Randell v McLachlain

Randell v McLachlain - [2022] NSWDC 506 - NSWDC 2022 case summary — Zoe

[3]

The statement of claim

Contrary to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 14.30, the plaintiff has not attached a typed and line-numbered copy of the matter complained of. It was not immediately clear, from the statement of claim and submissions, whether the plaintiff was suing on the whole of the thread that was withdrawn, the Sunday Telegraph article, the text message from the plaintiff's solicitor and/or the defendant's own words. During the hearing it has been clarified that the matter complained of is the solicitor's text message and the three-sentence response from the defendant.
The imputations pleaded are: a. the plaintiff has abused children causing them trauma; b. the plaintiff has engaged in child abuse; c. the plaintiff has sought to cover up child abuse.
As this is an online publication, particulars of downloading are required: Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [25] - [28] and [44]; Jenman v McIntyre [2013] NSWSC 1100 at [3]; Sims v Jooste (No 2) [2016] WASCA 83. The following information about the extent of publication is set out: 1. According to paragraph 3(a) of the statement of claim, the Facebook page had about 2,600 members. 2. Paragraphs 3(c) - (e) assert that the matter complained of was "viewed and downloaded including by persons unknown to the plaintiff" and that "the content of the Facebook Post has been widely disseminated and discussed among persons who know the plaintiff, in particular persons residing in or near Dubbo", adding that "further particulars of publication "will be provided after discovery and interrogatories". 3. However, contrary to the practice since Dow Jones & Company v Gutnick where an online publication is sued on, no particulars of downloading by any of these persons are provided.
The matter complained of was published after the commencement date of s 10A of the Defamation Act 2005 (NSW) ("the Act"), which means that a valid concerns notice must be served more than 28 days before the statement of claim is filed. The plaintiff's solicitors sent three concerns notices to the defendant in August 2021 and filed the statement of claim on 5 August 2022.

[4]

The defendant's applications

The defendant submits that the concerns notice is invalid and that the statement of claim should be struck out. The argument that the concerns notice is invalid is put on the following bases: 1. The first two of the three concerns notices do not particularise serious harm at all and are invalid. This is conceded. 2. The third concerns notice (dated 27 August 2021) does provide particulars of serious harm, but it is asserted that these have not been "specified" with sufficient particularity: s 12A(1)(a)(ii) and s 12A(1)(a)(iv) of the Act. 3. The third concerns notice is also invalid because it fails to comply with s 12A(1)(a)(ii) by specifying a location where the matter can be accessed. 4. Whether or not the particulars of serious harm and access location details are sufficiently set out to survive being struck out, the concerns notice is still invalid because of the plaintiff's failure to provide "reasonable further particulars" in answer to the plaintiff's request for such particulars: s 12A(5).
The defendant challenges the following asserted failures of pleading in the statement of claim: 1. Contrary to the principles set out in Dow Jones & Company v Gutnik, the plaintiff has failed to provide particulars of downloading. This has serious consequences, in the context of serious harm, for the reasons set out by Sackar J in Newman v Whittington [2022] NSWSC 249 at [17] - [20] where the absence of such particulars, in circumstances where it was apparent that the plaintiff could not identify any such persons, led to his Honour striking out certain portions of the claim without leave to replead. 2. The plaintiff has failed to provide proper particulars of the claim for serious harm, namely particulars of the kind adverted to by Sackar J in Newman v Whittington at [32] and [72]. 3. The claim for "reckless indifference" in paragraph 9(a) requires proper particularisation and should be struck out. 4. The statement of claim fails to attach a copy of the concerns notice and, contrary to UCPR r 14.30, fails to attach a legible copy of the matter complained of and a typed and numbered version of it. 5. There is no certification under cl 4 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 (NSW).
I regard the last three items on this list as minor matters and, in view of my other findings, have not dealt with them.
The first issue is the adequacy of the particulars of serious harm, firstly in the concerns notice and, secondly, in the statement of claim.

[5]

