Understanding the Validity of Advanced Health Directives in Western Australia

Advanced health directives (AHDs) are legal documents that allow individuals to make decisions about their future medical treatment in the event they become unable to communicate their preferences.

AHDs play a significant role in preserving an individual's autonomy and respecting their wishes regarding medical treatment. In this blog post, I discuss the factors that may render an AHD invalid, relying on the recent Western Australian State Administrative Tribunal decision, JH [2022] WASAT 108.

This case provides valuable insight into the criteria that must be met for an AHD to be considered valid.

Factors Affecting the Validity of an AHD

1. Voluntariness

An AHD must be made voluntarily and free from any form of inducement or coercion.

In JH [2022] WASAT 108, the Tribunal found that there was no evidence to suggest that the AHD was made involuntarily or under any form of coercion.

The decision-makers found that Ms JH had discussed her AHD with her family members, and they respected her wishes.

This supports the conclusion that the AHD was made voluntarily.

2. Understanding the Nature of the Treatment Decision and Consequences

An AHD may be considered invalid if the maker did not understand the nature of the treatment decision or the consequences of making such a decision.

In JH [2022] WASAT 108, the Tribunal found that Ms JH understood the nature of the treatment decisions and the consequences of those decisions.

The AHD in question contained simple treatment decisions—refusing consent to be resuscitated or put on life support.

The Tribunal also considered the fact that Ms JH's general practitioner witnessed the AHD, which further supports the conclusion that she understood the nature and consequences of her treatment decisions.

Legislation

In Western Australia, the validity of an AHD is governed by the Guardianship and Administration Act 1990 (WA).

The Act sets out the criteria for creating a valid AHD, including requirements related to voluntariness, understanding the nature and consequences of treatment decisions, and proper witnessing of the document.

Key take-aways

• The case of JH [2022] WASAT 108 provides a useful example of the factors that the Western Australian State Administrative Tribunal considers when determining the validity of an AHD.

• When drafting an AHD, it is important to ensure that the document is made voluntarily and that the individual creating the AHD understands the nature and consequences of the treatment decisions they are making.

• Consulting a guardianship lawyer, like myself, can help ensure that your AHD is legally valid and reflects your wishes for future medical treatment. You can contact me here.

Appointment of an Administrator After a Court Compensation Trust Has Been Established

The appointment of an administrator after a court compensation trust has been established can be a complex process, as illustrated by the case of LS [2019] WASAT 97.

In this blog post, we will discuss the appointment of an administrator after a court compensation trust has been established, using the LS case as an example, while also referencing relevant legislation from the Guardianship and Administration Act 1990 (WA) (GA Act).

Background

In the LS case, a young man sustained a severe brain injury in a motor vehicle accident and later received a settlement of just over $8 million from a personal injuries claim, which was placed in a court compensation trust [1, 5].

A trustee company was appointed as administrator to manage the funds [2, 9]. This appointment was made under the GA Act [3].

The Need for an Administrator

The appointment of an administrator is essential when a person is deemed unable to make reasonable judgments relating to their estate due to mental disability [13].

In the LS case, the Tribunal found that LS was unable to make reasonable judgments relating to his estate because of his acquired brain injury, and that an administrator was needed [13].

This determination was made subject to the principles set out in s 4 of the GA Act, including the presumption of capacity and the best interests of the person [14].

The Cheyne Decision and Its Impact

The need for the appointment of an administrator in cases like LS's arose from the decision in Perpetual Trustee Company Ltd v Cheyne [2011] WASC 225 (Cheyne) [10].

The Cheyne decision established the following essential elements for such cases [59]:

1. A person is granted an award of damages arising from a personal injury claim.

2. A court compensation trust is created, and a trustee is appointed.

3. The trustee is given the power to apply funds for the maintenance, welfare, advancement, or benefit of the person.

4. If the person is assessed as having total and permanent disability, funds can be transferred to a superannuation fund for tax benefits.

5. Funds in the superannuation fund can be immediately used for the person's needs.

6. Funds can move between the court compensation trust and the superannuation fund.

The Cheyne decision allowed for a practical solution to protect the interests of a person under disability who is subject to a court compensation trust and stands to receive significant financial benefits from the application of those funds to superannuation [62].

Tribunal's Independent Jurisdiction

The Tribunal has independent jurisdiction under the GA Act to appoint an administrator for a person's estate [63].

