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Randell v McLachlain

Randell v McLachlain

Case [2022] NSWDC 506 27 October 2022

Defamation

Limitation Periods

Admissibility of Evidence

Specific Performance

Tort Law

No judgment structure available for this case.

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: Randell v McLachlain [2022] NSWDC 506
Hearing dates: 18 October 2022
Date of orders: 27 October 2022
Decision date: 27 October 2022
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Plaintiff’s concerns notice struck out; proceedings dismissed.
(2) The plaintiff is to pay the defendant’s costs of the proceedings, with liberty to apply.

Catchwords:
TORT - defamation - plaintiff serves concerns notices for a publication on Facebook - defendant’s solicitors seek further and better particulars - plaintiff commences proceedings - defendant brings an application for dismissal of the proceedings on the basis that the concerns notice is invalid - whether the particulars of serious harm were specified with sufficient particularity - whether the notice failed to specify a location where the matter could be accessed whether reasonable answers to a request for particulars had been provided - whether, if the concerns notice was valid, the statement of claim should be struck out for insufficient particularisation of serious harm and/or failure to provide particulars of downloading - proceedings struck out and dismissed

Legislation Cited:
Defamation Act 2005 (NSW) ss 3(d), 10A, 12A, 12B
Legal Profession Uniform Law Application Act 2014 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) rr 14.30 and 15.19

Cases Cited:
Associated Newspapers Ltd v Dingle [1962] 2 All E R 737, [1964] AC 371
Banks v Cadwalladr [2022] EWHC 1417 (QB)
Bazzi v Dutton [2022] FCFCA 84
Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575
Economou v De Freitas [2016] EWHC 1218 (QB)
Inserve Australia Ltd & Ors v Kinane [2018] QCA 116
Jenman v McIntyre [2013] NSWSC 1100
Johnson v McArdle [2020] EWHC 644 (QB)
Lachaux v Independent Print Limited [2016] QB 402
Lachaux v Independent Print Ltd; Lachaux v Evening Standard Ltd [2019] 4 All ER 485
Massarani v Kriz [2022] FCA 80
McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86
McDonald v Dods [2017] VSCA 129
Napag Trading Ltd v Gedi Gruppo Editoriale S.p.A [2020] EWHC 3034 (QB)
Newman v Whittington [2022] NSWSC 249
Prospect Resources Ltd v Molyneux [2015] NSWCA 171
Rader v Haines [2022] NSWCA 198
Ruta v Department for Work and Pensions [2022] EWHC 1535 (QB)
Scott v Jones & Anor [2002] NSWSC 210
Sims v Jooste (No 2) [2016] WASCA 83
Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457
Stocker v Stocker [2019] UKSC 17
The Baptist Union of New South Wales v Georges River Council [2017] NSWSC 347.
Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291
Wright v McCormack [2021] EWHC 2671 (QB)
Zimmerman v Perkiss [2022] NSWDC 448

Texts Cited:
Council of Attorneys-General Review of the Model Defamation Provisions - Background Paper, December 2019

Category: Procedural rulings
Parties: Plaintiff: Mandi Randell
Defendant: Karina McLachlain
Representation:
Counsel:
Plaintiff: Mr N Olson
Defendant: Mr T Smartt
Solicitors:
Plaintiff: Centennial Lawyers

File Number(s): 2022/230949

Judgment

The plaintiff brings proceedings for defamation

The plaintiff has commenced proceedings for…

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 Randell v McLachlain

Details

AGLC: Randell v McLachlain [2022] NSWDC 506
Case: [2022] NSWDC 506
Decision Date: 27 October 2022

CaseChat Overview and Summary

Randell brought defamation proceedings against McLachlain after McLachlain made a publication on Facebook that Randell claimed was defamatory. The proceedings commenced after Randell served a concerns notice in relation to the publication. McLachlain applied for the proceedings to be dismissed on the basis that the concerns notice was invalid. McLachlain submitted that the concerns notice did not specify the particulars of serious harm with sufficient particularity and did not specify a location where the matter could be accessed. Randell argued that the concerns notice was valid and that the statement of claim sufficiently particularised serious harm and failure to provide particulars of downloading. The court was required to determine whether the concerns notice was valid and, if so, whether the statement of claim should be struck out for insufficient particularisation of serious harm and/or failure to provide particulars of downloading.

The court held that the concerns notice did not specify the particulars of serious harm with sufficient particularity. The court found that the concerns notice did not provide a detailed description of the harm alleged to have been caused by the publication. The court also held that the concerns notice did not specify a location where the matter could be accessed. The court found that the concerns notice did not provide a clear and specific indication of where the publication could be found. The court held that the concerns notice was invalid and that the proceedings should be dismissed. The court further held that, even if the concerns notice had been valid, the statement of claim was insufficiently particularised and should be struck out.

