Introduction
Defamation claims in Australia must ordinarily be commenced within one year of the date of publication. This limitation period — among the shortest in civil litigation — reflects the policy that reputational harm should be addressed promptly. It also creates a trap for the unwary: miss the deadline, and your claim is statute-barred, regardless of its merits.
The courts may extend the limitation period to a maximum of three years, but only where the plaintiff satisfies the court that it was "not reasonable" to have commenced proceedings within the initial twelve months. Until recently, the case law suggested that this discretion was exercised primarily in favour of plaintiffs who had been unable to sue because they were facing concurrent criminal charges — a position established in cases such as Joukhador v Fairfax Media Publications Pty Ltd (Full Federal Court) and reinforced in the Lehrmann litigation.
The Federal Court decision in Dadon v Fairfax Media Publications Pty Ltd [2025] FCA 899 significantly broadens this framework. Justice McEvoy held that a plaintiff who delayed commencing defamation proceedings on legal advice — in order to avoid fighting on "two fronts" while defending a serious civil penalty proceeding — acted reasonably, and was entitled to an extension of time. The decision is a landmark for defamation practitioners because it establishes that concurrent civil proceedings, not merely criminal charges, can justify delay.
Background and Facts
Albert Dadon, a Melbourne small-business owner, was the subject of an article published by the Australian Financial Review (published by Fairfax Media) in February 2023. The article alleged that Mr Dadon had fired an employee who had complained of workplace misconduct. At the time of publication, the employee in question had filed a civil penalty proceeding against Mr Dadon in connection with the circumstances of the termination.
Mr Dadon became aware of the article approximately five weeks after publication. He promptly sought legal advice, and his solicitor prepared a draft concerns notice in July 2023. However, counsel advised against sending it. The reasons were threefold:
- Avoiding a "fight on two fronts": Commencing defamation proceedings while simultaneously defending the employee's civil penalty proceeding would substantially disadvantage Mr Dadon, diverting his limited resources and attention.
- The risk of "poking the bear": Counsel and solicitors were concerned that serving a concerns notice on the AFR would provoke further articles, amplifying the reputational harm rather than containing it.
- The "Craig McLachlan effect": Counsel warned that if Mr Dadon sued for defamation, the AFR could subpoena unrelated historical witnesses — including former employees with "an axe to grind" — to give similar fact evidence in support of a truth defence. In this scenario, the plaintiff effectively becomes the one on trial as the defendant media agency seeks to discredit them by relying on alleged past conduct.
Mr Dadon followed this advice. In June 2024, the employee filed a notice of discontinuance, ending the civil penalty proceeding. Within days, emboldened by his success on that front, Mr Dadon instructed his solicitors to send a concerns notice to the AFR. The concerns notice was sent in July 2024 — approximately sixteen months after the original article and four months after the expiry of the one-year limitation period.
Following receipt of the concerns notice, the AFR amended the February 2023 article by adding a clarification noting the discontinuance of the employee's proceedings. This amended article, published in June 2024, became a second publication in dispute.
The Issues
The central question was whether Mr Dadon should be granted an extension of the one-year limitation period under section 56A of the Limitation Act 1969 (NSW) — the provision applicable to defamation actions in the Federal Court. The equivalent provisions in other jurisdictions include section 23B of the Limitation of Actions Act 1958 (Vic), section 32A of the Limitation of Actions Act 1974 (Qld), and corresponding sections in each state and territory.
The test is whether it was "not reasonable in the circumstances" for the plaintiff to have commenced proceedings within one year. The extension, if granted, is subject to an absolute cap of three years from the date of publication.
The AFR opposed the application on several grounds:
- The "ordinary position" from Lehrmann and Joukhador was that extensions should be confined to cases where the plaintiff faced criminal charges threatening their liberty — not merely civil proceedings.
- Mr Dadon's case was weak, and he was unlikely to establish serious harm to his reputation.
- The June 2024 article was "substantially the same" as the February 2023 article, meaning no fresh cause of action arose.
The Decision
Justice McEvoy granted the extension of time and awarded costs in favour of Mr Dadon. The key findings were as follows.
Civil proceedings can justify delay
His Honour rejected the AFR's submission that extensions were limited to cases involving criminal charges. The employee's civil penalty proceeding was "still a very serious matter for him to be confronted with," and it was "not unreasonable for the applicant to delay the commencement of the defamation proceeding to prioritise the defence" of that application. There was no "drop dead rule" — the statutory regime allowed for the period to be extended in "certain circumstances," and civil proceedings fell within that category.
Legal advice to delay was objectively reasonable
Justice McEvoy held that the legal advice Mr Dadon received — to avoid fighting on two fronts and to refrain from "poking the bear" — "was, objectively, a reasonable one." His Honour noted that Mr Dadon was a small-business owner without unlimited means, and that the course he adopted "in the face of legal advice" was reasonable "whether or not he was advised that there was a one year limitation period for commencement of the prospective defamation proceedings."