It must independently find that the person satisfies the requirements of s 64(1) of the GA Act, subject to the principles set out in s 4 [63].

The Tribunal must also be prepared to revoke an existing administration order if the person no longer meets the statutory test for incapacity [65].

Key takeaways

• The appointment of an administrator after a court compensation trust has been established is crucial for protecting the interests of a person under disability.

• The Tribunal has independent jurisdiction under the GA Act to appoint an administrator and must ensure that the person meets the requirements for incapacity.

• The Cheyne decision provided a practical solution for these situations, offering a balance between the need for financial management and the best interests of the person under disability.

Cases referred to in this blog:

• LS [2019] WASAT 97

• Perpetual Trustee Company Ltd v Cheyne [2011] WASC 225

Innocent Dissemination: A Defence in Defamation Law

In defamation law, innocent dissemination serves as a defence for parties who unknowingly distribute defamatory material.

This defence is available to subordinate distributors who can prove that they neither knew nor ought reasonably to have known the material was defamatory and that their lack of knowledge was not due to negligence.

In this blog post, I explore the principles of innocent dissemination as a defence, referencing key cases that have shaped the understanding of this concept in defamation law.

Innocent Dissemination at as a confession and avoidance defence

Innocent dissemination is a common law defence in defamation cases.

This defence operates by acknowledging the facts that establish the legal elements of defamation, but then avoids liability by demonstrating a justification or excuse.

The defence of innocent dissemination is well-established and has been discussed in numerous cases, such as Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574.

Requirements for the Defence

To rely on the defence of innocent dissemination, a distributor must prove three things:

1. They were a subordinate distributor of the defamatory material.

2. They neither knew nor ought reasonably to have known that the material was defamatory.

3. Their lack of knowledge was not due to any negligence on their part.

Innocent Dissemination and Electronic Material

The defence of innocent dissemination has been extended to electronic material, as acknowledged in Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574. This means that distributors of electronic material may also rely on this defence if the circumstances permit.

Key Cases

In the recent decision of Duffy v Google LLC [2023] SASC 13, the defence of innocent dissemination was discussed in relation to the search engine giant, Google. This case relied on earlier decisions, such as Trkulja v Google LLC (2018) 263 CLR 149 and Google LLC v Defteros (2022) 403 ALR 434, which helped shape the understanding of innocent dissemination in the context of online platforms.

Key take-aways

• Innocent dissemination remains a crucial defence in defamation law, particularly as technology continues to advance and the distribution of electronic material becomes more prevalent.

• The defence allows subordinate distributors to avoid liability if they can prove that they neither knew nor ought reasonably to have known that the material they distributed was defamatory, and that their lack of knowledge was not due to negligence.

Cases mentioned in this blog:

• Duffy v Google LLC [2023] SASC 13

• Google LLC v Defteros (2022) 403 ALR 434

• Trkulja v Google LLC (2018) 263 CLR 149

• Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574

Defamation Law and the Defence of Triviality: An Analysis of Turtur AO v Connor [2021] SADC 127

In the world of defamation law, the defence of triviality has become an increasingly important topic as courts grapple with the question of whether or not certain instances of alleged defamation are too insignificant to warrant damages.

This blog post will provide a brief overview of the defence of triviality, with a focus on the case of Turtur AO v Connor [2021] SADC 127, and the relevant sections and cases that have contributed to the interpretation of this defence.

Section 33 of the Defamation Act 2005 (WA) establishes the defence of triviality, stating that it is a defence to the publication of defamatory matter if the defendant proves that the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm.

This section mirrors similar provisions found in other Defamation Acts in other states and territories.

However, there is conflicting authority on the meaning of the words used in these sections.

The conflict lies in the interpretation of the phrase "any harm."

In Jones v Sutton (2004) 61 NSWLR 614, the court held that "not likely to cause harm" did not mean more probable than not, but required the absence of a real chance or possibility of harm. The debate continues on whether "any harm" refers solely to "harm to reputation" or whether it extends to "injury to feelings."

This issue remains unresolved.

In Turtur AO v Connor [2021] SADC 127, the Applicant argued for the broader interpretation of "any harm," including injury to feelings, citing that damages for defamation were awarded "because of" injury to reputation, not "for" damage to reputation.

The Respondent, on the other hand, submitted that the appropriate interpretation was the narrower one adopted by the majority of the Queensland Court of Appeal in Smith v Lucht [2016] QCA 267, confining "any harm" to reputational harm and not extending it to loss of feelings.

