Royal Society for the Prevention of Cruelty to Animals New South Wales v Mal Davies

Judgment 1By Statement of Claim filed 18 April 2011 the plaintiff brings an action under the Defamation Act 2005 (the Act). The plaintiff claims that on 19 March 2011 the defendant published defamatory material in the form of an article titled "Ruth Downey Looses [sic] High Court Appeal" on a website and by email to a number of subscribers. The plaintiff has a cause of action in defamation 2A corporation does not have a cause of action in defamation unless it is excluded by s 9(2) of the Act. The plaintiff is an excluded corporation as "the objects for which it is formed do not include obtaining financial gain for its members or corporators": s 9(2)(b). 3The objects of the plaintiff are: (1)To protect from cruelty animals of all species by every lawful means; (2)To relieve the suffering of animals, whether the suffering is caused by cruelty or otherwise; (3)To initiate and promote the passing of legislation protecting animals from cruelty; (4)To ensure by lawful means the effective observance and enforcement of current legislation that protects animals; (5)To take such steps and do such things as may be necessary or advisable in educating all persons in the community in the care, maintenance, control and treatment with kindness and consideration of all animals; and (6)To promote, participate in and sanction animal welfare activities. 4Clause 4 of the plaintiff's Memorandum of Association states that: "the income and property of the Society wherever derived, shall be applied solely towards the promotion of the objects of the Society as specified in these Memoranda of Association, and no portion shall be paid or transferred, directly or indirectly by way of dividend bonus or otherwise, to the Members". 5In addition, the affidavit of Stephen John Coleman, the Chief Executive Officer of the plaintiff, states that the plaintiff is a charity funded primarily through bequests and fundraising. I am satisfied that the plaintiff was not formed for the object of obtaining financial gain for its members or corporators. Any income that the plaintiff receives, whether through fundraising or government grants, is to be applied to its objects, which are each concerned with the promotion of animal welfare. The issues in these proceedings 6The defendant has not filed a defence or appeared at any point in these proceedings. In those circumstances, the allegations of fact made by the plaintiff are taken to be admitted: rule 14.16 Uniform Civil Procedure Rules 2005. 7As a result, the only issues to be determined by this Court are the extent of publication, the remedy available to the plaintiff and costs. Attempts to contact the defendant 8On 16 June 2011, McCallum J made orders for substituted service. Pursuant to rule 10.14(3) of the Uniform Civil Procedure Rules , service of the Statement of Claim was taken to have occurred on 15 July 2011, by email and by Facebook message. 9On 11 July 2011, Nicholas J directed the plaintiff to notify the defendant by the same means that the matter had been referred to the list clerk for the allocation of a hearing date. The plaintiff has complied with that direction. 10On 29 July 2011, the plaintiff instructed a solicitor to send an email to the address provided on the defendant's website. The subject line of the email read "RSPCA v Mal Davies - DEFAMATION PROCEEDINGS". It advised the defendant that the matter had been listed for hearing in the Supreme Court of New South Wales on 18 October 2011. The email was acknowledged by an automatically generated "delivered" return receipt. 11On the same day, the plaintiff's solicitor sent an identical message to the defendant's Facebook profile. On 6 October 2011, the plaintiff's solicitor sent another message to the defendant's Facebook profile confirming the hearing date. The plaintiff's solicitor retained the services of another law firm to email the defendant to confirm the hearing date. That email was also acknowledged by a "successful delivery" return receipt. 12There was no appearance by the defendant at the hearing. The name "Mal Davies" was called in the public area of the Court. At 10:25am the Court recorded no appearance. 13After the hearing, the plaintiff sent emails to each of the two addresses used by the defendant, advising him that the matter had been heard in his absence and inviting him to contact the plaintiff's solicitors within 7 days if he wished to object to the orders. That message was also sent to the defendant's Facebook profile. As of 2 November 2011 the defendant had not responded to any of those messages. 14Although the issues in these proceedings are limited, it is appropriate to set out findings as to each part of the plaintiff's claim, as in the case of an unrepresented defendant (see Higgins and Ors v Sinclair [2011] NSWSC 163 at [66]). The matter complained of 15On 19 March 2011 the article "Ruth Downey Looses High Court Appeal" was uploaded to the internet site "SOS-News.org" and emailed to a number of subscribers. 