Federal Court of Australia

Dadon v Fairfax Media Publications Pty Ltd [2025] FCA 899

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 23B of the Limitation of Actions Act 1958 (Vic) (Limitation Act), the applicable limitation period under section 5(1AAA) of the Limitation Act be extended to the date of the issuing of these proceedings with respect to the article titled “Bird’s Basement owner sued for firing sexual harassment complainant” published in the Australian Financial Review on 17 February 2023.

2.    The respondent pay the applicant’s costs of and incidental to the application, to be agreed or assessed.

3.    On or before 4:00pm on 15 August 2025, the parties are to confer and provide the chambers of Justice McEvoy (at Associate.McEvoyJ@fedcourt.gov.au) with a proposed minute of orders as to the future conduct of the proceeding.

4.    If the parties are unable to reach agreement with respect to a minute of proposed orders as to the future conduct of the proceeding:

(a)    at the date and time specified in paragraph 3 of these orders, the parties are to provide chambers with their competing proposed minutes of orders; and

(b)    the proceeding will be listed for case management hearing on the first available date thereafter.

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

REASONS FOR JUDGMENT

MCEVOY J:

1    On 9 December 2024 the applicant, Mr Albert Dadon, commenced proceedings in defamation alleging that he has been defamed by two articles published by the respondent, Fairfax Media Publications Pty Ltd.

2    The first article titled “Bird’s Basement owner sued for firing sexual harassment complainant” was published by the respondent in the Australian Financial Review newspaper (AFR), and on the website for the AFR, on or about 17 February 2023 (February 2023 Article).

3    The second article was published by the respondent on the website for the AFR on or about 20 June 2024 (June 2024 Article).

4    The respondent’s position is that the proceedings are time barred and not maintainable by reason of the Limitation of Actions Act 1958 (Vic) (Limitation Act). Insofar as the June 2024 Article is concerned, the respondent contends that the two line “clarification” inserted into the online February 2023 Article by the June 2024 Article, which recorded that the Fair Work proceeding the subject of the articles had been discontinued, is “substantially the same” as the February 2023 Article.

5    By interlocutory application dated 7 March 2025 the applicant seeks an order pursuant to s 23B of the Limitation Act extending the limitation period applicable under s 5(1AAA) of that Act up to the date of the issuing of these proceedings with respect to the February 2023 Article. As to the respondent’s contention that the June 2024 Article was “substantially the same” as the February 2023 Article, the applicant’s position is that the June 2024 Article is a wholly new publication. This is on the basis that the meaning and impact of the material contained in the February 2023 Article was changed by the inclusion of the clarification, such that wholly separate imputations arise.

6    If he is able to pursue his action in relation to the February 2023 Article, the applicant requires the court to grant him an extension of time from 17 February 2024 (12 months from the date of publication of the February 2023 Article) to 9 December 2024. This is a period of almost ten months.

7    The applicant relies on three affidavits of Jane Mary Good, sworn respectively on 7 March 2025, 27 March 2025 and 31 July 2025. Ms Good was cross examined on her affidavits at the hearing. The applicant also relies on written submissions dated 31 March 2025, and written submissions in reply dated 15 May 2025.

8    The respondent relies on an affidavit of Justin Healy Quill sworn on 21 March 2025. It also relies on written submissions dated 22 April 2025.

9    Although the matter is finely balanced, for the reasons that follow I have determined that the applicant should have the order it seeks extending the limitation period up to the date of the issuing of these proceedings with respect to the February 2023 Article.

THE STATUTORY PROVISIONS AND RELEVANT PRINCIPLES

10    Section 5 of the Limitation Act is, relevantly, in the following terms:

(1AAA)     An action for defamation must not be brought after the expiration of 1 year from the date of the publication of the matter complained of.

(1AAB)     The 1-year time limitation period referred to in subsection (1AAA) is taken to have been extended as provided by section (1AAC) if a concerns notice is given to the proposed defendant on a day (the notice day) within the period of 56 days before the limitation period expires.

(1AAC)     The limitation period is extended for an additional 56 days minus any days remaining after the notice day until the 1-year limitation period expires.

(1AAD)     In subsections (1AAB) and (1AAC)—

concerns notice has the same meaning as in the Defamation Act 2005;

date of publication, in relation to the publication of matter in electronic form, means the day on which the matter was first uploaded for access or sent electronically to a recipient.

11    Section 23B of the Limitation Act relevantly provides:

(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)    The court may extend the limitation period applicable under section 5(1AAA) … to a period of up to 3 years running from the date of the alleged publication of the matter if the plaintiff satisfies the court that it is just and reasonable to allow an action to proceed.

(3)     In determining whether to extend the limitation period, the court is to have regard to all of the circumstances of the case and in particular to—

(a)     the length of, and the reasons for, the plaintiff's delay; and

(b)     if a reason for the delay was that some or all of the facts relevant to the cause of action became known to the plaintiff after the limitation period expired—

(i)     the day on which the facts became known to the plaintiff; and

(ii)     the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew whether or not the facts might be capable of giving rise to an action; and

(c)     the extent, having regard to the delay, to which relevant evidence is likely to be unavailable or less cogent than if the action had been brought within the limitation period.

(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.

12    It may be observed that although Parliament has provided a one year limitation period for actions in defamation, it is also part of the statutory regime that this period can be enlarged by the court to a period of up to three years if it is just and reasonable to allow the action to proceed.

