Bailey v Bottrill (Appeal)

Case [2021] ACAT 103

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BAILEY v BOTTRILL (Appeal) [2021] ACAT 103

AA 1/2021 (XD 562/2020)

Catchwords:               APPEAL – civil dispute – previous litigation for defamation – concerns notice – claim for negligence and breach of duty of care – claim arising from previous litigation – reagitating issues in the previous proceedings – preclusionary principles – res judicata –– claim estoppel – issue estoppel – Anshun estoppel – abuse of process – general and specific findings in previous litigation – alleged breaches of privacy – alleged bullying and intimidation – sweeping and unsubstantiated allegations of surveillance, falsifying evidence and documentation, and lying – appeal dismissed

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 7, 32, 79, 82

Civil Law (Wrongs) Act 2002 Ch 4
Court Procedures Act 2004 s 5A

Subordinate

Legislation cited:        ACT Civil and Administrative Tribunal Procedures Rules 2020 r 91

Cases cited:ACN 120 452 744 Pty Ltd v Newham Business Brokers Pty Ltd & Anor [2021] ACAT 37

Bailey v Bottrill [2018] ACAT 120
Bailey v Bottrill [2019] ACTSC 45
Bailey v Bottrill (No 2) [2019] ACTSC 167
Barlow & Bergin [2012] ACAT 17
Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591
Blair v Curran [1939] HCA 23
Bottrill v Bailey [2018] ACAT 45
B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners – Units Plan 3324 [2013] ACTSC 219
Clayton v Bant [2020] HCA 44
Donoghue v Stevenson [1932] AC 562
Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4
Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275
Hammer Waste Pty Ltd v QBE Mercantile Mutual Ltd [2002] NSWSC 1006
In the Matter of AB [2018] ACAT 18
Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1
Kalabakas v Chubb Insurance Company of Australia Ltd [2015] VSC 705
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45
Secure Parking(WA) Pty Ltd v Wilson [2012] WASCA 230
Tam v Du [2019] ACAT 94
Timbercorp Finance Pty Ltd (in liquidation) v Collins [2016] HCA 44
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28
UBS AG v Tyne [2018] HCA 45
Walton v Gardiner [1993] HCA 77
Wright v The Owners – Units Plan No 14 [2021] ACAT 77

List of

Texts/Papers cited:    James O’Hara, ‘Litigation Preclusion: To What Extent Could (or Should) a Litigant Be Barred by Prior Litigation to Which It Was Not a Party?’ (2018) 46(3) Australian Bar Review 286

Stuart Cobbett, ‘The Sacred Cows of Henderson v Henderson and Anshun Estoppel — Abuse of Process by Another Name?’ (2021) 50 Australian Bar Review 100

Tribunal:Acting Presidential Member Prof. P Spender

Date of Orders:  27 October 2021

Date of Reasons for Decision:      27 October 2021

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 1/2021

BETWEEN:

KATRINA BAILEY

Appellant

AND:

DAVID BOTTRILL

Respondent

APPEAL TRIBUNAL:      Acting Presidential Member Prof. P Spender

DATE:27 October 2021

ORDER

The Tribunal orders that:

  1. The appeal is…

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Bailey v Bottrill (Appeal) [2021] ACAT 103
Case
[2021] ACAT 103
Decision Date

CaseChat Overview and Summary

In the case of Bailey v Bottrill (Appeal), the parties involved were Ms Bailey and Mr Bottrill, with the dispute centering on defamation claims and allegations of privacy breaches. The case was heard by the Australian Capital Territory Civil and Administrative Tribunal (ACAT). Ms Bailey had previously been found liable for defamation by the original tribunal, which was subsequently upheld by the defamation appeal tribunal. The matter was further escalated to the Supreme Court, where the defamation appeal tribunal's decision was largely upheld, but the damages were reduced. Ms Bailey then appealed to the Supreme Court on various grounds, including the publication of the defamatory content on her Facebook page, which the Supreme Court dismissed.

The primary legal issues before the court involved the application of preclusionary doctrines, particularly res judicata, claim estoppel, and issue estoppel, to prevent the relitigation of issues already decided in previous proceedings. The court also needed to address the applicability of these doctrines in the context of defamation proceedings and the circumstances surrounding the publication of the defamatory material on Ms Bailey's Facebook page. The court was tasked with determining whether the preclusionary rules operated to bar Ms Bailey from challenging the earlier findings regarding the publication and the defamatory content.

