Bailey v McCrae & Ors (Civil Dispute)
[2024] ACAT 82
•28 October 2024
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 231Jones 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 50Wilson 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 Administrative Tribunal Act 2008 (ACAT Act). The applicant’s application is therefore a civil dispute application under section 16 of the ACAT Act. Under section 22 of that Act, the Tribunal has, in relation to the application, the same jurisdiction and powers as the Magistrates Court has under the Magistrates Court Act 1930, part 4.2 (Civil jurisdiction). The operation of the tort of defamation at general law is modified by the provisions of the Civil Law (Wrongs) Act 2002, Chapter 9.
The first respondent’s principal response to the claim is that he was not a publisher of the Video for the purposes of defamation. As set out below, I agree with this response and hence find that the proceedings against the first respondent are dismissed. I am satisfied, however, that the claim against the second respondent has been established and so will make declarations that the Video is defamatory and that the second respondent is to pay to the applicant the sum of $10,000. for general damages. My reasons for doing so are set out below.
Procedural background
The application in this matter was originally made against the respondents and Claudia Benitez (as originally the second respondent). It was timestamped by the Tribunal as having been received on 3 March 2023. The application provides a screenshot for the YouTube page on which the Video was originally available and provides two URLs at which the Video was said to still be available at websites 153news.net and The Video is said to identify the applicant by name and by her “social media handle ‘anxious Aussie’”. The application then states that the “allegations and imputations of the video include but are not limited to”:
*I am a member of a pedophile (sic) cult *I am a member of a child trafficking organisation *I helped a cult of child sacrifice manipulate the courts to silence exposure *I am associated with ASIO *I am not a Christian *I dismissed valid evidence of a child sexual abuse crimes *I am part of a blood drinking, child sex cult.
The application then refers to the Concerns Notice for further details. It is claimed that the Video was viewed by numerous people in the ACT and surrounds including people who know the applicant personally, professionally or socially “with over 2000 views on the platform to date”. During the interview, the second respondent encouraged viewers to view further defamatory material on another website, some of which was about the applicant as well as endorsing the claims made by the interviewee.
The Video was said to remain visible until April 2022 on Resolute TV, and posts by the respondents and others continue to direct people to remaining video copies at the links mentioned. There are also claimed to be posts remaining on Resolute TV which provide sufficient detail to allow the copies of the Video to be found by simple internet searches.
The application also refers to “insults and threats, veiled and direct made by the second respondent and with the knowledge of the first respondent” towards the applicant since the publication of the video. The application claimed $25,000 as well as a published apology by the respondents on their social media pages.
Orders were made at a directions hearing on 21 April 2023 extending the time for the filing of a response. A response was filed by the first respondent and Claudia Benitez on 26 April 2023 (original response). Annexure A to that response, headed “Defense / Strike-out of Bailey’s claim,” pleads the applicant’s claim as being deficient and not able to be properly responded to, due to deficiencies relating to:
(a)expiry of the relevant limitation period;
(b)lack of concerns notice to Ms Benitez;
(c)pleading not mentioning the publication was removed, stating:
The Applicant’s pleadings admit that the ‘video was already depublished’. The video was removed from the Defendants’ platform. The only copy t[h]at remains online is one posted by ‘153 news’, an external platform not owned or operated by any parties to these proceedings.
(d)the serious harm requirement under section 122A of the Civil Law (Wrongs) Act 2002 (Wrongs Act) was not met; and
(e)there was no case pleased against Ms Benitez.
On 8 May 2023, the applicant provided various documents to the Tribunal and the respondents by email including a document entitled “Response to Defense/Strike-out lodged 5th May 2023”. Also included was a partial video transcript setting out what seem to be timestamped extracts from the Video.
On 12 May 2023, orders were made to effectively extend the limitation period to enable this matter to proceed, and to separate out for hearing the preliminary issue of whether a concerns notice had not been provided in compliance with section 124B(1)(a) of the Wrongs Act. Further material was provided by the applicant in relation to that preliminary issue prior to the hearing on 21 June 2023 and before the adjourned hearing which resumed on 31 July 2023. Relevantly, the respondent provided further submissions on 20 July 2023 which included reference to “[o]ther objections which have not been dealt with in this voir dire are as follows”. Those other objections are broadly concerned with the deficient pleadings in the same terms as that in the original response, the absence of serious harm, and that there were no pleadings against the second respondent.
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.
There was no appearance at any hearing or material filed by the second respondent in this matter. Orders are therefore made in his absence under section 47A of the ACAT Act.
Evidentiary matters
At the hearing on 10 November 2023, the representative for the first respondent raised a large number of objections over the evidence presented by the applicant. Those concerns included the uncertainty over what was intended by the applicant to be evidence in the hearing, the form that evidence took and objections as to the relevance and prejudicial nature of its contents. I have endeavoured to set out in these reasons the evidence that I have relied upon in reaching my conclusions, but it is appropriate that I make some general comments on the admissibility and use of the evidence presented.
