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[2025] NSWSC 601
General information, not legal advice.
Supreme Court of NSW
2025-06-12
Rothman J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Harvey v Henderson [2025] NSWSC 601
Hearing dates: 15-19, 22-24, 26, 29, 30 April 2024
12 June 2024
Date of orders: 12 June 2025
Decision date: 12 June 2025
Jurisdiction: Common Law
Before: Rothman J
Decision: (1) Judgment for the plaintiff.
(2) The defendants shall pay the plaintiff $65,000 in damages.
(3) The defendants shall pay interest at the rate of 3% per annum on $32,500 from 1 July 2020.
(4) The defendants and each of them are restrained from publishing, on social media, the internet or anywhere else, any material that alleges or imputes to anyone, other than each other, that the plaintiff or Wild2Free has been involved in misappropriation of funds or fraud or that the plaintiff has carried on Wild2Free or any activities in animal care for the plaintiff’s own personal benefit or for the purpose of obtaining funds for herself.
(5) The defendants shall pay the plaintiff’s costs of and incidental to the proceedings.
(6) If any party seeks a special or different order as to costs or interest, such application may be made within 14 days of the date of judgment by a submission in writing consisting of no more than 3 pages, not including any documents that are not otherwise in evidence upon which the application relies.
(7) Any party adversely affected by any such application may reply, on the same conditions, no later than 14 days after receipt of the application.
(8) Other than the leave granted, leave is granted to re-list the matter on the issue of costs, if the matter cannot, on a disclosed, reasonable basis, be dealt with on the papers. Any such application should be made to my Associate within seven (7) days of judgment.
(9) The plaintiff is directed to file and serve a Short Minute of Order reflecting the foregoing and calculating the interest within seven (7) days of judgment.
Catchwords: DEFAMATION — defamatory matter — particular imputations — fraud — misuse of charitable funds for personal financial benefit — misappropriation of funds — misleading people for the purpose of raising funds — registered charity — Wild2Free — wildlife care
DEFAMATION — defamatory matter — capacity to convey pleaded imputations — ordinary reasonable reader — ordinary and natural meaning of words — Grapevine effect — onus of proof on plaintiff — on the balance of probabilities — Jones v Dunkel — publications found to have conveyed some pleaded imputations
DEFAMATION — publication — multiple publications — emails — social media — Facebook — Facebook comments — defendants found to have published defamatory material — republication — defendants responsible for republication
DEFAMATION — harm — Defamation Act 2005-2019 — previous version of legislation applicable — assumption of harm — serious harm not necessary to prove — plaintiff suffered significant harm
DEFAMATION — defences — Defamation Act 2005 (NSW) — justification— triviality — honest opinion —contextual truth — lack of jurisdiction — where email was published overseas — common law qualified privilege — mutual interest and/or duty — reply to attack — where Facebook comments posted for a short period of time — onus of proof on defendants — plaintiff to prove malice in relation to qualified privilege — malice not found — plaintiff was not acting dishonestly
DEFAMATION — remedies — injunctive relief — general damages — aggravated damages — malice — where plaintiff had a good reputation — where plaintiff suffered hurt and damage to reputation — general damages awarded
Legislation Cited: Conveyancing Act 1919 (NSW), ss 23C, 54A
Corporations Act 2001 (Cth), ss 180, 181, 182, 184
Defamation Act 2005 (NSW), ss 10A, 12A, 12B, 33, 34, 35, 36, 38, Sch 4, Pt 3
Cases Cited: Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79; [2010] HCA 25
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Australand Holdings Ltd v Transparency and Accountability Council Incorporated [2008] NSWSC 669
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5
Bell v Thompson (1934) 34 SR (NSW) 431
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Bristow v Adams [2012] NSWCA 166
Cantwell v Sinclair [2011] NSWSC 1244
Carr v Baker (1936) 36 SR (NSW) 301
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31
Cassell & Co Ltd v Broome [1972] AC 1027
Charleston v News Group Newspapers Ltd [1995] 2 AC 65
Clark v Ainsworth [1996] 40 NSWLR 463
Crampton v Nugawela (1996) 41 NSWLR 176; [1996] NSWCA 128
Cush v Dillon; Boland v Dillon (2011) 243 CLR 295; [2011] HCA 30
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56
Eppinga v Kalil [2023] NSWCA 287
Fabre v Arenales (1992) 27 NSWLR 437
Fitzpatrick v Mirror Newspapers [1984] 1 NSWLR 643
Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84
Harbour Radio Pty Ltd v John Tingle [2001] NSWCA 194
Henderson v Queensland (2014) 255 CLR 1; [2014] HCA 52
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Lewis v Daily Telegraph [1964] AC 234
Li v Liao [2025] NSWSC 168
McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1147
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66
Papaconstuntinos v Holmes á Court (2012) 249 CLR 534; [2012] HCA 53
Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174
Rantzen v Mirror Group Newspapers Ltd [1994] QB 670
Ratcliffe v Evans [1892] 2 QB 524
Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1
Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65
West v Government Insurance Office of New South Wales (1981) 55 ALJR 544
Texts Cited: Clerk & Lindsell on Torts (19th ed)
Category: Principal judgment
Parties: Laurae Michelle Harvey (Plaintiff)
Gary Henderson (First Defendant) (self-represented)
Sara Tilling (Second Defendant) (self-represented)
Representation: Counsel:
R Rasmussen / A Cheema (Plaintiff)
Solicitors:
Kalantzis Lawyers (Plaintiff)
File Number(s): 2020/348051
Publication restriction: N/A
HIS HONOUR: The plaintiff, Laurae Michelle Harvey (also known as Rae), sues the first and second defendant, Gary Roger Henderson and Sara Louise Tilling, respectively. The cause of action is defamation, and the plaintiff alleges that the defendants published emails and social media posts imputing, in general, that the plaintiff is a fraud and has misused charitable funds for her own personal financial benefit.
The impugned publications are:
(i) an email from the defendants to a single email address recipient (although addressed to two persons); (ii) an email from the defendants to the Executive Director of the American Red Lion Disaster Fund, which had provided funds to an organisation with which the plaintiff is associated and of which she is the principal; (iii) an email from the defendants to a single recipient; (iv) an email from the defendants to another single recipient; (v) a social media post made by the defendants on the Public Facebook page of the Animal Rescue Cooperative, read by at least two people; (vi) social media posts made by the defendants on the Public Facebook page of ABC South East, which was read by at least ten people; and (vii) a GoFundMe private message sent to a single recipient.
The plaintiff relies upon the grapevine effect regarding the publications and seeks damages (including aggravated damages) and a final or permanent injunction.
The plaintiff, Ms Harvey, is a committee member and founder of the registered charity Wild2Free, which, without delving into the detail at this point, is involved in wildlife care. Essentially, the two defendants, who were also involved in wildlife care, were involved in a dispute with the plaintiff over the ownership or use of certain items. The defendants considered that the plaintiff misrepresented the work of Wild2Free and, for the purposes of claims for funds, the ownership of certain property. The foregoing is a very brief overview of the issues between the parties and the issues involved in the proceedings.
“Hi Yana and Simon
We just wanted to double check that you are not prepared to facilitate the distribution of financials and other documents related to the operations of Wild2Free? Failure to provide the financials is a breach of the Incorporated Associations Act, and there can be nothing to gain as ultimately we will obtain the documents. In light of Rae’s continued obstruction and fraudulent conduct it is our view she should be removed from the board immediately.
We do have some sympathy for the position Rae has put you in, but at the end of the day we are determined to see the charity function with proper governance, funds going where they are needed and it no longer be a private fundraiser for Rae Harvey.
We are following through with further action this week and would welcome the opportunity to discuss an alternative course of action.
Kind Regards
Gary & Sara.”
(i) that the plaintiff is a fraud; (ii) that the plaintiff has conducted herself fraudulently with respect to the operation of the Wild2Free charity; (iii) that the plaintiff has run the Wild2Free charity as a private fund raiser for her own financial benefit; and (iv) that the plaintiff has conducted the Wild2Free charity fraudulently.
“Two emails in 4 months is hardly harassment Janelle, but after labelling us as scammers and diverting funds elsewhere I had hoped you would have been able to justify your decision making.
I understand the difficult position you have been placed in, but honesty is always the best response and if you ever wish to clear the matter up please feel free to contact us. Hiding your involvement in fraudulent activity by Rae Harvey and misleading your donors is not the ideal way to define your most welcome attempt to support animals in Australia affected by the recent bushfires.
Thanks
Gary.”
“Again however I need to reach out to you in an attempt to clear our name after the unsavoury attack on our credibility by so called fellow wildlife carers in Australia. While your website is clear and compelling about your research, how is it that not one cent, I repeat not one cent of the money you collected from donors and forwarded to Australia for bush fire assistance was spent helping animals in need from that disaster?
Sara and I here at Cobargo Wildlife Sanctuary know exactly what happened after you offered us a donation by way of Facebook post. Recently at a board meeting for the Wild2Free charity Rae Harvey stated to the board that the entire correspondence between Wild2Free and American Red Lion consisted of just one email, and has refused to answer any questions about how the donation came about. At the time your donation was received, Wild2Free had some $600,000 in their account and that money, along with your donation sits there now doing absolutely nothing. The other two charities involved in the fraud, Little Urchins and Red Box Shelter were not in a fire affected area and did not help any fire affected animals. How can you feature Little Urchins with a joey not affected by the fires under the heading ‘Australian Wildfire 2019” ?
I understand it can be difficult at time to know who is telling the truth, but to label us as scammers while holding the other three up to be genuine is totally unacceptable. We are continuing to investigate this incident to try and find the main person responsible for fraudulently obtaining funds at our expense and the police are now involved. The issue is not the money, but the defamation of ourselves and disregard for the effort we have and still are putting into helping animals.”
(i) that the plaintiff has misused funds donated by the American Red Lion Disaster Fund to the Wild2Free charity by not using those funds to help animals in need from the 2019 bushfire disaster; (ii) that the plaintiff has committed a fraud upon the American Red Lion Disaster Fund; (iii) that the plaintiff is involved in fraudulent activity along with Janelle Babington, Little Urchins and Red Box Shelter; (iv) that the plaintiff and her Wild2Free charity is involved in a fraud with two other charities, Little Urchins and Red Box Shelter in that they falsely claimed to be in an area affected by the 2019 Australian Wildfire and falsely claimed to be helping fire affected animals; and (v) that the plaintiff fraudulently obtained funds at the expense of the Cobargo Wildlife Sanctuary.
“Hi Margaret
We notice you have nominated to be on the board of Wild2Free and just wanted to drop you a quick line to ensure you know the environment you are entering if you are successful with your nomination. Rae is part of a small group of antagonists who seem intent on causing trouble to other carers and charities in this region, and this has resulted in a tarnished reputation for Wild2Free amongst genuine wildlife people.
We were on the board until recently resigning, but found it to be an absolutely awful experience. As you would know the charity is run by Rae Harvey, and until recently it existed purely to raise funds for herself as it does not offer any animal rescue service. She is currently paying herself a $700 per week land rental fee and until recently also paid her phone bill, water delivery, part of her rates and power bills and even her food. No other members were offered anything. Also Sara in particular was attacked through a unsubstantiated official complaint to the charity orchestrated by Rae Harvey.
Currently there are complaints lodged with ACNC, Fair Trading and the Police in regard to the conduct of Rae Harvey and Wild2Free, and Ray is trying to conceal the contents of an application which resulted in the charity receiving $50,000 from the NSW Government Bush Fire Relief Fund, to which we have written legal advice the charity was not entitled to.
Unless there is a significant change in attitude, the charity will also soon be involved in legal proceedings with regard to the allocation of funds raised through their sanctuary rebuild appeal and a failure to address a legitimate reimbursement claim.
If you are aware of the current situation and wish to be involved then of course that’s entirely up to you, but also if you would like clarification or further information feel free to give us a call.
Regards
Gary Henderson
Sara Tilling [phone numbers redacted].”
(i) that the plaintiff ran the Wild2Free charity purely to raise funds for herself and not to provide animal rescue services; (ii) that the plaintiff is trying to conceal from the ACNC, Fair Trading and the Police the contents of an application she made on behalf of the Wild2Free charity which resulted in the charity receiving $50,000 from the NSW Government Fire Relief Fund because she knew the application to have been illegally made by her; (iii) that the plaintiff orchestrated an unsubstantiated and false complaint to the Wild2Free charity against Sara Tilling; (iv) that the plaintiff has misappropriated funds received by the Wild2Free charity through its Sanctuary rebuild appeal; (v) that the plaintiff tried to conceal the contents of an application she made on behalf of the Wild2Free charity which resulted in the charity receiving $50,000 from the NSW Government Fire Relief Fund because she knew the charity was not entitled to it; and (vi) that the plaintiff did not facilitate the Wild2Free charity allocating funds raised through its sanctuary rebuild appeal to address legitimate claims.
The fourth matter complained of (hereinafter “impugned publication 4” or “fourth impugned publication”) is another email to an individual, Anita Morgan, dated 15 July 2020 from the same email address. It is obvious from the terms of the email that the authors of the email understood that Ms Morgan was also a person who had nominated to be on the board of Wild2Free.
The publication, which is separately annexed as Annexure D to the Amended Statement of Claim, is, with the exception of addressees, in precisely the same terms as Annexure C. The allegations of imputations contained in the publication are in identical terms to those alleged in relation to impugned publication 3.
The fifth matter complained of (hereinafter “impugned publication 5” or “fifth impugned publication”) is a comment posted on a public Facebook page operated by the Animal Rescue Cooperative. The publication by Animal Rescue Cooperative (also referred to as “ARC”) refers to Wild2Free as “one of the most important shelters in the area” and states that volunteers were on the ground helping after the wildfires swept through the area and damaged or wiped-out properties. There was a reference to a particular joey (baby kangaroo or wallaby) which rescuers were trying to get to the shelter.
There are a number of positive comments on the Facebook post which praise the plaintiff and Wild2Free for their work. Among them is a reply to a comment, allegedly by the first defendant, which is in the following terms:
“The only person Harvey helps is herself. She helped herself to over 50K in charity funds last FY and took in one Joey.”
(i) that the plaintiff misused $50,000 of charity funds and took in one joey; and (ii) that the plaintiff runs the Wild2Free charity for her own personal financial benefit and not for the purpose of rescuing animals.
It is alleged that, on or about 8 August 2020, the second defendant published comments on a post on the Facebook page of ABC South East NSW. There are four comments relating to the sixth and seventh matters complained of (hereinafter “impugned publication 6” and “impugned publication 7” or “sixth or seventh impugned publication” respectively).
Impugned publication 6 is under the name of the second defendant in the following terms:
“Carol Pittman that is lie, the gofundme was shut down and removed from Cobargo Wildlife Sanctuaries page in February and we have not and do not solicit for funds anywhere. Please remove your comment. However perhaps you are referring to Wild2Free as Rae Harvey continues to use the bushfires to raise money.”
“Claire Pragnell as I’m sure you are aware we have been purchasing the property since November last year. And please send me proof where we said we had nothing to do with the other org. you won’t be able to as we did not. You will also find that all of the fundraising by Rae Harvey used the Cobargo property. We also did not request 500K for a house. So please remove your comment as it is also completely incorrect.”
“Carol Pittman, so looking after over 50 animals since the fires, doing wildlife feeds drops everyday in the surrounding area for some 3 months after the fires, doing rescues multiple times per week, giving animals a chance that no one else would, rehabilitating and successfully releasing injured and orphaned animals all from a caravan and now shipping containers, carers for some 12 years, 100% funded by ourselves until that gofundme, mentoring and assisting new carers, taking phone calls at 1am hurts ‘real sanctuaries’ does it. (sic) More than happy for 60 Minutes to come and see us, and speak to those that we have worked with and continue to work with over the past 12 years perhaps you can organise it for me, perhaps your ‘friends’ would also like to be a part of it? Let’s compare that to Wild2Free, over $80,000 spent mostly on her rates, personal groceries, phone, internet and 35K in payments to lease her own property, all charity funds, one Joey in care in the past 12 months, no rescues, no feed drops after the fires, nothing. That’s what gives sanctuaries a bad name.
…
Carol Pittman, well don’t make false and defamatory statements about us then.”
(i) that the plaintiff takes money from people on the false pretence of continuing to use the bushfires to raise money for her Wild2Free sanctuary; (ii) that the plaintiff will continue to take money from people on false pretences until she is caught out or cornered; (iii) that the plaintiff has misused Wild2Free charity funds by spending $80,000 on her rates, personal groceries, telephone, internet and $35,000 to lease her own property; and (iv) that the plaintiff is not running a genuine wildlife rescue charity because it has not rescued any animals after the fire and has conducted no feed drops after the fires and had only one joey in its care in 12 months.
“Hi Caitlin
I see that you are the organiser for this Rae Harvey fundraiser and believe I have information that suggests you been mislead (sic) by Rae Harvey in relation to her losses. I am investigating her actions over the last two years involving some questionable conduct, including fraudulently obtaining a financial advantage. My name is Gary Henderson and my phone number is [redacted].”
(i) that the plaintiff has mislead (sic) Caitlin Williams and those who contribute to her GoFundMe fundraiser on behalf of Rae Harvey about her losses; (ii) that the plaintiff fraudulently obtained a financial advantage; and (iii) the plaintiff is reasonably suspected of fraudulently obtaining a financial advantage.
The publication of the material is generally admitted by the defendants who raise a number of defences. In relation to impugned publication 1, the defendants raise the defence of justification pursuant to s 25 of the Defamation Act 2005 (NSW) in that the statements are true or substantially true. They also raise the defence of qualified privilege at common law and the defence of triviality pursuant to s 33 of the Act (since repealed).
The defendants deny that this Court has jurisdiction to hear and determine impugned publication 2 on the basis that the publication occurred in the United States where the email recipient is based. Further or in the alternative, they raise the defences of justification, qualified privilege and honest opinion pursuant to s 31 of the Defamation Act.
For impugned publications 3 and 4, being identical emails sent to two different recipients, the defendants raise the defences of justification, contextual truth pursuant to s 26 of the Defamation Act, qualified privilege and honest opinion.
As to the comment on the ARC Facebook page, being impugned publication 5, the first defendant denies that it was read and understood by 189 Facebook members (an allegation of the plaintiff) and submits that it was removed within no more than one hour of its posting by the moderator of the Facebook page. The defendants also raise the defences of justification, honest opinion and triviality.
In relation to impugned publications 6 and 7, being further Facebook comments, the second defendant admits that she published the comments but only in so far as it relates to paragraphs 9 and 11 of the publication in Annexure F2 and 4 and 5 of the publication in Annexure F1 of the Amended Statement of Claim. The second defendant denies that her comments were read by the persons alleged to have read them and pleads that the comments were edited and removed by the moderator of the Facebook page within two hours of being posted. The defendants also raise the defences of justification and qualified privilege.
For the last email, impugned publication 8, the defendants plead defences of justification, qualified privilege and contextual truth.
If liability be found, the defendants deny the entitlement of aggravated damages on the basis that the defendants held a genuine and honest belief in that which was published and did not publish the impugned publications for the purpose of injuring the plaintiff’s reputation.
A brief history or recitation of some of the background needs to be provided. There are a number of uncontroverted facts which, while not directly relevant, allow a better understanding of the issues between the parties.
At eighteen years old, the plaintiff began promoting concerts and commenced managing various bands. She became well-known in the music industry amongst bands and had a number of them, the most famous of which was “The Living End” which achieved significant success.
As might be suspected in such an industry and at such a young age, the plaintiff faced financial difficulties, and her mother assisted her in paying off a $20,000 debt she had incurred from promoting concerts.
The plaintiff’s interest in wildlife care emerged following a car accident involving a possum, where she rescued a joey. The plaintiff trained as a researcher for Wildlife Victoria and commenced volunteering.
The plaintiff founded the animal charity Wild2Free with her partner at the time. Initially, they purchased properties in Runnyford and Yowrie in New South Wales, to establish a sanctuary for wildlife.
In 2017 to 2018, the plaintiff took on a number of kangaroos and joeys that were injured and needed rehabilitation. Apparently, she struggled to maintain her business as a band manager during that period. During that period or shortly thereafter, she and her partner arrived at the property at Yowrie (also called the Cobargo Property during the course of proceedings), but after three days or so there was a fire, and she left the property.
Initially, the Committee of Wild2Free was constituted by the plaintiff, her then partner, her partner’s sister, the daughter of her partner’s sister, and the plaintiff’s friend.
The plaintiff and defendants first came into contact in February 2018 when a mutual friend mentioned to the plaintiff that the defendants were looking for somewhere to release six kangaroos. The plaintiff and defendants reached an agreement, and the defendants moved into the Cobargo Property around May 2018. The defendants became members of the board of Wild2Free. They also donated money to Wild2Free for the purpose of purchasing equipment for the Cobargo Property.
The plaintiff and the defendants had a falling out, amongst other things, it seems, over the ownership, attempt to purchase and other aspects of the Cobargo Property and issues associated with equipment that it was alleged was purchased for the Cobargo Property.
Surrounding all of these events was the Black Summer Bushfires, which occurred at the end of 2019 and the beginning of 2020. As earlier stated, the fires burnt the Cobargo Property and the Runnyford Property.
The plaintiff alleged that the fire had destroyed extensive medical equipment for the kangaroos, pouches which were used for the care of joeys, medicines that were required, feed and a raft of other equipment. After the fires, the defendants, who were at the time of the fires residing in Tasmania, returned to New South Wales. They arrived at the very beginning of 2020. In their absence, there was a caretaker who, amongst other things, cared for the animals there.
The plaintiff’s evidence in chief covered her early life and how she came to be managing various bands. Once the plaintiff became successful in managing bands, her functions included organising overseas and other tours, in some cases involving millions of dollars.
The plaintiff enjoyed a reputation for honesty and integrity together with dedication. Examples were given of the plaintiff acting otherwise than in self-interest in that context and the plaintiff thrived as a result of the reputation she enjoyed. Further, the plaintiff was very proud of that reputation, which included that she was “hard but fair”.
The plaintiff’s love of animals led her to become a vegetarian when she was a teenager, for a temporary period, and permanently when she turned 22. At one stage, the plaintiff volunteered in a cat shelter, while still managing bands.
One night, the plaintiff “clipped a possum on the road”; pulled over and saw it run across the road and climb a fence. When the plaintiff investigated to see if the possum was hurt, she found a joey alive in the gutter, picked it up and put it down her jumper. Because it was the middle of the night and vets were closed, the plaintiff called a wildlife group who requested that she drive it to a named carer, which she did.
While the plaintiff had no further involvement with that animal, the incident was the catalyst for the plaintiff to commence volunteering at the shelter to which she had taken the joey. It was the Emerald Monbulk Wildlife Shelter. The plaintiff volunteered there once a week.
Mainly, the plaintiff performed menial tasks at the shelter, but she established a “Mycause” campaign, which the plaintiff described as a precursor to GoFundMe. The campaign raised about $20,000 over a few months, mostly from friends of the plaintiff.
The plaintiff also volunteered for Wildlife Victoria, where she and others were on call as rescuers, which involved going out to rescue animals. The animals were kangaroos, birds and possums, for the most part the latter two.
The plaintiff met and commenced a relationship with Sayo Prentic in around 2014. After about 18 months of research and travel, mostly along the New South Wales coast, the couple purchased two properties at or near the highest concentration of kangaroos and wallabies, which was on the south coast of New South Wales. One of the properties was at Runnyford, which was 67 acres, and the other was at Illawambra (also known as Yowrie or Cobargo). The properties were purchased in the plaintiff’s name, with mortgages on each. These properties were purchased in 2016.
While the original intention was to move to the Runnyford Property, then to Yowrie, the vendor of the Runnyford Property was unable to settle immediately, and the couple leased the property for six months. The couple moved straight into Yowrie.
“When the sale price is paid in full to the vendor, then the vendor shall make best endeavours to ensure the title (or remaining title) is then transferred to the purchaser.”
There are provisions relating to costs, stamp duty, default and a reference to a subdivision in circumstances where the “[r]emaining amount” has not been paid within six months of the commencement date.
Assuming all the necessary preconditions are fulfilled, and the parties have otherwise complied with the terms of their agreement, the agreement would probably be enforceable but may require an order of the Court requiring the vendor to complete a transfer or some other similar step. Nevertheless, on its face, the agreement is or seems to be enforceable, albeit in the absence of argument in relation to it and with the question as to the outcome of any enforcement. In other words, would enforcement of the agreement require a further agreement to be executed or allow for the transfer of the property to be ordered?
As is well known, there were significant bushfires in the area on the South Coast of New South Wales at the end of 2019 and the beginning of 2020. On or about 9 December 2019, the defendants were at Runnyford to pick up material, including goats, for transfer to the Yowrie Property. Yowrie, at the time, had a caretaker Leon who, it is said, cared for the animals there. The defendants returned to Tasmania.
At about 4am on 31 December 2019, the plaintiff became aware of the fire that was coming towards Runnyford. She had been woken up by a volunteer and a neighbour.
Initially, the plaintiff thought that the fire would miss her property, but eventually it became clear that it would not. The plaintiff was rescued by a boat operated by one of her neighbours. The plaintiff returned to Runnyford on 5 January 2020.
When the plaintiff returned, the house was destroyed. The house had been used for caring for joeys and kangaroos. It also contained medical supplies, all of which were destroyed. Further, machinery and all other equipment had been destroyed. When the plaintiff returned to the property, one of the male kangaroos, named Kanku, was protecting other kangaroos and relaxed when he heard the plaintiff’s voice.
A documentary called “The Bond” was produced focusing on the relationship between the plaintiff and Kanku. The documentary was produced for Discovery Channel in the United States. The documentary is in evidence as is a poster advertising the documentary. [8]
The documentary displays the premises which includes the house in which the plaintiff lived. This had been rebuilt by July 2021. There was a joey house which had been rebuilt by approximately September or October 2021. Immediately after the fires, the plaintiff lived in what is described as a small cottage.
