Bailey v McCrae & Ors (Civil Dispute) - [2024] ACAT 82

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BAILEY v MCCRAE & ORS (Civil Dispute) [2024] ACAT 82

XD 95/2023

Catchwords: CIVIL DISPUTE – recovery of damages for defamation – whether the element of serious harm as required in section 122A of the Civil Law (Wrongs) Act 2002 had been satisfied by the applicant – whether a person has acted as a publisher for the purposes of defamation – whether participating in a shared platform in common with other contributors – whether publisher liable for republication

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 8, 15, 16, 22, 47A
Civil Law (Wrongs) Act 2002 ss 122A, 124, 124A, 124B, 139A, 139F(2B)
Civil Law (Wrongs) Amendment Act 2021

Cases cited: Australian News Channel Pty Ltd v Voller [2020] NSWCA

102
Baturina v Times Newspaper Ltd [1] [2010] EWHC 696
Bailey v McCrae & Ors [2023] ACAT 51
Bottrill v Bailey [2018] ACAT 45
Brammall v Benedict Ian Stevens [2023] ACTMC 24
Briginshaw v Briginshaw [1938] HCA 34
Byrne v Deane [1937] 1 KB 818
Cummings v Fairfax Digital Australia & New Zealand Pty Ltd [2011] ACTSC 188
Cummings v Fairfax Media Publications Pty Ltd [2010] EWHC 696
Cummings v Fairfax Media Publications Pty Ltd [2018] NSWCA 325
Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27
Google LLC v Defteros [2022] HCA 27
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
Jones v Dunkel (1959) 101 CLR 298
Prouten v Buxton [2024] NSWDC 182
Rader v Haines [2022] NSWCA 198
Supaphien v Chaiyabarn [2023] ACTSC 240
Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81‑127
Webb v Bloch [1928] HCA 50
Wilson v Bauer Media Pty Ltd [2017] VSC 521

Tribunal:Senior Member D Stewart
Date of Orders:  28 October 2024
Date of Reasons for Decision:      28 October 2024
Date of Publication:  7 November 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 95/2023

BETWEEN:

KATRINA BAILEY

Applicant

AND:

DEAN MCCRAE
First Respondent

JESSE BELL
Second Respondent

TRIBUNAL:Senior Member D Stewart

DATE:28 October 2024

ORDER

The Tribunal orders:

The application against the first respondent is dismissed.
The second respondent is to pay the applicant the sum of $10,000.
……………………

Senior Member D Stewart

REASONS FOR DECISION

Introduction

The applicant in this matter seeks to recover damages for defamation.[1] The applicant claims that on 4 February 2022, the Resolute TV YouTube channel (Resolute TV) published a live video interview titled “D.O.T. Pedophiles (sic) Rule the World” (the Video). The applicant claims Resolute TV is owned by the first respondent and that the interview was conducted by the second respondent who is a team member and contributor to Resolute TV. The Video is claimed to convey various defamatory imputations which include that the applicant is a member of a group which sexually abuses children and engages in child trafficking.
[1] An application for the tort of defamation is a damages application as defined in section 15 of the ACT Civil and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] ACAT 82
Decision Date: 28 October 2024

CaseChat Overview and Summary

In the case of Bailey v McCrae & Ors, the applicant, Bailey, brought a proceeding against the first respondent, McCrae, and the second respondent, Benitez, in the Australian Capital Territory Civil and Administrative Tribunal. The primary dispute centred on claims of serious harm, which under section 122A of the Wrongs Act, is a necessary element for the applicant to establish for her proceeding to continue. The application against the second respondent, Benitez, was dismissed as it was established that a concerns notice was properly served on her.

The court was tasked with determining whether the applicant had established the serious harm element required by section 122A of the Wrongs Act. The court also had to consider interim applications by the first respondent, McCrae, seeking to stay the proceedings and to set aside orders made on 5 October 2023. The first respondent's applications hinged on an appeal made to the Supreme Court of the Australian Capital Territory against the concerns notice decision and other orders. The court had to balance the applicant's right to pursue her claims against the first respondent's procedural challenges.

The tribunal found that the serious harm element was established, allowing the proceeding to continue against the first respondent, McCrae. The application for interim orders to stay the proceedings was dismissed as it was deemed that the appeal to the Supreme Court did not provide sufficient grounds for a stay. Further, the application to set aside the orders and redetermine the serious harm issue was also dismissed. The tribunal ordered the first respondent to provide responses to new material related to their involvement with Resolute TV social media websites, which was raised during the hearing. The tribunal's decision was grounded in the procedural fairness and the necessity to allow the applicant to present all relevant material.

The final orders of the tribunal were that the application against the first respondent, McCrae, was dismissed, and the second respondent, Benitez, was ordered to pay the applicant the sum of $10,000.

Orders

Orders of the court

The Tribunal orders:

The application against the first respondent is dismissed.

The second respondent is to pay the applicant the sum of $10,000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 31 July 2023, orders were made to dismiss the application against Claudia Benitez. Being satisfied that a concerns notice had been properly provided to the first and now second respondent, directions were made for the serious harm element as provided in section 122A of the Wrongs Act to be determined before the remainder of the proceedings. Reasons for this decision were published in Bailey v McCrae & Ors (the concerns notice decision).[2][2] [2023] ACAT 51 Prior to the hearing of the serious harm element, the applicant provided witness statements from herself, David Bottrill and Lillian Bailey as well as submissions and a timeline. On 4 October 2023 USB drives were provided to the tribunal to be played during the serious harm hearing on 5 October 2023. The respondent did not provide any outline of submissions or material in reply and did not attend the hearing. At the conclusion of the serious harm hearing on 5 October 2023, it was determined that the serious harm element was established, and orders were made in the absence of the respondents for the further progress of the matter. Reasons for that decision were provided orally on the day of the hearing, and a written version is provided below. The matter was set down for further hearing on 6 November 2023. On 2 November 2023, the first respondent applied for interim orders to stay the proceedings on the basis that an application had been made to the Supreme Court of the Australian Capital Territory seeking to appeal the concerns notice decision and other orders. That interim application was heard and dismissed on 6 November 2023 and the hearing adjourned to 7 November 2023. On 7 November 2023 the first respondent applied for interim orders seeking to set aside the orders made on 5 October 2023 and for the Tribunal to redetermine the question of serious harm. That application was dismissed, and further orders made for the respondent to provide a response, submissions and any material they may rely upon in the hearing by 5:00pm that day. The hearing was adjourned to the 10 November 2023. At the hearing on 10 November 2023, evidence was given by the applicant, David Bottrill and Lillian Bailey for the applicant, and by the first respondent, and each of the witnesses were cross-examined. At the conclusion of the hearing, an oral application was made by the applicant for leave to provide further material relating to the involvement of the first respondent with Resolute TV social media websites and which were put to the first respondent in cross-examination at the hearing. As that issue had only been raised, in my view, for the first time in material provided to the tribunal and to the applicant on 7 November 2024 orders were made for that material to be provided and for the first respondent to provide any material or submissions in response to that material, a date set by which either party could apply for further hearing, and the matter was otherwise adjourned until further order. No application for further hearing was filed by either party.

Ratio Decidendi

Legal Principle Established

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