in deciding whether to grant an extension.² Other states have amended their legislation to provide for a simpler ‘just and reasonable’ test.³

Regardless of either test, it is clearly advantageous to begin proceedings within the limitation period.

What counts as publication?

To understand when the time limit begins, you need to understand when material is considered ‘published’ for the purposes of defamation proceedings. This varies depending on the defamatory ‘matter’ and the Australian state in which the defamation occurs. ‘Matter’ simply describes the type of publication. The Defamation Act 2005 (WA) s 4 defines ‘matter’ as:

• an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical;
• a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication;
• a letter, note or other writing;
• a picture, gesture or oral utterance;
• and any other thing by means of which something may be communicated to a person.

This definition is much the same throughout the Defamation Acts of each state. As you can see, a defamatory publication can occur in a vast range of circumstances. The below table may assist you in considering when the one-year limitation period begins for common types of defamatory matter. Bear in mind, it should be used as a general and basic guide only as there are various circumstances in which the publication date may vary from what is described below and may depend on where you live.⁴

Of note in this regard, are WA and NT where the multiple publication rule (‘MPR’) still exists. The MPR means a new cause of action arises each time material is re-published. In other words, each time material is shared to a reader, the limitation period begins from that point. So, if an article was photocopied and then shared, this would constitute a new publication, a new cause of action and a new limitation period. The table below should be read with that in mind for WA and NT. The other States and ACT have implemented a ‘single publication rule’ for the publication of matter to the public that is alleged to be defamatory, which starts time running from the date of first publication.

Case study: How delay in bringing defamation proceedings can be fatal to your case – Pastor v Aegis Aged Care Staff Pty Ltd [No 4] [2024] WASCA 24

In Pastor, the Western Australian Court of Appeal recently emphasised the court’s strong stance on the limitation period for defamation and its reluctance to extend it. It also highlighted the importance of plaintiffs to properly define their claims in defamation in their initial application to the court. This is important because, as the appellant in Pastor found, you may not be able to correct your case if the limitation period has passed.

In Pastor, the appellant, Ms Pastor, alleged she was defamed by a fellow Aegis Aged Care employee because that employee said to Ms Pastor – within earshot of a third employee – that she heard Ms Pastor hated working with Africans.⁵ Ms Pastor’s case against her employer began in the District Court of Western Australia before progressing to the Court of Appeal.

Critically, Ms Pastor did not commence proceedings until nearly a year after the initial exchange with the employee. While this was within the one-year limitation period, her delay in bringing the claim proved to have consequences when she attempted to amend a defect in what is known as the ‘indorsement of claim’ – an integral part of her initial application to the court.⁶

The Court of Appeal ruled the indorsement of claim was defective because it ‘failed to identify the critical events which gave rise to the relief claimed or contain sufficient factual information to predetermine the limitation outcome.’⁷ In other words, it failed to properly identify the defamatory ‘matter’ the subject of Ms Pastor’s cause of action. This meant that when Ms Pastor sought to correct the error to specify the ‘matter’ she sued upon, it was effectively commencing a new claim.

Now, in regular circumstances, Ms Pastor could apply to the court to amend such an error and continue with her case. However, by the time the error was identified, this course was not available to her because the one-year limitation period had passed given she commenced proceedings so close to the cut-off date. As such, she had to seek an order from the court to extend the limitation period up to 3 years if she was to amend her claim.

The District Court rejected the extension, which was upheld by the Court of Appeal. The court emphasised it was only empowered to extend the time if satisfied it was not reasonable for the plaintiff to have commenced the action within one year.⁸

Reasons the court was not satisfied included:

• Ms Pastor knew of the defamatory remarks instantly when they were said to her so it was not reasonable for her to have delayed commencing the proceedings;⁹
• There was nothing that made it unreasonable for Ms Pastor not to have properly identified her cause of action in the indorsement of claim;¹⁰ and
• The fact Ms Pastor was self-represented was not an excuse because she gave herself little opportunity when she commenced proceedings so close to the cut-off date.¹¹

 

Conclusion

Pastor gives strong indication of the court’s current stance when it comes to the limitation period for defamation. The court clearly has high regard for plaintiffs who commence court proceedings as soon as possible and offers little wriggle room for those who do not – without reasonable excuse.

While limitation laws for defamation may vary between states, and the result may well have been different had the ‘just and reasonable’ test been applied in the Pastor case, the advice remains the same – don’t leave it to the last minute to commence action.

At Bennett, we can help you begin proceedings with the urgency required.

1. See, e.g., Limitation Act 2005 (WA) s 15
2. Limitation Act 2005 (WA) s 40(2); Rayney v the State of Western Australia [No 3] [2010] WASC 83 [41]
3. See, e.g., Limitation Act 1969 (NSW) s 56A
4. For our analysis of the different defences available in the different States and Territories of Australia, see the article by Dr Michael Douglas and Alex Tharby titled, ‘How your Western Australian postcode could affect your success in a defamation case’
5. Pastor v Aegis Aged Care Staff Pty Ltd [No 4] [2024] WASCA 24  [3]
6. Ibid [7]
7. Ibid
8. Ibid [25]
9. Ibid [28]
10. Ibid [30]
11. Ibid [31]

Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.