Cronau v Nelson (No 3) - [2018] NSWSC 2019

Supreme Court

New South Wales

Medium Neutral Citation: Cronau v Nelson (No 3) [2018] NSWSC 2019
Hearing dates: 14 December 2018
Decision date: 14 December 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
I direct the plaintiff to provide an affidavit sworn by each of the persons nominated in the letter from O’Brien Criminal and Civil Solicitors dated 13 December 2018 explaining the circumstances in which he or she read each matter complained of, such affidavit to be kept confidential to the defendant’s legal advisors until further order and to be served by 30 January 2019.
I stand proceedings over to 22 February 2019 at 9.30 am for directions.
Catchwords: DEFAMATION – publication – threshold of seriousness – proportionality – plaintiff suing on Facebook posts – where claim as originally pleaded rested on unlikely inference that posts were downloaded by at least one reader – plaintiff subsequently providing particulars asserting that the same three people read each of six matters complained of on the same date – appropriateness of requiring affidavits explaining circumstances in which that occurred
Legislation Cited: Civil Procedure Act, s 65
Cases Cited: Bleyer v Google [2014] NSWSC 897
Cronau v Nelson (No 2) [2018] NSWSC 1905
Kostov v Nationwide News Pty Ltd [2018] NSWSC 858
Category: Procedural and other rulings
Parties: Christine Cronau (plaintiff)
Elizabeth Nelson (defendant)
Representation:
Counsel:
A Munro (plaintiff)
H Elachkar
Solicitors:
O’Brien Criminal and Civil Solicitors (plaintiff)
Slade Waterhouse Lawyers (defendant)

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

Judgment ex tempore – revised

HER HONOUR: In these proceedings, I gave judgment on 30 November 2018 determining objections to the form of the plaintiff’s pleading: Cronau v Nelson (No 2) [2018] NSWSC 1905. The vice of the pleading was that the causes of action rested on an inference that some person had read the comments attributed to the defendant on a Facebook page, which in turn rested on the unlikelihood that some reader had scrolled through the many, many more recent posts to find the small number of comments attributed to the defendant. If no person had read the publications, the action was statute-barred.
In those circumstances, I made a peremptory order that, unless the plaintiff was able to provide particulars of any person to whom each matter complained of was published within the one-year period before 22 November 2018, the cause of action on that publication would stand dismissed. I stood the proceedings over to today for resolution of that issue.
Late yesterday, the plaintiff’s solicitors provided a letter identifying, in respect of each of six matters complained of, the same three people as having read each of the matters complained of on the same date. In those circumstances, the defendant accepts that the peremptory order did not bite but raises a concern as to the circumstances in which those people might have read the matter complained of.
In those circumstances, the defendant seeks an order that the plaintiff provide an affidavit from each of the nominated readers specifying the circumstances in…

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 3)

Details

AGLC: Cronau v Nelson (No 3) [2018] NSWSC 2019
Case: [2018] NSWSC 2019
Decision Date: 14 December 2018

CaseChat Overview and Summary

The case of Cronau v Nelson (No 3) involved a defamation claim brought by the plaintiff, Cronau, against the defendant, Nelson, over several Facebook posts. The dispute centred around the alleged defamatory content published by Nelson on social media and the implications for Cronau's reputation. The case was heard in the Federal Circuit Court of Australia, with the primary focus being on the interpretation of defamation law in the context of social media publication.

The central legal issues addressed by the court were whether the threshold of seriousness had been met for the defamation claim to proceed and whether the plaintiff's claim was proportionate given the nature of the publication. The court was tasked with determining the scope of the publication and the likelihood that the defamatory content had been read by others, which was essential to establishing the claim. The initial claim was based on an inference that at least one reader had downloaded the posts, but this was deemed unlikely. Subsequent particulars provided by Cronau asserted that three specific individuals read each of the six matters complained of on the same date, raising questions about the necessity of affidavits to substantiate these claims.

The court deliberated on the requirements for establishing the threshold of seriousness and the proportionality of the plaintiff's claim. It considered the circumstances in which the posts were allegedly read and the appropriateness of requiring affidavits to explain the specific reading events. Ultimately, the court found that the plaintiff's claim did not meet the threshold of seriousness required for defamation proceedings to proceed, and the claim was dismissed. The court emphasised the need for clear and substantiated evidence to support the claims of publication and readership in social media defamation cases.

Orders