Curtis v Jason Victor Bishop Trading as Canberra Notice Board (Civil Dispute)
[2022] ACAT 59
•29 June 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
CURTIS v JASON VICTOR BISHOP TRADING AS CANBERRA NOTICE BOARD (Civil Dispute) [2022] ACAT 59
XD 581/2021
Catchwords: CIVIL DISPUTE – defamation – alleged defamatory comments on Facebook – relevant audience and extent of publication – whether the respondent was the publisher of the alleged defamatory material – whether respondent was able to avail himself of any defences – whether the application has made out a case for non-economic loss – defamation found – quantum of damages – whether damages should be reduced pursuant to section 139I of the Civil Law (Wrongs) Act 2002
Legislation cited: ACT Civil and Administrative Tribunal 2008 ss 8, 48
Civil Law (Wrongs) Act 2002 Republication No 68 ss 116, 136, 139A, 139D, 139E, 139I
Cases cited:Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Bailey v Botterill [2018] ACAT 120
Bailey v Cristian [2016] ACAT 7Botterill v Bailey [2018] ACAT 45
Brown v Kirkpatrick [2020] SASC 5
Curtis v Phillips [2020] ACAT 115
Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52Haddon v Forsyth [2011] NSWSC 123Ives v State of Western Australia [2013] WASC 277
Jones v Sutton (2004) 61 NSWLR 614
King and Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305Mallegowda v Sood [2018] NSWDC 281
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
Smith v Lucht [2017] 2 Qd R 489
List of
Texts/Papers cited: Gibson DCJ, Australian Defamation Law & Practice (LexisNexis, 2022)
Kim Gould, ‘Small defamation claims in small claims jurisdiction: Worth considering for the sake of proportionality? (2018) 41(4) UNSW Law Journal 1222
Tribunal:Senior Member Prof P Spender
Date of Orders: 29 June 2022
Date of Reasons for Decision: 29 June 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 581/2021
BETWEEN:
LOUISE CURTIS
Applicant
AND:
JASON VICTOR BISHOP
TRADING AS CANBERRA NOTICE BOARD
Respondent
TRIBUNAL:Senior Member Prof P Spender
DATE:29 June 2022
ORDER
The Tribunal orders that:
The name of the respondent is amended from ‘Jason Victor Bishop trading as Canberra Notice Board Group’ to ‘Jason Victor Bishop trading as Canberra Notice Board’.
The respondent is to pay the applicant the sum of $3,671.50 within 28 days of today’s date, comprising:
(a)$3,500 damages;
(b)$162.50 filing fees;
(c)$9 ASIC search fees.
………………………………..
Senior Member Prof P Spender
REASONS FOR DECISION
The reasons below explain why the Tribunal has made the orders set out above. In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refer to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ or the first-person pronoun refers to the presently constituted Tribunal.
The applicant filed an application in ACAT on 10 June 2021. A hearing was held on 15 December 2021. The parties filed further evidence and submissions after the hearing and the decision was reserved on 9 March 2022.
Background and the applicant’s contentions
The applicant alleged that she was subjected to “severe trolling on social media accounts” during the period January 2019 to September 2020.[1] The alleged trolling was directed at the applicant in her personal capacity and her businesses.[2]
[1] Witness statement of Louise Curtis dated 15 November 2021 at [2]
[2] Witness statement of Louise Curtis dated 15 November 2021 at [2]
The applicant commenced proceedings against the respondent on 10 June 2021 for defamation, seeking damages of $15,000, her filing fee of $162.50 and search fees of $9. The claim was based on alleged defamatory material that was published on the Canberra Notice Board Facebook group (the Facebook group) during the period 15 June 2020 to 15 July 2020.
The applicant alleged that the respondent is the owner of a business known as “Canberra Notice Board”, a business operating in the ACT and registered on 24 November 2016. An ASIC extract confirming the registration of the business name “Canberra Notice Board” by Jason Victor Bishop dated 24 November 2016 was attached to the application.[3] The applicant also alleged that the respondent was the administrator and controller of the Facebook group known as the Canberra Notice Board Group. Attached to the application was a screenshot of the members of the Canberra Notice Board Group and under the heading “admins and moderators”, there is a reference to Jason Bishop.[4]
[3] Applicant’s application dated 10 June 2021, attachment A
[4] Applicant’s application dated 10 June 2021, attachment B
The applicant alleges that on 15 June 2020 at 6:15pm the respondent caused to be published a post on the Facebook page relating to the applicant (the Original Post).[5] The Tribunal acknowledges that the respondent made some arguments about the difference between a Facebook group and a Facebook page, and those arguments will be addressed below. The Tribunal notes that the applicant and several witnesses referred to the relevant site where material was posted as a Facebook ‘page’ but the references below are to a Facebook ‘group’ rather than a Facebook ‘page’ except where evidence is quoted.
