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O’Donnell v Lloyd

O’Donnell v Lloyd

Case [2020] NSWDC 787 26 November 2020

Defamation

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Appeal

Admissibility of Evidence

Media & Entertainment Law

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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…

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.

Continue reading O’Donnell v Lloyd

Details

AGLC: O'Donnell v Lloyd [2020] NSWDC 787
Case: [2020] NSWDC 787
Decision Date: 26 November 2020

CaseChat Overview and Summary

The defendants, Lloyd and two companies associated with him, were sued by O’Donnell for defamation. The claim was based on a series of online publications made by the defendants. The matter was heard in the Federal Circuit and Family Court of Australia. The defendants contested the claim on various grounds, including challenges to the form and content of the publications, the adequacy of the plaintiff's pleadings, and the effect of an apology made by one of the defendants. The court had to determine whether the plaintiff had properly pleaded the defamatory content and whether the defendants’ challenges to the pleadings and content were valid.

The primary legal issues were whether the court should consider the natural and ordinary meaning of the publications, whether slang and expressions required translation, whether the plaintiff had pleaded the whole matter complained of, and whether an apology made by one defendant could be included as part of the matter complained of. The court also had to consider the effect of the apology on the defamation claim. The defendants argued that the plaintiff had not pleaded the whole matter complained of and that the publications contained untranslatable slang, which should not be considered in determining the defamatory content.

The court dismissed the defendants' challenges to the pleadings and content, finding that the plaintiff had sufficiently identified the matters complained of and that the court could consider the natural and ordinary meaning of the publications without translating slang. The court held that an apology made by one defendant could be included as part of the matter complained of and that the apology did not extend to publications made after the apology was published. The court also dismissed the application for summary dismissal and ordered the plaintiff to file an amended statement of claim and the defendants to file defences by specified dates.

The court ordered that the defendants pay the plaintiff's costs of the applications and stood over the matter for directions. The court found that the defendants' challenges to the pleadings and content were without merit and that the plaintiff had adequately pleaded the defamatory content. The court also found that the apology made by one defendant could be included as part of the matter complained of and that the apology did not extend to later publications. The case was set for further directions, with the defendants required to file defences by a specified date.

Orders

Orders of the court

(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.

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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Citations

AGLC Citation

O'Donnell v Lloyd [2020] NSWDC 787

Most Recent Citation

Prouten v Buxton [2024] NSWDC 182

Cases citing this decision · 1 of 1 shown

Prouten v Buxton
[2024] NSWDC 182 Para 38

…Are there other factors to take into account? Judgments often refer to “context” but, as is noted in O’Donnell v Lloyd [2020] NSWDC 787, courts have never used philological tools to analyse or interpret any pre-internet publications, let alone social media. In a rare case where expert evidence was provided ( Rid No…

View all 1 citing cases →

Cases cited in this decision · 26 of 26 shown

Australian News Channel Pty Ltd v Voller
[2020] NSWCA 102 Para 1

…ion 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 sup…
JWR Productions Australia Pty Ltd v Duncan-Watt (No 2)
[2020] FCA 236 Para 29

…ecisions, 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 d…
Pinnacle Runway Pty Ltd v Triangl Limited
[2019] FCA 1662 Para 29

…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…
Hayson v Nationwide News Pty Limited
[2019] FCA 81 Para 31

…ent 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]:…
Gav v Ryde Ex Services Memorial and Community Club Ltd
[2018] NSWSC 621 Para 7

…[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 a…
Sakr v Australian Broadcasting Corporation
[2015] NSWDC 25 Para 28

…b 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…
Pedavoli v Fairfax Media Publications Pty Ltd
[2014] NSWSC 1674 Para 40

…, 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]:…
McFarlane v Nationwide News Pty Ltd
[2014] NSWSC 1574 Para 9

…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].”…
Dank v Cronulla-Sutherland District Rugby League Football Club
[2013] NSWSC 1101 Para 28

…he 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 suc…
Shiels v Manny
[2012] ACTCA 22 Para 42

…ion 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].…
Spencer v Commonwealth of Australia
[2010] HCA 28 Para 45

…f 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:…
Calabro v Zappia
[2010] NSWDC 127 Para 50

…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.…
Kermode v Fairfax Media Publications Pty Ltd
[2009] NSWSC 1263 Para 19

…ader, 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];…
Robinson v Brighton
[2007] NSWSC 1125 Para 20

…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].”…
White Industries Australia Ltd v Federal Commissioner of Taxation
[2007] FCA 511 Para 2

…eficient 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]).…
Bass v TCN Channel Nine Pty Ltd
[2006] NSWCA 343 Para 16

…blications 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].…
Australian Broadcasting Corporation v Obeid
[2006] NSWCA 231

…lifies 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 u…
Batistatos v Roads and Traffic Authority of New South Wales
[2006] HCA 27 Para 4

…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).…
Sandilands v Channel Seven Sydney Pty Ltd
[2005] NSWSC 1250 Para 20

…]; 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].”…
Beran v John Fairfax Publications Pty Ltd
[2004] NSWCA 107 Para 54

…s 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…
Dix Gardner Pty Ltd v Strathfield Municipal Council
[2003] NSWSC 597 Para 16

…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…
Phelps v Nationwide News Pty Ltd
[2001] NSWSC 130 Para 22

…er 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 Ryd…
Harrington v Lowe
[1996] HCA 8 Para 50

…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 o…
Quad Consulting Pty Ltd v David R Bleakley & Associates Pty Ltd
[1991] FCA 213 Para 50

…er 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…
Webb v Bloch
[1928] HCA 50 Para 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] NS…
Drummoyne Municipal Council v Australian Broadcasting Corporation
79 ER 667 Para 22

…llenge 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…

Legislation cited in this decision · 2

Defamation Act 2005 (TAS)
17, 19 3 mentions (from Para 1)
Civil Procedure Act 2005 (NSW)
73 2 mentions (from Para 51)

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…