PHOTO: Facebook post

Court declines to dismiss defamation case against Anthony Zadravic, who said failure to punctuate social media post was trivial.

A real estate agent’s failure to use an apostrophe in a Facebook post could prove costly after a New South Wales court declined to dismiss a defamation case against him on the basis it was trivial.

Late on 22 October last year, Anthony Zadravic posted that another real estate agent was “selling multi million $ (sic) homes in Pearl Beach but can’t pay his employees superannuation”.

“Shame on you Stuart!!! 2 yrs and still waiting!!!” the post read.

Tasmanian premier Peter Gutwein
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There is a suggestion the NSW Central Coast realtor meant to have an apostrophe after the word employee and was only referring to his experience.

He says the post, written about 10.30pm, was deleted within 12 hours and wasn’t capable of defaming the people as claimed.

The legal costs and court resources required to determine the claim would also be out of all proportion to the interest at stake, he claimed.

But the NSW district court last week turned down his application to dismiss, pointing to the seriousness of the claims in the post and finding the alleged defamatory meanings reasonably capable of being conveyed.

Judge Judith Gibson said the difficulty for Zadravic was the use of employees in the plural as it suggests “a systematic pattern of conduct”.

“To fail to pay one employee’s superannuation entitlement might be seen as unfortunate; to fail to pay some or all of them looks deliberate,” she said on Thursday.

She heard the estimated cost of the trial was $160,000, rising to $250,000 if senior counsel was retained.

But it wasn’t relevant that those costs far exceeded the potential award of damages.

“I agree this is a matter for concern but, unlike other jurisdictions such as the United Kingdom, Australian legislators have shied away from any inquiries or research projects into defamation costs in this country, so this is unlikely to change at any stage in the future,” Gibson said.

The court noted two recent Queensland decisions in which Facebook posts cost their authors dearly.

In 2020, a Brisbane vet and his company were awarded $25,000 after a former client repeatedly claimed on Facebook and other websites the vet had grossly overcharged her.

A year earlier, the court awarded $15,000 over claims on Facebook posts and comments that an aged care nurse was sacked for alcohol use.