Bottrill v Bailey (Civil Dispute)

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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 266

Webb 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…

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Details
Case
[2018] ACAT 45
Decision Date

CaseChat Overview and Summary

The matter involved an application brought by Mr Bottrill against Ms Bailey. The primary issue was the alleged misuse of confidential information in the form of Van Lieshout material that was published by Ms Bailey on her Facebook page, which Mr Bottrill claimed was defamatory of him. The case was heard and determined in the Federal Circuit Court of Australia.

The court had to decide if Ms Bailey had indeed misused confidential information and whether this constituted defamation against Mr Bottrill. Additionally, the court needed to determine the appropriate remedies for the misuse of confidential information and defamation. The court considered the evidence presented and the applicable laws, including the principle of confidentiality and the principles of defamation law.

In its decision, the court found that Ms Bailey had misused confidential information by posting the Van Lieshout material on her Facebook page without permission, and that this was defamatory of Mr Bottrill. The court awarded Mr Bottrill damages in the amount of $18,750 plus $130 in allowable costs. Furthermore, the court ordered Ms Bailey to remove the Van Lieshout material from her Facebook page and to publish an apology on the same platform, providing a hard copy to Mr Bottrill. The court also mandated that Ms Bailey pay the total sum of $18,880 to Mr Bottrill within 28 days of the order.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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