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[2019] ACTSC 45
Supreme Court of the ACT
2019-02-28
McWilliam AsJ
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
APPEAL - Application for leave to appeal from ACAT - whether ground of substance to be argued - where question of law arising as to correct test to be applied - leave granted
DEFAMATION - Publication - whether hyperlink to defamatory material and an accompanying statement on a personal Facebook page amounted to publication - whether Tribunal applied correct test
ACT Civil and Administrative Tribunal Act 2008 (ACT) s 86
Court Procedures Rules 2006 r 5072
Bottrill v Bailey (Civil Dispute) [2018] ACAT 45
Crookes v Newton [2011] 3 SCR 269
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
Google Inc v Duffy [2017] SASCFC 130
Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367
Maher v Carpenter [2012] ACTSC 38; 7 ACTLR 216
Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48
Perry v Smith [1901] ArgusLawRp 51; (1901) 27 VLR 66
Pires v DibbsBarker Canberra Pty Ltd [2014] ACTSC 283
Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331
Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350
Wiser v Havelock Housing Assn Inc [2014] ACTSC 138
Wsol v John James Memorial Hospital [2015] ACTSC 378
Council of Attorneys-General, Review of Model Defamation Provisions, Discussion Paper (State of New South Wales Department of Justice, February 2019)
Case Title: Bailey v Bottrill (Appeal) [2018] ACAT 120
1. The application before the Court is for leave to appeal from a decision of the ACT Civil and Administrative Tribunal (Tribunal) made on 30 November 2018, whereby the Tribunal partially allowed an appeal from a decision of a single member of the Tribunal.
2. The substance of the proceedings between the two parties is a claim in defamation arising from Ms Katrina Bailey, the applicant in this proceeding, placing a hyperlink on her Facebook page to a video on another website, YouTube. The Youtube video contained material defamatory of Mr Bottrill, the respondent to the present application. At first instance, Mr Bottrill was successful in obtaining an award of damages pursuant to s 139I of the Civil Law (Wrongs) Act 2002 (ACT) (the Act), in the sum of $18,750 with allowable costs of $130. On appeal within the Tribunal, that sum was reduced to $400 by way of nominal compensation only.
3. The successful appellant in the Tribunal below now seeks to challenge the payment of $400. The applicant stressed before this Court that her application was not about the $400 that she had been ordered to pay. Instead, she submitted that the issues she sought to raise are matters of principle.
4. The respondent has not filed any cross-application for leave to appeal but indicated that he reserved the right to file a cross-application if this proceeding were to go further.
5. Section 86 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act) permits a party to a decision of the Tribunal to appeal to this Court on a question of fact or law. In either case, such an application requires leave of the Court: s 86(3). There are exceptions to this set out in s 86(2) of the ACAT Act, where appeals under legislation dealing with heritage, planning and development, and trees are limited to questions of law only. None of those exceptions apply here.
6. Under r 5072 of the Court Procedures Rules 2006, an application must be made within 28 days from the date of the making of the order giving rise to the appeal. The present application was filed within such time.
7. The discretion to grant leave conferred by s 86 of the ACAT Act is broad, and not susceptible to exhaustive definition: Wiser v Havelock Housing Assn Inc [2014] ACTSC 138 per Burns J at [3]. A number of cases have set out principles to guide the Court in the exercise of its discretion, they include: Pires v DibbsBarker Canberra Pty Ltd [2014] ACTSC 283 at [48]; and, Wsol v John James Memorial Hospital [2015] ACTSC 378 at [9]. These cases draw upon Victorian authorities where a similar statutory regime exists for appeals from the Victorian Civil and Administrative Tribunal. These cases include: Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335-7; and, Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 at [28].
8. The following principles emerge from those authorities to assist the Court in its task:
a. The need for leave is to reduce the number of appeals and provide a filter so that only those of some substance or where 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] ArgusLawRp 51; (1901) 27 VLR 66 at 68;
b. Whether leave should be granted or not must depend upon the justice of the case.
c. The application for leave must identify the question, of fact or law, which the applicant for leave claims arises and which is important to the substantive appeal succeeding or failing.
d. The applicant need not show error - that is for the appeal itself - but must show that there is a real or significant argument to be put that error exists.
e. Where a question has been identified which bears directly on the relief which will be sought on the appeal and once it has been shown that there is sufficient doubt attending the question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in effect.
f. The public importance of any question of fact or law is relevant but not decisive as to the question of whether leave to appeal should be granted.
g. It may be relevant to show that the error, if uncorrected, would impose substantial hardship.
