Bell v Bailey & Anor (Appeal)

Case [2025] ACAT 56

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BELL v BAILEY & Anor (Appeal) [2025] ACAT 56

AA 54/2024 (XD 95/2023)

Catchwords:               APPEAL – civil dispute – whether Original Tribunal erred by determining proceedings in appellant’s absence – whether appellant served with civil dispute application – whether Original Tribunal erred in finding that the Facebook page which was “served” by Facebook Messenger application was operated by the appellant – Whether Original Tribunal erred in drawing an inference of consent to service of concerns notice by Facebook Messenger, for the purposes of the Electronic Transactions Act 2001– Whether Original Tribunal erred in finding that a concerns notice may be served by Facebook Messenger within section 8 of the Electronic Transactions Act 2001 – Whether Original Tribunal erred in finding that the respondent to the appeal had established serious harm within section 122A of the Civil Law (Wrongs) Act 2002 - Whether the Original Tribunal erred in finding that the appellant was the publisher of defamatory material – Whether the Original Tribunal erred in its award of damages

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008, ss 7A, 15, 16, 17, 18, 22, 47A, 56, 82

Civil Law (Wrongs) Act 2002, ss 115, 118, 122A, 124A, 124B, 139O
Civil Law (Wrongs) Amendment Act 2024
Commonwealth Electoral Act 1918 (Cth), s 101
Electoral Act 1992 (Qld), s 65
Electronic Transactions Act 2001, ss 5, 8, Dictionary
Electronic Transactions Bill 1999 (Cth)
Electronic Transactions Bill 2000
Magistrates Court Act 1930, s 262, part 4.2
Service and Execution of Process Act 1992 (Cth), ss 3, 5, 47, 48, 50; Part 4, Div 2

Subordinate

Legislation cited:        ACT Civil and Administrative Tribunal Procedures Rules 2020 (repealed), rules 19, 20, 21, 24, 26, 28, 29, 35

ACT Civil and Administrative Tribunal Procedures Rules 2024, rule 91

Service and Execution of Process Regulations 2018 (Cth)

Cases cited                
Amer v Eriksson [2019] ACAT 108

Bailey v McCrae & Ors [2023] ACAT 51
Bailey v McCrae & Ors [2024] ACAT 82
Briginshawv Briginshaw [1938] HCA 34
Cassell & Co Ltd v Broome [1972] AC 1027
City of Stirling v Dueschen [2011] WASC 126
Dow Jones & Co Inc v Gutnick [2002] HCA 56
Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27
Faithfull v Woodley (1890) 43 Ch D 287
Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268
Google LLC v Defteros [2022] HCA 27
Greenwich v Latham [2024] FCA 1050
Humphries v TWT Ltd (1993) 120 ALR 693
Jones vDunkel [1959] HCA 8
Kolodzeij v Ali & Anor [2021] ACAT 114
Krutsky v Commissioner for Social Housing [2023] ACAT 68
Lazarus v Azize [2015] ACTSC 344
L&B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15
Mansour v Dangar [2017] ACAT 49

Newsnet Pty Ltd v Patching [2011] NSWSC 690

Rader v Haines [2022] NSWCA 198

Riley v St Vincent De Paul Society Canberra/Goulburn [2025] ACAT 16

Supaphien v Chaiyabarn [2023] ACTSC 240

Wilson v Bauer Media Pty…

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AGLC
Bell v Bailey & Anor (Appeal) [2025] ACAT 56
Case
[2025] ACAT 56
Decision Date

CaseChat Overview and Summary

In Bell v Bailey & Anor, Mr Bell appeals against the decision of the Australian Capital Territory Civil and Administrative Tribunal (ACAT) which found that Ms Bailey had provided evidence of service of a concerns notice before commencing proceedings, and that the publication of defamatory statements about Ms Bailey caused, or was likely to cause, serious harm to her reputation. Mr Bell's primary contentions were that the Tribunal erred in proceeding in his absence and that there was insufficient evidence to establish that Ms Bailey served the concerns notice and that the publication caused serious harm. The appeal was dismissed on all grounds.

The primary legal issues were whether the Tribunal erred in finding that Mr Bell had not been served with a concerns notice and whether the evidence supported the Tribunal's conclusion that the publication caused serious harm. The Court had to determine if the evidence was sufficient to establish that the concerns notice was served to Mr Bell and whether the publication of defamatory statements caused serious harm to Ms Bailey's reputation.

The Court found that Mr Bell had not discharged his onus of proving that the Original Tribunal erred in proceeding in his absence. The Court concluded that Ms Bailey had provided sufficient evidence of service of the concerns notice, including that Mr Bell operated the Facebook page which was served by Messenger application, and that Mr Bell had read and had the opportunity to respond to the notice. The Court also found that the evidence supported the Tribunal's conclusion that the publication of defamatory statements caused serious harm to Ms Bailey's reputation. The evidence included the seriousness of the imputations, the number of people who had viewed the video, and the likelihood of reputational damage.

The Tribunal orders that the appeal is dismissed.

Orders

Orders of the court

The Tribunal orders that:

1.

