SUPREME COURT OF QUEENSLAND CITATION: State of Queensland v O Keefe [2016] QCA 135 PARTIES: STATE OF QUEENSLAND (applicant/appellant) v CHRISTOPHER LAURENCE O KEEFE (respondent) FILE NO/S: Appeal No 9321 of 2015 DC No 3153 of 2015 DIVISION: PROCEEDING: Court of Appeal Application for Leave s 118 DCA (Civil) ORIGINATING COURT: District Court at Brisbane Unreported, 20 August 2015 DELIVERED ON: 31 May 2016 DELIVERED AT: Brisbane HEARING DATE: 13 April 2016 JUDGES: ORDERS: Philip McMurdo JA and Mullins and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made 1. Application for leave to appeal granted. 2. Appeal dismissed. 3. The applicant must pay the respondent s costs of the application for leave and the appeal. CATCHWORDS: LIMITATION OF ACTIONS EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS OTHER CAUSES OF ACTION AND MATTERS where a police officer in the internal investigations branch published a briefing note to a superior officer alleging misconduct by the respondent in connection with the investigation of a traffic accident where the respondent was stood down from duty on the same date the briefing note was published and about 10 months later was charged with the criminal offence of misconduct and suspended from duty without remuneration where the respondent become aware of the briefing note when suspended from duty and about 11 months later received notice from the prosecution that an indictment would not be presented where the respondent applied to extend the limitation period for commencing a defamation proceeding in respect of the briefing note where during the limitation period of one year the respondent was addressing the criminal proceeding related to the alleged misconduct and his suspension without remuneration where an extension of time to commence
COUNSEL: SOLICITORS: 2 proceedings for defamation was granted whether the primary judge erred in considering circumstances arising after the limitation period s expiration in deciding whether the test under s 32AA Limitation of Actions Act 1974 (Qld) was satisfied whether it was not reasonable in the circumstances for the respondent to have commenced the action within one year of publication Limitation of Actions Act 1974 (Qld), s 10AA, s 32A Houda v State of New South Wales [2012] NSWSC 1036, considered Jamieson v Chiropractic Board of Australia [2011] QCA 56, considered Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50, followed Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175, considered P J Favell for the applicant/appellant K A Barlow QC, with A D Scott, for the respondent G R Cooper, Crown Solicitor for the applicant/appellant QPU Legal Group for the respondent [1] PHILIP McMURDO JA: I agree with Mullins J. [2] MULLINS J: Mr O'Keefe was successful in obtaining an order from the learned District Court judge on 20 August 2015 extending the time to 3 September 2015 for him to bring a claim for defamation against the applicant. The parties costs of the application were ordered to be costs in the cause in any action for defamation brought within the extended time. The applicant applies for leave to appeal the order extending time on the basis the primary judge made errors in law in granting the extension. Mr O'Keefe has filed a notice of contention, foreshadowing that he will contend the decision of the primary judge should be affirmed on the ground that it was not reasonable for him to have commenced proceedings or, alternatively, that it was reasonable for him not to have commenced proceedings from the anniversary of the publication of the alleged defamatory words until after the decision of the Director of Public Prosecutions on or about 11 May 2015 not to present an indictment and that the delay thereafter was also satisfactorily explained and was reasonable. The alleged defamation [3] Mr O'Keefe was at all material times a constable of the Queensland Police Service (QPS) stationed in Mackay. [4] Mr O'Keefe had investigated the complaint made by a member of the public in July 2012 about her vehicle being damaged in a traffic accident outside her house. Mr O'Keefe discovered the damage had been caused by one Mr Choy, charged Mr Choy with driving without a licence, and completed and provided to the court a form known as a QP9.
