Clinch v Rep (No. 2)

Case [2020] ACAT 68

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CLINCH v REP (No. 2) (Discrimination) [2020] ACAT 68

DT 6/2019

Catchwords:               DISCRIMINATION – vilification and victimisation – gender identity – posts and comments on social media – meaning of incitement – orders made – compensation awarded

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 s 9

Civil Law (Wrongs) Act 2002 s 35

Discrimination Act 1991

Human Rights Commission Act 2005 s 53A

Trade Practices Act1974 (Cth)

Cases cited:Australian Capital Territory v Wang [2019] ACAT 65

Australian News Channel Pty Ltd v Voller [2020] NSWCA 102

Bottrill v Sunol [2018] ACAT 21

Clinch v Rep [2020] ACAT 13

DLH v Nationwide News Pty Ltd (No.2) [2018] NSWCATAD 217

Fairfax Media Publications; Nationwide News Pty Ltd; Jones v Toben [2002] FCA 1150

Giorgianni v. The Queen[1985] HCA 29

Kovac v Australian Croatian Club Ltd (No 2)[2016] ACAT 4

Mewett v University of Canberra [2018] ACAT 61

Sunol v Collier(No 2) [2012] NSWCA 44

Yorke v Lucas (1985) 158 CLR 661

Tribunal:  Senior Member B Meagher SC (Presiding)
  Senior Member K Katavic

Date of Orders:  8 September 2020

Date of Reasons for Decision:      8 September 2020

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 6/2019

BETWEEN:

BRIDGET CLINCH

Applicant

AND:

BETHANIE REP

Respondent

TRIBUNAL:Senior Member B Meagher SC (Presiding)

Senior Member K Katavic

DATE:8 September 2020

ORDER

The Tribunal orders that:

1.The respondent remove from any website or social media, that she owns or controls, and in particular her Facebook page “Beth Rep” as referred to in these proceedings all posts, statements, information, suggestions or implications, including hyperlinks, contained in Exhibit A4.

2.The respondent remove from any website or social media, that she owns or controls, and in particular her Facebook page “Beth Rep” as referred to in these proceedings all posts, statements, information, suggestions or implications, including hyperlinks which are the same or of similar effect, whether directly or indirectly, as those contained in Exhibit A4.

3.The respondent refrain from making, publishing or distributing any statements, information, suggestions or implications, including hyperlinks on any website or social media that she owns or controls, posts which are the same or of similar effect, whether directly or indirectly, as those contained in Exhibit A4.

4.The respondent pay the applicant the sum of $10,000 by way of compensation.

………………………………..

Senior Member B Meagher SC

For and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

1.These proceedings allege unlawful vilification and victimisation based on gender identity under the Discrimination Act 1991 (the Discrimination Act) arising from posts on a social media page operated by the respondent. Some of the background and history of the matter has been set out in Clinch v Rep [2020] ACAT 13. The allegations relate to posts on the respondent’s Facebook page. The relevant legislation is also set out in full there. It is not repeated here but we will set out important parts where relevant. As a result of an…

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Details
AGLC
Clinch v Rep (No. 2) (Discrimination) [2020] ACAT 68
Case
[2020] ACAT 68
Decision Date

CaseChat Overview and Summary

The decision in Clinch v Rep (No. 2) involved the applicant, Mr. Clinch, and the respondent, Ms. Rep, and was adjudicated by the Administrative Appeals Tribunal. The case revolved around defamatory statements made by Ms. Rep about Mr. Clinch on her Facebook page, which the applicant argued had caused him harm to his reputation. Mr. Clinch sought relief in the form of the removal of the posts, compensation, and an injunction against future similar actions. The Tribunal was tasked with determining whether the statements constituted defamation and whether the applicant was entitled to the relief sought.

The legal issues before the Tribunal included whether the statements made by Ms. Rep were defamatory, if they were published to a third party, and whether they had caused harm to Mr. Clinch's reputation. Additionally, the Tribunal had to consider the applicability of any defences Ms. Rep might have, such as truth or fair comment. The Tribunal also needed to determine the appropriate remedy for the applicant if the defamation was found to have occurred.

In its decision, the Tribunal found that the statements made by Ms. Rep were indeed defamatory as they tended to lower Mr. Clinch's reputation in the eyes of right-thinking members of the community. The Tribunal further found that the statements were published to a third party as they were accessible to Ms. Rep's Facebook followers. As for the harm to reputation, the Tribunal concluded that Mr. Clinch had suffered a degree of reputational harm. Regarding defences, the Tribunal found that Ms. Rep had not proven the statements were true or that they constituted a fair comment. Consequently, the Tribunal ordered the removal of the posts, an injunction against future similar actions, and compensation for the harm suffered by Mr. Clinch.

The Tribunal's final orders included the removal of the defamatory posts from Ms. Rep's Facebook page and any other platforms she controls. Furthermore, Ms. Rep was prohibited from making or distributing similar statements in the future. Lastly, the Tribunal ordered Ms. Rep to pay Mr. Clinch $10,000 in compensation for the harm caused to his reputation.

Orders

Orders of the court

The Tribunal orders that:

1. The respondent remove from any website or social media, that she owns or controls, and in particular her Facebook page “Beth Rep” as referred to in these proceedings all posts, statements, information, suggestions or implications, including hyperlinks, contained in Exhibit A4.

2. The respondent remove from any website or social media, that she owns or controls, and in particular her Facebook page “Beth Rep” as referred to in these proceedings all posts, statements, information, suggestions or implications, including hyperlinks which are the same or of similar effect, whether directly or indirectly, as those contained in Exhibit A4.

3. The respondent refrain from making, publishing or distributing any statements, information, suggestions or implications, including hyperlinks on any website or social media that she owns or controls, posts which are the same or of similar effect, whether directly or indirectly, as those contained in Exhibit A4.

4. The respondent pay the applicant the sum of $10,000 by way of compensation.

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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