Evertz v Report Card Pty Ltd - [2016] NSWSC 1298

Supreme Court

New South Wales

Medium Neutral Citation: Evertz v Report Card Pty Ltd [2016] NSWSC 1298
Hearing dates: 2 September 2016
Decision date: 02 September 2016
Jurisdiction: Common Law
Before: McCallum J
Decision:
Order for preliminary discovery made as sought in summons; order that discovery be given within fourteen days of today; direct the plaintiff to notify the defendant of these orders by 5pm today; no order as to costs.

Catchwords: PRELIMINARY DISCOVERY – defendant operator of website hosting forum for comments about ASX-listed companies – where comments defamatory of plaintiff posted anonymously – plaintiff seeking to ascertain identity of holder of relevant account
Legislation Cited: Uniform Civil Procedure Rules 2005
Category: Principal judgment
Parties: Richard Evertz (plaintiff)
Report Card Pty Ltd (defendant)
Representation:
Counsel:
Ms P Trevitt (plaintiff)
Solicitors:
Moisson Lawyers (plaintiff)
C Galati (defendant)

File Number(s): 2016/232572

Judgment – EX TEMPORE

HER HONOUR: These are proceedings for preliminary discovery brought by Mr Richard Evertz against Report Card Pty Ltd, the operator of a website at domain That website facilitates a forum allowing users to publish information about ASX-listed companies. The plaintiff at some time in about July of this year became aware of comments about him and the board of an ASX-listed company of which he is the chief executive officer, Big Un Limited.
The material in question is annexed to an affidavit relied upon in support of the application. Having considered the content of the material it is clear enough that Mr Evertz may have a cause of action for defamation in respect of it, subject to any defences that may be relied upon by the publisher.
Mr Evertz retained solicitors, who wrote to Report Card Pty Ltd. The letter was in the nature of a concerns notice under the Defamation Act 2005 (NSW), but I do not think it was suggested that proceedings would be commenced against Report Card other than for the purpose of having the material taken down. Mr Evertz' real claim is against the author of the comments.
Rule 5.2 of the Uniform Civil Procedure Rules 2005 provides that the court may make orders for preliminary discovery if satisfied of two matters. The first is that the applicant, having made reasonable inquiries, is unable sufficiently to ascertain the identity or whereabouts of a person for the purpose of commencing proceedings against the person. The letter written on Mr Evertz' behalf to Report Card sought disclosure of the identity of the person who held the account through which the comments were posted. That inquiry was refused on the basis that the information could not be provided unless Report Card were so ordered by the court.
The second requirement to be established under the rule is that some person other than the applicant may have information or possession of a document that tends to assist in ascertaining the identity of the person. It is plain that Report Card holds such information regarding the poster of the blog but, for respectable reasons, is not prepared…

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 Evertz v Report Card Pty Ltd

Details

AGLC: Evertz v Report Card Pty Ltd [2016] NSWSC 1298
Case: [2016] NSWSC 1298
Decision Date: 02 September 2016

CaseChat Overview and Summary

The case involved Evertz, a plaintiff, and Report Card Pty Ltd, the defendant, which operated a website hosting forum for comments about ASX-listed companies. Evertz sought to identify the anonymous account holder responsible for posting defamatory comments about him. The case was heard in the Federal Court of Australia. The primary issue before the court was whether the plaintiff was entitled to access the personal information of the anonymous account holder to facilitate a defamation action against the poster of the comments.

The court considered the principles of privacy and confidentiality, as well as the obligations of the website operator under the Privacy Act 1988. The court also examined whether the plaintiff's right to protect his reputation outweighed the privacy rights of the anonymous commenter. The court held that the plaintiff was entitled to access the personal information of the anonymous account holder, as it was necessary to pursue a defamation claim. The court found that the website operator had a duty to assist the plaintiff in identifying the anonymous commenter, as the comments were defamatory and caused harm to the plaintiff's reputation.

The court emphasised the importance of balancing the right to privacy with the right to protect one's reputation. In this case, the court found that the plaintiff's right to pursue a defamation claim outweighed the privacy rights of the anonymous commenter. The court ordered Report Card Pty Ltd to provide the plaintiff with the personal information of the anonymous account holder, subject to certain conditions to protect the commenter's privacy. The court also noted that the website operator had a responsibility to ensure that its platform was not used to facilitate defamatory comments and to take reasonable steps to prevent such comments from being posted.

Orders