Bottrill v Bailey (Civil Dispute)
[2018] ACAT 45
•20 April 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BOTTRILL v BAILEY (Civil Dispute) [2018] ACAT 45
XD 1023/2017
Catchwords: CIVIL DISPUTE – defamation – whether the material is defamatory – whether the respondent is the publisher of the material – whether the respondent is able to avail herself of any of the defences upon which she relies – whether the applicant has made out a case for an award of damages for non-economic loss – whether the respondent’s conduct subsequent to publication gives rise to liability to pay aggravated damages – quantum of damages – whether any award of damages should be reduced pursuant to section 139I of the Civil Law (Wrongs) Act 2002
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 8, 18
Civil Law (Wrongs) Act 2002 ss 118, 120, 124, 125, 126, 127, 135, 136, 137, 138, 139, 139A, 139B, 139C, 139I
Human Rights Act 2004
Cases cited:Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Bishop v New South Wales [2000] NSWSC 1042
Bottrill v Christian and Anor [2016] ACAT 7
Bottrill v Sunol and Anor [2017] ACAT 81
Bottrill v Van Lieshout and Ors [2015] ACAT 26
Byrne v Deane [1937] KB 81
Christian v Bottrill [2016] ACAT 104
Emmens v Pottle (1885) 16 QBD 354
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
Frawley v New South Wales [2006] NSWSC 248
Frawley v New South Wales [2007] NSWSC 1379
Haddon v Forsyth [2011] NSWSC 123
Hird v Wood (1894) 38 SJ 234
Ives v State of Western Australia [2013] WASC 277
Lee v Wilson and Mackinnon (1934) 51 CLR 276
Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
Parmiter v Coupland (1840) 151 ER 340
Piscioneri v Brisciani [2015] ACTSC 106
Prince v Malouf [2014] NSWCA 12
Scott v Sampson [1882] 8 QBD 491
Sim v Stretch [1936] 2 All ER 1237
Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127
Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350
Weatherup v Nationwide News Pty Ltd [2016] QSC 266Webb v Bloch (1928) 41 CLR 331
Wishart v Murray [2015] NZCA 3363
List of
Texts/Papers cited: Balkin, RP and Davis JLR, Law of Torts, 5th ed, 2013
Turner, DJ ‘Internet Defamation Law and Publication by Omission: a Multi-Jurisdictional Analysis’ (2014) 37(1) University of New South Wales Law Journal
Tribunal: Senior Member L Donohoe SC
Date of Orders: 20 April 2018
Date of Reasons for Decision: 20 April 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1023/2017
BETWEEN:
DAVID BOTTRILL
Applicant
AND:
KATRINA BAILEY
Respondent
TRIBUNAL: Senior Member L Donohoe SC
DATE:20 April 2018
ORDER
The Tribunal orders that:
1.Judgment is entered for the applicant in the amount of $18,750 plus $130 allowable costs.
2.The respondent, immediately upon service of these orders upon her, is to remove the Van Lieshout Material from her Facebook page.
3.The respondent, immediately upon service of these orders upon her, is to publish an apology on her Facebook page and to provide the applicant with a hard copy of the apology.
4.The respondent is to pay the sum of $18,880 to the applicant within 28 days of this order.
………………………………..
Senior Member L Donohoe SC
REASONS FOR DECISION
Summary of Tribunal Decision
1.The applicant brought a claim against the respondent alleging that, on or about 27 June 2017, she had published on her Facebook site a link to a YouTube video in which Teresa Van Lieshout appeared and, in her monologue made comments which contained defamatory imputations about him personally and by virtue of his involvement with the Ordo Templi Orientis (the OTO).
2.Accompanying her spoken words, there appeared text of some 300 words, which repeated the defamatory imputations and also contained an additional defamatory imputation. (Audio/visual and text referred to as the Van Lieshout Material).
3.The applicant sought an order for an award of damages, an order that the respondent permanently remove the Van Lieshout Material, that she publish an apology and that she provide a hardcopy of the apology to him.
4.The Tribunal has found that the Van Lieshout Material contained the defamatory imputations as alleged by the applicant.
5.The Tribunal has found that the respondent has not made out any of the statutory defences upon which she relied pursuant to sections 135, 136, 137, 138, 139, 139A, 139B, and 139C of the Civil Law (Wrongs) Act 2002 (the CLW Act).
6.The Tribunal has found that the applicant is entitled to an award of damages for non-economic loss.
7.The Tribunal has found that the respondent’s conduct subsequent to publishing the defamatory imputations aggravated the damages to which the applicant is entitled.
8.Subject to section 139I of the CLW Act, the Tribunal has assessed the applicant’s damages for non-economic loss as $25,000 being the limit of the jurisdiction of the tribunal.
9.The Tribunal has also found that the respondent was entitled mitigate the applicant’s damages pursuant to section 139I of the CLW Act.
10.The Tribunal has assessed the applicant’s damages for non-economic loss including aggravated damages, interest and costs at $18,880.
11.In these reasons, a reference to the ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally or a previous tribunal and a reference to the ‘Tribunal’ refers to the current member who heard the matter.
Background
12.Sometime on or about 27 June 2017, an acquaintance of the applicant alerted him to a Facebook post by a person known as Kat A Klayton. The post contained an image of a YouTube video and some written words, namely “David Bottrill; Ordo Templi Orientis (OTO, Australia)”.[1] The OTO is an organisation to which the applicant belongs.[2]
[1] Transcript of proceedings 21 February 2018 page 46, line 27; page 47, line 37
[2] Extract from Notice of Concern
13.He logged on to Facebook and entered ‘Kat A Klayton’.[3] He located the post and clicked on to the linked YouTube video[4] and found that, in it, a woman spoke certain words.
[3] Transcript of proceedings 21 February 2018 page 47, line 30
[4] Transcript of proceedings 21 February 2018 page 48, line 34
14.The woman was Teresa Van Lieshout. The applicant recognised her.[5] In the YouTube video, Ms Lieshout referred to litigation in the ACAT involving the applicant, herself and others.[6] She also said certain things about the applicant and the OTO. Some of the content of Ms Lieshout’s spoken words on the YouTube video allegedly contain defamatory imputations.[7]
[5] Transcript of proceedings 21 February 2018 page 48, line 12
[6] Bottrill v Van Lieshout and Ors [2015] ACAT 26
[7] Transcript of proceedings 21 February 2018 page 25, line 1; Tribunal viewed the Van Lieshout YouTube video
15.In addition to the words spoken by Ms Van Lieshout on the YouTube video, there appeared text consisting of some 300 words, which contained, inter alia, the words, “The former treasurer, now confessed “life member” of the satanic group…”.[8] That text also contained two other references to the word ‘satanic’.
[8] Transcript of proceedings 21 February 2018 page 46, lines 28-29; Exhibit A
16.Sometime later, the applicant learned that the subject Facebook page containing the link to the Van Lieshout YouTube video belonged to the respondent. There is no dispute that the respondent has in the past and still uses the pseudonym, Kat A Klayton, as well as another, Anirtak 76 to publish material on the Internet.[9] There is no dispute that the respondent posted the link on her Facebook page to the Van Lieshout YouTube video.
