S 
IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Defamation List		

Case No. CI-23-04265

NURUL KHAN (also known as Manik, formerly known as MohammAd Nurul Islam Khan) 	Plaintiff	
		
V		
		
MOHAMMAD MAHBUBUL HASSAN 	Defendant	

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JUDGE:	HER HONOUR JUDGE CLAYTON  	
WHERE HELD:	Melbourne	
DATE OF HEARING:	3 October 2023 	
DATE OF RULING:	7 December 2023	
CASE MAY BE CITED AS:	Khan v Hassan (Ruling No 3) 	
MEDIUM NEUTRAL CITATION:	[2023] VCC 2243		

RULING
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Subject:	DEFAMATION – CIVIL PROCEDURE 

Catchwords: 	Concerns notice procedure – application to bring proceedings pursuant to s23 of the Defamation Act nunc pro tunc – whether proceedings can be brought nunc pro tunc – whether leave can be granted pursuant to s23 of the Defamation Act –  application for extension of time –  whether it is just and reasonable to extend limitation period 

Legislation Cited:	Defamation Act 2005 (Vic); Limitations of Actions Act 1958 (Vic) 

Cases Cited:	Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 
Carey v Australian Broadcasting Corporation (2010) 77 NSWLR 136 
Carey v Australian Broadcasting Corporation (2012) 290 ALR 348  
Emanuele & Anor v Australian Securities Commission & Ors (1997) 188 CLR 114
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Hashtroodi v Hancock [2004] 1 WLR 3206
Khan v Hassan (Costs Ruling) [2023] VCC 1153
Khan v Hassan (Ruling) [2023] VCC 852
Lehrmann v Network Ten Pty Ltd [2023] FCA 385
MAC v R (2012) 34 VR 193  
Macquarie Bank Limited & Anor v Berg [2002] NSWSC 254
Spautz v Kirby (1989) 21 NSWLR 27
Steedman v British Broadcasting Corporation [2001] EWCA Civ 1534
Woolf v Brandt [2023] NSWDC 460.

Ruling:	The plaintiff’s applications are dismissed. 

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr J A Castelan 	SR Lawyers 	
			
For the Defendant	Mr J P Wheelahan 	Gadens Lawyers 	

HER HONOUR:

