Kalil v Eppinga

The Alleged Defamatory Imputations

1. Ms Eppinga pleads that the Matter Complained Of involved the following imputations, which she alleges were defamatory of her. These imputations are pleaded in paragraph 9 of the cross claim in the following manner: 1. That the Cross-Claimant was a liar (Schedule A, Line 3 and the matter as a whole). 2. That the Cross-Claimant was a thief (Schedule A, Lines 10, 11 and the matter as a whole). 3. That the Cross-Claimant was the sort of person who would steal drugs (Schedule A, Lines 10, 11, 12, 13, 15, 16, 17 and the matter as a whole). 4. That the Cross-Claimant was a racist (Schedule A, Line 12 and the matter as a whole). 5. That the Cross-Claimant was the sort of person who used vile language and profanities (Schedule A, Line 12 and the matter as a whole). 6. That the Cross-Claimant was a blackmailer (Schedule A, Lines 12 to 23 and the matter as a whole). 7. That the Cross-Claimant had attempted to steal drugs from a veterinary practice (Schedule A, Line 17 and the matter as a whole). 8. That the Cross-Claimant was an abuser of drugs (Schedule A, Lines 9 to 17 and the matter as a whole). 9. That the Cross-Claimant had engaged in criminal conduct so serious that it was necessary to call the police (Schedule A, Lines 10 to 22 and the matter as a whole). 10. That the Cross-Claimant was the subject of a police prosecution (Schedule A, Lines 1Oto 22 and the matter as a whole). 11. That the Cross-Claimant was dishonest (Schedule A, Lines 10 to 22 and the matter as a whole). 12. That the Cross-Claimant was vindictive (Schedule A, Lines 10 to 33 and the matter as a whole). 13. That the Cross-Claimant was manipulative (Schedule A, Lines 10 to 33 and the matter as a whole). 14. That the Cross-Claimant was the sort of person who would fabricate accounts of mistreatment of animals (Schedule A, Lines 10 to 33 and the matter as a whole).
2. The cross defendants admitted that the Matter Complained Of carried the imputations referred to in subparagraphs (g) and (i) above, namely that: 1. That the Cross-Claimant had attempted to steal drugs from a veterinary practice; and 2. That the Cross-Claimant had engaged in criminal conduct so serious that it was necessary to call the police.
3. The cross-defendants also submitted, correctly in my view, that imputation (g) might be thought to capture the main sting of the Matter Complained Of. The allegation in relation to this imputation became the central factual issue in the proceedings.
4. The cross-defendants went on to criticise imputations (a), (b), (c), (d), (e), (f), (h), (k), (l), (m) and (n), as being cast in too general terms. The cross-defendants submitted for example the fact that the cross defendants may have told a lie did not constitute her a "liar". This was a reference to imputation (a). I do not accept this contention. In my view a reasonable reader of "the lies" where they appear in the Matter Complained Of, would read those words as reference to her views as to the state of hygiene of the BHVC premises, rather than as to being a reference to the propensity of Ms Eppinga to be generally mendacious.
5. I believe that the reasonable reader would also read the other imputations so impugned in the same way, that is to say by reference to the specifics of the allegation in the Matter Complained Of, rather than as a reference to Ms Eppinga at large.
6. The cross-defendants also say that imputations (c), (e) and (n) suffer from further vice related to the form in which they are cast ("the cross claimant was a sort of person who…"). This, the cross defendants asserted, constitutes an unacceptable attempt to derive a general imputation from a specific incident. I also do not accept this contention. Again, in my view, the reasonable reader would read the reference to the words "the sort of person who would" as being a reference to the specific matters raised in the Matter Complained Of, as distinct from being a reference to Ms Eppinga's general character.
7. In my view however, the imputations alleged to arise as pleaded in subparagraph (b), (d), (h) and (j), do not arise on a reasonable reading of the Matter Complained Of.
8. The cross-defendants accepted that to the extent to which I found that the imputations contained in the Matters Complained Of were established, then such imputations were defamatory.

