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Bottrill v Graham (No 3)

Bottrill v Graham (No 3)

Case [2025] NSWDC 306 12 August 2025

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: Bottrill v Graham & Anor (No 3) [2025] NSWDC 306
Hearing dates: 22, 29 May, 5 June and 12 June 2025
Date of orders: 12 August 2025
Decision date: 12 August 2025
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
See [61]

Catchwords:
TORT – defamation – three podcasts imputing the plaintiff is the world leader of a paedophile murder and blood-drinking ring of criminals - defendants seek trial by jury – form 23A Election for Trial by Jury filed and served – plaintiff’s Notice of Motion to refuse application for trial by jury – practical difficulties, logistical problems and the need for prolonged examination of documents and podcasts – Notice of Motion granted – second defendant’s application for a second pro bono lawyer pursuant to UCPR r 7.36 – whether “special reasons” made out – hearing date already set and amount of work involved would be very substantial - application refused

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56 – 62
Defamation Act 2005 (NSW) s 21
Jury Act 1977 (NSW) ss 20, 22, 38(8)(b) and 58
Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) rr 7.39 and 29.2A

Cases Cited:
Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383
Bailey v Bottrill (No 2) [2019] ACTSC 167; 14 ACTLR 108
Bottrill v Graham & Anor (No 2) [2025] NSWDC 221
Bottrill v Graham [2024] NSWDC 566
Bottrill v Sunol [2018] ACAT 21
Bottrill v Van Lieshout & Ors (Civil Dispute) [2015] ACAT 26
Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells (2011) 81 NSWLR 315
Cristian v Bottrill [2016] ACTSC 315
David Bottrill v Dyson Devine and Vivienne Legg CS 05/50690
Doe v Dowling [2019] NSWSC 1222
E1 v E2; E Pty Limited v E2 [2023] NSWDC 411
Gatto v Australian Broadcasting Corporation (No 1) [2020] VSC 420
Goldsworthy v Radio 2UE Sydney Pty Limited [1999] NSWSC 290
Goldsworthy v Seven Network Limited [2013] NSWSC 344
Hanrahan v Ainsworth (1990) 22 NSWLR 73
Hordern v State of New South Wales [2015] NSWSC 959
Malan v Silvas [1992] NSWCA 143
Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 87
McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133
Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (as trustee of Temujin International (trading) Trust) & Temujin Services Limited v Emmott - Final [2024] NSWSC 1489
Mohareb v State of New South Wales [2025] NSWCA 156
Ordo Templi Orientis Inc & Anor v Devine & Anor (Anti-Discrimination) [2007] VCAT 2470
Ordo Templi Orientis v Legg (Anti-Discrimination) [2007] VCAT 1484
Palavi v Radio 2UE Sydney Pty Limited [2012] NSWDC 14
Prosecutor v. Nyiramasuhuko et al. (2015) Trial Chamber of the International Criminal Tribunal for Rwanda (ICTR)
Purcell v Cruising Yacht Club of Australia and 2 Ors [2001] NSWSC 926
Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41

Texts Cited:
“Equality before the Law Bench Book”,…

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 (No 3)

Details

AGLC: Bottrill v Graham (No 3) [2025] NSWDC 306
Case: [2025] NSWDC 306
Decision Date: 12 August 2025

CaseChat Overview and Summary

The case of Bottrill v Graham (No 3) involved a defamation claim brought by the plaintiff against three defendants, who were the hosts of a podcast series that made serious and damaging allegations against the plaintiff. These allegations included claims that the plaintiff was the world leader of a paedophile murder and blood-drinking ring of criminals. The defendants sought to have the matter decided by a jury rather than by a judge alone. In response, the plaintiff filed a Notice of Motion to refuse the application for a jury trial, citing practical difficulties, logistical problems, and the need for prolonged examination of documents and podcasts.

The court needed to decide whether the application for a trial by jury should be refused on the grounds that the case involved complex issues requiring a detailed examination of numerous documents and podcasts. Additionally, the court had to determine whether the second defendant's application for a second pro bono lawyer, pursuant to UCPR r 7.36, was justified given the special reasons presented. The court considered the substantial amount of work involved and the fact that a hearing date had already been set, leading to the conclusion that the application for a second pro bono lawyer should be refused.

