Munro v Wheeler - [2025] NSWDC 3 - NSWDC 2024 case summary — Zoe

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Munro v Wheeler

[2025] NSWDC 3

District Court of NSW|2024-12-19

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At a glance

Source facts

Court

District Court of NSW

Decision date

2024-12-19

Source

Original judgment source is linked above.

Judgment (111 paragraphs)

[1]

News Pty Ltd [2020] NSWSC 26 Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035 Feo v Pioneer Concrete (Vic) Pty Ltd [1999] VSCA 180 Golden Season Pte Ltd v Kairos Singapore Holdings Pte Ltd [2015] SGHC 38 Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152 Google LLC v Defteros (2022) 277 CLR 358; (2022) 403 ALR 434; [2022] HCA 27 Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299; [2010] NSWCA 34 Harbour Radio Pty Ltd v Wagner (2019) 2 QR 468 Harrigan v Jones [2000] NSWSC 814 Hay v Cresswell [2023] EWHC 882 (KB) Hayson v Nationwide News Pty Ltd [2019] FCA 81 Holmes a Court v Papaconstuntinos (2011) Aust Torts Reports 82-081; [2011] NSWCA 59 Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96 Howe v Zuchowski [2024] VSCA 56 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 Lazos v West Australian Newspapers Ltd [No 2] [2024] WASC 238 Lee v Keddie [2011] NSWCA 2 Legge v Universal Hospitality Group Pty Limited (No 2) [2020] NSWSC 1411 Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 LVMH Watch & Jewellery Australia Pty Limited v Michael Lassanah & Ors (Costs) [2011] NSWCA 407 Maisel v Financial Times Ltd [1915] 3 KB 336 Marshall v Megna [2013] NSWCA 30 Martrat Pty Limited trading as Huxley Hill & Associates v Murphy [2020] NSWDC 1 McCarey v Associated Newspapers Pty Ltd (No 2) [1965] 2 QB 86 Millane v Nationwide News Pty Ltd t/as Cumberland Newspaper Group [2004] NSWSC 853 Monson v Tussauds Ltd [1894] 1 QB 671 Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(note) Munro v Wheeler [2024] NSWDC 23 Munro v Wheeler (No 2) [2024] NSWDC 492 O'Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 Ouda v Hunter [2024] VSCA 323 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 Phelps v Nationwide News Pty Limited [2001] NSWSC 130 Poland v Fairfax Digital Australia & New Zealand Pty Ltd [2023] WASC 383 Prouten v Buxton [2024] NSWDC 182 R v MacDonald [1983] 1 NSWLR 729 Rader v Haines [2022] NSWCA 198 Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555 Rodgers v Gooding [2023] QDC 115 Russin v Wesson, 183 Vt 301, 949 A. 2d 1019 (2008) Sandilands v Channel 7 Sydney Pty Ltd [2005] NSWSC 1250 Selkirk v Wyatt (2024) 302 FCR 541; [2024] FCAFC 48 Singleton v Ffrench (1986) 5 NSWLR 425 Skalkos v Assaf (2002) Aust Torts Reports 81-644; [2002] NSWCA 14 Smith v ADVFN Plc & Ors [2008] EWHC 1797 (QB) Spicer v The Commissioner of Police of the Metropolis [2020] EWHC 1778 (QB) Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 Stocker v Stocker [2020] AC 593 Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45 Surie v MacDonald [2024] QCA 254 The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1 Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 Trantum v McDowell [2007] NSWCA 138 Triggell v Pheeney (1951) 82 CLR 497 Umeyor v Ibe [2016] EWHC 862 (QB) Vale v Sutherland (2009) 237 CLR 638; [2009] HCA 26 Voller v Nationwide News Pty Ltd [2019] NSWSC 766 Wake v John Fairfax & Sons Limited (1973) 1 NSWLR 43 Walsh v Nationwide News Pty Ltd [2011] NSWDC 42 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 Waterhouse v Mirror Newspapers Ltd (1985) 1 NSWLR 81 Watson v Foxman (1995) 49 NSWLR 315 White v Overland [2001] FCA 1333 Wing v The Australian Broadcasting Corporation [2018] FCA 1340 Wraydeh v Fairfax Media Publications Pty Ltd (2021) 105 NSWLR 254; [2021] NSWCA 153 Zuchowski v Howe; Howe v Cavendish Properties and Zuchowski [2022] VCC 1604 ZXC v Bloomberg LP [2022] AC 1158; [2022] UKSC 5 Texts Cited: Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (2nd ed), at [10-82] Gatley on Libel and Slander (12th ed, 2013, Sweet & Maxwell) J C Gibson (ed.), Aspects of the Law of Defamation in New South Wales (Law Society of New South Wales, 1990) at p. 8 Meital Pinto and Guy Hardman "Shaming: Definition, Historical Origins and Contemporary Proliferation of an Illusiveness Concept", January 2022 SSRN Electronic Journal P George, Defamation Law in Australia (4th ed., 2023, LexisNexis) at [19.1] Category: Principal judgment Parties: Ainslee Kate Munro (1st Plaintiff) Lauren Alicia Marchant (2nd Plaintiff) Shannan Kathleen-Jean Wheeler (1st Defendant) Anne-Marie Francis Curry (2nd Defendant) Representation: Counsel: M Lazinski (Plaintiffs) P Larkin SC, J Petry (2nd Defendant)

[6]

Facts not in dispute

In March 2020, the first defendant and her partner were given, and then gave to their two young children, a black and tan King Charles Cavalier Spaniel pedigree puppy ("Teddy"). Teddy, who was only three months old, had been microchipped but not yet been desexed. The children were thrilled with their acquisition, and Teddy was a focal point in the family's life.
Three months later, on 9 June 2020, the first defendant returned home from work to find that Teddy was missing. She posted photographs and other relevant material, such as her location, on Facebook at 7:29 PM. On the following day, she visited the local pound and the sole veterinary surgery in Young. She began a running commentary on her Facebook page, asking if anyone had seen Teddy. She reported the loss to police and placed advertisements in shop windows and other public display areas, including the shop where she ran her own beauty business.
Despite all these inquiries, there were no sightings of Teddy. The first defendant's children were increasingly distressed and on 12 June 2020, she retained the services of the second defendant, a "pet detective". At 5:04 PM the second defendant posted on Facebook about her proposed search for Teddy.
By coincidence, the first evidence of a sighting of Teddy also occurred on 12 June, but as a result of a more traditional information source than social media. The first defendant's mother had arranged for an advertisement to be inserted in the local newspaper, which was published in the edition which came out on 12 June 2020. Mrs Gorham, a local resident, read the advertisement and immediately recalled seeing a dog very like Teddy at about 10:00 AM on 9 June 2020, as did her husband, who had been out walking with her at the time they saw the puppy (Exhibit 8; Tcpt 489, 520, 560 - 566, 566 - 567). They went to the first defendant's home to tell her they had seen Teddy at about 10:00 AM on 9 June in Lachlan Street, Young. Crucially, they said they had seen him in the possession or apparent control of two women, one of whom had him in her arms. They said that one of the women had volunteered that they had found the dog in the street and that they were taking him to the pound. Both Mr and Mrs Gorham gave a detailed description of the appearance of each of the persons they had seen with this dog.
The information provided by Mr and Mrs Gorham was set out in a Facebook message that the second defendant received from the first defendant: "At 7:55pm I received the following Facebook message via Facebook messenger from Ms Wheeler: "I also had the woman who called, come and knock on our door this evening and spoke with us in person regarding the two women. They were both blonde and her husband corrected her statement about them looking like mother/daughter and said they were both around the same age in their twenties and one had her hair up in a high bun. Her husband said that he believes he has seen them in the past fortnight. also realised today that there is a school on our street - it's a small Muslim school and it's not far off the road so I think their cameras might actually reach the footpath. A client of mine send her children there so she has given me a contact number to phone in the morning." (Exhibit 17, Paragraph 46)
The persons they described were indeed the plaintiffs, who were in Lachlan Street that day because they were taking an exercise walk, something they did regularly. The plaintiffs had met in the Aldi carpark at 9:00 AM, where they had parked their cars, and were about half way on their way back to their cars when they saw Teddy in the middle of Lachlan Street. They managed to get him off the road and took him with them for the rest of their walk.
They knew Teddy was a lost dog and, as he had a collar and was well cared for, not a stray. They knew about lost dog sites and who to contact. When they first saw Teddy, the second plaintiff took a photograph of the puppy on her phone, which she then posted on the Young Community Facebook page, together with the information about where he was and that he appeared to be lost. (It should be noted, out of sequence, that very shortly afterwards she took down this post. She also deleted the photograph from her phone.)
At about the same time, they encountered Mr and Mrs Gorham. The plaintiffs admit that the first plaintiff told the Gorhams they were taking Teddy to the pound.
However, the plaintiffs did not take Teddy to the pound. Nor did they take Teddy to the nearby Young Veterinary Clinic, which was the only veterinary clinic in town and well known to the first plaintiff (as she had worked there as a veterinary student), and to the second plaintiff (who had taken her own pets there). Nor did they knock on any neighbourhood doors, despite many residents being at home because of the pandemic. Nor did they go into any shops or businesses that were open, although the first plaintiff's stepdaughter worked in a nearby bank (Tcpt 138).
Instead, the plaintiffs walked for a further 14 minutes back to their cars, with the first plaintiff carrying him in her arms after he made an earlier attempt to get away. Arriving at the Aldi car park, the first plaintiff put Teddy in her car intending to drive to the nearby home of a former work colleague (Mr Loader). She would tell the police that this was because she did not want to leave the puppy in the car while she did her shopping, but her explanation later became that she wanted Mr Loader, a licensed microchipper, to read Teddy's chip to find out who his owner was, so that she could personally take Teddy to his owner.
While the first plaintiff drove her SUV to Mr Loader's home, Teddy was unrestrained and jumping between the back and front seats.
Arriving at Mr Loader's home at 5 Brock Street, the first plaintiff parked outside and telephoned him. There was no answer. She left a 7-second message, the contents of which are disputed. Despite Mr Loader not answering, the first plaintiff opened her car door to get out, for unexplained reasons. Teddy then escaped from her car.
The first plaintiff did not spend any time looking for Teddy. This is confirmed by CCTV from Mr Luff, a resident in Brock Street. Although not kept by police, it is not in dispute that this CCTV shows the first plaintiff's car arriving and leaving very soon afterwards. The first plaintiff had left her very ill daughter, who required constant attendance, in her partner's care and she was keen to get home (Tcpt 58). She said she rang the second plaintiff to tell her that the puppy had run away, but the second plaintiff gave a different time for this call.
From the evening of 9 June 2020 onwards, the first defendant's searches for Teddy appeared not only on her own Facebook pages but on other community and lost dog sites such as "Lost, Found and Missing Pets in Australia" (which had 215,456 followers), the Young Community Facebook page (the page where the second plaintiff, who was a member, had briefly published her post about Teddy) and on the personal Facebook pages of veterinary clinics in the area, as well as on the Facebook pages of many residents of Young. There were posters in shop windows as well. The first defendant commented on 17 June 2020 that "it was nearly impossible for [the plaintiffs] to NOT see all our missing ads" (statement of claim, paragraph 10(b)). The reach of these advertisements after the second defendant's involvement from 12 June 2020 onwards increased even further due to the large number of followers she had (Tcpt 665 - 666) and the business techniques she used to call for assistance from the public. Her engagement came after Mr and Mrs Gorham came forward on 12 June 2022, and both defendants were calling for these mystery women to come forward.
Neither of the plaintiffs contacted either of them to say that they had seen (and, in the case of the second plaintiff, photographed) a dog looking a lot like the missing Teddy. Both say that they saw none of these Facebook posts or advertisements in Lachlan Street windows, despite taking the same walking route twice in the following days.
Both the plaintiffs have Facebook accounts and phone records confirm they were using their phones on the evening of 9 June at the same time that the first defendant first posted about Teddy being missing (at about 7:40 PM). The second plaintiff sent the first plaintiff an MMS picture message and a Facebook Messenger post (she says that these have since been unsent), the contents of which have not been discovered or otherwise provided. On 12 June 2020, between 9:00 PM and 9:52 PM, the plaintiffs exchanged 9 SMS messages, the texts of which have similarly not been provided.
Wanting to follow up Mr and Mrs Gorham's information about the two women, the second defendant asked Mr Chmait, the headmaster at a private College, to check its Lachlan Street CCTV. Mr Chmait emailed her regarding the CCTV footage and what it depicted. He confirmed that he could see "2 blonde females walking a dark, small dog at approximately 9:57am in front of the school. I have taken 2 screenshots below. I hope they help. Let me know if there is anything else I can help with." (Exhibit 17, paragraph 61).
As is set out in his statement and evidence (Exhibit 9, Tcpt 594), Mr Chmait watched the 9 June 2020 footage showing two women walking with a small dark-coloured dog at 9.57am and took two shots from the CCTV which he forwarded to the second defendant, requesting that identifying features of the school be blurred, and telling the second defendant that on the CCTV footage, it looked as if the dog was on a leash.
On 16 June 2020 at about 6:35 pm, the second defendant posted a comment on her 12 June post which added the newly obtained CCTV image of the plaintiffs walking along the street with Teddy. She put up a separate post which contained the CCTV photograph and calling for these women to be named and to come forward: "Hi everyone! Thank you for your assistance, support and information. Just to be clear - we are NOT accusing these women of theft - we just want to speak with them to assist or they can call local police if they feel more comfortable doing so. A police report is being made in the morning by Teddy's owners. The owners and us just want Teddy found safe and sound no questions asked and understand that sometimes people find a wandering dog and assume it needs help but in this case Teddy is a VERY loved family pet and needs to go home." (Exhibit 17; Tcpt 728)
She published the following at 6:38 pm: "DO YOU KNOW THESE WOMEN??? WE URGENTLY NEED TO SPEAK TO THESE TWO BLONDE HAIRED WOMEN WHO FOUND TEDDY & WERE SEEN WITH HIM NOT FAR FROM HIS HOME. We ask that they please CONTACT US ASAP to assist with our investigation OR ask that they ANONYMOUSLY DROP TEDDY TO A LOCAL VET OR POUND ASAP." (Exhibit 17)
This also appeared on the page operated by the first defendant.
At 9:19pm, the first defendant sent the second defendant MMS messages with photographs from a third party's Facebook in which the first plaintiff was identified. Following further calls, at approximately 11.20pm the second defendant edited the 16 June post to the following: ""ALERT TO YOUNG COMMUNITY". DO YOU KNOW THESE WOMEN?? WE URGENTLY need to SPEAK with THESE WOMEN. CCTV & WITNESS STATEMENTS suggest these young women walked along LACHLAN ST, Young @ Approx 10 am on 9/06/20 WITH what is believed to be TEDDY and stated they had just found him. We ask they please CONTACT US ASAP to assist with our investigation. (call) 0406 834 001. They are described as youngish with blonde hair. See below for further info on Teddy." (Exhibit 17)
The plaintiffs were using their mobile phones and social media while this was occurring. At 6:50 PM the second plaintiff sent an MMS picture to the first plaintiff. The plaintiffs sent each other further texts, such as an MMS motif at 10:13 PM. These have not been produced to the court.
Late in the evening of 16 June 2020, the plaintiffs went to the police station to say that they had seen Teddy in the street and had picked him up, planning to take him to the pound. They told police they had then walked back to Aldi where the first plaintiff "intended to go shopping before contacting the pound" and did not want to leave the dog in her car while she did so. Accordingly, she had driven to a property at "5 Brock Street", in order "to secure the dog in the rear yard" but Teddy had jumped out as soon as she opened the car door (Court Book 3956 - 7).
Notwithstanding the uncertainties of accuracy in relation to what the Police did, there has been no challenge to the Police running sheet (Court Book 3956 - 7) recording what the plaintiffs told the police, which was as follows: "Both P/N have told police they were walking along Lachlan Street where they had to remove the dog in question from the roadway. They stated the dog run [sic] off before coming back and following them along Lachlan Street. The dog continued to run onto the roadway, so P/N Munro picked the dog up with the intention of taking the dog to the pound. She walked back to her car at Aldi where she intended to go shopping before contacting the pound. A post was put on Young Community page notifying people of the dog being located. Instead of leaving the dog in the vehicle, the P/N Munro drove to 5 Brock Street to secure the dog in the rear yard. As she opened the door the dog jumped out of the car and run [sic] off and P/N Munro was unable to catch the dog. After the dog run [sic] off the P/N Munro has removed the post from the Young Community page as she didn't have the dog any more. P/N Munro returned to Aldi and completed her shopping." [Emphasis added]
Several points should be noted. First, the first plaintiff described to police a consistent purpose of taking the dog to the pound. Second, she does not appear to have informed the police that the Young Community post (put up by the second, not the first, plaintiff) was deleted almost immediately. Third, she gives a very different reason for her visit to "5 Brock Street" (acknowledged to be the address of Mr Loader), namely that it was as an alternative to leaving the dog in the vehicle while she did her shopping, and not that it was for the purpose of having Teddy's chip checked.
Who was Mr Loader? Mr Loader was a meat inspector, a dog breeder (King Charles Cavalier dogs and poodles) and ran his own microchipping business, Hilltops Mobile Microchipping. The first plaintiff had helped train him to do microchipping and they had worked together "for years" (Tcpt 361) although they were "not friends" (Tcpt 360). They shared an interest in breeding dogs and is not in dispute that: 1. The first plaintiff had given Mr Loader a female King Charles Cavalier dog (which had not been desexed) in 2018 (Tcpt 416, 426). 2. Mr Loader had four breeding dogs in his yard in June 2020, namely two female Cavalier King Charles Spaniels and two female English Springer Spaniels (Tcpt 427). 3. In June 2020, to inseminate his female breeding dogs, Mr Loader would use different mates from breeders "around town and in Boorowa" (Tcpt 427).
(It should be noted, out of sequence, that neither the first plaintiff nor Mr Loader told the police that Teddy had been brought to check his microchip; Mr Loader mentioned it as a possible reason but told police it was quite difficult to check and that Teddy may have required an X-ray to find it (Court Book 3952)).
The police suggested the plaintiffs pass their version of events on to the second defendant. At 12:13 AM the first plaintiff sent a Facebook message to the second defendant's business Facebook page, saying they had been "cleared by the Police of any wrongdoing" and asking her to take down the post "naming and shaming" them containing their names. The full message was as follows: "In regard to Teddy I have been named as the person who allegedly stole the wandering dog. Myself and Lauren Marchant, who was accompanying me on my walk have attended Young Police station tonight to resolve the complaints made against us and have been advised to contact you directly. We have provided Young Police with information regarding the sighting of the missing dog. Unfortunately we have no knowledge of Teddy's current whereabouts as he ran away several times, I ask you to remove the post which includes photos and information regarding myself and my profession. I would appreciate it if our privacy could be respected."
This sounds as though the plaintiffs only briefly saw the dog in Lachlan Street. There is no mention of the first plaintiff carrying Teddy for 14 minutes to her parked car, driving him to a work friend's home or planning to check his microchip. Nor is there any mention of the photograph the second plaintiff took, or the post she put up and then deleted.
The second defendant, who had been asleep when this message arrived, had several phone conversations with the plaintiffs on the following morning, 17 June 2020. The first plaintiff told the second defendant to delete the posts identifying the plaintiffs, which the second defendant immediately did, principally because of her assertion of exoneration by the police. The portrayal of Teddy running away several times, in circumstances where the plaintiffs had no control, was clearly drawn.
After agreeing to do so and then deleting these posts, the second defendant then rang Mrs Gorham, the woman who had seen the plaintiffs with Teddy. Mrs Gorham described their conduct as "odd" and the second defendant decided to inquire further. She rang the first plaintiff back and coaxed her into a fuller version of events and went on to telephone the second plaintiff and Mr Loader in the same way.
The contents of those conversations are contested but the accuracy of the second defendant's meticulous notes of them have not been the subject of serious challenge.
The second defendant has disclosed all her notes, messages and texts, but the plaintiffs have discovered nothing. The phone records produced under subpoena by Telstra confirm that the plaintiffs were in constant contact with each other by phone over this time, exchanging 15 MMS picture messages, 74 SMS and 6 voice calls. The first plaintiff also had four telephone calls with Mr Loader. The texts of these MMS and SMS have not been provided and there is no account given as to what was said in the voice calls.
Although the first plaintiff told the court that she was not a prolific phone or social media user, and that she barely knew Mr Loader, these phone records show she was in frequent contact with Mr Loader over the period from 9 - 17 June 2020. They exchanged one SMS message (sent from the First Plaintiff to Mr Loader on 17 June 2020 at 10:46:29am), 32 MMS (RCS) messages, and at least 23 telephone calls for a total duration of more than 4500 seconds (the equivalent of 75 minutes). Again, there was no discovery of the contents of the messages exchanged between the plaintiffs and/or Mr Loader referred to above. It is also relevant to note that the plaintiffs walked over the same route several times in the days following Teddy's disappearance, as the second plaintiff's watch data confirms. They would have passed the salon where the first defendant worked, which had a big sign up about Teddy.
After seeing the plaintiffs, the attitude of the police towards the defendants changed. The second defendant's statement (Exhibit 17) sets out that Senior Constable Kentwell had a telephone conversation with the second defendant on 17 June 2020 at 4:00 PM about a "problem" with social media posts, although adding that the police "didn't have a problem with your post" as it was "similar to police posts" (Document 62 in the Chronology). However, they took a very different attitude to the first defendant, visiting her shop premises late that evening, telling her to stop posting or risk harassment charges (although the question of who would bring these was not explained).
It was in those circumstances that the first and second defendants had a disagreement about what would be published in future. The second defendant refused to publish any further material about the plaintiffs and counselled the first defendant not to go to Mr Loader's home to confront him. The first defendant set up the "Bring Teddy Home" page and published many of the posts in Exhibit A on that Facebook page. On 18 June she went to Mr Loader's home, despite the second defendant's attempts to dissuade her from this course.
The police had not, however, exonerated the plaintiffs. They went to the first plaintiff's home on 17 and 18 June and searched the premises, in the belief that there were illicit drugs there. It is not in dispute that this was a police error for which the defendants were not responsible, but it certainly worsened the situation between the parties. (The numerous errors made by police are set out in a separate section below.)
Although the second defendant was not prepared to place any further material on Facebook identifying the plaintiffs, she did not cease investigating. The documents produced by police under subpoena reveal that she was in touch with them regularly and that she prepared and sent, on 3 July 2020, a meticulously prepared Brief setting out the relevant legislation, a chronological account of her inquiries and the texts of all conversations she had.

[8]

Contemporaneous records

The difference, in terms of in the parties' production of corroborative documentation, is stark. The plaintiffs kept no notes or documents and have told the court their phones have been unavailable because they were lost, destroyed and/or replaced. This included failure to discover or produce mobile phone, messenger and social media messages between them (as well as between the first plaintiff and Mr Loader) even though they were in constant contact with each other, as the telephone records and message tracking documents confirm. It also transpired that the second plaintiff had an Apple watch the contents of which confirmed that the plaintiffs took two or more walks in the same area in the days following their encounter with Teddy.
In their statements, the plaintiffs were rarely able to provide information from their own recollection about any of the events. The first plaintiff's statement records only that she "offered to comply with any requests from Police"; she could not remember the names of the officers she spoke to (paragraphs 110 - 114). All that the second plaintiff could recall of their attendance at the Young Police Station on 16 June 2020 was that they told police that "we had been accused of stealing a dog" (Tcpt 202). Both said they could not recall police taking any notes. In cross-examination, questions about matters which should not have been difficult to recall, such as what the first plaintiff had done after Teddy ran away in Brock Street and whether she had spoken to anyone at the time, were responded to by saying she did not recall (Tcpt 374 - 7). Mr Loader was similarly unable to remember the events in question in any detail.
By contrast, both defendants have meticulously set out all their documentation. Both gave comprehensive answers in cross-examination demonstrating clear and concise recollections of these events even though four years have passed. There is also extensive contemporaneous documentation, all of which has been carefully retained by them as well as (in the case of the Brief) by the police. The first defendant made a statement to the police on 17 June 2020 (Court Book 3966) and the second defendant's contemporaneous Brief to the police, prepared and delivered within days of the events in question, records all her inquiries, conversations and documentation.