Ultimately, whether the defence of triviality is successful will depend on the circumstances of the publication and the potential harm it may cause.

Factors such as the extent of the publication, the reactions of others to the publication, and any evidence of damage to reputation may all be considered when determining if the defence applies.

Key take-aways

• In conclusion, the defence of triviality remains an important aspect of defamation law, with courts continuing to wrestle with the appropriate interpretation of "any harm."

• The case of Turtur AO v Connor [2021] SADC 127 serves as a prime example of this ongoing debate, and it will be interesting to see how future cases contribute to the development of this defence.

Cases referenced in this blog post:

• Turtur AO v Connor [2021] SADC 127

• Smith v Lucht [2016] QCA 267

• Jones v Sutton (2004) 61 NSWLR 614

When Should a Certificate for Senior Counsel Rates Be Issued in Defamation Cases?

In defamation cases, the issue of whether a certificate should be issued by a judge to render the unsuccessful party liable for the successful party's costs at senior counsel rates is an important topic of discussion.

The case of Turtur Ao v Connor (No 2) [2021] SADC 151 provides valuable insights into the factors considered by the court when deciding whether to issue such a certificate.

The Test for Certifying an Action Fit for Senior Counsel

The test for determining whether an action should be certified fit for senior counsel was laid down by King CJ in Beasley v Marshall (No 3).

The test revolves around the question of whether a reasonable litigant, at the proper time for the delivery of briefs, would consider it necessary or at least prudent to brief Queen's Counsel / Senior Counsel for the adequate presentation of their case.

Factors for Issuing a Certificate

The court, in Turtur Ao v Connor (No 2), discussed several factors that might be relevant when deciding to certify an action fit for senior counsel. These factors include:

1. The difficulty of the case

2. The complexity of the issues of fact or law

3. Any demands which the case makes for the exercise of special professional skills

The court in Turtur Ao v Connor (No 2) ultimately declined to certify the action fit for senior counsel.

The judge found that the case was not of sufficient complexity to justify the briefing of senior counsel, as there were few witnesses called, and the issues were clearly defined.

Furthermore, the judge noted that the applicant's decision to retain senior counsel might have been prompted by his standing within the community and his concern at the publicity the action was likely to receive.

The court also considered that the respondent had not pleaded the defense of justification or contextual truth, which, if they had been pleaded, might have warranted the retention of senior counsel.

The judge acknowledged that the difference in the parties' respective positions before the trial was modest, and the costs incurred to retain senior counsel likely exceeded that difference.

Key take-aways

• In determining whether to issue a certificate for senior counsel rates, the court considers factors such as the difficulty and complexity of the case, as well as the need for special professional skills.

• It is crucial for legal practitioners to keep these factors in mind when deciding whether to engage senior counsel in a defamation case.

Cases mentioned in this blog post:

• Turtur Ao v Connor (No 2) [2021] SADC 151

• Beasley v Marshall (No 3) (1986) 41 SASR 321

When Should Leave Be Granted Under Section 87 of the Guardianship and Administration Act 1990 (WA)?

Guardianship and administration orders have a significant impact on the autonomy of a represented person.

This blog provides an overview of when leave should be granted under section 87 of the Guardianship and Administration Act 1990 (WA) (the GA Act) for a review of guardianship or administration orders, drawing on the principles discussed in RK [2022] WASAT 112.

Legislative Context

Under the GA Act, there are four ways in which a guardianship or administration order may be reviewed:

1. The Tribunal must review the order within a specified period not exceeding five years, in line with the principles of section 4 of the GA Act.

2. An aggrieved party may request a review by a Full Tribunal within 28 days, or with an extension granted by the Full Tribunal.

3. The Tribunal is required to review the order if the appointed guardian or administrator is unable to carry out their role for various reasons, including death, incapacity, or neglect.

4. The GA Act allows a represented person, a guardian, an administrator, the Public Advocate, or the Public Trustee to request a review at any time.

Section 87 of the GA Act also permits other persons to apply for a review at any time, but they must obtain the leave of the Tribunal to do so. The Tribunal may grant leave if it is satisfied that a review should be held due to a change of circumstances or for any other reason.

Reasons for the Requirement of Leave

As discussed in RK [2022] WASAT 112, there are three reasons for requiring leave for a review:

1. Guardianship and administration orders should not be displaced without good reason, as they may cause anxiety and disruption in the life of a represented person.

