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

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".
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.
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.
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.
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…

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 (No 2)

Details

AGLC: Cronau v Nelson (No 2) [2018] NSWSC 1905
Case: [2018] NSWSC 1905
Decision Date: 30 November 2018

CaseChat Overview and Summary

The case of Cronau v Nelson (No 2) involved a defamation claim brought by the plaintiff against the defendant, concerning comments allegedly made on Facebook by the defendant that were defamatory of the plaintiff. The case was heard in the Federal Circuit Court of Australia, where the plaintiff sought to serve a statement of claim more than a year after the alleged defamatory comments were posted online. The defendant objected to the late filing of the pleading on the basis that it was outside the statutory limitation period for such claims.

The central issue before the court was whether the plaintiff's late filing of the statement of claim could be justified under the circumstances. The court had to consider whether the plaintiff could satisfy the requirement of identifying at least one person who read the posts within the one year period before the pleading was served. This requirement is a key element in determining whether a defamation claim is statute-barred.

The court held that the plaintiff had not met the necessary criteria for an extension of time to serve the statement of claim. The plaintiff was unable to identify any person who read the posts within the one year period before the pleading was served. The court emphasised that for each matter complained of, the plaintiff needed to identify such a person. Without this identification, the court was unable to find that the plaintiff had established a sufficient basis to justify the late filing of the pleading. As a result, the court dismissed the plaintiff's claim on the basis that it was statute-barred.

Orders