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[2025] NSWCA 262
mixed. Leave to appeal granted on proposed ground 5 and otherwise refused. By consent, the appeal was allowed on ground 5; the global damages orders were set aside and replaced with judgment for Harvey...
The Court of Appeal did not reopen most of the trial judge's findings because, although the proposed challenges were arguable, they did not meet the demanding threshold for leave to appeal. It did grant leave over how damages had been ordered. Henderson and Tilling were responsible for different publications, so the Court accepted that the overall $65,000 should be divided between them. By agreement, each was ordered to pay $32,500 plus interest. The Court did not decide the broader circumstances in which defamation defendants may be jointly liable under s 39.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,744 words · generated 06/10/2026
Henderson v Harvey [2025] NSWCA 262 is a decision about an application for leave to appeal, not a full appellate reconsideration of the defamation trial. The applicants, Gary Henderson and Sara Tilling, sought to challenge orders made in Laurae Harvey’s favour by Rothman J in the Supreme Court of New South Wales. The primary judge had awarded Harvey $65,000 in damages for defamation and ordered Henderson and Tilling to pay that amount jointly: [2], [40].
6 cited instruments linked from this judgment.
The parties were connected through wildlife rescue in South East New South Wales. Harvey owned rural properties known as Cobargo and Runnyford and was associated with Wild2Free, which promoted care of native animals. A dispute arose that included the applicants’ proposed purchase and lease of the Cobargo property and fundraising following fires: [3]. The challenged publications concerned, among other things, allegations that Harvey had used charitable funds for personal benefit.
There were eight impugned publications. No challenge was made to the primary judge’s finding that each was defamatory. The trial judge found IP1, IP3 and IP4 protected by qualified privilege. The proposed appeal sought to challenge findings about IP2, IP5, IP6, IP7 and IP8, and also the form of the damages order: [5]-[6].
The publications relevant to the leave application were not all made by the same person. IP2 consisted of emails from both applicants to the American Red Lion Disaster Fund. IP5 was a Facebook comment by Henderson. IP6 and IP7 were Facebook comments by Tilling. IP8 was an email from Henderson to Caitlin Williams: [6], [11], [20], [28], [34]. The fifth proposed ground concerned the judge’s failure to make separate awards corresponding to each applicant’s responsibility.
Because the amount in issue did not exceed $100,000, leave was required under s 101(2)(r) of the Supreme Court Act 1970 (NSW): [2]. The Court granted leave only on ground 5 and otherwise refused it. The parties consented to the appeal being allowed on that ground and to replacing the global award with separate judgments of $32,500 against each applicant, with interest at 3% per annum from 1 July 2020: [65], [67]. The applicants were nevertheless ordered to pay Harvey’s costs of the leave application and appeal: [66]-[67].
The Court applied the leave threshold stated by reference to PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48: an applicant needed to show an issue of principle, a question of public importance, or reasonably clear injustice going beyond what was merely arguable: [7]. Adamson JA said the proposed grounds had to be addressed sufficiently to determine whether that threshold was met: [9]. The Court also referred to the Civil Procedure Act 2005 (NSW), including the requirement to act according to the dictates of justice and the proportionality objective in s 60: [8].
The applicants argued that the costs of the 12-day trial and the indemnity costs order meant that the real amount at stake was much greater than the damages award. The Court did not accept that this supported leave. Adamson JA observed that the gap between costs and damages was a familiar problem in defamation litigation, but treated that disproportionality as a factor against leave, not in its favour. The possibility that appellate success might affect a costs order did not itself justify granting leave: [42]-[43].
For IP2, the applicants argued that there was a community of interest with the Fund because they believed they had been wrongly treated as scammers and had missed out on donations. The Court noted that the evidence supporting the basis for that belief was scant. The emails showed the applicants’ belief but did not substantiate it, and the applicants had not given evidence at trial. In that context, the primary judge’s conclusion that the necessary mutuality of interest or duty had not been shown did not establish reasonably clear injustice: [44]-[47].
For IP5, Henderson relied on the former s 33 triviality defence. That provision required proof that the circumstances of publication meant the plaintiff was unlikely to sustain any harm: [19]. The Court considered it difficult to characterise the allegations as not very serious. The imputations were that Harvey misused charity funds and ran a charity for personal benefit rather than animal rescue. The comment appeared on a page followed by large numbers of people concerned about harm to wildlife after the bushfires: [48]-[50]. The Court also noted that the primary judge had found the threshold was exceeded even if only reputational harm was considered. Whether hurt feelings should also count therefore did not arise in deciding the leave application: [50].
For IP6 and IP7, the Court accepted that the debate involved criticism of the applicants and a response by Tilling. However, Adamson JA emphasised that relevance remained necessary for a reply-to-attack privilege argument. Even if the primary judge’s analysis of how Tilling responded was arguably mistaken, a gratuitous attack on Harvey would not be warranted by the reply: [51]-[54]. The Court did not grant leave because the alleged error did not establish the required injustice or raise a question of principle or public importance.
For IP8, Henderson argued that he had information suggesting Williams, the organiser of an earlier fundraiser, had been misled by Harvey. The Court compared that submission with how the defence had been put at trial. It accepted Harvey’s submission that the applicants’ trial argument had not incorporated the more particularised reasoning advanced by counsel on appeal. The primary judge had addressed the defence as presented below. Although the applicants had been self-represented at trial, the Court said that this did not give them a forensic advantage by allowing them to reframe the defence on appeal: [55]-[59].
