O’Donnell v Lloyd

[2020] NSWDC 787

District Court

New South Wales

Medium Neutral Citation:

O’Donnell v Lloyd [2020] NSWDC 787

Hearing dates:

19 November 2020

Date of orders:

19 November 2020

Decision date:

26 November 2020

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1) The defendants’ challenges to the pleadings of the first to third publications in the Statement of Claim, on the basis that they do not sufficiently identify the matters complained of, are dismissed.

(2) The defendants’ challenges to the contents of the matters complained of as containing untranslatable slang and expressions requiring translation (as opposed to a pleading of natural and ordinary meaning) is dismissed.

(3) The defendants’ challenge to the plaintiff’s asserted failure to plead the whole matter complained of is dismissed

(4) The third defendant’s application for summary dismissal of the proceedings against her is dismissed.

(5) The Amended Statement of Claim incorporating the revised text of the fifth matter complained of and any clarification of the contractual basis upon which the third matter complained of is brought against the third defendant is to be filed and served in 7 days.

(6) The defendants are to file and serve Defences by Tuesday 2 February 2021.

(7) Matter stood over to the Defamation List for directions at 9am Thursday 4 February 2021.

(8) The defendants are to pay the plaintiff’s costs of the applications.

Catchwords:

TORT – defamation - challenges to form and content of online publications – whether slang should be “translated” – whether an apology published online may be included as part of the matter complained of – whether apology for earlier publication extended to publications after the apology was published

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 73

Defamation Act 2005 (NSW) ss 17, 19

Uniform Civil Procedure Rules r 15.19(1)(e)

Cases Cited:

Bass v TCN Channel 9 Pty Ltd (2003) 60 NSWLR 251

Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256

Calabro v Zappia [2010] NSWDC 127

Dank v Cronulla-Sutherland District Rugby League Football Club Limited [2013] NSWSC 1101

Dix Gardener v Strathfield Municipal Council [2003] NSWSC 597

Drummoyne Municipal Council v Australian broadcasting Corporation (1990) 21 NSWLR 135

Dwyer v IPC Magazines Ltd (Supreme Court of New South Wales, 2 November 1990)

Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102

Harrington v Lowe (1996) 190 CLR 311

Hayson v Nationwide News Pty Ltd [2019] FCA 81

Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682

Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682

JWR Productions Australia Pty Ltd v Duncan-Watt (No 2) [2020] FCA 236

Liberace v Daily Mirror Newspapers Limited, The Times, June 18, 1959

Pedavoli v Fairfax media publications [2014] NSWSC 1674

Pinnacle Runway Pty Ltd v Triangl Ltd [2019] FCA 1662

Quad Consulting Pty Ltd v David R Bleakley & Associates Pty Ltd (1990) 27 FCR 86

Sakr v Australian Broadcasting Corporation [2015] NSWDC 25

Shiels v Manny & Anor [2012] ACTCA 22

Spencer v The Commonwealth (2010) 241 CLR 118

Unilever plc v The Procter & Gamble Co. [1999] 2 All E R 691

Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50

White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298

Young v Munro (Supreme Court of New South Wales, 12 May 1995)

Category:

Procedural and other rulings

Parties:

Plaintiff:
Felix Malzard O'Donnell

Defendant:
First defendant: Daniel Lloyd
Second defendant: Brittany Kelberg
Third defendant: Eloise Kieler

Representation:

Counsel:
Plaintiff: Mr Sibtain
Defendant: Mr Dibb

Solicitors:
Plaintiff: Atkinson Vinden Lawyers

File Number(s):

2020/00217249

Judgment

The plaintiff’s claim

1. The plaintiff, by statement of claim filed on 24 July 2020, bring proceedings for defamation against four persons. The matters complained of are as follows:

1. A publication by the first defendant on and from approximately 1 March 2020 on the first defendant’s Facebook page, followed by permission to other users to publish further comments;

2. A publication by the second defendant on and from approximately 1 March 2020 on the first defendant’s Facebook page;

3. A publication on and from approximately 1 March 2020 by the third defendant on the first defendant’s Facebook page

4. A further publication by the second defendant on and from approximately 1 March 2020, on the second defendant’s Facebook media page

5. On and from approximately 24 May 2020, publications by the first and third defendants of a post on the first defendant’s Facebook page.