1	On 31 May 2023, her Honour Judge Myers dismissed proceedings in Khan v Hassan (proceeding number CI-21-05334) (“the 2021 proceedings”) on the basis that the proceeding had not been validly initiated.  Mr Nural Khan, the plaintiff in the 2021 proceedings, did not give Mr Mohammad Hassan, the defendant in the 2021 proceedings, a concerns notice for the purposes of s12B(1) of the Defamation Act 2005 (Vic) (“the Act”). 
2	On 7 August 2023, Mr Khan filed a writ and statement of claim in which he seeks to sue Mr Hassan, on the same publications on which he sued in the 2021 proceedings.
3	By summons dated 7 August 2023, Mr Khan seeks: 
(a)	leave pursuant to s23 of the Act to bring these proceedings nunc pro tunc; and 
(b)	an extension of the limitation period under s23B of the Limitation of Actions Act 1958 (Vic) (“the LOA Act”).
4	In support of his application, Mr Khan relies on the affidavit of Rumana Jahan sworn on 30 July 2023 (“the Jahan affidavit”). 
5	Ms Hassan relies on the affidavit of Julia Bell affirmed on 19 September 2023. 
The issues
6	The issues in this case are:
(a)	Whether leave pursuant to s23 of the Act can be granted nunc pro tunc; 
(b)	If so, should leave be granted pursuant to s23 of the Act to bring these proceedings;
(c)	Should the Court extend the limitation period for the cause of action pursuant to s23B of the LOA Act?
7	For the reasons set out below, I answer the questions as follows:
Can leave pursuant to s23 of the Act be granted nunc pro tunc?
Yes.
Should leave be granted pursuant to s23 of the Act to bring these proceedings?
No.
Should the Court extend the limitation period for the cause of action pursuant to s23B of the LOA Act?
No.
Litigation background 
8	In the 2021 proceeding, Mr Khan sued Mr Hassan, in relation to comments posted on or about 10 to 13 September 2021 on a Facebook page known as Bangladeshi Broadsheet (“the post”).  The post was made by a user with the profile name “Nahid Rains”.  Mr Hassan was the administrator of the Bangladeshi Broadsheet at the time. 
9	On 31 May 2023, the 2021 proceeding was dismissed for the reasons set out in her Honour’s ruling.  In brief, her Honour was satisfied that, in breach of s12A of the Act. the plaintiff had not given the defendant a concerns notice and consequently the proceeding had not been properly commenced. 
10	On 6 June 2023, Mr Khan served a concerns notice (“the third concerns notice”) on Mr Hassan in relation to the post.  On 7 August 2023,  he filed this proceeding. 
11	On 17 August 2023, Mr Khan served Mr Hassan with the writ, statement of claim, summons and the Jahan affidavit.
Can leave pursuant to Section 23 of the Act be granted nunc pro tunc? 
12	Section 23 of the Act states: 
“(1) 	This section applies to a person who has brought a defamation proceeding for damages, whether in this jurisdiction or elsewhere, against a person (a previous defendant) in relation to the publication of a matter. 
 (2) 	The person may not bring a further defamation proceeding for damages against a previous defendant or an associate of a previous defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceeding is to be brought.
 … .”
13	The plaintiff accepts he requires leave under s23 of the Act to bring this proceeding.  He relies on the decision of Carey v Australian Broadcasting Corporation in which the majority determined that leave pursuant to s23 could be granted nunc pro tunc.
14	The defendant says I ought to follow the reasoning of Beazley JA dissenting in Carey, but accepts that I am bound to follow the majority in Carey unless I am persuaded that it is plainly wrong, or is otherwise distinguishable.  Nevertheless, the defendant submits that leave to proceed nunc pro tunc ought be refused to prevent an abuse of process.  
Can leave be granted nunc pro tunc? 
15	Beazley JA, dissenting, held that the text of s23, and in particular the words “except with the leave of the court in which the further proceedings are to be brought”, requires that leave be obtained before the commencement of the further proceeding.  Beazley JA followed the decision of Spautz, which proscribes bringing further defamation proceedings except with leave of the Court.  Leave relates to the proscription on bringing proceedings rather than regulating the manner in which the proceedings are brought.
16	In Spautz, Hunt J identified the “purpose” of s23 as preventing the abuse of process.  If retrospective leave was permitted by the section, the fact that a court may refuse leave is neither an answer to, nor a panacea for, the abuse that will have occurred already by bringing proceedings without leave.  
17	However McColl JA, on the question of whether leave could be granted nunc pro tunc, looked at the intention of the legislature in enacting s23.  Her Honour considered the report on defamation of the New South Wales Law Reform Commission, which had not been considered by Hunt J in reaching a different view in Spautz.  The intention of s23 was to prevent multiple actions arising out of the same publication without the leave of the court.  The intention was not to bar multiple actions in all circumstances.  
18	In Emanuele & Anor v Australian Securities Commission & Ors, which deals with a similar provision in the Corporations Act 2001, Gaudron J held that court powers should be exercised in the interests of justice and generally those interests are “not well served by the exercise of powers inflexibly and without regard to the convenience of the situation”. 