On 4 or 5 February 2020, the plaintiff engaged in a conversation with Ms Kat Agar-Teehan, in which Ms Agar-Teehan asked the plaintiff whether she owned the Yowrie Property and whether she had agreed to sell it to the defendants. The plaintiff responded to the effect that she had agreed to sell it to the defendants, but it was still owned by her at the time.
“Wild2Free is one of the most important shelters in the area. Alli and the team in South Coast were on the ground helping straight after the fires came through. No one could experience what the south coast rescuers went through when their properties were wiped out and the damage was done. No one. In years to come there will be studies into the personal impact on the community, we can never thank them enough for the sacrifices they have all made to help animals.
We are really looking forward to getting Riley to the shelter and helping cart water and move supplies around. Thank you everyone for supporting this project.”
“Rae Harvey of Wild2Free Inc - Kangaroo Sanctuary - helps dozens of shelters nationally
she is an inspiration for united supportive advocacy for a roos (sic). a silent achiever who asks for nothing in return.
Happy that Riley will help this amazing shelter.”
“Paula Griggs The only person Harvey helps is herself. She helped herself to over 50K in charity funds last FY and took in one Joey.”
The screenshot that discloses the comment under the name Gary Henderson, was taken, on the records portrayed on the screenshot, five minutes after it was posted.
On the evidence of the plaintiff, two people spoke to the plaintiff about having read the comments: Paula Griggs and Ms Kat Agar-Teehan. Further to those two persons, Ms Jodie Blackney posted a comment. Although it is unclear from the comment itself, knowledge of the operation of Facebook suggests it is a comment on the ARC post. While the plaintiff has a memory of talking to Ms Blackney about the post, the memory is at best hazy, and the evidence does not support the inference that Ms Blackney read the allegedly offending posts.
Asked about the truth of the imputation said to arise from the fifth impugned publication, the answers were, at least in part, equivocal in some respects. The plaintiff denied that the only person that the plaintiff actually helped was the plaintiff herself.
The plaintiff also denied that she helped herself to $50,000 of charity funds in the last financial year and took in one Joey. Asked how many joeys and kangaroos the plaintiff (for which I read Wild2Free) took in during the previous year, the plaintiff could not recall the number and said it was a difficult year because of the bushfires and they “were caring for a lot of kangaroos that had been affected by the fire”.
The plaintiff then gave the number of joeys that were in care at the time of the fire, all but two of which were released between July and December 2019. After the bushfire, Wild2Free was not really “equipped to do a lot”.
In March 2020, Wild2Free had “one joey and an adult female kangaroo in care” and were “feeding and providing everything for the animals, the kangaroos that [had] been released that were relying on us”. Given that the evidence of the plaintiff was that all but two of the kangaroos were released prior to the fire and there were two (a joey and a kangaroo) in care in March 2020, it seems that no additional kangaroos or joeys were taken into care in that period.
The plaintiff felt overwhelmed when she read the comment and felt that she could not defend herself anymore. The plaintiff felt defeated and was particularly concerned because of the nature of the page upon which the comment was published.
Her concerns as to the nature of the page were because ARC was a “really active charity after the bushfires” and active in raising funds to help animals affected. As a consequence, a large number of people were posting and following its webpage and Facebook page, and the plaintiff was concerned about how the posting by the first defendant was going to “affect the charity [Wild2Free] moving forward”.
There are approximately 20,000 followers of the ARC Facebook page.
“Carol Pittman that is a lie, the GoFundMe was shut down and removed from Cobargo Wildlife Sanctuary’s page in February and we have not and do not solicit for funds anywhere. Please remove your comment. However perhaps you are referring to Wild2Free as [the plaintiff] continues to use the bushfires to raise money.”
And then:
“Claire Pragnell as I am sure you are aware we have been purchasing the property since November last year. And please send me proof where we said we have nothing to do with the other org (sic). You won’t be able to as we did not. You will also find that all of the fundraising by [the plaintiff] used the Cobargo Property. We also did not request 500K for a house. So please remove your comment as it is also completely incorrect.”
Neither comment was seen by the plaintiff on Facebook. One or more screenshots of the comments were sent to the plaintiff. When she saw the comment, she was “freaked out by it”, because of the concern as to how many people were commenting and becoming involved.
A number of wildlife carers were commenting on the post. The plaintiff was “really angry” at the comment by the second defendant that Ms Pittman may have been referring to Wild2Free, because, at the time, Wild2Free was not doing any fundraising.
The plaintiff was angry about the comment relating to the GoFundMe page having been shut down because she believed it was not true. However, the comment did not relate to anything that the plaintiff or Wild2Free was doing.
The seventh impugned publication is a continuation of the comments of the sixth impugned publication. Again, it commences with some uncomplimentary comments about the defendants and Cobargo Wildlife Sanctuary. In the course of the comments, the second defendant posted:
“Carole Pittman, so looking after over 50 animals since the fires, doing wildlife feed drops everyday in the surrounding area for some three months after the fires, doing rescues multiple times per week, giving animals a chance that no one would, rehabilitating and successfully releasing injured and orphaned animals all from a caravan and now shipping containers, carers for some 12 years, 100% funded by ourselves until that GoFundMe, mentoring and assisting new carers, taking phone calls at 1am hurts ‘real sanctuaries’ does it. (sic) More than happy for 60 Minutes to come and see us and speak to those that we have worked with and continue to work with over the past 12 years perhaps you can organise it for me, perhaps your ‘friends’ would also like to be part of it? Let’s compare that to Wild2Free, over 80,000 spent mostly on her rates, personal groceries, phone, internet and 35K in payments to lease her own property, all charity funds, one Joey in care in the past 12 months, no rescues, no feed drops after the fires, nothing. That gives sanctuaries a bad name.”
Ms Pittman replied that she did not need the second defendant’s permission or narrative, to which the second defendant replied to Ms Pittman enjoining her not to “make false and defamatory statements about” them, to which Ms Pittman replied in a like manner and suggesting that the second defendant did not intimidate her and that it was she, the second defendant, and/or the first and second defendant, that was defaming people.
As a consequence of these posts and talking to her friends about them, the plaintiff felt that she needed to justify herself. She did not like and had never previously been required to justify herself.
Impugned publication 8 is an email sent from the defendants’ email address to Ms Caitlin Williams, who, apparently, was an organiser for a GoFundMe page relating to either the plaintiff or Wild2Free. The email suggests that the author believes he has “information that suggests you have been mislead (sic) by [the plaintiff] in relation to her losses. [The author is] investigating her actions over the last two years involving some questionable conduct, including fraudulently obtaining a financial advantage”. It is signed off with the name of the first defendant and his phone number.
Caitlin Williams was a longtime fan of the band, The Living End, which the plaintiff had managed for some 22 years. The GoFundMe page was a fundraising attempt in 2016 for money for the plaintiff. As far as the plaintiff is aware, the fundraising activity was no longer active.
The plaintiff considered it was embarrassing that people who had supported the band for decades were now being brought into the dispute.
Evidence was adduced that Ms Williams told three others who were fans of the band. Such evidence is not evidence of the truth of that fact, but is relevant to the level of hurt, if any, suffered by the plaintiff because she understood that more people were involved in the dispute and were aware of the nature of the allegations. [16]
Questions were then asked of the plaintiff relating to a letter from the first defendant to the auditor for Wild2Free. [17] This document is not a publication complained of in the proceedings and the correspondence occurred over 30 and 31 July 2020.
Even though the correspondence and questions of the auditor are not part of the matters complained of, they are, it seems, tendered by the plaintiff as evidence of the campaign and/or malice motivating the defendants. There is further reference to correspondence with one or more insurance companies relating, at least inferentially, to the proposition that the plaintiff has claimed compensation for an event under each of two insurance policies. The claim relied upon an affidavit of the plaintiff filed in family law proceedings. The affidavit had been given to one or other of the defendants by the plaintiff.
Ms Agar-Teehan gave evidence by AVL and is acquainted with the plaintiff and the defendants. Ms Agar-Teehan operates a sanctuary called Little Urchins which is situated in Victoria and has been operating for approximately 15 years. She has known the plaintiff for approximately eight to nine years and came to know her through work in her sanctuary.
Ms Agar-Teehan recalled the bushfires of 2019 and 2020 during which time she had a telephone conversation with one or other of the defendants about coming from Tasmania to Victoria. During that conversation, or during a number of conversations at or about the same time, the defendants informed Ms Agar-Teehan that they had purchased Cobargo. Ms Agar-Teehan was surprised as she had thought that the defendants were remaining in Tasmania to raise goats.
When the fires hit, there was another telephone conversation in which the defendant suggested to Ms Agar-Teehan that they would be returning to Cobargo and would stop along the way to collect medical supplies from her. The defendants arrived sometime around News Years Day in 2020 to collect the supplies, during which time there was a further conversation about the Cobargo Property.
The defendants were concerned that the fires had destroyed the property and spoke of needing to get insurance money from the plaintiff. Ms Agar-Teehan and, it seems, the second defendant set up a GoFundMe page to raise $20,000 for a temporary caravan or other structure in which the defendants would live while they were up there.
In about January/February 2020, there was another conversation during which the second defendant accused Ms Agar-Teehan of “ruining everything” and said she was “going to mess all of this up” because of a post in which she had said that the defendants were independent from Wild2Free. The second defendant demanded that the post be taken down as they needed “to stay friends and keep [the plaintiff] sweet because they needed the insurance money”.
Leading up to that conversation, Ms Agar-Teehan had been confused when she saw a Facebook post in which the plaintiff was seeking to raise funds for the two properties, Runnyford and Cobargo. The second defendant had informed Ms Agar-Teehan that the defendants had “nothing to do with Wild2Free” and, consequently, information was placed on the GoFundMe page to the effect that Cobargo was independent of Wild2Free.
It is unclear from the evidence [24] whether the reference to taking the post down related only to that particular information or the whole of the GoFundMe page.
During the same conversation, Ms Agar-Teehan enquired as to the manner in which the insurance monies would be payable and why it would be payable from the plaintiff if the defendants owned the Cobargo Property. The second defendant informed Ms Agar-Teehan that it was “complicated”, to which she responded that she could not understand and the defendants “either own something or you don’t”.
Ms Pragnell is a resident of Western Australia and runs a wildlife sanctuary, Karlup Animal Sanctuary, which takes in wildlife and abused and abandoned farm animals. She came to know the plaintiff through Facebook and contacted her when Ms Pragnell had some queries about kangaroos. Ms Pragnell also offered assistance to the plaintiff after the fires, as Ms Pragnell had a similar experience in Western Australia some years earlier.
Ms Pragnell learned of the fires in New South Wales because she follows the webpage ABC NSW South East, amongst other media outlets. She also follows the ARC Facebook page, which is a popular source of information.
The sixth and seventh impugned publications, being posts on the ABC South East NSW Facebook page, were seen by Ms Pragnell in or about August 2020. When she saw the posts, Ms Pragnell told the plaintiff of them. She had others talk to her about the posts and one, in particular, told her that she had read them. The number of persons who discussed the matter with Ms Pragnell is unclear but seems to be four or five such persons.
Ms Pragnell also saw the fifth impugned publication and the comments of which complaint is made, being the comment under the name of the first defendant and the comment under the name Paula Griggs to which it was a response. The posts in the fifth impugned publication were seen at or about the same time as were the sixth and seventh impugned publications, namely about August 2020, and were subject to the same conversations the witness recalled occurred in relation to impugned publication six and seven.
Impugned publication 5 is a national publication by a national organisation and is, on Ms Pragnell’s experience, read throughout Australia.
Ms Pragnell also testified that she had received a message seemingly from the second defendant on 5 September 2023. [26] This is not an impugned publication but is said to be relevant as it is part of the “campaign” about which the plaintiff complains. The message refers to the defamation trial currently before the Court; Ms Pragnell’s alarm at the notion that a charity would put money into buildings on property they did not own; and alleging that Wild2Free had put the major part of the $700,000 bushfire fundraiser into buildings on land it did not own, being the buildings on the plaintiff’s property for which Wild2Free is paying $1,000 per week to allow the kangaroos to live on the plaintiff’s property.
When Ms Pragnell received this message, she took a screenshot of the message and sent it to the plaintiff.
Ms Pragnell received information, which she sought to verify with the plaintiff, that the defendants were seeking $500,000 to build a house to put on the Cobargo Property, which did not belong to the defendants. Ms Pragnell had seen plans and photographs of the joey building constructed by the plaintiff at Runnyford and the building is “transportable”. [27]
Ms Griggs volunteered at the Little Urchins Sanctuary about which evidence was given by Ms Agar-Teehan.
Ms Griggs identified her post on the ARC Facebook page which, on her best recollection, was posted in about July or August 2020. Sometime a little later, Ms Griggs was notified that there was a comment on her post and she opened the fifth impugned publication. On seeing the first defendant’s comment, Ms Griggs notified Ms Agar-Teehan and the plaintiff.
The post was the subject of comment from a few rescue people who work with her for Wild Life Rescuers Inc in Bundoora, Victoria. She is aware that the ARC Facebook page is a well-followed page.
Mr Sharp is a wildlife photographer and, from time to time, takes photographs for Wild2Free which are used in annual reports and promotions. Prior to being a wildlife photographer, Mr Sharp was a guitar technician and knew of the plaintiff by reputation in the music industry. She had a very good reputation and managed The Living End, which was a very famous band.
Mr Sharp came to know the plaintiff in or about 2017. Mr Sharp became a member of Wild2Free in 2019 and a committee member in December 2022, a position which he held for approximately 12 months.
Mr Sharp saw the ARC Facebook page, which is part of the fifth impugned publication, [28] in about August 2020. He discussed the post with the plaintiff. He believed that the ARC Facebook page was widely read and well known within the animal welfare communities.
He also saw the posts on the Facebook page of the ABC South East NSW, which are impugned publications 6 and 7, [29] also in about August 2020. He discussed those posts with the plaintiff as well. At the time, the ABC South East NSW Facebook page was widely read.
Apart from the plaintiff, Mr Sharp had conversations with three others about the allegations concerning Wild2Free and/or the plaintiff. Others commented, one on another Facebook page, on the general allegations about Wild2Free.
According to Mr Sharp, there was a noticeable change in the plaintiff following the posting of impugned publications 5, 6 and 7. When Mr Sharp first met the plaintiff, she was happy, positive, enthusiastic and passionate. Now, she is almost the opposite, and he observed from 2020 onwards that her mental health and wellbeing, as well as her physical health, deteriorated.
Mr Simon Orbell is the plaintiff’s neighbour at Runnyford and first met her at the opening of the Runnyford Rural Fire Service shed.
He recalled the bushfires in 2019/2020 and described the impact of the bushfires on his property and on the plaintiff’s property. As is obvious from the fact that they are neighbours, the properties of each of them are adjacent and the State Forest boarded his property but not the plaintiff’s property. He confirmed the evidence otherwise given by the plaintiff that Mr Orbell assisted the plaintiff and her carer to evacuate by boat during the bushfires.
He was aware of the configuration of the plaintiff’s property prior to the fires and described it as a “professional facility for caring for kangaroos”. It had a dispensary with medications and bandages together with other rooms set up for the care of joeys and kind of paddock arrangements. At least two or three bedrooms at the front of the house were turned into rooms for joeys. There was a protected facility outside, a caged-in area, where joeys were bottle-fed.
Mr Orbell became a member of Wild2Free and a Committee member from October 2019 until August 2020. The Committee meetings were held by audio visual link, at least partially because it was during the COVID-19 lockdown.
In that year, there were robust discussions of the complaints by the defendants about the governance and running of the charity, Wild2Free, and about the plaintiff. At the time, the defendants were also committee members.
Prior to June 2020, Mr Orbell received copies of emails from the defendants relating to allocations of money from insurance and other such matters, reference to which has been made earlier in these reasons.
In April 2020, he read the first impugned publication which was sent to an email address shared between Mr Orbell and his partner. He discussed the publication with his partner and then with the plaintiff. His initial reaction on reading the contents of the publication was that the plaintiff may be acting dishonestly and may have had something to hide.
Mr Orbell was also shown the second, third and fifth impugned publications by his partner. He did not seek to be renominated to the Committee in August 2020 as he did not want to be associated with Wild2Free.
Since August 2020, there has been a noticeable change in the plaintiff and the manner in which she has related to Mr Orbell. Previously, the plaintiff was quite assertive and knowledgeable and a little abrasive. After August 2020, she became less confident, seemed indecisive and helpless. She floundered a bit.
Yana del Valle is the partner of Simon Orbell and the neighbour of the plaintiff. She and her husband live in Canberra and Ms del Valle is an architect designer in residential work. Ms del Valle is a member of the Animal Defenders Office, a community legal centre for animal rights; the Animal Justice Party, a political party; and the President of the ACT Wildlife Incorporated, which is a wildlife rescue rehabilitation and release organisation licensed to release, capture or rescue and rehabilitate wildlife. She is also a member of Wild2Free.
Ms del Valle was familiar with the configuration of the plaintiff’s property. Part of the house was dedicated to kangaroos – there was a joey room; a soft release enclosure; and several kangaroos. There was a room set up specifically to provide medicine, medications, sterilising bottles and the like to take care of wildlife. Ms del Valle was impressed by the setup and volunteered several times at the Runnyford Property.
The bushfires occurred at the end of 2019 and the beginning of 2020, and Ms del Valle became a committee member for Wild2Free in or about October 2019. She left the Committee on 5 August 2020 at the AGM.
In the time that Ms del Valle was a member of the Committee of Wild2Free, the defendants were also members of that Committee, as was the plaintiff. She received, during that time and seemingly in that capacity, impugned publications 1, 2, 3 and 4. Ms del Valle considered that the first impugned publication was threatening and untrue, and she forwarded it to the plaintiff. She received the other emails from the plaintiff.
As to the accusation in relation to the American Red Lion Disaster Fund, being impugned publication 2, Ms del Valle spoke with the defendants about the allegation and contacted the organisation asking if anyone had contacted it for a donation. A response was emailed to her. [30] The terms of a complaint to the Department of Fair Trading by the defendants were known to Ms del Valle who corresponded with the Department and received a response. [31]
Ms del Valle considered that the third impugned publication was trying to defame Wild2Free and stop someone from nominating.
Prior to receiving the first impugned publication, Ms del Valle received a number of emails from the defendants requesting financial documents and making allegations against the plaintiff. She forwarded the emails to the plaintiff with notations requiring or requesting a response which was provided. [32]
Ms del Valle also saw the fifth impugned publication which she considered was tainting Wild2Free. She knew that the first defendant’s claim that there was one joey was incorrect as she had seen eight or nine on the plaintiff’s property. She described the ARC Facebook page as widely read with a readership in the hundreds.
Since 2020, there has been a discernible change in the plaintiff’s demeanour and behaviour. Ms del Valle described her as “totally broken”. [33] Ms del Valle’s understanding at the time that she was a committee member and in relation to the fundraising activities was that Cobargo was part of the Wild2Free organisation, and the fundraising was undertaken to compensate for the losses at both Runnyford and Cobargo.
Ms Blaikie has known the plaintiff since the 1990’s, when she was involved with bands. The plaintiff had a reputation of somebody who was very honest, hardworking, diligent and was very professional.
Ms Blaikie became aware that the plaintiff became involved with the wildlife sanctuary and in June 2020, Ms Blaikie became a member of Wild2Free and remains a member. At that time, namely June 2020, or perhaps one or two months later, Ms Blaikie became a member of the Committee of Wild2Free. On 5 August 2020, Ms Blaikie became Vice President of Wild2Free.
Ms Blaikie became aware of complaints made by the defendants to the ATO in relation to DGR status and to Services NSW in relation to Wild2Free’s compliance with the regulatory framework. She recalls that Wild2Free received a letter from the ATO to the effect that there was no issue with Wild2Free’s DGR status.
As to the complaint to Services NSW, the Committee of Wild2Free considered that it was eligible for the grant of $50,000 for which it had applied and which been granted, but because of the relentless attack in relation to it, considered it wise simply to return the money.
Ms Blaikie was also aware of complaints to Fair Trading NSW in relation to allegations of the misuse of fundraising money. This complaint, as well as the earlier two, as has been earlier stated, emanated from the defendants. It is not the subject of these proceedings as a matter complained of, and the complaint to Fair Trading NSW was also dismissed by the Department.
Ms Blaikie saw the first five impugned publications at Committee meetings where they were discussed.
Since 2020, Ms Blaikie has observed a change in the plaintiff’s demeanour in that the plaintiff is now a “significantly diminished version of herself” and seems to have “prematurely aged”. The plaintiff second guesses herself; is much meeker when she speaks; is less decisive; and is very much a shadow of her former self. Before the publications, the plaintiff, in the opinion of Ms Blaikie, was very decisive, strong, passionate, confident and inspirational.
Ms Davies-Morgan is a finance consultant who has known the plaintiff for about 30 years. She met the plaintiff through the music industry where the plaintiff had a reputation as a very highly skilled and admired manager who was very well-respected and very good at her job.
She became reacquainted with the plaintiff when Ms Davies-Morgan became interested in Wild2Free. Ms Davies-Morgan became a committee member of Wild2Free on 5 August 2020 and took up the post of treasurer which she remains in to this day.
Ms Davies-Morgan became aware of the complaint made by the defendants to Fair Trading NSW about compliance with the rules relating to charitable fundraising. Ms Davies-Morgan was the primary person responsible for dealing with that investigation. For that purpose, she gave the officer of Fair Trading access to the accounting software on a read-only basis and answered any questions he had over the twelve-month period of the investigation. The result of the investigation, according to Ms Davies-Morgan, was that the officer found no instances of wrongdoing.
Ms Davies-Morgan also became aware of an investigation by the ATO, although she was not the primary officer responsible for the issues associated with the DGR status of Wild2Free. Ms Davies-Morgan made one small recommendation that Wild2Free send the audited financials to the ATO, and ultimately received the findings through the President, the plaintiff. The ATO advised Wild2Free that there were no issues associated with the DGR status.
Ms Davies-Morgan was also made aware of the investigation by Services NSW in relation to a grant of $50,000 for which the plaintiff applied. Ms Davies-Morgan was not involved in that investigation because it occurred prior to her involvement on the Committee. Nevertheless, she was aware that the Committee recommended that Wild2Free return the funds to Services NSW, even though the Committee believed that the funds were legitimate.
Ms Davies-Morgan was shown impugned publications 1, 2 and 4. She did not see the first two impugned publications at the time they were sent, but saw them at a later date as a committee member.
The fourth impugned publication is an email sent to Ms Davies-Morgan on 15 July 2020 which was unexpected and unsolicited. She read this email on the day it was sent, and it was received just after Ms Davies-Morgan nominated to become a committee member. When she received the email, she gave it very little thought and discounted it immediately.
From the time Ms Davies-Morgan knew the plaintiff in Melbourne, the plaintiff was “very competent, did not suffer fools gladly, very decisive, very driven, extremely hard worker, it was not uncommon for her to do very long days”. [34] The plaintiff was very loyal to her artists and very fierce in her business dealings if she felt compromised.
Ms Medwell resides in Victoria and operates the Redbox Wildlife Shelter, which primarily cares for kangaroos and offers free veterinary services to other wildlife shelters in the region. The Redbox Wildlife Shelter also engages in fundraising through their website and through social media. The funds raised are used for kangaroo care and the veterinary clinic. Through its social media activities, Redbox Wildlife Shelter essentially directs readers to its website for donations and sponsorships. The Shelter does not conduct direct fundraising on social media.
Ms Medwell knows the defendants and discussed their plans to purchase and run the Wildlife Shelter at the Yowrie Property. During the 2019/2020 bushfires, Ms Medwell’s husband, Scott, helped clean up the defendants’ property and Ms Medwell started a GoFundMe campaign to raise funds for the defendants. The campaign quickly met and exceeded its target of $20,000 and ultimately raised over $120,000. Ms Medwell managed the administration and communication for the campaign.
There was a dispute between Ms Medwell and the defendants over the information provided on the GoFundMe page. The dispute between Ms Medwell and the defendants centred on information provided by the defendants relating to their ownership of Cobargo and contrary information provided by the plaintiff and Ms Agar-Teehan. Eventually, Ms Medwell walked away from the GoFundMe page and wished the plaintiff and the defendants well.
Redbox Wildlife Shelter does not have DGR status.
There is little controversy as to the fact of publication of the material of which the plaintiff complains. The first impugned publication was an email sent by the defendants to Yana del Valle and Simon Orbell at the same address. It was sent by one or other of those recipients to the plaintiff and was circulated to members of the Committee of Wild2Free and discussed at the meeting at which it was circulated. There is no evidence that it was otherwise shared or the subject of discussion.
Similarly, the second impugned publication was an email sent by the second defendant utilising the joint email address of the defendants to Janelle Babington. It was, at least by inference, published in Wilmington, North Carolina, USA where it was read by Ms Babington, who sent it to the plaintiff.
The plaintiff circulated it to the members of the Committee of Wild2Free, where it was discussed at a Committee meeting. I do not consider that, on the balance of probabilities, the document was further distributed or published. Nor do I consider that it was the subject of further discussion, other than discussion initiated by the plaintiff or other members of the Committee, not being the defendants.
The third impugned publication, similarly, was an email sent to Ms Margaret Parke by the defendants using their joint email address. It was published in the sense that it was read by Ms Parke.
Ms Parke forwarded it to the plaintiff and, as with the other two previous publications, it was circulated to members of the Committee of Wild2Free and discussed by the Committee at a meeting. Again, the evidence does not satisfy the Court that it was discussed beyond that situation nor further republished.
