Forbes v Brisbane City Council & Anor [2020] QDC 239 (24 September 2020)

CITATION:	Forbes v Brisbane City Council & another [2020] QDC 239
PARTIES:	Douglas Forbes (Plaintiff/Applicant) v Brisbane City Council (ABN 72 002 765 795) (First Defendant/Respondent) and Natalie Gyetvay (Second Defendant/Respondent)
FILE NO/S:	2079/20
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	24 September 2020
DELIVERED AT:	Brisbane
HEARING DATE:	2 September 2020
JUDGE:	Byrne QC DCJ
ORDERS:	Application granted. Pursuant to section 32A of the Limitation of Actions Act 1974 (Qld), the limitation period in respect of the plaintiff’s cause of action for defamation against the first and second defendants is extended to 18 July 2020. The parties’ costs of the application be costs in the proceeding.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DEFAMATION – LIMITATION PERIOD – where the plaintiff has commenced defamation proceedings after the limitation period – where the plaintiff did not have access to the alleged defamatory material – whether under section 32A of the Defamation Act it was not reasonable for the plaintiff to commence proceedings within the limitation period.
LEGISLATION:	Criminal Code Act 1899 (Qld), s 365. Defamation Act 2005 (Qld), s 10AA, s 32A. Limitation of Actions Act 1974 (Qld), s10AA. Uniform Civil Procedure Rules 1999 (Qld), r 376.
CASES:	Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304. Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537. Nyoni v Hee (No 2) [2013] FCA 703. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175. Ritson v Gay and Lesbian Community Publishing Ltd [2012] NSWSC 483. Schoch v Palmer [2016] QSC 147. State of Queensland v O’Keefe [2016] QCA 135.
COUNSEL:	Mr A. O’Brien for the applicant. Ms. A. Nicholas for the respondent.
SOLICITORS:	Nyst Lawyers for the applicant. Barry Nilsson Lawyers for the respondent.

[1] On 17 July 2020 the plaintiff filed a Claim and Statement of Claim seeking damages for defamation. The applicant alleged the single defamatory statement was published by the second defendant on 1 May 2019. The applicant alleges that the publication by the second respondent was on behalf of, and as a servant of the first defendant.[1]

[2] Pursuant to section 10AA of the Limitation of Actions Act 1974 (“the Act”), an action for defamation must not be brought more than 12 months after the date of publication of the matter complained off.

[3] On 17 July 2020, the same day as the Claim and the Statement of Claim were filed, the plaintiff applied pursuant to section 32A of the Act for an order extending the limitation period of one year or such other period as the Court deems meet. It is that application which is before me for determination.

[4] The plaintiff had previously worked for the first defendant between January 2012 and April 2014. His Statement of Claim asserts that in late 2014 the City Council offered him a voluntary redundancy package, which the he accepted.[2]

[5] In April 2019 the plaintiff was seeking employment via a recruitment firm. He was interviewed by telephone for a position within the first defendant and subsequently was invited to take part in a face-to-face interview with a manager, which occurred on 24 April 2019. He asserts that he was told on that date that he was successful in his application, and shortly thereafter he received documents he was requested to sign and return to the first defendant.[3] The position was a temporary role for the period 7 May 2019 to 28 June 2019.[4]

[6] When he then heard nothing further, he contacted the agent from the recruitment firm (“the recruitment agent”). He was told that all documentation had been submitted and they were waiting for confirmation of his appointment.[5]

[7] On 1 May 2019 the second defendant sent to the recruitment agent an email in the following terms:[6]

Thank you for sending through the 2nd reference. I don’t want to alarm you but Doug was dismissed from Council for Performance Management issues. The approval for his appointment has been sent to the Chief HR Officer (who is also the delegate) who has requested his personal history file for review before making a final decision.