The proceedings were struck out and dismissed. The court ordered that Randell's concerns notice be struck out and that the proceedings be dismissed. The court also ordered that Randell pay McLachlain's costs of the proceedings, with liberty to apply.

Orders

Orders of the court

(1) Plaintiff’s concerns notice struck out; proceedings dismissed.

(2) The plaintiff is to pay the defendant’s costs of the proceedings, with liberty to apply.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Randell v McLachlain [2022] NSWDC 506

Most Recent Citation

High Quality Jewellers Pty Ltd (ACN 119 428 394) v Ramaihi (Ruling) [2022] VCC 1924

Cases citing this decision · 13 of 13 shown

Piggott v Van Der Veen
[2025] NSWDC 391 Para 20

…Limited & Anor (Ruling) [2022] VCC 2213, [7], [107]; M1 v R1 [2022] NSWDC 409; Teh v Woodworth [2022] NSWDC 411 (‘ Teh ’); Randell v McLachlan [2022] NSWDC 506 and Khan v Hassan (Ruling) [2023] VCC 852. Reiter v News Corp Australia Pty Ltd & Anor was referred to with approval in Durand v Lawrence [2025] QDC 129 at…
Durrand v Lawrence
[2025] QDC 129 Para 4

…Mr Durrand’s reliance on the approach taken by Porter KC DCJ in Staged Plus cannot assist him. [6] See for example Randell v McLachlain [2022] NSWDC 506 at [15] and [27]; Hoser v Herald and Weekly Times Pty Ltd & Anor [2022] VCC 2213 at [78]…
Reiter v News Corp Australia Pty Ltd
[2025] VSC 54 Para 1

…CC 2213, [7], [107] (‘ Hoser ’); M1 v R1 [2022] NSWDC 409 ( ‘M1 v R1 ’); Teh v Woodworth [2022] NSWDC 411 (‘ Teh ’); Randell v McLachlain [2022] NSWDC 506 (‘ Randell ’); Khan v Hassan (Ruling) [2023] VCC 852.…
TRASENTE, D.J. Developments Pty Limited v McCreight
[2024] SADC 149 Para 7

…d not give a concerns notice, the applicant was not entitled to bring a claim for defamation.[19] [12] [2024] QSC 80, [43]. [13] Randell v McLachlain [2022] NSWDC 506, [15]; Teh v Woodworth & Anor [2022] NSWDC 411, [26]-[27]; Hoser v Herald and Weekly Times Pty Ltd [2022] VCC 2213, [83], [109]-[110]; Georges v Geor…
Russell v S3@Raw Pty Ltd (No 3)
[2024] FCA 991 Para 2

…failure to provide particulars as to serious harm renders the concerns notice invalid; Teh v Woodworth [2022] NSWDC 411 at [30]; Randell v Mclachlain [2022] NSWDC 506 at [13] - [17]. In Randell , Gibson DCJ found that the plaintiff’s concerns notice did not sufficiently particularise serious harm. At [25], her Hono…
Staged Plus Pty Ltd v Yummi Fruit Ice-Creamery Pty Ltd
[2024] QDC 88 Para 6

…k out and the plaintiff would have to start again, as the language of the statute does not favour nunc pro tunc amendment.”: Randell v McLachlain [2022] NSWDC 506 [15] 70She goes on to note that the plaintiff must particularise the facts from which the requisite causation can be inferred. The English decisions emph…
Peros v Nationwide News Pty Ltd
[2024] QSC 80 Para 3

…See, for example, Randell v McLachlain [2022] NSWDC 506 at [15], Teh v Woodworth & Anor [2022] NSWDC 411 at [26]-[27]; Hoser v Herald and Weekly Times Pty Ltd (Ruling) [2022] VCC 2213 at [83], [109]-[110]. On one view, commencing proceedings in breach of the provision could amount to an abuse of process: Hoser at […
Poland v Fairfax Digital Australia & New Zealand Pty Ltd
[2023] WASC 383 Para 5

…cial media do not scroll back to last month's, or even last week's, posts, unless they are searching for a particular post. [24] Randell v McLachlain [2022] NSWDC 506. [25] Randell v McLachlain [57].…
Supaphien v Chaiyabarn
[2023] ACTSC 240