[5] Applicant’s application dated 10 June 2021 at [4]
The Original Post consisted of a statement by a person called Tania which says the following:
I can’t actually read this story due to the pay wall, but I just wanted to share it with everybody considering the companies ‘Pink Frosting’ and ‘Lollipotz’ are Canberra based businesses, and the owner is a well-known Canberra “businesswoman” *cough cough
If anyone can read this story I’d love some screenshots in the comments please TIA
UPDATE: I posted the screenshots in the comments[6]
[6] Applicant’s application dated 10 June 2021, attachment C
The Original Post consisted of this writing by Tania and two photographs taken from dailytelegraph.com.au of the applicant and a person identified as Kevin Neill. In bold underneath the photographs was the following headline:
Ex-Raiders boss wins $100K against party store[7]
[7] Applicant’s application dated 10 June 2021, attachment C
Certain comments made under the Original Post are set out below which the applicant alleges constitute the alleged defamatory material (alleged defamatory material):
Undated
Jenna Gabriel: Lollipotz has a whole bunch of obviously fake reviews giving it five stars on Google … Pretty sad really when you have to stoop to that level as a business owner.[8]
Paul VanGageldonk: Declare bankruptcy on one business, close it up, open two more the next day under a family member’s name. Happens all the time.[9]
Dated
Briony Young (17 June) [Young]
Both Kevin and Louise are dirty grubs in their own right.[10]
Linda McNeilly (17 June) [McNeilly]
How are scamers [sic] like this still able to run businesses and send kids to private school?? She should have all her belongings liquidated to pay back the people she owes and be blacklisted if she ever tries to register another business.
This blows my mind how it’s allowed to be done over and over again.[11]
Kristy Morton (17 June) [Morton]
They are horrible people taking money from customers and not giving goods.[12]
[8] Applicant’s application dated 10 June 2021, attachment D, page 11
[9] Applicant’s application dated 10 June 2021, attachment D, page 11
[10] Applicant’s application dated 10 June 2021 attachment D (page 12) screenshot dated 10:55am Wednesday 17 June 2020
[11] Applicant’s application dated 10 June 2021 attachment D (page 12) screenshot dated 10:55am Wednesday 17 June 2020
[12] Applicant’s application dated 10 June 2021 attachment D (page 12) screenshot dated 10:55am Wednesday 17 June 2020
The applicant argued that the comments represent a ‘matter’ as defined by section 116 of the Civil Law (Wrongs) Act 2002 at the relevant time[13] (the Act) and was a publication as defined by the common law.[14]
[13] Republication No 68
[14] Applicant’s application dated 10 June 2021 at [5]
The applicant submitted that the publications are defamatory because the imputations would cause the ordinary or reasonable person to think less of the applicant.[15]
[15] Applicant’s application dated 10 June 2021 at [6]
The imputations relied upon by the applicant were as follows:
A. obtaining fake reviews for her business;
B. scamming customers;
C. operating an insolvent business;
D. a grub;
E. a horrible person.[16]
[16] Applicant’s application dated 10 June 2021 at [6]
On 17 June 2020 the applicant caused a concerns notice in relation to the alleged defamatory material to be served upon the respondent (Concerns Notice).[17] The Concerns Notice was issued by Eastwoods Legal acting on behalf of the applicant and stated that they were instructed to seek relief under the tort of defamation, including, if necessary, suing for general and aggravated damages.[18] The Concerns Notice continued:
Remedies for defamation – offer to make amends
Subject to the Act, we demand that you make amends within 28 days of this date of this letter as follows:
(1) delete the defamatory statements published on the Facebook Page; and
(2) publicly apologise for making the defamatory statements on the Facebook page. …
You will also be required to pay our client’s legal costs in the sum of $2,500.
Should you fail or refuse to make amends and pay our client’s legal costs as required by the Act prior to 4 PM on Wednesday, 15 July 2020, we hold instructions to commence proceedings against you without further notice to you.[19]
[17] Applicant’s application dated 10 June 2021, attachment D
[18] Applicant’s application dated 10 June 2021, attachment D, page 10
[19] Applicant’s application dated 10 June 2021, attachment D, page 10
There is no dispute between the parties that the Concerns Notice satisfied the requirements of Division 9.3.1 of the Act at the relevant time.
The applicant alleged that the respondent failed to comply with the Concerns Notice and that some of the alleged defamatory material remained public and live on the Facebook group until 9pm on 15 July 2020 as discussed below. No apology or payment of legal fees was received from the respondent.[20]
[20] Applicant’s application dated 10 June 2021 at [8]
The applicant further alleged that on 15 July 2020 Young made an apology to the applicant on the Facebook group concerning comments she had made which formed part of the alleged defamatory material. As the respondent had not removed the Original Post the applicant alleged that this part of the alleged defamatory material was then duplicated.[21]
[21] Applicant’s application dated 10 June 2021, attachment E, page 13
As an aside, the Tribunal notes that the alleged defamatory material that the applicant said followed the apology by Young was not evidenced in the material filed in the tribunal. The applicant relied upon Attachment E of the Applicant's Application dated 10 June 2021[22] but Attachment E does not contain any posts that might constitute defamatory matters.
[22] Applicant’s application dated 10 June 2021, attachment E, page 13
The applicant submitted that at 4:30pm on 15 July 2020 the applicant’s lawyer was contacted by Meyer Vandenberg lawyers requesting more time to obtain instructions in relation to the Concerns Notice. The applicant provided a screenshot on that date that belongs to the Facebook group of Canberra Notice Board which reproduces the alleged defamatory material by McNeilly.[23] The respondent did not dispute that the screenshot is a valid copy of the comments that were on the Facebook group on 15 July 2020.[24]
[23] Applicant’s application dated 10 June 2021, attachment F, page 14
[24] Applicant’s application dated 10 June 2021, attachment E, page 10
The applicant contended that all the alleged defamatory material was removed by 9:30 pm on 15 July 2020.[25] The respondent did not dispute this fact.[26]
[25] Applicant’s application dated 10 June 2021 at [11]
[26] Transcript of proceedings 15 December 2021, page 37
The applicant claimed that the alleged defamatory material has caused significant embarrassment and damage to her reputation. She argued that the respondent’s Facebook group has over 80,000 members and is Canberra-centric, where the applicant operates a business and has done so since 2001.[27]
[27] Applicant’s application dated 10 June 2021 at [12]
The applicant wrote to the respondent on 28 September 2020 and 17 February 2021 providing the respondent with further opportunities to resolve this matter. The applicant provided a copy of a letter that she sent dated 28 September 2019 to the respondent[28] and an email dated 17 February 2021 which is addressed to [email protected].[29] In the letter dated 28 September 2019 (which contains a typographical error so it should read 28 September 2020) the applicant claimed the sum of $25,000 plus interest and filing fees “noting that Mr Bishop is the creator of the page”.[30]
[28] Applicant’s application dated 10 June 2021, attachment G, page 15
[29] Applicant’s application dated 10 June 2021, attachment H, page 17
[30] Applicant’s application dated 10 June 2021, attachment G, page 16
As previously stated, the applicant filed a civil dispute application in ACAT on 10 June 2021. In that application she claimed the sums referred to above, making a total of $15,171.50.