[8] On 2 May 2019 the plaintiff received an email from the recruitment agent which, so far as is relevant, was in the following terms:[7]

“I just heard back from BCC and I regret to inform you that the Manager has advised that Council will not be proceeding with your appointment to the role. BCC advised that your dismissal from the Council was for Performance Management issues, so the delegate requested your personal history file for review and has made the decision not to progress. I really do apologise for this inconvenience as it was all moving forward last time I heard, and I had completed your references (both positive).” (underlining added)

[9] The plaintiff denies that he was dismissed from employment with the first defendant for performance management issues. The defendants have jointly pleaded a defence of qualified privilege.[8]

[10] The plaintiff deposes that he rang the recruitment agent asking for copies of all communications, but that request was declined.[9] He also sought to clarify where the recruitment agent had obtained the information from and, although the query was not answered directly, the agent indicated that she had been liaising with the first defendant by phone and email.[10]

[11] On the evening of 6 May 2019 the plaintiff lodged a Right to Information request with the first defendant to obtain that, as well as other material. On 25 June 2019 he was notified that some but not all material would be released.[11]

[12] About a week after the notification of 25 June 2019, the plaintiff received a CD in the mail from the first defendant containing material released under the RTI request. He looked at it and noticed nothing of interest. On about 31 August 2019 he again reviewed the CD and this time located a redacted email.[12] It was in these terms:[13]

Thank you for sending through the 2nd reference. [redacted] The approval for his appointment has been sent to the Chief HR Officer (who is also the delegate) who has requested his personal history file for review before making a final decision.

[13] As events transpired, it is now obvious that this redacted email is a redacted version of the alleged defamatory publication (the redacted email).

[14] On 2 August 2019 the plaintiff lodged an application for internal review of the decision. In the accompanying letter he stated that he had been defamed in writing and orally by an employee of the first defendant, he reproduced the relevant passage of the email from the recruitment agent reproduced in paragraph 8 herein and he drew attention to the provisions of section 365 of the Criminal Code. He was notified on 2 September 2019 that the original decision was upheld.[14]

[15] On or about 2 September 2019 the plaintiff received legal advice to the effect that an action for defamation could not be commenced without knowing “exactly what defamatory statements had been made and by whom”.[15] The plaintiff’s affidavit is silent as to whether he had been advised about the existence of a 12 month limitation period. The respondent did not seek to cross-examine him on the affidavit.

[16] On 25 September 2019 the plaintiff applied for an external review of the RTI decision with the Office of the Information Commissioner. The plaintiff deposed, and it has not been challenged, that he pursued the RTI process in an effort to find out what had been said or written about him, and by whom.[16] In the letter which formed the basis for the application, the plaintiff asserted that he had been defamed and that the person responsible was liable.

[17] This external review was subject to delays, even though the plaintiff made regular contact with the Commissioner’s Office.[17] The delays seem to have been attributable, at least in part, to staffing leave issues in the Commissioner’s office and to reduced capacity in that office for a time due to COVID-19 working arrangements.[18] The delays are not attributable to the plaintiff.

[18] In particular, on 7 April 2020 the plaintiff received correspondence from the Commissioner indicating that the first defendant had located further relevant documentation, and that the Commissioner had requested that it be delivered to the plaintiff by 5 May 2020. It was not received until 14 May 2020.[19]

[20] On 21 May 2020 the plaintiff was advised by staff from the Commissioner’s office that the first defendant had agreed to release the documents containing the alleged defamatory publication by 28 May 2020. The plaintiff received it on 3 June 2020.[20] This is the first time that the plaintiff had seen the publication itself. He has deposed that until he saw it he had no way of finding out what the recruitment agent had told him on 2 May 2019 was correct or not.[21]

[21] On 4 June 2020 Mr Forbes the plaintiff engaged a solicitor to act on his behalf. A concerns notice was sent on 16 June 2020. It appears to have gone unanswered. On or about 29 June 2020 instructions were provided to commence proceedings. Counsel was briefed on 9 July 2020 and the pleadings were settled by Counsel on or about 14 July 2020.[22] As earlier noted, the Claim, Statement of Claim and the present application were all filed on 17 July 2020.

“(1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.

(2) 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.

(3) A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2).

