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Scott v Bodley (No 2)

Scott v Bodley (No 2)

Case [2022] NSWDC 651 22 December 2022

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District Court

New South Wales

Medium Neutral Citation: Scott v Bodley (No 2) [2022] NSWDC 651
Hearing dates: 19 December 2022
Date of orders: 22 December 2022
Decision date: 22 December 2022
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Pursuant to the Uniform Civil Procedure Rules 2005 (NSW) r 28.2, the plaintiff has failed to establish serious harm to reputation as required under s 10A of the Defamation Act 2005 (NSW) and the proceedings are dismissed.
(2) The plaintiff is to pay the defendant’s costs of the proceedings, with liberty to apply.

Catchwords:
TORT - defamation - one-star review posted on plaintiff’s Google and Facebook business pages for a period of 14 days - whether plaintiff has established “serious harm” conformably with s 10A of the Defamation Act 2005 (NSW)

Legislation Cited:
Defamation Act 2005 (NSW), s 10A
Evidence Act 1995 (NSW), s 144
Uniform Civil Procedure Rules 2005 (NSW), r 28.2

Cases Cited:
Alexander-Theodotu v Kounis [2019] EWHC 956 (QB)
Banks v Cadwalladr [2022] EWHC 1417 (QB)
De Kauwe v Cohen (No 4) [2022] WASC 35
Defteros v Google Inc [2020] VSC 324
Dhir v Saddler [2018] 4 WLR 1
El-Mouelhy v Q-Society of Australia Inc (No 2) [2015] NSWSC 990
Gatto v Australian Broadcasting Corporation [2022] HCATrans 197
George v Cannell [2021] EWHC 2988 (QB)
High Quality Jewellers Pty Ltd & Ors v Ramaihi(Ruling) [2022] VCC 2240
High Quality Jewellers Pty Ltd (ACN 119428394) & Ors v Ramaihi(Ruling) [2022] VCC 1924
Massarani v Kriz [2022] FCA 80
Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150
Newman v Whittington [2022] NSWSC 259
Rader v Haines [2022] NSWCA 198
Ryan v Random House Australia Pty Ltd [2015] NSWDC 31
Scott v Bodley [2022] NSWDC 459
Settlers Estate Pty Ltd v Penrith City Council [2021] NSWCA 13
Sims v Jooste (No 2) [2016] WASCA 83
Srecko and David Lorbek v Peter King [2022] VSC 218
Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15
Stocker v Stocker [2019] UKSC 17
Trkulja v Google LLC [2018] HCA 25; (2018) 92 ALJR 619
Zimmerman v Perkiss [2022] NSWDC 448

Texts Cited:
M Whitbourn,“Push for overhaul of national defamation laws to weed out ‘trivial’ claims”, Sydney Morning Herald, 20 November 2019

Category: Procedural rulings
Parties: Dale Scott (plaintiff)
Bettina Bodley (defendant)
Representation:
Counsel:
Mr N Olson (plaintiff)
Mr T Senior (defendant)
Solicitors:
Rose Litigation Lawyers (plaintiff)
Somerville Laundry Lomax Solicitors (defendant)

File Number(s): 2022/00202160
Publication restriction: Nil

Judgment

The application before the court and the parties

These are proceedings for defamation arising out of the publication by the defendant of a review on both the plaintiff’s Google listing and his Facebook page for his business, Pottsville Painting Services.
The defendant and her husband contacted the plaintiff for a quotation for external and internal painting of their house in July 2021. The quote was accepted and the work commenced in February 2022. The defendant and her husband were unhappy with the plaintiff’s…

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 Scott v Bodley (No 2)

Details

AGLC: Scott v Bodley (No 2) [2022] NSWDC 651
Case: [2022] NSWDC 651
Decision Date: 22 December 2022

CaseChat Overview and Summary

The case of Scott v Bodley (No 2) involved a dispute concerning a defamatory one-star review posted on the plaintiff's Google and Facebook business pages by the defendant for a period of 14 days. The plaintiff sought to establish that the review had caused serious harm to their reputation in accordance with section 10A of the Defamation Act 2005 (NSW). The case was heard and determined in the Supreme Court of New South Wales.

The court was required to decide whether the plaintiff had met the threshold of establishing "serious harm" as mandated by section 10A of the Defamation Act 2005 (NSW). This required an assessment of the extent of the harm to the plaintiff's reputation and whether it met the statutory threshold. The court also had to consider the impact of the duration of the posting of the review and the nature of the harm caused.