[9]

Approaches to the police by the parties

The plaintiffs paint their "early involvement" with police in a light flattering to them, pointing to their voluntary attendance and submitting that, as neither of them was charged, let alone convicted (submissions, paragraphs 107, 109 - 110; see also paragraph 151), any claim for justification must evaporate: "In this case, there was an early involvement of the NSW police who spoke to the first plaintiff and attended her residence on two occasions. Neither plaintiff has ever been charged with any criminal offence with respect to Teddy let alone convicted. … Even if the first plaintiff might have been justified (which is denied) is [sic] claiming substantial truth, the claim would have evaporated before she proceeded with the Name and Shame post which went up at 10:37PM on Wednesday, 17 June 2020.59 By that stage, Ms Wheeler was already told by the second defendant that Dr Munro called and said that her and the second plaintiff had been cleared by the Police of any wrong doing. Even more alarmingly, it was after the Police attended her salon and told her that she herself may be the subject of a harassment charge. 110 Consequently, it is respectfully submitted that the defence with respect to the Name and Shame post fails."
However, they were not the first to contact police and they did not do so until publicly named. Contact with the police was as follows: 1. The first defendant went to the police station on 12 June 2020 (Tcpt 488; Court Book 3956) and was in regular contact with them thereafter. She made a statement on 17 June 2020. 2. The second defendant, who regularly had contact with police for her job, was retained on 12 June 2020 and was in regular contact with police, including sending them a comprehensive brief of evidence on 3 July 2020 which police note receipt of on 6 July 2020 and produced in answer to a subpoena for their documents about their inquiries (Court Book 3942ff). 3. The plaintiffs went to the police very late in the evening on 16 June 2020 after not only their CCTV photographs but their names were published.
The plaintiffs did, however, have early contact with their solicitor; concerns notices were sent on 19 June 2020 (paragraphs 15A and 26C of the statement of claim). The police appear to have received copies, as the police records refer to their contents and used this information to tell the first defendant, when she made inquiries, that this was a "civil" matter.
There appears to have been little actual investigation and what inquiries were made were wasted opportunities due to police errors. These include disregarding the information from Mr Chmait because police contacted the wrong school (Court Book 3952, 3959), failing to keep CCTV from Mr Loader's neighbour, Mr Luff (Court Book 3960), carrying out two searches of the first plaintiff's home because they thought they were looking for illegal drugs rather than illegal dogs, getting into an argument with members of the first defendant's family and telling them that this was a "civil" defamation claim for $100,000 and not a police matter (Court Book 3953), problems ascertaining Teddy's microchip records (Court Book 3950) and failing to follow up any of the information provided by the second defendant (Exhibit 17; Court Book 3942 ff, 3950 ff). The police repeatedly refer to their investigation as not really being a criminal one, as this was a "civil" matter, even though the second defendant had drawn their attention to the inconsistencies between the plaintiffs' conduct and their obligations when finding a lost dog.
There was limited cross examination of either plaintiff about what they told the police and accounts of what the police said to the plaintiffs were challenged as hearsay (see for example Tcpt 14-15, 105-107). However, the parties consented to the police COPS and running sheets going into evidence, even though the issue of their admissibility was raised by the court (Tcpt 184 - 5), so I propose to regard the material produced under subpoena by police as having some degree of credence.
One finding that I do propose to make is that the police records confirm that there was some kind of investigation going on, for at least several weeks or months, into the circumstances of Teddy's disappearance. In those circumstances, I do not accept the plaintiffs' statement to the second defendant on 16 June 2020, repeated in their submissions, that they had been "cleared" by the police that very evening, as being an accurate statement. The first defendant had yet to give a statement, the second defendant was still making inquiries, police had not interviewed the other witnesses and the circumstances in which the plaintiffs had held back until identified by others was one which warranted more than peremptory dismissal. At the time that the police decided to take no further action and close the investigation, they do not appear to have notified anyone except the first defendant.
By the time that the investigation was closed, nothing had been heard from the plaintiffs, either in relation to the police or to the defendants, for some months. There matters remained until 11 June 2021, days before the expiry of the limitation period, when these proceedings for defamation were commenced.

[10]

The parties' identification of factual issues in dispute

The evidence which is in dispute is narrow in focus. The questions are whether the first plaintiff took Teddy to Mr Loader's home for her stated reason or was in fact stealing (or attempting to steal) him, and the second plaintiff's role (if any) in this, including whether she withdrew her message and photograph of 9 June for her stated reason or some other reason.
As well as the extent of publication (this being a question of contention throughout these proceedings), the issues of what imputations were conveyed, and by which part of any asserted matter complained of, are the next complication. The imputations are not simply an allegation of dog stealing. Unfortunately for the plaintiffs, unlike the applicant in Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369, who wisely limited the imputations he pleaded to specific charges of rape, the pleader in these proceedings has also pleaded a series of broad general imputations of lying, untrustworthiness, causing distress to children and being dishonest, none of which have as a prerequisite that the plaintiffs actually stole, or attempted to steal, Teddy. Their failure to hand over Teddy promptly and appropriately, or to provide vital information about his whereabouts, and their unsatisfactory explanations for their conduct are matters that could go to the truth of one or more of these imputations which, as Mr Larkin SC noted several times, was relevant to the defendants' pleaded case of mitigation.
Credit is an issue of great significance to the facts in dispute. The plaintiffs, have provided comprehensive discovery including a brief the second defendant provided to police in July 2020 containing all evidence in her possession. The defendants submit that the plaintiffs' failure to comply with court orders (particularly in relation to discovery) on 16 occasions since this matter was set down for trial, their withholding/destruction of 105 SMS and 12 MMS messages between the period 9 - 17 June 2020 and their asserted destruction or disposal of mobile phones (Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264) mean that their evidence should not be accepted.
The plaintiffs say that they have given honest evidence and that there is "no evidence" (submissions, paragraphs 89 and 150) that they withheld any material or played any role in the stealing of Teddy.

[12]

Problem areas in the pleadings and submissions

Where pleading problems arise about issues as fundamental as what the matter complained of is and what the imputations are, there are two ways forward: the aggrieved party can seek case management assistance before the hearing occurs or leave the problems to the hearing as part of the "docket" system.
As I noted in Munro v Wheeler (No 2) [2024] NSWDC 492 at [14], the experienced solicitors and barristers who previously appeared for the defendants chose the latter course. They forewarned the plaintiffs of their significant errors in relation to the pleading of publication and the defences but took no action to strike out any portion of the pleading.
Leaving such issues to the trial is a practice endorsed by the Federal Court of Australia in defamation case management, where the entertaining of interlocutory applications by judges has been described as "meretricious" (Adeang v The Australian Broadcasting Corporation (No 2) [2016] FCA 1599; Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152 at [26]; Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726; (2023) 169 ACSR 583). This has not always been the Federal Court's view (White v Overland [2001] FCA 1333 at [4]) but the modern practice of leaving everything to the trial (including amendments to the defence: Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98 at [50] - [90]) is not only a feature of Federal Court defamation actions but a practice now increasingly used in other courts, such as this court, as well, as Poland v Fairfax Digital Australia & New Zealand Pty Ltd [2023] WASC 383, where the plaintiff had similar problems, demonstrates.
The pleading and evidentiary problems that consequently had to be dealt with at trial were as follows: 1. Determining what constituted the matters complained of (Exhibits A and B): The 110 pages attached to the statement of claim as constituting the two matters complained of are not documents that anyone ever published on Facebook, but a collection of hundreds of screen shots, out of chronological order and consisting of multiple copies. The three witnesses called to say they had downloaded the matters complained of had a much thinner version (only 43 pages), which was different. An even slimmer version of the matters complained of was provided as part of the plaintiffs' submissions. 2. The imputations: The plaintiffs' submissions (paragraphs 71 - 81) do not address the pleaded imputations individually in the context of the matter complained of, stating instead that "the broad impression of the "Name and Shame" post is that they, the plaintiffs, stole Teddy [emphasis in the original text]", followed by claims that proof that "such defamatory meaning was conveyed" can be obtained from "the way that the plaintiffs were cross-examined" (submissions, paragraph 91). This conflates meaning with the defences. A number of the imputations (such as that the plaintiffs were liars and untrustworthy) do not require proof of dog-stealing at all. 3. No plea of malice in the Reply: Although a Reply was filed, it failed to refer at all to malice in relation to the defences of statutory and common law qualified privilege, honest opinion or common law fair comment. Despite this, the plaintiffs' submissions point to malice by the first defendant (paragraphs 113 - 121) and second defendant (paragraph 155), but in relation to qualified privilege only. Mr Lazinski acknowledges the plaintiffs cannot claim malice in relation to the second defendant but submits that the recklessness in publishing by the first defendant should be a matter he can rely on in relation to defences in which malice is an element. No draft particulars of malice have been provided. 4. Liability for publication should be restricted to the party against whom the claim is brought: The plaintiffs at times appeared to conduct these proceedings as if the claim for damages for both defendants was brought against both of them (Tcpt 455 - 456, 462), and as if the content of both publications (which are pleaded to give rise to the same imputations) is the same. They are not. 5. Defences: There was confusion about what defences were pleaded and what facts related to each defence: 1. As to statutory qualified privilege, both defendants refer in their submissions to s 30(3) but the plaintiffs' submissions do not refer to s 30(3), perhaps because of uncertainty as to which checklist applies (the answer is the checklist for s 30 for publications prior to 1 July 2021). 2. The common law and statutory opinion defences have been conflated by the plaintiffs in their submissions concerning the first defendant's defences. 3. Proof in relation to justification issues has not been determined with regard to the imputations pleaded. 4. Although the plaintiffs have made submissions on the defence of innocent dissemination in relation to the first defendant, the first defendant has not in fact pleaded this defence, as is pointed out in the first defendant's submissions in reply (paragraph 102). 1. Discovery issues: There have been discovery problems since the trial commenced: Munro v Wheeler (No 2). The defendants rely upon the asserted absence of hundreds of social media posts, SMS, MMS and other electronic records on credit issues. The plaintiffs have replied to this only in the briefest fashion by stating that there is "no evidence" (submissions, paragraphs 89 and 150) of the withholding of any such documentation. 2. Evidentiary issues: The self-represented defendant had difficulties in relation to compliance with the rule in Browne v Dunn (1894) 6 R 67. I granted leave to Mr O'Callaghan (who had appeared for the second defendant, his wife, for the first three days of the hearing) for further cross-examination of both plaintiffs, but Browne v Dunn issues of significance remain, such as whether it was put to both plaintiffs that Teddy in the CCTV is seen wearing a leash. 3. Technology: Although complex technological issues have been raised and thousands of pages of computer and phone records tendered, no expert evidence has been called, despite Mr Larkin SC foreshadowing that this may be necessary. I have had little guidance from the parties as to how to incorporate evidence from these records into the facts, so I have taken the same approach as that taken in Howe v Zuchowski [2024] VSCA 56 at [162]ff. 4. Damages: The orders sought in the statement of claim show the plaintiffs seek an award of $250,000 to be paid to them jointly, as against both defendants jointly, even though they have been sued separately. This is contrary to the legislation as well as to the court's approach to damages generally. 5. Mitigation: I drew the parties' attention, during submissions, to the need for submissions on mitigation (Tcpt 818, 827) and to address these submissions to the imputations. I have not received further submissions from either of them. 6. Injunctive relief: I drew the plaintiffs' attention to the need to set out whether injunctive relief was still sought (Tcpt 794) but, as Mr Larkin SC pointed out after the final round of submissions was made, these have not been provided.
The problems arising in this litigation as a result is a reminder that defamation actions are complex, and that misunderstandings of legal issues are more than usually easy to make, for judges as well as for parties, as occurred in the judgment appealed from in Howe v Zuchowski at [223, n.140], where the first instance judge applied the wrong s 30.
David Hunt J (as his Excellency then was), in an essay of advice provided to practitioners (reproduced in "Aspects of the Law of Defamation in New South Wales" (J C Gibson (ed.), Law Society of New South Wales, 1990 at p. 8) gave the following warning: "Another piece of advice that should be given is that commencing a defamation action is like taking a tiger by the tail - it is very difficult to let go without serious injury. Above all, an action should never be commenced without a genuine intention of taking it to trial in the absence of a satisfactory offer of settlement from the defendant: cf Packer v Meagher [1984] 3 NSWLR 486."
"Take a tiger by the tail" (W. Scarborough 'Collection of Chinese Proverbs',1875, no. 2082: "He who rides a tiger is afraid to dismount") is a saying that has since passed into defamation folklore, but is still occasionally cited as a warning to those who overlook the legal difficulties and astonishing expense of defamation litigation. (More recently, in Lehrmann v Network Ten Pty Limited at [1091], Lee J cited the Somali proverb that a person who has escaped the lion's den should not go back for his hat.) The message from these analogies is that parties in defamation actions should expect complexity and risk, because this is the price of a cause of action which effectively explores the tension between freedom of speech and protection of reputation.
The recital of these problems is not intended as a criticism of the counsel in this case, both of whom came into these proceedings very late (in Mr Larkin SC's case, on Day 4 of the hearing), in circumstances where white-hot hostility between the parties and their legal representatives (Court Book 3899 ff) has been aggravated by serious health problems on both sides. Given the identity of the parties and the subject matter, this was always going to be a legally complex case.
Regardless of how these problems came about, the combined impact of these problems requires the court not merely to note them, but to make every effort to achieve as just and final a result as is possible between the parties. The first, and most difficult, of these issues is whether the matter complained of existed in the form tendered, whether it can (and should) be construed from the contents of other documents or the evidence, and whether the matters complained of were each downloaded in whole (as opposed to in part) by any third party.

[14]

Could anyone have published the matter complained of?

The form and contents of both matters complained of have been the subject of controversy since the hearing commenced: "O'CALLAGHAN: The other housekeeping matters are matters of quite serious procedural fairness, frankly. Just as we've walked into court this morning, my friend has indicated that there's going to be the possibility of changing the nature of the comments that are within attachment B. Attachment B has been a work of fiction from the outset. This has been raised with the plaintiffs. They have had a very detailed annotated copy of attachment B - HER HONOUR: Didn't I require that exhibit B be served in one of my previous orders? That's the second matter complained of? O'CALLAGHAN: So there was an order in relation to the plaintiffs providing particulars of downloading of attachment B. Those were provided on Wednesday last week, however, the material that's in that set of particulars is a different form to what is in attachment B. We've now been handed just this morning some material that then would seek to alter this course yet again. The second defendant - and I do understand, and I'll let the first defendant speak on this, but I understand that she has been presented with a similar issue with respect to the material that is being put to her. It is just quite astounding. HER HONOUR: I hear what you say but I thought when you raised this with me basically when it was first before the Court that there was some uncertainty about the form of the second matter complained of, and I seem to recall that I made a direction for this to be served in some kind of final form so that we knew where we were going. I'm just looking for that order. O'CALLAGHAN: Yes, so there was an issue around the second defendant had never been served with sealed copies of the amended statement of claim, including attachment B. HER HONOUR: That's right, and I actually gave it to you in court so that that would - O'CALLAGHAN: You served it to me, yes. That copy that was on the Court's file was only approximately 25 pages, thereabouts. The copy that was stamped and filed in Court is only the amended statement of claim, not attachment B." (Tcpt 2 - 3)
Mr O'Callaghan, on behalf of the second defendant, gave the following helpful summary of the second matter complained of, thereby identifying the chief problems: "O'CALLAGHAN: No, but the matter complained of, what is in attachment B is a combination of posts that were made on 12 June and comments there, posts that were made on 16 June and comments there, and posts that were made on 17 June and comments there, and in the pleadings the plaintiffs' point all of these posts to the URL for 12 June post. It's a complete confusion. I think that it's going to be impossible for there to be any evidence that someone had somehow jumped around and also too it is not an entire copy of the comments that were sitting on any of those posts. Very relevantly, there is a comment from my client in very explicit words saying, "We are not accusing these women of anything." Conveniently, the plaintiffs do not include that comment."
The contents of the matters complained of were in doubt from the first. At the commencement of the trial, Mr Lazinski sought to tender two PDF documents which he said were the two matters complained of (Tcpt 8). It transpired that these documents differed from the matters complained of as set out in the annexures to the original and amended statements of claim, and the tender was withdrawn (they are marked as MFI 5). The matters complained of were accordingly re-tendered as being the two documents (70 and 40 pages respectively) attached to the statement of claim, in place of the PDFs previously proffered by Mr Lazinski (see Tcpt 461 ff, referring to the tender of the matters complained of at Tcpt 8, and Tcpt 465). After further discussion (Tcpt 474), the hearing proceeded to finality on the basis that the matters complained of were the schedules to the statement of claim which are now Exhibits A and B, in place of the PDF documents previously sent to the court by Mr Lazinski.
A sample of the unsatisfactory nature of these cumbersome and repetitious documents is set out on paragraph 29 of Mr Larkin SC's submissions: 1. Neither Exhibit A nor Exhibit B is in fact a computer-generated document or otherwise representative of what appeared on the Facebook pages identified as the source for these posts. Each of them is a series of screenshots which have been compiled by an unknown person for unknown reasons and on unknown criteria, which raise evidentiary issues of some nicety (Legge v Universal Hospitality Group Pty Limited (No 2) [2020] NSWSC 1411 at [59] - [62]). The matters complained of were publications on Facebook, not screenshots, and it should be possible to demonstrate that there was, somewhere on Facebook, a publication which in some way resembled at least part of these documents. No such material has been tendered. Although there are URLS contained in the statement of claim for each of the matters complained of, the inference being that each of them is equated with the material appearing at the hyperlink in question, this is not the case. 2. There are no dates and, from their contents, it is clear that the posts are out of date order. Although there are references to "Wednesday at 10:37 pm" and the like, I was not able to locate dates which form part of the matter complained of, as opposed to the time of day and day on which these records were captured by the screenshot. 3. There is considerable duplication. For example, the first 10 pages of the first matter complained of contain the same post, although the screenshots appear to have been taken at different times. As to the second matter complained of, Mr Larkin SC draws my attention to duplication of pages 29 and 30, 20 and 35 and 21 and 39. 4. Some of the material is illegible by reason of being in very small print, blue ink that has faded and being an end result of multiple photocopying. Examples include pages 11, 13, 14 and 53 of the first matter complained of. Many cut off in mid-sentence. 5. There are significant omissions of relevant posts, such as the post referred to by Mr O'Callaghan at Tcpt 3, details of which are set out in more detail below. 6. Some of the material appearing in the matters complained of would not have been published as a post at all. Pages 3 to 7 of the second matter complained of appear to be the "edit history" for a post made by the second defendant on 17 June 2020. The "edit history" shows how she amended the text but this would not be material that would be read as part of the matter complained of unless the reader went into the edit history itself, for the purpose of viewing all versions of the post contained in the edit history. 7. The witnesses who were called to say they read the matters complained of did not refer to the matters complained of tendered as Exhibits A and B in these proceedings. Instead, a much shorter copy (43 pages) of what was asserted to be the matters complained of was shown to the witnesses Corinne Rolls, Patricia Healey and Sharon Bruce. That document is demonstrably different to either of the matters complained of. Mr Larkin SC points out that four of the pages that they were shown do not appear in the second matter complained of despite these containing significant "antidote" to the bane. For example, the comment the second defendant left on the 12 June post at 6:35 PM on 16 June 2020, concurrently with posting a separate comment with CCTV images, was of particular importance.
The first defendant made similar points in her submissions: 1. The first defendant explains that the purpose of this rearrangement of posts is to make it appear that "all comments in the FMCO from the Bring Teddy Home page are in response to a version of a Name and Shame post which included the plaintiff's name and CCTV footage" (paragraph 38(d)(xv) of the first defendant's submissions). She draws attention to the difference in timestamps for these posts which show that the portrayal of these posts as all being in some way connected to the "Name and Shame" post must be wrong. 2. This rearrangement is further complicated (at pp 15 to 16 of her submissions and in paragraphs 35 - 41) by the mistaken inclusion of posts that were not on her website at all. At least 17 pages show posts and comments made on Facebook groups that are not on sites controlled or moderated by the first defendant, and certainly not to the two Facebook pages she maintained. 3. Some of the posts she is asserted to have made, such as those in paragraphs 10(a) and 10(b) of the statement of claim, are not included in the first matter complained of. 4. There are different Facebook users, different devices being used, different dates for the same post in multiple copies, unrelated Facebook pages and Facebook groups, some of which are unascertainable (see pages 13, 46 and 65). Comments that were later edited, in response to posts on other organisation pages such as the Young New South Wales Community Group, are included. There are even comments that appear on some pages of the series of screenshots but not on others, because they have been deleted (the first defendant particularly draws my attention to pages 19 and 39). Finally, there are duplicate comments on many of the pages (see pages 11 to 12).
The next difficulty was that the witnesses who gave evidence of reading the matter complained of had read different material entirely.

[16]