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr Bell annexed receipts from a real estate agent showing payment of rent, by him, at Address B between 9 March 2022 and 5 April 2022. However, he has not provided any documentary proof of his residence in January 2023, when Ms Bailey searched the electoral roll for his address, or in March 2023, when the Tribunal’s registrar sent the application to the Electoral Roll Address. As Ms Bailey pointed out at the hearing of the appeal, Mr Bell would have been required to vote in the period he said he did not live at the Electoral Roll Address. Had he made himself available for cross examination, the appeal tribunal may have asked him questions about whether it was an address of family or friends, and what contact, if any, he had with people living at that address in early 2023. Conclusion on first ground For the reasons given above, the first ground must fail. Mr Bell has not discharged his onus of proving that the Original Tribunal erred in proceeding in his absence where he had not been served with Ms Bailey’s application and in circumstances where Ms Bailey had provided no evidence of service that would satisfy the requirements of the 2020 Rules. Mr Bell’s second to fourth grounds of appeal challenge the Original Tribunal’s finding that Ms Bailey gave Mr Bell a concerns notice before commencing the proceedings, within the meaning of section 124B(1)(a) of the Wrongs Act. Mr Bell challenges: (a) the Original Tribunal’s factual finding that Mr Bell operated the Facebook page which was served by Messenger application; the Original Tribunal’s inference that Mr Bell had “consented” to service of the concerns notice by Messenger, within section 8 of the Electronic Transactions Act 2001; and(c) the Original Tribunal’s conclusion that s 8 of the Electronic Transactions Act 2001 contemplates the service of a concerns notice by Facebook Messenger. The first question, raised by second ground of appeal, is whether the Original Tribunal’s factual finding that Mr Bell operated the Facebook page which was served by Messenger application was erroneous and should be disturbed. In the particulars to Ground 2, Mr Bell claims that there was “no evidence … to establish the factual basis for this finding”. The Original Tribunal found that “the evidence provided by the applicant is sufficient to establish [Mr McCrae and Mr Bell] were given the concerns notice in the sense that they read and had the opportunity to respond to the notice”.[39][39] Bailey v McCrae & Ors [2023] ACAT 51 at [24] Mr Bell submitted in writing, in relation to Ground 2, that “[t]his standard of proof does not satisfy the test of the civil standard of proof outlined in Briginshaw [v Briginshaw [1938] HCA 34]”. I take that submission to be that the evidence relied upon by the Original Tribunal was not sufficient to satisfy it that the concerns notice had been served on Mr Bell, to the Briginshaw standard. That submission is misconceived. Briginshaw does not import a different standard of proof from the civil standard, but rather is authority for the principle that the degree of satisfaction required in determining that the civil standard has been discharged may vary according to the seriousness of the allegations that are made. That principle may be relevant when determining whether a person has made a defamatory statement. It does not have much relevance to the question of whether a concerns notice has been served.

Ratio Decidendi

Legal Principle Established

Ms Bailey submitted, at the hearing, that she provided significantly more evidence than evidence about people asking how she felt, including evidence about the abuse she received. She referred, in addition, to the seriousness of the imputations, and submitted that it could be inferred that allegations of serious criminal activity meet the serious harm threshold.[66]Consideration of serious harm ground[66] Transcript of hearing dated 11 June 2025, page 38, lines 32-46 To the extent that Mr Bell’s ground concerns the sufficiency of evidence to support the Original Tribunal’s findings, as opposed to the absence of evidence, it does not raise an error of law. Mr Bell has also contended that the Original Tribunal made errors of mixed fact and law. I will deal with Mr Bell’s points in the order he has adopted. First, it was not necessary that Ms Bailey establish that her witnesses had a diminished opinion of her before the Original Tribunal could be satisfied of the serious harm element, as Mr Bell submitted. Ms Bailey’s evidence included that persons who knew her had viewed and commented on the Video. The Original Tribunal was entitled to rely upon that evidence. It is also relevant that the test of serious harm extends to evidence of likely reputational damage. In Greenwich v Latham [2024] FCA 1050, O’Callaghan J said at [163]:The question of whether a statement has caused or is likely to cause serious reputational harm is a matter of fact, which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. His Honour cited, with apparent approval, a passage from the judgment of Richard Parkes KC in Wilson v Mendelsohn [2024] EWHC 821 (KB) at [241]: (1)The ‘harm’ of defamation is the reputational damage caused in the minds of publishees, and may be (but does not have to be) established by evidencing specific instances of serious consequences suffered by a claimant as a result of the reputational harm.(2)Serious harm may be shown by general inferences of fact, drawn from a combination of evidence about the meaning of the words, the situation of the claimant, the circumstances of publication and the inherent probabilities. That brings into play the scale of publication (but serious harm is not simply a ‘numbers game’), whether the statement complained of is likely to have come to the attention of anyone who knew the claimant, and the seriousness of the allegations complained of.(3)It is relevant to consider the risk of percolation of defamatory allegations, especially on social media. It may in such cases be very hard to identify unknown publishees who thought less well of a claimant. It was thus open to Ms Bailey to establish serious harm through general inferences of fact. Given the seriousness of the imputations, the unchallenged evidence as to the number of people who had viewed the Video, and the evidence that people who knew Ms Bailey had seen it or knew about it, the Tribunal was entitled to conclude that Ms Bailey had established that the publication of defamatory matter about Ms Bailey had caused, or was likely to cause, serious harm to her reputation.