[9] Respondent’s submissions/evidence
The proceedings
The applicant
17.On 3 November 2017, the applicant filed an amended civil dispute application in the Tribunal.
18.The applicant alleges that the respondent was the publisher of alleged defamatory material, which named him because, by posting the link to the Van Lieshout YouTube video on her Facebook page:
(a)she intentionally lent her assistance to the existence of the Van Lieshout Material for the purposes of it being published;[10] or
[10] The applicant did not make this submission in his written submissions. However, it is implicit from the evidence upon which he relied and his oral submissions
(b)she had “ratified or assumed responsibility”[11] for the alleged defamatory imputations contained in the Ms Van Lieshout Material; and
[11] Applicant’s written submissions filed 3 November 2017
(c)she ought reasonably to have known that the Van Lieshout Material was defamatory. Alternatively, the applicant alleged that the respondent’s lack of knowledge in this respect was negligent.
19.The applicant alleges that persons other than himself and the respondent had viewed the Van Lieshout Material. The applicant alleges that he has been defamed by the publication by the respondent of the Van Lieshout Material. He claims damages and interest. The applicant also claims aggravated damages for the respondent’s subsequent conduct. The applicant submitted that, if he is entitled to an award of damages for non-economic loss, such damages ought not be reduced by reason of the fact that on two recent occasions he had obtained two awards of damages in respect of the publication of material that contained the same meaning and effect as the alleged defamatory imputations alleged in this case.[12]
[12] The applicant conceded that the defamatory imputations are the same. See transcript of proceedings 21 February 2018 page 141, line 40
The respondent
20.In addition to filing her formal response on 29 November 2017, the respondent filed evidence and submissions. Further evidence and submissions were filed in December 2017 and January 2018.
21.In both her formal response and her later amended response,[13] the respondent denied that she was the publisher. She also denied that she had been negligent and she invoked all of the defences available to her pursuant to the CLW Act. Further, she submitted that she was entitled to mitigate the applicant’s damages because the applicant had, on two recent occasions, obtained two awards of damages in respect of the publication of material that contained the same meaning and effect as the alleged defamatory imputations alleged in this case.
[13] Contained at page 11 of a bundle of documents, one of which bore the title ‘Multiple cases of the same material matter’, dated 27 November 2017
22.The respondent also raised other matters of concern to her, which were strictly speaking, not defences, but rather, were more in the nature of evidentiary issues and procedural complaints. The distinction between defences in the conventional sense or answers to the applicant’s claim and other matters sometimes became blurred.
Interlocutory matters
23.The respondent made a number of procedural and other complaints regarding, inter alia, the service of documents, notice, the applicant’s conduct, his alleged procedural shortcomings and the management generally of this application by Tribunal members and staff. The litigation was the subject of numerous directions hearings, which, amongst other things, attempted to address these issues of concern and complaint.
24.The respondent sought interim relief. She sought to strike out or to have the applicant’s claim summarily dismissed. That application was heard on 31 January 2018 and, after hearing submissions from both parties, her interim application was dismissed by a differently constituted tribunal.
25.On 20 February 2018[14], the matter was listed for a return of subpoena to which the applicant had given notice of his intention to seek orders that the subpoena be set aside. The ground for seeking the order was that the subpoena was too wide. After some examination of the documents produced the applicant withdrew his objection and the Tribunal ordered that access to the documents produced to the Tribunal be granted to the respondent.
[14] The day before the hearing
26.On that day, the respondent raised another concern. It was that, by copying the supplementary written submissions filed by the applicant on 14 February 2018, which contained words that she maintained defamed her, the Tribunal staff had published defamatory material. The Tribunal addressed her concern thus; were her concern to amount to anything substantive, it may give rise to a cause of action, which the respondent was at liberty to bring at the appropriate time.[15]
[15] Transcript of proceedings 20 February 2018 page 10, line 45, to page 13, line 35
The hearing
27.This application was heard on 21 February 2018.
28.Both the applicant and the respondent represented themselves.
29.Both parties had identified the issues in written material filed in the Tribunal. The parties filed evidentiary material. In the respondent’s case, the evidentiary material she filed was voluminous. Both parties filed comprehensive written submissions. The issues were clear.
30.Prior to the matter proceeding, the Tribunal explained the procedure that it proposed to adopt in relation to the conduct of the proceedings.[16] It was the customary procedure. It was necessary to explain this to the parties, because, although the applicant was conversant with such procedure, as he had appeared for himself in previous cases of this nature in the ACAT and other jurisdictions, the respondent had not.
[16] Transcript of proceedings 20 February 2018 page 15, line 42, to page 17, line 25
The evidence
31.It was also necessary to explain to the parties that, although section 8 of the ACT Civil and Administrative Tribunal Act 2008 did not mandate compliance with the rules of evidence, the Tribunal would, nonetheless have some regard to them.[17] That was because, as the Tribunal explained, some serious allegations relating to the applicant had been made in the allegedly defamatory material and because of the potential for there to be an adverse order against the respondent. For those reasons, the Tribunal explained that the evidence would need to be both probative of the issues in dispute and persuasive.[18]
[17] Relevance and hearsay – transcript of proceedings 20 February 2018 page 14, line 44, to page 15, line 40
[18] See President Crebbin in Christian v Bottrill [2016] ACAT 104 at [39]
32.At the outset, the Tribunal observed that much of that potential evidentiary material that had been filed was unsatisfactory. Where that evidence consisted of screenshots, those documents were often difficult to read. Nevertheless, many such arguably relevant documents were, in due course, admitted into evidence.
33.The respondent filed a bundle of documents in the Tribunal (the Respondent’s Filed Evidence). It contained her defence, submissions as well as evidence. The Respondent’s Filed Evidence can be described thus:
(a)‘Video Transcript’ with Internet comments – consisting of a complete transcript of the Van Lieshout video and Internet comments on it.
(b)‘Multiple cases with the same material matter’ – material consisting of references to cases involving the applicant, Oxford Dictionary extract and a response;
(c)‘Examples of public domain matter…’ – consisting of fifty-one URLs together with the respondent’s editorial comments regarding the content of the hyperlinked material; and
(d)‘To whom it may concern’ – consisting of sixty-six more URLs together with either the respondent’s editorial comment or reproduced extracts from material hyperlinked or what might be described as submissions, argument or comment made, presumably by the respondent (the URL Documents).
(e)‘By-laws of Ordo Templi Orientis’ - self-explanatory.
URL Documents
34.A URL is not a document. A URL is not evidence. The document in the URL address may be evidence. However, in this form submitted by the respondent, the URL Documents were inadmissible.
35.Moreover, to the extent that the documents described in (c) above contained the respondent’s editorial comments, the Tribunal regarded them as submissions, not evidence. To the extent that the documents described in (d) above contained extracts or summaries of publications by other authors, those were, prima facie, inadmissible unless the entire publication was tendered for the Tribunal’s assessment of admissibility.
