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Bottrill v Graham

Bottrill v Graham

Case [2024] NSWDC 566 28 November 2024

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Bottrill v Graham [2024] NSWDC 566
Hearing dates: 21 November 2024
Date of orders: 21 November 2024
Decision date: 28 November 2024
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1)   The second defendant’s application to set aside service of the statement of claim on the basis that she was personally served as asserted by the process server, is refused.
(2)   As to costs of this application, the plaintiff is to pay the second defendant’s out-of-pocket expenses in the sum of $100 in 14 days.
(3) Pursuant to r 7.36 of UCPR, I am satisfied that it is in the interests of the administration of justice that, the court refer both of the defendants to the Registrar of this Court for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. The Registrar should ensure that the defendants are separately advised in the event of conflict of interest between them.
(4)   Time for the first defendant to file a defence is extended to 12 February 2025.
(5)   Time for the second defendant to file an amended defence is extended to 12 February 2025.
(6)   These proceedings are stood over to 13 February 2025 for directions.

Catchwords:
PRACTICE AND PROCEDURE – defamation proceedings – concerns notice addressed to second defendant’s current home address but statement of claim purported to have been served on her former address where her parents still reside – whether personal service effected by leaving the statement of claim with an unidentified person at the second defendant’s parents’ home

Legislation Cited:
Defamation Act 2005 (NSW), ss 12A, 12B
Uniform Civil Procedure Rules 2005 (NSW), rr 7.36, 10.1, 10.20, 42.7

Cases Cited:
Bottrill v Van Lieshout & Ors(Civil Dispute) [2015] ACAT 26
Capper v Thorpe (1998) 194 CLR 342; [1998] HCA 24
Edelbrand Pty Ltd v H M Australia Holdings Pty Ltd [2012] NSWCA 31
Ex partePortingell [1892] 1 QB 15
Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259
Hope v Hope (1854) 4 De GM & G; 43 ER 534
Ordo Templi Orientis v Legg (Anti Discrimination) [2007] VCAT 1484
Spencer v Bamber [2012] NSWCA 274

Texts Cited:
Nil

Category: Procedural rulings
Parties: David Bottrill (Plaintiff)
David Michael Graham (First Defendant)
Cathryn Gale Gibson (Second Defendant)
Representation:
Counsel:
Mr O’Connor (Solicitor for the Plaintiff)
Second Defendant (Self-represented)
Solicitors:
O’Connor Legal (Plaintiff)

File Number(s): 2024/00334742
Publication restriction: Nil

Judgment

The application before the court

These are proceedings for defamation commenced by statement of claim, filed on 10 September 2024, for live broadcasts asserted to have been uploaded onto the first defendant’s profile page on X on 24 and 29 January 2024 and 3 February 2024 (“the matters complained of”).
It is not in dispute that the plaintiff’s solicitors forwarded a Concerns Notice conformably with ss 12A and 12B of the Defamation Act 2005 (NSW) (“the Act”) to each of the defendants at addresses acknowledged to be their correct residential addresses;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bottrill v Graham

Details

AGLC: Bottrill v Graham [2024] NSWDC 566
Case: [2024] NSWDC 566
Decision Date: 28 November 2024

CaseChat Overview and Summary

The case of Bottrill v Graham involved a defamation claim brought by the plaintiff against two defendants. The dispute centered around the adequacy of the service of the statement of claim on the second defendant, who was served at what was alleged to be her parents' residence. The High Court of Australia was tasked with determining whether personal service was validly effected when the statement of claim was left with an unidentified person at the second defendant’s parents’ home.

The central legal issue was whether the service of the statement of claim on the second defendant was valid. The court needed to ascertain if leaving the document with an unidentified person at the second defendant’s parents' residence constituted personal service, given that the second defendant resided elsewhere and the statement of claim was addressed to her current home address.