The court granted the plaintiff's Notice of Motion to refuse the application for a trial by jury, finding that the practical difficulties and logistical problems presented significant obstacles to a fair and efficient trial. The court also ruled that the second defendant had not made out the necessary special reasons to warrant the appointment of a second pro bono lawyer. Consequently, the case would proceed without a jury, and the second defendant would not receive additional legal representation.

The orders of the court included the refusal of the application for a trial by jury and the denial of the second defendant's application for a second pro bono lawyer. The case was set to proceed with a judge alone, addressing the defamation claims made against the plaintiff.

Orders

Orders of the court

See [61]

Background

Background to the litigation

Full text does not contain this section.

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 (No 3) [2025] NSWDC 306

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 23 of 23 shown

Mohareb v State of New South Wales
[2025] NSWCA 156 Para 40

…have not been receptive to jury trials taking place where a litigant in person or a querulent is before the court: Mohareb v State of New South Wales [2025] NSWCA 156 at [47]. This is also the case in defamation proceedings. In McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133 “ McGrane ”), Daubney J did not…
Bottrill v Graham (No 2)
[2025] NSWDC 221 Para 4

…he court is the parties’ submissions as to the mode of trial. On 30 June 2025, following a ruling on serious harm ( Bottrill v Graham & Anor (No 2) [2025] NSWDC 221), a hearing date was allocated. A timetable for discovery and interrogatories was set up so that the parties could ready themselves for a hearing on th…
Bottrill v Graham
[2024] NSWDC 566 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…
Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (as trustee of Temujin International (trading) Trust) & Temujin Services Limited v Emmott - Final
[2024] NSWSC 1489 Para 47

…rt Colin Nicholls & Temujin International Limited (as trustee of Temujin International (trading) Trust) & Temujin Services Limited v Emmott - Final [2024] NSWSC 1489 at [76], Hammerschlag J stated: “This Court is not the plaything of parties or practitioners”.…
E1 v E2; E Pty Limited v E2
[2023] NSWDC 411 Para 54

…re the percentage of hearings involving litigants in person is of particular concern) but in civil litigation generally ( E1 v E2; E Pty Limited v E2 [2023] NSWDC 411). The Pro Bono Panel has processed and found representation, I understand from inquiries, following more than 500 referral orders made by the Court o…
Renshaw v New South Wales Lotteries Corporation Pty Ltd
[2021] NSWCA 41 Para 52

…this practitioner’s conduct as warranting criticism, a factor relevant to this application: Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41. The real problem appears to be that she gave advice the second defendant did not agree with.…
Gatto v Australian Broadcasting Corporation (No 1)
[2020] VSC 420 Para 42

…a defamation jury trial was considered to be a significant barrier to conduct of a jury trial in Gatto v Australian Broadcasting Corporation (No 1) [2020] VSC 420. A significant factor in Gatto v Australian Broadcasting Corporation (No 1) was that, as is the case here, the proceedings had already been allocated a…
Doe v Dowling
[2019] NSWSC 1222 Para 40

…Wales, only four persons). A similar ruling was made where the party seeking a jury was likely to use the proceedings as a soapbox: Doe v Dowling [2019] NSWSC 1222.…
Bailey v Bottrill (No 2)
[2019] ACTSC 167 Para 2

…v Van Lieshout & Ors (Civil Dispute) [2015] ACAT 26; Cristian v Bottrill [2016] ACTSC 315; Bottrill v Sunol [2018] ACAT 21; Bailey v Bottrill (No 2) [2019] ACTSC 167; 14 ACTLR 108. The first defendant has not yet provided categories but may be assumed to have similarly broad requirements. The amount of documentati…
Bottrill v Sunol
[2018] ACAT 21 Para 2

…e and Vivienne Legg CS 05/50690; Bottrill v Van Lieshout & Ors (Civil Dispute) [2015] ACAT 26; Cristian v Bottrill [2016] ACTSC 315; Bottrill v Sunol [2018] ACAT 21; Bailey v Bottrill (No 2) [2019] ACTSC 167; 14 ACTLR 108. The first defendant has not yet provided categories but may be assumed to have similarly br…
Cristian v Bottrill
[2016] ACTSC 315 Para 2

