Social media is cropping up in the most unlikely of places.

And a court has ruled that videos posted publicly can constitute an offer of settlement to a party in litigation.

iStock 471567445The dispute in which the ruling arose relates to former military lawyer David McBride – who last November pleaded guilty to revealing national defence secrets to journalists – in a challenge to the will of his mother Patricia who died in November 2021.

Patricia was survived by David and his three siblings. Her husband Dr William McBride – the Sydney obstetrician who was the first to warn of the dangers of thalidomide – had died in 2018.

She made a will in 2014 appointing her daughter Louise – a Sydney tax barrister – as executor and beneficiary of the bulk of her estate, its major asset being a harbour-view apartment in Neutral Bay where Louise lives and carries on her legal practice.

David was left some personal items and a legacy of $10,000.

After Louise distributed the estate – but just within the 12 month time limit – David filed court proceedings seeking a larger share.

Louise answered the claim by contending David’s social video posts – saying he needed $10,000 from the estate to fund his whistleblower defence to the charge of leaking Australia’s Afghanistan war secrets and that maybe the estate could pay it – was a settlement offer that she had duly accepted.

Acting Justice Michael Elkaim noted that because David was awaiting trial on those criminal charges when the video was posted, he “was very much in the public eye” and “anxious to amass funds for his defence”.

Louise stumbled when asked to identify the specific words from the video that constituted the offer, arguing his intent was “discernable” from the context and content.

Against this contention, his honour noted – among other things – that the post made no mention of how legal costs were to be resolved as is the usual case for settlement offers.

The judge accepted that an offer can be inferred from conduct and can be made through social media as Louise had argued but rejected the submission that his video post was indeed an offer to settle the estate dispute proceedings.

Louise’s application for orders declaring that the matter had been settled, was dismissed.

The trial of the dispute will come before the NSW Supreme Court in the coming months, if not resolved earlier by a negotiated agreement.

This decision demonstrates once again that care should be taken when posting on social media, especially when a party to court proceedings.

McBride v McBride [2024] NSWSC 45 Elkaim AJ, 2 February 2024