Federal Court of Australia

Tucker v McKee [2023] FCA 1335

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an enlargement of the limitation period in respect of the publication of the email on 9 June 2017 alleged in [3(a)] of the amended statement of claim is dismissed.

2.    By 4.00 pm on 10 November 2023, the respondents file and serve any application for summary judgment, together with written submissions to be limited to three pages, to be prepared in 12 point font with 1.5 line spacing.

3.    By 4.00 pm on 24 November 2023, the respondents file and serve any affidavit in response, together with written submissions to be limited to three pages, to be prepared in 12 point font with 1.5 line spacing.

4.    Any application filed pursuant to paragraph 2 above will be listed for hearing on 1 December 2023 at a time to be advised.

5.    The costs of the application for an extension of the limitation period and of today be reserved.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

1    This proceeding was commenced by the applicant on 24 April 2020. By his amended statement of claim the applicant alleges that on 9 June 2017 the respondents published an email to two persons that conveyed meanings that were defamatory of him.

2    The respondents plead that the applicant’s cause of action is statute-barred by operation of s 5(1AAA) of the Limitation of Actions Act 1958 (Vic), which provides for a limitation period of one year for an action for defamation. By the prayer for relief in the originating application the applicant seeks an extension of the limitation period under the “Uniform Defamation Laws”. It was accepted that the applicable provision is s 23B of the Limitation of Actions Act which empowers a court to make an order extending the limitation period to a period of up to three years from the date of publication.

Background

3    This proceeding has some history to it, and it is part of a wider course of disputation between the applicant, and the State of Victoria and the Commissioner for State Revenue (collectively, the State). Some of that wider disputation is relevant to the current application, as it forms part of the circumstances that are to be considered for the purposes of the question whether the limitation period should be extended, and if so by what period. Much of the background to this proceeding is referred to in the Full Court’s reasons in Tucker v McKee [2022] FCAFC 98; 292 FCR 666 at [1] to [25].

4    In summary, the applicant was a lawyer employed by the State Revenue Office of Victoria. He is self-represented before this Court, but it is relevant that he is legally trained, as the quality of the drafting of his affidavit evidence and written and oral submissions would indicate.

5    While employed by the State Revenue Office the applicant was the subject of an investigation and a report into his conduct. He was subsequently dismissed. The applicant commenced proceedings in the Supreme Court of Victoria, the Fair Work Commission, and in this Court in relation to the investigation of his conduct and his dismissal from employment. Several aspects of the matter determined by the Supreme Court of Victoria are summarised in Tucker v State of Victoria [2021] VSCA 120 at [5] to [16].

6    The email that is the subject of this defamation proceeding was published by the first respondent to two other persons within the State Revenue Office. The email contains allegations about the applicant’s conduct and would appear to have been a precursor to the investigations that subsequently took place. The evidence is that the applicant first became aware of the email and its contents when he obtained a copy on 25 September 2019 when it was produced by the State in the Supreme Court proceedings during the course of a hearing. At that hearing, the applicant was self-represented. The email was subsequently tendered on 25 September 2019 in the Supreme Court proceeding by the State. When the email was produced on 25 September 2019, senior counsel then acting for the State submitted to the Associate Judge who was hearing the matter that the email attracted the obligations referred to in Harman v Secretary of State for the Home Department [1983] 1 AC 280 (see, more appropriately, Hearne v Street [2008] HCA 36; 235 CLR 125 at [96]). The Associate Judge accepted this claim, and informed the applicant in clear terms that the Harman principles applied to the document.

7    Subsequently, on 21 October 2019 the applicant wrote to the solicitors for the State claiming, amongst other things, that the email contained false imputations entitling him to damages. He sought consent to use of the email in proceedings that he had commenced in the Fair Work Commission, in the Victorian Civil and Administrative Tribunal (VCAT), and for the purposes of “legal advice and any other review, grievance, complaint or legal proceedings in connection with the email”. By letter dated 23 October 2019 the solicitors for the State did not agree to the applicant’s request, conceding only that “subject to the approval of the Court” the State would not object to the use of the email in the Fair Work and VCAT proceedings, and maintaining that the applicant was bound by a “Harman undertaking” in relation to other proposed uses of the email.