(4) An order for the extension of a limitation period, and an application for an order for the extension of a limitation period, may be made under this section even though the limitation period has already ended.”

[23] Sections 10AA and 32A of the Act were introduced as part of a legislative suite that facilitated the introduction of the Defamation Act 2005. The reduction of the limitation period to one year is consistent with the broadly uniform legislation introduced across all States, and is consistent with the objects of the legislation.[23]

[24] The test under section 32A is onerous, requiring as it does the proof of a negative; that is, that the commencement of proceedings within 12 months of publication was not reasonable. It is not sufficient to demonstrate that it would have been reasonable not to commence an action within the period, the court must be satisfied it was not reasonable to commence the action within that time.[24] The difference in emphasis is important. That an onerous test has been imposed by the legislature is consistent with the policy behind the imposition of the limitation period.

[25] It is presently sufficient to note that the applicant bears the burden of pointing to the circumstances which make it not reasonable in all of the circumstances to commence the action within the limitation period. The circumstances must be sufficiently compelling to demonstrate that it was not reasonable to commence the action within the limitation period.[25] It has been observed that “... only in relatively unusual circumstances will a court be satisfied that it is not reasonable to seek to vindicate one’s rights in accordance with the law.”.[26]

[26] The circumstances to be taken into account are at large,[27] and may include the applicant’s reasons for not commencing the action within the limitation period,[28] but the focus of attention must be on those matters that existed prior to the expiration of the limitation period. Subsequent events may or may not vindicate the applicant’s decision but they are strictly irrelevant to the circumstances as they existed during the one year period.[29]

[27] Whilst the test is onerous, section 32A is a legislative recognition that there will be circumstances where it will not be reasonable for a plaintiff to commence proceedings within the legislated time limits.[30] Whilst there has been an understandable reluctance to promulgate a list of relevant factors,[31] in Noonan Keane JA observed:[32]

“One cannot seek to give an exhaustive list of the kinds of cases which might fall within s 32A(2) of the Act, but other cases which come to mind are cases where a plaintiff is not able to establish the extent of the defamation or is without the evidence necessary to establish his or her case during the year after the publication. An action brought in such circumstances might be said to be speculative or irresponsible. In such cases it might be said that the commencement of proceedings and the incurring of costs would be so disproportionate to the prospects of success or to the quantum of damages which might have been expected to be recoverable as to render the commencement of proceedings unreasonable.”

[28] In Schoch v Palmer [33] Applegarth J provided another example in the context of explaining why matters occurring after the expiration of the limitation period should not have substantial influence in the decision making process. His Honour observed:

“For example, it may not be reasonable to commence a proceeding within the one year period because the applicant awaits disclosure of evidence or the determination of another process which will have a decisive effect for a potential defence of the proposed defamation action.”

[29] If I am satisfied that it was not reasonable to commence the action within the limitation period, then there is no discretion whether or not to extend the period, although the length of any extension, up to a maximum of three years from the date of publication, has been variously described as a matter of discretion [34] or a matter of judgment.[35]

[30] In Noonan, Chesterman JA, by way of obiter, considered that it would not be appropriate to extend the limitation period past the point in time at which it would no longer be not reasonable to commence an action.[36] In Barrett v TCN Channel Nine Pty Ltd, [37] McColl JA (Simpson and Payne JJA agreeing) considered the authorities on the issue across a number of States and concluded that the power to extend the limitation period was unfettered, although it may be informed by matters including the issue identified by Chesterman JA.

[31] In State of Queensland v O’Keefe,[38] Mullins J (Philip McMurdo JA and Douglas J agreeing) considered that the delay of about three months between receiving relevant material and the date of filing the application for extension had been “satisfactorily explained”. It seems to me that this is consistent with the approach of the New South Wales Court of Appeal in Barrett v TCN.

[32] The plaintiff submitted that he had acted swiftly in an effort to gain the relevant material, and persevered in those efforts when unsuccessful. The delay was not attributable to the conduct of the plaintiff, but rather to those who were handling his RTI request and the subsequent reviews.

