Page 3207 - Week 11 - Wednesday, 11 September 1991
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One of our terms of reference was to look at the costs incurred by the ACT courts, because defamation actions do take up a fair amount of time once they get to court. A lot, of course, are settled prior to that. There are interrogatories, there are pleadings, there are a number of documents that are filed in the lead-up process. The current court filing fee is only $240, I think; it might be $300, but that is it. After that you just file documents. Adopting a user-pays principle, perhaps further fees could be initiated by the Government to defray some of the costs of the administration of justice.
We also felt that the Government should review the use of the ACT Supreme Court for defamation actions brought by persons who do not have the ACT as their principal place of residence or reputation, including consideration as to whether an additional charge is appropriate in those circumstances.
Thirdly, we recommended that our law be amended to provide that defamation actions survive the death of either party to the action against the estate of the deceased person or, as the case may be, for the benefit of the deceased person's estate. Currently, once someone in an action dies, that is it; the action stops, no matter how much money both parties might have expended in getting it to that stage.
Defamation actions taken in the ACT have all been taken in the civil court and we could see no reason why there should be any difference between an action for defamation and an action for a debt, which certainly does not stop. For example, if a defendant died halfway through the action, the defendant's estate would be liable for any debts incurred by a defendant whilst that person was alive.
In a fourth category, we felt that our law should be amended so that the action for defamation must be brought within six months of the date of publication. As a general rule, I think that is important. If you do not bring an action within six months and you know about it, you are probably not fair dinkum about it in the first place.
Accepting that there could be exceptional circumstances, such as where the complainant could not have been reasonably expected to have learnt of the publication, there was need for some flexibility; so we suggested, again in line with the State Attorneys, an absolute limitation of three years. I cannot think of too many circumstances where someone who has been defamed would not know within six months, but perhaps someone might be overseas, uncontactable, badly injured and in a coma for a year or there might be some rare instances like that; hence the proviso to extend that to three years.
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