Authors of online posts have little control of just how far their posts will travel beyond their intended audience. Posting without forethought may give rise to unanticipated and unwanted consequences, as Associate Principal Caroline Callegari explains.

Introduction

We spend a lot of our time online these days – Facebook, Twitter, Instagram, Tik Tok, posting online reviews – the list goes on. But there is a danger in doing so. From behind the computer, it is easy to forget that what we do in the online world can have the same repercussions from a legal standpoint as what we say and do in person. Posting the wrong thing can get you in trouble and you do need to ensure that what you are putting out there is the truth, or at least a genuinely and reasonably held opinion.

Recent cases

In two recent defamation cases, the Courts had to consider defamatory posts that were posted online via the Google Review function and Facebook, respectively. These cases demonstrate the dangers of posting online and the potential legal ramifications.

In the first case, the Court had to consider whether an online review was defamatory and, if it was, whether it was excused by one of the legal defences to defamation. In a novel use of the defence, the Victorian Supreme Court of Appeal has held that Qualified Privilege can be a defence to an otherwise defamatory Google Review given that most people who look at there views are interested in the subject matter. It is not a simple defence to establish though, and so, it is not an excuse to post whatever you want about another without first doing your home work.

In the second case, the District Court of Townsville awarded damages for a serious and defamatory accusation made by one neighbour against another on a community Facebook page. This case highlights that it is not just famous people who can and do sue for defamation, and it is not just high-profile publishers that can be caught out and forced to pay significant damages if defamation can be established. The ordinary person can sue and be sued in the right circumstances and damages that are can be significant.

The learnings from these cases are that you should be careful what you post online and ensure that whatever you do post is reasonable, has a proper basis behind it, is posted without malice and represents a genuinely and reasonably held belief as to the truth of what you have posted.

A further summary of the cases can be found via the links below.

Lorbek v King [2023] VSCA 111 (12 May 2023)

Srecko and David Lorbek v Peter King [2022] VSC 218 (5 May 2022)

Rodgers & Anor v Gooding [2023] QDC 115 (23 June 2023)

A word of caution

Remember this – you are responsible for what you post online and can be sued for defamation. The key takeaways are:

always “think before you post”;
don’t post anything that you would not be willing to say to someone’s face;
don’t lie online – you will be caught;
“do your homework” before posting;
don’t post when angry but when you are calm and have considered whether what you are about to say is reasonable; and
be sure that what you say can be justified.

How Sharrock Pitman Legal can assist?

In reality, authors of an online posts have little control of just how far their posts will travel. Posting comments online may reach your intended audience. But there’s no stopping your post roving further afield and into the content stream of social media users the world over.

If your posts gets you into trouble or if you are a victim of malicious online content, act quickly to seek legal advice. While the damage may have been done, the longer activity remains unaddressed, a resolution will likely be hard to find.

If you believe that you have been defamed or if a defamation claim has been made against you, please to do not hesitate to contract our experienced Litigation team by email litigation@sharrockpitman.com.au or contact us on 1300 205 506.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.‍

Written by a member of our Legal Team

Caroline Callegari

For further information contact

Caroline Callegari

Caroline Callegari is an Associate Principal and leads our Disputes & Litigation team. She has an advisory and advocacy practice in the following areas: Commercial Litigation, corporate and personal disputes, debt recovery and, insolvency and bankruptcy matters. Caroline can be contacted on (03) 8561 3324.

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Authors of online posts have little control of just how far their posts will travel beyond their intended audience. Posting without forethought may give rise to unanticipated and unwanted consequences, as Associate Principal Caroline Callegari explains.

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

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Beware your actions online - What you post can come back to bite!

Authors of online posts have little control of just how far their posts will travel beyond their intended audience. Posting without forethought may give rise to unanticipated and unwanted consequences, as Associate Principal Caroline Callegari explains.

Introduction

Recent cases

A word of caution