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  • Unreported Judgment

Hodgetts v Nine Network Australia Pty Ltd

 

[2020] QSC 330

SUPREME COURT OF QUEENSLAND

CITATION:

Hodgetts v Nine Network Australia Pty Ltd & Ors [2020] QSC 330

PARTIES:

KYLE HODGETTS

(plaintiff)

v

NINE NETWORK AUSTRALIA PTY LTD

(first defendant)

and

LISA CUTHBERT

(second defendant)

and

GARY FIELD

(third defendant)

FILE NO/S:

4104 of 2017

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

11 September 2020

JUDGE:

Flanagan J

ORDERS:

1.                 Judgment for the first and third defendants against the plaintiff.

2.   The Court will hear the parties as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where the plaintiff sought damages for defamation in respect of online publications related to an episode of A Current Affair, including the republication of material by the second defendant – where the plaintiff had not supplied evidence to prove that the online material was downloaded by a third person within one year prior to the filing of the claim, being the period prescribed by the Limitation of Actions Act 1974 (Qld) – where the plaintiff had not supplied any evidence relating to the alleged republication – where the first defendant brought an application for summary judgment under r 293 of the Uniform Civil Procedure Rules 1999 (Qld) – whether an order for summary judgment should be made against the plaintiff

Limitation of Actions Act 1974 (Qld), s 10AA, s 32A

Uniform Civil Procedure Rules 1999 (Qld), r 293

Chan & Ors v Macarthur Minerals Ltd & Ors [2019] QSC 143, cited

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, cited

Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, cited

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, cited

Gray v Morris [2004] 2 Qd R 118, cited

GWC Property Group Pty Ltd v Higginson & Ors [2014] QSC 264, cited

Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231, cited

Sims v Jooste (No 2) [2016] WASCA 83, cited

COUNSEL:

P J McCafferty QC for the first defendant

E A Muir, solicitor, for the third defendant

K Hodgetts, self-represented, for the plaintiff

SOLICITORS:

Macpherson & Kelley Lawyers for the first defendant

Muir Lawyers for the third defendant

  1. [1]
    By claim and statement of claim filed 26 April 2017, the plaintiff seeks damages for defamation in the amount of $2,475,000,000 from the first, second and third defendants.  In August 2017, the plaintiff obtained default judgment in respect of the second defendant.[1]
  2. [2]
    Notices of intention to defend were filed by the first defendant on 7 June 2017 and by the third defendant on 18 August 2017. 
  3. [3]
    A Case Flow Intervention Notice issued on 6 August 2019.  On 31 July 2020, Bowskill J made directions in relation to the first defendant filing and serving any application for summary judgment or strikeout, including directions for the filing and serving of affidavits and submissions by the first and third defendants and the plaintiff.  In accordance with her Honour’s directions, the first defendant brings the present application for summary judgment pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).  The third defendant did not file a separate application for summary judgment but filed submissions on 6 August 2020.  The third defendant joins with the first defendant in its application for summary judgment and relies on the material filed by the first defendant in support of the application.  The third defendant submits that if the first defendant is successful in obtaining summary judgment, an order for judgment should be made against the plaintiff in favour of both the first and third defendants.
  4. [4]
    The alternative relief sought in the first defendant’s application is for various paragraphs of the amended statement of claim filed 6 July 2020 to be struck out pursuant to r 171 of the UCPR. 

Rule 293 of the UCPR

  1. [5]
    Rule 293 provides for summary judgment for a defendant:

“(1) A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.

  1. (2)
     If the court is satisfied –
  1. (a)
     the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and
  1. (b)
     there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the defendant against the plaintiff for all or part of the plaintiff’s claim and may make any other order the court considers appropriate.”

  1. [6]
    In GWC Property Group Pty Ltd v Higginson & Ors,[2] Dalton J observed, by reference to Deputy Commissioner of Taxation v Salcedo,[3] that “there is no gloss to be added to the words of the rule.  The question is whether there is any real prospect of the plaintiff succeeding on its claim.”
  2. [7]
    In Salcedo, Williams JA observed:[4]

“Summary judgment will not be obtained as a matter of course and the judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect of succeeding at a trial; if that is established then the matter must go to trial.  In my view, the observations on summary judgment made by the judges of the High Court in Fancourt v Mercantile Credits Ltd (1983) 154 C.L.R. 87 and 99 are not incompatible with that application of r. 292 and r. 293; what is important is that in following the broad principle laid down by their Honours the test as defined by the rules is applied.”

