SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Bailey v Bottrill |
Citation: | [2019] ACTSC 45 |
Hearing Date: | 8 February 2019 |
DecisionDate: | 28 February 2019 |
Before: | McWilliam AsJ |
Decision: | See [58] |
Catchwords: | APPEAL – Application for leave to appeal from ACAT – whether ground of substance to be argued – where question of law arising as to correct test to be applied – leave granted DEFAMATION – Publication – whether hyperlink to defamatory material and an accompanying statement on a personal Facebook page amounted to publication – whether Tribunal applied correct test |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT) s 86 Civil Law (Wrongs) Act 2002 (ACT) ss 139I 139C Court Procedures Rules 2006 r 5072 |
Cases Cited: | Bottrill v Bailey (Civil Dispute) [2018] ACAT 45 Crookes v Newton [2011] 3 SCR 269 |
Texts cited: Parties: | Council of Attorneys-General, Review of Model Defamation Provisions, Discussion Paper (State of New South Wales Department of Justice, February 2019) Katrina Anne Bailey (Applicant) David Bottrill (Respondent) |
Representation: | Self-represented (Applicant) |
| Self-represented (Respondent) | |
File Number: | SCA 60 of 2018 |
Decision under appeal: | Tribunal: ACT Civil and Administrative Tribunal Before: Presidential member G McCarthy, Date of Decision: 30 November 2018 Case Title: Bailey v Bottrill (Appeal) [2018] ACAT 120 |
McWilliam AsJ:
The application before the Court is for leave to appeal from a decision of the ACT Civil and Administrative Tribunal (Tribunal) made on 30 November 2018, whereby the Tribunal partially allowed an appeal from a decision of a single member of the Tribunal.
The substance of the proceedings between the two parties is a claim in defamation arising from Ms Katrina Bailey, the applicant in this proceeding, placing a hyperlink on her Facebook page to a video on another website, YouTube. The Youtube video contained material defamatory of Mr Bottrill, the respondent to the present application. At first instance, Mr Bottrill was successful in obtaining an award of damages pursuant to s 139I of the Civil Law (Wrongs) Act 2002 (ACT) (the Act), in the sum of $18,750 with allowable costs of $130. On appeal within the Tribunal, that sum was reduced to $400 by way of nominal compensation only.
The successful appellant in the Tribunal below now seeks to challenge the payment of $400. The applicant stressed…
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- Bailey v Bottrill [2019] ACTSC 45
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- [2019] ACTSC 45
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CaseChat Overview and Summary
The legal issue before the court was whether the ground of appeal had substance and, specifically, whether the tribunal had correctly applied the test for publication in a defamation case. The court needed to determine if the tribunal had erred in law by considering the hyperlink and accompanying statement on the Facebook page as a publication of defamatory material. The appellant argued that the tribunal had misapplied the test for publication, while the respondent maintained that the tribunal's decision was correct.
The court found that there was a question of law of substance in the appeal, which related to the correct test for publication in the context of defamation. The court acknowledged that the application of the correct legal test by the tribunal was pivotal and that the issue warranted further examination. Consequently, the court granted the application for leave to appeal, emphasising the importance of ensuring that the appropriate legal principles were applied in defamation cases. The court's decision to grant leave to appeal was based on the need to clarify the correct test for publication in this context.
The final orders of the court were to grant leave to appeal, allowing the appellant to challenge the tribunal's decision on the correct test for publication. The court directed that the appeal be heard and determined on the merits, providing the appellant an opportunity to argue the substantive issues in front of a higher court. The tribunal's decision was thus subject to review, and the matter would proceed to a higher level of scrutiny.
Orders
Orders of the court
See [58]
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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