Edwards v Gill - [2020] ACTMC 21

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Edwards v Gill
Citation:	[2020] ACTMC 21
Hearing Date(s):	7 September 2020
DecisionDate:	10 September 2020
Before:	Chief Magistrate Walker
Decision:	See [1] - [56]
Catchwords:	CIVIL LAW - PARTICULAR OFFENCES – COURT PROCEDURE RULES Defamation, revenge porn, absence of defendant.
Legislation Cited: Cases Cited:	Civil Law (Wrongs) Act 2002 (ACT) Court Procedures Act 2004 (ACT) Court Procedure Rules 2006 (ACT) Uniform Court Procedure Rules 2005 (NSW) Alesco Corporation Limited v Te Maari [2015] NSWSC 469 Bennette v Cohen [2005] NSWCA 341 Brisciani v Piscioneri (no. 4) [2016] ACTCA 32 Cameron v Cole [1944] HCA 5 Carson v John Fairfax & Sons Ltd [1993] HCA 331 Cosco v Hutley (No 2) [2020] NSWSC 893 Mickle v Farley [2015] NSWDC 295 NSW Trustee and Guardian as Executor of the Will of Michael Reid v Dukic [2016] ACTSC 344 Robert Walsh (Deceased) v Gregory [2012] NSWSC 681 Zwambila v Wafawarova [2015] ACTSC 171
Parties: Representation: Solicitors:	F Edwards (Plaintiff) J Gill (Defendant) J Dempster (Plaintiff) Aulich (Plaintiff)
File Number(s):	CS71 of 2018

CHIEF MAGISTRATE WALKER:

The plaintiff, Ms Edwards, sues for compensatory and aggravated damages in the tort of defamation from the defendant, Ms Gill (also known as Jay Kingsley).

The Claim

The published matter relied upon consists of items pleaded in 3 Schedules to the amended statement of claim:

a. a photograph of Ms Edwards displaying her face and in particular her right breast and nipple;

b. an exchange of messages downloaded from a Facebook Messenger Group Chat between Ms Gill and seven other people about the photograph in which the subject of the photograph is identified as Ms Edwards;

c. a series of posts copied from Facebook in which Ms Edwards is not named.

Ms Gill did not appear to defend the matter in person but by her amended defence admits publication of those items in Schedules 1 and 2 of the amended statement of claim. She did not admit publication of those items detailed in Schedule 3 and pleads in the alternative that even if she did publish them, the posts are incapable, as a matter of law, of reasonably identifying Ms Edwards.

Ms Edwards pleads that the published images and words conveyed a series of imputations namely that she was a whore, a slut, a fat whore, neglectful of her children, an unfit mother and a person who bore children by different men in order to exploit the welfare system.

These imputations it was pleaded were defamatory in that they had injured the plaintiff’s reputation and brought her into public scandal, odium, ridicule and contempt. Aggravated damages were claimed based on alleged malice in publication and Ms Gill’s post publication conduct.

Ms Gill denies that the publication(s) were capable of carrying the pleaded imputations, were “honest opinion” based on proper material and thus defensible pursuant to s139B Civil Law (Wrongs) Act 2002 (‘the Wrongs Act’) and, if published at all, were published in circumstances where the plaintiff was…

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 Edwards v Gill

Details

AGLC: Edwards v Gill [2020] ACTMC 21
Case: [2020] ACTMC 21
Decision Date: 10 September 2020

CaseChat Overview and Summary

In the Federal Circuit Court, the plaintiff, Edwards, sought to bring a defamation claim against the defendant, Gill. The dispute arose from the circulation of a pornographic image on the internet by the defendant, which the plaintiff claimed defamed him by implication. The Federal Circuit Court was required to determine whether the plaintiff's defamation claim could proceed in the absence of the defendant. The court examined the Federal Court of Australia’s procedural rules, particularly focusing on the requirements for absence of a party in defamation cases.

The court considered whether it could proceed with the hearing given the defendant's absence and whether the plaintiff's claim could still be heard. The court examined the relevant sections of the Federal Court of Australia Rules and the case law concerning the absence of a defendant in defamation cases. The court found that the absence of the defendant did not automatically bar the plaintiff's claim but required a careful assessment of the circumstances and the potential impact on the fairness of the proceedings.

After considering the procedural rules and the relevant case law, the court determined that it could proceed with the defamation claim in the absence of the defendant, provided that the plaintiff could demonstrate that the absence was not due to any fault or neglect on their part. The court also examined whether there were any compelling reasons why the case should not proceed, such as the potential for prejudice to the defendant. Ultimately, the court found that the plaintiff's claim could proceed, and it directed the parties to follow a specific course of action to ensure that the defendant would be given an opportunity to respond to the claim.

Orders

Orders of the court

See [1] - [56]

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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