Federal Court of Australia

Owen v KMPG Pty Ltd [2023] FCA 1508

ORDERS

THE COURT ORDERS THAT:

1.    The applicant have leave to appeal from the judgment of the court in KMPG Pty Ltd v Owen [2023] FCA 987.

2.    Any notice of appeal filed pursuant to the leave granted by order 1 be filed within 28 days of these orders.

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

REASONS FOR JUDGMENT

SNADEN J:

1    By an application dated 5 September 2023, the applicants (hereafter and collectively, the “Owens”) move under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the “FCA Act”) for leave to appeal from an interlocutory judgment of this court. The judgment in question concerned an application by the respondents, who are the applicants in the substantive proceeding within which it was brought. Amongst other things, that proceeding charges the Owens with having published on an internet site a series of defamatory posts about the respondents (or, perhaps more specifically, the Kalgoorlie-based real estate agency that they operate). By the interlocutory application in question, the respondents sought an order under s 40(2) of the Limitation Act 2005 (WA) (the “Limitation Act”) to extend the deadline otherwise imposed by s 15 of that enactment, to which the commencement of their substantive defamation action was subject.

2    That interlocutory application substantially succeeded: KMPG Pty Ltd v Owen [2023] FCA 987 (Colvin J; hereafter, the “Primary Judgment”). The learned primary judge granted relief under s 40(2) of the Limitation Act, extending—in ways that needn’t now be particularised—the limitation period otherwise applicable to the respondents’ substantive defamation action. The Owens now move for leave to appeal from that judgment. For the reasons that follow, that application should succeed.

Background

3    As has been noted, the substantive proceeding focuses upon some reviews that the Owens are said to have posted on an internet site in November 2020 and January 2021 (to which I shall refer, hereafter, as the “Impugned Posts”). It is unnecessary to particularise their content. It is common ground that the imputations that they conveyed were relevantly published on each occasion that they were accessed by visitors to the website on which they were posted. Each such publication is (or will be) said to constitute separate tortious conduct in respect of which the respondents press for relief. Insofar as those publications occurred on or prior to 2 August 2021—being the date one year before the substantive proceeding was commenced—the respondents require the extension that was the subject of the Primary Judgment.

4    It is a matter of some significance that each of the posts made in November 2020 is alleged to have remained accessible (and, presumably, to have been periodically accessed) until February 2022. The single post that was made in January 2021 is alleged to remain accessible still.

5    It is convenient at this juncture to note the relevant statutory provisions.

6    Section 15 of the Limitation Act provides that an action that relates to the publication of defamatory matter (including one brought pursuant to this court’s accrued jurisdiction) “…cannot be commenced if one year has elapsed since the publication”. That limitation is subject to s 40, which relevantly provides as follows:

40. Court may extend time to commence defamation actions

(1)     A plaintiff may apply to a court for leave to commence an action relating to the publication of defamatory matter even though one year has elapsed since the publication.

(2)     Subject to subsection (3), on an application 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.

(3)     An action relating to the publication of defamatory matter cannot be commenced if 3 years have elapsed since the publication.

7    The first respondent, KMPG Pty Ltd (“KMPG”) operates a real estate agency business based in Kalgoorlie, Western Australia. The second respondent, Ms Briers, is one of its two directors. The other is Mr Evan Campbell, Ms Briers’s de facto partner. Ms Briers is (or, at material times, was) a licenced real estate agent and is described as having been the owner and principal of the business. In 2019, Ms Briers was diagnosed with thyroid cancer and has since undergone a series of surgical treatments, at least some of which bear upon the present application.

8    It is not controversial that the respondents became aware of the Impugned Posts at or around the time that the Owens are alleged to have made them (namely November 2020 and January 2021). They did not, however, know who it was that was responsible for posting them. Thus, at or around the time that the first posts appeared, Ms Briers took steps to have them removed on the basis that they were defamatory. Those steps involved the retention of lawyers, whom she instructed (both on her own behalf and that of KMPG) to make demands to that end.

9    Specifically, demands were made by means of correspondence sent on behalf of the respondents to Google, a large and well-known foreign business that maintained the website within or upon which the Impugned Posts are alleged to have been displayed. On 7 December 2020, the respondents’ lawyers wrote to Google in connection with the Impugned Posts. That correspondence noted that the posts appeared to have been authored by people unknown to the respondents. It requested details about the authors’ identities.

10    Further correspondence followed on 17 December 2020, by which Google was asked to furnish various details about the identity or identities of those responsible for making the Impugned Posts.

11    On 23 December 2020, a Google representative sent email correspondence to the respondents’ lawyers, indicating that “Google only provides user information pursuant to a valid court order or subpoena”.