The first respondent’s objections to the evidence in issue included that there was no evidence that the defamatory matter in issue in these proceedings, the Video, even existed. As discussed below, the Video was accepted into evidence as part of the serious harm hearing on 5 October 2023. References to the Video, including where it could be accessed on-line, was included with the concerns notices and original application. The written responses provided by the first respondent do not raise any concerns with the availability and contents of the Video. In my view there has not been any prejudice or unfairness to the respondents in the identification and accepting into evidence of the contents of the Video.
The respondent also raised concerns over the use of URLs in the timeline and various submissions of the applicant and witness statement of David Bottrill. In cross-examination, the representative of the first respondent put to the witnesses that some of these URLs no longer linked to an active webpage or resulted in an error message. The failure to provide screenshots or USB drives with copies of the material at the links provided was, the representative put to the witnesses, because the links did not exist or did not say what the witness said they did. This was described by the representative as providing for Jones v Dunkel[3] inferences that followed from the failure by the applicant to adduce evidence.
[3] This term refers to the commonly accepted statement of the principle in Jones v Dunkel (1959) 101 CLR 298. I note that I mistakenly referred to the principle in Browne v Dunne in the hearing when questioning the basis of the inferences I was being asked to draw.
The Tribunal is not bound by the rules of evidence.[4] However, the rule in Jones v Dunkel is a reflection of the requirement for the Tribunal to be satisfied of the matters called into question by the application. A failure by a party to adduce evidence that was reasonably expected may allow an inference that the evidence, if adduced, would not have assisted the party’s case. However, it generally cannot be inferred that the missing evidence would have been unfavourable to the party.[5] As Kitto J suggested in Jones v Dunkel:
One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.[6]
[4] ACAT Act section 8
[5] Australian Securities and Investments Commission v Hellicar (2012) HCA 17 at [168]
[6] [1959] HCA 8 at [1]
The first respondent’s representative, in their submissions at the hearing, also referred to the principle in Briginshaw v Briginshaw[7] as applicable to any finding which might be made in this case. I agree that the seriousness of the allegations being made and the consequences of an adverse finding are relevant to the Tribunal’s satisfaction that a matter in issue has been established.[8] I am therefore not satisfied that by providing a URL rather than a screen shot or copy on a USB the applicant or witness should be inferred to have lied or that the material in question did not exist at the time.
[7] [1938] HCA 34
[8] See also Bottrill v Bailey [2018] ACAT 45 at [31]
In Bottrill v Bailey,[9] in which the applicant was also a party, the Senior Member expressed the view that a URL is not evidence in itself but may point to a document or page which may be evidence.[10] I agree that merely pointing to a web page is not in itself sufficient to bring into evidence the content that might be found at that page at a particular point of time. However, in my view a URL is sufficient to indicate the intended basis of the comments made by the witness and indicate evidence that might be available. A URL, when combined with a screenshot or digital file, may help establish the provenance of the material being described by the witness. It at least puts the other party on notice of the material that may be relied upon to support the witness’s statements. It may add some support to the statements otherwise made by the witness and hence the weight if any to be attributed to the evidence in establishing the relevant matters in issue.
[9] [2018] ACAT 45
[10] [2018] ACAT 45 at [34]
I have therefore generally not accepted the contents of a web page to be in evidence merely because a URL is provided in a witness statement or, in the case of the applicant, a timeline. Statements relying only on reference to URLs for support have therefore been given little to no weight. However, I have not in general drawn adverse inferences from the use of URLs without the web page in question otherwise being adduced into evidence.
Serious harm
As mentioned above, in his further submissions relating to the concerns notice, the first respondent raised the issue of whether the element of serious harm as required in section 122A of the Wrongs Act had been satisfied by the applicant. The first respondent quoted from the decision in Brammall v Benedict Ian Stevens[11] which confirmed the applicant bears the onus of establishing serious harm and continued:
The NSW Court of Appeal in Rader v Haines [2022] NSWCA 198 (‘Rader v Haines’) … set out the following propositions:
(1) In order to succeed, a plaintiff must satisfy the threshold of showing that the publication has caused or is likely to cause serious harm to his or her reputation.
(2) “Serious” harm involves harm that is more than merely substantial, though it need not be grave.
(3) The requirement for serious harm to reputation is concerned with actual or likely reputational damage — that is, the impact of the imputation, in all the circumstances, on the plaintiff’s reputation — arising from a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. It is not satisfied by the gravity of the imputation alone. Nor is it satisfied by injury to feelings, however great. Relevant factors include the meaning of the words, the extent of the publication, the nature of the recipients and their relationship with the plaintiff, and whether they believe the imputations.
(4) A grave imputation may not result in serious harm, typically where the publication is to a small number of persons well acquainted with the plaintiff who are not disposed to believe it, and any impact of the imputation on the plaintiff’s reputation is transitory or ephemeral.
[11] [2023] ACTMC 24
The further submissions stated that the applicant had failed to acquit this onus without elaboration.
Section 122A relevantly provides:
122A Serious harm element of cause of action for defamation
(1) It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.