13    The primary issue for determination on the present application is thus whether the applicant can satisfy the court that it is just and reasonable to allow his action in defamation to proceed in relation to the February 2023 Article having regard to all of the circumstances of the case and in particular to the matters listed in s 23B(3) of the Limitation Act.

14    It is also relevant to note, having regard to the respondent’s position on the application, that the single publication rule has now been introduced into the Limitation Act. Section 5A of the Limitation Act provides that a cause of action against the publisher of defamatory material accrues upon the date of first publication. It is, relevantly, in the following terms:

(1)     This section applies if—

(a)     a person (the first publisher) publishes matter to the public that is alleged to be defamatory (the first publication); and

(b)     the first publisher or an associate of the first publisher subsequently publishes (whether or not to the public) matter that is substantially the same.

(2)     Any cause of action for defamation against the first publisher or an associate of the first publisher in respect of the subsequent publication is to be treated as having accrued on the date of the first publication for the purposes of determining when—

(a)     the limitation period applicable under section 5(1AAA) to (1AAC) begins; or

(b)     the 3-year period referred to in section 23B(2) begins.

…

(3)     Subsection (2) does not apply in relation to the subsequent publication if the manner of that publication is materially different from the manner of the first publication.

(4)     In determining whether the manner of a subsequent publication is materially different from the manner of the first publication, the considerations to which the court may have regard include (but are not limited to)—

(a)     the level of prominence that a matter is given; and

(b)     the extent of the subsequent publication.

(5)     This section does not limit the power of a court under section 23B to extend the limitation period applicable under section 5(1AAA) to (1AAC).

In this section—

…

date of first publication, in relation to the publication of matter in electronic form, means the day on which the matter was first uploaded for access or sent electronically to a recipient;

15    Section 5B of the Limitation Act is in the following terms:

(1)     This section applies in respect of any requirement under section 5(1AAA) to (1AAC) or 5A for the date of publication of a matter in electronic form to be determined by reference to the day on which the matter was first uploaded for access or sent electronically to a recipient.

(2)     A requirement to which this section applies is relevant only for the purpose of determining when a limitation period begins and for no other purpose.

(3)     Without limiting subsection (2), a requirement to which this section applies is not relevant for—

(a)     establishing whether there is a cause of action for defamation; or

(b)     the choice of law to be applied for a cause of action for defamation.

16    The parties’ written and oral submissions traversed relevant legal principles and the history of the statutory provisions. Save to note the relevance of the observations of the Full Court in Landrey v Nine Network Australia Pty Ltd (2024) FCR 246 (Wigney, Wheelahan and Feutrill JJ) and Joukhador v Network Ten Pty Ltd (2021) 283 FCR 1 (Rares, Wigney and Bromwich JJ) (Joukhador), as well as those of Lee J in Lehrmann v Network Ten Pty Ltd (Limitation Extension) [2023] FCA 385 (Lehermann), it is unnecessary to reherse these submissions here at any length.

17    I am prepared to accept, however, as essentially uncontroversial, the respondent’s submission that the following principles are relevant to the application.

18    First, the applicant bears the onus of establishing that it is “just and reasonable” to extend the general one year limitation period. It may be accepted that this is a more generous test from the perspective of an applicant than that which was in place before the enactment of the relevant reforms, reflected in Victoria in the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic). This is not irrelevant in the present circumstances.

19    Secondly, the test is objective. The plaintiff’s subjective understanding is not determinative and will be irrelevant if it is unreasonable: Noonan v MacLennan [2010] 2 Qd R 537 at [15], [20], [22]-[23] (Keane JA); Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90 at [57] (Beazley JA); Joukhador at [50]-[51]. See also Lehrmann at [16].

20    Thirdly, the court must have regard to “all the circumstances” of the case and “in particular” to:

(a)    the length of, and reasons for, the applicant’s delay – considerations of this kind will include whether the applicant has suffered ill health, whether there is a material overlap with criminal proceedings (the applicant would extend this to civil penalty proceedings), or whether the applicant was unaware of the relevant publication; and

(b)    the extent, having regard to the delay, to which relevant evidence is likely to be unavailable or less cogent than if the action had been brought within the limitation period.

21    Fourthly, there is a presumption of prejudice to the defendant. To establish actual prejudice, however, imposes an evidentiary burden on the defendant to raise specific considerations that militate against the grant of an extension: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544 (Dawson J), 547 (Toohey and Gummow JJ).

22    Fifthly, although the court is conferred with a broad discretion, it is confined by the duty to act judicially (as to which see Lehrmann at [31]) as well as coherently with the purposes for which each of the Limitation Act and, relevantly, the Defamation Act 2005 (Vic) (Defamation Act) was enacted. That will include the legislative policy which requires prompt resolution of defamation disputes (including the use of the concerns notice procedure set out in Part 3 Division 1 of the Defamation Act): Lehrmann at [21].

23    Sixthly, if the court is satisfied that the applicant has established that it is just and reasonable, then it may extend the limitation period. There remains a discretion as to the length of the extension, but as has been mentioned it may not exceed three years from the date of the defamatory publication: see s 5(1AA) of the Limitation Act.

BACKGROUND

24    In order to assess whether it is just and reasonable for the action to proceed in relation to the February 2023 Article it is necessary to understand the factual background to the proceeding and why the applicant did not issue proceedings before the expiry of the limitation period. In this regard it is to be noted that the parties have agreed a statement of facts pursuant to s 191 of the Evidence Act 1995 (Cth). That statement of facts is in the following terms.