In reaching its decision, the court examined the evidence provided by the plaintiff regarding the impact of the review on their business. The court found that the evidence did not sufficiently demonstrate that the plaintiff had suffered serious harm to their reputation. The court noted that while the review was defamatory, the evidence did not convincingly show that the harm caused was of a serious nature. Consequently, the court concluded that the plaintiff had not met the burden of proving serious harm as required by section 10A of the Defamation Act 2005 (NSW).

Accordingly, the court dismissed the plaintiff's proceedings. Additionally, pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), the plaintiff was ordered to pay the defendant's costs of the proceedings, with liberty to apply.

Orders

Orders of the court

(1) Pursuant to the Uniform Civil Procedure Rules 2005 (NSW) r 28.2, the plaintiff has failed to establish serious harm to reputation as required under s 10A of the Defamation Act 2005 (NSW) and the proceedings are dismissed.

(2) The plaintiff is to pay the defendant’s costs of the proceedings, with liberty to apply.

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

Scott v Bodley (No 2) [2022] NSWDC 651

Most Recent Citation

Setia v Radio Haanji [2025] VCC 44

Cases citing this decision · 5 of 5 shown

Ibrahim v Ye
[2025] VCC 106

…Whittington [2022] NSWSC 249 Peros v Nationwide News Pty Ltd & Ors (No 3) [2024] QSC 192 Randell v McLachlan [2022] NSW DC 506 Scott v Bodley (No 2) [2022] NSWDC 651 Setia v Radio Haanji [2025] VCC 44 Stocker v Stocker [2019] UKSC 17 Stoltenberg v Bolton [2019] NSWCA 71 Wilson v Bauer Media & Anor [2017] VSC 521…
Setia v Radio Haanji
[2025] VCC 44

…] EWHC 2891 (KB); [2023] EMLR 6; Raider v Haines [2022] NSWCA 198; Sivananthan v Vasikaran [2023] EMLR 7; Scott v Bodley (No 2) [2022] NSWDC 651; Selkirk v Wyatt [2024] FCAFC 48; FCR 541; Wilson v Bauer Media & Anor [2017] VSC 521 Judgment: Judgment for the plaintiff.…
Supaphien v Chaiyabarn
[2023] ACTSC 240

…Rader v Haines [2022] NSWCA 198 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 Randell v McLachlain [2022] NSWDC 506 Scott v Bodley (No 2) [2022] NSWDC 651 Sims v Jooste (No 2) [2016] WASCA 83 Stocker v Stocker [2019] UKSC 17; [2020] AC 593 Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45 Zimmerman v…
GRC Project Pty Ltd trading as GRC Property Management v Lai
[2023] NSWDC 63 Para 27

…the imputations as well as what was said at the trial. Mr Mack said that this was how the issue had been dealt with in Scott v Bodley (No 2) [2022] NSWDC 651.…
Scott v Bodley (No 3)
[2023] NSWDC 47 Para 2

…The hearing of the serious harm jurisdictional question took place before me on 19 December 2022. On 22 December 2022 ( Scott v Bodley (No 2) [2022] NSWDC 651), I made the following orders:…

View all 5 citing cases →

Cases cited in this decision · 19 of 19 shown

High Quality Jewellers Pty Ltd v Ramaihi (Ruling)
[2022] VCC 2240 Para 5

…wed that ruling, Clayton J held that the plaintiffs failed to establish serious harm: High Quality Jewellers Pty Ltd & Ors v Ramaihi (Ruling) [2022] VCC 2240) (“ High Quality Jewellers ”)).…
Gatto v Australian Broadcasting Corporation & Ors
[2022] HCATrans 197 Para 12

…and a robust approach was taken in Gatto v Australian Broadcasting Corporation [2021] VSC 83 at [19]-[48]; leave to appeal dismissed [2022] HCATrans 197), as is noted in Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150 at [66].…
High Quality Jewellers Pty Ltd (ACN 119 428 394) v Ramaihi (Ruling)
[2022] VCC 1924 Para 5

…may determine this issue prior to trial of its own motion, as occurred in High Quality Jewellers Pty Ltd (ACN 119428394) & Ors v Ramaihi (Ruling) [2022] VCC 1924 (“ High Quality Jewellers (Ruling) ”. At the serious harm hearing which followed that ruling, Clayton J held that the plaintiffs failed to establish seri…
Scott v Bodley
[2022] NSWDC 459 Para 5

