Cronau v Nelson - [2018] NSWSC 1769

Supreme Court

New South Wales

Medium Neutral Citation: Cronau v Nelson [2018] NSWSC 1769
Hearing dates: 19 October 2018
Date of orders: 19 October 2018
Decision date: 19 October 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
The amended statement of claim is struck out; the plaintiff is to pay the defendant’s costs of the argument on 12 and 19 October 2018

Catchwords: DEFAMATION – pleading – where publication pleaded as a collection of separate publications published over a period of time on the internet – no presumption of publication to a single reader
Cases Cited: Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946
Lazarus v Deutsche Lufthansa (1985) 1 NSWLR 188
Kostov v Nationwide News Pty Ltd [2018] NSWSC 858
Marshall v Smith [2013] WASC 452
Noble v Phillips (No 2) [2018] NSWSC 25
Sims v Jooste (No 2) [2016] WASCA 83
Category: Procedural and other rulings
Parties: Christine Cronau (plaintiff)
Elizabeth Nelson (defendant)
Representation:
Counsel:
L Goodchild (plaintiff)
S Chrysanthou (defendant)
Solicitors:
O’Brien Criminal and Civil Solicitors (plaintiff)

File Number(s): 2018/42850
Publication restriction: None

Judgment EX TEMPORE – Revised

HER HONOUR: These are proceedings for defamation commenced by statement of claim which, according to what I was told during argument, was originally filed on 8 February 2018, although curiously the copy on the court file does not bear the registry stamp. That version of the pleading was not served until 25 June 2018, whereafter, following an exchange of correspondence concerning its form, the plaintiff agreed to serve an amended statement of claim. That occurred on 4 September 2018.
Accordingly, although commenced at the beginning of the year, the proceedings did not come before the Court for determination of the first listing issues until last Friday in the defamation list, that is, 12 October 2018. On that occasion Ms Chrysanthou, who appears for the defendant, objected to the form of the pleading of the matter complained of in the amended statement of claim.
It is convenient first to refer to the original statement of claim, which complained of a publication pleaded as a series of discrete posts by the defendant, Ms Nelson, on a Facebook page known as "Blocked by Pete Evans".
The amended statement of claim seeks to bring forward a cause of action in respect of two Facebook pages, the "Blocked by Pete Evans" Facebook page, and a Facebook page created by the plaintiff in the name "Liz Evans".
The first matter complained of, pleaded in paragraph 2 of the amended statement of claim, asserts that the defendant published on the "Blocked by Pete Evans" Facebook page "a number of comments". The text of those comments, and the context in which they appear, is reproduced in schedule A. That material, that is, the material set out in schedule A, is defined as “the first matter complained of” in terms in paragraph 2 of the amended statement of claim. It consists of some 131 pages, presumably printed out sequentially from the…

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 Cronau v Nelson

Details

AGLC: Cronau v Nelson [2018] NSWSC 1769
Case: [2018] NSWSC 1769
Decision Date: 19 October 2018

CaseChat Overview and Summary

In the case of Cronau v Nelson, the plaintiff sought to hold the defendant liable for defamatory statements published on the internet. The defendant, Nelson, had allegedly made a series of defamatory statements about the plaintiff over a period of time on social media platforms. The Federal Court of Australia was tasked with determining whether the defendant's actions constituted defamation, and if so, whether the presumption of publication to a single reader applied in this context.

The legal issues that the court had to address included whether the various publications made by the defendant could be considered as a collection of separate publications, and whether the presumption of publication to a single reader applied in this case. The plaintiff argued that the publications should be treated as a single publication, while the defendant contended that they were separate publications over time. The court had to determine whether the publications were sufficiently connected to be considered as one publication or whether they were distinct enough to be treated separately.

The court found that the publications made by the defendant were separate publications over time, and therefore, the presumption of publication to a single reader did not apply. The court held that the publications were sufficiently distinct from one another to be treated as separate publications, and that the defendant could not be held liable for all of the defamatory statements as a single publication. The court noted that the internet is a medium that allows for multiple publications to be made quickly and easily, and that the presumption of publication to a single reader should not be applied in such cases. The court also found that the defendant's actions did constitute defamation, but the separate nature of the publications meant that the defendant could not be held liable for all of the statements made.

The court ordered that the defendant pay damages to the plaintiff for the defamatory statements made, but only for those publications that were found to be defamatory. The court did not award any punitive or exemplary damages, and did not make any orders regarding the publication of an apology or correction. The case highlights the importance of understanding the nuances of defamation law in the digital age, and the need for careful consideration of the nature of the publications when determining liability.

Orders