The majority of the NSWCA (McColl JA and Sackville AJA) held that s 23 of the Defamation Act 2005 is a procedural provision that does not preclude the grant of leave nunc pro tunc, though this was not determinative of the appeal. Under s 56A of the Limitation Act 1969, the test for extending the defamation limitation period is not wholly objective: the court may inquire into the plaintiff's reasons for not commencing proceedings, and 'the circumstances' extend to steps the plaintiff could reasonably have taken but did not. A plaintiff who could have applied for release of funds to commence proceedings but failed to do so will not satisfy the onus under s 56A(2).
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