The court examined the principles of service of legal documents under the law and the specific circumstances of this case. It found that the process server's assertion that the statement of claim was left with an unidentified person at the parents' residence did not meet the legal standards for personal service. However, the court also considered the practicalities and potential hardships faced by the defendants in defending the claim without legal representation. Consequently, the court refused the second defendant's application to set aside service but ordered the plaintiff to pay the second defendant's out-of-pocket expenses. Additionally, the court referred the defendants to the Pro Bono Panel for legal assistance and extended the time for filing defences. The proceedings were stood over for further directions.

Orders

Orders of the court

(1) The second defendant’s application to set aside service of the statement of claim on the basis that she was personally served as asserted by the process server, is refused.

(2) As to costs of this application, the plaintiff is to pay the second defendant’s out-of-pocket expenses in the sum of $100 in 14 days.

(3) Pursuant to r 7.36 of UCPR, I am satisfied that it is in the interests of the administration of justice that, the court refer both of the defendants to the Registrar of this Court for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. The Registrar should ensure that the defendants are separately advised in the event of conflict of interest between them.

(4) Time for the first defendant to file a defence is extended to 12 February 2025.

(5) Time for the second defendant to file an amended defence is extended to 12 February 2025.

(6) These proceedings are stood over to 13 February 2025 for directions.

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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Citations

AGLC Citation

Bottrill v Graham [2024] NSWDC 566

Most Recent Citation

Bottrill v Graham (No 2) [2025] NSWDC 221

Cases citing this decision · 2 of 2 shown

Bottrill v Graham (No 3)
[2025] NSWDC 306 Para 2

…fendants initially represented themselves. After the second defendant unsuccessfully challenged service of the statement of claim ( Bottrill v Graham [2024] NSWDC 566) both defendants sought a referral for legal assistance from the Pro Bono Legal Panel for legal assistance, an order I made on 21 November 2024. Sinc…
Bottrill v Graham (No 2)
[2025] NSWDC 221 Para 5

…able could be set until the second defendant’s application for dismissal on the grounds that she had not been properly served ( Bottrill v Graham [2024] NSWDC 566) had been determined, and then timetabling orders were made on 21 November 2024 for the filing of defences. When those orders were not complied with, a g…

View all 2 citing cases →

Cases cited in this decision · 9 of 9 shown

Hope v Hope
[2019] NZHC 2633 Para 13

…r 10.20(2)(a). Although an issue of significance in previous times, when the modern means of locating a person were unavailable (see for example Hope v Hope (1854) 4 De GM & G; 43 ER 534), technology and travel have so completely transformed modern life that service is rarely challenged. However, even at a time when…
Bottrill v Van Lieshout & Ors (Civil Dispute)
[2015] ACAT 26 Para 4

…g conspiracy websites, blogs and social media posts of the most serious crimes imaginable. According to Bottrill v Van Lieshout & Ors (Civil Dispute) [2015] ACAT 26 at [1], the plaintiff discovered that he had been named in some of these publications when his ten year old daughter, as part of her homework, was re…
Spencer v Bamber
[2012] NSWCA 274 Para 16

…of these technicalities were swept aside in decisions such as Edelbrand Pty Ltd v H M Australia Holdings Pty Ltd [2012] NSWCA 31 and Spencer v Bamber [2012] NSWCA 274 (at [195] – [212]). As Bathurst CJ stated in Edelbrand Pty Ltd v H M Australia Holdings Pty Ltd , personal service merely means that the document mus…
Edelbrand Pty Ltd v HM Australia Holdings Pty Ltd
[2012] NSWCA 31 Para 16

…Many of these technicalities were swept aside in decisions such as Edelbrand Pty Ltd v H M Australia Holdings Pty Ltd [2012] NSWCA 31 and Spencer v Bamber [2012] NSWCA 274 (at [195] – [212]). As Bathurst CJ stated in Edelbrand Pty Ltd v H M Australia Holdings Pty Ltd , personal service merely means that the docume…
Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd
[2006] NSWCA 259 Para 19

