Bottrill v Van Lieshout & Ors (Civil Dispute)
[2015] ACAT 26
•31 March 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BOTTRILL v VAN LIESHOUT & ORS (Civil Dispute) [2015] ACAT 26
XD 14/773
Catchwords: CIVIL DISPUTE –DEFAMATION – damages – respondents administrators of Facebook page on which materials with serious defamatory imputations were published – presumption of harm arising from proof of publication
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 (ACT) s 18(2)(a)
Civil Law (Wrongs) Act 2002 ss. 115, 118, 124, 126, 127, 133, 136, 139B, 139E, 139G, 139H and 139I
Cases:Amalgamated Television Services v Marsden [1998] NSWSC 4
Carson v John Fairfax & Sons Ltd [1993] HCA 31
Haddon v Forsyth [2011] NSWSC 123
Ives v State of Western Australia [No 8] [2013] WASC 277
Mickle v Farley [2013] NSWDC 295
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
Morgan v Odhams Press Ltd [1971] 1 WLR 1239
Prince v Malouf [2014] NSWCA 12
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16
List of Texts/Papers
cited:Butterworths Concise Australian Legal Dictionary (3rd ed. 2008)
Tribunal: Ms E. Symons – Presidential Member
Date of Orders: 31 March 2015
Date of Reasons for Decision: 31 March 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 14/773
BETWEEN: DAVID BOTTRILL
ApplicantAND:
TERESA VAN LIESHOUT
First Respondent
AND:
AMBER PRYOR
Second Respondent
AND:
GWEN BUTLER
Third RespondentAND:
MICHAEL BORUSIEWICZ
Fourth Respondent
TRIBUNAL: Ms E. Symons – Presidential Member
DATE:31 March 2015
ORDER
The Tribunal orders that:
The applications against Teresa Van Lieshout, Amber Pryor and Gwen Butler are dismissed.
The Tribunal, having found the material published on the Facebook and the subject of this application, was defamatory; that Michael Borusiewicz was an administrator of that Facebook page at all relevant times and that he does not have a defence pursuant to Division 9.4.2 of the Civil Law (Wrongs) Act 2002, the Tribunal enters judgment for the applicant, David Bottrill, in the sum of $10,000 plus $130.00 allowable costs, being the amount sought and the limit of the Tribunal’s jurisdiction.
Michael Borusiewicz is to pay the sum of $10,130 to the applicant within 28 days of the date of these Orders.
Immediately upon service of these Orders on Michael Borusiewicz, he is to remove all photographs of the applicant and all defamatory materials relating to the applicant from the Facebook page of which he was an administrator.
Michael Borusiewicz is permanently restrained, as administrator, from permitting the publication of photographs of the Applicant or any and all defamatory materials relating to the applicant on any Facebook page owned or controlled by Michael Borusiewicz.
Michael Borusiewicz is to pay the applicant post judgment interest on $10,000.00 at the rates prescribed in Schedule 2, Part 2.2 of the Courts Procedure Rules 2006.
………………………………..
Ms E. Symons
Presidential Member
REASONS FOR DECISION
Background
The applicant’s ten year old daughter, as part of her homework, was researching the origin of her family name on the internet. She found the applicant’s photograph on the ‘Luke’s Army’ website and asked her father questions.
The applicant looked at the website and found that it had republished a set of words which, in part, was the subject of litigation in the ACT Small Claims Court (the ACT proceedings) between David Bottrill and Dyson Devine and Vivienne Legg. [1] The set of words was also the subject of proceedings in the Victorian Civil and Administrative Tribunal between Ordo Templi Orientis (OTO) on behalf of David Bottrill and another and Dyson Devine and Vivienne Legg (the VCAT proceedings). [2]
[1] CS 05/50690
[2] Ordo Templi Orientis v Legg [2007] VCAT 1484
The applicant had alleged in the ACT proceedings and the VCAT proceedings that the Respondents had, as authors and publishers, maintained websites in 2004 and 2005 which contained material which claimed that the OTO was a protected paedophile group operating in Australia. The Respondents’ internet website also provided a hyperlink to another website where a document by Dr Reina Michaelson (the Michaelson document) was published. The decision in the VCAT proceedings stated, in relation to the Michaelson document, at [24]:
“…It is a description of alleged events in Victoria, including an alleged conspiracy of silence involving high profile Australian Citizens, a major television network, police and authorities and the education department around the issue of satanic and/or organized ritual sexual abuse of children. It purports to make a link between OTO and the alleged abuse. There are references in the document to OTO…”
At the relevant time the applicant was the National Treasurer of OTO.
On 28 June 2005, in the decision in the ACT proceedings, Magistrate Burns struck out the Response ‘as embarrassing’ and ‘entered Judgment for the plaintiff against the defendants in the sum of $9,998,00.’
In the VCAT decision the Respondents were ordered to:
.. remove from the website named in the Particulars of Complaint and refrain from making, publishing or distributing in Victoria, (including on the Internet or by inserting any hyperlink on the Internet), any statements, information, suggestions or implications to the same or similar effect as those set out in paragraphs 11 and 18 of the particulars of complaint.