12    In January 2021, Ms Briers underwent surgery related to her cancer diagnosis; and, between February and April, underwent a course of radiation treatment. Throughout that time, the treatment left her fatigued and unwell.

13    On 17 May 2021, KMPG commenced an application against Google in the Supreme Court of Western Australia, seeking pre-trial discovery of documents relating to the identity or identities of those responsible for creating the Impugned Posts. An order requiring discovery of relevant documents was made on 27 July 2021.

14    Ms Briers underwent further surgery in August 2021.

15    In early September 2021, Google provided information about the internet protocol addresses that pertained to the creation of the Impugned Posts. No information identifying the authors of the posts by name was provided, and nor were any of their contact details.

16    Between September and December 2021, Ms Briers spent a period recovering from her surgery. She was, so Mr Campbell put it, “extremely tired and lethargic”, as a result of which it was “difficult to get [her] to act on anything and make decisions”.

17    It is apparent that, at around that time, the respondents’ then lawyers formed the view that they lacked the expertise to discern, from the IP address information that Google had provided, who it was that had authored the Impugned Posts. Some attempts were made to garner additional information from Google but none of any assistance was forthcoming.

18    On 3 December 2021, Ms Briers sought to bring in new lawyers to continue her campaign. They were formally retained on 20 December 2021, apparently on the understanding that they would not be able to progress efforts to discern the identity of those who authored the Impugned Posts until early 2022.

19    In January 2022, Ms Briers underwent yet further surgery. It appears that, at or around that time, the respondents learnt that the IP addresses provided by Google were associated with an internet service provider—specifically, Telstra Corporation Limited—through whose services the Impugned Posts had been created. On 22 February 2022, an application was made to this court for orders against Telstra, requiring that it provide preliminary discovery of documents identifying by name or contact details the person or persons who, on the dates in question, had accessed the Google website via the IP addresses that had by then been obtained.

20    An order to that effect was made on 28 June 2022 and, it appears, was complied with on 5 July 2022. Two days later, the respondents instructed their new lawyers to commence the substantive proceeding. As history now records, that occurred on 2 August 2022.

The Primary Judgment

21    The learned primary judge concluded that, taking account of the nature and extent of the delay, the reasons for the delay and his overall assessment as to the conduct of the respondents (who were the applicants for the extension), it was appropriate to grant the relief sought in respect of all publications that were alleged to have occurred on or before 1 June 2021: Primary Judgment, [50].

22    In coming to that view, his Honour first acknowledged the hurdle imposed by s 40(2) of the Limitation Act, quoting Martin CJ in Rayney v State of Western Australia (No 3) [2010] WASC 83, [41]: “if the plaintiff satisfies the onerous conditions specified by s 40(2), there is a duty to extend time”: Primary Judgment, [12]. His Honour noted (Primary Judgement, [24]-[26]):

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.

…

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. …

23    In determining whether it was not reasonable for the proceeding to be commenced earlier than it was, his Honour addressed (Primary Judgment, [40]-[46]) six relevant periods of time.

24    The first was early February 2021 to 17 May 2021. During that period, his Honour noted, Ms Briers was very unwell and had undertaken regular cancer treatment. Given that the Impugned Posts had focussed upon Ms Briers, and that she was the de-facto partner of Mr Campbell, his Honour reasoned that it was reasonable to expect that she would be involved in any decision as to whether a proceeding should be commenced. As such, his Honour took the view that it was objectively reasonable that the Impugned Posts were not focused upon at the level that they otherwise might have been.

25    The second relevant period spanned 27 July to 4 September 2021. In respect of it, his Honour reasoned that it could not be said that there was any material delay that could be attributed to the respondents during the period that it took Google to produce the Internet Protocol information.

26    The third period to which his Honour gave consideration was from 4 September to 3 December 2021. His Honour noted that the lawyers then acting for the applicants were then in the process of pressing Google to provide more information about the identities of those responsible for the Impugned Posts.

27    The fourth relevant period spanned December 2021 to 22 February 2022, during which, as his Honour noted, the applicants had taken steps to secure new legal representation. His Honour observed that the short delay in commencing an application for preliminary discovery against Telstra was thus explicable.

28    Fifth, his Honour considered the period 22 February to 28 June 2022 (which covered the application for preliminary discovery that was made against Telstra). Specifically, it was observed that “…the period of about four months in obtaining a hearing and the making of orders may be criticised”. His Honour noted that there was no evidence to explain the delay in securing an earlier hearing in circumstances where the one-year period had expired in respect of many publications and was imminent as to other successive publications.

29    Finally, his Honour considered the period 5 July (when the respondents received from Telstra details about who had authored the Impugned Posts) to 2 August 2022 (when the substantive action was commenced). His Honour opined that a period of less than one month to commence proceedings was “not undue”.