Serious harm

Section 10A of the Defamation Act 2005 (NSW) ("the Act"), adapted from s 1 of the Defamation Act 2013 (UK), was enacted as a reform to discourage the bringing of cases likely to result in modest damages awards, where the costs were out of proportion to the damages: Newman v Whittington at [30] - [46]. The rationale for the reform was the proliferation of cases of modest parameters involving exchanges of an informal nature, which were described in the Council of Attorneys-General Review of the Model Defamation Provisions - Background Paper (December 2019, p. 25), as "neighbourly disputes" and "backyard defamation". The damages were often low but were accompanied by disproportionately high legal costs. An additional source of concern was that these actions took up significant court resources, particularly in courts where actions of this kind had previously been rare. As a result of this reform, serious harm must be established in every action brought for publications in jurisdictions where s 10A has been enacted, where those publications were made after the date of s 10A coming into force (1 July 2021).
While caution must be exercised when interpreting how serious harm is to be addressed under Australian law as opposed to English law (Newman v Whittington [2022] NSWSC 249 at [30] - [46]), the analysis of Brereton JA of issues of serious harm, as expressed in Rader v Haines [2022] NSWCA 198 at [28]-[29] and indeed throughout the judgment, may be confidently accepted, as his Honour clearly had issues relevant to the Australian legislation in mind, such as whether proof of defamatory meaning was required (Rader v Haines at [17]). In addition, I have been greatly assisted and guided by the analysis of Sackar J in Newman v Whittington, as the issues in that case resulted in statements of the relevant principles in relation to similar issues in these proceedings. I have also taken into account that the term "serious harm" is not one of obscure or technical meaning, but a term clearly demonstrated by particularisation of a relatively general and indeed informal kind, such as that provided in Zimmerman v Perkiss [2022] NSWDC 448, where the plaintiff's concerns notice, although not referring to serious harm, described a series of harms, such as an adverse reaction from her employer and difficulty buying work equipment.
The parties agree that, if adequate particulars of serious harm are not provided in the concerns notice, then it has failed to comply with s 12A of the Act and the whole action must be struck out and the plaintiff would have to start again, as the language of the statute does not favour nunc pro tunc amendment.
Fundamentally, however, applications for notices to be set aside as invalid pursuant to the statutory regime under which they were issued are common in many areas of the law, and the validity of notices asserted not to comply with statutory notice provisions need to be considered in light of the objects of the relevant legislation (and, in particular, s 3(d) of the Act) and in relation to the construing of notices generally, as set out in decisions such as The Baptist Union of New South Wales v Georges River Council [2017] NSWSC 347. I also note the general principles for the interpretation of contractual notices as set out in Prospect Resources Ltd v Molyneux [2015] NSWCA 171 at [70], namely how a reasonable recipient would have read the concerns notice.
If adequate particulars of serious harm are provided in the concerns notice but not in the statement of claim, those particulars, if struck out, will generally be accompanied by leave to replead: Newman v Whittington at [71] et passim. However, that leave should not be taken for granted: Ruta v Department for Work and Pensions [2022] EWHC 1535 (QB) at [38], citing Johnson v McArdle [2020] EWHC 644 (QB).

[6]

The context of social media publication

I agree with Mr Olson's submissions that the adequacy of a concerns notice should not be an end in itself, but must be viewed in context of the publication in question. I first note: 1. The name of the Facebook page is "Dubbo Wellington Thumbs Up Thumbs Down" and it had about 2,600 "friends" (i.e. followers). This name has two important features for the purpose of serious harm. The first is that it relates to the "Dubbo Wellington area" (the "neighbourly" factor, to use the language of the Department of Justice review paper) and the second is that, as the name warns, it is a discussion forum for differing views, in that posts of a "thumbs down" nature may also be posted (the "disputes" factor). 2. The defamatory words were published in context of publication of ongoing discussion of issues involving the plaintiff in the community as well as in the Sunday Telegraph article, which had been published on the Facebook page earlier that day but is not included in the matter complained of. 3. The high degree of informality of the plaintiff's solicitor's text request for the defendant to take down posts, and of the defendant's response thereto, is indicative of the parties expecting each other as well as the Facebook page readers to know what was going on. 4. This is a social media publication and will be read by the ordinary reasonable reader in the somewhat informal manner explained, although in another context, by the Full Court of the Federal Court in Bazzi v Dutton [2022] FCFCA 84. 5. A vital feature of social media is that it may be "here today but gone tomorrow". Texts may delete themselves in some apps, or become impossible to access in others, within a very short time (such as stories in Instagram which last a day). Others may remain online but are difficult to access because of the sheer volume of posts: Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45 at [56]. This means that the extent of publication is difficult to determine where there are no particulars of downloading. Extent of publication is the most significant factor in determining serious harm issues, as is demonstrated by the study carried out by C Sewell of 44 serious harm rulings in the United Kingdom between 2013 and 2018 ("More serious harm than good? An empirical observation and analysis of the effects of the serious harm requirement in section 1(1) of the Defamation Act 2013", (2020) Journal of Media Law DOI: 10.1080/177577632.2020.1776560). With this in mind, the period of time between the publication and the arc of the serious harm may be an important factor. Brereton JA noted, in Rader v Haines at [39], a decision by the plaintiff in McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 96-97 to "defer commencing all the libel actions for eleven months is some indication that he did not consider the injury to his reputation to be a highly serious matter." That delay is exacerbated where there are transient publications on social media, and is one of the bases of complaint by the defendant concerning the asserted inadequacy of the plaintiff's answers to particulars.

[7]