  1. [8]
    In Fancourt, the High Court (per curiam) stated, in the context of the predecessor to r 292, that “[t]he power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried”.[5]  In Gray v Morris,[6] Philip McMurdo J (as his Honour then was) considered the High Court’s cautionary statement in Fancourt to be “forceful and authoritative guidance” in the exercise of the power under r 293.  Chesterman J (as his Honour then was) made a similar observation in Gray v Morris:[7]

“The reasons which lie behind the caution expressed by the High Court and the Privy Council are still valid.  A plaintiff who claims to have a cause of action should not be prevented from prosecuting his claim unless it be obvious that he cannot succeed … The new rules, just as the old, are concerned with depriving a litigant of participation in the process which the law has always regarded as being the appropriate means of determining rights.  The deprivation should only occur in a clear case, as the High Court said.”

  1. [9]
    As observed by the Court in Chan & Ors v Macarthur Minerals Ltd & Ors:[8]

“The proposition which emerges from these cases is that the Court must exercise ‘great care’ if it exercises a discretion to terminate proceedings prior to trial, bearing in mind that the consequence is to deprive a party of the chance to prove his or her claim or defence at trial.”

  1. [10]
    The present proceedings constitute, in my view, a clear case where the discretion to order summary judgment should be exercised.

The plaintiff’s claim

  1. [11]
    On either 4 or 5 June 2014, the first defendant broadcast a segment titled “Kyle the Con” on its television program “A Current Affair”.  The broadcast included interviews with the second and third defendants.  The second and third defendants are sued for the words spoken by them in the course of these interviews as broadcast.  In addition, the second defendant is sued for allegedly republishing this matter on her website, the “Cuthbert website”, on or about 13 May 2016.  The plaintiff seeks to hold the first defendant liable in respect of the second defendant’s republication.  The plaintiff does not sue in respect of the television broadcast.  Rather, he relies on the first defendant uploading and publishing the television broadcast, which he refers to as “the Offending Publication”, to the Nine website.  This is evident from paragraphs 8, 8A and 8B of the amended statement of claim which was filed on 6 July 2020:

“8. At a time presently unknown, the first defendant uploaded and therefore published the OffendingPublication to the Nine Website at the URL http:///aca.ninemsn.com.au/article.aspx?id=8855691 where until at least approximately May 2016 it remained available for viewing on demand and free of charge by any member of the Australian public with access to the World Wide Web.

8A. The Offending Publication: -

  1. (a)
     remained accessible to the public, on the Nine Website until at least 27 April 2017;
  1. (b)
     was viewed by members of the public on the Nine Website, between 13 May 2016 and 27 April 2017;

Particulars

Particulars to be provided upon receipt of full and frank disclosure from the First Defendant.

8B. By virtue of the facts pleaded at paragraph 8A above, the Offending Publication was republished by the First Defendant between 13 May 2016 and 27 April 2017.

  1. [12]
    The first matter complained of is therefore the first defendant making the television broadcast available online which, on the evidence, occurred on or about 4 or 5 June 2014.[9]
  2. [13]
    The second matter complained of is pleaded in paragraphs 19 and 22 of the amended statement of claim as follows:

“19. On or about 5 June 2014, the First Defendant published a post (Additional Offending Publication’):-

a. on the A Current Affair Twitter page at the URL https://twitter.com/ACurrentAffair9; and

b. on the A Current Affair Facebook page.

  1.  The Additional Offending Publication:-
  1. (a)
    remained accessible to the public on the A Current Affair Twitter page as at 1 June 2020;
  1. (b)
     remained accessible to the public on the A Current Affair Facebook page as at 1 June 2020;
  1. (c)
     was viewed by members of the public on the A Current Affair twitter page, between 28 April 2016 and 27 April 2017; and
  1. (d)
     was viewed by members of the public on the A Current Affair Facebook page, between 28 April 2016 and 27 April 2017.

Particulars

Particulars to be provided upon receipt of full and frank disclosure from the First Defendant.”

  1. [14]
    Apart from the alleged republication by the second defendant of the first matter complained of on the Cuthbert website on or about 13 May 2016 (“the republication”),[10] the first and second matters complained of have their origin in publications made on or about 4 or 5 June 2014.  The plaintiff commenced the proceedings by claim and statement of claim on 26 April 2017, which is a little under three years from 4 or 5 June 2014.  The second matter complained of was first pleaded in the amended statement of claim filed on 6 July 2020, more than six years after the matters were posted to Twitter and allegedly to Facebook.  This was in circumstances where the plaintiff was aware A Current Affair intended to run a story concerning him.  On 1 June 2014, the plaintiff sent an email to [email protected] which in part stated:

“Your information is incorrect and I will pursue all legal avenues to recover damages if you publish untruths about me or my company.”[11]