30    Ultimately, his Honour concluded that, “…for the whole of the Period [from the initial publication of the Impugned Posts until the commencement of the substantive proceeding] 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”; and, therefore, that, “…it was not reasonable to have commenced an action at any time prior to 2 June 2022”: Primary Judgment, [47].

31    His Honour also considered the length of the extension that should follow from that conclusion. His Honour considered Meyer v Solomon [2021] WASCA 168 (hereafter, Meyer), in which Buss P and Mitchell JA had given separate reasons as to the nature of the court’s discretion. He accepted the “broader approach as articulated by Buss P” (Primary Judgment, [23]), having earlier quoted him as follows (Primary Judgment, [16]):

[Buss P] 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.

32    His Honour concluded that, for almost the entirety of the period after the making of the Impugned Posts, the delay that attended the commencement of the substantive action was explicable. His Honour ordered that the time for proceedings to be commenced be extended until 2 August 2022, save for publications that occurred between 2 June 2021 and 2 August 2021.

The proposed appeal

33    The Owens charge the learned primary judge with having erred by concluding that, in the circumstances, it was not reasonable for the respondents to commence the substantive defamation action within one year of the point that the Impugned Posts were first created. As the rules of the court require, they have prepared a draft notice of appeal in respect of which their application for leave proceeds. It identifies the following grounds, namely:

1.     The learned application judge erred on a mixed matter of law and fact in determining (at [47]) that the [r]espondents had satisfied the statutory test under s 40(2) of the Limitation Act 2005 (WA) that it was not reasonable in the circumstances for the [r]espondents to have commenced an action at any time prior to 2 June 2022, and there was therefore a duty to extend time in respect of any cause of action arising from a publication of the matters complained of occurring in the period from 5 November 2020 to 2 June 2021, in that:

1.1.     the circumstances upon which the [r]espondents relied were:

1.1.1.     the [r]espondents’ lack of knowledge of, and need to obtain information as to the identity of the intended respondents to the action before it could be commenced, and

1.1.2.     the [s]econd [r]espondent’s health issues;

1.2.     the evidence as to the [r]espondents’ circumstances was insufficient to satisfy the statutory test that it was not reasonable for the [r]espondents to have commenced the action before 2 June 2022, in that;

1.2.1.     the identity of the intended respondents to the defamation proceedings was capable of being, and eventually was, ascertained through pre-action discovery procedures undertaken by the [r]espondents;

1.2.2.     the evidence did not provide a satisfactory explanation as to why the procedures could not have been undertaken and completed at an earlier time;

1.2.3.     the evidence did not provide a satisfactory explanation as to how or why the [s]econd [r]espondent’s illness was a circumstance which made it not reasonable for the [f]irst [r]espondent or the [s]econd [r]espondent to have commenced proceedings any earlier than 2 June 2022.

1.3.     the learned application judge ought to have held that that the evidence, as a whole, as to the circumstances which existed in the period of a year from the date of any publication of matter which may have occurred between 5 November 2020 and 2 June 2021, was not sufficient to satisfy the statutory test that it was not reasonable to have commenced proceedings within one year from such publication.

2.     In finding (at [47]) in respect of the whole period from 5 November 2020 to 2 August 2022, save for a period of about two months after the pre-action discovery application against Telstra was made on 22 February 2022, the statutory test that it was not reasonable in the circumstances for the [r]espondents to have commenced an action had been satisfied, , and therefore that it was not reasonable to have commenced an action before 2 June 2022, the learned application judge erred in a mixed matter of [] law [and] fact by taking into account:

2.1.     findings of fact which were incorrect, or for which there was no evidence to support such finding;

2.2.     findings made upon facts which were insufficient to support the finding;

2.3.     findings as to circumstances which were not a sufficient basis to satisfy the requirement to establish that it was not reasonable to have commenced an action.

Particulars

a.     The learned application judge (at [40]) having found as matters of fact that the publications complained of focussed upon the [s]econd [r]espondent who was the principal of the real estate business conducted by the [f]irst [r]espondent (Business), found and took into account it was therefore reasonable to expect that in the period from early February 2021 to 17 May 2021 (First Period) the [s]econd [r]espondent would be involved in any decisions as to whether proceedings were commenced by the [f]irst [r]espondent alleging defamation, as well as whether proceedings were commenced on her own behalf, when:

i.     only one of the five publications complained of focussed on the [s]econd [r]espondent; the other four publications were concerned with the Business, and did not identify the [s]econd [r]espondent;

ii.     there was no evidence that the [f]irst [r]espondent was ‘the principal’ of the Business;

iii.     the decision to be made by the [r]espondents at the time of the First Period was whether the [f]irst [r]espondent should bring a pre-action discovery application against Google, and not whether the [f]irst and [s]econd [r]espondents should commence defamation proceedings.