2. Defences were filed to the plaintiff’s claim by the defendants when they were acting for themselves. They were granted leave to withdraw those defences on 17 September 2020 and now bring a series of applications challenging the form and content of the statement of claim and (in the case of the third defendant) an application for summary dismissal.

The applications before the court

3. The defendants challenge the case pleaded against them on the following grounds:

1. The pleading of liability for publication for the first to third publications in the statement of claim does not sufficiently identify the matter complained of in respect of each defendant. (An earlier complaint of breach of Uniform Civil Procedure Rules (“UCPR”) r 15.19(1)(e) has now been dropped, as has a complaint about the pleading of the fifth matter complained of.)

2. All of the matters complained of contain incomprehensible slang expressions, which means that no imputations can be conveyed unless there are extrinsic facts pleaded as to meaning, or alternatively a “translation” provided.

3. The plaintiff has failed to plead the whole of the matter complained of in relation to all five publications.

4. The third defendant brings the following additional challenges:

1. The third defendant challenges the entitlement of the plaintiff to include the public apology published by the third defendant as part of the fifth matter complained of, on the basis that it is inadmissible pursuant to s 19 of the Defamation Act 2005 (NSW). The fact that such an apology is inadmissible is asserted to prevent it forming any part of a publication sued upon.

2. The proceedings should be dismissed as against the third defendant by reason of operation of the defence of offer of amends, a complete defence in relation to all matters complained of.

5. I heard these applications on 19 November 2020. These are my reasons for the rulings I made on that day.

The defendants’ first argument: liability for publication for the first to third matters complained of is not clearly delineated

6. In the plaintiff’s outline of submissions, Mr Sibtain helpfully sets out his explanation of the form of the publication for the first three challenged publications as follows:

1. First matter complained of: The plaintiff sues the first defendant in respect of a post made by the first defendant on his Facebook page, and the comments that were posted in response to that post on that Facebook page (Schedule A to the statement of claim). That post was: “I’d rather eat my own shit than accept your friend request you rapey, little dicked emo cuck”, followed by a screenshot of a ‘like request’ featuring the plaintiff’s name and image. The comments in respect of that post continued for 15 pages, attracting 102 comments (including comments by the first defendant and the second defendant). The first defendant is responsible for the publication of the post and each of those comments: Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102 at [47] and [112]. The post and the comments that follow convey the imputations pleaded in paragraph 2 and arise from the parts identified in the particulars supplied to the defendants.

2. Second matter complained of: The plaintiff sues the second defendant in respect of those comments posted directly by her as part of the first matter complained of. Her comments appear at lines 38, 41, 58, 61, 97 and 100, and were made in the context of the comments that preceded each of those comments. They convey the imputations pleaded in paragraph 5 and arise from the parts identified in the particulars supplied to the defendants.

3. Third matter complained of: The plaintiff sues the third defendant in respect of the comment posted directly by her as part of the first matter complained of. Her comment appears at line 49, and was made in the context of the comments that preceded her comment. It conveys the imputations pleaded in paragraph 9 and arise from the parts identified in the particulars supplied to the defendants. The third defendant did not delete that post, and the post remained visible to persons who could view the first defendant’s Facebook page as at the date of the filing of the statement of claim in these proceedings.

7. Although no longer the subject of attack, Mr Sibtain also provides an explanation of the structure of the fourth and fifth matters complained of:

1. Fourth matter complained of: The plaintiff sues the second defendant in respect of a post made by the second defendant on her Facebook page, and the comments that were posted in response to that post on that Facebook page (Schedule B to the statement of claim). That post was:

“HOW DOES HE KEEP COMING BACK FUCK HAHA

•••. thought I'd edit this. I have 50 mutual friends with him and I thought you all should know about this rapey fuck stick

Really wouldn't get involved with him if I was you just read the comments on the og post 1f you need proof showing v-lhat he's done to me and countless others the amount of call out posts that have been about him is a joke”

2. What followed that post was the original post of the first defendant that launched the first matter complained of, together with 63 further comments by commentators on the post. Those commentators included, but were not limited to, the first and second defendants. The second defendant is responsible for the publication of the initial post and each of the comments that followed it. The post and the comments that follow convey the imputations pleaded in paragraph 3 and arise from the parts identified in the particulars supplied to the defendants.