Publication

1. The cross-defendants also accepted that the cross claimant had established publication of the Matters Complained Of. They pointed however, to the fact that the extent of the publication established by the cross claimant was extremely limited.
2. This submission was based on the fact that the evidence of publication adduced by the cross claimant only established publication to two persons, being Ms Elisa Milhim and Ms Louise Ross.
3. Mr Smark of Senior Counsel, who appeared for the cross-defendants, submitted, that the extent of publication on a website such as the present case, or its readership is not to be presumed. I agree with that submission.
4. In Sims v Joost (No 2) [2016] WASCA 83 at [15]-[20], Martin CJ stated: "[15] The internet enables communication to a group of persons that is potentially much larger, by many orders of magnitude, than any group of persons who might receive a communication through a single medium of printed communication or any single broadcast. For the first time in human history, a significant proportion of the population of the planet - a group measured in billions, rather than in millions or thousands, can access material from a single source. At a very superficial level, it might be thought that this exponential increase in the potential audience of words posted on the internet, over and above the potential audience of any single medium of mass communication, strengthens the inference of publication, in the legal sense, arising from the publisher's act of posting the words on an internet site. However, such a process of reasoning is fallacious, as the cases on this topic recognise. [16] Essentially that is because the exponential increase in the potential audience for material posted on the internet has been matched by an exponential increase in the number of publishers of information to the general public and the extraordinary volume of data accessible to the world at large via the internet. The number of internet sites from which information or data might be retrieved is innumerable and constantly increasing, as is the volume of information and data which can be retrieved from those sites. If the available data is measured in terms of accessible pages, those pages amount to many billions of web pages. The sheer volume of data available via the internet necessitates the use of search engines to identify data of interest to the consumer. [17] Because of the vast number of internet sites, and the vast number of web pages accessible through those internet sites, in the absence of evidence it cannot be inferred that one or more persons has undertaken the steps required to identify and access any particular web page available through the internet merely from the fact that material has been posted on an internet site. There is a real prospect that many of the billions of web pages accessible via the internet have never been seen by anyone other than the person who posted the page on an internet site. This has been recognised in the cases to which I will now refer. [18] In England, it has been consistently held that a plaintiff claiming to have been defamed in material posted on the internet cannot rely upon an inference of publication analogous to that customarily drawn in cases involving publication via the mass media of print or broadcast in order to establish that there has been substantial publication within the jurisdiction. Rather, the plaintiff must plead and prove that the material of which complaint is made has been accessed and downloaded. The English cases recognize however that publication, in the legal sense, may be established by pleading and proving a platform of facts from which,an inference of download can properly be drawn. However, such an inference will not be drawn from the mere fact that the material complained of has been posted on an internet site. [19] With one apparently anomalous exception, the same approach has consistently been taken in Australia. So, in Toben v Jones and MacDonald v Australian Broadcasting Corporation it was held that a plaintiff claiming to have been defamed by material posted on the internet must plead and prove facts which established that the material of which complaint was made had been downloaded and viewed by somebody, without necessarily having to provide particulars of the identity of the person or persons who downloaded the material. The cases also establish that an inference to the effect that the material of which complaint is made has been downloaded by somebody might be drawn from a combination of facts, such as the number of 'hits' on the site on which the allegedly defamatory material was posted and the period of time over which the material was posted on the internet. For example, in Scali v Scali screenshots of the defendant's YouTube posts, which appeared to demonstrate the number of times the allegedly defamatory videos had been viewed as at the date of the screenshot, were relied upon as evidence of the fact that the videos of which complaint was made had been downloaded and comprehended by third parties. [20] Cavasinni v Camenzuli provides the one Australian exception to this line of authority. In that case, in deciding an application to strike out the statement of claim, Gibson DCJ distinguished the principle enunciated by the High Court in Dow Jones on the basis that that case concerned publication on an internet site only available to subscribers. In her view, in a case in which the relevant internet site was available to all, it was sufficient for the plaintiff to plead the jurisdictions in which publication was asserted, without pleading or proving specific facts from which an inference could be drawn to the effect that the material of which complaint was made had been downloaded. With respect to her Honour, I do not read the observations of the plurality in Dow Jones as being limited to cases in which complaint was made of material published on a site only available to subscribers. Nor is such a distinction consistent with the principles consistently enunciated in the English cases, or the other cases in Australia to which I have referred. For that reason, with respect, I would not follow the view expressed in Cavasinni."
5. Buss JA and Mitchell J Agreed.
6. Thus, while the cross defendants accepted that publication had been established, they submitted that the extremely limited extent of the publication was relevant to damages. I accept that this is the case.