b.    The learned application judge found (at [41]) and took into account that it could not be said there was any real delay that could be attributed to the [r]espondents during the period between 27 July 2021 when Google was ordered to give pre-action discovery, and its production of internet protocol address information on 4 September 2021, when:

i.     the order required pre-action discovery to be given by 17 August 2021;

ii.     there was no evidence of any steps taken by the Respondents or their lawyers to require compliance with the order;

iii.     without evidence, it could not be determined that delay was not attributable to the Respondents.

c.     The learned application judge found (at [42]) and took into account that in the period from 4 September 2021 to 3 December 2021 (Third Period) the available forensic course which the Respondents’ lawyers failed to take, of using the internet protocol address information provided by Google on 4 September 2021 (IP Address Information) to obtain the further information required to identify and commence action against the [a]ppellants, which course the [r]espondents’ new lawyers later took, was not an ‘obvious’ course, when:

i.     there was no evidence as to lack of obviousness, or otherwise as to any inability or difficulty in obtaining information or advice as to how the IP Address Information could be used to identify the intended respondents (as it eventually was by the new lawyers) to support the learned application judge’s finding that the forensic course was not obvious,

ii.     there was no evidence as to any attempt to obtain information or advice in that regard; and

iii.     in any event, the lack of obviousness of a particular forensic course available to be taken to identify the intended respondent is not a sufficient circumstance to satisfy the requirement of the statutory test.

d.     The learned application judge having found as a matter of fact (at [43]) that in the Third Period the [r]espondents were ‘pressing’ their lawyers to take whatever steps were available (including raising the matter with the attorney general), found and took into account that in those circumstances, the statutory task does not involve attribution of the delay occasioned by the failure of the [r]espondents’ previous lawyers to take the forensic course of action later taken by the new lawyers to the [r]espondents, when the evidence of the communications between the [r]espondents and their lawyers during the Third Period was not a sufficient basis to draw a distinction between fault of the [r]espondents and their lawyers in not taking available steps, to support a finding that it was not reasonable for the [r]espondents to have commenced proceedings before 2 June 2022.

e.     The learned application judge found as a matter of fact (at [44]) and took into account that in the period from 4 December 2021 to 22 February 2022 (Fourth Period), the [r]espondents themselves were ‘pressing’ their new lawyers to ‘advance the matter’, when there was no evidence of any communication between the [r]espondents and their lawyers.

f.     The learned application judge (at [44]) having found as a matter of fact that the [s]econd [r]espondent underwent surgery on 20 January 2022, found and took into account that the delay in confirming instructions for the [f]irst [r]espondent to make a pre-action discovery application against Telstra earlier than 22 February 2022 was explained, when:

i.     the application could have been made as soon as Telstra had been identified as the party against whom the application was to be made, which occurred on 10 January 2022;

ii.     the weight of the evidence was that the [s]econd [r]espondent’s surgery occurred on 28 January 2022, not 20 January 2022; and

iii.     there was no evidence as to why the [s]econd [r]espondent’s surgery on either 20 or 28 January 2022 prevented the [f]irst [r]espondent confirming instructions before 22 February 2022; and

iv.     there was no evidence as to why instructions to make the application could not have been confirmed, and the application made prior to the surgery, between 10 January 2022 and 28 January 2022 (or 20 January);

g.     The learned application judge found (at [44]) and took into account in respect of the Fourth Period that there was a sufficient explanation for why there may have been a delay in commencing the application for preliminary discovery against Telstra in circumstances where:

i.     the lawyers had accepted instructions on the basis that they would not be able to attend to them until after the ‘holiday period’;

ii.     the [s]econd [r]espondent underwent surgery in January 2022;

iii.     the [r]espondents had taken steps to secure legal representation;

iv.     the [r]espondents were pressing to have steps taken to advance the matter, when;

the circumstance in sub-paragraph (g)(iv) was not supported by evidence (as particularised in (e) above) and the circumstances were otherwise not a sufficient circumstance to satisfy the requirement of the statutory test.

h.     The learned application judge found (at [46]) and took into account that the period between 5 July 2022 when Telstra provided discovery, and 2 August 2022 when defamation proceedings were commenced, was not undue or unreasonable, when:

i.     the statutory test requires more than, and is not satisfied by a delay not being undue or unreasonable;

ii.     the evidence as to the reasons for the delay in commencing proceedings following the provision of discovery was not sufficient to give rise to a circumstance which satisfied the statutory test.