…me to the notice of the second defendant, the person for whom it was intended ( Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259 at [58]).…
Capper v Thorpe
[1998] HCA 24 Para 15

…In Capper v Thorpe (1998) 194 CLR 342; [1998] HCA 24 at [21] , the High Court (Gaudron, McHugh, Kirby, Hayne and Callinan JJ) set out a number of these earlier decisions, stating that a document would be considered to be served “if the efforts of the person who is required to serve the documents have resulted in…
Cachia v Hanes
[1994] HCA 14 Para 25

…e in her favour. As a litigant in person, she is entitled to such reasonable disbursements as the court may consider are appropriate: Cachia v Haines (1994) 179 CLR 403. The second defendant told me that she incurred expenses at Officeworks such as printing and photocopying, and she also incurred travel expenses.…
[1892] 1 QB 15
[1892] 1 QB 15 Para 14

…me flexibility applied to challenges to personal service based on the document being left with another person at the premises. In Ex parte Portingell [1892] 1 QB 15, a notice of intention to oppose the renewal of a liquor licence had to be “served on” the holder of the licence and the question was whether a notic…
Hope v Hope
43 ER 534 Para 13

…e of significance in previous times, when the modern means of locating a person were unavailable (see for example Hope v Hope (1854) 4 De GM & G; 43 ER 534), technology and travel have so completely transformed modern life that service is rarely challenged. However, even at a time when there could be real do…

Legislation cited in this decision · 2

Uniform Civil Procedure Rules 2005 (NSW)
10.1, 10.20, 10.20(2)(a), 42.7, 7.36 5 mentions (from Para 13)
Defamation Act 2005 (TAS)
12A, 12B 3 mentions (from Para 2)

Medium Neutral Citation:	Bottrill v Graham [2024] NSWDC 566
Hearing dates:	21 November 2024
Date of orders:	21 November 2024
Decision date:	28 November 2024
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The second defendant’s application to set aside service of the statement of claim on the basis that she was personally served as asserted by the process server, is refused. (2) As to costs of this application, the plaintiff is to pay the second defendant’s out-of-pocket expenses in the sum of $100 in 14 days. (3) Pursuant to r 7.36 of UCPR, I am satisfied that it is in the interests of the administration of justice that, the court refer both of the defendants to the Registrar of this Court for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. The Registrar should ensure that the defendants are separately advised in the event of conflict of interest between them. (4) Time for the first defendant to file a defence is extended to 12 February 2025. (5) Time for the second defendant to file an amended defence is extended to 12 February 2025. (6) These proceedings are stood over to 13 February 2025 for directions.
Catchwords:	PRACTICE AND PROCEDURE – defamation proceedings – concerns notice addressed to second defendant’s current home address but statement of claim purported to have been served on her former address where her parents still reside – whether personal service effected by leaving the statement of claim with an unidentified person at the second defendant’s parents’ home
Legislation Cited:	Defamation Act 2005 (NSW), ss 12A, 12B Uniform Civil Procedure Rules 2005 (NSW), rr 7.36, 10.1, 10.20, 42.7
Cases Cited:	Bottrill v Van Lieshout & Ors(Civil Dispute) [2015] ACAT 26 Capper v Thorpe (1998) 194 CLR 342; [1998] HCA 24 Edelbrand Pty Ltd v H M Australia Holdings Pty Ltd [2012] NSWCA 31 Ex partePortingell [1892] 1 QB 15 Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259 Hope v Hope (1854) 4 De GM & G; 43 ER 534 Ordo Templi Orientis v Legg (Anti Discrimination) [2007] VCAT 1484 Spencer v Bamber [2012] NSWCA 274
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	David Bottrill (Plaintiff) David Michael Graham (First Defendant) Cathryn Gale Gibson (Second Defendant)
Representation:	Counsel: Mr O’Connor (Solicitor for the Plaintiff) Second Defendant (Self-represented) Solicitors: O’Connor Legal (Plaintiff)
File Number(s):	2024/00334742
Publication restriction:	Nil