Federal Court of Australia

KMPG Pty Ltd v Owen [2023] FCA 987

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 40(2) of the Limitation Act 2005 (WA) the time in which these proceedings may be commenced is extended until 2 August 2022, save for publications that occurred on and between 2 June and 2 August 2021.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1    On 2 August 2022, KMPG Pty Ltd and Ms Keren Briers commenced defamation proceedings in this Court against Ms Kylie Owen and Mr Morgan Owen. KMPG conducts a real estate business in Kalgoorlie in Western Australia under the name Kalgoorlie Metro Property Group (Business). Ms Briers is a practicing real estate agent and a director of KMPG. Ms Owen is a former employee of KMPG and a director of LJ Hooker in Kalgoorlie. Mr Owen is her husband.

2    KMPG and Ms Briers allege that on or around 5 November 2020, Ms and Mr Owen uploaded adverse reviews of the Business and Ms Briers, and that they did so using various pseudonyms (November Posts). They allege that the reviews were defamatory of them. They also allege that a further defamatory review was uploaded on 30 January 2021 (January Post). The reviews are alleged to have been published on Google Reviews. The claim made is that there was publication when the reviews were downloaded.

3    The conduct is also alleged to have been misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law.

4    By amended defence dated 24 May 2023, the respondents now plead that the defamation claims are statute barred by reason of s 15 of the Limitation Act 2005 (WA) which provides that an action relating to defamation cannot be commenced if one year has elapsed since the publication. In consequence, KMPG and Ms Briers apply to extend the limitation period.

The applicants claim that there have been successive publications

5    The application was argued on the basis that it is the Defamation Act 2005 (WA) that applies to the alleged publications. That appears to be correct because the harm alleged to have been occasioned by the publication as a whole has its closest connection to Western Australia: see s 11(2).

6    Defamation laws in Australia are relatively uniform. However, Western Australia has not adopted the Model Defamation Amendment Provisions 2020 by which a single publication rule applies for determining when the limitation period commences to run for successive publications of the same matter. The single publication rule has also not been adopted in the Northern Territory.

7    In the present case, each of the November Posts are alleged to have remained online until February 2022. The January Post is alleged to remain online. The application complains that there have been successive publications on the basis that the matters complained of have been downloaded and comprehended by individuals in Australia during the period that the posts remained online.

8    Every publication founds a separate cause of action: Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 at [26]-[27] (Gleeson CJ, McHugh, Gummow and Hayne JJ). Therefore, each has its own limitation period. This gives rise to some complexities as to the precise form of the present application which approached the matter on the basis that a single extension was sought that would reach back to the earliest publication of each of the November Posts and the January Post and thereby cover all of the successive publications to the extent that the proceedings were out of time as to those publications. However, as will emerge, it is possible that an extension may be given as to some but not all of the successive publications.

Outcome

9    For the following reasons, the application to extend the limitation period should be allowed save for publications that occurred between 2 June and 2 August 2021.

Relevant law

10    An application may be brought for leave to commence an action for defamation even though one year has elapsed since publication: s 40(1) of the Limitation Act. Further, 'a court, 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 one year from the publication, must extend the time in which the action can be commenced': s 40(2).

11    As to the hurdle imposed by s 40(2), in Rayney v State of Western Australia (No 3) [2010] WASC 83 at [41], Martin CJ said:

That is a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances such as, for example, the plaintiff being unaware of the publication within the period of one year from the publication having occurred. The important points to note are that by virtue of s 79 of the Limitation Act the onus of proving that it was not reasonable to have commenced within the period of one year rests with the plaintiff, and as the Court of Appeal of Queensland observed in the case of Noonan v MacLennan [2010] QCA 50, the burden that must be discharged is to establish that it was not reasonable to have commenced within one year. It is not a burden which is discharged by showing that it was not unreasonable to have not commenced within one year.

