| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2014 06065
| ROLAND VON MARBURG | Plaintiff |
| v | |
| ETHAN ALDRED | First Defendant |
| PIETER MOURIK | Second Defendant |
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JUDGE: | JOHN DIXON J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 16 DECEMBER 2015 |
DATE OF JUDGMENT: | 9 FEBRUARY 2016 |
CASE MAY BE CITED AS: | VON MARBURG v ALDRED & ANOR (No. 2) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 36 |
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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 – No new point of principle.
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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. On 30 October 2015 I refused leave to the plaintiff to file a proposed further amended statement of claim.[1] That was his seventh attempt at pleading his claims. The plaintiff seeks leave to file and serve a statement of claim in the form of the proposed pleading titled ‘Third Statement of Claim’ dated 19 November 2015.
The defendants oppose the plaintiff’s application.
The plaintiff has not, by affidavit, put before the court any explanation about the change in the basis of the allegations now being made or identifying his prospective sources of the evidence to be led at trial. Assessment of the tenability of the principal allegations must be based upon the adequacy of the particulars provided in the proposed pleading.
Relevant Publications
The first publication was posted on the Facebook page on or about 16 October 2014. It was in these terms:
[Photo of Plaintiff]
Here is a photo of the only doctor in Albury Wodonga who would stand outside a legal, Women’s Health Clinic, violating women’s privacy! This is, in our opinion, highly unethical and against the public statement by the highest authority of Women’s Health in Australia, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists:
RANZCOG Statement, April 2013: “Women have the right to access any medical service without their privacy being infringed…
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- Case
- [2016] VSC 36
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved the proper pleading of publication in defamation cases, particularly when the publication occurs on the internet and involves multiple parties. The plaintiff argued that the additional defendants should be included as they had a role in the administration or supervision of the Facebook page, making them potentially liable for the publication of the defamatory content. The court had to consider whether the inclusion of these additional defendants introduced a new point of principle or if it was a matter of clarifying the existing pleadings.
The court held that the plaintiff's application to amend the pleadings was not appropriate as it did not introduce a new point of principle. The court found that the primary and subordinate publication against persons involved in the administration or supervision of a Facebook page was not a novel legal concept and did not require further clarification. The court emphasised that the focus should be on the actual publication of the defamatory content and the role of the individuals in that publication. Consequently, the court dismissed the plaintiff's application for leave to amend the pleadings.
The final orders of the court reflected its reasoning, confirming that the plaintiff's application was dismissed without any order as to costs. The court's decision underscored the importance of ensuring that amendments to pleadings introduce new legal principles or points of law, rather than merely clarifying existing issues.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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