APPEAL - ADMINISTRATIVE TRIBUNAL DECISION - Appeal from ACT Civil and Administrative Tribunal - defamation - publishing content on the Internet - damages - prohibitory injunction - impecunious applicant an irrelevant factor - no arguable error - appeal dismissed

ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 79, 86(3)

Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685

Bottrill v Cristian [2016] ACAT 7

Bushby v Munday [1821] EngR 238; (1821) 5 Madd 297; 56 ER 908

Cristian v Bottrill [2016] ACAT 104

CSR Ltd v Cigna Insurance Australia Limited (1997) 189 CLR 345

Ezekial-Hart v Law Society of the Australian Capital Territory (No 2) [2012] ACTSC 135

Giusida Pty Ltd v The Commissioner for ACT Revenue [2016] ACTSC 275

Lee v Wilson [1934] HCA 60; (1934) 51 CLR 276

Livingston v Rawyards Coal Co (1880) 5 App Cas 25

Maher v Carpenter (2012) 7 ACTLR 21

Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327

Ryan v Ross [1916] HCA 43; (1916) 22 CLR 1

Samani v The Queen [2016] ACTCA 48

Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450

Vizetelly v Mudie's Select Library Ltd [1900] 2 QB 170

Peter Cane, Administrative Tribunals Adjudication (Hart Publishing, 2010)

Patrick George, Defamation Law in Australia (LexisNexis Butterworths, 2nd ed, 2012)

Peter Young, Clyde Croft and Megan Smith, On Equity (Law Book Co, 2009)

Court/Tribunal: ACT Civil and Administrative Tribunal

Citation: [2016] ACAT 104

1. Fiona Caroline Cristian, the applicant, was sued in the ACT Civil and Administrative Tribunal (the ACAT) by David Bottrill, the respondent, for defamatory statements said to have been published on an internet website conducted by Ms Cristian. The ACAT held that Mr Bottrill had been defamed and awarded him $10 000 in damages and made an order for costs in the sum of $130.00: Bottrill v Cristian [2016] ACAT 7.

2. Ms Cristian appealed under s 79 of the ACT Civil and Administrative Tribunal Act 2008 (ACT), that is an appeal within the ACAT. That appeal was heard by President L Crebbin and Senior Member B Meagher SC and, on 12 September 2016, the appeal was dismissed: Cristian v Bottrill [2016] ACAT 104.

3. On 23 September 2016, Ms Cristian commenced proceedings in this Court. She initially sought leave to appeal. Such leave is required under s 86(3) of the ACT Civil and Administrative Tribunal Act. She also sought what she described as a "prohibitive injunction" staying the decision of the appeal until it was finally heard.

4. I have set out in Giusida Pty Ltd v The Commissioner for ACT Revenue [2016] ACTSC 275 at [23]- [24] the principles applicable to applications for leave to appeal as follows:

1. In Pires v Dibbs Barker Canberra Pty Ltd [2014] ACTSC 283 at [48], I set out the principles that I considered should be applied when considering whether leave to appeal from a decision of the appeal tribunal of the ACAT. These were as follows:
   • 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;
   • whether leave should be granted or not must depend upon the justice of the case;
   • 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;
   • 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;
   • when 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;
   • 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;
   • it may be relevant to show that the error, if uncorrected, would impose substantial hardship.
2. The principles have been also succinctly set out by Penfold J in O'Donnell v Environment Protection Authority [2012] ACTSC 140 at [78], in the following way:
   • (a) whether a question of fact or law has been identified;
   • (b) whether there is at least an arguable case that the Appeal President erred in his resolution of that question; and
   • (c) whether the correct resolution of that question would be more favourable to the appellant.

5. I also noted in Giusida Pty Ltd v The Commissioner for ACT Revenue at [28] that it was appropriate for an applicant for leave to appeal to file a draft Notice of Appeal. This is not mandatory but highly desirable so that the Court can see the grounds of appeal and assess whether there is "a real or significant argument to be put that error exists" in the decision of the ACAT.

6. Ms Cristian did not do that. She was not penalised for not doing so, but it made it harder for her arguments as to the claimed error or errors to be crystallised.

7. Ms Christian filed a number of affidavits in support of her application. They were, however, quite discursive and dealt with her general dissatisfaction with the processes in the ACAT and her views on the operation of the legal system more generally, rather than focusing on what precise errors she said had been made by the ACAT. Nevertheless, as she was unrepresented, it was incumbent upon the Court to assist her to identify her case as best as possible, consistent with fairness to Mr Bottrill. See Maher v Carpenter [2012] ACTSC 38; (2012) 7 ACTLR 216 at 224-5; [41].