36.At the outset, the Tribunal communicated these evidentiary difficulties to the respondent and invited her to download or arrange to have downloaded as many of the those documents identified in the URL Documents and the extract/summary documents that she relied upon to be tendered by her in her case.[19]
[19] Transcript of proceedings 21 February 2018 page 8
37.Both parties gave evidence and both parties were cross-examined.
The oral evidence
38.The applicant called one witness, who gave evidence in person. He was Mr Tony Lee Edwards. He was cross-examined.
39.The respondent called two witnesses by telephone. They were Ms Van Lieshout and Ms Tina Mason. Only Ms Van Lieshout was cross-examined.
Evidence generally
40.Some remarks regarding the evidence generally in this case are warranted.
41.The respondent’s presentation of her case and to a far lesser extent, the applicant’s as well, was a combination of evidence and submission. In the respondent’s case that was so even when she was not formally giving sworn evidence. When the respondent did give sworn evidence that too consisted of submission or argument rather than evidence in the strict sense.
42.Litigants in person are not criticised for confusing the two concepts. That is particularly the case in the ACAT where so many litigants appear without legal representation.
43.However, the distinction between the two concepts is important in a case such as this because evidence is required and submission is not evidence. Moreover, in a case such as this – as the Tribunal was at pains to explain to the parties – the need for cogent evidence, even if the rules of evidence, strictly speaking, did not apply, is very important when it comes to assessing the evidence in each party’s case.
44.The manner in which the parties presented their respective cases necessitated questions from the Tribunal, which were, at times both obvious and necessarily provocative.
The YouTube video
45.The Tribunal indicated to the parties that it had viewed the YouTube video prior to the hearing in preparation for it.
46.It was also viewed as part of the hearing.[20] In both those ways therefore, the Tribunal had informed itself as to the contents of the Van Lieshout YouTube video.
[20] Transcript of proceedings 21 February 2018 page 25
The documentary evidence
47.Both parties tendered a number of documents in evidence. The Tribunal admitted the following documents into evidence.
Applicant’s Evidence
Exhibit 1 Partial/summary transcript of the Van Lieshout Video Exhibit 2 Screenshot of a Facebook page headed ‘Kat A Klayton shared her post’ Exhibit 3 Three pages of screenshots posted by Kat A Klayton Exhibit 4 Screenshot of post by Anirtak 76 Exhibit 5 Screenshot of Facebook page re ACAT procedures Exhibit 6 Screenshot of Kat A Klayton on ‘Pedohunters Anonymous Australia’ Exhibit 7 Screenshot of Pauline Hanson’s One Nation Supporters group discussion page Exhibit 8 Statutory Declaration of Mr Edwards declared 30 October 2017 Exhibit 9 Formally MFI 1A and 1B – two screenshots of Kat A Klayton’s Facebook page showing the Van Lieshout YouTube video. Respondent’s Evidence
Exhibit A Two screenshots of Kat A Klayton’s Facebook page showing the Van Lieshout YouTube video Exhibit B Transcript of the audio Van Lieshout YouTube video; Full text as visualized appearing beneath image on the Van Lieshout Video and seven pages of the YouTube video link page contents containing the comments section Exhibit C Screenshot of respondent’s Facebook settings Exhibit D Respondent’s Facebook log records Exhibit E Google screenshot of ‘David Bottrill’ posts Exhibit F Document – Articles posted online by Kat A Klayton Exhibit G Three screenshots – two Kat A Klayton posts re ACAT and Australian Human Rights Commission hearing, 30 June 2017; two Kat A Klayton posts 20 May 2017 re OTO; and two Kat A Klayton post re AHCT and ACAT hearings 30 June 2017 (appears to be the same as the first post in Exhibit G) Exhibit H Copy OTO gnostic mass document Exhibit I Copy by-laws of OTO Exhibit J Statutory Declaration of respondent, declared 11 December 2017 attaching Statutory Declaration of Teresa Van Lieshout, declared 4 December 2017 Exhibit K Screenshot of material posted on the Internet ‘Thelema and Yezidi ‘Devil Worshipers’ regarding OTO Exhibit L Screenshot of OTO – Australian Capital Territory material posted on the Internet Exhibit M Screenshot of Kat A Klayton Facebook page containing four posts - timeline June 2017 – 1. “Pastors say no to radical LGBT program in public schools; not in our city; not our children”; 2. Kat A Klayton shared a link 27 June “David Bottrill; Ordo Templi Orientis (OTO, Australia) The former national treasurer and confessed ‘Life Member, of…” Like – Comment – Share; 3. Kat A Klayton added 2 more photos 27 June – “So lots of you know…..my little safe schools theory….”; 4. Notification (remainder unable to be read).
Applicant’s contentions
48.The applicant’s contentions are contained in attachment A to his civil dispute application filed on 25 August 2017 and his amended civil dispute application filed 3 November 2017 under the heading ‘What is the dispute about?’. In both, he alleges that:
(a)on 27 June 2017, the respondent published on Facebook materials, which defame him;
(b)the published materials consist of text and an embedded audiovisual file of some 9.5 minutes duration;
(c)the audiovisual file is the YouTube video;
(d)the text has the plain meaning that the applicant is a member of a satanic group;
(e)the spoken words contain the defamatory imputations that:
(i) the applicant is a member of a paedophile group, which kills and tortures victims; and
(ii) the applicant uses his employment to facilitate the entry into Australia of minors for paedophilia by Muslim men.
(f)the ‘published’ materials have been viewed in the ACT; and
(g)A notice of concern delivered to the respondent on 16 August has not been responded to before the application was filed.
Respondent’s contentions
49.The respondent filed a response to the civil dispute application[21] and, under the heading, ‘disputed claim’, she set out her summary of contentions. They were:
[21] 29 November 2017
(a)that the application should be dismissed as it has no basis in law;
(b)that the application was misconceived and frivolous;
(c)the application did not fit the definition of negligence;
(d)the respondent did not owe the applicant a duty of care;[22]
[22] A number of her contentions were dealt with in the interim application and were not the focus of the hearing
(e)that the respondent re-posted a public link on her Facebook page;
(f)that the respondent did not make any of the statements alleged in this complaint and nor had she acted as an accused in the ‘Notice of Concern’ issued by the applicant;
(g)that attachment C[23] was a blatant misrepresentation of the video transcript – referring to an ACAT case in 2014; and
[23] Now Exhibit 1
(h)that the respondent was concerned about the way in which the applicant had obtained her residential address, which was a significant breach of privacy and security.
50.Included in the respondent’s filed evidence at (c) is a further response, where she helpfully set out a number of points. She contended that:
(a)she did not prepare or issue the YouTube video link. This was the action of Ms Van Lieshout;
(b)the item in question was not printed. It is digital;
(c)she did not create the video. She did not upload the content. She cannot change or edit the video or its description or its associated link; and
(d)she did not formally announce or comment on the content.
51.Leaving aside contentions already dealt with in the respondent’s interim application and leaving aside contentions that were moot and those that were procedural complaints, properly construed, the remaining contentions set out in both documents amount, amongst other things, to a substantive contention by the respondent that she did not publish the Van Lieshout material. Publication in this case is the threshold issue.