3 [5] Inspector Massingham who worked in the QPS internal investigations branch on or about 13 August 2013 published a document entitled Executive Briefing Note to the Acting Chief Superintendent of the QPS, Ethical Standards Command recommending that Mr O'Keefe be stood down from duty as a police officer. [6] The following words were in the briefing note: The investigation has established clear evidence Constable O Keefe knew of the serious matter being investigated and has concluded Constable O Keefe has failed to charge Mr Choy with all relevant offences, and knowingly included false information in the QP9 in order to benefit Mr Choy in his court appearance The investigation has obtained sufficient evidence to consider a charge of Misconduct in relation to public office, under s92a Criminal Code. The alleged conduct, if proved, is in direct conflict with the objectives of the Service to enhance community safety and increase community confidence and satisfaction with police. It is recommended the allegations should be subject to a disciplinary proceeding Stand down action may be appropriate having regard to the serious nature of the alleged conduct, strength of the evidence, the conflict of the alleged misconduct with the objectives of the Service and likely sanctions that may result from disciplinary action. [7] On 13 August 2013 Mr O'Keefe was stood down from duty by Acting Assistant Commissioner Codd. On 18 June 2014 Mr O'Keefe was issued with a notice to appear on a charge of misconduct in public office pursuant to s 92A of the Criminal Code (Qld). (Although Mr O'Keefe s solicitor stated in his affidavit that Mr O'Keefe was issued with the notice to appear on 20 June 2014, the copy of the notice to appear that is exhibited to the affidavit shows it was served on 18 June 2014.) The particulars of the charge set out on the notice to appear were that Mr O'Keefe failed to perform a function of his office in charging Mr Choy with traffic offences. [8] On 20 June 2014 Mr O'Keefe was suspended from duty with remuneration and served with a notice to show cause as to why remuneration should not be suspended. It was at that stage that Mr O'Keefe s solicitor was provided with a copy of the briefing note dated 13 August 2013, as it was an attachment to the suspension notice and show cause notice. Mr O Keefe was suspended without remuneration on 8 July 2014. Counsel on behalf of Mr O'Keefe conceded before the primary judge that, for the purpose of the application, the briefing note came to Mr O'Keefe s attention on or about 20 June 2014. [9] Mr O'Keefe s solicitor did not receive the brief of evidence prepared by the prosecution in respect of the criminal charge against Mr O'Keefe until 22 August 2014. Mr O'Keefe and his solicitor then concentrated their efforts on resolving the criminal charge and attempting to have Mr O'Keefe reinstated to the police service or to have his wage reinstated. On 28 January 2015 Mr O'Keefe was committed for trial on the criminal charge. His solicitor made written submissions on 4 February 2015 to the Director of Public Prosecutions as to why the prosecution should not proceed. Mr O'Keefe s solicitor received notification from the Director of Public Prosecutions on 11 May 2015 advising that an indictment would not be presented against Mr O'Keefe.
4 [10] When Mr O'Keefe s solicitor first saw the briefing note, he considered it was defamatory of Mr O'Keefe, but that as it was published in the course of Inspector Massingham s duties as an officer of the QPS, it also seemed clear that it was published on an occasion of qualified privilege. When Mr O'Keefe s solicitor received the criminal brief of evidence on 22 August 2014, it became clear to him that there were no factual or legal bases for the statements made in the briefing note to the effect that Mr O'Keefe had failed to charge Mr Choy with all relevant offences and knowingly included false information in the QP9, and that a defence of qualified privilege may not succeed. Mr O'Keefe s solicitor sought advice from counsel in July 2015 about the defamation claim. The application seeking the extension of time to bring the defamation claim was then filed on 13 August 2015. The relevant legislation [11] Under s 10AA of the Limitation of Actions Act 1974 (Qld) (the Act) an action for defamation must not be brought after the end of one year from the date of the publication of the matter complained of. [12] Section 32A of the Act provides: (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. The primary judge s decision [13] The reasons for the primary judge s decision are encapsulated in the following paragraphs from his judgment given ex tempore: I am of the view that the applicant s solicitor acted professionally and appropriately in having regard to the potential defence of qualified privilege pursuant to s 30 of the Defamation Act in not advising the applicant to commence an action for defamation when he became aware of the contents of the briefing note. I am of the view that it was not until the full brief of evidence was provided and the conclusions in the briefing note could be tested that an assessment could properly be made as to the likelihood of a defence pursuant to s 30 being successful.