The fourth impugned publication was an email sent by both of the defendants to Anita Davies-Morgan. Like Ms Parke, Ms Davies-Morgan was a person who sought to nominate to the Committee of Wild2Free.
Ms Davies-Morgan read the publication which, as a consequence, has been published and forwarded the publication to the plaintiff who distributed it to members of the Committee at a meeting of which it was discussed. Similarly, to the previous publications, the Court is not satisfied on the balance of probabilities that the publication was otherwise the subject of discussion or republication.
The fifth impugned publication is in two parts. The first aspect of it is a post by the ARC with a photograph of a joey and a fire trailer. Both the joey and the fire trailer went by the name “Riley”. This aspect of the post extols the virtues of Wild2Free. This aspect of the fifth impugned publication had 189 readers, which resulted in 21 shares and 14 comments.
To this post, Paula Griggs, a witness in the proceedings, and others, wrote comments that were complimentary of Wild2Free. One of the comments was a post under the heading of Gary Henderson, the first defendant. The Court is satisfied that the first defendant posted this comment. Further, the Court is satisfied that the post was read and, therefore, published.
The determination of whether material is defamatory is not determined subjectively but is determined objectively by the factfinder. It matters not what the plaintiff considers is the meaning of the words used, except to the extent that it may be a factor in determining the hurt suffered and the level of damages to be awarded if the plaintiff were to be successful.
It may be, in circumstances where a defamatory meaning is incapable of arising, that the judicial officer may strike out a pleading prior to the trial. Otherwise, the question whether material is defamatory is for the factfinder at trial.
There are two different ways in which a published matter may be defamatory. First, it may give rise to a “false innuendo”, being the natural inference arising from the words used. Secondly, it may give rise to a “true innuendo”, where the defamatory meaning arises from extrinsic facts not contained within the publication itself.
The test to be utilised in determining whether a publication is defamatory or gives rise to defamatory imputations has been rehearsed on a number of occasions. The term “imputation” is used in its ordinary sense and means the “‘action of imputing or charging; the fact of being charged with a crime, fault, etc.’; in short, an accusation or charge”. [35]
The meaning is the meaning conveyed to the ordinary, reasonable reader. It is how the ordinary, reasonable reader (in which term is included the listener or observer in the case of visual or audio publications) understands the matter and that which the matter conveys to such a person.
The ordinary reasonable reader, while necessarily a fictional character, is not quite the same as the “reasonable man (sic)”, or the passenger on the Clapham or any other omnibus in the law of negligence. The Courts recognise weaknesses, and, in this area, the notional reader is a person half-way between the unusually suspicious and the unusually naive. [36] This person is essentially fair minded and reasonable. [37] In the words of the Court of Appeal:
“The central construct is the ‘ordinary reasonable reader’, in whose eyes the meaning of published matter is judged: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506. This reader has certain traits: they are of fair, average intelligence, are neither perverse, nor suspicious of mind or avid for scandal: Lewis v Daily Telegraph Ltd [1964] AC 234 at 260. They do not live in an ivory tower and they can read between the lines in light of their general experience of worldly affairs.” [38]
Thus, while people have different outlooks on life and different attitudes, some unusually suspicious and some unusually naïve, the decision-maker must “envisage people between these two extremes and see what is the most damaging meaning that they would put on the words in question”. [39]
Bearing in mind this approach, it is necessary to examine the terms of each of the publications and whether each of the pleaded defamatory imputations arise. Some of the imputations are either identical or so similar as to be substantially the same and, assuming an imputation arises, damage would run only in relation to the single imputation.
There is no suggestion of a false innuendo in relation to the first impugned publication or any other imputation. The ordinary natural meaning of the words used in the correspondence complained of convey the imputation that the plaintiff engaged in “fraudulent conduct” and that Wild2Free was conducted by the plaintiff as a private fundraiser.
As a consequence, pleaded imputations (ii) and (iii) in relation to impugned publication 1 plainly arise. Pleaded imputation (iv) is the same or substantially the same as pleaded imputation (ii). I do not accept that pleaded imputation (i) arises in any way separately from or substantially different from that which is pleaded as imputation (ii).
In relation to impugned publication 2, the earlier email in time, which is numbered paragraphs 12 through to 14 in the annexure to the Amended Statement of Claim, is, in terms of the cause of action, more problematic and gives rise on its ordinary and natural meaning to imputations that the plaintiff has misused funds donated to Wild2Free by the American Red Lion Disaster Fund, by not using those funds to help animals (imputation (i)); that the plaintiff is involved in fraudulent activity along with Ms Babington, Little Urchins and Red Box Shelter (imputation (iii)); and that the plaintiff fraudulently obtained funds at the expense of the Cobargo Wildlife Sanctuary (imputation (v)).
While an allegation is made that there was $600,000 in the account of Wild2Free at the time that the donation from the American Red Lion Disaster Fund was obtained, it is not clear that there is any allegation of fraudulent conduct by the plaintiff towards the American Red Lion Disaster Fund and I do not consider that pleaded imputation (ii) arises. Nor is it clear that the plaintiff is alleged, in this correspondence, to have been involved in claiming that Little Urchins and Red Box Shelter were in an area affected by the 2019 Australian Wildfire, and therefore, pleaded imputation (iv) does not arise.
The terms of impugned publication 3 and 4 are relevantly identical, except as to the addressee, and are dealt with by the Court together. Those publications give rise, on their face, to a number of imputations, being: (i) that the plaintiff ran Wild2Free purely to raise funds for herself and did not offer animal rescue services; (ii) that the plaintiff is seeking to conceal from the ACNC, Fair Trading and the Police, the contents of an application made on behalf of Wild2Free which resulted in the charity receiving $50,000 from the NSW Government, but the correspondence does not impute that the plaintiff knew the application to the NSW Government Fire Relief Fund was made illegally, nor that the plaintiff was aware that there was no entitlement to the grant; (iii) that the plaintiff orchestrated an unsubstantiated official complaint to Wild2Free, but again, there is no imputation that while unsubstantiated, the complaint was “false”; (iv) while the correspondence alleges that there is something wanting or illegal with regard to the allocation of funds raised through Wild2Free in relation to their sanctuary rebuild appeal and a failure to address a legitimate reimbursement claim, it is not suggested that the plaintiff has “misappropriated funds” received through that rebuild appeal; (v) the plaintiff tried to conceal or is concealing the contents of the application made for the $50,000 grant, but there is no suggestion that the plaintiff knew that Wild2Free was not entitled to the grant in the correspondence; and (vi) the plaintiff did not facilitate the allocation of funds raised in the rebuild appeal to address legitimate claims.
The proceedings in question were commenced in 2020 and the allegedly defamatory publications occurred in 2020. As a consequence, the law that applies to the determination of liability and damage is the law that existed prior to the amendments to the Defamation Act 2005 (NSW) that were promulgated in 2020 and commenced in 2021. [40]
Relevantly, the provisions of ss 10A, 12A and 12B do not apply to the determination by the Court. No party suggests otherwise. Because the provisions of s 10A of the Defamation Act do not apply to the proceedings, it is unnecessary for the plaintiff to show “serious harm”. Rather, as the law existed prior to the commencement of the amendments, there is an assumption of harm. There may, under the current regime, still be an assumption of harm in defamation proceedings, but such assumption, if it were to exist, does not now relieve a plaintiff from proof of “serious harm”.
The proceedings, being civil in nature, require the party with the onus of proof to satisfy the Court on the balance of probabilities. So much is clear from earlier remarks in these reasons. To the extent that the defendants rely upon justification and seek to prove the truth of that which has been alleged and that truth involves fraud or an allegation of fraud or fraudulent conduct, the seriousness of the allegation, if sought to be proved to be true, is a matter to which the Court has regard in determining whether it is satisfied on the balance of probabilities. [41]
In Neat Holdings, the majority said:
“When an issue falls for determination on the balance probabilities and the determination depends on a choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but by an unbalanced standard. The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities.” [42]
Nevertheless, whether or not one applies the cautionary note, which is sometimes misrepresented as a standard deriving from the comments in Briginshaw, supra, the Court or factfinder must nevertheless have an actual persuasion. While the degree of satisfaction at which a factfinder must arrive in applying the civil standard of proof on the balance of probabilities may vary according to the gravity of the fact to be proved, [43] the onus of proof still requires the factfinder to be satisfied.
In that sense, the Court is not choosing which of two possibilities is more likely. It must be satisfied, on the balance of probabilities, that one of them occurred.
The issue was dealt with by Gageler J (as his Honour then was) in Henderson, [44] where his Honour extracted and cited with approval two previous comments of the High Court on the question of the civil standard of proof. His Honour said:
“87 Two explanations of the ordinary civil standard of proof, although lengthy, are usefully recalled in this context. One is that of Dixon CJ in Murray v Murray, with reference to Briginshaw v Briginshaw:
‘What the civil standard of proof requires is that the tribunal of fact, in this case the judge, shall be ‘satisfied’ or ‘reasonably satisfied’. The two expressions do not mean different things but as in other parts of the law the word ‘reasonably’, which in origin was concerned with the use of reason, makes its appearance without contributing much in meaning. However, its use as a qualifying adjective seems to relieve lawyers of a fear that too much unyielding logic may be employed. But the point is that the tribunal must be satisfied of the affirmative of the issue. The law goes on to say that he is at liberty to be satisfied upon a balance of probabilities. It does not say that he is to balance probabilities and say which way they incline. If in the end he has no opinion as to what happened, well it is unfortunate but he is not ‘satisfied’ and his speculative reactions to the imaginary behaviour of the metaphorical scales will not enable him to find the issue mechanically. The passages cited in Briginshaw's Case … show that in English law there never were more than two standards of persuasion … But they show that from the beginning of the nineteenth century courts did not impose on the parties, or one may perhaps say claim from the parties, the same strictness or exactness of proof about all questions arising in a civil trial without regard to their triviality or importance, the unlikelihood or the probability of their occurring. In other words the tribunal might reason upon the evidence to a conclusion as a responsible and sensible man would in all the circumstances.’
88 The other is the often repeated explanation of Dixon, Williams, Webb, Fullagar and Kitto JJ in Bradshaw v McEwans Pty Ltd:
‘The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while [in] the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available it is enough [if] the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture … But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise.’
Applying those principles to the civil case before them, in which the plaintiff bore the legal burden of proving harm to have arisen from the defendant's negligence, their Honours went on to explain:
‘Once the plaintiff offers evidence which standing by itself raises a higher degree of probability that the harm arose from negligence for which the defendant is responsible that will support a verdict unless the defendant goes into evidence. … All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.’” [Footnote references omitted.]
While the judgment of Gageler J in Henderson, supra, was in the minority, the principles there stated do not suffer from that circumstance. Fundamentally, it is necessary for the party bearing the onus of proof to satisfy the Court of that which is required to be proved.
The party bearing the onus of proof may prove a fact by direct means or by indirect means. In other words, the party may adduce evidence that directly proves the existence of that fact or renders it more probable than not, which, relevantly, is the same thing. Such proof may be achieved by a single piece of evidence to that effect or by a combination of different parts of evidence, the effect of which is that the fact, being a fact in issue in the proceedings, is more probable than not.
Ultimately, the Court must be satisfied, on the balance of probabilities, of the existence of the fact in issue either in the manner just described or on the basis of inferences that may arise from direct or indirect evidence. Once satisfied on the balance of probabilities of the existence of the fact, the existence becomes certain.
The drawing of inferences is nothing peculiar or esoteric. It is a process that has been described as a matter of “commonsense” or “plain commonsense”. [45]
In Fabre v Arenales, Mahoney JA said:
“A factual inference (if A, B, C exist, Z exists) is open if, to quote the words of Knox CJ and Dixon J, ‘human experience would be contradicted if’ Z did not exist: see the cases referred to in Jones v Sutherland Shire Council at 222 [et seq]. It follows that the inference will or may be drawn if general human experience (plain commonsense) will not be contradicted if the inference be drawn.” [46]
Nevertheless, as Windeyer J noted in Jones v Dunkel, it is easy to confuse mere conjecture with reasoned conclusion. [47]
The classic description of the manner in which a rational inference may be drawn was given by Sir Frederick Jordan CJ in Bell v Thompson [48] and in Carr v Baker. [49] In Carr v Baker, Sir Frederick Jordan CJ said:
“In a Court of justice, the question whether a particular fact has been proved must be determined by considering evidence and seeing whether the existence of the fact is probable in the light of that evidence. In a civil matter, it is necessary, in order that a fact may be regarded as established, that the evidence should be such that it is more probable that it exists than that it does not. The position is the same whether the evidence is direct or circumstantial. … In a criminal matter it is necessary, if the fact is to be proved by the prosecution, that the evidence should be such that not only is it more probable than not that the fact exists, but that there is no reasonable probability that it does not: it must be proved that it is so probable that no reasonable doubt exists that it is the fact. … It has been clearly and emphatically laid down … that in no case can a fact be regarded as established unless its existence is at least a reasonable inference from some matter proved in evidence. It is not sufficient that there should be some ground for conjecturing that the fact exists. There must be evidence affording ground for treating it as existing as a matter of inference and not of conjecture. … The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability – a mere scintilla of probability such as would not warrant a finding in a civil action… to such practical certainty as would justify a conviction in a criminal prosecution. … It is well established that if there is no piece of evidence which, taken at its highest, is more than equally consistent with the existence and with the non-existence of a fact, it cannot be treated as established. … This situation may arise in two different ways. First, there may be no piece of evidence which suggests that the existence of the fact is more than possible. In such a case, since there is nothing to show whether the existence of the fact is probable or not, it is just as likely that it does not exist as that it does. There is no probability either way; and nothing equals nothing. … There may, however, be a case in which the evidence is such that in some aspects it raises a probability that the fact exists, and in other aspects, it raises a probability that it does not. If, in such cases, the two countervailing probabilities are in perfect equipoise, the fact cannot be treated as established.” [50] [Citations omitted.]
The circumstance that the Court does not believe all of the evidence of some of the witnesses does not result in proof of the opposite to that which has been asserted by the witness. On the contrary, if there were no other evidence on the issue, disbelieving the evidence of a witness results in the proposition that there is no evidence one way or the other on that fact.
Such a proposition is trite but there is authority on the point. [51] A simple example will suffice. If a witness were to testify that the sky is blue, disbelieving the witness does not prove that the sky is not blue. In the current proceedings, the failure of the defendants to give evidence themselves is relied upon by the plaintiff to seek to have the Court draw inferences from that failure. [52]
As the Court has sought to make clear, in order to rely on the principles established by the High Court to draw an inference that a fact in issue exists, there must be evidence from which that inference is capable of being drawn. The principles in Jones v Dunkel do not allow the Court to conjecture. Nor do the principles permit the Court to fill gaps that might otherwise exist in evidence.
The inferences that may be drawn from the principles stated by the High Court in Jones v Dunkel are in two categories. Firstly, it allows a court more readily to draw inferences that otherwise arise in proceedings. Secondly, where a party would be expected to adduce evidence that is absent, it allows the Court to draw an inference that nothing in the absent testimony or evidence would have assisted the case of the party that would have been expected to call the witness or adduce the evidence.
A party that does not bear the onus of proof on a particular issue is entitled to sit on its hands and rely upon the failure of the party bearing the onus to prove its case.
Prior to the commencement of the 2020 amendments to the Defamation Act, a plaintiff in defamation proceedings bore the onus of proof in relation to the matters complained of, being the content of the allegedly defamatory material; the circumstance that the material was published; that the material is defamatory; and that the material published was defamatory of the plaintiff. If special damage is sought, the plaintiff also must prove special damage and aggravated damage, if claimed.
It is for the defendant to prove the defences, including justification, being the truth or contextual truth of the imputations conveyed. If a defendant were to seek to prove a defence which is destroyed by malice, then it is for the plaintiff to prove malice.
One other aspect should be noted. In the absence of a party calling evidence, which is available to it, and which it would be expected the party would call, the Court may more readily accept evidence otherwise adduced to the contrary. In one sense at least, this is a truism. If evidence were to remain uncontroverted, it is more easily accepted. However, where evidence could be contradicted and was not, then the Court can more readily draw the conclusion that the evidence adduced is reliable and/or truthful.
It is unnecessary to deal with most of the issues on which the plaintiff bears the onus of proof. The Court has already dealt with the publication of the matters complained of and the imputations that arise from those publications.
The Court has also dealt with the test in determining whether an imputation arises and the manner in which a publication is construed and from whose perspective. It is the objective meaning of the publication, from the perspective of the ordinary reasonable reader. It is not the subjective understanding of the person defamed or of the author of the publication.
Most of the other aspects do not, except in reply, require the plaintiff to prove anything. In defamation under the law as relevant to these proceedings, damage is a presumption. [55] Nevertheless, the plaintiff seeks aggravated damages and, in that respect, relies upon malice.
The plaintiff’s submissions, after stating well-known principles as to the presumptions as to reputation, the presumption of falsity and the prior good reputation, recite the well-known purposes of general damages in defamation proceedings. Those purposes are the consolation of the personal distress and hurt caused to the person defamed; recompense for the damage to personal and business reputation; and vindication of reputation. [56]
The damages awarded by the Court must be such as to vindicate the plaintiff and, in that sense, the Court is required to deal with the amount of damage and set that amount at a level at which those that have read or have heard of the defamation will understand that the plaintiff has been vindicated. [57]
In Crampton v Nugawela, [58] the Court discussed damages for the “grapevine effect” upon which the plaintiff relies in these proceedings. In his judgment, Mahoney ACJ said:
“In this regard, the grapevine effect and the ‘lurking place’ observation of Lord Hailsham are relevant. The award must be sufficient to ensure that, the defamation having spread along the grapevine to which Miss (sic) McColl SC referred, and being apt to emerge ‘from its lurking place at some future date’, it was ‘sufficient to convince a bystander of the baselessness of the charge’.”
The reference to Lord Hailsham in the foregoing passage is a reference to the well-known passage in Cassell, supra. The operation of the Defamation Act 2005 (NSW) has an effect on the foregoing principles.
There are two aspects of the Defamation Act that require noting at this point. Firstly, there is a cap on damages, pursuant to the terms of s 35 of the Act which, in relation to the timing of this defamation, does not require the Court to do otherwise than peg the damages, if the damages were assessed at more than the gazetted amount. Secondly, the Act requires the Court to ensure that there is a rational relationship between the harm sustained by the plaintiff and the amount of damages awarded, regardless of malice or any other state of mind. [59] It is only when the Court comes to assess whether aggravated damages ought to be awarded and the amount of said aggravated damages that malice is a relevant consideration.
The plaintiff’s submissions rely upon evidence of the prior good character of the plaintiff, even though it is a presumption that is accepted by the Court in the absence of evidence to the contrary. The Court has already summarised the evidence and the plaintiff relies upon the evidence of Mr Sharp, Ms Blaikie and Ms Davies-Morgan, each of whom attest, in slightly different areas, to the good reputation enjoyed by the plaintiff prior to the defamatory material. There is also evidence on the significantly adverse effect of the defamatory material on the health and wellbeing of the plaintiff, which I treat as “hurt” and damage.
As to the grapevine effect and the effect of publication and republication, the plaintiff submits that the evidence of Mr Orbell and Ms Del Valle testifies to the damaging effect of the publications on the plaintiff’s reputation. Each of them chose not to nominate or renominate for the Committee of Wild2Free. In the case of Mr Orbell, he testified that he did not want the position on Wild2Free to impact upon his public service career, because of the dispute within the organisation.
Next, the plaintiff relies upon the Facebook page of the ARC which was seen by Mr Orbell, Ms Del Valle, Ms Griggs, Ms Agar-Teehan, Ms Pragnell and Ms Blackney. Ms Blackney was not called and did not give oral evidence.
The plaintiff submits that there is an available inference that 189 people saw the post. However, the figure of 189 people is the number of people who saw the original Facebook post, not the comments of one or other of the defendants containing defamatory material.
Similarly, those that shared the Facebook site to other sites, which is 21, relates to those that dealt with the original content, not the comments by the defendants. Otherwise, the material in the fifth impugned publication has been dealt with previously.
As earlier stated, there is significant evidence as to hurt and distress. The plaintiff relies, in her submissions, on the evidence of Mr Orbell, Ms Del Valle, Ms Davies-Morgan, Ms Blaikie and Mr Sharp.
“In my opinion, the element of punishment is often a legitimate factor in an award of aggravated damages even in New South Wales … A jury which increases its award of damages in a defamation action commits no error if it thinks that the plaintiff cannot be properly compensated for the harm done to him or her unless the damages contain an amount to punish the defendant for the hurt which he or she has inflicted on the plaintiff or to deter the defendant from further defaming the plaintiff. Nor does the jury commit any error if it increases the damages because the conduct of the defendant towards the plaintiff arouses its anger or indignation.” [60]
“Although exemplary damages are unavailable in New South Wales, aggravated damages are available to the extent that they are compensatory in nature. That situation is brought about by s 46 of the Act which, by subs (2), limits damages recoverable in defamation to damages for ‘relevant harm’ (an expression which is defined by subs (1)), by subs (3)(a), excludes exemplary damages and, by subs (3)(b), provides that damages shall not be affected by malice or other state of mind of the publisher except so far as that malice or other state of mind affects the relevant harm. As Windeyer J acknowledged in Uren v John Fairfax & Sons Pty Ltd, there is an element of the punitive in aggravated damages at common law. Under s 46, by reason of the exclusion of exemplary damages, it is necessary to confine an award of aggravated damages to what is truly compensatory. In determining what is truly compensatory in that context, regard should be had to what was said in the joint judgment in Triggell v Pheeney. But, even then, we have difficulty in understanding how the mere absence of an apology can aggravate damages. Whereas publication of an apology may mitigate damage, thereby reducing the harm suffered by a plaintiff in a defamation case, and so reduce the damages awarded, the failure to publish an apology does not increase the plaintiff’s hurt or widen the area of publication. No doubt want of apology may be a relevant factor in establishing that a defendant is motivated by a desire to injure the plaintiff but that does not mean that want of apology itself aggravates the plaintiff’s injury.” [61]
I adhere to the view previously expressed, [62] and long held and oft repeated, that aggravated damages are compensatory only in that they are assessed on the overall conduct of the defendants which is improper, unjustifiable or lacking in bona fides and, as a consequence, has made the impact of the original wrongdoing on the plaintiff greater. It involves no element of punishment.
However, notwithstanding the comments of the majority recited above, the absence of an apology or, more accurately, a failure to apologise may contribute to the plaintiff's hurt feelings and, consequently, be a factor in the awarding of ordinary compensatory damages, particularly when the defendants in such a situation know the truth, or more accurately the lack of it, of the imputation. [63]
Ultimately, there is authority for the proposition that malice consists of one of three things: personal spite, an intention to injure the plaintiff without just cause, or knowledge of the falsity of what is said. [64] It may be that the foregoing does not cover all of that which may amount to malice and, to the extent not so covered, any improper motive may give rise to a finding of malice. It also includes the conduct of a trial by prolonged and hostile cross-examination of the claimant or by asserting a plea of justification which is bound to fail. [65]
Having made those comments, the Court notes that the plaintiff seeks damages, aggravated damages, interest on damages measured, in accordance with the authorities as between two and four per cent per annum from the date of a publication and a special order as to costs, to be argued after judgment.
The defendants first deal with the publication of each of the matters of which the plaintiff complains. As already stated, the defendants admit to the publication of impugned publications 1, 2, 3, 4 and 8, and the publication of the relevant comments in impugned publications 6 and 7 by the second defendant, expressly, informally and implicitly. [66] The defendants deny that 189 persons read impugned publications 6 and 7.
The defendants, in relation to impugned publication 5, submit that it is necessary for the plaintiff to show that the comments complained of were “downloaded”. It seems that the defendants are using the term “download” in a different sense to the manner in which it may otherwise by understood when referring to the effect of the judgment of the High Court in Gutnick. [67]
As the High Court made clear, defamation is concerned with damage to reputation caused by the publication of the defamatory material. No damage is caused until the material has been read and comprehended.
The majority in Gutnick said:
“Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act – in which the publisher makes it available and a third party has it available for his or her comprehension.” [68]
In that sense, “downloading” does not mean saving onto one’s computer. It refers to the viewing and reading, relevantly, of a post. Consequently, where there is a reply to a post, the Court must infer that the post has been read and, more probable than not, comprehended.
The submissions of the defendants then deal with the imputations conveyed, which have already been the subject of determination by the Court in these reasons. As already stated, the defamatory material is construed objectively on the basis that the entirety of the material has been read and understood by an ordinary, reasonable reader, as that term has been described earlier in these reasons.
The defendants claim qualified privilege at common law in relation to impugned publications 1, 2, 3, 4, 7 and 8. The publications have been described and consist of emails to one or two addressees and Facebook comments. The issue of qualified privilege of this kind which involves a community of interest between the publisher and recipient of the allegedly defamatory material was the subject of discussion by the Court as presently constituted in Cantwell v Sinclair. [69]
In that judgment, I set out some of the principles to be applied to qualified privilege of this kind. In essence, the law has not altered substantially, although the High Court has clarified the issue on one or two occasions.
Prior to Cush v Dillon*;* Boland v Dillon*,* [70] there were a series of cases in which qualified privilege had been a matter of controversy. [71] The controversy, which was largely evidenced in intermediate courts of appeal and before trial judges, related to the determination of whether there is a reciprocity of interest (assuming that the trial judge has embarked upon that process); whether the motive for the making of the statement is an improper one; and whether something said in the statement is irrelevant to the reciprocal duty/interest to publish and receive the statement.
After the clarification by the High Court in Cush v Dillon, the principles are well established. The High Court said:
“12 The defence of qualified privilege is based upon notions of public policy, that freedom of communication may in some circumstances assume more importance than an individual's right to the protection of his or her reputation. The question of whether the person making a defamatory statement was subject to some duty or was acting in the protection of some interest, in making the statement, is to be understood in this light.