The 43-page document attached to witness statements

Each of these witnesses' identical extracts is 43 pages long. It consists of extracts from the first defendant's "Bring Teddy Home" page (34 pages) and the second defendant's "Arthur & Co Pet Concierge" (9 pages), but nothing from the first defendant's Shannie Wheeler Facebook page. Excluding multiple copies, Exhibit A in this truncated form consists of only 66 entries, of which 14 are from the first defendant. Exhibit B consists of 9 pages, which include 4 entries from the second defendant and one from the first defendant.
Each extract thus differs from both Exhibit A (the first defendant's two social media accounts, "Bring Teddy Home" and "Shannie Wheeler") and Exhibit B (the second defendant's "Arthur & Co Pet Concierge" page) in terms of source, content and length. These differences include the percentage of commentary from each of the defendants and the result is a carefully curated selection of extracts which the witnesses claim they consulted repeatedly for weeks or months.
The 9 pages of posts from the "Arthur & Co Pet Concierge" page include material not forming part of Exhibit B and, in particular, photographs from the CCTV footage which, it is now acknowledged, were hidden or removed from the Arthur & Co Pet Concierge Facebook page after the request by the first plaintiff to the second defendant for their removal from the site. These posts were not included in the matter complained of in either the original statement of claim or in the amended version. No formal application for leave to amend was, however, made.
None of the competing versions of the matters complained of identified the portions of the text from which it is asserted that each of the imputations arose. Mr Larkin SC submitted that this was contrary to the provisions of Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 15.19(2) and that the failure of the plaintiffs to provide a typescript with numbered lines as well as the text of the matters complained of should be fatal to the issue of publication. I note, however, that UCPR r 15.19(3) states that this subrule must be complied with "in respect of radio and television publications" but does not refer to any such requirement for what are described as "email or other computer displayed publication" (UCPR r 15.19(2)(a)). In those circumstances, it is hard to see how the plaintiffs can be criticised for not providing copies of the matters complained of in this form.
These differing versions of the matter complained of create difficulties for the plaintiffs in establishing that publication of at least one of them has occurred. What must be stressed from the outset is that these are evidence problems, and do not arise from any challenge to basic principles for liability for publication in defamation, namely that such liability remains both broad and strict despite (or in fact because of) technological innovation resulting in publications of the kind sued upon in this litigation. The defendants accept that, where publications are made by third parties on an internet page or site, liability may arise (Fairfax Media Publications Pty Ltd v Voller (2021) 273 CLR 346; [2021] HCA 27 ("Voller") at 357 (CLR) per Kiefel CJ, Keane and Gleeson JJ; Google LLC v Defteros (2022) 277 CLR 358 ; (2022) 403 ALR 434; [2022] HCA 27 at 442 (ALR) per Kiefel CJ and Gleeson J, at 468 per Gordon J). The basis of the defendants' challenge to publication is that, as occurred in The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1, each of the plaintiffs has failed to demonstrate that any person ever read the matter complained of (including each other: Trantum v McDowell [2007] NSWCA 138 at [7] and [45] - [53]). Nor is there any evidence that even the three witnesses called to give downloading evidence had read the equally artificially constructed 43-page screenshot extract attached to each of their statements.
Mr Larkin SC adds, in his submissions in reply, that no one could have read what appears to be the latest version of the matter complained of, namely the even slimmer document attached to Mr Lazinski's submissions. He has also objected to any consideration of capacity of the imputations being determined in relation to any of these different versions, submitting that it is too late now for the plaintiffs to be including in their submissions a completely new matter complained of, with the passages asserted to give rise to the imputations marked on it.
Given the significant differences in structure and content of social media and its structure (which is closer to spoken rather than written publication), it is surprising that disputes about the content of the matter complained of are not more common. The problem of establishing just what was said has always been a feature of slander cases, as Warby J noted in Umeyor v Ibe [2016] EWHC 862 (QB) at [1], for reasons not dissimilar to the nature of social media publication, such as what the exact words were, and in what order they were published. This difference has been referred to in English decisions as "fatal variance" (Gatley on Libel and Slander (12th ed, 2013, Sweet & Maxwell, [32.15])). While the applicability of this concept in Australia was rejected in Brien v Mrad [2020] NSWCA 259 at [24], the position is still that, where a plaintiff sues on a publication that is materially different to the matter complained of, the claim may be struck out on that basis alone.
Whether described as "fatal" or "material", the "difference" between the document asserted to have been published and the document which was published needs to be significant. A recent example of differences between two publications failing to amount to being a different publication occurred in Surie v MacDonald [2024] QCA 254. These differences were that the matter complained of was described as being a "letter" in red ink when it was in fact an email in red ink, and some formatting and minor text changes. The defendants sought to argue that these differences meant that the document sued on (as opposed to that referred to in the Concerns Notice) was an entirely different document, for which an extension of time and a fresh concerns notice were required.
Brown JA, with whom Mullins P and Crowley J concurred, regarded the acknowledged changes as minor, noting that the imputations remained the same, and the appeal was dismissed. At least the Court of Appeal had two documents which were capable of comparison. In the present case, I have so many different versions of the matter complained of that it is hard to know where to start.
The defendants submit that failure to provide a matter complained of which accurately sets out what was said (and evidence that this publication was then downloaded by a third party) should mean that publication cannot be established if other statements materially altering or qualifying what was said are not included.
The defendants' argument needs to be considered in light of the Court of Appeal's rejection of "fatal variance" as well as the relatively generous approach that courts have taken in relation to proof of the text of the publication. In Feo v Pioneer Concrete (Vic) Pty Ltd [1999] VSCA 180, the Court was content to refer to the "gist" of what was said, although the differences in question (where the imputations were of corrupt conduct) appear to have been minor at best. (See also Coles Supermarkets Australia Pty Ltd v Clarke [2013] NSWCA 272 at [89], citing Tournier v National Provincial and Union Bank of England [1924] 1 KB 461). However, where there is demonstrable difference between what is pleaded and what is proved, in terms of both pleading and downloading, this becomes a significant hurdle for the party pleading the publication not only occurred online but was downloaded.
The onus lies on the plaintiff to establish that the matter complained of accurately represents was said on social media. This can be difficult, for a number of reasons. First, the availability of publication-limiting devices such as the hiding or removal of a text may mean that reconstruction is difficult, especially where the fast-moving nature of publication changes the order of publications or in other ways starts to differ from the version initially seen. Second, the sheer vastness of the material makes selection of the text to be pleaded difficult, especially where technology-challenged complainants have not kept a proper electronic copy of the publication.
The requirement for a plaintiff to establish that the matter complained of has been read by a third party is just as important in relation to internet and social media publications as it is in relation to books, television broadcasts and even non-verbal publications such as Monson v Tussauds Ltd [1894] 1 QB 671 (in fact, it is even more important, in that the nature of internet publication requires proof of downloading by a reader, whereas readership of a newspaper or a book requires no such proof).
Before the internet, print publications could be the subject of applications to "strike out" or "strike in" material asserted to impact the meanings pleaded. In Hayson v Nationwide News Pty Ltd [9], Bromwich J explained how courts determined the parameters of pre-internet publications: "There was little dispute as to the relevant principles, as outlined in the competing submissions. The issue is as to their application. Those principles may be stated in short form as follows: (1) There is a cause of action for each publication of "defamatory matter", "matter" being defined as including "an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical": see ss 4(a) and 8, Defamation Act 2005 (NSW). A single published article is therefore usually to be considered as a separate matter unless there is a sufficient reason to treat it in some other way relative to other published material. (2) An allegation of a defamatory meaning, especially when there is a question as to whether an imputation in one part is negated by reference to what appears in another part, must be determined by reference to the matter that has been published, considered as a whole: Morosi v Broadcasting Station 2GB Pty Ltd, unreported, New South Wales Court of Appeal, Samuels JA, 28 September 1978, but published in the manner of a report as an Editor's endnote to Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 per Hunt J, at 418 to 421, relevantly at the bottom of 419. (3) The requirement to read a matter that has been published as a whole means that an allegation of defamation cannot be pleaded in a way that denies its overall meaning. Thus, the pleading must include "every passage which materially alters or qualifies the complexion of the imputation complained of": Gordon at 413[6], endorsed in Australian Broadcasting Corporation v Obeid [2006] NSWCA 231; 66 NSWLR 605 at [26(a)]. The pleading must place the parts relied upon in their full context if that context is capable of materially affecting the imputations relied upon: Obeid at [26(e)-(f)]. (4) Beyond the requirement to plead a matter complained of contextually, an allegation of defamation may be cast as a matter of forensic choice (and, it may be said, risk: see Obeid at [4]). As Simpson J pointed out in Phelps v Nationwide News Pty Ltd [2001] NSWSC 130 at [22] (quoted and effectively applied in Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 at [54]-[56], and endorsed more recently by McCallum J in Gav v Ryde Ex Services Memorial and Community Club Ltd [2018] NSWSC 621 at [7]): "Individual circumstances will dictate whether a particular pleading will be permitted to stand. However, it is to be borne in mind that, subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen, it is generally for the plaintiff to select the manner in which he/she/it wishes to present a case. It is only if the plaintiff's selection of the mode of pleading is untenable for one of those reasons that it will be struck out. By this I mean that where, for example, a plaintiff elects to proceed as though a number of individual parts of the matter complained of together amount to a composite publication, it is only if that approach is not reasonably open, or creates unfairness of such a degree as to constitute an abuse of process, that the pleading will be struck out. Similarly, where the plaintiff elects to proceed as though each were a separate publication, it is only where that view is not reasonably open (or where unfairness amounting to abuse of process would result) that that pleading will be struck out. Within those boundaries, a plaintiff is entitled to mark out the playing field." (5) Thus, as pithily expressed by Hodgson JA in Obeid at [2], a person bringing a defamation suit "cannot be compelled to include additional material in the statement of claim unless (1) this additional material is part of what can reasonably be regarded as one publication that includes the material relied on by the plaintiff, and (2) the material relied on by the plaintiff must reasonably be regarded as part of a publication that includes the additional material". (6) The compulsion to plead more than has been forensically chosen will only arise if the only reasonable view that is open is that the selection did not provide the "whole of the context" from which the tribunal of fact, considering the matter from the perspective of an ordinary reasonable reader, would be concerned to determine the meaning of what was published: Obeid at [69]; see also Kermode v Fairfax Media Publications Pty Ltd [2009] NSWSC 1263 at [19]-[20], [25]-[28]; Sandilands v Channel Seven Sydney Pty Ltd [2005] NSWSC 1250 at [20], [24]; Robinson v Brighton [2007] NSWSC 1125 at [12], [15]-[17]; McFarlane v Nationwide News Pty Ltd [2014] NSWSC 1574 at [9], [12]. [Emphasis for references to Obeid added]
The cases referred to above largely relate to attempts to force plaintiffs to plead material they were attempting to leave out but, whether material must be added or subtracted, the question is whether the meaning is affected.
The problem of how to deal with internet publications where comments by third parties form part of the response arose in Golden Season Pte Ltd v Kairos Singapore Holdings Pte Ltd [2015] SGHC 38. Lin J, not being able to apply Voller principles, overcame publication challenges by holding that a Facebook post and its comments should be treated as one publication (at [55]). That was a relatively straightforward solution, in that the content and extent of publication was common ground and the post and all but one of the publications had been made by the defendants.
That solution may work for one Facebook post and its comments, but it will not apply where there are hundreds of posts over a long period and where the precise parameters of the matter complained of are difficult to draw.
The next difficulty the plaintiffs faced was the significant inconsistencies between the form of Exhibits A and B and the limited extracts of posts which their three witnesses say they downloaded.

[18]

Mrs Rolls

Mrs Rolls set out in her statement (Exhibit G) that on or about 17 June 2020 "a series of posts came up in my newsfeed, in Facebook, which related to a small dog I recall as being known as "Teddy"". She clicked on these posts and read them by using her mobile telephone to access a Facebook page called "Bring Teddy Home" and a Facebook page called "Arthur & Co Pet Concierge". As she was a friend of the first plaintiff, she would receive a notification from Facebook if any post appeared in which the first plaintiff was tagged. Ms Rolls recalled receiving a notification in relation to the "Arthur & Co Pet Concierge" page, which indicated that there is a photograph on that page in which the first plaintiff was tagged. Ms Rolls also checked the "Bring Teddy Home" page, where she saw both plaintiffs were named.
According to her affidavit, over the next 4 to 6 weeks, Ms Rolls reviewed these pages often to see if the dog had been returned and what was being said about her friend the first plaintiff. She identified the Facebook pages she saw as being those set out in the 43-page annexure to her statement.
In cross-examination, Mrs Rolls agreed that there were a lot of posts on Facebook which changed in position and visibility regularly, and that she had not been looking for posts, but simply accepting what Facebook presented to her: "Q. And in viewing those comments, you have to scroll through the post potentially a number of times if there's a lot of comments. Would that be fair? A. Yes, that's fair. Q. And going back to those filters, if a post said that it has 100 comments, but then when you open it up you only see a few, would you ever click on one of those filters to try and see what are the missing comments? A. No. Q. So when you see a post do you see it as what Facebook presents to you and which comments Facebook has determined to show you, is that fair? A. That's fair." (Tcpt 306)
Mrs Rolls agreed that she was not "savvy" (Tcpt 302 and 307) about Facebook or social media generally. She did not understand the difference between a post and a screenshot. She did not know how to take a screenshot (Tcpt 308), from which it is clear that she would not have taken any of the screenshots which are attached to her affidavit. She agreed that she had not been asked to look at what posts she had seen and that she could not be certain as to which posts she had seen: "Q. And it no criticism of you, but it might be that if you looked at it at a particular point in time one or two, maybe more, of these comments might not have been there. Maybe there were other comments you saw. Would that--- A. That's fair to say." (Tcpt 312)
The one thing she could remember was that she had seen the first plaintiff's face tagged in a photo taken from CCTV: "Q. So when you saw the CCTV images, was it in a format like we're seeing here on this page? A. I believe it was. Q. Looking at those images do you remember, when you first saw those images do you remember where you were? A. No, I don't. Q. And do you remember which day it was? A. No, I don't." (Tcpt 313)
Mrs Rolls added that she recalled it was in the middle of June (Tcpt 313), and that she contacted the first plaintiff very soon after seeing this photograph on the Facebook page, telling her that she needed to obtain legal advice immediately.
What this evidence demonstrates is that Mrs Rolls could really only recollect that she saw one post with CCTV photographs which included the first plaintiff (who was tagged), She identified this post as being on the Arthur & Co Concierge page. Even if she had read the post accompanying it in the very short time period that it was available online, that post is not in Exhibit B.
Mrs Rolls' evidence initially was that she saw the post identifying the first (but not the second) plaintiff in a CCTV photograph on the Arthur & Co Pet Concierge post. That post, which remained online for about 12 hours, is not included in the second matter complained of. Mrs Rolls' evidence does not identify any other post concerning either plaintiff in sufficient terms to be able to identify that post or posts. Her lack of understanding of screen shots and her inability to take them mean that the document attached to her affidavit is of no assistance beyond identifying the sole post that she could be certain was there, namely the CCTV post which the second defendant removed the following day following the request of the first plaintiff to do so.
Mrs Rolls' concessions about what she saw are honest and appropriately worded. However, her inability to identify any of the "series of posts" referred to in her affidavit confirms that, even when preparing the affidavit, she could not say what these were.
An additional difficulty is that Mrs Rolls claims that she was consulting these pages a few times a day for 4 - 6 weeks but did not notice that the one post she did recall, namely the CCTV photograph of the first plaintiff, could not have been there after it was removed the following day by the second defendant.
A further difficulty is that, although paragraphs 8 - 12 of her affidavit appear to describe different posts, these are in fact descriptions of that same, single post, which is no doubt why no dates are given for these other posts.
In re-examination, Mrs Rolls said she recalled seeing another post which actually named both the plaintiffs. However, all that does is to cast doubt on whether "the one" post Mrs Rolls was certain she had seen was the CCTV-photo post by Arthur & Co Pet Concierge (which did not name the plaintiffs) or the Bring Teddy Home post, which both showed the CCTV and named them: "Q. Then do you recall reading that post? A. I believe it was that post. I can't tell you with every certainty. But I believe it was that post. I know that it was what I believed was a pet detective that had been used to, to try and find this puppy. But it wasn't - no, actually that one doesn't actually name Ainslee in it. The one that I, I, I do believe I've seen that one, but the one I saw actually named Ainslee. Q. So can I then ask you to look at page 3 of that exhibit bundle - actually, page 1 of that exhibit bundle? A. Yes. Q. So can I just ask you to have a quick look at that, and then do you recall reading that post? A. I do believe I've read that post, yes. Q. And for the record, can you read the very first two words in capital of that post? A. "Name and shame." Q. Then what does it read after that? A. Ainslee Munro and Lauren Marchant. Q. So do you recall reading that post? A. Yes, I do believe I've read that post." (Tcpt 330)
There are other problems for the posts set out in the first matter complained of. Exhibit A includes posts from the Shannie Wheeler Facebook page. Mrs Rolls acknowledged that she had not visited this Facebook page at all (Tcpt 324). She acknowledged: "Q. So given that most relevant comments change, depending on who's viewing them at what time, the different times and dates throughout the annexure, comments posted on my personal page, deleted comments that may have been on at different times, is it possible that you did not see each comment in its entirety of annexure A at the same, in the same capacity? A. It, that, it, that is quite possible, given those circumstances, yes." (Tcpt 325 - 326).
At its highest, Mrs Rolls' evidence is of identification of the first plaintiff (whom she knew), but in relation to one post only. Given the very short time frame in which the second defendant's post was online and her certainty that the plaintiffs were named, the likelihood is that the post Mrs Rolls saw was the post that not only showed the photograph but named the plaintiffs, which is the post put up by the first defendant after the second defendant (who had taken down the earlier post with the CCTV) had refused the first defendant's requests to continue posting.

[20]

Ms Healy

Ms Healy sets out in her statement of 21 February 2024 (Exhibit E) that on or about 16 June 2020 she "became aware of a series of posts on Facebook involving a small dog known as Teddy who had been stolen or gone missing from his home in Lachlan Street". She became aware of these after she received a message from Kelly Slater on Facebook earlier that day. Over the following days she accessed both these pages. The first plaintiff was a friend so any post the first plaintiff was tagged in would result in a notification to this witness from Facebook. She recalls that she checked the sites a few times each day for about 6 to 8 weeks and thereafter do so only periodically. She attaches the same 43-page document to her statement as that seen by Ms Rolls and Ms Bruce.
In cross-examination, Ms Healey was asked about a witness statement that she had signed on 21 February 2023 attaching only nine pages, as opposed to the 40-page second matter complained of that had been tendered. She was shown this document: "Q. If I understand correctly, you're not suggesting that there's any of the Bring Teddy Home material, if I can call it that, in these 40 pages, that at least the portion of which you've scrolled through it at this juncture? A. No, it wasn't a share. I thought it was a share from their page. It's just the same sort of pictures. Q. So those photos of the dog are the same photos that you've seen elsewhere, is that fair to say? A. Yeah. Yeah. Q. And as a user of social media would you understand that users can copy photos from posts and put them onto other posts themselves? A. Yeah, yep. Q. And that doesn't necessarily mean that the other person is even aware that their photo has been used elsewhere, is that fair? A. Yeah, I suppose, yeah. Q. Now what I might do is take you now to the CCTV photo that's in your annexure B on page - A. Yeah. 35, is it? Q. 35, yes. Sorry, pausing just before I get to that. Apologies if there's any confusion. But just to round this off. We've stepped through your annexure B in your witness statement which are a series of nine screenshots of a post and comments, and we've - A. Yep. Q. --gone through some but not all of the 40-page document that has been on the screen. And if you recall, you agreed earlier that on a range of factors, including the particular time, privacy settings, the Facebook algorithm, the filters that might be used for comments, all of those might impact precisely what was or was not within a particular post and comments at the time. Is that correct? A. Yes. That's what I said. Q. And factoring all of that in you cannot be sure that you have actually seen all of what is in the 40-page document, is that correct? A. No, I don't know what's in the 40-page document, no. 'Cause you've only, only see what's on the screen here." (Tcpt 285 - 6)
Ms Healey's admission is that she has seen one document because it was tagged in her Facebook feed, but nothing more.

[24]

Was there any downloading of any part of the matters complained of?

The statements prepared for Ms Rolls, Ms Healey and Ms Bruce are insufficient to establish any of them read either of the matters complained of, for the following reasons: 1. These witnesses did not actually say, individually or at all, that they read each of the matters complained of as pleaded, as opposed to one or more particular posts. Their evidence is that they read the document attached to their statements in its entirety, although there is no other evidence that those posts occurred in that order, or altogether, or in the same Facebook account, at all. 2. None of these witnesses refer to the Shannie Wheeler posts which form part of the first matter complained of, or to the posts prior to 16 June 2020 where the plaintiffs had not yet been identified. On their evidence, they could not possibly have seen these posts and identified the plaintiffs as they required the photographs to do so. 3. The witnesses did not each prepare their own copy of what they said they saw on Facebook. They each said that they read the identically constructed Annexure "B", which is a separate compilation of posts prepared by the solicitors for the Plaintiffs (and for which there is no platform of facts verifying that anyone, let alone these three witnesses, ever downloaded such a document). 4. Only Ms Healey gave evidence that she may have read the other comments in Annexure B to her statement. Ms Rolls and Ms Bruce did not give that evidence. Ms Rolls accepted in cross-examination that she did not read all the comments, claiming in cross-examination that she had "seen some of the stuff" in the 40 pages of the second matter complained of, but later accepting she had not read it at all.
The evidence of these three witnesses cannot therefore amount to having read and downloaded the matters complained of. I am not satisfied that they even read the online versions of the posts in the screenshots attached to their statements.
This brings me to the third version of the matters complained of, namely submissions by Mr Lazinski that these matters can be distilled from Exhibits A and B by listing all the parts that are asserted in his submissions to convey the imputations pleaded or alternatively by some kind of reconstruction of the 43-page document attached to the three witness statements.

[25]

Can the contents of the "actual" publication of the matters complained of be extracted from Exhibits A and B?

Both the selection of material sued upon and the choice of the imputations to be pleaded to arise (Sandilands v Channel 7 Sydney Pty Ltd [2005] NSWSC 1250 at [23]) are choices for the plaintiff. Before determining what imputations are conveyed, there must be certainty about the content of the matter complained of.
As Bromwich J observed in Hayson v Nationwide News Pty Ltd at [9], the identification of the defamatory publication is very much a matter of forensic choice for a plaintiff - and, it should be added, risk (Australian Broadcasting Corporation v Obeid (2006) 66 NSWLR 605 at [4]). Where it is asserted by a defendant that the meaning of the matter complained of is affected by material which should be struck in (or struck out as the case may be), an application must be brought. Such applications are scrutinised with care; where there is an application to strike in (or strike out) material, the court will exercise a degree of caution in permitting the opponent to reframe the plaintiff's case: Phelps v Nationwide News Pty Limited [2001] NSWSC 130 at [22].
What is the "risk" referred to in Australian Broadcasting Corporation v Obeid? Mr Larkin SC directs my attention (submissions, paragraph 23) to Hodgson JA's warning, in Australian Broadcasting Corporation v Obeid at [4] as to the impact on damages, but I note the observations of Levine J (cited at [38]) as to defamatory meaning as well. If the plaintiff does plead a great deal of material but cannot establish that a person downloaded (in the case of an Internet publication) or read (in the case of the print publication) the whole of the matter complained of, as the ordinary reasonable reader is taken to have done so, there is no evidence of publication. This is what occurred in Sydney Cosmetic Surgery v Hu; the artificiality of construction of the matters complained of meant that establishing that anyone had read any of them and identified either of the plaintiffs was so demonstrably not the case that the whole pleading was struck out.
In the present case, the plaintiffs had pleaded that each of the matters complained of is a single, composite publication of very great length, which was published over an unspecified period of time which could be up to one year. The plaintiffs ask the court to accept that one or more readers downloaded each of the matters complained of in the exact form of the single composite publications in Attachments A and B to the statement of claim. There are, however, no particulars provided of any downloader having either downloaded or read the whole of either of these publications. There are three witnesses as to downloading but they have read only a few or perhaps one post at best.
When considering these submissions, it is important to note that these difficulties were drawn to the attention of the plaintiffs from the commencement of this litigation. The statement of claim in its current amended form resulted from exchanges of correspondence between the solicitors for the parties in September 2021. On 24 September 2021, after having been served with a draft of the current statement of claim, Mr Patrick George (then acting for the second defendant) drew this very problem to the attention of the solicitors for the plaintiff as follows: "…what is unclear from paragraphs 16 - 18 is whether your clients rely on the first party posts and the third-party comments together as a single composite matter for the purposes of section 8 of the Defamation Act 2005, or whether your clients rely on them as separate matters. Please clarify this." (Exhibit 10)
On 28 September 2021, the solicitor for the first plaintiff replied that "our clients rely upon the entirety of the post and comments contained at the URL pleaded as Arthur & Co. Pet Concierge Publications as a single composite publication" (Exhibit 10).
Mr George replied that the question of whether the second defendant's post containing the CCTV footage, which was not in annexure B, was downloaded by anyone during the very short period when it was published, needed to be articulated in the pleadings, adding: "It is incumbent on your clients to identify the matter complained of in the precise form which is alleged to be defamatory of them, and to prove that publication and any republication of the matter in that form. A copy of the matter in that form should be annexed to the pleading." (Exhibit 10)
The solicitors for the plaintiff then replied, repeating that "the Facebook posts were published initially on 11 June 2020" and asserting that the posts in which the second defendant identified the plaintiffs by CCTV photographs were "deleted or hidden at the time of printing annexure B", adding that the plaintiffs would amend the statement of claim to make this clear.
Mr George correctly stated that the plaintiffs could not identify one form of the matter complained of and then purport to add to it material published on another date. Changes of this nature to the matter complained of would require a strike-in application in the absence of agreement.
No amended pleading of the kind foreshadowed and no application to strike in was ever made. Not only is it too late to do so now, but I have not been provided with a copy of what these new matters complained of would be. The plaintiffs must proceed with this litigation on the basis that Exhibits A and B are the matters complained of.

[26]

Was publication admitted by the defendants?

The plaintiffs submit that both defendants have admitted to being the publisher of the posts and comments on their website.
As the first defendant is self-represented, response to this argument has principally been conducted by the second defendant in written submissions in reply (paragraphs 16 - 21) as well as in oral argument (Tcpt 692 - 695). The defences are similarly drafted and the first defendant has adopted the second defendant's challenge to this submission.
The relevant paragraphs in the second defendant's defence are paragraphs 8.2, 8.3 and 8.11.
Each of the defendants admits in the defence that she has made available for publication the matter set out as having been published. Publication is, however, a bilateral act in which the publisher makes that material available, and a third party has it available for his/her comprehension. Making the matter available does not amount to publication; it is the first step of a two-step process. Paragraph 8.11 of the defence specifically states that the second defendant "does not admit that any person read the entirety of Attachment B and the matter set out in paragraph 20 of the ASOC and therefore does not admit publication of the second matter complained of".
The function of a pleading is to state, with sufficient clarity, the case that a party must meet thereby rendering procedural fairness, as well as defining the issues for decision. Both aspects are important: Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286. Both defendants, in these pleadings, have made clear that they do not admit publication of the matters complained of, in very clear terms.
There is another reason why the plaintiffs' claim that publication has been admitted should be rejected. Both parties have conducted these proceedings on the basis that publication is in dispute. This is not a case where the opposing party has conducted the case in such a way that the opposing party was entitled to assume that this was not an issue in the case. Pleadings will be construed as containing admissions only in very clear cases and, even then, a court may be reluctant to impose such rigidity of position, especially where the parties have clearly fought the case on the basis that the issue in question is in dispute. In Vale v Sutherland (2009) 237 CLR 638; [2009] HCA 26 at [41] the High Court (Gummow, Hayne, Heydon, Crennan and Kiefel JJ) stated: "In his written submissions to this Court the Trustee contends that the determination of whether Mr Vale disputed the value asserted in the Notice "depends entirely" upon whether in his defence he made a "specific denial" or a statement of "specific non‑admission" in accordance with the rules, as outlined above. However, in Banque Commerciale SA (En Liquidation) v Akhil Holdings Ltd, Dawson J noted: "But modern pleadings have never imposed so rigid a framework that if evidence which raises fresh issues is admitted without objection at trial, the case is to be decided upon a basis which does not embrace the real controversy between the parties. ... cases are determined on the evidence, not the pleadings." Thus, whatever view is taken of the range of issues tendered by the pleadings, it was open to Lloyd‑Jones FM to decide the case as he did. No unfairness results to the Trustee from such a result." [Footnotes omitted]
All of this evidence was admitted without objection at the trial, and the issue of admission was not raised until closing submissions.
There may be circumstances in which, as a result of case management practices, a court may consider that objections have been waived and a "fresh step" taken (Cock & Anor v Hughes & Ors [2001] WASC 24 at [61] - [67]), but such cases are rare. While s 159 of the District Court Act 1973 (NSW) (now s 63 of the Civil Procedure Act 2005 (NSW), as explained in Deveigne v Askar [2007] NSWCA 45; (2007) 239 ALR 370), established a foothold for a "wide and generous approach" (at [141]) to irregularities, this cannot apply to matters of substance such as publication, where the plaintiff is free to select what to sue on as well as how to discharge the onus of proof. If there is uncertainty, the appropriate course is to raise such issues before the court as part of case management, for the reasons explained in: Martrat Pty Limited trading as Huxley Hill & Associates v Murphy [2020] NSWDC 1 (where the plaintiff had, in fact, made similar pleading errors by rolling up a series of publications).