The particulars of serious harm in the concerns notice

The particulars of serious harm provided in the 27 August 2021 concerns letter were as follows: "Serious Harm We provide the following particulars of serious harm under Section 12A of the NSW Defamation Act. By reason of the publication of the matter complained of our client has suffered or is likely to suffer serious harm to her reputation due to the following: a. The serious nature of the imputations; b. The fact that the imputations are directed at her professional capacity as the principal of a school; c. The grapevine effect of the publication; d. The fact that our client works in a small community and allegations of this nature would be disseminated widely. Further Ms Randell would undoubtably be entitled to aggravated damages. You posted the matter complained of without putting fairly the events that had occurred at the time you made your statement. Further as moderator of the Facebook page you had in July and August 2021, permitted and tolerated at best and actively encouraged at worst, other people's posts concerning our client, no matter how defamatory those posts might be. At no time did you did not seek our client's side of the story before you published the matter complained of. Nor did you mention the investigations of the Board of CWLA to the original complaints that had exonerated our client. The only conclusion that can be fairly made is that the publication of the matter complained of was a grossly ill-conceived rejection of the thorough investigation carried out by the Board of Directors of CWLA. It was also a complete and deliberate rejection of the statements that were made by our client and reported in the Sunday Telegraph article. You had no proper basis, indeed no basis at all for making the defamatory statements about our client. In this light your actions in publishing the matters complained of indicate that you were motivated by malice towards our client."
Although the balance of the material after paragraph (d) appears to relate to other matters, such as defences and damages, I have included it as being potentially capable of amounting to particulars of serious harm as well.
Mr Smartt submits that the plaintiff must identify and particularise "the" serious harm that has been or is likely to be caused, drawing my attention to UCPR r 15.19(1)(f) that the plaintiff supply "particulars of the serious harm that the publication has caused, or is likely to cause, to the reputation of the plaintiff". Harm that is "serious" in the United Kingdom has been defined as meaning more than "substantial" harm (Rader v Haines at [27]) and this would apply to "serious harm" for the purposes of s 10A as well. Even if there is a lesser test, the task requires identifying harm that could at least reach the "serious" standard.
In addition, the plaintiff must particularise facts from which the requisite causation can be inferred, because of the long-standing principle of pleading that it is necessary to plead the material facts which are said to give rise to the causal connection (Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457 at [15] per Chesterman J). Instead, Mr Smartt submits, the plaintiff has particularised "a hodgepodge of generalities" of the "cut and paste" variety that could be used for nearly any defamation action. Mr Smartt adds that, in the context of a series of publications which were described by the plaintiff in her solicitor's letter to be defamatory, few might have seen or cared about a footnote to a post which is itself about other defamatory articles which were sought to be removed. Mr Smartt also draws to my attention that, despite the assertion of damage to reputation in a small community, the plaintiff cannot give even one instance of such an event occurring.
Mr Olson's reply to this argument highlights a factor likely to be of central significance in applications such as these in the future. He submits that the reference in s 12A(1)(a)(iv) to serious harm does not require the plaintiff to describe different varieties of reputational harm such as being shunned or being the target of ridicule or contempt. These are all essentially different ways of saying the same thing, namely that the plaintiff's reputation has been damaged. It is not necessary to give specifics such as "my wife wants a divorce" or "I lost my job", as these are not harm to reputation but merely circumstances arising from the damage to reputation caused by the matter complained of: Napag Trading Ltd v Gedi Gruppo Editoriale S.p.A [2020] EWHC 3034 (QB) at [41].
Mr Olson's argument that it is not necessary to plead specific reputational injury at all gains some support from the fact that the word "specify" does not appear in relation to the particulars of serious harm. I also agree that such a pleading would not be proper in a statement of claim in any event.
However, the gravamen of what Mr Olson is saying is that a plaintiff may choose to describe "serious harm" by simply referring the seriousness of the imputations, the extent of publication, the fact that the plaintiff has a respected position and that the grapevine effect is likely, and that will suffice. There are a number of problems with such an argument: 1. First, all of the English decisions emphasise that causation between the harm and the publication must be established. This is because a defendant cannot be held to account for damage arising from another unrelated publication: Associated Newspapers Ltd v Dingle [1962] 2 All E R 737, [1964] AC 371 ("Dingle"). For example, the defendant cannot be sued for the serious harm flowing from the Sunday Telegraph article unless there is a pleading that the defendant published (or republished) it. 2. Second, the lack of specificity as to what the harm is where all that is provided is generalities such as the seriousness of the imputations would render the making an offer of amends that responds to the harm extremely difficult. This would defeat the whole s 10A purpose of early resolution through offers of amends, which is contrary to s 3(d) of the Act. 3. Third, for the plaintiff to commence proceedings, the ambit of the case needs to be determined. Is it "serious harm" or just "harm"? In the present case, on the particulars given, it is hard to tell what the harm would be.
Mr Olson submits that the plaintiff is unable to give any better particulars, principally because the defendant has blocked her access to the website, and that she has given the best particulars she can. However, in the absence of proper particulars to answer each of the items in the s 12A checklist, the court is not obliged to speculate.
Taking all of the above into account, I am satisfied that the plaintiff has not provided any proper particulars of harm that is serious (and is considered by her to be serious, explaining why), either past or likely to happen in the future.
The defendant alternatively or further submits that the failure to provide "reasonable" further and better particulars in response to their request for further and better particulars means that the concerns notice should be struck out for those reasons.

[8]

The alternative "serious harm" argument: failure to provide reasonable further particulars pursuant to s 12A(3) - (5)

