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…