Prouten v Buxton

[2025] NSWCA 36

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Prouten v Buxton [2025] NSWCA 36

Hearing dates:

13 March 2025

Date of orders:

13 March 2025

Decision date:

13 March 2025

Before:

Stern JA; Basten AJA

Decision:

(1)   To the extent necessary, grant the applicant an extension of time within which to file the summons seeking leave to appeal up to and including 25 November 2024.

(2)   Dismiss the summons.

(3)   Order that the applicant pay the respondent’s costs of the summons.

Catchwords:

APPEALS — leave to appeal – leave required because monetary threshold not met – alleged defamation in social media posts – posts removed after limited exposure – defence of justification upheld – defence of honest opinion also upheld – contingent assessment of damages of $15,000 – amount in issue not approaching $100,000 threshold – disproportion between amount of possible damages and legal costs – no significant error of law, issue of principle or matter of general importance identified – court invited to reconsider factual findings of trial judge – no clear prospect of a different outcome if leave were granted, the appeal allowed, and a retrial held

Legislation Cited:

Defamation Act 2005 (NSW), s 31

District Court Act 1973 (NSW), s 127

Cases Cited:

Prouten v Buxton [2024] NSWCA 262

Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118

Category:

Principal judgment

Parties:

Sandra Prouten (Applicant)
Anthony Buxton (Respondent)

Representation:

Counsel:
J Levine (Applicant)
M Cowden (Respondent)

Solicitors:
Matrix Legal (Applicant)
Mark Brothers, Moray & Agnew (Respondent)

File Number(s):

2024/00437915

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2024] NSWDC 182

Date of Decision:

4 June 2024

Before:

Gibson DCJ

File Number(s):

2020/00192782

JUDGMENT

1. THE COURT: In mid-April 2020, in the early days of the Covid lockdowns and social distancing rules, members of the Warners Bay community, south of Newcastle, were accustomed to use a walking and cycling (shared) path running from Warners Bay to Eleebana. On 18 April and 24 April 2020 the respondent, Anthony Buxton, and his partner (Lynne Williams) encountered the applicant whilst riding their bicycles along the path. The applicant was walking and, on the first occasion holding a twig with leaves, and on the second a somewhat larger stick. On the first occasion the respondent was, on his evidence, hit on the leg by the stick as he rode past the applicant; on her evidence, he ran his bicycle into the stick.

2. On the second occasion, the respondent saw the applicant ahead carrying the stick and avoided her. He stopped and a conversation took place. He then took a photograph of the applicant walking on the left side of a pathway with a white line, apparently down the middle, holding the stick so that it extended across the whole of the left side of the path.

3. On returning home, the respondent posted an account of the two incidents on his Facebook page, under the heading “The Warners Bay Vigilante”. The post was “shared” by a member of the Warners Bay People and Friends Facebook Group on that group’s Facebook page.

4. The respondent also reported the matter to the police, who charged the applicant with assault. (The applicant was acquitted.) The applicant commenced proceedings in defamation in the District Court. By a judgment delivered on 4 June 2024, Gibson DCJ dismissed the applicant’s proceeding, giving judgment for the respondent: Prouten v Buxton [2024] NSWDC 182.

5. Although the trial judge dismissed the proceedings, she assessed damages, on a contingent basis, in an amount of $15,000, on the assumption that, contrary to her finding, the defence of justification had failed in relation to all three imputations relied on by the applicant.

6. On the last available day following the judgment, the applicant filed a notice of appeal. No evidential basis was provided to satisfy the Court that the amount in issue was equal to or greater than the sum of $100,000: accordingly leave was required pursuant to s 127(2)(c) of the District Court Act 1973 (NSW). In the absence of any application for leave, the notice of appeal was dismissed: Prouten v Buxton [2024] NSWCA 262.

7. On 25 November 2024, the applicant filed a summons seeking leave to appeal. The notice was out of time, but no prejudice (beyond a possible moderate delay) was caused to the respondent and time should be extended. A draft notice of appeal identified 24 grounds. The matter was listed for hearing on 13 March 2025, as to the question of leave alone.