Ground 5 was different. The publications had different authors and responsibilities: both applicants were responsible for IP2, Henderson for IP5 and IP8, and Tilling for IP6 and IP7: [6]. Adamson JA considered that their respective responsibilities were different, and that being a couple did not justify treating their separate liability as joint or making each responsible for damage caused by publications for which that person was not responsible: [63]. The parties agreed the total damages should be divided equally, so the Court made orders by consent: [65].
The judgment is narrow. It does not purport to resolve the general law of defamation, nor does it determine the substantive merits of the rejected defences. The appeal court’s task was to decide whether the proposed grounds met the threshold for leave, and to deal with the agreed error concerning the form of the damages orders.
On leave, the judgment applies the threshold drawn from PPK Willoughby Pty Ltd v Baird. The proposed grounds could be arguable without being sufficient to warrant leave. The reasons repeatedly distinguish those ideas: the Court accepted that grounds 1-4 had arguable bases but concluded that more than arguability was required: [47], [50], [54], [59], [64]. For practitioners, the decision illustrates the importance of separating an arguable appellate point from the additional threshold applicable to a leave application.
On costs, the Court’s observation at [43] concerns the discretionary assessment of leave in this case. It does not announce that litigation costs are irrelevant in every leave application. Rather, the Court rejected the particular submission that high costs and a possible effect on costs orders should count in favour of leave. It treated disproportionality between costs and damages as a factor weighing against leave in this defamation matter.
On qualified privilege, the decision should not be read as a full appellate ruling on the merits of the defences for IP2, IP6, IP7 or IP8. Leave was refused on those grounds. The Court’s discussion identifies considerations relevant to the threshold decision, including the evidence supporting the asserted interest for IP2, the requirement of relevance in a reply-to-attack argument, and the difference between the case advanced at trial and the case advanced on appeal. It did not grant leave to determine the underlying defences afresh.
The s 33 discussion is also historical and limited. The provision quoted in the judgment was the version in force before 1 July 2021, and the Court noted that s 33 had been repealed in 2021: [19], [50]. Its decision did not establish a new general rule about the defence. It concluded that the proposed challenge did not meet the leave threshold, in part because the allegations and their publication circumstances could not readily be treated as trivial on the record described.
The main practical change in the orders was case-specific: instead of one $65,000 judgment against both applicants, there were separate $32,500 judgments. The Court expressly reserved the broader question of when joint liability may be appropriate and the parameters of s 39 of the Defamation Act 2005 (NSW): [63]. Accordingly, the decision should not be treated as settling that statutory question.
At [7], the Court said leave applicants must demonstrate “an issue of principle, a question of public importance or a reasonably clear injustice going beyond something which is merely arguable.” In plain English, identifying a plausible error is not necessarily enough. The proposed appeal must also meet one of the stated higher thresholds.
At [43], Adamson JA treated the mismatch between litigation costs and damages as a factor against leave. The passage responds to the argument that the costs at stake made the appeal practically important. The Court’s answer was that the prospect of changing a costs order did not, by itself, justify an appeal.
At [46], the Court explained why the challenge to IP2 did not cross the threshold. The applicants’ communications showed what they believed, but their belief was not substantiated by evidence, and they did not give evidence at trial. In plain terms, the Court considered the evidential basis for the claimed shared interest too thin to make the primary judge’s decision clearly unjust.
At [50], the Court described the allegations in IP5 as serious wrongdoing and noted the page’s audience. The Court also confined what it needed to decide about harm: because the primary judge found the threshold exceeded even if only reputational harm counted, the appeal court did not need to decide whether hurt feelings should also be included.
At [53], the Court said relevance remained a requirement for the reply-to-attack privilege argument. The plain-English point is that a response to criticism does not automatically protect every counter-allegation. The allegedly defamatory material still needs to be relevant to the attack being answered. The Court did not grant leave to decide whether the primary judge had applied that requirement correctly on the facts.
At [58], the Court distinguished the appeal argument about IP8 from the argument put before the trial judge. The applicants could appear without lawyers at trial, but that did not entitle them to obtain a forensic advantage by advancing a differently framed defence on appeal. This passage makes the presentation of a case below material to the leave assessment.
At [63], the Court stated that the applicants’ responsibilities differed and that their relationship as a couple did not make separate liability joint. In plain English, the Court did not regard their personal relationship as a reason to make each responsible for all damage caused by publications attributed to the other. The statement must be read alongside the Court’s express reservation of the wider questions about joint liability and s 39.
The decision is most directly relevant where an appeal from a New South Wales Supreme Court judgment requires leave because the amount in issue does not exceed $100,000. It explains that a proposed appellant must address the leave threshold, rather than relying only on the fact that a ground is arguable: [2], [7], [9].
It may also be relevant where a party argues that substantial legal costs or possible consequences for a costs order should justify leave. The Court treated the cost-to-damages imbalance in this defamation case as weighing against leave, and rejected the proposition that a possible costs benefit was enough: [42]-[43]. The judgment does not establish a universal rule for other types of proceedings.