3. Fifth matter complained of: The plaintiff sues the first and third defendants in respect of a post made by the first defendant on the third defendant’s Facebook page, and the comments that were posted in response to that post on that Facebook page (Schedule C to the statement of claim). The third defendant published, on about 24 May 2020, an apology to the plaintiff, as required pursuant to the terms of a settlement agreement made between the plaintiff and third defendant (addressed below in response to the third defendant’s submissions). That apology attracted a plethora of comments. Relevantly, it attracted a comment from the first defendant that appears at lines 7 to 13 of Schedule C. A number of comments from other commentators follow the first defendant’s comment, including further comments from the first defendant. Each of the first and third defendants is responsible for the publication of the third matter complained of. The third defendant had the power to delete all of the comments made in response to the publication of her apology, but apparently chose not to do so. The first defendant published his own defamatory comments and encouraged the publication of further vitriol. The post of the first defendant on the third defendant’s Facebook page, and the comments that follow, convey the imputations pleaded in paragraph 17 and arise from the parts identified in the particulars supplied to the defendants.

8. The defendants’ complaints that they do not understand the case they are to meet relate principally to the pleading of liability for publication arising from the first and third defendants permitting publications by the other defendants to remain online.

9. This is a commonly pleaded claim, based on the principles enunciated in Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50. These principles have been most recently explained, in relation to online publications, in Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102 (“Voller”). In the headnote to Voller, the Court helpfully summarises how liability arises as follows:

“1. A person who participates in and is instrumental in bringing about the publication of defamatory matter is potentially liable for having done so notwithstanding that others may have participated in that publication in different degrees: [42], [111]. In this case, the applicants maintained Facebook pages and encouraged and facilitated the making of comments by third parties which when posted on the page were made available to Facebook users generally and were therefore publishers of the comments: [47], [112].”

10. That is the case as pleaded here, as Mr Sibtain’s summary of the way his client’s case is pleaded demonstrates. Liability for publication extends beyond the posts that each of the defendants wrote, in that they encouraged and facilitated the making of comments by other Facebook users and allowed these comments to remain online.

11. I am further satisfied, given the carefulness of both the pleading and Mr Sibtain’s explanation, that, in each of those cases, as explained above, liability for publication is sufficiently clearly delineated and explained for the defendants to know the case they have to meet. The defendants’ challenge to the pleading of publication accordingly fails.

12. The additional grounds upon which the third defendant challenges liability for publication, and my reasons for rejecting them, are set out below.

The defendants’ second argument: the requirement for “slang” to be “translated”

13. Only a handful of words were specifically challenged, and these were all in the first matter complained of. The relevant entries are:

1. “I’d rather eat my own shit than accept your friend request you rapey little dicked emo cuck” and

2. an entry in paragraph 55 which reads: “BROOFJJDNDF”

14. Mr Dibb submits that a jury would not be expected to know the meaning of someone saying of the plaintiff that he is “an emo cuck” or “rapey”, in that these words do not have a natural and ordinary meaning at all. A schedule of the kind used for foreign language is required, as these posts are effectively in a foreign language. If the plaintiff will not plead reliance on innuendo meanings, “he must take notice that no evidence will be permissible at trial in respect of the meaning” (written submissions, paragraph 17) and “is squarely on notice that appropriate submissions will be made to the jury as to whether it is persuaded that the plaintiff has discharged his owners of establishing that the matters complained of carry the meanings pleaded” (written submissions, paragraph 18).