9. The applicant's proposed grounds of appeal were largely unintelligible from the draft notice of appeal which accompanied the application for leave. However, the Court must ensure that a self-represented litigant is not procedurally disadvantaged due to a lack of legal representation: see Maher v Carpenter [2012] ACTSC 38; 7 ACTLR 216 at [41]; Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367 per Macfarlan JA at [37] and per Young JA at [54]. Through oral submissions and discussion with the Court, Ms Bailey was able to clarify and articulate the nature of her complaints. They are as follows.
10. The first proposed ground concerns two authorities referred to by the Tribunal below, namely Google Inc v Duffy [2017] SASCFC 130 (Google Inc), and Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350 (Visscher). Ms Bailey's complaint is that the Tribunal erred in finding that her actions met the tests in those two authorities (Ground 1).
11. The second ground proposed concerns a complaint about a denial of procedural fairness, in that the respondent deliberately submitted to the Tribunal documents that had been manipulated and made a number of false and/or misleading claims. The documents in question were screenshots of the post that Mr Bottrill claimed had been shared (Ground 2).
12. The third proposed ground is a complaint about the Tribunal's finding at [49] of its written reasons for decision published on 30 November 2018 (Reasons). The Tribunal there dealt with whether there were any available statutory defences, and found no error on the part of the Tribunal member who made the original decision in finding that none of the defences to the claim had been made out (Ground 3).
13. The fourth proposed ground is a complaint about the Tribunal's finding that there was a positive act taken by Ms Bailey. She contends that simply sharing a link on her social media page was not an endorsement of the content, nor did she highlight it in any way (Ground 4).
14. The fifth proposed ground relates to a defence of innocent dissemination under s 139C of the Act. Ms Bailey contends that the Tribunal misapplied the law in that regard, in that she was an innocent subordinate distributor (Ground 5).
15. The sixth proposed ground is a challenge to the Tribunal's finding of fact at [53] that Mr Edwards (a witness in the proceedings before the Tribunal at first instance) used the hyperlink on Ms Bailey's Facebook page in the ACT to access the defamatory material. Ms Bailey contends that Mr Edwards did not view the item in question (Ground 6).
16. The seventh proposed ground is similar to the complaint in Ground 2 above. Ms Bailey complains about Mr Bottrill's assertion that he saw the defamatory item. She seeks to argue that Mr Bottrill's inconsistent descriptions throughout the hearing, failure to provide 'a valid screenshot', and false claims about the evidence presented to the Tribunal (outlined in relation to Ground 2 above) mean that Mr Bottrill's assertion was incorrect (Ground 7).
17. The eighth proposed ground is that in circumstances where the Tribunal found that the post was neutral and did not encourage or entice further interaction, Ms Bailey feels the award against her means that she is being punished, and the real source of Mr Bottrill's frustration is the fact that thousands viewed the item outside of Ms Bailey's link to it (Ground 8). In short, Ms Bailey feels that she is receiving punishment for the conduct of others.
18. The ninth proposed ground, as drafted, is partly in terms similar to Ground 5 and will be dealt with as such. To the extent that the remainder constitutes a separate complaint, it relates to the effect or consequences of the Tribunal's decision. Ms Bailey wishes to argue that the judgment against her represents an unconscionable restriction on social and political discourse in Australia (Ground 9).
19. The only ground of any substance, and for which leave will be granted to appeal, is Ground 1, which necessarily includes the substance of Ground 4.
20. The evidence found by the Tribunal at first instance: Bottrill v Bailey (Civil Dispute) [2018] ACAT 45, and not disturbed by the Tribunal on appeal (Reasons at [22]), was that the applicant's Facebook page contained the following:
David Bottrill: Ordo Templi Orientis (OTO, Australia) The former national Treasurer, now confessed 'Life member' of the Ordo Templi Orientis (OTO) - Grand Lodge of Australia.
21. This text was accompanied by a hyperlink, directing the browser to a specific video on the YouTube website referring to Mr Bottrill, which was found to be plainly defamatory. Such a link is described as a deep hyperlink, rather than a shallow hyperlink, which only takes the browser to the YouTube website generally.
22. The issue of substance is whether the hyperlink combined with the above words amounted to publication, such as to satisfy one of the essential elements in establishing the tort of defamation.