12    As to whether there was a general discretionary power to extend, Martin CJ concluded at [50] that there is no such power to extend time 'but rather if the plaintiff satisfies the onerous conditions specified by s 40(2), there is a duty to extend time'.

13    It is common ground that, where the duty to extend time arises, the Court has a discretion as to the length of any such extension. The matters that bear upon the nature of that extension were considered in Meyer v Solomon [2021] WASCA 168 which concerned an appeal against a refusal of an extension application. The primary judge had held that it was not reasonable for defamation proceedings to have been commenced within one year of publication but as a matter of discretion decided not to extend the time for a period that would have been sufficient to bring the proceedings within time. On appeal it was contended that there was significance in the fact that s 40(2) was expressed to be subject to s 40(3) which provides: 'An application relating to the publication of defamatory matter cannot be commenced if 3 years have elapsed since the publication'.

14    The submission advanced before the Court of Appeal was to the effect that if the Court was satisfied that it was not reasonable in the circumstances for the action to have been commenced within a year then there was no discretion to be exercised as to the length of any extension. Rather, time was extended by operation of s 40(3) to three years from publication. The submission to that effect was not accepted. The Court found that there was a discretion to be exercised. In considering an alternative contention that the exercise of the discretion by the primary judge had miscarried, Buss P and Mitchell JA gave separate reasons as to the nature of the discretion that did arise if the Court was satisfied as provided in s 40(2) and, in consequence, there was a duty to extend time.

15    Buss P concluded that, in addition to matters specified in s 44 (which must be taken into account in respect of applications for extensions of the limitation period that apply to a number of different types of causes of action), the factors which the court 'is entitled or bound to consider (in addition to the mandatory considerations specified in s 44) are to be ascertained by implication from subject matter, scope and apparent purpose of s 40 in the context of the Act as a whole': at [135].

16    His Honour then said (at [136]):

In my opinion, relevant considerations that a court may take into account in deciding upon the length of any extension under s 40(2) include:

(a)    the nature and extent of any delay by the plaintiff, after the one year period since the publication elapsed, in making the extension application;

(b)    the reasons for any such delay; and

(c)    when it would be or would have been reasonable in the circumstances for the plaintiff to commence or to have commenced the defamation action.

17    His Honour declined to state exhaustively all relevant considerations that must be taken into account: at [137].

18    Mitchell JA observed that '[t]he court only has power to extend time once it is 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 one year from the publication'. His Honour referred to that state of satisfaction as 'the Precondition': at [182]. As to the discretion to extend time if the Precondition is met, his Honour reasoned as follows (at [192]-[195]):

(1)    'The discretion must be exercised having regard to the statutory purpose that defamation actions must be commenced promptly';

(2)    'It is also implicit from the specification of the Precondition that the discretion will be exercised having regard to when it was reasonable in the circumstances for the action to have been commenced';

(3)    '[I]t would not ordinarily be appropriate for the court to grant an extension for a period shorter than that which the court considered was reasonably required for the action to be commenced';

(4)    'The discretion as to the length of the extension must also be exercised having regard to the mandatory relevant considerations identified in s 44 of the Act'; and

(5)    The discretion must be exercised reasonably and judicially.

19    The third member of the Court was Murphy JA. His Honour agreed with Buss P as to the result but did not express a view as to the differences in reasoning as between Buss P and Mitchell JA as to the nature of the discretion: at [154].

20    Respectfully, there is much to commend the view of Mitchell JA. The discretion is to be implied as a consequence of the terms of s 40(2). Therefore, the discretion should be informed by the immediate context, particularly the circumstances that give rise to the duty to extend. The rationale for confining the application of the one year limitation period for defamation actions to all instances other than those where the court is affirmatively satisfied that it was not reasonable for the applicant in a particular case to commence a particular defamation claim within the one year period does not cease to have significance in cases where the court is so affirmatively satisfied. There is much to be said for the view that, in such cases, the discretion is to be guided by an inquiry as to how much longer it would be objectively not reasonable to expect the applicant to commence the defamation claim in the circumstances of the particular case.