1.    By 8 October 2022, Albert Dadon was aware of his rights under defamation law (reflected in his email to Natalia Ko putting her “on notice that should you defame me or my companies I will be taking legal steps to refrain you and claim damages and any legal cost” on page 40 of Annexure JMG-1), in that he was aware he had rights to sue for defamation without necessarily knowing the legal steps involved, elements of the cause of action, or any other details associated with the prosecution of such an action.

2.    On 26 March 2023, Albert Dadon sought Jane Good’s advice about whether he had any rights in defamation in relation to the February Article (reflected in the email on page 67 of Annexure JMG-1 including the subject line “this is defamation”).

3.    On 26 March 2023, Albert Dadon sent to Jane Good a draft email that he requested be sent to the journalist who published the February Article referring to legal action to protect his reputation, which was a reference to defamation proceedings (reflected in paragraph [21] of the affidavit of Jane Good sworn on 7 March 2025). Jane Good did not send the email to the journalist.

4.    On 28 March 2023, Jane Good sent a Concerns Notice pursuant to the Defamation Act 2005 (Vic) to Google LLC (reflected in the letter at pages 69-73 of Annexure JMG-1).

5.    In April 2023, Harmers Workplace Lawyers informed Jane Good that they did not disclose any information or documents relating to Natalia Ko's Fair Work proceeding against Birds Basement Pty Ltd and Albert Dadon to the Australian Financial Review.

6.    On or before 7 July 2023, Jane Good advised Albert Dadon "that there was a real risk in jeopardising the defence of the Ko Proceeding … by instituting defamation proceedings" (as recorded at paragraphs [68] and [69] of the affidavit of Jane Good sworn on 7 March 2025).

7.    The advice conveyed to Mr Dadon (reflected in paragraphs [66] and [67] of the affidavit of Jane Good sworn on 7 March 2025) was given on or before 7 July 2023.

8.    Albert Dadon’s instruction after receiving advice on or about 7 July 2023, was to continue to investigate the defamation claim against the Australian Financial Review.

25    To these facts may be added a more detailed narrative which, although intersecting at various points with the agreed statement of facts, is helpful to understand the broader picture. This further summary of the underlying facts is derived largely from the summary of relevant matters in the respondent’s submissions, supplemented as appropriate with material from the applicant’s summary in his submissions. It is based substantially on Ms Good’s affidavits, together with certain documents produced by the applicant in response to a notice to produce dated 14 March 2025 and which were tendered by the respondent at the hearing.

26    On 15 February 2023, Ms Natalia Ko commenced and served civil proceedings in the Federal Circuit and Family Court of Australia (Division 2) (FCFCoA) against the applicant and one of his businesses relating to claims under the Fair Work Act 2009 (Cth) (Civil Penalty Proceeding).

27    The allegations in the Civil Penalty Proceeding were very serious. They included that the applicant had intimidated employees and condoned harassment, sexual harassment and bullying in a business which he owned. The relief sought in the Civil Penalty Proceeding included the imposition of pecuniary penalties against the applicant personally, in addition to damages and compensation, as well as declarations that he himself had taken adverse action and engaged in discrimination against Ms Ko. In effect it called for findings to be made about the applicant’s personal conduct in the workplace.

28    On 16 February 2023 Mr Marin-Guzman (the author of the February 2023 Article) became aware of the Civil Penalty Proceeding by reason of searches he conducted on the FCFCoA online system. He sought from the FCFCoA and obtained on the same day the applications filed in the Civil Penalty Proceeding.

29    On 17 February 2023, the respondent published the February 2023 Article in the AFR.

30    On 26 March 2023 (5 weeks after its publication) the applicant became aware of the February 2023 Article. He sent a series of emails to Ms Good on the same day seeking advice and asking her to take action.

31    In broad terms, the applicant’s complaint about the imputations arising from the February 2023 Article (and the later June 2024 Article) is that both improperly impute to him conduct which was raised as mere allegations in the Civil Penalty Proceeding and fail to report his responses to those serious allegations.

32    On 27 March 2023, Mr Terence O’Brien, a solicitor then at the firm retained by the applicant made enquiries with the Federal Court to understand how the respondent had obtained the applications in the Civil Penalty Proceeding, but could not find evidence of the respondent’s contact with the Court. It would seem that the applicant’s solicitors assumed that the respondent may have been alerted to the Civil Penalty Proceeding by Ms Ko’s solicitors for the perceived purpose of applying pressure on the applicant and his business to make an offer of settlement.

33    On 28 March 2023 (2 days after becoming aware of the February 2023 Article), the applicant served a concerns notice on Google LLC (Google) in which he threatened to sue Google for defamation by reason of its publishing a link to the February Article (Google Concerns Notice). The applicant alleged that the February 2023 Article was both defamatory and based on information procured in breach of the relevant court rules. The applicant’s allegation that the respondent accessed the applications in the Civil Penalty Proceeding in breach of the court rules was false.

34    On 30 March 2023, Google responded to the Google Concerns Notice and declined to remove the listing to the February 2023 Article. It provided the details of the AFR website and suggested the applicant liaise with the respondent directly to remove the February 2023 Article.

35    On 31 March 2023 (a week after becoming aware of the February 2023 Article), the applicant forwarded to Ms Good his email exchange with Mr Tony Walker, a contact of his who formerly worked at the AFR. Mr Walker had informed the applicant that “At the very least you can ask the AFR to take item down [sic]”.