19	McColl JA considered the interpretation that leave under s23 could only be granted prior to the commencement of further defamation proceedings would lead to an unreasonable result.  
20	Sackville AJA held the fact that the statutory language contemplates that a leave application will be brought before the proceedings are instituted does not necessarily mean that the section should be construed as preventing a court granting leave retrospectively, regardless of the circumstances.  The “evil” to which s23 of the Act is directed is to prevent a defendant from being exposed to a multiplicity of proceedings for the same damages against the same plaintiff.  This does not necessarily require that the plaintiff’s action fail if leave is sought shortly after proceedings are commenced.  His Honour remarked: 
“If the plaintiff has instituted the second proceedings without leave, the defendant can bring them to an early halt by seeking orders summarily dismissing the proceedings.  If this prompts the plaintiff to apply for nunc pro tunc, the court will determine whether there is justification for the defamation action.  The primary question ought to be whether leave is granted.  The Court has ample power to protect the defendant against any waste of costs arising from the plaintiff failing to obtain leave…”  
21	The defendant submits the majority in Carey are “plainly wrong” and I should follow the reasoning of Beazley JA on appeal and McCallum J at first instance.
22	Alternatively, the defendant submits Carey is distinguishable.  
23	Emanuele & Anor v Australian Securities Commission & Ors was considered in MAC v R, which concerned s371 of the Criminal Procedure Act 2009.  Section 371 provided that the court may extend the time for holding a special hearing.  McColl JA in Carey had regard to that case, and noted that his Honour Nettle JA regarded nunc pro tunc orders as traditionally extending to slips and errors.  
24	Sackville AJA and McColl JA considered Smart AJ’s analysis of s23’s predecessor provision in Macquarie Bank Limited & Anor v Berg:
“… A grant of leave nunc pro tunc would not defeat the object of s.9(3) as the Court would only grant leave in a proper case, for example, where the material appeared to be defamatory and there was an explanation such as ignorance of s.9(3) for not seeking leave.  … .” 
25	The defendant submits that this is not a case where there is a correction of a slip or error.  There has been a deliberate decision to commence proceedings without first obtaining leave and no explanation has been provided by the plaintiff for proceeding in this way.
26	Further, Carey did not contemplate a situation where the proceeding had been litigated on the merits and dismissed.  In Carey, the earlier proceeding had commenced in a different jurisdiction but had not been served and the writ had gone stale.  New proceedings were then issued in New South Wales.  
27	That is different from the present case where the proceeding was litigated to trial, but dismissed as a result of a preliminary issue, being the service of the concerns notice.
Findings on whether leave can be granted nunc pro tunc
28	I am not persuaded that the majority in Carey were plainly wrong.  While reasonable minds may differ as to whether the intention of the legislature was for courts to “adopt a punctilious rather than a flexible approach” as submitted by the defendant, it is not apparent that the majority decision to adopt a flexible approach is plainly wrong so as to entitle me not to follow it.
29	Nor am I persuaded that Carey is distinguishable in relation to the question of whether orders can be made nunc pro tunc.
30	While the facts in Carey are quite different to this proceeding, the particular issue contemplated is the same – where proceedings which would require leave under s23 have been brought without obtaining that leave, can that leave be granted nunc pro tunc? 
31	I am bound by the decision in Carey to answer that question yes.
Should leave be granted under s23 of the Act? 
32	The plaintiff says that leave should be granted because: 
(a)	There was no hearing on the merits of the proposed plaintiff’s claim; 
(b)	The plaintiff acted promptly and appropriately, and it was a technical failure by the plaintiff’s (then) solicitors to properly give a concerns notice within the terms of the Act that resulted in the 2021 proceeding being dismissed; 
(c)	the question as to whether the plaintiff had properly given a concerns notice to the defendant in the 2021 proceedings was: 
(i)	only raised by the defendant for the first time in December 2022, around twelve months after being issued;
(ii)	delayed further by the defendant’s conduct in failing to bring an application to have that issue heard, when a date had been set aside by the Court for 27 February 2023; and 
(iii)	while the defendant succeeded on the issue on 31 May 2023, the defendant’s success on that issue was not a foregone conclusion. 
33	The plaintiff submits that it would be unfair to lock him out of bringing this claim simply because his previous solicitor made an error that was fatal to that claim.  
34	The plaintiff says the interests of justice favour granting leave.