21    However, the approach of Buss P finds support in the reasoning of McColl JA (Simpson and Payne JJA agreeing) in Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304; (2017) 96 NSWLR 478 at [79]-[82] in respect of a similarly worded provision (being s 56A of the Limitation Act 1969 (NSW)). Also, as her Honour noted, it finds support in the overall approach to the exercise of powers to extend limitation periods as articulated by McHugh J (Dawson J agreeing) in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, where his Honour said at 553-554:

A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case… whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.

And later at 554:

The object of the discretion, to use the words of Dixon CJ in a similar context, 'is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.' In determining what the justice of the case requires, the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.

(footnote omitted)

22    The same approach was adopted in King v Comiskey Management Services Pty Ltd [2020] QCA 229 at [14] (Fraser JA, McMurdo JA and Jackson J agreeing).

23    For those reasons, it is appropriate to apply the broader approach as articulated by Buss P to the nature of the discretion to be exercised in carrying out the duty to extend time.

24    As to whether the requirements of s 40(2) have been met, although there are differences between the jurisdictions, all require the applicant for an extension of the limitation period to satisfy the court that it was not reasonable in all the circumstances for the party seeking relief to have commenced proceedings within one year of publication. In Joukhador v Network Ten Pty Ltd [2021] FCAFC 37; (2021) 283 FCR 1, a Full Court (Rares, Wigney and Bromwich JJ) considered at [49]-[60] what was required in undertaking an evaluation of the character. The following conclusions (which adopt the language of the Full Court) apply equally in the case of s 40(2):

(1)    The burden of proof is on the claimant (see also, s 79(3) of the Limitation Act).

(2)    The burden may be discharged by an affidavit sworn on information and belief.

(3)    The Court examines the circumstances as they appear objectively to it, not as the claimant believed them to be.

(4)    The circumstances include the objective situation of the claimant.

(5)    The Court is required to weigh together all of the relevant circumstances that cohered to bring about the objective fact that the claimant did not sue with one year of the publication.

(6)    The objective circumstances must be evaluated as a whole, not piecemeal.

(7)    While the onus of proof will only be discharged in relatively unusual circumstances, there is no exhaustive list of the kinds of cases that will fall within the statutory criterion that the section prescribed.

25    As to what is meant by objective circumstances, I respectfully agree with what was said by Lee J in Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385 at [13]-[16] about not overcomplicating matters. The statutory language must be given effect. As has been noted, it requires the court to reach an overall affirmative state of satisfaction on all the evidence that 'it was not reasonable in the circumstances for the [applicant] to have commenced an action in relation to the matter complained of within a year'.

26    The objective circumstances are those that pertain from the perspective of the applicant in the individual case. Those circumstances concern the individual characteristics and situation of the applicant as well as the nature of what is required in order to be able to commence proceedings in the particular case. Principally, the Court is concerned with the objective reasonableness of the actual reasons why the proceedings were not commenced within a year. It may also be concerned with whether, viewed objectively, there was something about the circumstances that meant that it was not reasonable for the action to have been commenced within a year. The inquiry does not concern what the applicant believed to be the position or the reasonableness of that belief. It concerns whether the Court is actually persuaded that it was not objectively reasonable for an applicant in the same position as the applicant to have commenced proceedings within one year.

27    The evaluation to be undertaken does not concern whether each day or week of the one year period can be explained. Nor does it concern whether there were parts of the year when there was no objectively valid reason for delay. Rather, it requires an overall assessment as to whether it was not reasonable for the applicant to have commenced within a year.