36    On 31 March 2023, the applicant filed his Response in the Civil Penalty Proceeding.

37    In April 2023 (within a month or so of becoming aware of the February 2023 Article), the applicant continued to seek advice from Ms Good as to whether he had a claim in defamation in relation to the February 2023 Article. Ms Good says that in providing advice she was “conscious of also considering whether the AFR may have defences available to it which would render any defamation proceeding unlikely to succeed”.

38    On 14 April 2023 (almost three weeks after becoming aware of the February 2023 Article), Ms Good wrote to the applicant and confirmed that she had spoken to Ms Ko’s solicitors who had confirmed that they “did not leak …the story” to the AFR. She wrote to the applicant: “I simply do not believe them”.

39    On 20 June 2023 (almost 3 months after the applicant became aware of the February 2023 Article), he forwarded Ms Good an email in which he wrote: “Dear Jane, please see below. We will chat tomorrow”. The applicant attached an email he had received from a Mr Andrew Landeryou (another contact) who relevantly stated that:

I don’t agree with your solicitor that it’s best to leave a defamatory article in place and uncorrected because that might help with another court case. I think the lawyer ought to write to them very politely and firmly and make it clear that appropriate edits should be made…

In terms of its adverse implications more generally, I think so long as corrections are made, there’s no issue.

40    It may be observed that there is a suggestion in this email that Mr Landeryou had been informed that Ms Good had advised that she was reluctant to take action in respect of the February 2023 Article.

41    On 28 June 2023 (approximately 3 months after the applicant became aware of the February 2023 Article), Ms Good informed Mr O’Brien that the applicant wanted the February 2023 Article taken down, and that he wanted to sue both Google and the AFR.

42    On 3 July 2023, Ms Good emailed the applicant and:

(a)    noted his current instructions to commence proceedings against Google, confirming that she would provide him with a costs estimate; and

(b)    attached a draft concerns notice to send to the AFR for his consideration, saying:

Please give me a call to discuss any amendments you would like to make to the concerns notice to the AFR. As you know we are reluctant to “poke the bear” as there has been no traction but note your reasons for pursuing this.

(Emphasis added.)

43    Ms Good’s evidence in cross examination by way of explanation of what she meant by her reference to being reluctant to “poke the bear” as there has been no traction, was as follows:

Well, I – I am always concerned that – I was always concerned that by issuing a concerns notice that we would have – that it would poke, or we would have retaliatory action. We couldn’t control the narrative of what AFR, that already published, you know, an article. And I was concerned that there would be further articles published if we send a concerns notice through to AFR.

44    On or about 6 July 2023 (almost five months into the one-year limitation period), the applicant briefed junior counsel experienced in defamation and media litigation to:

(a)    settle a concerns notice to the AFR;

(b)    review the concerns notice sent to Google and advise whether it is satisfactory for the purposes of commencing defamation proceedings against Google; and

(c)    draft initiating court documents to commence proceedings against Google and the AFR.

45    Late on 6 July 2023, Ms Good emailed the applicant and informed him of counsel’s preliminary thoughts (Preliminary Advice). Counsel was unavailable to begin work until 20 July 2023. A significant aspect of counsel’s Preliminary Advice, as Ms Good recorded in her email to the applicant, was as follows:

13. As also discussed [the barrister] warned of the “Craig McLaughlin Effect” or Oscar Wilde effect or Barbara Streisand effect in which media companies can subpoena unrelated historical witnesses against you - including former employees who have an axe to grind – to give similar fact evidence in support of a truth defence, for instance to say that something similar happened to them. In these situations the Plaintiff can become the one on trial as the Defendant media agency tries to discredit the plaintiff by relying on alleged past conduct to support the likelihood that the conduct complained of in the article is not true. Whilst we are not aware of specific employees who could fall within this category, we have seen how the entire [Civil Penalty Proceeding] is based on lies about what was said and when it was said therefore if former employees are sufficiently motivated to discredit you, the AFR may provide them a forum by calling them as witnesses;

14. there is a risk of inconsistent findings between the case in the [FCFCoA] and the defamation case because each case focusses on different points of proof. You could be found to have not terminated Natalia Ko for a protected reason in the [FCFCoA] case, however, in the defamation case which is looking at the situation at the time of the printing of the defamatory article on 17 February 2023, if a truth defence is successful in the defamation proceeding it could lead to a judgment where the AFR’s reporting is vindicated as substantially true because it refers to the state of events at 17 February 2023 in determining the truth of the article.

46    On 7 July 2023:

(a)    the applicant emailed Ms Good and confirmed she should continue to brief the barrister and wait for her to become available; and

(b)    the applicant filed his defence in the Civil Penalty Proceeding.

47    Ms Good deposes that from about 7 July 2023, she and the applicant decided to concentrate on the Civil Penalty Proceeding, notwithstanding that counsel had been instructed to prepare a concerns notice and draft defamation pleadings against the AFR.

48    On 24 July 2023 (approximately five months into the limitation period), counsel emailed Ms Good and provided an amended draft concerns notice, and her considered advice based on the materials in the brief (Second Advice). In summary, counsel advised that:

(a)    the “guilt imputations [were] arguable (just) but unlikely to be found by the Court to be conveyed”;

(b)    the “reasonable suspicion” imputations were likely to be conveyed, but that her preliminary view was that a defence under s 28 of the Defamation Act (publication of public documents) had good prospects of success, and the issue of whether the journalist duly obtained material about the Civil Penalty Proceeding “may be” a “technical point”; and, finally,

(c)    it seemed to her that the imputations relating to the specific conduct in relation to Ms Ko might be defensible on the basis of truth.