8. Ms Cristian was very critical of the proceedings in the ACAT, claiming that they were "unfair, unjust and deceitful". She made many allegations that the decisions of the ACAT had disadvantaged her and that the people were above the law, but that the law had been used as an instrument to do harm to her.

9. I have to say that I found much of her argument difficult to follow and attempted by questioning to allow her to identify precise errors which may have justified the grant of leave to appeal. Thus, I spent some time, not only reading the affidavits she had filed, but also in Court just discussing her case with her, explaining as best I could what she had to show and endeavouring to have her explain her challenge to the decision of the ACAT. I also read the two decisions of the ACAT, that is, the original decision as well as the decision on appeal.

10. At the end of the day, there seemed to be three complaints that she was able to identify: she said that she had removed the offending material from her website before the proceedings commenced; she had been willing to mediate and resolve the matter without recourse to a hearing in the ACAT; and that the amount of damages was far beyond her capacity to pay.

11. Defamation is the communication (usually called publication) to a person of false matter which would tend to cause ordinary reasonable people to think less of another person, that other person being the person about whom the matter has been communicated. See, for example, Patrick George, Defamation Law in Australia (LexisNexis Butterworths, 2nd ed, 2012) at 125; [6.1].

12. Ms Cristian's first alleged error seemed to have two parts, namely that she was not the author of the defamatory matter published and that the matter had been removed from her website prior to the commencement of the proceedings in the ACAT.

13. It is clear in law, however, that the publisher, who is the person liable in defamation, is not necessarily the author, as pointed out by Dixon J in Lee v Wilson [1934] HCA 60; (1934) 51 CLR 276 at 287. The publisher is the person liable and, in this case, Ms Cristian was held by the ACAT to be responsible for the publication. The facts found by the ACAT in Botrill v Cristian at [68], and not challenged by Ms Cristian before me, were sufficient to show that she was responsible for the republication of the relevant matter. This constituted the publication. See, for example, Vizetelly v Mudie's Select Library Ltd [1900] 2 QB 170 at 180

14. Ms Cristian's point, however, seemed essentially to be that she had removed the defamatory matter before the proceedings has commenced. Such removal, however, does not reverse the fact that the publication had by then been complete. See Ryan v Ross [1916] HCA 43; (1916) 22 CLR 1 at 33. It is at the point of publication that the cause of action, namely the entitlement for Mr Bottrill to damages, if he can show that there has been a communication to a person of matter that would then cause reasonable persons to think less of him, is complete. That the defamatory matter has been removed may be relevant to damages, which takes into account the extent and nature of the publication. See, for example, Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 340-1; [34]. It does not, however, deny Mr Bottrill relief for the publication that has already, by then, been made.

15. There is no real or significant argument to be put that suggests that the ACAT made an error in not dismissing Mr Bottrill's claim because Ms Cristian had removed the defamatory matter prior to the proceedings starting.

16. The next issue that Ms Cristian raised was that she was willing to mediate to resolve the claim by Mr Bottrill but he refused to do so. There is no doubt the courts have welcomed and encouraged parties to engage in alternative forms of dispute resolution such as mediation. In Ezekial-Hart v Law Society of the Australian Capital Territory (No 2) [2012] ACTSC 135 at [26]- [35], I expressed the need to support mediation and that support may mean that an unreasonable failure to engage in mediation may be visited by consequences. Those consequences, however, will be at best cost consequences, not relevant here as, apart from filing fees which had been paid before the offer of mediation was made, no costs were ordered to be paid by Ms Cristian. Any such consequences could not interfere with a proper vindication of Mr Bottrill's rights or the amount of damages to express such vindication.

17. Accordingly, there is no real or significant argument to be put that suggests that the ACAT made an error in failing to give any affect to the fact that Ms Cristian was willing to mediate and Mr Bottrill declined to do so.

18. Finally, Ms Cristian suggested that the amount of damages went far beyond her capacity to pay. The means of a person liable to pay damages has, however, never been a factor in the assessment of damages. Indeed, it would be inconsistent with the very notion of what the damages are and intended to do, as explained in the seminal statement of law by Lord Blackburn in Livingston v Rawyards Coal Co (1880) 5 App Cas 25 at 39, namely that damages is:

that sum of money which will put the party who has been injured or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensational reparation.

19. It has never been a basis to the awarding of an order for costs that the person liable to pay the costs is impecunious. See Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450 at [4]. It seems to me that the case for the financial means of a person ordered to pay damages being an irrelevant factor in the assessment of the amount of damages to be awarded is even stronger.

20. Accordingly, that no allowance was made for Ms Cristian's financial circumstances in setting an amount of damages does not show that there was a real or significant argument to be put that suggests that the ACAT had made an error in this regard.