[28]

The remaining issues for determination

The next difficulty is how to determine the other issues in this case, in terms of making alternative findings. Should those alternative findings be based on the matters complained of as currently pleaded, or should I endeavour to ascertain, in some way, how the plaintiffs should have pleaded the case and how the defences would have run to a publication of this nature?
In Massoud v Nationwide News Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150 at [275]-[278], [280]-[281], [286]-[288], Leeming JA analysed the issue of "judicial economy" in terms of dealing with multiple alternative findings necessary for proceedings which fail at an early stage.
Findings must still be made about the imputations pleaded, the defences and damages. The question is how these issues can be resolved in circumstances where so fundamental an issue as what was in the publication cannot be answered, in circumstances where other errors now come forward clamouring for attention, such as the problems with the reply to the qualified privilege and opinion defences. There is also the need to give careful consideration to the extensive evidence about justification and to make appropriate findings concerning witness credibility.
There are a number of ways that I can approach this. The most obvious is that I should determine all other issues with multiple alternative findings based on the pleadings as they currently are. Alternatively, I could adopt a more flexible approach to the matters complained of as being potentially an indication of an allegation that the conduct of each of the plaintiffs amounted to being prepared to steal, or steal, the puppy they found in the street. A third alternative is that some issues should be determined on the case as pleaded (such as the imputations) while others dependent on the evidence, such as justification, should be dealt with without regard to what was actually claimed to have been published, but on the evidence led before the court, in terms of the imputations pleaded, on the assumption that all of the imputations are conveyed. It would also be difficult to seek further submissions on publication, or to reconvene the court, without also raising concerns about the other errors referred to elsewhere in this judgment. To relist a matter after reserving is a course taken only where there is a clear issue capable of quick resolution, as opposed to a series of difficulties of the kind I see here. I am also conscious of the stress and anxiety caused to all parties by this litigation, and aware of their desire that judgment be handed down as soon as possible.
The course I have taken is to make alternative findings based on the assumptions that the plaintiffs can establish publication and defamatory meaning of all imputations and then to apply those findings to the defences as pleaded and the evidence as led.
I have also made alternative findings on the issue of damages.

[30]

Are the imputations conveyed?

The relevant principles for determination of capacity at trial where the matters complained of are social media publications are set out in Bazzi v Dutton (2022) 289 FCR 1; [2022] FCAFC 84, where the Full Court of the Federal Court adopted the analysis of social media publications set out in Stocker v Stocker [2020] AC 593 at [29] ff. The test in defamation actions where publications are made on social media is now "the ordinary reasonable reader of social media".
While the greater degree of informality in social media publications may lead to a more flexible approach to capacity, the imputations pleaded as arising must be considered with care. Each imputation must be considered separately from the others pleaded, for each of the plaintiffs, and the question of capacity must be determined separately for each publication.
Imputations may be the subject of challenge on two grounds, namely form and capacity. As to capacity, the defendants complain that the plaintiffs have not identified with sufficient precision the passages of each of the matters complained of giving rise to each of the imputations for each of the plaintiffs (submissions in reply, paragraph 16). Mr Larkin SC complains of lack of "procedural fairness" (submissions in reply, paragraph 12) arising from the plaintiffs' failure to particularise how each imputation arises, but it is for the defendant to challenge capacity, rather than for the plaintiff to justify it.
No objection is now taken as to form of the imputations by the defendants, although there is earlier correspondence to this effect.
The questions of law for determination of capacity of the imputations are: 1. Guilt or suspicion: The first issue is whether the matters complained of conveyed imputations of guilt, as opposed to being reasonably suspected of the act or condition set out in each of the imputations (Ouda v Hunter [2024] VSCA 323 at [31] - [40]). 2. Imputations of condition requiring more than one wrongful act: Whether participation in one criminal activity (whether stealing a dog, or committing a murder) is sufficient to show a general criminal proclivity such as criminality or as being the kind of person capable of committing other similar offences. 3. Joint enterprise or individual acts: Whether what the plaintiffs are accused of doing is some form of joint enterprise as opposed to individual wrongdoing. 4. Identification: The plaintiffs are named and depicted in two CCTV-derived photographs, but the defendants have challenged whether identification has been established.
I will deal with each of these in turn.

[31]

Guilt or suspicion

Where an allegation of involvement in criminal conduct is made, and the question is whether the allegation is one of guilt or a lesser imputation, such as "strong grounds to suspect", the context of the allegation, as well as the words, will be significant. In Ouda v Hunter at [31] - [32], the Court stated: "[31] When someone is said to have been involved in or associated with criminal conduct, the matter may, and often will, be expressed in different ways. At one end of the spectrum, the proposition that X has committed fraud' may be stated baldly and without qualification. A subtle variation might arise where the speaker says that I believe that X has committed fraud'. Other variations include: police allege that X has committed fraud', X has been charged with fraud', there are strong grounds to suspect that X has committed fraud' and the charges are well founded'. In Chase v News Group Newspapers Ltd, the Court of Appeal of England and Wales adopted a taxonomy of imputations from actual guilt (level 1), reasonable grounds to suspect (level 2) and investigation (level 3). [32] We refer to Chase not to embrace a rigid classification of imputations, which is undesirable, but to acknowledge that words in this area of discourse may give rise to a range of potential meanings. As the Full Court of the Federal Court said in Australian Broadcasting Corporation v Chau Chak Wing: But meaning is so much dependent upon the words used and context, and whether a matter is capable of conveying imputations of both suspicion and guilt, or grades of meaning in-between, including whether the suspicion imputation is one of strong suspicion, reasonable suspicion, or mere suspicion, or whether it is objective or subjective, active or passive, will depend upon the terms and the context of the matter ..."
Where there are multiple conflicting statements (innocence, suspicion and guilt) in the course of ongoing debate, the question of what meanings are conveyed cannot be drawn only from the worst parts of the matter complained of. Even where there is informality as to the nature and extent of publication, there may be bane sufficient to outweigh the antidote (Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(note)). While courts have generally expressed the view, in relation to print publications where differing statements on such a topic were uncommon, that only in rare cases would antidote outweigh the bane (Corby v Allen & Unwin Pty Ltd (2014) 108 NSWLR 431; [2014] NSWCA 227 at [143] - [146]), the very nature of Facebook encourages the publication of conflicting views in the form of a debate. These factors are of particular importance in relation to the second matter complained of.

[32]

One or more wrongful acts?

Imputations may be pleaded as an act or a condition and a plaintiff is entitled to plead one, the other, or both of these: Carter v Blanco [2024] WASC 447 at [67] per Lemonis J. When considering what criminal "acts" would be such as to warrant either plaintiff being described as criminals, the first point to consider is whether more than one criminal act would be required: Feldman v Nationwide News Pty Ltd [2020] NSWSC 26 at [62] per Campbell J (one allegation of covering up paedophilia insufficient for an imputation of repeated cover-ups). In determining whether one act would be sufficient, the seriousness of the allegation would be a factor: Nationwide News Pty Ltd v Wharton (2002) NSWCA 377; Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255. In Carter v Blanco at [67] - [73], Lemonis J sets out the circumstances in which an "isolated" (Nationwide News Pty Ltd v Wharton at [61]) act of wrongdoing may be sufficient to convey an imputation of being a dishonest person (the imputation pleaded by Mr Wharton) or a criminal, stating at [71]: "In Cornwell v Channel Seven Sydney Pty Ltd, Gleeson JA (with whom the other members of the NSW Court of Appeal agreed) explained that: 1. in some cases a single instance of misconduct will be so serious that it may, at the same time, convey a general charge against the plaintiff; 2. in some cases a single instance of misconduct will not be so serious as to convey a general charge at the same time; 3. in other cases the collection of instances of misconduct in the matter complained of will be capable of conveying a general imputation in addition to specific imputations."
Caution must be exercised when applying these principles as, apart from Feldman v Nationwide News Pty Ltd, they were interlocutory rulings as to the imputations which would go to the jury. What is clear is that the allegation of one act of wrongdoing, absent these additional features, is not capable of giving rise to an imputation of a settled character trait such as dishonesty. Again, that is of particular importance in relation to the second matter complained of.

[59]

Taking Teddy to the "meat inspector"

The first major area of dispute is when the plaintiffs first discussed taking Teddy to the "meat inspector's" house to obtain an RFID scanner. As Mr Larkin SC notes (paragraph 84 of his submissions in reply), the plaintiffs did not give evidence that they gave that purported explanation to the police and, as the second plaintiff's evidence (analysed below) confirms, the question of whether this was decided before or after they told the Gorhams they were taking Teddy to the pound assumes some significance in terms of whether their evidence should be accepted.
There is no doubt the first plaintiff knew she should have taken Teddy to the vet or the pound. The second defendant's 17 June 2020 contemporaneous notes (which I have accepted as correct on all issues) record that the first plaintiff "Acknowledges should [sic] taken to vets or pound. Don't know why [she went to Mr Loader's home]?" This conversation occurred after the first conversation the first plaintiff and second defendant had, after the first plaintiff's initial Facebook message to her, saying the police had "cleared" them, which similarly does not mention the "meat inspector" or a scanner at all. The text of that conversation (set out in the second defendant's discovered notes, her report to the police of July 2020 and her statement (Exhibit 17)) was as follows: "Me: Is it ok if we get into the details about Teddy, can I ask you a few questions to help me to locate Teddy? Ms Munro: Yes, well I don't know where Teddy is. Me: No that's ok, any information helps me to locate a missing dog and as far as I am aware, you are the last person to have seen him. It would be very helpful for me to understand what has happened until now, from your perspective. Ms Munro: Well what do you want to know? Not sure how much I can help. Me: For example, you mentioned in your messages to me that you had a sighting of Teddy and he ran away. Can you talk me through how that happened? Ms Munro: Well I walk that route often because I have a stressful life and a stressful relationship. And I go walking to clear my head. I've got a daughter with a few health issues. Me: What route? Ms Munro: We make our way out of town and then make our way up to Lachlan Street. That's where we found Teddy. Me• And then what happened? [The second defendant then pulled up my Google Maps on the phone so that she understood where Ms Munro was referring to and situated in the story, because she had never been to Young at this point]. Me: Whereabouts on Lachlan Street did you find Teddy? Ms Munro: I saw the work ute, and I saw the border collie, and then I saw Teddy. Me: Sorry, what ute and border collie? What's the relevance of that? Ms Munro: That's the house Teddy lives in. You know, I see Teddy and the other dog alone in the yard all day. Me: Right, did you make any enquiries of that house then? Ms Munro: No because Lauren knows Christ/kristyy [sic] Brown and she is good friends with Shannon and Lauren says they are really rough. You know this is a sweet little dog and rough people like them just shouldn't own dogs. Ms Munro: Teddy followed us down Lachlan Street. He chased after a bicycle, we had lost him. Me: Can you describe the cyclist? Ms Munro: It was male wearing sport clothes."
There is a problem with the comments attributed to the first plaintiff concerning her asserted knowledge that the first defendant owned Teddy. The second defendant's notes clearly point to the first plaintiff having prior knowledge not only of Teddy but of the first defendant's other dog. According to her notes, the first plaintiff knew the first defendant owned him, adding that she thought "rough" people like the first defendant "just shouldn't own dogs". The second defendant clearly repeated this to the first defendant at the time, as this information is referred to in several of the posts the first defendant made in the first matter complained of (for example, the first defendant said she "couldn't believe it when they mentioned our other dog and knowing where we live": page 59 of the first matter complained of). I have included this very serious allegation as it is part of the conversation, but these allegations were not the subject of submissions. This asserted prior knowledge was referred to by the first defendant when she cross-examined the first plaintiff, but that is as far as it went. I cannot therefore take any such allegation into account, and have not done so.
Returning to the text of this conversation, it was at this stage of the conversation when the first plaintiff referred for the first time to Teddy being taken to the "meat inspector". The purpose was not to have Teddy microchipped, but because the first plaintiff "did not want to leave him in the car while I went shopping" as she was going "everywhere" that day (see highlighted text below). This is the same explanation the police Running Sheet records her as giving for taking Teddy to "5 Brock Street" (I note that she had had no difficulty, when telling police where she had taken Teddy, with remembering the number (see highlighted text below)): "Ms Munro: l got him back again after we called out to him. We carried him through town to the Aldi carpark as he was really tired. Lauren went in to Aldi to buy bread and milk and I took Teddy to my meat inspector's house. Me: Sorry who? What has this person got to do with anything. Where does he live? Ms Munro: Brock Street. Me: That's the other side of town? Ms Munro: Yes. I did not want to leave him in the car while I went shopping. I went everywhere that day. You will see me on CCTV at Commonwealth Bank, Fuel, Aldi's, Garry's Butcher. That's why I was taking him to the meat inspector. But unfortunately, Teddy ran away from me. He bolted out of the car when I opened the car door and took off. Me: Ran away from you where? Ms Munro: Out the front of the meat inspector's house. Me: What address? Ms Munro: I don't know the address. I only know it as on Brock Street. Me: What is the house number? Ms Munro: I don't know. Me: If you don't know the number, how did you know where to go in Brock Street? Ms Munro: Well, I know how to get to the house but I could not tell you what number it was. Me: Ok. I am looking at the map and I can see that Brock Street is in between two other streets, Taylor Road and another street. Which end does the meat inspector live on? Ms Munro: Near Taylor Road. Me: What does the house look like? Ms Munro: White, weatherboard with chipped paint."
The first plaintiff then explained why it was necessary to take down the Facebook post about Teddy. The second defendant asked the first plaintiff why she had not edited the post to say the dog was now last seen in Brock Street: "Me: Ok, so Teddy ran away from you outside the meat inspector's house. What direction? Ms Munro: I don't know. Me: Which way? Ms Munro: In the direction of Taylor Road. Me: Did you go looking for him? Ms Munro: I chased after him for a little bit but I couldn't catch him, so I gave up because I had a lot of shopping to do and a lot of errands to run and was already running late. And then I rang Lauren and told her to take down the Facebook post because the dog had run away and I couldn't catch him. Clearly badly trained, very poorly behaved. Me: Did it occur to you to just edit the post, that he was no longer with you in Brock Street? Ms Munro: Well no because we didn't know where he was. Me: But surely you knew that practically the whole town was searching for Teddy and you didn't think to tell anyone that you took Teddy to the other side of town and that he is now missing in a completely foreign part of town, kilometres from home? Can you see why this doesn't make sense to me? Me: He was five months old, you managed to keep control of him all that way from Lachlan Street to Aldi? His breed is a calm tempered, friendly dog. Can you help me understand how you controlled him from Lachlan Street all the way to Aldi and then to the meat inspector's house in Brock and suddenly you can't catch him once you get to the meat inspector's house. You have just said that he was so tired that you had to carry him. Ms Munro: I don't know, you know. I always see that dog alone in the yard all day."
The first plaintiff said that she had gone to the meat inspector's house "just in case he was home" (see highlighted portion). She had, however, not telephoned him until she was parked in front of his house: "Me: Can you help me to understand why you took him to the meat inspector's? Why not the pound? What's the meat inspector's name? Ms Munro: I don't know. Me: But you went to his house? Ms Munro: It's Greg. I just know him as the meat inspector. Me: Was he expecting you? Ms Munro: No, I called him, he didn't answer but I decided to go there anyway just in case he was home. Me: If there is something you want to tell me Ainslee, please just tell me. I'm really struggling to understand the meat inspector thing. Ms Munro: Yes, I don't know why I took Teddy there, I realise now I was wrong, I'm sorry."
This is not correct. She only telephoned Mr Loader when she was sitting in her car which was parked outside his home in Brock Street. It should be noted, on the topic of why she had rung Mr Loader while sitting parked outside his home, the first plaintiff gave another explanation, when cross-examined by the first defendant: "Q. You stated that you did call Greg Loader after the dog ran away? A. I tried and he didn't answer. Q. Was that call - what was that call - what were you calling him for? A. To tell him that I was looking for him and that I called him to see if he was there 'cause there was a black and tan dog. Q. But the dog had already run away when you call him - HER HONOUR Q. Sorry, you said you called him to say you were looking for him for what? A. For a microchip scanner, but the dog had run away. And I - I was principally saying that so he could keep an eye out. FIRST DEFENDANT Q. So you went to the effort of calling him to keep an eye out for this dog after it had run away? A. I just called him." ((Tcpt 83 - 84); emphasis added)
There is an inconsistency of action by the plaintiffs here. First, Mr Loader could not be looking for Teddy if he was at work. Second, asking Mr Loader to look out for this missing puppy is inconsistent with the first plaintiff telling the second plaintiff to take down her post about finding a missing puppy; the second plaintiff had even gone to the trouble of deleting the photograph she had taken of Teddy, which would have been very useful information for Mr Loader if he was to keep a lookout for this missing dog. Third, keeping a lookout for Teddy was "principally" the reason for the first plaintiff's call to him.
Returning to the conversation between the first plaintiff and the second defendant, the first plaintiff then went on to repeat that "obviously" the police had cleared them of all charges, the inference being that they knew and had accepted their explanation: "Ms Munro: But obviously the police have cleared us of all charges. Me: Ok thank you so much for your time. I really appreciate you calling. If you think of anything else at any time - sometimes memories come back to us at random times - just contact me. Let me know if you think of anything else. Me: Just to confirm, you'll see I've taken down the post and the things you've asked me to. There is a separate CCTV image on a separate post. Ms Munro: No we are happy with that one because we feel like it exonerates us a bit because your comments says you are not accusing us of theft and that we were just trying to find a lost dog. Me: You do understand I have to put up another post because up until now, no one knew that the last known location of the puppy was the opposite side of town in Brock Streett over a week ago. We have to use Facebook posts to alert the community he is in fact missing from Brock Street. Ms Munro: I understand you have a job to do and I understand you are just doing your job and of course you want the dog to be found, and as a vet, I would want the dog to be found too. Me: Thank you. You've got my number now, if there are any other problems or issues you have, please do not hesitate to get back in contact with me. I will promptly attend to anything you asked me to do. Ms Munro: I definitely get back in touch is I see anything else I want deleted. Me: One last thing. Do you think Lauren would be prepared to talk to me too? Ms Munro: Why? I have just told you everything. Me: I know, but l have a job to do, and it just makes sense to speak to both people."
I have set out my credit findings about both plaintiffs in more detail below but, even without relying on credit issues being taken into account, I am comfortably satisfied on the evidence that what the first plaintiff actually said and did is as recorded in the second defendant's notes, including her notes of her conversations with Mr Loader and the second plaintiff.
I am further satisfied that the second plaintiff sent a text message to the Young Community Facebook page when she and the first plaintiff first observed Teddy on the road. After having a closer look, in the course of deciding what to do next (since both of them had home and work obligations of some substance and doing anything in relation to Teddy would impact that) the first plaintiff then observed that this was no stray but a pedigreed puppy who had not been desexed. The idea of putting Teddy into Mr Loader's yard resulted in the taking down of the second plaintiff's text and the removal of the photograph of Teddy from her phone. I do not accept that this occurred when Teddy ran after a cyclist, if indeed he did run after a cyclist (male or female) at all, it occurred because the first plaintiff had decided to put the puppy into Mr Loader's yard in case he was interested in keeping him.
I am further satisfied that these events had occurred just before they met the Gorhams. That means their statement to the Gorhams that they were taking the dog to the pound was false.
My findings on these issues are consistent with my findings (on evidence as well as credit) concerning the evidence of the second plaintiff.

[61]

The conversation between the second plaintiff and the second defendant

Two aspects of the second plaintiff's evidence demonstrate that she was not only aware of but a willing participant in the first plaintiff's plan to leave Teddy in Mr Loader's back yard. The first is the implausibility of her explanations about putting up and taking down the photo she took of Teddy as a lost dog (including her explanation as to why she deleted this photo from her phone as well) and the second is her obviously untruthful responses and hostile answers when the second defendant rang her seeking information about Teddy.
The second plaintiff gave evidence that she took a "really rough" photograph of Teddy and posted it on the Young Community Facebook page, along with information about finding him: "Q. Who took that really rough photo? A. I did, it was hard to get the dog to stay still. O'CALLAGHAN: I call for that photo and I call for that Facebook post." (Tcpt 145)
She then not only took this down immediately, but also deleted the photo from her phone: "Q. Do you understand that there's been a request for this photo to be produced or weren't you told? A. I, I do not have the photo. Q. You've been told and you've looked and you don't have it? A. Correct. Q. Why not? A. Because it's been deleted. Q. You deleted it? A. Well I didn't have a need for it at the time. Q. When did you delete it? On the day that you took it or some other date? A. I do not recall. It's just not in my phone, but it has been deleted." (Tcpt 145)
The second plaintiff, a dog owner and breeder, agreed that she was a long-term member of the Young Community Facebook page and familiar with social media pages where lost dogs (including Teddy, although the second plaintiff claimed not to have seen this) were advertised, such as Young & Surrounds Lost and Found Pets (Tcpt 146). She would have been familiar with what had to be done if a lost animal was found, which did not include carrying him along the street or driving him to a friend's home.
Although unable to remember when she had deleted the photo of Teddy from her phone, the second plaintiff was certain about the time, down to the minute, when she deleted the post on the Young Community Facebook page: "Q. So you put that post up just before the cyclist. So in between the couple and the cyclist, you placed this post on Facebook? A. That's correct. Q. At what time do you take the post down? A. After the dog was taken off and we can't see it anymore. Q. Please correct me if I'm wrong, but somewhere at this point you've encountered the old couple approximately here as we move the blue dot, you encounter the cyclist just metres later? A. Correct. Q. In that time, you've placed the post on not the Facebook group that I've just shown you but another Young Community Group, and then you take the Facebook post down when the dog runs off to the cyclist, is that correct? A. That's correct. Q. Would that be an exceptionally quick posting and deletion of the post from Facebook? A. It could be considered that but we no longer had the dog near us. Q. Yes, but then am I correct in assuming you've just given evidence that just mere minutes later you're back in possession of the dog, is that correct? A. That's correct but it was deleted before the dog came back. Q. Yes, but you've got the ability to put a post up and take it down in exceptional speed. Why did you not put another post back up? A. It didn't occur to me at that time to put another post up. Q. But you've - A. Because we were going to go get the, the chip read." (Tcpt 147 - 148)
However, the second plaintiff then claimed that she had taken the post down of her own initiative and not had a conversation with the first plaintiff: "Q. But would you mind if I just ask you this, you said you put the post up and then you took the post down, why did you take the post down, did you have a conversation with Ainslee? A. No, I did not. I didn't want to be bombarded with heaps of messages. I'm a very private person, I didn't want people messaging me on my private Facebook page. Q. If you were potentially the last person to see where this dog was, wouldn't that be relevant information for anyone searching for the dog? A. In hindsight, I should have left the post up. But at the time I thought it was in my best interests to take it down 'cause we had no - the dog had disappeared at that point. Q. The dog hadn't disappeared, he just ran off? A. That is correct. Q. He hadn't fallen in the gully? A. No, that's correct. Q. So he was around somewhere and somebody would be looking for him, wouldn't he? A. That's correct. Q. Wouldn't your post be valuable information for anybody looking for this lost dog? A. That would have been - in hindsight, I should have changed at the last thing, but I didn't want to be bombarded with messages." (Tcpt 148)
The plaintiffs had just told the Gorhams they were taking the dog to the pound and the time she deleted the post was when Teddy ran after the cyclist, seconds later, of her own initiative and without conversation with the first plaintiff. When, in those circumstances, did they have a conversation about having the chip read by Mr Loader? If it was before they saw the Gorhams, then what they told them about going to the pound would not have been the truth.
The second plaintiff's evidence on the timing of these events is implausible, as is her explanation for taking the post down. If she had been prepared to be contacted when she lodged the photo of Teddy the first time, why, after Teddy was seen again a minute or two later and picked up by the first plaintiff, did she not post the information that he had been found? The explanation she gave in her evidence about having the chip read at Mr Loader's home would have had to have been the result of information from the first plaintiff as the second plaintiff did not know him, information that was inconsistent with what they told the Gorhams.
In addition, as noted earlier in this judgment, the explanation of having the chip read was not volunteered to the police when they went to the police station on the evening of 16 June 2020. The explanation police have recorded is that the first plaintiff planned to take the dog to the pound but needed to go to Aldi first and did not want to leave Teddy in the car alone, so she drove a few blocks so she could put the puppy in Mr Loader's back yard.
The explanations for deleting Teddy's photograph and for not producing the phone and social media records for this post on discovery are similarly implausible. The plaintiffs had consulted solicitors who sent a concerns notice three days later and the police notes reflect their knowledge that a defamation claim was going to be brought. They would have received advice in circumstances where they would have told their legal representatives about the photograph and the post.
All of the evidence points to the plaintiffs having found Teddy in circumstances where having initially acted appropriately after finding a lost puppy, they changed their minds when the first plaintiff had a closer look, whereupon they decided not to report him as missing and not to go to the pound. The intention to deprive the true owner was more or less instantaneous with their recognition of the value of Teddy. Even if the first plaintiff intended to restore Teddy at a later time, the fact that she took Teddy to Mr Loader's home intending to use the puppy for his or their own benefit is sufficient (R v MacDonald [1983] 1 NSWLR 729).
The second plaintiff's role in taking down the post and deleting the photograph of Teddy from her phone are sufficient evidence to demonstrate her role in these events. As is set out in the section of this judgment on credit, I have not accepted her denials.
The second plaintiff's explanation for not coming forward while the defendants were posting about Teddy are similarly implausible. I am satisfied that she is not only a regular Facebook user but also someone who reads and belongs to lost dog social media sites. I am satisfied that she, as well as the first plaintiff, knew within days, if not hours, that the dog they had seen was still being searched for.
I am comforted in this finding by the unsatisfactory responses the second plaintiff gave when she was telephoned by the second defendant. I have accepted the second defendant's contemporaneous notes of this conversation, which was a shorter one because the second plaintiff was clearly reluctant to be speaking to her at all: "Me: Thanks for agreeing to speak to me. It will be helpful to understand your account because sometimes different people remember different details. And I just need to do my job. Ms Marchant: That's fine, that's fine. Me: Thank you. Can you tell me what happened with Teddy from when you found him on the 9th June? Ms Marchant: I was on the walk with Ainslee and we picked up Teddy. I put up a post on Facebook but immediately removed it as Teddy ran away but Ainslee managed to call him back and catch him. And so we took him with us and returned to our cars at Aldi. I went in to buy milk and Ainslee took Teddy. Me: Was the cyclist male or female? Ms Marchant: Female. Me: Did you delete the Facebook post about finding Teddy when he chased the cyclist or after he ran away in Brock St. Ms Marchant: After he chased the cyclist. Me: Well Ainslee says it was after he ran away in Brock Street. Ms Marchant: No, it was after he chased the cyclist because I would have been driving when Teddy ran away in Brock Street and obviously I wouldn't be using Facebook while I was driving. Me: Do you have any idea why Ainslee would take Teddy to the meat inspector's house instead of the vet or the pound? Ms Marchant: I don't know, you'll have to ask Ainslee. Me: I have asked Ainslee and she says she doesn't know. Ms Marchant: Well there's your answer. Me: So just to confirm - you are both telling me you don't [sic] why Ainslee would take Teddy to the meat inspector's house and not the vet? Ms Marchant: That's right. Me: Why didn't you put up another post after Ainslee lost Teddy in Brock Street? Ms Marchant: I don't know and I don't want to get involved in whatever went on. Me: Why didn't you come forward with any information about all this sooner? Ms Merchant: I don't know and I don't want to talk to you anymore."
The second plaintiff then terminated the call.
The second plaintiff's account of when and why she deleted the Facebook community message about finding a lost dog is inconsistent with the first plaintiff's version of events. Their chronology gives no time for when the post was either lodged or withdrawn, but it is not in dispute that they encountered Teddy at 9:50 am and then came across Mr and Mrs Gorham at 9:55 am, and the plaintiffs then arrive at the Aldi car park. The plaintiffs' chronology puts the time Teddy ran away as being at about 10:12 am (chronology, entry 10) and the first plaintiff then calls the second plaintiff to say Teddy has run away and to remove the post. According to the chronology, the first plaintiff then searched for Teddy until 10:18 am, following which the chronology asserts that she left to go shopping. That was not, however, her evidence; she said she just drove home, and it is inconsistent with the contemporaneous descriptions of Mr Luff's CCTV.
The best evidence of what the first plaintiff said in her telephone message to Mr Loader is the second defendant's contemporaneous account of what Mr Loader said to her when she telephoned him. My acceptance of that contemporaneous account means that I accept the first plaintiff intended to put Teddy into his back yard because she thought, given his cavoodle breeding activities, that he might like to keep Teddy.
As these are alternative findings I do not propose to make further findings as to whether this actually occurred or whether Teddy did indeed run away. I am satisfied that there is sufficient evidence of intention to deprive the first defendant of Teddy to make out the imputations of stealing, and see no need to make further findings.