35	The defendant says allowing the plaintiff another opportunity to sue would result in an abuse of process, and that a grant of leave would not be in the public interest.
36	The defendant submits that the statutory concerns notice regime could be circumvented in every case where there was a failure to properly comply with the requirements of the Act, if leave is granted to commence new proceedings in this case.  
Findings on whether leave should be granted under Section 23 of the Act
37	As I have reached the conclusion that the Court can exercise its discretion to grant leave nunc pro tunc, I turn to consider whether leave ought to be granted.
38	Since hearing this application, her Honour Judge Gibson in the District Court of New South Wales handed down the decision of Woolf v Brandt which raises some similar issues.
39	In that case, a plaintiff commenced two proceedings relating to two separate publications.  Both proceedings were struck out.  The second proceeding was struck out on the basis of a failure to comply with s12A of the Act.  An application nunc pro tunc under s12B(3)(b) to grant leave to commence proceedings despite non-compliance with the concerns notice procedure was also refused. 
40	The applicant then commenced new proceedings in relation to the second publication after the expiry of the one-year limitation period and without first seeking leave under s23(2) of the Act.  Her Honour said: 
“In the absence of any authority, I am of the view that any plaintiff whose action for defamation is struck out due to failure to comply with notice provisions, particularly where there is only a technical non-compliance such as problems with the imputations or the location of the matter complained of, would have their application for leave viewed sympathetically.  … .” 
41	Her Honour did not ultimately rule on the question of whether leave under s23(2) ought be granted, as she dismissed the plaintiff’s application for an extension of time.
42	One can envisage cases where defects in the concerns notice procedure are identified and the proceeding is dismissed by consent, or discontinued by the plaintiff, in order to remedy those defects.  In such a circumstance, it may well be appropriate to grant leave to commence new proceedings on the same publication.  
43	To grant leave in such circumstances would not undermine the intent of the concerns notice provisions, which is to ensure, as far as possible, people take reasonable steps to resolve disputes before issuing proceedings. Leave would only be granted where the concerns notice procedure had been complied with in relation to the new proceedings.  
44	A plaintiff would be discouraged from issuing proceedings without complying with the concerns notice procedures, because the costs consequences of having proceedings struck out or discontinued, would likely fall on the plaintiff.
45	In the present case, the plaintiff says his action was struck out due only to technical non-compliance with the service provisions under the Act.  In line with the reasoning in Woolf, his application under s23 ought be treated sympathetically.
46	However, an examination of the particular circumstances of this case discloses the following:
(a)	The publication complained of was uploaded to the defendant’s website between 10 and 13 September 2021;
(b)	The first concerns notice was sent to the defendant on 13 September 2021.  There is no argument that this concerns notice was properly served under the Act;
(c)	The defendant sought further particulars of the concerns notice on 11 October 2021;
(d)	The plaintiff purported to withdraw the first concerns notice, alternatively the first concerns notice lapsed and the plaintiff is taken not to have served the first concerns notice;
(e)	The plaintiff then purported to serve a second concerns notice on 16 November 2021.  The second purported concerns notice was not served in accordance with the Act;
(f)	On 13 December 2021, the plaintiff’s solicitor was put on enquiry about defects with the second purported concerns notice, specifically that the defendant had only just received it and intended to consult his solicitor.  The defendant requested an extension of time to respond;
(g)	Notwithstanding those concerns having been raised, the plaintiff commenced the 2021 proceedings on 15 December 2021.  Her Honour Judge Myers did not accept that issuing the 2021 proceedings in January 2022 rather than December 2021 would have materially impacted the harm the plaintiff sustained; 
(h)	The defendant filed a defence to the 2021 proceedings on 7 June 2022, an amended defence on 28 October 2022 and a further amended defence on 12 December 2022;
(i)	It was not until the defence of 12 December 2022 that the defendant pleaded that the second concerns notice was not given to the defendant in accordance with the Act;
(j)	For reasons set out in the decision of her Honour Judge Myers, the question of whether the 2021 proceeding was validly commenced was not heard until the first listed day of trial, where it was determined as a preliminary question;  
