Bottrill v Graham

[2024] NSWDC 566

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

1. 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”).

2. 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; the first defendant volunteered the helpful information that the Concerns Notice was sent by registered mail to him, as well as to his correct address. It is similarly not in dispute that the first defendant was personally served with the statement of claim. The sole issue in dispute is whether the circumstances in which the process server delivered the statement of claim to a woman at the address at which the second defendant had lived until 2013 (and which is still occupied by her parents) amounts to valid service of the claim.

3. On 21 November 2024 I made the orders set out at the end of this judgment. I set out my reasons for dismissing the second defendant’s application for summary dismissal of these proceedings on the basis of asserted failure to serve the statement of claim on her personally.

The parties and the pleadings

4. The plaintiff, a retired member of the Australian Public Service, is a member of a conservative Christian religious group known as the Ordo Templi Orientis. For at least the past two decades (Ordo Templi Orientis v Legg (Anti Discrimination) [2007] VCAT 1484), this organisation and its members have been accused by right-wing 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 researching the origin of her family name on the internet and showed these articles to him. Since that time, the plaintiff and other named persons have brought proceedings for damages for defamation in the Australian Capital Territory Civil & Administrative Tribunal (“ACAT”) for publications of similar allegations.

5. The first defendant, a resident of New South Wales, maintains an online Profile Page on the social media platform X.com. According to his profile page on X, 2,100 persons tuned in to the First Broadcast which aired live on 24 January 2024 and 3,300 persons tuned in to the Second Broadcast on 29 January 2024; additionally, a currently unknown number of persons subsequently listened to each of the broadcasts on the internet. No figures for the extent of publication of the third matter complained of are provided. In addition, in the course of the matters complained of, the first defendant encouraged his listeners to share the broadcast and said that he would be devoting further sessions of his program to this topic.

6. The second defendant, a resident of Tasmania, resided with her family for many years at premises owned by her parents in East Launceston until 2013. The second defendant and her family lived upstairs in the premises, a large house, and her parents lived downstairs. They still live there to this day (in the same downstairs part of the house), although her mother returns at night to a care facility. Both parents are cared for during the daytime by carers who attend to a range of household activities, some of which, I am prepared to assume, would include answering the door, receiving packages and attending to inquiries.

7. The second defendant moved to her current address (the address to which the Concerns Notice was sent) in 2013 and has remained at that premises (where she is the carer for her adult son) ever since.

8. The second defendant’s role in the matters complained of is asserted to be that of “co-host” (the word used by the first defendant to describe her in the second matter complained of, at line 10). The text of the matters complained of shows her explaining to listeners how to make their opinions known and moderating the debate (e.g. “over to you, Luke”: line 189 of the first matter complained of).

Evidence of service of the statement of claim

9. The plaintiff relied upon the affidavits of service filed by the process server. These affidavits are not only unsatisfactory but inconsistent, in that the first of these documents claims that the person in the house agreed that she was Cathryn Gale Gibson (answering “Yes”) whereas the second refers to a woman coming to the door to tell the process server to leave the documents in the hallway and does not identify herself as Cathryn Gale Gibson at all.

10. The second defendant submits, and I agree, that these conflicting accounts of what occurred are so inconsistent as to cast doubt on what, if anything, was said when the documents were delivered.

11. The second defendant says that, at the time of the evening when the process server attended, both the day carer who looked after her parents every day and the second defendant’s mother would have left for the day and that the only person remaining in the house would have been her father. That is, however, surmise. The second defendant acknowledged that carers were in her parents’ home during the day and that she visited them in this home (from which I infer her identity would have been known to these carers).

12. On the balance of probabilities, I am satisfied that a document was delivered by the process server to the house on the day in question, that the name of the second defendant was stated and that the document was left at the premises, but nothing more. Is this sufficient for service?

The relevant principles of law

13. Service of a statement of claim on a defendant must be served as soon as practicable (r 10.1) as well as effected personally: Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) 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 there could be real doubt as to whether a party had been served, the courts took a flexible approach. In Hope v Hope, where an order for substituted service was sought on the basis that service could not be effected, Lord Cransworth LC said (at 540):

“The object of all service is of course only to give notice to the party on whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the Court may feel perfectly confident that service has reached him, everything has been done that is required.”