[62]

The evidence of Mr Loader

Mr Loader, who did not provide a statement, told the court that he had known the first plaintiff, a former workmate, for about eight years; she had trained him to use a microchip machine. She had given him a King Charles spaniel dog as a gift, about two years before these events. They exchanged text messages which included jokes and other topics of interest.
The second defendant took comprehensive notes of their conversation and, as was the case with the plaintiffs, included a verbatim account of this conversation in her letter to the NSW Police: "He immediately asked me "Is this Arthur and Co?" I said yes and was he expecting my call. He said that he was. o He stated that Ainslee called him the morning of the 9th June at approx 10:15am but he missed her call and that she left a voicemail about leaving a dog in his yard o He stated he was working in Gundagai and wasn't home. I asked if any other member of his family was home on that morning and he said they were not. o He stated he called her back at 12:30pm on 9th June 2020 but couldn't remember the details of their conversation. o I asked why Ainslee took a dog to his house and he said "I've got no idea. Ainslee knows I breed dogs and that I wouldn't let an unquarantined dog on my premises". o I stated that I also felt very confused as to why she would take a dog to his house who happens to be a mobile dog microchipper when she is a vet and knows the protocols and not take the dog to a vet or pound and he said "Yeah well when you say it like that it doesn't look to good does it". o I said "I am not accusing anyone of anything. I am just trying to work out what happened that day and why as I've got a missing puppy to find and up until a few hours ago no one knew that this dog was last seen in Brock St at your house". o He said "Yeah, I don't know… it's all a bit strange isn't it?" o He continued to state that he didn't know why Ainslee took the dog to his house, he doesn't know where the dog is, he hasn't heard of anyone in Brock St or nearby seeing a dog running away. o I stated we were getting CCTV. Greg Loader did not sound happy about that and asked what angle the CCTV was from. I stated I didn't know yet but that it should show a woman trying to catch a puppy running towards Taylor Road. o He stated that if the dog ran towards Taylor Road that it was "running straight to the ghettos". o Throughout the call he was very evasive and did not seem to care about the alleged missing dog. The called ended at 16:16pm" (CB 3627)
In cross-examination, Mr Larkin SC put to Mr Loader that he had in fact made the statements attributed to him by the second defendant in her contemporaneous note. He emphatically denied every line, including that the voicemail was a message about "leaving a dog in his yard" or that he had said it was "all a bit strange". He claimed that he would never allow an unquarantined dog into his back yard.
However, this was exactly what the first plaintiff told police had been her plan when she put Teddy into her car outside Aldi. As is set out in the police notes of their interview with the first plaintiff, her plan was to take the dog to the pound after doing her shopping but she did not want to leave the unsecured Teddy in her car while she shopped, so "instead of leaving the dog in the vehicle, the P/N Munro drove to 5 Brock Street to secure dog in the rear yard (emphasis added)" (Court Book 3956 - 3957).
Police interviewed Mr Loader, and asked him about this telephone conversation was: "He was asked about his conversation with Arthur & Co (pet investigators). He told police he spoke with them and advise them he had a missed call from Ainslee Munro on 9th of June 2020 about 1015 hrs. He contacted Ainslee back during his lunch break at 1230 hrs and spoke with her. He told police she had informed him she called him as she had found a small black and tan fluffy dog but the dog had run off and she asked him to keep an eye out for it." He states that she told him that she was in his driveway when she called at the time. This is consistent with CCTV footage viewed by Don Luff who sighted a grey Landcruiser drive past his house and turn onto Taylor Road at about 1018 hrs. Police asked Greg Loader why she would bring the dog to his place. He told police, he wasn't exactly sure why, as he breeds dogs and doesn't allow other dogs in his yard as he didn't want his dogs getting any diseases other dogs may carry such as kennel cough or parvo. He stated she may have wanted him to scan the microchip in the dog to obtain the chip number so she could look up the owners details. He told police he has a microchip scanner and Ainsley has access to the data chip base being a vet, so between them they would have been able to locate the owner, if he was home and the dog hadn't run off. He told police she wouldn't have taken the dog to the local vet at Young because she didn't like the vets there because of issues in past."
Mr Loader was critical of the way in which he was questioned by the second defendant, but did not attribute joking and laughing to her. Instead, he told police that she would "only listen to what they wanted to hear and had a way of twisting his words and the conversation to suit what they wanted".
However, this is not how Mr Loader described their conversation in his evidence in court. He said nothing about his words being twisted, but instead claimed that the second defendant was "giggling and laughing" (Tcpt 430) during the call, adding that he was "a bit thrown off" by it and by her making boasts about "how easy my phone number was to find" (Tcpt 430). (This claim, volunteered in re-examination, was not put to the second defendant in cross-examination and it is inconsistent with the rest of her conduct of the investigation.)
Police notes state that the second defendant had described Mr Loader as being "evasive", adding that they "had no problem with him being evasive at all" (Court Book 3952). It is clear from this note that the police had a copy of the notes the second defendant had taken of the conversation, or some other version of the transcript of what the second defendant said was the conversation. They do not, however, appear to have compared it to what the first plaintiff told them about her reasons for putting Teddy in the car and driving to Mr Loader's residence.
Mr Loader then went on to deny to police that he had read Teddy's chip and to say that it would be difficult to do so with such a small dog as he used a large round scanner; he thought Teddy would have to be x-rayed for the chip to be found. He also volunteered that he had stopped doing any microchipping, adding that this was because the first defendant and her partner had come to his house and made a scene (Court Book 3952).
There are many examples in the evidence of Mr Loader of the rule in Browne v Dunn not being complied with. The key question is, however, what was said by the first plaintiff to Mr Loader when she rang him from his driveway outside his home. Her initial version of what occurred was that she was taking Teddy to his home to put him in the backyard while she did her shopping so that she could then take Teddy to the pound. This was the version of events accepted by the police from her during her sole visit to the police station, and noted by them as being her explanation. On the balance of probabilities, given the seven-second timing of the phone call, it is more likely than not that this phone message consisted simply of saying, as second defendant has recorded Mr Loader confirming, that she had left a dog in his backyard.
If I accept that this is what the first plaintiff said, then it is consistent with her having the intention to put the dog in Mr Loader's backyard even though he was not at home at the time. If he was not there, she must have known that the purpose she stated to the court, namely the urgent need to reunite Teddy with his owner, was unlikely to be achieved if there was nobody at home. On her evidence in court, what shopping she did do, if any, is unknown; she thought it was more likely than not that she simply drove home. None of these scenarios is consistent with the first plaintiff wanting to reunite Teddy with his owners at the first opportunity.
This means I do not accept either plaintiff, or Mr Loader, as being truthful in their sworn evidence about what was said. One of the reasons for my making this finding is that each of them was less than frank about the extent of their relationship. The first plaintiff's claim that she had only been to his home once and did not know the street address is not only inconsistent with her having given the street address to the police but unlikely, in circumstances where she made him a gift of a King Charles Spaniel breeding puppy two years before these events and where they exchanged messages on a regular basis of the kind referred to at Transcript 361 - 362.
I also take into account the Telstra records documenting the large number of messages and phone calls between the plaintiffs and Mr Loader over this period of time.
Finally, I note Mr Loader's denial of knowing anything about there being a missing puppy during the week after Teddy's disappearance on 9 June 2020. He knew that there was a missing puppy which had run away in his street outside his home, and knew that as early as 12:30 on 9 June 2020, when the first plaintiff told him this lost puppy had jumped from her car. As a dog breeder and micro-chipper, Mr Loader would have been well aware of the obligations to report any missing dog and it would be implausible if, having been asked by the first plaintiff to look out for this dog, he made no inquiries at all of his neighbours or looked in the street.

[63]

Other witnesses

Mr Luff was called, but was unable to give any further information about these events beyond noting that the CCTV he had made available at the time was no longer available.
The first plaintiff called her partner, Mr Foster, on the issue of damages. He also gave some brief evidence in relation to justification issues concerning receipts for items purchased on 9 June 2020, the day the Teddy went missing. No submissions have been made in relation to those disbursements.
One aspect of his evidence is curious. Mr Foster was at home looking after their sick daughter on the day in question, but said that the first he knew of his partner finding a dog or missing dog social media posts was when the first plaintiff had told him "I've been accused of stealing a dog on Facebook". This was after she was not only photographed but named, but she had not mentioned any of this to her partner. He said that, at the time she said this, she was in such a distraught state, weeping and deeply distressed (Tcpt 436), that he was concerned about her ability to look after their sick daughter. He appears not to have been consulted when she and the first defendant went to the police; the first he knew of there being any police involvement was when the police turned up at his back door shortly after she had told him of the accusation (Tcpt 436).
The first defendant asked him in cross-examination: "Q. Hello, Mr Foster. So, you've mentioned the first time you've heard of Teddy was when Ms Munro told you that she was accused of stealing a dog on Facebook, yes? A. Yes. Q. Did she come home on 9 June and tell you that she had found a dog that day? A. I don't recall to tell the truth. I don't recall exactly what she said. That's the honest truth. I don't recall. Q. Were you aware before the post presented to you of her allegedly stealing a dog, were you aware that she had found a dog in the weeks before that? A. No. Really, no. Q. Did she ever mention about going to the police about a dog that she had found? A. I just - it's four-and-a-half years ago. I don't recall everything. That's the truth. I can't recall. Q. Did she mention attending the police station with Lauren at all during these times? A. I do recall them attending the police station but I just - dates and times, they are just a little bit hazy for me. Q. Not a problem. Do you recall whether that was before or after the police attended your property? A. To tell the truth, I'm not quite sure. I think - I don't know how to answer that because I'm not quite sure, to tell you the truth." (Tcpt 442).
In cross-examination by Mr Larkin SC, he admitted he had not looked at the Facebook posts: "Q. Did she show you the post on Facebook? A. No. I didn't look at the post on Facebook at all. Q. Did you see her looking at Facebook? A. No. Q. During this period, that is, between about 16 June and 19 June, I want to suggest to you that she looked at Facebook often. What do you say to that? A. That's your suggestion. Q. Do you agree with it, or do you just not know? A. I don't know. Q. In any event, you've told us that she told you that it was the Facebook post that accused her of being a thief. Do you know one way or the other whether the post that you looked at a little while ago was the post that she was telling you about? A. I don't know if that was the post she was telling me about." (Tcpt 449 - 450)
Mr Foster's evidence is that he did not know anything about the plaintiffs finding a puppy in the street, or the circumstances in which it was subsequently lost, or that there had been posts about them before they were named. The first he knew of there being any problem was when his partner said she had been named as a dog thief on Facebook and was in a distraught state of the kind he had never seen her in before. He not only did not read but did not ask to see the Facebook page in question.
Mr Foster's evidence is difficult to reconcile with the facts of the case. His denial of knowing anything about a lost puppy being found by his partner, or of allegations on social media calling for people to put names to the CCTV photographs, or the circumstances in which she went to the police on 16 June is implausible, as is his inability to recall these events in any detail. Even his evidence about her level of distress is inconsistent; at the time that he said the plaintiff was hysterical with distress, it was put to him that the plaintiffs had in fact planned to go away for the weekend, where they would be engaged in social events such as dining at a hatted restaurant (Tcpt 450 - 451), which he acknowledged was the case. It is also inconsistent with the first plaintiff's claim to the second defendant that both plaintiffs have been exonerated by police during their visit to the police station on the evening of 16 June 2020.
The most likely explanation for these inconsistencies is that until the police came to the first plaintiff's home in the mistaken belief that they were looking for illegal drugs (as opposed to illegal dogs), the plaintiffs first thought they would never be found out for having taken Teddy with them in the manner that they did and secondly thought they had adequately explained this to the police. That would explain the contents of the conversation between both plaintiffs and the second defendant which are set out in the second defendant's detailed notes. It would also explain the apparent disinterest Mr Foster showed in what had occurred. It was only when the police showed up at his doorway wanting to search his home that the situation changed.

[66]

Nondisclosure of material

The defendants have tendered thousands of pages of Telstra records (some of which are accompanied by a summary of evidence pursuant to s 50 of the Evidence Act 1995 (NSW)) concerning the extent of asserted withholding of text messages and the like, the circumstances in which the plaintiffs' phones were not produced and asserted failures to comply with over a dozen orders during this trial for the production of documents. The plaintiffs have not dealt with these in any detail, and simply submit that there is no evidence that either of them failed to discover messages between either of them and any other person (further submissions in reply, paragraph 59).
While the first plaintiff did discover, after multiple applications by the defendants, records from Telstra which provided metadata showing certain calls were made and messages sent, that meta data is not the same as seeing the actual content. It is the sheer number of these messages that is persuasive.
It was put to the first plaintiff that she had failed to discover the contents of these messages and telephone calls because their contents, if proved, would go against her: Tcpt 359 - 360. The same is the case with the second plaintiff.
Mr Loader is not a party to this litigation. He is not obliged to discover anything. There can be no doubt, however, that he had extensive telephone calls with the first plaintiff and exchanged messages very frequently over the period in question.
Another difficulty with the evidence of both plaintiffs was their poor recall of events. The failure to recall events and provide documents was not limited to their exchanges with each other but to their encounters with police. Many of the matters they could not recall could have been proved by the tender of contemporaneous records such as financial records for their shopping in Aldi on 9 June 2020 but this did not occur. The few records produced by the plaintiffs confirm the accuracy of the defendants' account of the events; the second plaintiff's Apple watch is one of them.
This is not because of a lack of preparation on the part of the plaintiffs. In the course of the hearing, I was told that there had been 130 pages of interrogatories administered by the plaintiffs of the defendants (Tcpt 590 - 1), a startling figure when one considers that many jurisdictions will not permit more than 30 interrogatories without leave. The answers do not appear to have been of assistance as not one of those interrogatories was tendered.
Mr Lazinski submits that I should not accept the defendants' submissions on the facts or on credit, as it was not put squarely to both plaintiffs that they stole Teddy and additionally it was not put to the second plaintiff that she was involved in a common purpose to steal Teddy (this is not the case; it was put to her at Tcpt 163, 174, 176 and 200 - 1). I am satisfied that this accusation was put to both plaintiffs (Tcpt 176, 377 and 379).
The second defendant not only made comprehensive notes of her conversations with the plaintiffs and Mr Loader, but provided these notes to police at the earliest opportunity. I accept Mr Larkin's submission that she would have been careful to ensure the accuracy of these documents in those circumstances and not make false accusations or otherwise contravene provisions such as s 314 of the Crimes Act 1900 (NSW).
By comparison, the plaintiffs had little recollection and no notes.

[67]

The plaintiffs' versions of their conversation with the second defendant

The plaintiffs have had the police brief in their possession since an order for discovery resulted in production of this document (which was discovery document number 40) on or after 7 July 2022. This contained the second defendant's version of her conversations with them. The plaintiffs' evidence in their respective statements of what they recall of these important conversations is brief.
The only part of the first conversation between them that is quoted in the first plaintiff's statement (Exhibit C) that her husband is a solicitor who was well versed in defamation (paragraph 127).The account of the second, longer conversation (at paragraphs 130 to 139) consists of one sentence the first plaintiff says she "may have said" (paragraph 131) but concludes by saying that she "cannot recall the specifics" (paragraph 139) of most of what was said, although she recalls that the second defendant "frequently interrupted, often when mid-way through me answering questions that she had posed to me" (paragraph 130). She did, however, say that she "cannot recall" being asked about why I hadn't come forward earlier" (paragraph 137), although the principal act of wrongdoing put to both plaintiffs in the defendants' posts was why they had not done so before.
The second plaintiff's account of this conversation is a summary in paragraph 85 of her statement (Exhibit D) of the information she says she provided. Essentially this information is that the dog walked with them or was occasionally picked up, that at one point he disappeared, that he had no identification on his collar and that "we had decided that Ainslee would take the dog to the meat inspector's house so she could use his RFID scanner to see if the dog was microchipped then we could return the dog to its owners". She cannot recall "the exact questions".
The second plaintiff was particularly upset that the first defendant was posting claims that they had both must have seen the advertisements for Teddy and that they walked past her house often (paragraphs 116 - 121). I am satisfied that regular Facebook users (which I am satisfied, from the technology evidence, that both plaintiffs were) who were followers of pages (Exhibit 3) such as the Young Community Facebook page could not have missed the flood of advertisements on these sites. I am also satisfied that the plaintiffs did walk past the first defendant's home over this period because contrary to the second plaintiff's claim (Tcpt 177) that she was not in Young between 9 and 16 June 2020, her Apple watch records (Exhibit 4; produced only after the second plaintiff made this admission in cross-examination: Tcpt 211) confirmed that she and the first plaintiff had in fact walked over the same streets a further two times (Tcpt 210), namely on 11 June (Tcpt 389) and 13 June (Tcpt 393). They would have walked past not only the first defendant's home but the salon where she had an advertisement about the missing Teddy prominently in the window.

[69]

Justification

The relevant principles as to onus and standard of proof for the defence of justification are set out in Lehrmann at [91] - [103] and [105] - [111]. Where the allegations are of criminal conduct, the standard remains that of the balance of probabilities, but in the context of s 140(2) of the Evidence Act 1995 (NSW), referred to as the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 361 - 2 per Dixon J). As to imputations of stealing, I also note the observations of Besanko J in Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555 at [92] ff and have paid particular attention to [105] - [108] (concerning the presumption of innocence).
If the allegation is one of criminal conduct, do the elements of a criminal offence have to be established? Both parties proceeded on the basis that this kind of evidence would be required. In Lehrmann, Lee J proceeded as if proof of the requisite criminal elements was required. However, the sole charge in the imputations in that case were of rape, not of causing anguish to young children, or being a liar, or being untrustworthy. Imputations of this kind are capable of being justified without proof of any crime.
Another difference is that these proceedings arise from social media publications, where the Supreme Court's findings as to what constituted evidence of justification in Stocker v Stocker will relax the boundaries not only of meaning but also of proof. This has in fact been the approach in other common law jurisdictions. In Russin v Wesson, 183 Vt 301, 949 A. 2d 1019 (2008), where the defendant called the plaintiff a thief and said she had "ripped off" his property, the Court held that this could be justified where the plaintiff had in fact "converted" more than $45,000 of his property. Reiber CJ went on to explain the frequency with which courts took into account statements that were legally mistaken but substantially factually accurate: "9. A common factual predicate in defamation cases is a legally mistaken but substantially accurate statement. "For example, where the defendant newspaper reported that the plaintiff was convicted of stalking, rather than [the actual conviction for] harassment, the report was held to be substantially true." Id. at 36-38 (citing Barnett v. Denver Pub. Co., 36 P.3d 145, 148-49 (Colo.Ct.App.2001)). Similarly, a leading treatise has this to say: "Statements about crimes are often technically incorrect but substantially true. To laypersons, 'theft' may mean any wrongful taking, including such distinct crimes as embezzlement." 2 D. Dobbs, The Law of Torts s 410, at 1148 (2001). The common thread in these examples is that the mistaken statement has the same effect as a perfectly accurate statement of the true facts. 10. Although among legal practitioners the terms "steal," "thief," and "theft" have unambiguously criminal connotations, they are more broadly defined in lay usage. Compare Black's Law Dictionary 1453, 1516, 1517 (8th ed.2004), with Webster's New University Dictionary 1134, 1202 (2d ed.1984) (defining "steal" as "to take (the property of another) without right or permission" and "thief" as "[o]ne who steals"). Webster's also defines "rip-off" as a "theft." Id. at 1013. These lay definitions are quite similar to the definition of tortious conversion employed by the trial court: "that [a party] has appropriated ․ property to that party's own use and beneficial enjoyment, has exercised dominion over it in exclusion and defiance of the owner's right, or has withheld possession from the owner under a claim of title inconsistent with the owner's title." 11. Under similar circumstances, other courts have concluded that the "sting" of an imputation of a crime was no worse than the sting of the civil truth. See, e.g., Sivulich v. Howard Publ'ns, Inc., 126 Ill.App.3d 129, 81 Ill.Dec. 416, 466 N.E.2d 1218, 1220 (1984) (statement in newspaper that "[c]harges of aggravated battery have been filed" was substantially true although in fact only a civil suit had been instituted); see also Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1073-74 (5th Cir.1987) (collecting cases). Similarly, some courts have simply applied the generic substantial-truth rule to statements imputing one crime, when the truth was that a different but similar crime was committed or charged. See, e.g., Barnett, 36 P.3d at 148 ("Although there is a distinction between harassment, which is a misdemeanor, and stalking, which is now a felony, both terms describe similar repeated, unsolicited behavior.")."
Whether or not the imputations refer to a criminal act, the defence of justification requires proof of the imputations pleaded, not an overarching "gravamen" (second defendant's submissions in reply, paragraph 95). That evidence is generally required to be the subject of particulars. Courts are strict about the need for particularisation of justification and will strike out particulars that are insufficient (such applications are the sole interlocutory application that appears to have found favour in the Federal Court of Australia: Wing v The Australian Broadcasting Corporation [2018] FCA 1340). I note that no complaint was raised in these proceedings at the trial, or in interlocutory applications, about the defendants' particularisation of this defence.

[70]

What evidence may be led in relation to a plea of justification?

As previously noted, the plaintiffs have not pleaded specific imputations relating to the theft of Teddy, but what are called "general" or "Maisel imputations" (Maisel v Financial Times Ltd [1915] 3 KB 336 at 342 ("Maisel")) of an unspecific nature, such as being dishonest, untrustworthy, dog thieves and criminals.
In Lehrmann, the issue raised by the imputations was whether the applicant had indeed raped Ms Higgins (see the list of imputations at [43]). Imputations that he was untrustworthy, or caused distress to Ms Higgins by his conduct, or a liar, were not pleaded. By avoiding "general" Maisel imputations, the pleaders avoided particularisation of other conduct of Mr Lehrmann's which could have been relied upon in justification of these broadly framed imputations. If successful, such imputations could, in turn, have been relied upon in relation to mitigation of damages if justification of the major allegation (whether rape or dog theft) failed.
Where the defamatory imputation is one imputing a characteristic or condition such as being a liar or untrustworthy, it is not necessary that the facts upon which the defendants seek to justify their remarks be related to dog stealing, or even to in the matter complained of at all. Furthermore, it is not necessary that the facts relied upon are known, or even in existence, at the time the publication took place, as evidence occurring both after and before the publication may be adduced: Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (2nd ed) at [10-82], citing Maisel at 342 and Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11 at [53]. As Lord Denning MR stated in Cohen v Daily Telegraph Ltd [1968] 1 WLR 916 at 919, "if a libel accuses a man of being a 'scoundrel', the particulars of justification can include facts which show him to be a scoundrel, whether they occurred before or after the publication."
Maisel applied to the defence of justification at common law: P George, Defamation Law in Australia (4th ed., 2023, LexisNexis) at [19.1]. Subsequent changes to English legislation, in the form of the Human Rights Act 1998 (UK) and of the Defamation Act 2013 (UK) have modified the principles in relation to general Maisel imputations, as Saini J noted in Spicer v The Commissioner of Police of the Metropolis [2020] EWHC 1778 (QB) at [55]. That legislation is not applicable in Australia, and the entitlement of a party to raise evidence of conduct falling outside the time frame or subject matter of the matter complained of is permissible if it is consistent with the court's interpretation of s 25 of the Act: Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299; [2010] NSWCA 34 at [313]; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232 at [217] - [218].
Generally speaking, there needs to be a degree of contemporaneity and connection with the matter complained of. For example, evidence that the plaintiffs told lies in their evidence could have been relied upon as evidence of justification of the imputation that they were liars, as opposed to being matters going only to their credit, which is the basis upon which this material was put to me (second defendant's submissions in reply, paragraphs 73 - 76). However, the second defendant's submissions on evidence of justification also refer directly to lies the plaintiffs told to the defendants. This evidence is thus applicable both to what the parties call the "gravamen" imputation of stealing Teddy and to imputation (d), that the plaintiffs are liars.