(k)	Her Honour Judge Myers found the defendant bore significant responsibility for the increased costs incurred by reason of the failure to raise the issue sooner and comply with Court orders.  As a result, the defendant was ordered to pay the plaintiff’s costs of trial preparation and was only awarded some of his costs incurred in defending the 2021 proceeding.  The costs incurred by the defendant, including the costs he had to pay to the plaintiff pursuant to the orders of Judge Myers, amounted to $125,703.94.
47	This case is far removed from a circumstance in which, shortly after proceedings are issued, a defect with the concerns notice is identified, and the proceedings are discontinued so that the defect can be remedied.  
48	Instead, in part because of the conduct of the plaintiff’s then solicitor, the defendant has incurred significant costs in defending an action that was ultimately dismissed.  Some of those costs resulted from his own conduct.  He has already paid a high penalty for his own failures by the costs orders made by Myers J, which required the defendant to pay some of the plaintiff’s costs of the 2021 proceeding.
49	One of the aims of s23 is to avoid a defendant facing a multiplicity of proceedings arising from the same publication.  One of the reasons to protect a defendant from a multiplicity of proceedings is that a defendant is likely to incur significant costs defending a claim, even where the litigation does not involve adjudication on the merits. Costs orders are usually made on a standard basis, as occurred in the 2021 proceeding.  Even if the defendant had pleaded the defective compliance with the concerns notice provisions in his June 2022 defence to the 2021 proceedings, he would likely still have only recovered a portion of the actual costs incurred.
50	The issue of costs is not a peripheral question in defamation proceedings.  Concern that legal costs can often be disproportionate to damages was central to the amendments made to the Act which saw the introduction of the concerns notice provisions, as well as the introduction of the serious harm threshold.  
51	I accept that s23 does not preclude leave being granted where a proceeding has been struck out, discontinued or dismissed.
52	Where that has occurred because of a technical defect in the concerns notice procedure, the Court may well look sympathetically on an application for leave to commence proceedings.
53	However, leave ought not be granted in the particular circumstances of this case because:
(a)	The defect in the concerns notice in the 2021 proceeding was more than technical.  The plaintiff’s solicitor was put on enquiry that the notice had only just been received by the defendant but failed to engage with the defendant’s request for further time;
(b)	The 2021 proceedings were commenced in circumstances where there was no reason not to comply with the applicable period;
(c)	The costs incurred by the defendant in the 2021 proceeding are significant. 
54	Accordingly, the plaintiff’s application for leave to commence these proceedings nunc pro tunc is dismissed.
Application for an extension of time 
55	I chose to consider the application for leave pursuant to s23 of the Act prior to considering the application for an extension of time because, for the reasons expressed above, even if the application under s23 had been made within time, I would not have granted leave. 
56	However, given the absence of higher court authority on the application of s23 of the Act to proceedings where there has been non-compliance with the concerns notice procedures, and the prospect that the New South Wales Court of Appeal will consider these provisions in the matter of Woolf, I turn now to consider Mr Khan’s application for an extension of time. 
Principles
57	Section 5(1AAA) of the LOA Act states: 
“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.”
58	These proceedings were filed by Mr Khan on 7 August 2023.  They relate to the publication that was made on 10 to 13 September 2021.  On its face, the claim is statute barred and Mr Khan must seek an extension of time. 
59	Section 23B of the LOA Act states: 
“(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 (1AAC) 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.” 
60	The plaintiff must satisfy the Court that it is “just and reasonable to allow an action to proceed”.  Prior to 1 July 2021, if a plaintiff sought an extension of time under s23B of the LOA Act, that person needed to satisfy the Court that:
“It was not reasonable [for a proposed plaintiff to have commenced the proceedings within]’ the limitation period.” 
61	The Model Defamation Amendment Provisions 2020 Explanatory Note states that the aims of the Model Defamation Amendment Provisions include: 
“(o) 	to provide for the limitation period for commencing defamation proceedings to be extended to enable pre-trial processes to be concluded and to provide courts with greater flexibility to extend the limitation period.” 
62	The parties agree the following propositions apply:
(a)	the burden is on the proposed plaintiff for an extension of time to point to the circumstances that would make it just and reasonable to allow the action to proceed; 
(b)	the circumstances that might give rise to an extension are left at large; 
(c)	the test posed is an objective one; 
(d)	if the Court is satisfied that the test has been satisfied, then it may extend the limitation period. There remains a discretion as to the length of the extension, but it may not exceed three years from the date of the defamatory publication.