2. The Tribunal is required to fix a period for the review of any guardianship or administration order, and the order should not be reviewed in advance of the specified period unless there is a good reason to do so.

3. The Tribunal engages in an inquisitorial process when making orders and expects all relevant information to be provided at the hearing of the challenged decision.

Criteria for Granting Leave

To be granted leave under section 87 of the GA Act, applicants must fulfil the following conditions:

1. In cases where the applicant is relying on a change in circumstances, they are required to present new evidence that:

   a. Has not been previously brought to the attention of the Tribunal;

   b. Holds relevance to the appointment of a guardian or administrator; and

   c. Was either unknown or could not have been reasonably discovered by the applicant prior to the hearing of the challenged decision.

2. If the applicant is not relying on a change in circumstances or was not a party during the hearing of the challenged decision, they must provide an "other reason" justifying the review. For instance, the applicant could show that they were not notified of the hearing or that the challenged decision is no longer, or was never, in the best interests of the represented person.

Ultimately, the primary focus of the Tribunal when deciding whether to grant leave is the best interests of the person being represented.

Key take-aways

• Leave for a review of guardianship or administration orders under section 87 of the GA Act is only granted when the Tribunal is satisfied that there has been a change of circumstances or an "other reason" warranting the review.

• Understanding the legislative framework and the principles laid out in RK [2022] WASAT 112 is essential for navigating the process of seeking leave for review of these orders in Western Australia.

The Importance of Identification in Defamation Cases: A Legal Perspective

A key element in a defamation case is the identification of the person being defamed.

In this blog post, I explore the principles surrounding identification in defamation cases, drawing from the Australian decision in Burston v Hanson [2022] FCA 1235 and other relevant cases.

1. The Requirement of Identification

The publication in question must be “of and concerning” the person who sues for defamation (Plymouth Brethren (Exclusive Brethren) Christian Church v the Age Company Ltd [2018] NSWCA 95; 97 NSWLR 739).

However, it is not necessary for the person alleging defamation to be named in the publication.

It is sufficient if the words used would reasonably lead persons acquainted with the person who sues to believe that they are being referred to (David Syme & Co v Canavan [1918] HCA 50; 25 CLR 234).

2. The Perspective of a Layperson

When considering identification in defamation cases, it is crucial to adopt the perspective of a layperson. This approach acknowledges that laypeople may be more prone to implications and loose thinking than legal professionals (Plymouth Brethren at [68], [76]–[77]).

The trial judge, acting as the tribunal of fact, is responsible for determining if a lay reader, familiar with the person claiming defamation, would reasonably understand that the individual in question was the subject of the published material (Plymouth Brethren at [77]).

3. The Substance of Identification

In determining identification in defamation cases, the emphasis should be placed on the substance of the basis that leads to identification, steering clear of unnecessary technicalities and excessive analysis (Plymouth Brethren at [90]).

The publisher's intention, even when it comes to their ability to identify the subject, is not relevant since the assessment is based on an objective approach rather than a subjective one (Plymouth Brethren at [61], [82]–[92]).

4. Mistaken Identification and Subsequently Acquired Information

A reasonable reader may arrive at a mistaken identification, provided that it stems from the content of the published material being complained about (Plymouth Brethren at [93]).

The identification does not necessarily have to take place at the time of publication and can be the product of subsequently acquired extrinsic information (Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237; 91 NSWLR 485 at [76] –[78]).

5. The Onus of Proof

If the person being sued is not explicitly named in the publication, determining identification during the factual determination stage depends on the sufficiency of the basis for identification being asserted in the legal pleadings, as well as the adequacy of the evidence provided to support those pleadings.

The onus is on the person suing (David Syme at 238; Pedavoli at [46]).

Key take-aways

• In defamation cases, the identification of the person being defamed is a crucial element.

• As seen in the cases discussed above, the courts focus on the substance of the basis for identification and the perspective of a layperson when making decisions.

Cases referred to in this blog post:

• Burston v Hanson [2022] FCA 1235

• Plymouth Brethren (Exclusive Brethren) Christian Church v the Age Company Ltd [2018] NSWCA 95; 97 NSWLR 739

• Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845

• Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237; 91 NSWLR 485

• David Syme & Co v Canavan [1918] HCA 50; 25 CLR 234

Mitigation in Defamation: Understanding the Scope of Admissible Evidence

In defamation cases, the concept of mitigation refers to a legal strategy that aims to reduce the amount of damages awarded to the plaintiff.