[71]

How the parties approached proof of justification

Although the defence of justification is pleaded to the imputations and not to the matter, all parties in this litigation proceeded on the basis that the essential issue for justification findings is whether the defendants have proved that the plaintiffs stole Teddy (even though this is not actually pleaded as an imputation), in which case the allegations against them (as opposed to specific imputations) are all substantially true.
The first defendant submits (submissions in reply, paragraphs 48 - 49) that this "should mean that the defence is made out with respect to any other alleged imputations that are found to arise." The parties' submissions then move to a discussion of the elements of the relevant criminal offences of stealing and conclude with an analysis as to whether these facts are made out. The second defendant makes similar observations (submissions in reply, paragraphs 60 - 95, concluding by referring to "the substantial truth of the gravamen of the imputation that the plaintiffs stole Teddy").
The submissions made by the plaintiffs conform with this approach. As to the first defendant, Mr Lazinski submits that the defence of justification "ought to be disposed of quickly on the basis that it became clear in the Trial that the first defendant does not appear to suggest that the plaintiffs stole Teddy" (submissions, paragraph 102) as "the maintenance of her defence of justification would have been disingenuous in the circumstances" (submissions, paragraph 105), adding: "In any event, it is respectfully submitted that there is lack of evidence that the plaintiffs stole Teddy let alone for him to be re microchipped." (submissions, paragraph 106)
This "lack of evidence" is corroborated, Mr Lazinski submits, by the fact that the police investigated the matter but laid no charges and because the elements of larceny (set out in paragraph 108 of the submissions) cannot be made out. Not only had the second defendant told the first defendant that police had "cleared" (further submissions in reply, paragraphs 85(b) and 85(c)) the plaintiffs but the police had warned the first defendant that "she herself may be the subject of a harassment charge" if she continued to make statements about the plaintiffs (submissions, paragraph 109).
Mr Lazinski's submissions concerning the second defendant are in similar terms. He then sets out the whole of the case on justification as follows: "151. Dr Munro has provided evidence of what she did with Teddy. So has Ms Marchant. Both have denied stealing Teddy. Neither have ever [sic] been charged or convicted despite the involvement of the police at an early stage. 152. Greg Loader was cross examined; but it was never put to him that he was complicit in the re-chipping or breeding of Teddy. He denied ever being provided with any dogs by Dr Munro for breeding purposes. It was never put to him that he removed Teddy microchip. He in fact said in EC that he never removed a microchip in his life. 153. So, whilst it's true that at one point the plaintiffs met Teddy, that Dr Munro did take him to Mr Loader's house; that does not prove her state of mind that she intended to permanently or dishonestly deprive the true owner of Teddy. To the contrary, her actions were benevolent and done with the intention of reuniting Teddy with his family. 154. It is respectfully submitted that this defence should fail." (submissions, paragraphs 151 - 154, footnotes omitted)."
As to the credit issues asserted to arise from failure to give proper discovery, he submits that there is "no evidence" that the first plaintiff failed to discover messages with any other person (further submissions in reply, paragraph 59).
The answer to these submissions may be dealt with shortly. First, submissions that there is "no evidence" always fall away when the opposing party points to the evidence (which in these proceedings is considerable). Second, whether the first defendant intended to convey an imputation that the plaintiffs stole Teddy is irrelevant to the defence of justification. What must be undertaken is a careful analysis of the factual evidence the defendants put before the court (and, in the case of the second defendant, put before the police in her contemporaneous and careful account of the events in question).
While I appreciate the parties have not done so, I nevertheless propose to make findings of fact in relation to justification of the imputations pleaded. I first briefly summarise the evidence about whether Teddy was stolen.

[72]

Whether taking Teddy on their walk and to Mr Loader constitutes larceny

The following facts and matters demonstrate that, conformably with the requirements of s 140 of the Evidence Act 1995 (NSW), the plaintiffs, whatever their initial intentions, entered into an arrangement for the first plaintiff to take Teddy to Mr Loader's home with the intention of permanently depriving the first defendant of his ownership. This is based on the following: 1. When the plaintiffs saw Teddy in the street, they were able, by reason of the first plaintiff's special knowledge as a veterinarian as well as their knowledge as dog breeders, to appreciate that he was a young puppy wearing a collar, and unlikely to have travelled far from the home of the owner who had placed a collar on him. The steps that one would reasonably expect of an honest person in this situation, as set out in R v MacDonald, would be to make inquiries of the homes immediately adjacent, or of shops that were open in the immediate vicinity, in an attempt to locate this nearby owner. The first plaintiff said she was shy about knocking on doors, but both the plaintiffs had mobile phones with them and they could have contacted the pound or nearby veterinarian surgery by phone for advice or assistance. 2. One of the first steps the second plaintiff took was to photograph Teddy and place a notice on the Young Community Facebook page containing this information and Teddy's whereabouts. The steps that one would expect of an honest person would be to leave this post on the page, or alternatively update it when Teddy ran away, stating where he ran away from so that the search was in the right area. 3. Alternatively to (a) and (b), if the plaintiffs considered it necessary to pick up and carry the dog to prevent him running away again, they should have taken him to the police station nearby, or the pound, or the council, or the vet, or the council ranger, or contacted them on their mobile phones. 4. The first plaintiff's statements to Mr and Mrs Gorham that they had found a lost puppy and were taking him to "the pound" demonstrated their knowledge of their obligations in relation to lost animals. The steps that one would reasonably expect of an honest person in this situation is that the step referred to would then be carried out. I am comfortably satisfied that the first plaintiff had no intention of taking Teddy to the pound and that she volunteered this information to ensure that the Gorhams, seeing an unleashed puppy in the street, did not intervene in her plans to deprive the first defendant of ownership of Teddy. 5. Whether or not Teddy was on a lead (which on the balance of probabilities I am not satisfied was the case), the first plaintiff, a trained veterinarian, had Teddy under control at all relevant times while they were in the street, not least because she was carrying him in her arms for most of that time. I am satisfied that she did so because, after Teddy ran away the first time, she was anxious to ensure that he did not run away again, because of the plans that she had for him, and for this reason she carried him in her arms for a period of approximately 14 minutes, despite his weight and puppy behaviour, before putting him into her car. 6. As dog owners and dog breeders the plaintiffs were each well aware of the obligations under the Companion Animals Act for a dog in a public place to be under the effective control of someone by means of an adequate chain, collar or leash and that they continued on their walk for 14 minutes without doing so because their intention was to remain in control of Teddy for their own purposes. I also accept that the plaintiffs were aware of their obligations under this legislation that any animal seized in such circumstances must be delivered to the owner, council pound or approved premises, and that dogs should not be permitted to ride in moving motor vehicles if not restrained. I am further satisfied that when the first plaintiff told the second defendant in a telephone conversation on 17 June 2024 that she was carrying Teddy because he was "really tired" that this was a lie. She was carrying Teddy so that she could control him. 7. The first plaintiff gave inconsistent evidence about her reason for taking Teddy to Mr Loader's home. She told police, and initially told the second defendant, that the reason she did so was because "I did not want to leave him in the car while I went shopping". She did not tell the police that she took Teddy to Mr Loader's home so that Mr Loader could read the microchip and find out the name of the owner; she said she did not want to leave the dog in her car while she shopped. There is no evidence that the plaintiff did in fact go shopping; her evidence to the court was that she went home. 8. The first plaintiff made no attempt to contact Mr Loader before travelling to his home. She telephoned him only when she arrived outside and parked. She told the court her intention was that Mr Loader would come to the car to look at the microchip because Teddy was jumping between the seats. This does not explain why she opened her car door. I am satisfied that the first plaintiff's reason for opening the car door was because she intended to do just what she had told Mr Loader in her telephone message that she would do, which is to put Teddy into Mr Loader's backyard. 9. The first plaintiff gave false and misleading information to the police and to the second defendant about the nature and extent of her relationship with Mr Loader. She knew the address at which he lived and have been able to give the precise street number to the police. She knew his name and surname and she was sufficiently friendly with him to give him a King Charles Spaniel breeding puppy as a gift two years before these events, knowing that he bred these dogs. 10. The first plaintiff knew that Teddy would be valuable to anyone who bred dogs because he was purebred, a very cute puppy and had not yet been desexed. Her evidence to the court that Teddy was not a valuable dog was knowingly false. 11. The second plaintiff knowingly deleted her post about Teddy as well as the photograph she had taken as a result of her knowledge of the first plaintiff's intentions, a course with which she acquiesced. 12. After the first defendant began posting about Teddy's disappearance on the evening of 9 June 2020, the second plaintiff, a member of the Young Community Facebook page, would have become aware of there being posts about missing dog similar to the one they had seen earlier that day. The plaintiffs took none of the steps that one would reasonably expect from an honest person in the situation, namely to reveal that they had seen the animal in question in the Brock Street area, so as to assist with making enquiries in the correct area. 13. The plaintiffs knew someone was looking for Teddy because social media was full of posts about him. On 11 and 13 June, the plaintiffs walked the same route, which meant they would have passed premises such as the first defendant's place of business where there was an advertisement in the window about Teddy being missing. The plaintiffs took none of the steps one would reasonably expect from an honest person in the situation, namely to reveal their involvement. 14. After the second defendant began posting on 12 June 2020, the plaintiffs did not take any of the steps one would reasonably expect from an honest person, namely to contact the pet detective, even though they had in fact been, to the best of their knowledge, the last people to see Teddy alive. A reasonable person in this situation would have been concerned that the puppy last seen running away at about 10:08AM on 9 June was still missing, days later. As dog owners and dog breeders, both plaintiffs would have been aware of how vulnerable a puppy like Teddy would be. 15. When Mr and Mrs Gorham came forward with their information and description of the plaintiffs, they took none of the steps one would reasonably expect from an honest person in the situation, namely to contact the defendants in response to their call for information. 16. The first plaintiff's initial Facebook message to the second defendant on 17 June stating that she had "no knowledge of Teddy's current whereabouts" was knowingly false, in that she knew she had last seen him in Brock Street. 17. The plaintiffs and Mr Loader were in regular contact with each other by MMS, SMS and telephone calls over this period. I draw the inference that the content of these messages would be inconsistent with the account given by the plaintiffs and Mr Loader and further that if those messages had been favourable to, or consistent with, their account of events, they would have preserved and discovered them given the early involvement of a law firm, in that a concerns notice was sent on 19 June 2020.
I am comfortably satisfied, as required by s 140, that the first plaintiff took Teddy to Mr Loader's home for the reason Mr Loader gave to the second defendant in his telephone conversation with her, namely to put Teddy into his backyard. I am comfortably satisfied that she did so for the purpose of seeing if he would like to keep Teddy, and knowing that Mr Loader had the expertise and equipment to remove and replace Teddy's microchip if required.
I am comfortably satisfied, as required by s 140, that the second plaintiff knew and acquiesced with these plans and that, to assist in those plans being carried out, deleted her post about Teddy. Her deletion of Teddy's photograph as well shows a consciousness of guilt.
I am comfortably satisfied, as required by s 140, that both plaintiffs failed to tell anyone (including their partners) about their conduct in relation to Teddy because of consciousness of guilt.
I cannot be satisfied that Teddy did in fact jump out of the car as alleged. At the time he is asserted to have jumped out, both defendants had already established the mens rea in relation to intending to deprive the first defendant of ownership of Teddy.

[74]

The obligations arising where there are lost animals

Mr Larkin SC draws my attention to R v MacDonald [1983] 1 NSWLR 729 at 731-732. The Court of Appeal held that the felonious intention of the finder could be inferred from what they did and did not do, and how this would compare with what an "honest man" would do upon finding some property and attempting to reunite it with its owner. The obvious value of what was stolen (in that case, a camera) meant that it was unlikely that it was abandoned by its owner. The Court noted that there was no enquiry of nearby residents or those in the street as to whether they knew the owner of the camera (other than a man who said it was not his). There was no leaving of a note for any possible owners of the camera. There was no report of the discovery of the camera to the police. There was no watching of the "lost and found" columns of the local newspaper. In those circumstances, the Court held that it: "might be thought that such a state of affairs is so far out of accord with the actions of an honest man that an inference can readily be drawn that the appellant believed both that it had not been abandoned and that if inquiries were made the owner could be found."
Some items, if lost, attract special statutory obligations for the finder - a car, a child, or a dog. Stealing a dog is an offence under s 503 of the Crimes Act 1900 (NSW). The special role that dogs and other pets play in community life is the reason for the statutory obligations are set out in ss 13(1) - (3) and 62(1) and (2) of the Companion Animals Act 1998 (NSW), which are as follows: 13 Responsibilities while dog in public place (1) A dog that is in a public place must be under the effective control of some competent person by means of an adequate chain, cord or leash that is attached to the dog and that is being held by (or secured to) the person. (2) If this section is contravened - (a) the owner of the dog, or (b) if the owner is not present at the time of the offence and another person who is of or above the age of 16 years is in charge of the dog at that time - that other person, is guilty of an offence. Maximum penalty - (a) 10 penalty units except in the case of a dangerous, menacing or restricted dog, or (b) 100 penalty units in the case of a dangerous, menacing or restricted dog. (3) Any person (including an authorised officer) can seize a dog that is in a public place in contravention of this section. If the owner of the dog is present, the dog cannot be seized except by an authorised officer and only then if the contravention continues after the owner has been told of the contravention. A reference in this subsection to the owner of the dog includes a reference to the person who is for the time being in charge of the dog. 62 Seized animals must be delivered to owner, council pound or approved premises (1) A person who seizes an animal under the authority of this Act must cause the seized animal to be delivered as soon as possible - (a) to its owner, or (b) to a council pound, or (c) to any approved premises. Maximum penalty - 30 penalty units. (2) In the case of an animal that has been seized by a person who is not an authorised officer, subsection (1) is complied with by the person if the person, as soon as possible after seizing the animal, makes an arrangement with an authorised officer for the animal to be delivered by the officer to its owner, a council pound or approved premises.
Nobody would have known this better than the plaintiffs. Not only was the first plaintiff a vet, but both plaintiffs owned and bred dogs. They knew their obligations to their own animals and thus also what those obligations were to other animals they came across.
On the basis of the factual findings set out above, I am satisfied that each of the plaintiffs had the necessary intention to deprive the first defendant permanently of ownership of Teddy, who was an item of value to any persons seeking to breed King Charles spaniels. The defence of justification succeeds in relation to imputations (a), (b), (c), (i) and (l).

[75]

Imputation (d): The plaintiffs are liars

The defendants plead a defence of justification to an imputation that the plaintiffs are liars. That requires establishing that each of the plaintiffs made statements that can be proved not to be true. The most serious kind of lie would be dishonest answers in their evidence, but other kinds of lies would also prove the truth of this imputation.
False evidence about the competence of a professional person, whether under oath or not, is conduct that, if proved, would amount to evidence of lying. The first plaintiff's attack on the competence of the local veterinary surgery and its employees and on the council ranger are examples.
When cross-examined about they had not taken such the puppy to the nearby local pound (which they told Mr and Mrs Gorham they were going to do) or to the equally nearby veterinary surgery the first plaintiff's initial answer was a dramatic one. She said she knew, from working at that veterinary clinic as a student (Tcpt 50 - 51), that it did not have facilities to cope with parvovirus and Teddy could have been at risk of catching this potentially fatal disease: "Q. And so would I be incorrect in saying that section 62 of the Companion Animals Act, is the section that is relevant in these proceedings where you have faced an obligation having seized Teddy, you had an obligation either to return him to his owner, to take him to a council pound, or to an authorised person such as the veterinary clinic. Is that a fair assessment of what the legal obligation was at the time? A. It was my understanding that, I'm a vet, I have access to that data base. I didn't think it would be unreasonable for me to try scan that dog, return it to its owner without the dog having to then enter a pound facility or the veterinary clinic. Q. What is so frightening about a veterinary clinic for a dog to turn up to that? A. Quite often, there's a risk of parvo - HER HONOUR 25 Q. Sorry, the risk of what? A. Viruses, so - Q. Viruses? A. Yeah, we vax - young adolescent dogs are particularly at risk of parvovirus so it's an enteric type disease that can be fatal. Q. Are you saying that going to the vets for anybody is dangerous because you can just bring your pet in and the pet can get parvovirus? A. For a young dog, it can be." (Tcpt 50)
The implausibility of such an explanation is obvious and, after this inquiry, plaintiff then sought to change her answer: "WITNESS: Can I clarify something? Like, I don't actually, like I wasn't thinking, "It'll get parvo if I take it in there," my thought process was, "It is a lot less stressful if I just take the dog home." (Tcpt 51)
A similar attack on the competence of the council ranger was made (Tcpt 49).
The first plaintiff's claim that visiting either the vet or the pound would be stressful was challenged in cross-examination by the first defendant. The first defendant put to her that Teddy would have been not merely restored to her quickly but very likely actually recognised at the vet surgery: "Q. So you could have in fact got the dog's microchip details anywho [sic] and gone to a house that didn't even belong to, and therefore extending your period of time the dog was found. Could it not be assumed if the dog was found in Young to possibly take it to the vet where it would possibly be microchipped and on the system as it was in Young or was it at - did it seem to be at vaccination age? It was above eight weeks old? A. Yes. It was about eight weeks of age. Q. And where do vaccinations get performed? A. It could be at any stage. Usually - Q. Sorry, sorry. Where is it usually at a veterinary clinic? That vaccinations are given to dogs? A. Yeah, usually. Q. Yes. Okay. So I'm just assuming that it would be quicker to drop the dog at a local vet where one can assume, in a small country town, where there's only one vet, that it would be getting vaccinated at that vet, and the vet would have its details on record? A. I thought I was doing you a favour by not being impounded and put into a vet clinic. I thought I was going to bring it straight back to you." (Tcpt 88).
Her explanation for lack of concern about parvovirus at Mr Loader's home was also inconsistent: "Q. So there were concerns that you say that you held with taking a dog to the veterinary clinic, and you have articulated that there's risks of diseases. Is Mr Loader a breeder of dogs? A. Yes. Q. So would it be fair to say that Mr Loader has dogs on his premises? A. Right out the back of his yard, I now know - at the time I didn't - there's dogs in his yard, yeah. Q. Would it be fair to say that Mr Loader's place is probably a slightly less sanitary place, with no disrespect to Mr Loader whatsoever but a slightly less sanitary place than a veterinary clinic? A. I don't wish to comment because I don't know I don't - I haven't assessed the hygiene conditions. Q. But taking you at your word that you have this concern for the dog's welfare, is it fair to say that - how is that a believable answer when you're taking the dog Mr Loader's place, a man that breeds dogs? A. I didn't intend on getting it out the car. Q. Well now that's a very interesting point. You didn't intend on getting it out of the car and what did you do to prevent it from getting out of the car? A. Well when I went to get out the car, it's jumped out the car." (Tcpt 52)
The first plaintiff's description of expecting Mr Loader to come to her car to check Teddy's microchip (in order to avoid the risk of disease) while he was jumping around unrestrained is not merely implausible but inconsistent with what the plaintiff then did, namely start to get out of the car herself, which is when she said that Teddy "leapt" out (Tcpt 54).
The first plaintiff's explanation that she took this course of events to minimise Teddy's stress is similarly implausible. Not only did she carry Teddy for a considerable distance after he at one time attempted to run away, but when she put him in the back seat of her car, unsecured, he began jumping around in what she agreed was a "wild" (Tcpt 52) fashion while she drove. She acknowledged she had no means to secure him, although she was aware of the legislative requirements for dogs in cars to be restrained. As soon as she stopped the car and, after leaving a message for Mr Loader, opened the car door, Teddy escaped.
Where a puppy is found wandering in the street in a small country town, the likelihood that he may be recognised by a neighbouring homeowner or shopkeeper would be a possible source of inquiry. The plaintiff made no such inquiry: "Q. Pausing there at that point, did you make any inquiries of any of the houses there? A. No, I didn't go knock on anybody's door. Q. So you've encountered a dog that has a collar and you've just saved it from potentially being hit by a car, you put it back down on the ground and you make no inquiry of any of the houses nearby, is that correct? A. Yes, I didn't make any inquiry. HER HONOUR Q. I'm sorry, what was that? A. I did not make any inquiries on people's doors, I didn't go knock on anyone's door, no. Q. Why not? A. I'm not, I'm quite a timid type, I don't think I could, well I, I didn't see the need to, I mean how was I to know where the dog had even come from?" (Tcpt 38)
The second plaintiff, who did not claim to be timid, did not knock on any doors either: "Q. And whilst you say that you made no inquiries of the houses there, did you observe Ms Marchant knock on any doors? A. No." (Tcpt 41)
She told the court that it "did not occur" to her to do so (Tcpt 133, 156; see also Tcpt 210 - 211 and 216).
Both plaintiffs were aware there was a police station nearby, but said they did not think to take the dog there, even though Teddy was wearing a collar. The first plaintiff said: "Q. And that would not be a terribly far distance to detour along your walk, is that correct? A. That's correct. Q. But neither you nor Ms Marchant decided that you should perhaps take the dog to the police station? A. No, I didn't think that. I didn't think they would - well I just didn't think. Didn't think to take it to a police station. Q. But you've encountered a dog that is wearing a collar. Would a collar - is a collar a fair indication that the dog is owned? A. Yes." (Tcpt 45)
Attempts to argue Teddy was not a valuable dog (the inference being that his welfare was a trifling matter) did not put the first plaintiff in a good light, nor did her disparagement of council staff when asked why she did not contact the council ranger: "Q. And the police station I presume, was open at this time of day too. Would that be correct? A. That would be correct. Q. The council ranger would be available by telephone, would that be correct? A. It's not always that they answer the phone, as far as I can see, looking forwards because there's multiple complaints, you see on Facebook that they don't answer. But - Q. But nonetheless, you made no attempt to call the council ranger, did you? A. I don't have their number in my phone, but no I did not, no. Q. But your phone enables you access to the pet registry data, is that correct? A. Yes. Q. So I presume that your phone is some sort of smartphone capable of looking at web pages, is that correct? A. I could've, but in that time, I also could've driven there, scanned it and taken it home." (Tcpt 49)
At the time of "not thinking" about any of these alternatives, the first plaintiff had not even contacted Mr Loader to see if he was either available or willing to help (Tcpt 45). She did not attempt to contact him until she had stopped outside his house, after Teddy had escaped (Tcpt 47). Her claim that she needed to have the council rangers number "in my phone" in order to call them would be picked up quickly by any mobile phone user as being implausible, as mobile phone sites for government websites such as councils all feature numbers that simply need to be pressed on in order to have a call connected. It is not to the first plaintiff's credit that she would seek to attack the council ranger by saying there were "multiple complaints, you see on Facebook they don't answer" (Tcpt 49). Nor was it the case that she could have driven to Mr Loader's home, scanned the dog and in taking the dog to its real home in the same time that it took to ring the council ranger. She was so uninterested in whether Mr Loader was at home she did not even attempt to ring him before she got in her car, despite knowing that he worked full-time and was more likely than not at work as opposed to being at home.
Despite her professed desire to take Teddy "home" (Tcpt 49), she made no attempt to look for Teddy, or to seek the assistance of any other local resident about Teddy's whereabouts. The suggestion that she asked Mr Loader to keep a lookout, if true, is not one that he accepted as she made no inquiries whatever.
The second plaintiff's answers were equally unsatisfactory on all these issues. She also claimed to be concerned about stressing Teddy by taking him to the vet or the pound, but acknowledged that if Teddy had no chip, he would have had to be taken to the pound or the vet in any event. She insisted Mr Loader's home (even though he had not been contacted) was the option that "we" (i.e. both plaintiffs) thought was "best" (Tcpt 152), adding "Now that you mention the vet clinic, yes, it would have been an obvious choice to take it there at the time, we didn't, we didn't do it that way" (Tcpt 153).
However, the possibility of consulting the local vet would have been just as well known to the second plaintiff as the first plaintiff, as the second plaintiff acknowledged that she had on occasion taken her own dogs to this vet surgery (Tcpt 154). Despite the inconvenience of the first plaintiff carrying a 10 kilo puppy for up to nearly 20 minutes, at a time when the second plaintiff was keen to get to work after doing her shopping at Aldi, she insisted that taking Teddy to a person the first plaintiff only described to her as "a meat inspector" was the best option because: "…She is a vet in her own right, she has the access to the tools that she needed to use to get this dog home to its owner. We did our best at the time. Q. She did not have access to the tools, you have said she did not have access to the tools, she needed to go to another location to obtain the tools? A. A minute around the corner. Q. Yet she could have gone four minutes around the other corner to the Young Veterinary Clinic, how is that the best option, how is it? A. She was going to someone she knew had a chip reader so we could reunite this dog with its owner. Q. Someone that she only knew was a meat inspector, no name. Is that a serious answer? A. We work in an agricultural industry, that does not raise alarm bells for me because it's his job title." (Tcpt 154)
The most significant lies the second plaintiff has told the court relate to the circumstances in which she took a photograph of Teddy, posted it and then took this down.
Mr Loader was in fact much better known to them than the first plaintiff's offhanded description of him as "the meat inspector" suggests. The plaintiffs' evidence about their relationship with him was similarly disingenuous and, on some issues (such as the nature and extent of their conversations with him at the time) false.
Conformably with the principles for proof of justification of criminal conduct as set out by Lee J in Lehrmann, I am satisfied to the Briginshaw onus at the defence of justification is made out for this imputation.