15. Caution must be exercised when using slang terms in imputations. In Dwyer v IPC Magazines Ltd (Supreme Court of New South Wales, 2 November 1990), Hunt J warned that “imputations should never use expressions in their slang sense”. However, the defendants have not fallen into that trap; the imputations are couched in non-slang English. The problem is that the matter complained of contains Internet slang. Does this require some special pleading of meaning (as “fruit-flavoured” did in Liberace v Daily Mirror Newspapers Limited, The Times, June 18, 1959)?

16. The concept of what is “slang” has changed markedly over the past thirty years. In Young v Munro (Supreme Court of New South Wales, 12 May 1995) and again in Dix Gardener v Strathfield Municipal Council [2003] NSWSC 597 at [4] – [5], Levine J expressly permitted reliance upon slang terms such as “shonky” in imputations, in circumstances where it occurred in the text, if it encapsulated the meaning. It was never suggested that the text itself required translation. Indeed, slang terms in both imputations and publications sued upon are commonplace today. Decisions of the New South Wales Court of Appeal decisions such as Bass v TCN Channel 9 Pty Ltd (2003) 60 NSWLR 251 have confirmed that courts now accommodate the use of slang, as Levine J noted in Dix Gardener v Strathfield Municipal Council at [6].

17. To the modern pleader, complaints about words such as “scam” and “shonky” seem out of touch with the English language as spoken and written by Internet users in general and social media users in particular.

18. The spoken language has changed profoundly thanks to the Internet. However, even before the Internet was introduced, the rules for determining meaning would not require the kind of precision Mr Dibb argues for. First of all, the meaning of the words should not be approached in the “vertical sense” of considering the word alone but, conformably with the principles of philology and semiotics, also in the “horizontal sense”, namely in the context of the sentence, where the meaning may be gleaned from its place in the sentence as well as the other words with which it appears. Viewed in that sense, the words in question are able to reflect the imputations pleaded.

19. Second, although Mr Dibb claims that these words are unknown, they are sufficiently frequently used online to warrant a definition being included in the Oxford Online UK dictionary, where they are defined as follows:

1. The word “cuck” is noted as an early 18^th-century abbreviation of “cuckold” which has from the early 21^st century come to mean a week or serve our man, used as a contemptuous term, generally for a person with progressive political views.

2. The word “emo” is a term for a style of music, but may also mean an emotional person.

3. The word “rapey” means “sexually aggressive or inappropriate in a way that causes fear or unease”.

20. While there are some words of dubious meaning in the first publication, such as ‘BROOFJJDNDF”, these isolated words do not detract from the general sense of what is said, which is quite easy to follow, even for the increasingly small number of readers of the posts whose use of social media is of an elementary nature.

21. Mr Dibb points out that a jury would not be allowed to consult a dictionary. However, the point to be made about the appearance of these slang terms in an online dictionary is that they must have appeared on the Internet on a sufficient number of occasions to warrant their inclusion. That is sufficient to satisfy me that no further pleading (or translation) is required.

22. Where a challenge is made to the form of an imputation, the relevant principles are set out in Drummoyne Municipal Council v Australian broadcasting Corporation (1990) 21 NSWLR 135. However, this objection taken here is not as to the form of the imputations, but as to the words in the matter complained of. That is a much harder task, and one which would require the defendant to do more than point to specific words and claim that the whole of one or more of the matters complained of requires a translation into English.

23. My researches have not led to the discovery of any defamation claim where the matter complained of has been held to be incomprehensible without translation but, if such a claim came before the Court, there would need to be more evidence of its incomprehensibility than the ipse dixit of the defendants. Their objection is all the more disingenuous given the fact that these are the very words of the first defendant. As Hutley JA noted in Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 688:

“Though a defendant is entitled to know the case he has to meet, it is strange to hear the suggestion that this defendant does not understand an imputation which is precisely in the words it has used, so that it is embarrassed in justifying it. This must mean it does not know what it is alleged an ordinary reasonable hearer would make of it.”

24. The argot of the Internet may be complex and constantly changing, but it is not another language requiring translation into English. Nor are challenges to a handful of words in one publication sufficient to require a wholescale “translation” of some or all of the Facebook posts sued upon. The defendants’ submissions on this issue are, for these reasons, without merit.