49    Ms Good deposes that on 26 July 2023 (approximately five months into the limitation period), she spoke to Mr Alan Howe, a former editor of the Herald Sun. Ms Good deposes that Mr Howe told her that:

(a)    if the applicant sent a concerns notice and subsequently issued proceedings, the AFR would undertake a campaign against the applicant by approaching Ms Ko and finding other employees with an “axe to grind” and would try to discredit the applicant by relying on alleged past conduct (essentially that the truth defence canvassed in the Second Advice would be pursued); and

(b)    the AFR would publish articles which would further damage and exacerbate the damage to the applicant’s reputation and strongly discouraged action being taken against Fairfax as it would result in retaliatory action.

50    The respondent would appear to be correct in observing that there is no evidence that the applicant sought legal advice on this issue from counsel he had retained (or any issue at all after the Second Advice). Equally, however, it may be observed that Mr Howe’s advice is in the same dimension as that given by Ms Good in her 3 July 2023 email to the applicant and explained further in cross examination on this application: that is, don’t “poke the bear”.

51    On 26 July 2023, a Ms Chiu of Clothier Anderson (immigration lawyers) emailed Mr Simon Barr of the applicant’s company noting that the Civil Penalty Proceeding referred to in the February 2023 Article would be characterised as “adverse information” which should be declared in the sponsorship and nomination application for a possible employee (Chiu Email).

52    On 27 July 2023, the applicant emailed Ms Good about the Chiu Email and instructed her to “explain to these lawyers that this is a defamation and is being dealt with by the courts. Therefore it is not what they are saying”. It will be apparent, of course, that at this stage, defamation proceedings had not been commenced.

53    On 31 July 2023 (just over five months after the publication of the February 2023 Article), the applicant instructed Ms Good that he wanted to have a “range of opinions” and to contact Mr Justin Quill to see if he could act in the matter. Mr Quill responded on same day and said that he had a conflict and could not act, but suggested the name of senior counsel experienced in defamation for a second opinion. The respondent would appear to be correct in submitting that there is no evidence that that person, or anyone else, was contacted before the expiry of the limitation period for a second opinion.

54    Ms Good deposes that she advised the applicant about the adverse consequences on the Civil Penalty Proceeding if he was required to commence defamation proceedings to preserve the limitation period. Ms Good does not say in any of her affidavits when she gave the applicant this advice, but she appeared to accept in cross examination, consistently with agreed facts
No 6 and No 7, that it would have been on or before 7 July 2023. Ms Good deposes that she conveyed to the applicant that instituting defamation proceedings would:

(a)    expose him to being targeted by Ms Ko’s solicitors as part of their strategy to engage with the media to put collateral pressure on a respondent in a legal proceeding and that such a strategy would receive a willing ear from a media organisation which the applicant was separately suing;

(b)    in accordance with the advice from both Mr Howe and counsel, result in the respondent retaliating by starting a campaign which involved running damaging articles about the applicant;

(c)    place the applicant at risk of the “Craig McLachlan effect” in which media companies subpoena historical witnesses, unrelated to the incident which the defamatory material arises from, including disaffected former employees, to file similar fact evidence to support a truth defence in a defamation proceeding;

(d)    give rise to a risk of inconsistent findings between the Civil Penalty Proceeding and the defamation proceeding because they would each use different standards of proof; and

(e)    create a substantial forensic risk that running concurrent proceedings would substantially disadvantage the applicant’s defence in the Civil Penalty Proceeding.

55    Ms Good deposes that the applicant accepted her advice, although her evidence is silent about exactly when he did so. In cross examination Mr Good accepted that her affidavit evidence concerning her advice to the applicant around 7 July 2023 as described in the above paragraph could not have been correct insofar as it conveyed Mr Howe’s advice to the applicant, as she did not speak to Mr Howe until 26 July 2023.

56    From January to March 2024 Ms Good was unwell and hospitalised, but the Civil Penalty Proceeding was progressed by Mr O’Brien and separate counsel retained in that matter.

57    On 17 February 2024, the one-year limitation period for the February 2023 Article expired.

58    It is not clear whether the applicant was advised by his solicitors or counsel that defamation proceedings must be commenced within one year of the relevant publication. Ms Good deposes that she cannot locate a written note or record of having given such advice to the applicant. She also deposes that she cannot recall informing the applicant that a decision to not commence a defamation proceeding against the respondent could mean that he would not be commencing the defamation proceeding within the one year limitation period, and that he would require an extension of time to file such a proceeding. Ms Good’s position is that at the time she discussed the advice of counsel with the applicant, her focus was on the Civil Penalty Proceeding.

59    On 2 May 2024, the applicant’s solicitors wrote to Meta Platforms Inc and asked that material published in a “doxxing attack” by an “activist” third party regarding the applicant (amongst 600 others) be removed from Instagram (Meta Request).

60    On 14 June 2024, a notice of discontinuance was filed by Ms Ko in the Civil Penalty Proceeding.

61    On 19 June 2024 (16 months after publication of the February 2023 Article, four months after the expiry of the limitation period, and five days after the discontinuance of the Civil Penalty Proceeding), the applicant’s solicitors served the respondent with a concerns notice on behalf of the applicant (First Concerns Notice).

62    On 20 June 2024, the respondent informed the applicant’s solicitors that the applicant’s defamation claim was out of time, that the imputations were not conveyed, and that, without any admission of liability, a clarification had been inserted into the February 2023 Article (that is to say the respondent published the June 2024 Article).