…on of this kind and I held that there were no special circumstances to warrant the postponement of the determination to the trial: Scott v Bodley [2022] NSWDC 459. (The court may determine this issue prior to trial of its own motion, as occurred in High Quality Jewellers Pty Ltd (ACN 119428394) & Ors v Ramaihi (Rul…
Zimmerman v Perkiss
[2022] NSWDC 448 Para 12

…s must be determined for serious harm trials (see Clayton J’s observations in High Quality Jewellers at [10]-[13], referring to Zimmerman v Perkiss [2022] NSWDC 448 at [9]-[11]). Whether the English approach to imputations should be considered as preferable to the current system of plaintiff’s pleading imputations…
Rader v Haines
[2022] NSWCA 198 Para 6

…y in (at [16] in her Honour’s first judgment and at [108] in the second judgment) of the principles for serious harm as set out in Rader v Haines [2022] NSWCA 198 and I also adopt her Honour’s observations as to how the evidence must be evaluated (at [15] in the first judgment et passim in the second judgment). Mr…
Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd
[2022] NSWCA 150 Para 12

…ve to appeal dismissed [2022] HCATrans 197), as is noted in Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150 at [66].…
Lorbek v King
[2022] VSC 218 Para 37

…In Srecko and David Lorbek v Peter King [2022] VSC 218, a similar problem arose. There was no direct evidence of the number of persons who are clicked onto the Google reviews complained of. Even though there was evidence that about 1500 people accessed the plaintiffs’ business website each day and would see the G…
De Kauwe v Cohen [No 4]
[2022] WASC 35 Para 34

…hat the material complained of has been downloaded and viewed by at least one person: Massarani v Kriz [2022] FCA 80 at [53]; De Kauwe v Cohen (No 4) [2022] WASC 35 at [708]; Newman v Whittington at [12]. While a plaintiff may establish a “platform of facts” and rely upon inferences drawn from Google analytics an…
Massarani v Kriz
[2022] FCA 80 Para 34

…erial must plead and prove facts to establish that the material complained of has been downloaded and viewed by at least one person: Massarani v Kriz [2022] FCA 80 at [53]; De Kauwe v Cohen (No 4) [2022] WASC 35 at [708]; Newman v Whittington at [12]. While a plaintiff may establish a “platform of facts” and rel…
Gatto v Australian Broadcasting Corporation
[2021] VSC 83 Para 12

…[32] (“mean or midpoint”; “decide the most damaging”), and a robust approach was taken in Gatto v Australian Broadcasting Corporation [2021] VSC 83 at [19]-[48]; leave to appeal dismissed [2022] HCATrans 197), as is noted in Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 1…
Settlers Estate Pty Ltd v Penrith City Council
[2021] NSWCA 13 Para 22

…ensive rain and flood damage caused over this period. This is not a matter requiring expert evidence ( Settlers Estate Pty Ltd v Penrith City Council [2021] NSWCA 13), or even evidence such as rainfall tables, since the Flood Inquiry set up in March 2022 to examine the “catastrophic” flood event across New South W…
Stead v Fairfax Media Publications Pty Ltd
[2021] FCA 15 Para 12

…7]-[10]). Changing views where “alternative imputations” are put before the court are hinted at in Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15 at [14]-[15], citing Trkulja v Google LLC [2018] HCA 25; (2018) 92 ALJR 619 at 627 [31]-[32] (“mean or midpoint”; “decide the most damaging”), and a robust a…
Defteros v Google LLC (Costs)
[2020] VSC 324 Para 38

…Calling an expert witness might assist, but not if there is still no evidence of publication: Defteros v Google Inc [2020] VSC 324 at [23].…
Stocker v Stocker
[2019] UKSC 17 Para 42

…is important to note the nature of Google reviews and social media, and the way in which they are read by what the Supreme Court in Stocker v Stocker [2019] UKSC 17 at [41] called “a new class of reader”, namely the social media user. Google users know that Google reviews must be read with a degree of caution ( H…
Trkulja v Google LLC
[2018] HCA 25 Para 12

…are put before the court are hinted at in Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15 at [14]-[15], citing Trkulja v Google LLC [2018] HCA 25; (2018) 92 ALJR 619 at 627 [31]-[32] (“mean or midpoint”; “decide the most damaging”), and a robust approach was taken in Gatto v Australian Broadcasting Cor…
El-Mouelhy v Q-Society of Australia Inc (No 2)
[2015] NSWSC 990 Para 2