The applicant argued that the relevant audience of the alleged defamatory material is adults in Canberra. There are 90,000 or so people who are members of the Canberra Notice Board Group.[31] The members can make comments but because it is a public Facebook group the relevant audience is the population of Canberra which is 300,000+ people.[32]
[31] Transcript of proceedings 15 December 2021, page 49
[32] Transcript of proceedings 15 December 2021, page 49
After the hearing, the applicant filed witness statements by the following people:
(a)Melissa Cabban.[33]
(b)Nicole Laws.[34]
(c)Darren Carden.[35]
(d)Grant Goodger.[36]
(e)Roberta Bagozzi.[37]
[33] Witness statement of Melissa Cabban dated 21 January 2022
[34] Witness statement of Nicole Laws dated 22 January 2022
[35] Witness statement of Darren Carden dated 27 January 2022
[36] Witness statement of Grant Goodger dated 27 January 2022
[37] Witness statement of Roberta Bagozzi dated 27 January 2022
Some of these witnesses stated that they had seen the alleged defamatory material or had observed certain things about it and alleged that certain consequences flowed for the applicant.
The applicant argued that the respondent is a publisher pursuant to the High Court decision in Fairfax Media Publications Pty Ltd v Voller[38] (Voller) because he is engaged in a commercial arrangement similar to the media organisations in Voller who were in control of the relevant pages therefore they were liable for the content of the comments made by third-party users on the Facebook page. The applicant contended that the arguments made by the respondent (as traversed below) that differentiates between a Facebook group and a Facebook page are irrelevant because he has control over the material that is posted by the members of the group. The applicant argued it is a public Facebook group therefore you have to be a member to post something, but anyone can see what is written there.[39]
[38] [2021] HCA 27
[39] Transcript of proceedings 15 December 2021, pages 47-48
The applicant argued that this was a commercial arrangement, evidenced by the respondent’s website which promotes how customers can leverage the Canberra Notice Board Group’s following.[40]
Respondent’s contentions
[40] Witness statement of Louise Curtis dated 15 November 2021 at [9] and Attachment B
In the response dated 28 October 2021, the respondent stated that he did not publish any content about the applicant in the Canberra Notice Board Group. Rather, it was Tania that did so.[41] He relied upon the Voller case,[42] referring to the High Court of Australia’s judgment summary[43] and distinguished the applicant’s reliance upon Voller as it specifically related to media organisations and Facebook pages compared with Facebook groups or social media marketing businesses.[44] The respondent noted that the High Court in Voller stated that media companies created a public Facebook page and posting of content on that page facilitated, encouraged and thereby assisted the publication of comments from third-party Facebook users. The media organisations were therefore publishers of third-party comments. The respondent said there is a considerable difference between Facebook groups and Facebook pages both in look and functionality. He relied upon the definitions of groups and pages that are set out by Facebook as follows:
Pages
You must have a profile to create a Page or help manage one. Pages are places on Facebook where artists, public figures, businesses, brands, organisations and nonprofits can connect with their fans or customers. When someone likes or follows a Page on Facebook, they can start seeing updates from that Page in their News Feed.
Groups
You must have a profile to create a group or help manage one. Groups are a place to communicate about shared interests with certain people. You can create a group for anything – your family reunion, your after-work sports team, your book club – and customise the group’s privacy settings depending on who you want to be able to join and see the group. When you join a group on Facebook you start seeing content from that group in your News Feed.[45]
[41] Respondent’s response to civil dispute filed 28 October 2021 at [2]-[3]
[42]Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27
[43] Respondent’s response to civil dispute filed 28 October 2021 at [2]-[3]
[44] Respondent’s response to civil dispute filed 28 October 2021, page 2
[45] Respondent’s response to civil dispute filed 28 October 2021, page 2
The respondent said that the offer to make amends under the Act that was made in the applicant’s Concerns Notice specifically related to the publisher, which he contended he is not.[46]
[46] Respondent’s response to civil dispute filed 28 October 2021 at [5]
The respondent said that on 17 June 2020 Penny Gordon turned the commenting off on the Original Post by Tania. The respondent’s response states the following:
Penny Gordon
June 17, 2020 at 5:55 PM I have turned off commenting
Penny Gordon
Here is the link to the post
June 17, 2020 at 6:19 PM Yes, it looks like some people have removed the comments already. I turned commenting off as soon as I found the post.