The basis of the summary judgment application

  1. [15]
    The first defendant applies for summary judgment on the basis that the first and second matters complained of are statute barred.  In relation to the republication, summary judgement is sought on the basis that the plaintiff does not have any real prospect of succeeding on this claim at trial, as he will be unable to establish that the republication by the second defendant was the “natural and probable consequence of the freely accessible publication of [the first matter complained of] at the Nine Website”.[12]
  2. [16]
    Section 10AA of the Limitation of Actions Act 1974 (Qld) provides that an action for defamation “must not be brought after the end of 1 year from the date of the publication of the matter complained of”.  Section 32A permits a person claiming to have a cause of action for defamation to apply for an order extending the limitation period to a period of up to three years.  The plaintiff did not commence proceedings for either the first or second matters complained of within one year from 4 or 5 June 2014.  He has not applied for an extension of time pursuant to s 32A.  The first defendant submits that such an application “would inevitably be refused” as the plaintiff was aware of the publication in advance of its broadcast.[13]
  3. [17]
    Section 32A(2) provides:

“A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 10AA to a period of up to 3 years from the date of the publication.”

  1. [18]
    The application of this test was considered by Applegarth J in Schoch v Palmer:[14]

[12] The burden is on the applicant for an extension of time to point to circumstances which satisfy the Court that it was not reasonable for him or her to bring proceedings within the limitation period.  If that requirement is satisfied there is no discretion to refuse to grant an extension.

[13] Only in relatively unusual circumstances will the Court be satisfied that it was not reasonable to commence an action within the one year period.  However, a judicial gloss should not be put on the section.  An applicant must establish that it was ‘not reasonable’ in the circumstances to have commenced an action within one year from the date of publication, not that it would have been ‘positively unreasonable’ to have done so or to ‘demonstrate affirmatively that he would have acted unreasonably.’

[14] The statutory requirement is objective.  It is not enough for an applicant to prove a subjective belief that it was not reasonable to bring the proceeding.  Still, the phrase ‘not reasonable in the circumstances’ invites inquiry into, and makes relevant, the applicant’s reasons for not commencing proceedings within the limitation period.

[15] The circumstances that might give rise to an extension are left at large.  Obvious candidates would be cases where an applicant is unaware of the defamatory publication within the limitation period. Other circumstances would be where the applicant is not able to establish the extent of the defamation or is without the evidence necessary to establish his or her case during the year after the publication.  As Keane JA observed in Noonan v MacLennan:

‘In such cases it might be said that the commencement of proceedings and the incurring of costs would be so disproportionate to the prospects of success or to the quantum of damages which might have been expected to be recoverable as to render the commencement of proceedings unreasonable.’” (Footnotes omitted)

  1. [19]
    While I accept that the plaintiff would face considerable difficulties in meeting the relevant test under s 32A(2), he has not, in any event, applied for an extension nor foreshadowed such an application. 
  2. [20]
    By his pleading, the plaintiff seeks to bring the proceedings within the limitation period established by s 10AA by:
    1. (a)
      pleading that the first matter complained of remained accessible to the public on the Nine Website until at least 27 April 2017, and was viewed by members of the public between 13 May 2016 and 27 April 2017; and
    2. (b)
      pleading that the second matter complained of “remained accessible to the public” on the A Current Affair Facebook and Twitter pages “as at 1 June 2020” and was “viewed by members of the public … between 28 April 2016 and 27 April 2017”.
  3. [21]
    Even if it is accepted that a member of the public viewed the Facebook or Twitter pages on 27 April 2017, the plea in relation to the second matter complained of does not bring the cause of action within the 12-month limitation period as the amended statement of claim was not filed until 6 July 2020.  There is no pleaded allegation that the second matter complained of has been viewed by members of the public within one year prior to that matter being pleaded, that is 6 July 2019.
  4. [22]
    Publication on the internet is not established by the unilateral act on the part of a publisher in making material available online: it requires a third party to have comprehended that material.[15]  In Dow Jones & Co Inc v Gutnick,[16] the plurality observed:

“Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer.  Until then, no harm is done by it.  This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone.  It is not.  It is a bilateral act – in which the publisher makes it available and a third party has it available for his or her comprehension.”

  1. [23]
    The mere fact that material remains available on the internet within the limitation period is not sufficient.  A plaintiff is required to prove that the material has in fact been downloaded.[17]  In Sims v Jooste (No 2),[18] Martin CJ (with whom Buss JA and Mitchell J agreed) identified the basis for this requirement:

[17] Because of the vast number of internet sites, and the vast number of web pages accessible through those internet sites, in the absence of evidence it cannot be inferred that one or more persons has undertaken the steps required to identify and access any particular web page available through the internet merely from the fact that material has been posted on an internet site.  There is a real prospect that many of the billions of web pages accessible via the internet have never been seen by anyone other than the person who posted the page on an internet site.  This has been recognised in the cases to which I will now refer.

[18] In England, it has been consistently held that a plaintiff claiming to have been defamed in material posted on the internet cannot rely upon an inference of publication analogous to that customarily drawn in cases involving publication via the mass media of print or broadcast in order to establish that there has been substantial publication within the jurisdiction.  Rather, the plaintiff must plead and prove that the material of which complaint is made has been accessed and downloaded.  The English cases recognise however that publication, in the legal sense, may be established by pleading and proving a platform of facts from which an inference of download can properly be drawn.  However, such an inference will not be drawn from the mere fact that the material complained of has been posted on an internet site.