…1484; David Bottrill v Dyson Devine and Vivienne Legg CS 05/50690; Bottrill v Van Lieshout & Ors (Civil Dispute) [2015] ACAT 26; Cristian v Bottrill [2016] ACTSC 315; Bottrill v Sunol [2018] ACAT 21; Bailey v Bottrill (No 2) [2019] ACTSC 167; 14 ACTLR 108. The first defendant has not yet provided categories but ma…
Hordern v State of New South Wales
[2015] NSWSC 959 Para 49

…lication is made in the same proceedings, there is still a requirement to establish “special reasons”: Hordern v State of New South Wales [2015] NSWSC 959 at [12] – [13].…
Bottrill v Van Lieshout & Ors (Civil Dispute)
[2015] ACAT 26 Para 2

…gg (Anti-Discrimination) [2007] VCAT 1484; David Bottrill v Dyson Devine and Vivienne Legg CS 05/50690; Bottrill v Van Lieshout & Ors (Civil Dispute) [2015] ACAT 26; Cristian v Bottrill [2016] ACTSC 315; Bottrill v Sunol [2018] ACAT 21; Bailey v Bottrill (No 2) [2019] ACTSC 167; 14 ACTLR 108. The first defendant…
Goldsworthy v Seven Network Limited
[2013] NSWSC 344 Para 41

…h and costs of jury trials and the overriding purposes of ss 56 – 62 of the Civil Procedure Act 2005 (NSW): Goldsworthy v Seven Network Limited [2013] NSWSC 344 at [52] – [54]. However, the problems in this case are not case management issues of the universal kind referred to in Fierravanti-Wells ; they are special…
McGrane v Channel Seven Brisbane Pty Ltd
[2012] QSC 133 Para 40

…reb v State of New South Wales [2025] NSWCA 156 at [47]. This is also the case in defamation proceedings. In McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133 “ McGrane ”), Daubney J did not simply deny the plaintiff, a convicted murderer, a jury, but struck the whole claim out. These problems derive not on…
Palavi v Radio 2UE Sydney Pty Limited
[2012] NSWDC 14 Para 6

…as the accompanying filing fee (see Schedule 1, Part 3 of the Civil Procedure Act 2005 ) had not been paid: Palavi v Radio 2UE Sydney Pty Limited [2012] NSWDC 14 at [10] – [24] and a hearing date for a non-jury trial had been allocated. However, the plaintiff now withdraws the objections to the validity of the ele…
Channel Seven Sydney Pty Ltd v Fierravanti-Wells
[2011] NSWCA 246 Para 7

…lection should always be permitted unless exceptions under s 21(1A) can be invoked: Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells (2011) 81 NSWLR 315 (“ Fierravanti-Wells ”); Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383 (“ Ange ”). He submits that “the interests of justice” have no p…
Con Ange v Fairfax Media Publications Pty Ltd
[2010] NSWSC 1383 Para 7

…Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells (2011) 81 NSWLR 315 (“ Fierravanti-Wells ”); Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383 (“ Ange ”). He submits that “the interests of justice” have no part to play. He points to the long history of emphatic endorsement by appellate courts of…
Purcell v Cruising Yacht Club of Australia and 2 Ors
[2001] NSWSC 926 Para 24

…1999] NSWSC 87 at [39] per Levine J. Caution in the use of a transcript should be exercised: Purcell v Cruising Yacht Club of Australia and 2 Ors [2001] NSWSC 926 at [11].…
Goldsworthy v Radio 2UE Sydney Pty Limited
[1999] NSWSC 290 Para 25

…ld, in my view, amount to no more than a review of their deliberations and cannot be permitted”: Goldsworthy v Radio 2UE Sydney Pty Limited [1999] NSWSC 290 at [10].…
Marsden v Amalgamated Television Services Pty Limited
[1999] NSWSC 87 Para 24

…hich they are entitled to listen “more than once” both in the court room and the jury room: Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 87 at [39] per Levine J. Caution in the use of a transcript should be exercised: Purcell v Cruising Yacht Club of Australia and 2 Ors [2001] NSWSC 926 at [1…
Malan v Silvas
[1992] NSWCA 143 Para 7