3.     Having found (at [47]) that, in respect of any cause of action arising from a publication of matter between 5 November 2020 and 2 June 2022, it was not reasonable to have commenced an action at any time prior to 2 June 2022, the learned application judge:

3.1.     erred in the exercise of his discretion in extending the time in which an action may be commenced for all such causes of action to 2 August 2022;

3.2.     ought to have held that;

3.2.1.     the exercise of discretion as to the length of any extension must be exercised having regard to the statutory purpose that defamation actions be commenced promptly;

3.2.2.     the exercise of the discretion is to be exercised having regard to when it was reasonable in the circumstances for the action to have been commenced;

3.2.3.     it was reasonable in the circumstances for the action to have been commenced within a short period, and not more than two weeks, from 2 June 2022;

3.2.4.     the time in which an action may be commenced should be extended to a date not later than 16 June 2022.

34    It might be noted—although it hardly needs to be—that the order that was the product of the Primary Judgment was interlocutory. In order that they might have it set aside on appeal, the Owens require the court’s leave: FCA Act, s 24(1A).

The test for leave to appeal

35    There was no material dispute about the considerations that guide the exercise of the court’s discretion to grant leave to appeal. In Dimitrovski v Boland [2023] FCAFC 86, [29] (Markovic, Downes and Kennett JJ), the court made the following relevant observations, which I adopt for present purposes:

It is convenient…to set out the principles governing the exercise of the Court’s discretion to grant leave to appeal. Once again, they are settled. In exercising its discretion to grant leave to appeal, the Court will consider whether the judgment in question is attended with sufficient doubt to warrant its reconsideration by a Full Court; and, on the assumption that the judgment is wrong, whether substantial injustice would result if leave was refused: see Decor Corporation Pty Ltd & Anor v Dart Industries Inc. (1991) 33 FCR 397…at 398 (Sheppard, Burchett and Heerey JJ).

36    Where the order in respect of which leave to appeal is sought is one “concerned with the mechanics of the pre-trial process then the scales are likely to be weighted against the grant of leave”: Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564, 584 [43] (French J, with whom Beaumont and Finkelstein JJ agreed; hereafter, “Johnson Tiles”). Nonetheless, interlocutory orders that operate to impair the viability of a party’s contentions may, in some circumstances, be thought to work a substantial injustice, particularly if the impairment sounds in the imposition of time and cost that would not realistically be recoverable later in the litigation process: Johnson Tiles, 585 [45] (French J, with whom Beaumont and Finkelstein JJ agreed).

37    To secure leave to appeal, an applicant need not demonstrate that the appeal grounds that are proposed to be agitated are likely to succeed. All that need be demonstrated is that there is sufficient doubt about the correctness of the judgment to warrant appellate reconsideration: KTC v David [2022] FCAFC 60, [19] (Wigney J, with whom Jackson J agreed in the result; Anastassiou J dissenting). In assessing whether sufficient doubt presents in any given application, the court should be astute to avoid conducting a preliminary hearing of the appeal, and should aspire to an “…assessment of the issues [that is] more akin to the ‘rough and ready’ approach suggested by Brennan CJ and McHugh J in Jackamarra v Karkouer (1998) 195 CLR 516 at [9]”: Food Channel Network Pty Ltd v Television Food Network, G.P. [2009] FCA 1446, [26] (Reeves J).

38    For reasons that might become apparent, it is convenient to address the two considerations that inform the application for leave to appeal in reverse order: first (and assuming that the Primary Judgment is a product of error), as to whether substantial injustice might result in the event that the court were to now foreclose upon an appeal; and, second, as to whether the Primary Judgment is attended with doubt sufficient to warrant its reconsideration.

Substantial injustice

39    The respondents contend that, were the court to reject the Owens’s application for leave to appeal, no substantial injustice would result (even assuming that the Primary Judgment is wrong). That is said to be so because the effect of the extension that the learned primary judge granted was limited to publications of the Impugned Posts that occurred on or prior to 2 August 2021. In other words, the substantive defamation action will, in any event proceed; at least insofar as concern publications that occurred after 2 August 2021.

40    I reject that submission. If the Primary Judgment is a product of otherwise appealable error, the prejudice to the Owens is immediate and substantive. They would be denied an important statutory defence that would otherwise serve as a complete answer to the tortious conduct in which they are alleged to have engaged prior to 2 August 2021. Plainly, the Primary Judgment does not extend so far as to finally determine any of the parties’ legal rights, such that a prima facie case might be said to exist for granting leave to appeal: Re Bucknell (1936) 56 CLR 221, 225 (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ). Nonetheless, it does finally deprive the Owens of an unassailable means by which they might defend at least part—and probably a substantial part—of the action that is pressed against them.

41    That being so (and on the assumption that the Primary Judgment is wrong), I accept that a denial of leave to appeal now would visit substantial injustice upon the Owens.

Error

42    The much more vexed question for present purposes is whether the Primary Judgment presents sufficiently as a product of error that might be corrected on appeal if leave is granted. That, it seems to me, turns significantly upon whether or not the power conferred by s 40(2) of the Limitation Act is one that contemplates the exercise of a judicial discretion.

