Burrows v Houda [2020] NSWDC 485

Burrows v Houda [2020] NSWDC 485

Applying the generous capacity test, the second matter complained of, including the zipper-mouth face emoji and the surrounding Twitter replies, was reasonably capable of conveying the challenged imputations. The emoji could imply that the defendant knew the answer to what had happened to the plaintiff but was reluctant or unable to say. In context, the later material about Judge Wilson, ASIC bans, false affidavits, prosecution, the words "tick tock", the clock emoji and further emphatic emoji and comments could lead the ordinary reasonable social media reader to infer that the plaintiff had suffered an adverse disciplinary outcome, was implicated professionally in the affidavits and...

Jurisdiction
Australia
Judgment Date
27 August 2020
Procedural Posture
Civil Defamation Proceedings / Ruling on Defendant's Objections to Pleaded Imputations and Capacity Under Uniform Civil Procedure Rules 2005 R 28.2
Outcome
Imputations 6(b) and 10(b) were struck out with leave to replead; imputations 10(c), 10(d) and 10(e) were held reasonably capable of being conveyed; the plaintiff was granted leave to file an amended statement of claim; the defendant was ordered to pay the plaintiff's costs of the application.
Legal Topics
['capacity of Imputations' 'social Media Publication' 'twitter Posts' 'emoji and Defamatory Meaning' 'zipper Mouth Face Emoji' 'leave to Replead Imputations' 'particulars of Publication']
['tort' 'defamation' 'civil Procedure'] ['capacity of Imputations' 'social Media Publication' 'twitter Posts' 'emoji and Defamatory Meaning' 'zipper Mouth Face Emoji' 'leave to Replead Imputations' 'particulars of Publication']

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Procedural Posture

Civil Defamation Proceedings / Ruling on Defendant's Objections to Pleaded Imputations and Capacity Under Uniform Civil Procedure Rules 2005 R 28.2

Legal Issues

  1. 1 ['Whether imputations 10(c), 10(d) and 10(e) pleaded from the second Twitter matter complained of were reasonably capable of being conveyed.' 'Whether the zipper-mouth face emoji and surrounding Twitter replies were capable of contributing to defamatory meanings about disciplinary action, professional misconduct and criminal conduct.' 'Whether imputations 6(b) and 10(b) should be struck out with leave to replead.']

Ratio Decidendi

Applying the generous capacity test, the second matter complained of, including the zipper-mouth face emoji and the surrounding Twitter replies, was reasonably capable of conveying the challenged imputations. The emoji could imply that the defendant knew the answer to what had happened to the plaintiff but was reluctant or unable to say. In context, the later material about Judge Wilson, ASIC bans, false affidavits, prosecution, the words "tick tock", the clock emoji and further emphatic emoji and comments could lead the ordinary reasonable social media reader to infer that the plaintiff had suffered an adverse disciplinary outcome, was implicated professionally in the affidavits and...

Court Disposition

Imputations 6(b) and 10(b) were struck out with leave to replead; imputations 10(c), 10(d) and 10(e) were held reasonably capable of being conveyed; the plaintiff was granted leave to file an amended statement of claim; the defendant was ordered to pay the plaintiff's costs of the application.

Orders

  • ['Imputations 6(b) and (10(b) struck out with leave to replead as "the plaintiff so misconducted herself during a court case that the judge recommended that she be referred for possible disciplinary action".' 'Pursuant to Uniform Civil Procedure Rules r 28.2, imputations 10(c), (d) and (e) are reasonably capable of...