63    On 3 July 2024, the applicant’s solicitors complained to the respondent about the clarification and requested a different form of words and placement. There is some suggestion made by the respondent that it cannot move the clarification by reason of the technology employed in making it.

64    The applicant’s further complaint about the June 2024 Article is that, in recording simply that the Civil Penalty Proceeding was discontinued, the June 2024 Article fails to make clear that the applicant unilaterally withdrew her claims.

65    On 17 July 2024, the First Concerns Notice expired.

66    On 31 July 2024, the applicant’s solicitors sent a second concerns notice which addressed the limitation period (Second Concerns Notice). The Second Concerns Notice demanded a response within 48 hours.

67    That same day the respondent informed the applicant’s solicitors that the 48 hour deadline was arbitrary, unreasonable, and contrary to the “applicable period” (being 28 days) within the meaning of s 14 of the Defamation Act.

68    On 1 August 2024, the applicant’s solicitors extended the deadline to 16 August 2024.

69    On 14 August 2024, Ms Good sought advice from newly briefed junior counsel "about seeking advice from a silk on possible action to be taken against the AFR by [the applicant]". On 15 August 2024 this new barrister provided Ms Good with his recommendations.

70    On 28 August 2024, the Second Concerns Notice expired. The respondent rejected the offer.

71    On 17 September 2024, Meta complied with the Meta Request (on a non-admission basis).

72    In September 2024, counsel now retained advised that the draft statement of claim should be settled by senior counsel.

73    On 11 November 2024 (about three months after the new barrister provided recommendations to Ms Good, and about two months after he had identified that it was desirable to do so) the applicant briefed senior counsel.

74    As has been mentioned, about a month later, on 9 December 2024, the applicant commenced proceedings against the respondent in relation to the February 2023 Article and the June 2024 Article.

IS IT JUST AND REASONABLE TO ALLOW THE ACTION TO PROCEED?

The applicant’s position

75    The applicant maintains that his approach to the litigation has been measured, sensible, reasonable, and (understood in its proper context) very prompt. He submits that as soon as he became aware of the February 2023 Article, which continues to cause significant harm to him, he quickly sought advice from his long standing solicitor Ms Good about how to respond. In particular he says (although the respondent disputes this characterisation of what occurred) that he received advice that there was a real risk, given the timing of the publication of the February 2023 Article, the involvement of Ms Ko’s solicitors, and the manner in which the allegations made in the Civil Penalty Proceeding had been reported, that issuing defamation proceedings would exacerbate the damage to his reputation.

76    The applicant submits that he relied on advice he received from experienced defamation counsel in July 2023, and also from a former editor of the Herald Sun (Mr Howe) in July 2023, that there was a real risk that embarking on defamation proceedings would:

(a)    exacerbate the reputational damage caused by the February 2023 Article in that defences relied upon by the respondent may well seek to dredge up unrelated incidents and material from the past to support a truth defence;

(b)    create a risk that there would be inconsistent findings between the Civil Penalty Proceeding and any defamation proceeding given the different standards of proof utilised in each proceeding (or “points of proof” to quote more accurately from the Preliminary Advice from counsel); and

(c)    cause the respondent to embark on a campaign against him which would further harm his reputation and jeopardise his defence in the Civil Penalty Proceeding.

77    It is the applicant’s position that his reluctance to issue proceedings within the 12 months following publication was principally due to the advice he was receiving to deal with the Civil Penalty Proceeding, which made such serious allegations about him personally, first. The applicant submits that this advice highlighted the very issues referred to by Lee J in Lehrmann (at [26]), and the Full Court in Joukhador (at [39], and [56]).

78    Properly considered, the applicant submits, the “ordinary position” as described in Lehrmann and Joukhador relating to criminal proceedings remains apposite to the present circumstances because there is little difference to the seriousness of the allegations made against him or the personal (emotional and financial) impact of the penalties sought to be imposed upon him. Why, the applicant submits, should an individual be compelled to conduct two pieces of serious litigation which concern the same facts at once where an adverse outcome in the first could have serious consequences and other repercussions for the second? The applicant submits that success in the Civil Penalty Proceeding would have caused a sensible media organisation, informed of that fact, to take the offending article down. For these reasons the applicant submits that the allegations in the Civil Penalty Proceeding are readily comparable to criminal charges or disciplinary proceedings. He submits therefore that it was reasonable in the circumstances for him to concentrate his efforts on defending the Civil Penalty Proceeding allegations as a priority, and not take steps which could risk a successful defence, at the cost of commencing defamation proceedings in relation to the February 2023 Article within 12 months from the date of publication.

79    The applicant submits also that he made multiple attempts to resolve the issues in the proceeding with the respondent by way of correspondence and offers of compromise (although of course this was after the one year limitation period had run and the Civil Penalty Proceeding had been withdrawn).

80    The applicant submits that the publication of the February 2023 Article and the June 2024 Article continue to cause him serious reputational harm, some of which is described in Ms Good’s evidence. He submits that in these circumstances it would be neither just nor reasonable to deny him the ability to pursue an action against the respondent based solely on a ten month delay in commencing proceedings and absent very clear evidence of some form of prejudice suffered by the respondent as a result of this delay. In this regard the applicant submits that there is no basis upon which to suggest that the relevant evidence is likely to be unavailable to the respondent, or less cogent, than if the action had been brought within the limitation period.

81    Further, it is the applicant’s position that the June 2024 Article is not time-barred, and that in these circumstances the respondent would have to mount a defence in any event. The applicant submits that it is just and reasonable, given the justiciable issues potentially raised in the June 2024 Article and the fact that the February 2023 Article caused the initial harm to the applicant’s reputation, that he be permitted to seek redress for that damage.