Penny Gordon
My thought was that we deleted the comments they have highlighted in the letter, so that we
June 17, 2020 at 6:29 PM have acted as soon as we were advised.[47]
[47] Respondent’s response to civil dispute filed 28 October 2021 at [5]
The respondent also stated that “Penny also confirmed that the comments highlighted in the concerns notice had been deleted on 17 June 2020”.[48] He provided a screenshot of the following from Penny Gordon dated 28 August 2020 at 5:14pm:
Someone who had obviously received a letter from him, posted an apology to Louise in the group in July, which started the comments again. As soon as I became aware of it I turned off comments on that one, and deleted any that I thought could cause problems.[49]
[48] Respondent’s response to civil dispute filed 28 October 2021, page 3
[49] Respondent’s response to civil dispute filed 28 October 2021, page 4
There is a screenshot of a communication by Penny Gordon on the same day i.e., 28 August 2020 at 5:10pm, which states the following:
Penny Gordon
My lawyer has advised they have received another letter from Darren Cardin [sic] in relation to the Louise Curtis matter. They intend to claim damages of $75,000 from me.
If I pay them $35,000 by 4 September they won’t take it any further.
I don’t have that sort of money. My solicitor advised me to step down as moderator.
Penny Gordon
Supposedly there have been additional comments made since the original post.
Penny Gordon
Yes I turned off the comments on the original post as soon as I read Darren’s letter.[50]
[50] Respondent’s response to civil dispute filed 28 October 2021, page 4
In the respondent’s material filed on 3 December 2021[51] and at the hearing[52] the respondent argued that alleged imputation A about fake reviews raised the question about Jenna Gabriel’s opinion because there was some information in the public domain about Lollypotz and fake reviews but he expressly stated in the hearing that he was not relying on any argument about the possible truth of the statement.[53]
[51] Witness statement of Jason Bishop filed 3 December 2021
[52] Transcript of proceedings 15 December 2021, pages 32-33
[53] Transcript of proceedings 15 December 2021, page 33
The respondent argued that all but one of the comments which constituted the alleged defamatory material were removed within 24 hours.[54]
[54] Respondent’s submissions dated 10 February 2022 at [15]
The respondent contended that, by contacting her lawyers, the applicant caused delay because it occurred two days after the comments had been made. The respondent said that the applicant should have contacted him or the administrators of the group straightaway to remove the comments. If they had been contacted immediately, they could have acted swiftly, instead they received the Concerns Notice two days later which meant that the comments were up for a couple of days.[55]
[55] Transcript of proceedings 15 December 2021, pages 25-27
As to the question of how many people might potentially viewed the alleged defamatory material, the respondent provided information about the Facebook group member activity for a Monday in October 2021. It showed that around 450 people posted, commented or reacted.[56]
Applicant’s submissions in reply
[56] Respondent’s submissions dated 10 February 2022 at [13]
In reply, the applicant argued that there is little point in providing analytical data in relation to a time some 16 months after the original post. If posts and comments remain live, then anyone over the period that the comments remain live can see, share, copy and paste those comments. Unless content is removed, it is available for the purposes of trolling.[57]
Consideration
[57] Witness statement of Louise Curtis dated 16 February 2022 at [7]
The issues for determination by the Tribunal are as follows:
(i)Is the material defamatory?
(ii)Who is the relevant audience and what is the extent of the publication?
(iii)Is the respondent the publisher of the material?
(iv)Is the respondent able to avail himself of any defences?
(v)Has the applicant made out a case for the award of noneconomic loss?
(vi)What is the quantum of damages?
(vii)Should any award of damages be reduced pursuant to section 139I of the Act?[58]
(i) Is the material defamatory?
[58] Adapted from Botterill v Bailey [2018] ACAT 45 at [57]
The relevant question to be asked is this:
would a fair-minded person of average intelligence, who is not overly suspicious or naïve, who is not straining or forcing meanings, who was not avid for scandal and who read … the publication about which the complaint is made think that the words complained of tend to lower the applicant’s reputation in the eyes of the public at large?[59]
[59] Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, Haddon v Forsyth [2011] NSWSC 123
As previously stated, the imputations relied upon by the applicant are as follows:
A.obtaining fake reviews for her business;
B.scamming customers;
C.operating an insolvent business;
D.a grub;
E.a horrible person.[60]
[60] Applicant’s application dated 10 June 2021 at [6]
These imputations were evidenced by screenshots that allegedly came from the Canberra Notice Board Facebook group.[61]
[61] Applicant’s application dated 10 June 2021 at [6]
The Tribunal makes the following comments in relation to the alleged imputations and the evidence that was adduced in support of them.
The evidence regarding comments made by Jenna Gabriel and Paul Vangageldonk consists of a screenshot attached to the Concerns Notice dated 17 June 2020.[62] The screenshot is not dated and is not identified as being sourced from the Canberra Notice Board Facebook group. The material that was filed by the applicant on 15 November 2021[63] shows the comments that appeared under the Original Post on 16 June 2020 i.e., one day after the Original Post. This screenshot does not contain the comments of Jenna Gabriel regarding the fake reviews and Paul VanGageldonk regarding declaring bankruptcy. The Tribunal finds that the applicant has not established a link between these comments and publication by the respondent. This lack of evidence about publication by the respondent of these two comments dispatches imputation A – obtaining fake reviews – and whittles down the evidence that is available for imputation C – operating an insolvent business.