8. The principles to be applied in considering a grant of leave to appeal, where leave is required because the amount does not exceed a monetary threshold are well-established. A convenient recitation of the principles may be found in Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118. Excluding many references to the cases relied upon, Bell CJ stated:

“[15]   As has regularly been pointed out in decisions of this Court, a grant of leave to appeal generally requires the identification of an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable ….

[16]   In Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 …, Cole JA noted the desirability that, where small claims are involved, there be ‘early finality and determination of litigation otherwise the costs which will be involved are likely to swamp the money sum involved in the dispute’. In Gurr v Robinson (Court of Appeal (NSW), 10 February 1986, unrep) …, Kirby P … articulated the following justifications for the requirement of leave to appeal where small sums are involved:

‘One justification is that, where the amount in issue in a case is small, the parties have a special interest in finality. Protracted litigation necessarily involves costs and inconvenience. If the stake is small, the costs may soon become disproportionate to the amount in issue. Secondly, the provision reflects a number of public interests which must be protected by the Court. They include the discouragement of litigation, the principal purpose of which is to recover an order for costs, and the efficient and cost-effective use of court time, which necessarily involves large public costs.’

…

[18]   Consistent with the observations of Kirby P in Gurr, there are ‘good reasons … for the legislature imposing a requirement for leave where less than a certain amount is in issue’: Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2011] NSWCA 126 at [4]. These reasons had the result, in Macfarlan JA’s view (with which Basten JA agreed) that ‘the Court does not ordinarily grant leave where less than $100,000 is in issue unless it considers that the decision at first instance was plainly wrong, that an obvious injustice has otherwise occurred or that a significant issue of principle is involved in the proposed appeal that it is in the public interest for the Court to determine’ (at [5]) ….

[19]   In Ritson v Commissioner of Police, New South Wales Police Force [2019] NSWCA 106 at [39], Gleeson JA, with whom Emmett AJA agreed, observed that:

‘It is well recognised that there is a need for restraint in granting leave to appeal in matters such as the present where the amount in issue is below the threshold of $100,000 …. Injustice involves a balancing exercise and the entitlement of parties to justice is not unconditional and must have regard to a number of factors, including the proportionality of the costs involved to the amount in dispute. In this case, the costs of an appeal would be disproportionate to the relatively modest amount in issue of approximately $43,000.’

[20] The need for and desirability of there being proportionality between the value of the matter or amount in issue, and the costs of litigating that matter or issue is also reflected in s 60 of the Civil Procedure Act 2005 (NSW), which provides that ‘[i]n any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.’ It was in the context of s 60 of the Civil Procedure Act that Basten JA, in Be Financial at [37], observed that:

‘the entitlement of the parties to justice is not unconditional, but is dependent upon the resources of the court made available by the government and the appropriate allocation of resources by the parties, which may depend upon their individual assessments of the importance of the issues in dispute.’

See, also, …Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd [2021] NSWCA 148 at [44], where it was observed that ‘litigation where the costs exceed the amount in issue is not unfamiliar.’ Leeming JA was correct to observe in that case that ‘[s]uch litigation is a poor candidate for a grant of leave’. As noted above, the proceedings before the primary judge ran for some four days, and it is plain that the costs of both parties would have approached, if not exceeded, the total amount in issue.

[21] Section 101(2) of the Supreme Court Act is an important mechanism which equips the Court of Appeal with a measure of control over the range of cases that compete for its attention. Section 101(2)(r) identifies $100,000 as the threshold value of the matter(s) at issue that must be satisfied before a right of appeal to the Court of Appeal may be enjoyed. Where the value of the matter(s) at issue falls below that amount, an applicant for leave must meet the criteria which have been identified in the cases referred to above. In this context, s 101(2) is also concerned with notions of proportionality; the importance of the issue or the gravity of the error of principle relied upon to justify leave will influence the likelihood of leave being granted. This is the reason for the insistence in the authorities that the points sought to be raised on appeal, if leave is granted, must be more than ‘reasonably arguable’.”

