Curtis v Phillips (Civil Dispute) - [2020] ACAT 115

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CURTIS v PHILLIPS (Civil Dispute) [2020] ACAT 115

XD 683/2020
Catchwords: CIVIL DISPUTE – defamation – jurisdiction – place of publication of online Facebook post – what imputations arise – defences – truth – triviality – reasonable opinion – fair comment – qualified privilege – comparative awards

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48
Civil Law (Wrongs) Act 2002 ss 135, 136, 139A, 139B, 139D

Cases cited:Bleyer v Google Inc [2014] NSWSC 897
Browne v Dunn (1893) 6 R 67
CIC Australia Ltd v ACT Planning and Land Authority, Mainore Pty Ltd and Anor [2013] ACTSC 96
Dow Jones and Company Inc v Gutnick [2002] HCA 56
Errington & Anor v ACT Planning and Land Authority [2019] ACAT 47
Galovac Pty Limited v Australian Capital Territory [2010] ACTSC 132
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69
Lazarus v Azize [2015] ACTSC 344

Texts Cited:David Rolph, Defamation Law (Thompson Reuters Australia, 2015)

Tribunal:  Senior Member B Meagher SC
Date of Orders:  18 December 2020
Date of Reasons for Decision:         18 December 2020
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 683/2020

BETWEEN:
LOUISE CURTIS
Applicant

AND:
SIMON PHILLIPS
Respondent

TRIBUNAL: Senior Member B Meagher SC

DATE:18 December 2020

ORDER

The Tribunal orders that:
1.The respondent is to pay the applicant the sum of $10,159.50 by 12 February 2020 comprised of:
(a)$10,000 damages.
(b)$159.50 Tribunal filing fee.
………………………………..
Senior Member B Meagher SC

REASONS FOR DECISION

1.Louise Curtis, an ACT resident, has made application to the Tribunal for remedies for defamation alleged to have been published by Mr. Phillips. a resident of South Australia on a Facebook page belonging to someone else and labelled “PINK FROSTING ARE THIEVES THEY OWE ME OR PEOPLE I KNOW MONEY”.
2.Ms. Curtis was, at the time of the post by Mr. Phillips, in effect, the proprietor of the business known as Pink Frosting. This business conducts online sales but is based in the ACT. She had purchased it sometime earlier and the Facebook page was started prior to her acquisition. During the time of her interaction with Mr. Phillips she had sold the business but was still running it pending finalisation of the sale.
3.The post complained of, was made on 5 March 2020. It consisted of words and followed by a picture of women including the applicant and Melissa Doyle, a well-known television identity. The words were as follows;
How can Melissa Doyle possibly associate herself with a person like Louise Curtis.
Louise is thieving innocent hard working Australians praying that we will all give up chasing her for a refund while in the middle of it all those who miss out are actually our kids. We had no decorations for our little girls 1st birthday! My wife was stressed crazy having had zero communication from their business re delivery instead we chased them up only to get excuses like “bushfires have affected us” (that’s an…

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.

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Details

Case: [2020] ACAT 115
Decision Date: 18 December 2020

CaseChat Overview and Summary

The applicant, Curtis, initiated proceedings against the respondent, Phillips, in the Federal Circuit Court, asserting a claim for defamation arising from a Facebook post published by Phillips. Curtis contended that the post defamed him, leading to reputational harm. Phillips argued that the content of the post was true and that it was made in the public interest, protected by fair comment and qualified privilege. Additionally, Phillips raised the defence of triviality, asserting that the content was of minor importance and did not warrant legal action.

The court was required to determine whether the post published by Phillips contained defamatory imputations, the jurisdictional basis for the court's authority, and the applicability of the defences raised by Phillips. The court had to consider whether the imputations made in the post were defamatory and whether the court had jurisdiction over the matter. Furthermore, the court needed to assess the validity of the defences of truth, triviality, fair comment, and qualified privilege, and whether any of these defences could be successfully invoked by Phillips.

In its decision, the court found that the post did contain defamatory imputations regarding Curtis. The court concluded that it had jurisdiction to hear the matter based on the publication's online nature and the parties' residential status. The court held that the defence of truth was not applicable, as the defamatory content was not substantiated by evidence. The court also found that the defence of triviality was not available to Phillips, as the content of the post was not of minor importance. Additionally, the court determined that the defence of fair comment and qualified privilege was not applicable, as the post did not pertain to a matter of public interest and was not made in the context of a duty or interest.

The court awarded damages to Curtis in the amount of $10,000, along with a Tribunal filing fee of $159.50. The respondent was ordered to pay the applicant the total sum of $10,159.50 by 12 February 2020.

Orders

Orders of the court

The respondent is to pay the applicant the sum of $10,159.50 by 12 February 2020 comprised of:

(a) $10,000 damages.

(b) $159.50 Tribunal filing fee.

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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