In the recent decision of Lakaev v Denny [2010] NSWSC 1480, the Supreme Court of New South Wales held that a plaintiff had not discharged the burden of proving that it was not reasonable for her to have commenced proceedings within the statutory one-year limitation period for defamation.
The Limitation Act 1969 (NSW) prescribes a one-year limitation period for actions in defamation running from the date of publication of the defamatory material (s.14B). That period can be extended by a period of up to three years, from the date of publication, under section 56A of the Act if the court is satisfied that:
“… it was not reasonable in the circumstances for the plaintiff to have commenced an action … within 1 year from the date of publication.”
In this important decision, the plaintiff sought damages for three separate actionable defamations which were identified in a statement of claim dated 3 March 2010, publication of which occurred on dates between 16 March 2007 and 6 December 2007. The limitation period for the last actionable defamation expired on 6 December 2008. Publication was anonymous, initially by email then later on websites and blogs, and alleged to impute that the plaintiff was the leader of a cult under the guise of conducting a personal development business.
The plaintiff submitted that she was without evidence to initiate proceedings within the 12-month limitation period, and before March 2010, because, amongst other things:
- The material was published anonymously
- Orders under preliminary discovery allowing her to ascertain the defendants’ identities were only obtained in April 2009
- Preliminary discovery had been a time-consuming exercise
Although the defendants accepted the plaintiff was not aware of their identities at the date of publication, they submitted in reply that she:
- Took no steps within the 12-month period to ascertain their identities
- Did not engage the preliminary discovery process until after the expiration of the limitation period and not until February 2009, despite having instructed solicitors in relation to that process in February 2008
- Was aware that a one-year limitation period attached to defamation actions
- Instead engaged in an alternate strategy of retaliatory blogging
Decision
Having found that s.56A imposed a statutory onus of proof on the plaintiff to establish that it was not reasonable in the particular circumstances to have commenced proceedings within 12 months of the date of publication, the court went on to hold that, having regard to both parties’ evidence, the plaintiff had not discharged that burden. Accordingly, it dismissed her application, the result being that the plaintiff’s action in defamation against the defendants was statute-barred.
Comment
This case illustrates the burden of proof facing defamation plaintiffs seeking an extension of the limitation period, even in cases where preliminary discovery proceedings had been required as the defendants’ identities had been unknown to the plaintiff. It further demonstrates how, in certain circumstances, those defending defamation actions, and their insurers, may successfully resist an application for an extension of time to commence proceedings.