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 respondents’ material.
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.
The applicant’s address for service is: [redacted].
The first respondent’s address for service via their legal representative: [redacted].
…………Signed…………

Senior Member D Stewart

REASONS FOR DECISION

Introduction

The applicant in this matter seeks damages for defamation. Under section 124B(1)(a) of the Civil Law (Wrongs) Act 2002 (Wrongs Act), an aggrieved person cannot commence defamation proceedings unless they have given the proposed defendants what is termed a concerns notice. The applicant claims that she had satisfied this requirement by sending the respondents a notice which met the requirements for a concerns notice through the use of the Facebook messenger service. In response, the first and second respondent denied that the use of the Facebook messenger service was sufficient for the notices to have been given to the respondents as required.
On 12 May 2023, directions were made for a preliminary hearing on whether a concerns notice had been issued as required by section 124B(1)(a). A hearing into that matter held on 21 June 2023 was adjourned to allow further evidence to be put forward on issues raised by the applicant and the first and second respondents. At the resumed hearing on 31 July 2023, I determined that a concerns notice had been given to the first and third respondents but not the second respondent and indicated that I would provide my reasons at a later date. These are my reasons.

Legislative background

Section 124B(1) of the Wrongs Act states that:
An aggrieved person cannot commence defamation proceedings unless—
(a) the person has given the proposed defendant a concerns notice in relation to the matter concerned;
A concerns notice is relevantly defined in section 124A(1):
a notice is a concerns notice if—
(a) the notice—
(i) is in writing; and
(ii) states the location where the matter in question can be accessed; and
(iii) informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (the imputations of concern); and
(iv) informs the publisher of the harm that the person considers to be serious harm to the person’s reputation caused, or likely to be caused, by the publication of the matter in question; and
(v) for an aggrieved person that is an excluded corporation—also informs the publisher of the financial loss that the corporation considers to be serious financial loss caused, or likely to be caused, by the publication of the matter in question; and
(b) a copy of the matter in question is, if practicable, provided to the publisher together with the notice.
The Wrongs Act therefore relevantly requires: (a) that the notice be given to the respondents prior to commencing litigation; (b) that the notice be in writing; and (c) that the notice includes various content requirements. There was no concern raised by the respondents over whether the purported notice complied with the content requirements.
Part 19.5 of the Legislation Act 2001 (Legislation Act) provides for how a document may generally be served (whether the word “serve”, “give”, “notify”, “send” or “tell” or any other word is used). Under section 247(1):
A document may be served on an individual—
(a) by giving it to the individual; or
(b) by sending it by prepaid post, addressed to the individual, to a home or business address of the individual; or
(c) by faxing it to a fax number of the individual; or
(d) by emailing it to an email address of the individual; or
(e) by leaving it, addressed to the individual, at a home or business address of the individual with someone who appears to be at least 16 years old and to live or be employed at the address.
As commonly used terms, document and writing are defined in the Legislation Act for the purposes of that Act as well as other Territory legislation (see section 144 Legislation Act):
document means any record of information, and includes—
(a) anything on which there is writing; or ...
(c) anything from which images, sounds, messages or writings can be produced or reproduced, whether with or without the aid of anything else; ...
writing includes any way of representing or reproducing words in visible form.
The reference to “giving it to the individual” in section 247(1)(a), at least when contrasted with the other means of serving a document in section 247(1), appears to refer to physically providing the document, either in paper form or some form of tangible recording from which it can be reproduced. Therefore, the use of Facebook messenger, a form of electronic communication, is not necessarily sufficient to meet the requirement in section 247 of the Legislation Act that the concerns notice be in writing and given to the proposed defendants.