[19] With one apparently anomalous exception, the same approach has consistently been taken in Australia.  So, in Toben v Jones and MacDonald v Australian Broadcasting Corporation it was held that a plaintiff claiming to have been defamed by material posted on the internet must plead and prove facts which established that the material of which complaint was made had been downloaded and viewed by somebody, without necessarily having to provide particulars of the identity of the person or persons who downloaded the material.  The cases also establish that an inference to the effect that the material of which complaint is made has been downloaded by somebody might be drawn from a combination of facts, such as the number of ‘hits’ on the site on which the allegedly defamatory material was posted and the period of time over which the material was posted on the internet.  For example, in Scali v Scali screenshots of the defendant’s YouTube posts, which appeared to demonstrate the number of times the allegedly defamatory videos had been viewed as at the date of the screenshot, were relied upon as evidence of the fact that the videos of which complaint was made had been downloaded and comprehended by third parties.” (Footnotes omitted)

  1. [24]
    The first defendant submits that for the present case to be actionable, the plaintiff must prove, on evidence, that:
    1. (a)
      the first matter complained of was accessed and downloaded by a third person on or after 26 April 2016, being one year prior to filing the claim; and
    2. (b)
      the second matter complained of was accessed and downloaded by a third person on or after 6 July 2019, being one year prior to the date upon which the additional cause of action was sought to be included in the amended statement of claim.[19]

The first matter complained of

  1. [25]
    As to the first matter complained of, there are no particulars provided in relation to paragraph 8A of the amended statement of claim.  All that is stated is “[p]articulars to be provided upon receipt of full and frank disclosure from the First Defendant”.  The plaintiff has not provided any disclosure tending to prove publication within the limitation period.[20]
  2. [26]
    The first defendant relies on an affidavit of Kiah Officer.  Ms Officer is employed as Executive Counsel of the first defendant.  She has been employed as the legal adviser for the first defendant for approximately 14 years.  On about 2 March 2017, she made enquiries as to whether the “Kyle the Con” segment was still available online in digital format, or when it had been taken down from Channel Nine websites.  She is informed by Adam Duggan,[21] Current Affairs and News Producer, and believes that at the time the first matter complained of was published, videos posted on the A Current Affair website were automatically removed from publication after 12 months.  Ms Officer therefore believes that the first matter complained of was not available to be viewed by the public on a Channel Nine website after June 2015.[22]
  3. [27]
    Ms Officer also instructed Marc Dodd, the editor of nine.com.au, to obtain data analytics relating to the first matter complained of.  She is informed by Mr Dodd and believes that the first defendant’s internal data system is named “The Cube”.  The Cube uses Adobe Analytics to process, record and store data relating to digital publications on Channel Nine websites.  That system allows the first defendant to see how many people clicked on and viewed a video posted on a Channel Nine website, including the first matter complained of.  Ms Officer is informed by Mr Dodd and believes that he extracted data concerning the total number of times the first matter complained of was viewed.  Exhibit KO-1 to Ms Officer’s affidavit is a true and correct copy of the video data Mr Dodd extracted.  The video data shows that the first matter complained of was viewed 2,114 times from the time it was published on 5 June 2014 to the end of June 2015.  The video data shows that the first matter complained of was not viewed by any person after June 2015. 
  4. [28]
    The plaintiff, by his affidavit filed 28 August 2020, seeks to dispute Ms Officer’s evidence in this respect.  The plaintiff’s evidence is that on 10 August 2020, he viewed the A Current Affair website and “it clearly showed the website holds historic episodes for 4 years”.  The plaintiff attached a screenshot of the A Current Affair website taken on 10 August 2020 showing access to episodes as far back as four years to 2016.  The plaintiff therefore asserts that there is no factual evidence that the offending video was removed within 12 months of publication.  Further, as to Exhibit KO-1, the plaintiff asserts that the search parameters entered were only for the 12month period from June 2014 to June 2015.[23]
  5. [29]
    In her supplementary affidavit affirmed 8 September 2020, Ms Officer deposes to further enquiries of Mr Dodd and Rory Kinsella, Head of Product for nine.com.au, about the searches conducted to generate the data in Exhibit KO-1.  Ms Officer is informed by Mr Dodd and Mr Kinsella and believes that the parameters used to generate the data in Exhibit KO-1 capture all views of the first matter complained of on Channel Nine websites from June 2014 to 15 July 2020, which is the date the search was performed.  She is further informed by Mr Dodd and Mr Kinsella and believes that the reason there are no columns after June 2015 on Exhibit KO-1 is because the search returned zero views for the first matter complained of after June 2015 on any Channel Nine platform.[24]
  6. [30]
    The significant difficulty which the plaintiff faces in relation to the first matter complained of is that he is unable to particularise the allegations in paragraph 8A(a) and (b) of the amended statement of claim until he receives “full and frank disclosure” from the first defendant.  Based on the two affidavits of Ms Officer, however, that disclosure will reveal that the first matter complained of was automatically removed from publication 12 months after 4 or 5 June 2014.  It is not relevant that the plaintiff viewed A Current Affair website in August 2020, which now shows that Channel Nine websites hold historic episodes for four years.  Exhibit K-1 to the plaintiff’s affidavit, which is a screenshot taken by him on 10 August 2020 of the A Current Affair website, shows a different website (9now.com.au/a-current-affair?onm=nine.com.au) to the Nine website pleaded in paragraph 8 of the amended statement of claim (http://aca.ninemsn.com.au/article.aspx?id=8855691).  The fact that the present A Current Affair website holds historic episodes for four years as at 10 August 2020, does not contradict Ms Officer’s evidence that the material published on 4 or 5 June 2014 was automatically removed from the then A Current Affair website after 12 months.
  7. [31]
    The plaintiff also relies on the fact that in May 2016, the second defendant posted on her website a link to the first matter complained of on the A Current Affair website.  Exhibit K-2 to the plaintiff’s affidavit is a screenshot of the second defendant’s website, which includes what the plaintiff asserts is a hyperlink to the website pleaded in paragraph 8 of the amended statement of claim containing the first matter complained of.  The plaintiff submits Ms Officer’s evidence that the first matter complained of was automatically removed from publication after 12 months cannot be accepted.  The plaintiff invites the Court to infer that as he viewed the hyperlink on the second defendant’s website on or about 17 May 2016, the first matter complained of was still available on the Nine website as at 17 May 2016:

