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Cristian v Bottrill

Cristian v Bottrill

Case [2016] ACTSC 315 13 October 2016

Civil Litigation & Procedure

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Cristian v Bottrill
Citation:	[2016] ACTSC 315
Hearing Date:	13 October 2016
DecisionDate:	13 October 2016
Before:	Refshauge ACJ
Decision:	The application for leave to appeal be dismissed.
Catchwords:	APPEAL – ADMINISTRATIVE TRIBUNAL DECISION – Appeal from ACT Civil and Administrative Tribunal – defamation – publishing content on the Internet – damages – prohibitory injunction – impecunious applicant an irrelevant factor – no arguable error – appeal dismissed
Legislation Cited:	ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 79, 86(3)
Cases Cited:	Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685 Bottrill v Cristian [2016] ACAT 7 Bushby v Munday (1821) 5 Madd 297; 56 ER 908 Cristian v Bottrill [2016] ACAT 104 CSR Ltd v Cigna Insurance Australia Limited (1997) 189 CLR 345 Ezekial-Hart v Law Society of the Australian Capital Territory (No 2) [2012] ACTSC 135 Giusida Pty Ltd v The Commissioner for ACT Revenue [2016] ACTSC 275 Lee v Wilson (1934) 51 CLR 276 Livingston v Rawyards Coal Co (1880) 5 App Cas 25 Maher v Carpenter (2012) 7 ACTLR 21 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Ryan v Ross (1916) 22 CLR 1 Samani v The Queen [2016] ACTCA 48 Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450 Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170
Texts Cited:	Peter Cane, Administrative Tribunals Adjudication (Hart Publishing, 2010) Patrick George, Defamation Law in Australia (LexisNexis Butterworths, 2^nd ed, 2012) David Rolph, Defamation Law (Law Book Co, 2016) Peter Young, Clyde Croft and Megan Smith, On Equity (Law Book Co, 2009)
Parties:	Fiona Cristian (Applicant) David Bottrill (Respondent)
Representation:	Solicitors Self represented (Applicant) Self represented (Respondent)
File Number:	SCA 67 of 2016
Decision under appeal:	Court/Tribunal: ACT Civil and Administrative Tribunal Before: President L Crebbin Senior Member B Meagher SC Date of Decision: 12 September 2016 Case Title: Cristian v Bottrill Citation: [2016] ACAT 104

REFSHAUGE ACJ

Fiona Caroline Cristian, the applicant, was sued in the ACT Civil and Administrative Tribunal (the ACAT) by David Bottrill, the respondent, for defamatory statements said to have been published on an internet website conducted by Ms Cristian. The ACAT held that Mr Bottrill had been defamed and awarded him $10 000 in damages and made an order for costs in the sum of $130.00: Bottrill v Cristian [2016] ACAT 7.

Ms Cristian appealed under s 79 of the ACT Civil and Administrative Tribunal Act 2008 (ACT), that is an appeal within the ACAT. That appeal was heard by President L Crebbin and Senior Member B Meagher SC and, on 12 September 2016, the appeal was dismissed: Cristian v Bottrill [2016] ACAT 104.

On 23 September 2016, Ms Cristian commenced proceedings in this Court. She initially sought leave to appeal. Such leave is required under s 86(3) of the ACT Civil and Administrative Tribunal Act. She also sought what she described as a “prohibitive injunction” staying the decision of…

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 Cristian v Bottrill

Details

AGLC: Cristian v Bottrill [2016] ACTSC 315
Case: [2016] ACTSC 315
Decision Date: 13 October 2016

CaseChat Overview and Summary

Cristian, the plaintiff, appealed against a decision of the ACT Civil and Administrative Tribunal, which was concerned with an action for defamation against Bottrill, the defendant. The tribunal had found Bottrill liable for defamation based on the publication of content on the Internet and awarded damages to Cristian. Bottrill sought a prohibitory injunction against Cristian, which was not granted. Cristian appealed on the grounds that the tribunal had not considered his impecuniosity, and that the tribunal had made an arguable error in its findings.