The decision may be relevant where several defendants face a global damages order despite responsibility for different publications. Here, the Court considered that different publication responsibilities supported separate liability and that the defendants’ relationship as a couple did not justify joint treatment: [6], [63]. The ultimate equal division was made by consent, however. The judgment does not provide a general calculation method for allocating damages among multiple publishers.
The reasoning on IP8 may matter where a party seeks to rely on a more developed or differently framed defence on appeal than the one advanced at trial. The Court considered the way the applicants had pleaded and argued qualified privilege below, and did not accept that they could gain a forensic advantage by reframing it on appeal: [56]-[59].
The decision also discusses allegations made in online communications and the relevance of audience and content to the leave threshold. For IP5, the nature of the alleged misuse of charitable funds and the readership of the Facebook page were factors in rejecting the argument that the triviality defence issue warranted leave: [48]-[50]. It is not a finding that all similar posts cause harm, nor does it determine the defence’s application to other facts.
The supplied judgment contains no later judicial decisions applying, distinguishing, or commenting on Henderson v Harvey. It was decided on 10 December 2025, and the materials provided do not identify any subsequent treatment. No conclusion about its later precedential influence can therefore be drawn from this source alone.
The judgment itself refers to earlier authorities. PPK Willoughby Pty Ltd v Baird is cited for the leave threshold: [7]. Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das is cited in connection with the Civil Procedure Act’s application to leave proceedings and the “dictates of justice” and proportionality provisions: [8]. Cheng v Motor Yacht Sales Australia Pty Ltd is discussed in relation to disproportionate costs in defamation proceedings: [43]. Harbour Radio Pty Ltd v Trad is mentioned as authority relied on by the applicants in their submission about latitude in reply-to-attack privilege: [51]. The Court’s treatment of these authorities is limited to the points stated in the judgment.
Harvey v Henderson [2025] NSWSC 601 is identified as the primary judgment under appeal: [2]. It is procedural background, not a later decision treating the Court of Appeal’s reasoning. The appeal judgment also recounts portions of the primary judge’s reasons, but the appellate outcome on proposed grounds 1-4 was refusal of leave rather than a merits determination of those defences.
The Court expressly left open the circumstances in which defendants in defamation proceedings may appropriately be held jointly liable for actionable publications, and the parameters of s 39 of the Defamation Act 2005 (NSW): [63]. That reservation is important. Although the orders in this case became separate and equal judgments, the Court did not give a general test for deciding when joint liability is proper or how s 39 operates in other circumstances.
The equal division of the $65,000 total was agreed by the parties. The reasons do not set out an independent judicial assessment that each applicant caused precisely half of the damage. The Court recorded the agreement and made the substituted orders by consent: [41], [65], [67]. The case therefore does not establish that equal apportionment is the default where different defendants are responsible for different publications.
The Court did not decide whether the qualified privilege defences for IP2, IP6, IP7 or IP8 ultimately succeeded or failed on appeal. Leave was refused because the proposed grounds did not satisfy the applicable threshold. Similarly, the Court did not finally resolve the substantive challenge to the rejection of the s 33 defence for IP5. Its observations explain why the alleged errors did not warrant leave, not a full appellate determination of those defences.
Finally, the judgment does not define a general approach to costs and leave applications outside the circumstances before it. It identifies disproportionate costs as a factor weighing against leave in this defamation case and says that a possible effect on costs does not itself justify leave: [43]. How that consideration interacts with other factors in different cases remains dependent on their circumstances.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Henderson v Harvey [2025] NSWCA 262
Hearing dates: 4 December 2025
Decision date: 10 December 2025
Before: Mitchelmore JA at [1]
Adamson JA at [2]
Decision: (1) Grant leave to appeal in respect of proposed ground 5.
(2) Otherwise refuse leave to appeal.
(3) Direct the applicants to file a notice of appeal limited to ground 5 within seven days hereof.
(4) By consent:
(a) Allow the appeal on ground 5.
(b) Set aside orders (2) and (3) made by Rothman J on 12 June 2025 and, in lieu thereof, make the following orders:
(i) Judgment for the plaintiff against the first defendant in the sum of $32,500 plus interest at the rate of 3% per annum from 1 July 2020.
(ii) Judgment for the plaintiff against the second defendant in the sum of $32,500 plus interest at the rate of 3% per annum from 1 July 2020.
(5) Order the appellants to pay the respondent’s costs of the leave application and the appeal.
Catchwords: APPEAL — leave to appeal — leave required as the amount does not exceed $100,000 —failure to establish issue of principle, question of public importance or reasonably clear injustice — by consent leave granted in respect of proposed ground 5 and appeal allowed for failure to award separate amounts for damages and order judgment against each applicant separately — leave to appeal otherwise refused
DEFAMATION — defamatory matter — multiple publications — emails — Facebook comments — alleged misuse of charitable funds for personal financial benefit — applicants held to have published defamatory material — Wild2Free — wildlife care — common law qualified privilege — reply to attack — triviality defence — Defamation Act 2005 (NSW), ss 33, 39
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 60
Defamation Act 2005 (NSW), ss 33, 39
Supreme Court Act 1970 (NSW), s 101
Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118
Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44
Harvey v Henderson [2025] NSWSC 601
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Category: Principal judgment
Parties: Gary Roger Henderson (First Applicant)
Sara Louise Tilling (Second Applicant)
Laurae Michelle Harvey (Respondent)
Representation: Counsel:
K Smark SC (Applicants)
R Rasmussen / A Cheema (Respondent)
Solicitors:
Carroll Lawyers (Applicants)
Kalantzis Lawyers (Respondent)
File Number(s): 2025/243822
[This headnote is not to be read as part of the judgment]
The applicants, Gary Henderson and Sara Tilling seek leave to appeal from a decision of Rothman J (the primary judge) awarding $65,000 in damages for defamation to the respondent, Laurae Harvey. The applicants (together and separately) posted various defamatory statements about the respondent, to the effect that she misused charitable funds for her own financial benefit.