43    In general terms, a discretionary decision is one in which “…‘no one [consideration] and no combination of [considerations] is necessarily determinative of the result’ [and in which] the decision-maker is allowed some latitude as to the choice of the decision to be made”: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, [19] (Gleeson CJ, Gaudron and Hayne JJ; hereafter, “Coal and Allied”), citing Jago v District Court (NSW) (1989) 168 CLR 23, 76 (Gaudron J). Typically, a statutory power conditioned by the attaining of a particular state of satisfaction, especially as to something as subjectively open to opinion as what is or is not reasonable in given circumstances, would qualify as one that involves the exercise of a discretion: Coal & Allied, [20] (Gleeson CJ, Gaudron and Hayne JJ); Avon Downs Pty Ltd v Commissioner of Taxation (Cth) (1949) 78 CLR 353, 360 (Dixon J).

44    In Norbis v Norbis (1986) 161 CLR 513, Mason and Deane JJ had occasion to consider the exercise of a statutory power that was exercisable by a court only if it were “…satisfied that, in all the circumstances, it [was] just and equitable” to do so. Their Honours observed (at 518):

…“Discretion” signifies a number of different legal concepts: see, e.g., the discussion in Pattenden, The Judge, Discretion, and the Criminal Trial (1982), pp. 3-10. Here the order is discretionary because it depends on the application of a very general standard — what is "just and equitable" — which calls for an overall assessment in the light of the factors mentioned in s. 79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion.

45    The characterisation of a judgment as one involving the exercise of a judicial discretion is significant. In House v The King (1936) 55 CLR 499, the plurality (Dixon, Evatt and McTiernan JJ, with whom Starke J agreed) explained it as follows (at 504-505), namely:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

46    Thus, a judgment that engages a statutory power that is exercisable upon the court’s being “satisfied” as to the existence of some particular circumstance (here, that it was not reasonable to commence a defamation action within one year) is generally only amenable to review on appeal if it can be shown that there was some error in the process by which the state of satisfaction was reached.

47    But for the analysis that follows, I would not doubt that a decision made pursuant to s 40(2) of the Limitation Act would qualify as one that involves the exercise of a judicial discretion. Indeed, to my mind, it presents as a quintessential example. It is to be recalled that the power to extend the statutory limitation rests upon the court’s being “…satisfied that it was not reasonable in the circumstances” for an action to have been commenced within a year. The state of satisfaction by which the exercise of the power is conditioned is expressly reserved unto the court (here, the learned primary judge). The subject matter about which it envisages that an opinion will be formed (namely, what was or was not reasonable in the circumstances) is, by nature, resistant to precise measurement. To adopt the language of the High Court, there is no one consideration—and no combination of considerations—that is necessarily determinative of what is reasonable in any given set of circumstances.

48    At the least, I would be inclined to accept that a decision to grant an extension under s 40(2) of the Limitation Act is one that involves the determination of an objective fact by means of value judgments (as to the distinction, see Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315, 324-325 [33]-[34] (Derrington J, with whom Perry and O’Sullivan JJ relevantly agreed)). In Singer v Berghouse (1994) 181 CLR 201, Mason CJ, Deane and McHugh JJ—addressing what was described as “the context of family provision cases” (which were said to involve an equivalent evaluative exercise based necessarily upon the formation of value judgments)—concluded (at 212) that the “correct approach” in matters of that kind was that “…the principles that govern appellate review of discretionary decisions should apply”.

49    That being so, I would ordinarily be inclined to measure the Owens’s prospects of overturning the Primary Judgment on appeal by the standards established by House v The King: that is to say that the question as to whether the Primary Judgment was attended with doubt sufficient to warrant appellate consideration would turn not upon whether it was or wasn’t reasonable in the circumstances for the action to have been commenced more timeously; but upon an assessment as to whether or not the learned primary judge could be thought to have formed the relevant state of satisfaction otherwise than in a way that s 40(2) of the Limitation Act authorised.

50    If the question of error or doubt was to be assessed in that way, the case that the Owens hope to agitate on appeal would, with respect, present with some considerable weakness. As the proposed grounds of appeal (and the written and oral submissions advanced on the present application) disclose, the proposed appeal would, principally, charge the learned primary judge not with having wrongly formed the state of satisfaction that he formed; but, rather and more simply, with having mistakenly favoured the view that it was not reasonable in the circumstances for the respondents to commence their action within one year of when the Impugned Posts were created. They seek, in effect, to relitigate their resistance to the extension that the respondents sought and were given.

51    Contrary to my inclination, the authorities suggest that they are entitled to do as they propose (subject, of course, to obtaining leave to appeal).

