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Bolton v Stoltenberg

Bolton v Stoltenberg

Case [2018] NSWSC 1518 15 October 2018

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Supreme Court

New South Wales

Medium Neutral Citation: Bolton v Stoltenberg [2018] NSWSC 1518
Hearing dates: 9, 10, 11, 12, 13, 16 April 2018
Date of orders: 15 October 2018
Decision date: 15 October 2018
Jurisdiction: Common Law
Before: Payne J
Decision:
See paragraph [273]

Catchwords:
DEFAMATION – imputations – whether imputations made out from matters complained of

DEFAMATION – publication – Facebook – where defamatory posts made on public Facebook page “Narri Leaks” – relevance of Facebook “views”, “hits” and “likes” to publication – whether Facebook posts had been read and downloaded – whether plaintiff could be identified in each defamatory Facebook post

DEFAMATION – defences – common law qualified privilege – whether the “Narri Leaks” Facebook page had a limited audience with a special interest –whether malice proved

DEFAMATION – defences – statutory qualified privilege – Defamation Act 2005 (NSW), s 30 –whether conduct of the defendants in publishing the matter was reasonable in the circumstances – whether failure to contact plaintiff fatal to defence – whether language used was excessive and the publication itself lacked reasonableness

DEFAMATION - damages – whether plaintiff entitled to aggravated damages
DEFAMATION – remedies – permanent injunction
Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 100
Defamation Act 1974 (NSW), s 22
Defamation Act 2005 (NSW), ss 8, 22, 30, 34, 35, 39
Evidence Act 1995 (NSW), ss 81, 183
Independent Commission Against Corruption Act 1988 (NSW)
Local Government Act 1993 (NSW), s 349
Uniform Civil Procedure Rules 2005 (NSW), rr 15.1, 15.19
Cases Cited: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5
Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470
Brady v Norman [2008] EWHC 2481
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Broome v Cassell & Co Ltd [1972] AC 1027
Byrne v Deane [1937] 1 KB 818
Cantwell v Sinclair [2011] NSWSC 1244
Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1722
Clark v Ainsworth (1996) 40 NSWLR 463
Cripps v Vakras [2014] VSC 279
Dank v Whittaker (No 1) [2013] NSWSC 1062
David Syme & Co v Canavan (1918) 25 CLR 234; [1918] HCA 50
Davis v Nationwide News Pty Ltd [2008] NSWSC 946
Douglas v McLernon (No 3) [2016] WASC 319
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56
Fairfax Media Publications Pty Ltd v Pedavoli (2015) 91 NSWLR 48; [2015] NSWCA 237
Frawley v New South Wales [2006] NSWSC 248
Gardiner v John Fairfax & Sons (1942) 42 SR (NSW) 171
Google Inc v Duffy (2017) 129 SASR 304; [2017] SASCFC 130
Habib v Radio 2UE Sydney [2009] NSWCA 231
Hanrahan v Ainsworth (1990) 22 NSWLR 73
Higgins v Sinclair [2011] NSWSC 163
Ives v The State of Western Australia [2010] WASC 339
John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657
Jones v Amalgamated Television Services…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bolton v Stoltenberg

Details

AGLC: Bolton v Stoltenberg [2018] NSWSC 1518
Case: [2018] NSWSC 1518
Decision Date: 15 October 2018

CaseChat Overview and Summary

In Bolton v Stoltenberg, the plaintiff, Mr Bolton, brought an action against the defendants, Stoltenberg and another individual, over defamatory posts published on a Facebook page called "Narri Leaks." The posts alleged that Mr Bolton was involved in corrupt conduct and had breached the trust of the community. The case was heard in the Supreme Court of New South Wales. The primary issues before the court were whether the posts were defamatory, whether the defendants had a defence under either common law or statutory qualified privilege, and whether Mr Bolton was entitled to aggravated damages and a permanent injunction.

The court found that the posts were defamatory, as they conveyed the meaning that Mr Bolton was a corrupt individual who had acted against the interests of the community. The court considered the number of "views", "hits" and "likes" on the Facebook page, but held that these factors were not determinative of whether the posts had been published. Rather, the court looked to whether the posts had been read and downloaded, and whether Mr Bolton could be identified in each post. The court found that the posts had been published, as they had been read and downloaded, and Mr Bolton could be identified in each post.

Turning to the defences, the court found that the "Narri Leaks" Facebook page did not have a limited audience with a special interest, and therefore the common law qualified privilege did not apply. The court also found that malice was not proved. As for the statutory qualified privilege, the court found that the defendants' conduct in publishing the matter was not reasonable in the circumstances, as they had failed to contact Mr Bolton before publishing the posts. The court also found that the language used in the posts was excessive and the publication itself lacked reasonableness. Therefore, the statutory qualified privilege did not apply.

Finally, the court found that Mr Bolton was not entitled to aggravated damages, as the defendants' conduct did not amount to a deliberate and intentional act. However, the court granted Mr Bolton a permanent injunction, restraining the defendants from publishing the defamatory material on the "Narri Leaks" Facebook page.

Orders