16The article reads: Unbelievable result for 78 year old Pilliga farmer Ruth Downey ... over RSPCA-NSW charges of animal cruelty when this caring organisation executed nursing cows leaving 16 baby calves, some just days old, without mothers [sic] milk to survive. Farmers use one shot to shoot from the front into the head not from metres away and BEHIND the cow as RSPCA-NSW Inspector Ashton does here, this shot has only wounded this nursing cow of Ruth's ... as the caring vets look on. Ashton moves in and takes a second shot ... as this mother lays wounded on the ground. Is this how the RSPCA kill humanely? -Farmers do not use massive high powered rifle [sic] as Ashton does shooting Ruth's cattle..." RSPCA-NSW CEO Steve Coleman is quoted in the Sydney Telegraph on 22 June 2007 having never seen Ruth Downey's cattle ... (referring to those above) "They were dead cattle walking," Mr Coleman said. The decision from High Court has cast a long shadow over where justice comes from. The losers on this decision are Ruth Downey, the Australian people who donate to the RSPCA, and the animals being used as a facade by RSPCA-NSW to preserve an image of caring. The true winners in this are RSPCA-NSW ex-president Andrew Wozniak ... who from his firm in St Marys, Smythe Wozniak Solicitors, submitted accounts to RSPCA-NSW for prosecution of Ruth Downey in the order of $458,222.47 not including this High Court and previous Supreme Court appeals included . The other winner is RSPCA-NSW director and barrister Paul O'Donnell ... who with Wozniak work this gravy train as a team reaping $MILLIONS over at least a decade. So successful has been the RSPCA-NSW gravy train, they extended the carriages to incorporate the Minister for Transport department prosecutions of Taxi drivers, invalid bus drivers and such to expand their bank balances. Current president of RSPCA-NSW Peter Wright, a veterinarian ... also featured in a slice of the Ruth Downey dollar cake to the tune of $6,197.50 , and was never called to the court. Never visited the Downey farm as a vet on behalf of the RSPCA-NSW during the whole incident, why was he there? The gloves are now off. Our research and investigation over the past 3 years has exposed what is going on throughout the RSPCA all over Australia, but the prime target we have concentrated on is RSPCA-NSW. We have investigated loads of these RSPCA-NSW prosecutions sending many farmers bankrupt to pay Mr Wozniak and RSPCA-NSW Director Mr O'Donnell, plus other information they thought was locked away from you the public. This we will be bringing to you so you can see what is happening with your RSPCA donations by this out of control private organisation give [sic] awesome government powers never investigated over the least 16 years of NSW Labor Government by the Minister for Primary Industries. If elected will Nationals Duncan Gray ... who will take that portfolio, fully investigate RSPCA-NSW? He has the power in his pen to shut them down and conduct any inquiries he deems required without asking parliament or anyone, the ball is in his court and he can serve it within minutes - BUT WILL HE DO THAT? With the recent request from RSPCA-NSW to the state government for a grant of over $7 MILLION to upgrade the Yagoona shelter, a suggestion to look at how the $32 MILLION they collected last financial year was spent. Take a look at the vehicles management drive, the credit card expenses of management, the Steve Coleman "Taj Mahal" RENTED office located at a Homebush business complex, guess he did not like his Yagoona Animal House. How about the six figure expenditure with a high profile advertising agency, plus the lunches that go with it. Before you commit tax payer dollars to this private organisation clandestine management, take a good look around.... we have... SOS-NEWS sent an email to Mr Gay ... asking questions to be answered by him PERSONALLY which we publish so you can make an informed decision on polling day with your vote. Many witnesses have come forward to SOS-NEWS, a plethora of irrefutable evidence has emerged along with whistleblowers that expand daily. We have been awaiting the Ruth Downey case to finish so we can start exposure of the RSPCA management, inspectorate and board of directors revealing what is going on with your donated dollars and much, much more. SOS-NEWS has total support for the majority of RSPCA workers, Volunteers, and auxiliary who are the 100% backbone of animal welfare. They need to be informed that RSPCA-NSW management have a different agenda most of these great people do no know what is happening to their cherished RSPCA behind their back. Mal Davies conducted an indepth recorded interview with Ruth Downey and her sister Ellen Ash, this will be up on the website in the next few days. All Australians need to hear the story outside that of RSPCA-NSW CEO Steve Coleman ... painting black all those farmers charged for animal cruelty playing on public sympathy when irrefutable evidence reveals a far from animal welfare. Out very soon and currently in production at SOS-NEWS, a video which exposes RSPCA-NSW inspectorate and management operations with covert footage revealing their care is far from animal welfare being conducted with your donations. Now let the games begin. (Emphasis in the original) 17The defendant also includes photographs of cattle with captions: "Do these cows look STARVED???" and "Awaiting execution in Ruth's stock yard." 18The article is part of a longer, newsletter-style email titled "Both Barrels by Mal Davies". It was sent from the email address of the editor