[33] He submitted that, on the balance of probabilities, it was not reasonable to commence an action until he had a copy of the actual publication. Counsel referred to Nyoni v Hee (No 2)[39]and to what he described as a helpful and pithy statement as to the requirements for pleading a claim in defamation.

[34] He submitted that until the copy of the publication was received on 3 June 2020, the plaintiff was only in possession of a hearsay account of the alleged defamatory publication, and so could not properly plead:

(b) The particulars of the material, namely the occasion and time of publication;

(c) The exact words used in the alleged defamatory publication and any other words necessary to properly understand the context of the publication and the imputations arising therefrom; and

(d) The truth of the words used and the context in which they were said or written.

[35] It was submitted that had the matter been pleaded on the basis of the plaintiff’s actual knowledge as at 30 April 2020, the pleadings would have been liable to be struck out as being embarrassing, and so it was not reasonable to commence a proceeding then.

[36] Counsel acknowledged that, as it transpired, the communication the plaintiff received from the recruitment agent on 2 May 2019 was shown to be substantially accurate once the copy of the alleged defamatory publication was received on 3 June 2020, but submits that this is an irrelevant consideration as it looks at matters occurring after the expiration of the limitation period.

[37] The plaintiff, in anticipation of one of the defendants’ arguments, observed that even had it been possible to commence an action against the first defendant within the limitation period (which was not conceded), there was no means of identifying the second defendant until 3 June 2020 and hence a substantially similar application to the present one, whether for extension of the limitation period or for leave under r 376 of the UCPR, would have had to be brought in any event. This, as I understood the submission, ties into a broader submission that, if the application is allowed, no prejudice is suffered by the defendants other than the avoidance of litigation.

[38] While acknowledging that the length of any extension is discretionary, the plaintiff submitted that the delay between the receipt of the copy of the alleged defamatory publication on 3 June 2020 and the commencement of proceedings and this application on 17 July 2020 was not lengthy and had been satisfactorily explained. It was further observed that no steps could have been taken until 3 June 2020, and hence it is said that it is fair that the extension be for the whole of the period.

[39] The defendants submitted that the proceedings should have instituted on or before 30 April 2020. They submit that on the plaintiff’s own account he had knowledge of particular material facts and that the email from the recruitment agent of 2 May 2019, separately and together with the redacted email, were sufficient evidence of what had been communicated on behalf of the first defendant and that was, it is submitted, sufficient to commence the proceedings. They point to some of the emails that the plaintiff sent wherein he states that he knew he had been defamed, that an employee of the City Council was responsible and that he had suffered loss as a consequence. It is said that, consequently, it was reasonable for him to vindicate his reputation by commencing proceedings within the limitation period.

[40] The defendants submitted that proceedings could have been commenced against the first defendant on the basis of the information the plaintiff held, and then amended once the email was released in the RTI process. Failing that, it was submitted, the copy of the alleged defamatory publication would have been released through the disclosure process had an action been commenced, and amendments to the pleadings could then have been effected, including an application to add the second defendant to the action. In the course of oral submissions Counsel acknowledged that this may mean that the period is extended in respect of the second defendant, but not the first.

[41] Lastly, counsel submitted that the period of 78 days between the lapsing of the limitation period and the filing of the statement of claim and the present application was not satisfactorily explained. In particular, Counsel was critical of the time taken between the receipt of the copy of the alleged defamatory publication on 3 June 2020 and the filing of the material on 17 July 2020, submitting that the plaintiff’s legal representatives had not acted with the haste to be expected where an extension of a limitation period was in issue.

[42] Drawing on the observations of Keane JA in Noonan reproduced at [27] herein, the plaintiff, in my view, falls within the category of person who is not able to establish the extent of the defamation and may not have the evidence necessary to establish his case. Also, drawing on the additional observation of Applegarth J in Schoch v Palmer reproduced at [28] herein, the plaintiff at that time was waiting for disclosure of evidence in the matter. But as those observations do not mark out rigid categories which will assure success on an application of this nature if the case falls within them, it falls to consider the circumstances of this matter against the background of those observations.

