Cronau v Nelson (No 2)

[2018] NSWSC 1905

Supreme Court

New South Wales

Medium Neutral Citation:	Cronau v Nelson (No 2) [2018] NSWSC 1905
Hearing dates:	30 November 2018
Decision date:	30 November 2018
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	I order that, unless the plaintiff is able to provide particulars of any person to whom each matter complained of was published within the year before 22 November 2018, the cause of action on that publication be dismissed; stand proceedings over to 14 December 2018; costs are reserved to that date.
Catchwords:	DEFAMATION – publication – comments posted on Facebook – where pleading served more than one year after date of posting comments – plaintiff unable to identify any person who read the posts within the one year period before pleading served – requirement to identify one such person for each matter complained of
Legislation Cited:	Civil Procedure Act 2005 (NSW)
Cases Cited:	Cronau v Nelson [2018] NSWSC 1769
Category:	Procedural and other rulings
Parties:	Christine Cronau (plaintiff) Elizabeth Nelson (defendant
Representation:	Counsel: A Munro (plaintiff) S Chrysanthou (defendant)   Solicitors: O’Brien Criminal and Civil Solicitors (plaintiff)
File Number(s):	2018/00042850
Publication restriction:	None

Judgment EX TEMPORE - REVISED

1. HER HONOUR: These are proceedings for defamation commenced by Ms Christine Cronau against Ms Elizabeth Nelson arising out of comments posted by Ms Nelson on a Facebook page under the name "Blocked by Pete Evans".

2. The proceedings have had a difficult history, from the plaintiff's point of view. They were commenced by statement of claim filed on 8 February 2018 but that originating process was not served on the defendant until 25 June 2018, contrary to the expectation stated in the Defamation List Practice Note.

3. The original pleading annexed two pages of Facebook posts. The defendant raised objections to the manner in which publication had been pleaded. Unfortunately, those objections were not responded to until 9 August 2018, the day before the first listing. In those circumstances, and at that time, the plaintiff conceded that the pleading required amendment. Orders were made by consent for that to occur. An amended statement of claim was served after the time allowed by that timetable. Further objections were raised and the matter was ultimately argued on 12 October 2018.

4. On 19 October 2018 I ruled that the amended statement of claim be struck out: Cronau v Nelson [2018] NSWSC 1769. The matter was stood over to 23 November 2018 to allow the plaintiff leave to re-plead. A proposed amended statement of claim was filed the day before that adjourned hearing and argued on 23 November 2018. In short, the amendment was opposed on the basis that all of the publications now sought to be pleaded are time barred, with the result that the claim now sought to be made is unsustainable.

5. The manner of pleading in the proposed amendment is to revert to the form of the original pleading, where each alleged Facebook post is pleaded as a separate cause of action. The dates on which those posts are alleged to have been made range from 4 December 2016 to 5 June 2017. As the amended pleading was served on 22 November 2018, and in the absence of any application under section 65 of the Civil Procedure Act 2005 (NSW), any action based on publication on the date of posting of the comments is plainly time barred. The plaintiff's cause of action would be confined to any downloading of the matters complained of within the year before 22 November 2018.

6. It is plain from the pleading that the plaintiff does not know of any person who downloaded the matters complained of within that period. In the case of each of the eight matters complained of, the particulars of publication expressly say as much and indicate that the plaintiff will rely rather on an inference that, having regard to the popularity of the "Blocked by Pete Evans" website, some person may have accessed the website and read the comments in question within that one year period.

7. As submitted by Ms Chrysanthou for the defendant, that appears highly unlikely. The very popularity of the website contributes to the unlikelihood of the inference contended for; in order to read any of the comments referred to, the reader would have to scroll down through many more recent posts to find the small number of small comments attributed to Ms Nelson concerning the plaintiff. The reader would also, it might be added, have to know that the "Christine" referred to in Ms Nelson's comments was the plaintiff. Some of the comments now sought to be sued on do not name any person at all.

8. There are compelling reasons in those circumstances for declining any leave to amend and dismissing the proceedings now. Ms Chrysanthou noted that the defendant is an individual and asserted from the bar table, as appears likely, that the proceedings have already been an expensive exercise for her. Even so, I think before taking the draconian step of dismissing the proceedings altogether, without leave to re-plead, I should afford the plaintiff an opportunity in respect of each of the eight causes of action pleaded to identify any person to whom the matter was published within the year before 22 November 2018. I would, however, propose to make that effectively a peremptory order, that is, an order in terms providing that unless the plaintiff is able to provide particulars of any person to whom each matter complained of was published within the year before 22 November 2018, that the cause of action on that publication be dismissed.

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Decision last updated: 10 December 2018