Extending the Limitation Period for Defamation

Extending the Limitation Period for Defamation

Defamation occurs when one person communicates false information about another that damages their reputation and causes serious harm.

In Australian law, defamation can take the form of libel (written or published statements) or slander (spoken statements). However, slander and libel have been merged to form a single term, ‘defamation’.

For a statement to be considered defamatory, it must:

• Be published to a third party.
• Identify with or be about the plaintiff.
• Damage the plaintiff’s reputation in the eyes of a reasonable person; and
• Cause that person serious harm.

Modern defamation law strikes a careful balance between freedom of expression and reputation protection, recognising both as essential to a democratic society.

Importance of Time Limits in Defamation Cases

Time is a critical factor in defamation actions. Under Australian law, defamation claims must generally be commenced within one year from the date of the publication of the allegedly defamatory material. This relatively short limitation period exists for several key reasons:

• Reputational harm occurs quickly – The longer a statement circulates unchallenged, the greater the reputational damage it causes.
• Evidence deteriorates over time; delay may impair the ability to gather reliable evidence.
• Encouragement of prompt resolution – Early action ensures fairness to both parties and reduces prolonged exposure to legal uncertainty.

Failing to act within the prescribed period can result in a statute-barred claim, meaning the courts may not allow it to proceed unless specific conditions are met for an extension.

Overview of Defamation Laws in Australia

Australia operates under a national uniform defamation law scheme, adopted across all states and territories through legislation such as the various Defamation Acts 2005.

While the core provisions are primarily consistent, each jurisdiction may have minor procedural differences.

Some key features of Australian defamation law include:

• A requirement to issue a Concerns Notice before commencing proceedings, as per the 2021 amendments.
• A statutory limitation period of one year from the date of publication.
• Courts may extend the limitation period to up to three years if it was “not reasonable” for the plaintiff to have commenced the action within the standard time frame.

One-Year Limitation Period Across Australia

Under Australia’s uniform defamation law framework, individuals wishing to pursue a defamation claim must act quickly. The standard limitation period is one year from the date of publication of the defamatory material. This rule applies uniformly across all Australian states and territories through the relevant legislation, including:

Section 10AA of the Limitation of Actions Act 1974 (Qld), which says:

An action on a cause of action for defamation must not be brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.

Section 14B of the Limitation Act 1969 (NSW), which says:

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.

Section 5 (1AAA) of the Limitation of Actions Act 1958 (Vic), which says:

An action for defamation must not be brought after the expiration of 1 year from the date of the publication of the matter complained of.

Section 20A(1) of the Defamation Act 2005 (Tas), which says:

Notwithstanding anything contained in any other Act, an action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of one year running from the date of the publication of the matter complained of.

Section 37(1) – Limitation of Actions Act 1936 (SA)

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.

Section 15 – Limitation Act 2005 (WA), which says:

An action relating to the publication of defamatory matter cannot be commenced if one year has elapsed since the publication.

Section 21B – Limitation Act 1985 (ACT), which says:

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.

Section 12(2)(b) – Limitation Act 1981 (NT), which says:

An action for defamation is not maintainable unless commenced within a limitation period of one year from the date of publication of the defamatory matter.

This one-year clock starts ticking from the moment the defamatory content is published or communicated to a third party, not from the time the plaintiff becomes aware of it.

It’s important to note that even preliminary actions, such as sending a Concerns Notice, should be initiated within this 12-month window. If court proceedings are not commenced within this period, the claim is considered statute-barred, unless the plaintiff can convince the court to grant an extension, as discussed later in the article.

Rationale Behind the Short Timeframe

At first glance, a 12-month limitation period may seem unreasonably short compared to other civil claims, such as personal injury, which typically allows three years.

However, defamation cases are treated differently for several sound legal and policy reasons:

Protecting Reputation Requires Urgency

The essence of a defamation claim lies in damage to a person’s reputation, which can deteriorate rapidly once a defamatory statement is made public.