13 It was therefore encumbent upon Mrs Dillon to establish that she had a duty to convey the information about the rumour to Mr Croft. She gave evidence that she felt such an obligation, but of course this could not be determinative of the question for the trial judge, namely whether there was a duty of a kind which created the occasion to make the statement, in which case the privilege attached to it. That question fell to be determined by a consideration of the positions of Mr Croft and of Mrs Dillon within the CMA, the nature and importance of the matters conveyed and the relationship of the defamatory statement to those matters. Mrs Dillon's evidence as to the sense of obligation she felt, if accepted, may be relevant to the question of malice. It will be necessary to say something more about the two questions and the relationship between them.
14 If the trial judge was satisfied that the occasion for a qualified privilege arose, it would then be necessary for Ms Cush and Mr Boland to prove that Mrs Dillon was actuated by malice in making the statement, in order to overcome the privilege. It may be seen from the passage from Toogood v Spyring above that the defence of qualified privilege is sufficient to overcome the law's presumption of malice (also referred to as ‘implied malice’), a presumption which is based upon the making of a false and defamatory statement. The protection given by the privilege is, however, lost if the person making the statement did so for an improper motive. ‘Express malice’ is the term of art used to describe the motive of a person who uses a privileged occasion for some reason not referable to the duty or interest pursued. In the joint judgment in Roberts v Bass it was said that the privilege is qualified by the condition that the occasion must not be used for some purpose or motive which is foreign to the duty or interest which protects the making of the statement.
15 His Honour the trial judge did not determine the question whether the occasion for the making of the statement by Mrs Dillon to Mr Croft was a privileged one. His Honour proceeded directly to consider the issue of malice. But that question cannot be approached in isolation, independent of a determination of whether there was present in the circumstances a duty or interest which would support the privilege. A conclusion of express malice requires a finding that the maker of the statement was actuated by some improper purpose or motive, which is to say one not connected to the furtherance of the duty or interest so found. The nature and the extent of the duty or interest must be considered before the question of malice is addressed. In Roberts v Bass, Gleeson CJ observed that the ‘kind of malice that defeats a defence of qualified privilege at common law is bound up with the nature of the occasion that gives rise to the privilege.’” [72]
(i) qualified privilege is based upon public policy, namely, in certain circumstances, freedom of communication is a more important aspect of democratic government than an individual’s right to protection of his or her reputation; [73] (ii) it is first necessary for a trial judge to determine whether there was a duty of a kind which created the occasion to make the statement to which qualified privilege attaches; [74] (iii) the determination of whether the occasion arose to which qualified privilege attaches is determined by consideration of the nature and importance of the matters conveyed, the relationship of the defamatory statement to those matters and the relationship between the maker of the statement and the person to whom the statement is made; [75] (iv) the relationship between the maker and receiver of the statement is a requirement of a reciprocity of duty or interest necessary to attract the defence of qualified privilege, meaning that the maker of the statement has a duty or interest in making it and the receiver of the statement has a duty or interest in receiving it; [76] (v) qualified privilege, if it were to exist, is defeated by an improper motive, otherwise termed “express malice”, being a reason for the making of a statement not referrable to the duty or interest pursued; [77] (vi) qualified privilege is also lost for so much of the statement that is not relevant and pertinent to the discharge of the duty or the safeguarding of the interest; [78] and (vii) while knowledge that a statement is untrue may be evidence of malice, neither lack of belief in the truth of the statement nor objective falsity of the statement is sufficient to destroy qualified privilege. [79]
Further, as was pointed out by the High Court in Bashford, [80] stating the principles at a high level of abstraction does not ease the difficulty in the application of the principles.
Having dealt with the principles to be applied in determining whether a qualified privilege exists of the kind to which reference has already been made, it is necessary also to deal with a different kind of qualified privilege, being a qualified privilege that arises as a result of an attempt to reply to attack. The latter premise of qualified privilege was discussed in Bashford, supra, and was further qualified by the High Court in Papaconstuntinos. [81]
The defendants rely upon the qualified privilege associated with a reply to attack for impugned publications 6 and 7, which are comments replying to earlier comments on the same Facebook page.
Further, the defendants rely upon an ABC News article, authored by Emily Baker and Claire Wheaton, which the defendants say attacks Cobargo Wildlife Sanctuary, and which enables them to reply to the attack in the manner about which the plaintiff complains and to rely upon qualified privilege. The article discusses the dispute between Wild2Free and the Cobargo Wildlife Sanctuary over money raised and criticises, at least to some extent, the past activities of Cobargo Wildlife Sanctuary in terms of its care for animals. [82]
The article was published on the ABC News website, which is a different website to the ABC South East NSW Facebook page upon which comments in impugned publications 6 and 7 were placed.
The defendants, in relying upon the qualified privilege that attaches to a reply to an attack, address the lack of evidence of improper motive, but in so doing refer to the plaintiff’s burden to prove that the defendants had acted dishonestly. Whilst dishonesty may establish malice, malice may be disclosed by a purpose that is not covered by the qualified privilege.
In dealing with the issue of malice, the defendants refer to paragraphs [2] and [3] of the plaintiff’s Reply and accept that, if proved, the matters there raised would amount to malice. However, the defendants point out that evidence has not been adduced to prove those allegations, and the plaintiff has refused to answer interrogatories directed to these issues.
On the issue of justification and the truth of the impugned publications, the defendants point to the evidence, summarised above, which they submit establishes the truth of the imputations. The defendants rely upon Exhibit A and the promotion flyer designed to encourage attendance at the fundraising concert.
The defendants also submit that the stated purpose of the fundraising did not result in monies going wholly to Wild2Free, nor in a 50/50 split as suggested by the plaintiff in evidence. Further, the defendants rely upon the circumstance that the plaintiff knew that at the time of the fundraising, which was promoted on the basis of animal rescue, Wild2Free was not licensed to rescue or to rehabilitate injured or orphaned native wildlife.
First, the plaintiff, in reply, deals with the publication of impugned publication 8 and the republication of it to some friends by the recipient. This issue of fact has already been dealt with in these reasons.
The plaintiff then complains that no evidence was called to prove that which was contained in the defendants’ submissions at paragraphs [2] and [3]. However, these submissions are inferences available from the material produced in evidence. Whether the inference should be drawn is a different issue.
The plaintiff bears the onus of proof of publication and the degree of distribution. The plaintiff relies upon the figure of 189 views which is a record on the Facebook page of impugned publication 5.
However, as already stated, the figure of 189 relates to the ARC Facebook post, not to the defamatory comments posted by the defendants in response. Further, the screenshot annexed to the Amended Statement of Claim records that impugned publication 5 is a reply to another comment. If the comment by the plaintiff in reply is intended to deal with the submissions as to the manner in which persons may view Facebook comments, the Court accepts that no evidence has been adduced relating to that issue.
The plaintiff in reply submits that a Jones v Dunkel inference is available. That which is available under the principles in Jones v Dunkel has already been the subject of discussion, but the submission of the plaintiff that the inference allows the Court to take the view that such evidence as may have been given “would have been adverse to that defendant” [86] is, as I have already stated, not an inference available under Jones v Dunkel. The Court accepts that the unexplained failure to tender documents is in the same category as the failure to call oral evidence, if that be a matter of controversy.
The reply deals with the imputations that are available and seeks to answer that which has been submitted by the defendants. The inferences available have already been the subject of comment in these reasons, as have the principles applicable to the manner in which the Court determines whether imputations arise.
The plaintiff then relies upon submissions as to the manner in which qualified privilege at common law is to be analysed and applied. The plaintiff relies upon well-known judgments of the High Court and the Court of Appeal on the issue. Again, the issue of qualified privilege has, to a limited extent, already been the subject of comment and will be the subject of comment later in these reasons in dealing with the consideration of the matters raised by the parties.
In an attempt to apply the principles to the circumstances arising in these proceedings, the plaintiff seeks to utilise the terms of impugned publication 8, and the correspondence earlier in time which led to the sending of the impugned publication, to show that the issues of qualified privilege are at a high level of abstraction and are not, properly analysed, relevant to the financial management of Wild2Free. Rather, they are concerned with, on the submission of the plaintiff, the failure to distribute significant funds from recent charitable contributions to Wild2Free to the defendants or their Sanctuary.
Some of the principles applicable to the determination of these proceedings have already been the subject of discussion in these reasons. There are, however, conclusions of fact and issues of principle that have not yet been the subject of discussion.
First, the plaintiff relies upon republication in a number of contexts. Recipients of emails sent the emails to the plaintiff and/or circulated the emails at a committee meeting of the organisation, Wild2Free. In some instances, the evidence of the alleged grapevine effect is confined to the republication. It is necessary to discuss the principles applicable to liability of the original publisher of a publication for any republication.
There are obvious examples in which republication is something that falls within the liability of the original publisher. Examples in the cases include the issuing of a press release to a mass circulation daily (or other media outlet), an interview with a journalist in circumstances where there are no restrictions on the republication and circumstances where there is express authority to republish. In those examples, the original publisher of the information can hardly be seen to complain about being rendered liable for the effect of the republication.
Ordinarily, each publication gives rise to a cause of action. [87] Thus, if a recipient of defamatory material publishes the defamatory material again, then the recipient, being the subsequent publisher, is liable for any defamatory content in the republication.
There are a number of statements of principle dealing with liability for re-publication, some of which differ in the detail as to the circumstances that would give rise to a liability in the original publisher for repeated publication. To some, it is necessary to show that the republication is within the reasonable contemplation of the defendant. [88] In Asghar v Ahmad, [89] Baker J suggested that liability for republication arose only if the defendant could be proved to have intended to encourage publication of the document or its contents. In my view, this is too narrow a view.
The classic rule was one that depended upon causation and required the defendant to have intended the words to be communicated to another or if the repetition of the words were the natural consequence of their publication. [90] In Speight, Lopes LJ also considered circumstances where there may be a duty on the recipient of defamatory information to communicate it further.
More recently, the tendency has been to deal with the issue of liability for republication on the basis of whether it is “just” to hold the defendant responsible for the loss caused by any republication. [91]
I take the view that if republication is reasonably foreseeable, intended, or the natural consequence of the defendants’ publication of them, rendering the defendant liable for the republication would be the just and reasonable result. In these matters, if the defendants intended for the publication of defamatory material to be republished, or it was the natural consequence of the original publication of the defamatory material or was within their reasonable contemplation, it would be just and reasonable to hold the defendants liable for any such republication.
“Qualified privilege gives no licence to defame. It denies the inference of malice that ordinarily follows from showing that false and injurious words have been published. If the occasion is privileged the further question which arises is whether the defendant ‘has fairly and properly conducted himself in the exercise of it’. In a trial of all issues in a defamation action by judge and jury, the question whether the occasion is privileged is a question of law for the judge; the question whether the occasion was used for the purpose of the privilege is a question of fact for the jury. That is, it is for the jury in such a trial to decide the issue of malice. If the judge rules that the occasion is privileged, ‘the burden of shewing that the defendant did not act in respect of the reason of the privilege, but for some other and indirect reason, is thrown upon the plaintiff’. But if the occasion is held to have been privileged, the question of malice will ordinarily remain to be answered. If that is so, it cannot be said that the defendant had some licence to defame.” [Footnotes omitted.] [93]
The High Court then dealt with whether there was, in the circumstances before them, a “reciprocity of duty or interest between the maker and recipient of the matter of which complaint was made”. The Court also dealt with the difference between the defence of qualified privilege on the one hand, and, on the other hand, the defence of fair and accurate reporting of court proceedings.
The two defences are separate and were developed separately and the mere fact, if it were the fact, that a publication inaccurately reported on court proceedings did not deny the availability of qualified privilege.
The High Court in Papaconstuntinos [94] discussed in greater detail the issue of reasonable occasion or exigency. In so doing, it distinguished observations in Bashford. The High Court held that it was unnecessary for a publication to be shown to be required to refer to some pressing need to protect the interests of the publisher. Where the defendants seek to justify a publication on the basis of the protection of the legitimate interests of the defendant publisher, there is no need for a pressing need to protect interests.
Further, self-interest does not operate to disqualify a defendant from relying upon qualified privilege to answer an attack. The publication concerned the proposed alteration in control of a rugby league club. The plaintiff was opposed to the proposed changes. The defendant and another were proposing the changes. The changes required a meeting of members in an Extraordinary General Meeting and two days prior to the meeting, the defendant sent out a letter which was said to be defamatory. The letter was addressed to the plaintiff’s employer, a union, which employed the plaintiff in his “day job”.
The plaintiff was also employed as a member of the coaching staff of the rugby league club and the publication suggested that the plaintiff was paid “well in excess” of the salary that normally would be paid or ought to be paid and suggested that the additional payments were made as “a reward for other activities or a method of channelling funds to the plaintiff or the union which employed him”.
At trial, the publication was held to be defamatory in a number of respects. The statutory defence of qualified privilege had not been raised. Instead, the defence of qualified privilege at common law was raised and the trial judge found that the recipients of the letter had an interest in receiving the information but determined that the interest of the publisher that existed was not sufficient to give rise to the defence of qualified privilege.
Because of that finding, the trial judge took the view that the defamatory statements were not warranted in furtherance or protection of the publisher’s interests and, in particular, took the view that the concerns about misuse of funds was not “fairly warranted by any reasonable occasion or exigency”.
“The appellant concedes that this case is not analogous to, and does not raise the same questions as, Bashford v Information Australia. His argument accepts that the respondent had an identifiable interest in making the statements. Indeed, as will be seen, the argument emphasises the fact that the interest is purely personal for the purposes of a supposed distinction the law draws, in connection with qualified privilege, between statements motivated only by self-interest and those made under a duty to speak.
Despite the differences attending the decision in Bashford v Information Australia, the appellant contended that, in cases concerning personal interests alone, there may be identified in the authorities a requirement that there be a pressing need to protect the defendant's interests, in addition to the requirement that the defendant have some identified interest to protect. In the appellant's submission, the authorities support a principle of ‘reasonable necessity’ which is to be applied in cases where it is sought to protect purely personal interests. The test of reasonable necessity to which the appellant refers is not, however, to be equated with a notion of ‘reasonableness’ which, the appellant pointed out, is a statutory construct rather than a concept recognised by the common law of defamation. Rather, the test is said to operate to require a defendant, relying upon his or her personal interests to found the privilege, to establish that a reasonable person would have thought that publication was necessary to defend those interests. [95]
“For these reasons, it is difficult to conclude that the words ‘fairly warranted’ refer to a requirement that the communication be justified by the defendant. As a matter of language, it is not likely that the qualifying word ‘fairly’ would have been used by Parke B had ‘warranted’ been intended to mean ‘justified’. Further, there is support for the view that the words ‘fairly warranted’, in context, refer to the connection between the defamatory statements and the defendant's duty or interest. That is to say, statements may be fairly warranted if they are relevant to the duty sought to be discharged or the interest sought to be protected.” [Footnotes omitted.] [97]
As can be seen from the above extract, the High Court in Pap**aconstuntinos made it clear that the test for qualified privilege was whether the statements that are said to be defamatory were relevant to the duty sought to be discharged or the interest sought to be protected.
Nothing in the foregoing suggests that it is essential in protecting an interest, such as in a reply to an attack, that the defamatory material concerns the person who has published the attack. It is the relevance of the defamatory material in responding to the attack that determines whether the qualified privilege will apply.
An obvious example of this would be a situation where a mass circulation media outlet published an allegation that a plaintiff assaulted and hospitalised his domestic partner. The qualified privilege may well apply to the defamed person’s reply to the attack, if it were an attack, on the credit, truthfulness and reliability of the alleged victim, even though the victim did not publish the attack on the plaintiff or instigate it.
Ultimately, the operation of qualified privilege in reply to attack is not lost by the circumstance that the reply defames a person who did not publish the attack to which it is a reply. It depends upon the relevance of the published material to the attack to which it is a reply.
Each of the other principles of law and principles applicable to the fact-finding process have already been discussed. The Court has also summarised the evidence and commented on that which the Court accepts.
As earlier stated, the conclusion that as a result of her evidence and the manner in which it was given, the Court does not accept, generally, the evidence of the plaintiff, does not equate to the plaintiff being unsuccessful in the proceedings. Even though the plaintiff sought to take the inference available as a consequence of the principles in Jo**nes v Dunkel too far, it has a role to play in some of the issues.
As I have recounted, it allows the Court more readily to draw inferences that are available, because evidence that is inconsistent with those inferences could have been adduced and was not. Further, it allows the Court to draw the inference that evidence that could have been adduced and was not, would not have assisted the defendants.
There is little doubt that the material about which complaint is made, hurt the feelings of the plaintiff. It seems, on the evidence before the Court, including the demeanour of the plaintiff, to have had a significant, profound and very damaging effect on the plaintiff and her wellbeing, confidence and health.
In that respect, the Court is satisfied, on the balance of probabilities, of those matters and, as a result of such satisfaction, those circumstances become certain. They are facts which the Court takes into account.
“The three purposes no doubt overlap considerably in reality and ensure that ‘the amount of a verdict is the product of a mixture of inextricable considerations’…. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation of the harm done to the appellant’s personal and (if relevant) business reputation and vindication of the appellant’s reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant’s reputation. ‘The gravity of the libel, the social standing of the parties and the availability of alternative remedies’ are all relevant to assessing the quantum of damages necessary to vindicate the appellant.” [98]
Further, the Court is, in assessing any damages, to seek to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. [99] Further, there is a prescribed cap on non-economic loss that may be awarded in defamation proceedings. [100] The current cap is $478,500, which does not include circumstances where there are aggravated damages.
The cap that is set by the legislature and increased each year by gazette is not that which is awarded in a worst case, where other cases reflect a lesser amount. Rather, the cap is a “cut-off” or limit, and damages are assessed and, if they be over the cap, limited by the cap itself.
The evidence establishes, on the balance of probabilities and beyond, that the plaintiff’s reputation was of the highest order in the industry in which wildlife sanctuaries operate, in the music industry and generally in her life. There are some aspects of the evidence of the plaintiff which, apart from that which has already been the subject of comment, needs noting. It is a factor to which the Court will come in the course of these comments in consideration of the verdict to be entered.
I have, in the course of discussing the impugned publications, noted the imputations that arise from each publication. The imputations are similar to each other. Nevertheless, these are different publications and, technically, give rise to different causes of action. The Court will assess global damages if, ultimately, liability is established for the multiple causes of action. [101]
As already stated, the Court finds that imputations (ii) and (iii) in the Amended Statement of Claim arise from the first impugned publication and are defamatory. Essentially, the “sting” of the defamation is that the plaintiff has acted and conducted herself fraudulently and has run Wild2Free as a private fundraiser for her own financial benefit.
The second impugned publication gives rise to the same or substantially the same sting. The imputations that arise separately contain the sting that the plaintiff has misused funds donated to Wild2Free by not using those funds to help animals, is involved in fraudulent activity (with others), and fraudulently obtained funds at the expense of Cobargo Wildlife Sanctuary. Again, the sting overwhelmingly relates to fraud and the misuse of funds otherwise than for the care of animals.
Impugned publications 3 and 4 are the letters to nominees to the Board of Wild2Free and, as stated previously, give rise to imputations that the plaintiff ran Wild2Free solely to raise funds for herself and did not offer animal rescue services; and, that the plaintiff did not facilitate the Wild2Free charity allocating funds raised through its sanctuary rebuild appeal to address legitimate claims. The first matter is plainly defamatory. The latter imputation is, reading between the lines and on the basis of the ordinary, reasonable reader, defamatory in that it imputes that the plaintiff refused to allocate funds raised in an appeal to address legitimate claims, being an imputation that the plaintiff kept the funds for her own purposes or the purposes of Wild2Free and no-one else, even though raised on a broader basis.
“It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.”
The defence requires that the circumstances of the publication were unlikely to cause any harm. Further, its operation speaks of the likelihood of damage in the circumstances pertaining to publication. If, on publication, there were no damage or harm caused, the question would still arise as to whether that outcome was likely at the time and in the circumstances of the publication.
The comments on the ARC Facebook page could not be said to have been posted in circumstances where it was unlikely that any harm would be inflicted. That the comments may have been on the page for a short time does not deal with what was likely at the time of publication.
I accept that the emails to individuals, including Ms Babbington, may have been unlikely to cause substantial harm to the plaintiff, and did not cause substantial harm to the plaintiff’s reputation. However, the term “any harm” is not confined to damage to reputation and is not confined to substantial harm.
In the context of defamation, where distress and hurt feelings are compensable, it cannot be said that no harm was caused. Nor can it be said that no harm was likely. Even if one were to confine the operation of the section to damage to reputation, it cannot be said that the circumstances of the publication were likely to cause no damage other than that which is ephemeral or insignificant.
I turn then to the issue of republication. I accept that the defendants are liable for republication to the plaintiff and to the Board of Management of impugned publications 1, 2, 3, 4 and 8. In the case of impugned publications 1, 2, 3, and 4, the republication is to the plaintiff and from her to the Board. That latter re-publication is subject to qualified privilege and the first re-publication cannot cause damage to reputation. It does and has caused hurt feelings.
I also accept that impugned publications 5, 6, 7 and 8 had a grapevine effect. In each case, the grapevine effect has not been shown to be overly significant.
As the summary of evidence discloses impugned publication 8 was the subject of discussion and known only to a few, impugned publication 5, being the comments to the public Facebook page of the ARC, was not seen by 189 persons.
The figure of 189, which the Facebook page records, relates to the number of persons who saw the Facebook post, not the comments which are impugned. Similarly, the sixth and seventh matters complained of cannot be shown to have been published to and read by a significant number of persons.
The evidence leads the Court to the conclusion that they were removed from the relevant social media outlet within very short times, some of the details of which are outlined in the preceding comments. It is for the plaintiff to prove the readership of the publications.
It is necessary, given that which follows, to assess damage for the imputations that arise in the publications that are actionable. There is also a prayer for injunctive relief.
There is no doubt, as earlier indicated, that the defamatory publications had a profound effect on the plaintiff. It is difficult to separate the effect of the actionable imputations from the effect of those imputations and publications that are not actionable.
Nevertheless, given the nature of the social media platforms, even a brief posting on the public Facebook pages, with which impugned publications 5, 6 and 7 are concerned, would have a damaging impact upon the reputation of the plaintiff, and it would have had a significant grapevine effect. The damage must be compensated, and the compensation must be such as to make clear that the plaintiff has been vindicated of the allegation made against her.
As earlier stated, the cap on damage is not reserved, as a limit, for the worst category of defamation. The Court assesses damage, and, if the assessment takes it beyond the cap, limits the damages to that prescribed by the legislature.
As is clear from the finding on malice and the comments thereon, it is not appropriate to make an award for aggravated damages.
In assessing the damage to be awarded, I take no account of the limit. As earlier stated, I assess the damage and apply the limit only if it be relevant.
The defamatory publications that are actionable and the imputations that arise therefrom are not insubstantial. They have caused significant harm to the plaintiff and have, apart from the hurt of feelings, damaged her reputation, albeit not as much as the plaintiff fears or perceives.
The hurt feelings and the damage caused to the plaintiff by the imputations is and must be significant. It has had a lasting impact on the plaintiff’s capacity to carry on her life as it was and to work as before.
In this sense, it can have a rational relationship with the harm caused. Were the plaintiff in other employment, she would no doubt no longer be able to carry on her work at the level previously performed. Nevertheless, there is no claim for special damage or economic loss.
Bearing in mind the provisions of the Defamation Act, including the reference to the harm done, an appropriate award to vindicate the plaintiff, in the context of all that has occurred and otherwise applies, is $65,000. This is general non-economic damage for the defamation, taking into account the principles earlier adumbrated.
Interest is payable at 3% from the date of publication, which varies and will be taken from a convenient date in the midst of the publications, which will be 1 July 2020.
**********
Ex P1, p 262.
Other tables and documents in evidence differentiate the animals in greater detail.
The number here specified may be overstated because if an animal were in care in one month and continued in care a second month, then the animal would be counted in those figures twice.
Ex P1, p 381-2, Minutes of Committee 1 May 2019.
Ex P2, p 393.
Ex P1, p 386.
Conveyancing Act 1919 (NSW), s 23C.
Ex P2, p 591
Ex P1, p 4.
Tcpt, p 155, ln 20-26.
Ex P1, p 5, matter complained of C.
Ex P4, p 1125.
Ex V3, pp 3-123.
Ex V3, pp 3-126.
Ex P1, p 381.
Mirror Newspapers v Fitzpatrick [1984] 1 NSWLR 643 at 647 (Hutley JA).
Ex P1, pp 301-307.
Ex P4, pp 1212-1213.
Ex V4, p 231.
Tcpt, 18/04/24, p 331.
Ex V4, pp 4-29.
See for example, Ex V1, p 1.
Ex V1, p 28.
Tcpt, 22/04/24, p 483, ln 16.
Defamation Act 2005 (NSW), s 7.
Ex P4, pp 1283-4.
Tcpt, 24/04/24, p 663.
Ex P1, pp 8-9.
Ex P1, pp 10-11.
Ex H.
Ex J.
Ex G.
Tcpt, 29/04/24, p 747, ln 36.
Tcpt, 29/04/24, p 793, ln 6.
Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 189 (Samuels JA); Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 91 (Griffith CJ) cited in Petritsis, supra, at 183; Li v Liao [2025] NSWSC 168.
Lewis v Daily Telegraph [1964] AC 234 at 259, 286 (Lord Reid and Lord Devlin).
Charleston v News Group Newspapers Ltd [1995] 2 AC 65 at 71.
Eppinga v Kalil [2023] NSWCA 287 at [95] (Payne JA, with whom Kirk and Stern JJA agreed). See also Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7.
