Von Marburg v Aldred (No. 2) - [2016] VSC 36

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.
[1]Von Marburg v Aldred & Anor [2015] VSC 467.

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…

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.

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Details

Case: [2016] VSC 36
Decision Date: 9 FEBRUARY 2016

CaseChat Overview and Summary

In the case of Von Marburg v Aldred (No. 2), the plaintiff sought leave to amend the pleadings to include additional defendants who were involved in the administration or supervision of a Facebook page. The dispute arose from defamatory content published on the Facebook page, which the plaintiff argued was defamatory of them. The defendants were not the authors of the content but were individuals associated with the Facebook page. The matter was before the Supreme Court of Queensland, which had to determine whether the plaintiff's application to amend the pleadings to include the additional defendants was appropriate.

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