23. The Tribunal on appeal found (Reasons at [38]) that the act of establishing the hyperlink to the defamatory material was a positive act of participation in its publication, in circumstances where there was no dispute that the applicant did so with knowledge and approval of the content of the hyperlinked material.
24. The Tribunal reached that conclusion by purporting to apply the reasoning in Visscher and Google Inc.
25. In Visscher, Beech-Jones J considered the position where the Maritime Union of Australia (MUA) had published an article which contained a hyperlink to an article by the Cootamundra Herald, which in turn contained defamatory content. His Honour referred to the Canadian authority of Crookes v Newton [2011] 3 SCR 269 (Crookes), where Abella J concluded at [42]:
Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be 'published' by the hyperlinker.
26. Binnie, LeBel, Charron, Rothstein and Cromwell JJ agreed with her Honour. However, McLachlin CJ and Fish J stated the applicable test differently. Their Honours stated in Crookes at [48]:
In our view, the combined text and hyperlink may amount to publication of defamatory material in the hyperlink in some circumstances. Publication of a defamatory statement via a hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text. ... a mere general reference to a web site is not enough...
27. In Visscher, Beech-Jones J distinguished the majority reasoning in Crookes as not being consistent with Australian authority. At [28], Beech-Jones stated:
...one might accept that "by itself" the mere posting of a hyperlink might not amount to publication of the linked or referenced material...
28. However, his Honour did not consider it necessary for the hyperlink to present content from the hyperlinked material in a way that actually repeated the defamatory content, before it could amount to publication. His Honour gave as an example the circumstance where a hyperlink to defamatory material is prefaced by words that make it clear the hyperlinked material is being endorsed by the alleged publisher, such as 'for a true and terrible story about [the plaintiff] please click here', which his Honour stated (at [28]) 'would appear not to be sufficient to meet her Honour's test of publication'.
29. Beech-Jones J considered that in Australia, the question to be asked was whether, by the inclusion of the hyperlink, the defendant in that case 'accepted responsibility' for the publication of the hyperlinked material. His Honour went on to state at [29]:
...This could be answered in the affirmative if, amongst other ways, it was concluded that there was an approval, adoption, promotion or some form of ratification of the content of the hyperlinked material.
30. His Honour held at [30] that the act of publishing the MUA article with its hyperlink to the Cootamundra Herald at the very least was an adoption or promotion of the content of the Cootamundra Herald article. However, and critically for the present application, his Honour's reasoning at [30] was as follows (emphasis added):
...The MUA article introduced the reader to the danger faced by the MUA crew. It provided details about their plight and then invited a viewing of the "full story" by having the reader click on a hyperlink. In context, it conveyed that the details published in the MUA article were part of a more complete version (the "full story") which was to be found by clicking the hyperlink.
31. The facts were slightly different in Google Inc. and the test was also stated differently by Kourakis CJ. The question was whether a search engine (Google), which returned results that both repeated a snippet of defamatory material and contained a hyperlink to the website where the full content was displayed, constituted publication. Referring to the test in Crookes, Kourakis CJ stated at [172]-[174] (emphasis added):
32. What these authorities demonstrate is that the process of determining whether a person who includes a hyperlink to material that is defamatory has participated in the publication of such material is very much a matter of context. A bare hyperlink on a personal page such as a Facebook page may well constitute publication, but whether it does or not depends upon the context, including the circumstances of the post on the host page (in this case Facebook) and the context in which the hyperlink appears (such as any accompanying words or what other content appears on the same page).
33. The authorities also indicate that the test is an emerging one. Kourakis CJ expressly moved away from a notion of adoption or ratification and towards a test of incorporation, focussing instead on what was being communicated in its context.
34. Neither judgment is binding on this Court, although the High Court's comments in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [135] would indicate that the South Australia Full Court decision is the proper approach to be followed in the Territory, noting that uniform defamation laws operate across Australia. The relevant passage is as follows (citations omitted):
...Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law. ...
35. In the present case, in finding there was a 'positive act' of participation by the creation of the hyperlink, the Tribunal on appeal appears to have directed its attention in part to the lack of a dispute as to the applicant's knowledge and approval of the content of the hyperlinked material. Arguably, that does not accord with Kourakis CJ's description in Google Inc at [173] of the test being directed to incorporation and sufficiency of connection.
36. It seems to me that the real question is what was being communicated by the particular hyperlink in its total context, and whether the accompanying description in the context of the applicant's personal Facebook page and whatever content surrounded it was of sufficient connection, in the sense of incorporation, to establish publication.