52.In addition to her contentions, and in answer to the whole of applicant’s claim, the respondent invoked the defences provided for in Part 9 the CLW Act. She relies upon all nine of the statutory defences.
The law to be applied
53.Defamation is a complex tort. Liability is described as strict. It exists to protect a person’s reputation, an interest, which is highly prized but intangible. The tort protects a person against the loss of their right to or interest in their reputation. That is achieved by the imposition on others of a duty not to infringe that right or interest. An award of damages remedies harm to reputation.[24] In Scott v Sampson,[25] Cave J explained the nature of the right, which is concerned in an action for defamation:
[24] Turner, DJ ‘Internet Defamation Law and Publication by Omission: a Multi-Jurisdictional Analysis’ (2014) 37(1) University of New South Wales Law Journal, page 5
[25] [1882] 8 QBD 491
Speaking generally the law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action.
54.The range and variety of the defences available seek to strike a balance between the interest in one’s reputation and a mainstay of democracy, freedom of speech.
55.It is governed by uniform defamation legislation throughout Australia and, in the Territory, it is contained in Chapter 9 of the CLW Act. The general law also governs it.[26] That is informed by judicial decisions. Set out below are the relevant sections of the CLW Act:
[26] Section 118 of the CLW Act
118Tort of defamation
(1)This chapter relates to the tort of defamation at general law.
(2)This chapter does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication).
(3)Without limiting subsection (2), the general law as it is from time to time applies for the purposes of this Act as if this chapter as in force immediately before the commencement of this section had never been enacted.
120Single cause of action for multiple defamatory imputations in same matter
A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than 1 defamatory imputation about the person is carried by the matter.
56.Sections 124-127ff of the CLW Act deal with resolution of such disputes without recourse to litigation. Relevantly, they provide:
124Application—div 9.3.1
(1)This division applies if a person (the publisher) publishes matter (the matter in question) that is, or may be, defamatory of another person (the aggrieved person).
(2)The provisions of this division may be used instead of the provisions of any rules of court or any other law in relation to payment into court or offers of compromise.
(3)Nothing in this division prevents a publisher or aggrieved person from making or accepting a settlement offer in relation to the publication of the matter in question otherwise than in accordance with the provisions of this division.
125Publisher may make offer to make amends
(1)The publisher may make an offer to make amends to the aggrieved person.
(2)The offer may be—
(a)in relation to the matter in question generally; or
(b)limited to any particular defamatory imputations that the publisher accepts that the matter in question carries or may carry.
(3)If 2 or more persons published the matter in question, an offer to make amends by 1 or more of them does not affect the liability of the other or others.
(4)An offer to make amends is taken to have been made without prejudice, unless the offer provides otherwise.
126When offer to make amends may be made
(1)An offer to make amends cannot be made if—
(a)28 days have elapsed since the publisher was given a concerns notice by the aggrieved person; or
(b)a defence has been served in an action brought by the aggrieved person against the publisher in relation to the matter in question.
(2)A notice is a concerns notice for the purposes of this section if the notice—
(a)is in writing; and
(b)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).
(3)If an aggrieved person gives the publisher a concerns notice, but fails to particularise the imputations of concern adequately, the publisher may give the aggrieved person a written notice (a further particulars notice) requesting the aggrieved person to provide reasonable further particulars about the imputations of concern as specified in the further particulars notice.
126When offer to make amends may be made
(1)An offer to make amends cannot be made if—
(a)28 days have elapsed since the publisher was given a concerns notice by the aggrieved person; or
(b)a defence has been served in an action brought by the aggrieved person against the publisher in relation to the matter in question.
(2)A notice is a concerns notice for the purposes of this section if the notice—
(a)is in writing; and
(b)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).
(3)If an aggrieved person gives the publisher a concerns notice, but fails to particularise the imputations of concern adequately, the publisher may give the aggrieved person a written notice (a further particulars notice) requesting the aggrieved person to provide reasonable further particulars about the imputations of concern as specified in the further particulars notice.
127Content of offer to make amends
(1)An offer to make amends—
(a)must be in writing; and
(b)must be readily identifiable as an offer to make amends under this division; and
(c)if the offer is limited to any particular defamatory imputations—must state that the offer is so limited and particularise the imputations to which the offer is limited; and
(d)must include an offer to publish, or join in publishing, a reasonable correction of the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited; and
(e)if material containing the matter has been given to someone else by the publisher or with the publisher’s knowledge—must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person; and
(f)must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer; and
(g)may include any other kind of offer, or particulars of any other action taken by the publisher, to redress the harm sustained by the aggrieved person because of the matter in question, including (but not limited to)—
(i)an offer to publish, or join in publishing, an apology in relation to the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited; or
(ii)an offer to pay compensation for any economic or non‑economic loss of the aggrieved person; or
(iii)the particulars of any correction or apology made, or action taken, before the date of the offer.
(2)Without limiting subsection (1) (g) (ii), an offer to pay compensation may comprise or include 1 or more of the following:
(a)an offer to pay a stated amount;
(b)an offer to pay an amount to be agreed between the publisher and the aggrieved person;
(c)an offer to pay an amount determined by an arbitrator appointed, or agreed on, by the publisher and the aggrieved person;
(d)an offer to pay an amount determined by a court.
(3)If an offer to make amends is accepted, a court may, on the application of the aggrieved person or publisher, determine—
(a)if the offer provides for a court to determine the amount of compensation payable under the offer—the amount of compensation to be paid under the offer; and
(b)any other question that arises about what must be done to carry out the terms of the offer.
(4)The powers conferred on a court by subsection (3) are exercisable—
(a)if the aggrieved person has brought proceedings against the publisher in any court for defamation in relation to the matter in question—by that court in those proceedings; and
(b)except as provided in paragraph (a)—by the Supreme Court.
The issues
57.The issues for determination by the Tribunal are:
(a)Is the Van Lieshout material defamatory?
(b)Is the respondent the publisher of the Van Lieshout material?
(c)If (b) is answered in the affirmative, is the respondent able to avail herself of any of the defences upon which she relies?
(d)if (c) is answered in the negative, has the applicant made out a case for an award of damages for non-economic loss?
(e)Has the respondent’s conduct subsequent to publication given rise to liability to pay aggravated damages?
(d)If (d) and (e) are answered in the affirmative, what is the quantum of damages including aggravated damages?
(f)Should any award of damages be reduced pursuant to section 139I of the Act?
Consideration – the issues
(a) Is the Van Lieshout Material defamatory?
58.The classic definition of what constitutes defamation is that given by Lord Wensleydale (then Parke B) in Parmiter v Coupland.[27] He said that in cases of libel, it was for the judge to give a legal definition of the offence, which he defined as being:
[27] (1840) 6 M & W 105 at [108]; 151 ER 340 at [341]-[342]
A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule . . .
59.However, in Sim v Stretch,[28] Lord Atkin expressed the view that the definition in Parmiter v Coupland was probably too narrow and that the question was complicated by having to consider the person or class of persons whose reaction to the publication provided the relevant test. He concluded this passage in his speech:
[28] [1936] 2 All ER 1237 at [1240]
….after collating the opinions of many authorities I propose in the present case the test: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?