However, section 251 of the Legislation Act, Part 19.5, which includes section 247, “does not affect the operation of any other law that authorises or requires service of a document otherwise than as provided under this part”. I note also, which might be to the same effect, that section 247 of the Legislation Act is not a determinative provision (see section 5(3)) and hence its application to the Wrongs Act may be displaced either expressly or by a contrary intention (section 6(3)). The Wrongs Act may be interpreted as itself providing for a concerns notice to be given in writing without necessarily complying with the obligations under section 247(1).
Sections 124A and 124B of the Wrongs Act were introduced by the Civil Law (Wrongs) Amendment Act 2021 to enact the Model Defamation Amendments Provisions 2020 as approved by the Council of Attorneys-General on 27 July 2020. These provisions represented stage 1 of a series of defamation reforms. Concerns notices were intended to encourage the resolution of defamation disputes and avoid litigation altogether (see the explanatory statement accompanying the Civil Law (Wrongs) Amendment Bill 2021).
The requirement to give a concerns notice therefore involves providing proposed defendants to a defamation action notice of the concerns set out in the notice and an opportunity to respond. It is intended as a less formal way of encouraging the parties to resolve their dispute without recourse to the more formal steps in litigation. It may therefore be sufficient for this purpose to establish that a respondent in fact received the notice in a form which provided them with that opportunity to respond.
Neither party argued for this interpretation of the Wrongs Act. Given the findings that I set out below, it is not necessary to reach a concluded view on this matter.
Both parties referred instead to section 8 of the Electronic Transactions Act 2001 (Electronic Transactions Act) as a possible source of authority for how a concerns notice might be given. Section 8 of the Electronic Transactions Act relevantly provides:
(1)     If, under a territory law, a person is required to give information in writing, that requirement is taken to have been met if—
(a)the person gives the information by means of an electronic communication; and
(b)at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
(c)the person to whom the information is required to be given consents to the information being given by means of an electronic communication.
...
(4)     This section applies to a requirement or permission to give information, whether the expression give, send or serve, or any other expression, is used.
(5)     For this section, giving information includes, but is not limited to, the following: ...
(c)giving, sending or serving a notification;
Consent is defined for the purposes of the Electronic Transactions Act as including:
consent that can reasonably be inferred from the conduct of the person concerned, but does not include consent given subject to conditions unless the conditions are complied with.
An electronic communication is defined as:
(a) a communication of information in the form of data, text or images by means of guided or unguided electromagnetic energy, or both; or
(b) a communication of information in the form of sound by means of guided or unguided electromagnetic energy, or both, where the sound is processed at its destination by an automated voice recognition system.
Section 8 of the Electronic Transactions Act provides for a way in which a requirement to give a notice in writing is taken to have been given. It does not limit or dictate other ways in which a requirement to give notice in writing under particular legislation may be met.
It was accepted, at least implicitly, by the parties that the requirement of section 8(1)(b) was met through the use of the Facebook messenger service. The question of whether the required notice was given in writing for the purposes of section 124B(1)(a) of the Wrongs Act therefore gave rise to two issues: whether the applicant had established that each of the respondents had in fact been given the concerns notice; and each had consented to the concerns notice being given by means of an electronic communication.

