SUPREME COURT OF QUEENSLAND

CITATION:	King v Comiskey Management Services Pty Ltd & Anor [2020] QCA 229	
PARTIES:	MITCHELL PAUL KING
(applicant)
v
COMISKEY MANAGEMENT SERVICES PTY LTD
ACN 115 254 307
(first respondent)
SCANTEK SOLUTIONS PTY LTD
ACN 158 339 514
(second respondent)	
FILE NO/S:	Appeal No 6060 of 2020
SC No 14016 of 2019	
DIVISION:	Court of Appeal	
PROCEEDING:	Application for Extension of Time	
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported, 15 April 2020 (Dalton J)	
DELIVERED ON:	23 October 2020	
DELIVERED AT:	Brisbane	
HEARING DATE:	14 September 2020	
JUDGES:	Fraser and McMurdo JJA and Jackson J	
ORDER:	The application for an extension of time within which to appeal is refused, with costs.	
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the applicant commenced a claim for defamation against the respondents in the Trial Division after the limitation period of one year from the date of the publication had expired – where the applicant’s application in the Trial Division for an extension of the limitation period was refused – where the applicant seeks to appeal that decision – where the applicant’s appeal was commenced out of time – whether an extension of time within which to appeal should be granted
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the respondents relied upon their submissions that the appeal lacks merit as a matter that may be taken into account in deciding whether to grant an extension of time within which to appeal – where, for 10 of the alleged publications, the maximum allowable extension to three years from the date of the publication would not result in the claim being within time – where two of the alleged publications were found by the primary judge to be incapable of being regarded as defamatory – where the primary judge refused to grant an extension for the remaining two publications because the applicant failed to commence his claim for 18 months after he knew all the facts relating to the alleged publications, was aware of his rights in relation to defamation and was aware of the limitation period – where the applicant appeals against the refusal of an extension in relation to the latter two alleged publications only – whether the proposed appeal lacks merit and is bound to fail
Limitation of Actions Act 1974 (Qld), s 10AA, s 32A(2)
Uniform Civil Procedure Rules 1999 (Qld), r 189, r 668
Barrett v TCN Channel Nine Pty Ltd (2017) 96 NSWLR 478; [2017] NSWCA 304, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, applied
Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50, cited
Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175, cited	
COUNSEL:	No appearance for the applicant
S D McCarthy for the first respondent
K M Riedel for the second respondent	
SOLICITORS:	No appearance for the applicant
Carter Newell for the first respondent
HWL Ebsworth Lawyers for the second respondent	
[1]	FRASER JA:  The applicant applies for an extension of time within which to appeal against orders refusing him an extension of time within which to commence a claim for defamation and consequently dismissing his claim.
[2]	The applicant commenced his claim for defamation on 17 December 2019.  The claim arose out of events that were alleged to have occurred after an occasion in January 2013 when the first respondent banned the applicant from attending its tavern.  There is a dispute about the nature and seriousness of the applicant’s conduct for which the ban was imposed.  The applicant’s statement of claim complains of 14 publications between 15 March 2013 and 29 November 2018.  The claim endorsed at the end of the statement of claim is for damages, interest and costs.
[3]	Only the thirteenth and fourteenth alleged publications remain in issue.  The thirteenth publication is the most recent of 11 publications in respect of which the statement of claim alleges that upon the applicant’s identification card being scanned by equipment at the entrance to the first respondent’s tavern and certain other licensed premises on various dates between 15 March 2013 and 24 February 2017, the equipment would display statements defamatory of the applicant.
[4]	In respect of the thirteenth publication the statement of claim alleges that, when the applicant’s identification card he presented at a licensed venue called Ol Sole Bar was scanned on 24 February 2017 using a scanning system leased from the second respondent, the system would display on the screen the current photo taken and a stored photo of the applicant, his name and date of birth, “This Patron is banned from Eaton Hill Hotel”, “Reason: Incident at Venue banned by management”,  “Category: Violence Causing Serious harm requiring Medical Treatment”, and “Entry is the discretion of the Venue scanning the ID”.  In respect of the fourteenth publication the statement of claim alleges that during a conversation between the applicant and his mother and the first respondent’s manager of its tavern on or about 23 March 2018, the manager informed the applicant that he had just changed the reason for the ban in the second respondent’s system from “Violence Causing Harm” to “the plaintiff was abusive to staff or patron”.