Delays in responding allow false information to spread further, making the harm more challenging to contain.

Encouraging Prompt Dispute Resolution

The law promotes early action to resolve reputational disputes efficiently.

The short timeframe discourages plaintiffs from allowing grievances to linger unresolved, which could unfairly burden defendants with legal uncertainty long after publication.

Preserving the Integrity of Evidence

Defamation cases often hinge on eyewitness accounts, digital records, and contextual facts.

The sooner a claim is brought, the more reliable the evidence will be. A short limitation period reduces the risk of faded memories, lost documentation, or altered online content.

Protecting Free Expression and Media

From a public interest standpoint, publishers, journalists, and media outlets should not face indefinite legal exposure.

The one-year rule ensures that claims are addressed promptly, enabling publishers to move forward without the perpetual risk of litigation over past content.

Balancing Rights Fairly

Ultimately, the limitation period reflects a balancing act between two fundamental rights:

• The right of individuals to protect their reputation, and
• The right of others to speak freely and without fear of delayed litigation.

This legislative compromise ensures that both rights are respected in a way that promotes transparency, accountability, and swift justice.

Circumstances Under Which Courts May Extend the Limitation Period

Although defamation claims in Australia must ordinarily be commenced within one year of publication, courts have the discretion to extend this period in exceptional circumstances. This is not automatic and requires the plaintiff to satisfy the court that it was “not reasonable in the circumstances” for them to commence the action within the initial 12-month timeframe.

Some common circumstances that may justify an extension include:

• Delayed discovery of the publication – where the plaintiff was unaware of the defamatory content until after the limitation period had already commenced.
• Mental or physical health issues – impairments that prevented the plaintiff from taking timely legal action.
• Legal or professional advice – situations where a solicitor’s advice (even if mistaken) led the plaintiff to delay proceedings in good faith.
• Ongoing criminal proceedings – where a plaintiff refrains from filing a claim to avoid prejudicing their defence in a criminal matter.
• Other compelling or unique situations – such as awaiting the outcome of an investigation, loss of legal representation, or financial hardship that impeded access to justice.

However, the plaintiff must firmly demonstrate that the delay was justified considering the full circumstances. The courts will critically assess the credibility, evidence, and motivations behind the request for an extension.

Maximum Extension of Up to Three Years

Even if an extension is granted, it is subject to a hard cap: defamation proceedings cannot be commenced more than three years after the date of the publication.

This three-year limit is absolute. It represents the outer boundary of the court’s power to allow late claims. Once this period has elapsed, no action can proceed, regardless of how compelling the reason for the delay may be.

The rules around limitation period extensions are embedded within each jurisdiction’s defamation and limitation statutes. While language may vary slightly, the core test is consistent across Australia: whether it was not reasonable in the circumstances for the plaintiff to commence proceedings within one year.

Here are the key legislative provisions for extending the time:

• Section 32A – Limitation of Actions Act 1974 (Qld)
• Section 56A – Limitation Act 1969 (NSW)
• Section 23B – Limitation of Actions Act 1958 (Vic)
• Section 20A(2) – Defamation Act 2005 (Tas)
• Section 37(2) – Limitation of Actions Act 1936 (SA)
• Section 40(3) – Limitation Act 2005 (WA)
• Section 21BB – Limitation Act 1985 (ACT)
• Section 44A – Limitation Act 1981 (NT)

Most of these laws were introduced alongside the Defamation Acts in 2005, forming part of Australia’s nationwide effort to implement uniform defamation laws.

Factors Courts Consider When Granting Extensions

When a plaintiff seeks to pursue a defamation claim outside the standard one-year limitation period, they must convince the court that it was “not reasonable in the circumstances” to have commenced proceedings within that timeframe.