[62] Applicant’s application dated 10 June 2021, page 11
[63] Witness statement of Louise Curtis dated 15 November 2021 Attachment A, page 5
The other material that was attached to the Concerns Notice is a screenshot dated Wednesday, 17 June 2020 at 10:55am. This consists of comments by Young referring to Ms Curtis as a “dirty grub”, Morton who made the comment that “they are horrible people taking money from customers and not giving goods” and McNeilly who referred to the scamers [sic] (scammers).[64]
[64] Applicant’s application dated 10 June 2021, attachment D, page 12
The Tribunal notes the statements made by Penny Gordon after receipt of the Concerns Notice:
June 17, 2020 at 6:19 PM Yes it looks like some people have removed the comments already. I turned commenting off as soon as I found the post[65]
[65] Respondent’s response to civil dispute filed 28 October 2021, page 3
The next screenshots relied upon by the applicant are those posted on 14 July 2020 at 7:14am.[66] This is the apology by Young. It entirely consists of the statement by Young as follows:
On 17 June 2020 I caused to be published comments that were defamatory in nature about Ms Louise Curtis. I apologise for making the defamatory comments on this page and for any harm caused to Ms Louise Curtis.[67]
[66] Applicant’s application dated 10 June 2021, attachment E, page 13
[67] Applicant’s application dated 10 June 2021, attachment E, page 13
The Tribunal noted previously that no defamatory comments are contained in this material.
The next screenshot was taken on 25 June 2020 and it shows that the Morton ‘horrible people’ and the McNeilly ‘scammers’ comments were still able to be viewed at 9.39am on 25 June 2020.[68]
[68] Witness statement of Louise Curtis filed 15 November 2021 attachment A, page 6
The final screenshot is dated 15 July 2020 and it appears to replicate the screenshot that was taken on Wednesday 17 June at 10:55am[69] but after deletion of some of the comments by participants, as noted by Penny Gordon in her communication referred to above. This screenshot contains comments by Jay Marg, McNeilly and Carly Danielle which are the same as the screenshot that was taken at 10:55am on Wednesday, 17 June 2020.[70] Importantly the ‘dirty grubs’ comment by Young and the ‘horrible people’ comment by Morton no longer appear in the comments. The Tribunal infers that the comments by Young and Morton were removed after 24 June 2020 but before 15 July 2020.
[69] Applicant’s application dated 10 June 2021, attachment F, page 14
[70] Applicant’s application dated 10 June 2021, attachment F, page 14
As of 15 July 2020, the McNeilly comment was the only comment forming part of the alleged defamatory material that remained on the Facebook group.[71] However, during the interim period the Morton and McNeilly comments were continuing alleged defamatory material which provide evidence of imputation B – that the applicant is scamming customers – and imputation C – that she is operating an insolvent business.
[71] Witness statement of Louise Curtis filed 15 November 2021, attachment A, page 8
Therefore, the evidence about the timing of the publication of the alleged defamatory material establishes that most of the comments were only available to be viewed for a matter of days – that is from the time they were posted on 15 June 2020 until they were taken down pursuant to the Concerns Notice on 17 June 2020. However, the McNeilly comment was “online for a month”[72] and the Morton ‘horrible people’ comment was able to be viewed for at least 10 days.[73]
Summary – proof of the alleged defamatory material and imputations
[72] Transcript of proceedings 15 December 2021, page 5
[73] Witness statement of Louise Curtis filed 15 November 2021, attachment A, pages 5-8
The applicant has not proved imputation A (fake reviews). Imputation D (dirty grubs) only operated for a relatively short period of time (from 15 June 2020 to before 24 June 2020) and was presumably removed pursuant to the Concerns Notice served on Young. Imputation E (horrible people) flows from the comment of Morton (horrible people) which operated from 15 June 2020 but had been removed by 15 July 2020. Imputation B (scamming) and imputation C (operating an insolvent business) flow from the McNeilly comment that was on the Facebook group for about one month until removed on 15 July 2020.[74]
[74] Witness statement of Louise Curtis filed 15 November 2021 attachment A, pages 5-8
With the dispatch of imputation A, the Tribunal notes that the arguments made by the respondent about whether there was some truth or expression of honest opinion in the comments about the alleged fake reviews need not be addressed.
To determine whether the imputations were made, consideration must be given to whether the ordinary reasonable readers would have understood the words complained of, read as a whole, as being defamatory.[75] Regard must be had to the natural and ordinary meaning of words, which includes inferences and conclusions, which the ordinary person draws from the words used.[76]
[75] Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [9]
[76] Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at [641]
As stated by the tribunal in Botterill v Bailey[77] (this aspect being upheld on appeal[78]):
there is no complexity, subtlety or ambiguity in the words used which are set out in the imputations. The meaning of the words is readily ascertainable. When given their ordinary and natural meaning, the impression given to the ordinary person reading them could only have been that they are clearly defamatory.[79]
[77] Botterill v Bailey [2018] ACAT 45
[78] Bailey v Botterill [2018] ACAT 120 at [16]
[79] Botterill v Bailey [2018] ACAT 45 at [65], citing Ives v State of Western Australia [2013] WASC 277 at [38]
The Tribunal is satisfied that ordinary members of society would understand that the words complained of are capable of being defamatory. The Tribunal notes that the imputations are not as plainly defamatory as the imputations that were the subject of the proceedings in Bailey v Botterill (involving for example statements about satanic worship and paedophilia) but nevertheless for the continuing imputations about the applicant being a scammer and running an insolvent business and to a lesser extent the imputations that the applicant is a grub and a horrible person, the ordinary and natural meaning of these comments is defamatory in that the words complained of tend to lower the applicant’s reputation in the eyes of the relevant audience.
(ii) Who is the relevant audience and what is the extent of the publication?