(2) For subsection (1), harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss.
(3) The judicial officer in defamation proceedings is to determine whether the serious harm element is established.
There is also provision for the element of serious harm to be determined before “the trial of the proceedings commences” unless there are special circumstances justifying the postponement to a later stage.
The issue of whether the serious harm element was satisfied was set down for separate hearing on 5 October 2023. The applicant provided witness statements from herself as well as David Bottrill and Lillian Bailey as well as submissions. Some of the material in those witness statements could be considered submissions, opinion, or irrelevant to the issue of serious harm. Some went to the non-economic harm which had been suffered by the applicant generally, including the injury to her feelings and other effects, and the award of damages generally which is discussed below. Some was also expressed in general terms or unsupported by specific details. To the extent that the evidence presented may go to the harm caused, or likely to be caused, to the reputation of the person by the publication of defamatory it is discussed below.
The applicant’s witness statement included describing how, on 4 February 2022 an unnamed online follower of the applicant had informed her about the Video. On watching the Video the applicant saw “live viewers …[who] believed this material was true/credible” and that two followers of the Resolute TV channel, identified by their online handles, live in Canberra. The applicant received a number of comments online that were “definitely associated with people viewing” the Video or that seemed to be about the imputations in the Video. Numerous associates of the Resolute TV team had engaged with the materials recommended in the Video. The first respondent and his associates have made “numerous comments and posts before and after the videos publication that demonstrates that they know their supporters, viewers and others believe these materials”.[12]
[12] Affidavit of Katrina Bailey dated 31 August 2023 at [2], [6], [15], [37]
The witness statement of David Bottrill includes a description of how he viewed the Video in February 2022, the imputations he claimed are conveyed by the Video and the identification of the applicant. He stated that he tracked the Video’s spread and “observed that it had been spread multiple times to other Facebook pages, each with their own number of followers and observed that it had, at around the end of February 2022, accumulated more than 1300 views.” URLs are then provided for Facebook pages on which the Video is claimed to have appeared, screenshots for at least some of which are included as attachments.[13]
[13] Witness statement of David Bottrill dated 24 August 2023
The witness statement of Lillian Bailey, the applicant’s daughter, describes the changes in the applicant’s mental state and health, and her mother’s concerns for her general safety.[14]
[14] Witness statement of Lillian Bailey dated 31 August 2023
No written submissions or material was filed by either respondent in response to orders made on 31 July 2023 for consideration at the hearing of the serious harm element.
At the hearing of the serious harm element on 5 October 2023, given the applicant’s evidence of the anxiety she feels when listening to the Video, the copy of the Video that had been provided to the Tribunal on a USB delivered on 4 October 2023 was accepted into evidence without being played in full. Having previously watched the copy of the Video provided I accepted the applicant’s evidence that the Partial Video Transcript provided on 8 May 2023 sufficiently set out the relevant parts of the Video. The witness statements provided by the applicant were also accepted as evidence so far as they contained statements of fact and not submissions or opinion. The limited details included in the materials and reliance on URLs, not all of which may be active, was noted.
My determination that the serious harm element was satisfied relied on the decision of the ACT Supreme Court decision in Supaphien v Chaiyabarn[15] which had been decided prior to the serious harm hearing. The Court in that case relied for the applicable legal principles on decisions including Rader v Haines,[16] which had been relied upon in the further submissions of the first respondent referred to above.[17] I have set out my findings in relation to those principles here.
[15] [2023] ACTSC 240 (Supaphien), decided on 1 September 2023
[16] [2022] NSWCA 198
[17] See [98] – [121]
Serious harm is concerned with harm to reputation. The evidence in relation to the harm to the applicant’s health or feelings or submissions on an appropriate award of damages is therefore not relevant to this issue. There must be evidence of the actual or likely future reputational damage arising from the tendency of the words and their actual impact on those to whom they were communicated.
Relevant considerations include the meaning of the words, the gravity of the imputations they conveyed, the situation of the plaintiff, the circumstances including the scale of the publication and the inherent probabilities including the likelihood that the publication had come to the attention of others who knew or would come to know the plaintiff…. Other relevant factors include the nature of the recipients and their relationship with the plaintiff, and whether they believe the imputations…[18]
[18] Supaphien at [106]
In this matter the views expressed in the Video convey extremely grave imputations. The tone of the views expressed in the Video and the subsequent posts linking to the Video suggest that the content of the video is likely to be taken seriously by a significant proportion of those viewers. There was evidence that the Video was at least seen in part by a substantial number of people, with screenshots of the original publication on YouTube suggesting over 500 views and the partially supported statement from Mr Bottrill that sites on which the video is available total over 1300 views. I accepted that the imputations in the Video were believed by some individuals. I also accepted the applicant’s evidence that persons who knew the applicant, at least through her social media persona, had viewed and commented on the Video. There was no suggestion that the prior activities or statements of the applicant diminished the effect on her reputation of the imputations in the Video. I am also satisfied that the applicant was very concerned about the Video upon learning of its existence and took steps to have the Video and links to it removed.