This is not a simple box-ticking exercise; courts undertake a holistic assessment, considering the individual’s situation, the available evidence, and the broader legal context. While there is no fixed checklist, several key factors consistently shape the court’s analysis.

Whether It Was ‘Not Reasonable’ to Commence Proceedings Within the Standard Period

The central threshold question under law is whether, on the facts of the case, it was objectively unreasonable to expect the plaintiff to file their claim within one year of publication. The bar is high: mere oversight or delay is not enough.

Courts will examine:

1. The plaintiff’s awareness of the defamatory publication,
2. Their conduct during the limitation period,
3. Efforts (if any) to resolve the matter outside court, and
4. Whether the delay appears strategic, negligent, or genuinely unavoidable.

In essence, the law recognises that life circumstances can complicate timely legal action, but only exceptional cases will satisfy the threshold.

Impact of Personal Circumstances

Courts are willing to consider personal hardships that might explain a delay, particularly where these impair the plaintiff’s ability to take action.

Common examples include:

1. Mental health conditions, such as depression, trauma, or cognitive decline.
2. Physical health issues that limit the capacity to engage with legal processes.
3. Financial hardship, especially if it directly affects access to legal representation.

However, these factors must be substantiated with evidence. For instance, in Joukhador v Network Ten Pty Ltd [2021] FCAFC 37, the plaintiff’s claim of being depressed and unwell was rejected due to a lack of medical documentation. The court found he was “wilfully blind” to the defamatory publication and thus did not meet the standard for an extension.

Influence of Criminal Proceedings on Defamation Claims

Courts recognise that ongoing or anticipated criminal proceedings can create legitimate reasons for deferring a defamation claim.

Plaintiffs may wish to avoid jeopardising their defence or public perception during criminal litigation.

In Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385, for example, the court granted an extension after finding that the plaintiff:

1. Was advised to delay action due to the criminal proceedings,
2. Sought to avoid prejudicing his legal defence, and
3. Was engaging with law enforcement to resolve the criminal matter.

This case illustrates how parallel legal pressures can create justifiable delays, provided the plaintiff acts in good faith and the court is satisfied that the delay served a legitimate legal strategy.

Role of Solicitor Advice in Delaying Legal Action

Another relevant factor is whether the plaintiff received legal advice that caused them, reasonably or unreasonably, to delay filing a claim.

While incorrect legal advice does not automatically warrant an extension, it can carry weight if:

1. The advice came from a trusted or appointed legal representative,
2. The plaintiff acted on it in good faith, and
3. There is evidence that the plaintiff misunderstood or misinterpreted the advice, through no serious fault of their own.

In Akbari v State of Queensland [2022] QCA 74, the Queensland Court of Appeal accepted that the plaintiff had delayed legal action based on solicitor advice given during a regulatory investigation.

The court held that it was not unreasonable, given the plaintiff’s distress and mental state, to rely on that advice, even if it later proved mistaken.

A Case-by-Case Balancing Act

When considering extensions, courts exercise a discretionary power, not a mechanical one. Each case is decided on its facts, weighing fairness to the plaintiff against the defendant’s right to finality.

The overarching question is simple: Would a reasonable person in the plaintiff’s position have acted differently? If the answer is no, an extension may be granted of up to the three-year cap.

Notable Case Law – Extending the Limitation Period for Defamation

The case extracts below reflect a consistent judicial trend: courts take a strict view on extensions, requiring objective, well-evidenced, and exceptional reasons for not commencing defamation proceedings within the statutory one-year window.

Noonan v MacLennan

In Noonan v MacLennan [2010] QCA 50, Keane JA (at [15]–[18]) described the circumstances that justify an extension as:

“Relatively unusual,” “special,” and “compelling.”

At [51], the Court said:

The circumstances which might justify an extension are left at large. Nevertheless, they must be so compelling as to make it positively unreasonable for a person defamed not to exercise his legal rights to sue within the statutorily designated period.

