Case: Warramunda Village Inc v Pryde [2001] FCA 61
Outcome: applied
Any material in response to the applicant's material in support of his motion for an extension of time should be filed and served by 4 pm on Friday 2 December.' 36 These comprehensive directions appear to have been misconstrued by the applicant. An Amended Statement of Claim was filed by the applicant on 5 December 2005. This document goes well beyond what the applicant had 'foreshadowed'. 37 The Amended Statement of Claim has changed the pleading of the date of publication, from 'between 19 August and 30 September 1999', to 'between 19 August 1999 and 30 November 1999'. The effect of this change is to plead a cause action for which the limitation period has expired. Secondly, in his Amended Statement of Claim, the applicant has added a respondent, being Catalyst Newspapers Proprietary Limited. 38 There was nothing in the grant of leave that gave the applicant the ability to add a party or to amend the substance of the claim, as the applicant has done. In particular, it is not competent, without leave, to amend a pleading if the effect of the amendment was to plead a cause of action in respect of which the relevant period of limitation had expired. 39 Because Mr Sharples is acting for himself, I think the better course is to consider his notice of motion to be an application for an extension of time in which to bring his proposed causes of action; the relevant periods of limitation having expired. 40 In an affidavit filed 11 November 2005, the applicant provides various reasons for his failure to lodge his claim within time. He says that although he became aware of the publication in late 2001, he received legal advice in March 2002 that he had insufficient evidence to found a claim in damages. He further asserts that, despite his best endeavours, he could not receive a copy of the article to enable him to pursue his action until searching the Queensland State Archives in September 2005. He contends the newspaper was not available by normal means, being posted out to supporters and members of the party. 41 In his affidavit, the applicant also contends: '5. I verily believe no prejudice will be occasioned by the respondents by an order extending time, should such an order, as a matter of law, be required to found these proceedings. 6. I verily believe there is an addition to my own interests in this litigation a public interest in bring to account people who wrongfully misuse and abuse the constitutional freedom of speech in this country, for personal advantage.' 42 One difficulty the applicant faces is his claim that he first obtained a copy of the newspaper article in late September 2005. Only at this time, the applicant claims, did he have sufficient evidence to institute legal proceedings against the various respondents. However, the applicant seeks to show a republication of the article. He points to an affidavit of Mr Ettridge, who swears that ' sometime' in December 1999, he received a copy of the Catalyst newspaper by post. Of course, this is after 30 November 1999, the end point of the period for which he contends in the Amended Statement of Claim filed 5 December 2005. 43 The applicant contends that publication occurs ' not just when the newspaper is printed. It's when it is when people read it. Every time people read something like that, it's re-published. And that's the time-frame that should be applied here'. He further stated ' the person is defamed every time someone reads it'. 44 The only evidence before the Court of publication, or re-publication of the article, is to Mr Ettridge ' sometime ' in December 1999. This is the date that the applicant contends the limitation period should commence; this is the date the applicant seeks to have as the ' publication point '. 45 The applicant contends that his ignorance of the publication should be no bar against his claim; that he did not have any reasonable way of knowing about the alleged defamation until it was told to him verbally, and he could thus make proper inquiry and obtain a copy of the newspaper. 46 The applicant's reasoning poses problems. If the applicant's contentions are correct, and it is 'just' to extend time to bring an action to the time a party learns that he has suffered damage, then there would effectively be no limitation period in respect of defamation. Unfortunately for the applicant (except for exceptions of fraudulent concealment and the like), limitation periods do not start to run from the period a person learns they have suffered damage. 47 In the original Statement of Claim the conduct on which of the respondents on which he complains is said to have taken place between 19 August 1999 and 30 September 1999. The applicant's proceedings were not commenced until 3 October 2005, which is after the affluxion of the period of limitation of six years. Even with the changes introduced by the Amended Statement of Claim filed on 5 December 2005, which extended the period so that the relevant period was 19 August 1999 to 30 November 1999, the causes were then out of time. 48 The right to bring actions under the Trade Practices Act 1974 (Cth) at the time was within the period of three years. The period of limitation by subsequent amendments to the Trade Practices Act has now been extended to six years, but those amendments were not retrospective. The applicant on any view of the relevant time period is out of time and statute barred in respect to breaches of the Trade Practices Act 1974 (Cth). 49 In respect of claims based on the Corporations Law 1999 (Cth) or compensation pursuant to the Corporations Act 2001 (Cth), the relevant limitation periods again were no more than three years. 50 Viewing the matter more generally, the present application by the applicant, is one made in early 2006, for an extension of time to bring proceedings in respect of conduct that occurred at the latest by the end of December 1999. Nothing in the material before the Court provides a basis for concluding that it would be just for the period within which to bring proceedings to be extended this time. 51 The claims for damages, with their various statutory foundations are statute barred and those claims should be struck out: see Kim v Minister for Immigration, Local Government and Ethnic Affairs and the Commonwealth of Australia (1989) FCA 770 . 52 As to the applicant's claims for declarations, s 21 of the Federal Court of Australia Act 1976 (Cth) provides: '21 Declarations of right (1) The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed. (2) A suit is not open to objection on the ground that a declaratory order only is sought.' 53 The purpose of declarations were discussed by this Court in Warramunda Village Inc v Pryde [2001] FCA 61 , where the Court, discussing the power in s 21 , said at par [8]: '...The remedy of a declaration of right is ordinarily granted as final relief in a proceeding. It is intended to state the rights of the parties with respect to a particular matter with precision, and in a binding way. The remedy of a declaration is not an appropriate way of recording in a summary form, conclusions reached by the Court in reasons for judgment. This is even more strongly the case when the conclusion is not one from which any right or liability necessarily flows.' 54 In the light of my conclusions about the various claims for damages, the present case is not one in which there would be any basis for the making of the declarations sought. 55 For the above reasons the Notice of Motion by the applicant seeking that the 'Time for issuing of these proceedings be extended if required by law until........ 2 October 2005' be dismissed and that the relief claimed in par [2] of the applicant's Notice of Motion filed 11 November 2005, namely, 'That leave be granted for further amended pleadings after the examination of the First and Second Respondents in relation to the description of persons concerned with the printing, production and publication of the newspaper known as the catalyst' be refused. 56 On the Notice of Motion by the First and Second Respondents, the Court orders that the applicant's application and statement of claim be struck out, as statute barred. 57 The applicant in the principal proceedings should pay the costs of the first and second respondents of the two Notices of Motion, to be taxed if not agreed. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 7 April 2006 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Tim Matthews Solicitor for the Respondent: Greg Ploetz Date of Hearing: 7 February 2006 Date of Judgment: 7 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/387.html