Don’t Let Sleeping Slanders Lie
The old law stated that in an action in defamation (to use the old language, libel and slander), the aggrieved party had six (6) years to sue.
This was drastically changed in the noughties by legislative reforms to defamation law across the Australian States, where the time limit was changed from 6 years to 1. The view was that in defamation cases, they should not fester, but be resolved comparatively quickly (although, frankly, in our experience, this does not happen too much).
Limitations of Actions Act
Section 37 of the South Australian Limitation of Actions Act, 1936, for example, now states:
- An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.
- However, 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 subsection (1) to a period of up to 3 years running from the date of the publication (but no further extension is to be allowed under any other provision of this Act).
Defamation Time Limits 3 Level Test
By this section, which is a little complicated, the Parliament has brought in what we call a 3-level test.
First, you must sue on the first anniversary (+ 1 day) of the publication of the defamation. If you don’t have the proceedings in Court by that date, you are out of time.
Second, if you don’t sue within the year, you might get an extension if the court finds it was reasonable not to have sued in that year. A classic reason for the court to grant the extension is if a plaintiff did not find out about the defamation until after a year was up.
(For example, say that X is overseas, travelling. While he is away, a newspaper prints an unfounded defamatory smear that does not name X but the circumstances make it clear to the world that the article refers to X. X returns but it is not till some months later that a friend mentions the piece in the paper. X takes a week to get hold of the offending article. By then, he is 3 months out of time. If a court accepted these facts, it would extend the time past the one year time limit.)
Thirdly, if you persuade the court that it was not reasonable to sue in the year after publication, there are 2 important matters to note:
- The court can only extend the matter by three years from publication – in other words, once it is persuaded you couldn’t sue in the first year, an extension of 2 years or less is available. Nothing can be done after 3 years from publication.* (Note that an online publication that remains published and able to be viewed by the public is still actionable, even if it was written over 3 years before); and
- If the court finds it was not reasonable for the plaintiff to sue in the first year, that does not automatically extend the time for a further 2 years from the end of the first. The court has to determine what further period is reasonable, and it has a discretion to extend the time (and by how much within the allowable limit) or not.
The most recent and leading case on this was one argued by us in the SA Supreme Court – Ferguson v State of SA & Anor (2019). In that case, Justice Stanley established one important factor in the exercise:
“The prudently self-funded potential plaintiff in an action for defamation would be ill advised to issue proceedings without assessing his or her prospects of success in the litigation. That requires more than the identification of the elements of the cause of action. It requires an assessment of the defences that might be raised and the merits of those defences.”
This case and others highlight the ‘need for prudent speed’ in pursuing a defamation case. Time limits can be critical in all sorts of litigation and actions based on defamation are no exception.
For further information please contact Peter on 8362 6400 or email Peter Jakobsen. Join our mailing list to receive updates and advice on current issues.