28    Finally, where, as here, there are issues as to the extent to which the delay in commencing proceedings may be attributed to the conduct of lawyers retained by a prospective applicant then matters must be viewed through the perspective of the applicant. There is no express statutory attribution of conduct by lawyers to the party seeking the extension. It may be that dealings with lawyers form part of the circumstances to be considered. In a particular case, those circumstances may include the fact that the applicant delayed in retaining lawyers or failed to properly instruct them or simply left matters in the hands of lawyers. However, it is not the reasonableness or otherwise of the lawyer's conduct, in respects not evident to the applicant, about which the Court is to be satisfied. Rather, it is the conduct of the applicant in dealing with lawyers that is to be evaluated. A failure by an applicant to follow up on delay by lawyers may form part of that conduct.

Issues for determination

29    It follows that for each publication made prior to 3 August 2021 (being the publications for which an extension is required), two questions arise:

(1)    Is the Court satisfied that it was not reasonable for the applicants to have commenced the present proceedings within one year of publication?

(2)    Taking account of all facts and circumstances that are relevant and having regard to the scope and purpose of the Limitation Act, should the discretion to extend time be exercised in the present case?

30    The claim of continuous publication means that these two issues arise for each day between initial publication and 3 August 2021. However, given that the applicants were aware of the publications (but not the persons responsible for the publication) from 5 November 2020 in the case of the November Posts and 30 January 2021 in the case of the January Post, it is necessary to consider the chronology from that date in respect of the continuous publications because an evaluation of the reasonableness of requiring the applicants to commence the proceedings at an earlier date than 3 August 2021 must take into account whether it was not reasonable for the applicants to have commenced proceedings at any earlier time.

31    For those reasons, I will first consider the objective circumstances for the whole of the period from initial publication until commencement of proceedings (Period) and then evaluate whether it was not reasonable for the applicants to have commenced the proceedings within some or all of that Period. I will then consider the resolution of the two issues.

32    I observe that s 44 of the Limitation Act requires the Court to have regard to certain matters when deciding whether to extend the time for commencement of an application. However, the respondents do not assert that the factors listed in s 44 need to be taken into account.

The objective circumstances in the present case

33    The application falls to be considered in circumstances where Ms and Mr Owen deny responsibility for publication of the November Posts and the January Post. However, it was not suggested that there was no arguable basis for the claims being advanced.

34    The following aspects of the chronology, as established for interlocutory purposes on the evidence, assume significance in the present case:

(1)    At all material times the directors of KMPG were Ms Briers and her de facto partner Mr Campbell.

(2)    At the relevant time, Ms Briers described herself as the owner and principal of the Business.

(3)    In April to August 2019, Ms Briers underwent significant surgery and treatment after a cancer diagnosis.

(4)    In October 2020, Ms Briers and her then lawyers communicated with Google about removing posts from the Google Reviews page for the Business claiming that 'given the substance of the posts, Ms Briers and/or Kalgoorlie Metro may have a cause of action in defamation or misleading and deceptive conduct against the publisher(s)'.

(5)    On 7 December 2020, lawyers acting for KMPG, Ms Briers and Mr Campbell sent an email to Google concerning the November Posts requesting information to enable them to ascertain the identity of the authors.

(6)    On 8 December 2020, Mrs Briers sent a long email to Google raising matters including the true identity of those responsible for the reviews. Mr Campbell sent a 'follow up' on behalf of KMPG indicating that he was a director of KMPG and that the November Posts were a serious matter that required urgent attention.

(7)    Mr Campbell sent a further email to Google on 11 December 2020.

(8)    On 17 December 2020 the lawyers then acting for KMPG, Ms Briers and Mr Campbell sent a formal demand indicating that if the information that had been requested was not provided they anticipated receiving instructions to commence proceedings against Google seeking order compelling discovery.

(9)    On 23 December 2020, a further communication was sent by those lawyers to Google to similar effect.

(10)    In late January 2021 Ms Briers underwent surgery and in February through to mid-April 2021 Ms Briers underwent a course of radiation treatment. During that time, she was very unwell and extremely tired by reason of the effects of her treatment.

(11)    On 17 May 2021, the lawyers then acting for KMPG applied for pre-action discovery by Google which was ordered on 27 July 2021.