8    The applicant then applied to the Supreme Court of Victoria to be released from the undertakings that were said to attach to the email. At the hearing of the application before a different Associate Judge on 8 November 2019, the applicant referred to the prospect of a defamation claim as a result of the publication of the email. The State opposed the application, claiming that the email had been produced and tendered on terms that attracted implied limitations on its subsequent use. The basis for this submission is difficult to follow. In any event, when pressed by the Associate Judge, counsel then appearing for the State accepted that the email lost its confidentiality when it was tendered. In the result, the Court held that the State had not produced the email pursuant to a compulsory process of the Court, and that if there was any implied undertaking, it expired when the email was received into evidence. Accordingly. there was no occasion for the applicant to be released from any undertaking because no undertaking applied.

Section 23B of the Limitation of Actions Act 1958 (Vic)

9    There was no dispute that the laws of Victoria are picked up in relation to the applicant’s claimed cause of action over the email: Judiciary Act 1903 (Cth), s 79; Defamation Act 2005 (Vic), s 11. Because the publication occurred before the commencement on 1 July 2021 of the amendments to s 23B of the Limitation of Actions Act that were effected by the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic), s 42, s 23B in its form at the time of publication applies: see the transitional provision in the current reprint of the Limitation of Actions Act, s 23D(4). The applicable terms of s 23B provide as follows –

23B    Defamation

(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 a 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 a limitation period, and an application for such an order, may be made under this section even though the limitation period has already expired.

10    The principles governing the application of these provisions are well-established by authority concerning s 23B and its corresponding provisions in other jurisdictions. There are two steps. The first step is that in order to engage the court’s discretion to extend the limitation period an applicant must establish that it was not reasonable to have commenced a proceeding within one year of publication. A finding that it was not reasonable for the applicant to have commenced a proceeding within one year of the publication does not involve any discretion. If an applicant establishes that it was not reasonable to commence the proceeding within one year, then a court must extend the limitation period for a period of up to three years from publication: Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537 at [3] (Keane JA). The second step is that there is a discretion as to the length of time by which the limitation period may be extended: Casley v Australian Broadcasting Corporation [2013] VSCA 182; 39 VR 526 at [73] (Hansen JA, Robson AJA agreeing). The discretion is broad, but not at large. It may be informed by the scope and purposes of the relevant legislation, which includes the Defamation Act 2005 (Vic), which evinces a legislative policy that encourages the prompt resolution of defamation disputes: Lehrmann v Network Ten Pty Ltd (Limitation Extension) [2023] FCA 385 (Lehrmann) at [31] (Lee J); Casley v Australian Broadcasting Corporation [2013] VSC 251 at [38] (Beach J), affirmed on appeal. However, the discretion is not limited to extending the limitation period only by a further period beyond which it would be unreasonable to commence the proceeding: Johnston v Holland (No 2) [2017] VSC 597 at [13], [53]-[57] (Dixon J); Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304; 96 NSWLR 478 (Barrett) at [4], [75], [82], [92] (McColl JA, Simpson JA agreeing).

The issue on this application

11    The issue on this application is a narrow one. The respondents do not dispute that that it was not reasonable in the circumstances for the applicant to have commenced a proceeding in relation to the email within one year of publication. This Court is therefore required by the terms of s 23B(2) to extend the limitation period. The maximum period to which the limitation period may be extended is to 7 June 2020, being three years from the date of publication. The practical question is whether, in the exercise of its discretion, the Court should extend the limitation period until the date this proceeding was commenced on 24 April 2020.

12    The concession by the respondents that it was not reasonable for the applicant to have commenced a proceeding in relation to the email within one year of publication was properly made. The concession reflects the condition necessary to engage s 23B. For the purposes of considering the length of time by which the limitation period should be extended I would go further and hold that it was not reasonable for the applicant to have commenced a proceeding at any time before the Supreme Court of Victoria ruled on 8 November 2019 that upon the email being received into evidence the applicant was not bound by any obligations which limited the use to which the email could be put. The respondents did not contest this latter proposition either.