[5]	One of the two other publications was allegedly made in an email from the first respondent dated 27 November 2018 to an officer of the Australian Information Commissioner.  The other publication was in an email from the second respondent dated 13 March 2018 directed to the applicant’s mother’s email address.
[6]	In relation to each of the 14 publications, the applicant commenced his claim for defamation after expiry of the period of 12 months after publication allowed for such a claim by s 10AA of the Limitation of Actions Act 1974 (Qld).  In addition to other defences, the respondents pleaded that the applicant’s claim was barred by that provision.  The respondents applied for summary judgment against the applicant in respect of the whole of his claim.  The applicant applied for an extension of time in relation to each publication under s 32A(2) of the Limitation of Actions Act 1974.  Section 32A(2) provides:
“A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 10AA to a period of up to 3 years from the date of the publication.”
[7]	On 15 April 2020, Dalton J dismissed the application for an extension of time, granted summary judgment for the first and second respondents in respect of the whole of the applicant’s claim, and dismissed the applicant’s applications for summary judgment against the first respondent or, in the alternative, to strike out the first respondent’s defence.
[8]	In relation to the extension of time application, Dalton J found that 10 of the alleged publications occurred so long ago that the maximum allowable extension of three years from the date of the alleged publication would not result in the applicant’s claim being within time.  There being no utility in granting an extension of time in relation to those publications, Dalton J refused to do so.  Dalton J found that two other alleged publications were incapable of being regarded as defamatory of the applicant or causing any damage to his reputation and refused to extend time for those reasons and the reasons relating to the thirteenth and fourteenth publications, which I will discuss below.  The applicant does not seek to appeal against Dalton J’s decision relating to those 12 alleged publications.
[9]	The applicant made an undated affidavit filed on 26 February 2020.  He stated that he was not aware of the defamatory publications until 13 March 2018 when he received an email from the second respondent.  That email stated, amongst other matters, that the applicant was banned at the venue which issued the ban (the first respondent’s tavern) for “Violence Causing Serious Harm Requiring Serious Medical Treatment With An Implement” until 14 May 2036 and that other venues, which would be notified of the ban until 13 November 2023, could decide whether or not to allow him entry.  The applicant did not receive that information until 17 days after the expiry of the one year limitation period for the thirteenth publication.  The respondents conceded that it was not reasonable for the applicant to have commenced an action in relation to the thirteenth publication within the limitation period.  It followed that s 32A(2) obliged the Court to extend the limitation period “to a period of up to 3 years from the date of the publication”.
[10]	As Dalton J observed, the applicant’s claim based upon the thirteenth publication would remain out of time unless an extension of time of about one year and nine months was granted.  In deciding that such an extension of time was not justified, Dalton J took into account the evidence that the applicant became aware of the thirteenth publication on 13 March 2018, he had decided before long that one of his remedies was an action for defamation (as evidenced by a Facebook posting in May 2018 alleging that the first respondent had defamed him), by June 2018 the applicant had discovered by research in a library that there was a one year limitation period for a defamation action, and by June 2018 the applicant also had obtained free legal advice about his prospects of bringing a successful claim in defamation.  Dalton J concluded that by June or July 2018 the applicant had all the information he needed to bring a claim in relation to the thirteenth publication.  Dalton J acknowledged the applicant’s evidence that he had pursued inquiries with various other organisations in an attempt to right a perceived injustice and to gather information that might assist in building a better or different case from the case he alleged about the thirteenth publication.  In the circumstances, Dalton J did not regard that as a good reason for not commencing proceedings in relation to the thirteenth publication.
[11]	For substantially the same reasons Dalton J decided that time should not be extended in relation to the fourteenth publication; by June or July 2018 the applicant was aware of his rights in relation to defamation, he was aware of all the facts in relation to the fourteenth publication, and he was aware of the limitation period for bringing an action for defamation.
[12]	The applicant did not appear at the hearing of his application for an extension of time within which to appeal.  His outline of argument in support of the proposed appeal expands upon the grounds set out in his draft notice of appeal.  On the morning of the hearing the Court received from the applicant copies of documents already in the record book or otherwise supplied to the Court under cover of a page referring to those documents.  Neither respondent objected to the Court receiving the additional material.  I have taken it into account.  The respondents relied upon their written outlines of submissions and did not make additional oral submissions.