There was a suggestion in the evidence provided that the Video had only been available for some weeks before access to the Video on Resolute TV was restricted. The applicant’s and Mr Bottrill’s evidence was that, although the Video may have been marked private or unlisted, access was still available to the Video through use of the relevant URL, which could be found through searches based on the information that remained available in Facebook and other references. I am not satisfied that the possibility of accessing the Video after its visibility at least was restricted significantly added to the harm to the applicant’s reputation caused by the initial publication of the Video by Resolute TV. However, the continuing ability to locate copies of the Video is relevant to the grapevine effect[19] and the harm to reputation likely to arise in the future.
[19] Discussed further below in relation to Damages
I was therefore satisfied that the harm to the applicant’s reputation was more than merely substantial and determined that the serious harm element was met by the applicant in this matter.
The first respondent sought to reopen that serious harm finding at the final hearing of this matter. The first respondent also raised various objections to the witness statements provided prior to the serious harm hearing and the witnesses were cross-examined. To the extent the objections and evidence given in cross-examination went to issues relevant to whether the serious harm element is established they were appropriately incorporated in the consideration of the evidence at the time of the serious harm hearing. I do not consider there to be any reason to change my determination that the serious harm element was satisfied.
Publication
Only publishers are liable for the harm to reputation under defamation. It is not in dispute that the second respondent is a publisher of the Video. The question raised at the hearing of this matter was whether the first respondent is also a publisher due to his involvement with Resolute TV. The applicant acknowledges that Resolute TV is not a legal entity. They do not know who first established the channel on YouTube or is party to any agreement with the operators of the YouTube platform to maintain the channel. Nonetheless, the applicant claimed that the first respondent effectively “owned” Resolute TV and was therefore a publisher for the purposes of defamation.
The applicant bases this view on various statements made by the first respondent and others, including the second respondent in the Video, which suggest that the first respondent considers Resolute TV to be his channel. These statements suggest that the first respondent was one of the founders of the channel, has appeared on most of the videos available on the channel as the primary host, and there is a connection between Resolute TV and the first respondent’s many other personal and professional activities including his involvement with the freedom movement and the Liberal Democrat party.
The first respondent’s witness statement included that they “did not publish any videos on YouTube, nor any other site, concerning [the applicant] at any time”. Whether the first respondent published the video is, of course, a question of law in dispute in this matter and the first respondent’s view on this issue was therefore of little assistance. In answers to cross-examination, the first respondent stated that he had added videos to the Resolute TV YouTube and Facebook sites[20] but that he had not attempted to remove a video. He was one of a number of people who had access to the sites that presumably enable them to add and remove videos but he was not aware of who generally provided that login information.[21] He did not know who set up the channel but he was given access by Claudia Bonitez.[22] He understood that the second respondent, like anyone else involved with Resolute TV, had full autonomy in their use of the channel.[23] While he might have suggested to Claudia Bonitez and the second respondent to remove videos that may have been causing “problems” for them, that was only his suggestion as the usual way in which he would deal with it.[24] Any editing of videos in which he appeared for Resolute TV was done by others, including Claudia Bonitez.[25] He was asked to be the inaugural presenter and continued to present on the channel, but had not participated for a while and the site had not been active recently.[26] He suggested that he might have been solely responsible for about 10 programs on the channel and participated in perhaps 35 to 40 others but did not know what proportion of the total that might be. Resolute TV was the first time he had been asked to directly host videos as opposed to just contributing, as part of a regular interviewing gig. Although he was a candidate for the Liberal Democratic party, he was unaware of who authorised the use of the party logo on Resolute TV.
[20] Transcript of proceedings dated 10 November 2023, page 106
[21] Transcript of proceedings dated 10 November 2023, page 105
[22] Transcript of proceedings dated 10 November 2023, page 106
[23] Transcript of proceedings dated 10 November 2023, page 116
[24] Transcript of proceedings dated 10 November 2023, pages 114, 115, 123-4
[25] Transcript of proceedings dated 10 November 2023, page 118
[26] Transcript of proceedings dated 10 November 2023, page 125
The first respondent raised, in my view substantively for the first time, the issue of whether they were a publisher in their witness statement and submissions filed on 6 November 2023. The respondent also put material to the first respondent in cross-examination relating to that issue. At the end of the hearing on 10 November 2023 orders were made to allow the respondent time to provide that additional material, for the first respondent to respond and leave for either party to apply for a further hearing. The first respondent objected to the additional material being considered but did not request a further hearing. While I accept some of the concerns raised by the respondents, because, as discussed below, they do not affect the outcome of this matter I have accepted the additional material and taken it into account.