[43] From 2 May 2019, the day after publication of the alleged defamatory publication, the plaintiff had been provided with one person’s account of what the publication contained. The plaintiff has, in effect, deposed that he was unaware whether what he was told was correct or not. I accept that was his state of mind.

[44] First, he was not challenged on the assertion by cross-examination. Second, on the unchallenged evidence the interview and selection process had progressed well and he expected to be appointed. This changed suddenly. When he asked for copies of all communications from the person who had given him the account of what had occurred, his request was denied. It is unsurprising that he had doubts about the bona fides of what he had been told.

[45] It is true that only three months later, and without much if any additional information to base it on, he was representing that he had been defamed by an employee of the first defendant, an assertion he repeated just under two months later. However, in my view it is one thing to make definitive assertions about legal rights which are based on a suspicion in applications for review of a RTI decision, which RTI process is designed to obtain the alleged defamatory publication or other relevant material, and another thing to actually know that the account he had received from the recruitment agent was in fact truthful. In my view, his assertions in those communications do not deny the fact he was in fact unsure as to the true state of affairs.

[46] On the basis of the notification on 2 May 2019, the plaintiff was armed with a version of a defamatory statement and which is attributed to the first defendant, presumably by the actions of an unnamed agent or employee. If it was to form the basis of a claim alleging defamation, it would be sufficient to particularise the defamatory publication, the imputations arising therefrom and the named identity of the publisher (namely the first defendant). It may also be sufficient to allege with sufficient particularity the occasion, but not the actual time or date, of the publication.

[47] But the notification was not sufficient to ascertain the precise words used in the publication, extent of the publication (including whether there had been any re-publication), the identity of the person or persons who had actually published the material and the actual context of the publication. These deficiencies impacted on the ability to determine and assess the availability of any defences and an assessment of the appropriate quantum of damages.

[48] I need not determine if the known information would in fact be sufficient to plead a statement of claim that would resist being struck out. It is sufficient to note that such a statement of claim could not be assured of successfully resisting a strike out application.

[49] That is relevant to the assessment of reasonableness in light of the reasonability in commencing proceedings, the risk of incurring costs disproportionate to the expected quantum of costs if successful, as referred to by Keane JA in Noonan. Although the extent of the publication in this matter was at that time unknown, it always appeared that it would be limited to, at most, a relatively small group. This suggests that any successful claim for damages would be likely to be relatively modest. The plaintiff also had no real way to assess the existence or otherwise of possible defences.

[50] Once the plaintiff had been informed that defamatory statements had been made about him, he timeously set in train a legitimate process of a RTI application to discover the source of, and better details of, the statement or statements. This resulted, in part, in the provision of a copy of the redacted email.

[51] The document refers to some matters which are obviously enough also referred to in the notification. It would have been tempting to think that the redacted portion contain the alleged defamatory statement. However, regardless of the degree of suspicion, I do not consider that inference can reasonably and properly be drawn. It takes little imagination to think of many statements, other than the alleged defamatory statement replicating or to the effect of the statement in the notification, that could reasonably have been in the redacted portion.

[52] It therefore follows that although the name of the second defendant is in the signature block of that email, it cannot reasonably be thought that the plaintiff was at that time in possession of the identity of the actual publisher of the alleged defamatory statement.

[53] Further, although there is no direct evidence on the point, it appears that the plaintiff did not necessarily attribute the name on that email as being the publisher of the alleged defamatory publication. It is notable that in the application for an external review dated 25 September 2019, the plaintiff does not name the author of the redacted email as having defamed him, rather referring in non-specific terms to “[t]his person who made the defamatory statement ...”.[40]

[54] Of course, as it transpires, this was in fact a redacted version of that document, but I am unable to take that into account in assessing whether it was not reasonable to commence action within the limitation period as the plaintiff’s knowledge of that fact came about outside the limitation period.