Qualified Privilege

1. The crux of the cross-defendants' defence of the proceedings was one of qualified privilege.
2. The privilege was claimed to arise both at large at common law, and on the basis of qualified privilege arising out of a reply to an attack, though in submissions the cross-defendants case became limited to a defence of qualified privilege arising from a reply to an attack. In this regard, the cross defendants pleaded, that Ms Eppinga's 2015 Facebook post and the petition on change.org.au, together with the Sydney Northern Beaches Facebook post constituted an attack on the cross-defendants, or on the business they conducted, to which the Matter Complained Of was a reply.
3. The cross claimant, by way of Reply pleaded that the qualified privilege defence was defeated by malice. The Reply did not put in issue the cross defendants' assertion that the Matter Complained Of was published on an occasion of qualified privilege. The only issue raised on the proceedings was whether that privilege was defeated by malice. This position was confirmed by the cross claimant in oral submissions.

Malice

1. It is important to note however that the cross defendants have not maintained a defence of truth. Thus, it was not submitted by the cross defendants that Ms Eppinga was in fact trying to steal medication from the clinic.
2. The cross claimant's case in relation to the issue of malice was directed to establishing the proposition that malice could be proven as Dr Kalil had no actual belief that Ms Eppinga was attempting to steal drugs from the practice. Her alternative case was that Dr Kalil was recklessly indifferent as to whether she was making such an attempt.

Malice: Principles

1. The applicable principles were not in dispute, and can be briefly summarized as follows.
2. Malice involves the maker of the imputation being actuated by an improper purpose or motive; that is to say one that is foreign to the duty or interest that protects the making of the statement: see, Roberts v Bass (2002) 212 CLR 1, per Gaudron, McHugh and Gummow JJ at [75].
3. The following principles can be discerned from Roberts v Bass: 1. To prove malice, the party alleging it must establish that the publication was actuated by malice: [75]-[76]. That is, what is required is not only proof that an improper motive existed, but that it was the dominant reason for the publication: [104]; 2. Proof of knowledge of falsity by the publisher is almost invariably conclusive proof of malice: [77]. So too is the proof of sheer recklessness amounting to wilful blindness, which the law treats as equivalent to knowledge: [84]. 3. Mere proof of ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice: [76]. Mere lack of belief is not to be treated as equivalent to knowledge of falsity: [87]. 4. Honesty of purpose is presumed in favour of a defendant: [96]. It is for the plaintiff to prove that the defendant did not use the occasion honestly: [96]. The plaintiff has the onus of proving that the defendant acted dishonestly. It is important to keep this factor in mind as otherwise, there is a danger that reference to the honesty of the defendant will have the affect of reversing the onus of proof: [97].
4. In KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden (2020) 101 NSWLR 729, Payne JA (with whom Basten and White JJA agreed) said in the context of overturning a finding of malice made at first instance: "[59] The respondent was obliged to establish a predominantly improper motive in publishing the matter complained of and overcome the presumption that the publisher acted honestly, that is, with a proper purpose: Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [96]-[97]. [60] Proof of ill-will, prejudice, bias, recklessness, lack of belief in truth or some motive other than duty or interest for making the publication is insufficient of itself to establish that malice actuated the publication: Roberts v Bass, per Gaudron, McHugh and Gummow JJ at [74]-[76]; Fraser v Holmes [2009] NSWCA 36 at [50]-[68] per Tobias JA with whom McColl and Basten JJA agreed; Cush v Dillon at [27]. [61] A plaintiff has a heavy onus to discharge to establish malice. Malice is a serious matter and the principles set out in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 361-363 apply to such a finding."