Plaintiff’s submissions 
63	The plaintiff submits that the Amended Provisions provide for a more flexible approach than the previous version of s23B of the LOA Act. 
64	The plaintiff submits it is just and reasonable for the Court to grant an extension of time and allow the case to proceed for the following reasons: 
(a)	in issuing the 2021 proceeding in December 2021, the plaintiff acted promptly after the date of the publication on 10 to 13 September 2021, noting that he believed that a valid concerns notice had been given in November 2021; 
(b)	the content of the publication was serious.  It asserted that the plaintiff, a lawyer in a small tightknit community, stole a client’s money, is a thief and is a bankrupt;
(c)	the 2021 proceeding was dismissed on 31 May 2023 only because of a technical failure by the proposed plaintiff’s solicitors;
(d)	the resolution in the 2021 proceeding of the question as to whether the  plaintiff had properly given a concerns notice was: 
(i)	only raised by the defendant for the first time in December 2022, around twelve months after the first proceeding had been issued; 
(ii)	delayed further by the defendant’s conduct in failing to bring an application to have that issue heard, when a date was set aside by the Court for 27 February 2023; and 
(iii)	the defendant’s success on that issue was not a foregone conclusion. 
(e)	during the hearing in the 2021 proceeding, the plaintiff made an open offer in court that would have resolved his claim (“the open offer”). 
(f)	in his concerns notice dated 6 June 2023, the plaintiff invited an offer of amends in a lesser amount than the open offer (“the June 2023 offer") 
(g)	the open offer and the June 2023 offer were rejected by the defendant; 
(h)	any potential action against the plaintiff’s previous solicitor would not include an apology or retraction of the defamatory publication, which is an important component of the plaintiff’s settlement offers; and 
(i)	the plaintiff has acted promptly since the dismissal of the 2021 proceedings on 31 May 2023. 
65	The plaintiff submits that an extension of time would provide a person whose reputation has been harmed by the publication of defamatory matter an effective and fair remedy.  It was purely the fault of his former lawyer that the first proceedings were dismissed, and there was no hearing as to the merit of the first proceeding. 
66	The plaintiff says the defendant has received his costs up to the date he filed his defence, and his costs of the hearing in May 2023 in relation to the concerns notice provisions.   
Defendant’s submissions 
67	The defendant submits that in order to obtain an extension of time the circumstances must be sufficiently compelling to satisfy the Court that it is just and reasonable to commence a proceeding outside the one-year period, acknowledging that there may be circumstances where it will be unreasonable to expect a plaintiff to commence a proceeding to vindicate his or her legal rights in accordance with that time limit. 
68	The test is objective, and the plaintiff’s subjective belief (however reasonable) that a valid concerns notice had been given within time, is insufficient to establish that it is just and reasonable to grant an extension of time. 
69	The defendant says incompetence of a legal representative is not a basis for granting leave.  The plaintiff’s former solicitor let the first concerns notice lapse in the 2021 proceeding by not furnishing particulars, and then denied the defendant procedural fairness when he sought more time to respond to the defectively served concerns notice.  That the plaintiff may have a good cause of action, and his former solicitor made an error by failing to serve a concerns notice properly, does not alter the burden on the plaintiff to show that the justice of the case favours the grant of an extension of time.  The defendant submits that the facts do not enliven the exercise of discretion, or compel its exercise, in favour of the plaintiff. 
70	The defendant has already faced one proceeding, has incurred significant costs in successfully defending that proceeding and is now entitled to assume that his rights can no longer be disputed. 
71	Further, the defendant says: 
(a)	The Court ought not accept that the alleged defamation was serious, or that the plaintiff had a good cause of action.  There was dispute in the 2021 proceedings about the correct translation of the publication and the defendant had available a number of defences, including:
(i)	whether publications carried out the imputations alleged; 
(ii)	whether the plaintiff was identified; and
(iii)	innocent dissemination; 
(b)	There is no merit in the plaintiff’s submission that it was the defendant’s failure to identify the defective service of the concerns notice earlier that caused the limitation to expire.  The plaintiff could have responded to the defendant’s request for further particulars of the first concerns notice, rather than allowing it to lapse and then issuing a second purported concerns notice.  Further, it is not for the defendant to determine that the concerns notice is defective and to make an application.  It is for the plaintiff to ensure the concerns notice provisions have been complied with.   The plaintiff had ample opportunity to ensure that the concerns notice was properly served prior to the expiry of the limitation period; 