Both the applicant and first respondent relied on statements in the High Court decisions in Fairfax Media Publications Pty Ltd v Voller[27] (Voller) and Google LLC v Defteros[28] (Defteros) in relation to whether the first respondent should be considered a publisher of the Video. Voller considered whether media organisations could be considered publishers of anonymous comments left on their Facebook sites. The discussion of publication in that case was summarised by Kiefel CJ and Gleeson J in Defteros in this way:
The majority in Voller also considered more broadly what the law requires for there to be a publication and for a person to be liable as a publisher. Publication was explained as the actionable wrong in the tort of defamation by which harm is occasioned to a person's reputation. Publication was described as a technical term, which is to be understood as a bilateral act by which the publisher makes the defamatory material available and a third party has it available for their comprehension. It may be understood as the process by which a defamatory statement or imputation is conveyed. Adopting Webb v Bloch, any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher, regardless of their knowledge or intent. So understood, a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher.[29]
[27] [2021] HCA 27
[28] [2022] HCA 27
[29] At [21] (citations omitted)
The appellants in Voller had also claimed that they did not own the Facebook pages on which the defamatory comments were posted. As Meagher JA and Simpson AJA in the NSW Court of Appeal decision in that matter suggested:
in relation to the use of a Facebook page ownership is an elusive and perhaps inapt concept. The evidence is clear that the relevant Facebook pages were created for and used by the applicants on the basis that Facebook users generally would be invited to post comments on the Page with the result that their comments would also be made available to Facebook users generally.[30]
[30] Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102 (Voller NSWCA) at [109]
The High Court accepted that it was the appellants who relevantly provided the opportunity for comment using the Facebook pages and who had invited and encouraged comment about companies’ news stories they had linked to in those pages. This encouragement was clearly connected to both the subsequent creation of the defamatory material and the means and purpose of communicating it to others. It was the appellants acts of “facilitating, encouraging and assisting the posting of comments by the third-party users which rendered them liable as publishers of those comments”.[31]
[31] Defteros at [33]
The question whether the first respondent’s actions amount to facilitating, encouraging and assisting the communication of the Video is one of three ways in which the courts have accepted that a person may be a publisher for the purposes of defamation even though they did not perform the actual act of communication.[32] A person may also be considered a publisher because they authorised another person to perform the act of communication.[33] Or they may have had no role prior to publication but then can be taken to have ratified or adopted the communication through not acting to have it removed.[34] There may also need to be a common intention to publish, even if there is no awareness of the content of what is being communicated.[35] In each case, the question of whether the person has acted as a publisher is a matter of “fact and degree”.[36]
[32] Defteros at [200]
[33] Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 at 364 per Isaacs J; Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574 at 595 per Gaudron J.
[34] Byrne v Deane [1937] 1 KB 818; Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81‑127
[35] See Defteros at [210]-[216]
[36] Defteros at [66] citing Parkes and Busuttil (eds), Gatley on Libel and Slander, 13th ed (2022) at 253-254 [7-050]
I accept that the respondent had no knowledge of the Video prior to its release and did not play any direct role in its publication. I also accept that the first respondent was able to remove the video from Resolute TV, either in person or with the technical assistance of others if he chose to do so. However, this is not sufficient to suggest that the first respondent is a publisher.[37]
[37] See Voller NSWCA at [112]
The applicant, in cross-examining the first respondent and in the additional material filed after the hearing, refers to various statements of the respondents and others that go to the first respondent’s role with Resolute TV. For example, in a video entitled “Freedom Chef Q&A” the first respondent discussed having “a team of really cool people” and the intention behind and design of Resolute TV. On other videos he discusses his personal projects and plans for the future. The first respondent refers to being one of the people that made Resolute TV happen, as the host along with Dia Beltran[38] and having selected people to appear on the channel.[39] The second respondent refers to the first respondent as being the owner of the channel in a Facebook post.[40]
[38] E.g. in a video entitled “episode I (The Pilot)
[39] E.g. including in a video entitled “episode I (The Pilot) and Resolute TV casual drinks live.
[40] Jesse Bell, Facebook post on 23 December 2022
The applicant’s additional material also describe and link to an IMDb page which refers to the first respondent as a director and producer of Resolute TV as well as one of a number of cast members. Given the lack of evidence on the basis and authority of this website I do not place any weight on this reference.
The evidence of David Bottrill also refers to the relationship between the first respondent and Resolute TV. This includes various links to statements by the first respondent such as “I’ve got my own YouTube programme called Resolute TV”. Mr Bottrill describes the first respondent’s response to a concerns notice sent to him by Mr Bottrill about the Video. Mr Bottrill states:
[The first respondent] wrote that he “regretfully provided access to [his] Resolute TV YouTube channel to a third party’. He offered to remove the publication, publish a correction and apology, contact persons to whom the publication had been shared and pay my legal expenses.[41]
[41] Witness statement of David Bottrill dated 24 August 2023 at [58]
I am not satisfied that the material provided by the applicant and Mr Bottrill establishes that the first respondent effectively owns Resolute TV or is inconsistent with the responses provided by the first respondent in cross-examination. The various references to Resolute TV being ‘his’ do not establish that the first respondent was doing more than participating in or using the channel as one of the contributors. Similarly, his willingness in response to the concerns notice issued by Mr Bottrill to have the material taken down does not establish that the first respondent was agreeing that was his responsibility to do so.