Sections 12A(3) - (5) of the Act provide as follows: "(3) If a concerns notice fails to particularise adequately any of the information required by subsection (1)(a)(ii), (iii), (iv) or (v), the publisher may give the aggrieved person a written notice (a further particulars notice) requesting that the aggrieved person provide reasonable further particulars as specified in the further particulars notice about the information concerned. (4) An aggrieved person to whom a further particulars notice is given must provide the reasonable further particulars specified in the notice within 14 days (or any further period agreed by the publisher and aggrieved person) after being given the notice. (5) An aggrieved person who fails to provide the reasonable further particulars specified in a further particulars notice within the applicable period is taken not to have given the publisher a concerns notice for the purposes of this section."
On 7 September 2021, the solicitors acting for the defendant sought particulars of the concerns notice. The portion relating to serious harm is highlighted: "Concerns Notice Matters arising from the letter under Section 12A Section 12A(1)(a)(i) As required by Section 12A(1)(a)(ii) please provide us with the exact location on the internet where the matter in question can be addressed. If that is a webpage address, please provide us with the complete address and forward us a link to it. Section 12A(1)(a)(ii) Our client does not understand how the alleged imputations set out in the letter under the heading "Concerns Notice" can arise or be conveyed. In that regards, please provide the following particulars: In respect of each alleged imputation: (a) What parts of the publication relied on are said to convey the imputation identified by the number 1. (b) What parts of the publication relied on are said to convey the imputation identified by the number 2. (c) What parts of the publication relied on are said to convey the imputation identified by the number 3. Section 12A(1)(a)(iv) - Serious harm The items set out under this heading in the letter do not in any way particularise the serious harm required by Section 12A(1)(a)(iv), but state in general terms a number of matters that are not compliant with the requirement in section 12A(1)(a)(iv). Accordingly: (a) Please provide full and proper particulars of the harm it is alleged your client has suffered caused by the publication of matter complained of. (b) Please provide full and proper particulars of the harm it is alleged your client is likely to be caused by the publication of matter complained of. (c) We note that you allege in the letter that The Sunday Telegraph published an article of and concerning Mandi Randell on 8 August 2021. Is it alleged that the matter in question caused serious harm separate to the publication by the Sunday Telegraph? Section 12A(1)(b) Please advise whether the attachment is the whole matter in question. If not, please provide a copy of the whole matter. In that regard, part of the annexure appears to be missing (at the top). Please also provide the date of publication of the matter in question. We look forward to your response with fourteen (14) days."
The answers to particulars dated 14 September 2021 were as follows: "Dear Colleagues Thank you for your letter of 7 September 2021 to which we respond: 1.Your client has at relevant times been a moderator of the Facebook page known as Dubbo Wellington Thumbs Up Thumbs Down. Your client is well aware of the exact location on the Internet of the matter complained of. Seeking this type of particulars simply adds to the legal costs for your client. 2.However, the Facebook page is private, has "2.5K" (2,500) members and is found at: https://www.facebook.com/groups/thumbsupdown 3.As moderator of the Facebook page and author of the matter complained of, is your client seriously asking my client for the exact location of the matter complained of? In any event, please see the above link. 4.It is self-evident that the three defamatory imputations arise from the matter complained of but especially in the following: a.The re-printing of a private text from our firm to your client alerting her to defamatory material and the need to comply with the principles in Voller: https://eresouces.hcourt.gov.au/showCase/2021/HCA/27 b.Thereafter your client stating: "I deleted the post but I cannot support the cover up of child abuse. As a community we must stand up for the children who have been traumatised." 5.Our client's serious harm arising out of the publication of the matter complained of is properly particularised in the Concerns Notice. For the avoidance of doubt serious harm to our client's reputation is likely to be caused by the matter complained of giving rise to the highly defamatory imputations that she has abused children causing them trauma, that she has engaged in child abuse and that she has sought to cover up child abuse. It is self-evident that these would cause serious harm to any person's reputation, but especially if that person was, like our client, a school principal. 6.The article in the Sunday Telegraph appears at: [redacted] 7. Again, on our instructions, the article in the Sunday Telegraph is well known to your client and it is merely seeking to delay this matter and to increase costs to seek it from us. Your client has also posted the article on her various local community Facebook pages. 8. We attach the complete thread on the Facebook page of which the matter complained of forms a part. In any event, our Concerns Notice clearly conforms with the Defamation Act and your client should treat it so conforming."
The request for particulars seeks "full and proper particulars" of the harm caused by the matter complained of. It is rather like the term "full and satisfactory", in that the content of an adequate reply will depend on the facts of the case. For example, "proper" particulars of identification were ordered by Levine J in Scott v Jones & Anor [2002] NSWSC 210 where the unnamed plaintiff was relying on "notoriety".
The answer to this request is the bald statement that it was "self-evident" that the highly defamatory imputations would cause serious harm, especially since the plaintiff was a school principal. This is no more than a restatement of part of the initial particularisation. It tells the defendant nothing new. If the defendant is to make an offer of amends, she is entitled to particulars of how, where and when the plaintiff suffered serious harm as a result of this publication.
Accordingly, if I have erred in holding that the particulars of serious harm in the concerns notice are insufficient to amount to serious harm, the plaintiff's failure to provide full and proper particulars contravenes s 12A (5) and the concerns notice should be struck out for that reason.
I have next considered the particulars of serious harm set out in the statement of claim.

[9]