At trial, the applicants argued that each of the eight impugned publications (IPs), were protected by qualified privilege or other defences. However, the primary judge only found that IP1, IP3 and IP4 were protected by qualified privilege. Accordingly, the applicants seek to argue that the balance of the IPs were protected by either qualified privilege or the triviality defence. The applicants also seek to challenge the primary judge’s failure to distinguish between them as to the quantum for which each was liable, with judgment being entered against both for a total of $65,000. Leave to appeal is required as the amount does not exceed $100,000.
The Court held (Adamson JA, Mitchelmore JA agreeing) granting leave to appeal in respect of proposed ground 5 and otherwise refusing leave to appeal:
Proposed ground 1-4: alleged error in not finding that IP2, IP5, IP6, IP7 and IP8 were protected by qualified privilege or other defences
(1) Proposed grounds 1-4 do not give rise to any reasonably clear injustice going beyond what is merely arguable. Nor do they raise any issue of principle or public importance: [47], [50], [54], [59].
Proposed ground 5: alleged error in failing to award separate amounts for damages and order judgment against each applicant separately
(2) A grant of leave on proposed ground 5 is warranted. The responsibilities of Mr Henderson and Ms Tilling for the defamatory publications were different and therefore each applicant should not bear the responsibility for the whole of the damage caused by their respective actionable publications: [63].
(3) It was common ground between the parties that the primary judge had erred in ordering a joint judgment and that the total damages awarded should be borne 50/50 by each applicant: [65].
MITCHELMORE JA: I agree with Adamson JA.
ADAMSON JA: Gary Henderson and Sara Tilling (the applicants) seek leave to appeal against the judgment ordered by Rothman J (the primary judge) in the Supreme Court (the Court below) on 12 June 2025 for damages in defamation in the sum of $65,000 in favour of Laurae Harvey (the respondent): Harvey v Henderson [2025] NSWSC 601 (J). The applicants were ordered to pay the respondent’s costs on an indemnity basis by reason of an early offer which had been bettered by the judgment sum. Leave to appeal is required as the matter in issue does not amount to more than $100,000: s 101(2)(r) of the Supreme Court Act 1970 (NSW).
The applicants and the respondent were interested in wildlife rescue in South East New South Wales. The respondent owned two rural properties, known as Cobargo (or Yowrie or Ilawambra) and Runnyford respectively. She was associated with an association known as “Wild2Free” which promoted the care of native animals. A dispute arose between the parties which included issues relating to an agreement whereby the respondent had agreed to sell the Cobargo property to the applicants, who leased it for a period. The applicants, together and separately, published statements concerning the respondent, some of which were relied on by the respondent as impugned publications (IPs) in her claim for damages in the proceedings before the primary judge. The topics of those publications included the propriety of the respondent’s fund-raising activities, following a house fire in 2016 and also following the widespread bushfires in New South Wales (and elsewhere) in late 2019 and early 2020 which destroyed the respondent’s home on the Runnyford property
The trial was conducted by the primary judge alone (without a jury) over 12 days in April and June 2024 and the judgment was delivered on 12 June 2025. The respondent was represented throughout by Mr Rasmussen (who also appeared on her behalf on appeal with Mr Cheema) and a solicitor. The applicants were legally represented at various interlocutory stages but appeared for themselves at the trial. They were represented by Mr Smark SC and a solicitor in this Court. At the trial, the respondent gave evidence and was cross-examined but the applicants did not give evidence.
In total, there were eight IPs. There was no challenge to the primary judge’s finding that each of the IPs was defamatory. In the Court below, the applicants argued that all of them were protected by qualified privilege (other defences, including justification, were raised in the Court below). The primary judge found IP1, IP3 and IP4 were protected by qualified privilege. The applicants do not seek to challenge the finding that IP5 was not protected by qualified privilege but they seek to challenge the primary judge’s rejection of their defence of triviality under s 33 of the Defamation Act 2005 (NSW) (the Act), as it stood prior to 1 July 2021. They also seek to challenge the primary judge’s failure to differentiate between the two respondents as to the quantum for which each was liable (judgment was entered against both of them in the sum of $65,000).
| IP | Form of IP | Publisher | Finding challenged | | 2 | Emails of 5 and 7 July 2020 | Both applicants | Not protected by qualified privilege | | 5 | Facebook post of 1 August 2020 | Mr Henderson | Triviality defence not made out | | 6 & 7 | Facebook comments of 8 August 2020 | Ms Tilling | Not protected by qualified privilege | | 8 | Email of 30 August 2020 | Mr Henderson | Not protected by qualified privilege |
In order to obtain leave to appeal, the applicants need to demonstrate an issue of principle, a question of public importance or a reasonably clear injustice going beyond something which is merely arguable: see the authorities referred to in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 (PPK) at [6] (Bell P and Simpson AJA).
In Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164, this Court (Basten JA, Tobias AJA agreeing) confirmed that s 58 of the Civil Procedure Act 2005 (NSW), which requires the Court to act in accordance with “the dictates of justice”, applies to leave applications, as does s 60 of the Civil Procedure Act which provides:
60 Proportionality of costs
In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.
To determine whether leave is warranted, the proposed grounds must be addressed sufficiently to assess whether any of the matters referred to in PPK above have been demonstrated.
The proposed grounds of appeal are:
1 The primary judge erred in failing to find that the defendants had established a defence of common law qualified privilege for publication 2.
2 The primary judge erred in failing to find that the first defendant had established a defence under s 33 of the Defamation Act 2005 (NSW) for publication 5.
3 The primary judge erred in failing to find that the second defendant had established a defence of common law qualified privilege, in the nature of reply to attack, for publications 6 and 7.
4 The primary judge erred in failing to find that the first defendant had established a defence of common law qualified privilege for publication 8.
5 The primary judge erred in making a single award of damages against both defendants, rather than a separate award against each, by reference to the publications for which each was responsible respectively.
IP2 were emails sent on 5 and 7 July 2020 by the applicants to Janelle Babington, the Executive Director of the American Red Lion Disaster Fund (the Fund), an organisation based in Wilmington, North Carolina in the United States of America. In those emails, the applicants purported to inform Ms Babington that “not one cent of the money [the Fund] collected from donors and forwarded to Australia for bush fire assistance was spent [by the respondent] helping animals in need from that disaster [the bushfires in 2019-2020]”.
The particulars of qualified privilege on which the applicants relied in the Court below were as follows:
a. The Plaintiff was a board member of the Wild2Free charity.
b. The Defendants, at the material time, operated the Cobargo Wildlife Sanctuary charity.
c. The recipient of publication B was the executive director of the American Red Lion Disaster Fund.
d. Prior to the publication of Publication B, the defendants had exchanged correspondence with the American Red Lion Disaster Fund concerning donations to the Cobargo Wildlife Sanctuary:
i. Facebook messages dated approximately 27.04.20
ii. Facebook messages dated 01.03.20
iii. Facebook messages dated 03.03.20
iv. Facebook messages dated 17.03.20
v. Facebook messages dated 21.03.20
vi. Email to Red Lion Disaster Fund 30.03 20
e. The American Red Lion Disaster Fund agreed to make a donation to the Cobargo Wildlife Sanctuary;
f. Prior to the publication of Publication B, the plaintiff contacted the American Red Lion Disaster Fund in relation to donations to Wild2Free;
g. The American Red Lion Disaster Fund subsequently made a donation to Wild2Free;
h. The American Red Lion Disaster Fund did not make a donation to Cobargo Wildlife Sanctuary;
i. the subject matter of Publication B was the American Red Lion Disaster Fund’s involvement as a donor to the Wild2Free Charity and its decision not to become a donor to the Cobargo Wildlife Sanctuary.
Hi guys, I’m just a bit confused, you contacted us to let us know you had a [sic] donations for us, you also asked if Wildlife Rescue Sunshine Coast was a good organisation, which they are. I have spoken to them and they confirmed they haven’t heard from you either. I just wanted to ensure that there hadn’t been a problem?? Thanks Sara – Cobargo Wildlife Sanctuary
Thanks for messaging us. We try to be as responsive as possible. We’ll get back to you soon.
It’s ok, I’ve worked out exactly what has happened when I looked at you[r] FB [Facebook] page, Little Urchins, Red Box and Wild2Free have clearly told you we are scammers as that is reflected in the posts you have put up. I am absolutely devastated that you didn’t take the time to speak to us. We are absolutely not scammers and I could provide you with many statements from organisations … We have been carers and we’ll [sic] respected ones for over 10 years, we have always paid for every single thing ourselves.
Sorry to trouble you but we would really like to clear up any confusion and understand what happened to the donation you messaged us about in early March you send us a Facebook message about two donations which totalled $4,900.
If you decided not to donate that is all ok with us, but we just need to ensure you have not been misled. We notice that three other Australian Sanctuary’s [sic] were mentioned on your Facebook page soon after you messaged us, and obviously wondered if there was a connection. Would you mind letting us know if you directed your donation to these sanctuaries, or did you decide not to donate?
On 5 July 2020, the applicants sent the email to Ms Babington, IP2, purporting to warn her (and the Fund) that the respondent was involved in a fraud since the money she had raised for Wild2Free was not spent helping animals in need. The email of 7 July 2020 was to similar effect.
The primary judge’s reasons for rejecting the defence of qualified privilege in respect of IP2 are at J [575], as follows:
… 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.
33 Defence of triviality
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 only person Harvey [the respondent] helps is herself. She helped herself to over 50K in charity funds last FY [Financial Year] and took in one Joey.
(a) the plaintiff misused $50,000 of charity funds and took in one joey;
(b) the plaintiff runs the Wild2Free charity for her own personal financial benefit and not for the purpose of rescuing animals.
593 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.
594 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.
595 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.
596 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.
(Emphasis added.)
Ms Tilling and her partner Gary Henderson received more than $150,000 in donations to rebuild their sanctuary at Yowrie, near Cobargo, after the devastating New Year’s Eve bushfires.
