Woolf v Brandt [2022] NSWDC 623

District Court New South Wales

Medium Neutral Citation: Woolf v Brandt [2022] NSWDC 623 Hearing dates: 9 December 2022 Date of orders: 14 December 2022 Decision date: 14 December 2022 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Leave to the plaintiff to amend the statement of claim in 7 days as follows: (a) The plaintiff is to provide full particulars of downloading for the first matter complained of, including each of the persons' names, locations and dates of each download. (b) The plaintiff's application for leave nunc pro tunc pursuant to s 12B(3)(b) of the Defamation Act 2005 (NSW) to continue the claim for defamation for the second matter complained of in paragraphs 5 - 9 of the statement of claim is refused; these paragraphs of the statement of claim are struck out and dismissed. (2) Plaintiff pay defendant's costs with liberty to apply. (3) The parties are to bring in Short Minutes of Order for a further timetable in these proceedings. Catchwords: TORT - defamation - two Facebook posts made by the defendant, the first of which predated legislative amendments including the requirement to serve a notice under s 12A Defamation Act 2005 (NSW) - concerns notice served on defendant for both of these publications - plaintiff commences proceedings 12 days short of the 28-day concerns notice period - application by defendant for summary dismissal - application by plaintiff for leave to continue the proceedings in relation to the second matter complained of - whether leave to commence can be ordered nunc pro tunc - whether just and reasonable to grant leave - leave refused - application for summary dismissal of the first matter complained of for failure to provide appropriate particulars of publication and downloading - plaintiff granted leave to provide further particulars of the first matter complained of Legislation Cited: Defamation Act 2005 (NSW), ss 12A, 12B, 14, 46 Uniform Civil Procedure Rules 2005 (NSW), rr 10.1, 12.11, 14.30 Cases Cited: Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90 Cavanagh v State of New South Wales [2008] NSWCA 350 Commissioner of State Revenue v Artistic Pty Ltd [2008] WASCA 24 Cronau v Nelson [2018] NSWSC 1769 Georges v Georges [2022] NSWDC 558 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 Lee v Kim (2006) 68 NSWLR 433 Massarani v Kriz [2022] FCA 80 Millard v State of Victoria [2006] VSCA 29 Newman v Whittington [2022] NSWSC 249 Sims v Jooste (No 2) [2016] WASCA 83 Spautz v Kirby (1989) 21 NSWLR 27 Stoltenberg v Bolton [2020] NSWCA 45 Tolcher v Gordon [2005] NSWCA 135 Williams v Radio 2UE Sydney (Supreme Court of NSW, Levine J, 3 December 1993) Texts Cited: NSW Law Reform Commission, Report on Defamation (Report 11, 1971) Category: Procedural rulings Parties: Richard Farrell Woolf (plaintiff) Nicholas Brandt (defendant) Representation: Counsel: Mr N Olson (plaintiff) Mr T Smartt (defendant)