The particulars of serious harm in the statement of claim

The particulars of serious harm in the statement of claim were as follows: "The plaintiff has suffered and is likely to suffer serious harm by reason of the publication of the Facebook Post: a. the serious nature of the imputations; b. the plaintiff's position as a school principal responsible for children; c. the imputations concern misconduct towards children; d. the imputations are directed to the plaintiff's professional capacity as the principal of a school; e. many members of the Facebook Page reside in the Dubbo area, being the place where the plaintiff lives and works; f. the plaintiff lives and works in a small community and allegations of this nature would be disseminated widely; g. persons have contacted the plaintiff and told her that they are aware of the Facebook Post and the allegations in it; h. the grapevine effect of the publication of the Facebook Post."
Mr Smartt submits, and I agree, that these particulars are repetitive in nature and devoid of any fact-specific content (beyond the reference to Dubbo and the plaintiff's position at the school).
First, as to (a) and (c), the harm to reputation has to be "serious", not the imputation. Some criteria must be included in the particulars to identify how the harm is serious, in terms of what has occurred, or is likely to occur.
Second, as to (b) and (d), the specific harm done to the plaintiff in her position at work should be specified. There has to be causation between the harm and the publication. Lack of causation (where some of the harm actually predated publication) was the reason for Sackar J in Newman v Whittington [2022] NSWSC 249 (at [69] - [72]) striking out certain of the particulars: "[69] That said it is clear that a plaintiff must prove serious harm as a necessary element of the cause of action in New South Wales since the introduction of s 10A. By parity of reasoning, I am of the view that s 10A, like its UK counterpart has the effect of abolishing the common law rule that upon the publication of a defamation, damage is to be presumed. The plaintiff is therefore obliged to prove serious harm as a fact in every case. Further in my view in that regard the general law on that matter has been changed either expressly by reason of the very terms of s 10A or by necessary implication (see s 6(2) of the Defamation Act 2005 (NSW)). [70] In Lachaux, on the hearing as to serious harm, the plaintiff and the other witnesses had given evidence. The Court also received print runs of the readership of the publications and of the user numbers of online publications. The scale of the publication was taken into account, as was the fact at least one person in the UK knew of the publication and there was a likelihood there were others. [71] Here the hearing has been conducted only on the pleadings and in such a case it is to be assumed that the factual assertions relevantly made by the plaintiff are true. However I do not consider it clearly articulates an arguable case especially by reference to events which precede the two matters relied upon. I would strike it out in its present form. Given however the novelty of the point I would grant leave to the plaintiff to replead these paragraphs. [72] In summary then I would not grant leave to proceed with matters 12, 13, 15, 16, 17 and 18. Nor would I grant leave in relation to matters 3, 5, 8, 10, 11, 12, 19, 20 and 21. I would however grant leave to the plaintiff to replead matters 1, 2, 4, 6, 7, 9, 14, 22, 23, and 24 insofar as she is able to specify the jurisdiction or jurisdictions in which the matters were published. In addition although I would not permit the plaintiff to proceed with her current pleading in relation to serious harm, I would permit her to replead her case in that regard."
Third, as to (e) to (h), the plaintiff cannot in fact identify a single person who downloaded the publication and is unable to give any particulars of the grapevine effect apart from the speculation that it must have occurred.
Fourth, the serious harm has to be identified as harm in the past and/or likely to occur in the future.
The particulars in the statement of claim do not explain what the "harm" is at all, let alone how it is "serious", either in the past or in the future, and how the serious harm arises from this publication. For the same reasons as the particulars given in the concerns notice, the particulars of serious harm in the statement of claim are deficient.
The next question is whether (assuming I am wrong in striking out the proceedings due to the inadequacy of the concerns notice) leave to amend would be granted.
I have been guided in this regard by the approach taken by Sackar J in Newman v Whittington. I am troubled by the absence of any causation factor and how the damage in question could be said to have been serious in the past, or likely to be in the future. Mr Olson effectively concedes that these are the best particulars his client can give. If so, leave to replead should not be granted.

[11]

The "platform" argument

Mr Olson submits that it is not necessary for him to give particulars of dates and times for any downloads, and that he can build "a platform of facts" (Sims v Jooste at [18] - [20]) to establish that downloading by someone must have occurred.
The Court of Appeal, in Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45 at [56], explained that the principle Sims v Jooste stands for is that merely posting online does not need to any inference of downloading, and that further proof, such as evidence of "likes", replies and Google analytics are necessary: "His Honour also correctly accepted that the mere fact of posting material online does not lead to an inference that it has been downloaded, referring to Sims v Jooste (No 2) [2016] WASCA 83 at [18]-[20]. It is useful to reproduce in full the remarks of Martin CJ at [17]-[20] (Buss JA and Mitchell J agreeing) in relation to proof of publication in cases involving the internet: [17] Because of the vast number of internet sites, and the vast number of web pages accessible through those internet sites, in the absence of evidence it cannot be inferred that one or more persons has undertaken the steps required to identify and access any particular web page available through the internet merely from the fact that material has been posted on an internet site. There is a real prospect that many of the billions of web pages accessible via the internet have never been seen by anyone other than the person who posted the page on an internet site. This has been recognised in the cases to which I will now refer. [18] In England, it has been consistently held that a plaintiff claiming to have been defamed in material posted on the internet cannot rely upon an inference of publication analogous to that customarily drawn in cases involving publication via the mass media of print or broadcast in order to establish that there has been substantial publication within the jurisdiction. Rather, the plaintiff must plead and prove that the material of which complaint is made has been accessed and downloaded. The English cases recognise however that publication, in the legal sense, may be established by pleading and proving a platform of facts from which an inference of download can properly be drawn. However, such an inference will not be drawn from the mere fact that the material complained of has been posted on an internet site. [19] With one apparently anomalous exception, the same approach has consistently been taken in Australia. So, in Toben v Jones [2012] FCA 1193 and MacDonald v Australian Broadcasting Corporation [2014] NSWSC 206 it was held that a plaintiff claiming to have been defamed by material posted on the internet must plead and prove facts which established that the material of which complaint was made had been downloaded and viewed by somebody, without necessarily having to provide particulars of the identity of the person or persons who downloaded the material. The cases also establish that an inference to the effect that the material of which complaint is made has been downloaded by somebody might be drawn from a combination of facts, such as the number of 'hits' on the site on which the allegedly defamatory material was posted and the period of time over which the material was posted on the internet. For example, in Scali v Scali [2015] SADC 172 screenshots of the defendant's YouTube posts, which appeared to demonstrate the number of times the allegedly defamatory videos had been viewed as at the date of the screenshot, were relied upon as evidence of the fact that the videos of which complaint was made had been downloaded and comprehended by third parties.
What are the facts and matters relied upon by the plaintiff to establish a "platform" of facts?

