Frawley v State of New South Wales [2006] NSWSC 248

New South Wales Supreme Court

CITATION : Frawley v State of New South Wales [2006] NSWSC 248

HEARING DATE(S) : 21 March 2006

JUDGMENT DATE : 6 April 2006

JUDGMENT OF : Simpson J

DECISION : Application for summary dismissal refused; application that the statement of claim be struck out refused; defendant to pay the plaintiff's costs of the proceedings.

CATCHWORDS : defamation - internet publication - liability of defendant for publication of another - accessible website within school on equipment supplied by and property of defendant - whether plaintiff has pleaded sufficient facts which if proved would allow a jury to determine whether defendant consented to the publication

LEGISLATION CITED : Uniform Civil Procedure Rules 2005 r13.4, r14.28

Bishop v State of NSW [2000] NSWSC 1042 Byrne v Deane [1937] 1 KB 818 CASES CITED : Hird v Wood 38 Sol. J 234 Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81 - 127 Webb v Bloch [1928] HCA; 41 CLR 331

PARTIES : Gregory Frawley - Plaintiff State of New South Wales - Defendant

FILE NUMBER(S) : SC 20243/05

COUNSEL : PM Sibtain - Plaintiff K Andronos - Defendant

SOLICITORS : MacMahon Associates Pty Ltd - Plaintiff IV Knight, Crown Solicitor - Defendant

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

SIMPSON J

Thursday 6 April 2006

20243/05 Gregory Frawley v State of New South Wales

JUDGMENT 1 HER HONOUR: By statement of claim filed on 22 July 2005 the plaintiff claims damages against the defendant (the State of NSW) in respect of an allegedly defamatory publication on the internet. It is the plaintiff's case that the defendant is responsible for the publication. 2 The defendant seeks orders for the summary dismissal of the proceedings, or, alternatively, that the statement of claim be struck out. It invokes UCPR r13.4 and r14.28. Those rules are respectively, relevantly in the following terms: "13.4 Frivolous and vexatious proceedings