Casley v Australian Broadcasting Corporation

(2013) 39 VR 526; [2013] VSCA 182

Victorian Court of Appeal

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Interrogate

Catchwords

1. Limitation of Actions
2. › Extension of limitation period
3. › Defamation
4. › Whether not reasonable in the circumstances to have commenced proceeding within one year from publication
5. › Pursuit of alternative complaint process (ACMA) instead of litigation
6. › Whether alternative complaint process analogous to settlement negotiations
7. › Limitations of Actions Act 1958 (Vic), ss 5(1AAA), 23B
1. Limitation of Actions
2. › Extension of limitation period
3. › Defamation
4. › Discretion as to length of extension
5. › Whether 'up to 3 years' confers discretion or mandates full extension
6. › Uniform national legislation
7. › Limitations of Actions Act 1958 (Vic), s 23B(2)
1. Appeal
2. › Leave to appeal
3. › Whether doubt raised as to correctness of decision below
4. › Intermediate appellate court following interpretation of uniform legislation by another intermediate appellate court

Quick Take

Pursuing an alternative complaint or regulatory process (such as an ACMA complaint) instead of commencing defamation proceedings does not automatically satisfy the 'not reasonable in the circumstances' test under s 23B(2) of the Limitations of Actions Act 1958 (Vic). The test is objective: the court must be satisfied it was not reasonable to have commenced proceedings within one year, not merely that it was reasonable to pursue the alternative process. Where the alternative process is pursued as a true alternative to litigation (rather than as a precursor to it), the test will not be satisfied. Section 23B(2) confers a discretion as to the length of any extension granted, not a mandatory extension to the full three-year period.