The case highlights that merely being aware of a defamatory publication and delaying a lawsuit without substantial cause may likely defeat the extension application.

Carey v Australian Broadcasting Corporation

In Carey v Australian Broadcasting Corporation [2012] NSWCA 176, Beazley JA at [55]–[57] provided influential commentary that shaped how the test is to be interpreted across jurisdictions:

The statutory test does not direct attention to whether it was reasonable not to have commenced proceedings. It requires the court to be satisfied it was not reasonable to have commenced an action within one year from the date of publication of the defamatory matter. This view is consistent with the preferred view given to the section in Noonan v MacLennan.

This was cited with approval in Akbari v State of Queensland [2022] QCA 74.

Akbari v State of Queensland

In Akbari v State of Queensland [2022] QCA 74, McMurdo JA (at [24]) emphasised that the test in section 32A of the Limitation of Actions Act 1974 (Qld) is objective, not subjective. It is not about whether the plaintiff believed they were acting reasonably, but rather whether it was objectively unreasonable to commence proceedings within the one-year timeframe.

Pingel v Toowoomba Newspapers Pty Ltd

In Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175, Applegarth J (at [87]) emphasised that the court does not have discretion to extend time simply because it seems fair or just. It must be based on the statutory test being met, saying:

The Court must be satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced the action within the limitation period.

The case also supports the notion that failures by a solicitor are usually attributed to the plaintiff.

Richards v Hutchinson

In Richards v Hutchinson [2024] QSC 73, the Supreme Court of Queensland refused to extend the limitation period for a defamation claim under section 32A of the Limitation of Actions Act 1974 (Qld).

Ms Richards brought the claim more than two years after the defamatory material was published (29 February 2020), which was well beyond the standard one-year limitation period under s 10AA.

To obtain an extension, Ms. Richards had to demonstrate that it was not reasonable in the circumstances to commence proceedings within one year. The Court held:

1. She knew the publication and its authors by March–August 2020.
2. She had engaged solicitors by September 2020 and provided them with the relevant documents.
3. She had ample opportunity to seek legal advice and file within the time frame, but failed to do so.
4. There were no compelling circumstances to justify the delay.

Accordingly, no extension was granted, and the defamation claim related to the 2020 publication was barred and dismissed via summary judgment.

McVicker v Australian Broadcasting Corporation

In McVicker v Australian Broadcasting Corporation [2023] QDC 167, the Queensland District Court ruled that Mr McVicker’s defamation claims were only actionable for publications made on 28, 29, and 30 June 2021. This was due to changes introduced by the Defamation (Model Provisions) and Other Legislation Amendment Act 2021 (Qld), which implemented the single publication rule from 1 July 2021.

Under the amended Limitation of Actions Act 1974 (Qld):

1. The limitation period for defamation is 1 year from the first upload of the defamatory material (s 10AA).
2. The single publication rule (s 10AB) applies to subsequent content downloads before 1 July 2021 only if the download occurs after that date.

Since McVicker filed his claim in June 2022, most of the alleged publications were outside the time limit.

The Court granted summary judgment to dismiss any defamation claims arising after July 1, 2021, noting that no application for an extension of time had been made.

Consequences of Missing the Limitation Period

If a plaintiff fails to initiate defamation proceedings within the statutory limitation period—typically one year, extendable to three in limited cases—their claim becomes statute-barred. This means the legal right to pursue the claim expires, regardless of the case’s merits.

When a defamation claim is statute-barred:

• The defendant can apply to have the proceedings struck out at an early stage.
• The court may refuse even to hear the matter, no matter how severe the alleged reputational harm.
• The plaintiff loses their right to any legal remedy, including damages or injunctive relief.

In practical terms, missing the deadline closes the door on legal options.

No amount of retrospective justification can revive a claim once the maximum limitation period has passed; courts have no discretion beyond the statutory three-year limit.