…n v Cosmopolitan Homes [2008] NSWCA 246 Rader v Haines [2022] NSWCA 198 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 Randell v McLachlain [2022] NSWDC 506 Scott v Bodley (No 2) [2022] NSWDC 651 Sims v Jooste (No 2) [2016] WASCA 83 Stocker v Stocker [2019] UKSC 17; [2020] AC 593 Stoltenberg v Bolton; Lod…
Valk v Kalpikdes (Ruling)
[2023] VCC 368

…] VSCA 129; Massarani v Kriz [2022] FCA 80; Newman v Whittington [2022] NSWSC 249; Sims v Jooste (No 2) [2016] WASCA 83; Randell v McLachlain [2022] NSWDC 506; Goodrich v Kilmore Racing Club Inc [2023] VSCA 37 Ruling: Plaintiff’s application dismissed. Plaintiff ordered to pay the defendant’s costs of the applicati…
Hoser v Herald and Weekly Times Pty Limited & Anor (Ruling)
[2022] VCC 2213

…Cases Cited: Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; Agar v Hyde (2000) 201 CLR 552; Randell v McLachlain [2022] NSWDC 506; Rader v Haines [2021] NSWDC 610; M1 v R1 [2022] NSWDC 409; Georges v Georges; Georges v Georges [2022] NSWDC 558; Roman Catholic Trusts Corporation for th…
Georges v Georges
[2022] NSWDC 558 Para 2

…ltiple decisions, that they apply to s 10A of the Act: Zimmerman v Perkiss [2022] NSWDC 448 (“ Zimmerman ”) at [6] & [145]; Randell v McLachlin [2022] NSWDC 506 (“ Randell ”) at [14]. So much is common ground in this application. [2] principally Lachaux v Independent Print Ltd [2020] AC 612…
High Quality Jewellers Pty Ltd (ACN 119 428 394) v Ramaihi (Ruling)
[2022] VCC 1924

…famation Act 2005 (Vic), s10A(4)(a) Cases Cited: Wilks v Qu (Ruling 2) [2022] VCC 1503; Newman v Whittington [2022] NSWSC 249; Randell v McLachlain [2022] NSWDC 506; Martin v Najem [2022] NSWDC 479; Scott v Bodley [2022] NSWDC 459 Ruling: Application to adjourn dismissed.…

View all 13 citing cases →

Cases cited in this decision · 24 of 24 shown

Zimmerman v Perkiss
[2022] NSWDC 448 Para 14

…t a term clearly demonstrated by particularisation of a relatively general and indeed informal kind, such as that provided in Zimmerman v Perkiss [2022] NSWDC 448, where the plaintiff’s concerns notice, although not referring to serious harm, described a series of harms, such as an adverse reaction from her employe…
Rader v Haines
[2022] NSWCA 198 Para 14

…sh law ( Newman v Whittington [2022] NSWSC 249 at [30] - [46]), the analysis of Brereton JA of issues of serious harm, as expressed in Rader v Haines [2022] NSWCA 198 at [28]-[29] and indeed throughout the judgment, may be confidently accepted, as his Honour clearly had issues relevant to the Australian legislation…
Newman v Whittington
[2022] NSWSC 249 Para 1

…articulars of downloading. This has serious consequences, in the context of serious harm, for the reasons set out by Sackar J in Newman v Whittington [2022] NSWSC 249 at [17] - [20] where the absence of such particulars, in circumstances where it was apparent that the plaintiff could not identify any such persons,…
Massarani v Kriz
[2022] FCA 80 Para 45

…ed on the Internet, the tort of defamation is incomplete without particulars of downloading by a person other than the plaintiff. In Massarani v Kriz [2022] FCA 80 at [53] Katzmann J said:…
The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu
[2022] NSWCA 1 Para 55

…ecific groups of persons in two decisions where no publication could be proved. The first of these was Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1, where the site was a WeChat members’ group in Chinese. The mere fact that others came into and went out of the ongoing discussions did not amount to…
Stoltenberg v Bolton
[2020] NSWCA 45 Para 5

…hich last a day). Others may remain online but are difficult to access because of the sheer volume of posts: Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45 at [56]. This means that the extent of publication is difficult to determine where there are no particulars of downloading. Extent of publication is the…
Stocker v Stocker
[2019] UKSC 17 Para 59

…page would be certain to click on and read, as opposed to scrolling through the entries in the manner described by Lord Kerr JSC in Stocker v Stocker [2019] UKSC 17.…
Inserve Australia Ltd v Kinane
[2018] QCA 116 Para 51

