Prouten v Buxton

THE COURT: In mid-April 2020, in the early days of the Covid lockdowns and social distancing rules, members of the Warners Bay community, south of Newcastle, were accustomed to use a walking and cycling (shared) path running from Warners Bay to Eleebana. On 18 April and 24 April 2020 the respondent, Anthony Buxton, and his partner (Lynne Williams) encountered the applicant whilst riding their bicycles along the path. The applicant was walking and, on the first occasion holding a twig with leaves, and on the second a somewhat larger stick. On the first occasion the respondent was, on his evidence, hit on the leg by the stick as he rode past the applicant; on her evidence, he ran his bicycle into the stick.

On the second occasion, the respondent saw the applicant ahead carrying the stick and avoided her. He stopped and a conversation took place. He then took a photograph of the applicant walking on the left side of a pathway with a white line, apparently down the middle, holding the stick so that it extended across the whole of the left side of the path.

On returning home, the respondent posted an account of the two incidents on his Facebook page, under the heading “The Warners Bay Vigilante”. The post was “shared” by a member of the Warners Bay People and Friends Facebook Group on that group’s Facebook page.

The respondent also reported the matter to the police, who charged the applicant with assault. (The applicant was acquitted.) The applicant commenced proceedings in defamation in the District Court. By a judgment delivered on 4 June 2024, Gibson DCJ dismissed the applicant’s proceeding, giving judgment for the respondent: Prouten v Buxton [2024] NSWDC 182.

Although the trial judge dismissed the proceedings, she assessed damages, on a contingent basis, in an amount of $15,000, on the assumption that, contrary to her finding, the defence of justification had failed in relation to all three imputations relied on by the applicant.

On the last available day following the judgment, the applicant filed a notice of appeal. No evidential basis was provided to satisfy the Court that the amount in issue was equal to or greater than the sum of $100,000: accordingly leave was required pursuant to s 127(2)(c) of the District Court Act 1973 (NSW). In the absence of any application for leave, the notice of appeal was dismissed: Prouten v Buxton [2024] NSWCA 262.

On 25 November 2024, the applicant filed a summons seeking leave to appeal. The notice was out of time, but no prejudice (beyond a possible moderate delay) was caused to the respondent and time should be extended. A draft notice of appeal identified 24 grounds. The matter was listed for hearing on 13 March 2025, as to the question of leave alone.

The principles to be applied in considering a grant of leave to appeal, where leave is required because the amount does not exceed a monetary threshold are well-established. A convenient recitation of the principles may be found in Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118. Excluding many references to the cases relied upon, Bell CJ stated:

The amount in issue in the present case is not necessarily defined by reference to the contingent assessment by the trial judge of $15,000. Where a defence of justification has been upheld on the facts, it is difficult to assess, on a counterfactual basis, whether the case is one in which the defendant has unreasonably persisted in maintaining his version of events and that the plaintiff has given a false account, considerations which may warrant an increase in damages above an award which would otherwise be appropriate. Nor is it easy to assess how one should assess damages which are primarily based on comments on social media posts. The trial judge noted that the plaintiff was particularly distressed by such comments but considered that “caution should be exercised when considering whether this feature warrants some kind of special loading for damages for social media publications”: at [226].

Although the applicant filed an affidavit on the leave application explaining the effect on her of the publication of the District Court judgment, the basis on which this further material could be admissible on appeal was not evident. It is not necessary to address the material before the trial judge in detail: suffice it to say that it is unlikely that, even had she been entirely successful, the plaintiff would have achieved an award close to $100,000. As the trial judge noted, the respondent only posted the material on his Facebook page, and deleted it two days later. The re-publication on the Warners Bay People and Friends Facebook Group page was only visible for about five hours before the posts and comments were removed by the site administrators: [147(d)].

Although the respondent put on no evidence as to the costs involved (and nor did the applicant) the statement in his written submissions that he was awarded his costs on an ordinary basis in an amount a little over $200,000 was not disputed. This is a case in which the costs of the litigation undoubtedly far exceed any possible award of damages. It is a case in which the need for finality plays a significant role.

As to the other considerations relevant to an application for leave, although the applicant’s summary of argument submitted that the trial judge had “made a myriad of errors of law”, neither the proposed grounds of appeal nor the submissions identified a single significant error of law. One proposed error of law was an asserted failure to “provide proper reasons for applying the proviso in s 31(6) of the [Defamation Act 2005 (NSW)]”. That provision deals with the circumstances in which an honest opinion may be found to be based on proper material when some of the material on which it is based is not proper material. The possibility of the application of that provision only arose if some of the matters relied on by way of justification were not correct. If the primary findings were correct, the defence based on honest opinion did not arise. Accordingly, the question of the sufficiency of the reasons for that contingent finding could not warrant a grant of leave to appeal. In any event it raised no issue of principle or general importance.

A second asserted error of law involved a failure to give a single meaning to the word “assaulted” in one of the three imputations. The word carried its ordinary meaning: there was no error of law, let alone an issue of principle. The attempt in oral submissions to identify issues of principle did not rise above a reiteration of the suggested errors, primarily in the factual findings made by the trial judge.

By way of contrast, the primary judge, in a lengthy judgment, articulated the relevant legal principles at each stage of her reasoning. No issue has been taken with respect to any of those statements of principle. The oral argument on the application focussed squarely on the significance of the matter to the applicant and the effects on her life, particularly following publication of the trial judgment. That may be accepted, but the focus of this Court on the question of injustice is necessarily on whether the defence of justification was wrongly upheld.

Of the 24 grounds of appeal, six related to the assessment of damages and one (or two), noted above, sought to raise an issue of law. The remaining 17 (or 16) grounds constituted an invitation to this Court to reconsider each of the dispositive factual findings made by the trial judge (and some which were of peripheral relevance) for perceived errors, most of which were barely arguable and many of which turned on findings of credibility. That invitation must be rejected. The need for a retrial, if the appeal were upheld, with no clear prospect of a different outcome, is an unattractive proposition.

It follows that leave to appeal should be refused.

The Court makes the following orders: