Cronau v Nelson (No 2) [2018] NSWSC 1905

Cronau v Nelson (No 2) [2018] NSWSC 1905

Because the posts were dated between 4 December 2016 and 5 June 2017 and the amended pleading was served on 22 November 2018, any action based on publication on the posting dates was time barred absent an application under section 65 of the Civil Procedure Act 2005 (NSW). The plaintiff did not identify any person who downloaded and read each matter complained of within the year before 22 November 2018, and the asserted inference of such publication was unlikely. The plaintiff was therefore required to provide particulars of such a person for each matter complained of, failing which the relevant cause of action would be dismissed.

Jurisdiction
Australia
Judgment Date
30 November 2018
Procedural Posture
Defamation Proceedings / Procedural Ruling on Proposed Amended Statement of Claim and Whether Plaintiff Should Be Allowed to Re Plead Time Barred Publications
Outcome
Peremptory order made; proceedings stood over and costs reserved.
Legal Topics
['publication' 'facebook Comments' 'limitation Period' 'pleading Particulars' 'leave to Amend' 'dismissal of Cause of Action']
['defamation' 'civil Procedure'] ['publication' 'facebook Comments' 'limitation Period' 'pleading Particulars' 'leave to Amend' 'dismissal of Cause of Action']

Case Brief

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Procedural Posture

Defamation Proceedings / Procedural Ruling on Proposed Amended Statement of Claim and Whether Plaintiff Should Be Allowed to Re Plead Time Barred Publications

Legal Issues

  1. 1 ['Whether the plaintiff should be permitted to amend her pleading to plead Facebook posts as separate causes of action where the posts were made more than one year before the amended pleading was served.' 'Whether the plaintiff could rely on an inference that the matters complained of were downloaded and read within the year before 22 November 2018 without identifying any person who read them in that period.' 'Whether the causes of action should be dismissed unless the plaintiff provides particulars of publication within the limitation period.']

Ratio Decidendi

Because the posts were dated between 4 December 2016 and 5 June 2017 and the amended pleading was served on 22 November 2018, any action based on publication on the posting dates was time barred absent an application under section 65 of the Civil Procedure Act 2005 (NSW). The plaintiff did not identify any person who downloaded and read each matter complained of within the year before 22 November 2018, and the asserted inference of such publication was unlikely. The plaintiff was therefore required to provide particulars of such a person for each matter complained of, failing which the relevant cause of action would be dismissed.

Court Disposition

Peremptory order made; proceedings stood over and costs reserved.

Orders

  • ['Unless the plaintiff is able to provide particulars of any person to whom each matter complained of was published within the year before 22 November 2018, the cause of action on that publication be dismissed.' 'Proceedings stood over to 14 December 2018.' 'Costs reserved to 14 December 2018.']