[77]

Imputation (h): the plaintiffs were causing mental anguish to young children

There was ample evidence of the first defendant's children being distraught, crying and unable to sleep and spending hours looking for Teddy. The plaintiff painted a moving picture of her little boy looking in the puddles in the area in case Teddy had drowned, stating that it was because the plaintiffs had "sat on information for more than a week" that he had been in such a state: "Q. Now Ms Wheeler by suggesting that they be named and shamed, you were of course suggesting that they had done something wrong? A. Yes. Q. And what you were, the message you were conveying was that they had stolen Teddy? A. No. I suggested that they sat on the information for a week while my son was searching storm drains. HER HONOUR Q. I'm sorry I didn't hear that; you said, "They sat on information for more than a week while my son"? A. Was searching storm drains. Q. "while my son was searching storm drains." A. In the weed behind our house thinking that his - Q. And what? A. There's a, there's a catchment area behind our house, a water area, a real build-up, and he, he was worried that his dog might have gone into that and drowned." (Tcpt 502)
The distress suffered by the first defendant's young children was because Teddy was missing, whether he was stolen or not. The fear that Teddy was frightened and lost or, worse, had died in distressing circumstances. The failure of the plaintiffs to pass on their information about Teddy's whereabouts was thus a major factor in causing them anguish.
The first plaintiff agreed that if one of her children's pets went missing, she would go to "the ends of the earth" to find it: "Q. You've admitted that if your children were to lose their beloved pet - I'm not sure if you'd have pets live inside or just the breeding ones. There's a big difference between the attachment to each. If there was a dog that was specifically your child's dog, and it went missing, and you were searching for it, with no leads whatsoever, would you not seek to obtain CCTV purely to find the people that were last seen with the dog, for your child's benefit? A. I don't object to you using CCTV. And I would, I would go to - Q. The ends of the earth to - A. I agree with what you - Q. Just trying to - A. Trying to find your dog. I agree with that. But I don't agree with being called a thief." (Tcpt 90)
In those circumstances, it is not necessary to prove that the plaintiffs stole Teddy for the truth of this imputation to be established. I am satisfied that the defendants have each established the truth of this imputation because it was the plaintiffs' delay in coming forward which caused so much anguish.
I note my similar findings for imputations that the plaintiffs were liars and were untrustworthy, in that these imputations do not require proof of the plaintiffs actually stealing Teddy in order for the defendants to discharge their onus for the defence of justification.

[82]

Malice and the defences of qualified privilege at common law, honest opinion and fair comment: a preliminary difficulty

The role played by malice in these defences is settled and well-known law, but that is in part because mistakes have been made in the past: Cush v Dillon; Boland v Dillon [2010] NSWCA 165.
The onus lies on the defendant to establish that a publication was made on a protected occasion, after which the onus switches to the plaintiff to establish malice. The plaintiffs failed to plead or particularise any malice by either defendant in the Reply. Without such a pleading, submissions as to malice cannot be made: UCPR r 14.31(3)(a).
Despite this failure, Mr Lazinski made submissions (at paragraphs 155 and 156) that both defendants were motivated by malice, referring to the first defendant's asserted recklessness and the contents of the second defendant's 16 June post. It is not in dispute that no particulars whatsoever of malice were given in the Reply that was filed. Mr Lazinski acknowledges the difficulty of a claim of malice against the second defendant but asks the court to make findings of malice in relation to the first defendant notwithstanding the failure to plead it.
The burden of proof of malice lies on the plaintiff and not the defendant. Although a plaintiff can still succeed with defences where malice is a component if the evidence of malice fails, they will do so only if the failure of the defence has occurred in relation to those elements for which the defendant bears the burden (Skalkos v Assaf (2002) Aust Torts Reports 81-644; [2002] NSWCA 14; Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79; [2010] HCA 25).
UCPR r 14.31 makes it clear that such particulars must be contained in the Reply to the defence. Where there has been no Reply filed, or an inadequate Reply, leave to amend shortly before the trial is unlikely to be permitted even if some particulars of malice were given: Lee v Keddie [2011] NSWCA 2.
A similar foreshadowed application for leave to file a Reply particularising malice (two months before the trial) where no such particulars had been supplied at all occurred in Walsh v Nationwide News Pty Ltd [2011] NSWDC 42. This trial was case managed in the Defamation List by other judges before it was allocated to me for hearing. In that case, as I have done here, I immediately drew, to the attention of the parties, the total absence of such particulars, referring to Lee v Keddie [2011] NSWCA 2, where the Court of Appeal dismissed an application for leave to appeal from a refusal to grant leave to amend a Reply in circumstances where it was likely to cause adjournment of the trial. Of particular concern to me at the time was the plaintiff's failure to provide a draft Reply, another feature shared by Mr Lazinski's application in these proceedings.
As Mr Larkin SC has pointed out in submissions, the absence of a plea of malice was raised by the Court prior to the hearing commencing and the hearing was conducted on the basis that no plea of malice was brought, particularised or the subject of cross-examination. It is too late to amend now.

[84]

What conduct of the first defendant is asserted to be evidence of malice

The basis of the application to rely on malice is the first defendant's asserted recklessness in publishing statements that Teddy was stolen by the plaintiffs, in circumstances where her evidence was that she did not believe that they had stolen the dog and had not intended to make this accusation.
There are further problems in relation to any plea of malice. The difficulties of establishing malice where there are multiple posts by third parties on a bulletin board were explained by Smith v ADVFN Plc & Ors [2008] EWHC 1797 (QB). The plaintiff in those proceedings had commenced proceedings against all of the posters and not merely the bulletin board administrators. Eady J explained that malice would have to be established for each of them (at [36] - [37]): "[36] In theory, after the expenditure of considerable sums of money, the stage might be reached where long pleadings have been served raising defences very similar to one another. Again, in theory, there might be 20 to 30 replies alleging malice. But this might be thought to be unreal and abusive of the court's process. It is difficult to prove malice and only rarely do Claimants succeed in doing so. The principles are clear; it is necessary to go beyond bare assertion and to plead facts which are more consistent with malice than with its absence: Somerville v Hawkins (1851) 10 CB 583, 20 LJCP 131, 16 LTOS 283; Telnikoff v Matusevitch [1991] 1 QB 102, 120, [1990] 3 All ER 865, [1990] 3 WLR 725; Alexander v Arts Council of Wales [2001] EWCA Civ 514, [2001] 4 All ER 205, [2001] 1 WLR 1840. [37] It would surely be a waste of time and money to hear so many applications to strike out when the answer is all too predictable. It is obvious to any casual observer that these Defendants were quite sincere in their beliefs about Mr Smith and his activities. They seem to have felt quite strongly about it. The idea that any of these people was acting in bad faith, and making claims which he knew to be false, is not realistic. The question I have to ask, therefore, is whether it can be right to allow all these time-consuming and potentially costly steps to be taken when the outcome is plainly predictable to anyone with any knowledge of defamation; what is more, in circumstances in which a great many people will be left out of pocket. In the modern climate, and in the light of the overriding objective of the CPR, I cannot believe it is right to let this happen."
It is an interesting question of law whether, post-Voller, the malicious and/or reckless conduct in question can be attributed solely to the first defendant because they appear on a Facebook page.
The real problem, however, is that any plea of malice on the basis of reckless publication is factually very weak. The first defendant had made the discovery earlier that day that after spending thousands of dollars of her own money searching in her local area and retaining a "pet detective", Teddy had been taken from the neighbourhood within minutes of his escape from home a week ago, and taken across town where he had vanished almost immediately in circumstances where information that could have helped to find him had been withheld by the plaintiffs, whose suspicious conduct in not coming forward was compounded by the apparent likelihood, from a photograph from an unimpeachable source, that they had put Teddy on a leash. The first defendant was then warned by police that if she made any further complaints about the plaintiffs, she would be in trouble for "harassment". She responded to this by continuing to maintain both her suspicions and her search, in circumstances that would be difficult to describe as even reckless, let alone malicious. Accordingly I would make the alternative finding that the first defendant's conduct was neither reckless nor capable of amounting to malice.

[85]

Public interest and "naming and shaming"

Section 31(1)(b) of the Act requires, in a defence of comment, that the subject be a matter of public interest.
The plaintiffs submit that the public did not have an interest in any allegation of criminality arising from their conduct. They assert that the only recipients that had an interest in that information were the Police and perhaps Ms Wheeler herself, in that she was the owner of the dog (submissions, paragraph 159).
Concepts of what is in the public interest have changed due to the pervasive impact of social media but even before that, the courts interpreted this element very broadly. Animal welfare and the wellbeing of domestic animals generally are topics which regularly arise in defamation proceedings, not merely in relation to their commercial use in horse racing or greyhound racing (Wake v John Fairfax & Sons Limited (1973) 1 NSWLR 43 at 47, cited in Millane v Nationwide News Pty Ltd t/as Cumberland Newspaper Group [2004] NSWSC 853 at [105]) but by reason of public concern about animal wellbeing. The enormous interest in domestic animals and their wellbeing is a notorious feature of the internet, as Wikipedia ("Cats and the Internet") has noted. The same broad test of interest, in relation to the defences of qualified privilege, has been applied as well: Echo Publications Pty Ltd v Tucker; Fast Buck$ v Tucker (No 3) [2007] NSWCA 320 at [8].
While topics such as animal welfare are matters of public interest, is the naming (and consequential "shaming") of a person accused of a crime such as dog stealing also in the public interest? This issue arose in two recent English decisions where the new public interest defence was pleaded by a defendant where the plaintiff had been accused of rape: Hay v Cresswell [2023] EWHC 882 (KB) and Aaronson v Stones [2023] EWHC 2399 (KB). In Aaronson v Stones, Knowles J, citing privacy issues raised in ZXC v Bloomberg LP [2022] AC 1158; [2022] UKSC 5, considered that the sensitivities involved in publicly accusing someone of a criminal offence had to be taken into account, and that there was no automatic or unqualified public interest in naming an alleged abuser.
In setting out these observations, Knowles J emphasised that context was important. Unlike the plaintiff in Aaronson v Stones, the defendants were not repeating third-hand allegations that they had not checked, but providing identification evidence from witnesses, namely the two residents who had seen the plaintiffs with Teddy and spoken to them and the CCTV footage from the local school showing the plaintiffs with Teddy, footage the two residents had identified as showing the women they spoke to.
It should not be overlooked, when determining public interest in relation to social media publications, that business and community awareness are two of the main staples of internet content, and that the purposes for which the defendants were using Facebook were in pursuit of seeking community assistance to find her lost dog (for the first defendant) and conducting a pet detective business (for the second defendant). They actively sought assistance from anyone who had seen Teddy and/or the plaintiffs and it was for this purpose that they published the name and photographs. In those circumstances, I am satisfied that it was in the public interest for both plaintiffs to be named and for the CCTV photographs identifying them to be published.
Was it in the public interest for the plaintiffs to be not only "named" but "shamed"? Mr Lazinski submitted that any attempt to "shame" the plaintiffs would not only fail the public interest test but amounted to malice, whether malice was pleaded or not. What, however, are they being "shamed" about?
One use of the term "named and shamed" is by government departments who do not have time to pursue wrong-doers, so their names are instead published in lists. For example, since 2008, New South Wales food safety regulations publish company names to give "consumers more information to make decisions about where they eat or buy food" (see "NSW Food Authority Name And Shame" on the NSW Food Authority website). That is not an allegation of guilt, but of unsatisfactory behaviour that is drawn to the attention of consumers.
In the present case, it is clear that the defendants are not "shaming" the plaintiffs by saying that they stole Teddy. They set out their explanation of what has occurred and it is clear from all of the comment thereafter that what the plaintiffs are being shamed for is their failure to hand Teddy over to the appropriate authorities and, in particular, their failure to come forward until after a CCTV photograph of them with Teddy led to them being identified.
Any role that "shaming" plays in public interest has yet to be the subject of judicial consideration. As Meital Pinto and Guy Hardman point out in "Shaming: Definition, Historical Origins and Contemporary Proliferation of an Illusiveness Concept", January 2022 SSRN Electronic Journal (https://www.researchgate.net/publication/366871541_Chapter_1_Introduction_Shaming_Definition_Historical_Origins_and_Contemporary_Proliferation_of_an_Illusiveness_Concept) at p. 3, "although shaming has major implications for the legal world, it remains virtually undefined in legal literature". In those circumstances, any role that "shaming" has to play in relation to public interest should be treated with great caution. It is arguably the case that importing "shaming" into public interest conflates it with the other elements of the defences in which public interest plays a role.

[86]

Qualified privilege at common law

Each of the defendants pleads a defence of qualified privilege at common law. I shall make observations of a general nature before considering the facts in relation to each of their defences.
As Professor Rolph notes at [12.10] in Rolph on Defamation (Second Edition, 2024, Thomson Reuters), the defence of qualified privilege at common law is arguably the most complex of all defamation defences, and "has had a troubled history", citing Simpson AJA in Bailey v WIN Television NSW Pty Ltd (2020) 104 NSWLR 541; [2020] NSWCA 352 at 544 [67]. Historically, it was considered to be a defence which only lay in relation to limited publications (Holmes a Court v Papaconstuntinos (2011) Aust Torts Reports 82-081; [2011] NSWCA 59 at [92]) and, as a result, to be unavailable for social media publications such as Facebook (Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45 at [157] - [161]) and mass media publications generally (Lazos v West Australian Newspapers Ltd [No 2] [2024] WASC 238 at [189] - [191]). In Marshall v Megna [2013] NSWCA 30, Allsop P stated at [19]: "If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth. Publication beyond what was reasonably sufficient for the occasion of qualified privilege is unprotected…".
However, in 2013, when Allsop P stated this to be the case, there were few if any defamation cases arising from publication on social media, and the concept of its use for widespread contact for community, policing or other similar concerns was not an issue that had been judicially considered. The profound changes to public communication methods arising from the internet in general and social media in particular arise from the increasing use of the internet for business purposes by persons using the internet for business or other purposes. Social media today is not only used for personal communications or news stories. It is an essential tool for persons using its unique capacity for urgent enquiries such as those made by law enforcement agencies (Wraydeh v Fairfax Media Publications Pty Ltd (2021) 105 NSWLR 254; [2021] NSWCA 153) and community information services (Zuchowski v Howe; Howe v Cavendish Properties and Zuchowski [2022] VCC 1604 at [408]). The potential for such use was, however, foreshadowed in Aktas v Westpac Banking Corporation Limited [2009] NSWCA 9, the Court (McClellan CJ at CL, with whom Ipp and Basten JJA agreed) observed, at [43], that privileged occasions may protect communications made with a view to the detection of crime, adding (as another form of protected communication) that, in the commercial context, communications may also be protected, notwithstanding that the communication is made for profit.
The privilege requires the establishment of duty and interest which, in the case of seeking to locate lost or missing persons of all kinds (whether criminals, or hikers, or small children) or animals is one which should be interpreted with a degree of liberality. This would be particularly the case if other normal means of communication were disrupted by, for example, weather conditions, civil unrest or war, or pandemic quarantine orders. What is required is that an interest that is "of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it" (Holmes a Court v Papaconstuntinos at [84]).
In Wraydeh v Fairfax Media Publications Pty Limited, a driver left the scene of a fatal collision. Police published a media release in which they named the plaintiff as a person who might have relevant information about the driver's whereabouts (as they were brothers) which led the defendant to assume, erroneously, that the plaintiff and not his brother was the missing driver. Although the articles published by the defendants were plainly incorrect in identifying the plaintiff as the driver (thereby implicating him in the commission of a criminal offence), the trial judge found that the articles were published on an occasion of qualified privilege.
The Court of Appeal (at [49] - [51]) upheld the trial judge's finding that there was a privileged occasion as it was in the public interest for the police to inform the public at large, via the media, that the driver had likely stolen a car and was still at large, and to enlist the public assistance in identifying, locating and apprehending the driver. The Court in Wraydeh ultimately endorsed the "relevance" test, namely that the publication must be directly relevant to the occasion of privilege (at [65] and [76]) and overcame the problem of a mass media publication being the vehicle for the publication in the "sub silentio" manner described by Simpson AJA as follows: "[72] It may be accepted that it was the issue of the media releases that crystallised a social and moral duty in the respondents to pass on to their readerships the information concerning the motor vehicle accident, the death of Ms Abdallah, and the flight of the driver. It was accepted that a relevant duty (or at least a common interest) existed; it was also (sub silentio) accepted that, as each respondent was a mass media outlet, the duty could not, in practical terms, be discharged to a more limited audience. Hence the concession, ultimately made, that the occasion was privileged. [73] It is the assumption that, in discharging their duty, the respondents were confined to the content of the media releases and that anything outside that content failed to meet the requirement of relevance, sufficient connection, or that the publication be "germane" to the occasion that is the second misconception in the appellant's argument. [74] The appellant argued (at [20]) that the respondents could only be protected by the privilege because they were acting as intermediaries to enable the police to communicate with the public and (if I understand the submission correctly) that the parties to the "reciprocal interest" (or "reciprocal duty") were the police and members of the public. In passing on the information provided by police, it was not open to the respondents to go beyond that information, because any additional information "does not form part of the occasion". [75] I would reject this contention (for which no authority was cited). It would, if accepted, constitute the respondents as agents of the police, having no independent relationship with consumers of their publications. True, it is, as I have said above, the occasion of privilege came into existence when police, by media release, involved media outlets in the quest for information about the passenger in the Mitsubishi, the identity of the driver and (in the third media release and the Facebook post) the location of the appellant. But the interest in the respondents in reporting news was not confined to what they had been told by the police."
Although I have set this out at some length, Mr Lazinski did in fact concede during oral submissions that the matter was published on a protected occasion.
Once it is established that a privileged occasion existed, it must also be established that the communication, which includes the defamatory matter, was subject to that privilege, and, if the occasion has not been misused, whether there is malice.
As to the first of these, Simpson AJA explained that what was "germane" not only could but would contain errors of the kind made by the defendant when describing the plaintiff's role in the car accident, and that the defence was not lost because of this: "76. "Once the occasion of privilege was established, by the relevant duty or interest, the respondents were at liberty to publish information "germane" to the occasion, whatever its source, provided that the communication was "honestly made" (Toogood - see [37] above); made with an "honest purpose" (Aktas - see [63] above); that the respondents (through their journalists) "fairly and properly conducted" themselves in the exercise of the privilege (Bashford - see [55] above); and did not go beyond "the scope of the privilege" (Adam - see [52] above). The publication was directly relevant to the occasion of privilege, and was, in my opinion, well within its scope. It is to be remembered that, in Toogood v Spyring, Parke B cautioned against restricting the relevant communication within any narrow limits (see above at [37]), a caution that was endorsed in Cush v Dillon (at [22])."
Applying these principles to the facts of this case, it must be considered whether the defendants each had a duty to impart the information they did and in relation to each of them, the recipients had a corresponding interest, and whether that interest was lost because of publication of material that was not germane. I shall note these separately.

[89]

Statutory qualified privilege

Section 30 of the Act provides a statutory form of the common law defence.
Mr Lazinski's submissions do not refer to s 30(3). His submissions on the common law and statutory defences are in fact run together. He initially refers to the two defences as "Qualified Privilege Principles" at paragraphs 111- 115, followed by "Qualified Privilege Analysis" at paragraphs 116 - 121 and "Qualified Privilege - Statutory" at paragraphs 122 - 127, but his application of these defences to the facts of this case is as follows: "Qualified privilege 155 The plaintiff's say that this defence fails because use of the words "stole" was actuated by malice, in that, it was used by the second defendant to generate interest in her Facebook post71 in circumstances that, at the very highest, all that could be said was that Teddy was missing or possibly stolen. 156 Further, the defence should fail because the breadth of the publication was excessive. By the second defendant's own admission, the second defendant's Facebook page had more followers than the population of Young, NSW. 157 For the purposes of the statutory defence, it is submitted that a suggestion that Teddy was "stolen" was simply unreasonable. It is the suggestion of criminality that is the gravamen of the second defendant's actions. It is akin to jumping to a conclusion that a person has been murdered when they were seen walking with a missing person."
Mr Lazinski's submissions in reply similarly elide the common law and statutory defences and do not refer to the defendants' s 30 submissions: "D. CL [sic] and ST [sic] QUALIFIED PRIVILEGE 14 Repeats as above. 15 The second defendant submits against the plaintiffs' argument that CCTV footage should have been taken to the Police first. 16 Respectfully, the second defendant's argument must therefore be that when faced with perceived inaction by the police, it is appropriate to engage in vigilante type conduct. For obvious reasons, that argument should be rejected. 17 Further, the second defendant's submission fails to appreciate the plaintiffs' real complaint. The real gravamen of the second defendant's conduct is not the posting of the images; but, rather the posting of the images alongside words that clearly suggest criminality vis - a - vis stealing in circumstances were the commission of a crime is being purportedly depicted. 18 Had the second defendant engaged with the NSW police, a Facebook campaign may have still been mounted that would comply with the NSW Public Affairs Branch Media Policy."
The reason for this failure to engage may include uncertainty as to which version of s 30 applies. The matters complained of were published prior to amendments coming into effect on 1 July 2021 and the provisions of s 30 changed.
This amendment led to error at first instance in Zuchowski v Howe; Howe v Cavendish Properties and Zuchowski, where the version of s 30 set out by Lauritsen J (at [409]) was in fact the version of the section as amended by s 32(1) of the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic), as is pointed out in footnote 140 of the Court of Appeal's decision. That version only applies to publications made on or after 1 July 2021 and did not apply to the words published by Ms Zuchowski and Cavendish at the meeting on 22 May 2019.
It would be easy to be confused as to what factors under s 30(3) applied and this may explain why these have not been addressed by the plaintiffs' submissions. In the circumstances, I propose to interpret the submissions flexibly, much as other courts have said they would deal with a typographical error: Al-Shennag v Statewide Roads [2010] NSWSC 1412 at [22]; see also ABC v Reading [2004] NSWCA 411 at [25] (neither of these were, in fact, typographical errors).
The s 30 mistake picked up in Howe v Zuchowski is one of a series of problems that this difficult defence has encountered since it was enacted; the "controversy" over statutory qualified privilege generally is one of long standing, as Rothman J noted in Cantwell v Sinclair [2011] NSWSC 1244 at [112]. Where more than one defendant has been joined, there are even more difficulties, as there are different factors to take into account for each. This was the problem in LVMH Watch & Jewellery Australia Pty Limited v Michael Lassanah & Ors (Costs) [2011] NSWCA 407, where the respondent was joined by court error to the appeal (it should only have been a party to the cross-appeal) and the qualified privilege findings still resulted in costs orders. There are many traps for the unwary for this defence, even at appellate level.

[90]

Reasonableness

As to what is reasonable in the circumstances, Wigney J stated in Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 at [107]: "This list of factors is plainly neither exhaustive, nor mandatory: Rush v Nationwide News Pty Ltd [2018] FCA 357 at [139]. Nor should it be approached inflexibly. It provides, at best, a guide or pointer to the sorts of things which might be relevant in assessing reasonableness. The relevance or weight to be given to any one or more of the factors in the list will very much hinge on the particular facts of the case. Ultimately, the Court must have regard to "all the circumstances leading up to and surrounding the publication" and it would be "unwise to attempt any comprehensive definition of what they may be": Austin v Mirror Newspapers Ltd [1986] AC 299 at 313. The considerations which bear upon the reasonableness of the conduct of a publisher will vary with the circumstances of individual cases: Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [30] per Gleeson CJ and Gummow J."
As set out above, Mr Lazinski submits that accusations of stealing Teddy are wholly unreasonable. He argues that alleging Teddy was stolen is akin to jumping to a conclusion that a person has been murdered when they were seen walking with a missing person. He submits that the defendants should have left the matter to police, who would have conducted the inquiry in accordance with what he referred to in his submissions as "police guidelines".
This submission misstates the information upon which these statements were based. I agree with Mr Larkin that Mr Lazinski's analogy is based on the false premise that the only fact relied upon is the CCTV photograph, when the most telling evidence against them is the plaintiffs' representations to Mr and Mrs Gorham that they were taking Teddy to the pound, their failure to come forward to provide what was clearly essential information and the implausibilities and inconsistencies in the explanations they finally offered. I also agree that the benefit of the defence should not be lost because the first defendant consulted a "pet detective" who then advertised the matter in a manner asserted to be inconsistent with police practice. There is no evidence of police practice in any event.