13    The affidavit evidence relied on by the applicant plots his activities between November 2019 and the commencement of this proceeding by annexing a selection of contemporaneous documents. In overall terms, those activities constituted various steps taken by the applicant to prosecute his other proceedings in the Supreme Court of Victoria, including an appeal to the Court of Appeal, and in the Fair Work Commission. During this period, the applicant also moved with his family to live in France, where he now resides. The applicant sought to adduce evidence of extracts of without prejudice communications passing between him and the lawyers acting for the State. I ruled this evidence to be inadmissible under s 131(1) of the Evidence Act 1995 (Cth). While there is authority that without prejudice communications are admissible at common law to explain delay in commencing a proceeding, there is no such exception in terms under s 131 of the Evidence Act: see, Muller v Linsley & Mortimer [1996] PNLR 74 at 79-80 (Hoffmann LJ), cited in Unilever Plc v The Procter & Gamble Co [2000] 1 WLR 2436 at 2442-2443.

14    Upon examining what evidence remains, there are references in the remnants of the correspondence to a “global settlement”. The evidence does not support any finding that the applicant sought to negotiate with the respondents a compromise of any defamation claim relating to the email until the applicant sent a concerns notice to the first respondent on 17 April 2020, and there is no evidence of any demand on the first respondent before this time. No concerns notice was sent to the second respondent, the State of Victoria. This would appear to be of little moment, as the liability of the State of Victoria is vicarious: Crown Proceedings Act 1958 (Vic), s 23(1)(b). The solicitors for the first respondent, who also acted for the State in the Supreme Court proceedings, responded to the concerns notice on 24 April 2020. They stated that the applicant’s claim had no basis, and amongst other things claimed that the limitation period expired on 9 June 2018. They also stated that the State, the State Revenue Office and the first respondent would not respond to any further correspondence from the applicant on the issue. Later on 24 April 2020, the applicant commenced this proceeding.

15    In summary, the evidence is that by his letter to the solicitors for the State dated 21 October 2021 the applicant referred to a possible claim in defamation arising from the publication of the email. That possibility was referred to again by the applicant in submissions that he made to the Associate Judge in the Supreme Court of Victoria at the hearing on 8 November 2019. However, there is no evidence of any overt acts of the applicant in furtherance of the claim until he sent the concerns notice to the first respondent on 17 April 2020.

16    The respondents relied on authority that pointed to the legislative policy that sets a short limitation period for defamation claims, and which demands that parties and their advisers act timeously in respect of the narrow limitation window that is allowed: Wookey v Quigley (No 2) [2010] WASC 209 at [82] (Kenneth Martin J). While the observations in Wookey at [82] were made in the context of assessing whether it was “not reasonable in the circumstances” for a claimant to have commenced a proceeding within one year of publication, there are other statements made in the context of the discretionary decision as to the period of the extension to which I referred earlier.

17    Once it is accepted that the limitation period here must be extended, other considerations come into play, because the Court has a general discretion as to the length of the extension. To start with, viewing the whole of the period from 8 November 2019 to 24 April 2020, I do not consider that the applicant is required to account for every month, week, or day since 8 November 2019 which was not spent prosecuting his defamation claim: see in an allied context, Noonan at [49] (Chesterman JA) and Lehrmann at [25] (Lee J). Such an examination would distort the relevant discretionary question. It is appropriate to consider whether it would have been reasonable for the applicant to have some time to consider his position before incurring the cost and expense, and taking the risk, of commencing a proceeding. This is one of the purposes of providing for a limitation period, as Lee J pointed out in Lehrmann at [22]. By parity of reasoning, in a case where a claimant was unable to commence a proceeding within one year because he or she was unaware of the publication, any extension of the limitation period beyond the date of discovery of the publication might serve similar purposes. These purposes might include, as Lee J pointed out in Lehrmann at [169], the taking of steps by an applicant in this Court who is obliged under s 6 of the Civil Dispute Resolution Act 2011 (Cth) to identify in a statement the genuine steps he or she had taken to resolve the issues prior to the commencement of proceedings. In this proceeding, the applicant in his genuine steps statement relied on his concerns notice of 17 April 2020.