Consideration

1. Dr Kalil did not give evidence. This led to the submission by Ms Eppinga that the Court should draw the inference that his evidence would not have been favourable to the cross defendants' case (Jones v Dunkel (1959) 101 CLR 298).
2. In considering this submission, it must be firmly kept in mind that Dr Kalil does not bear a legal onus of proof to establish lack of malice. As I have earlier indicated, his honesty of purpose is presumed. It is for Ms Eppinga to establish malice. Mr Smark SC accepted however, that a Jones v Dunkel inference may be available if an evidentiary burden of proof had passed to his client.
3. Notwithstanding that Dr Kalil did not give evidence, there was in fact evidence of his state of mind in relation to the central issue as to whether he believed that Ms Eppinga was about to steal drugs.
4. Ex C10 is a witness statement given to Police by Dr Kalil of 26 January 2019 (the day after the events in question). It is expressed to be the evidence of what Dr Kalil was prepared to give as a witness in criminal proceedings. In it he acknowledges that he may be liable to prosecution for the falsity of his statement if it is relied upon in Court. Interestingly, Ex C10 was tendered by the cross claimant. In paragraph 5 of that statement, Dr Kalil states that he saw Ms Eppinga holding medication in the treatment room at BHVC, and that he thought she was about to steal it.
5. Mr Smark SC submitted that if Ex C10 is accepted as evidence of what Dr Kalil saw and thought, then it does not matter if he was wrong in his conclusion that Ms Eppinga was attempting to steal drugs. The submissions continued that Dr Kalil's allegation of attempted theft was thus not knowingly false nor was it the view of one who was wilfully blind.
6. I accept this submission.
7. Further, there was the evidence of Ms Eather, Dr Kalil's veterinary nurse. Ms Eather gave evidence of Dr Kalil being present in the treatment room at BHVC and seeing Ms Eppinga holding medication, and of a dispute arising thereafter. Her evidence thus supports the conclusion that Dr Kalil had a basis to believe that Ms Eppinga was attempting to steal the medication.
8. I shall return to the issue of Ms Eather's evidence later in these reasons.
9. Mr Smark SC submitted that even if Dr Kalil might be thought to have been unreasonable in forming the view the Ms Eppinga was attempting to steal drugs, this was not to the point, as there was no defence of truth. I agree with that submission.

Ms Eppinga's Case on Malice

1. Ms Eppinga's case was in substance, that I should accept her evidence and reject the evidence of Ms Eather, and that having so found, I should infer that Dr Kalil in fact did not believe that he had caught her attempting to steal drugs from his practice.
2. In determining this submission, it is important to bear in mind that the issue of malice must be established by Ms Eppinga, to a Briginshaw v Briginshaw standard.
3. Thus, it is important to determine the issue of the clash of evidence between Ms Eppinga and Ms Eather, an issue to which I now turn.

The Conflict in Evidence Between Ms Eppinga and Ms Eather

1. Ms Eppinga's evidence was that she did not pick up any medication and did not attempt to steal it (see TP 55.28-.36; 75.9-.24; 79.46-.48; 80.29-.33; 84.40-.47; 91.45-.48, 92.4-.10).
2. Ms Eather's evidence on this issue was that she entered the BHVC treatment room with Dr Kalil, and that they both observed Ms Eppinga with a drug in her hand.
3. I shall refer to this as the "Central Issue".
4. There were certain other factual issues in dispute between the two accounts, which in the conduct of the proceedings took on a lesser significance than the Central issue. They include: 1. Whether Ms Eppinga yelled racial abuse at Dr Kalil as she left the Hospital. Ms Eppinga denies this but Ms Eather gave evidence that she did: TP 187.31-.43; 2. Whether Dr Kalil touched Ms Eppinga as she left the Hospital. Ms Eppinga says that he did. Ms Eather, who was in a position to see gave clear evidence that he did not (T 187.17-.28; T 222.10-.18 - T 187-.5-.6; T221.42-.44).
5. I shall refer to these as "Sub Issues".