(12)    On 19 August 2021 Ms Briers underwent further surgery.

(13)    On 4 September 2021 Google provided Internet Protocol information in response to the pre-action discovery order.

(14)    The evidence as to what happened between 4 September 2021 and 3 December 2021 (given on information and belief by her current lawyer) is as follows:

[Ms Briers] was sick still and in recovery from the fourth surgery and did not know what to do and her lawyers were stuck as no names and mobile numbers or addresses were provided by Google LLC - only IP accounts linked to the Google reviews. [Ms Briers] lawyers I am instructed could not assist her anymore.

(15)    The evidence of Mr Campbell as to what was occurring during that period is as follows (referring to Ms Briers using her given name):

It was difficult to get Keren to act on anything and make decisions during this period, as Keren was extremely tired and lethargic … Keren remained very emotional about this whole legal matter and it took its toll on our personal relationship and our extended family (four children from previous marriages).

From around August 2021 through to November 2021, Keren eventually instructed me to direct our … lawyers to write to … Google lawyers, with no luck.

(16)    Email communications with the lawyers then acting were in evidence. They showed that both Ms Briers and Mr Campbell were involved in trying to advance matters with their then current lawyers. The efforts were focussed upon getting more information from Google.

(17)    On 3 December 2021, Ms Briers made an inquiry with new lawyers as to whether they could assist.

(18)    The new lawyers received a retainer on 20 December 2021 but indicated that they could not commence substantial work until early 2022.

(19)    On 20 January 2022, Ms Briers again underwent surgery.

(20)    An application for preliminary discovery by Telstra was filed by the new lawyers on 22 February 2022.

(21)    On 28 June 2022, Telstra was ordered to give preliminary discovery based on information provided by Google in response to the order for pre-action discovery.

(22)    On 5 July 2022, Telstra provided an affidavit of documents.

(23)    On 7 July 2022, the new lawyers received a retainer to issue proceedings.

(24)    The present proceedings were commenced on 2 August 2022.

Was it not reasonable for proceedings to be commenced at an earlier point in time?

35    Having regard to the outcome of the discovery application brought against Google, it may be concluded for interlocutory purposes that the publications were made using pseudonyms. In any event, they were made using a means of publication that made it difficult to identify the authors and the publications themselves did not include any contact details. These are significant aspects of the circumstances in the present case.

36    The submissions for Ms and Mr Owen focussed upon six parts of the Period, namely:

(1)    early February to 17 May 2021, being the period after lawyers had made demands of Google and threatened pre-action discovery until the commencement of pre-action discovery;

(2)    27 July to 4 September 2021, being the period from the making of orders against Google until the provision of Internet Protocol information;

(3)    4 September to 3 December 2021, being a period when no action was said to have been taken;

(4)    December 2021 to 22 February 2022, being the period from retainer of new layers until commencement of the preliminary discovery application against Telstra;

(5)    22 February to 28 June 2022, being the period from commencement of the application for preliminary discovery against Telstra until the making of orders (which conduct occurred in circumstances where by email dated 10 January 2022 Telstra had said that it could only provide the requested information in response to a court order and had identified what should be listed in the court order); and

(6)    5 July to 2 August 2022, being the period from Telstra providing an affidavit of documents until when proceedings were commenced.

The submissions as to each of periods are addressed below.

37    For the following reasons, viewed in the context of the overall circumstances, and having regard to the submissions advanced as to each of the six periods, I am satisfied that it was not reasonable for KMPG and Ms Briers to have commenced proceedings within a year of any publication that occurred prior to 2 June 2021.