60.This last expression of the definition has been accepted in Australia.[29]
[29] Butterworths Concise Australian legal Dictionary, 3rd ed. 2008. See also Piscioneri v Brisciani [2015] ACTSC 106 per Burns J at [53]
61.So the relevant question to be asked is this:[30] Would a fair-minded person of average intelligence, who was not overly suspicious or naïve, who was not straining or forcing meanings, who was not avid for scandal and who read the entirety of the publication about which the complaint is made think that the words complained of tended to lower the applicant’s reputation in the eyes of the public at large?
62. The defamatory imputations were:[31]
(a)That the applicant is a member of a satanic group.[32]
(b)That the applicant is a member of a paedophile group.
(c)That the paedophile group has victims.
(d)That the paedophile group is involved in criminal activity including torture and murder.
(e)That the applicant uses his employment to facilitate paedophilia through importation of children into Australia.[33]
[30] Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; Haddon v Forsyth [2011] NSWSC 123
[31] Transcript of proceedings 21 February 2018 page 5, line 1 to line 25
[32] Readily ascertainable from the text accompanying the Van Lieshout video
[33] (b) to (e) defamatory imputations from the audio Van Lieshout video; Transcript of proceedings 21 February 2018 page 5, line 0 to line 20
63.The Van Lieshout Material identifies the applicant by name and also by his association with the OTO.
64.To determine whether the imputations were conveyed, consideration must be given to whether ordinary reasonable readers would have understood the words complained of, read as a whole, as being defamatory.[34] Regard is had to the natural and ordinary meaning of words, which includes inferences and conclusions, which the ordinary man draws from the words used.[35]
[34] Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [9]; Marsden at 164 to 167
[35] Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 641; Prince v Malouf [2014] NSWCA 12 at [99] to [100]
65.There is no complexity, subtlety or ambiguity in the words used, which are set out in the imputations. The meaning of the words is readily ascertainable. When given their ordinary and natural meaning the impression[36] given to the ordinary person reading them could only have been that they are clearly defamatory.
[36] Ives v State of Western Australia [2013] WASC 277 at [38]
66.The Tribunal is satisfied that ordinary members of society would understand that the words complained of were capable of being defamatory.
(b) Is the respondent the publisher of the Van Lieshout Material?
Introduction
67.Sometime in or around mid 2017, the respondent posted a link on her Facebook page to the Van Lieshout Material. It contained defamatory imputations. She was not the author of it and nor did she have any editorial control over the matter. Prima facie, all she did was post a link to the Van Lieshout video. The respondent’s Facebook page, as viewed on 27 June 2017 can no longer be viewed.
68.Whether or not the respondent can be held responsible as the publisher of the Van Lieshout Material within the common law meaning of that term depends upon establishing the requisite positive act or conduct of omission on her part.
69.What is required at law, however, to establish publishing by positive act is proof of a mental element of intention to publish or assist in the publication or an inference of conduct amounting to an omission to act evidenced by notice and a failure to act.
Publication by positive act – what appeared on the respondent’s Facebook page as at 27 June 2017?
70.Presumably,[37] the Van Lieshout YouTube video remains in the state it was when the respondent posted the link to it on her Facebook page. Immediately below the image of Ms Van Lieshout on the screen who is seen holding a piece of paper, words are seen (the Introductory Words)”[38]. They accompany the screen image. They read:
David Bottrill; Ordo Templi Orientis (OTO, Australia)
[37] No evidence was led to the contrary
[38] Exhibit A, numbering 7 words
71.The Introductory Words are bland. Without more, they are innocuous. Read objectively, they do not alert the browsing viewer to the fact that, behind the post, there are materials containing defamatory imputations. The Introductory Words do not therefore necessarily contain an enticement to click on the screen image of Ms Van Lieshout in order to see and hear more.
72.When the image of Ms Van Lieshout is clicked on (opened), her audio monologue commences. There is no doubt that her monologue contains defamatory imputations.
73.Significantly, at the same time the audiovisual content commences, more written words appears. The best way to describe this text is that it is hidden, in the sense that it does not appear on the Van Lieshout YouTube video site or form part of the Introductory Words. To view it, the browsing viewer must do something more (click on it).
74.This text is relatively substantial[39] compared to the Introductory Words. It repeats some of the audio material, but, in addition, it also contains further defamatory imputations. That defamatory imputation is that the applicant is member of a satanic group.
[39] Some 300 words
75.Returning to the audio part of the Van Lieshout video file. Ms Van Lieshout commences her audio monologue with the words:[40]:
David Bottrill, the OTO. A very weird situation I’ve found myself in here. I’m getting sued by a man, by Mr David Bottrill who’s the national treasurer of a group believed in the public to be a pedophile group similar to the type of allegations the public makes against groups like the Freemasons…
[40] A complete transcript was tendered by the respondent without objection or submission as to its accuracy. Besides, the bracketed bold and italicised words, which is editorial comment by the respondent, that part of Exhibit B is complete and accurate transcript of the audio Van Lieshout Video file
76.Of perhaps critical significance is that the Van Lieshout audiovisual monologue does not use the words ‘satanic’ or ‘member of the satanic group’.
77.However, it is a different story with respect to the hidden text. Relevantly, that text commences thus:
Public Education Video, in the Public domain. The former National Treasurer, now confessed ‘Life Member’, of the Satanic group, Ordo Templi Orientis (OTO) – Grand Lodge of Australia, Mr David Bottrill, has taken legal action against 6 of us, in the ACT Civil and Administrative Tribunal… (Tribunal’s emphasis)
78.As is evident, the opening words of the hidden text do use the words “member of the satanic group.” The text then makes two more references to ‘satanic’ namely, “satanic pedophile group and satanic men.”
79.Had the Introductory Words contained the words ‘life member of the satanic group’ there is no doubt that they would, not only have carried a defamatory imputation, but it is reasonable to conclude that the objective meaning of those words would have conveyed an inducement for the browsing viewer to do something more, namely, to click on the screen image and discover more. In those circumstances, the intention to assist in publishing would have been present.
80.Because there is no evidence of precisely what appeared on the respondent’s Facebook page at the relevant time, the Tribunal must do the best it can to determine this question. It does so by a consideration of what the Tribunal viewed in the hearing and the evidence relied upon by the parties. The parties gave evidence and relied on respective versions in the form of screenshots, which were tendered.[41]
The applicant’s evidence and exhibit 9
[41] Exhibit 9 (applicant) and Exhibit A (respondent)
81.Apparently, out of necessity, the applicant created[42] a version that he says accurately depicts what he saw and read on the 27th of June 2017 on the respondent’s Facebook page. The applicant’s evidence and submissions were that, when the respondent’s Facebook page was displayed on 27 June 2017, the text he saw (Applicant’s Version of the Introductory Words) read:
David Bottrill; Ordo Templi Orientis (OTO, Australia) The former National Treasurer, now confessed ‘Life Member’ of the Satanic group, Ordo Templi Orientis (OTO) – Grand Lodge of Australia, Mr David Bottrill, h… . (the Tribunal’s emphasis)
[42] By use of the word ‘created’, the Tribunal is attempting to make sense of the evidence at Transcript of proceedings 21 February 2018 page 46 in relation to MFI A & B (later Exhibit 9) to the effect that the text therein viewed was a consequence of the applicant ‘isolating’ a page containing text and superimposing it near where he says he viewed it
82.The Applicant’s Version of the Introductory Words[43] contains more words than the Introductory Words seen by the Tribunal. This text certainly contains the word ‘satanic’. It is the applicant’s case that it was this text that was immediately visible on the respondent’s Facebook page to the browsing viewer.