…In Inserve Australia Ltd & Ors v Kinane [2018] QCA 116, an application for the respondent to be dealt with for contempt for publication on Facebook was brought. Fraser, Gotterson and Philippides JJA described the Sims v Jooste (No 2) factors as being that the respondent’s Facebook page had a large number of “frie…
McDonald v Dods
[2017] VSCA 129 Para 62

…However, those particulars would also need to include the dates of downloading, to avoid the difficulties which occurred in McDonald v Dods [2017] VSCA 129. This is of particular relevance in the present case because of the long period of delay between publication and commencement of proceedings.…
The Baptist Union of New South Wales v Georges River Council
[2017] NSWSC 347 Para 16

…and in relation to the construing of notices generally, as set out in decisions such as The Baptist Union of New South Wales v Georges River Council [2017] NSWSC 347. I also note the general principles for the interpretation of contractual notices as set out in Prospect Resources Ltd v Molyneux [2015] NSWCA 171 at…
Scali v Scali
[2015] SADC 172

…e allegedly defamatory material was posted and the period of time over which the material was posted on the internet. For example, in Scali v Scali [2015] SADC 172 screenshots of the defendant's YouTube posts, which appeared to demonstrate the number of times the allegedly defamatory videos had been viewed as at t…
Prospect Resources Ltd v Molyneux
[2015] NSWCA 171 Para 16

…il [2017] NSWSC 347. I also note the general principles for the interpretation of contractual notices as set out in Prospect Resources Ltd v Molyneux [2015] NSWCA 171 at [70], namely how a reasonable recipient would have read the concerns notice.…
MacDonald v Australian Broadcasting Corporation
[2014] NSWSC 206

…he same approach has consistently been taken in Australia. So, in Toben v Jones [2012] FCA 1193 and MacDonald v Australian Broadcasting Corporation [2014] NSWSC 206 it was held that a plaintiff claiming to have been defamed by material posted on the internet must plead and prove facts which established that the mat…
Jenman v McIntyre
[2013] NSWSC 1100 Para 7

…publication, particulars of downloading are required: Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [25] - [28] and [44]; Jenman v McIntyre [2013] NSWSC 1100 at [3]; Sims v Jooste (No 2) [2016] WASCA 83. The following information about the extent of publication is set out:…
Toben v Jones
[2012] FCA 1193

…on an internet site. [19] With one apparently anomalous exception, the same approach has consistently been taken in Australia. So, in Toben v Jones [2012] FCA 1193 and MacDonald v Australian Broadcasting Corporation [2014] NSWSC 206 it was held that a plaintiff claiming to have been defamed by material posted on t…
Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd
[2004] QSC 457 Para 22

…to plead the material facts which are said to give rise to the causal connection ( Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457 at [15] per Chesterman J). Instead, Mr Smartt submits, the plaintiff has particularised “a hodgepodge of generalities” of the “cut and paste” variety…
Dow Jones & Co Inc v Gutnick
[2002] HCA 56 Para 7

…As this is an online publication, particulars of downloading are required: Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [25] - [28] and [44]; Jenman v McIntyre [2013] NSWSC 1100 at [3]; Sims v Jooste (No 2) [2016] WASCA 83. The following information about the extent of publication is set out:…
Scott v Jones & Anor
[2002] NSWSC 210 Para 32

…ill depend on the facts of the case. For example, “proper” particulars of identification were ordered by Levine J in Scott v Jones & Anor [2002] NSWSC 210 where the unnamed plaintiff was relying on “notoriety”.…
Dow Jones & Company Inc v Gutnick
[2002] HCA 5610 Para 7

…As this is an online publication, particulars of downloading are required: Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [25] - [28] and [44]; Jenman v McIntyre [2013] NSWSC 1100 at [3]; Sims v Jooste (No 2) [2016] WASCA 83. The following information about the extent of publication is set out:…
[1964] AC 234
[1964] AC 234

…ciated Newspapers Ltd [1963] 2 All ER 151, sub nom Rubber Improvement Ltd v Daily Telegraph Ltd, Rubber Improvement Ltd v Associated Newspapers Ltd [1964] AC 234(Lord Reid). The rule is nothing to do with the threshold of seriousness, and nothing in the 2013 Act can be taken as implicitly abolishing it or limiti…
[1964] AC 371
[1964] AC 371 Para 1

…a defendant cannot be held to account for damage arising from another unrelated publication: Associated Newspapers Ltd v Dingle [1962] 2 All E R 737, [1964] AC 371 (“ Dingle ”). For example, the defendant cannot be sued for the serious harm flowing from the Sunday Telegraph article unless there is a pleading tha…
[1965] 2 QB 86
[1965] 2 QB 86 Para 5