5 I am satisfied that it was not reasonable in the circumstances for the applicant to have commenced an action in relation to the alleged defamatory matter in the briefing note within one year of the date of the publication because it was not until the 28 th of August 2014 that the prospective action could be viewed in a manner which took into account not only the allegedly defamatory material in the briefing note but also the basis for the assertions which were made, in the full brief of evidence. Grounds of appeal [14] The applicant relies on the alleged errors of law made by the primary judge and the question of law raised in Mr O'Keefe s alternative ground in the notice of contention as warranting the grant of leave. [15] The errors of law alleged by the applicant can be summarised as: (a) (b) failing to find Mr O'Keefe had not shown that it was not reasonable in the circumstances for him to have commenced an action for defamation in respect of the publication of the briefing note within one year of the date of publication; considering circumstances that arose after the expiration of the limitation period as determining whether it was not reasonable for Mr O Keefe to have commenced an action for defamation within the limitation period and, in particular, the circumstance where Mr O'Keefe s lawyer formed a view about the defamation claim during the limitation period, but revised that view on receiving further evidence after the limitation period expired. Did the primary judge apply the wrong test? [16] The nature of the test which must be applied by the court under s 32A of the Act was considered in Noonan v MacLennan [2010] 2 Qd R 537. Keane JA noted at [15] that s 32A(2) of the Act proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence an action to vindicate his or her legal rights in accordance with the time limits provided by law and 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. [17] After analysing the procedures provided for in division 1 of part 3 of the Defamation Act 2005 (Qld) and noting that s 32A(2) of the Act is apt to encompass a case where the plaintiff has been engaged in the pursuit of non-litigious processes to vindicate his or her rights, Keane JA stated at [17]: 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
6 success or to the quantum of damages which might have been expected to be recoverable as to render the commencement of proceedings unreasonable. [18] Keane JA at [20] reached these conclusions about the test under s 32A(2): The test posed by s 32A(2) is an objective one. When s 32A(2) refers to the circumstances, it means the circumstances as they appear objectively to the court and not the circumstances which the plaintiff believed, however unreasonably, to exist. [19] Relevantly, Keane JA also observed at [22]: Consideration of the issue of reasonableness must commence from the position that the Act lays down strict time limits for the commencement of proceedings for damages for defamation. No doubt the legislature was moved to fix these strict limits for good reason. These limits are part of the law of the land to be observed by all persons save where s 32A(2) is engaged. And on any view of s 32A(2) of the Act, it operates by reference to what is reasonable. [20] Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 was another matter where the Court of Appeal considered whether there was any error in the granting of the extension to Ms Pingel to commence an action for defamation. Fraser JA stated at [34]: Under s 32A the answer to the question whether it was not reasonable in the circumstances for the plaintiff to have sued within the limitation period determines the result of an application for an extension of time. Noonan v MacLennan & Anor established that the test is an objective one. No element of judicial discretion is involved in the decision whether or not an extension should be granted. (footnote omitted) [21] Applegarth J at [87] of Pingel summarised the propositions from Noonan: 1. The burden is on the applicant for an extension of time to point to circumstances which make it not reasonable in the circumstances to have commenced an action within one year from the date of the publication. 2. The circumstances that might give rise to an extension are left at large. 3. The test posed by s 32A(2) is an objective one. It is not satisfied by showing that the applicant believed that he or she had good reason not to sue. 4. If the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within the one year period, then it must extend the limitation period. Unlike other extension of time provisions, there is no discretion whether or not to extend time. A discretion exists as to the length of the extension to be granted which, in any event, may not exceed three years from the date of the defamatory publication. 5. The section requires more of an applicant than to show that it would have been reasonable not to commence an action until