The defendants’ third argument: failure to plead the whole of the matters complained of

25. The defendants complain that the matters complained of at some points say “see more”, a common feature of social media, in that the reader must click on the “see more” link in order to read more replies or comments. The defendant submits that the mere appearance of such words indicates that further material statements which may qualify the meaning or provide a basis for the pleading of contextual imputations may be contained, and these must be set out in full.

26. The following specific examples are given:

1. The reference to “see more” in paragraph 41 of schedule A.

2. At paragraph 45, the omitted material is no longer available as it has been removed from Facebook.

3. The first 27 replies in relation to schedule B have been omitted.

4. As to schedule C, the “previous comments”, which are unknown in number, are not included.

27. Mr Dibb submits that it is unfair for the plaintiff to produce an edited version of the material when he could easily have produced a full version.

28. This application is a good example of the need for parties who commence proceedings in relation to internet-based publications to take early steps to preserve online material, whether in the form of internet posts, or other evanescent documents such as diary notes (Dank v Cronulla-Sutherland District Rugby League Football Club Limited [2013] NSWSC 1101), or a wide range of temporary records which might not otherwise be retained (Sakr v Australian Broadcasting Corporation [2015] NSWDC 25). Steps such as seeking particulars and/or interim preservation orders are wise precautions where there is a fear that such documentary evidence may no longer be in existence at the trial.

29. However, many of these document-preserving steps can, and should, be taken by the parties themselves. In cases such as the present, there are a number of ways for the parties to use online technology to obtain and retain relevant material. The availability of deleted post search engines such as the Wayback Machine is referred to in a number of recent decisions, such as Pinnacle Runway Pty Ltd v Triangl Ltd [2019] FCA 1662 at [104] – [124] and JWR Productions Australia Pty Ltd v Duncan-Watt (No 2) [2020] FCA 236 at [684] – [685]. As these judgments explain, the Wayback Machine is one of a series of Internet archive services designed to assist in searching for deleted material. It allows the searcher to go back in time in order to resolve issues as to what material was deleted and when. (It owes its unusual name to a popular 1960s cartoon series, entitled “Peabody’s Improbable History”, where in each episode a dog named Mr Peabody used his “Wayback Machine” to go back in time to find out what “really” happened on famous occasions in history, invariably with comedic results.)

30. What the defendants cannot do is to complain, without taking these steps, that something seems to be missing. If the defendants are concerned that there is material additional to that contained in the matter complained of which may bear upon the meaning, the onus lies upon them to make their own enquiries in this regard, whether by conducting their own searches, consulting an expert, or simply asking the plaintiff to provide the relevant material. When that material is obtained, if it does bear upon meaning in any way, the defendants may then bring a “strike in” application.

31. If the defendants do take this step, any application to amend, enlarge or reduce the content of any of the matters complained of needs to be considered in context of the principles set out by Bromwich J in Hayson v Nationwide News Pty Ltd [2019] FCA 81 at [9]:

“There was little dispute as to the relevant principles, as outlined in the competing submissions. The issue is as to their application. Those principles may be stated in short form as follows:

(1) There is a cause of action for each publication of “defamatory matter”, “matter” being defined as including “an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical”: see ss 4(a) and 8, Defamation Act 2005 (NSW). A single published article is therefore usually to be considered as a separate matter unless there is a sufficient reason to treat it in some other way relative to other published material.

(2) An allegation of a defamatory meaning, especially when there is a question as to whether an imputation in one part is negated by reference to what appears in another part, must be determined by reference to the matter that has been published, considered as a whole: Morosi v Broadcasting Station 2GB Pty Ltd, unreported, New South Wales Court of Appeal, Samuels JA, 28 September 1978, but published in the manner of a report as an Editor’s endnote to Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 per Hunt J, at 418 to 421, relevantly at the bottom of 419.