The pair lived in Tasmania between August and December last year, running a tourism business, and had previously rented the site from Wild 2 Free co-founder Rae Harvey.
They had entered into an agreement to buy the property known as lllawambra from Ms Harvey – and were planning to return – when fires destroyed the site.
It is evident from the text of the article that the authors had spoken to the applicants, the respondent, Leon Kelly, who was the caretaker of the Cobargo property when the fires burned through it, and Kat Agar-Teehan, one of the fund-raising organisers. Each of these sources was quoted in the article.
Of Mr Kelly, the authors wrote:
Mr Kelly said he watched in astonishment as Mr Henderson and Ms Tilling hit national and international headlines with reports they had lost their animal sanctuary in the fires.
…
“It wasn’t a sanctuary,” Mr Kelly said.
“It was just a property they had taken over and were leasing.”
The authors reported that Ms Agar-Teehan “said she’d co-founded the crowdfunding campaign in the belief Mr Henderson and Ms Tilling had spent all their money buying lllawambra.” Ms Agar-Teehan is quoted as saying, “The fundraiser went into something that, as far as I was concerned, wasn’t real … They weren’t living on a sanctuary, they had lived on land that was going to become a sanctuary.”
The authors quoted Ms Tilling as saying that the allegation that the (Cobargo) property was not a sanctuary was “absurd”.
The topic of crowd-funding for the sanctuary on the Cobargo property and how, and on what basis, funds were solicited was discussed on the ABC South East NSW Facebook page. It was common ground that there was a link on the ABC South East NSW Facebook page to the article. The Facebook page published comments from persons other than the respondent which were critical of the applicants. Ms Tilling posted comments defending her own conduct. She also referred to the respondent’s own fund-raising and said:
Let’s compare that to Wild2Free, over $80,000 spent mostly on her [the respondent’s] 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.
In the Court below, Ms Tilling relied on the common law defence of qualified privilege based on reply to attack with respect to IP6 and IP7. The respondent replied by contending that she had not attacked Ms Tilling herself and that what Ms Tilling said about her was not relevant to the attacks made by others about Ms Tilling’s conduct.
The primary judge addressed these arguments as follows:
478 … 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.
479 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.
…
490 Discussing the classic comments of Parke B in Toogood v Spyring in which his Honour utilised the phrase “fairly warranted by any reasonable occasion or exigency”, the majority [in Papaconstuntinos v Holmes a Court (2012) 249 CLR 534; [2012] HCA 53] said:
“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.]
491 As can be seen from the above extract, the High Court in Papaconstuntinos 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.
492 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.
(Emphasis added.)
The primary judge found that it was unnecessary to decide whether the defendants had established the defence of qualified privilege of reply to attack because their defence did not succeed in any event: J [555]-[557]. His Honour found, at J [561], that the defence of 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 [but] does not allow the publication of defamatory imputations that are irrelevant to the attack made against them.”
The primary judge said further at J [562]:
… 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.
(Emphasis added.)
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 [XXXX].
The background to IP8 was as follows. In 2016, a GoFundMe campaign entitled ‘Rae & Sayo’s Relief Fund’ was established to help the respondent and her then partner raise $1,000 after a house fire destroyed their home at Yowrie in June 2016. As at the date of publication, 30 August 2020, the GoFundMe page had long been inactive.
The primary judge found that each of the pleaded imputations was made out (J [344]):
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.
(Emphasis added to indicate the portion of the reasons which the parties accepted was in error as the funds were not raised for Wild2Free but rather for the purposes set out above.)
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.
(Emphasis added for the same reason as above.)
It was common ground in this Court that the parties had addressed the question of damages on the basis that there would need to be separate awards (as both applicants were liable for IP2; Mr Henderson was liable for IP5 and IP8; and Ms Tilling was liable for IP6 and IP7).
Mr Rasmussen informed this Court that in the Court below the respondent had suggested separate amounts for each applicant and proposed that the amount for which Mr Henderson should be held liable could be 20% more than the damages for which Ms Tilling should be held liable.
For reasons which do not appear in the judgment, the primary judge made an order for judgment in a global figure against both applicants.
At the hearing of the application for leave to appeal, the parties agreed that, if leave were granted only in respect of ground 5, they would consent to an order that the appeal be allowed on that ground and that the judgment ordered by the primary judge be set aside and, in lieu thereof, there be judgment for the respondent against each of the applicants in the sum of $32,500 each.
Mr Smark submitted that the only reason leave was required was because the amount of the judgment was less than $100,000. He submitted that it could reasonably be inferred that the liability imposed on the applicants for the costs of the proceedings (which took 12 days) on an indemnity basis would dwarf their liability for the judgment itself. He also submitted that any change in their relative success which may be occasioned by success on one or more grounds of appeal could have a significant effect on their liability for costs. On this basis, he submitted that the proceedings were worthy of a grant of leave since the amount actually at stake far exceeded $100,000.
