Voller v Fairfax Media Publications Pty Ltd; Voller v Nationwide News Pty Ltd; Voller v Australian News Channel Pty Ltd

[2018] NSWSC 608

Supreme Court

New South Wales

Medium Neutral Citation:

Voller v Fairfax Media Publications Pty Ltd; Voller v Nationwide News Pty Ltd; Voller v Australian News Channel Pty Ltd [2018] NSWSC 608

Hearing dates:

20 April 2018

Decision date:

20 April 2018

Jurisdiction:

Common Law

Before:

McCallum J

Decision:

Defendants ordered to give discovery of the categories identified in the plaintiff’s letter dated 23 March 2018 within four weeks; defendants ordered to pay the plaintiff's costs of today's argument.

Catchwords:

DEFAMATION – publication – claim based on allegedly defamatory comments by reader posted on newspaper’s Facebook page in response to newspaper article – newspaper disputing liability for publication of reader’s comment – whether plaintiff entitled to discovery of documents relevant to that issue

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 21.2
Civil Procedure Act 2005 (NSW), s 56

Cases Cited:

Bleyer v Google Inc [2014] NSWSC 897
Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd; Plymouth Brethryn (Exclusive Brethryn) Christian Church v Fairfax Media Publications Pty Ltd [2018] NSWCA 95
Plymouth Brethryn (Exclusive Brethryn) Christian Church v Fairfax Media Publications Pty Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd [2017] NSWSC 214

Category:

Procedural and other rulings

Parties:

2017/219538
Dylan Voller (plaintiff)
Fairfax Media Publications Pty Ltd (defendant)

 

2017/219519
Dylan Voller (plaintiff)
Fairfax Media Publications Pty Ltd (defendant)

    2017/219556
Dylan Voller (plaintiff)
Australian News Channel Pty Ltd (defendant)

Representation:

Counsel:
T Molomby SC (plaintiff in each proceeding)
M Lewis (defendant in each proceeding)

  Solicitors:
O’Brien Solicitors Pty Ltd (plaintiff in each proceeding)
Banki Haddock Fiora (defendant in each proceeding)

File Number(s):

2017/2195382017/2195192017/219556

Publication restriction:

None

Judgment EX TEMPORE - REVISED

1. HER HONOUR: Before the Court are three sets of proceedings in which Mr Dylan Voller sues for defamation in respect of comments posted on the Facebook page of each respective publisher in response to articles published by those publishers. It is not suggested that the original articles were defamatory of Mr Voller. It is only the comments posted in response to the articles that are sued on. In those circumstances, the proceedings raised an interesting and difficult question as to the newspapers' liability for readers’ comments.

2. The parties, by agreement, have taken steps towards having the issue of publication determined in each proceeding as a separate question. In November last year, in aid of the determination of that question, the plaintiff sought discovery of certain documents. However, that request was overtaken by discussions between the parties as a result of which the plaintiff apprehended that documents of the kind sought would be included in the defendants' evidence on the separate question or that the issue to which the documents sought were directed would otherwise be answered in the affidavits. The plaintiff contends that, contrary to that expectation, the affidavits served do not provide the information originally sought. He contends that he is now left in a position where the documents initially sought (with some variation) are relevant to the issues to be determined on the separate question. The plaintiff now renews his application for discovery of that material before the preliminary question is determined.

3. The defendants resist providing any discovery of that kind.

4. Rule 21.2 of the Uniform Civil Procedure Rules 2005 (NSW) provides that an order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue. In determining whether to order a party to give discovery of categories of documents, the Court must of course apply that rule having regard to the overriding purpose stated in s 56 of the Civil Procedure Act (2005) (NSW).

5. The parties have provided detailed written submissions from which it is clear there is a dispute as to the legal principles upon which the separate question should be determined. Importantly, for present purposes, it may be noted that the plaintiff will seek to make a case that the defendants are liable for publication of the comments if it is established that they knew or should have known that there was a significant risk of defamatory observations about the plaintiff being placed by third parties on the relevant Facebook pages in the guise of comments on the article.

6. The defendants contend that that represents a misapprehension of the law but I am not determining that question today. It is enough to say that, on the strength of the plaintiff's submissions, I am satisfied that there is at least a respectable argument for principle contended for by the plaintiff. It is equally clear that there is a contest as to the relevant principles and indeed some fluidity in those principles, which are emerging in tandem with emerging technology.

7. In any event, I am satisfied that it is appropriate to order the defendants to give discovery of the documents in the categories identified on behalf of the plaintiff.

8. Mr Lewis, who appears for all three defendants on the present application, submitted that the application is speculative, citing my decisions in Bleyer v Google Inc [2014] NSWSC 897 and Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Pty Ltd [2017] NSWSC 214. [I should note that, since giving the present judgment ex tempore, my decision in Plymouth Brethren has been overturned by the Court of Appeal. The following paragraphs have been revised to reflect that development.]

9. Bleyer was a case in which, on the pleaded case, the claim was confined to an extremely limited scope of publication. In response to an application to have the proceedings dismissed on the grounds of disproportionality, the plaintiff submitted that the determination of that issue should be deferred until after the process of discovery of documents. I considered that the application should be determined by reference to the existing pleadings and expressed the view (at [28]) that the plaintiff was “merely speculating as to the availability of a better case which might be ascertained through the use of interlocutory processes.”

10. Plymouth Brethren was a case in which the plaintiff opposed an application for separate determination of the issue of publication on the grounds (among others) that the particulars of identification might be “supplemented, expanded, changed or withdrawn” after the parties had had the benefit of interlocutory procedures such as discovery, interrogatories and subpoenas. I considered that it was appropriate to determine the matter on the existing pleadings because the separate question stood to be determined by reference to the content of the matter complained of.

11. My conclusion in that case (that the matters complained of were not reasonably capable of identifying the plaintiff) was overturned but not on the question whether it was appropriate to order the separate question: Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd; Plymouth Brethryn (Exclusive Brethryn) Christian Church v Fairfax Media Publications Pty Ltd [2018] NSWCA 95 at [131]-[132] per Basten JA; Beazley P and McColl JA agreeing on that issue at [1] and [3] respectively (Basten JA was otherwise in dissent and would have dismissed the appeal).

12. Identification is not in issue in the present case. The element of publication raises a different question, the separate determination of which is not opposed (as it was in Plymouth Brethren). In the present case, Mr Molomby SC has already given detailed particulars as to the matters on the strength of which the defendants' liability for publication is asserted to arise. I do not think it is speculative to think that documents of the kind sought in the letter dated 23 March 2018 might inform the determination of those contentions. That is not to say that they are right but only that they are potentially relevant to an issue in the proceedings and an entitlement to discovery has been established.

13. For those reasons, with the variations proposed during argument, I order the defendants to give discovery of the categories identified in the plaintiff’s letter dated 23 March 2018 within four weeks.

14. I stand the matter over to 9 June 2018 with liberty to apply.

15. I order the defendants to pay the plaintiff's costs of today's argument.

**********

Decision last updated: 09 May 2018