7 after the one year period had expired: the court must be satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within the one year period. 6. The circumstances must be sufficiently compelling to satisfy the court that it was not reasonable in the circumstances to commence an action within the one year period the law ordinarily requires litigants to commence proceedings. 7. Section 32A of the Act proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence an action to vindicate his or her legal rights in accordance with that time limit. (footnotes omitted) [22] In Jamieson v Chiropractic Board of Australia [2011] QCA 56, White JA at [20] cautioned against restating the unusual wording of s 32A(2) of the Act with different expressions that may carry different meanings of emphasis: compare Noonan at [48] and [51]. [23] The applicant s primary submission is that the time for considering whether it was not reasonable to have commenced an action was prior to the expiration of the limitation period of one year and the circumstances which were relevant for that determination were the circumstances which existed at the time the limitation period was running. [24] The respondent contends that the applicant s complaint that the primary judge took into account circumstances that arose after the expiry of the one year time limit in deciding that it was not reasonable to commence proceedings within that time limit is based on an erroneous understanding of the primary judge s reasons. The respondent submits that the primary judge had concluded it was not reasonable to commence the proceeding until after disclosure of the brief of evidence for the criminal charge and, as that brief was not disclosed until after the expiry of the one year period, it was therefore not reasonable for the respondent to commence the proceeding before the expiry of that period. The primary judge was confining his consideration to the events within the period of the one year limitation, even though he expressed his reasons by reference to an event that occurred after that one year period. The finding made by the primary judge that it was not reasonable to commence the proceeding until 28 August 2014 encompassed the finding that it was not reasonable to commence the proceeding within the one year period. [25] Mr Barlow QC who appeared with Mr Scott of counsel for the respondent therefore sought to rationalise the primary judge s reasoning, so that it conformed with the objective test to be applied to the circumstances applying within the limitation period. [26] It is apparent from the reasons that the primary judge s conclusion was substantially influenced by the fact that Mr O'Keefe s solicitor did not receive the full brief of evidence relating to the criminal charge until 28 August 2014 (after the limitation period had expired) and it was at that time the solicitor changed his view about the application of the defence of qualified privilege. The primary judge considered the position adopted by Mr O'Keefe s solicitors during the limitation period in the light of what was disclosed after the expiry of the limitation period in the full brief of evidence, when the focus should have been on the circumstances that applied during the limitation period, in order to evaluate whether it was not reasonable for Mr O'Keefe to have commenced the claim for defamation within that one year period.
8 [27] The primary judge therefore made an error of law by not applying the objective test under s 32A(2) of the Act to the circumstances that applied to Mr O'Keefe within the limitation period. [28] This fundamental error of law makes it an appropriate case for leave to appeal to be granted under s 118(3) of the District Court of Queensland Act 1967 (Qld), as the limitation period could be extended only if Mr O'Keefe satisfied the objective test mandated under s 32A(2) of the Act. Has Mr O'Keefe shown that it was not reasonable to have commenced the proceeding for defamation within the limitation period? [29] It was not in issue that this court is in a position to decide, on the basis of the material adduced before the primary judge, whether or not Mr O'Keefe had, in fact, satisfied the objective test. [30] In Houda v State of New South Wales [2012] NSWSC 1036, McCallum J considered whether it was reasonable for solicitor Mr Houda (who was charged on 16 September 2010 with failing to comply with a request to submit to a search and resisting a police officer in the execution of his duty) not to have commenced the proceeding against the State of New South Wales for defamation in respect of the statement issued by police on 17 September 2010 about Mr Houda s arrest. The hearing of the criminal proceedings against Mr Houda commenced on 30 May 2011 and concluded on 7 October 2011 with the dismissal of both charges. By that date, the limitation period for the defamation claim had expired, but Mr Houda received notice on 19 October 2011 that the Director of Public Prosecutions was considering whether to appeal the Magistrate s decision. It was not until mid-december 2011 that Mr Houda was advised the DPP would not appeal. [31] Mr Houda explained that until the DPP indicated the Crown would not be proceeding with the appeal, he was under stress in respect of the criminal proceedings and did not turn his mind to his defamation claim. It was submitted on his behalf that the forensic strength of the Crown case in the Magistrates Court on the criminal charges was an important consideration in the assessment of the prospects of success in the defamation action. [32] McCallum J noted at [29] that the wisdom of pursuing an action for defamation required careful consideration of any likely defences, in addition to the known existence of the elements of the cause of action. McCallum J concluded at [36] that it was not reasonable for Mr Houda to attempt to pre-empt the outcome of the criminal proceedings when so much was at stake by commencing the claim for defamation before the limitation period expired. McCallum J then observed at [37]: It does not necessarily follow that every person facing criminal charges should automatically have an extension of the limitation period. My decision in the present case is based on the complete overlap between the issues raised in the criminal proceedings and by the claim in defamation, the fact that the plaintiff is a solicitor who faced the prospect of professional ramifications if he misjudged the seriousness of the criminal allegations against him and the fact that Mr Houda seeks to pursue other causes of action at the same time as the claim in defamation.