The vice of a disproportionality between the amount in issue and the magnitude of the costs expended is notorious. Defamation claims would appear to be particularly productive of this type of disproportionality. Trials tend to be hard fought; frequently several defences (including justification) are raised and the damages which are awarded are, almost inevitably, disproportionate to the costs expended to achieve them. This is not to say that plaintiffs ought not sue since vindication is a significant and important motive. However, I regard the disproportionality between the costs and the amount of the judgment to be a factor which weighs against the grant of leave and not, as Mr Smark submitted, one which ought weigh in its favour: see the discussion in Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15]-[21] (Bell CJ, Ward P and Basten AJA). That it may be worth the while of an unsuccessful party in defamation proceedings to seek to challenge the result with the hope of altering a costs order does not mean that this Court ought grant leave to appeal.
In short, this was a communication to a charity [Red Lion Disaster Fund] about what was being said to be a miscarriage in relation to its public communications and donation processes, by people [the applicants] who identified as having been wrongly considered to be “scammers” and of having missed out on receiving donations accordingly. This seems to be a community of interest in the relevant sense.
Mr Smark submitted that the question whether a communication was protected by qualified privilege was one which admitted of only one answer and that the primary judge was in error to determine that IP2 was not protected by qualified privilege.
One of the difficulties with the alleged error is that the evidence of what led the applicants to believe that the respondent was responsible for the applicants not receiving the foreshadowed donations from the Fund was so scant. The terms of the texts and the emails which preceded IP2 indicated that this was the applicants’ belief but their belief was not substantiated and they did not give evidence in the Court below. It was in this context that the primary judge was not satisfied that the requisite mutuality of interest or duty to establish the defence had been made out.
This question does not give rise to any reasonably clear injustice going beyond what is merely arguable. Nor does it raise an issue of principle or public importance.
Mr Smark argued that the primary judge was in error in not making the “appropriate” finding that there was no real chance of harm in circumstances where the allegations made were “not very serious” in that they did not allege dishonesty or fraud and took the form of a comment in what was a relatively limited and short-lived Facebook post.
The assessment whether the circumstances of publication were such that the plaintiff was unlikely to sustain any harm required an exercise of judgment. It is difficult to accept the submission that the allegations made were “not very serious” because they did not allege dishonesty and fraud. The imputations that the respondent misused charity funds and ran a charity for her own benefit and not for the purpose of rescuing animals amounted to allegations of serious wrongdoing. Further, the comment was published on the ARC Facebook page. Mr Rasmussen informed the Court that the evidence which the respondents led at trial established that the page was followed by large numbers of people throughout Australia who were concerned about the harm to wildlife caused by the widespread bushfires in 2019 and 2020.
Proposed ground 2 does not give rise to any reasonably clear injustice going beyond what is merely arguable. Nor does it raise an issue of principle or public importance. The question whether hurt to feelings ought be taken into account with damage to reputation in the assessment whether there was a real chance of harm does not arise since the primary judge found that the threshold was exceeded even if only harm to reputation was taken into account. As s 33 of the Act was repealed in 2021, its meaning and application are no longer of current general relevance.
Mr Smark submitted that the primary judge was in error in concluding that IP6 and IP7 were not protected by qualified privilege in the nature of reply to attack when Ms Tilling responded to the attack that the applicants had given sanctuaries a bad name by contrasting their position with that of the respondent. He submitted that the approach taken by the primary judge was inconsistent with authorities, such as Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44, which emphasised the latitude which ought be allowed in the context of reply to attack qualified privilege.
Mr Smark relied on the fact that the respondent had not challenged the primary judge’s finding that the attack does not have to come from the plaintiff. He submitted that, in these circumstances, the availability of the defence of qualified privilege with respect to IP6 and IP7 turned on whether Ms Tilling’s response was germane to what was said about her. He submitted that the effect of the primary judge’s finding was that Ms Tilling had, in effect, said that, although she had done the wrong thing, the recipient of her message should have regard to what the respondent had done, which was worse. Mr Smark submitted that this analysis was erroneous because Ms Tilling had said, in substance, that she had not done the wrong thing of which she had been accused but that the respondent had done the wrong thing.
Even if the primary judge’s analysis of the dynamic of Ms Tilling’s responses in IP6 and IP7 was erroneous in the respect for which Mr Smark contended, relevance is still a requirement. A gratuitous attack on the respondent in this context would not warrant a finding of qualified privilege.
I am not persuaded that the error alleged in proposed ground 3 gives rise to any reasonably clear injustice going beyond what is merely arguable. Nor does it raise an issue of principle or public importance.
The possession of such information was a sufficient basis for there to be a community of interest, even on the basis that the fundraising page was inactive by 2020 – the first defendant had information suggesting that Ms Williams had engaged in public fundraising on the basis of false information provided to her by the plaintiff, which might be expected to be a matter of significant concern (i.e. interest) to Ms Williams, and the first defendant accordingly had a duty to pass it on to her, in case Ms Williams wished to take some action accordingly.
It is submitted the common law right of free speech should not be curtailed or inhibited by overly strict interpretation of defamation law. The functional welfare of society requires persons be able to communicate on a range of matters including those of public interest in an open, frank and honest manner without the threat of being sued. The defence of qualified privilege is an important asset in protecting the public’s right to freedom of speech, especially when that speech is on matters of public interest.
a. In June 2016, there was a fire at a property in Yowrie NSW owned by the Plaintiff;
b. The recipient of publication G, Caitlin Williams, was the organiser of a gofundme fundraiser for the benefit of, or on behalf of, the Plaintiff;
c. The first defendant had information available to him suggesting that, in the course of obtaining information in relation to the fire for the purposes of establishing a gofundme fundraiser, Caitlin Williams had been misled by the Plaintiff, including by:
i. Falsely representing that the Plaintiff was insured for $225,000 in respect of her house and $50,000 in respect of her contents, when in fact the plaintiff was insured for a greater amount and ultimately received an insurance payout of $531,389;
ii. Falsely representing that the plaintiff had contents with a value of about $250,000 that were destroyed in the fire, when in fact the plaintiff’s contents were packed away in four shipping containers at the time and three of those four shipping containers were safely in storage and not affected by the fire.