The first respondent is further removed from the publication in question than the media companies in Voller. He was not responsible for establishing and maintaining the platform in which the Video was published. He may have been important in establishing Resolute TV’s audience and influential in both the type of content it features and the contributors to the channel, but in my view he did so as a participant rather than controller of the channel. His role with Resolute TV also does not suggest that his actions, or inaction, on becoming aware of the Video meant that he had accepted or ratified its ongoing publication.
Resolute TV may be characterised as a shared platform in which the first respondent acted in common with other contributors in communicating content under a single banner. However, the cases have not accepted that this is sufficient in itself to give rise to all participants being publishers. The requirement for a common intention of publication is relied upon by Edelman J in Defteros as an additional requirement before a contributor to publication will become a publisher. To suggest that the various contributors to Resolute TV were acting in common to communicate content under the Resolute TV brand, even if the shared purposes of doing so can identified, does not suggest that each contributed to the communication of the Video.
The first respondent is not a publisher of the Video for the purposes of this matter and therefore the application against them is dismissed.
Other elements of liability
The first respondent did not make any submissions as to the other elements of defamation, other than a general concern with the availability and form of the evidence presented. There was therefore no contest over the remaining elements of defamation.
I find the following elements of the tort of defamation have been established:
(a)the natural and ordinary meaning of the Video conveys the imputations alleged by the applicant. In particular, the Video includes statements from Mr Luke McKee that impute that the applicant was a member of an organisation whose members sexually abuse children and engage in child trafficking activity;
(b)these imputations would be understood by ordinary members of the community to lower the applicant’s reputation in the public at large and hence have a defamatory meaning;
(c)the Video identifies the applicant, including her name and social media pseudonym, as well as mentioning where she was going to be in the period following the Video being livestreamed; and
(d)the Video was published in that it was made available to be viewed by the public at large and that it was downloaded and watched by others.
A respondent has the onus of establishing any defences that may be applicable to the tort of defamation or as set out in Division 9.4.2 of the Wrongs Act, including the defence of innocent dissemination. As there were no defences put forward by either respondent, I do not need to consider whether any defence may be applicable.
I therefore find that the tort of defamation has been established in relation to the second respondent.
Damages
Republication
The applicant presented at least two links from which the Video could be accessed at the time of the hearing. It was conceded that neither of these sources had any connection with the respondents. The applicant does not claim that the respondents should be liable for the publication of the Video on these two sources, but did claim that their continued availability contributed to the harm to her reputation and distress and hence was relevant to the question of damages.
Whether an original publisher should be liable for republication of this form was considered in Habib v Radio 2UE Sydney Pty Ltd[42] (Habib);
However, prima facie, an original publisher is not liable for the voluntary republication of its defamatory statement by a third party over which it has no control, or for the damage caused. The voluntary act of the third-party publisher breaks the chain of causation.
Nevertheless, an original publisher of defamatory matter may be liable for its republication where the republication was the natural and probable result of the original publication. In those circumstances, a plaintiff is entitled to complain [not] only of the original publication, but to seek also to recover as a consequence of that original publication, the damage the plaintiff says was suffered by reason of its repetition or republication where the defendant is responsible for that repetition or republication.[43]
[42] [2009] NSWCA 231 cited in Cummings v Fairfax Digital Australia & New Zealand Pty Ltd; Cummings v Fairfax Media Publications Pty Ltd [2018] NSWCA 325 at [187]
[43] At [122]-[123] (citations omitted)
The question of whether a republication is the natural and probable consequence of an original publication is a question of reasonable foreseeability. In Cummings v Fairfax Media Publications Pty Ltd[44] (Cummings) McColl JA quoted from the Queen's Bench decision in Baturina v Times Newspaper Ltd[45] in discussing foreseeability in the context of liability for republication:
In Baturina, Eady J framed the foreseeability test in media terms as turning on “whether a reasonable person in the position of the defendant should have appreciated that there was a significant risk of repetition, either in whole or in part, in the media and/or (presumably) on the Internet, and that this would increase the damage to reputation caused by the original publication”. If that issue was determined against the defendant, in his Honour’s view, “it would seem that there is no reason of public policy why there should not be liability for that additional damage [and] [i]t will be a question of fact to be determined in the light of the particular circumstances of the case.”
[44] [2018] NSWCA 325 at [190]
[45] [2010] EWHC 696 at [45] (Baturina)
There was no evidence presented which went directly to the question of whether it was reasonably foreseeable that the Video would be republished on other internet channels. In Cummings, the Court referred to the republication being in breach of copyright as an added reason why that republication was not reasonably foreseeable.[46] It may be that the social media context in which this matter arises, with its focus on attracting traffic, might be distinguished from the commercial newspaper websites considered in Cummings. In the absence of evidence going to these issues, however, I am not satisfied that the respondents should be liable for any harm arising from republication. As a consequence, any assessment of damages is limited to that arising from the original publication on Resolute TV.