38    I begin by restating that the task requires an overall evaluative assessment of whether commencement within one year was not reasonable. The following observations of Lee J in Lehrmann at [22]-[23] are pertinent:

A tight limitation period applies, but it is an entire year. This is a period during which a claimant is allowed, and would be expected, to: reflect and consider maturely whether the proposed litigation is able to be resolved without litigation; consider whether the cost of litigation would be proportionate to the extent of perceived damage; conduct necessary enquiries as to the identity of the respondent or respondents; and decide whether there is sufficient material to decide to litigate. Finally, if litigation is to be commenced, there is a need to ensure sufficient material is available to the person settling the claim to provide a proper basis for any allegations proposed to be made. But more generally, the period of a year also allows a potential litigant time to see how things go. Was the damage as bad as first imagined? Will I let sleeping dogs lie or risk stirring up the controversy by suing? A claimant is entitled to reflect upon what might be a life-changing decision bringing stress and potential adverse financial consequences.

The statutory task is holistic, involving an evaluation of all relevant facts or 'the circumstances' that existed within one year of the date of the publication. …

(original emphasis)

39    Although for convenience of analysis the following reasons deal with each part of the Period the subject of submissions in opposition to the grant of the extension, the task remains holistic and concerns a period of a year from publication.

40    As to (1), this was a time when Ms Briers was very unwell and undertaking regular cancer treatment. Although Mr Campbell was a director of KMPG and was a person who could instruct lawyers for KMPG, he was also the de-facto partner of Ms Briers. It was also the case that the publications focussed upon Ms Briers who, on the evidence, was the principal of the Business. Therefore, it was reasonable to expect that she would be involved in any decision as to whether proceedings were commenced by KMPG alleging defamation as well as whether proceedings were commenced on her own behalf. Given the evidence of the state of health of Ms Briers, it was objectively reasonable for them both to defer any focus upon the publications in the first part of the statutory period. No issue arises concerning Mr Campbell as he is not an applicant in the proceedings and, consequently, does not seek any extension of the limitation period.

41    As to (2), having regard to issues that can arise in compliance with orders of that kind, it could not be said that there was any real delay that can be attributed to the applicants during the period that it took Google to produce the Internet Protocol information.

42    As to (3), it was not the case that no action was taken. The lawyers then acting for the applicants were pressing Google to provide more information. Both Ms Briers and Mr Campbell were involved in communications with the lawyers seeking to obtain from Google identifying information that may provide a sufficient basis to commence proceedings. The information was not forthcoming.

43    It was submitted, in effect, that the applicants should be burdened with the fact that their lawyers did not identify the possibility of undertaking a search to identify the provider of the Internet Protocol address and thereby pursue a further application of the kind that was subsequently undertaken by the applicants' new (and now current) lawyers. Counsel for Ms and Mr Owen was invited to develop a basis for any submission that it was exceedingly obvious that such a course might be pursued. The possibility that such applications might be pursued has been a developing aspect of the procedure in cases of the present kind. I do not accept that the forensic course that was ultimately take was obvious. Further, for reasons that have been given, I am not persuaded that in circumstances like the present where the applicants were pressing their lawyers to take whatever steps were available (including, on the evidence, seeking to raise the matter with the attorney-general) that the statutory task necessarily involves attribution of the delay occasioned by the failure by their lawyers to pursue the same path that was undertaken at a later time by the new lawyers to the applicants.

44    As to (4), the lawyers accepted instructions on the basis that they would not be able to attend to them until after the holiday period and Ms Briers again underwent surgery in January 2022. In those circumstances, the applicants had taken steps to secure legal representation and there is an explanation for why there may have been a short delay in commencing the application for preliminary discovery against Telstra. In any event, the applicants were themselves pressing to have steps taken to advance the matter (allowing for the personal circumstances faced by Ms Briers).

