HEADNOTE
[This headnote is not to be read as part of the judgment]
On 25 January 2019, the appellant undertook an unpaid work experience placement at the Beacon Hill Veterinary Hospital ("the Vet Hospital"), owned and operated by the respondents. While she was there, the appellant had an argument with veterinarian Dr Mahmoud Kalil (the first respondent) and veterinary nurse Ms Kylie Eather. The appellant was asked to leave. She made a police complaint, alleging verbal abuse. Dr Kalil and Ms Eather also called the police, who then attended the Vet Hospital. In a report the police recorded Ms Eather and Dr Kalil's version of events, including that Dr Kalil saw the appellant attempting to steal medication. On 26 January 2019, Dr Kalil gave a statement to the police, stating that he saw the appellant trying to steal medication.
Later on 25 January 2019, the appellant published two Facebook posts and a change.org petition accusing the Vet Hospital, Dr Kalil and Ms Eather of poor cleaning standards, mistreatment of animals, malpractice and physical assault. On 3 February 2019, the respondents made a Facebook post ("the matter complained of") responding to some of these allegations and stating that the appellant attempted to steal medication while she was at the Vet Hospital. The appellant sued in defamation.
The primary judge found the matter conveyed all but four of the appellant's pleaded imputations. The respondents pleaded a defence of reply-to-attack common law qualified privilege. The appellant conceded that the matter was published on an occasion of qualified privilege and that the matter complained of was sufficiently connected to a privileged occasion. The appellant claimed that Dr Kalil knew, when publishing, that the allegation of theft was false and was therefore actuated by malice. The primary judge found the appellant had not proven Dr Kalil knew the allegation was untrue or was wilfully blind to its falsity. Malice was not proven and the counterclaim was dismissed.
There were three issues on appeal:
(i) Did the primary judge err in finding that, on the evidence, the appellant had not proven malice?
(ii) Did the primary judge err in finding that four of the appellant's pleaded imputations were not conveyed?
(iii) Did the primary judge err in finding the scope of publication was extremely limited?
The Court of Appeal (Payne JA, Kirk and Stern JJA agreeing) dismissed the appeal, finding:
On issue (i)
(1) Malice requires proof of an improper purpose. Knowledge of falsity or wilful blindness to falsehoods is almost always proof of malice: [36]. It is not proof of malice that the matter merely contained untruths, or that the publisher failed to make "reasonable" enquiries: [83]-[87]. The onus to prove malice remained at all points with the appellant, and there is a presumption in the publisher's favour that they published with honest intentions: [36].
Roberts v Bass (2002) 212 CLR 1; [2002] HCA 5 and KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden [2020] NSWCA 28 applied.
(2) There was no reason to set aside the primary judge's factual findings based on his assessment of the witnesses' credit: [41]-[43]. He was entitled to prefer Ms Eather's account that Dr Kalil saw the appellant trying to pick up medication and, from this, formed the view she was stealing it. There were no glaring improbabilities in Ms Eather's account or any inconsistencies between it and the documentary evidence: [44]-[52]. Nor did adverse findings against Ms Eather's lawyers in related proceedings (Muriniti v Kalil [2022] NSWCA 109) reflect on her credit: [53]-[59].
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 and Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 applied; Evidence Act 1995 (NSW) s 91; King v Muriniti [2018] NSWCA 98 and Browne v Dunn (1893) 6 R 67 considered.
(3) Dr Kalil's statement to the police, stating that he saw the appellant trying to steal medication, was tendered by the appellant without restriction. That statement was powerful evidence tending against a finding of malice. There was no relevant inconsistency between the terms of the statement and the matter complained of: [65]-[71]. The appellant was wrong to suggest that, even if the evidence showed Dr Kalil believed the allegation of theft on 25 and 26 January 2019, it could not prove his state of mind when publishing the matter complained of: [75].
(4) A Jones v Dunkel inference is available against a party who bears a legal or evidential burden: [80]. Here, the respondents were under neither a legal nor an evidential burden: [80]-[81].
ASIC v Hellicar (2012) 247 CLR 345; [2012] HCA 17 and Ling v Pang [2023] NSWCA 112 at [20]-[34] applied; Fraser v Holmes [2009] NSWCA 36; 253 ALR 538 considered.
On issue (ii)
(5) In the eyes of the ordinary, reasonable reader, none of the four additional imputations were conveyed: [95]-[96].
Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 and Lewis v Daily Telegraph Ltd [1964] AC 234 applied.
On issue (iii)
(6) The primary judge accepted that harm to reputation was presumed upon proof of publication. The appellant, to establish a right to substantial damages, nevertheless had to prove the extent of that publication: [100]. The appellant was wrong to suggest that, once she showed the matter was published to two people, a wider extent of publication must then be inferred. The appellant led no evidence to show a wider extent of publication than those two readers: [99].
Sims v Joost [2016] WASCA 83 considered; Bristow v Adams [2012] NSWCA 166 applied.