General damages
[46] See also the decision in Prouten v Buxton [2024] NSWDC 182 where the Court considered the issue of whether sharing a Facebook page constituted republication was raised sufficiently in the statement of facts and contentions on which the proceedings were based.
Under the general law of defamation, damage to the applicant follows from a finding that they have been defamed. However, as described above, there is a requirement that serious harm to the applicant’s reputation be established. Section 139E of the Wrongs Act also provides:
In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
The jurisdiction of the Tribunal to award damages are capped at the value of $25,000.[47]
[47] ACAT Acts 18
The principles for determining an award of general damages is set out in Wilson v Bauer Media Pty Ltd:[48]
(a) The purposes of an award of damages are to provide consolation for hurt to feelings, compensation for damage to reputation, and vindication of the plaintiff’s reputation. The assessment of general damages is necessarily imprecise and, accordingly, damages are ‘at large’ in the sense that they cannot be arrived at through calculation or the application of a formula.
(b) The sum awarded must demonstrate vindication of the plaintiff’s reputation. The level of damages ought to reflect ‘the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment’.
(c) The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff. The award must be sufficient to convince a bystander of the baselessness of the charge. At common law, it was legitimate to take into account not only what the plaintiff should receive but also what the defendant ought to pay.
…
(e) The extent of publication and the seriousness of the defamatory sting are pertinent considerations.
(f) In determining the damage done to a plaintiff’s reputation, the court should also take into account the ‘grapevine’ effect arising from the publication of the defamatory material. This phenomenon is no more than the realistic recognition by the law that, by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published. It is precisely because the ‘real’ damage cannot be ascertained and established that damages are at large. It is often impossible to track the scandal and to know what quarters the poison may reach. The award of damages must be sufficient to ensure that, the damage having spread along the ‘grapevine’, and being apt to emerge ‘from its lurking place at some future date’, a bystander will be convinced ‘of the baselessness of the charge’.
(g) It is well accepted that injury to feelings may constitute a significant part of the harm sustained by a plaintiff, and for which a plaintiff is to be compensated by damages. Injured feelings include the hurt, anxiety, loss of self-esteem, sense of indignity and the sense of outrage felt by the plaintiff.
(h) Aggravated damages are a form of compensatory damages and, where appropriate, form part of the general damages awarded to a successful plaintiff for non-economic loss, designed to reflect aggravation caused to a plaintiff’s hurt or injury by reason of some conduct of the defendant. An award of aggravated damages may be made if a defendant has acted in a manner which demonstrates a lack of bona fides or engaged in conduct which is otherwise improper or unjustifiable. Conduct with those characteristics will be such as to increase the harm which the defamation has caused or may be supposed to have caused to the plaintiff. A damages award is not usually broken down into components for pure compensatory damages and aggravated compensatory damages.
[48] [2017] VSC 521 at [59]
The respondent objected to much of the evidence put forward in favour of the applicant relating to the impact on her of the publication of the Video and the subsequent conduct of the respondents. As discussed above, I have generally not relied upon the contents of URLs merely linked to in statements and submissions, and have discounted the weight, if any, to be given to screenshots of material whose provenance is in doubt. However, some of the material presented in witness statements was also reinforced by the evidence given in cross-examination so as to enable the following findings in support of an award of damages in this matter. In particular, I considered the evidence given in cross-examination by the applicant and Lillian Bailey to be generally credible and supportive of the evidence provided in their witness statements.
The gravity of the imputations in the defamatory material is substantial. Imputing that the applicant is a member of a group which engages in child sexual assault, even if not directly suggesting that the applicant themselves engaged in that activity, is a very serious accusation. The material has potentially been heard by a large number of people, with over 500 views of the original material. The grapevine effect is also likely to be substantial, with evidence suggesting that links to the video and references to its content have been circulated on other social media platforms. The Video has been viewed by people the applicant associates with, and its content contributing to some people no longer considering themselves friends of the applicant. The applicant has been subjected to abusive comment on social media. She has suffered from adverse health effects, including periods of intense anxiety and depression due to the effect on her reputation and fears for her and her daughter’s safety. She has sought assistance for those affects, including being treated for generalised anxiety disorder.
The applicant acknowledges that full public access to the Video was removed after 52 days from its initial publication but claims that the Video remained accessible after that time if the user knew or were able to search for a copy of the link. The absence of evidence from the second respondent means that it remains unclear when all access to the Video on Resolute TV was removed. However, the relatively short time in which the Video was available is a factor to consider in an award of damages.
The applicant also claims that the injury and hurt she suffered was aggravated by conduct of the respondents and Claudia Benitez. This included their responses to her requests to remove the content and prevent further harm to her reputation. They also failed to take what the applicant claimed would have been reasonable action to assert copyright ownership in having content hosted on other social media sites taken down, to remove links and references to the Video and its contents, and to publicly apologise.
Claudia Benitez is no longer a party to these proceedings. Given my finding that the first respondent is not a publisher, I will also dismiss the application against the first respondent. There is insufficient evidence that the various reactions which have affected the applicant have been coordinated or at the instigation of the second respondent. I am therefore not able to take into account the conduct of the first respondent or Claudia Benitez in aggravating the harm caused by the defamatory publication.
