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New Zealand affords several remedies in defamation aside from monetary damages.  Under the Defamation Act 1992, plaintiffs may seek, in addition or alternatively to damages, a declaration or a correction recommendation.

However, since the enactment of the Limitation Act 2010, a question mark has hung over whether these alternative remedies are subject to the ordinary 2-year limitation period, that is applied to claims for damages.  On one hand, s 11 of the Limitation Act 2010 provides expressly that limitation is a defence “to a money claim” – thus seemingly differentiating claims for non-monetary relief.  On the other hand, under the Limitation Act 1950, the limitation period to defamation claims used to apply whatever the relief sought.  In 2014, Courtney J, dealing with the case of Rafiq v Commissioner of New Zealand Police [2014] NZHC 814 observed that the apparent distinction in the new legislation “would seem to be an unintended gap”.

Intended or otherwise, in Maltese Cat Ltd v John Doe [2017] NZHC 1728, Justice Fogarty addressed this issue head-on.  With reference to longstanding principles of declaratory relief, his Honour ruled definitively, at [22], that a pleaded limitation defence “does not apply to applications for a declaration”. 

Accordingly, plaintiffs whose claims may otherwise be time-barred, may take solace in the fact they can maintain their claims by seeking a declaration, if not also other non-monetary relief, in order to obtain vindication to defamatory slurs.

A point that still remains unanswered – and a point Justice Fogarty was able to sidestep on the case before him – is whether, or to what extent, New Zealand’s multiple-publication rule permits a plaintiff to maintain a residual claim for damages where otherwise time-barred.  This point is most pressing in cases of defamation online where the offending content is first posted over two years before proceedings are issued.