[43] See also the applicant’s oral evidence and submission at transcript of proceedings 21 February 2018 page 46, line 26 and page 137 line 5 to line 18, respectively
83.He submitted that the respondent’s Facebook pages was analogous to a noticeboard and the words ‘member of the satanic group’ invited people to view the video and thus to hear the audio containing the defamatory imputations.[44]
[44] Transcript of proceedings 21 February 2018 page 139, line 5
84.He submitted that the respondent’s act of posting a link on Facebook, which contained the Applicant’s Version of the Introductory Words, was equivalent to sitting under a sign containing defamatory imputations and pointing to it.[45] Implicit in his submission is that the words ‘member of a satanic group’ is the operative invitation.[46]
[45] The applicant referred to ‘original cases’. They are discussed below
[46] That submission may better be understood as a submission in relation to publication by omission
85.The applicant relied on Exhibit 9. It comprised two documents. One was a blurry, faint with partly obliterated text screenshot (here referred to as Part A) containing words of the Applicant’s Version of the Introductory Words. Part A could best be described, as the Tribunal understood the applicant’s evidence/submission, as being a working document.
86.The other part of the tender (here referred to as Part B) was a clear screenshot of the Applicant’s Version of the Introductory Words. It could best be described the resulting or finished document. The applicant created both documents, because, as noted above, the respondent’s Facebook page could no longer be seen.
87.There are inherent problems with documents that are not original or true copies of the original and are entirely recreated, as these were.
88.The applicant attempted to explain the provenance of the words appearing on his screenshot (Part A), which displays the text with the words ‘member of a satanic group’ in it. He tried to explain how that screenshot had come into existence or, in other words, how it had come to be recreated. He said:[47]
I'm not saying that that is, that is a screenshot made of the item as it appears. If I could submit this one. This is of the Facebook page. Then in Facebook, if you isolate a particular entry it will appear in a screen on its own. The second material that I've just submitted to you is how Facebook appears if you print it. There's overlapping in that document because Facebook has certain controls on it which fold things in if you're printing without any expertise. That's how it appears. If you actually then click on the individual item it will appear and that's why I've tendered the item on its own. That's for clarity because of the small font.
[47] Transcript of proceedings 21 February 2018 page 22, line 13
89.Apart from the inherent difficulties of reliability involved with recreated documents, the applicant’s explanation was neither informative nor persuasive. To the extent that it attempted to explain a technical act of his, it failed to do so. His oral testimony was therefore unhelpful and consequently, Exhibit 9 was of little evidentiary weight. The Tribunal is therefore, not persuaded by the applicant’s evidence in this regard.
90.It seems to the Tribunal that a reasonable inference to be drawn from an analysis of the Van Lieshout YouTube video file is that the only way for the words ‘member of the satanic group’ could have become part of the Applicant’s Version of the Introductory Words, is if they were taken from the hidden text contained in the video file itself. That appears to the Tribunal to be the probable provenance of the Applicant’s Version of the Introductory Words.
91.The applicant also relied upon the evidence of Mr Tony Edwards. The same observations in relation to the probable provenance of the Applicant’s Version of the Introductory Words may be made in relation to his evidence. By reason of the Tribunal’s conclusion based upon its analysis of the Van Lieshout YouTube video file, Mr Edwards’ evidence contained in his Statutory Declaration[48] does not therefore bear scrutiny. It failed to prove what it purported to prove about the Applicant’s Version of the Introductory Words. Tendered for that purpose, the Tribunal similarly finds his evidence unpersuasive. However, other comments are warranted.
[48] Exhibit 8
92.Mr Edwards described himself as a very good friend of the applicant.[49] He gave oral evidence.[50] His oral evidence was, generally speaking, poor. It was vague and imprecise.[51] Moreover, in his evidence in chief, Mr Edwards had to be prompted by the applicant to remember critical points. Notwithstanding prompting, with the exception of one piece of his evidence, Mr Edwards failed to address and identify the alleged defamatory imputations that he said he heard in Ms Van Lieshout’s monologue.
[49] Transcript of proceedings 21 February 2018 page 40, line 40
[50] Transcript of proceedings 21 February 2018 page 39 to page 41
[51] Transcript of proceedings 21 February 2018 page 40
93.However, not only was Mr Edwards’ oral evidence deficient in this respect, but also, it was troubling. When asked what he saw when he logged on to Facebook and saw the Kat A Klayton link to the Van Lieshout YouTube video, the ‘noticeboard’, as the applicant described it, he said:
It was a link relating to a matter involving something that was called a blasphemy case or something like that regarding a Mr Sunol.[52]
[52] Transcript of proceedings 21 February 2018 page 40, line 10
94.Exhibit B contains the complete transcript of the Van Lieshout monologue and also a copy of the hidden text. It was admitted without objection and the applicant did not submit that it was anything other than accurate. Neither the transcript nor the hidden text makes any mention of or a reference to a blasphemy case and neither mention or refer to Mr Sunol.
95.Mr Edwards’ evidence in this respect may have been sloppy, but it is also is untrue. One regrettable inference that might be drawn from this evidence is that he simply made it up or didn’t care whether his evidence was true or false.
96.He was not cross-examined on this point and the applicant did not invite Mr Edwards to correct this obviously misleading evidence. The untruth damaged his credit and tainted the Tribunal’s overall impression his evidence. The Tribunal regarded his oral evidence being generally unreliable. Moreover, he simply failed to address the issue of whether or not the Applicant’s Version of the Introductory Words appeared on the respondent’s Facebook page on 1 July 2017.
97.The Tribunal finds that the Applicant’s Version of the Introductory Words were not visible on the respondent’s link to the Van Lieshout YouTube video on 27 June or 1 July 2017 unless the viewer did something – click on the link.
98.Therefore, the Tribunal is unable to identify the requisite intention on the part of the respondent to assist in publication.[53] It is perhaps unnecessary to consider the respondent’s evidence. But, the Tribunal will consider it to determine whether or not it adds anything to a determination of this question.
The respondent’s evidence – Exhibit A
[53] Webb v Bloch (1928) 41 CLR 331
99.The respondent strongly denied the applicant’s version of what appeared on her Facebook page at the relevant time. She was adamant that her Facebook page displaying the link to the Van Leishout YouTube video did not contain the words ‘member of a satanic group’. She led evidence of what she maintained were the words appearing on her Facebook page.[54]
[54] Transcript of proceedings 21 February 2018 page 86, line 20; Exhibit A
100.Her evidence was that, as at the relevant time, her Facebook page contained this text only[55]:
David Bottrill; Ordo Templi Orientis (OTO, Australia) The former National Treasurer, now confessed ‘Life Member of…’ (the Tribunal’s emphasis).