(c)	Offers made at trial to resolve the 2021 proceeding, and offers made subsequently ought have no bearing on whether an extension of time is granted.  The defendant says the open offer was made during the course of the trial to prejudice the defendant, and to pressure him to capitulate before a ruling on a point in which success was not a foregone conclusion; 
(d)	The inability to obtain an apology from a solicitor is not a basis upon which the Court should find that it is just and reasonable to grant the extension.  This argument was rejected by the English Court of Appeal in Hashtroodi v Hancock and Steedman v BBC.  In Hashtroodi, Steele J considered an apology to be an “empty gesture” some fifteen months or more after the event;  
(e)	The total costs the defendant incurred far exceeded the costs awarded to him on a standard basis and it would be unreasonable and unjust for him to incur further costs disproportionate to the compensation sought.
Findings 
72	In Brisbane South Regional Health Authority v Taylor, McHugh J outlined the rationale for limitation periods: 
“… First, as time goes by, relevant evidence is likely to be lost.  Second, it is oppressive, even ‘cruel’, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them …  The final rationale for limitation periods is that the public interest requires the disputes be settled as quickly as possible.”
73	The plaintiff must show that his case is a justifiable exception to the rule and that justice will be best served by excepting this proceeding from the general prohibition which s23 imposes.  McHugh J held that –
“… [i]n this context, justice includes all the relevant circumstances relating to the application including the various rationales for the enactment of the limitation period involved.  … .”  
74	A limitation period applies but, as noted by Lee J in Lehrmann v Network Ten Pty Ltd, it is:
“… an entire year.  This is a period during which a claimant is allowed, and would be expected, to: reflect and consider maturely whether the proposed litigation is able to be resolved without litigation; consider whether the cost of litigation would be proportionate to the extent of perceived damage; conduct necessary enquiries as to the identity of the respondent or respondents; and decide whether there is sufficient material to decide to litigate.  Finally, if litigation is to be commenced, there is a need to ensure sufficient material is available to the person settling the claim to provide a proper basis for any allegations proposed to be made.  But more generally, the period of a year also allows a potential litigant time to see how things go.  Was the damage as bad as first imagined?  Will I let sleeping dogs lie or risk stirring up the controversy by suing?  A claimant is entitled to reflect upon what might be a life-changing decision bringing stress and potential adverse financial consequences.”
75	In this case, the plaintiff leapt into action and issued the 2021 proceeding without addressing the defendant’s questions about the first concerns notice which was validly served, and without allowing the defendant an opportunity to consider the second purported concerns notice.
76	The defendant bears some of the blame for the delay before the 2021 proceedings were determined, but cannot bear the blame for the defective concerns notice procedure.  The onus is on the plaintiff to ensure the provisions of s12A and 12B are complied with, which includes proper service of the concerns notice pursuant to s44 of the Act.
77	I am not persuaded that the prospect of an apology from the defendant is an important aspect of the plaintiff’s case, nor is this an outcome that he can achieve at trial.  The defendant was a “publisher” only in the sense that he was responsible for the Internet platform on which the allegations were posted.  An apology from the defendant could only be an apology that he allowed the post to appear, or to remain after he was made aware of it.  He cannot sensibly apologise for the content of the post or retract the imputations conveyed. 
78	Nor am I satisfied that the plaintiff’s offers to settle the proceeding have any bearing on the decision I must make as to whether it is just and reasonable to grant the extension sought.
79	I am persuaded that the significant costs by the defendant in the 2021 proceeding would make it oppressive to the defendant to have to defend these proceedings.   There is a real prospect that incurring further costs would be disproportionate.
80	The fact that the cause of the plaintiff’s difficulties was his solicitor does not change the burden that that error places on the defendant.
81	Though the test does not require the Court to find there is actual prejudice, the existence of actual prejudice to the defendant is a significant factor that weighs against the grant of an extension of time.  The prejudice to the plaintiff in having his rights terminated is offset by the existence of a cause of action against his former solicitor.  
82	Accordingly, I am not satisfied, in all the circumstances of this case, that it is just and reasonable to extend the limitation period.  The plaintiff’s application is dismissed.
83	I will hear the parties on the question of costs.
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