(3) The requirement to read a matter that has been published as a whole means that an allegation of defamation cannot be pleaded in a way that denies its overall meaning. Thus, the pleading must include “every passage which materially alters or qualifies the complexion of the imputation complained of”: Gordon at 413[6], endorsed in Australian Broadcasting Corporation v Obeid [2006] NSWCA 231; 66 NSWLR 605 at [26(a)]. The pleading must place the parts relied upon in their full context if that context is capable of materially affecting the imputations relied upon: Obeid at [26(e)-(f)].

(4) Beyond the requirement to plead a matter complained of contextually, an allegation of defamation may be cast as a matter of forensic choice (and, it may be said, risk: see Obeid at [4]). As Simpson J pointed out in Phelps v Nationwide News Pty Ltd [2001] NSWSC 130 at [22] (quoted and effectively applied in Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 at [54]-[56], and endorsed more recently by McCallum J in Gav v Ryde Ex Services Memorial and Community Club Ltd [2018] NSWSC 621 at [7]):

Individual circumstances will dictate whether a particular pleading will be permitted to stand. However, it is to be borne in mind that, subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen, it is generally for the plaintiff to select the manner in which he/she/it wishes to present a case. It is only if the plaintiff’s selection of the mode of pleading is untenable for one of those reasons that it will be struck out. By this I mean that where, for example, a plaintiff elects to proceed as though a number of individual parts of the matter complained of together amount to a composite publication, it is only if that approach is not reasonably open, or creates unfairness of such a degree as to constitute an abuse of process, that the pleading will be struck out. Similarly, where the plaintiff elects to proceed as though each were a separate publication, it is only where that view is not reasonably open (or where unfairness amounting to abuse of process would result) that that pleading will be struck out. Within those boundaries, a plaintiff is entitled to mark out the playing field.

(5) Thus, as pithily expressed by Hodgson JA in Obeid at [2], a person bringing a defamation suit “cannot be compelled to include additional material in the statement of claim unless (1) this additional material is part of what can reasonably be regarded as one publication that includes the material relied on by the plaintiff, and (2) the material relied on by the plaintiff must reasonably be regarded as part of a publication that includes the additional material”.

(6) The compulsion to plead more than has been forensically chosen will only arise if the only reasonable view that is open is that the selection did not provide the “whole of the context” from which the tribunal of fact, considering the matter from the perspective of an ordinary reasonable reader, would be concerned to determine the meaning of what was published: Obeid at [69]; see also Kermode v Fairfax Media Publications Pty Ltd [2009] NSWSC 1263 at [19]-[20], [25]-[28]; Sandilands v Channel Seven Sydney Pty Ltd [2005] NSWSC 1250 at [20], [24]; Robinson v Brighton [2007] NSWSC 1125 at [12], [15]-[17]; McFarlane v Nationwide News Pty Ltd [2014] NSWSC 1574 at [9], [12].”

32. Mr Sibtain has told the Court that, this is the full extent of the publication to the best of his client’s knowledge.

33. For the above reasons, I am satisfied that the defendants should resolved this issue by taking steps of the kind set out above. If further text is located, a “Strike in” application may be brought at a later day.

Entitlement to plead the apology

34. The third defendant relies upon her affidavit sworn on 29 October 2020, which sets out that an offer to make amends was made and accepted in relation to a publication made on 19 April 2020. That included a payment of $750 towards the plaintiff’s legal costs.

35. A screenshot of the third defendant’s public posting of the apology on Facebook was provided on 25 May 2020 and the comments the subject of the offer to make amends were deleted. She states, at paragraph 10 of her affidavit, that she has made no further publication of any kind about the plaintiff since that time. Her explanation for allowing the persons on her Facebook page to remain is that she “believed that I could not delete comments by other people” up until being told to the contrary by an unknown person on or about September 2020, following which she deleted them all.

36. There are three issues for consideration:

1. whether the acceptance of the offer to make amends, or any provision in the agreement between the parties as part of that procedure, amounts to a bar to the continuation of proceedings.

2. whether the whole of the matter complained of is infected by the apology and should be dismissed pursuant to s 19.

3. whether the apology only should be deleted or remain in the matter complained of on the principles of “bane and antidote”.

37. I will deal with each in these in turn.

An agreement not to sue?