[12]

The planks in the plaintiff's "platform"

The first plank in the platform is that the mere fact of there being several thousand Facebook "friends" means that someone must have read it, by reason of the geographic specificity and the large group of followers. Mr Olson's submissions (at paragraph 33) state: "The fact, pleaded at paragraphs 3(a) - (b), that the matter complained of was published by a Dubbo-specific Facebook group of 2,600 members provides a sufficient platform of facts of this case."
In Inserve Australia Ltd & Ors v Kinane [2018] QCA 116, an application for the respondent to be dealt with for contempt for publication on Facebook was brought. Fraser, Gotterson and Philippides JJA described the Sims v Jooste (No 2) factors as being that the respondent's Facebook page had a large number of "friends" and potentially further Facebook users. In fact there was an additional piece of evidence relied on in that application, namely that an employee of the applicant's solicitor, Mr Tweedale, had downloaded it.
The Court of Appeal described the submission made, and their reasons for rejection of all evidence of downloading having occurred, at [38] and [50] - [51]: "[38] Further, the applicants submitted that by posting the offensive material on Facebook, the respondent "made it likely to be viewed" by all of the respondent's Facebook "friends" and potentially further connected Facebook users, and even if the posts did not draw a proven online response, that could be inferred. The applicants submitted that, as the Facebook system did not provide details of the viewing information a post received, it could not be said that Mr Tweedale was the only user who accessed the posts. The applicants submitted since the respondent accepted that he had "friends" or followers on Facebook, an inference beyond reasonable doubt could and should have been drawn by the primary judge that the reactivation of the Facebook page had been published to such friends or followers in terms of the proposition stated in Sims v Jooste (No 2). … [50] Clearly, the expression "general public" did not encompass publication to the respondent. The primary judge was not prepared to draw an inference of publication, not being satisfied that there was a factual basis for such an inference. In that regard, his Honour was entitled to find that the fact the respondent's Facebook posts had previously been accessed by a small group, did not of itself provide a factual basis for inferring the same had occurred in respect of the remaining posts. The primary judge was entitled to conclude that there was no evidence that anyone (other than Mr Tweedale) had downloaded the posts in question. [51] Furthermore, in the circumstances of this case, the primary judge was also correct to find that the downloading and viewing of the material by Mr Tweedale did not establish that there was a publication to "the general public". In so finding, the primary judge did not proceed on an incorrect premise that evidence that material was made available for viewing on the internet and was downloaded by a single person could not constitute evidence of publication to the general public. His Honour did not find that there was no publication that could constitute contempt by reason that there was proof of publication to only one member of the public. Rather, the primary judge's finding was premised on the fact the relevant evidence of downloading of the internet communication was by a person who was "instructed to look for [the posts] in the course of his employment at the law firm representing the applicants. It was not that there was an antecedent relationship which excluded Mr Tweedale from coming within the definition of "the general public" but the nature of the relationship. In the circumstances of this case, the finding that Mr Tweedale did not come within the meaning of "the general public" in the terms of the Order was correct. The applicants' reference to the position in Emmanuel College v Rowe does not assist given the terms of the order there under consideration were different.
Although these were not defamation proceedings, the same principles in relation to the need to prove downloading apply.
It may be that a submission could be made here that the plaintiff's solicitor, or someone in his office, must have read the matter complained of. Although no such submission was put to me, I will add that any downloading by a person in a solicitor's office would not amount to publication for the same reasons as explained by the Court of Appeal (I note this principle has been acknowledged in other decisions of long standing, such as Toomey v John Fairfax & Sons Ltd ((1985) 1 NSWLR 291).
As to Dubbo being such a small town that knowledge of these matters could be more or less presumed, the defendant points to two very specific groups of persons in two decisions where no publication could be proved. The first of these was Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1, where the site was a WeChat members' group in Chinese. The mere fact that others came into and went out of the ongoing discussions did not amount to carrying out the necessary downloading to discover the names of the plaintiff and her company. The second is Newman v Whittington [2022] NSWSC 249, where the publication was on a site described by Mr Olson as "obscure" but relied upon by the defendant as being a site which persons with the relevant interests would know about. In neither case was the court persuaded that the mere fact of there being a "special interest" audience constituted a form of "platform" from which publication could be inferred.

