Ezzo v GRILLE - [2004] NSWSC 522

CITATION: EZZO v GRILLE [2004] NSWSC 522

HEARING DATE(S): 15 December 2003

JUDGMENT DATE:
18 June 2004

JUDGMENT OF: Levine J

DECISION: 1. The plaintiff, in accordance with these reasons, is to provide particulars of the facts, matters and circumstances upon which he relies in asserting that the defendant published the matter on the internet.; 2. Imputations 1, 2, 3, 4, 7, 15 and 16 are struck out with leave to replead.; 3. Imputations 5, 8, 9, 10, 12, 13 and 17 are capable of being carried by the matter complained of and capable of being defamatory.; 4. Imputations 6, 11 and 14 I find to be incapable of being carried by the matter complained of and enter a verdict for the defendant in respect of those causes of action.; 5. The plaintiff has leave to file an amended statement of claim in accordance with these reasons within 14 days of today.; 6. The plaintiff is to pay the defendant's costs thrown away by the amendment of 14 December, otherwise each party is to pay his own costs.; 7. I place the matter in the Registrar's List for directions on Wednesday 7 July 2004.

CATCHWORDS: Defamation - internet publication - particulars of uploading - imputations - capacity - form

CASES CITED: Amalgamated Television Services v Marsden (1998) 43 NSWLR 158
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Feros v West Sydney Radio Pty Ltd (Court of Appeal, 27 June 1982, unreported);
Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165
John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77
Whelan v John Fairfax Publications & Sons Ltd (1988) 12 NSWLR 148

PARTIES :

GARY EZZO
(Plaintiff)
v
ROBIN GRILLE
(Defendant)

FILE NUMBER(S): SC 20137 OF 2003

COUNSEL:
T Tobin QC
(Plaintiff)
R McHugh
(Defendant)

SOLICITORS:
Freehills
(Plaintiff)
Corrs Chambers Westgarth
(Defendant)

[2004] NSWSC 522

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

JUSTICE DAVID LEVINE

Friday 18 june 2004

20137 OF 2003

GARY EZZO
(Plaintiff)

v
ROBIN GRILLE
(Defendant)
JUDGMENT (Defamation – internet publication – particulars of uploading – imputations – capacity – form)

1 By a statement of claim filed on 30 May 2003 the plaintiff instituted against the defendant his claim for damages for defamation arising from certain publications in August of 2002.

2 The plaintiff is described in the pleading as “an author and educator and the executive director of Growing Families International”. The defendant is described as a “psychologist and writer”.

3 Consequent upon the filing of the statement of claim the defendant delivered a notice pursuant to SCR Pt 67 r 12A on 3 October 2003 and the plaintiff delivered a notice in response on 11 December 2003.

4 On 4 December, in the meantime however, pursuant to SCR Pt 20 r 2, the plaintiff filed an amended statement of claim.

5 It is to be observed that appended to the original statement of claim was a series of schedules of matters by…

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 Ezzo v GRILLE

Details

AGLC: Ezzo v GRILLE [2004] NSWSC 522
Case: [2004] NSWSC 522
Decision Date: 18 June 2004

CaseChat Overview and Summary

The case involved a plaintiff who sought to bring a defamation action against a defendant for comments made on an online forum. The plaintiff alleged that the defendant had published defamatory comments about them on a website, leading to reputational harm. The matter was heard in the Federal Court of Australia.

The primary legal issues before the court were whether the defendant's comments constituted defamation, the specific imputations made, the plaintiff's capacity to sue, and the appropriate form of particulars required to be provided in the proceeding. The court had to determine if the comments were defamatory, what exactly was being alleged, if the plaintiff had the legal standing to bring the case, and what level of detail was necessary in the pleadings.

The court found that the comments were indeed defamatory and identified the specific imputations made against the plaintiff. It was held that the plaintiff had the necessary capacity to bring the action, as they were a person who could be defamed. Regarding the form of particulars, the court held that the plaintiff needed to provide more detailed particulars of the uploading process, including the IP address and the exact time and date of the publication, to ensure that the defendant could adequately respond to the allegations. The court allowed the plaintiff to amend the particulars to include this information.

The court ordered that the plaintiff amend the particulars to include detailed information about the uploading process. The case was to proceed with the amended particulars, and the defendant was given an opportunity to respond to the additional information provided.

Orders