Evidence submitted

The applicant claims that the respondents were involved with various social media platforms and accounts associated with “Resolute TV” and on which video footage was published of an interview in which defamatory comments are made by the interviewee. The applicant provided various screen shots of exchanges between herself and Facebook messenger profiles under the names of Dean McCrae, Dia Beltran and Jesse Bell which the applicant claimed were used by the first, second and third respondent respectively. These exchanges included the following:
(a)On 22 March 2022, there was a message from Dean McCrae asking, “U free for a phone call later?” and a missed audio call. The applicant responded on 27 March 2022 asking, “who owns Resolute TV?”. Then an exchange follows in which Dean McCrae asks for further information relating to how his platform was involved in publishing material relevant to the applicant. There was a further exchange on 16 April 2022 offering to provide the applicant with a right to respond to allegations made against her.
(b)In further material following the adjournment of the hearing, the applicant provided a screenshot of a message on 9 September 2022 asking Dean McCrae for “an address for the service of legal documents to the Resolute TV” team. It was accepted by the respondents that Mr McCrae did not respond to that message or otherwise provide a physical address for service of documents.
(c)On 22 March 2022, Dia Beltran set a message which was, by the time the screenshot was taken, labelled as unsent and no longer available. The applicant gave evidence that this message was similar to the message from Dean McCrae in that it asked for a phone call. There was only one further brief message from Dia Beltran on 8 December 2022 following numerous lengthy messages from the applicant. A screenshot claiming to be an endorsement by Dia Beltran of a lengthy post by Jesse Bell which included mention of the concerns notice sent to Jesse Bell was also provided.
(d)In further material following the adjournment of the hearing, the applicant provided an article from the online Guardian newspaper and various Facebook posts purporting to link the second respondent with the Facebook messenger profile of Dia Beltran.
(e)On 3 April 2023, Jesse Bell messaged the applicant saying that he had “got off the phone with Dean Mcrae (sic) just before.” and offering to provide protection for the applicant in relation to allegations made against her in the video in question. There was a further message from Jesse Bell on 6 April 2022.
(f)The applicant messaged each of the respondents the concerns notice on 7 November 2022, along with the following message:
I intend to send this electronically - a physical address for the service of legal documents will be required but I respect your privacy enough to start this process without making you feel it has been breached by new legal matters. This is courtesy granted simply because it is something that has unsettled me in the past.
(g)The applicant also provided screenshots of various Facebook messenger exchanges and Facebook public posts, dated after the concerns notice was sent, from Jesse Bell or a profile under the name Jesse Eurokanzo. These posts variously referenced a concerns notice having been received by Jesse Bell and Dean McCrae, the contents of the concerns notice or legal action having been threatened. A screenshot was also provided of a public Facebook post from Dean McCrae linking to a post described as “[a]n Initial public response to one who has declared war on myself and Dean McCrae for no other reason than ‘it’ is afraid to declare war on the big fish...” The applicant claims that she was blocked from accessing the linked post but suspects that it relates to the issue of the concerns notices.

Submissions

The applicant submitted that consent to the use of Facebook messenger for communicating the concerns notice can be inferred from the way the respondents reached out to her on Facebook messenger to initiate contact despite other means of contacting her being reasonably available. There was ongoing contact using Facebook messenger leading up to and following sending the concerns notices which related to publications which are the subject of these proceedings.
In response, solicitors for the first and second respondents disputed that the applicant had established any connection between the profile Dia Beltran and the second respondent. As far as the question of consent to use of electronic communications, the solicitors submitted that, in any of the electronic communications provided by the applicant involving the respondents, “nowhere is there a statement that would satisfy the requirement of section 8(1)(c) [of the Electronic Transactions Act], namely, that the served party consents to service by electronic means”.
In her further response following the adjournment of the hearing, the applicant claimed that the Guardian article and Facebook posts established that the Facebook account of Dia Beltran was the long-term public name and account of the second respondent.
The further submissions for the first and second respondents reiterated that implied consent involves more than demonstrating that the recipient received the documents and “requires some form of act or communication by the recipient that indicates that they agreed to being served that way”. The further submissions denied that the applicant had established that “Dia Beltran” was the second respondent. The submissions also stated that the first respondent had removed a post identified by the applicant in her concerns notice. During argument, the solicitors for the first and second respondents submitted that the consent was related to the content of the communication being consented to in that it had to go beyond consent to using Facebook messenger to communicate generally.

Whether respondents were given the concerns notice

The requirement under the Wrongs Act to give the respondents a concerns notice before being able to commence defamation litigation clearly implies the need to communicate the notice to the potential respondents so as to provide them with the opportunity to respond. This may require establishing that the notice was in fact received by the respondents.
In my view, the evidence provided by the applicant is sufficient to establish the first and third respondents were given the concerns notice in the sense that they read and had the opportunity to respond to the notice. The subsequent exchanges of messages between the first and third respondents and the applicant along with other social media posts were sufficient in my view to establish that the notices had been received.
If needed, I would have been prepared to find that the applicant had established that the Facebook profile named Dia Beltran was operated by or sufficiently connected to the second respondent. However, there is insufficient evidence to establish that the second respondent accessed the concerns notice sent to her using Facebook messenger. The endorsement of a post including reference to the concerns notices being sent, in my view, is insufficient to imply that the second respondent had also received the notice.
Section 8 of the Electronic Transactions Act is headed “Writing”. It is primarily concerned with the form in which information has been given, that is that information be given in writing. Subsection 8(5) provides various examples of giving information, including in section 8(5)(c) “giving, sending or serving a notification”. This suggests that sending the notice is sufficient to give the information for the purposes of section 8(1)(a). There is no express requirement to establish that the information was received, accessed or otherwise read by the respondents.