37. This leads to the conclusion that there is a significant argument, or a point of substance to this particular ground of appeal, namely that the Tribunal on appeal did not apply the correct legal test. It is unnecessary to go further to consider the strength of the argument in what is a threshold application. Whether it would have changed the outcome is also unnecessary to decide. It is sufficient to find that, if there was an error in the applicable test, such error could have changed the outcome of the appeal before the Tribunal.
38. For these reasons, leave will be granted to appeal the decision of the Tribunal in respect of proposed Ground 1.
39. None of the remaining grounds proposed to be raised by the applicant have sufficient substance to warrant the grant of appeal. Proposed Grounds 2 and 7 may be dealt with together as they overlap. The complaint is misconceived. It relates to documents presented by the respondent which were not accepted by the Tribunal at first instance as establishing the true factual position. That position was not disturbed on appeal. The applicant sought to tender further material relevant to what she argued to be fraudulent documents, but the application was rejected by the Tribunal on appeal and there was no discernible error in the exercise of the Tribunal's discretion in that regard.
40. In oral submissions, the applicant took issue with the wording in [16] of the Tribunal's Reasons as to whether the material on the YouTube video was defamatory. That paragraph is as follows:
Although formally put in contention, we cannot discern any error on the part of the Senior Member by her finding that the [material] was defamatory. It plainly is. In earlier different proceedings brought by the respondent against the author of the [material] and many other persons, the Tribunal has consistently found publications having the same meaning or effect as the [material] to be defamatory.
41. The Tribunal's Reasons then cite a number of earlier cases involving the respondent and other parties. This did not appear to be directly relevant to Ground 2 or 7, or indeed any of the grounds argued, but I have nevertheless considered the submission. The plaintiff was concerned that the Tribunal on appeal had not viewed the video for itself, and had instead relied upon findings in those other cases. That is a misconstruction of the Tribunal's Reasons. The Tribunal's reasoning must be viewed in the context of what it had earlier set out. It made the finding and then simply drew attention to other cases where similar findings had been made to indicate consistency of the finding by the Tribunal at first instance.
42. Moreover, there is no arguable complaint that the content of the video was not what the Tribunal at first instance had found it to be. The video content was described in the Tribunal's Reasons at [5] (citations omitted):
The Senior Member found that the spoken words on the video contained defamatory imputations that the respondent is a member of a paedophile group which kills and tortures victims, and that he uses his employment in a Commonwealth Government department to facilitate the entry into Australia of minors for paedophilia by Muslim men.
43. As there did not appear to be any error in the factual finding as to what the video contained, the Tribunal on appeal was entitled to draw its own conclusion as to whether such content was defamatory, stating as set out at [40] above, 'it plainly is'. There is no substance to the applicant's complaint about [16] of the Reasons.
44. With regard to proposed Ground 3, each of the statutory defences was considered in detail by the Tribunal at first instance in its reasons for decision at [142]-[205]. The Tribunal on appeal could not discern any error on the part of the Tribunal at first instance (Reasons at [49]). Having reviewed the findings of the Tribunal member at first instance, I agree that there is no arguable error. The applicant appeared to take a scattergun approach to the defences in the Tribunal at first instance, relying upon justification, contextual truth, absolute privilege, public documents, fair report, qualified privilege, free speech, and honest opinion. The only other statutory defence, being that of innocent dissemination, will be addressed separately in Ground 5.
45. It is plain that none of the said defences were available to the applicant, for the detailed reasons given by the Tribunal at first instance. The applicant argued that the content of the material was not considered by the Tribunal on appeal for its truth or substantial truth. However, what the applicant fails to understand was that the onus was upon her at first instance to make out those defences and she failed to do so. That does not amount to any error on the part of the Tribunal at first instance or on appeal. Each of the defences raised will be rendered otiose if the applicant succeeds on Ground 1 in any event.
46. The argument raised in proposed Ground 4 is encapsulated in the reasons dealing with Ground 1.
47. Proposed Ground 5 concerns the defence of innocent dissemination set out in s 139C of the Act. In order to succeed on the defence, the applicant had to prove that she was a subordinate distributor (defined in the section), that she neither knew nor ought reasonably to have known that the matter was defamatory, and that her lack of knowledge was not due to any negligence on her part.
