Kelly v Davis

Case [2022] NSWDC 352

District Court


New South Wales

Medium Neutral Citation: Kelly v Davis & Anor [2022] NSWDC 352
Hearing dates: 8, 9 August 2022
Date of orders: 18 August 2022
Decision date: 18 August 2022
Jurisdiction:Civil
Before: Abadee DCJ
Decision:

See paragraph 257

Catchwords:

DEFAMATION – plaintiff and first and third defendants all university students - Facebook posts on social media published by the first and third defendants on sites associated with two universities – whether each of the matters complained of identified the plaintiff – whether each of the matters complained of conveyed the alleged imputations – whether triviality defence applicable to each of the matters complained of – whether, in the case of the third defendant, the defences of qualified privilege (in statute and in common law) applicable – consideration of damages

Legislation Cited:

Defamation Act 2005 (NSW) ss 30, 34, 38

Uniform Civil Procedure Rules 2005 (NSW) rr 15.19, 15.31, 15.32, 41.1, 41.2

Cases Cited:

ABC v Chau Chak Wing (2019) 271 FCR 632

Adam v Ward [1917] AC 309

Aktas v Westpac Banking Corporation (2010) 241 CLR 79

Barrow v Bolt [2015] VSCA 107

Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366

Bristow v Adams [2012] NSWCA 166

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44

Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202

Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185

Consolidated Trust Company Ltd v Browne (1948) 49 SR (NSW) 86

Cross v Denley (1952) 52 SR (NSW) 112

Cush v Dillon (2011) 243 CLR 298

David Syme & Co v Canavan (1918) 25 CLR 234

Dutton v Bazzi [2022] FCAFC 84

Fairfax Media Publications Pty Ltd v Chau [2020] FCAFC 48

Goldberg v Voigt [2020] NSWDC 174

Herron v HarperCollins Publishers Australia Pty Ltd (2022) 400 ALR 56

John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227

Jones v Sutton (2004) 61 NSWLR 614

King v Greenwood [2022] NSWDC 61

Lee v Wilson and MacKinnon (1934) 51 CLR

Lewis v Daily Telegraph Ltd [1964] AC 234

Loveday v Sunday Newspapers Ltd (1938) 59 CLR 503

Megna v Marshall [2010] NSWSC 68

Mickle v Farley [2013] NSWDC 295

Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749

Mowlds v Fergusson (1940) 64 CLR 206

Murray v Raynor [2019] NSWCA 274

Northern Territory v Sangare (2019) 265 CLR 164

Palmer v McGowan (No.5) [2022] FCA 893

Papaconstantinos v Holmes ‘A Court (2012) 249 CLR 534

Penton v Calwell (1945) 70 CLR 219

Perkins v New South Wales Aboriginal Land Council (unreported, NSWSC, 15 August 1997)

Raynor v Murray [2019] NSWDC 18

Roberts v Bass (2002) 212 CLR 1

Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348

Stocker v Stocker [2020] AC 593

Stoltenberg v Bolton (2020) 380 ALR 145

Toogood v Spyring (1834) 1 C M & R 181

Younan v Nationwide News Pty Ltd [2013] NSWCA 335

Zoef v Nationwide News Pty Ltd [2016] NSWCA 283

Texts Cited:

Tobin, T. K. and Sexton,…

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AGLC
Kelly v Davis [2022] NSWDC 352
Case
[2022] NSWDC 352
Decision Date

CaseChat Overview and Summary

In Kelly v Davis, the plaintiff, a university student, sued three other students for defamatory statements made on Facebook. The plaintiff alleged that the first and third defendants, through posts published on social media, had defamed her by implying she was a drug dealer and had stolen a classmate's belongings. The third defendant also sought to rely on statutory and common law qualified privilege, as well as triviality as a defence. The court was required to determine whether the statements were capable of identifying the plaintiff, whether they conveyed the alleged imputations, and whether the triviality defence applied. The court also had to consider the applicability of the qualified privilege defences.

The court found that each of the matters complained of identified the plaintiff, and conveyed the alleged imputations. The plaintiff's argument that the third defendant's posts were trivial was rejected. However, the court found that the third defendant's posts were protected by qualified privilege under both statute and common law. The court found that the posts were made in good faith to a person with a legitimate interest in receiving them, and that the third defendant had no actual malice. The court awarded the plaintiff nominal damages of one dollar against the first defendant, and no damages against the third defendant.

The court's final orders were that the plaintiff recover nominal damages of one dollar against the first defendant, and no damages against the second and third defendants. The court also ordered the plaintiff to pay the costs of the first and third defendants.

Orders

Orders of the court

See paragraph 257

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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