The respondent’s position

82    The respondent contends that it would not be just and reasonable to extend the limitation period. It points to the applicant’s delay before commencing the proceedings, the lack of any overlap with criminal proceedings as in Lehrmann and Joukhador, and the applicant’s failure to act promptly to resolve the dispute. The respondent makes the point that it was not even advised of the applicant’s complaint about the February 2023 Article until it received the First Concerns Notice. This was some 16 months after the February 2023 Article had been published and four months after the limitation period had expired. The respondent submits, referring to the terms of s 23B(3)(b) of the Limitation Act, that by 26 March 2023 all the facts relevant to the cause of action were known to the applicant. That is, five weeks after the commencement of the limitation period commenced to run.

83    The respondent also submits that whatever advice the applicant received as to any perceived forensic advantage in delaying the commencement of a proceeding in defamation during the pendency of the Civil Penalty Proceeding was incorrect and speculative, and could not provide a proper basis for extending the limitation period. The respondent refers in this regard to Pro-Teeth Whitening (Aust) Pty Ltd v Commonwealth [2014] QSC 107 at [19]-[22] (Mullins J). The respondent maintains that the applicant appears to have been indifferent to the limitation period, or perhaps disregarded it altogether in circumstances where the advice from counsel in the Second Advice was that his prospects were, in substance, poor.

84    The respondent submits that, properly understood, the only advice the applicant had by 7 July 2023 was the advice in the Preliminary Advice from counsel, and that this did not contain advice in terms that defamation proceedings should not be commenced until after the Civil Penalty Proceeding had been resolved. The respondent maintains that, in reality, there was no advice to the applicant not to commence defamation proceedings until the Civil Penalty Proceeding was resolved, and that all he has done is exercise a forensic choice to delay commencing such proceedings while defending another civil proceeding.

85    Insofar as the lack of any overlap with criminal proceedings is concerned, it is the respondent’s position that the present circumstances are readily distinguishable from criminal proceedings where a person’s liberty is at risk and the right to silence may be compromised by the issuing of defamation proceedings. The stress an applicant might experience in these circumstances is not comparable, the respondent submits, to whatever stress may have been suffered by the applicant in circumstances where he was confronted by the Civil Penalty Proceeding.

86    The respondent also submits that the applicant’s claim is weak, and that it is objectively unlikely that he will be able to prove serious harm.

87    For all these reasons the respondent submits that the circumstances of this case do not provide a proper basis to depart from the default position that an action in defamation must not be brought after one year from the date of the publication complained of.

Determination

88    When all the relevant circumstances are weighed in the balance, I have come to the view that it would be just and reasonable to extend the limitation period with respect to the February 2023 Article.

89    As the Victorian Court of Appeal observed in Hardie v The Herald and Weekly Times Pty Ltd (No 2) [2016] VSCA 130 at [17] (Ashley, Tate and Beach JJA), the law of defamation is one of the more complex areas of law with which an individual might have to engage (see also, in this vein, Bauer Media Pty Ltd v Wilson (No 3) [2018] VSCA 164 at [12] (Tate, Beach and Ashley JJA)). In the present case the applicant was actively contesting the Civil Penalty Proceeding when the respondent published the February 2023 Article. The Civil Penalty Proceeding involved serious allegations against the applicant personally, including that he had condoned sexual harassment, and it sought the imposition of civil penalties on him. The evidence discloses that the applicant took advice in relation to the February 2023 Article from Ms Good (and others).The applicant ultimately, for reasons that cannot fairly be criticised, appears to have accepted that the better course was to focus his attention on the Civil Penalty Proceeding and not “poke the bear” (to use Ms Good’s language in her email to the applicant of 3 July 2023) and commence a second front by instituting defamation proceedings against the respondent. I accept that the applicant had received this advice from Ms Good by 3 July 2023 in her email to him of that date, if not before then. Mr Landeryou’s email of 20 June 2023 suggests that Ms Good may have given advice to a similar effect in June, or even earlier.

90    Insofar as the respondent submits that the Preliminary Advice from counsel did not advise that the commencement of defamation proceedings should await the finalisation of the Civil Penalty Proceeding, I would not read that advice so narrowly and definitively. Ms Good’s email to the applicant of 6 July 2023, which recounted the Preliminary Advice, identified the risks attendant on commencing a defamation proceeding while simultaneously defending a Civil Penalty Proceeding. This advice, in certain respects, might fairly be said to be a more developed version of the advice Ms Good had given the applicant on 3 July 2023 when she said that she was “reluctant to poke the bear”. Subsequent advice, as well as the apparently unsuccessful attempt by the applicant to obtain a second opinion, did not alter the burden of that advice.

91    Having regard to the circumstances in which the applicant found himself after the publication of the February 2023 Article, and the fact that he is a small business person who can be presumed not to have unlimited means, the course that he took in the face of this advice from Ms Good (and others) was, objectively, a reasonable one. Once the Civil Penalty Proceeding had been discontinued, no doubt emboldened by his success on that front, the applicant took up the cudgels against the respondent with respect to the February 2023 Article. He did so within a matter of days. Although the proceeding against the respondent was not then commenced for some months, I am satisfied that this was not unreasonable having regard in particular to the back and forth that occurred between the parties during this period.

