Woolf v Brandt

Case [2022] NSWDC 623


District Court


New South Wales

Medium Neutral Citation: Woolf v Brandt [2022] NSWDC 623
Hearing dates: 9 December 2022
Date of orders: 14 December 2022
Decision date: 14 December 2022
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1) Leave to the plaintiff to amend the statement of claim in 7 days as follows:

(a) The plaintiff is to provide full particulars of downloading for the first matter complained of, including each of the persons’ names, locations and dates of each download.

(b) The plaintiff’s application for leave nunc pro tunc pursuant to s 12B(3)(b) of the Defamation Act 2005 (NSW) to continue the claim for defamation for the second matter complained of in paragraphs 5 - 9 of the statement of claim is refused; these paragraphs of the statement of claim are struck out and dismissed.

(2) Plaintiff pay defendant’s costs with liberty to apply.

(3) The parties are to bring in Short Minutes of Order for a further timetable in these proceedings.

Catchwords:

TORT - defamation - two Facebook posts made by the defendant, the first of which predated legislative amendments including the requirement to serve a notice under s 12A Defamation Act 2005 (NSW) - concerns notice served on defendant for both of these publications - plaintiff commences proceedings 12 days short of the 28-day concerns notice period - application by defendant for summary dismissal - application by plaintiff for leave to continue the proceedings in relation to the second matter complained of - whether leave to commence can be ordered nunc pro tunc - whether just and reasonable to grant leave - leave refused - application for summary dismissal of the first matter complained of for failure to provide appropriate particulars of publication and downloading - plaintiff granted leave to provide further particulars of the first matter complained of

Legislation Cited:

Defamation Act 2005 (NSW), ss 12A, 12B, 14, 46

Uniform Civil Procedure Rules 2005 (NSW), rr 10.1, 12.11, 14.30

Cases Cited:

Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90

Cavanagh v State of New South Wales [2008] NSWCA 350

Commissioner of State Revenue v Artistic Pty Ltd [2008] WASCA 24

Cronau v Nelson [2018] NSWSC 1769

Georges v Georges [2022] NSWDC 558

Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188

Lee v Kim (2006) 68 NSWLR 433

Massarani v Kriz [2022] FCA 80

Millard v State of Victoria [2006] VSCA 29

Newman v Whittington [2022] NSWSC 249

Sims v Jooste (No 2) [2016] WASCA 83

Spautz v Kirby (1989) 21 NSWLR 27

Stoltenberg v Bolton [2020] NSWCA 45

Tolcher v Gordon [2005] NSWCA 135

Williams v Radio 2UE Sydney (Supreme Court of NSW, Levine J, 3 December 1993)

Texts Cited:

NSW Law Reform Commission, Report on Defamation (Report 11, 1971)

Category:Procedural rulings
Parties: Richard Farrell Woolf (plaintiff)
Nicholas Brandt (defendant)
Representation:

Counsel:
Mr N Olson (plaintiff)
Mr T Smartt (defendant)

Solicitors:
Spencer Wright (plaintiff)
Youth Law Australia (defendant)
File Number(s): 2022/00135926
Publication restriction: Nil

Judgment

The applications before the court

  1. The plaintiff and defendant…

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AGLC
Woolf v Brandt [2022] NSWDC 623
Case
[2022] NSWDC 623
Decision Date

CaseChat Overview and Summary

The case of Woolf v Brandt was heard in the Local Court of New South Wales, with Woolf as the plaintiff and Brandt as the defendant. The dispute arose from two Facebook posts made by Brandt, which the plaintiff claimed were defamatory. The first post was published before legislative amendments that introduced a requirement to serve a notice under s 12A of the Defamation Act 2005 (NSW), while the second post was published after these amendments. The plaintiff served a notice on Brandt for both posts but commenced proceedings for the second post 12 days before the required 28-day period had elapsed. Brandt applied for summary dismissal of the proceedings, while the plaintiff sought leave to continue with the claim for the second post nunc pro tunc. Additionally, the plaintiff applied for leave to amend the statement of claim to provide further particulars of the first post.

The court had to decide whether leave to commence the proceedings could be ordered nunc pro tunc and whether it was just and reasonable to grant leave for the second post. The court also needed to determine if the plaintiff's application for leave to amend the statement of claim in relation to the first post should be granted. The court considered the statutory requirements for defamation claims and the procedural rules governing the service of notices and the amendment of pleadings. The court held that the plaintiff's application for leave nunc pro tunc for the second post was refused, and those paragraphs of the statement of claim were struck out and dismissed. However, the plaintiff was granted leave to amend the statement of claim to provide further particulars of the first post.

In its judgment, the court refused the plaintiff's application for leave to continue the claim for the second post nunc pro tunc, finding that it was not just and reasonable to grant such leave. The court ordered that the relevant paragraphs of the statement of claim be struck out and dismissed. The court granted the plaintiff leave to amend the statement of claim in relation to the first post, directing the plaintiff to provide full particulars of downloading, including the names, locations, and dates of each download. The plaintiff was ordered to pay the defendant's costs, with liberty to apply, and the parties were directed to bring in Short Minutes of Order for a further timetable in the proceedings.

Orders

Orders of the court

(1) Leave to the plaintiff to amend the statement of claim in 7 days as follows:

(a) The plaintiff is to provide full particulars of downloading for the first matter complained of, including each of the persons’ names, locations and dates of each download.

(b) The plaintiff’s application for leave nunc pro tunc pursuant to s 12B(3)(b) of the Defamation Act 2005 (NSW) to continue the claim for defamation for the second matter complained of in paragraphs 5 - 9 of the statement of claim is refused; these paragraphs of the statement of claim are struck out and dismissed.

(2) Plaintiff pay defendant’s costs with liberty to apply.

(3) The parties are to bring in Short Minutes of Order for a further timetable in these proceedings.

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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