JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 AUGUST 2015
DATE OF JUDGMENT:	30 OCTOBER 2015
CASE MAY BE CITED AS:	VON MARBURG v ALDRED & ANOR
MEDIUM NEUTRAL CITATION:	[2015] VSC 467

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DEFAMATION – Application for leave to amend pleading – Publication – Internet – Facebook posts and comments – Whether publication properly pleaded – Pleading of primary and subordinate publication against persons involved in administration or supervision of a Facebook page – Applicable principles discussed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Houghton QC with Mr J Hooper	Russell Kennedy
For the First Defendant	Mr J Castelan with Ms E Tadros	Belbridge Hague
For the Second Defendant	Dr M Collins QC with Ms N Hickey	Minter Ellison

HIS HONOUR:

Introduction

In this proceeding the plaintiff, who is a specialist medical practitioner, alleges that he was defamed by two publications that appeared on a Facebook page of an association called ‘Rights to Privacy Albury’. The plaintiff alleges that the first defendant was an administrator of the Facebook page and published each publication. The second defendant, also a specialist medical practitioner, is alleged to be a leader and a public spokesperson of Rights to Privacy Albury, and also a publisher of each publication.

The plaintiff does not currently have a statement of claim. His last pleading was struck out by my order on 19 June 2015. That was his fifth attempt at pleading his claims. The presently proposed pleading is the plaintiff’s second further attempt since that order.

The defendants, particularly the second defendant, oppose the plaintiff’s application for leave to file an amended statement of claim in the form of a document entitled ‘Second Statement of Claim’ dated 6 August 2015. The second defendant contends that there is no tenable claim pleaded that he published either publication and that the application for leave to amend is futile. The first defendant has adopted a ‘wait and see’ approach and did not put any substantive submission to the court, other than to adopt the second defendant’s submissions to the extent, which was not identified, that those submissions assisted him.

The plaintiff puts his case that the second defendant published the defamatory material in two ways. First, he contended that the second defendant was a primary publisher in the sense that he could, and did, direct and instruct the first defendant, as administrator of the Facebook page, about what ought to be published or deleted on it. Alternatively, the plaintiff alleged that the second defendant was a subordinate, or secondary, publisher in that, knowing of the substance and content of the publications and having had the opportunity to remove those publications from the Facebook page, he approved, ratified or adopted the publications.

Relevant Publications

The first publication (post) appeared on…

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 Von Marburg v Aldred

Details

AGLC: Von Marburg v Aldred [2015] VSC 467
Case: [2015] VSC 467
Decision Date: 30 OCTOBER 2015

CaseChat Overview and Summary

In Von Marburg v Aldred, the parties involved were the plaintiff, Von Marburg, and the defendant, Aldred. The nature of the dispute was defamation, with the plaintiff seeking damages for defamatory statements made by the defendant on Facebook. The matter was heard in the Supreme Court of New South Wales. The plaintiff contended that the defendant had published defamatory content about them on Facebook, including posts and comments that were accessible to a wide audience.

The legal issues before the court included whether the plaintiff had properly pleaded the publication of defamatory material and whether the pleading of primary and subordinate publication against individuals responsible for the administration or supervision of the Facebook page was appropriate. The court had to determine the applicable principles governing such claims, particularly in the context of internet-based publications. The court examined the specifics of the pleadings to assess whether they were sufficient to establish the elements of defamation and to identify the relevant defendants.

The court found that the plaintiff had not adequately pleaded the publication of defamatory material on Facebook. The plaintiff's claims against the administrators and supervisors of the Facebook page were also deemed insufficient as the pleadings did not clearly establish their roles in the publication. The court emphasised the need for detailed pleadings in defamation cases, particularly when the medium of publication is the internet, and multiple parties are potentially involved. Consequently, the court denied the plaintiff's application for leave to amend the pleadings.

The final orders of the court included a directive that the plaintiff's claims against the administrators and supervisors of the Facebook page were dismissed due to inadequate pleading. The court also noted that the plaintiff had not provided sufficient details to substantiate the defamation claims against the defendant, leading to the dismissal of the action.

Orders