The relevant audience is either the public at large or a group of Canberra people. The applicant focused her claim on a Canberra audience. She said that her reputation is Canberra-centric and the Tribunal agrees with that focus. This means a group of around 400,000 people. The respondent argued that the relevant audience would have been a smaller group and, as previously stated, gave information about the use of the Facebook group in October 2021 arguing that only a few hundred people might post, comment or react.[80] This evidence was disputed by the applicant who said that this was some 16 months after the event and therefore is not relevant. The Tribunal agrees with the applicant’s arguments about this information. It does not cover the relevant period. Further, the information does not show who could see content on the Facebook group who did not actively engage with it somehow by post, comment or reaction. It therefore has little probative value.
[80] Respondent’s submissions dated 10 February 2022 at [13]
The applicant provided witness statements which established that certain people looked at the Facebook group in the relevant period. Roberta Bagozzi stated that she looked at the Facebook group and could see that the applicant “was being targeted”.[81] Roberta Bagozzi and Nicole Laws deposed that they had been contacted by a friend or employee who had seen the alleged defamatory material.[82] The Tribunal recognises that this evidence is hearsay, but it is not bound by the rules of evidence[83] and the witness statements show that some people became aware of the alleged defamatory material as a consequence of being contacted by others. The Tribunal can therefore assume that other people saw the content. It is unlikely to have been in the thousands, but the evidence shows that moved within a network of people. As stated by the tribunal in Curtis v Phillips (Phillips) the extent of the publication is not known but it is reasonable to treat it as having relatively limited relevant circulation.[84] The audience is therefore small but not insubstantial.
[81] Witness statement of Roberta Bagozzi dated 27 January 2022 at [4]
[82] Witness statement of Roberta Bagozzi dated 27 January 2022 at [3]; Witness statement of Nicole Laws dated 22 January 2022 at [4]
[83] ACT Civil and Administrative Tribunal Act 2008 section 8
[84] Curtis v Phillips [2020] ACAT 115 at [57]
The Tribunal will return to this issue when discussing the quantum of damages below.
(iii) Is the respondent the publisher of the material?
During the hearing the respondent was asked about whether he had scrutinised the material that was on the Facebook group to check if it might have given rise to any concerns. He responded that he was not involved in it and the moderators handled it. He did communicate but it was after the fact.[85] The respondent was asked specifically about the McNeilly comment and he responded that to the best of his knowledge the comments had been removed, that is, all the other comments that were highlighted in the Concerns Notice had been removed.[86] He did not remove them, the moderators did and he was not involved in scrutiny of material that might otherwise have given rise to concerns. As he stated “I wasn’t involved in it. … The moderators handled it”.[87]
[85] Transcript of proceedings 15 December 2021, pages 40-41
[86] Transcript of proceedings 15 December 2021, page 40
[87] Transcript of proceedings 15 December 2021, pages 40-41
The Tribunal acknowledges the arguments made by the respondent about the difference between Facebook page and a Facebook group but the High Court comments in Voller about the liability of the media organisations for the defamatory material in comments made by third-party users of the Facebook page controlled by those media organisations does not distinguish between these two categories. The comments of the High Court contemplated both a Facebook group and Facebook page. In the words of Gageler and Gordon JJ:
Each appellant became a publisher of each comment posted on its public Facebook page by a Facebook user as and when the comment was accessed in a comprehensible form by another Facebook user. Each appellant became a publisher at that time by reason of its intentional participation in the process by which the posted comment had become available to be accessed by the other Facebook user. In each case the intentional participation in the process was sufficiently constituted by the appellant, having contracted with Facebook for the creation and ongoing provision of its public Facebook page, posting content on the page the effect of which was automatically to give Facebook users the option … to “Comment” on the content by posting a comment which … was automatically accessible in a comprehensible form by other Facebook users.[88]
Further:
… the appellants’ attempt to portray themselves as passive and unwitting victims of Facebook’s functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences.[89]
[88] Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 at [98]
[89] Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 at [102]
Therefore, in the present case based on the evidence that has previously discussed, the applicant has proved, and the Tribunal finds, that the respondent is the registered owner of the business name Canberra Notice Board. Canberra Notice Board is an administrator of the Canberra Notice Board Group on Facebook. The respondent is also an administrator and moderator of the Canberra Notice Board Group on Facebook in his personal capacity. It was (at least in part) a commercial arrangement which is evidenced by the material filed by the applicant which shows that the respondent’s business promotes Facebook advertising including via the Canberra Notice Board Facebook platform.
Therefore, in the words of Gageler and Gordon JJ in Voller, the respondent became a publisher “of each comment posted … by a Facebook user as and when the comment was accessed in a comprehensible form by another Facebook user”.[90] In this case the term ‘Facebook user’ includes people who can access a page or a group via accessing Facebook generally because it is publicly available. Viewers need not be members of Canberra Notice Board Facebook Group in order to access the information.
(iv) Is the respondent able to avail himself of any defences?