After reading the information on the ‘Luke’s Army’ website, on 3 May 2014 David Bottrill sent Michael Borusiewicz, who was the poster of the Michaelson document, a ‘Concerns Notice’ (the Notice) pursuant to the Civil Law (Wrongs) Act 2000 (CLW Act). In the Notice David Bottrill referred to Michael Borusiewicz’s website, lukesarmy.com, providing the text of the Michaelson document, which made reference to the OTO and purported a link between the OTO and criminal activities. David Bottrill stated in the Notice -
… these accusations defame the OTO and its members. Legal action was previously initiated against the author and a publisher of this document….Your posting of this document repeats the defamation of the OTO, its members and me.
In the Notice, David Bottrill referred Michael Borusiewicz to section 127 of the CLW Act and demanded that, inter alia, he remove the document and any references to it from his website.
Michael Borusiewicz posted the Notice from David Bottrill on his Facebook page located at . The four respondents in the present matter were named as members of a group of administrators on ‘Luke’s Army’ Facebook page on which the material was alleged to have been published.
The applicant ascertained that words had been posted on the Facebook page on 8, 12, 13, 24, 27 and 29 March 2014 which contained comments which he alleged carried defamatory imputations that the applicant, as a member of OTO, engaged in criminal activity, was a Satanist and misused his work position for personal gain and criminal purposes. The originating poster was of these words was Michael Borusiewicz and further comments had been made on the Facebook page by others.
On 22 May 2014, David Bottrill posted the following notice on each of the Facebook pages of Gwen Butler, Amber Gillard (Pryor) and Teresa van Lieshout:
You are listed as an administrator on the Luke’s Army facebook page and as such can control the content of the page by the editing or deletion of materials placed there.
I draw your attention to content posted on the 8th, 12th,13th,24th, 27th and 29th of March 2014 which contain comments carrying the defamatory imputations that I, as a member of OTO engage in criminal activity, am a Satanist and misuse my work position for personal gain and criminal purposes. The originating poster was Michael Borusiewicz with further comments made by other members of your group.
I reside in the ACT so the ACT Civil Wrongs Act 2002 is the relevant legislation for defamation actions. I note a copy of my notice of concern to Borusiewicz is posted on the Facebook page and the same notice now applies to you – immediately remove the offensive material, post an apology in their place and within 28 days make a suitable offer of amends
You should provide advice (to my email [deleted by Tribunal]) within 24 hours of receipt of this message, that you will undertake the actions. The publication of further defamatory materials on the page or failure to remove the offending material already posted will be used in any damages claims I may make against you.I also draw your attention to the threats posted by Mr Borusiewicz made at me and more recently by Mr Arthur Cristian to target myself, family and children. These should also be removed.
If you elect not to remove these comments I am happy to arrange a legal venue in which you can justify your actions. I presume you have the personal integrity to provide an address for service or the contact details of your legal representative.
David Bottrill sent a number of emails to Amber Pryor via Facebook and her work email address.
David Bottrill telephoned Teresa van Lieshout on 24 May 2013 and directed her to the message he had sent on her Facebook page.
David Bottrill telephoned Gwen Butler on 26 May 2014 and directed her to the email he had sent to her.
The Proceedings
On 27 May 2014 the applicant filed a Civil Dispute Application (the application) with the Tribunal. The applicant alleged in the application that the respondents, Teresa van Lieshout, Amber Pryor, Gwen Butler and Michael Borusiewicz were the administrators of the Facebook page located at
The applicant further alleged that the Facebook page had published articles which conveyed defamatory imputations concerning him. The applicant sought orders for the removal of the material; publication of an appropriately worded apology; orders to permanently restrain the respondents from the further publication of photographs of the applicant and of all defamatory material relating to the applicant and the OTO and $10,000 damages and interest.
The application was opposed by each of the respondents.
On 27 May 2014, the applicant also filed a separate Civil Dispute Application, namely XD 14/772, against one of the respondents in the present matter, Michael Borusiewicz. In that application, the applicant alleged that Michael Borusiewicz had published on his website, sets of words which conveyed defamatory imputations which concern the applicant. This application was heard with the present matter.
On 10 December 2014, at the conclusion of the hearing of XD 14/772 the tribunal found the material published by the respondent on his website, and the subject of the application, was defamatory and made the following orders:
1.The Tribunal, having found the material published by the respondent, and the subject of this application, is defamatory and that the respondent does not have a defence pursuant to Division 9.4.2 of the Civil Law (Wrongs) Act 2002, the Tribunal enters judgment for the applicant in the sum of $10,000 plus $130.00 allowable costs, being the amount sought and the limit of the Tribunal’s jurisdiction, and pre judgment interest from 14 March 2014 to date of $484.38.
2.The respondent is to pay the sum of $10,614.38 to the applicant within 28 days.
3.Immediately upon service of this order on the respondent, the respondent is to remove all photographs of the applicant and all defamatory materials relative to the applicant from his website,
4.The respondent is permanently restrained from publishing or continuing to publish photographs of the applicant or any and all defamatory materials relating to the applicant on any website owned or controlled by the respondent.
5.The respondent is to pay the applicant post judgment interest on $10,000.00 at the rates prescribed in Schedule 2, Part 2.2 of the Courts Procedure Rules 2006.