“So what I’m trying to do from the table is just give you a technical explanation which – like, I’m an expert in the field but I’m assuming it’s common knowledge and I’m just trying to point as what was said earlier, that ‘you can just cut and paste it’, but he didn’t say where the origin was from – I was saying for it to be cut and paste onto this website, to find that link had to be up there.

Because if you go and look for – if you go and search for that website now on A Current Affair and you go and look for that link without the video being there, the link is not there – it doesn’t exist.  So to get that link, the video has to be there.  So that’s the argument that I’m making, which is a complete contradiction to their KO-1 which proves links within the 12 month period but does not prove it wasn’t there after the 12 month period.  All we have is the hearsay from the affidavit of – here, Officer saying that, ‘they put in the search parameters further’.”[25]

  1. [32]
    The inference asserted by the plaintiff is not one that can be drawn.  The screenshot, which is Exhibit K-2 to the plaintiff’s affidavit, does not establish that the A Current Affair web address displayed on the Cuthbert website as at 17 May 2016 was a hyperlink.  Even if it was a hyperlink, there is no evidence as to how or when the second defendant accessed the publication constituting the first matter complained of.  Ms Officer’s evidence is that through her own experience, she is aware that videos posted on one website may be “embedded” in another website.  Embedding involves a process whereby a third party website is licensed to republish a video posted on a parent website in a manner that links back to the parent website.  If a video is embedded in this way, the parent website maintains control over the video.  If the parent website edits or removes the video, then the same changes will automatically occur on the third party website.[26]  Ms Officer is informed by Mr Dodd and believes that the player used to publish videos on the first defendant’s websites in 2014 and 2015 did not have an embed feature.  She is further informed by Mr Dodd that if any person or website republished the first matter complained of, they could not do so through an embed feature.  Rather, they must have downloaded a copy of the video using their own technology and published it themselves.[27] 
  2. [33]
    The inference sought to be drawn by the plaintiff from Exhibit K-2, being the screenshot of the Cuthbert website, does not contradict the unequivocal evidence of Ms Officer that the first matter complained of was automatically removed from the A Current Affair website after 12 months.
  3. [34]
    There is, in my view, no need for a trial in relation to the first matter complained of, as the plaintiff has no real prospect of establishing that the publication on the Nine Website on 4 or 5 June 2014 was accessed and downloaded by a third person on or after 26 April 2016.  The plaintiff has no real prospect of proving that the cause of action in relation to the first matter complained of was brought with the limitation period established by s 10AA.