[13]	The applicant has given an explanation for his delay in filing the notice of appeal in time, the required extension of time is only about three weeks, and neither respondent contends that it is prejudiced by the delay.  Each respondent relies upon its submission that the appeal lacks merit as a matter that may be taken into account in deciding whether to grant an extension of time within which to appeal.  Were it not for my conclusion that the proposed appeal must fail I would grant the necessary extension of time to appeal.
[14]	Whilst in a case of this kind a court is obliged to extend the limitation period if it was not reasonable in the circumstances for the applicant to have commenced an action within one year from the date of publication, s 32A(2) confers upon that court a discretion as to the appropriate length of such an extension up to a maximum of three years.  The object of the discretion about the length of the extension “‘is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to [the officer’s] view of the justice of the case’ … [including] look[ing] at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.”  Factors that may be taken into account as support for an extension of sufficient length to allow the prosecution of a claim include the necessary finding that it was not reasonable for the applicant to have commenced an action within the limitation period of one year and any other circumstance indicating that the applicant may suffer an injustice if the necessary extension is not granted.  Factors that may be taken into account in opposition to an extension of the necessary length include the public interest in the prompt determination of defamation actions and that, the limitation period having expired, any extension of that period will impose a new legal liability on the respondent to the application.  It is for the judge considering the appropriate length of an extension of time to decide upon the weight to be given to the relevant factors in the particular circumstances of the case as revealed by the evidence.
[15]	Because Dalton J’s decision about the appropriate length of an extension was discretionary, the grounds upon which that decision may be reviewed in the applicant’s proposed appeal are limited to specific errors – an error of law or fact, taking into account an irrelevant consideration or failing to take into account or to give sufficient weight to a relevant consideration – or, if no specific error is demonstrated, making a decision that was so unreasonable or unjust as itself to show that it must have resulted from some such error.
[16]	The public interest in the prompt determination of defamation actions was a material factor in this case, in which the applicant required an extension of about one year and 10 months for the thirteenth publication and of about nine months for the fourteenth publication.  Delay of that magnitude was significant in the context of the finding that by June or July 2018 the applicant was aware of the facts necessary to plead claims in respect of the thirteenth and fourteenth publications, with the result that after the applicant knew the necessary facts he did not commence his claim for about 18 months.  It was open to attribute yet more weight to this factor in light of the finding that the applicant did not commence his claim until December 2019 even though by June or July 2018 he also knew of the relevant limitation period.  In these circumstances, giving full weight to the significance for the applicant of the loss of his claim in circumstances in which he lacked the benefit of legal representation and faced understandable difficulties in commencing it, it is not open on appeal to infer from the decision itself that it must have been the result of a specific error.
[17]	The applicant submits that Dalton J made specific errors.  He submits that his statement in an affidavit he made on 29 March 2020 that he “was not aware that there was a limitation period to bring on a defamation proceeding, this was only learnt after making some enquiries at the Library on Defamation, around June 2018” contained the typographical error that “2018” should have been “2019”.  No such submission was made at the hearing before Dalton J.  There is no evidence before the Court supporting the statements in the applicant’s draft notice of appeal and outline of argument that there was such a typographical error.  This Court must proceed upon the same basis as did Dalton J.  It cannot be said that Dalton J erred in relying upon the applicant’s evidence that he learnt about the limitation period around June 2018.  The applicant refers to r 668 of the Uniform Civil Procedure Rules 1999 (Qld) which empowers a court to give appropriate relief when facts are discovered after an order is made that, if discovered in time, would have entitled a person against whom an order is made to an order or decision in the person’s favour.  The rule has no application in this case, in which the applicant always must have known the year in which he learnt about the limitation period for bringing a defamation proceeding.
[18]	Dalton J took into account that instead of bringing a defamation claim the applicant focussed his attention upon obtaining information and a remedy from the Office of Liquor and Gaming Regulations and the Office of the Australian Information Commissioner.  The weight of that factor is diminished by the absence of an explanation in the evidence for why the applicant did not also commence a claim for defamation for a very long time after he knew of that remedy, the facts necessary to plead his claim, and the statutory limitation period.