45    As to (5), the period of about four months in obtaining a hearing and the making of orders may be criticised. This is especially so in circumstances where the demand to Telstra had been the subject of an immediate response to the effect that it would provide the information in response to a court order and identified what needed to be included in the court order. I accept the force of the submission that there is no evidence to explain the delay in securing an earlier hearing in circumstances where, by that time, the one year period had expired in respect of many publications and was imminent as to other successive publications. There is evidence that Ms Briers underwent further surgery on 20 January 2022 to remove further tumours due to a reoccurrence of her cancer which explains the delay in confirming instructions to make the application. However, there is no evidence of the applicants pressing for the matter to be progressed once the application was filed on 22 February 2022. In my view, if the relevant circumstances had been put before the Court as to the urgency of the application for preliminary discovery then it may be expected that an earlier date for the hearing and determination of the application would have been obtained. The only evidence as to what occurred is a statement by the applicants' current lawyer that: 'After time passed to get a hearing and procedural matters we eventually obtained a[n] order on 28 June 2022'.

46    As to (6), the period of less than a month to commence proceedings is not undue. It is perhaps more significant as the end of the one year period approaches for some publications and has passed for others. However, I do not count it as unreasonable.

The resolution of the issues

47    As to issue (1), for reasons that have been given, I am satisfied that for the whole of the Period save only for about two months towards the end of the Period, it was not reasonable in the circumstances for KMPG and Ms Briers to have commenced an action. In the context of a one year limitation period, even allowing for time to secure a hearing on an urgent basis, on the evidence, at least two months of the delay has not been justified or explained. In the circumstances, I conclude that it was not reasonable to have commenced an action at any time prior to 2 June 2022. It follows that for all causes of action that accrued on or before 1 June 2021 there is a duty to extend time (and a discretion as to the length of the extension). The duty arises because for all those claims an extension is needed and I am satisfied that it was not reasonable to commence the action within one year of publication. Accordingly, for all those publications, it is necessary to consider issue (2). However, for publications on and between 2 June 2021 and 2 August 2021, the proceedings are out of time and there is no discretion to extend time.

48    As to issue (2), for the alleged continuous publications of the November Posts between 5 November 2020 and 2 August 2021 there is a need for an extension of time. The greatest extension required is about nine months (for the initial publication alleged to have occurred on 5 November 2020). For continuous publication of the January Post between 30 January 2021 and 2 August 2021 there is a need for an extension. The greatest extension required is about six months (for the initial publication alleged to have occurred on 30 January 2021).

49    In the present case, a significant matter relevant to the extension of time is my conclusion that it was not reasonable in the circumstances for proceedings as to those claims to have been commenced on or before 1 June 2021. Viewed in the overall context, the extent of the additional delay beyond when it was not reasonable is relatively short. It is not suggested that there is any prejudice to Ms and Mr Owen. As has been noted, it is accepted that there are no matters to be raised under s 44 of the Limitation Act. The applicants have not sat on their hands. They have engaged lawyers from the outset. For the most part, they have actively pressed their lawyers to take action. The reason for two months of the delay at the end of the Period is not apparent. The delay of four months in obtaining the orders for preliminary discovery (despite the need for urgency) is simply not explained. There is nothing to indicate that it was brought or pressed as an urgent application. Any failure to press the matter on that basis must lie at the feet of the lawyers, not the applicants. KMPG and Ms Briers could only be criticised for not inquiring about matters with their lawyers during that final period. There is simply no evidence as to what went on. However, looking at the claims in respect of the earliest publications and having regard to the whole of the chronology, the evidence shows that the applicants have persisted in pursuing the claims throughout the Period. For almost the entirety of the Period there is an explanation for the delay, indeed, as I have found, an explanation as to why it was not reasonable to have commenced the proceedings.

50    In all the circumstances, taking account of the nature and extent of the delay, the reasons for the delay and my overall assessment that the conduct of the applicants, viewed as a whole, has been reasonable, I would extend time to enable the proceedings to be maintained in respect of all alleged publications that occurred on or before 1 June 2021.

51    No issue arises from the fact that the application was brought after these proceedings were commenced and the amended defence had been filed: see s 43(5) of the Limitation Act.

52    It follows that there should be orders substantially in the terms sought but excluding publications on or between 2 June 2021 and 2 August 2021.

Associate:

Dated:    22 August 2023