[91]

The first defendant

The first defendant is the owner of a missing dog. Her sole interest was to have the dog returned. As was the case in Zuchowski v Howe, there is no claim of malice. As was the case in Enders v Erbas, there is no claim of knowledge of falsity.
Mr Lazinski places a great deal of weight on the first defendant's denials of belief that the plaintiffs had stolen Teddy and her denial that she had either intended to convey or actually conveyed this allegation. Whether she believed that the plaintiffs had stolen the dog or not is irrelevant to the occasion of qualified privilege, for the reasons explained by the Court of Appeal in Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70; Aust Torts Reports 82-161 at [56], citing the following observation from Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57: "The defence of qualified privilege would be dramatically curtailed if defendants had to intend and believe in the truth of every meaning that a judge or jury later gave to the publication."
It is not unreasonable for the first defendant to have published material which is critical of the plaintiffs in circumstances where her comments were based on the facts identified by Mr Larkin SC. The defence of qualified privilege is a plea of confession and avoidance and so it is predicated upon the existence of a defamatory imputation published on the occasion to which the privilege attaches: Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at [58] and [135]. If the evidence establishes that the maker of the matter complained of did not intend it to convey the defamatory imputation to which the privilege attaches, that does not destroy the privilege (Enders v Erbas & Associates Pty Ltd at [75]); at best, it would be relevant to malice which, as is noted above, is not pleaded.
Nor can the extent of publication render what was otherwise a reasonable publication unreasonable. Caution must be exercised when considering pre-Internet pronouncements on extent of publication to publications made on the internet. The fact that the publication can be read by a wide audience does not, without more, amount to evidence of unreasonableness.
Was what was said unrestrained or not commensurate with the occasion, in circumstances amounting to unreasonableness? This issue was considered in Howe v Zuchowski at [248] - [251], where the Court noted appropriate findings of fact and then set out why (albeit obiter) the statutory, as well as the common law, defence was made out.
Applying that approach to the facts of this case, I make the following observations. As to the facts, the first defendant took a series of very proper steps (including using Facebook) to locate Teddy, including contacting all relevant authorities, advertising and checking her neighbourhood and, when these steps were insufficient, she paid for a "pet detective" to help find him. It would have been obvious to any person finding Teddy on 9 June 2020 that he was a loved family puppy vulnerable to predators or accidents in the way that puppies notoriously are. There was no doubt he had been found early on 9 June 2020, as the Gorhams' evidence and the school CCTV confirm. The question was why Teddy was not immediately handed over to authorities or the subject of further communication about his whereabouts was, in such circumstances, a matter for increasing suspicion, especially after the second plaintiff's post quickly vanished.
Then the first defendant learned that while she had been searching for Teddy in her own neighbourhood, she had been wasting her money and time, as the plaintiffs had taken him across town and, on their version of events, negligently let him escape in an area agreed to be a rough part of town. It is in this context that the words "naming and shaming" are used and the allegation of dog stealing is made.
I am satisfied that it was reasonable to refer to "naming and shaming" the plaintiffs in circumstances where they withheld vital information until publicly named. I am satisfied that it was reasonable for the first defendant to suspect them of dog theft and to accuse them outright. I am satisfied that it was reasonable for the first defendant to make statements capable of conveying that the plaintiffs were untrustworthy, liars and the cause of distress to young children. The defence would accordingly succeed.

[92]

The second defendant

The second defendant was a very impressive witness whose careful documentation of her inquiries show an objectivity of purpose and a determination to form opinions and conclusions based on facts. I reject the plaintiffs' submissions that she should have taken the CCTV images to the police first because: 1. The first defendant had been to the police and not only were they not investigating (Tcpt 636) but they claimed no CCTV cameras reached far enough to see the footpath (paragraph 35 of the first defendant's statement). Given this response, if the defendants did find CCTV, they might have difficulty getting the police to accept it. 2. The second defendant's publication of these photographs in fact invited persons to contact authorities if they recognised the plaintiffs. They were responsibly blurred as to face and location. 3. If police had themselves published the CCTV, this would probably have been more damaging to the plaintiffs' reputation than the second defendant using her pet location business to do so. 4. The extent of publication, whether by police or the defendants, would have been the same if social media were used. 5. It was important for the CCTV to be widely circulated as the second defendant was aware of interstate criminal activity involving stolen dogs. There was nothing in the CCTV to suggest that the persons seen with Teddy were locals.
As to "naming and shaming" and accusing the plaintiffs of stealing Teddy, I take the following into account: 1. The second defendant's change from initial instructions of "missing/stolen" to "stolen" occurred in the context of using her professional skills and the information she had put together, all of which made it more likely than not that Teddy had been stolen on 9 June 2020. 2. Time was of the essence because Teddy had been missing for nearly a week (Tcpt 676) and the plaintiffs were the last person seen with him. 3. The plaintiffs' failure to come forward until actually named by others and to reveal where they last saw Teddy so as to aid further inquiry was itself conduct warranting comment and criticism. 4. There was evidence supporting a claim of stealing Teddy given the unsatisfactory and inconsistent explanations that were given, the text of which was carefully set out in the second defendant's Facebook posts. 5. Wide publication was warranted as dog stealing is a crime and interstate activity in dog stealing a known factor.
Any publication by the second defendant of Facebook posts referring to these facts and commenting upon them was therefore reasonable.

[95]

Section 31 honest opinion

This defence goes to the defamatory publication as a whole "in its defamatory sense" (Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 at [100] per McCallum J), in contrast to other defences such as the justification defence (s 25) also relied upon in these proceedings (plaintiff's submissions, paragraphs 130 - 133 and 158 - 160; first defendant's submissions, paragraphs 102 - 105; and second defendant's submissions, paragraphs 91 - 94). As the Court of Appeal (McColl, Basten and Meagher JJA) pointed out in Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695 at [44], the risk in treating the imputation as the matter which must be identified as the expression of fact is that it may not accurately reflect the language of the defamatory publication but to "the contextual nature of the inquiry as to whether a statement is an opinion" (at [44]).
The critical question is whether the defamatory sense of the matter complained of was conveyed as an expression of opinion rather than as an assertion of fact (O'Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 at [41] - [50]). The court must determine whether the matter (in the context of any defamatory meaning as found by the court) was an expression of opinion of the defendant as opposed to a statement of fact: Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035 at [51].
The facts on which the comment is based must be stated or indicated with sufficient clarity to make it clear that it is a comment on those facts. The opinion must be sufficiently linked to the facts being commented on, by reason of those facts being stated in the matter complained of, being sufficiently referred to within the matter complained of, or being notorious. The opinion must also relate to a matter of public interest.
I agree with (and extend to the first defendant) Mr Larkin SC's submission (at paragraph 101) that neither of the defendants would need to establish that she honestly held the relevant opinions at the time the defamatory matter was published. Under s 31(4)(a) of the Act, a plaintiff may defeat an honest opinion defence, which has been otherwise established, by proving this fact. However, the plaintiffs are precluded from making such an argument here because, in their Reply to the defences, they did not "include particulars of the facts, matters and circumstances on which the plaintiff relies to establish" as required by r 15.31(1)(b) of the UCPR.
Similarly, I agree with (and extend to the first defendant) Mr Larkin SC's submission (at paragraph 102) that neither defendant needs to establish that she had reasonable grounds to believe that an opinion held by someone other than her (a commentator) was honestly held at the time the defamatory matter was published. Under s 31(4)(c) of the Act, a plaintiff may defeat an honest opinion defence in relation to a commentator, which has been otherwise established, by proving this fact. The plaintiffs are precluded from making such an argument here because, in their Reply to the defences, they did not "include particulars of the facts, matters and circumstances on which the plaintiff relies to establish" as required by r 15.31(1)(b) of the UCPR.
I also note that there is no particularisation of malice in the Reply.
Both defendants' defences as pleaded separate the expression of opinion by the defendant directly and the expressions of opinions in the third party comments. All are correct, except the claim that Teddy was on a leash, but I consider this to be a comment based on an opinion drawn from the statements of fact made by the headmaster.
Having made these observations in relation to both defences, I set out the material relevant to each of the defendants.

[99]

Fair comment (the first defendant)

In the defence filed on 26 November 2021, the first defendant pleads a defence of fair comment at common law. She has set out, in her Closing Submissions dated 3 December 2024, the basis upon which she submits that this defence should succeed (paragraphs 134 - 136).
The first defendant complains that the plaintiffs have not answered these submissions or otherwise addressed any argument toward this defence. She asks the Court not to permit the plaintiffs to answer these submissions out of turn, as she has not been given any opportunity to consider or justify any such arguments (submissions in reply, paragraphs 89 - 90).
The plaintiffs' submissions on this defence are perfunctory in nature. Apart from asserting (at paragraph 161 of the submissions) that the statements were not based on substantially true facts (without stating what facts are asserted not to be true), the plaintiffs have simply relied upon their submissions in relation to the statutory defence (submissions, paragraph 136).
The elements of the common law defence, and how it differs from the statutory defence, are explained by Professor Rolph at [14.20] ff. The plaintiff bears the onus of establishing that the comment was not fair as well as establishing malice. The defendant bears the onus of establishing whether the statement was one of fact or comment; the common law defence requires this distinction to be drawn, the assessment being made on the basis of what the ordinary reasonable reader would infer (Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 at 253 (CLR) per Gleeson CJ and at 265 per Gummow, Hayne and Heydon JJ). In social media publications, it is likely that this would require the application of the Stocker v Stocker definition of the ordinary reasonable reader of social media. The proliferation of opinions on social media (such as the "one star" review in Callan v Chawk [2023] FCA 898 at [133]) suggest that the expectations of this new reader to see opinions rather than fact in social media communications. It is still possible to refer to facts as long as the matter purports to be an opinion. Consideration of this issue is difficult given the length of both matters complained of and the myriad of conflicting statements, but the one consistent factor throughout is that all the commentators are expressing short and pithy opinions as to what is being published. Many are not even defamatory, such as hoping for a happy ending, or expressing concern for Teddy's well-being, but these are all comments based on how these contributors feel about an anxious mother posting about the whereabouts of her little boy's puppy.
I am satisfied that the first defendant has made out the defence of fair comment at common law in relation to the first matter complained of, which consists almost entirely of the opinions of those involved, based on little more than the revelation that two women who said they were taking a lost puppy to the pound did not do so and were shown on CCTV appearing to do something else.
The defence of fair comment is harder to make out in relation to the second matter complained of, in that there is considerably more factual material. In the circumstances, however, I must give weight to the first defendant's complaint that the plaintiffs have failed to provide submissions on any of the different issues arising in relation to the common law defence. I accept her complaint that she should not be disadvantaged by having to guess what the plaintiffs' submissions may be.
Another complicating factor is, of course, that the plaintiffs' failure to particularise malice relates to this defence. I have rejected the plaintiffs' belated attempt to particularise malice by the first defendant and I propose to deal similarly with the plaintiffs' failure to address the elements of the common law fair comment defence. Accordingly, I find that the first defendant's defence of fair comment succeeds in relation to both publications.

[101]

Schedule 5 cl 91 of the Broadcasting Services Act 1992 (Cth)

Each of the defendants relies upon these provisions to submit that she was an internet content host in relation to the third-party comments comprised in the matters complained of. Each defendant claims she was not aware of the nature of the content of the third-party comments comprised in the matter complained of, and thus no cause of action is maintainable in relation to publication of the third-party comments therein, by reason of Schedule 5, cl 91(1)(a)-(b) of the Broadcasting Services Act 1992 (Cth).
The defendants submit that they were not aware of the nature of the comments in that despite statements to the contrary neither was actively monitoring the comments. Further, the nature of the inquiries was such that each of the defendants was obliged to receive and process contributions to the debate in case they contained information of relevance to the inquiry. In addition, the sheer magnitude of the number of comments made the vetting process onerous in the extreme. Each defendant submits that they have met the evidential onus to prove that each of them was unaware of the nature of the comments.
These submissions are wholly inconsistent with the facts of the case. Each of the defendants was clearly keeping a close eye on the posts in case they contained new information. Those posts which accused the plaintiffs of stealing Teddy did not offer any new information; invariably, they consisted of this allegation and nothing more. The quantity of the responses was not such as to render either defendant unaware of the nature of the comments.
In Zuchowski v Howe, the defendant submitted that he was the "subordinate distributor" and not the first or primary distributor of the comments to the ten publications sued on. The plaintiff, relying on the first instance judgment of Rothman J in Voller v Nationwide News Pty Ltd [2019] NSWSC 766 at [105], [106], [205], [208], [214], [225] and [228], submitted that the defendant was in fact the first or primary distributor, for the following reasons: 1. On a Facebook Page, publication of a comment occurs when the reader comprehends it, which occurs after the publisher makes the comment available and a third party has it available for his or her comprehension. The author of the comment publishes it and the media company renders it relevantly public. 2. A public Facebook page is unique, for its administrator can forbid all comments by others or, through the use of a list of prohibited words (including, for example, all pronouns and definite and indefinite articles), he or she could hide all comments before monitoring them. 3. The comment is published when the author places it on a public Facebook page. It is in a "comprehensible form" from which a reader can download it onto his or her computer. 4. To the general reader of a public Facebook page, apart from the administrator and a Facebook friend of the commentator, in Voller's case, the defendant media company was the first and only publisher of the comment.
Lauritsen J accepted these submissions, and his Honour's reasoning demonstrates that the broad test applicable does not relate only to media defendants but also to private individuals such as a volunteer administrator of a public Facebook page. The facts here are very similar; the first defendant was not merely paying close attention to these posts for her own personal reasons but was paying the second defendant to make inquiries, inquiries that required her to read the posts.
On appeal, the Court did not endorse Lauritsen J's finding that the defendant must establish that he or she did not have qualitative awareness of the comment but nevertheless held that the defendant had failed to establish that he was not aware of the nature of the content being hosted, a finding open to me to make in these proceedings, given the close attention both defendants were paying to the information coming to them through their Facebook pages.
Mr Larkin SC submitted that I should not follow or apply Zuchowski v Howe as it is bad in law and had, by inference, been treated as such on appeal.
I do not propose to do so. Apart from the principles of both precedent and comity, correctly set out by Lauritsen J at [250] - [257], the Court of Appeal, when determining the grounds of appeal from his Honour's judgment, dismissed the appeal, although on the basis of other factual findings rather than on the basis of the defendant having to establish an absence of qualitative awareness. The Court (Beach and Lyons JJA; J Forrest AJA) explained (at [44] and [104]) that the factual findings as to the degree of control meant that Lauritsen J's findings to be entirely correct. While I note that there were errors of law in the first instance judgment (particularly as to qualified privilege defences), the observations of the Court of Appeal on this issue support Lauritsen J's approach to fact-finding, and the same approach to fact-finding should apply to the facts of this case.
For the above reasons, the defendants both fail in relation to this defence.

[106]

Aggravated damages

In paragraph 29 of the statement of claim, the plaintiffs set out the following particulars as the basis for the claim for aggravated compensatory damages: 1. The knowledge that the defamatory meanings complained of are untrue. 2. On 17 June 2020 and 18 June 2020 the first plaintiff was subjected to searches of her residence by members of the New South Wales police service, namely Senior Constable Kentwell, Sergeant Bambrick and Constable Homes of the Young Police Station, in relation to possible criminal conduct regarding the alleged theft of the puppy and illegal or illicit drugs, such searches not identifying any evidence to support the commission of an offence. 3. The knowledge that the defendants publish the matters and continue to publish the matters complained of in the circumstances pleaded above. 4. The defendants' unjustifiable failure to (permanently) remove the publications complained of. 5. The publication of the matter complained of on the Internet at the two websites over a period from the date of publication and continuing. 6. The first plaintiff's claim that as a result of the publication of the matters complained of she has suffered and continues to suffer from depression, anxiety and mental anguish requiring medical treatment and intervention including taking time off work and receiving medical treatment is set out in paragraph 26A of the statement of claim.
The plaintiffs' submissions on aggravated damages (at paragraphs 195 - 198) set out the relevant legal principles but do not refer to any of the particulars set out above. On Day 9 (Tcpt 803) I invited the plaintiffs to specify the conduct alleged to amount to aggravating conduct, following which the plaintiffs identified an entirely new ground, namely maintenance of the defence of justification (paragraph 93 of the plaintiffs' further submissions). As Mr Larkin SC notes in his submissions in reply, no particulars as to how maintaining this defence is improper, unjustifiable or lacking in bona fides have been provided. The first defendant's aggravating conduct is asserted to be her knowledge that the "name and shame" post occurred after the she knew that the plaintiffs had denied any wrongdoing to the police.
As to the defendants' maintaining of a defence of justification, as Professor Rolph notes (at p. 498), a defendant is entitled to plead, even vigorously, a bona fide defence without risk of aggravating the damages, even where that defence is one of justification: Triggell v Pheeney (1951) 82 CLR 497 at 514; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 379; Singleton v Ffrench (1986) 5 NSWLR 425 at 439. It is only where some identified aspect of the pleaded defence (or the defendant's conduct in relation to it, such as inappropriate cross-examination) is improper, unjustifiable or lacking bona fides that the plaintiff may rely on this factor in relation to a claim for aggravated damages: Triggell v Pheeney at 514. Without the required specificity, any claim for aggravated damages on such a basis must fail.
The additional bases on which such damages are sought were not pursued at the hearing, but are without substance in any event; for example, knowledge of the untruthfulness of the imputations is insufficient (Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75F; see also Harrigan v Jones [2000] NSWSC 814). The claim for damage to health was struck out prior to the hearing and would not, in any event, have constituted a basis for the award of aggravated damages, for reasons which I set out at the end of this judgment in relation to my ruling prior to the trial commencing. The defendants submit that the plaintiffs would not be entitled to an award of aggravated damages.

[107]

Mitigation of damages

The defendants bring a claim for mitigation of damages: 1. The substantial truth of so many of the plaintiffs' imputations as are found to be substantially true; 2. Any findings made by the Court in relation to the defences of justification and honest opinion pleaded in this defence; and 3. Evidence adduced at trial in relation to the defences of justification and honest opinion.
A claim of mitigation may be brought where it is asserted that a plaintiff already has a bad reputation in the relevant sector. A defendant may also rely upon evidence given in mitigation which was in support of an unsuccessful or only partially successful plea of justification (Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96 at [26]-[32]), or which is relevant to background context (Burstein v Times Newspapers Ltd [2001] 1 WLR 579).
I have found that the defendants have established the truth of all but one of the imputations pleaded. If I have erred in doing so in relation to one or more of the imputations, the truth of any imputation surviving such challenge is a matter the defendants are entitled to ask the court to take into account.
If the plaintiffs succeeded in relation to all dog stealing imputations, I consider it unlikely that imputations which do not require justification of dog stealing (especially causing anguish to children) could not be proved true. If one or more of these imputations were proved true, the amount of damages which would be awarded would be nominal at best.
The plaintiffs' conduct in taking Teddy was unwise and the circumstances in which he escaped from the first plaintiff's care, if her version of events were to be accepted, shows gross incompetence by a veterinarian. The circumstances in which the second plaintiff took down her photo of Teddy and her post about finding a lost puppy are equally blameworthy, but I am satisfied that she did this at the first plaintiff's direction.
However, their conduct in taking Teddy further away from his home and then losing him is dwarfed by their wrongdoing in not coming forward immediately to the appropriate authorities (the pound, the council ranger and/or the police and, in particular, the Young Community Facebook) to say that there was a lost puppy in the Brock Street area. Had they done so on 9 June, the chances of Teddy being found would have been considerably greater.
If the plaintiffs were to be awarded damages for these publications, I would have awarded $10,000 to the first plaintiff and $15,000 to the second plaintiff, but only if all imputations were found to be false. If any of the imputations not requiring proof of dog stealing were found to be true, I would have awarded $1,000 to the first plaintiff and $5,000 to the second plaintiff.

[108]

Injunctions

The plaintiffs seek injunctions "due to the defendants' prior action of sharing information regarding being the subject of legal action" (submissions, paragraph 201), citing Harbour Radio Pty Ltd v Wagner (2019) 2 QR 468, where "persistent" conduct indicated a likelihood that the defamatory imputations would be repeated. The easy access the defendants have to social media is asserted to be of concern.
The second defendant deleted the post the plaintiffs complained about in a matter of hours after complaint (and I note that the complaint in question was made shortly after midnight, at a time when she was unlikely to be checking her phone for messages). She deleted an additional post on 20 June 2020 after Mr Edwards, in the employ of the plaintiffs' solicitors, contacted her. While the undated and unsatisfactorily assembled matters complained of make it difficult for me to determine how long these posts about Teddy went on for, they appear to have stopped some time after July 2020 and no further posts were made. There is no evidence of the likelihood of any further repetition. In correspondence from her solicitor at the time, Mr Goldsmith, she proffered an undertaking not to republish.
Both the defendants continued to post social media entries about their continued search for Teddy. The plaintiffs have not nominated any passages in any of those emails which gave rise to any concerns. There is no identifiable threat of republication. On 17 June 2020, the second defendant edited the security settings on the Arthur & Co Pet Detectives Facebook page to restrict people leaving comments on any posts on the page, which contain the following words: "Ainslee"; "Ainslie"; "Lauren"; "Munro"; "Marchant"; "Vet"; "Dodgy"; "Thieves"; "Thief'; and other similar words (Exhibit 17). This is still in place today.
Mr Lazinski was invited to address this issue further in submissions in reply (Tcpt 794, 802), but has not done so.
Given the length of time since the events in question, there is unlikely to be any such threat in the future. Accordingly, if I had found for the plaintiffs, I would not have granted injunctive relief.

[109]

Ruling concerning injury to health

These proceedings were set down for hearing before me for three days plus, commencing on Monday 26 February 2024. The solicitors for the second defendant sought an urgent relisting of these proceedings on 4 February 2024, three weeks before the trial was to commence, due to asserted failures of the plaintiffs to comply with a timetable for hearing set down by Judge Dicker and failure to answer their correspondence. The solicitor for the second defendant also challenged the admissibility of a medico-legal report served upon his client. I made a ruling in relation to that report: Munro v Wheeler [2024] NSWDC 23.
There was then a blizzard of applications from the parties that took up four days over the remaining two and a half weeks before the hearing commenced. As I noted in my earlier judgment, many of the problems arose from the plaintiffs' failure to comply with orders and/or to answer correspondence. However, the failure of the legal representatives on both sides to react to problems in the pleading and particularisation of the plaintiffs' claim (including service of medical material without any particularisation, pleadings issues, discovery and answers to particulars) was also a contributing factor.
One of the applications brought was an application, notwithstanding my rejection of the late medico-legal report, to serve the following "treating doctor" reports in relation to both plaintiffs: 1. Dr Shiromi Liyanage (2nd Plaintiff) 2. Dr Sue Connor (2nd Plaintiff) 3. Dr Chetan Valuable (1st Plaintiff) 4. Dr Patrick Walsh (1st Plaintiff) 5. Dr Thomas Stewart (1st Plaintiff) 6. Associate Professor Suresh Naidoo (1st Plaintiff) 7. Professor Steve Vucic (1st Plaintiff) 8. Ms Jenny Duggan (1st Plaintiff) 9. Mr Candour Hu (1st Plaintiff) 10. Dr Stuart Saker (1st Plaintiff) 11. Associate Professor Cate Madill (1st Plaintiff) 12. Ms Kristin Dore (1st Plaintiff) 13. Mr Grahame Gould (1st Plaintiff) 14. Medicare & PBS Claims History Statement (1st Plaintiff) 15. Medicare & PBS Claims History Statement - updated (1st Plaintiff) 16. Pharmaceutical and Treatment Receipts (1st Plaintiff) 17. Medicare & PBS Claims History Statement (2nd Plaintiff) 18. Medicare & PBS Claims History Statement - updated (2nd Plaintiff)
Their relevance to the plaintiffs' claim rested upon the plaintiffs' asserted entitlement to claim, as an aggravating factor, that their health had been affected by the matters complained of.
In response to a complaint that these reports had not been served earlier, the plaintiffs withdrew all but four of them, on the basis that if there were fewer reports, then there may have been fewer complaints from the defendants. The defendants, however, remained firm in their opposition to the tender of any medical reports.
Medical evidence of this nature is inappropriate as the basis of a claim for aggravated damages. The defendants had no prior knowledge of, or association with, the plaintiffs and how their conduct could be viewed as high-handed or contumelious conduct of the kind that would warrant an award of aggravated damages is completely unexplained. If an intent to injure was to have been asserted, that should have been particularised as malice (Waterhouse v Mirror Newspapers Ltd (1985) 1 NSWLR 81 at 84). No pleading of malice was ever made in these proceedings.
It was for these reasons that I rejected the application by the plaintiffs for leave to serve and rely on these medical records.

Munro v Wheeler

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Judgment (111 paragraphs)

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Legislation Cited (9)

Cases Cited (111)