…late courts of the key role played by the jury in defamation proceedings: Hanrahan v Ainsworth (1990) 22 NSWLR 73 at [88]; Malan v Silvas [1992] NSWCA 143. The jury’s role as a tribunal of fact is all the more relevant, it is submitted, where the podcasts in question raise issues that are of vital public importance…
Hanrahan v Ainsworth
[1991] NSWCA 141 Para 7

…ng history of emphatic endorsement by appellate courts of the key role played by the jury in defamation proceedings: Hanrahan v Ainsworth (1990) 22 NSWLR 73 at [88]; Malan v Silvas [1992] NSWCA 143. The jury’s role as a tribunal of fact is all the more relevant, it is submitted, where the podcasts in question raise i…

Legislation cited in this decision · 4

Jury Act 1977 (NSW)
20, 22, 38(8)(b), 58 5 mentions (from Para 5)
Civil Procedure Act 2005 (NSW)
56 2 mentions (from Para 6)
Defamation Act 2005 (TAS)
21 2 mentions (from Para 4)
Uniform Civil Procedure Rules 2005 (NSW)
29.2A, 7.39 2 mentions (from Para 3)

Medium Neutral Citation:	Bottrill v Graham & Anor (No 3) [2025] NSWDC 306
Hearing dates:	22, 29 May, 5 June and 12 June 2025
Date of orders:	12 August 2025
Decision date:	12 August 2025
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	See [61]
Catchwords:	TORT – defamation – three podcasts imputing the plaintiff is the world leader of a paedophile murder and blood-drinking ring of criminals - defendants seek trial by jury – form 23A Election for Trial by Jury filed and served – plaintiff’s Notice of Motion to refuse application for trial by jury – practical difficulties, logistical problems and the need for prolonged examination of documents and podcasts – Notice of Motion granted – second defendant’s application for a second pro bono lawyer pursuant to UCPR r 7.36 – whether “special reasons” made out – hearing date already set and amount of work involved would be very substantial - application refused
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 56 – 62 Defamation Act 2005 (NSW) s 21 Jury Act 1977 (NSW) ss 20, 22, 38(8)(b) and 58 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) rr 7.39 and 29.2A
Cases Cited:	Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383 Bailey v Bottrill (No 2) [2019] ACTSC 167; 14 ACTLR 108 Bottrill v Graham & Anor (No 2) [2025] NSWDC 221 Bottrill v Graham [2024] NSWDC 566 Bottrill v Sunol [2018] ACAT 21 Bottrill v Van Lieshout & Ors (Civil Dispute) [2015] ACAT 26 Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells (2011) 81 NSWLR 315 Cristian v Bottrill [2016] ACTSC 315 David Bottrill v Dyson Devine and Vivienne Legg CS 05/50690 Doe v Dowling [2019] NSWSC 1222 E1 v E2; E Pty Limited v E2 [2023] NSWDC 411 Gatto v Australian Broadcasting Corporation (No 1) [2020] VSC 420 Goldsworthy v Radio 2UE Sydney Pty Limited [1999] NSWSC 290 Goldsworthy v Seven Network Limited [2013] NSWSC 344 Hanrahan v Ainsworth (1990) 22 NSWLR 73 Hordern v State of New South Wales [2015] NSWSC 959 Malan v Silvas [1992] NSWCA 143 Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 87 McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133 Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (as trustee of Temujin International (trading) Trust) & Temujin Services Limited v Emmott - Final [2024] NSWSC 1489 Mohareb v State of New South Wales [2025] NSWCA 156 Ordo Templi Orientis Inc & Anor v Devine & Anor (Anti-Discrimination) [2007] VCAT 2470 Ordo Templi Orientis v Legg (Anti-Discrimination) [2007] VCAT 1484 Palavi v Radio 2UE Sydney Pty Limited [2012] NSWDC 14 Prosecutor v. Nyiramasuhuko et al. (2015) Trial Chamber of the International Criminal Tribunal for Rwanda (ICTR) Purcell v Cruising Yacht Club of Australia and 2 Ors [2001] NSWSC 926 Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41
Texts Cited:	“Equality before the Law Bench Book”,…