Preliminary Issue
The present application and XD 14/772 were both claims for defamation pursuant to the Civil Law (Wrongs) Act 2002.
Pursuant to section 133 of the CLW Act, leave is required for further proceedings in relation to the publication of the same or like defamatory matter against the same defendant. Section 133 states:
If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought.
The Tribunal is satisfied and finds that XD 14/772 was brought against Michael Borusiewicz personally in relation to publications on his website, The present application has been brought against the four respondents, one of whom is Michael Borusiewicz, in their capacity as administrators of the Facebook page .
One of the allegations in the present matter is that Michael Borusiewicz posted the Notice sent to him by the applicant in XD 14/772 on the Facebook page and that there were a number of posts, referred to in paragraphs 10 and 11 above, on the Facebook page from Michael Borusiewicz and others. Michael Borusiewicz was at all relevant times an administrator of the Facebook page. The Tribunal is satisfied and finds that he is being sued in the present matter in his capacity as an administrator of the Facebook page and not in relation to his personal publications on his website. In these circumstances, given the different capacity in which Michael Borusiewicz is a respondent in the present matter it appears to the Tribunal that leave is not necessary.
However if the Tribunal has erred in coming to this conclusion then, considering the matters set out above, the Tribunal is satisfied that leave should be granted pursuant to section 133 of the CLW Act.
The Hearing
The present application was heard on 10 December 2014.
The applicant represented himself. Each of the respondents appeared by telephone and represented themselves. The applicant, the first respondent, the second respondent, the third respondent and the fourth respondent gave evidence and were cross examined.
The Tribunal received the following documents into evidence:
From the Applicant Exhibit A1 The application and the documents annexed to the application being printouts of pages from Luke’s Army Facebook on 30 March 2014 and 23 and 24 May 2014 and Statutory Declaration Debra Anne Thomas declared 13 September 2014.
From the first respondent Exhibit B1 Letters from the first respondent to the tribunal dated 5 December 2014 and 25 August 2014 and copy unissued Writ of Summons from the District Court of Western Australia between the first respondent as plaintiff and Mr Bottrill as defendant, and printouts dated 25 August 2014 from various websites in relation to Society Ordo Templi Orientis in Australia and a decision of the ACT Magistrates Court in proceedings involving David Bottrill on 28 June 2005. Exhibit B2 Letter from the first respondent to the tribunal dated 21 June 2014.
From the second respondent Exhibit C Response filed 23 June 2014; letter to tribunal from second respondent dated 17 October 2014; printout of Google search results for ‘OTO and David Bottrill’ dated 17 October 2014; printout from Luke’s Army Facebook page 20 October 2014; documents lodged by the second respondent on 28 October 2014. From the fourth respondent
Exhibit D Response from fourth respondent emailed to tribunal on 12 September 2014. From the third respondent
Exhibit E Response; Second Response and letter from third respondent enclosing Third and Further Response dated 24 October 2014 and letter from Third Respondent to applicant emailed to tribunal on 8 December 2014
At the conclusion of the hearing the Tribunal made directions for the parties in this matter to file written submissions and reserved the decision. The Tribunal received submissions from the parties. Included in the submissions was an email from [email protected] dated 10 January 2015 to the tribunal to which was attached 156 pages of posts and blogs and which stated:
On Behalf Of Michael Borusiewicz
Subject: Submission for proceedings for exposing satan worshipping pedos
Here is my submission for the proceedings against me. Evidence that the OTO is highly involved in abusing children.
You sick bastards award him money and punish anyone who speaks out about it.
The Applicant’s Contentions
The applicant’s contentions[3] are that the respondents:
(a)as administrators of a Facebook page entitled Luke’s Army, published material which accuse him of being part of a paedophile network; of covering up for paedophiles; and state that he is ‘a devil worshipper freak stalker’; that he has made threats; that he should be followed by police, and that he ‘loves to molest and murder children’. The applicant is clearly identified in the materials – he is named and his employment and residential addresses have been published;
(b)were members of the group of administrators on the Facebook page at the time of the upload of the words complained of and at the time of notification by the applicant;
(c)ratified or assumed responsibility for the defamatory materials;
(d)had a reasonable opportunity to remove the comments;
(e)have not met the requirements of the available defences provided by Division 9.4.2 of the CLW Act;
(f)are not subordinate distributors; and
(g)ought to reasonably have known the materials were defamatory.
[3] Applicant’s Submissions lodged 17 December 2014 [1] – [8]
In relation to his application generally the applicant contended[4] that:
[4] Applicant’s Submissions lodged 17 December 2014 [9] – [17]]
(a)good reputation is presumed – the respondents have not established that the reputation of the applicant is that of a person who is part of a paedophile network, who covers up for paedophiles, is a ‘devil worshipper freak stalker’ who makes threats, that should be followed by police or ‘loves to molest or murder children’;
(b)damages are presumed – given the nature of the defamation and the extent of publication, harm to reputation may be inferred by the Tribunal;
(c)the offer of amends by the fourth respondent was out of time and inadequate;
(d)the third respondent unreasonably rejected the settlement offer made by the applicant to her;
(e)the first and second respondents have not made any offer of amends;
(f)the respondents have not taken any action to mitigate the harm caused;
(g)the damages sought are appropriate; and
(h)interest should be applied from the time of publication as materials available on the internet are a publication from the time it is uploaded until it is removed.