The court, in its reasoning, referenced the High Court's decision in Clayton v Bant, which clarified the operation of preclusionary rules, emphasizing the focus on substance rather than form. The court noted that the doctrines serve to ensure finality in litigation and fairness to litigants by avoiding duplicative proceedings. In this case, the court found that Ms Bailey's allegations of privacy breaches and the tampering of evidence were not sufficient to overturn the earlier findings of the tribunal and the Supreme Court regarding the publication of the defamatory material. The court concluded that there was no credible evidence to support Ms Bailey's claims, and the preclusionary doctrines operated to bar her from challenging the earlier findings.

The tribunal ultimately dismissed the appeal, finding that the preclusionary doctrines applied to prevent the relitigation of issues already determined in the previous proceedings. The tribunal upheld the earlier findings of the original defamation tribunal and the Supreme Court regarding the publication of the defamatory content and the defamation damages awarded to Mr Bottrill.

Orders

Orders of the court

The Tribunal orders that:

1.

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The original tribunal in the defamation proceedings in April 2018 dealt with the allegation that Mr Bottrill had obtained Ms Bailey’s residential address which was a breach of privacy and security.[59] The tribunal on that occasion noted the allegation but did not further deal with it. It was not necessary for the tribunal to do so in order to make the findings that the cause of action in defamation had been proved and Mr Bottrill was entitled to compensation accordingly. The concerns notice forms part of the necessary preparation for a defamation proceeding and this was discussed by the original defamation tribunal.[60] No adverse comment was made about potential breaches of privacy that have been alleged by the appellant in the present proceedings. Specific findings – evidence tampering and perjury[59] ACAT original defamation decision at [49][60] ACAT original defamation decision at [121]-[129] Regarding this allegation, the original defamation tribunal stated as follows: 207. The applicant led evidence as to the audience. Mr Edwards gave evidence of having viewed the Van Lieshout Material. While his evidence of what he in fact saw was unsatisfactory in a number of respects, inasmuch as it is tendered for the purposes of proving that he saw and heard something containing defamatory matter, it is accepted on that basis. [footnote omitted]208. He was cross-examined. The thrust of that attack was that he could not have viewed the Van Lieshout Material because the respondent’s Facebook page was set to private. The respondent spent some time developing this argument. Again, she made some very serious allegations. She asserted that the evidence of viewing the Van Lieshout Material was false and that Mr Edwards and the applicant had perjured themselves.209. The Tribunal rejects those allegations. There was no credible evidence to support them. The evidence of Mr Edwards in this respect was not impeached and his evidence of having viewed the Van Lieshout Video is accepted.[61][61] ACAT original defamation decision at [207]-[209] This finding was challenged by Ms Bailey in the Supreme Court. McWilliam AsJ found the following:During the hearing before this Court, the applicant was requested to point to any transcript references or evidence that would demonstrate that her factual challenge [to the findings set out above of the original defamation tribunal at [208]-[209]] had substance. She requested an opportunity to forward to the Court such material. What was received by the Court was a series of attachments that did not in any way establish any foundation for the applicant’s challenge to the Tribunal’s finding either at first instance or on appeal. I do not consider there to be sufficient cause to permit the grant of leave on a finding of fact made by a tribunal member at first instance who had formed and articulated clear views on the credibility of Mr Edwards based on his perception of him in the witness box and the nature of the evidence he gave.[62][62] Bailey v Bottrill [2019] ACTSC 45 at [52]

Decision

Reasons for decision

These proceedings shall be referred to collectively as ‘the previous litigation’. In the previous litigation Mr Bottrill made a claim against Ms Bailey for defamation. Mr Bottrill sent a document on 16 August 2017 which was found to be a concerns notice by the original defamation tribunal[7] and filed an amended civil dispute application[8] in the tribunal on 3 November 2017.[9] The background to the previous litigation was described by the Senior Member in the present first instance proceedings as follows: Ms Bailey placed certain text and a hyperlink on her Facebook page linking to a video on another website, YouTube. Facebook contained certain text which included: David Bottrill, Ordo Templi Orientis, (OTO, Australia). The former national treasurer, now confessed life member of the Ordo Templi Orientis (OTO), Grand Lodge of Australia. This text was accompanied by a hyperlink directing the browser to a specific video on a YouTube website referring to Mr Bottrill. The video had two components, a video and accompanying text, collectively referred to as Van Lieshout material. The video was a recording of a person speaking; that person was Ms Teresa Van Lieshout. The accompanying text was approximately 300 words. The Van Lieshout material referred to Mr Bottrill as a life member of the organisation of the OTO. At first instance, [the original defamation tribunal] … found that the Van Lieshout material was defamatory in containing the following imputations: that Mr Bottrill was a member of a paedophile group which kills and tortures victims; that he uses his employment to facilitate the entry into Australia of minors for paedophilia by Muslim men.[10][7] Bottrill v Bailey [2018] ACAT 45 (ACAT original defamation decision) at [121]-[127] [8] XD 1023/2017[9] ACAT original defamation decision at [17][10] Transcript of proceedings 3 December 2020 page 4 The original defamation tribunal awarded Mr Bottrill $18,750 in damages. The defamatory nature of the material was confirmed by the defamation appeal tribunal but the damages were reduced to $400. The Senior Member’s description of the previous litigation in the present first instance proceedings continues: Ms Bailey having succeeded in large part in her appeal in the tribunal, again appealed to the Supreme Court. She sought to challenge the payment of the $400 and she raised a number of issues of principle. The court granted leave on one ground only and refused leave on various other grounds.The Supreme Court found that in all the circumstances, Ms Bailey participated in the publication of the defamatory content on her Facebook page. The combination of the publication being a personal Facebook page, having the character of a noticeboard, the direct access hyperlink and the existence of a brief description of what the hyperlink related to … constituted ‘an incorporation of the defamatory material into the reference,’ and that is a quote from the Supreme Court. Accordingly, the Supreme Court found there was no error in the appeal tribunal finding the conduct was a positive act of participation in the publication and the defamatory material and the Supreme Court dismissed the appeal.[11][11] Transcript of proceedings 3 December 2020 pages 4-5