[19]	The applicant contends that he was disadvantaged in consequence of a response to an inquiry of LawRight by his mother in June 2018 that it was “generally very difficult to achieve a successful outcome on a defamation matter” and that LawRight was not able to refer the matter for pro bono legal assistance or to the self-representation service.  In an email from LawRight to the applicant and his mother dated 20 June 2018, LawRight provided a link to a fact sheet about defamation and details to assist the applicant in locating a community legal centre that might be of assistance.  The applicant’s evidence does not reveal whether or not he sought any such assistance.  Accepting that the applicant’s lack of legal representation was a real disadvantage for him, this argument does not identify a factor which entitled the applicant to an open ended extension of time regardless of the circumstances taken into account by Dalton J.
[20]	The applicant submits that the facts relevant to his defamation claim are not in dispute.  He relies upon the absence of any response by either respondent to a notice to admit facts served upon them on 7 April 2020.  Rule 189 of the Uniform Civil Procedure Rules 1999 deems a party to admit a fact specified in a notice to admit only if the party upon whom the notice is served does not dispute the fact within 14 days after service.  That period had not expired before the application to extend time was heard and decided, with the result that no deemed admission arose.  The applicant also relies upon what he contends are admissions made by the first respondent in an email in July 2019 concerning the dates of various events and an offer by the first respondent to resolve the dispute.  The statements in that email about the dates of various events did not add anything of substance to the evidence to which Dalton J referred.  The statement emphasised by the applicant that the first respondent had offered to give a written apology for the “incorrect ban of violence” added nothing of substance to evidence adduced for the first respondent and the submission made on its behalf at the hearing before Dalton J that the category of “Violence causing serious harm requiring medical with implement [sic]” was an incorrect banning category.
[21]	The applicant argues that he did not have enough information to start a claim for defamation before 2 September 2019 (according to the applicant’s most recent submission) or 19 September 2019 (according to paragraph 14 of the grounds in the draft notice of appeal).  In the applicant’s affidavit filed on 26 February 2020 he stated that on 2 September 2019 the first respondent sent “the complete documents” in its system and that on 15 September 2019 the applicant was able to evaluate the evidence available to start proceedings for defamation.  Documents the applicant deposed were sent to him on 2 September 2019 (exhibits “N”, “N1” and “N2”) refer to “scan time” (presumably corresponding with an attempt by the applicant to enter licensed premises) on 5 September 2014, 8 August 2014, and 1 August 2014 respectively.  These dates do not relate to any publication complained of in the applicant’s statement of claim.  The documents were not wholly irrelevant, insofar as each of them describes the applicant’s status as “banned”, but the applicant acknowledged in paragraph 2 of the same affidavit that once he received the second respondent’s email on 13 March 2018 he knew what had been displayed on the second respondent’s system from January 2013.  This argument does not suggest any error in the relevant conclusion by Dalton J that by June or July 2018 the applicant had all the information he needed to bring a claim for defamation in relation to the thirteenth and fourteenth publications.
[22]	The applicant refers to the statements in Practice Direction 10 of 2014 concerning the Supervised Case List for self-represented litigants referring to purposes of that list of “Ensuring that the parties explore options to resolve their disputes without the need for trial” and “Court to remain impartial, self represented parties have a fair opportunity to present their case.”  In this respect the draft notice of appeal includes a statement that the applicant did not have a fair opportunity to present his case.  The applicant has not identified any circumstance that could support that statement and I have not found any in the appeal record.  Whilst legal representation is certainly desirable, especially in technically complex claims such as for defamation, it is not a prerequisite for the fairness of a judicial adjudication.  The draft notice of appeal also includes a statement that the applicant “was not encouraged or had any knowledge of mediation or [alternative dispute resolution]”.  That has no bearing upon the issue whether Dalton J made an error susceptible of appellate review in her decision to refuse the applicant’s application for an extension of time within which to commence his claim for defamation.
[23]	No error has been demonstrated in Dalton J’s decision that it was not appropriate to grant an extension of time of the length required by the applicant to prevent his claim being barred by s 10AA of the Limitation of Actions Act 1974.  Consequently there was no error in Dalton J’s decisions to refuse to grant such an extension of time and to dismiss the applicant’s claim.
Proposed order
[24]	For these reasons I would refuse the application for an extension of time within which to appeal to 5 June 2020, with costs.
[25]	McMURDO JA:  I agree with Fraser JA.
[26]	JACKSON J:  I agree with Fraser JA.