21. Ms Cristian sought an injunction "that any or all actions as a consequence of orders made in the ACT Civil and Administrative Tribunal relevant to these proceedings be stayed until the case is fully heard". While she called it a "Prohibitive Injunction" it was clearly intended to be a prohibitory injunction. See Peter Young, Clyde Croft and Megan Smith, On Equity (Law Book Co, 2009) 1022-3; [16.110].

22. It was not clear to me to whom that injunction was to be directed, the ACAT or Mr Bottrill. It was not stated in her application.

23. The Court will not issue an injunction against another Court: Bushby v Munday [1821] EngR 238; (1821) 5 Madd 297 at 307; [1821] EngR 238; 56 ER 908 at 913. The ACAT is, however, not in that position; it is an administrative entity and, as such, part of the executive arm of government. See Peter Cane, Administrative Tribunals Adjudication (Hart Publishing, 2010) 3-4; [1.2.1].

24. It would appear, therefore, that the ACAT is amenable to being restrained by injunction. The ACAT was, however, not made a party to the application by Ms Cristian and it would not be appropriate to direct an injunction to a non-party, certainly without notice. Even parties should not be enjoined without notice, except in cases of urgency.

25. It would be possible to direct an injunction to Mr Bottrill as an "anti-suit injunction" (see CSR Ltd v Cigna Insurance Australia Limited (1997) 189 CLR 345) but such an injunction is really directed towards disputes over which of two or more courts is the appropriate venue for resolving a dispute. There is, in this case, no question of the correct court in which proceedings are to be taken.

26. Instead of an injunction, then, what would usually be appropriate would be a stay of the proceedings in the ACAT pending the appeal. The principles for such a stay have been set out in Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. I summarise these in Samani v The Queen [2016] ACTCA 48 at [9] as follows:

(1) Special or exceptional circumstances are not required to be established to justify a stay pending appeal;

(2) The onus is on the applicant to demonstrate a proper basis for the stay;

(3) The power of the Court to grant a stay as a matter of discretion;

(4) The Court will weigh the balance of convenience and the competing rights of the parties;

(6) Where there is a risk that the appeal will prove abortive, if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of a stay; and

(7) Where the appeal has been lodged simply to gain time, no granting of a stay arises.

27. For the reasons that follow, however, it is not necessary to consider these matters further.

28. I am not satisfied that Ms Cristian has identified any arguable error in the decision of the ACAT. Accordingly, it is not appropriate that leave for appeal be granted.

29. I accept that Ms Cristian is very disappointed with the decision of the ACAT. I accept also that she feels that her concerns were legitimate and showed that she did not get the decision that she deserved. That is unfortunate. She clearly considers that there has been no acceptance of the steps she has taken, which I accept were genuinely taken, to minimise the problems created by the original publication and that the outcome is seriously disadvantageous to her.

30. These concerns should not be minimised. They cannot, however, overcome the law which applies to the facts in this case and which, of course, the Court is required to apply. I explained in some detail to her at the hearing of her application how the law operates in a situation like this and tried to correct some misconceptions that she had about that situation. I have no doubt that she will be unhappy with the outcome of this application and that is regrettable. In my view, however, this is what the law requires.

31. Ms Cristian also pointed out that defamation is a very complex area and that ordinary people dealing on the Internet put themselves at great risk without any reasonable way to protect themselves.

32. That is completely true. This case is a good example of that. The liberty that the Internet gives to people to be published is of great value, but users who wish to say things about other people are vulnerable to the complex law of defamation

33. As David Rolph, Defamation Law (Law Book Co, 2016) said at 1; [1.10]:

Defamation Law has a reputation for being the most arcane area of private law. Its reputation is deserved. There are innumerable judicial and academic observations lamenting defamation law's complexity, technicality and obscurity. Defamation law is not only forbidding for those not blessed or encumbered (depending upon one's perspective) with a legal education but also trained lawyers who happen not to specialise in it.

34. Dr Rolph expresses the intention of his book at 4; [1.50] as follows:

A significant purpose of this book is to provide an accessible but rigorous exposition of Australian defamation law, thereby demystifying this complex cause of action.

35. Thus, there are means whereby people who wish to engage in self publication can inform themselves about the risks that they may be running and, perhaps, how to avoid them.

36. At the end of the day, I am satisfied that, as a matter of law, leave should not be granted for Ms Cristian to appeal the decision of the ACAT. I have, in these short reasons, endeavoured to explain why.

37. As a result of my finding, I dismissed Ms Cristian's application for leave to appeal and, as a consequence, the application for an injunction.

I certify that the preceding thirty seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.