The second matter complained of

  1. [35]
    As to the second matter complained of, there is no pleaded allegation that it has been viewed by members of the public in the year prior to the delivery of the amended statement of claim on 6 July 2020.  The plaintiff has not pleaded publication in the relevant time period.  The difficulty faced by the plaintiff in establishing publication is, however, more than just a mere pleading point.
  2. [36]
    On 5 June 2014, A Current Affair promoted the first matter complained of by publishing a tweet on the A Current Affair Twitter account.  The tweet is Exhibit COB2 to the affidavit of Mr O’Beirne.  Exhibit COB-2 is a copy of the tweet as extracted on 26 July 2017,[28] and shows that for a period of over three years from 5 June 2014 when the tweet was first published to the date of the extract, being 26 July 2017, the tweet received one like. 
  3. [37]
    I have set out at [13] above paragraphs 19 and 22 of the amended statement of claim.  Attachment 2 to the amended statement of claim purports to reproduce “The Additional Offending Publication” which is pleaded in paragraphs 19(a) and (b) to constitute both the Twitter page and the Facebook page.  Attachment 2, however, only reproduces the Twitter page.  Ms Officer’s evidence is that she has been unable to conduct any fruitful searches concerning the alleged Facebook post.  She is not aware of any such post and has been unable to identify any post of the kind alleged by the plaintiff.[29]  On 30 July 2020, Mr O’Beirne, a lawyer for the first defendant, conducted searches through his Facebook account for the alleged Facebook post.  He could not locate the alleged Facebook post.  He also conducted a search of the A Current Affair Facebook page for posts containing the following terms: “Kyle”, “Kyle the con” and “Hodgetts”.  He also conducted searches of the A Current Affair Facebook page for posts in 2014 containing those terms and other terms including “meet”, “step ahead” and “coming after him”.  These are some of the terms which appear in Attachment 2 to the amended statement of claim.  The searches did not locate the alleged Facebook post.  Mr O’Beirne concludes from the searches conducted by him that if the alleged Facebook post was available, it was deleted.
  4. [38]
    As to the Twitter page, which is attached to the amended statement of claim, Ms Officer has conducted enquiries to ascertain whether any data analytics exist within the control of the first defendant or any relevant Channel Nine entity more generally, regarding when the tweet was viewed.  She is informed by Patrick Effeney, Head of Social Media for the first defendant, that the first defendant has no data whatsoever of this kind concerning the tweet.  Ms Officer is further informed by Mr Effeney and believes that based on their knowledge of how people access the first defendant’s material on twitter, the chances of a member of the public clicking on the tweet after 2014 are “remote”.[30] 
  5. [39]
    According to Mr O’Beirne, there are four ways a tweet can come to the attention of a Twitter user:

“32. First, if a Twitter user follows a Twitter account such as the A Current Affair account, then all Tweets posted by that account will come into the user’s feed at or about the time the Tweet is published.

  1. Second, a person may scroll through all Tweets published by a Twitter account, such as the A Current Affair account.  This allows a user to view all past and present Tweets.  However, if a Tweet has been deleted by the account then that Tweet will no longer appear.
  2. Third, a Twitter user can share a Tweet by “re-tweeting” it.  This will cause the Tweet to appear in the Twitter feed of the person re-tweeting.  This is likely to share the Tweet to a wider audience because it will appear in the Twitter feed of people who [follow] the original account, and people who follow the re-tweeter’s account.
  3. Fourth, when a person conducts an internet search, such as a Google search, a Tweet may appear in the search results.  The person can then click on a link which takes them directly to the tweet.  A similar search function exists within Twitter itself.”[31]
  1. [40]
    Mr O’Beirne states that according to the copy of the tweet discovered by the plaintiff, as at 26 July 2017 the tweet had not been retweeted by any person, no person had posted a comment on the tweet, and the tweet had only received one “like”.[32]
  2. [41]
    The plaintiff’s evidence is that in June of 2020, he did a Google search for “Kyle the con”.  A screenshot of the search results is Exhibit K-3 to the plaintiff’s affidavit.  That exhibit actually shows that the Google search conducted by the plaintiff was not “Kyle the con” but rather “kylethecon twitter”.  Exhibit K-3 shows that that search returned a result which reads:

“twitter.com > acurrentaffair9 > status▼

A Current Affair on Twitter: “NOW: Meet Kyle the con who …

June 5, 2014 – NOW: Meet Kyle the con who always seems to be one step ahead of the law …

Now his victims are coming after him #ACA9pic.twitter.com/…”[33]

  1. [42]
    The Google search conducted by the plaintiff in June of 2020 cannot establish, as a matter of fact, that the tweet was accessed and downloaded by a third person on or after 6 July 2019, being one year prior to the date upon which the second matter complained of was first pleaded.
  2. [43]
    On an analysis of the plaintiff’s affidavit and his oral submissions to the Court in relation to the second matter complained of, it is not at all clear whether he seeks damages for defamation arising from the Twitter and alleged Facebook posts.  The plaintiff states in his affidavit:

“22. It is quite reasonable to expect that a person would publish an article and then tell someone either by word of mouth, social media or other means that the article was published.