[15]

Conclusions as to the evidence of downloading

Sackar J in Newman v Whittington [2022] NSWSC 249 held that failure to provide any particulars warranted that part of the proceedings being struck out entirely. Where some particulars in terms of size of audience, leave was granted to replead by his Honour for the following reasons: "I will go to the first matter numbered 1, which is at [31]. This and the other matters in this category can be distinguished from those in the first two categories, as there is some evidence of the material being downloaded in specific jurisdictions. The first matter is said to have been a matter published by the defendant on a WordPress site named "Adam Whittington", who is the defendant. The article was removed on 17 February 2021. It was however first published on 27 December 2019. However, in para (b)(ii) and (iii) the matter is said to have been published to 24 persons by them indicating likes, five comments and 10 shares. There was however a total audience which was in the thousands. The plaintiff is unable to say where many of those persons were, except for those who she is able to identify as having "liked" it and that they were located within New South Wales. It seems to me that at least in relation to this publication, where she can specify the particular jurisdiction and that it was downloaded because it was "liked", I would grant leave to proceed with all of the matters which fall into a similar category."
However, those particulars would also need to include the dates of downloading, to avoid the difficulties which occurred in McDonald v Dods [2017] VSCA 129. This is of particular relevance in the present case because of the long period of delay between publication and commencement of proceedings.
The absence of even these particulars shrinks the pool of information down to nothing. The plaintiff cannot establish any evidence of downloading, even on the most generous interpretation of the "platform of facts" submission. The plaintiff's failure to provide any acceptable particulars of downloading in the statement of claim would be an additional reason why the statement of claim should be struck out and dismissed.

[16]

The remaining issues

The alternate ground of attack by the defendant on the concerns notice is that it fails to comply with s 12A(1)(a)(ii) in that it does not "specify" the location where the matter can be accessed. The only description of the site is the following rolled-up reference: "At about this time (July and August 2021) the conduct of our client in her role as Principal of the CWLA became a topic of a number of posts that you allowed to be posted on the Dubbo Wellington Thumbs Up Thumbs Down Facebook Page ("the Facebook page). You were at the same time and at all relevant times have been the moderator of the Facebook page. As moderator you are liable for the content of the Facebook page including comments by other persons. In any event, by this correspondence you are on notice that a number of persons have published defamatory material on the Facebook page about our client. That material is false and should be deleted. On 8 August 2021 an article was published regarding our client in the Sunday Telegraph newspaper. On 8 August 2021 and immediately after the publication of the Sunday Telegraph article, a thread was started on the Facebook page concerning the article and our client. At one point in the thread (and on 8 August 2021) you posted a comment (the matter complained of) that appears as Annexure A to this letter."
However, "annexure A" is a just cut-off screenshot of the comment of the defendant. There is no web address to the page, comment or thread.
Nobody reading this description of the matter complained of would understand the precise parameters of what the defendant is being sued for. It could be just her comment, it could be the Sunday Telegraph as well, or it could be the whole thread. Instead of providing a web address and a description of the matter complained of capable of identifying the precise parameters of publication, the concerns notice asks the defendant (and those who advise her) to go to a community page nearly three weeks after publication, find a thread on 8 August 2021 (without providing a link) and find a comment "at one point in the thread". As Facebook users know, posts and comments on Facebook do not necessarily appear in chronological order.
Mr Olson submits that the defendant ought to know as she was the moderator, and that a photocopy of the matter complained of was provided. Mr Smartt says that the copy is required for the purposes of s 12(1)(b) and cannot fulfil the separate requirement for s 12A(1)(a)(ii). However, even if I accept the very general description of the matter complained of. the references to a thread and to an article in the Sunday Telegraph are confusing. As the decision in Bazzi v Dutton demonstrated, whether an imputation is conveyed may depend upon whether the comment incorporates other material. The defendant, and anyone advising her, would be left in a state of uncertainty as to exactly what was (and what was not) being sued upon, which they were entitled to have cleared up by an answer to their request.
I consider that there has been a failure to specify the site and that this failure also renders the concerns notice invalid.
There is an additional reason for holding the concerns notice to be invalid. As is noted above, the defendant's solicitors had noticed this problem and made a request for further and better particulars as follows: "As required by Section 12A(1)(a)(ii) please provide us with the exact location on the internet where the matter in question can be addressed. If that is a webpage address, please provide us with the complete address and forward us a link to it. "
The defendant's solicitors also drew inadequacies to the photocopy attached, and sought confirmation as to whether it was the matter complained of.
The solicitors for the plaintiff replied as follows: "1. Your client has at relevant times been a moderator of the Facebook page known as Dubbo Wellington Thumbs Up Thumbs Down. Your client is well aware of the exact location on the Internet of the matter complained of. Seeking this type of particulars simply adds to the legal costs for your client."
As to the adequacy of the photocopy, the following was added: "6.The article in the Sunday Telegraph appears at: [redacted] 7. Again, on our instructions, the article in the Sunday Telegraph is well known to your client and it is merely seeking to delay this matter and to increase costs to seek it from us. Your client has also posted the article on her various local community Facebook pages. 8. We attach the complete thread on the Facebook page of which the matter complained of forms a part."
While attaching a copy of the complete thread went some way to providing an answer, it did not go far enough. The defendant was entitled to know what she was being sued for and in particular if it included the Sunday Telegraph article. Reasonable further particulars of this kind should have been given.
Accordingly, the concerns notice would also be invalid pursuant to s 12A (5) in that answers to a request for particulars on this issue were not provided.