In this blog post, I discuss the scope of evidence admissible at trial for mitigation in defamation cases.

This discussion is informed by the Western Australian court decision in Rayney v Reynolds (No 4) [2022] WASC 360.

The Necessity of Pleading Mitigation

To rely on mitigation as a defence in a defamation case, the defendant must specifically plead it. This is to ensure that both parties are aware of the arguments being raised and can prepare their cases accordingly, in line with the Rules of the Supreme Court 1971 (WA).

Failure to plead mitigation prevents a defendant from adducing evidence in support of their mitigation argument (Rayney v Reynolds (No 4) [2022] WASC 360, [36]).

Admissibility of Evidence in Defamation Cases

When it comes to the admissibility of evidence in defamation cases, courts consider various factors.

Section 34 of the Defamation Act requires the court to ensure there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

Evidence of the plaintiff's actual harm to their reputation is relevant and admissible (Rayney v Reynolds (No 4) [2022] WASC 360, [37]).

Evidence in reduction of damages can be admitted on two bases: first, if it demonstrates the plaintiff's bad reputation; and secondly, if it is properly before the court on some other issue (Rayney v Reynolds (No 4) [2022] WASC 360, [39]).

However, evidence of specific acts of misconduct is inadmissible (Scott v Sampson). The rationale behind this exclusionary rule is pragmatism and fairness.

The Court of Appeal in the United Kingdom held in Burstein v Times Newspapers Ltd that evidence of 'directly relevant background context' is admissible in mitigation of damage in a defamation action. In Turner v News Group Newspapers Ltd, the court provided further clarification on the admissibility of evidence, stating that:

1. The exclusionary rule in Scott has never been absolute.

2. A plaintiff cannot generally be subjected to a roving inquiry into aspects of their life unconnected with the subject matter of the alleged defamation.

3. Evidence of matters directly relevant to the alleged defamation can be considered when assessing damages.

4. Such evidence must relate to 'the relevant sector of the plaintiff's life', meaning the sector of the plaintiff's reputation with which the imputations relied on by the plaintiff were concerned.

Determining the Relevant Sector

To determine the relevant sector, the court must consider the defamatory material and its context, as well as the terms of the imputations pleaded (Rayney v Reynolds (No 4) [2022] WASC 360, [43]).

The extent of admissible evidence relating to the plaintiff's conduct is primarily limited to activities that can be causally connected to the publication of the libel of which the plaintiff complains (Gatley on Libel and Slander).

Key take-aways

• Understanding the scope of admissible evidence for mitigation in defamation cases is essential for both plaintiffs and defendants.

• The key takeaway is that evidence must be directly relevant to the alleged defamation and must pertain to the relevant sector of the plaintiff's life.

• This ensures that the court can accurately assess damages and strike a balance between the interests of both parties.

Cases mentioned in this blog post:

• Rayney v Reynolds (No 4) [2022] WASC 360

• Turner v News Group Newspapers Ltd [2006] 1 WLR 3469

• Burstein v Times Newspapers Ltd [2001] 1 WLR 579

• Scott v Sampson (1882) 8 QBD 491

Understanding the Relationship Between Damages and Relevant Harm in Defamation Cases

Defamation law aims to protect an individual's reputation from false and damaging statements made against them. A key aspect of defamation cases is the award of damages to compensate the plaintiff for the harm they have suffered as a result of the defamatory statement.

In this blog post, I explore the nature and extent of the relationship between damages and the relevant harm in defamation cases.

Three Purposes of Damages

In Cerutti v Crestside Pty Ltd [2014] QCA 33, the court outlined three purposes of awarding damages in defamation cases: reparation, consolation, and vindication.

Reparation compensates the plaintiff for harm to their personal and business reputation, while consolation addresses the personal distress and hurt caused by the publication.

Vindication serves to restore the plaintiff's reputation in the eyes of the public.

These three purposes often overlap in reality, with a single amount awarded to cover all three.

Harm Sustained by the Plaintiff

Section 34 of the Defamation Act 2005 (WA) requires that there be "an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded."

As explained in Roberts and McHugh J's remarks in discussing "harm" in s 46 of the Defamation Act 1974 (NSW), this includes matters such as damage to reputation, hurt feelings, distress, humiliation, and other emotional impacts.

Damages for the failure to apologize are also considered damages for relevant harm.

