Kaplan & Anor v Go Daddy Group Inc & Ors [2006] NSWSC 250

New South Wales Supreme Court

CITATION : Kaplan & Anor v Go Daddy Group Inc & Ors [2006] NSWSC 250

HEARING DATE(S) : 21 March 2006

JUDGMENT DATE : 6 April 2006

JUDGMENT OF : Simpson J

DECISION : Application to strike out amended statement of claim refused.

CATCHWORDS : defamation - internet publication - first plaintiff claims in defamation - second plaintiff claims in injurious falsehood - application for order that amended statement of claim be struck out - whether plaintiff required to plead whole of publication in which matter complained of appears - balance of what was on website now lost - capacity of imputations pleaded to defame plaintiff - form of imputations

Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 CASES CITED : Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712

Adam Kaplan - 1st Plaintiff PARTIES : Huntermotive Pty Ltd trading as Hunter Holden - 2nd Plaintiff Trent Andrew English - 2nd Defendant

FILE NUMBER(S) : SC 20283/05

COUNSEL : T Molomby SC - Plaintiffs DR Sibtain - 2nd Defendant

SOLICITORS : Humphreyes & Feather - Plaintiffs Paul A Curtis & Co - 2nd Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

SIMPSON J

Thursday 6 April 2006

20283/05

Adam Kaplan & Anor v Go Daddy Group Inc & 2 Ors

JUDGMENT 1 HER HONOUR: By amended statement of claim, filed on 19 January 2006, the first plaintiff claims damages for defamation arising out of certain material alleged to have been published on the internet. The second plaintiff claims damages in injurious falsehood arising out of publication of the same material. 2 Initially, three defendants were named. However, it seems that the first and third named defendants are United States corporations and have not been served with originating process. I was advised that the plaintiffs do not intend to proceed against either. Only the second defendant is actively pursued by them. 3 The second defendant seeks an order that the amended statement of claim be struck out. The circumstances in which he does so require the outlining of certain background and history and are as follows. 4 Annexed to the amended statement of claim, in traditional manner, is the matter complained of, which contains the alleged defamatory publication. It is presented in two formats: there is what is plainly a printout of material downloaded from the internet, in a form that is familiar to the computer literate; and there a typescript of the same material. 5 The printout has a large headline, which reads: "Hunter Holden Sucks"