Stoltenberg v Bolton

The appeal concerned a defamation action brought by Mr Stoltenberg against Mr Bolton concerning posts made on a public Facebook page. The primary issues before the Court of Appeal were whether the primary judge erred in finding that certain defamatory imputations were conveyed by the fifth matter complained of, and whether the primary judge erred in rejecting Mr Bolton's defences of common law and statutory qualified privilege. The court also considered whether evidence of publication beyond the particularised case was admissible, and whether the respondent's wife's actions in downloading posts constituted publication on behalf of the respondent.

The Court of Appeal was required to determine whether the primary judge correctly identified the imputations conveyed by the defamatory material and whether the defences of qualified privilege were properly rejected. Specifically, the court examined whether the publication of the posts on a public Facebook page, which was accessed by individuals outside the local area, constituted excessive publication for the purposes of common law qualified privilege. Regarding statutory qualified privilege under section 30 of the Defamation Act 2005 (NSW), the court considered whether the publication was unreasonable, the significance of the presumption of honesty, and the failure to contact the plaintiff prior to publication. The court also addressed the admissibility of evidence concerning the extent of publication and the potential application of the *Jones v Dunkel* inference.

The Court of Appeal dismissed Mr Stoltenberg's appeal, finding no error in the primary judge's findings regarding the imputations conveyed. The court upheld the rejection of the common law qualified privilege defence, concluding that the publication was excessive given the public nature of the Facebook page and the dissemination of the posts beyond the relevant community. Similarly, the statutory qualified privilege defence was also rejected, with the court finding that the publication was unreasonable in the circumstances, particularly in light of the failure to contact the plaintiff and the broad dissemination. The court also found that the evidence of publication was properly admitted and that the respondent's wife's actions did not establish publication by the respondent.

Consequently, Mr Stoltenberg's appeal was dismissed with costs. The summons seeking leave to appeal and the cross-summons for leave to cross-appeal were also dismissed.