14. This same 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 notice left with the servant on the licensed premises was sufficient.

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 the person to be served becoming aware of the contents of the document”. In Capper v Thorpe, the intended recipient of the notice had changed addresses and did not receive the posted notice until well after it was posted. However the fact that he knew about the notice and had received a copy of it was sufficient to amount to service.

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 document must come to the notice of the person for whom it was intended. Where it appears that the document has come to the attention of the person who is required to be served, it does not matter whether or not a statutory facultative regime has been complied with. Even where the evidence of service is less than ideal, there will still be a proper basis for concluding that service has occurred based on inferences from proved facts. The ease with which parties can be located in the modern electronic world, the almost universal use of emails as addresses for service and a means of communicating with parties and the ease with which persons can now be located are no doubt factors in reducing the caution expressed in these earlier decisions.

Application of these principles to the facts of this case

17. A feature of particular relevance when service of the initiating process is challenged in defamation proceedings is the requirement for a Concerns Notice to be served more than 28 days before the statement of claim can be filed.

18. Although the second defendant relies upon an affidavit that she has sworn and upon written submissions, she did not refer at all to the Concerns Notice dated 18 April 2024, which I note is Annexure E to the statement of claim. It was only when I drew Annexure E to her attention that she told the court that she did not recall receiving this document. Nor does the second defendant provide any information to the court that she knew about service of a concerns notice and/or the statement of claim being served on the first defendant.

19. While I would have been prepared to accept that, given the conflict in the competing versions of events from the process server in the two affidavits, the second defendant may not have received the statement of claim in a timely fashion, and possibly not at all, her own credibility must suffer by reason of these omissions. I am not prepared to accept that a solicitor’s registered letter failed to reach her when delivered to her correct home address. I also consider it is more likely than not that she knew the first defendant had received a concerns notice addressed to him (Annexure D to the statement of claim) and that she also knew that he had been served with a statement of claim which, since it identified her as the second defendant, would be more likely than not to have been of interest to both of them. In those circumstances, I am satisfied that the document for which is personal service was required has, by reason of these other factors, come 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]).

20. Failure to comply punctiliously with obligations such as personal service is the kind of technicality that appears more important to the justice of the claim than it really is. Looking at the whole of the evidence, I am satisfied that, although the second defendant was not served personally with the statement of claim, it was delivered to an address which was visited on a regular basis by the second defendant and where it was more likely than not to be seen by either family members (and/or their carers). In light of the service of the Concerns Notices on both defendants, and service of the statement of claim on the first defendant, the statement of claim can hardly have been an unexpected document.

21. Both defendants addressed me in strong terms as to the unsatisfactory nature of the inconsistent accounts given by the process server of exactly what was said on the occasion that he went to the address at which the second defendant’s parents still reside.

22. However, even if I were satisfied that service had not been effected properly, this would not be a sufficient basis for the plaintiff’s claim to be dismissed on a permanent basis against the second defendant. All that would occur would be that the plaintiff’s solicitor would either file an amended pleading in these proceedings or commence separate proceedings against the second defendant which, subject to any requirement to comply with s 23 of the Act, would result in the proceedings continuing as before. Similarly, if I had not been satisfied that the Concerns Notice had been served, the plaintiff could have served a fresh notice as well.

23. The second defendant also drew my attention to the requirement that a statement of claim must be served as soon as practicable (UCPR r 10.1) and that a statement of claim, to be valid, must be served within 28 days of filing. In the present case, where the plaintiff and his solicitor were relying upon affidavits of service for a process server, as opposed to failing to serve documents in time, these rules are not applicable.

Costs

24. Although the plaintiff has been successful on the application, the costs order should reflect the Court’s dissatisfaction with the contradictory evidence of the process server.

25. The second defendant asked for costs orders to be made 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.

26. I propose to award the second defendant the sum of $100, which she told me would cover these expenses. In the circumstances, it is appropriate for this modest sum to be paid forthwith (UCPR r 42.7), rather than await the outcome of these proceedings.

Orders

27. The orders I made on 21 November 2024 are as follows:

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.

Decision last updated: 28 November 2024