of "SOS-News", as that address is listed on the website. The website also records that the editor's name is "Mal Davies". Pleaded imputations 19The plaintiff claims that the following defamatory imputations arise from the article: (a)RSPCA NSW needlessly destroys animals; (b)RSPCA NSW is a cruel organisation in that it executed healthy cows for no reason; (c)RSPCA NSW killed Ruth Downey's cows in an inhumane manner; (d)RSPCA NSW has misconducted itself in that it has prosecuted farmers for the purpose of paying legal fees to its own directors and former officers Andrew Wozniak and Paul O'Donnell; (e)RSPCA NSW is a corrupt organisation that misuses donations made to it by the public; (f)RSPCA NSW, an organisation established to promote animal welfare, has misconducted itself in that it does not act to promote animal welfare. 20The plaintiff maintains that each allegation is false and that the making of these allegations damages its reputation. History of the Ruth Downey prosecution 21Ruth Downey ran a dairy farm in northern NSW. In February 2007, the plaintiff attended Ms Downey's property in response to a complaint about the condition of her cattle. An officer of the plaintiff observed that the cattle were thin to the point of emaciation. The plaintiff visited the farm a number of times to advise Ms Downey to increase the animals' feed, or the cattle would have to be put down. 22On 14 June 2007 the plaintiff attended the property, accompanied by two veterinarians, a police officer and two representatives from the Department of Primary Industries. The veterinarians determined that 48 of the cows were so severely underweight that they should be destroyed humanely. Each cow that the veterinarians identified as underweight was shot and killed with a rifle. 23The plaintiff then initiated the prosecution of Ms Downey in the Local Court. Ms Downey was charged that between 14 May 2007 and 14 June 2007 she did fail to provide 48 cows with proper and sufficient food for a period of about four weeks: s 8(1) Prevention of Cruelty to Animals Act 1979. Further, she was charged with aggravated cruelty in respect of each cow in that it was cruel to keep the animals alive in that state: s 6(1) Prevention of Cruelty to Animals Act . 24On 24 October 2008 the magistrate placed Ms Downey on bonds under s 10 of the Crimes (Sentencing Procedure) Act 1999, without proceeding to a conviction. The magistrate also made an order for costs in favour of the plaintiff in these proceedings in the amount of $265,928.56. 25Ms Downey appealed to the District Court, where the result was confirmed on 13 April 2010. The District Court Judge ordered costs in favour of the plaintiff in the amount of $192,293.89. During the proceedings, Ms Downey had applied to the Court of Appeal seeking orders restraining Acting Judge Boulton from hearing the District Court appeal. The Court of Appeal dismissed that application on 16 March 2010. 26On 15 September 2010 the Court of Appeal dismissed Ms Downey's challenge to the validity of the charges and the prosecution. On 11 March 2011 Ms Downey's application for special leave to appeal in the High Court was unsuccessful. 27On 19 March 2011 the matter complained of was uploaded to the website "SOS-News.Org" and emailed to its subscribers. No election for jury 28Unlike proceedings under the Defamation Act 1974, a jury is not empanelled to determine the defamatory meaning of imputations unless a party to the proceedings makes that election: s 21 of the Act. There has been no election for a jury in these proceedings. Hearing 29The plaintiff relied on the affidavit of Stephen John Coleman, filed in court on 17 October 2011, and a number of affidavits of Andrew Clachers, the solicitor for the plaintiff. It did not call oral evidence. Publication 30The plaintiff claims that the matter was published over the internet and by email. Publication over the internet occurs when the matter is downloaded from the website: Dow Jones v Gutnik (2002) 210 CLR 575 at [26]. The plaintiff relies on admissions made by the defendant in the "Both Barrels" email on 19 March 2011 that "this email has been published on our Website network that receives daily over 40,000 visits". There is otherwise no direct evidence that any member of the public read the material on the website. 31The plaintiff also claims that the matter was published to at least 72,000 people by email. The plaintiff relies on admissions made by the defendant that there were 72,416 subscribers at the time the "Both Barrels" email was sent. There is evidence that the email was sent to the address of an individual who subscribed to the website, which supports an inference that the matter was emailed to each of the other subscribers. 32I find that the matter complained of was published via email and over the internet. The extent of that publication is considered at [51]-[55]. Identification 33Publication must be "of and concerning" the plaintiff: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348. The matter complained of refers to the "RSPCA" and "RSPCA-NSW". It is notorious that the Royal Society for the Prevention of Cruelty to Animals (NSW) is known as the RSPCA. Further, the matter complained of refers to the prosecution of Ms Downey, which involved the plaintiff in these proceedings. I am satisfied that at least one person would have identified the plaintiff. Would the ordinary reasonable reader derive the pleaded imputations? 