O’Donnell v Lloyd [2020] NSWDC 787

District Court New South Wales

Medium Neutral Citation: O'Donnell v Lloyd [2020] NSWDC 787 Hearing dates: 19 November 2020 Date of orders: 19 November 2020 Decision date: 26 November 2020 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) 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. (2) The defendants' challenges to the contents of the matters complained of as containing untranslatable slang and expressions requiring translation (as opposed to a pleading of natural and ordinary meaning) is dismissed. (3) The defendants' challenge to the plaintiff's asserted failure to plead the whole matter complained of is dismissed (4) The third defendant's application for summary dismissal of the proceedings against her is dismissed. (5) The Amended Statement of Claim incorporating the revised text of the fifth matter complained of and any clarification of the contractual basis upon which the third matter complained of is brought against the third defendant is to be filed and served in 7 days. (6) The defendants are to file and serve Defences by Tuesday 2 February 2021. (7) Matter stood over to the Defamation List for directions at 9am Thursday 4 February 2021. (8) The defendants are to pay the plaintiff's costs of the applications. Catchwords: TORT – defamation - challenges to form and content of online publications – whether slang should be "translated" – whether an apology published online may be included as part of the matter complained of – whether apology for earlier publication extended to publications after the apology was published Legislation Cited: Civil Procedure Act 2005 (NSW) s 73 Defamation Act 2005 (NSW) ss 17, 19 Uniform Civil Procedure Rules r 15.19(1)(e) Cases Cited: Bass v TCN Channel 9 Pty Ltd (2003) 60 NSWLR 251 Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 Calabro v Zappia [2010] NSWDC 127 Dank v Cronulla-Sutherland District Rugby League Football Club Limited [2013] NSWSC 1101 Dix Gardener v Strathfield Municipal Council [2003] NSWSC 597 Drummoyne Municipal Council v Australian broadcasting Corporation (1990) 21 NSWLR 135 Dwyer v IPC Magazines Ltd (Supreme Court of New South Wales, 2 November 1990) Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102 Harrington v Lowe (1996) 190 CLR 311 Hayson v Nationwide News Pty Ltd [2019] FCA 81 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 JWR Productions Australia Pty Ltd v Duncan-Watt (No 2) [2020] FCA 236 Liberace v Daily Mirror Newspapers Limited, The Times, June 18, 1959 Pedavoli v Fairfax media publications [2014] NSWSC 1674 Pinnacle Runway Pty Ltd v Triangl Ltd [2019] FCA 1662 Quad Consulting Pty Ltd v David R Bleakley & Associates Pty Ltd (1990) 27 FCR 86 Sakr v Australian Broadcasting Corporation [2015] NSWDC 25 Shiels v Manny & Anor [2012] ACTCA 22 Spencer v The Commonwealth (2010) 241 CLR 118 Unilever plc v The Procter & Gamble Co. [1999] 2 All E R 691 Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50 White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 Young v Munro (Supreme Court of New South Wales, 12 May 1995) Category: Procedural and other rulings Parties: Plaintiff: Felix Malzard O'Donnell