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Woolf v Brandt

Woolf v Brandt

Case [2022] NSWDC 623 14 December 2022

Defamation

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Discovery & Disclosure

Tort Law

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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

The plaintiff and defendant…

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 Woolf v Brandt

Details

AGLC: Woolf v Brandt [2022] NSWDC 623
Case: [2022] NSWDC 623
Decision Date: 14 December 2022

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Woolf v Brandt [2022] NSWDC 623

Most Recent Citation

Woolf v Brandt (No 2) [2023] NSWDC 184

Cases citing this decision · 3 of 3 shown

Woolf v Brandt
[2023] NSWDC 460 Para 1

…Woolf v Brandt [2022] NSWDC 623: On 14 December 2022, I struck out a claim for the second publication with costs, on the basis of failure to comply with s 12A of the Act and refused an application nunc pro tunc to extend time for compliance under s 12B(3)(b) of the Act. I allowed the claim based on the first public…
Woolf v Brandt (No 3)
[2023] NSWDC 215 Para 2

…The defendant brought an application for summary dismissal of both claims in 2022, details of which are set out in Woolf v Brandt [2022] NSWDC 623. The challenge to the first publication, based on failure to provide proper particulars of identification and downloading, failed because the plaintiff had, by the time…
Woolf v Brandt (No 2)
[2023] NSWDC 184 Para 2

…by reason of my refusal of leave (s 12B(3) of the Act) to commence proceedings less than 28 days after service of the concerns notice: Woolf v Brandt [2022] NSWDC 623. I refused an application by the defendant for summary dismissal of the first matter complained of brought on other grounds, namely failure to provid…

View all 3 citing cases →

Cases cited in this decision · 12 of 12 shown

Georges v Georges
[2022] NSWDC 558 Para 52

…s for the offer of amends is intended to be a period of genuine negotiation and provision of information, as Abadee DCJ sets out in Georges v Georges [2022] NSWDC 558 at [65]-[75]. The introduction of the concerns notice provisions was one of the key reforms aimed at achieving a better balance where the publication…
Newman v Whittington
[2022] NSWSC 249 Para 18

…It is not sufficient for a plaintiff to assert that the publication being on the Internet, it must have been seen by someone. In Newman v Whittington [2022] NSWSC 249, Sackar J stated at [20]:…
Massarani v Kriz
[2022] FCA 80 Para 39

…As Katzmann J noted in Massarani v Kriz [2022] FCA 80 at [66], Beazley JA’s position was consistent with the approach taken to the predecessor of s 23, s 9(3) of the Defamation Act 1974 (NSW), which similarly prohibited a person from bringing further proceedings against the same defendant “in respect of the same…
Stoltenberg v Bolton
[2020] NSWCA 45 Para 14

…eks to rely upon this passage as permitting the proof of publication based on a “platform of facts” (a procedure endorsed in Stoltenberg v Bolton [2020] NSWCA 45 at [33] which does not necessarily include specific particulars of downloading).…
Cronau v Nelson
[2018] NSWSC 1769 Para 18

…tter was published by providing particulars of downloading is now general practice and will be the subject of orders if not provided: Cronau v Nelson [2018] NSWSC 1769 at [11]-[14]; Stoltenberg v Bolton at [55]-[56]. It is not sufficient for a plaintiff to assert that the publication being on the Internet, it must h…
Carey v Australian Broadcasting Corporation
[2012] NSWCA 176 Para 38

…The principles for determining whether leave can be granted nunc pro tunc are set out in Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90. At [48], Beazley JA considered that leave under s 23 could not be granted nunc pro tunc, but McColl JA and Sackville JA held otherwise.…
Cavanagh v State of New South Wales
[2008] NSWCA 350 Para 43

…What does “just and reasonable” mean? This term appears in limitation legislation (see, for example, Cavanagh v State of New South Wales [2008] NSWCA 350) and, in personal injury litigation, often involves consideration of “unexplained failure” ( Millard v State of Victoria [2006] VSCA 29 at [1] per Chernov JA) by…
Commissioner of State Revenue v Artistic Pty Ltd
[2008] WASCA 24 Para 43

…f “a wide range of circumstances that may be relevant to the exercise of a discretion” ( Commissioner of State Revenue v Artistic Pty Ltd [2008] WASCA 24 at [21] per Martin CJ). Conformably with those principles, I invited Mr Olson to set out why it would be just and reasonable to do so.…
Lee v Kim
[2006] NSWCA 384 Para 39

…th the leave of the court in which the further proceedings are to be brought”: see Spautz v Kirby (1989) 21 NSWLR 27 at 30D (Hunt J); Lee v Kim (2006) 68 NSWLR 433 at [33] (Handley JA, Beazley and Santow JJA agreeing). Katzmann J noted that the purpose of s 9(3) of the 1974 Act was to remedy the defects of the 1958 Ac…
Millard v State of Victoria
[2006] VSCA 29 Para 43

…les [2008] NSWCA 350) and, in personal injury litigation, often involves consideration of “unexplained failure” ( Millard v State of Victoria [2006] VSCA 29 at [1] per Chernov JA) by a plaintiff or his solicitor to commence proceedings prior to the expiry of the limitation period. It is a term permitting consider…
Tolcher v Gordon
[2005] NSWCA 135 Para 56

…dure Rules 2005 (NSW) (“UCPR”) r 10.1, and is particularly serious if it occurs after the expiration of the limitation period: Tolcher v Gordon [2005] NSWCA 135 at [3]. The extension of time to serve is a matter of discretion and there must be a real question as to whether an extension of time would have been grant…
Spautz v Kirby
[1989] NSWCA 189 Para 39

…lication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought”: see Spautz v Kirby (1989) 21 NSWLR 27 at 30D (Hunt J); Lee v Kim (2006) 68 NSWLR 433 at [33] (Handley JA, Beazley and Santow JJA agreeing). Katzmann J noted that the purpose of s 9(3) of the 19…

Legislation cited in this decision · 3

Defamation Act 2005 (TAS)
12A, 12B, 14, 46 5 mentions (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
10.1, 12.11, 14.30 3 mentions (from Para 56)
Defamation Act 1974 (NSW)
1 mention (from Para 39)

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