9 [33] As McCallum J observed, it is not every person facing a criminal charge arising out of circumstances linked to the defamatory statement who will be able to show that it was not reasonable to have commenced the proceeding for defamation within the limitation period, whilst the criminal charge was extant. In Mr O'Keefe s case, however, he was not only faced during the one year limitation period with the criminal charge, but also with the additional pressure of the suspension from his duties as a police officer without remuneration. The alleged defamatory statements do not coincide entirely with the particulars of the criminal charge against Mr O'Keefe, as the criminal charge did not include the allegation that Mr O'Keefe had knowingly included false information in the QP9 that was incorporated in the briefing note. There was sufficient overlap between the criminal charge against Mr O'Keefe and the alleged defamatory statements in the briefing note that made it objectively justifiable for Mr O'Keefe to focus his attention on the criminal charge in conjunction with responding to his suspension from the QPS, rather than any civil claim for defamation. [34] Even giving weight to the policy reason that underpins the limitation period of one year, Mr O'Keefe has discharged the onus he bears to show it was not reasonable due to the criminal charge arising out of the same factual matrix that resulted in the alleged defamatory statements in addition to his suspension for him to have commenced the proceeding for defamation before the expiry of the limitation period. How should the discretion to extend the limitation period be exercised? [35] As the jurisdictional question in determining whether the limitation period should be extended has been satisfied by Mr O'Keefe, there is a discretion to be exercised by the court as to the length of the extension to be granted. [36] The applicant confined its complaint to the manner in which the primary judge decided the jurisdictional question. There was no real challenge by the applicant to the manner in which the primary judge then exercised the discretion in respect of determining the length of the extension of the limitation period. The date to which the limitation period was extended was two weeks after the order granting the extension. The claim and statement of claim were, in fact, filed by that date. [37] It would not have been reasonable for Mr O'Keefe to pre-empt the outcome of the criminal proceeding by prematurely commencing the civil proceeding for the defamation claim involving much the same allegations. The delay between the advice given by the DPP in May 2015 that the prosecution would not proceed and bringing the application to extend the limitation period was satisfactorily explained by the steps taken on Mr O'Keefe s behalf in connection with his suspension from the QPS and seeking advice from counsel on pursuing the claim for defamation. I would exercise the discretion to extend the limitation period in like manner to that of the primary judge. Orders [38] The applicant s success in showing the primary judge made an error of law does not necessarily mean that the applicant should have the benefit of any order for costs. The outcome of the appeal is in favour of the respondent and the primary judge s orders will remain in effect. I therefore consider the costs of both the application for leave and the appeal should follow the outcome of the appeal.
10 [39] It follows the orders which should be made are: 1. Application for leave to appeal granted. 2. Appeal dismissed. 3. The applicant must pay the respondent s costs of the application for leave and the appeal. [40] DOUGLAS J: I agree with Mullins J also.