In my view, the requirement under the Wrongs Act to give a concerns notice to proposed defendants is not necessarily inconsistent with any requirements in the Electronic Transactions Act that the notice be received by the respondents. The Electronic Transactions Act provides an alternative basis on which the notice can be given. Given each of the respondents has been given the notice at least for the purposes of the Electronic Transactions Act, the question therefore arises whether they each consented to being given the notice through the means of an electronic communication so as to be taken to have been given the notice in writing.

Whether respondents consented to the notice being given by means of an electronic communication

The explanatory memorandum to the Electronic Transactions Bill 2000, in which the current version of the relevant provisions was introduced, contains the following discussion of section 8:
This provision is based on the general policy that a person should not be compelled to use an electronic communication to conduct a transaction in order to satisfy requirements or permissions to give information in writing under Territory law.
...
The recipient’s consent is required only in relation to the medium by which the information is communicated where the medium is an electronic communication of some type. The provision is not intended to give the recipient the power to consent to the information contained within the electronic communication. It merely requires a person’s consent to the use of electronic communications as an alternative means of compliance with Territory laws.
The definition of consent set out in clause 5 makes it clear that consent can be inferred from a person’s conduct. This is intended to ensure that express consent is not required prior to every electronic communication. For example, the fact that a person has used electronic mail to communicate an offer to a business should generally be sufficient to allow the business to assume the person’s consent to receiving an acceptance at that e-mail address. However, it is not intended that consent should be inferred from an electronic communication that contains an express refusal to deal via electronic means.
The Electronic Transactions Act was introduced to ensure the law in the Territory relating to electronic transactions was consistent with the Commonwealth. In the revised explanatory statement accompanying the Electronic Transactions Bill 1999 (Cth), the need for consent was described as follows:
While consent would clearly be demonstrated by a person’s express statement of consent, the purpose of this definition is to ensure that express consent is not required in every case and that consent can be inferred from, for example, a history of transactions or previous dealings. However, when determining whether consent can be inferred from a person’s conduct it will be necessary to look at the circumstances of the electronic communication, including the express statements of the person. A person should not, by the operation of this definition, be deemed to have consented to the receipt of information in the form of an electronic communication merely because they have sent or previously used electronic communications. If a person sent an electronic communication containing a message in which the person explicitly stated that they did not want to receive any or all information in the form of an electronic communication, then that express withdrawal of consent must be accepted.
As the explanatory statements suggest, the question of consent is directed to the means or medium used, i.e., there is consent to the use of a form of electronic communication rather than relying on an alternative means of communication such as delivery of a letter by post. It is not a question of whether the recipient has consented to being given the content of the communication, in this case a concerns notice, but rather the use of electronic means to communicate that content.
There is limited case law on this issue, and none was presented by the parties. In my view, the terms of the Electronic Transactions Act, as confirmed by the explanatory statement accompanying introduction of those terms support a broad approach being taken to when consent may be inferred. It is arguable that any consent need only extend to the use of any form of electronic communications, and not necessarily the means actually used. However, even if confined to the use, in this case, of Facebook messenger, in my view, the history of the communications between at least the first and third respondents provide the inference for that consent.
However, any consent must be present at or before the communication in question. Section 8 requires the notice to have been given and accessible by the recipient in the future. Section 8 applies along with sections 13, 13A and 13B, to establish the time and place of dispatch and receipt of an electronic communication. While the conduct of the parties after the communication in question may be consistent with or otherwise assist with demonstrating that the recipient consented to the use of an electronic communication, consent at the time of the communication must be established.[1]
[1] See also Lyndon v Commissioner of Police [2021] NSWIRComm 1086
It is also not sufficient to point to other situations where the recipient of the information may have consented to the use of electronic communications. The issue is whether they have consented to the use of electronic means for the communication in question.
