Leave granted for the plaintiff to replead certain matters complained of and file amended pleadings accordingly.
Catchwords:
CIVIL PROCEDURE — Pleadings — Defamation — Whether pleadings contain sufficient particulars — Particulars required to demonstrate publication where publication disseminated via the internet — Whether leave should be granted for plaintiff to replead
Jasmin Newman (plaintiff) Adam Whittington (defendant)
Representation:
Counsel: R Armitage (plaintiff) T Smartt (defendant)
Solicitors: Makinson D’apice
File Number(s):
2021/35572
Publication restriction:
n/a
Judgment – ex tempore (revised)
HIS HONOUR:
Before the Court today is a Notice of Motion dated 7 February, by which the defendant takes objection to a number of paragraphs of what is described as the Proposed Third Amended Statement of Claim (‘Proposed Pleading’) dated 17 February 2022. The Notice of Motion, although directed towards an earlier version, was maintained by the defendant in relation to the newer Proposed Pleading as it was directed towards the same issues. The proceedings are a claim for damages for defamation.
The plaintiff describes herself as a citizen and resident of Australia. She is a family dispute resolution practitioner and accredited in that role with the Commonwealth Attorney General's Department. She describes the defendant, Mr Whittington as an Australian citizen. It is common ground that presently he resides overseas either in Sweden or in Russia. That is of no moment given…
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
AGLC
Newman v Whittington [2022] NSWSC 249
Case
[2022] NSWSC 249
Decision Date
CaseChat Overview and Summary
Newman v Whittington was a case heard in the Supreme Court of New South Wales. The plaintiff, Newman, sought damages for defamation against the defendant, Whittington. The dispute arose from defamatory statements published by Whittington on a social media platform, which allegedly caused serious harm to Newman's reputation. The court was required to determine whether the pleadings provided sufficient particulars, particularly regarding the publication and dissemination of the defamatory statements via the internet. Additionally, the court needed to address whether leave should be granted for the plaintiff to amend the pleadings to include more detailed information.
The central legal issues revolved around the adequacy of the pleadings, specifically whether they contained enough detail to demonstrate the publication of the defamatory statements and to satisfy the requirements of section 10A of the Defamation Act 2005 (NSW). This section stipulates that for defamation claims involving serious harm, the plaintiff must prove that the defamatory matter has caused, or is likely to cause, serious harm to the plaintiff’s reputation. The court examined the relevance of the UK Supreme Court decision in Lachaux v Independent Print Ltd and another [2020] AC 612, and its application in Australian law. The court also considered whether the particulars provided were sufficient to establish the element of serious harm.
In delivering the judgment, the Supreme Court held that the initial pleadings did not contain sufficient particulars to substantiate the publication of the defamatory statements via the internet. The court emphasised the need for detailed evidence regarding the reach and impact of online publications. While acknowledging the importance of protecting freedom of speech, the court noted the necessity for clear and precise pleadings in defamation cases to ensure a fair trial. The court granted leave for the plaintiff to amend the pleadings to include more specific details about the publication and dissemination of the defamatory statements. The court further directed that in the repleaded statement of claim, the plaintiff should provide a comprehensive account of the publication, including how and where the statements were disseminated, and the extent of their circulation.
The final orders of the court mandated that the plaintiff amend the pleadings within 28 days from the date of the judgment. The court directed that the amended statement of claim must include detailed particulars about the publication of the defamatory statements, including evidence of their dissemination and impact. Additionally, the court directed that the plaintiff must address the element of serious harm in accordance with section 10A of the Defamation Act 2005 (NSW), with appropriate references to relevant case law, including Lachaux. The defendant was given the opportunity to respond to the amended pleadings.