Credit of Ms Eppinga

1. I regret to say that I found Ms Eppinga to be an unimpressive witness. She was a witness who missed no opportunity to advance her case by advocacy from the witness box. I found her to be defensive, and reluctant to make concessions.
2. I have also formed an adverse view as to her credit for the following reasons.
3. An issue arose in cross examination as to whether Ms Eppinga had a belief as to whether Dr Kalil was of the Muslim faith.
4. Initially, Ms Eppinga refused to accept that she had a belief at the relevant time as to Dr Kalil's religion.
5. The following evidence arose in the context of the allegation that she had made a racist verbal attack on Dr Kalil at BHVC.
6. Ms Eppinga gave the following evidence in chief: 1. At TP 57.24-.30: Q. Did he ever answer your question about his standards? A. He did not. He just yelled, "Get out. Get out. Get out." Probably some swear words in there as well. Q. Did you have any reason to know what religion Dr Kalil is? A. No idea. Q. Did you have any knowledge of his background? A. No idea. 1. At TP 72.44-73.5: Q. Did you say the words "I know you are Muslim, and the police are on your side. Let me tell you, we will get you out of this business"? A. No. I had no idea what nationality he was. It was irrelevant. Q. Thank you. Did you know what religion he belonged to? A. No. Q. Do you have any views about Muslims? A. Views? Q. Views. Views. Do you have any views or prejudices? A. No.
7. In cross examination Ms Eppinga gave the following evidence. 1. At TP 123.40-124.25, where she confirmed the evidence she had given in chief, then gave evidence that she had no belief, as she sat in the witness box as to Dr Kalil's religion.
8. This evidence is to be contrasted with Ex XD1 which is a Facebook post by Ms Eppinga. It appears to be made in late January 2019. In it, Ms Eppinga says "I arrived at 8 am the day before yesterday … and some strange Muslim chanting music was bellowing through the clinic". When cross examined on her own post, Ms Eppinga was still not willing to accept that she had any belief or idea about the religious background of Dr Kalil (TP 127.47-128.1).
9. Also relevant to the issue of Ms Eppinga's credit on this issue is Ex XD2, which is an exchange of Facebook posts between Ms Eppinga and her cousin. The posts were most likely made shortly after the events of 25 January 2019 (TP 128.11-30).
10. In response to Facebook message from her cousin which stated "Nice one … and charge the fucker for pushing you … what a cunt!", Ms Eppinga wrote "The police are on the fkn Muslims side it baffles me!". Ms Eppinga accepted that this was a reference to Dr Kalil: TP 128.46-129.12.
11. When asked in light of Ex XD2 whether she still maintained that as at the start of 2019 she didn't have any idea of Dr Kalil's religion, she first questioned the relevance of the question, and then ultimately, she accepted that when she attended the clinic on 25 January 2019, she had a belief that Dr Kalil was a Muslim: T 129.13-130.15.
12. Mr Muriniti, solicitor who appeared for Ms Eppinga, attempted to limit the damage to his client's credit by the cross examination on the issue of her belief as to Dr Kalil's religion, by suggesting that Ms Eppinga had only been denying actual knowledge of Dr Kalil's religious faith, as distinct from her belief as to that matter.
13. An analysis of the transcript references to which I have just referred, I believe demonstrates that Mr Muriniti's attempt to shore up of his client's credit was not well founded.
14. I also formed an adverse view of Ms Eppinga's credit due to her unwillingness to accept that her Facebook posts of 25 January 2019 and following constituted a public attack on Dr Kalil. In cross examination, she repeatedly refused to accept this proposition. It should be born in mind that these posts included such words as "and I will not stop until this vile man and his brainwashed sidekick are shut down and prosecuted for everything they've done to people and their pets". Despite these words, Ms Eppinga refused to accept that she had made a public attack on Dr Kalil (TP 147.5-38).
15. In my view, in fact the proposition that Ms Eppinga was attacking Dr Kalil in her posts, could scarcely be gainsaid.
16. A further matter which I do not believe reflects well on Ms Eppinga's credit was Ex C9. This document is a NSW Police COPS entry, and is a document which again she tendered in her own case. From that document, it can be seen that Ms Eppinga apparently reported to Police that she had been verbally abused by Dr Kalil. This conflicts with her evidence that she was physically assaulted by Dr Kalil, and had reported that assault to the police.
17. Finally, the central plank of Ms Eppinga's case, namely that she did not have drugs in her hand is contradicted by the Police statement of Dr Kalil (Ex C10). This document, which again Ms Eppinga tendered in her own case, constitutes a piece of objective evidence , contrary to Ms Eppinga's case.