…e to the “world at large” (CB 131) and was “widely read” (CB 131), which is impermissible: El-Mouelhy v Q-Society of Australia Inc (No 2) [2015] NSWSC 990 at [8]-[19].…
Ryan v Random House Australia Pty Ltd
[2015] NSWDC 31 Para 12

…rent system of plaintiff’s pleading imputations at their highest is an issue which has been raised before ( Ryan v Random House Australia Pty Ltd [2015] NSWDC 31 at [7]-[10]). Changing views where “alternative imputations” are put before the court are hinted at in Stead v Fairfax Media Publications Pty Ltd [2021]…
[2018] 4 WLR 1
[2018] 4 WLR 1 Para 45

…As noted above, I accept that the extent of publication, in relation to seriousness of harm, is not merely “a numbers game” ( Dhir v Saddler [2018] 4 WLR 1 at [55]; George v Cannell [2021] EWHC 2988 (QB) at [118]), and publication to a large or small group of persons does not automatically result in a finding in…

Legislation cited in this decision · 3

Defamation Act 2005 (TAS)
10A 2 mentions (from Para 3)
Evidence Act 1995 (Cth)
144 2 mentions (from Para 22)
Uniform Civil Procedure Rules 2005 (NSW)
28.2 1 mention (from Para 1)

Medium Neutral Citation:	Scott v Bodley (No 2) [2022] NSWDC 651
Hearing dates:	19 December 2022
Date of orders:	22 December 2022
Decision date:	22 December 2022
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Pursuant to the Uniform Civil Procedure Rules 2005 (NSW) r 28.2, the plaintiff has failed to establish serious harm to reputation as required under s 10A of the Defamation Act 2005 (NSW) and the proceedings are dismissed. (2) The plaintiff is to pay the defendant’s costs of the proceedings, with liberty to apply.
Catchwords:	TORT - defamation - one-star review posted on plaintiff’s Google and Facebook business pages for a period of 14 days - whether plaintiff has established “serious harm” conformably with s 10A of the Defamation Act 2005 (NSW)
Legislation Cited:	Defamation Act 2005 (NSW), s 10A Evidence Act 1995 (NSW), s 144 Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Cases Cited:	Alexander-Theodotu v Kounis [2019] EWHC 956 (QB) Banks v Cadwalladr [2022] EWHC 1417 (QB) De Kauwe v Cohen (No 4) [2022] WASC 35 Defteros v Google Inc [2020] VSC 324 Dhir v Saddler [2018] 4 WLR 1 El-Mouelhy v Q-Society of Australia Inc (No 2) [2015] NSWSC 990 Gatto v Australian Broadcasting Corporation [2022] HCATrans 197 George v Cannell [2021] EWHC 2988 (QB) High Quality Jewellers Pty Ltd & Ors v Ramaihi(Ruling) [2022] VCC 2240 High Quality Jewellers Pty Ltd (ACN 119428394) & Ors v Ramaihi(Ruling) [2022] VCC 1924 Massarani v Kriz [2022] FCA 80 Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150 Newman v Whittington [2022] NSWSC 259 Rader v Haines [2022] NSWCA 198 Ryan v Random House Australia Pty Ltd [2015] NSWDC 31 Scott v Bodley [2022] NSWDC 459 Settlers Estate Pty Ltd v Penrith City Council [2021] NSWCA 13 Sims v Jooste (No 2) [2016] WASCA 83 Srecko and David Lorbek v Peter King [2022] VSC 218 Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15 Stocker v Stocker [2019] UKSC 17 Trkulja v Google LLC [2018] HCA 25; (2018) 92 ALJR 619 Zimmerman v Perkiss [2022] NSWDC 448
Texts Cited:	M Whitbourn,“Push for overhaul of national defamation laws to weed out ‘trivial’ claims”, Sydney Morning Herald, 20 November 2019
Category:	Procedural rulings
Parties:	Dale Scott (plaintiff) Bettina Bodley (defendant)
Representation:	Counsel: Mr N Olson (plaintiff) Mr T Senior (defendant) Solicitors: Rose Litigation Lawyers (plaintiff) Somerville Laundry Lomax Solicitors (defendant)
File Number(s):	2022/00202160
Publication restriction:	Nil