[90] Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 at [98]
During the hearing, the Tribunal asked the respondent to consider whether he had any defences under the Act that might be applicable in the current case, pointing to various options such as contextual truth,[91] qualified privilege[92] and triviality.[93] In the submissions filed after the hearing, the respondent argued that the defence of triviality was available because the applicant was unlikely to sustain any harm because any reasonable person would simply dismiss the comments as someone’s expression of opinion rather than a statement of fact.[94] In reply, the applicant contrasted the stance taken by the respondent to that of Penny Gordon who had engaged lawyers and noted there was significant engagement, argument and seeking protection by Meyer Vandenberg on behalf of their client. The applicant argued that it was hard to believe if the matter was so trivial that Penny Gordon would have sought and paid for advice to protect her position.[95]
[91] Civil Law (Wrongs) Act 2002 section 136
[92] Civil Law (Wrongs) Act 2002 section 139A
[93] Civil Law (Wrongs) Act 2002 section 139D
[94] Respondent’s submissions dated 10 February 2022 at [14]
[95] Witness statement of Louise Curtis dated 16 February 2022 at [8]
Section 139D of the Act at the relevant time[96] stated as follows:
Defence of triviality
It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
[96] Civil Law (Wrongs) Act 2002 Republication No 68
The Tribunal concludes that defence of triviality is not established by the respondent. The wording of the provision requires the respondent to prove that the circumstances of the publication were such that the applicant was unlikely to sustain any harm. It is proven to be ‘very high’ standard for respondents to attain.[97] Judicial interpretation of section 139D has been strict. For example, the likelihood element of that provision has been interpreted to mean ‘the absence of a real chance’ or the ‘absence of a real possibility of harm’.[98] The other element of the wording of the provision is ‘any harm’. The quantum of harm for this aspect of the provision has been set in the case law as any harm at all.[99]
[97] Smith v Lucht [2017] 2 Qd R 489, 494 at [16]; see Kim Gould, ‘Small defamation claims in small claims jurisdiction: Worth considering for the sake of proportionality?’ (2018) 41(4) UNSW Law Journal 1222 at 1230 (Gould)
[98] Jones v Sutton (2004) 61 NSWLR 614 at [45]-[49]
[99] King and Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305, 309 (Mahoney JA), cited by Gould at 1230
The Tribunal finds that the circumstances of publication in this case do not satisfy the defence of triviality because the statements of opinion made by the people on the Facebook group could reach the threshold of a real possibility of harm. The evidence filed by the applicant demonstrates that it did cause harm but even looking at it prospectively there is a real chance that the comments could cause harm to the applicant. The Tribunal is satisfied that defence of triviality is not established by the respondent.
Despite being invited to do so, the respondent did not raise any other defences therefore the Tribunal does not consider whether any other defences under the Act or at common law might operate in the current proceedings.
(v) Has the applicant made out a case for the award of noneconomic loss?
The applicant did not claim economic loss. The applicant put on evidence of distress caused by the trolling that she said had suffered, including by the comments in the alleged defamatory material. Damages are payable in defamation for vindication of the applicant’s reputation. She has suffered reputational loss which is established by the witness statements she provided after the hearing.
(vi) What is the quantum of damages?
Section 139E of the Act states that, in determining the amount of damages, the tribunal is to ensure there is an appropriate and rational relationship between harm sustained by the applicant and the amount of damages awarded.
As stated by the tribunal in Phillips, it is important not to award a sum that might be seen as derisory, without overcompensating the applicant.[100]
[100] Phillips at [57]
The assessment of damages is based on the harm to the applicant’s reputation. Although the parties referred on several occasions to legal costs that had been incurred by the applicant, for example, in issuing the Concerns Notice, legal costs are irrelevant to the assessment of damages. It is important to differentiate between legal costs and damages because legal costs are not generally recoverable in ACAT under section 48 of the ACT Civil and Administrative Tribunal Act 2008.
It is valuable to consider comparable cases and verdicts although each case necessarily turns on its own facts. As regards previous ACAT cases, the Tribunal notes that Appeal Panel in Bailey v Botterill took into account the fact that “realistically [it was] a relatively small audience”,[101] and that the relevant comments were available for “a relatively short period of time”.[102] Compare, for example, the duration involved in this case with Bailey v Cristian where the defamatory material was available for around six months.[103]
[101] Bailey v Botterill [2018] ACAT 120 at [89]
[102] Bailey v Botterill [2018] ACAT 120 at [93]
[103] Bailey v Cristian [2016] ACAT 7 at [148]
Another factor considered by the Appeal Panel in Bailey v Botterill was that the respondent, together with others, had acted promptly in response to the applicant’s notice of concern.[104] In the present case, the respondent acted in response to the Concerns Notice but the Original Post was not removed and the respondent may not have exercised sufficient vigilance by allowing the McNeilly and Morton comments to remain on the group for 10 days to one month.
[104] Bailey v Botterill [2018] ACAT 120 at [96]
The Tribunal accepts the point made by the respondent that the applicant could have contacted him and the administrators of the Facebook group straightaway to remove the material rather than waiting two days for lawyers to issue the Concerns Notice. However, the Tribunal finds that the respondent did not communicate with the applicant despite her making several attempts to contact him and accepts the comments made by the applicant that “the only time Mr Bishop engaged with me was the day I applied to default judgment”.[105]
[105] Witness statement of Louise Curtis dated 16 February 2022 at [9]
The applicant claimed the sum of $15,000 but, as the respondent argued, it is not clear how this amount was calculated. The tribunal in Phillips considered that the sum of $10,000 was “a fair amount” “in all the circumstances”.[106] In Phillips the relevant Facebook comments were posted on 5 March 2020 and were removed sometime after 13 March 2020. Therefore, the comments were available to be viewed for a comparable period to the Morton comment and a shorter period than the McNeilly’s comment. The baseline audience in Phillips was probably comparable to the present case, although in Phillips the tagging of the comments meant that it became available to the followers of Melissa Doyle and that would be a wider group than the present relevant audience. Perhaps most importantly, the evidence in Phillips was that the Operations Manager of the Giants had seen the defamatory material and this may have led to the Giants severing their relationship with Ms Curtis. There is no comparable evidence in the present cases of people being influenced by the defamatory material. People shared the information[107] and, taken at its highest, asked if it was true[108] but there is no evidence that anyone acted on the defamatory material which distinguishes the present case from Phillips.
