O’Donnell v Lloyd [2020] NSWDC 787

O’Donnell v Lloyd [2020] NSWDC 787

The defendants' pleading objections failed because the statement of claim and the plaintiff's explanation sufficiently identified the publications and the basis of each defendant's alleged liability, including liability for Facebook comments encouraged or facilitated online. The slang in the publications did not require translation or special pleading because it was Internet argot capable of being understood in context and did not prevent pleaded ordinary meanings from arising. The defendants had not shown that omitted Facebook material materially altered meaning; if concerned, they could seek and preserve such material and later bring a strike-in application. The third defendant's...

Jurisdiction
Australia
Judgment Date
26 November 2020
Procedural Posture
Defamation Proceedings Concerning Facebook Publications / Procedural Applications Challenging Pleadings and Third Defendant's Application for Summary Dismissal
Outcome
All defendants' applications and challenges were dismissed; the plaintiff obtained costs of the applications.
Legal Topics
['online Publication' 'facebook Comments' 'pleading Matters Complained Of' 'slang and Natural and Ordinary Meaning' 'offer to Make Amends' 'apology' 'summary Dismissal' 'costs']
['tort' 'defamation' 'civil Procedure'] ['online Publication' 'facebook Comments' 'pleading Matters Complained Of' 'slang and Natural and Ordinary Meaning' 'offer to Make Amends' 'apology' 'summary Dismissal' 'costs']

Case Brief

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Procedural Posture

Defamation Proceedings Concerning Facebook Publications / Procedural Applications Challenging Pleadings and Third Defendant's Application for Summary Dismissal

Legal Issues

  1. 1 ['Whether the pleadings of liability for publication for the first to third matters complained of sufficiently identified the matter complained of in respect of each defendant.' 'Whether Internet slang in the matters complained of required extrinsic facts or a translation before imputations could be conveyed.' 'Whether the plaintiff failed to plead the whole of the matters complained of where Facebook material included indications such as "see more" or omitted prior comments.' "Whether the third defendant's apology published after an accepted offer to make amends could be included as part of the fifth matter complained of despite s 19 of the Defamation Act 2005 (NSW)." "Whether acceptance of the third defendant's offer to make amends or a settlement barred the proceedings against her or justified summary dismissal."]

Ratio Decidendi

The defendants' pleading objections failed because the statement of claim and the plaintiff's explanation sufficiently identified the publications and the basis of each defendant's alleged liability, including liability for Facebook comments encouraged or facilitated online. The slang in the publications did not require translation or special pleading because it was Internet argot capable of being understood in context and did not prevent pleaded ordinary meanings from arising. The defendants had not shown that omitted Facebook material materially altered meaning; if concerned, they could seek and preserve such material and later bring a strike-in application. The third defendant's...

Court Disposition

All defendants' applications and challenges were dismissed; the plaintiff obtained costs of the applications.

Orders

  • ["The defendants' challenges to the pleadings of the first to third publications in the Statement of Claim, on the basis that they do not sufficiently identify the matters complained of, are dismissed." "The defendants' challenges to the contents of the matters complained of as containing untranslatable slang and...