This is a significant finding. It means that legal advice to delay, even if the solicitor failed to advise the client about the limitation period itself, can support an extension application — provided the advice was objectively reasonable in the circumstances.
Prompt action after the impediment was removed
The Court placed considerable weight on the fact that Mr Dadon acted swiftly once the civil penalty proceeding was discontinued. His Honour observed: "Once the civil penalty proceeding had been discontinued, no doubt emboldened by his success on that front, the applicant took up the cudgels against the respondent with respect to the February 2023 article. He did so within a matter of days."
No actual prejudice to the AFR
Justice McEvoy held that the AFR did not identify any actual prejudice it would suffer in defending the defamation action as a result of the delay. The absence of demonstrable prejudice weighed in favour of granting the extension.
Serious harm threshold not determined at this stage
The AFR had submitted that Mr Dadon's case was weak because he was unlikely to prove serious harm to his reputation. Justice McEvoy declined to accept this submission, holding that it was "a difficult view to form at the present stage of the litigation." The serious harm question would be determined after evidence had been led, not at a preliminary application for an extension of time.
"Substantially the same" question deferred
Justice McEvoy also declined to determine whether the June 2024 article — which contained the amendment noting the discontinuance — was "substantially the same" as the February 2023 article. If the articles are not substantially the same, the June 2024 publication may constitute a fresh cause of action with its own limitation period. This question was left for determination after the AFR files its defence.
The Statutory Framework
For practitioners and potential litigants, the key statutory provisions on defamation time limits across Australian jurisdictions are:
- One-year limitation period: Section 14B of the Limitation Act 1969 (NSW); section 5(1AAA) of the Limitation of Actions Act 1958 (Vic); section 10AA of the Limitation of Actions Act 1974 (Qld); and equivalent provisions in all other states and territories.
- Extension up to three years: Section 56A (NSW); section 23B (Vic); section 32A (Qld); section 20A(2) of the Defamation Act 2005 (Tas); section 37(2) of the Limitation of Actions Act 1936 (SA); section 40(3) of the Limitation Act 2005 (WA); section 21BB of the Limitation Act 1985 (ACT); section 44A of the Limitation Act 1981 (NT).
- Concerns notice extension: Under the 2021 Stage 1 amendments, serving a concerns notice within the last 56 days of the limitation period automatically extends the period by up to 56 days (less any days remaining).
The three-year cap is absolute. No court has the power to extend time beyond it, regardless of the circumstances.
Practical Implications
For plaintiffs and their solicitors
- Do not assume you are out of time: If your one-year limitation period has expired but you are within three years of publication, an extension may be available. The Dadon decision confirms that the court's discretion is not limited to cases involving criminal charges.
- Document the reasons for delay: Justice McEvoy's reasoning turned heavily on the fact that Mr Dadon had received legal advice to delay, and that the advice was objectively reasonable. Practitioners should document the reasons for any decision to defer proceedings in contemporaneous file notes.
- Act promptly when the impediment is removed: The Court noted approvingly that Mr Dadon acted "within a matter of days" once the civil penalty proceeding ended. Unexplained delay after the reason for deferral has passed will undermine an extension application.
- Do not rely on the extension being granted: The extension remains discretionary, and the court will assess each case on its facts. Where possible, commence proceedings within the one-year period or, at minimum, serve a concerns notice within the limitation period to preserve the automatic 56-day extension.
For defendants and media organisations
- The limitation defence is no longer a safe harbour where the plaintiff faces concurrent civil proceedings: Publishers and media organisations can no longer assume that a plaintiff who delays beyond twelve months because of concurrent civil litigation will be time-barred.
- Demonstrate actual prejudice: If opposing an extension application, identify specific evidence that has been lost, witnesses who are no longer available, or other concrete prejudice caused by the delay. General submissions about the policy of limitation periods are unlikely to succeed in isolation.
How Matrix Legal Can Help
Defamation limitation periods are unforgiving. The one-year deadline is the shortest in Australian civil litigation, and missing it can extinguish an otherwise meritorious claim. Equally, a well-prepared extension application — supported by documentary evidence and objectively reasonable grounds for delay — can preserve your rights even after the standard period has expired.
At Matrix Legal, Mark Stanarevic advises on the full range of defamation time limit issues: from the initial assessment of whether a claim is within time, to the preparation and prosecution of extension applications, to defending against claims that are said to be statute-barred. If you believe you may have been defamed but are concerned about the time limit, contact us for a confidential assessment of your position. Early advice is critical — the three-year absolute cap cannot be extended.
This article is general information and not legal advice. Defamation risk turns on the precise words used, the publication context, the audience, and available evidence.