Bailey v McCrae & Ors (Civil Dispute) - [2023] ACAT 51

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BAILEY v MCCRAE & ORS (Civil Dispute) [2023] ACAT 51

XD 95/2023

Catchwords: CIVIL DISPUTE – defamation – whether concerns notice given to the proposed defendants – requirement that a concerns notice be in writing – whether there was consent to the use of electronic communication

Legislation cited: Civil Law (Wrongs) Act 2002 ss 122, 124, 124A, 124B
Civil Law (Wrongs) Amendment Act 2021
Electronic Transactions Act 2001 ss 8, 13, 13A, 13B
Legislation Act 2001 ss 5, 6, 144, 247, 251

Cases cited:Lyndon v Commissioner of Police [2021] NSWIRComm 1086
Pelligra Build Pty Ltd v Australian Crane & Machinery Pty Ltd [2020] VCC 545
Steer v AMP Life Limited & AMP Superannuation Ltd [2021] SADC 109
Taylor v Victorian Institute of Teaching [2020] VCAT 1359
University of Sydney v ObjectiVision Pty Limited [2019] FCA 1625

List of

Texts/Papers cited: S Christensen, K Weston, and R Low, ‘The Requirements of Writing for Electronic Land Contracts – The Queensland Experience Compared with Other Jurisdictions’, [2003] MurdochUeJlLaw 28; (2003) 10(3) Murdoch University Electronic Journal of Law

Tribunal:Senior Member D Stewart

Date of Orders:  31 July 2023
Date of Reasons for Decision:      8 September 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 95/2023

BETWEEN:

KATRINA BAILEY
Applicant

AND:

DEAN MCCRAE
First Respondent

CLAUDIA BENITEZ
Second Respondent

JESSE BELL
Third Respondent

TRIBUNAL:Senior Member D Stewart

DATE:31 July 2023

ORDER

Being satisfied that the applicant did not provide a concerns notice to the second respondent in compliance with section 124B(1)(a) of the Civil Law (Wrongs) Act 2002, I make the following order:

The application against the second respondent is dismissed.

Being satisfied that the applicant provided a concerns notice to the first and third respondent in compliance with section 124B(1)(a) of the Civil Law (Wrongs) Act 2002, I make the following orders:

Any subpoenas for documents or other things requested by the Applicant must be filed with the Tribunal before 7 August 2023.
The applicant must give to the Tribunal and to each other party, by 31 August 2023, an outline of submissions in writing and any evidence the applicant relies upon to satisfy the serious harm element as provided for in section 122A of the Civil Law (Wrongs) Act 2002, including:
(a)a witness statement of every witness the applicant will call to give evidence at the hearing, including the applicant;
(b)any expert’s report the applicant will rely on at the hearing; and
(c)any invoices, quotes, receipts, photographs, emails or other material the applicant relies upon.
The respondents must tell the Tribunal in writing by 5 September 2023 if they do not receive the applicant’s material.
The respondents’ each must give to the Tribunal and to each other party, by 28 September 2023, an outline of submissions in writing and any evidence in reply to the material provided pursuant to Order 3.
The applicant must tell the Tribunal in writing by 3 October 2023 if they do not receive the…

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: [2023] ACAT 51
Decision Date: 31 July 2023

CaseChat Overview and Summary

The applicant, Bailey, has commenced proceedings against McCrae and two other respondents in the context of a defamation dispute. The matter was before the court to determine the procedural steps to be taken in light of the applicant's failure to provide a concerns notice to one of the respondents in compliance with the statutory requirements.

The court was required to determine whether the applicant's failure to provide a written concerns notice to one of the respondents constituted a fatal procedural flaw, and if so, whether this defect could be rectified. Additionally, the court had to consider whether there was consent to the use of electronic communication for the filing and service of documents.

The court found that the applicant had not provided a concerns notice to the second respondent in compliance with section 124B(1)(a) of the Civil Law (Wrongs) Act 2002. As a result, the application against the second respondent was dismissed. However, the court found that the applicant had provided the required notice to the first and third respondents, and therefore proceeded to outline the procedural steps to be taken for the remaining respondents. The court ordered the applicant to file subpoenas for documents or other things requested with the Tribunal before 7 August 2023, and to provide an outline of submissions and evidence in support of the serious harm element by 31 August 2023. The respondents were required to provide their outline of submissions and evidence by 28 September 2023. The matter was listed for hearing on 5 October 2023 to determine whether the serious harm element was satisfied.

In light of the findings, the court made orders that the application against the second respondent be dismissed, and issued specific directions for the filing of documents and evidence in relation to the remaining respondents.

Orders

Orders of the court

Being satisfied that the applicant did not provide a concerns notice to the second respondent in compliance with section 124B(1)(a) of the Civil Law (Wrongs) Act 2002, I make the following order:

1. The application against the second respondent is dismissed.

Being satisfied that the applicant provided a concerns notice to the first and third respondent in compliance with section 124B(1)(a) of the Civil Law (Wrongs) Act 2002, I make the following orders:

2. Any subpoenas for documents or other things requested by the Applicant must be filed with the Tribunal before 7 August 2023.

3. The applicant must give to the Tribunal and to each other party, by 31 August 2023, an outline of submissions in writing and any evidence the applicant relies upon to satisfy the serious harm element as provided for in section 122A of the Civil Law (Wrongs) Act 2002, including:

3. (a) a witness statement of every witness the applicant will call to give evidence at the hearing, including the applicant;

3. (b) any expert’s report the applicant will rely on at the hearing; and

3. (c) any invoices, quotes, receipts, photographs, emails or other material the applicant relies upon.

4. The respondents must tell the Tribunal in writing by 5 September 2023 if they do not receive the applicant’s material.

5. The respondents’ each must give to the Tribunal and to each other party, by 28 September 2023, an outline of submissions in writing and any evidence in reply to the material provided pursuant to Order 3.

6. The applicant must tell the Tribunal in writing by 3 October 2023 if they do not receive the respondents’ material.

7. The application is listed for hearing on Thursday, 5 October 2023 at 10:00am to decide whether the serious harm element as set out in section 122A of the Civil Law (Wrongs) Act 2002 is satisfied in this proceeding.

8. The applicant’s address for service is: [redacted].

9. The first respondent’s address for service via their legal representative: [redacted].

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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