[55] I am satisfied on the balance of probabilities that it would not have been reasonable to have commenced an action with the state of knowledge held by the plaintiff prior to the receipt of the redacted email.

[56] The receipt of the redacted email did not, in my view, then mean it was reasonable to commence action. As noted earlier, the receipt of the redacted email no doubt would have raised suspicions that it was a redacted copy of the alleged defamatory publication, but it cannot be assumed so. It therefore did nothing to cure the deficiencies in the plaintiff’s state of knowledge.

[57] There is no evidence whether the plaintiff was aware of the limitation period. It seems to me that, on the state of the evidence in this matter, this carries little or no weight either way. If he was aware of the limitation period, it does not change the fact that, in my view, it was not reasonable to commence an action during the period and so does not change the objective features. On the other hand, if he was unaware of the limitation period, that does not relieve him of the consequences of non-compliance with the law.[41] That is, it would not provide a further objective reason to consider that it was not reasonable to commence an action during the limitation period.

[58] The plaintiff did obtain legal advice on or about 2 September 2019 regarding the requirements to commence an action. There is no direct evidence that the plaintiff had this advice in mind, but it seems clear that he did. He sought the advice about 2 days after realising he was in possession of the redacted email. About three weeks later he lodged the application for the external review in an effort to obtain the details that he was advised that he needed, and regularly checked on its delayed progress. This, in my view, is consistent with him relying on the advice.

[59] The course of argument on the application has implicitly put in issue the accuracy of that advice. I do not need to determine if it was accurate or not, and that is a different issue to whether it was reasonable to rely on it. In this case I accept that the circumstances as they objectively appear to include that the plaintiff was advised in the terms earlier related, and was acting in accordance with that advice.

[60] The final relevant circumstances was the communication on 7 April 2020 from the Commissioner that the first defendant had located further relevant documentation, and the Commissioner had requested it be delivered by 5 May 2020. In my opinion, given the plaintiff was told there was further relevant documentation, but was not told the nature of it and did not expect to receive it until after the limitation period expired, it does not change the objective position as to it being not reasonable to commence an action before the expiration of the period.

[61] The defendants have submitted that, in effect, the plaintiff could have commenced an action against the first defendant and then amended the statement of claim, perhaps adding the second defendant once the identity of that person became known. The appropriateness of that approach depends on the extent to which the case can be properly pleaded without embarrassment. In some cases, and I think this is one, to do so would be inconsistent with the philosophy underlying the conduct of litigation found in rule 5 of the UCPR.

[62] In my view, given the extent of the deficiencies in the plaintiff’s state of knowledge that I have identified during the limitation period, it was not reasonable to adopt that approach in this case in respect of the first defendant. In the case of the second defendant, that approach would inevitably have resulted in the same application being heard.

[63] In summary, I accept that the plaintiff was not possessed of sufficient information to properly commence an action and was acting in accordance with legal advice as to the requirements before he could properly commence an action. It was therefore not reasonable to commence an action during the limitation period.

[64] If I am wrong about that, the only action that could have been commenced was against the first defendant. It was not until 3 June 2020 that the plaintiff was aware of the identity of the person who actually published the alleged defamatory publication, and so until then he was missing an essential piece of information required to commence that action.

[65] Being so satisfied, I must grant an extension of time although the length of the extension is a matter of discretion, or perhaps judgment.

[66] The defendants are critical of the time taken between receipt of the copy of the alleged defamatory publication on 3 June 2020 and the filing of the statement of claim on 17 July 2020; a period of 44 days. The plaintiff took steps to seek legal recourse the day after receiving the copy of the publication. After that instructions were taken, a concerns notice was issued and when it appeared it would not be responded to, instructions were given to commence proceedings, Counsel was briefed, and the Claim, Statement of Claim and the present application were drafted and filed.

[67] It is usually possible with the benefit of hindsight to criticise the conduct of litigation by reference to a timeline. However, the reality is that a period of 44 days is a relatively speedy response. It cannot be expected that both solicitors and Counsel will be in a position to devote immediate detailed attention to the matter at the moment it is brought to their attention.