…an important factor. Brereton JA noted, in Rader v Haines at [39], a decision by the plaintiff in McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 96-97 to “defer commencing all the libel actions for eleven months is some indication that he did not consider the injury to his reputation to be a highly…
[2001] 1 WLR 579
[2001] 1 WLR 579

…he court should not “consider the issue of serious harm in blinkers”. Directly relevant background context (see Burstein v Times Newspapers [2001] 1 WLR 579, May LJ, [47]) may be relevant to the assessment of whether the serious harm test is met: Umeyor v Innocent Ibe , Warby J, [77]–[78].”…
[2016] QB 402
[2016] QB 402 Para 80

…Attacks on Dingle in the United Kingdom have not been successful. In Lachaux v Independent Print Limited [2016] QB 402, Warby J stated at [83]:…

Legislation cited in this decision · 9

Defamation Act 2005 (TAS)
10A, 12A, 12B, 3(d) 5 mentions (from Para 8)
Uniform Civil Procedure Rules 2005 (NSW)
14.30, 15.19, 7.36 3 mentions (from Para 5)
Civil Liability (Contribution) Act 1978 c.47
1 mention
Defamation Act 1952 c.66
1 mention
Defamation Act 2013
1 mention (from Para 13)
Firebelt Pty Ltd v Brambles Australia Ltd
1 mention (from Para 13)
Legal Profession Uniform Law Application Act 2014 (Vic)
1 mention (from Para 5)
Risk v Northern Territory
1 mention
Roach v The Queen
1 mention

Medium Neutral Citation:	Randell v McLachlain [2022] NSWDC 506
Hearing dates:	18 October 2022
Date of orders:	27 October 2022
Decision date:	27 October 2022
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff’s concerns notice struck out; proceedings dismissed. (2) The plaintiff is to pay the defendant’s costs of the proceedings, with liberty to apply.
Catchwords:	TORT - defamation - plaintiff serves concerns notices for a publication on Facebook - defendant’s solicitors seek further and better particulars - plaintiff commences proceedings - defendant brings an application for dismissal of the proceedings on the basis that the concerns notice is invalid - whether the particulars of serious harm were specified with sufficient particularity - whether the notice failed to specify a location where the matter could be accessed whether reasonable answers to a request for particulars had been provided - whether, if the concerns notice was valid, the statement of claim should be struck out for insufficient particularisation of serious harm and/or failure to provide particulars of downloading - proceedings struck out and dismissed
Legislation Cited:	Defamation Act 2005 (NSW) ss 3(d), 10A, 12A, 12B Legal Profession Uniform Law Application Act 2014 (NSW) Uniform Civil Procedure Rules 2005 (NSW) rr 14.30 and 15.19
Cases Cited:	Associated Newspapers Ltd v Dingle [1962] 2 All E R 737, [1964] AC 371 Banks v Cadwalladr [2022] EWHC 1417 (QB) Bazzi v Dutton [2022] FCFCA 84 Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 Economou v De Freitas [2016] EWHC 1218 (QB) Inserve Australia Ltd & Ors v Kinane [2018] QCA 116 Jenman v McIntyre [2013] NSWSC 1100 Johnson v McArdle [2020] EWHC 644 (QB) Lachaux v Independent Print Limited [2016] QB 402 Lachaux v Independent Print Ltd; Lachaux v Evening Standard Ltd [2019] 4 All ER 485 Massarani v Kriz [2022] FCA 80 McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 McDonald v Dods [2017] VSCA 129 Napag Trading Ltd v Gedi Gruppo Editoriale S.p.A [2020] EWHC 3034 (QB) Newman v Whittington [2022] NSWSC 249 Prospect Resources Ltd v Molyneux [2015] NSWCA 171 Rader v Haines [2022] NSWCA 198 Ruta v Department for Work and Pensions [2022] EWHC 1535 (QB) Scott v Jones & Anor [2002] NSWSC 210 Sims v Jooste (No 2) [2016] WASCA 83 Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457 Stocker v Stocker [2019] UKSC 17 The Baptist Union of New South Wales v Georges River Council [2017] NSWSC 347. Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 Wright v McCormack [2021] EWHC 2671 (QB) Zimmerman v Perkiss [2022] NSWDC 448
Texts Cited:	Council of Attorneys-General Review of the Model Defamation Provisions - Background Paper, December 2019
Category:	Procedural rulings
Parties:	Plaintiff: Mandi Randell Defendant: Karina McLachlain
Representation:	Counsel: Plaintiff: Mr N Olson Defendant: Mr T Smartt Solicitors: Plaintiff: Centennial Lawyers
File Number(s):	2022/230949