38. The third defendant argues that, as a result of this acceptance, the plaintiff cannot bring these on (although thing that the proceedings, by reason of s 17 of the Defamation Act 2005 (NSW).

39. Section 17 provides:

“17 Effect of acceptance of offer to make amends

(1) If the publisher carries out the terms of an offer to make amends (including payment of any compensation under the offer) that is accepted, the aggrieved person cannot assert, continue or enforce an action for defamation against the publisher in relation to the matter in question even if the offer was limited to any particular defamatory imputations.

(2) A court may (but need not)—

(a) order the publisher to pay the aggrieved person the expenses reasonably incurred by the aggrieved person as a result of accepting the offer, and

(b) order any costs incurred by the aggrieved person that form part of those expenses to be assessed on an indemnity basis.

(3) The powers conferred on a court by subsection (2) are exercisable—

(a) if the aggrieved person has brought proceedings against the publisher in any court for defamation in relation to the matter in question, by that court in those proceedings, and

(b) except as provided in paragraph (a), by the Supreme Court.”

40. The third defendant submits that this is not a matter where a defence to this effect need be pleaded, as the entitlement to summary dismissal is the appropriate course, for the reasons explained by McCallum J in Pedavoli v Fairfax media publications [2014] NSWSC 1674 at [34]:

“The defence under s 18 serves those objects (particularly the object of promoting speedy and non-litigious methods of resolving disputes) by creating a powerful incentive for defendants to make amends rather than to fight the cause. The making of a reasonable offer has the potential, one way or the other, to stymy the litigious path to vindication of reputation. If the offer is accepted, the plaintiff cannot pursue proceedings in court: s 17. If the offer is rejected then, provided the requirements of s 18 are satisfied, there is a complete defence, notwithstanding the establishment of an otherwise actionable defamation. Whereas a defendant can apologise, in aid of the defence, with impunity (see s 13(4) and s 20 of the Act), a plaintiff who fails to accept a reasonable offer to make amends risks everything.”

41. Mr Dibb also refers to s 19, which provides:

“19 Inadmissibility of evidence of certain statements and admissions

(1) Evidence of any statement or admission made in connection with the making or acceptance of an offer to make amends is not admissible as evidence in any legal proceedings (whether criminal or civil).

(2) Subsection (1) does not prevent the admission of evidence in any legal proceedings in order to determine—

(a) any issue arising under, or relating to the application of, a provision of this Division, or

(b) costs in defamation proceedings.”

42. Mr Dibb submits that the prohibition in s 19(1) is in the same terms as those used in s 10 in relation to deceased persons. This means that the defence operates as a sword rather than a shield and must be deployed immediately: Shiels v Manny & Anor [2012] ACTCA 22 at [50] – [55].

43. However, the death of a person is an incontrovertible piece of evidence, whereas compliance with an offer of amends and its applicability to future publications are matters which are issues of disputed fact.

44. The first (and greatest) difficulty is that, after the third defendant published her apology on her Facebook page, 45 pages of other posts appeared by other persons (including the first defendant), the contents of which are the subject of the fifth matter complained of. Those publications postdate the plaintiff’s acceptance of the third defendant offer. The plaintiff holds the third defendant responsible on this basis, conformably with the principles set out in Webb v Bloch [1928] HCA 50 but also still sues on the publication the subject of the offer to make amends on the basis that that offer has not been fully complied with. The basis for that claim is not only that 45 pages of adverse commentary were left up but also that the offending publication was never removed in the first place. They postdate the offer and amount to fresh publication. An offer to make amends must specifically relate to identified publications.

45. Even if it were asserted that there was some implied covenant no to sue, to assert, in such circumstances, that the offer of amends provisions prevents the bringing of such a claim and should be struck out summarily is contrary to the following principles for summary dismissal set out in Spencer v The Commonwealth (2010) 241 CLR 118:

1. First, summary disposition of proceedings requires there to be unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case that might be propounded by permissible amendment (at [22] per French CJ and Gummow J).