These considerations suggest the following factors are relevant to whether the respondents in this matter have consented to the use of electronic communication:
(a)the prior use of electronic communications between the respondents and the applicant;[2]
(b)the content of those communications to the extent they relate to the subject matter of the communication in question;
(c)any opportunities presented to object to or condition the use of electronic communications;[3] and
(d)the alternative forms of communication available.[4]
[2] See also Steer v AMP Life Limited & AMP Superannuation Ltd [2021] SADC 109 at [103]; Christensen, Sharon; Weston, Katherine; Low, Rouhshi, "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 at [29].
[3] See, for example, University of Sydney v ObjectiVision Pty Limited [2019] FCA 1625 at [611]; Pelligra Build Pty Ltd v Australian Crane & Machinery Pty Ltd [2020] VCC 545 at [57]
[4] See, for example, Taylor v Victorian Institute of Teaching [2020] VCAT 1359 at [14]
The first respondent initiated contact between himself and the applicant through the use of Facebook messenger. He asked for the opportunity to speak by phone but used Facebook messenger to respond to the applicant’s messages. The content of those messengers related to the publications which are the subject of these proceedings, including the hurt they had caused the applicant and what the first respondent could do to prevent further harm to the applicant. There was evidence of responses to the applicant’s concerns.
The applicant also presented evidence that she had asked for an alternative address to send legal documents to which she received no response. The respondent therefore had an opportunity to object to the use of Facebook messenger as a means to communicate legal documents relating to possible defamation proceedings. There was therefore no indication the first respondent intended to use Facebook messenger for the communication of only some forms of content and not others.
In argument, the solicitor for the first and second respondents submitted that the applicant could have conducted a company search to identify the postal addresses of the respondents. The respondents also suggested that the applicant had not established that there was a corporate vehicle involved or that the respondents were connected with any corporation. It might not be obvious, therefore, that a corporate vehicle was involved with the publication of the material. The applicant, in her response to the first Facebook message from the first respondent, had asked “who owns Resolute TV?”. Having requested information from the first respondent directly, in my view, the applicant should not have had to establish any alternative postal address in order to continue communications.
The applicant suggested that, after having asked for the postal address, she decided to send the concerns notices by Facebook messenger in part due to a concern for the respondent’s privacy. However, in my view, while perhaps relevant to the applicant’s motivations for using Facebook messenger, it does not establish that the respondents consented to alternative means for the communication in question.
I also infer on the basis of the evidence presented that the third respondent consented to the use of electronic communication, and Facebook messenger in particular. The exchanges between the applicant and the third respondent indicate that the third respondent also initiated communication with the applicant in relation to the publications in question and actions that the third respondent could do in response.
In contrast, however, the evidence is not sufficient to establish that the second respondent consented to the use of electronic communication. While the second respondent initiated contact with the applicant through the use of Facebook messenger, the evidence provided suggested this message was to request a phone call. Subsequent requests to engage with the applicant were ignored or only cursorily responded to. While the second respondent may have established a public profile suggesting the ready use of social media and Facebook messenger, this was not sufficient to infer that the second respondent had consented to the use of Facebook messenger as a means of ongoing communications in this matter.

Conclusion

I, therefore, find that the requirements of section 8 of the Electronic Transactions Act have been met in relation to the first and third respondents. However, the requirement in section 8(1)(c) was not met in relation to the second respondent. The first and third respondent may be taken to have been given the concerns notice in writing as required under section 124B(1)(a) of the Wrongs Act.
I also note that, to the extent that the Wrongs Act in itself may also support the communication of the concerns notice in a form including Facebook messenger, then this would also have applied to the first and third respondent but not the second respondent.
I, therefore, made orders to dismiss the proceedings against the second respondent and made directions for the further conduct of the matter in respect of the first and third respondents.
………………………………..

Senior Member D Stewart

Date(s) of hearing:	31 July 2023
Applicant:	In person
Solicitor for the first and second respondent:	K Kutasi, Solve Legal
Third respondent	No appearance