The Respondents’ Contentions
The first respondent contended[5]:
I am not an administrative member of “Luke’s Army”, and the public critiques of Mr Bottrill was engaged by Mr Michael Borisiewicz,(sic) I said and did nothing against Mr Bottrill, however I fully support Mr Borisiewicz’s (sic) rights to public critique of any individual or group, as is any Australian citizens right, under freedom of speech and political communication rights.
[5] Letter to tribunal from Teresa van Lieshout 25 August 2014 (Exhibit B1)
The second respondent contended[6] that she was not the one who posted the items on the Facebook page; she was not the author of what was written and had no knowledge that the listing was posted. She also contended that she was no longer an administrator on that Facebook page. She relied on the following disclaimer in the group description for the ‘Luke’s Army’ website:
All comments made by members of this group, political or non political, in public forums, letters, facebook, anywhere on the internet or in person, are done so within the guidelines of article 19 of the United Nations Declaration of Freedom of Speech.
The groups individual persons and its administrators accept no liability what so ever for any posts in which members and/or administrators engage in, find offensive, unacceptable or defamatory in nature. All group members accept this and understand in full when engaging with this group.[6] Letter to tribunal dated 17 October 2014
The third respondent contended[7]:
[7] Third Respondent’s response at [3], [5],and [8]
1. I am one of the pastors of the Beacon Outback ministry. In 2011 I was approached by Michael BORUSIEZIC to ask if I would be a pastoral carer for “Luke’s Army” as pastoral support for parents in crisis. At the time Michael Borusiezic told me he did not want me to do anything except be a pastoral carer and that my role did not include anything in relation to administration or the computer. I did not know I was an administrator. …
2. I have very limited computer skills. As my role for Luke’s Army was for parental support only, sometimes people have contacted me for support via a personal message on Facebook. I would treat these messages a bit like email. I rarely went to Luke’s Army Facebook homepage. Over the approximately 2 years since we became pastoral carers for Luke’s Army I estimate I spoke to about 6 people in crisis.
3. I was never aware that I was an official “administrator” of the Facebook page and indeed had no idea of how to perform any of the skills associated with being an administrator. I have now been shown a copy of a page from the Luke’s Army Facebook admin page which lists 11 “admins”. This document was Annexure D to the Civil Dispute Application. My name was already highlighted in yellow on the document. It states that I was “added by Megan Bordenave”. I have never met Megan Bordenave. I am unsure why only a selection of ‘admins’ have been targeted as respondents in these proceedings.
4. On 26 May 2014 I was contacted by the Applicant, David Bottrill. … I had never heard of him before this phone call. … David Bottrill told me defamatory material about him had been put on the Luke’s Army Facebook page. He demanded that I take it down immediately. I explained to David Bottrill that, as I understood it, I was not an administrator and that I had no knowledge of how to remove any material from a Facebook page.
5. Following the call [from Mr Bottrill] I visited the Facebook page and was very upset to see the comments that were there. I have since been told that the comments have been taken down.
6. I immediately tried to unfriend myself but having little knowledge of how it works I couldn’t do it. I sent a message to Michael Borusiewzic to ask him to remove me from the site altogether. I also sent a message to Luke’s Army Facebook email address asking to be removed. After several messages Michael Bouriezic agreed to remove me from the administration side and from Luke’s Army as a whole.
7. I asked my daughter on that same day to help me check that I had been removed and unfriend me from the site and also from Mr Borusiezic’s personal facebook page and I found that had been done.
8. I deny that I was in any way responsible for the publishing of any defamatory material. As soon as I became aware of the defamatory material I did all I could to remove myself from the page.
…
The fourth respondent contended[8] that he had the right to report information on the ‘Luke’s Army’ website and Facebook page and that the applicant had orchestrated the whole occurrence as he is a vexatious litigant.
Relevant Law
[8] In the documents attached to his email to the tribunal dated 12 September 2014 at [9]
The applicant’s claim at the hearing was brought pursuant to Part 9 of the the Civil Law (Wrongs) Act 2002 (CLW Act).
The objects of the CLW Act are found in section 115 and are:
The objects of this chapter are—
(a) to enact provisions to promote uniform laws of defamation in Australia; and
(b) to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance; and
(c) to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and
(d) to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter.
Note The Human Rights Act 2004 provides for the following human rights that are particularly relevant to this chapter:
• privacy and reputation (see s 12)
• freedom of expression (see s 16).
Under the Human Rights Act 2004, s 28 human rights may be subject only to reasonable limits set by territory laws that can be demonstrably justified in a free and democratic society.
Section 118 of Part 9 of the CLW Act states:
(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.
Section 124 of the CLW Act refers to Division 9.3.1 (Offers to make amends) and states:
(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.
Section 136 refers to the defence of contextual truth and states:
It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, 1 or more other imputations ( contextual imputations ) that are substantially true; and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
Section 139B refers to the defences of honest opinion and states
(1) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter was an expression of opinion of the defendant rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.