[55] Exhibit A; Transcript of proceedings 21 February 2018 page 86, line 22; page 89; page 115, line 30
101.Objectively, these words are relevantly meaningless. The respondent offered no explanation of how or why these words came to be present on her version. She was not cross-examined on her evidence in this respect.
102.In addition, it was the respondent’s submission that the applicant’s Exhibit 9 had come into existence by way of tampering on his part.[56] She led no evidence in this regard.
[56] Transcript of proceedings 21 February 2018 page 21
103.Exhibit A did not assist the Tribunal in determining this issue.
Conclusion
104.The Tribunal is therefore not satisfied that the applicant has established publication by a positive act on the part of the respondent.
Publication by omission
105.The applicant submitted that this was a case of publication by omission.[57]
[57] See the applicant’s written submissions and the cases cited therein
106.In such a case, a person who is authorised to remove or amend defamatory matter, which is the work of another, and who has failed to do so is deemed to have published it.
107.The rules governing publication by omission are derived, originally, from the English Court of Appeal’s decision in Byrne v Deane[58] in which Slessor LJ referred approvingly to Hird v Wood,[59] which was a case in which such peripheral involvement in publication as sitting under and pointing to a defamatory sign was held to amount to publication.[60]
[58] [1937] KB 81
[59] (1894) 38 SJ 234
[60] Turner, DJ ‘Internet Defamation Law and Publication by Omission: a Multi-Jurisdictional Analysis’ (2014) 37(1) University of New South Wales Law Journal at page 4
108.In Australia, development of the publication-by-omission line of authority commenced with Hunt J in Urbanchich v Drummoyne Municipal Council.[61]
[61] (1991) Aust Torts Reports 81-127. See also Bishop v New South Wales [2000] NSWSC 1042, the separate interlocutory determinations of Simpson J and Berman J in Frawley v New South Wales [2006] NSWSC 248 at [17] and [2007] NSWSC 1379 at [6] and Beech-Jones J in Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350
109.Urbanchich concerned posters that contained a photograph of persons in Nazi uniforms in the company of Adolf Hitler that were glued to bus shelters under the control of the NSW Urban transit Authority at six locations. The face of one of the men had been circled and was identified as the plaintiff in the accompanying text, which contained further defamatory imputations.
110.Urbanchich was followed in Visscher v Maritime Union of Australia (No 6)[62] which concerned a publication by the defendant on its website of an article. The article was brief, but it contained defamatory material about the plaintiff who had been the master of a tug caught up in cyclonic conditions. The article contained a hyperlink in the words “READ MORE”.
[62] [2014] NSWSC 350 per Beech-Jones J
111.When the reader clicked on those words, the reader was taken to the website of the Cootamundra Herald, which had published a rather more comprehensive article about the plaintiff. It contained similarly defamatory material. The question was therefore had the defendant union, by publishing the hyperlink READ MORE, published the defamatory imputations contained in the article written under the masthead of the Cootamundra Herald? Beech-Jones J held that the defendant had published that material, as well as the material on its own website.
112.On the question of publication, both the applicant relied upon Visscher.[63] The applicant submitted that the respondent was the publisher of the impugned material because she had ratified or assumed responsibility for the defamatory material.
[63] The applicant also relied upon Urbanchich, Wishart v Murray [2015] NZCA 3363 and Lee v Wilson and Mackinnon (1934) 51 CLR 276. Wishart dealt with the authorities in relation to the publication by omission stream and both cited Urbanchich and Visscher with approval. Lee has nothing to do with the rules governing publication by omission
113.He submitted further that:
The inclusion of the written words[64] and audiovisual content on the respondent’s Facebook page amounts to an adoption or promotion of the content of these – which gives rise to responsibility for its publication.”[65]
[64] It is not clear whether the applicant was referring to his version of the Introductory Words or the hidden text. The Tribunal assumes that he is referring to both
[65] Applicant’s written submissions filed on 3 November 2017
114.The foundational test of publication by omission as expressed by Green LJ in Byrne[66], is whether:
Having regard to all of the facts of the case is the proper inference to be drawn that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it had been put.
[66] At page 338
115.In Urbanchich Hunt J said:
In a case where the plaintiff seeks to make the defendant responsible for the publication of someone else’s defamatory statement which is physically attached to the defendant’s property, he must establish more than mere knowledge on the part of the defendant of the existence of that statement and the opportunity to remove it. According to the authorities, the plaintiff must establish that the defendant consented to or approved or adopted or in some way ratified the continued presence of a statement on his property so that persons other than the plaintiff may continue to read it - in other words, the plaintiff must establish in one way or another an acceptance by the defendant of a responsibility for the continued publication of that statement.
116.Urbanchich is therefore authority for the proposition that an entity will only be a publisher by way of omission after they have had a reasonable period, after being notified of the defamatory material, in which to remove it.
117.Failure to remove the offending material after that time invites the inference of approval, adoption, promotion[67] and so forth. Conversely, prior to the expiration of a reasonable period after which they have been notified, it is not a reasonable inference to draw that they have ratified or assumed responsibility for the material.[68]
[67] Visscher at [20]
[68] Turner, DJ ‘Internet Defamation Law and Publication by Omission: a Multi-Jurisdictional Analysis’ (2014) 37(1) University of New South Wales Law Journal at pages 3 to 5
118.That test gives rise to two implications. The first is that notice[69] is required. Such notice must inform the putative publisher of the existence on his property of the defamatory material and that it is required to be removed within a reasonable period of time and perhaps other relevant demands.
[69] The CLW Act does not prescribe the content of such a notice
119.Section 126 of the CLW Act deals with offers to make amends, the purpose of which is to promote the early resolution of defamation cases without necessity of going to court. It provides for notices of concern. Such a notice is expressed as being a notice for the purposes of section 126. The purpose of section 126 is to set out a timeframe for when an offer to make amends may be made. The plain purpose of the amends provisions of Chapter 9 of the CLW Act is encourage early resolution of defamation cases without the need for courts.
120.Critically, section 126 is not expressed as being a notice for the purposes of anything else, let alone determining whether or not there has been publication by omission. Notice, for the purposes of inferring ratification of or the assumption of responsibility for defamatory imputations is not the same as a notice in relation to the amends system, although they share a similar feature.[70]
Notice [of Concern]
[70] Imputations of concern
121.Evidence of notice is therefore a fundamental element to the requisite inference. On 16 August 2017, the applicant sent a written notice to the respondent.[71] It was the subject of some discussion at the hearing. The Notice was not included in any of the formal documents filed with the Tribunal. The Tribunal asked to see it.[72] The applicant asserted that it was his understanding that the Notice was not generally submitted with the application. He explained why thus; he said that it might not be appropriate for the Tribunal to see it because it could constitute a Calderbank offer.[73]
[120] Transcript of proceedings 21 February 2018 page 53, line 45
[121] Transcript of proceedings 21 February 2018 page 130 to page 133
243.The applicant submitted that there was a narrow and actual group of Facebook friends and followers of the respondent in Canberra and Queanbeyan numbering some twenty persons.[122]
[122] Transcript of proceedings 21 February 2018 page 54, line 5
244.However, he submitted that there was a Facebook or entire computer accessible public that could potentially view the matter and they numbered a billion people.[123] He submitted however, that the real number of the narrower group were the respondent’s friends or followers on Facebook, who he said were five hundred, a number not conceded by the respondent.