52    In Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 (Fraser JA, Fryberg and Applegarth JJ; “Pingel”), the Supreme Court of Queensland (Court of Appeal division) had occasion to consider an appeal from a decision to grant an extension of a kind equivalent to that with which the Primary Judgment here was concerned. As to the nature of the decision in question, Fraser JA observed (at [34]-[36], references omitted):

Under s 32A the answer to the question whether it was not reasonable in the circumstances for the plaintiff to have sued within the limitation period determines the result of an application for an extension of time. Noonan v MacLennan & Anor established that the test is an objective one. No element of judicial discretion is involved in the decision whether or not an extension should be granted. (The selection of the period of any extension is discretionary, but that is not relevant in this appeal). The decision does involve an evaluation but that was also true in Warren v Coombes: trial judges are routinely called upon to evaluate the relative weight to be afforded to competing circumstances in the course of deciding whether the defendant failed to act with reasonable care. In relation to the principles governing appellate review it is not easy to identify any significant conceptual difference between that task and the task under s 32A.

Other decisions which have been found to attract limitations upon appellate review similar to those in House v The King include decisions about the quantum of costs, an apportionment of damages in a negligence case (regarded for this purpose as a discretionary decision) and a valuation (where an appellate tribunal is not justified in substituting its own opinion unless the valuation was invalidated by error of law or was “entirely erroneous”). In decisions of that kind, as in discretionary sentencing decisions, the approach of the law is that there is a range of valid answers to the question in issue. Those kinds of decisions may be contrasted with a decision under s 32A, where the touchstone of reasonableness allows for a single correct answer just as it does in a decision whether a defendant failed to take reasonable care.

It does not follow that the evaluative character of the decision under s 32A is irrelevant in appellate review. Under the appeal provisions mentioned earlier an appellant can succeed only by establishing that the decision appealed against resulted from factual, legal or discretionary error. As Allsop J observed in Branir v Owston Nominees (No 2) Pty Ltd “demonstration of error may not be straightforward where findings or conclusions involve elements of fact, degree, opinion or judgment.” The evaluative character of a decision is one of the matters which must be borne in mind by an appellate court in fulfilling its obligation to give respect and weight to the decision appealed against; but if after conscientiously fulfilling that obligation the appellate court concludes that the decision is wrong, it must give effect to that conclusion.

53    Fryberg J considered it unnecessary to determine the nature of the appeal and whether it attracted the principles established by House v The King: Pingel, [80]. Although in dissent as to the result, Applegarth J agreed with Fraser JA as to the principles that should guide the appeal. His Honour held (at [153], [155]-[156], references omitted):

The appeal is against a finding of fact, not an exercise of discretion…

…

The issue…of whether it was “not reasonable in the circumstances” involves a value judgment, as do many findings of fact that involve a legal category of indeterminate reference such as reasonableness…

The appeal is by way of rehearing, but the court does not deal with the case as if it was determining the matter at first instance. The appellant needs to show error by the primary judge. Where a determination of fact involves “elements of degree, opinion or judgment, a simple preference in the appellate court for a view different from that taken by the trial judge may not carry with it the conclusion of error”. The appellate court might conclude that there could not be said to be only one possible correct determination. If, however, the appellate court is persuaded that the evaluative judgment reached by the primary judge is wrong, it thereby identifies error.

54    This court has accepted that decisions granting extensions of time to commence defamation proceedings (on the basis that doing so more promptly was not reasonable) are decisions that do not involve an exercise of judicial discretion: see, for example, Landrey v Nine Network Australia Pty Ltd [2023] FCA 27, [8] (Lee J). That the principles governing the appellate review of discretionary decisions do not apply seems not to be doubted in state courts either: see, for example, Johnston v Holland (No 2) [2017] VSC 597, [29] (John Dixon J); Paule v McKay (No 2) [2022] ACTSC 190, [19] (McWilliam AsJ).

55    That also appears to be the approach that was adopted by the full court of this court in Joukhador v Network Ten Pty Ltd (2021) 283 FCR 1 (Rares, Wigney and Bromwich JJ). There, the court granted leave and allowed an appeal from a primary decision that refused an extension of time under an analogous statutory power. En route to doing so, their Honours observed (at 12 [51]):

…The question of what is not reasonable in the circumstances requires the court to evaluate all of the objective circumstances as a whole, not piecemeal. In the end, that evaluation is a question of fact, but the assessment proceeds by reference to the claimant’s position and whether, objectively, it would not have been reasonable for him or her, in light of all of the circumstances, to commence the proceeding within one year of the publication complained of.

56    The court went on to assess the correctness of the primary judge’s rejection of the contention that had been advanced before her (namely, that it was not reasonable for the defamation action to have been commenced within one year of the impugned representation). Their Honours concluded that, in fact, it was not reasonable for the action there to have been commenced within the applicable one-year limitation period; and proceeded, on that basis, to grant leave to appeal, to set aside the primary judgment and to grant the extension that had been sought.