Disaggregating the effect of the various aggravating conduct from that caused by the initial publication of the material is difficult. The evidence from the applicant and Lillian Bailey suggests that there was a period after the initial publication and before commencement of these proceedings when the health effects had reduced. Substantial professional support was accessed relatively recently. I therefore find that a significant portion of the non-economic harm suffered by the applicant is due to reactions of the first respondent and Ms Benitez.
I do however accept that the conduct of the second respondent has aggravated the hurt or injury suffered by the applicant following the publication of the defamatory material. The applicant included in her evidence various screenshots of Facebook messenger and Facebook posts from Jesse Bell and Jesse Eurekanzo. I am satisfied from the content of those posts that they are from the second respondent. Those posts indicate the second respondent had initially offered to protect the applicant and her daughter in response to any threats from Mr McKee, the person interviewed on the Video.[49] However, the messages and posts then become abusive, including:
… I am done dealing with you. Get some help before you turn your daughter into a lunatic like you. …[50]
…Come after me you bitch. I will destroy you publicly either way. I offered you protection and you gave me nothing but vitriol.[51]
… You stupid, spiteful bitch. You fell for it and gave me more ammunition. Please keep it up. Your followers will learn quickly who you are. This is your last warning. Queensbury rules. Gloves are off should you persist. Back the fuck off and enjoy Christmas with your daughter. I make this public so all can see what you are. Furthermore, all will be made public. And there is not a fucking thing you can do about it. I apologized as did the owner of the channel. Despite the fact I/he did nothing wrong, said nothing wrong and tried to help you.[52]
… What deluded, spiteful, vindicative bitch threatens a man 8 months after the video was taken down, who has lost his 13 year old son less than three months ago, with a civil suit to take food out of his family’s mouths? When he apologised (11th screenshot) for something someone else said? The answer? This bitch. And yes, I was not kind in the last 11 screenshots for obvious reasons. For those of you who follow this raving fucking lunatic here is Katrina Bailey in all of her glory. Feel free to give the bitch the Christmas she deserves.[53]
[49] Messenger post on 3 April 2022
[50] Messenger post on 6 April 2022
[51] Messenger post from Jesse Eurekanzo on 22 December 2022
[52] Facebook post on 23 December 2022
[53] Facebook post on 24 December 2022. This was also referenced in the witness statement of David Bottrill.
I was not provided with all the messages and posts between the applicant and the second respondent. I am therefore not willing to take the comments on face value. However, in the absence of any evidence from the second respondent, I am not satisfied that this abuse is a reasonable response to the applicant’s requests as represented by those messages posts which were provided. I accept that these responses, coupled with a refusal to take any further action in response to the applicant’s requests, aggravated the injury and hurt suffered by the applicant.
Special damages for economic loss
The applicant gave evidence that she worked as a tradesperson. She claimed that the effect on her reputation due to the publication of the defamatory material would result in a loss of income. She gave evidence that she had had to cancel her business name registration due to it being referenced in the Video. The health effects following publication have also caused the applicant to suffer a loss of self-confidence and trust when working with the public. However, there was no evidence presented as to the loss of income which the applicant has or is likely to suffer due to the publication of the Video. I therefore make no award for economic loss.
Conclusions on damages
Under section 139F(2B) of the Wrongs Act, an award of aggravated damages is to be made separately to any award of damages for non-economic loss. I therefore have to indicate any award for aggravated damages separately.
Having considered the cases referred to in submissions by the applicant, taking into account the serious but indirect nature of the accusation, limited time in which the Video was available from the Resolute TV sites, and evidence of harm presented, I consider that an award of $5,000 for non-economic loss to be appropriate given the hurt and injury suffered due to the initial publication of the defamatory material and effect on and vindication of the applicant’s reputation. I consider a further $5,000 to be suitable compensation for the aggravation to the applicant’s hurt and suffering and further impacts on her reputation due to the second respondent’s subsequent conduct. I will therefore order that the second respondent pay the applicant the sum of $10,000.
Other remedies
In her initial application, the applicant sought a published apology from the respondents on their personal and social media pages with a comprehensive correction and retraction. In her final submission, the applicant repeated this request for an order for an apology or retraction, though I understood this submission to be principally directed to the first respondent. She also requested a declaration that the material be declared defamatory.
In the circumstances, I would consider any apology from the second respondent to be insincere and hence an order to that effect inappropriate. This judgement clearly records and awards damages based on the defamatory nature of the Video making a declaration unnecessary.
Orders
I will therefore make the following orders.
(a)The application against the first respondent is dismissed.
(b)The second respondent is to pay the applicant the sum of $10,000.
………………………………..
Senior Member D Stewart
| Date(s) of hearing: | 10 November 2023 |
| Applicant: | In person |
| Solicitor for the first respondent: | K Kutasi, Solve Legal |
| Second respondent | No appearance |
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