18    The respondents did not claim that they would suffer any specific prejudice if the limitation period was extended, other than the loss of a limitations defence. It was not submitted by the respondents that an extension of time would be futile on the ground that the applicant’s claim was untenable, and otherwise the respective merits of the applicant’s claim and the respondents’ defences were not pressed as being relevant to the discretionary element of s 23B. The main submission advanced on behalf of the respondents was that the applicant had not accounted for the period of delay between 8 November 2019 and 17 April 2020 when he sent the concerns notice to the first respondent. The respondents relied on the absence of any explanation by the applicant to support their submission that it would not be just to extend the limitation period for a period of about five-and-a-half months after the applicant knew that he was not inhibited from bringing a claim for defamation based on the email. This was against the background that the evidence showed that the applicant had contemplated a defamation claim from at least 21 October 2019 when he raised it in correspondence. It was submitted that it would not be right to take away a substantive defence available to an individual respondent in the absence of any explanation of the relevant delay. To support these submissions, the respondents relied on the reasoning at first instance in Barrett v TCN Channel Nine Pty Ltd [2016] NSWSC 1663 at [61], which was upheld on appeal. There, the absence of explanation of a five month delay was determinative. On appeal in Barrett, McColl JA at [87], in referring to the object of the discretion, applied the language of McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541 at 554, that –

“[t]he object of the discretion [in s 56A(2)] … ‘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’ ... [including] look[ing] 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”

19    This passage was cited with approval by Fraser JA (McMurdo JA and Jackson J agreeing) in King v Comiskey Management Services Pty Ltd [2020] QCA 229 at [14]. Fraser JA went on to state –

Factors that may be taken into account as support for an extension of sufficient length to allow the prosecution of a claim include the necessary finding that it was not reasonable for the applicant to have commenced an action within the limitation period of one year and any other circumstance indicating that the applicant may suffer an injustice if the necessary extension is not granted. Factors that may be taken into account in opposition to an extension of the necessary length include the public interest in the prompt determination of defamation actions and that, the limitation period having expired, any extension of that period will impose a new legal liability on the respondent to the application. It is for the judge considering the appropriate length of an extension of time to decide upon the weight to be given to the relevant factors in the particular circumstances of the case as revealed by the evidence.

(Citations omitted.)

20    In response, the applicant submitted that he had not adduced any evidence of the reasons for the delay from 8 November 2019 because he understood that the test under s 23B of the Limitation of Actions Act was objective. This involves a misunderstanding of the authorities. The determination of the first stage, namely whether in the circumstances it was not reasonable to commence a proceeding within one year of publication is objective. The determination is objective in the sense that, in relation to the first stage, s 23B poses a test requiring evaluation of the circumstances as they appear objectively to the court, and not the circumstances which the plaintiff believed, however unreasonably, to exist: Barrett at [70] (McColl JA), citing Noonan at [20] (Keane JA), and [65] (Chesterman JA). Attention is required to the claimant’s actual reasons because they are part of the circumstances pertinent to whether it was not reasonable to commence a proceeding within one year of the publication: Carey v Australian Broadcasting Corporation [2010] NSWSC 709; 77 NSWLR 136 at [48] (McCallum J), followed in Paule v McKay (No 2) [2022] ACTSC 190; 18 ACTLR 135 at [22] (McWilliam AsJ), which was itself followed in Landrey v Nine Network Australia Pty Ltd [2023] FCA 27 at [8] (Lee J), and in turn in Lehrmann at [11] (Lee J).

21    In a case such as this, a claimant’s explanation for delay is relevant to the discretionary question of what further period of limitation should be allowed. That is because, as I have explained, the policy of the legislation is that claimants should move quickly. On the state of the evidence, I am not able to draw any conclusions about the reasons for the applicant’s delay from 8 November 2019. I am left to speculate. In circumstances where the applicant had alluded to a defamation claim in correspondence on 21 October 2019, the situation may be no more than that the applicant left the service of the concerns notice on the first respondent and the commencement of the proceeding to a time of his choosing. Such a conclusion would be supported by the evidence of other activities involving other court process in which the applicant engaged. I do take account of the fact that a refusal of this application has consequences for the applicant. But I have to balance the applicant’s interests against those of the respondents and examine the facts and circumstances of this application. In circumstances where a favourable exercise of discretion in the applicant’s favour would deprive the respondents of a defence, I am not persuaded to exercise my discretion favourably to the applicant in the absence of cogent evidence directed to his explanation for the delay that occurred. It may be accepted that if the applicant had moved quickly after 9 November 2019 and applied for an extension of the limitation period, the Court would have been required to extend time for a period. But the applicant did not do that, and as with Barrett, the absence of sufficient evidence about the reasons for the applicant’s delay is an unsatisfactory basis on which to extend the limitation period until 24 April 2020.

Conclusion

22    The application under s 23B of the Limitation of Actions Act will be dismissed. I will hear the parties on further orders.

Associate:

Dated:    3 November 2023