In the world of defamation law, time is of the essence.
In Western Australia, as well as other Australian states, the limitation period for bringing a defamation case is one year from the date of publication.
This truncated period was first introduced as part of a suite of amendments to promote the resolution of defamation proceedings in a timely manner and to encourage non-litigious methods of resolving disputes.
This blog post discusses the various factors and actions potential claimants should consider during the one-year limitation period before deciding whether to pursue a defamation case.
Key considerations during the Limitation Period (also serves as a checklist for potential plaintiffs)
1. Reflect and consider maturely whether the proposed litigation can be resolved without litigation: As noted in the case of Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385, the one-year limitation period allows potential claimants time to reflect and consider whether the dispute can be resolved without resorting to legal action. Initiating a defamation lawsuit can be costly and time-consuming, so it is important to explore alternative dispute resolution methods, such as mediation or issuing a concerns notice to the publisher, as provided under Pt 3 Div 1 of the Defamation Act.
2. Consider whether the cost of litigation would be proportionate to the extent of perceived damage: Before pursuing a defamation case, claimants should weigh the costs of litigation against the potential recovery and the extent of the perceived damage. It is important to ensure that the costs of the lawsuit are not disproportionate to the potential outcome.
3. Conduct necessary enquiries as to the identity of the respondent or respondents: Identifying the correct respondent(s) is crucial in a defamation case. The one-year limitation period provides potential claimants with time to conduct necessary enquiries to accurately identify the parties responsible for the publication of the alleged defamatory material.
4. Assess the availability of sufficient material to support the claim: To succeed in a defamation case, a claimant must have sufficient evidence to support their allegations. The one-year limitation period allows claimants to gather the necessary material to establish their case.
5. Reflect on the potential impact of litigation on personal and financial well-being: Pursuing a defamation lawsuit can be a life-changing decision that may bring stress and potential adverse financial consequences. Claimants should take the time during the limitation period to consider the possible ramifications of litigation on their personal and financial well-being.
No Obligation to Commence Proceedings at the First Opportunity
In the Lehrmann case, it was held that the claimant does not have a positive obligation to commence proceedings at the first possible opportunity or in one period over another within the time set by the legislature.
The statutory task is holistic, requiring an evaluation of all relevant facts or "the circumstances" that existed within one year of the date of the publication.
As emphasized by Chesterman JA in Noonan v McLennan, a claimant does not have to account for every day or week in the limitation year, but rather must satisfy the court that it was not reasonable in the circumstances to have commenced an action within the limitation period.
Considering the Whole of the Circumstances
It is essential to recognize that while the fact that it may have been reasonable to commence proceedings for a significant period within the limitation period is material and could be determinative, the existence of this fact alone is not necessarily fatal.
As stated in Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385 at [24], the courts will consider the whole of the circumstances when evaluating the reasonableness of commencing proceedings.
For instance, an unexpected and catastrophic event occurring towards the end of the limitation period might make it unreasonable for a claimant to commence proceedings for the first time.
In such cases, if the court's consideration of the whole of the circumstances leads them to conclude that the claimant did not commence proceedings due to the unanticipated event, the statutory test may still be satisfied.
Thus, it is crucial for potential claimants to be aware that the courts will take a holistic approach when assessing the reasonableness of commencing proceedings within the one-year limitation period.