The legal issues before the court were whether the tribunal had erred in failing to consider Cristian's financial position, and whether the tribunal had made an arguable error in its findings. The court considered the first issue and found that the tribunal had not made an error in failing to consider Cristian's impecuniosity. The court noted that the tribunal had made a finding of liability on the basis of defamation, and that the issue of damages was a separate matter that could be considered at a later stage. The court found that the tribunal had not made an arguable error in its findings, and that there was no basis for the appeal.

The court dismissed the appeal, finding that there was no arguable error in the tribunal's decision. The court noted that the tribunal had considered the evidence and made findings based on that evidence, and that there was no basis for the appeal. The court also noted that the issue of Cristian's impecuniosity was not relevant to the question of liability for defamation. The court found that the appeal was without merit and dismissed the application for leave to appeal.

Orders

Orders of the court

The application for leave to appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Cristian v Bottrill [2016] ACTSC 315

Most Recent Citation

Council of the Law Society of the Act v The Legal Practitioner D3 [2018] ACTSC 95

Cases citing this decision · 4 of 4 shown

Bottrill v Graham (No 3)
[2025] NSWDC 306 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…
Ezekiel-Hart v Reis
[2018] ACTSC 264 Para 1

…defamation are contained in the Claim pleaded; these being publication, identification and defamatory meaning: see, for example, Cristian v Bottrill [2016] ACTSC 315 at [11] per Refshauge ACJ. The current deficiency in the proper particularisation has been supplied by the plaintiff through evidence and oral argume…
Council of the Law Society of the Act v The Legal Practitioner D3
[2018] ACTSC 95 Para 1

…ondly, Ms Power identified the principles governing an application for a stay of the current kind, as set out by Refshauge ACJ in Cristian v Bottrill [2016] ACTSC 315 at [26], in declining to grant an injunction to restrain proceedings in ACAT:…
GJ v AS (No 4)
[2017] ACTCA 7 Para 1

…cunious or would have difficulty in meeting a costs order, that has never been a basis for declining to make an order for costs: Cristian v Botterill [2016] ACTSC 315 at [19]; Edwards v Stocks (No 2) [2009] TASSC 11; 17 Tas R 454 at 460-1; [12]; Knight v Secretary of the Department of Justice (Re Costs) [2004] VSC…

View all 4 citing cases →

Cases cited in this decision · 18 of 18 shown

Giusida Pty Ltd v Commissioner for ACT Revenue
[2016] ACTSC 275 Para 1

…I have set out in Giusida Pty Ltd v The Commissioner for ACT Revenue [2016] ACTSC 275 at [23]-[24] the principles applicable to applications for leave to appeal as follows:…
Samani v The Queen
[2016] ACTCA 48 Para 1

…principles for such a stay have been set out in Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. I summarise these in Samani v The Queen [2016] ACTCA 48 at [9] as follows:…
Cristian v Bottrill
[2016] ACAT 104 Para 1

…That appeal was heard by President L Crebbin and Senior Member B Meagher SC and, on 12 September 2016, the appeal was dismissed: Cristian v Bottrill [2016] ACAT 104.…
Bottrill v Cristian & Anor (Civil Dispute)
[2016] ACAT 7 Para 1

…ACAT held that Mr Bottrill had been defamed and awarded him $10 000 in damages and made an order for costs in the sum of $130.00: Bottrill v Cristian [2016] ACAT 7.…
Pires v DibbsBarker Canberra Pty Limited
[2014] ACTSC 283 Para 48

…23.In Pires v Dibbs Barker Canberra Pty Ltd [2014] ACTSC 283 at [48], I set out the principles that I considered should be applied when considering whether leave to appeal from a decision of the appeal tribunal of the ACAT. These were as follows: · the need for leave is to reduce the number of appeals and provide a…
O'Donnell v Environment Protection Authority
[2012] ACTSC 140 Para 78

…stantial hardship. 24. The principles have been also succinctly set out by Penfold J in O’Donnell v Environment Protection Authority [2012] ACTSC 140 at [78], in the following way: (a) whether a question of fact or law has been identified; (b) whether there is at least an arguable case that the Appeal President err…
Ezekiel-Hart v Law Society of the Australian Capital Territory (No 2)
[2012] ACTSC 135 Para 1