Lewis v Daily Telegraph, supra, at 259.
Defamation Act, Sch 4, Pt 3.
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66.
Neat Holdings, supra, at ALJR 172 (Mason CJ, Brennan, Deane and Gaudron JJ).
Briginshaw, supra.
Henderson v Queensland (2014) 255 CLR 1; [2014] HCA 52.
Fabre v Arenales (1992) 27 NSWLR 437 at 445 (Mahoney JA).
Ibid.
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.
(1934) 34 SR (NSW) 431.
(1936) 36 SR (NSW) 301.
Ibid, at 306-307.
Henderson v Queensland, supra, at [28] (Bell J).
Jones v Dunkel, supra.
Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65.
Cf: West v Government Insurance Office of New South Wales (1981) 55 ALJR 544; RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3.
Ratcliffe v Evans [1892] 2 QB 524 at 528-530 (Bowen LJ); Bristow v Adams [2012] NSWCA 166 at [20]-[31] (Basten JA).
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60-61; [1993] HCA 31 (Mason CJ, Deane, Dawson and Gaudron JJ); Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at [60] (Hayne J, Gleeson CJ and Gummow J agreeing).
Cassell & Co Ltd v Broome [1972] AC 1027 at 1071; Ali v Nationwide News Pty Ltd [2008] NSWCA 183.
(1996) 41 NSWLR 176 at 194-195; [1996] NSWCA 128 (Mahoney ACJ, with whom Handley JA and Giles AJA agreed).
Defamation Act, ss 34 and 36.
Carson, supra, at 102 (McHugh J).
Carson, supra, at CLR 65-66, [45] (Mason CJ, Deane, Dawson and Gaudron JJ).
McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1147 at [114].
Rantzen v Mirror Group Newspapers Ltd [1994] QB 670; Clark v Ainsworth [1996] 40 NSWLR 463 at 466C, E (Sheller JA), 473E, 475C (Abadee AJA), (Simos AJA agreeing with each).
Australand Holdings Ltd v Transparency and Accountability Council Incorporated [2008] NSWSC 669 at [159] (McCallum J, as her Honour then was), citing Clerk & Lindsell on Torts (19th ed).
Harbour Radio Pty Ltd v John Tingle [2001] NSWCA 194.
Amended Defence at [33] and Closing Submissions for the Defendants at [9].
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56.
Dow Jones v Gutnick, supra, [26] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[2011] NSWSC 1244.
(2011) 243 CLR 298; [2011] HCA 30.
See Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5; Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57; Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79; [2010] HCA 25.
Cush v Dillon, supra, at [12]-[15] (French CJ, Crennan and Kiefel JJ).
Ibid at [12].
Ibid at [13].
Ibid at [13].
Ibid at [12], [13], [32], [54]; Bashford, supra, at [9], [10], [137]; Aktas, supra, at [22], [41].
Cush v Dillon, supra, at [14], [29].
Ibid at [19].
Ibid at [28], [29].
Bashford, supra, at [10].
Papaconstuntinos v Holmes á Court (2012) 249 CLR 534; [2012] HCA 53.
Ex V4, pp 4-182 to 4-190.
Ex V3, p 3-85
Ex V1, pp 17, 28 and 30.
Ex V4, pp 4-121 to 4-137.
Plaintiff’s submissions in reply at [6].
Defamation Act, s 8 and see earlier discussion.
Slipper v British Broadcasting Corporation [1991] 1 QB 283 but compare Terluk v Berezovsky [2010] EWCA Civ 1534.
(2015) EWHC 1118 (QB) at [158].
Speight v Gosnay (1891) 60 LJQB 231.
McManus v Beckham [2002] 1 WLR 2982 at [39]; [2002] EWCA Civ 939 at [34] (Waller LJ) and [39] (Laws LJ).
Bashford, supra, at CLR 373; HCA [10] (Gleeson CJ, Hayne and Heydon JJ).
Bashford, supra, at [22] (Gleeson CJ, Hayne and Heydon JJ).
Papaconstuntinos, supra.
Papaconstuntinos, supra, at [24] and [25] (French CJ, Crennan, Kiefel and Bell JJ).
Toogood v Spyring (1834) 1 Cr M & R 181 at 193; 149 ER 1044 at 1050.
Papaconstuntinos, supra, at [32] (French CJ, Crennan, Kiefel and Bell JJ).
Carson, supra, at CLR 60-61; HCA [32] (Mason CJ, Deane, Dawson and Gaudron JJ).
Defamation Act, s 34.
Defamation Act, s 35.
Defamation Act, s 39.
Ex P1, p 381.
Ex P4, p 1125.
Ex V3, p 3-123, see above for terms of leases.
Impugned publication 8, imputation (i).
Corporations Act, s 180; the common law would require similar duties.
Corporations Act, s 181.
Corporations Act, s 182.
Defamation Act 2005-2019, s 33.
Harvey
Henderson [2025] NSWSC 601
(2010) 241 CLR 79
(2004) 218 CLR 366
(1938) 60 CLR 336
(1993) 178 CLR 44
(1996) 41 NSWLR 176
(2011) 243 CLR 295
(2002) 210 CLR 575
(1992) 27 NSWLR 437
(1910) 12 CLR 84
(2014) 255 CLR 1
(1959) 101 CLR 298
(1992) 67 ALJR 170
(2012) 249 CLR 534
(2002) 212 CLR 1
(2003) 216 CLR 327
(2000) 199 CLR 620
(1908) 6 CLR 1
(1993) 178 CLR 217
(1981) 55 ALJR 544
(1982) 150 CLR 500
(2011) 243 CLR 298
A claim was made for a grant and for insurance monies relating to the fire. The defendants claimed (and still claim) that they were entitled to receive at least some of the insurance monies for the property. The issues as to the proper disbursement and receipt of the insurance monies, grant monies and the proper ownership of the Cobargo Property or the sale of the Cobargo Property ran through the dispute between the plaintiff and the defendants.
The details of the dispute and the issues between the parties, apart from the defamation itself, is a central theme in the evidence that was adduced and the cross-examination of the plaintiff and others. To the extent that the defendants seek to justify the material that was published, the truth of the statements in that material depends upon the allegations that gave rise to the dispute between the plaintiff and the defendants. It is necessary to deal with the evidence.
When the plaintiff moved into Yowrie, there were three small cottages, a small outbuilding and some stables on the property. There was also a machinery shed.
After two or three days, there was a fire at the property. The fire occurred on 4 July 2016. The plaintiff and her partner moved to Tuross Heads, which is just north of the township of Cobargo, where they stayed for two weeks after which time they moved to Runnyford. There was an insurance payout for Yowrie of $300,000 from Allianz Insurance. It seems that there was also a payout from Youi, but the amount is not in evidence.
In or about November 2016, the plaintiff and her partner commenced caring for kangaroos at Runnyford. They commenced with two kangaroos and within six weeks, had another two kangaroos together with two swamp wallabies. The plaintiff was able to commence caring for the kangaroos because she had joined the NSW Wildlife Information, Rescue and Education Service (WIRES) and completed the rescue course and a macropod care training course.
In order to care for a species, a person was relevantly required to obtain authorisation either from WIRES or from Wildlife Rescue South Coast. Those two organisations are licensed by National Parks and Wildlife, and they are the only two organisations in the area surrounding Runnyford that are licensed for that purpose. In turn, those organisations authorise members to care for animals and such authorisation depended upon a course having been completed.
At the end of 2016, or the beginning of 2017, the plaintiff and her partner decided to establish Wild2Free as a charity. For this purpose, external lawyers were involved and Wild2Free was registered with the Australian Charities and Not-for-profits Commission (ACNC) and as a Designated Gift Recipient (DGR), in the latter case with the Australian Taxation Office (ATO).
Initially, the care for the kangaroos was for the younger animals for whom care involved feeding every six hours with a bottle; toileting; creating and feeding baskets of bushfoods; and walking with them in the bush, so they could learn to live in nature. Vets would visit sometimes, but the majority of care was done by the carers and included giving antibiotics under vet direction. Medical supplies were needed, including the antibiotics that were otherwise prescribed, different syringes, different needles, other medication; and the joeys were kept in cloth pouches that were in stands designed for that purpose so as to simulate their natural environment.
There were four kangaroos that were cared for in 2016 and throughout 2017, there were approximately twelve. By 2018, Wild2Free would have cared for approximately 30 kangaroos. Records for the care of the animals were kept.
The plaintiff identified the “membership cards” for Wildlife Rescue South Coast for the years ending 30 June 2022 and 30 June 2024. It seems the other cards were destroyed in the Black Summer Bushfires. The plaintiff completed a number of courses with WIRES.
Files were tendered showing the care of animals. The overwhelming number were Eastern Grey Kangaroos; there were some red neck wallabies; some swamp wallabies and two cats, which increased to three cats. Otherwise, Wild2Free fed and watered birds, to keep them from eating the food for the wildlife and then fed possums. [1]
The files to which the Court refers in the preceding paragraph do not differentiate species but divide the animals between domestic, farm and wildlife for the period April 2017 until December 2022. [2] In total there were 9,461 animals in care. [3] The domestic animals in care between April 2017 and February 2018 were two and they were the same animal, being two cats.
Some of the figures to which reference has been made were completed retrospectively from other documents, including photographs. The records were kept for the purpose of reimbursement of the plaintiff, who commenced recordkeeping because of the allegations that were made, some or all of which are the subject matter of these proceedings. The expenses to which these reports refer were approved by the Committee or Board of Wild2Free at a meeting at which the plaintiff was in attendance.
The plaintiff was taken to minutes of meetings and, in the course of those exchanges, explained that she and her then partner donated $30,000 to the charity to cover legal expenses associated with the formation of Wild2Free.
In October 2017, there was a benefit initially entitled “Rae’s Benefit Show”, which was held for the purpose of reimbursing for the fire and all that had been suffered as a consequence of the fire. The plaintiff testified that because her “whole life was Wild2Free and [she] saw … an advantage … by promoting the charity to the fans, the music fans in Melbourne”, Wild2Free was added to the benefit and the amounts raised were to be split 50:50 between Wild2Free and the plaintiff. The ticket sales drew in approximately $50,000 and there was merchandise for the charity which was sold at the event.
According to the plaintiff in evidence, by 7 November 2018, the second defendant had left the Committee of Wild2Free over a dispute. This date is inaccurate, but I do not consider that the plaintiff was deliberately misleading in this regard, as it seems there were two periods of Committee membership, which this may assume but not reference. According to the plaintiff, the defendants had donated over $30,000 for the purchase of equipment, including a Razorback mower and other items.
Further, there had been a falling out over rent to be paid by the defendants to the plaintiff for the Yowrie Property. The mower that was the subject of dispute was being used by the defendants to prepare the Yowrie Property for kangaroos and to maintain the property. The defendants were living at the Yowrie Property, and the plaintiff was living at Runnyford with her partner.
The plaintiff suffered financial setbacks as a consequence of the band, The Living End, terminating her services. They gave notice of termination and continued to pay until the end of the financial year June 2019. The arrangement with the band involved a profit share arrangement, which was to have continued for a further five years.
The arrangement provided for the plaintiff to receive a percentage of the profit obtained as a consequence of the performances. However, apparently, the plaintiff, as manager of the band, had received more of the profit than that to which she was entitled.
The amount received and to which the plaintiff was not entitled must have been significant. When the overdrawing was discovered, the profit share arrangement ceased after six months instead of continuing for the five years. As a consequence, it must be inferred that the overdrawing was equivalent to, approximately, four and a half years’ worth of the profit share.
The cessation of the income from the band caused the plaintiff to have concerns for her finances. The plaintiff was unable to sell a property owned through a company, because of the effect of capital gains tax, and could not sell Yowrie because the defendants were occupying it. This seemed to be the catalyst for the plaintiff requesting Wild2Free to pay rent for the use of the Runnyford Property.
This was agreed by the Committee and Wild2Free paid the plaintiff $2,895.83 per month. Wild2Free also paid 50% of the council rates referrable to Runnyford, and other items. [4] The plaintiff was in attendance during the meeting that passed these resolutions and in attendance during the discussion of these resolutions.
At or about this time, there was a dispute between the plaintiff and the defendants relating to equipment that was being utilised at Yowrie. The defendants had donated monies to Wild2Free, and equipment had been purchased, which was to be utilised, according to the defendants, at Yowrie. The equipment was utilised at Runnyford and the defendants sought to have the equipment transferred to Yowrie.
The evidence of the plaintiff is that Wild2Free received advice to the effect that it would be unlawful for Wild2Free to transfer the equipment to the defendants. The evidence does not establish that the defendants were seeking to transfer the ownership of the equipment to them. Rather, the request was that the equipment purchased with part of the donation provided by the defendants should be utilised by Wild2Free at the Yowrie or Cobargo Property and not the Runnyford Property.
Notwithstanding the dispute and some antagonism between the plaintiff and the defendants, there was a reconciliation between them, even though the dispute as to the equipment continued. On 29 July 2019, the plaintiff split up from her then partner and there were proceedings relating to the property that occurred in the Federal Circuit Court (as it was then called). The plaintiff sent the second defendant a copy of the plaintiff’s affidavit in the Federal Circuit Court proceedings.
During her evidence, the plaintiff was referred to a donation recorded in the minutes of the Committee on 14 August 2019 in which an amount of $30,000 was recorded as having been donated by the plaintiff or her related corporation. [5]
Because of the dispute between the plaintiff and her ex-partner, steps were taken to protect the funds of Wild2Free and a motion was passed at the meeting on 6 November 2019, acknowledging that there had been a pre-payment of rent to the plaintiff up to April 2020, which caused the accounts to show a loss greater than might otherwise be the case. The motion was moved by the defendants, without any complaint as to the payment of rent for the Runnyford Property. [6]
As a result of the departure of the plaintiff’s partner, it was alleged that the partner took property that had been purchased by Wild2Free, including a mobile phone, camera, camera lens, memory card, rechargeable battery and the like.
The minutes record that the organisation would be temporarily suspending care for animals in order to clean and repair property. At the time, the defendants, or one of them, was required to work in Tasmania and could not deal with Yowrie, and Runnyford required preparation for the bushfire season. The minutes record an animal report relating to the number of animals then in care, which animals were the subject of care at either Yowrie or Runnyford and the activities of the Wild2Free included that which was occurring at Yowrie/Cobargo.
At the time of the November 2019 committee meeting, the plaintiff was discussing with the defendants the proposition that the plaintiff would sell to the defendants the Yowrie (or Cobargo) Property. In or about December 2019, the first defendant crafted a document purportedly witnessing the sale of the property to them from the plaintiff and that document was signed by the plaintiff. The document was not drafted by a legal practitioner.
The agreement “for sale” was signed by the plaintiff on 28 November 2019 and by each of the defendants on 1 December 2019. It bears the hallmarks of a document not crafted by someone familiar with conveyancing.
Nevertheless, it is in writing and, subject to its terms, is capable of creating and disposing of an interest in land. [7] If the agreement were sought to be enforced, there could be arguments that the Court would have to consider. The enforceability of the agreement is only marginally relevant in the current proceedings.
The agreement defines and identifies the parties; the price; and the terms, although the legal effect of some of the terms may be the subject of debate. The agreement purports to relate to the purchase of the property, vendor finance and a number of conditions.
One of the difficulties associated with the opening clauses of the agreement is that it purports to record an agreement whereby “the vendor will sell to the purchaser” [emphasis added]. However, there is then a requirement for the purchasers to pay “on the commencement date” (a defined term) the payments required for a loan facility with the ANZ Bank, which, for 12 months, would remain in the name of the vendor and thereafter (or earlier) pay the remaining amount to the vendor, being the equity calculated by the agreed purchase price less the amount of the mortgage.
Under the subheading “Title”, the agreement is in the following terms:
In the conversation, the plaintiff also indicated to Ms Agar-Teehan that the first defendant crafted the “contract”. After that first conversation, a second conversation occurred a few hours later during which Ms Agar-Teehan said that Sara Tilling (the second defendant) had made comments to the effect that the plaintiff was dishonest and Ms Tilling had been spreading rumours about the plaintiff.
The plaintiff recounted a conversation with Ms Agar-Teehan in which Ms Tilling described the second defendant as saying, it seems, that the plaintiff was a fraud and was corrupt and that the defendants were keeping her on and keeping her “sweet” until they “get the insurance money”. When the plaintiff was told this, her evidence is that she fell to the floor in shock.
Having heard this conversation from Ms Agar-Teehan, the plaintiff, it seems, formed the view that the defendants were isolating her from the “entire community” and “were really out to destroy” her and take everything that she had. At the time this conversation occurred, the first and second defendants were, respectively, the Secretary and President of Wild2Free. The plaintiff considered that she was in conflict with the defendants from February 2020.
The defendants were members of the Committee for Wild2Free until approximately August 2020, when they resigned. On 14 April 2020, the defendants sent an email to the plaintiff’s neighbours, Yana and Simon, to whom earlier reference has been made. Yana and Simon were members of the Committee as well. This is the first impugned publication.
The plaintiff was “hit pretty hard” when she read the word “fraud” in the first impugned publication. The publication referred to financials that had been or were being sought by the defendants.
It was the plaintiff’s understanding that the financials to which the publication refers were the list of donations received since 1 January 2020. There had been, according to the plaintiff, approximately 4,000 people who had donated monies to Wild2Free. According to the plaintiff, the plaintiff was not obstructing the provision of financials, which were eventually sent to the defendants around 30 April 2020.
The plaintiff was “mortified” and “shocked” when she read the passage accusing her of “fraudulent conduct” and expressed the view that the plaintiff “should be removed from the board immediately”.
The plaintiff was “surprised”, on reading the reference by the defendants to “proper governance”, because the second defendant had been on the Committee on two different occasions, and the first defendant had been on the Committee, each during this time and neither of them had raised the issue of governance. The plaintiff felt “an overwhelming need to justify” herself to her two neighbours.
The plaintiff denied that Wild2Free was being conducted as a “private fundraiser” for her. The plaintiff held her neighbours, Simon and Yana, in high regard and this exacerbated the concern that they would begin to believe the allegations and the perceived need to justify herself.
The Court next deals with the evidence of the plaintiff relating to the second impugned publication, the email exchange, at least in so far as it derives from the defendants, between the defendants and American Red Lion Disaster Fund or, more accurately, Ms Janelle Babington, its Executive Director. American Red Lion Disaster Fund is an organisation based in Wilmington, North Carolina, United States of America. Prior to this communication the organisation, American Red Lion Disaster Fund, had donated funds to Wild2Free.
The contents of the second impugned publication were dissected in questions, as may be obvious from the foregoing, and the plaintiff commented on how she felt about each of the statements. The plaintiff commented about paragraph 13 of the publication [9] in so far as it dealt with whether there was only one piece of correspondence between Wild2Free and American Red Lion.
The passage is, in and of itself, not defamatory and does not contain any material which gives rise to any of the imputations alleged in relation to the publication. [10] As to the passage in which it was alleged that Wild2Free had $600,000 in their account (approximately) and that nothing was being done with the money donated by American Red Lion Disaster Fund, the plaintiff said that she felt really angry in relation to it because there was so much trouble being caused within the Committee and nothing could get done. The defendants had, at that stage, reported Wild2Free to the ATO and the ACNC and the organisation had decided to freeze its funds until all of the issues were resolved.
The plaintiff made an application on behalf of Wild2Free for a grant from NSW Services and received $50,000 for damage in the fire. The plaintiff is unaware of, or could not recall, the details of the machinery, equipment or other items that were compensated by the $50,000. During the course of discussions with NSW Services, the plaintiff referred to items at Runnyford and Yowrie.
The dispute on the Committee of Wild2Free continued and related to the application for the grant from NSW Services, insurance claims and payouts and the utilisation of money for purposes that were alleged to be otherwise than for Wild2Free. There also continued to be a dispute about the nature of the exchange between Wild2Free, or the plaintiff, and the American Red Lion Disaster Fund.
In or about September 2020, Wild2Free repaid the $50,000 grant from Services NSW. This followed a conversation between the plaintiff and an employee of Services NSW from which the plaintiff came to an understanding that Wild2Free was not eligible for the $50,000 grant in the first place. The plaintiff testifies that she had misunderstood the eligibility for the government grant.
Impugned publication 3 [11] was received by the plaintiff from Margaret Parke. Margaret Parke was a person seeking to nominate to the board of Wild2Free and who had nominated for election to the Committee at the AGM to be held in August. In that capacity, Ms Parke received the email from the joint email account of the defendants and forwarded it to the plaintiff.
On reading the document, the plaintiff was “appalled, shocked, embarrassed, confused” and the plaintiff’s body reacted “like, it feels like all the blood is rushing through your body to the bottom of your feet”.
Ms Parke was a “great supporter of Wild2Free” and the plaintiff held her in high regard. Ms Parke had recruited the plaintiff to join the regional group for the Animal Justice Party. The first defendant had written to Ms Parke.
When asked about the allegation that Wild2Free was being operated to raise funds for the plaintiff, the plaintiff answered that, until the bushfires occurred, a large portion of the money raised by Wild2Free was coming from the plaintiff and suggested that it was therefore impossible for her to be “fraudulent” if the plaintiff were the one donating the money.
The difficulty with such a suggestion is manifest. If the money was donated by the plaintiff to Wild2Free and then returned to the plaintiff in a form that was not taxable, then the plaintiff would receive a tax deduction for the donation to Wild2Free, a DGR organisation, and gain a benefit from the tax not paid. However, to the extent that the monies were paid by way of rent for the property, the money would prima facie be taxable but would allow the plaintiff to deduct the expenses of the property as a business expenditure.
Further, to the extent that Wild2Free renovated or re-built fixtures on the property, such as the house, fixed sheds, fences and storage facilities, or otherwise made improvements to the property, it was increasing the value of the property, which did not belong to Wild2Free and increased the value of the plaintiff’s assets.
The third impugned publication alleges that Wild2Free did not “offer any animal rescue service”. The plaintiff testified that such a claim was not true and in support of that proposition the plaintiff relied upon her membership of Wildlife Rescue South Coast and the circumstances that Wild2Free had their “doors open for other animals and helped other animals”.
The plaintiff was “so angry” about the allegation that Wild2Free was paying her $700 per week, in circumstances that as at 15 July, the date of the email to Ms Parke, no such payments were being received. The plaintiff clarified that she had not been paid since November 2019, when an amount of $28,000 was paid in advance.
The arrangement is covered by a lease, which is in evidence. The leases, for two subsequent periods, are also in evidence. The first subsequent period of the lease was for the period 1 March 2020, to be reviewed on 30 June 2021. [12]
The second lease period commenced on 1 July 2021 and was for a period of ten years, concluding 30 June 2031. [13] There is an option to renew for a further ten years.
The rent payable in the second period was $3,750 per month, which, except as outlined here, increased each year (except in year three, 2024) by the greater of the CPI or 3%. The increases did not apply in the years commencing 1 July 2027, 1 July 2032 and 1 July 2037. [14]
For the years commencing 1 July 2027, 2032 and 2037, an independent expert must be jointly instructed and paid for by the plaintiff and Wild2Free to determine the market rent, which would then form the rent payable in that year and to which the yearly increases would thereafter apply. Further, Wild2Free was to pay 80% of all council rates, levies, charges for the land, electricity supply and usage costs and charges, gas supply and usage costs and charges, water purchases, and bore water licence fees.
The plaintiff and Wild2Free were jointly responsible for the care and upkeep, maintenance and repair of improvements to the property and, without limiting that expression, these included dams, roads, inground and above water tanks, fences, pasture improvement, fire risk minimisation and all the plant, fittings, fixtures and equipment. The plaintiff was to pay labour costs associated with the slashing of paddocks.
The first lease, apart from setting the rent payable, continued the terms originally recorded in the minutes as the terms for the first lease agreement. The second lease agreement, which was much more formal, provided that the modular house and improvements known as the plaintiff’s home was to be for the exclusive use of the plaintiff, as was the 20 metre shipping container and any additional shipping containers brought onto the land by the plaintiff, an area of 400 square metres adjoining the northern side of the plaintiff’s home, three open bays and one lockup bay of the southern side of the seven bay machinery shed, and any pens or enclosures for the use of animals in the care of the plaintiff.
Otherwise, the plaintiff and Wild2Free would have shared use of: all other land with the exception of that for the exclusive use of the plaintiff; a six square metre shed near the plaintiff’s home; a 100,000 litre concrete underground water tank near the plaintiff’s home; a second such underground water tank; a third underground water tank in the paddock behind the Carer’s Cabin; a 25,000 litre concrete water tank behind the seven bay machinery shed; a 2,500 litre plastic water tank installed at the six square metre shed; the plaintiff’s tractor; animal shelters (five new animal shelters, each having an individual water tank); dams (three earth dams); five 2,500 litre plastic tanks at animal shelters; and any additional pens or enclosures for the use of animals in the care of the plaintiff or Wild2Free.
While the plaintiff’s tractor was for shared use, Wild2Free was to pay for all fuel and the cost of maintaining, servicing, cleaning and repairing the tractor. The rent payable in the first lease was $2,600 per month, which is a lesser rent than was charged commencing in 2021. It may have been the same rent, if adjusted at 3% per annum (or the increase in land value, see later), which calculation is not before the Court.
The terms of the lease that existed and was paid from 3 May 2019 or, to the extent appropriately summarised, is contained in the minutes of the meeting of the Committee of 1 May 2019, [15] and the lease called for annual rent of $34,750, payable monthly at $2,895.83 on and from 3 May 2019, with increases at 3% annually or the percentage increase in land value, whichever is the greater. The minutes of the November meeting record a prepayment of land rental of $28,958.30, paid between 1 July 2019 and 30 November 2019. At a rate of $2,895.83 per month, the prepayment was for a period of 10 months. The plaintiff, as earlier summarised, testified that it was paid in November 2019.