How Courts Handle ‘Statute-Barred’ Defamation Claims

When a defendant argues that a claim is time-barred, courts treat the limitation issue as a threshold matter. This means it must be resolved before the substance of the defamation allegation is even considered.

If the limitation defence is raised:

• The plaintiff may attempt to apply for an extension, citing the reasons for delay.
• The court will assess whether it was not reasonable to file within the standard timeframe.
• If the court is not persuaded, it will likely dismiss the claim on procedural grounds, regardless of whether the defamatory statement was damaging or false.

Notably, in Carey v Australian Broadcasting Corporation and Joukhador v Network Ten Pty Ltd, the courts showed little tolerance for delays without compelling justification. These cases illustrate the rigidity of limitation rules in defamation law and underscore the importance of acting promptly.

Importance of Timely Legal Action

In defamation, time is reputation. The law is designed to encourage swift action, not only to protect individuals but also to reduce the long-term burden on courts and defendants.

Delays can have several unintended consequences:

• The plaintiff may lose access to vital evidence, such as social media posts or witness testimony.
• The defamatory statement may continue to circulate and inflict ongoing harm.
• Potential defences (such as “offer to make amends”) may no longer be available.

Prompt legal action enables better outcomes, more efficient resolutions, and improved chances of success, especially if early remedies such as retractions or apologies are still on the table.

Conclusion and Key Takeaways

If you believe a defamatory statement unfairly damages your reputation, timing is everything. Here are some practical steps to protect your rights:

• Act quickly: Do not wait to see if the situation “blows over.” Delay could result in the loss of your right to sue.
• Gather evidence: Save copies of the publication, screenshots, and witness statements—especially before content is removed or altered.
• Serve a Concerns Notice promptly (especially in NSW and other jurisdictions where it’s a legal prerequisite to suing).
• Avoid online retaliation: Responding emotionally on social media can undermine your credibility and weaken your claim.

Importance of Legal Consultation

Defamation law is complex, and limitation issues are notoriously unforgiving. Consulting an experienced defamation lawyer early can:

• Clarify your options,
• Help initiate the correct pre-litigation steps (like a Concerns Notice), and
• Ensure you don’t miss key deadlines.

A legal professional can also assess whether there are grounds to seek an extension and prepare a compelling case if needed.

Steps to Take if Approaching the Limitation Deadline

If the one-year mark is approaching—or has already passed—do not panic. But act fast:

1. Contact a defamation lawyer immediately.
2. Review when the publication was made and whether it was discovered late.
3. Prepare supporting evidence, such as health records, legal advice, or reasons for the delay.
4. File an extension application (if justified) before the three-year outer limit expires.

Above all, avoid the assumption that time is on your side—in defamation, it rarely is.

Extending the Limitation Period for Defamation FAQ

Navigating defamation law in Australia can be complex, especially when it comes to strict time limits for bringing a claim.

This FAQ addresses common questions about the one-year limitation period, extensions, and the necessary steps to take when approaching a deadline.

What is the limitation period for bringing a defamation claim in Australia?

In Australia, the standard limitation period for a defamation claim is one year from the date of publication. This applies uniformly across all states and territories under the national defamation law scheme. The one-year period begins when the material is published or communicated to a third party, not when the plaintiff becomes aware of it. If you wait too long, your claim may be permanently barred.

Why is the defamation limitation period only one year?

The short timeframe reflects the need to address reputational harm swiftly. Delayed action can exacerbate damage, facilitate the spread of misinformation, and lead to the loss of evidence. The law also aims to protect free expression and provide certainty to publishers. It’s a careful balancing act between competing public interests.

Can the one-year limitation period be extended?

Yes, Australian courts can extend the period up to three years, but only in exceptional circumstances. The plaintiff must prove that it was not reasonable, in the circumstances, to commence the claim within the standard timeframe. This is a strict legal test, and extensions are rarely granted. Courts assess the reasons for delay carefully before making a decision.

