Practice and procedure prior to legal action

Contributed by Carolyn Tan and current to 1 September 2005

LIMITATION PERIODS

To take legal action for defamation, proceedings must be issued before the limitation period expires. For cases of slander actionable without proof of special damage, the limitation period is 2 years from the defamatory publication and for libel it is 6 years from the publication. However if you wish to sue a newspaper or any person responsible for the publication of a newspaper for a libel, then, by virtue of the Newspaper Libel and Registration Act 1884 (WA), the limitation period in WA is reduced to 1 year.

The proposed uniform defamation laws are likely to reduce the limitation period for all matters to 1 year, but with the power of the court to extend it to 3 years. It is not clear if the power to extend time will apply to newspaper libel or not.

WHAT IF I AM THREATENED WITH A DEFAMATION ACTION?

It is common for a person alleging defamation to send or receive a letter of demand before legal proceedings are started. The usual demand points out the defamatory statement and asks for an apology and damages and an undertaking not to make such statements. Sometimes the form of the apology is drafted and the person who is alleged to be the defamer is asked to publish it in a newspaper.

If you receive such a letter, it is important to seek legal advice before responding. Such advice can be sought from a private lawyer or a community legal centre. Details of lawyers who practise in the area may be obtained from the Law Society. Consideration can be given to whether to apologise or offer a payment to settle, or whether to fight on and take the risk that the person will sue. Under the current law in WA, it is possible for apologies to be used against the person making the apology, so care must be taken as to how this is offered.

If the proposed uniform defamation law is passed in WA, then there is likely to be a process of a formal offer to make amends; advice should be sought on that. It is also proposed that evidence of an apology will not be able to be used against the person making it.

Legal action is usually brought in the Supreme Court but can be brought in other lower courts as well. As defamation actions are usually very technical and complicated, it is not recommended to proceed with them without a lawyer. There are often many interlocutory disputes before trial about the wording of statements of claim and defences and many complicated rules of pleading. This all adds to the already costly process of a defamation claim.