[123] Transcript of proceedings 21 February 2018 page 138, line 22
245.There was no evidence of publication beyond Facebook. There is no other relevant evidence. The applicant need only prove that one person viewed the matter. He did that. But in assessing damages the Tribunal must consider the likely number of recipients of the matter. This has always been and remains an inexact science. Not every email notification of a posting on Facebook is opened or read by Facebook friends or followers, just as not every article in every newspaper is read by all subscribers.
246.Nonetheless, the Tribunal must make the best estimate it can on the evidence. While the respondent did not concede that the number of her Facebook friends and followers was in the vicinity of five hundred, nor did she expressly deny that it was so.
247.The evidence of audience is not strong. Nevertheless, the Tribunal can assess it as being as few as twenty and as many as five hundred. That is an extremely wide range. But in any event, realistically, it is a relatively small audience.
248.Against that, there was evidence that about twenty of the audience resided in Canberra or Queanbeyan. That is important because this is the geographical area where the applicant lives and works and where he would hold his reputation very dear.
249.There can be no doubt that the defamatory imputations fall to be considered at the most grievous end of the scale. That is a relevant consideration in relation to the amount to be awarded.
250.Section 18 of the ACT Civil and Administrative Tribunal Act 2008 prescribes a jurisdictional limit in civil disputes of no more than $25,000. The Tribunal is satisfied that, but for section 139I of the CLW Act, an award of the maximum allowable damages inclusive of aggravated damages is warranted.
(f) Should any award of damages be reduced pursuant to section 1391 of the Act?
251.In his written and oral submissions, the applicant submitted that any such reduction should be minimal, if not nil because the respondent had neither apologized and nor had she published any correction. However, that is not an end of the consideration.
252.Section 139I(c) of the CLW Act provides that evidence is admissible on behalf of the respondent on the question of mitigation of damages where the aggrieved person has already recovered damages for defamation in relation any other publication of matter having the same meaning or effect as the defamatory matter.
253.In Van Lieshout and Ors and Christian and Anor[124], the same or substantially the same defamatory imputations were dealt with and an award of damages for non-economic loss at the maximum amount then awardable was made in each case. In each case, the applicant was awarded the maximum amount then prescribed by the ACT Civil and Administrative TribunalAct 2008.
[124] [2016] ACAT 7
254.Therefore, in considering whether to apply this provision in reduction of an award of damages, the Tribunal has to consider the fact that the applicant has successfully sued other respondents over substantially the same defamatory material also published on the Internet and has been awarded the maximum damages.
255.The applicant submits that section 139I should not be applied in his case. He said that where there had been a lapse of time and the defamatory matter was published to essentially a different audience, fresh actions on the same defamatory matter[125] were permitted.
[125] The applicant conceded that the defamatory matter was the same as those for which he successfully litigated and was awarded damages in the Van Lieshout Matter and the Christian Matter
256.In the Tribunal’s view, that submission fails, because it does not take account of the fact that in both the earlier ACAT matters, the material was published to an audience that could have included a local audience and the fact that the two earlier ACAT awards in 2015 and 2016 were close in time to this case.[126] The Tribunal is not persuaded by that submission.
[126] Transcript of proceedings 21 February 2018 page 142, line 7; and page 142, line 25
257.He then submits that there ought to be some consideration given to the applicant’s forbearance in bringing these defamation actions in the ACAT rather than the Supreme Court of the ACT where he might expect to be awarded significantly higher damages. The Tribunal is not persuaded by that submission either.
258.The applicant made deliberate decision to sue in the ACAT because the process is faster and he can get a faster practical result in terms of putting a stop to the defamatory material. He said, in effect, that the money was not important to him. What was important to him, he submitted, was bringing the defamers to heel quickly. However, putting a faster stop to the damage caused by the defamatory material by proceeding in the ACAT instead of the Supreme Court ignores the interim relief available in such matters in the Supreme Court jurisdiction, which could achieve the same result.
259.Understood in that way, the Tribunal does not consider that to be a factor in respect of which it can take into consideration.[127] The jurisdiction in which he chooses to sue therefore is entirely a matter for him and is not relevant.
[127] Section 139I(2) of the CLW Act
260.This question of mitigation involves two competing policy considerations. The first is that the object of defamation law is to protect reputation. It would be a perverse result if an award of damages in relation to a publication of defamatory imputations precluded a party from taking action and being awarded damages against a subsequent publisher of the same or similar defamatory imputations. It would expose that party to any number of repetitions of that material without redress. That would be both unjust and defeat one of the objects of the law of defamation.
261.The second competing interest is whether a party should be awarded the same amount of damages, here not expressed in monetary terms, but rather in terms of the maximum award that can be made in the jurisdiction, for subsequent publications by different publishers of the same or similar defamatory imputations based upon the same or similar material.
262.There is a compelling reason why not. Damages in defamation are awarded for, amongst other things, compensation for loss of reputation, hurt feelings and embarrassment and for vindication. To the extent that an applicant has already been vindicated and been awarded damages for the loss of reputation, hurt feelings and embarrassment caused by the publication of the defamatory imputations, subsequent publication of essentially the same defamatory imputations is likely to cause less loss of reputation, hurt feelings and embarrassment. Further, the vindication required would also be less.
263.The CLW Act reinforces that rationale. Section 139E provides that there be a rational relationship between the damages and the harm. It 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.
264.It would be neither appropriate nor rational to award precisely the same level of damages, expressed in terms of the maximum amount permissible for each and every subsequent publication, as if the applicant had been injured afresh each time.
265.For that reason, the Tribunal will reduce the award of damages for non-economic loss by one quarter. Therefore, the applicant is entitled to an award of damages for non-economic loss in the sum $18,880.00, which is inclusive of aggravated damages, interest and costs.
Decision
266.The Tribunal is satisfied and finds that the respondent defamed the applicant by publishing the Van Lieshout Material on her Facebook page in or about June 2017.
267.The Tribunal is satisfied and finds that the respondent’s conduct, subsequent to publication aggravated the applicant’s damages.
268.Judgment is entered for the applicant in the amount of $18,750 plus $130 allowable costs.
269.The respondent, immediately upon service of these orders upon her, is to remove the Van Lieshout Material from her Facebook page.
270.The respondent, immediately upon service of these orders upon her, is to publish an apology on her Facebook page and to provide the applicant with a hard copy of the apology.
271.The respondent is to pay the sum of $18,880 to the applicant within 28 days of this Order.
………………………………..
Senior Member L Donohoe SC
HEARING DETAILS
FILE NUMBER:
XD 1023/2017
PARTIES, APPLICANT:
David Bottrill
PARTIES, RESPONDENT:
Katrina Bailey
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Senior Member L Donohoe SC
DATES OF HEARING:
21 February 2018
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