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NSW man’s attempt to sue over ‘stalking’ Facebook post dismissed as bid to stay in contact with ex

<span>Photograph: mauritius images GmbH/Alamy</span>
Photograph: mauritius images GmbH/Alamy

A man described as a stalker in a Facebook post by his former partner has failed in a bid to sue for defamation, after a judge found his motivation for legal action was to continue contact with his ex.

The New South Wales court of appeal ruled on Tuesday that the man did not have leave to appeal against a district court decision that he could not sue his former partner, as the action was found to be an abuse of court process due to that motivation.

The man had unsuccessfully sought leave to appeal against the decision on five grounds, including that the ulterior purpose finding was erroneous.

In May 2021, his former partner posted the comment on the social media platform, where he had 52 Facebook friends at the time, the court heard

“Hey all, Just a heads up there’s a guy who’s been stalking me and has been obsessed with me,” the former partner said in the post, which included the man’s name.

“I have chosen to no longer associate with him and he is not taking it well, if you receive any text, message or email please let me know so I can report it to the authorities if needed, I’m sorry in advance for anything he sends you.”

The court heard that the man requested his former partner take the post down later that day, writing to him that the post “really isn’t nice nor fair, and is really sad hostile behaviour from you.

“I spoke to my therapist and he agrees my behaviour isn’t stalking,” he said. “Please don’t escalate things more than they already are.

“Take down the post. And simply talk to me in person, like you once asked me.”

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The following day, he said he had legal advice and that “sadly the Facebook message is illegal and considered defamation of character because it explicitly mentions me by name and accuses me of stalking which I have not done”.

“So if it isn’t removed in the next 24 hours I will be taking legal action against you which will probably involve an order against you which will impact your ability to get a job especially in the police force and army,” he said.

The post was removed several days later.

The man started legal action in 2022, and the court heard that he had only been able to prove that three people had seen the post.

In June, the primary judge dismissed the defamation case as an abuse of process because she found the applicant’s predominant purpose in maintaining the proceedings was to continue contact with the former partner and maintain pressure on him as part of a “recriminatory process following the break-up”.

This purpose had been revealed, the judge found, in material tendered to the court by the man which showed his “true intentions”.

“What all these documents sent to the court by the plaintiff make very clear is that the plaintiff is obsessed by his feelings for the defendant, and is using this litigation for that purpose rather than for vindication,” the judge said.

“In the unusual situation where the plaintiff has proffered this material himself, I am entitled to rely upon it as demonstrating his true intentions.

“I am satisfied from this material that the plaintiff is relying upon this litigation as a way of keeping pressure on the defendant, not only to remain in contact with him, but also to return to his former servile role.”

The man sought leave to appeal against this decision, arguing in part that even if the ulterior purpose finding was established, it was “insufficient to make the proceedings an abuse of process since the applicant was also pursuing a legitimate remedy”.

Justices Jeremy Kirk and Christine Adamson refused leave to appeal and ordered the man to pay his former partner’s costs.

“For the reasons given above, none of the proposed grounds of appeal raises a question of principle, a question of public importance or a reasonably clear injustice going beyond something which is merely arguable,” the court found.