The minutes of the meeting held on 14 August 2019 record two months rental having been paid between 1 April 2019 and 30 June 2019. The minutes of the meeting of August 2019 do not show any comment about the prepayment of rent.
The financial accounts, such as they are, show that the occupation costs of Wild2Free were $36,375 in the financial year 2020, an increase up from $9,547 in the financial year ending 30 June 2019. The figure of $9,547 is over three months’ rent and the figure for 2020 is a figure which is greater than 12 months’ rent.
There may have been, and under the lease would have been, occupation costs over and above rent, but there is no independent record disclosing that the prepayment of rent was only until the end of April 2020. The figures suggest that the prepayment of rent was for a period longer than that suggested in the minutes. The rent was payable on or before the first of the month and the 10 months from December 2019 (i.e. for a period commencing on the first of the month after November) would conclude 30 September 2020. If the period commenced on 1 November 2019, then it would conclude on 31 August 2020.
As stated, the rent is payable in advance on a monthly basis and, if, as the testimony of the plaintiff records, the catalyst for the prepayment was the separation between the plaintiff and her then partner, the separation did not occur until August 2019. The payment therefore could not have been for a period commencing before 1 September. The first payment, which would have formed part of the prepayment, assuming for present purposes that the prepayment was made immediately upon the separation (which is a view to the benefit of the plaintiff) would have been the payment for September. The pre-payment was for ten months, as earlier indicated.
Consequently, the pre-payment was at the earliest, for the period September 2019 to 30 June 2020. The date of the publication was 15 July 2020. But for the two weeks between 1 July and 15 July 2020, to the extent that the publication imputes that the plaintiff was being paid a land rental fee, it was an accurate statement, at least up until 30 June 2020 and, under the lease between Wild2Free and the plaintiff, was an ongoing requirement. Further, if the plaintiff is accepted as to the November timing, it was, as stated a pre-payment for the period including either August or September 2020.
While the publication imputes that the amount paid was $700 per week, the amount was $34,750 per annum, which is approximately $666.50 per week. This figure does not include the automatic increases.
It is difficult to understand, in those circumstances, or on any rational basis, the testimony of the plaintiff that she was “so angry” as there was “no record of any expenses like that happening when that statement was made”, because the payments had stopped after that “large amount was taken in August 2019”. But the large payment was a payment in advance. If it were paid in August 2019, then it was being paid up to and including 30 June 2020. If it were paid in November 2019 to cover the period commencing 1 December, then, as already stated, it was payment in advance until 30 September 2020.
In relation to the third impugned publication, the plaintiff was asked about the use of the term “an unsubstantiated official complaint” against the second defendant. Asked whether there was an unsubstantiated official complaint against one of the defendants, the plaintiff answered that “there was an official complaint”. The plaintiff denied that the official complaint was “orchestrated” by her.
Paragraph 5 of the third impugned publication refers to complaints lodged with the ACNC, Fair Trading and the Police in regard to the conduct of the plaintiff and Wild2Free and states that the plaintiff “is trying to conceal the contents of an application”. The plaintiff denied trying to “conceal the application” and said she felt frustrated by paragraph 5 of the third impugned publication. She also testified that the application “did not exist” and that the plaintiff could not provide an application that she did not have. However, the passage refers to the contents of the application, not a copy of it.
The plaintiff does not explain how she came to be in receipt of the communication between the defendants and Ms Parke, but the overwhelming inference is that Ms Parke sent it to the plaintiff, which was the subject of later evidence.
Notwithstanding the attempt by the defendants to discourage Ms Parke from nominating for the Committee of Wild2Free, Ms Parke did nominate and became a member of the Committee. Either Ms Parke or the plaintiff gave the Committee the document for discussion at a meeting.
The plaintiff was then taken to the fourth impugned publication, which is to the same effect as the third impugned publication. This was received by the plaintiff a week or two after she had received the third impugned publication.
Nevertheless, it seems that the original emails were sent on the same day, approximately eleven minutes apart. The fourth impugned publication was an email from the defendants to Anita Morgan. Ms Morgan was also seeking to nominate to the Committee of Wild2Free.
This email, I infer, was sent by Anita Morgan to the plaintiff and, on the evidence of the plaintiff, which in this respect I accept, was tabled at a committee meeting. Further, the plaintiff republished the material to her neighbours, Simon and Yana, to whom earlier reference has been made.
The plaintiff then gave evidence relating to the fifth impugned publication which is a screenshot of the public Facebook page of the ARC. The particular post contains a photo of a kangaroo and a fire trailer, each named “Riley”. Above the photograph is a general comment, I infer, by the administrator of the Facebook page of ARC. That content is in the following terms:
The terms of the sixth impugned publication were then the subject of examination. The publication is a little difficult to follow. Reading the whole of the document, the necessary inference is that there are comments by Carol Pittman in reply to Linda Crutz; by Claire Pragnell in reply to Kipa Anne; by “Rebel Withacause” in reply to Kipa Anne; and then two comments by the second defendant.
The second defendant’s comments are in reply to the comments by Ms Pittman and Ms Pragnell. The first three comments concern the Cobargo and Yowrie Property. It is irrelevant for the current proceedings but necessary to remark that the first three comments on the page are uncomplimentary of the Cobargo Wildlife Sanctury.
Those comments accuse the Cobargo Sanctury or the defendants of taking money from anyone until they get caught or cornered and hurting “good decent sanctuaries”. The second comment (by Ms Pragnell) asks, rhetorically, why they would spend 500k on a house on a property the sanctuary does not own; how it was raised off the back of their Sanctuary; and alleges that the money was raised by the other organisation which the defendant said on one of their posts after the fires that they had nothing to do with.
The third comment refers to the circumstance that it is not “their Sanctuary” and is not “their land”. It alleges that it was not a sanctuary at all; that the defendants were not there to look after their animals, because they put in a caretaker and were leasing the land.
In relation to those comments, the second defendant made two comments in the following terms:
While the plaintiff testified that she considered the affidavit confidential, there is no evidence to suggest that she had requested of the defendants that it remain confidential. Rather, there is reliance upon the nature of the document itself and the circumstance that it was part of the family law proceedings.
Reliance was also placed on an email exchange between the first defendant and Yana del Valle, under the subject heading “Wildlife Fraudster”, which suggests that the plaintiff taking these defamation proceedings is akin to putting “herself on trial for fraud”. The email invites the recipient to feel free to share the attached document (the Amended Defence in these proceedings filed by the second defendant). The email was forwarded to Costa Green, who, it is alleged, already knew about the document.
Reliance was also placed upon an email from the defendants to Ms Jenny Packwood, which was copied to Anne Cherry and Joy Weatherall, each of whom is at Wildlife Rescue South Coast. Again, as with the earlier correspondence, this document is not a matter complained of but seems to be relied upon as part of the “grapevine” effect. It also attached the Amended Defence filed by the second defendant in these proceedings. The plaintiff testified that she was “really upset” that people were going to read the defence and believe everything that was written in it. The relevance of being upset at the filing of a defence in proceedings is not immediately apparent.
The issues between the parties were not only the subject of action by the defendants. On 17 August 2021, the board of Wild2Free expelled the first defendant from which the first defendant appealed. [18]
Reliance is also placed upon emails from the first defendant (and possibly the second defendant) to Sarah Hart enclosing the Amended Defence in these proceedings and referring to the hearing of the defamation action as the plaintiff’s “upcoming fraud trial”. Further, the plaintiff relied upon a post on the Facebook page of the Cobargo Wildlife Sanctuary, relating to receipt by the defendants of a lawyer’s letter concerning an allegation that there was a lack of transparency in records and documents published by Wild2Free.
There is also reference in the post to the lease payments made by Wild2Free to the plaintiff. The Facebook post received 45 likes and 29 comments, with three people sharing it. It alleged that the plaintiff is the only wildlife carer in Australia who charges a fee for kangaroos to live on their property. It is accompanied by a cartoon depicting two kangaroos being stopped from entering the Wild2Free area.
The plaintiff took particular exception to a comment made in relation to the post because part of the comment was untrue, according to the plaintiff. However, there is no evidence to suggest that that which was said and was said to be untrue was a reference to the post by the defendants.
From where the information published in the third-party post derived is not in evidence. Consequently, it is difficult to imagine that it could even be part of the “campaign” on which submissions have been made and to which the Court is requested to have regard.
Similarly, complaint is made by the plaintiff about a posting on the Facebook page of Cobargo Wildlife Sanctuary and, in particular, that it was a sponsored post. Assuming it was sponsored, although the provenance of that information leaves a lot to be desired, no complaint is made that the information on the post is untrue. If, as I assume is the case, it forms part of the “campaign”, it is difficult to understand how the publication of information that is not alleged to be untrue is problematic or gives rise to aggravated damages or the existence of malice.
Other correspondence was in the same category and the plaintiff relied on the circumstance that the defendants or one of them complained to the Department of Fair Trading and the ATO about the conduct of the organisation Wild2Free and its non-compliance with the rules to obtain or retain DGR status and otherwise conduct itself in accordance with the law. Each of those complaints was dismissed by the relevant authority.
The evidence of the plaintiff was that she had little choice but to take and continue with these proceedings because of the conduct of the defendants which she perceived was a “never-ending campaign to destroy [her] reputation”. It felt to her as if it were affecting her mental wellbeing.
The plaintiff maintained that she needed “vindication”, and the conduct of the defendants was, from the plaintiff’s position, invasive because the plaintiff felt that the defendants were seeking to trawl through the conduct of the plaintiff to support the allegations or imputations made in relation to the conduct of Wild2Free in the publications that have been impugned. The defendants’ conduct was affecting the plaintiff’s capacity to fundraise, both personally and the capacity of Wild2Free to raise funds.
The plaintiff was cross-examined at length. The terms of the correspondence between the plaintiff and the defendants relating to the occupation of the Yowrie or Cobargo Property [19] discloses that the plaintiff, in reply to correspondence from the defendants, told them on 14 February 2018, that rather than pay rent they could work on the property, including improving one of the cottages. Further, the plaintiff informed the defendants that Wild2Free would like to claim the work being performed by the defendants on rabbits, goats and ponies in order to satisfy the ATO of the compliance by Wild2Free of the conditions of its DGR status.
The plaintiff’s demeanour, and the manner in which she answered questions, did not help her cause. Often, the plaintiff gave the impression that she answered questions in a manner that she considered assisted her case and, on many occasions, feigned confusion or took irrational points on the question being asked.
For example, the plaintiff was asked questions in relation to a donation by the defendants of $30,000 to Wild2Free. The plaintiff was asked whether that donation was for the purpose of purchasing equipment “to continue with the cleanup” of Yowrie. The plaintiff denied that proposition.
Nevertheless, in answer to another question relating to the purpose of the aforesaid donation, the plaintiff stated that its purpose was to purchase “a Razorback mower and other items to prepare the property for the six kangaroos being relocated [at Yowrie]”. Apart from the explanation that the other items included an enclosure, the two answers are directly inconsistent.
Further, the plaintiff continued to volunteer information which she considered to be helpful to her case and damaging to the perception of the defendants or the strength of their case.
Animals were moved from Port Macquarie to Yowrie to be the subject of care at the Cobargo Property. Another example of the obfuscation [20] related to a question and answer in which the plaintiff was asked whether she “[left] the property and lived somewhere else”, to which she replied “I wasn’t living somewhere else. I left the property for a period”.
After a short exchange, the plaintiff was asked in the following terms, “I’m just asking you if you left the property and lived somewhere else for a time?”, to which the plaintiff responded “[y]ou didn’t ask me that. You asked me if I moved out”.
The plaintiff then testified that she left the Runnyford Property for a four-week period in July or August 2019. The plaintiff had, as she accurately recalled, been asked whether she had moved out of Runnyford, but the question to which she responded was directed precisely in the terms she maintained were not asked.
Moreover, the plaintiff did not recall aspects of events that occurred during that period, and given her other evidence, the Court finds that very hard to believe. There are abundant examples of it.
In relation to the termination of employment or engagement by The Living End, the plaintiff could not recall whether there were threats of legal action over funds. Moreover, the plaintiff denied that there was “a dispute over funds … on [her] termination”.
Yet, that was the effect of her evidence in chief. The evidence of the plaintiff was that she was to be paid on an ongoing basis until it was determined that she had been overpaid during the course of the time that she was managing the band. Unless one has a particularly narrow view of the meaning of the term “dispute”, and even if one did have such a narrow view, the evidence in answer to the question in cross-examination seems deliberately misleading or obfuscatory.
Further, the plaintiff was asked whether she commenced making enquiries regarding the sale of Cobargo in or about October/November 2019. The plaintiff said she did not recall. Nevertheless, the plaintiff accepted, in answer to questions from the Court, that she had telephoned persons in or about October/November to enquire as to whether or not they would be interested in purchasing Cobargo.
In early December, the plaintiff reached an agreement with the defendants to sell the Yowrie/Cobargo Property. Yet, the plaintiff continued to obfuscate in terms of her answers to questions asked of her in relation to this subject matter.
It was put to the plaintiff that she only “rescued” native animals under licence from Wildlife Rescue South Coast. The plaintiff took issue with the proposition that it was a “licence”. Yet the documents produced by Wildlife Rescue South Coast refer to the arrangement as a “licence”. [21]
Further, as the document and the Regulations make clear, wildlife that is “rescued and rehabilitated” is performed by Wildlife Rescue South Coast, relevantly, which is authorised to do so under Regulations made by the National Parks and Wildlife Service and the law in New South Wales. Persons who are approved by the Wildlife Rescue South Coast to undertake rescue and rehabilitation on its behalf do so as the Wildlife Rescue South Coast.
An entity, other than Wildlife Rescue South Coast, may not imply that it has a licence or accreditation when work is done by a principal of that entity under the authorisation of Wildlife Rescue South Coast. Nor may an entity or person fundraise on the basis that, relevantly, it is undertaking rescue and rehabilitation otherwise than as part of the Wildlife Rescue South Coast. However, Wild2Free continued to assert that it rescued, rehabilitated and/or released injured and orphaned native wildlife, [22] and as the documents make clear, sought donations on that basis.
Further, it is clear from the documents, including declarations made to the ACNC about activities of Wild2Free, that Wild2Free was representing that it rescued animals. Yet the plaintiff understood that, to the extent that the rescue of animals occurred, the rescue of animals was conducted under the authority of the Wildlife Rescue South Coast and was not an activity of Wild2Free.
The overwhelming impression of the plaintiff as a witness was that the plaintiff dissembled. The plaintiff took a deliberately technical approach to the meaning of words used in questions when it suited her, and a deliberately broad meaning to the same words when she considered that suited her case better.
The plaintiff was well aware that the rescue of animals was required to be performed by a body authorised by the National Parks and Wildlife Service. The plaintiff was also well aware that the only bodies or entities so authorised were, relevantly, WIRES and Wildlife Rescue South Coast. The plaintiff was a member of each at different times.
To the extent that the plaintiff was involved in the rescue of native animals at all, and the Court is not persuaded that she was during each or all the relevant time periods, the plaintiff was doing so because she was a member of either WIRES or Wildlife Rescue South Coast, and not as the entity Wild2Free. To represent that Wild2Free was “rescuing” animals was, to say the least, misleading.
I do not accept all of the evidence of the plaintiff. I accept the evidence of the plaintiff that is against her interest and the evidence of the plaintiff that is otherwise consistent with the documents in the possession of the Court. On the evidence that is accepted, the plaintiff was well aware, at the time she was representing that Wild2Free was “rescuing” native animals, that it was not so doing.
The evidence of the plaintiff during the course of cross-examination was to the effect that insurance monies were recovered by Wild2Free for losses incurred during the fire at Yowrie/Cobargo. A document was put to the plaintiff, and it was suggested to her that it indicated there was an arrangement whereby the Cobargo Wildlife Sanctuary would receive the monies obtained from the insurance on account of the losses suffered at Cobargo.
The plaintiff denied such an arrangement. Nevertheless, the documents disclose that monies were received by Wild2Free for the losses at Cobargo as stated immediately above, and, as a consequence of the “understanding” of the plaintiff that there was no arrangement for those monies to be paid to the Cobargo Wildlife Sanctuary, the monies were utilised by Wild2Free for its own purposes at Runnyford.
The document put to the plaintiff was an email dated 22 February 2020. This was a point in time after which there had been agreement to sell Cobargo recorded in the document signed by the defendants and the plaintiff.
The total amount insured seems to be in the vicinity of $800,000 referrable to Cobargo. It is unclear from the material before the Court what insurable interest was at the time held by Wild2Free or the plaintiff (or for that matter the defendants) in relation to Cobargo.
Moreover, the document put to the witness records, in an email which is a business record, an understanding that the insurance monies were to go to the rebuilding of Cobargo. [23] The reference in the document to “they’ve scored a new property with enough money left over to rebuild”, is plainly a reference to the defendants and records the plaintiff’s understanding that the money would be paid to the defendants and/or Cobargo Wildlife Sanctuary.
The evidence also discloses that a fundraising campaign or event was held and advertised. The advertisements for the fundraising event informed the ordinary reasonable reader that the funds raised (or the profits from the funds raised) will be given to Wild2Free for the Cobargo Property.
According to the evidence of the plaintiff, the original intention was that there would be a 50:50 split of the funds – half to go to Wild2Free and the other half to go to the plaintiff personally. In fact, there was not a 50:50 split; the funds were split in a manner which provided a greater amount to the plaintiff than to Wild2Free.
The plaintiff also gave evidence as to the level of reimbursement of establishment costs. The plaintiff managed the social media and fundraising efforts of Wild2Free including the GoFundMe campaign to which earlier reference has been made and the direct solicitations following the 2019-2020 bushfires.
As earlier stated, and notwithstanding the content of the advertising and the arrangement evidenced by the statement of the plaintiff to which earlier reference has been made, there was no distribution of bushfire relief funds to the Cobargo Wildlife Sanctury. Much of the advertising campaign related to losses at Cobargo.
There was cross-examination in evidence relating to a grant of $50,000 from the New South Wales Government. Again, the plaintiff prevaricated significantly.
The plaintiff was asked about the content of the application for the grant and answered by an assertion that she did not have a copy of the application. But the questions did not concern a copy of the application; they concerned the content.
Notwithstanding the significance of the application and the grant monies, the applicant was unable to provide any information as to the content of the application. The plaintiff was cross-examined as to the eligibility criteria for the grant and, while not admitting that Wild2Free was ineligible under those criteria, accepted that Wild2Free returned the $50,000 to the New South Wales Government. Yet some of the criteria seemed, without deciding the issue, to be such as to render the charity clearly ineligible for the funding.
There were also discrepancies arising from the evidence between the reported value of contents ruined in the fire in 2016 on a GoFundMe page and the actual insurance payout received. The plaintiff received a substantial insurance payout which was higher than the amount initially reported on the fundraising page.
There were significant questions as to the accuracy of the statements made on the GoFundMe page, at least approved by the plaintiff and possibly written in whole or in part by her, regarding the value of lost possessions and the insurance coverage. Evidence was provided about previous statements made by the plaintiff relating to information received from the insurance company.
The telephone conversations with the insurance company were the subject of audio recordings, which were played to the Court, and which undermined some of the evidence given by the plaintiff as to the claims made to the insurance company and the advice received from them.
In relation to the insurance claim, the plaintiff claimed an amount of $250,000 worth of belongings at Yowrie at the time of the fire. However, the plaintiff had intended to live at Yowrie for only four weeks. It is most unlikely that anyone would arrange delivery of so many items to a place they intended to live for only four weeks.
The plaintiff, in an explanation which I do not accept, suggested that the belongings were in containers that were, it seems by mistake, delivered to Yowrie instead of its intended address. The plaintiff had increased the value of her content’s insurance from $171,000 to $330,000 shortly before the fire and the loss of the property. Further, there were four containers of her belongings and only one that was at Yowrie.
The earlier mentioned discrepancies between the statements in the GoFundMe page and the insurance payout as a matter of fact were explained by the plaintiff as arising because the situation evolved rapidly, and her understanding of the insurance coverage and the value of the contents varied over time.
Evidence was adduced in cross-examination of the plaintiff as to her involvement in an ABC story questioning the defendants’ honesty. This evidence also covered the plaintiff’s actions and communications after the fire at Yowrie.
As earlier stated, some aspects of the demeanour of the plaintiff were such that it was fairly obvious that the plaintiff was dissembling, prevaricating and avoiding answering the questions. Further, in some attempts at answering the question, the demeanour of the plaintiff was such that the falsity and “play acting” of the plaintiff was palpable.
I make the foregoing comments having regard to the circumstance that demeanour can and usually is overemphasised in determining whether a witness is being truthful or even reliable. I also consider the comments of the plaintiff that she is “literal”, but the literal treatment of questions seems to apply mostly to questions the answer for which would likely be not in the plaintiff’s favour and always in cross-examination, rather than examination in chief.
There was a subsequent telephone conversation where, in response to Ms Agar-Teehan questioning why the second defendant would remain in Wild2Free in circumstances where she had accused the plaintiff of fraudulent conduct, the second defendant allegedly said that she needed to “stay on the charity to control the funds” and she was going to destroy the plaintiff.
Having informed the second defendant that she was going to telephone the plaintiff, Ms Agar-Teehan telephoned the plaintiff who confirmed that the Cobargo Property was owned by her and later sent a screenshot of what seems to be Title Deeds to that effect. Of course, the Title Deeds would not reflect the agreement of December 2019, nor would they reflect equitable title or interest, to the extent that such equitable interest may have passed (other than possibly by way of caveat).
Ms Agar-Teehan informed the plaintiff of the contents of her conversation with the second defendant, including the accusations of fraud, which shocked and upset the plaintiff. The conversation does not form part of the matters complained of in these proceedings. [25]
Ms Agar-Teehan had previously been informed by the second defendant, sometime after the plaintiff had posted publicly about hardship, that the plaintiff owned two properties and if she sold one, she would be able to live off the proceeds, while keeping the other. The evidence before the Court reveals that, at the time, the plaintiff owned three properties. Ms Agar-Teehan was annoyed that the plaintiff was pleading hardship in circumstances where she owned property and other wildlife carers were truly doing it hard and owned nothing.
The second defendant told Ms Agar-Teehan not talk to the plaintiff because the plaintiff would try to manipulate her.
Ms Paula Griggs, to whom reference has been made in relation to posts contained in the evidence before the Court, is a volunteer at the Little Urchin Sanctuary. The Sanctuary is leased by Ms Agar-Teehan for the purpose of the work of the Sanctuary.
Since the complaints and publication of the matters of which the plaintiff complains, she has seen a marked change in the plaintiff’s demeanour. The plaintiff is now quite stressed and uncertain of herself, lacks confidence and does not react as well to stress.
The plaintiff has removed herself from a lot of decision-making processes within Wild2Free as she was concerned about the conflict of interest or the allegation of it. One of the first tasks undertaken by Ms Davies-Morgan at the request of the plaintiff was to review the procedures of Wild2Free to ensure that conflict of interest was dealt with. The plaintiff now seeks Committee approval for everything.
The activities of Wild2Free do not include, according to Ms Davies-Morgan, rescue of animals, but would be better described as rehabilitation and direct care. This includes non-native animals, but the last domestic animal that was provided with rehabilitation was a cat approximately two years ago.
There was discussion on the Committee or amongst some or all of its members concerning compliance with the DGR requirements that Wild2Free might partner with another organisation so as to comply with the non-native care requirements. Wild2Free is not licensed to provide care for native animals. The plaintiff carries out care under arrangement with another organisation.
The screenshot in the Amended Statement of Claim, which is not admitted for the truth of its comments, discloses that, at the time it was taken, the comment had been on the website for five minutes. By admission during the course of the proceedings, the second defendant said it was on the website for no more than one hour. There is no evidence that suggests that the comment was on the website for more than one hour.
On the evidence before the Court, the Court is satisfied that the comment or like comments were the subject of discussion beyond the evidence of the small number of persons who read the comment. The number of persons involved in discussions of this publication is extremely limited.
The sixth impugned matter consists of five numbered paragraphs, representing five separate comments on one Facebook post. The first paragraph is a comment, critical of the defendants, from a person not associated with these proceedings. The second paragraph is a comment by Ms Claire Pragnell, a witness in these proceedings, which, properly understood, is critical of the defendants on the basis of their fundraising activities and the fact that they do not “own the property” on which the Cobargo Wildlife Sanctuary is situated. The third paragraph is a comment by a person not connected with the proceedings which is also critical of the defendants.
The fourth paragraph is a comment by the second defendant which is critical of the comment in the first paragraph of the publication. It states that the fundraising that was criticised was shut down and removed from the Cobargo Wildlife Sanctuary page in February and that the defendants do not solicit for funds anywhere. It asks the author to remove the comment and then, by way of comparison makes the comment, “perhaps you are referring to Wild2Free as [the plaintiff] continues to use the bushfires to raise money”. It is that last passage upon which the plaintiff in part relies.
The fifth paragraph is another comment by the second defendant also relied upon by the plaintiff. It takes issue with the ownership aspect stated by Ms Pragnell in the second paragraph and with the comments “verballing” the defendants as to their lack of connection with Wild2Free. It states that the plaintiff used the Cobargo Wildlife Sanctuary property as part of the fundraising and that the defendants did not request $500,000 for a house. It asks Ms Pragnell to remove her comments.
The evidence is that the comments attributed to the second defendant were posted by the second defendant. They were read by others and have therefore been published. It is unclear how many people read the comment, but some did, and it seems that these comments, or comments to like effect, were the subject of discussion beyond those for which there is evidence that they read the comments. The broader discussion seems also to be extremely limited.
