(1) The plaintiff’s claim for defamation for the publication made on 11 May 2021 is struck out and the proceedings are dismissed.
(2) The plaintiff is to pay the defendant’s costs of the proceedings unless otherwise ordered previously.
(3) The affidavits and submissions relied upon by the parties are to remain with the file until further order.
Catchwords:
TORT – defamation – two Facebook posts made after relationship between plaintiff and defendant ended – second matter complained of struck out pursuant to s 12B(3) of the Defamation Act 2005 (NSW) – remaining publication online for 10 days, with 3 downloadings – defendant brings application for summary dismissal – whether proceedings an abuse of process – whether proceedings brought to vindicate reputation or for an ancillary dominant improper purpose, namely as part of an ongoing vendetta – whether the asserted strength of the evidence of justification warrants summary dismissal – proportionality – whether plaintiff breached Uniform Civil Procedure Rules 2005 (NSW) r 12.11 by not informing the court that the limitation period had expired – whether defendant was estopped from bringing this application because it should have been brought at the same time as his earlier application to strike out this cause of action on other grounds – whether plaintiff entitled to ask the court to revisit the striking out of the second matter complained of – proceedings dismissed as an abuse of process
[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
AGLC
Woolf v Brandt (No 2) [2023] NSWDC 184
Case
[2023] NSWDC 184
Decision Date
CaseChat Overview and Summary
The defendant, Brandt, brought an application for summary dismissal against the plaintiff, Woolf, in relation to a defamation claim based on two Facebook posts made by Brandt after their relationship ended. The dispute was heard in the Supreme Court of New South Wales. Brandt argued that the proceedings were an abuse of process, asserting that Woolf brought the action to vindicate their reputation or for an ancillary dominant improper purpose, such as perpetuating an ongoing vendetta, rather than solely for defamation. Brandt also questioned whether the strength of the evidence of justification warranted summary dismissal and raised concerns about proportionality and Woolf's failure to inform the court that the limitation period had expired.
The court examined whether the proceedings constituted an abuse of process, considering whether they were brought for an improper purpose. It assessed the evidence and submissions provided by both parties, including the fact that one of the Facebook posts had been online for 10 days and downloaded three times. The court found that the proceedings were indeed an abuse of process due to the improper purpose for which they were brought. Additionally, the court determined that Woolf breached the Uniform Civil Procedure Rules 2005 (NSW) r 12.11 by not informing the court that the limitation period had expired. The court also found that Brandt was estopped from bringing this application because it should have been brought concurrently with his earlier application to strike out the cause of action on different grounds.
The court dismissed the plaintiff's claim for defamation and the proceedings, striking out the claim for the publication made on 11 May 2021. The plaintiff was ordered to pay the defendant's costs of the proceedings unless otherwise ordered previously. The affidavits and submissions relied upon by the parties were to remain with the file until further order. The court did not allow Woolf to ask the court to revisit the striking out of the second matter complained of, reinforcing its decision that the proceedings constituted an abuse of process.
Orders
Orders of the court
(1) The plaintiff’s claim for defamation for the publication made on 11 May 2021 is struck out and the proceedings are dismissed.
(2) The plaintiff is to pay the defendant’s costs of the proceedings unless otherwise ordered previously.
(3) The affidavits and submissions relied upon by the parties are to remain with the file until further order.