Supreme Court New South Wales Medium Neutral Citation: Cronau v Nelson (No 3) [2018] NSWSC 2019 Hearing dates: 14 December 2018 Decision date: 14 December 2018 Jurisdiction: Common Law Before: McCallum J Decision: I direct the plaintiff to provide an affidavit sworn by each of the persons nominated in the letter from O'Brien Criminal and Civil Solicitors dated 13 December 2018 explaining the circumstances in which he or she read each matter complained of, such affidavit to be kept confidential to the defendant's legal advisors until further order and to be served by 30 January 2019. I stand proceedings over to 22 February 2019 at 9.30 am for directions. Catchwords: DEFAMATION – publication – threshold of seriousness – proportionality – plaintiff suing on Facebook posts – where claim as originally pleaded rested on unlikely inference that posts were downloaded by at least one reader – plaintiff subsequently providing particulars asserting that the same three people read each of six matters complained of on the same date – appropriateness of requiring affidavits explaining circumstances in which that occurred Legislation Cited: Civil Procedure Act, s 65 Cases Cited: Bleyer v Google [2014] NSWSC 897 Cronau v Nelson (No 2) [2018] NSWSC 1905 Kostov v Nationwide News Pty Ltd [2018] NSWSC 858 Category: Procedural and other rulings Parties: Christine Cronau (plaintiff) Elizabeth Nelson (defendant) Representation: Counsel: A Munro (plaintiff) H Elachkar Solicitors: O'Brien Criminal and Civil Solicitors (plaintiff) Slade Waterhouse Lawyers (defendant) File Number(s): 2018/42850 Publication restriction: None Judgment ex tempore – revised 1. HER HONOUR: In these proceedings, I gave judgment on 30 November 2018 determining objections to the form of the plaintiff's pleading: Cronau v Nelson (No 2) [2018] NSWSC 1905. The vice of the pleading was that the causes of action rested on an inference that some person had read the comments attributed to the defendant on a Facebook page, which in turn rested on the unlikelihood that some reader had scrolled through the many, many more recent posts to find the small number of comments attributed to the defendant. If no person had read the publications, the action was statute-barred. 2. In those circumstances, I made a peremptory order that, unless the plaintiff was able to provide particulars of any person to whom each matter complained of was published within the one-year period before 22 November 2018, the cause of action on that publication would stand dismissed. I stood the proceedings over to today for resolution of that issue. 3. Late yesterday, the plaintiff's solicitors provided a letter identifying, in respect of each of six matters complained of, the same three people as having read each of the matters complained of on the same date. In those circumstances, the defendant accepts that the peremptory order did not bite but raises a concern as to the circumstances in which those people might have read the matter complained of. 4. In those circumstances, the defendant seeks an order that the plaintiff provide an affidavit from each of the nominated readers specifying the circumstances in which each of them read the matters complained of. That information will be relevant to potentially two issues at least: first, the question whether the proceedings meet the threshold of seriousness (which I held to be a requirement of defamation actions in this jurisdiction in my decision in Kostov v Nationwide News Pty Ltd [2018] NSWSC 858. 5. Secondly, it will be relevant to the question of proportionality in accordance with the principles I considered in Bleyer v Google [2014] NSWSC 897. For those reasons, I consider it appropriate to make a direction in those terms. 6. Separately the plaintiff has now indicated that, contrary to the position that obtained on 30 November 2018 when I made the earlier ruling, the plaintiff would now wish to make an application under s 65 of the Civil Procedure Act concerning the time from which the most recent amendment be effective. That application is not to proceed today. Orders 1. I direct the plaintiff to provide an affidavit sworn by each of the persons nominated in the letter from O'Brien Criminal and Civil Solicitors dated 13 December 2018 explaining the circumstances in which he or she read each matter complained of, such affidavit to be kept confidential to the defendant's legal advisors until further order and to be served by 30 January 2019. 2. I stand proceedings over to 22 February 2019 at 9.30 am for directions. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 February 2019