  1. Promoting a published article should be considered the natural process of publishing and should not have to be pleaded as separate acts.
  2. A Google search for social media platforms returns over 75 separate social media sites.
  3. It would be unreasonable to expect a plaintiff to establish multiple social media accounts to explore all social medial platforms to find any promotions that may promote an offending publication that would then be added to their statement of claim.
  4. After the first defendant eventually removed the A Current Affair episode from the internet, the Twitter and Facebook posts remained published.
  5. It would also be unreasonable to expect the plaintiff to commence new proceedings to remove the Twitter and Facebook posts as a new and separate course [sic] of action.”
  1. [44]
    Paragraph 27 of the plaintiff’s affidavit particularly suggests that the plaintiff, in amending the statement of claim to add the second matter complained of, did not seek to add a separate cause of action.  This is borne out by the plaintiff’s oral submissions:

“My main issue here is, for example, they’re talking about the Tweet as being a Tweet and it’s only had one like.  I understand that a Tweet, once it goes up – you can’t prove publication with a Tweet, I’m not interested in that part.

What I’m trying to prove and my whole point to this is through Google.  The Facebook, I don’t care about the Facebook because Facebook – Google doesn’t access Facebook.  If I Google your name it – the Facebook post will not turn up.  Tweet on the other hand, it turns up.  Now, the issue’s been made that I Tweet – I searched “Kyle the Con Tweet”, correct?  And the Tweet came up.  Now, if you go back to K2 of the website, the image “Kyle the Con” is embedded in the Tweet image.”[34]

  1. [45]
    The plaintiff’s concern appears to be that when he googles words to the effect of “Kyle the Con” or “Kyle the con twitter”, the A Current Affair episode Twitter post is returned as part of that search.  Neither this concern, nor any part of the plaintiff’s evidence, suggests that the plaintiff has any real prospect at trial of establishing publication of the second matter complained of after 6 July 2019 (assuming that the plaintiff wishes to pursue the second matter complained of as a separate cause of action).  There is no need for a trial in relation to this matter as the plaintiff has no real prospect of establishing that the second matter complained of was accessed and downloaded by a third person on or after 6 July 2019 so as to bring any cause of action in relation to the second matter complained of within the limitation period.

The republication

  1. [46]
    The first defendant submits that the plaintiff has not disclosed any material relating to the republication of the first matter complained of by the second defendant on the Cuthbert website.[35]  It is therefore unknown, according to the first defendant, how this material was in fact presented on the second defendant’s website.  Ms Officer, having made enquiries, is not aware of any person or entity (which would include the second defendant) being provided with a licence, or being otherwise authorised to appropriate the first matter complained of.[36]  It is Ms Officer’s evidence that if a third party published the first matter complained of, that person most likely made an unauthorised copy of the publication and published it without the first defendant’s consent.[37]
  2. [47]
    On 17 May 2016, the plaintiff encountered the second defendant’s website through a Google search of his name.  He clicked on the hyperlink published on the second defendant’s website and his browser was directed to the A Current Affair website where he viewed the offending publication.[38]  The plaintiff has not exhibited a screenshot of this Google search. 
  3. [48]
    The principles concerning liability for republication were explained by McColl JA (Giles and Campbell JJA agreeing) in Habib v Radio 2UE Sydney Pty Ltd:[39]

“121 Liability as a principal for publication of defamatory material depends upon participation: see Gatley (at [6.16]).  All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggests illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected: Webb v Block (at 364) per Isaacs J.  Such persons are regarded as joint tortfeasors: Webb v Bloch (at 359) per Knox CJ …

122 However, prima facie, an original publisher is not liable for the voluntary republication of its defamatory statement by a third party over which it has no control, or for the damage caused: Ward v Weeks (1830) 7 Bing 211.  The voluntary act of the third party publisher breaks the chain of causation: McManus v Beckham [2002] 4 All ER 497; (2002) 1 WLR 2982 (at [15]-[26]) per Waller LJ.

123 Nevertheless, an original publisher of defamatory matter may be liable for its republication where the republication was the natural and probable result of the original publication: Speight v Gosnay (at 232) per Lopes LJ; Ainsworth v Burden [2003] NSWCA 90; (2003) 56 NSWLR 620 (at [5]) per Handley JA (Hodgson JA and Grove J agreeing).  In those circumstances, a plaintiff is entitled to complain [not] only of the original publication, but to seek also to recover as a consequence of that original publication, the damage the plaintiff says was suffered by reason of its repetition or republication where the defendant is responsible for that repetition or republication: Cutler v McPhail [1962] 2 QB 292 (at 298-299) per Salmon J; Sims v Wran [1984] 1 NSWLR 317 (at 320) per Hunt J (as his Honour then was); Ainsworth v Burden (at [5]).