[68] Whilst no doubt it might have theoretically been done more promptly, in my opinion the period of 44 days is satisfactorily explained. Given my earlier findings, the period from the expiration of the limitation period until 3 June 2020 is explained for reasons not attributable to the plaintiff.

[69] The defendants’ Counsel accepted in submissions that her clients will not suffer any prejudice over and above the advantage of avoiding litigation all together, if the extension is granted.

[70] In the circumstances I consider it appropriate to extend the limitation period to a point that permits the filing of the Claim and Statement of Claim. Out of an abundance of caution, I will make that date 18 July 2020, the day after the date on which the documents were in fact filed.

[71] The plaintiff’s application seeks an order that the parties bear their own costs of and incidental to this application. However, in his outline of submissions, the plaintiff submits that the costs of the application should be each party’s costs of the proceeding. The defendants’ written submissions sought an order that the plaintiff pay the defendants’ costs of the application, however this was predicated on the application being refused.

[72] Ordinarily a party who seeks a dispensation is ordered to pay the opposing party’s costs of the application regardless of the outcome. Here, however, the application was necessitated by the failure of the first defendant to release the critical evidence through the RTI processes in a timely manner. The second defendant had no role to play in the retention of that evidence. However, the same legal representatives appear for both defendants on the application, and it would be artificial to divide the costs as between them.

[73] In the circumstances it seems to me that the appropriate order is that the parties’ costs of the application be costs in the proceeding.

2. Pursuant to section 32A of the Limitation of Actions Act 1974 (Qld), the limitation period in respect of the plaintiff’s cause of action for defamation against the first and second defendants is extended to 18 July 2020.

^[4] Affidavit of Tyrone Prisk filed 1 September 2020 (Court Doc 6) at Exhibit G page 18.

^[6] Affidavit of Douglas Forbes filed 22 July 2020 (Court Doc 3) at Exhibit DF-14, page 84.

^[7] Affidavit of Douglas Forbes filed 22 July 2020 (Court Doc 3) at Exhibit DF-3, page 14. The date is erroneously stated to be 3 May 2019 at paragraph 6 of that affidavit.

^[11] Affidavit of Douglas Forbes filed 22 July 2020 (Court Doc 3) at [9]-[10]. Affidavit of Douglas Forbes filed by leave 2 September 2020 at [3].

^[13] Affidavit of Douglas Forbes filed by leave 2 September 2020 at Exhibit DF-A.

^[14] Affidavit of Douglas Forbes filed 22 July 2020 (Court Doc 3) at [11]-[12] and exhibit DF-6 pages 25-27.

^[17] Affidavit of Douglas Forbes filed 22 July 2020 (Court Doc 3) at [13]-[14] and exhibit DF-8 at page 35.

^[18] See for example the affidavit of Douglas Forbes filed 22 July 2020 (Court Doc 3) at exhibit DF-11 at page 45 and exhibit DF-12 at page 48.

^[19] Affidavit of Douglas Forbes filed 22 July 2020 (Court Doc 3) at [14g] – [14i].

^[20] Affidavit of Douglas Forbes filed 22 July 2020 (Court Doc 3) at [14j] and [14k].

^[28] Pingel, supra per Fraser JA at [29], per Fryberg J at [79] and per Applegarth J at [115].

^[29] State of Queensland v O’Keefe [2016] QCA 135, [26]-[28]; Schoch v Palmer, supra [17].

^[34] Noonan, supra at [47]; Pingel, supra per Fraser JA at [34]; Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304, [75].

^[35] Schoch v Palmer, supra at [18] citing Ritson v Gay and Lesbian Community Publishing Ltd [2012] NSWSC 483 at [24]- [25].

^[40] Affidavit of Douglas Forbes filed 22 July 2020 (Court Doc 3) at [13]-[14] and exhibit DF-8 at page 35.

Queensland District Court Decisions

Forbes v Brisbane City Council & Anor [2020] QDC 239 (24 September 2020)