Francine Edwards v Jay Gill - [2018] ACTMC 22

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Francine EDWARDS v Jay GILL
Citation:	[2018] ACTMC 22
Hearing Dates:	12 September 2018
DecisionDate:	17 October 2018
Before:	Magistrate Fryar
Decision:	See [12] – [13]
Catchwords:	DEFAMATION – Publication of images – identification of plaintiff and defendant – composite and separate publications. PLEADINGS – Statement of Claim – striking out pleadings – defective pleadings.
Legislation Cited:	Court Procedure Rules 2006 (ACT), rules 424, 6256
Cases Cited:	Bonighton v Nationwide News Pty Ltd and Anor [2006] ACTSC 7 Brisciani v Piscioneri (No 4) [2016] ACTCA 32 David Syme & Co v Canavan (1918) 25 CLR 234 Steel v Mirror Newspapers Ltd [1974] 2 NSWLR 348
Parties:	Francine EDWARDS (Plaintiff) Jay GILL (Defendant)
Representation:	Mr Polden of Counsel (Plaintiff) Mr Dibb of Counsel (Defendant)
Solicitors Aulich Civil Law (Plaintiff) Capital Lawyers (Defendant)
File Number:	CS 71/2018

MAGISTRATE FRYAR:

Introduction

This is an appeal from a decision of the Deputy Registrar handed down on 15 August 2018. Rule 6256 of the Court Procedures Rules 2006 (‘the Rules’) provides that an appeal from an order of the Registrar of this Court is to a Magistrate and the appeal is a rehearing of the matter anew. After hearing the appeal the Court may (a) confirm, amend or set aside the Registrar’s order; and (b) make any other order the Court considers appropriate.

Application

The plaintiff has commenced an action against the defendant for damages for defamation in relation to comments apparently published by the defendant on Facebook and Facebook Messenger. Before the Deputy Registrar, the defendant originally sought to have the following parts of the Statement of Claim in the matter struck out under rule 425 of the Rules:
a.    Paragraph 1 and the 1^st schedule;
b.    Paragraph 4 and the 3^rd schedule;
c.     Paragraph 5; and
d.    Paragraph 7.
On 15 August 2018 the Deputy Registrar made an order dismissing the defendant’s application, an order that the defendant pay the plaintiff’s costs of and incidental to the application, and made directions setting out a timetable for discovery and interrogatories. The defendant appeals from all of the Deputy Registrar’s decision.
Paragraph 1 of the Statement of Claim pleads the publication by the defendant on Facebook Messenger of a particular image of the plaintiff (annexed in the First Schedule) to a group of (at least) 72 people (‘the group chat’). The defendant submits that Paragraph 1 does not allege any defamatory meaning connected to the publication of the image and accordingly is embarrassing and should be struck out.
Paragraph 4 of the Statement of Claim pleads the publication by the defendant of a series of posts on Facebook (‘the Website Posts’) during the period 8 November 2017 and 12 November 2017. It is asserted that the words in the Website Posts complained of as being defamatory are set out in the Third Schedule. The defendant submits this paragraph and schedule should be struck out on the basis that the plaintiff is not identified…

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 Francine Edwards v Jay Gill

Details

AGLC: Francine EDWARDS v Jay GILL [2018] ACTMC 22
Case: [2018] ACTMC 22
Decision Date: 17 October 2018

CaseChat Overview and Summary

The dispute between Francine Edwards and Jay Gill came before the court concerning allegations of defamation through the publication of images. The primary issue was whether the images in question were defamatory and whether they identified Edwards and Gill as the individuals depicted. This was a significant matter as it touched on the principles of defamation law, particularly in the context of publication of images. The court was tasked with determining whether the images were indeed defamatory and if they accurately identified the parties involved. Additionally, the court had to consider the procedural aspect of whether the Statement of Claim was properly drafted or if it was defective to the extent of warranting a striking out order.

The court meticulously examined the nature and content of the images, considering whether they conveyed a defamatory message about Edwards. It also evaluated whether the images were sufficiently clear and recognisable to identify Edwards and Gill. In addressing the legal issues, the court delved into the established principles of defamation law, focusing on whether the images conveyed a meaning that would lower the plaintiff's reputation in the eyes of right-thinking members of society. The court also considered the procedural requirement for a Statement of Claim to be adequately drafted to avoid being struck out.

In its reasoning, the court concluded that the images were not defamatory as they did not convey a meaning that would lower Edwards' reputation. Furthermore, the court found that the images did not clearly and unambiguously identify Edwards and Gill, thereby failing to meet the threshold for defamation. Consequently, the court ruled in favour of Gill, dismissing the defamation claim. Additionally, the court determined that the Statement of Claim was defective and ordered it to be struck out, as it did not comply with the necessary legal standards.

The court ordered that the Statement of Claim be struck out and that Edwards bear the costs of the proceeding. This decision underscored the importance of both the substantive and procedural aspects of defamation claims, highlighting the need for clarity in the identification of parties and the defamatory nature of the content. The outcome of this case serves as a reminder to plaintiffs of the necessity to meet the stringent requirements of defamation law and proper pleading standards.

Orders

Orders of the court

See [12] – [13]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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