2. Second, the power to summarily dismiss a proceeding is to be distinguished from complaints of deficient pleadings, (at [23] per French CJ and Gummow J; see also the discussion of White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at [47] at [23]).

3. Third, an applicant may have no reasonable prospect of successfully prosecuting the proceeding even if it cannot be concluded that the proceeding is not hopeless or bound to fail (at [17] per French CJ and Gummow J).

4. Fourth, the “exercise of powers to summarily terminate proceedings must always be attended with caution”, whatever may be the basis upon which that disposition is sought (at [24] per French CJ and Gummow J). It is not a power to be exercised lightly (at [60] per Hayne, Crennan, Kiefel and Bell JJ); there must be a “high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”: Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at [46], referred to at [24] per French CJ and Gummow J).

46. Not only are there disputed facts, but the basis upon which the summary dismissal application is brought is itself flawed. The publications in question postdate the publication of the apology – all 45 pages of them.

47. For these reasons, the application for summary dismissal is rejected.

48. The defendants brought an alternative argument to the effect that any cause of action requiring the inclusion of the apology cannot be permitted because apologies published as part of an offer of amends are stated, by the terms of the legislation, to be inadmissible.

Sections 17 and 19 and the admissibility of the apology

49. The third defendant submits that the inadmissible nature of the apology which was published means that it cannot be pleaded.

50. This submission misunderstands the law. It has always been the case that statements that are libellous (Unilever plc v The Procter & Gamble Co. [1999] 2 All E R 691) or misleading and deceptive (Quad Consulting Pty Ltd v David R Bleakley & Associates Pty Ltd (1990) 27 FCR 86, cited with approval in the High Court of Australia in Harrington v Lowe (1996) 190 CLR 311 at [24]) are not immune from suit merely because they are inadmissible as evidence. Whether a document is marked “without prejudice” or the subject of a statutory prohibition of the kind here, the privilege against production does not extend to denying the right to sue. Only in exceptional cases of fraudulent obtaining of a publication (such as the witness statement stolen from the opposing side’s solicitor’s file in Calabro v Zappia [2010] NSWDC 127) would a claim not be permitted, but these rare cases result from the principle ex turpi causa non oritur actio.

The third defendant’s alternative application for summary dismissal under s 73 of the Civil Procedure Act 2005(NSW)

51. Mr Dibb submits that, in the alternative, the third defendant is entitled to seek summary dismissal pursuant to s 73 of the Civil Procedure Act 2005 (NSW), which provides:

“73 Power of court to determine questions about compromises and settlements

(1) In any proceedings, the court—

(a) has and may exercise jurisdiction to determine any question in dispute between the parties to the proceedings as to whether, and on what terms, the proceedings have been compromised or settled between them, and

(b) may make such orders as it considers appropriate to give effect to any such determination.

(2) This section does not limit the jurisdiction that the court may otherwise have in relation to the determination of any such question.”

52. I reject this submission for the same reasons that I rejected the argument for summary dismissal. There was no agreement in relation to publication made after the apology was published.

Costs

53. Mr Dibb did not dispute that, as he was unsuccessful in all his applications, costs should follow the event.

Orders

1. The defendants’ challenges to the pleadings of the first to third publications in the Statement of Claim, on the basis that they do not sufficiently identify the matters complained of, are dismissed.

2. The defendants’ challenges to the contents of the matters complained of as containing untranslatable slang and expressions requiring translation (as opposed to a pleading of natural and ordinary meaning) is dismissed.

3. The defendants’ challenge to the plaintiff’s asserted failure to plead the whole matter complained of is dismissed

4. The third defendant’s application for summary dismissal of the proceedings against her is dismissed.

5. The Amended Statement of Claim incorporating the revised text of the fifth matter complained of and any clarification of the contractual basis upon which the third matter complained of is brought against the third defendant is to be filed and served in 7 days.

6. The defendants are to file and serve Defences by Tuesday 2 February 2021.

7. Matter stood over to the Defamation List for directions at 9am Thursday 4 February 2021.

1. The defendants are to pay the plaintiff’s costs of the applications.

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Decision last updated: 22 December 2020