34The pleaded imputations, set out at [19], have not been put in issue by the defendant. However, it is appropriate to set out findings as to the defamatory meaning of the matter complained of, which gives rise to an award of damages. 35The Court must enquire whether the ordinary reasonable reader would derive the imputations pleaded from the words of the complaint. 36The plaintiff referred the Court to Holmes v Fraser [2008] NSWSC 570 at [24]-[27]: "[24] In answering this enquiry any strained or unreasonable interpretation is to be rejected. [25] The Court is entitled, and required, to take into account the mode or manner of publication: some forms of publication, by their nature, call for more assiduous attention than others (eg a book, as distinct from a newspaper; a written publication as distinct from a radio or television broadcast). The ordinary reasonable reader may engage in some loose thinking. [26] An imputation is not to be held to have been conveyed if it involves drawing an inference upon an inference: that is, if it depends upon a conclusion that the ordinary reasonable reader would draw an inference (something not explicitly stated in the words published but implied) from the words published and build upon that inference to draw a second inference. [27] It is to be assumed that the reader reads the whole of the publication." 37The decision by Simpson J was one of the first under the new Act. It was overturned on appeal in relation to the finding of malice, but her Honour's summary of the qualities of the ordinary reader remains good law: Fraser v Holmes [2009] NSWCA 36. 38Simpson J also stated that although there remains "a real and relevant distinction" between a determination that a publication is capable of conveying imputations and capable of defaming the plaintiff, and a determination that the publication did in fact convey those imputations and did in fact defame the plaintiff: at [23], applying the approach in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165-167. Her Honour found it unnecessary to consider separate questions of capacity and fact, but was satisfied as to both: [28]. 39In reading the matter complained of in these proceedings, the ordinary reasonable reader is likely to engage in "some loose thinking". The article is published over the internet, and contains a number of claims that are not supported by specific reference to sources or evidence. It draws heavily on emotive or inflammatory language and hyperbole: "out of control private organisation"; "awesome government powers"; "a plethora of irrefutable evidence". Its claims are reinforced by bold text, exclamation marks and rhetorical questions. The whole style of the article encourages an emotional rather than an analytical response in its readers, while purporting to provide a factual account of an issue of public interest. The material is written, rather than broadcast or spoken, which serves to reinforce the combined effect of the allegations in the mind of the reader. 40The imputations pleaded by the plaintiff do not require a strained or unreasonable interpretation. Imputation (d) arises from the direct statement that: "we have investigated loads of these RSPCA-NSW prosecutions sending many farmers bankrupt to pay Mr Wozniak and RSPCA-NSW Director Mr O'Donnell". That allegation is given force by the claim that RSPCA-NSW prosecution of Ms Downey was a "gravy-train" for the plaintiff's directors. 41Imputations (b) and (c) arise when the defendant describes the death of Ms Downey's cows. Combining an ironic tone with rhetorical questions the defendant asks: "Is this how the RSPCA kill humanely?" and "Do these cows look starved???". The defendant uses exaggerated language while purporting to be descriptive, stating that the plaintiff "executed nursing cows". In the context of the article, these words convey the imputations as they are pleaded by the plaintiff. 42Although the article is primarily concerned with the Ruth Downey prosecution, its claims are broader. Specifically, it states that "many witnesses" can provide evidence to support the defendant's efforts to expose the plaintiff's "management, inspectorate and board of directors". It does not require inference to be drawn upon inference to find that the article claims that the Ruth Downey matter is but one example of a pattern of behaviour by the plaintiff. Imputations (a), (e) and (f) are capable of arising and do in fact arise. Are the imputations defamatory? 43The imputations carried by the article go to the heart of the plaintiff's reputation. Each stands in direct contradiction to the objects for which the plaintiff was established (see [3]). The assertions that the plaintiff has acted cruelly, and for the significant financial benefit of its directors rather than for its stated objects, clearly have the tendency to lower the plaintiff's reputation in the minds of right thinking ordinary persons in the community. Damages 44The plaintiff has established that the defendant published defamatory material about the plaintiff. Damage to reputation is presumed. The amount of damages awarded must bear "an appropriate and rational relationship" to "the harm sustained by the plaintiff": s 34 of the Act. The maximum amount of damages that may be awarded for non-economic loss is $324,000 (from 1 July 2011): s 35(1). There has been no apology or correction by the defendant that could operate in mitigation of an award of damages: s 38 of the Act. 45The three purposes served by an award of damages in defamation are: (1)consolation for personal distress and hurt caused to the plaintiff, (2)reparation for damage to the plaintiff's personal and business reputation, and (3)in vindication of the plaintiff's reputation. 