Harm to Reputation

As Windeyer J noted in Uren v John Fairfax & Sons Pty Ltd, a person defamed receives damages for being injured in their reputation, rather than for the damage to their reputation itself.

This principle has been followed and applied in various cases.

Proving Harm

In defamation cases, it is not necessary for the plaintiff to provide specific evidence of harm, such as witnesses stating that their opinion of the plaintiff has changed.

In McCarey v Associated Newspapers Ltd (No 2), the court noted that some harm to reputation could be inferred based on the nature of the defamation and the extent of publication.

Presumption of Damage

The common law of libel presumes damage when defamatory words are published.

In Bristow v Adams, Basten JA analyzed authorities supporting this presumption, which exists in Australian law.

Consolation and Vindication

Awards for consolation should provide solace for the injured feelings of the plaintiff, including hurt, anxiety, loss of self-esteem, and indignity.

Vindication, on the other hand, focuses on signaling to the public that the plaintiff's reputation has been restored.

Key take-aways

• The award of damages in defamation cases serves multiple purposes, addressing the harm suffered by the plaintiff and working to repair, console, and vindicate their reputation.

• Understanding the relationship between damages and the relevant harm is essential in ensuring that defamation awards appropriately compensate plaintiffs and restore their damaged reputations.

Cases mentioned in this blog post:

• Cerutti v Crestside Pty Ltd [2014] QCA 33

• Roberts v Prendergast [2013] QCA 47

• Bristow v Adams [2012] NSWCA 166

• Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 ; [1966] HCA 40

• McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86

Proving the Act of Publication for Defamatory Material on the Internet

The internet has revolutionised the way we communicate, making the sharing of information easier and faster than ever. However, this ease of sharing has also led to an increase in instances of defamation.

Defamation law in Western Australia has evolved to address these concerns, and proving the act of publication for defamatory material online has become a critical aspect of defamation cases.

In this blog post, I discuss the requirements for proving publication of defamatory material on the internet, with reference to the recent decision of Woolf v Brandt [2022] NSWDC 623.

Proving Publication

In the case of defamation claims relating to material posted online, Australian courts have generally adopted a consistent approach regarding the proof of publication.

According to Sims v Jooste (No 2) [2016] WASCA 83 at [19], a plaintiff must plead and prove that the material complained of had been downloaded and viewed by somebody.

However, the plaintiff does not necessarily need to provide particulars of the identity of the person or persons who downloaded the material.

Drawing Inferences from a Platform of Facts

The courts have acknowledged that an inference to the effect that the material complained of has been downloaded by somebody might be drawn from a combination of facts.

Such facts may include the number of 'hits' on the site where the allegedly defamatory material was posted and the period of time over which the material was posted on the internet (Sims v Jooste (No 2) [2016] WASCA 83 at [19]).

This approach of relying on a "platform of facts" has been endorsed in Stoltenberg v Bolton [2020] NSWCA 45 at [33].

Particulars of Downloading

In cases predating the internet, courts required plaintiffs to specify the names of persons to whom allegedly defamatory material was published (Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188; Williams v Radio 2UE Sydney, Supreme Court of New South Wales, Levine J, 3 December 1993).

However, with the advent of the computer age, providing particulars of downloading, such as the names of the persons who downloaded the material, has become general practice (Cronau v Nelson [2018] NSWSC 1769 at [11] –[14]; Stoltenberg v Bolton at [55] –[56]).

The court in Newman v Whittington [2022] NSWSC 249 emphasized that it is not sufficient for a plaintiff to merely assert that the publication being on the internet must have been seen by someone.

Key take-aways

• Proving the act of publication for defamatory material on the internet is a crucial element of defamation cases in Western Australia.

• To establish publication, a plaintiff must demonstrate that the material complained of has been downloaded and viewed by at least one person.

• Courts may draw inferences from a combination of facts, such as the number of hits on a site and the duration the material was available online.

• Providing particulars of downloading, such as the names of persons who downloaded the material, is now general practice.

Cases mentioned in this blog post:

1. Woolf v Brandt [2022] NSWDC 623

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

3. Stoltenberg v Bolton [2020] NSWCA 45

4. Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188

5. Williams v Radio 2UE Sydney, Supreme Court of New South Wales, Levine J, 3 December 1993

6. Cronau v Nelson [2018] NSWSC

7. Newman v Whittington [2022] NSWSC 249