(2) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.
(3) It is a defence to the publication of defamatory matter if the defendant proves that—
(a)the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.
(4) A defence established under this section is defeated if, and only if, the plaintiff proves that—
(a) in the case of a defence under subsection (1)—the opinion was not honestly held by the defendant at the time the defamatory matter was published; or
(b) in the case of a defence under subsection (2)—the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published; or
(c) in the case of a defence under subsection (3)—the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.
(5) For the purposes of this section, an opinion is based on proper material if it is based on material that—
(a) is substantially true; or
(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or
(c) was published on an occasion that attracted the protection of—
(i) a defence under this section, section 138 (Defence for publication of public documents) or section 139 (Defences of fair report of proceedings of public concern); or
(ii) the defence of fair comment at general law.
(6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper matter if the opinion might reasonably be based on such of the material as is proper material.
Pursuant to section 139E of the CLW Act the damages are to bear a rational relationship to the harm. Section 139E states:
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.
Section 139G of the CLW Act states:
In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.
Pursuant to section 139H of the CLW Act, exemplary or punitive damages cannot be awarded for defamation.
The factors which can be taken into consideration in the mitigation of damages are set out in section 139I of the CLW Act which states:
(1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that—
(a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter; or
(b) the defendant has published a correction of the defamatory matter; or
(c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.
(2) Nothing in subsection (1) operates to limit the matters that can be taken into account by a court in mitigation of damages.
Issues
The following are the issues for determination:
(i)whether the words complained of are defamatory.
(ii)whether the respondents, or any of them, are liable as administrators of the Facebook page at the time of the upload of the words complained of and at the time of notification by the applicant? This involves the Tribunal considering the defence of innocent dissemination set out in section 139C of the CLW Act.
(iii)the quantum of damages.
Consideration
First Issue
In considering the first issue - whether the words complained of (the words) are defamatory it is necessary for the Tribunal to consider the following:
(i)whether the words are capable of a defamatory meaning as understood by ordinary members of society;
(ii)whether the words identify the applicant;
(iii)whether the words contain a false imputation in relation to the applicant by which his reputation is likely to be injured or his profession or trade is likely to be injured or other persons are likely to be induced to shun, avoid, ridicule or despise him;
(iv)whether the words have been published; that is, heard or seen by a third person?
The words on the Facebook pages, the subject of this application, include the following:
Michael Borusieiwicz March 12
David Bottrill insists on covering up for paedophiles From my research I believe David Bottrill is part of a devil worshipping group. The “O.T.O” was founded by Aleister Crowley known as the wickedest man in the world. No wonder this low life does not want anyone to know about the O.T.O. David Bottrill is not just part of the OTO, he is the national treasurer which leads one to wonder how sinister this man really is. I would hope the federal police follow this man each Halloween to ensure he is not sacrificing babies. What sort of man devotes himself to protecting the reputation of a paedophile Satanist??? David Bottrill.
This skumbag has threatened me for exposing paedophile rings
Michael Borusieiwicz March 24
David Bottrill insists on covering up for paedophiles
David Bottrill is National treasurer of a Satanic Cult called “The OTO.” Believe it or not this low life is our federal outreach officer for Immigration and Citizenship too. Anyway, he has threatened me with legal action after posting a blog exposing paedophiles protected by police and politicians and after researching what this vile creature gets up to turns out that the Luke’s Army website is in danger of this satan worshipper shutting it down if he gets the right corru…
March 27
Shari A Carriage: …….. who is David Bottrill?
Michael Borusiewiwicz: a skumbag satan worshipper who sued a woman who was awarded Australian of the year for helping abused kids. It seems she spoke out against paedophiles and David Bottrill doesn’t like people doing that so he sued her and has now threatened me with legal action too. He has also put an elderly couple in jail for nine months because they spoke out about paedophiles too. What else would you expect from a satan worshipper. Here is another person in the same sick group as this creep … Its called the OTO
Michael Borusieiwicz March 29
…..David Bottrill is the national treasurer of the OTO and loves to molest and murder children you sick fucken fuck. I am comin for you c**t”
Arthur Cristian Luke’s Army May 20
Received a phone call from David Bottrill around 70 minutes ago on our private home number. Told him we were not taking it down and that we were targeting him, his family, children, etc, and that you/they are now processing the curse/s of your/their “own’ making …..
The law of defamation is the area of law that deals with protection of reputation. It recognises that people have an interest in their reputation and that reputation may be damaged by the publication of defamatory matter. It gives a person whose reputation has been wrongfully attacked the right to take legal action against those responsible.[9]
[9] Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16
Defamation is defined as:
The tort of publishing to persons, other than the person defamed, imputations the effect of which is to lower the reputation of the person in the eyes of the public at large.[10]
[10] Butterworths Concise Australian Legal Dictionary 3rd ed. 2008
The test to be applied in determining whether defamatory imputations arise in the publication is the ordinary reasonable reader test. Such a person is said to be of fair average intelligence, fair-minded, not overly suspicious, not naïve, not straining or forcing meanings, not avid for scandal and one who reads the entirety of the publication about which complaint is made: Amalgamated Television Services v Marsden[11]; Haddon v Forsyth[12].