Credit of Ms Eather

1. In contrast, I found Ms Eather to be a straight-forward and reliable witness. Her evidence was plausible, and she answered questions put to her in a responsive manner. She was willing to make corrections where appropriate.
2. Mr Muriniti attacked her credibility on the basis of small differences of detail in her accounts of certain matters in the witness box, and accounts given on earlier occasions. I did not find these inconsistencies to be other than those one would expect in the circumstances.
3. These minor inconsistencies, I believe, should be contrasted with her evidence in relation to the central factual issue where she was unshaken that she saw Ms Eppinga in the treatment room holding medication, and that Dr Kalil then asked Ms Eppinga to leave the Hospital, also telling Ms Eather that he thought Ms Eppinga was attempting to steal the drug that she was holding.

Findings on Credit

1. For these reasons, I prefer the evidence of Ms Eather where it conflicts with that of Ms Eppinga, and thus on the Central Issue I find in fact that Dr Kalil and Ms Eather discovered Ms Eppinga in the treatment room holding drugs. As to the Sub Issues I find that upon leaving the BHVC, Ms Eppinga yelled abuse at Dr Kalil, though in all likelihood, that abuse addressed to his religious beliefs, rather than his race. I also find that Dr Kalil did not touch Ms Eppinga in the process of requiring her to vacate the clinic.

Conclusion

1. In summary, on the Central Issue, I find that Ex C10 establishes that Dr Kalil thought that Ms Eppinga was attempting to steal drugs. I also find that when Ms Eather entered the treatment room with Dr Kalil, Ms Eppinga had a drug in her hand.
2. Accordingly, in my view, no evidentiary onus passed to Dr Kalil, and to the extent to which it may have been thought to have passed, it has been discharged. As a result, no Jones v Dunkel inference is available against Dr Kalil.
3. I thus find that Ms Eppinga has not discharged the onus which she bore to establish malice on the part of the cross defendants.
4. It must follow therefore, that the cross claimant, Ms Eppinga, has failed to defeat the cross defendants' defence of qualified privilege, and thus that defence must succeed.
5. Accordingly, there should be judgment and verdict in favour of the cross defendants against the cross claimant, with costs to follow the event.

Orders 1. Judgment and verdict for the cross defendants against the cross claimant. 2. That any party wishing to be heard on the issue of costs notify my associate of the fact on or before noon on 26 April 2023 ("Notification"). 3. That in the event of Notification, the notifying party shall file and serve any evidence and submissions on or before 4:00pm on 28 April 2023. 4. That the non-notifying party file and serve any evidence and submissions which it wishes to make on the issue of costs on or before 4:00pm on 12 May 2023 5. That the notifying party file and serve any submissions in reply on or before 4:00pm on 19 May 2023. 6. That the submission in each case are not to exceed 10 pages in length. 7. That the filing of the submissions referred to in orders (3), (4) and (5) be affected by way of email transmission to my associate. 8. That any issue as to costs be decided on the papers. 9. That in the absence of notification, the Court orders that the cross claimant will pay the cross defendants' costs.

Amendments 24 April 2023 - Title 10 July 2023 - 10/07/2023 - case names/citation corrected in coversheet - Sims v Joost (No 2) [2016] WASCA 83 - KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden (2020) 101 NSWLR 729 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 July 2023