Prouten v Buxton

[2024] NSWCA 262

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Prouten v Buxton [2024] NSWCA 262

Hearing dates:

28 October 2024

Date of orders:

28 October 2024

Decision date:

28 October 2024

Before:

Basten AJA

Decision:

(1)    The notice of appeal filed on 4 September 2024 be struck out.

(2)    The appellant to pay the respondent's costs of the motion.

Catchwords:

CIVIL PROCEDURE – appeal – leave to appeal – notice of appeal filed – satisfaction of threshold to appeal without leave – claim in defamation dismissed at trial – contingent assessment of damages well below threshold – pro forma certificate by solicitor

Legislation Cited:

District Court Act 1973 (NSW), s 127

Uniform Civil Procedure Rules 2005 (NSW), r 51.22

Category:

Procedural rulings

Parties:

Sandra Prouten (Appellant)
Anthony Buxton (Respondent)

Representation:

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

Solicitors:
Matrix Legal (Appellant)
Moray & Agnew Lawyers (Respondent)

File Number(s):

2024/235644

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court New South Wales

Jurisdiction:

Civil

Citation:

[2024] NSWDC 182

Date of Decision:

4 June 2024

Before:

Gibson DCJ

File Number(s):

2020/192782

JUDGMENT

1. BASTEN AJA: In this matter the respondent, being the applicant on a notice of motion, sought to have a notice of appeal struck out on two bases. The first was that it was filed late. That matter may now be put to one side as an affidavit explaining the delay has been read and has been accepted as sufficient by the respondent on the appeal. If necessary, the Court will make an order dealing with that matter. Secondly, the respondent seeks to challenge the competency of the appeal on the basis that it does not involve a matter where the amount in dispute exceeds $100,000 as required by the District Court Act 1973 (NSW), s 127(2)(c).

2. The question is whether the plaintiff in the District Court who brought proceedings in defamation which proceedings were unsuccessful, would have received, in the event that the claim were upheld, an amount by way of damages exceeding the threshold. Gibson DCJ, who presided at the trial, assessed the likely damages on a contingent basis (in the event that she was wrong in dismissing the proceedings) in an amount of $15,000. ^[1] There has been significant discussion as to whether or not that assessment was correct. It is for the appellant to demonstrate that the amount was not only greater than $15,000, but in the order of seven times that figure in order to justify filing a notice of appeal as of right. The notice of appeal contained a pro forma certificate under Uniform Civil Procedure Rules 2005 (NSW), r 51.22.

   1. Prouten v Buxton [2024] NSWDC 182 (4 June 2024) at [239].

3. The issues which have to be considered in relation to that assessment are not the subject of evidence before this Court, and the parties have, to a large extent, relied upon the findings made by the trial judge. The claim arises from a post on Facebook which appeared with a photograph showing the plaintiff (not named) carrying a stick on a shared walking path, with the heading “The Warners Bay vigilante.” The account of the plaintiff's activities was set out by the trial judge in detail in relation to a challenge, to put it neutrally, that the plaintiff appeared to be making to persons riding bicycles and not keeping a sufficient distance from her.

4. The stick which she carried was to discourage persons from riding close to her on their bicycles. There were a number of imputations which were set out by the trial judge to the effect that the plaintiff is a vigilante and undertakes law enforcement in her community without authority, that she had deliberately assaulted a cyclist because she does not like cyclists, and that she was a serious threat to the local community by her conduct in striking passing cyclists with a stick. The respondent points out that the implications are to be read in context. That is true.

5. The context included the local nature of the issue, the fact that the events had taken place at a time whilst health orders were in operation requiring people to keep their distance, but at a time when people were entitled to get exercise, and therefore there was no doubt much local interest in people using the shared bicycle and walking track in the Warners Bay area. The main argument in favour of there being a significant sum in issue is that there were a large number of offensive posts on the Warners Bay Facebook Group page following the publication of the article.

6. Many of the posts were in a form which required the administrator to have them taken down, and they were removed within five hours of being posted. The details which appear from the judgment need not be repeated here. It is sufficient to say that there is no evidence from like cases or otherwise to justify the conclusion that the amount in issue in this case does exceed $100,000. Accordingly, although I would have granted leave to extend time for the service of the notice of appeal, the respondent's case that the appeal is not competent without leave has been made out.

7. This is a situation which arises regularly in this Court, and it is almost commonplace, if not a regular occurrence, for the appellant, when faced with the suggestion that the matter might require leave, to put on a summons seeking leave to appeal by way of a contingent defence of his or her situation. In this case, it seems likely that there will be an application for leave to appeal if this notice of appeal is struck out. What has thereby been achieved would therefore appear to be of very limited assistance to the respondent.

8. However, the respondent makes the point that although we have had half a day in Court dealing with this matter on a preliminary basis, the benefit of having the matter proceed by way of a leave application is that it will, in all likelihood, be a matter which would be set down for a separate hearing of the leave application before two judges, with the usual limited time for the hearing. And therefore, there might be a significant saving in costs for the respondent if leave were to be refused, as he submits is quite likely.

9. I do not seek to foreshadow any attitude that two judges of the Court might take in relation to a leave application, nor do I seek to consider whether in fact there would be a separate leave hearing in this case. That is a possibility, but it is not one which needs to be considered by me, nor any decision made about it. It is sufficient for present purposes, that I uphold the respondent's motion in relation to incompetency based on the failure to obtain leave to appeal.

10. Accordingly, the notice of appeal filed on 4 September 2024 will be struck out. The respondent to the motion is to pay the applicant's costs. That is, Ms Prouten is to pay Mr Buxton’s costs of the motion to have the notice of appeal struck out.

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Endnote

Decision last updated: 31 October 2024