9. The amount in issue in the present case is not necessarily defined by reference to the contingent assessment by the trial judge of $15,000. Where a defence of justification has been upheld on the facts, it is difficult to assess, on a counterfactual basis, whether the case is one in which the defendant has unreasonably persisted in maintaining his version of events and that the plaintiff has given a false account, considerations which may warrant an increase in damages above an award which would otherwise be appropriate. Nor is it easy to assess how one should assess damages which are primarily based on comments on social media posts. The trial judge noted that the plaintiff was particularly distressed by such comments but considered that “caution should be exercised when considering whether this feature warrants some kind of special loading for damages for social media publications”: at [226].

10. Although the applicant filed an affidavit on the leave application explaining the effect on her of the publication of the District Court judgment, the basis on which this further material could be admissible on appeal was not evident. It is not necessary to address the material before the trial judge in detail: suffice it to say that it is unlikely that, even had she been entirely successful, the plaintiff would have achieved an award close to $100,000. As the trial judge noted, the respondent only posted the material on his Facebook page, and deleted it two days later. The re-publication on the Warners Bay People and Friends Facebook Group page was only visible for about five hours before the posts and comments were removed by the site administrators: [147(d)].

11. Although the respondent put on no evidence as to the costs involved (and nor did the applicant) the statement in his written submissions that he was awarded his costs on an ordinary basis in an amount a little over $200,000 was not disputed. This is a case in which the costs of the litigation undoubtedly far exceed any possible award of damages. It is a case in which the need for finality plays a significant role.

12. As to the other considerations relevant to an application for leave, although the applicant’s summary of argument submitted that the trial judge had “made a myriad of errors of law”, neither the proposed grounds of appeal nor the submissions identified a single significant error of law. One proposed error of law was an asserted failure to “provide proper reasons for applying the proviso in s 31(6) of the [Defamation Act 2005 (NSW)]”. That provision deals with the circumstances in which an honest opinion may be found to be based on proper material when some of the material on which it is based is not proper material. The possibility of the application of that provision only arose if some of the matters relied on by way of justification were not correct. If the primary findings were correct, the defence based on honest opinion did not arise. Accordingly, the question of the sufficiency of the reasons for that contingent finding could not warrant a grant of leave to appeal. In any event it raised no issue of principle or general importance.

13. A second asserted error of law involved a failure to give a single meaning to the word “assaulted” in one of the three imputations. The word carried its ordinary meaning: there was no error of law, let alone an issue of principle. The attempt in oral submissions to identify issues of principle did not rise above a reiteration of the suggested errors, primarily in the factual findings made by the trial judge.

14. By way of contrast, the primary judge, in a lengthy judgment, articulated the relevant legal principles at each stage of her reasoning. No issue has been taken with respect to any of those statements of principle. The oral argument on the application focussed squarely on the significance of the matter to the applicant and the effects on her life, particularly following publication of the trial judgment. That may be accepted, but the focus of this Court on the question of injustice is necessarily on whether the defence of justification was wrongly upheld.

15. Of the 24 grounds of appeal, six related to the assessment of damages and one (or two), noted above, sought to raise an issue of law. The remaining 17 (or 16) grounds constituted an invitation to this Court to reconsider each of the dispositive factual findings made by the trial judge (and some which were of peripheral relevance) for perceived errors, most of which were barely arguable and many of which turned on findings of credibility. That invitation must be rejected. The need for a retrial, if the appeal were upheld, with no clear prospect of a different outcome, is an unattractive proposition.

16. It follows that leave to appeal should be refused.

17. The Court makes the following orders:

1. To the extent necessary, grant the applicant an extension of time within which to file the summons seeking leave to appeal up to and including 25 November 2024.

2. Dismiss the summons.

3. Order that the applicant pay the respondent’s costs of the summons.

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Decision last updated: 14 March 2025