46The three purposes overlap considerably and the amount of damages awarded is a mixture of these inextricable considerations: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 347 [60]. In Carson v John Fairfax & Sons Ltd the High Court observed that the first two purposes are frequently considered together and constitute consolation for the wrong done. 47As it is a corporation, the plaintiff acknowledges that it cannot recover for hurt feelings: ABC v Comalco Ltd (1986) 12 FCR 510. Damages awarded are as reparation for damage to the plaintiff's business reputation and in vindication of its reputation. 48Unlike in Higgins v Sinclair , the plaintiff does not adduce evidence that there has been damage to its reputation, such as a decrease in donations. 49Vindication requires that the sum awarded is: "the minimum necessary to signal to the public the vindication of the appellant's reputation. 'The gravity of the libel, the social standing of the parties and the availability of alternative remedies' are all relevant to assessing the quantum of damages necessary to vindicate the appellant'": Carson v John Fairfax & Sons at 61 per Mason CJ, Deane J, Dawson J and Gaudron J; quoting from Fleming, Law of Torts , 8th ed, (1992) p595. 50Additionally: "The level of damages should reflect the high value the law places upon reputation and, in particular, upon the reputation of those whose life and work depend upon their honesty, integrity and judgment: Crampton v Nugawela (1996) 41 NSWLR 176 at 195; applied in John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291 at [3] per Giles J, Ipp JA agreeing.": Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [75] per Tobias and McColl JJA. Extent of publication 51In Higgins v Sinclair at [216], Johnson J characterised publication of the matter over the internet as "publication available to the world at large". Here, the defendant's admission that the website receives 40,000 visits daily provides some notion of the extent of the "world at large". In the same "Both Barrels" publication, the defendant admitted that the email containing the defamatory material was sent to 72,416 subscribers. 52The plaintiff also submits that the "grapevine effect" supports an inference that the damage extends far beyond the publication to 72,000 people. 53The 'grapevine effect' has been used to explain the basis for general damages in a defamation action. As Gummow J explained in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at [88]: "[88] The expression 'grapevine effect' has been used as a metaphor to help explain the basis on which general damages may be recovered in defamation actions; the idea sought to be conveyed by the metaphor was expressed by Lord Atkin in Ley v Hamilton as follows: It is precisely because the 'real' damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of a false accusation." 54In Higgins v Sinclair at [218], Johnson J observed that "the 'grapevine effect' has particular application with electronic publications on the internet, where the publication is available to the world and may be downloaded easily or forwarded as a link to others". The same can be said of publication over email, which may only be sent to a limited number of 'subscribers', but can easily be forwarded to numerous others. 55I find that the matter was published to at least 70,000 people over email, and was available for publication to the world at large over the internet. Assessment of damages 56The plaintiff referred the Court to a number of recent damages awards for defamation. There is a limited utility in comparing awards for defamation, as: "the amount awarded for defamation should reflect the effect which the particular defamation had on the individual plaintiff. It follows that the drawing of direct comparisons between particular cases is apt to mislead ... Comparison assumes that there is sufficient identity between the effect which each defamation had on the particular plaintiff, whereas in fact circumstances alter cases": Rogers v Nationwide News Pty Ltd [2003] 216 CLR 327 at 350 [69] per Hayne J. 57However, it is important not to be "unmindful of what was done in other cases, similar or dissimilar": Windeyer J in Chulcough v Holley (1968) 41 ALJR 336 at 338, cited by Hayne J in Rogers v Nationwide News Pty Ltd at 350 [69]. Johnson J also considered the following cases in assessing damages in Higgins v Sinclair at [232]. (a)Huyn v Tang (District Court of NSW, 2003): $140,000 for imputations of immigration fraud in notices pinned up in public places; (b)Zarth v Williamson [2006] NSWCA 246: $80,000 in relation to three publications carrying imputations of negligence against three solicitors. This consisted of $5000 for a publication to the receptionist of the complainant's