Seminal decision on extending time limit in defamation: civil penalties just as serious as criminal charges

Our client was advised that he should avoid a “fight on two fronts”, and that there was a real prospect of the “Craig McLaughlin Effect” in which the AFR could subpoena unrelated historical witnesses against him –including former employees who have an “axe to grind”– to give similar fact evidence in support of a truth defence by the AFR.

There was a serious fear that if he sent a concerns notice to the AFR that he would “poke the bear” and there would be more articles published causing further reputational harm.

Justice McEvoy held that our legal advice “was, objectively, a reasonable one”.

Following the discontinuance of the employee’s application, we sent a concerns notice to the AFR –some 4 months after the statutory limitation period expired.

In opposition, the AFR submitted that the “ordinary position” as described in the previous cases in Lehrmann and Joukhador was that an extension could be granted if the applicant faced criminal charges which would impact his liberty.

Justice McEvoy rejected the AFR’s position and held that the employee’s application was “still a very serious matter for him to be confronted with” and that it was “not unreasonable for the applicant to delay the commencement of the defamation proceeding to prioritise the defence” of the employee’s application.

Justice McEvoy also held that the AFR did not identify actual prejudice it may face in defending the defamation application.

Ultimately, Justice McEvoy was satisfied that it is just and reasonable to extend the limitation period and award costs in favour of our client.

You can read the judgment at Dadon v Fairfax Media Publications Pty Ltd [2025] FCA 899