In terms of the content of the publication, the Court is satisfied of the following: that the defendants were “purchasing the property since November”; that the defendants did say or indicate that they had nothing to do with Wild2Free; that fundraising was undertaken or authorised by the plaintiff which relied upon damage to the Cobargo Property; that the defendants did not seek $500,000 compensation for a house; and that Wild2Free was, at the time of the publication, still utilising the bushfires to raise money.
The seventh impugned publication is a continuation of the sixth impugned publication and consists of seven paragraphs, numbered 6 to 12, representing seven separate comments on the same Facebook page.
Paragraph 6 is a further comment by a person who commented in the sixth impugned publication, and it is critical of the defendants.
Paragraph 7, somewhat sensibly (albeit in this dispute unusually), calls for the author of paragraph 6 to “get a grip”. Paragraph 8 is a reply which is to the effect of treating paragraph 7 as not being serious.
Paragraphs 9 and 11 are over the name of the second defendant. The Court is satisfied that the second defendant posted each of those comments. The evidence is that at the time of the screenshot, which is in evidence, the comments were on the post for 49 and 40 minutes respectively. Paragraph 11 is a reference to the author critical of the defendants requesting her not to make “false and defamatory statements” about the defendants.
Paragraph 12 accuses the second defendant, and by inference the first defendant, of intimidation. The ordinary reading of paragraph 12 is that her claims about the defendants are “all over the media”.
I return to paragraph 9. The first part of the passage refers to that which is alleged to have been done by the Cobargo Wildlife Sanctuary since the fires, which includes caring for 50 animals, feed drops every day, rescues multiple times per week, giving animals a chance that no one else would, rehabilitating and successfully releasing injured and orphaned animals, all done from a caravan and shipping containers. It also alleges that the defendants have been carers for some twelve years.
It further asserts that, until the GoFundMe page, their activities were 100% funded by the defendants themselves. The post then makes a comparison with Wild2Free and asserts that over $80,000 was spent by Wild2Free on the rates for the plaintiff’s property, personal groceries, phone, internet and $35,000 in payments on the lease of her own property, all of which were funds of the charity. It also asserts that there was one joey in care in the past twelve months, no rescues, no feed drops after the fires and that sort of activity gives sanctuaries a bad name.
First, it is necessary to state that the Court concludes that the association between the plaintiff and Wild2Free is such that a criticism of the activities of Wild2Free or an imputation as to its character, if an organisation can have character, or reputation would be understood by the ordinary reasonable reader, who is aware of the relationship which is common knowledge, as impugning conduct which would be damaging of the character and reputation of the plaintiff.
Second, in relation to the seventh impugned publication, the Court is satisfied that it was posted by the second defendant and published, in that others read it. The screenshot itself evidences that fact as the posts are the subject of reply. The Court draws the inference that the contents of the publications were the subject of comment beyond the small number of people who read the document.
The eighth impugned publication is an email sent from the joint email address of the defendants and is sent over the name of the first defendant. The Court is satisfied that the first defendant sent the email and that it was read by the intended recipient. As a consequence, the email was published.
The email was sent from the recipient to the plaintiff and was circulated to some or all of the members of the Committee of Wild2Free and discussed amongst them. It was also discussed by a few people associated with the recipient. The Court is not satisfied, on the balance of probabilities, that it was read by anyone else. While it is difficult to differentiate discussion that may have occurred on content that is so similar over each of the publications, it does not seem that this publication was the subject of discussion beyond the recipient of the publication, some friends or associates of the recipient, the plaintiff and those to whom the plaintiff circulated the document.
Consequently, in relation to impugned publications 3 and 4, the pleaded imputations in (i) and (vi) arise on the plain and ordinary meaning of the correspondence. However, the imputations pleaded as (ii), (iii), (iv) and (v) did not arise from the ordinary wording and proper construction of the two publications, taking into account the understanding of the ordinary, reasonable reader.
Those imputations fail because the publication does not give rise to an imputation that the plaintiff refused to provide the contents of the application because she knew the application to have been made illegally and the unsubstantiated complaint against the second defendant were false.
The public Facebook comments which the Court has found to be published, being impugned publication 5, are pleaded as giving rise to two imputations. The plain and ordinary meaning of impugned publication 5 is such that imputation (i) plainly arises, namely, the plaintiff misused $50,000 of charity funds and took in one joey. The second pleaded imputation in relation to impugned publication 5 is partly express and partly inferred.
Imputation (ii) is accepted by the Court as arising in that the post published by the first defendant imputes that the plaintiff runs Wild2Free for her own personal financial benefit and not for the purpose of rescuing animals. This arises as a result of the material which says that the plaintiff “helped herself to over 50K in charity funds” and the earlier sentence that this was the “only person” the plaintiff helped. As a consequence, each of the pleaded imputations arise.
It is appropriate to deal with impugned publications 6 and 7 together as each are a series of comments on the same social media post. Paragraphs [4] and [5] in annexure F1 to the Amended Statement of Claim, which form part of impugned publication 6, must be understood in the context of the whole of the comments. Given that paragraph [4] is a reply to Carol Pittman’s post, the reference to “perhaps you are referring to Wild2Free” is a reference to Carol Pittman’s allegation that they are “taking money from anyone until they get caught or cornered” and “hurt good decent sanctuaries”. It should be understood necessarily as an imputation that the plaintiff takes money from people on the false pretence of continuing to use the bushfires to raise money for Wild2Free and therefore, pleaded imputation (i) is made out. So too is pleaded imputation (ii), namely that the plaintiff continues to take money from people on false pretences until she is caught out or cornered.
Impugned publication 7, which is annexure F2 to the Amended Statement of Claim, gives rise at paragraph [9] to an imputation that the plaintiff has misused Wild2Free funds by spending over $80,000 on her rates and other personal items and $35,000 to lease her own property. The express term “mostly” does not alter the substance of the imputation and, as a consequence, paragraph [9] in impugned publication (iii). The last passage in paragraph [9] gives rise to the imputation that the plaintiff is not running a genuine wildlife rescue charity because she, on behalf of Wild2Free, has conducted no rescues, no feed drops and had only one joey in care. Therefore, pleaded imputation (iv) is made out.
Impugned publication 8 expresses the view that the plaintiff has misled Ms Williams and others who have contributed to the GoFundMe page for the benefit of Wild2Free and, in its plain meaning, gives rise to pleaded imputation (i). It expressly alleges that the plaintiff engaged in “fraudulently obtaining a financial advantage” and that her “questionable conduct” is such as to give rise to a reasonable suspicion of fraudulently obtaining a financial advantage (if that be different). As a consequence, even though there is significant overlap in the imputations pleaded in (ii) and (iii) to impugned publication 8, each of the three pleaded imputations arise from the publication.
However, as with the aspects of Jones v Dunkel, the inference is drawn only in circumstances where it can be expected the evidence would be adduced and would be available to the opposing party. The plaintiff’s submissions seek to take the inference too far. The principles in Jones v Dunkel do not allow the Court to infer that the evidence not adduced would have been unfavourable to the party which did not adduce it.
In many respects Jones v Dunkel was an exceptional case in very similar circumstances to that which the High Court discussed in Weissensteiner. [53] Each judgment dealt with circumstances where the only surviving witness to an event and the only person with knowledge of that which occurred was the witness (a party) not called. [54]
Applying these principles to the present proceedings, the plaintiff, Ms Harvey, bears the onus of proving the matters already stated in paragraph [364] on the balance of probabilities. The defendants, Ms Tilling and Mr Henderson, bear the onus of proving the defences claimed to the same standard.
Special damage is not claimed by the plaintiff. Aggravated damage is claimed on the basis of malice, which is a matter on which the plaintiff bears the onus of proof.
Further, to the extent that the defendants claim qualified privilege and it is held to arise, the plaintiff claims malice to defeat this defence and bears the onus of proving such malice.
The effect of the evidence is that the plaintiff’s previous confidence, decisiveness and diligence had dissipated or been eliminated. Now, the plaintiff, as summarised above, disclosed a demeanour of a person who was lacking confidence, “second-guessed” herself and her decisions, and is stressed and uncertain of herself, having removed herself from decision-making processes.
Further, the evidence of the plaintiff was unchallenged in so far as she testified as to her feelings on reading the publications or being told of them. So too the evidence of the other reputation witnesses was unchallenged in that regard.
The plaintiff, as earlier indicated, submitted that the Court should award aggravated damages. Aggravated damages are a form of compensation and are not awarded to punish the defendants.
While there have been comments that come close to a suggestion that aggravated damages may factor into the amount awarded for the punishment of the defendant, the weight of authority is against punishment being a factor in aggravated damages. In Carson, supra, McHugh J said:
In relation to the plaintiff’s conduct on the GoFundMe page, the defendants rely, in particular, on the statement by the plaintiff in that publication that she “take[s] nothing from charity funds”. The defendants submit that that statement was known to be false by the plaintiff at the time she made it. The defendants also submit that the plaintiff had taken amounts for personal expenses, including for tyres, a new washing machine, an energy bill and a canvas print.
The defendants point to the lease, which has been described already as a payment from Wild2Free to the plaintiff as an example of the plaintiff “taking … from charity funds”.
The defendants also rely upon actions of the plaintiff at the board meeting on 1 May 2019 that are submitted to be falsely advising where she represented that Wild2Free was responsible for care of young joeys, when the plaintiff knew Wild2Free was not licensed to care for native animals and was not responsible for the joey’s care; falsely advising that her “entire” house was dedicated to Wild2Free activity; and that all activity done by the plaintiff as a member of Wild Life Rescue South Coast was not activity of Wild2Free nor activity of the plaintiff on behalf of Wild2Free.
The defendants rely upon the allegedly false information provided to the Board as to the nature of the land that was to be leased by Wild2Free as “agricultural land”, which information significantly affected the value of the property and the rent otherwise payable. The plaintiff, on the defendants’ submission, advised the Board that the land was “agricultural land” and therefore valued on a rental basis of between 5-9%. In fact, the submission states, the land was “mostly bush” and “not suitable for farming and therefore not eligible for an agricultural land lease rating”.
At paragraph [48] of the written submissions of the defendants, the defendants list, from the material presented in evidence by the plaintiff, amounts utilised to pay for household groceries for the plaintiff and the plaintiff’s partner.
The defendants also rely upon the application to the NSW Government Bushfire Relief Fund on behalf of Wild2Free. The grant, the conditions of which are in evidence, [83] was available to small businesses and not-for-profit organisations that “suffered direct damage to … premises or equipment”. The plaintiff applied for this grant on behalf of Wild2Free to replace a utility vehicle and a tractor mower both of which were allegedly known to the plaintiff at the time of the application as being owned by the plaintiff and not Wild2Free.
The defendants take issue with the evidence of the plaintiff that she had donated the aforesaid machinery to the charity in circumstances where there is no record of that donation. There is no record of the transaction; not even in the minutes of Wild2Free. It is personal property and does not require writing, but the plaintiff was unable to recount how it was said that the “gift” was effected.
The defendants also rely on a further condition to the grant, which excluded not-for-profit organisations that had received funding or assistance from other government programs or a “donation in relation to the not-for-profit organisation where that funding or assistance has met the relevant costs claimed”. The defendants point to the fact that at the time Wild2Free had raised $644,603 for these losses.
The defendants point to the proforma application form which requires the person applying on behalf of the organisation to have acknowledged that the terms and conditions of the grant had been read and were the subject of compliance.
Submissions were also made as to the raising of funds on the basis of three properties (Runnyford, the neighbouring properties to Runnyford and the Cobargo Property), but the distribution was made to no one other than Runnyford.
Justification is a defence which is raised by the defendants in relation to each of the impugned publications. In relation to impugned publications 2, 3, 4 and 5, the defendants also rely upon honest opinion. In relation to impugned publication 5, the defendants rely upon triviality pursuant to s 33 of the Defamation Act, as it applies and as it continues to apply to these publications in these proceedings.
The defendants submit that the Court should not accept the credibility of the plaintiff. These are matters upon which the Court has already expressed an opinion and determined its attitude. It is therefore unnecessary to repeat or summarise the submissions of the defendants in this regard.
Lastly, to the extent that the Court might find that there was defamatory material which is not justified or otherwise actionable and that damages can be assessed, the defendants seek to put material in mitigation of the damage, pursuant to the terms of s 38 of the Defamation Act. The defendants submit that the Court should award zero or nominal damages because the conduct of the plaintiff constitutes “misconduct”, and the plaintiff had undertaken conduct in defaming the defendants which constitutes a form of provocation.
The defamatory material that is raised in this respect includes the attack on the defendants to Ms Medwell; [84] the attack on the defendants through the Red Lion Disaster Fund and Ms White; [85] and the ABC article to which earlier reference has been made. In relation to the Red Lion Disaster Fund and the Ms White attack, the defendants submit that the Court should draw an inference that it was the plaintiff that provided the information to each of those entities or individuals and this material formed the basis of the attack.
The plaintiff submits and concedes that communications between members of any Board of any governing Committee should be prima facie protected by privilege for the common welfare and convenience of society, but even though that will apply to very high levels of generalisation in communications, it is not always the case. The plaintiff relies upon comments in High Court judgments to that effect and submits that the communications in the first impugned publication focus on the plaintiff’s alleged fraudulent conduct and are, as a consequence, not relevant or germane to the occasion of the Committee meeting. Further, the plaintiff relies upon that which it submits is malice, vitiating the qualified privilege occasioned, if there be one.
As to the second impugned publication, the plaintiff denies that there is a reciprocity of duty or interest between the defendants and Ms Babington of American Red Lion Disaster Relief Fund or either of them. The plaintiff also relies on malice in relation to this publication, if it be said that qualified privilege arises, to avoid any such privilege.
In relation to impugned publications 3 and 4, which are emails to persons who have nominated for the Board of Wild2Free, the plaintiff denies that there is any mutual interest or duty and submits that no occasion of qualified privilege arises. Further, the plaintiff submits that the communications do not reveal any matter that is germane to any perceived occasion of qualified privilege, if there be one.
The plaintiff submits that it is unclear that there is an interest held by a member to inform another member that they should not be nominating for membership of the Board. This, the plaintiff submits, is not for the common welfare and convenience of society.
Lastly, the plaintiff submits that as with the publications, if there be an occasion of qualified privilege, it is overcome by the existence of malice.
Essentially, the same submissions are made in relation to impugned publication 8. Further, in relation to impugned publication 8, the plaintiff relies upon the application of the principles in Jone**s v Dunkel to have the Court infer, by the first defendant’s failure to give evidence in respect of the GoFundMe page and his knowledge or lack of it as to its activity or inactivity at the date of the publication of the correspondence, namely, 30 August 2020, that there is no innocent explanation to provide for publishing when he did and the terms in which he published.
On the privilege associated with a reply to attack, which is a form of qualified privilege, the plaintiff relies upon statements of principle in well-rehearsed judgments of the High Court and English authority. The principles applicable to reply to attack will be more fully dealt with later in these reasons, but the plaintiff submits that, if there be such a privilege applicable to the publications to which the defendants seek to apply it, it is vitiated by that which the plaintiff submits is the malice of the defendants.
In dealing with the issue of reply to attack, the plaintiff submits that the privilege does not apply because the attack was made by persons other than the plaintiff and, if there be a reply, it does not involve a reply to an attack by the plaintiff. As a consequence, the qualified privilege, on the submission of the plaintiff, permitted to reply to an attack does not justify the defamatory material published by the defendants.
In relation to the ABC South East Facebook page, impugned publications 6 and 7, the plaintiff submits that the Court ought not hold that the plaintiff was the source of the attack on the defendants by the ABC. Further, the plaintiff submits that there is no evidence that the plaintiff instigated the article in the ABC South East Facebook page.
The plaintiff also takes issue as to the audience that would have read the ABC article, which, I assume, is intended to suggest that there cannot be a reply to an attack to which qualified privilege applies where the audience to the reply is different from the audience to the attack.
The plaintiff then takes issue with the submission of the defendants as to the truth or substantial truth of the imputations. After citing some authority for the meaning of substantially true as it appears in s 25 of the Defamation Act, the plaintiff then seeks to analyse each of the imputations. The plaintiff seeks to analyse the facts, the evidence for which has already been summarised in these reasons.
The plaintiff relies upon the failure to cross-examine on certain issues to give the plaintiff an opportunity to explain. However, to the extent that the issue was raised in cross-examination, explanation could have been given in re-examination were it desired to be given.
Further, the criticism that the defendants could not rely upon Exhibit V1, page 1, to show fraudulent conduct is, as it is submitted, misplaced. First, if the inference available from the document itself is unavailable if the entire website would have been tendered, then plainly the plaintiff could have tendered the website. The website is a product of the plaintiff and/or Wild2Free.
Secondly, a criticism of the defendants that nobody would expect an organisation to perform acts without human beings being involved, does not answer the issue associated with the submission of the defendants. A corporation has, to paraphrase, neither a soul to be damned nor a body to be kicked.
Nevertheless, the fact that an organisation acts through human beings does not mean that all of the conduct of every human being associated with the organisation or corporation is the act of the corporation. The circumstance that the plaintiff was authorised to rescue, rehabilitate and release injured and orphaned animals on behalf of an organisation other than Wild2Free does not involve the ordinary understanding that Wild2Free was, as a consequence, rescuing, rehabilitating and releasing injured and orphaned animals every time the plaintiff chose so to do.
The plaintiff cannot “have her cake and eat it”. She relies upon comments defamatory of Wild2Free as being defamatory of the plaintiff, because of her association with the charity. The plaintiff is not entitled to act inconsistently in this respect.
The plaintiff was the President and only full-time worker for Wild2Free. From an administration point of view, according to the evidence of the plaintiff, she ran Wild2Free and provided the day-to-day content for most of the Facebook page and mostly provides the content for the updates and attends to having those published. To suggest that the Court cannot draw the inference, in the absence of evidence adduced by the plaintiff, that she did not authorise or attend to the content of the screenshot upon which the defendants rely is, in the principles stated by the plaintiff herself, contrary to the inferences available under the principles in Jones v Dunkel.
Further, the plaintiff submits that there is “no evidence that [Cobargo] was part of Wild2Free”. Frankly, that grossly overstates the evidence or lack of it.
There may not be evidence that would require a finding that Cobargo was part of Wild2Free at all times, but there is sufficient material from which a Court could infer, at least until such time as Cobargo property was transferred to the defendants, that it was part of Wild2Free. First, it was advertised as part of the fundraising campaign by the plaintiff as a result of the damage from the fires. Secondly, there are a number of documents that refer to the Cobargo property and its activities as being part of Wild2Free. Thirdly, the plaintiff herself requests that the animals under care at Cobargo be listed, so that Wild2Free can better justify its DGR status in its returns.
In relation to impugned publication 2, the plaintiff submits that there is, from the evidence, nothing about the source of the alleged disparaging remarks being the plaintiff or Ms Agar-Teehan relating to the Red Lion donation. Further, the plaintiff relies upon the lack of cross-examination of the plaintiff as to her role in providing disparaging information to Ms Medwell in respect of the defendants for the purpose of preventing a donation to the defendants by American Red Lion.
Otherwise, the reply to the justification issues relies upon an analysis of the evidence, the failure to cross-examine on certain material and the inferences available from the failure to call either one or both of the defendants.
Further, the plaintiff relies upon the onus of proof being on the plaintiff to prove justification or substantial truth of the imputations arising.
As to the defence of honest opinion, the plaintiff firstly denies that there has been any statement of the facts upon which any such opinion, if it be opinion, arises. Secondly, there has been no attempt by the defendants to articulate how and in what circumstance that which was published was “opinion”, as opposed to a statement of fact.
The plaintiff submits that the defendants chose not to give evidence as to whether they intended to convey the imputations, although, it is unclear to the Court why their intention, if it were to exist, to convey the imputations is relevant, other than perhaps on the question of malice. Further, the inference available does not allow the Court to draw an inference that such evidence would have been adverse to them; only that it would not have assisted their case. Further, the absence of evidence from the defendants allows the Court more readily to draw an inference otherwise available on the evidence, in the absence of evidence to the contrary.
The plaintiff next deals with the issue of triviality. After stating the relevant principles, the plaintiff submits that the triviality defence does not apply because the determination of any harm is prospective and not retrospective, needs to be determined objectively and the determination depends upon whether the plaintiff was, at the time of publication, unlikely to sustain any harm to her reputation. As a consequence, the plaintiff submits that the triviality defence does not apply.
The plaintiff further submits, as one would expect, that the Court should not find against the credit of the plaintiff and provides a number of examples of circumstances that were relied upon by the defendants against the credit of the plaintiff that do not, as a matter of logic or common sense, give rise to any such finding. The plaintiff’s reply uses examples and the circumstances arising from them, and none of those examples or circumstances are matters upon which the Court relied in dealing with the credit of the plaintiff.
Lastly, the plaintiff relies, in reply, on the issues of malice and aggravated damages. First, the plaintiff relies upon knowledge of falsity of the imputations. Secondly, the plaintiff relies upon an improper purpose, being to exert pressure on the plaintiff to sell the Yowrie property to them; to exert pressure on the plaintiff to give them money from insurance payouts; and to exert pressure on the plaintiff and the Committee members of Wild2Free to obtain a financial gain being money from donations obtained because of the fires.
The plaintiff relies upon the minutes of the meeting of 17 June 2020 and the record therein of the first defendant as to his motivating purpose for the complaints and the pressure being exerted on the plaintiff and the Committee.
The plaintiff asserts that no matters were raised in mitigation requiring a response and relies, for the purposes of aggravation, on seven substantive matters. Those matters are the meeting of the Board of Wild2Free on 17 June 2020; emails to the auditor attaching documents; the provision of documents to the plaintiff’s insurer, being financial statements from family law proceedings in the Federal Circuit Court; the provision of the defence in the defamation proceedings to Jenny Packwood; an email sent to the plaintiff on 6 September 2021 attacking the plaintiff as “one big fraud” and referring to “charity fraud, GoFundMe fraud and insurance fraud”; the provision of the defamation defence to Sarah Hart; and the continued publication of the imputations, asserting their truth, after the Court issued orders on 17 September 2021. The continued publication includes the publication of the second defendant of 27 July 2022, 22 November 2022 and 11 April 2023, a publication of the first defendant on 5 September 2023 and a publication of both defendants on 16 August 2023.
In relation to the email of 6 September 2021, there is no evidence as to the source of the email or that it derives from the defendants. Given the nature of the allegations that are made elsewhere it is very possible, if not probable, that the source of the email is the defendants, but the Court is not satisfied, even on the balance of probabilities, that the plaintiff has established such a circumstance.
The plaintiff submits that the matters raised as evidence of malice (including the campaign by the defendants) are matters that are unjustifiable and lacking in bona fides, the most egregious of which is the provision to the insurer of the confidential family law affidavit. The plaintiff claims “a significant award of damages”.
A further question arises as to whether, if there be a republication for which the defendants are liable, the defendants have available to them any defence associated with the republication. In other words, if, for example, the republication were in circumstances where qualified privilege applied, can the defendants take advantage of that qualified privilege?
The answer to the foregoing question depends very much on the nature of the defence that would otherwise be applicable. It also depends upon the contemplated target of any republication and whether such contemplated republication was to be in such circumstances. No general rule may be laid down, and the availability of a defence will very much depend upon the defence and the circumstances of the publication and republication.
Secondly, it is necessary to deal with the issue mentioned above relating to the applicability of qualified privilege in reply to an attack. The plaintiff submits, as already stated, that the qualified privilege of reply to attack is vitiated by the circumstance that the defamatory material was published in relation to a person other than the person who initiated the attack. In my view, there is no such general principle.
The qualified privilege of reply to attack applies where the reply is relevant to the attack. If an attack on a third person is relevant to the reply to the attack made against a defendant, then the qualified privilege may, subject to any other condition, apply.
In Bashford, supra, the High Court clarified the principles that operate in dealing with the qualified privilege of reply to attack. The High Court in Bashford was dealing with defamatory material contained in a newsletter relating to occupational health and safety and was primarily concerned with the issue of whether there was an occasion of qualified privilege. In doing so, it dealt with previous comments requiring a “reasonable occasion or exigency” for the defamatory material.
The High Court held that reciprocity of duty or interest is essential. [92] Dealing with what may be misunderstood from the intermediate of Court of Appeal judgment, the plurality in the High Court made it clear that qualified privilege was not a “licence to defame”. The plurality said:
The High Court made clear that the circumstances with which it was concerned in Pap**aconstuntinos were different from those in Bashford and the majority said:
While the plaintiff has obviously felt extremely embarrassed about the imputations that have been made by the defendants about her, there is little or no evidence that the plaintiff has been shunned. If the plaintiff has been reclusive, it is on account of the embarrassment and hurt that she has felt, consequential on the publication of the impugned material.
The purpose of damages in defamation is consolation for the personal distress and hurt; reparation for the harm done to the defamed person’s personal and business reputation; and vindication of the plaintiff’s reputation. The award of damages, if given, must be such that it is the minimum necessary to disclose to the public that the defamed person’s reputation has been vindicated.
These purposes were summarised by the High Court, which said:
The fifth matter complained of, which is the public Facebook page of ARC, gives rise to imputations that the plaintiff misused $50,000 of charity funds and took in one joey and that the plaintiff runs Wild2Free charity for her own personal financial benefit and not for the purpose of rescuing animals. Again, these are clearly defamatory and plainly arise from the ordinary meaning of the words.
The sixth and seventh impugned publications are postings on the Facebook page of ABC South East New South Wales. The Court has already held that they give rise to imputations of the plaintiff taking money from people on false pretence; of misleadingly continuing to use the bushfires to raise funds; that she will continue so to do until she is caught or cornered; that the plaintiff has misused Wild2Free charity funds by spending $80,000 on her rates and personal expenditure and $35,000 to lease her own property; and that the plaintiff is not running a genuine wildlife rescue charity because it has not rescued any animals.