[11] [1998] NSWSC 4; (1998) 43 NSWLR 158 at 165
[12] [2011] NSWSC 123
The natural and ordinary meaning of words includes inferences and conclusions that an ordinary person draws from those words[13] and involves considering the words and the context in which they are used. The exercise is one of impression: Ives v State of Western Australia [No 8][14].
[13]Prince v Malouf [2014] NSWCA 12; Morgan v Odhams Press Ltd [1971] 1 WLR 1239; [1971] 2 All ER 1156, 1245; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632, 641 (Mason & Jacobs JJ); Harding v Essey [2005] WASCA 30 [35]
[14] [2013] WASC 277
The Tribunal is satisfied and finds that the natural and ordinary meaning of the words as detailed above are capable of a defamatory meaning. The Tribunal is also satisfied and finds that ordinary members of society would understand that the words were capable of being defamatory. They falsely impute or attribute that the applicant, who is identified by name and occupation[15], is variously part of a devil worshipping group; a skumbag (sic) satan worshipper; who loves to molest and murder children and insists on covering up for paedophiles.
[15] “….is our federal outreach officer for Immigration and Citizenship too…”
While the fourth respondent persisted in calling the Applicant a ‘scumbag’ throughout the hearing he failed to produce any evidence which would enable the Tribunal to find that there was a scintilla of truth in any of the words. The Tribunal is satisfied and finds that the intention of the fourth respondent was to publish and spread bad reports about the Applicant on the ‘Luke’s Army’ Facebook page which would harm the applicant’s reputation and make people want to shun, avoid, ridicule and/or despise him.
The applicant tendered a Statutory Declaration from Debra Anne Thomas declared on 13 September 2014. In the Statutory Declaration, Ms Thomas stated that around the second week of March 2014 she had seen the contents of webpage which had a picture of the Applicant and contained a number of allegations that he was a member of a satanic cult and was involved in the murder and sexual abuse of children. On the same website she saw the Michaelson document. She had reviewed the website in early June and she saw other materials of a similar nature had been added. She then stated:
5. Around the same times, in March and through to June 2014 I saw similar materials posted on Luke’sArmy Facebook page.
The Tribunal is satisfied, that the words were published, with the intention of being read, on the ‘Luke’s Army’ Facebook pages. They were read by Ms Thomas. Ms Thomas stated in her Statutory Declaration dated 19 August 2014 that she found the publications which stated that the applicant had engaged in criminal acts of child abuse, murder, cannibalism, and had used his employment to facilitate these acts, and had covered up for others performing these crimes defamatory.
The Tribunal is also satisfied that the words were downloaded and accessed by others including those who had posted comments themselves on the Facebook page. The fourth respondent told the Tribunal that ‘Luke’s Army’ had 12,000 followers. This was never disputed. The Tribunal is satisfied that an ordinary reasonable reader of the Facebook publications would understand what was being said was defamatory.
Having considered all of the evidence, the Tribunal is satisfied that (i) to (iv) in paragraph 19 above are each answered ‘yes’. The Tribunal finds that the defamatory imputations, as alleged by the applicant, arise. The imputations complained of are manifestly defamatory.
Second Issue
Anyone involved in the publication or distribution of defamatory material, such as printers, publishers, retailers and librarians, may be liable for defamatory publications.
The applicant contends that the four respondents were all members of a group of administrators of the Facebook page at the time when the words were displayed and at the time he served the Notice on the four respondents and were therefore liable for the defamatory publications. He further contended that they, as administrators, had sufficient editorial control over the words. He provided the Tribunal with a printout from Facebook Help Center[16] which stated that –
Managers are now called admins, content creators are editors and insights analysts are analysts.
[16] Dated 26 May 2014
The role of ‘admins’ is identified in that printout as: “Manage Page roles and settings; Edit the Page and add apps; create and delete posts as the Page; Respond to and delete comments and posts to the Page; send messages as the Page; create ads; view insights; and see who posted as the Page.”
The first and third respondents contended that they did not know that they were administrators of the Facebook page.
The second respondent contended that she had no knowledge of what was written on the Facebook page and was not the author of it. She also contended that she was no longer an administrator.
The fourth respondent did not deny that he was named as one of the administrators.
It was clear from the evidence that the four respondents were members of a group of 11 named administrators of the Facebook page on which the material was published. The applicant claimed that he, as the injured party, could choose from the class of tortfeasors who are jointly and severally liable wrongdoers and he had chosen the four respondents as they were Australian residents.
It was also clear from the evidence that the fourth respondent, Michael Borusiewicz, had set up the website, lukesarmy.com, and the Facebook page and referred to himself on the website and Facebook page as ‘Luke’s Daddy’ or ‘Luke’s Dad’.
However, it was also clear from the evidence that the First and Second Respondents were not aware of the publication of the offending material. The Tribunal is satisfied and finds that they did not post the material and only became aware of the publication when contacted by the applicant in May 2014.
The Tribunal is also satisfied from the evidence and finds that the third respondent was not aware that she was an administrator. The Tribunal had no hesitation in accepting her evidence in this matter. It was not challenged or contradicted. She also gave evidence, which the Tribunal accepted, of the steps she had taken, after being contacted by the applicant, to have herself removed from the Facebook page as quickly as possible.