(vii) Should any award of damages be reduced pursuant to section 139I of the Act?
[106] Curtis v Phillips [2020] ACAT 115 at [58]
[107] Witness statement of Roberta Bagozzi dated 27 January 2022 at [3]; Witness statement of Nicole Laws dated 22 January 2022 at [4]
[108] Witness statement of Nicole Laws dated 22 January 2022 at [7]
Section 139I of the Act sets out some factors that may be taken into account in mitigation of damages. Relevant to this case is the fact that the defendant has never made an apology to the plaintiff and has also not published a correction of the defamatory matter. Regarding the apology, the applicant said that no apology was made[109] and this was not challenged by the respondent. The Concerns Notice that was served on the respondent on 17 June 2020 invited the respondent to “publicly apologise … on the Facebook page”.[110] The Concerns Notice also uses the language of offer to make amends which is referable to Division 9.3.1 of the Act. Regarding the correction, the respondent asserted that he could not make a correction to something that he did not publish.[111]
[109] Transcript of proceedings 15 December 2021, page 5
[110] Applicant’s application dated 10 June 2021, pages 11-12
[111] Transcript of proceedings 15 December 2021, pages 31-32
Another factor that needs to be taken into account under section 139I of the Act is whether the plaintiff has recovered damages, brought proceedings or agreed to receive compensation for defamation in relation to the same defamatory matter. The Tribunal takes into account that there were several recipients of the Concerns Notice. Some of the recipients contacted their lawyers such as Penny Gordon. Some made apologies such as Young. Certainly no other proceedings have been commenced in ACAT for the defamatory material but there may have been other arrangements to receive compensation for defamatory material without proceedings having been instituted. As regards the arrangements with Penny Gordon, the evidence about this was vague[112] and may not be admissible because the communications may be privileged.
[112] Witness statement of Louise Curtis dated 16 February 2022 at [8]
The Tribunal notes that the applicant was paid $6,000 pursuant to a consent agreement to settle proceedings for defamation in February 2021 relating to comments made on a Facebook Group page known as “Pink Frosting are Thieves” in March 2020.[113] The alleged imputations in that case have some overlap with the defamatory matters in the present case but arguably do not have the ‘same meaning or effect’ for the purposes of section 139I. However, it may be relevant to the application of section 139E of the Act in the context of the applicant’s allegation that she was trolled on social media during the relevant period.
[113] Curtis and 86 Candles Pty Ltd v Madaffari XD 635/2020 Consent Order 10 February 2021
The Tribunal has examined recent comparable verdicts from other jurisdictions[114] and notes the following two cases involving group emails to members of a community: Mallegowda v Sood (No. 6)[115] (Mallegowda) where $5,000 was awarded on a cross claim and Brown v Kirkpatrick[116] (Brown) where $3,500 was awarded in the South Australian Supreme Court on appeal from the South Australian District Court. Mallegowda involved what was described as an “attacking email”[117] sent to the Indian Association of Newcastle. The recipients were several hundred members[118] but it was not clear how many recipients had read the email.[119] The original defamatory email in Brown had a similar number of original recipients to Mallegowda but the email was forwarded to approximately 200,000 members of the Sporting Shooters Association.[120]
Summary of reasoning on the quantum of damages
[114] Gibson DCJ, Australian Defamation Law & Practice (LexisNexis, 2022) at [60,510]
[115] [2018] NSWDC 281
[116] [2020] SASC 5
[117] [2018] NSWDC 281 at [2]
[118] [2018] NSWDC 281 at [302]
[119] [2018] NSWDC 281 at [310]
[120] Brown v Kirkpatrick [2020] SASC 5 at [57]
As stated above, pursuant to section 139E of the Act, the Tribunal is obliged when assessing the quantum of damages in defamation proceedings to ensure that there is an appropriate and rational relationship between the harm sustained and the amount of damages awarded.
The Tribunal considers that the comments that were posted on 15 June 2020 were defamatory because they would cause the ordinary or reasonable person to think less of the applicant and the applicant has proved that people saw the comments and she suffered reputational harm as a consequence. The applicant caused a Concerns Notice to be issued on 17 June 2020. The recipients of the Concerns Notice acted quickly to remove some of the defamatory material but other comments containing defamatory material remained on the Facebook group because the Original Post was not removed until later. After further contact by the applicant on 15 July 2020 the relevant defamatory matter was removed on that day. Therefore, the Tribunal finds that the defamatory matter was available to be viewed for between two days and up to a month. The respondent was a publisher of the defamatory matter. There are no relevant defences under the Act that apply.
The respondent has not provided an apology or a correction. The respondent did not communicate with the applicant prior to her entering default judgment although the applicant made several attempts to engage with him. The applicant has received some compensation for defamatory matters during the relevant period but not for the particular defamatory matters that have been proved in the current proceedings.
Conclusion
Considering all the circumstances and doing the best that I can, the Tribunal awards the applicant damages in the sum of $3,500 and orders that the respondent reimburse the applicant for filing fees of $162.50 and search fees of $9. Therefore, the respondent is to pay the applicant the sum of $3,671.50 within 28 days of today’s date.
………………………………..
Senior Member Prof P Spender
Date(s) of hearing: | 15 December 2021 |
| Applicant: | In person |
| Respondent: | In person |
0
16
2