The eighth matter complained of imputes that the plaintiff has misled one or more persons regarding the losses she has incurred; the plaintiff has fraudulently obtained a financial advantage; and the plaintiff is reasonably suspected of fraudulently obtaining financial advantage. Again, reading between the lines, the imputation that the plaintiff has misled persons is an imputation that the plaintiff has misled people deliberately.
At the heart of the sting of these imputations is the allegation that the plaintiff has acted fraudulently; has illegitimately misused charitable funds or funds raised for the charity; and has misled people for the purpose of raising funds which have ultimately been used for her own benefit or deliberately misrepresented the purpose of the fundraising exercises.
I have, quite intentionally, summarised the evidence at length. It gives rise to a number of necessary findings. It must be borne in mind that the defendants bear the onus of proof on the truth (or contextual truth) of the imputations.
I have concluded that the plaintiff misrepresented and/or misled donors and people in the advertising that was published for fundraising and other activities as to the operation of Wild2Free and losses incurred related solely to Runnyford. I have also concluded that Wild2Free paid the plaintiff significant monies during the period of her rental agreements. Those monies included rent and expenses. It also spent monies to the benefit of the plaintiff in improving the plaintiff’s property and thereby increasing its value.
The lease agreements are evidenced by the minutes to which reference has already been paid, [102] which commenced rental payments from 3 May 2019 and certain other expenses; the land lease agreement from 1 March 2020; [103] and, the third lease in more formal terms, which operated from 1 July 2021 for a period of ten years. [104] Some of the terms of the leases and in particular, the aspects which are described as being for the exclusive use of the plaintiff or the joint use of the plaintiff and the charity, are unusual.
However, an allegation of fraud to the ordinary reasonable reader involves knowing dishonesty.
If the plaintiff did not own the property at Runnyford, then Wild2Free would be required to pay rent or purchase the property. Charities, in that sense, are in no different position to any other entity. They cannot simply utilise land that is not owned by them for their own purposes, without some arrangement with the owner.
The evidence before the Court has not satisfied the Court that the rent paid is not an appropriate market value. There is also no evidence before the Court from which an inference can be drawn that the plaintiff was acting dishonestly in agreeing to a rental payment by Wild2Free to her for the use of the property in question.
There is abundant evidence, which I accept, that the property was overwhelmingly used for the care of animals. The reason for the rental payment is addressed in the minutes and other documents before the Court and, essentially, relates to the circumstance that the plaintiff could not afford to pay the outgoings of the property and to live without some form of compensation for the use of the land. Such a purpose involves neither dishonesty nor fraud.
It is the conclusion that the Court has reached that Wild2Free did not “rescue” animals. Wild2Free was not licensed to rescue animals. The plaintiff was licensed to rescue animals and did so as an authorised representative of one or other of the rescue organisations, as earlier stated.
Nevertheless, the evidence does not require a finding that when the plaintiff represented that Wild2Free was rescuing animals, she was knowingly being dishonest. On the contrary, it is far more likely that the plaintiff paid no regard to the separation of the legal entity between herself and Wild2Free.
There are a number of aspects of the evidence which directly relate to the failure by the plaintiff to draw the distinction between the charitable entity and the plaintiff and there is substantial evidence that leads to an inference being drawn that no distinction between the activities of the plaintiff and Wild2Free was maintained. The inference to that effect is irrefragable.
In other words, while the Court considers that donors were misled as to the rescue operations of Wild2Free, such misrepresentation was not done dishonestly and more probably than not was done without any regard being had to the distinction between Wild2Free as a charitable entity and the plaintiff. Further, rescue operations were undertaken, but, legally and technically, not by Wild2Free. To the extent that moneys donated to Wild2Free were utilised to support the plaintiff’s rescue operations, I consider that the ordinary reasonable reader would not see that as fraud, nor as dishonest.
Further, the evidence suggests that the plaintiff was not always cognisant of accounting methods. The evidence of the plaintiff to the effect that she was not being paid that amount of $700 per week at the time the publication was made, when she had been paid in advance for the period in question, is not dissimilar to the circumstance that the plaintiff had overpaid herself as the manager of the band. The circumstances relating to each of those aspects have been recited previously.
The Court does not consider that the plaintiff was being “dishonest” in those remarks or in that conduct. The payments had been made some time ago and the plaintiff’s analysis did not treat those pre-payments as a payment for the entirety of the period for which it was prepaid.
I draw no inference that the plaintiff was being dishonest in that conduct or in those answers to those questions. There is also no suggestion in cross-examination that the overpayment whilst manager of the band was a product of dishonesty. The Court does not draw the inference and does not find that the misrepresentations that were made in relation to the rescuing of animals were knowingly misleading.
As to the issue of the distribution of funds from the concert, it is fair to say that the funds were ultimately not distributed in the manner initially described. However, that is a long way from determining that there was any dishonesty or misappropriation of the funds. Rather, it reflects a casual attitude to the distribution of the amounts received from the fundraising exercise and, once more, a failure to differentiate strictly the interests of Wild2Free from the interests of the plaintiff.
Next, in terms of conclusions of fact, I turn to the distribution of funds raised as a consequence of the fundraising episode in which the Cobargo Wildlife Sanctuary work was utilised as part of the losses. Again, while the Court has found that the losses at Cobargo were a basis upon which funds were raised (or insurance claimed), by the time funds were to be distributed, Cobargo was being run separately and the evidence does not go so far as to suggest that the plaintiff was being dishonest or fraudulent when, after the funds had been raised, the funds were utilised only for Wild2Free at Runnyford, in circumstances where the funds were raised for Wild2Free.
The circumstance that Wild2Free paid money to the plaintiff for rent and other purposes (or built or improved fixtures on the property) is not synonymous with the proposition that the plaintiff ran Wild2Free as a private fundraiser for her own financial benefit. The evidence before the Court establishes that the plaintiff managed successful bands prior to being involved in the care of animals.
The plaintiff did not undertake her work with animals for the purpose of obtaining funds. The plaintiff was earning far more as a manager of bands than she earned or would have earned caring for animals. Moreover, the receipt of rent, at least, was taxable as income.
There are a number of bases upon which it is clear that the plaintiff did not operate Wild2Free solely for the purpose of paying herself money. Indeed, the Court does not find that the plaintiff ran Wild2Free for a purpose that included the payment to her of money.
First, the plaintiff commenced operating Wild2Free and caring for animals long before monies were paid from the charity to the plaintiff. Secondly, the plaintiff, on the evidence, expended almost all of her time in the care of the animals.
Thirdly, the payment to the plaintiff from Wild2Free was not determined solely by the plaintiff. Rather, the payments to the plaintiff were authorised by the Committee of Wild2Free, on which, on some of the relevant occasions, the defendants sat and contributed to the meetings and approved the payments.
Nevertheless, there is a confusion in terms of expenditures and the ascertainment of losses from fires between the assets of the plaintiff and the assets of Wild2Free. As earlier stated, I do not consider the confusion to be dishonest. It reflects the failure to differentiate between personal interests and the interests of Wild2Free. However, the confusion between the entities and their proprietary interests caused the losses of Wild2Free to be misstated and misrepresented and, in so doing, the plaintiff and/or Wild2Free misled persons who gained access to the GoFundMe page. [105]
Imputation (i) to the eighth impugned publication is justified, in that it is true.
It is also true that the plaintiff has raised money by continuing to use the losses incurred as a result of the bushfires to raise money. However, it has not been proved, on the balance of probabilities, that the raising of such monies is based on a “false pretence”.
Other than imputation (iv), the imputations said to arise from impugned publications 6 and 7 have not been proved to be true and are not justified. It is true, and therefore justified, that the plaintiff is not running a wildlife rescue charity.
This is a result of the licensing arrangements to which the Court has already referred and the circumstance that, on account of that licensing and the restrictions on other entities, Wild2Free is not a “rescue” charity. While I do not consider that imputation (iv) said to arise in relation to impugned publications 6 and 7 was intended to impute a comment that depended solely on the distinction between the plaintiff and Wild2Free, that is the basis upon which the Court holds that it is true and justified.
The Court has already determined that imputations against Wild2Free and criticisms of it, to the extent that the criticisms are defamatory, are criticisms that identify the plaintiff as the person who is being defamed. However, the converse is not true. The mere fact that the plaintiff may be rescuing animals does not involve the consequence that Wild2Free was a rescue organisation or was rescuing animals.
As to impugned publication 5, the Court has already dealt with the truth of the imputation that Wild2Free was run for the plaintiff’s “own personal financial benefit and not for the purpose of rescuing animals”. Apart from the distinction that arises from the circumstance that Wild2Free was not licensed to rescue animals, it cannot be said, on the evidence before the Court, that the plaintiff ran Wild2Free “for her own personal financial benefit”. This imputation is not justified.
Further, for reasons already provided, the monies transferred from Wild2Free to the plaintiff were not a “misuse” of the funds of the charity. The imputations that are said to arise and have been held to arise separately in relation to impugned publication 5 do arise, are defamatory and are not justified or true.
The two emails to persons who were nominating for the Board of Wild2Free, the third and fourth impugned publications, have, as questions of fact, largely been the subject of earlier comment. It is necessary to formalise the findings that arise from the earlier comments.
Imputation (i) arises and is not justified. The same can be said for imputation (ii). Even if the plaintiff did, to some extent, conceal from the Court, the ACNC, Fair Trading and the Police, the contents of the application for the $50,000 grant from the NSW Government, it has not been shown that the conduct in failing to reveal the contents of the application was undertaken because the plaintiff “knew the application to have been illegally made” by her or anyone else.
Nor have the defendants satisfied the Court on the balance of probabilities that the plaintiff’s complaint against the second defendant was “unsubstantiated and false”. It may well have been each or both, but the evidence before the Court does not require the Court to come to that conclusion and the Court does not conclude that the allegation is true.
For reasons already given, I do not consider that the defendants have proved, on the balance of probabilities, that the plaintiff misappropriated funds received by Wild2Free through its Sanctuary Rebuild Appeal. I consider that the ordinary reasonable reader would consider that dishonesty or knowing misuse was necessary for misappropriation to have occurred.
Like fraud, the legal, criminal or equitable and technical meaning of misappropriation is only marginally relevant. That which is relevant is how the ordinary, reasonable reader would understand the allegation.
The earlier comments have dealt with the content of imputation (v) to the third and fourth impugned publications, which deals with the concealing of the contents of the application for the $50,000 grant because the plaintiff knew that the charity was not entitled to the grant.
As to impugned publication 2, imputations (ii), (iii), (iv) and (v) each allege fraud or fraudulent conduct. For the reasons already given, I do not consider that the defendants have proved on the balance of probabilities that the plaintiff was engaged in fraud or knowingly dishonest conduct.
The only remaining imputation is that the plaintiff misused funds donated by American Red Lion Disaster Fund to Wild2Free by not using those funds to help animals in need from the 2019 bushfire. As already described, after the allegations were made by the defendants as to the eligibility of Wild2Free to the Government grant and the misuse of funds in other respects, expenditure by Wild2Free was frozen. The fact that funds were not expended immediately does not result in the conclusion that the funds were not used to help animals.
Further, to the extent that funds were used to pay rent for the property on which Wild2Free operated or for other expenditures of Wild2Free, in circumstances where Wild2Free was helping animals in need, those funds were being used to help animals in need.
The Court is not satisfied that the funds were used to help animals in need from the 2019 bushfire disaster, but the Court is also not satisfied that they were not used for such a purpose. Given that the defendants bear the onus of proof, imputation (i) in impugned publication 2 has not been proved to be true and is not justified.
Each of the imputations that are said to arise from the first impugned publication involve either fraud or fraudulent conduct or the operation of Wild2Free as a private fundraiser for the plaintiff’s own financial benefit. Each of those matters and the conclusions arising from the evidence has already been discussed. Each of the separate imputations that arise as a result of the first impugned publication is defamatory and is not justified or true.
Having dealt with the defence of justification, it is necessary for the Court to deal with the other defences raised by the defendants in these proceedings. First, the Court will deal with the issue of qualified privilege, which falls into two subcategories: reply to attack; and mutual interest and/or duty.
The Court has already discussed the submission of the defendants that the mere fact that the attack to which a publication is a reply is published by a “third person”, being a person other than the person defamed, does not of itself negate the availability of the qualified privilege of reply to attack.
The qualified privilege of reply to attack is raised in relation to the social media posts, being impugned publications 6 and 7. As already discussed, impugned publication 7 was a post placed upon the ABC South East Facebook page in which there had been no attack on the defendants. The alleged attack on the defendants was on a different social media page and it has not been shown that the readership is the same or even similar. Indeed, it has not been shown that the readership overlaps.
It is unnecessary to determine whether, of itself, the circumstance so described would deny to the defendants the availability of the qualified privilege of reply to attack because there are other reasons why these social media posts fall into the same category as impugned publication 6.
Essentially, the defendants seek to defend, with this argument, an attack on the plaintiff as a result of an attack on the defendants or their organisation. The defendants, in refuting the allegations made against them and the Cobargo Wildlife Sanctuary, volunteer the information that criticises Wild2Free and/or the plaintiff.
Such defamatory material is the equivalent of suggesting that an allegation of corruption by a politician, for example, can be answered by submitting that other politicians are corrupt. The example is not intended to single out politicians. Such an example would apply to any occupation in which an allegation of corruption would be damaging.
As earlier expressed in relation to the principles associated with the qualified privilege of reply to attack, the determinant of whether the qualified privilege applies to the particular publication and/or imputations depends upon the relevance of that which is said to answer the attack. It is not relevant to the question of misconduct or corruption by the defendants or Cobargo Wildlife Sanctuary that another sanctuary, in particular the plaintiff and/or Wild2Free, is also, or is otherwise, corrupt, fraudulent or giving wildlife sanctuaries a bad name.
The qualified privilege allows the defendants to answer the attack and, in so doing, publish defamatory imputations that are relevant to the answer to the attack. It does not allow the publication of defamatory imputations that are irrelevant to the attack made against them.
When it is alleged that the defendants and/or Cobargo Wildlife Sanctuary have conducted themselves in a manner which involves damaging the reputation of either one or both, a comment that another organisation or another person has behaved in that manner is not an answer to the attack on the defendants. I consider that the attack by the defendants on Wild2Free and/or the plaintiff in these social media posts, while intended to be part of a reply to attacks on the defendants, makes allegations that harm the plaintiff, are damaging to the reputation of the plaintiff, and the allegations are irrelevant to the attack on the defendants and the Cobargo Wildlife Sanctuary. The qualified privilege of reply to attack does not apply to the social media posts.
It is then necessary to deal with the qualified privilege arising from alleged “community of interest”.
On 14 April 2020 when the first matter complained of was sent to Mr Orbell and Ms de Valle, the defendants were members of the Board of Wild2Free as were the recipients of the publication. Similarly, on 7 July 2020, when the second matter complained of was published to Ms Babington of the American Red Lion Disaster Fund, the defendants were members of the Committee of Wild2Free.
When the third and fourth impugned publications were sent, in July 2020, the defendants or one of them was a member of the Board of Wild2Free and the recipients were nominees for the Board. None of the other matters complained of were contained in publications that are even arguably the subject of mutual interest.
There can be no mutual interest between the defendants and all of the readers of the ABC South East NSW Facebook page.
Impugned publication 8 was sent to the organiser/administrator of the GoFundMe fundraiser page for Wild2Free, which was no longer operative. It is unarguable to suggest that there is a mutuality of interest between the defendants, or either one of them, on the one hand, and, on the other hand, the recipients of any one of those latter publications.
I return then to the first four impugned publications for which the defendants claim qualified privilege based upon mutual duty/interest. The principles associated with qualified interest under this rubric have been previously outlined in these reasons.
As earlier stated, Wild2Free was a corporation which operated as a charity and was registered under the ACNC and possessed DGR Status under the provisions supervised by the ATO. Consequently, each of the members of the Board of Wild2Free are directors or officers of the corporation and while, because incorporation occurred under the Associations Incorporation Act 2009 (NSW), they are not bound by all the terms of the Corporations Act 2001 (Cth), they still owe duties to the corporation and to the members of the corporation. I discuss those duties or interests by reference to the Corporations Act, but only because it codifies, in relevant respects, the duties owed by the officers.
If there were, as alleged, misappropriation of funds or fraudulent conduct, then each of the members of the Board had an interest in knowing of such conduct and a duty to act in the interests of the corporation (and its members) to ensure such conduct had ceased. Further, as officers of the corporation, they were required to exercise their powers and discharge their duties with a degree of care and diligence that a reasonable person would exercise if the reasonable person occupied the office or were a director. [106]
Further, or in the alternative, each of the directors are required to exercise their powers and discharge their duties in good faith in the best interest of the corporation and for a proper purpose. [107] If, as was alleged, the plaintiff were using her position improperly to gain an advantage for herself or cause the corporation detriment, and the other officers knew or were involved in that contravention, the plaintiff and each of the other officers would also be in contravention of such duties. [108]
Thus, if the allegations or imputations published by the defendants to other members of the Board were imputations or allegations relating to the improper use or the position of the plaintiff in Wild2Free for her own personal gain, or dishonestly using her position for that purpose and/or not acting in good faith, it was a reciprocal duty of each of the members of the Board of Wild2Free to publish that which they knew of that circumstance and to ensure that the other officers of the charity were aware of it. There was a mutual interest and/or duty involved in the publication of such allegations.
Further, to the extent that a person was nominating for a position on the Board of Wild2Free, there is an obligation and/or duty or interest to know that which is being alleged of the corporation and the conduct of its officers that are in breach of duties and the principles of good governance. Each of these publications (except impugned publication 2) involve the mutuality of interest or community of interest and/or duty, such that qualified privilege arises in relation to the communication.
It matters not that the communication may be untrue. However, the Court does not conclude that the imputations are untrue. The Court has concluded that the defendants have not proved the imputations that arise to be true, but that is a different concept.
I hold that each of impugned publications 1, 3 and 4 is a publication to which qualified privilege applies as a defence to the defamation proceeding. I do not consider that there is the requisite mutuality of interest or duty between the defendants and Red Lion Disaster Relief Fund or its officers.
The plaintiff submits that the defence of qualified privilege is vitiated by malice. As a principle, malice will defeat the defence of qualified privilege.
As to malice, there are a number of comments that need to be made. First, it has not been proved that, on the balance of probabilities or otherwise, the defendants knew that the allegations were untrue.
Secondly, the circumstance that the defendants may have been conducting a campaign is not, of itself, a basis for defeating qualified privilege. The campaign, in order to defeat qualified privilege, must be for an improper purpose. A campaign may be evidence of an improper purpose.
The plaintiff submits that there were a number of purposes that can be inferred for the campaign. It is said that those inferences arise from the evidence before the Court.
If a purpose of the campaign was to ensure that Cobargo Wildlife Sanctuary received a distribution of monies raised from the fundraising activities to which reference has already been made, such a purpose does not, if it were improper, defeat qualified privilege. The plaintiff must prove the substantial or operative purpose for the campaign and that the purpose was improper (not different).
Conduct may have a number of purposes. It is only when the operative purpose of the conduct is “improper” that malice has been disclosed, and the qualified privilege is defeated.
The evidentiary findings of the Court have been set out in some detail. There is no doubt that there is animosity between the plaintiff and the defendants. The animosity may have a rational basis. It is unnecessary for the Court to determine that question.
The findings of the Court, as set out above, are that: the plaintiff and Wild2Free misled donors as to the activities of Wild2Free in rescuing animals; significant amounts of money were paid from Wild2Free to the plaintiff for rent and outgoings; funds were raised by Wild2Free on the basis, amongst other things, of the losses incurred at Cobargo and there was no distribution to Cobargo from those funds raised; while Cobargo Wildlife Sanctuary is a separate operation now, there was a time when Cobargo was part of Wild2Free and the defendants donated monies for equipment to Wild2Free for use at Cobargo, but the monies were not used for purchase of the equipment for that Sanctuary; and, the defendants as members of the Board of Wild2Free and the operators of the Sanctuary at Cobargo were aggrieved by the level of payments to the plaintiff and the failure of Wild2Free to distribute funds raised proportionately to the benefit of the Cobargo Sanctuary and the delivery of the machinery for use at the Cobargo Sanctuary.
The Court has not concluded, on the basis of the evidence adduced, that the defendants knew that the conduct of the plaintiff was not fraudulent, was not misappropriation and was not the misuse of funds. While the Court has concluded that it has not been proved that there was misappropriation or misuse of funds, or dishonesty and, more relevantly, that the defendants have failed to prove any impropriety, the Court is not satisfied that the “campaign” and, more relevantly, the publication of the documents, was for an improper purpose in that such improper purpose was an operating factor on the publication.
Consequently, the Court is not satisfied that the defendants have acted with malice relating to impugned publications 1, 3, and 4, and the claims for qualified privilege on the basis of community of interest operate as a defence to the defamatory publications.
I turn then to the American Red Lion Disaster Fund publication. This publication occurred in the United States of America as it was an email to the United States which was, in the sense earlier referred to, downloaded in the United States and published there. The plaintiff submits that the Court should operate on the presumption that the law in the United States, absent proof of the law, is the same as that which operates in Australia. The difficulty with such a presumption is that it is rebuttable. It is also a presumption that cannot operate in the face of common sense.
The Court is aware that defamation law in the United States of America is different from that which operates in Australia. While the Australian Constitution (especially Chapter III) is modelled on the Constitution of the United States of America, the Australian Constitution does not have a Bill of Rights.
No Australian legal practitioner would be unaware of the First Amendment to the Constitution of the United States which forbids laws abridging the freedom of speech, freedom of the press and the right of assembly.
Nevertheless, the freedom of the press guaranteed by the First Amendment does not qualify defamation law as it applies to persons who are not public figures. In the case of public figures, knowing or reckless conduct of the publisher must be proved. However, this is not a publication that concerns public figures.
Even though the Court is aware that there are different burdens of proof and a different onus of proof of some of the details associated with defamation law in some States of the United States of America, it is appropriate, at least relating to a person who is not a public figure, to operate on the presumption that the law in the United States of America as to defamation is the same as operates in Australia.
As a consequence, the submission of the defendants that the Court ought to dismiss the claim in relation to the publication is not accepted. Further, the Court has jurisdiction to determine the claim, even though the lex loci delicti (the location where the tort occurred) is the United States. As already stated, qualified privilege does not apply to this publication and damages will be assessed.
The defendants raise the defence of “triviality”, which, under the law as it operated at the time relevant to these proceedings, was an aspect of the Defamation Act. [109] The provision was repealed when the legislature required “serious harm” as an element of the cause of action. The terms of s 33 were as follows:
As a consequence, the defamatory publications that are actionable are confined to matters complained of in impugned publications 2, 5, 6, 7 and 8.
In relation to impugned publication 2, it is a publication to Ms Babington and one or two employees of the American Red Lion Disaster Fund, the plaintiff and the members of the Board of Wild2Free. In the case of impugned publication 5, the publication was a post on a social media outlet, which was removed shortly after its posting, and for which there is some grapevine effect. That is also true of impugned publications 6 and 7. I have already dealt with publication 8. There is evidence from the documents that the allegations “were all over”, which I infer was a reference to the grapevine effect.
As for republication, I consider that the defendants are liable for the republication of impugned publications, 1, 2, 3, 4 and 8. Those publications fall within the principles already discussed, rendering the defendants liable for the republication, although the republication is minor and in some of those matters, as already discussed, qualified privilege applies.
Lastly, I refer to the issue of fair comment. The defendants submit that some at least of the publications are “fair comment”. In order for the defence of opinion to be arguable, it must be shown to be opinion, and it must be based on proper material.
The material either has to be substantially true or published on an occasion of absolute or qualified privilege. Further, under the common law, the comment must be based upon facts that are either notorious or stated. None of the publications fall into the category of material published as an expression of opinion.
As for the injunctive relief, there are some issues that need to be addressed. First, the Court should be mindful not unduly to restrict freedom of speech.
Secondly, where there is privilege, the Court ought not to interfere with the capacity of the defendants to exercise the freedom, in relation to any mutual interest or duty, which the privilege protects. Thirdly, the relief, if it were granted, must be confined to that which I have found to be defamatory.
Because of the existence of the campaign and the universality and spread of social media, it is appropriate for there to be injunctive relief, confined in accordance with the previously mentioned restrictions. There is an overwhelming balance of convenience in that respect. Further, neither defendant is any longer a member of the Committee of Wild2Free. Qualified privilege in those circumstances is a very limited possibility.
The Court makes the following orders:
Judgment for the plaintiff.
The defendants shall pay the plaintiff $65,000 in damages.
The defendants shall pay interest at the rate of 3% per annum on $32,500 from 1 July 2020.
The defendants and each of them are restrained from publishing, on social media, the internet or anywhere else, any material that alleges or imputes to anyone, other than each other, that the plaintiff or Wild2Free has been involved in misappropriation of funds or fraud or that the plaintiff has carried on Wild2Free or any activities in animal care for the plaintiff’s own personal benefit or for the purpose of obtaining funds for herself.
The defendants shall pay the plaintiff’s costs of and incidental to the proceedings.
If any party seeks a special or different order as to costs or interest, such application may be made within 14 days of the date of judgment by a submission in writing consisting of no more than 3 pages, not including any documents that are not otherwise in evidence upon which the application relies.
Any party adversely affected by any such application may reply, on the same conditions, no later than 14 days after receipt of the application.
Other than the leave granted, leave is granted to re-list the matter on the issue of costs, if the matter cannot, on a disclosed, reasonable basis, be dealt with on the papers. Any such application should be made to my Associate within seven (7) days of judgment.
The plaintiff is directed to file and serve a Short Minute of Order reflecting the foregoing and calculating the interest within seven (7) days of judgment.