…ties to engage in alternative forms of dispute resolution such as mediation. In Ezekial-Hart v Law Society of the Australian Capital Territory (No 2) [2012] ACTSC 135 at [26]-[35], I expressed the need to support mediation and that support may mean that an unreasonable failure to engage in mediation may be visited…
Maher v Carpenter
[2012] ACTSC 38

…Giusida Pty Ltd v The Commissioner for ACT Revenue [2016] ACTSC 275 Lee v Wilson (1934) 51 CLR 276 Livingston v Rawyards Coal Co (1880) 5 App Cas 25 Maher v Carpenter (2012) 7 ACTLR 21 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Ryan v Ross (1916) 22 CLR 1 Samani v The Queen [2016] ACTCA 48 Scott v Secretary, Depa…
Rogers v Nationwide News Pty Ltd
[2003] HCA 52 Para 1

…d may be relevant to damages, which takes into account the extent and nature of the publication. See, for example, Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 340-1; [34]. It does not, however, deny Mr Bottrill relief for the publication that has already, by then, been made.…
Scott v Secretary, Department of Social Security (No 2)
[2000] FCA 1450 Para 1

…he awarding of an order for costs that the person liable to pay the costs is impecunious. See Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450 at [4]. It seems to me that the case for the financial means of a person ordered to pay damages being an irrelevant factor in the assessment of the a…
CSR Ltd v Cigna Insurance Australia Ltd
[1997] HCA 33 Para 1

…It would be possible to direct an injunction to Mr Bottrill as an “anti-suit injunction” (see CSR Ltd v Cigna Insurance Australia Limited (1997) 189 CLR 345) but such an injunction is really directed towards disputes over which of two or more courts is the appropriate venue for resolving a dispute. There is, in this…
Lee v Wilson
[1934] HCA 60 Para 1

…in law, however, that the publisher, who is the person liable in defamation, is not necessarily the author, as pointed out by Dixon J in Lee v Wilson (1934) 51 CLR 276 at 287. The publisher is the person liable and, in this case, Ms Cristian was held by the ACAT to be responsible for the publication. The facts found…
Ryan v Ross
[1916] HCA 43 Para 1

…ore the proceedings has commenced. Such removal, however, does not reverse the fact that the publication had by then been complete. See Ryan v Ross (1916) 22 CLR 1 at 33. It is at the point of publication that the cause of action, namely the entitlement for Mr Bottrill to damages, if he can show that there has bee…
Livingstone v Rawyards Coal Co
(1880) 5 App Cas 25 Para 1

…ry notion of what the damages are and intended to do, as explained in the seminal statement of law by Lord Blackburn in Livingston v Rawyards Coal Co (1880) 5 App Cas 25 at 39, namely that damages is:…
[1900] 2 QB 170
[1900] 2 QB 170 Para 1

…esponsible for the republication of the relevant matter. This constituted the publication. See, for example, Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 at 180…
Perry v Smith
152 ER 288

…ere there is a miscarriage of justice should be able to be heard, though the test should be applied “in a liberal manner, and not begrudgingly”: Perry v Smith (1901) 27 VLR 66 at 68; · whether leave should be granted or not must depend upon the justice of the case; · the application for leave must identify the question…
Boothby v Munday
56 ER 908 Para 1

…The Court will not issue an injunction against another Court: Bushby v Munday (1821) 5 Madd 297 at 307; 56 ER 908 at 913. The ACAT is, however, not in that position; it is an administrative entity and, as such, part of the executive arm of government. See Peter Cane, Administrative Tribunals Adjudication (Ha…
Alexander v Cambridge Credit Corporation Ltd
(1987) 9 NSWLR 310 Para 1

…t would usually be appropriate would be a stay of the proceedings in the ACAT pending the appeal. The principles for such a stay have been set out in Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. I summarise these in Samani v The Queen [2016] ACTCA 48 at [9] as follows:…

Legislation cited in this decision · 1

ACT Civil and Administrative Tribunal Act 2008 (ACT)
79, 86(3) 3 mentions (from Para 1)