124 The question whether the original publisher is liable for the voluntary republication of its defamatory statement or for the damage its republication caused is the same causation question which arises in ‘any other tort case where it is sought to make the defendant liable for harm which is directly attributable to the voluntary act of a third person’: Gatley (at [6.36]); A M Dugdale, M Jones and M Simpson, Clerk & Lindsell on Torts, 19th ed (2006) Sweet & Maxwell (London) (at [23–217]–[23–219]).

125 Thus, because a plaintiff seeking to recover damages from an original publisher of defamatory mater is seeking to establish that the republication of that matter by a third party was the foreseeable consequence of its original publication and did not break the chain of causation so as to constitute a novus actus interveniens, it is appropriate when pleading such a case to plead that the original publication ‘caused’ the republication …”

  1. [49]
    There is no evidence that the first defendant, as the original publisher, exercised any control over the second defendant.  The plaintiff has no real prospect of establishing at trial that the republication was the natural and probable consequence of the publishing by the first defendant of the first matter complained of.  In the circumstances of the present case, the republication would be in breach of the first defendant’s copyright by the second defendant, who was independent of the first defendant.[40]

Disposition

  1. [50]
    The Court orders:
  1.  Judgment for the first and third defendants against the plaintiff.
  1.  The Court will hear the parties as to costs.

Footnotes

[1]  CD 14.

[2]  [2014] QSC 264, [2].

[3]  [2005] 2 Qd R 232.

[4]Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, [17].

[5]Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99.

[6]  [2004] 2 Qd R 118, [46].

[7]  [2004] 2 Qd R 118, [11].

[8]  [2019] QSC 143.

[9]  Affidavit of Kiah Officer filed 31 July 2020, paras 4 and 5.

[10]  Amended Statement of Claim, paras 13 and 14.

[11]  Affidavit of Conor Edward Austin O’Beirne filed 31 July 2020, Exhibit COB-1.

[12]  Amended Statement of Claim, para 14.

[13]  Submissions of First Defendant/Applicant, para 6.

[14]  [2016] QSC 147, [12]-[15].

[15]  Submissions of First Defendant/Applicant, para 12.

[16]  (2002) 210 CLR 575, [26].

[17]  Submissions of First Defendant/Applicant, para 13 citing Inserve Australia Ltd v Kinane [2018] QCA 116, [48] (Philippides JA, Fraser & Gotterson JJA agreeing).

[18]  [2016] WASCA 83, [17]-[19].

[19]  Submissions of First Defendant/Applicant, para 16.

[20]  Submissions of First Defendant/Applicant, para 17.

[21]  On a summary judgment application, evidence on information and belief is permissible: r 295 UCPR.

[22]  Affidavit of Kiah Officer filed 31 July 2020, paras 6-8.

[23]  Affidavit of Kyle Hodgetts filed 28 August 2020, paras 2-6.

[24]  Supplementary Affidavit of Kiah Officer filed 9 September 2020, paras 5-8.

[25]  T 1-48, lines 7-19.

[26]  Affidavit of Kiah Officer filed 31 July 2020, para 15.

[27]  Affidavit of Kiah Officer filed 31 July 2020, paras 16 and 17.

[28]  Affidavit of Conor Edward Austin O’Beirne filed 31 July 2020, Exhibit COB-2.

[29]  Affidavit of Kiah Officer filed 31 July 2020, paragraph 26.

[30]  Affidavit of Kiah Officer filed 31 July 2020, paras 23-25.

[31]  Affidavit of Conor Edward Austin O’Beirne filed 31 July 2020, paras 32-35.

[32]  Affidavit of Conor Edward Austin O’Beirne filed 31 July 2020, para 39.

[33]  Affidavit of Kyle Hodgetts filed 28 August 2020 paras 18 and 19 and Exhibit K-3.

[34]  T 1-49, lines 7-18.

[35]  Submissions of First Defendant/Applicant, para 22.

[36]  Affidavit of Kiah Officer filed 31 July 2020, para 19.

[37]  Affidavit of Kiah Officer filed 31 July 2020, para 20.

[38]  Affidavit of Kyle Hodgetts filed 28 August 2020, paras 13 and 14.

[39]  [2009] NSWCA 231, [121]-[125].

[40]  Submissions of First Defendant/Applicant citing Cummings v Fairfax Digital Australia & New Zealand Pty Ltd [2017] NSWSC 657, [50]-[51] (Rothman J) upheld on appeal in Cummings v Fairfax Digital Australia and New Zealand Pty Ltd (2018) 99 NSWLR 173, [195], (McColl JA, Beazley JA and Simpson AJA – on the point – agreeing).

Close

Editorial Notes

  • Published Case Name:

    Hodgetts v Nine Network Australia Pty Ltd & Ors

  • Shortened Case Name:

    Hodgetts v Nine Network Australia Pty Ltd

  • MNC:

    [2020] QSC 330

  • Court:

    QSC

  • Judge(s):

    Flanagan J

  • Date:

    04 Nov 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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