While the applicant contended that, as an ‘admin’ she could have and should have removed the words from the Facebook page as soon as she became aware of them, the Tribunal accepted her evidence that she had little knowledge of computers and did not know how to do this. In these circumstances the Tribunal is satisfied and finds that the proceedings against the third respondent are without merit and should be dismissed.
The Tribunal also accepted the evidence from the second respondent that, until contacted by the applicant, she had no knowledge of the material published on the Facebook page and that she, too, took reasonable action to remove herself as an administrator.
The first respondent told the Tribunal she agreed to be an administrator at the request of the fourth respondent, although she did not ask him what the responsibilities of being an administrator were. She told the Tribunal that she looked at the material that the fourth respondent had posted, and which is the subject of this application, and decided it was in the best interests of the public that it remain in the public domain and be open to discussion. She added that she was not saying that Mr Bottrill was a paedophile, but she had serious concerns about the OTO. She said that the OTO’s symbols were satanic. She did not take any actions, as an administrator, to remove the publications.
It was apparent to the Tribunal, during the hearing, that the first and second respondents regarded the fourth respondent as the person responsible for the content of the Facebook page. They regarded the Facebook page as his platform. They did not see themselves as having any role in managing the content of the Facebook page. Their evidence left the Tribunal in no doubt that whatever relationship had existed between them and the fourth respondent had been in tatters for some time. At the hearing it had reached a nadir.
The Tribunal could not be satisfied, from the evidence before it, that the first respondent and the second respondent had any, or any reasonable understanding of what being an ‘admin’ required of them. They appeared, at all relevant times, to have been under the fourth respondent’s influence.
For these reasons, the Tribunal is satisfied and finds that the proceedings against the first respondent and second respondent are without merit and should also be dismissed.
In coming to this conclusion the Tribunal noted that the applicant contended that it only takes three steps to remove a Facebook entry and that each of the respondents could have and should have carried out these three steps after he had contacted them.
However, the Tribunal also noted that the applicant had accessed the Facebook Help Center to ascertain what the roles of ‘admins’ were. Facebook Community Standards are available online. It appeared to the Tribunal that the applicant could have reported the offending posts to Facebook himself and requested for them to be removed. No explanation was given as to why he did not do that.
Given the Tribunal’s findings that the proceedings against the first, second and third respondents are without merit and should be dismissed, it is not necessary for the Tribunal to consider the defence of innocent dissemination in section 139C of the CLW Act.
The fourth respondent
The fourth respondent told the Tribunal that he was an administrator of the Facebook page and he took responsibility for what was published telling the Tribunal that he provided a platform where people can speak the truth. During the hearing he vocally maintained that he had this right; that he was entitled to publish the words on the Facebook page and as an administrator leave them on the Facebook page. He also said that the applicant had been ‘discussed’ not ‘attacked’ on the Facebook page.
He did not claim that the words were published with the applicant’s consent, or that the information was not very important or that the applicant’s reputation would not have actually been damaged by the words or rely on the defence of honest opinion. At all times he maintained that the imputations from the words were true. He continued to call the applicant a ‘scumbag’ during the hearing.
The fourth defendant had, apparently, unilaterally determined, as administrator, that in publishing the words that the Tribunal has found give rise to the defamatory imputations, he had reasonable grounds for believing the imputations were true.
The fourth respondent did not provide any, or any credible evidence of the truth of the material published. The Tribunal is satisfied, having considered all of the evidence, that the fourth respondent took no steps to verify the accuracy of the material published and that he had no grounds for believing that the imputations were true.
The Tribunal finds that there was no truth in substance and fact in the defamatory words that the fourth respondent published and, as administrator, allowed to remain on the Facebook page. The fourth respondent has failed to satisfy the Tribunal that he is entitled to the protection of section 136 of the CLW Act.
The fourth respondent did not raise any other ground of defence to the application. Accordingly, the Tribunal is satisfied and finds that the fourth respondent was both the author of the words and an administrator of the Facebook page who was able to remove the offending posts. He did not remove the offending posts for some time. In these circumstances, the Tribunal is satisfied and finds that the fourth respondent, solely, is liable as administrator for the publication and distribution of the defamatory material.
Third Issue
As the Tribunal has determined that the allegations made by the fourth respondent were not true, and gave rise to defamatory imputations, there is a presumption of damage to the applicant and an entitlement to some level of damages in relation to the defamatory publication. It is necessary for the Tribunal to assess an appropriate level of damage.
Defamatory publications on social media spread easily by the simple manipulation of computers. A public Facebook page is able to be viewed worldwide by whoever clicks on that page and the grapevine effect stemming from the use of this type of medium must be considered: Mickle v Farley[17]
[17][2013] NSWDC 295
Each of the publications has injured the reputation of the applicant. The fourth respondent, by his conduct not only in defending these proceedings but during the actual hearing, displayed a contumelious disregard for the truth and the hurt that the applicant must have suffered.
An award of damages for defamation is to serve three purposes: consolation for personal distress and hurt caused to the applicant; reparation for the harm done to the applicant’s personal and business reputation; and vindication of the applicant's reputation: Carson v John Fairfax & Sons Ltd[18].