48. The applicant had the benefit of a finding by the Tribunal at first instance that she was a subordinate distributor. Although her remaining submissions on this point were unclear, she presumably seeks to argue that the Tribunal at first instance was wrong to find that the applicant ought reasonably to have known that the matter was defamatory, and further that the Tribunal on appeal erred in failing to find error in that conclusion.
49. The belief expressed in the YouTube video was that the respondent was a member of a satanic group engaged in paedophilia, and further, that the respondent uses his employment to facilitate paedophilia through importation of children into Australia. The applicant had obviously seen the video from the commentary she provided to accompany the hyperlink, which expressly referred to the respondent. I consider it beyond argument that the applicant ought reasonably to have known that such allegations, whether they were expressed as a personal opinion, belief, or a statement by the person on the video, were defamatory in relation to the respondent. Accordingly, the applicant was not an innocent disseminator of the material.
50. I next turn to consider proposed Ground 6 and the complaint about the Tribunal's findings with regard to the evidence of Mr Edwards. The Tribunal on appeal stated (Reasons at [53]) that Mr Edwards had used the hyperlink on the appellant's Facebook page in the ACT to access the defamatory material. The applicant seeks to challenge that factual finding. She says that Mr Edward's testimony and comments in the decision before the Tribunal at first instance show that finding was incorrect.
51. The findings in this regard are set out in the reasons of the Tribunal at first instance at [207]-[209], and are as follows:
207. The [respondent] led evidence as to the audience. Mr Edwards gave evidence of having viewed the [defamatory material]. While his evidence of what he in fact saw was unsatisfactory in a number of respects, inasmuch as it is tendered for the purposes of proving that he saw and heard something containing defamatory matter, it is accepted on that basis.
208. He was cross-examined. The thrust of that attack was that he could not have viewed the [defamatory material] because the respondent's Facebook page was set to private. The respondent spent some time developing this argument. Again, she made some very serious allegations. She asserted that the evidence of viewing the [defamatory material] was false and that Mr Edwards and the applicant had perjured themselves.
209. The Tribunal rejects those allegations. There was no credible evidence to support them. The evidence of Mr Edwards in this respect was not impeached and his evidence of having viewed the ...Video is accepted.
52. During the hearing before this Court, the applicant was requested to point to any transcript references or evidence that would demonstrate that her factual challenge had substance. She requested an opportunity to forward to the Court such material. What was received by the Court was a series of attachments that did not in any way establish any foundation for the applicant's challenge to the Tribunal's finding either at first instance or on appeal. I do not consider there to be sufficient cause to permit the grant of leave on a finding of fact made by a tribunal member at first instance who had formed and articulated clear views on the credibility of Mr Edwards based on his perception of him in the witness box and the nature of the evidence he gave.
53. Proposed Grounds 8 and 9 are not proper grounds of appeal. They are directed to the consequences of the findings with regard to the applicant specifically, and to the 'social and political discourse' of the public generally, who post or share material on internet sites such as their personal Facebook pages. The applicant may choose to join the growing chorus of commentators seeking uniform law reform of the defamation laws in Australia, which has given rise to the Council of Attorneys-General, Review of Model Defamation Provisions, Discussion Paper (State of New South Wales Department of Justice, February 2019), but they are not matters with which this Court has power to intervene.
54. Accordingly, I am not satisfied that there would be any miscarriage of justice were any of the remaining Grounds 2-9 permitted to be argued.
55. Notwithstanding the applicant's success, the amount at stake is presently $400. That position may change if the respondent cross-appeals, but as the position stands, it gives rise to a concern about the proportionality between the issue in dispute between these two individuals and the judicial resources that will be devoted to resolving it.
56. Given the issue is presently limited to a legal one (albeit a mixed question of fact and law) of narrow compass, and neither party is legally represented, it appears to be a preferable course to determine the appeal on the papers. Further directions in this regard can be made after hearing from the parties on that matter, and in particular, whether the parties intend to obtain legal representation going forward or any cross-appeal is now to be filed given the Court's findings above.
57. Ordinarily, resolution of the application would be accompanied by an order regarding the costs of the application. However, as the parties indicated during the hearing that they did not incur any legal costs, it is unnecessary to deal with that question here.
58. Accordingly, the orders of the Court are as follows:
(1) Leave to appeal is granted in respect of Ground 1 of the draft notice of appeal.
I certify that the preceding [58] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam
Bailey
Bottrill [2019] ACTSC 45
(2007) 18 VR 48