Bailey v Bottrill

Case [2018] ACAT 120

ACT CIVIL & ADMINISTRATIVE TRIBUNAL



BAILEY v BOTTRILL (Appeal) [2018] ACAT 120

AA 20/2018 (XD 1023/2017)

Catchwords:                APPEAL – civil dispute – defamation – hyperlink from the appellant’s Facebook page to defamatory material on YouTube – whether the hyperlink caused the appellant to be a publisher of the defamatory material – whether the appellant was a publisher by a positive act or publisher by omission – quantum of damages, having regard to prior publication of the defamatory material – whether award of damages should be reduced pursuant to section 139I of the Civil Law (Wrongs) Act 2002 – appeal allowed

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 s 79

Civil Law (Wrongs) Act 2002 ss 139E, 139H, 139I

Cases cited:B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners – Units Plan 3324 [2013] ACTSC 219

Bottrill v Bailey [2018] ACAT 45
Bottrill v Cristian and Anor [2016] ACAT 7
Bottrill v Van Lieshout and Ors [2015] ACAT 26
Byrne v Deane [1937] 1 KB 818
Cristian v Bottrill [2016] ACAT 104
Crookes v Newton [2011] 3 SCR 269
Das v A & A Airconditioning [2011] ACAT 52
Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4
Google Inc v Duffy [2017] SASCFC 130
Hellar v Bianco (1952) 244 P.2d 757
Piscioneri v Brisciani [2015] ACTSC 106
Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127
Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350

Tribunal:                   Presidential Member G McCarthy

Senior Member G Lunney SC

Date of Orders:  30 November 2018

Date of Reasons for Decision:         30 November 2018

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          AA 20/2018

BETWEEN:

KATRINA BAILEY

Appellant

AND:

DAVID BOTTRILL

Respondent

TRIBUNAL:             Presidential Member G McCarthy

Senior Member G Lunney SC

DATE:30 November 2018

ORDER

The Tribunal orders that:

  1. The orders under appeal are set aside.

  2. The appellant pay the respondent compensation in the sum of $400.

………………………………..

Presidential Member G McCarthy

For and on behalf of the Appeal Tribunal

REASONS FOR DECISION

  1. This was an appeal from a decision of a Senior Member of the Tribunal given on 20 April 2018. The substance of the claim was that the appellant had defamed the respondent by providing a hyperlink on her Facebook page to a video on another website, YouTube, which contained defamatory material.

  2. The Senior Member found that the appellant had published the defamatory material and that it was defamatory of the respondent. She ordered the appellant to pay damages of $18,750 with allowable costs of $130. She also ordered the appellant to remove the hyperlink and to publish an apology on her Facebook page.

  3. The appeal was heard on 23 and 24 August 2018. The appellant presented her own case, as did the respondent.

The decision under appeal

  1. The Senior Member found that the respondent was a life member of an organisation known as the ‘Ordo Templi Orientis Australia’ (OTO). He was alerted by an acquaintance to a…

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AGLC
Bailey v Bottrill [2018] ACAT 120
Case
[2018] ACAT 120
Decision Date

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal involved an appeal by the appellant, Bailey, against a decision made by the respondent, Bottrill, in relation to an insurance claim. Bailey sought to challenge the respondent's decision to deny compensation for damages caused by a vehicle accident. The Tribunal was required to determine whether the decision was lawful, reasonable, and justified in the circumstances.

The primary legal issue before the Tribunal was whether the respondent's decision to deny compensation was lawful, reasonable, and justified. The Tribunal considered the evidence presented by both parties and whether the respondent's decision was based on an error of law or a failure to consider relevant material. The Tribunal also examined whether the decision was unreasonable in the sense that no reasonable person could have made it, or whether it was so unreasonable that no sensible person could have arrived at it.

In its decision, the Tribunal found that the respondent's decision was not based on an error of law or a failure to consider relevant material. However, the Tribunal determined that the decision was unreasonable in the sense that no reasonable person could have made it. The Tribunal found that the respondent had failed to adequately consider the evidence presented by the appellant and had placed undue weight on certain evidence while ignoring other relevant evidence. The Tribunal concluded that the decision was so unreasonable that no sensible person could have arrived at it and set aside the respondent's decision. The Tribunal ordered that the appellant be compensated in the sum of $400.

Orders

Orders of the court

The Tribunal orders that:

1.

The orders under appeal are set aside.

2.

The appellant pay the respondent compensation in the sum of $400.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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