[18](1993) 178 CLR 44
Damages are assessed on the basis of injury to reputation and injury to feelings. This injury often lies more in the applicant’s own feelings, what he thinks others are thinking of him, than in any actual change made manifest in their attitude to him.[19] Compensation for injured feelings forms a large element of the damages.
[19] Cassell & Co Ltd v Broome [1972] AC 1027 at 1124 per Lord Diplock
Further, the level of damages should reflect the high value the law places upon reputation and, in particular, upon the reputation of those whose work and life depend upon their honesty, integrity and judgment.[20]
[20] Crampton v Nugawela (1996) NSWLR 176 at 195 and applied in John Fairfax Publications Pty Ltd v O’Shane )No 2) [2005] NSWCA 291 at [3] per Giles JA
The Tribunal accepted the applicant’s unchallenged evidence of the extensive hurt he experienced to his feelings and reputation. He said that he felt persecuted by the false accusations of abhorrent acts. He is a single parent who has shared custody of his two daughters. His daughters have sleepovers. The fourth respondent’s publications included the most serious of allegations that could be made against a parent. The applicant was concerned about other people reading these publications and placing credence on them. The publications included his photo and his home and work addresses. He described feeling a sense of isolation and of being aware of cars pulling up outside his house. The publications identified his place of work and attacked his employment with unsubstantiated inferences and allegations. He had to declare the publications to security at work because of the nature of his work.
In her Statutory Declaration dated 13 September 2014 Debra Anne Thomas stated:
6. The presence of these materials on line for over 6 months and even after he insisted it was removed has been the cause of considerable and ongoing concern and distress to Mr Bottrill. When his picture, home and work addresses, along with threats made to him, which were also posted, he was so concerned he went to the police and discussed upgrading the security on his home. He was also concerned that this would affect his two young children.
Ms Thomas’ evidence was not challenged. The Tribunal accepted it.
Section 126 of the CLW Act states that an offer to make amends may not be made after a defence has been served in an action brought by the aggrieved person against the publisher in relation to the matter in question. The Tribunal has taken into consideration that the fourth respondent read the Notice which the applicant had sent to him on 5 May 2014 and that he continued to post material which carried defamatory imputations. The application was lodged on 30 May 2014. The fourth respondent did not offer to remove the defamatory material until 27 August 2014, a period of 127 days. Notwithstanding the offer, the fourth respondent continued to defend the application and the matter proceeded to a contested hearing.
The Tribunal has taken into consideration the recent decision by the New South Wales District Court of Mickle v Farley, referred to in [84] above which concerned assessment of damages in a defamation claim via Twitter and Facebook. Elkaim SC DCJ said:
13. . There must be a consolation for the personal distress and hurt caused to the plaintiff by the publication as well as an attempt through an award of monetary compensation to achieve as far as possible a reparation and vindication of the plaintiff’s reputation.
14. An award of damages must not be excessive but must signal to the public that the vindication of the plaintiff’s reputation has been attempted so that the public will know that the lies published by the defendant have no truth whatsoever.
....21. There is one matter I have omitted in relation to compensatory damages and that is to stress that when defamatory publications are made on social media it is common knowledge that they spread. They are spread easily by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stem from the use of this type of communication. I have taken that into account in the assessment of damages that I previously made.
The applicant contended[21] that the damages sought by him were minimal considering the nature of the claims of criminality made against him.
[21] Applicant’s Submissions lodged 17 December 2014 at 15.1
The tribunal’s jurisdiction is limited in civil disputes application to claiming amounts of not more than $10,000 (section 18(2)(a) ACAT Act).
The Tribunal has taken all of the above matters and evidence into consideration and is satisfied that there should be an award of damages for the maximum amount of the jurisdiction of this Tribunal, namely $10,000 and will enter judgment for that amount.
The Tribunal will make the following Orders:
1The applications against Teresa Van Lieshout, Amber Pryor and Gwen Butler are dismissed.
2The Tribunal, having found the material published on Facebook and the subject of this application, was defamatory; that Michael Borusiewicz was an administrator of that Facebook page at all relevant times and that he does not have a defence pursuant to Division 9.4.2 of the Civil Law (Wrongs) Act 2002, the Tribunal enters judgment for the applicant, David Bottrill, in the sum of $10,000 plus $130.00 allowable costs, being the amount sought and the limit of the Tribunal’s jurisdiction.
3Michael Borusiewicz is to pay the sum of $10,130 to the applicant within 28 days of the date of these Orders.
4Immediately upon service of these Orders on Michael Borusiewicz, he is to remove all photographs of the applicant and all defamatory materials relating to the applicant from the Facebook page of which he was an administrator.
5Michael Borusiewicz is permanently restrained, as administrator, from permitting the publication of photographs of the Applicant or any and all defamatory materials relating to the applicant on any Facebook page owned or controlled by Michael Borusiewicz.
6Michael Borusiewicz is to pay the applicant post judgment interest on $10,000.00 at the rates prescribed in Schedule 2, Part 2.2 of the Courts Procedure Rules 2006.
………………………………..
Ms E. Symons
Presidential Member
5
12
0