92    Although the respondent is correct to submit that Parliament has determined that a one year limitation period is to apply for actions in defamation (reflecting the importance placed by the legislature upon parties to defamation proceedings engaging in prompt and early resolution), this is not, so to speak, a drop dead rule. The statutory regime contemplates that this period can be extended in certain circumstances. I consider that when one stands back and looks objectively at the applicant’s conduct, informed by advice from a number of quarters, he had good reason to delay commencing an action in defamation against the respondent. He did not delay doing so for an unreasonable period of time once the Civil Penalty Proceeding had been withdrawn. I accept that it was reasonable for him to have delayed in circumstances where the Civil Penalty Proceeding concerned the same facts as the contemplated defamation action, and where an adverse outcome in the Civil Penalty Proceeding could have had serious consequences for the defamation proceeding. Insofar as the respondent submits that it is not just and reasonable to extend time for “speculative considerations of expedience”, I do not accept that this characterisation of what occurred is a fair one in all the circumstances.

93    Even though the Civil Penalty Proceeding was not a criminal proceeding and the applicant was therefore not facing criminal charges (as to which see Lehrmann and Joukhador), it was still a very serious matter for him to be confronted with. In this sense the observations made by the Full Court in Joukhador at [55]-[57] are not irrelevant. I do not accept the respondent’s submission that, to the extent that there would have been any overlap between the defamation proceeding and the Civil Penalty Proceeding, that overlap would have been insignificant. In a practical sense, from the applicant’s viewpoint, there was an overlap. Nor do I accept the respondent’s submission that it is not apparent that conducting two proceedings would have imposed a strain on the applicant. Notwithstanding his strenuous defence of the Civil Penalty Proceeding, and his engagement about that with Ms Ko at various times, it is axiomatic that litigation of this kind takes its toll, particularly on individuals. It was, in these circumstances, not unreasonable for the applicant to delay the commencement of the defamation proceeding to prioritise the defence of the Civil Penalty Proceeding.

94    Insofar as the respondent is critical of the advice the applicant received as incorrect and speculative, I do not consider that the respondent’s criticisms of this advice much affects matters. I am prepared to accept that the applicant took the advice that he had received not to fight on two fronts. This was a reasonable approach to adopt in all the circumstances, whether or not he was advised that there was a one year limitation period for commencement of the prospective defamation proceeding.

95    As to the respondent’s submission that the applicant’s case is weak, and that it is unlikely he will be able to prove that he suffered or was likely to suffer serious harm to his reputation as a result of the articles, I consider that it is difficult to form a definitive view about this at the present stage of the litigation. This is particularly so having regard to the fact that the respondent has not yet filed a defence, and the mass media publication of the two articles (see generally, in relation to serious harm, Peros v Nationwide News Pty Ltd (No 3) [2024] QSC 192 at [81] (Applegarth J) (Peros); Deeming v Pesutto (No 3) [2024] FCA 1430 at [524]-[525] (O’Callaghan J); Mond v The Age Company Pty Ltd [2025] FCA 442 at [370]-[371] and [409]-[412] (Wheelahan J)).

96    Turning finally to the issue of prejudice to the respondent, it is of course well established that there is a presumption of prejudice in favour of a respondent in these situations. Even absent specific prejudice there is no principle which compels an exercise of discretion to extend the limitation period in favour of an applicant: see Griffiths v Nillumbik Shire Council [2022] VSCA 212 at [111] (Beach JA, Keogh and J Forrest AJJA). Nonetheless, the respondent has not suggested that relevant evidence is likely to be unavailable or less cogent than if the action had been brought within the one year limitation period (to use the statutory language). Nor has the respondent identified some other form of actual prejudice it may face in defending the applicant’s claims. This is an important consideration in determining whether the limitation period should be extended.

97    Having regard to all of these matters I am satisfied that it is just and reasonable to extend the limitation period to 9 December 2024. There will, accordingly, be an order to this effect.

IS THE JUNE 2024 ARTICLE SUBSTANTIALLY THE SAME?

98    The respondent also advances the argument, relying on s 5A(1)-(2) of the Limitation Act and the introduction of the single publication rule in the limitation regime for defamation, that the June 2024 Article is “substantially the same” as the February 2023 Article. The respondent says that the only difference between the two articles is the clarification inserted into the June 2024 Article. The applicant’s position is that the June 2024 Article is a wholly new publication because it carries different meanings. The respondent disputes this analysis, referring to the observations of Applegarth J in Peros at [47]-[49] in relation to the construction of s 10A of the Defamation Act.

99    Having regard to my conclusion that it would be just and reasonable to extend the limitation period in relation to the February 2023 Article, it may be that this issue of substantial similarity in relation to the June 2024 Article recedes in significance in this proceeding. Nonetheless, I accept the applicant’s submission that, if this remains an issue, it should not be taken further until the respondent files a defence. The parties will be directed to consult and provide an agreed minute of orders, or competing minutes, timetabling the further conduct of the proceeding. If there is no agreement the matter will be listed for case management hearing at the first available date.

COSTS

100    The applicant sought his costs of and incidental to this application if he was to be successful. The respondent’s position in the event of success by the applicant was that as the applicant was seeking the court’s indulgence, there should be no order as to costs.

101    I do not consider that it is correct to characterise the application pursuant to s 23B of the Limitation Act as seeking an indulgence. Under the Limitation Act the one year limitation period can be extended to a period of up to three years if an applicant can satisfy the court that it is just and reasonable to allow the action to proceed. This is all that has happened here. It is appropriate therefore that costs should follow the event. The applicant should have his costs of and incidental to this application, to be agreed or assessed.

Associate:

Dated:    6 August 2025