57    The respondents maintain that the principles established by House v The King are applicable to decisions to grant or not grant extensions of time under s 40(2) of the Limitation Act. They cite Australian Securities and Investments Commission v Schlaepfer [2017] NSWCA 247 (Meagher and Payne JJA and Sackville AJA) as authority for that proposition. That matter concerned (as this one does) an application for leave to appeal from a decision to grant an extension of time to commence a defamation action. Under the heading, “Principles governing the application”, the court made the following observations (at [40], references omitted):

The principles governing an application for leave to appeal from a decision to grant an extension of time for the commencement of proceedings were stated by Ward JA in Dagg v Davis in uncontroversial terms:

“[13] The decision to grant an extension of time for the commencement of the proceedings is an interlocutory decision from which leave to appeal is necessary. There are no exhaustive or rigid rules of practice or criteria governing the grant of leave to appeal (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170). Nevertheless, it has been recognised that leave should be granted only where there are substantial reasons to allow an appellate review (Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564), such as where there is an error of principle which, if uncorrected, will result in substantial injustice (Minogue v Williams (2000) 60 ALD 366; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756; Niemann v Electronic Industries Ltd [1978] VR 431; Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401). Where there is no question of principle, leave to appeal will usually be refused (Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; Zelden Sewell Henamast Pty Ltd [2011] NSWCA 56).

[14] Moreover, in The Age Company Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 286, Bathurst CJ said (at [13]) that:

Generally speaking, it is only appropriate to grant leave in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable.”

58    Respectfully, Schlaepfer does not stand as authority for the proposition that the respondents draw from it. In declining to grant leave to appeal, the court was not concerned to focus upon whether or not the primary decision was a product of discretionary error. On the contrary, the analysis did not venture beyond the factual correctness of what had initially been found.

59    Accepting, as I think I must, that the learned primary judge’s conclusion—more specifically, his satisfaction that it was not reasonable in the circumstances for the respondents to commence their action within a year of the creation of the Impugned Posts—was a finding of fact that did not involve the exercise of discretion, the immediate hurdle for the Owens becomes substantially easier to clear.

60    All that they must demonstrate is that the correctness of that conclusion is attended with doubt that is sufficient to warrant its reconsideration. In Shockthorap v Electricity Network Corporation [2019] FCA 619, Banks-Smith J concluded (at [12]) that “sufficient doubt”:

…must mean a doubt that is sufficient in the circumstances. Interlocutory orders cover a spectrum from those concerned solely with mechanical orders (such as case management orders and practice and procedure orders) to those which may, for one reason or another, have a significant impact upon the scope and outcome of proceedings and which ought to be given consideration on appeal: Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [43]-[44].

61    Given the state of the law, I am satisfied that the correctness of the Primary Judgment is attended with the requisite degree of doubt. I do not consider that it is necessary or advisable to trace in detail the various bases upon which the Owens sought before the learned primary judge—and propose on appeal—to avoid the finding that it was not reasonable in the circumstances for the respondents to commence their action sooner than they did. It suffices, I think, to make what is surely an uncontroversial observation: namely, that whatever might be said about the correctness of the Primary Judgment, it would be an unusual case in which there is only one plausible argument about what was or wasn’t reasonable.

62    Naturally, the respondents maintain that the learned primary judge was correct to decide as he did on that score. The full court might well agree. But, equally, it might not. The submissions that the learned primary judge rejected could not be thought to be so obviously wrong as to be incapable of raising doubt sufficient to warrant the granting of leave to appeal. I accept that they are at least compelling enough to do so.

63    For that reason, the conclusion that the Primary Judgment is attended with doubt sufficient to warrant appellate consideration is all-but-inescapable.

64    Had it been the case that the principles that regulate the appellate review of discretionary decision-making would apply if leave were granted, I would very much have been inclined not to conclude as I have. Respectfully—even on the ‘rough and ready’ analysis that is appropriate at the present stage—I discern no discretionary error in the conclusion to which the learned primary judge was drawn, nor any failure on his Honour’s part properly to comprehend the statutory task entrusted to him, or to consider and exclude from consideration that which he was obliged (respectively) to consider or exclude from consideration. I consider it most unlikely that the court, on appeal, would conclude that the Primary Judgment was the product of House v The King error; and, if that were the correct test to apply on appeal, it would follow that I would not consider that the Primary Judgment was attended with doubt sufficient to warrant its reconsideration and would not, for that reason, grant leave to appeal.

Conclusion

65    The Primary Judgment is attended with doubt sufficient to warrant appellate attention and, assuming that it is wrong, will visit substantial injustice on the Owens. The application for leave to appeal should therefore succeed. I will make orders accordingly.

Associate:

Dated:    4 December 2023