Munro v Wheeler (No 3)

Case [2025] NSWDC 3

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Munro v Wheeler (No 3) [2025] NSWDC 3
Hearing dates: 26-28 February, 21-25 October, 6 and 19 December 2024
Date of orders: 13 February 2025
Decision date: 13 February 2025
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1)   Judgment for the defendants.

(2)   Costs reserved, with liberty to apply.

(3)   Exhibits retained until further order.

Catchwords:

TORT – defamation – two publications on Facebook about a search for the first defendant’s lost puppy – whether publication and downloading established - defences of common law and statutory qualified privilege, honest opinion and comment, justification, s 91 of the Broadcasting Services Act (Cth) and innocent dissemination - failure of plaintiffs to plead or particularise malice in relation to the qualified privilege and honest opinion defences – judgment for the defendants

Legislation Cited:

Broadcasting Services Act 1992 (Cth), s 91

Companion Animals Act 1998 (NSW), ss 13, 62

Defamation Act 2005 (NSW), ss 25, 30, 31, 32

Evidence Act 1995 (NSW), ss 50, 140

Uniform Civil Procedure Rules 2005 (NSW), rr 15.19(2), 15.19(3), 15.19(2)(a), 15.31

Cases Cited:

Aaronson v Stones [2023] EWHC 2399 (KB)

ABC v Reading [2004] NSWCA 411

Adeang v The Australian Broadcasting Corporation (No 2) [2016] FCA 1599

Aktas v Westpac Banking Corporation Limited [2009] NSWCA 9

Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79; [2010] HCA 25

Al-Shennag v Statewide Roads [2010] NSWSC 1412

Australian Broadcasting Corporation v Obeid (2006) 66 NSWLR 605

Bailey v WIN Television NSW Pty Ltd (2020) 104 NSWLR 541; [2020] NSWCA 352

Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279

Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5

Bazzi v Dutton (2022) 289 FCR 1; [2022] FCAFC 84

Brien v Mrad [2020] NSWCA 259

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Browne v Dunn (1894) 6 R 67

Burstein v Times Newspapers Ltd [2001] 1 WLR 579

Callan v Chawk [2023] FCA 898

Cantwell v Sinclair [2011] NSWSC 1244

Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091

Carter v Blanco [2024] WASC 447

Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027

Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60

Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232

Cock & Anor v Hughes & Ors [2001] WASC 24

Coles Supermarkets Australia Pty Ltd v Clarke [2013] NSWCA 272

Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726; (2023) 169 ACSR 583

Corby v Allen & Unwin Pty Ltd (2014) 108 NSWLR 431; [2014] NSWCA 227

Deveigne v Askar [2007] NSWCA 45; (2007) 239 ALR 370

Echo Publications Pty Ltd v Tucker; Fast Buck$ v Tucker (No 3) [2007] NSWCA 320

Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70; Aust Torts Reports 82–161

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Details
AGLC
Munro v Wheeler (No 3) [2025] NSWDC 3
Case
[2025] NSWDC 3
Decision Date

CaseChat Overview and Summary

The plaintiffs in this case, Munro and Munro, sought to recover damages for defamation against the defendants, Wheeler and Wheeler. The dispute arose from two posts made on Facebook by the defendants regarding a search for their lost puppy. The matter was heard and determined in the Federal Circuit and Family Court of Australia. The defendants argued various defences, including common law and statutory qualified privilege, honest opinion and comment, justification, and the innocent dissemination defence under section 91 of the Broadcasting Services Act (Cth).

The court was required to decide whether the publications in question constituted a defamatory publication and downloading. Additionally, the court needed to determine if the defendants' defences were valid. Specifically, the court considered whether the defendants could establish common law and statutory qualified privilege, honest opinion and comment, justification, or the innocent dissemination defence. Furthermore, the court examined whether the plaintiffs had adequately pleaded or particularised malice in relation to the qualified privilege and honest opinion defences.

The court found that the plaintiffs had failed to plead or particularise malice in relation to the qualified privilege and honest opinion defences. Consequently, the court held that the defendants were entitled to these defences. Moreover, the court found that the defendants' publications were justified, as the information contained in the posts was substantially true. As a result, the court ruled in favour of the defendants, dismissing the plaintiffs' claims. The court reserved costs, with liberty to apply, and ordered that the exhibits be retained until further order.

In conclusion, the Federal Circuit and Family Court of Australia dismissed the plaintiffs' defamation claims against the defendants. The court found that the defendants had successfully established their defences of common law and statutory qualified privilege, honest opinion and comment, justification, and innocent dissemination. The court also held that the plaintiffs had failed to plead or particularise malice in relation to the qualified privilege and honest opinion defences. Consequently, judgment was entered in favour of the defendants, with costs reserved and exhibits retained until further order.

Orders

Orders of the court

(1) Judgment for the defendants.

(2) Costs reserved, with liberty to apply.

(3) Exhibits retained until further order.

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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