Ratio Decidendi

Legal Principle Established

The question of publication of the defamatory matter was dealt with in at least three of the four previous decisions. This culminated in the decision of McWilliam AsJ in the ACT Supreme Court proceedings No 2 – Bailey v Bottrill (No 2).[65] As stated by the respondent in his submissions:The Court … made comment on the issue of what was published by Ms Bailey on her Facebook page (see [11]-[18]) and concluded (at [16]); “ ... it does not matter whether the remaining words were visible or obscured.” The Court concluded, at [51], that the precise wording of the snippet displayed “... does not matter...” as “The only reason the words were on her Facebook page was because the appellant shared the link.”[66]The operation of the preclusionary rules [65] [2019] ACTSC 167[66] Respondent’s response to the appellant’s particulars of claim dated 3 May 2021, page 2 The preclusionary doctrines operate in order to implement the public interest in the finality of litigation.[67] They broadly include res judicata, claim estoppel, issue estoppel and Anshun estoppel. The High Court has recently clarified the operation of these rules in Clayton v Bant[68] (Clayton) and the Tribunal will rely upon the High Court judgments in that case to set out the relevant principles. The High Court stated that the rules are: [f]ounded on the twin policies of ensuring finality in litigation (thereby promoting respect for and efficient use of courts as well as avoiding inconsistent judgments) and of ensuring fairness to litigants (by sparing them the stress and expense of duplicative proceedings), the focus of the common law doctrine of estoppel is on “substance rather than form”. The doctrine looks not for absolute identity between the sources and incidents of rights asserted or capable of being asserted in consecutive proceedings. [footnotes omitted] [69][67] Stuart Cobbett, ‘The Sacred Cows of Henderson v Henderson and Anshun Estoppel — Abuse of Process by Another Name?’ (2021) 50 Australian Bar Review 100, 101[68] [2020] HCA 44; (2020) 385 ALR 41. The judgment in this case was handed down on 2 December 2020, shortly before the original tribunal handed down its decision on 3 December 2020.[69] Clayton at [34] (Kiefel CJ, Bell and Gageler JJ) Since the High Court decision in Tomlinson v Ramsey Food Processing Pty Ltd[70] in 2015, it may be asserted that these doctrines form part of a broader category of rules that operate to prevent an abuse of process. This will be discussed below. [70] [2015] HCA 28; (2015) 256 CLR 507 (Tomlinson) Each of the rules operates in particular ways. Res judicata and claim estoppel For example, the doctrine of res judicata operates to preclude the assertion of a right or obligation that was asserted in a previous proceeding which was determined by a judgment. The result in the previous proceeding is said to merge in the judgment.[71] The estoppel that may have had operation in the present proceedings would be more accurately described as a ‘cause of action’ or ‘claim estoppel’ which is independent of the doctrine of merger. It encompasses “both the legal right claimed and decided and the pleaded or asserted facts”[72] because “cause of action normally means a right alleged to flow from the facts pleaded”.[73] The focus is upon the whole claim, including the right and the essential facts upon which the right depends, and the focus is upon substance rather than form.[74] [71] Tomlinson at [22][72] Clayton at [68] (Edelman J)[73] Clayton at [68] per Edelman J quoting Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 618; [1975] 1 All ER 810[74] Clayton at [68] (Edelman J)