I accept Mr Rasmussen’s submission that the applicants’ defence of qualified privilege before the primary judge did not incorporate the nuance developed by Mr Smark. The primary judge addressed the case which had been put by the applicants. It can be inferred that the relatively brief reasons given by his Honour for rejecting the defence of qualified privilege to IP8 (including the observation that the defence was unarguable) reflected the generality with which the applicants put the defence in the Court below. While the applicants were entitled to appear for themselves in the Court below they cannot thereby obtain the forensic advantage of being permitted to reframe their defence by briefing counsel of Mr Smark’s calibre and experience in this Court.
Proposed ground 4 does not give rise to any reasonably clear injustice going beyond what is merely arguable. Nor does it raise an issue of principle or public importance.
Mr Smark submitted that the primary judge’s single order for damages can only be understood as being the amount, $65,000, which reflects the combined effect of each of the IPs for which either or both of the applicants were found liable. He submitted that, to the extent that the judgment was ordered against Mr Henderson in respect of IP6 and IP7, and Ms Tilling for IP5 and IP8, it is necessarily too high. He submitted that it was necessary for separate awards to be made (in lesser sums) against each applicant.
Mr Rasmussen submitted that, although it had not been proposed by the parties (and although the primary judge’s reasons did not indicate any reasoning process to that effect), the approach taken by the primary judge was “probably authorised” by s 39 of the Act. He also submitted that it could be explained by the primary judge’s observation, when assessing damages, that it was difficult to separate the effect of the actionable publications from those which were not (J [608]-[609] and J [613]-[614]). Mr Rasmussen also submitted that it could be inferred that the primary judge intended to divide the $65,000 award as between the applicants equally. He relied on the circumstance that the primary judge had ordered pre-judgment interest on half the sum ($32,500) from 1 July 2020.
However, Mr Rasmussen accepted that a grant of leave on this ground may be appropriate and that “[a] reasonable approach to take on the above analysis would be to divide the $65,000 awarded as between the defendants equally”. Otherwise, he submitted that this Court could grant leave on this ground, set aside the order as to damages and reassess the liability of each applicant, including pre-judgment interest. He submitted that this discrete question could be determined on the papers.
I consider that a grant of leave on ground 5 is warranted. The respective responsibilities of Mr Henderson and Ms Tilling for the actionable publications are different. The circumstance that they identify as a couple does not warrant this separate liability being treated as joint. Nor does it warrant each of the applicants being responsible for the whole of the damage caused by all actionable publications, including those for which he or she was not responsible. It is not necessary to address, for the purposes of the present application, the circumstances in which it might be appropriate for defendants in defamation proceedings to be held jointly liable for actionable publications or the parameters of s 39 of the Act.
With respect to proposed grounds 1, 3 and 4, Mr Smark has raised arguable bases for challenging the primary judge’s finding that IP2, IP6, IP7 and IP8 were not protected by qualified privilege. With respect to ground 2, he has also raised an arguable basis for challenging the primary judge’s conclusion that the defence of triviality under s 33 of the Act was not made out. For the reasons given at the commencement of these reasons, more is required for a grant of leave.
In respect of ground 5, it was effectively common ground that the primary judge had erred in ordering a joint judgment. The parties and their representatives have, in compliance with the principle in s 56 of the Civil Procedure Act and their duties under ss 57 and 58 of that Act, agreed that the total damages awarded by the primary judge should be borne 50/50 by each applicant. Accordingly, these orders can be made by consent.
I propose the following orders:
Grant leave to appeal in respect of proposed ground 5.
Otherwise refuse leave to appeal.
Direct the applicants to file a notice of appeal limited to ground 5 within seven days hereof.
By consent:
(a) Allow the appeal on ground 5. (b) Set aside orders (2) and (3) made by Rothman J on 12 June 2025 and, in lieu thereof, make the following orders:
(i) Judgment for the plaintiff against the first defendant in the sum of $32,500 plus interest at the rate of 3% per annum from 1 July 2020. (ii) Judgment for the plaintiff against the second defendant in the sum of $32,500 plus interest at the rate of 3% per annum from 1 July 2020.
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Coversheet - Decision - “5” inserted after “ground” in order (1)
Henderson
Harvey [2025] NSWCA 262
(2022) 108 NSWLR 342
(2012) 247 CLR 31
(2012) 249 CLR 534
Leave to appeal granted on proposed ground 5 and otherwise refused. By consent, the appeal was allowed on ground 5; the global damages orders were set aside and replaced with judgment for Harvey against Henderson for $32,500 plus 3% annual interest from 1 July 2020, and judgment for Harvey against Tilling for the same amount and interest. The appellants were ordered to pay the respondent's costs of the leave application and appeal: [67].
Accordingly, leave is sought to challenge the following: