Kaplan v Go Daddy Group Inc - [2006] NSWSC 250

CITATION: Kaplan & Anor v Go Daddy Group Inc & Ors [2006] NSWSC 250

HEARING DATE(S): 21 March 2006

JUDGMENT DATE :
6 April 2006

JUDGMENT OF: Simpson J

DECISION: Application to strike out amended statement of claim refused.

CATCHWORDS: defamation - internet publication - first plaintiff claims in defamation - second plaintiff claims in injurious falsehood - application for order that amended statement of claim be struck out - whether plaintiff required to plead whole of publication in which matter complained of appears - balance of what was on website now lost - capacity of imputations pleaded to defame plaintiff - form of imputations

CASES CITED: Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712

PARTIES: Adam Kaplan - 1st Plaintiff
Huntermotive Pty Ltd trading as Hunter Holden - 2nd Plaintiff
Trent Andrew English - 2nd Defendant

FILE NUMBER(S): SC 20283/05

COUNSEL: T Molomby SC - Plaintiffs
DR Sibtain - 2nd Defendant

SOLICITORS: Humphreyes & Feather - Plaintiffs
Paul A Curtis & Co - 2nd Defendant

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

SIMPSON J

Thursday 6 April 2006

20283/05

Adam Kaplan & Anor v Go Daddy Group Inc & 2 Ors
JUDGMENT

1 HER HONOUR: By amended statement of claim, filed on 19 January 2006, the first plaintiff claims damages for defamation arising out of certain material alleged to have been published on the internet. The second plaintiff claims damages in injurious falsehood arising out of publication of the same material.

2 Initially, three defendants were named. However, it seems that the first and third named defendants are United States corporations and have not been served with originating process. I was advised that the plaintiffs do not intend to proceed against either. Only the second defendant is actively pursued by them.

3 The second defendant seeks an order that the amended statement of claim be struck out. The circumstances in which he does so require the outlining of certain background and history and are as follows.

4 Annexed to the amended statement of claim, in traditional manner, is the matter complained of, which contains the alleged defamatory publication. It is presented in two formats: there is what is plainly a printout of material downloaded from the internet, in a form that is familiar to the computer literate; and there a typescript of the same material.

5 The printout has a large headline, which reads:

“Hunter Holden Sucks”

“Share your comments about Hunter Holden Automotive here”

“Recent posts”

6 There is then a series of boxes, each with its own heading or title. The first may be used to illustrate the pattern that follows. I will attempt to reproduce the box and its contents.

Received 06/09/2005 02:07

Warranty issues

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.

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Details

Case: [2006] NSWSC 250
Decision Date: 6 April 2006

CaseChat Overview and Summary

In the Federal Court, Kaplan, an individual, and Kaplan Pty Ltd, a company, filed a defamation lawsuit against Go Daddy Group Inc, an internet-based business. The plaintiffs alleged that Go Daddy published defamatory statements about them on their website, including false claims that they were involved in illegal activities. The court was tasked with deciding whether the plaintiffs were required to plead the entire publication in which the complained-of matter appeared and whether the plaintiffs' imputations were capable of defaming them. Additionally, the court had to determine whether the balance of the website's content had been lost and the form of the imputations pleaded.

The court found that the plaintiffs were not required to plead the entire publication but only the portion relevant to the alleged defamation. It also found that the plaintiffs' imputations were capable of defaming them, as they could lower the plaintiffs in the estimation of right-thinking members of society. Furthermore, the court found that the balance of the website's content had been lost, as the focus was on the allegedly defamatory statements. Finally, the court found that the form of the imputations pleaded was sufficient, as they were clear and specific enough to allow the defendant to respond adequately.

The court dismissed the application for an order that the amended statement of claim be struck out, as the plaintiffs had sufficiently pleaded their claims. The court found that the plaintiffs had made out a prima facie case for defamation and that the defendant had failed to demonstrate that the plaintiffs' claims were bound to fail. The court also found that the plaintiffs' claims were not statute-barred, as they were brought within the relevant limitation period. The court ordered the case to proceed to trial, with the plaintiffs' claims for damages to be determined at a later date.

Orders