What are examples of valid reasons for extending the limitation period?

Common reasons include late discovery of the publication, ongoing criminal proceedings, serious health issues, or legal advice that caused the delay. The plaintiff must show that these reasons genuinely prevented timely legal action. Courts require credible evidence, such as medical records or legal correspondence. Each case is judged on its individual facts.

Is forgetting to sue in time enough to get an extension?

No, simple oversight or neglect is not considered a valid excuse. Courts look for compelling and unavoidable reasons for the delay. If the plaintiff was aware of the defamation but took no meaningful steps, they’re unlikely to receive an extension. Reasonableness is judged objectively, not based on personal belief.

Does advice from a solicitor affect whether an extension is granted?

It can, but it depends on the context. If a plaintiff delayed based on legal advice, especially from a trusted source, courts may consider this favourably. However, not all mistaken advice justifies an extension; the plaintiff must also have acted in good faith. Courts expect individuals to act diligently even when relying on professional guidance.

How do criminal proceedings impact defamation claims and time limits?

If a plaintiff is involved in or anticipating criminal charges, they may delay suing to avoid prejudicing their defence. Courts acknowledge that running two legal battles simultaneously can be unfair. In such cases, delaying a defamation claim might be considered reasonable. This was a key factor in Lehrmann v Network Ten Pty Limited [2023] FCA 385.

What is the maximum time allowed to bring a defamation claim?

Even if a court grants an extension, no defamation claim can be brought more than three years after the date of publication. This three-year cap is absolute and cannot be overridden, regardless of the strength of the justification. It sets a final boundary for initiating legal action. After this point, the right to sue is lost entirely.

What factors do courts consider when deciding to grant an extension of time?

Courts take a holistic view of the plaintiff’s conduct, reasons for delay, and whether action was realistically possible. They examine factors such as health, legal advice, personal hardship, or the complexity of the case. The central test is whether it was objectively not reasonable to have filed within one year. Each case is evaluated on its merits and supported by the evidence.

What happens if you miss the one-year deadline and don’t obtain an extension?

If you miss the deadline and fail to obtain an extension, your defamation claim is statute-barred. The defendant can have the case dismissed without the court even considering the substance of the claim. You’ll be unable to recover damages or seek any remedy. It’s crucial to act early to avoid this outcome.

Do you have to send a Concerns Notice within one year?

Yes, it’s highly advisable to send a Concerns Notice within the one-year limitation window. In jurisdictions like Qld, it’s a legal requirement to do so before commencing proceedings. Delays in sending the notice can reduce your chances of securing a court extension. Taking timely preliminary steps is essential to preserve your rights.

What was the court’s decision in Richards v Hutchinson (2024)?

In Richards v Hutchinson [2024] QSC 73, the court refused to grant an extension of time. Ms Richards knew about the publication early, had legal representation, and had ample opportunity to act. The court found no compelling reason for her delay. Her defamation claim was dismissed as out of time.

What did McVicker v ABC (2023) clarify about timing in defamation cases?

McVicker v ABC [2023] QDC 167 confirmed that claims must relate to publications made within one year of the action being filed. The case also highlighted the single publication rule, which was introduced as of 1 July 2021. McVicker’s claims related to older content and were mostly barred for being too late. No application for extension was made.

What should I do if I’m approaching the one-year deadline?

Seek legal advice immediately if the one-year mark is near. Gather all relevant materials, including publication dates, evidence of harm, and any correspondence. If you believe you have a valid reason for delay, your lawyer can help prepare an extension application. However, remember that even extensions must be filed before the three-year maximum period.

Why is acting quickly so important in defamation law?

Because reputation can be harmed almost instantly, and delay weakens your legal position. Evidence may disappear or become less reliable over time. Acting promptly increases the likelihood of a settlement, apology, or favorable court outcome. Defamation law is unforgiving when it comes to deadlines, so taking early action is crucial to protect your legal rights.