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Clarity On Limitation and Declarations

A recent judgment by Fogarty J has ironed out some inconsistencies between limitation and non-monetary relief that have bedevilled lawyers seeking clarity.

The Defamation Act gives plaintiffs the option to seek, in addition or alternatively to damages, a declaration or a recommendation by the Court that a correction be published.  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 for damages claims.  On one hand, s 11 of the Limitation Act provides expressly that limitation is a defence “to a money claim“, but does not mention other relief.  This seems to differentiate the application of limitation defences to claims for non-monetary relief.  By contrast, s 4(6A) of the Limitation Act 1950 provided that the limitation was a defence whatever the relief sought.

In 2014, Courtney J, when dealing with the case of Rafiq v Commissioner of New Zealand Police [2014] NZHC 814, observed at [13] 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, Fogarty J addressed the issue head-on.  Referencing longstanding principles of declaratory relief, his Honour ruled definitively at [22] that a pleaded limitation defence “does not apply to applications for a declaration“.

The take-away from this otherwise unremarkable decision, is that plaintiffs whose claims for damages are time-barred would appear to be able to maintain their action by seeking a declaration–if not also other non-monetary relief–to at least enable some vindication from defamatory slurs.

One point that remains unanswered–something Fogarty J 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 when it is 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.