[18]

The Dingle rule

Mr Smartt formally submitted to me that the Dingle rule was, if not wrong in law, then rendered irrelevant.
The Dingle rule was explained in Lachaux v Independent Print Ltd; Lachaux v Evening Standard Ltd [2019] 4 All ER 485 by Lord Sumption: "[22] It was submitted on behalf of the defendant newspapers that there were errors of principle in the judge's treatment of the facts. It was said that the injury to Mr Lachaux's reputation was at least in part the result of artificial legal rules, notably the 'repetition rule' which treats as defamatory the reporting, even without endorsement, of another person's statement; and the Dingle rule (see Associated Newspapers Ltd v Dingle [1962] 2 All ER 737, [1964] AC 371) that a defendant cannot rely in mitigation of damages on the fact that similar defamatory statements have been published about the same claimant by other persons. The argument was that while these rules of law are well established, they do not affect the factual inquiry required by s 1, namely whether the harm caused by a particular publication was serious. It was also said that the judge should not have taken account of the damage that Mr Lachaux's reputation might suffer in the eyes of people who might get to know him in future. Warby J must have rejected all of these submissions, and the Court of Appeal agreed with him. So do I. [23] The repetition rule is a rule governing the meaning of a statement and the availability of the defence of truth. A statement that someone else has made a defamatory statement about the claimant, although literally true, is treated as equivalent to a direct statement to the same effect. The policy is that 'repeating someone else's libellous statement is just as bad as making the statement directly': Lewis v Daily Telegraph Ltd, Lewis v Associated Newspapers Ltd [1963] 2 All ER 151, sub nom Rubber Improvement Ltd v Daily Telegraph Ltd, Rubber Improvement Ltd v Associated Newspapers Ltd [1964] AC 234(Lord Reid). The rule is nothing to do with the threshold of seriousness, and nothing in the 2013 Act can be taken as implicitly abolishing it or limiting its application. [24] The effect of the Dingle rule is to treat evidence of damage to the claimant's reputation done by earlier publications of the same matter as legally irrelevant to the question what damage was done by the particular publication complained of. It has been criticised, but it is well established. It has the pragmatic advantage of making it unnecessary to determine which of multiple publications of substantially the same statement occurred first, something which in the case of a newspaper would often be impossible to ascertain and might differ from one reader to the next. The practical impact of the Dingle rule in the modern law is limited by s 12 of the Defamation Act 1952, which allows a defendant to rely in mitigation of damage on certain recoveries or prospective recoveries from other parties for words to the same effect; and by the operation of the Civil Liability (Contribution) Act 1978. Section 1 of the Act is concerned with the threshold of harm and not with the measure or mitigation of general damage. But both raise a similar question of causation. It would be irrational to apply the Dingle rule in one context but not the other, and no one is inviting us to abrogate it. The judge was therefore entitled to apply it."
Attacks on Dingle in the United Kingdom have not been successful. In Lachaux v Independent Print Limited [2016] QB 402, Warby J stated at [83]: "83. The ratio of Dingle is binding on me, and it was not suggested otherwise. I have identified its ratio above. It would in my view be quite wrong for me to distinguish the decision by taking the narrow view of its ratio that Mr Price suggests [viz, that the decision simply relates to what material is admissible in mitigation of damages, and is not authoritative in the new legal environment in which a claimant must establish serious harm to reputation: see at [73]]. There is no principled distinction to be drawn between the admission of other articles in mitigation of damages, as was attempted unsuccessfully in Dingle in a legal environment where damage was presumed, and the attempt to introduce such articles to reduce or limit damages in the present case, in the changed environment following the 2013 Act."
Knowles J, in Wright v McCormack [2021] EWHC 2671 (QB) at [157], noted that Warby J had commented, in Lachaux v Independent Print Limited [2016] QB 402 at [84]) "84. Somewhat perversely, publishers, ordinarily straining to scoop one another with a news story, would have the opposite incentive when it came to responsibility for damage to reputation. There would be a contest not to be found to be first. And it is of course not just a question of timing. One would have to consider the extent of any overlap between readerships."
Warby J added (at [85]) that "the principled justifications for adhering to the rule in Dingle are at least as strong as they were at the time it was decided".
The correctness of the Dingle rule is clear. There are, however, ways of interpreting Dingle in the context of serious harm, as Steyn J noted in Banks v Cadwalladr [2022] EWHC 1417 (QB) at [51(x) and (xi)]: "x) Evidence of damage to the claimant's reputation done by earlier publications of the same matter is legally irrelevant to the question whether serious harm was caused, or is likely to be caused, by the publication complained of: Lachaux, Lord Sumption, [24] (accepting that Warby J was entitled to apply the Dingle rule in applying s.1 of the 2013 Act). However, in circumstances where a claimant "points to some hostile remark or other adverse event in his life as evidence of harm to reputation caused by the publication complained of, and there are other possible causes of the remark or event, in the form of other publications to the same or similar effect", the Dingle rule has no bearing in determining causation: Economou v De Freitas, Warby J, [19]. xi) The court should not "consider the issue of serious harm in blinkers". Directly relevant background context (see Burstein v Times Newspapers [2001] 1 WLR 579, May LJ, [47]) may be relevant to the assessment of whether the serious harm test is met: Umeyor v Innocent Ibe, Warby J, [77]-[78]."
Accordingly, I do not accept the submission that the Dingle ruling is no longer good law. The ruling should, however, be read in the context of serious harm issues of the kind identified by Warby J in Economou v De Freitas [2016] EWHC 1218 (QB) at [19].

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (20)

Cited By (2)