Defamation: Leave to bring defamation proceedings out of time and absolute privilege

We review the High Court's decision in Gibson v Blunt.

In 2001, Mr Blunt wrote to the Dental Council of New Zealand complaining about the dental treatment he had received from Mr Gibson and the charges made for that work.

In later proceedings, Mr Gibson alleged that he was defamed by Mr Blunt's letter of 4 November 2001, claiming that the letter meant he was incompetent, untruthful and fraudulent in his dealings with Mr Blunt.

Mr Gibson did not issue the proceeding until 30 January 2004, outside the two-year time limit provided by the Limitation Act 1950 for defamation actions, so he applied for leave to bring the defamation action out of time under section 4 (6B) of the Limitation Act.

Section 4(6B) provides:

Notwithstanding anything in subsection (6A) of this section, any person may apply to the Court, after notice to the intended defendant, for leave to bring a defamation action at any time within 6 years from the date on which the cause of action accrued; and the Court may, if it thinks it just to do so, grant leave accordingly, subject to such conditions (if any) as it thinks it is just to impose, where it considers that the delay in bringing the action was occasioned by mistake of fact or mistake of any matter of law (other than the provisions of subsection (6A) of this section), or by any other reasonable cause.

Mr Gibson said that there was a mistake of law which, at least in part, served to explain the delay in initiating the proceedings. He submitted that he had been given the wrong advice by a solicitor and that he should have been advised that a claim for qualified privilege could be defeated by proof of malice on the part of the defendant.

He also argued that leave could nevertheless be granted on the grounds that the delay in bringing the action was occasioned by "any other reasonable cause".

On this point, he relied particularly on the decision in Wilson & Horton where the Court of Appeal upheld a decision of Justice Robertson accepting (amongst other grounds) that the intending plaintiff had been involved with other pressing matters throughout the period of two years and beyond, leading up to the bringing of proceedings and on the basis that he understood he had done all that was necessary to bring the proposed action.

In other words, the plaintiff submitted that the delay was not excessive and, there being no material prejudice to the defendant, it was in the interest of justice that leave be granted.

By contrast, Mr Blunt submitted that the period of delay was substantial and had not been adequately explained. He also said that it would undermine the statutory intent of section 4(6) if inadvertence of the time limit were permitted to be relied upon as constituting "reasonable cause" for the delay.

Finally, Mr Blunt's lawyers submitted that overall justice militated against the grant of consent, as the defamation proceedings were designed to pressure the defendant over his complaint under the Dental Act 1988 and therefore amounted to a form of abuse of process.

Justice Randerson concluded that leave should be granted on the basis that the delay was occasioned by "other reasonable cause". His reasons were:

• the amount of delay was not great, particularly bearing in mind that time may be extended for up to six years from the date the cause of action arose.



• this was not a case where the plaintiff had slept on his rights. He had instructed his solicitor to proceed before the limitation period expired and he was entitled to expect that the solicitor would proceed and file the proceedings within any appropriate time limit.



• Once it became known that the claim was out of time, prompt steps were taken to make the necessary application for leave.



• There was no suggestion that the defendant would be prejudiced by the grant of leave.

Accordingly, Justice Randerson granted leave to extend the time for bringing the proceeding.

Justice Randerson then indicated to counsel for the plaintiff that it would seem arguable that absolute privilege applied to the complaint made by the defendant by virtue of section 14(1) of the Defamation Act 1992.

He referred counsel to Teletax Consultants Ltd v Williams, a decision of the Court of Appeal, in which a complaint made to a Law Society about the conduct of a solicitor was held to be part of a disciplinary process and subject to absolute privilege accordingly.

Perhaps unhelpfully (at least for the plaintiff) he then suggested that counsel might wish to consider whether the issue of privilege should be determined as a preliminary issue under rule 418 of the High Court Rules or on a strike-out application brought by the defendant.

Enquiries and information

For more information on defamation, please call Garry Williams on 64 9 916 8661.