firm; $15,000, $15,000 and $30,000 in relation to an email sent to a home loan company complaining about the complainants' firm of solicitors; and $2,500, $2,500 and $10,000 in relation to a fax sent to the Office of the Legal Services Commissioner. (c)Trantum v McDowell [2007] NSWCA 138: an award of $50,000 in relation to a letter sent to 16 tenants alleging that their building manager was dishonest and incompetent. Although the matter was only published to sixteen people, the primary judge considered this an appropriate case for an award of aggravated compensatory damages. (d)SMEC Holdings Ltd v Boniface [2007] NSWSC 1402: a number of emails containing allegations of corruption and bribery against board members, sent to a limited number of recipients (between one and about 300). Damages of between $75,000 and $120,000 were awarded to the plaintiff corporation as compensation for damage to its business reputation. There was tangible evidence of damage to the plaintiff's reputation, as the World Bank undertook an investigation into the plaintiff's conduct. (e)Martin v Bruce (District Court of NSW, 2007): $25,000 for a publication to four people alleging dishonesty against a club secretary/manager. (f)Holmes v Fraser [2008] NSWSC 570: $70,000 for a letter from a member of NSW Parliament to 629 residents in the electorate of Coffs Harbour who had identified their occupation as "nursing", alleging that the plaintiff improperly used his position as General Secretary of the NSW Nurse's Association, and was more interested in pre-selection for a safe labour seat than helping nurses. Simpson J found that "there was little material on which to base an award of damages", given that the plaintiff was re-elected unopposed and took action to mitigate the effect of the letter. (g)PK v BV (No 2) [2008] NSWDC 297: $50,000 for each plaintiff for a publication to one person alleging theft. (h)Webster v Coles Myer Limited ; Thompson v Coles Myer Limited [2009] NSWDC 4: $70,000 for one plaintiff and $50,000 for the second plaintiff for allegations of dishonesty and fraud published to between one and three people. (i)Ryan v Premachandran [2009] NSWSC 1186: $80,000 awarded for an email to 14 parents about the principal of a primary school, alleging incompetence and dishonesty. 58In Higgins v Sinclair , the defendant published material on a website and sent an email to the UK and Australian distributors of a particular product. The material carried imputations of theft of intellectual property, negligence and dishonesty against two directors of the plaintiff company. The plaintiffs submitted that awards of damages in the range of $70,000 to $150,000 were appropriate. Johnson J awarded damages of $100,000 in favour of each plaintiff. 59As Ms Chrysanthou acknowledged, most of these examples involve individuals, where hurt feelings would have been taken into account for the purpose of damages. 60The plaintiff claims that the range of damages appropriate in this case is between $90,000 and $170,000. The plaintiff also seeks an award of 2% to 3% interest, payable up to judgment: s 100 Civil Procedure Act 2005; John Fairfax and Sons v Kelly (1987) 8 NSWLR 13. 61The plaintiff is a not-for-profit organisation whose resources are dedicated to the promotion of animal welfare and the prevention of animal cruelty. It relies on donations to operate. The plaintiff receives less than 2% in regular funding from the NSW Government, and no regular funding from the Federal Government. The organisation works with a broad section of the community, including all levels of government and a variety of interested groups including wildlife authorities, farmers and professional associations. It is heavily reliant upon its reputation to carry out its day-to-day functions. 62In all of these circumstances, I would assess damages at $100,000.00. Notwithstanding that the plaintiff is an organisation, the publication strikes at the heart of its functions and has a real capacity to affect the flow of revenue from donors in the wider community, even though a reduction in funding from private sources has not yet materialised. Injunctions 63The plaintiff also seeks injunctive relief. The plaintiff submits that injunctions are more important in defamation law now than they ever were, because of the internet. Publication of defamatory material can easily occur when someone enters the name of a person or company into a search engine and clicks on a link. 64In Higgins v Sinclair at [242]-[273], Johnson J accepted the principles that are again put by the plaintiff in this case. That is, in many cases of defamation damages are an adequate remedy. However in some cases a defendant may be likely to publish similar allegations unless restrained, despite having been afforded the opportunity to defend those allegations and despite those allegations having been found by a court of competent jurisdiction to be unwarranted. 65Additionally, the plaintiff submits that if a defendant wishes to repeat the defamatory allegations in the future, the onus should be on him to apply to the Court to be relieved of those orders. If an injunction was not granted, the plaintiff submits that the onus and expense would fall on it to commence proceedings, which would require leave under s 23 of the Act. That provision has not yet been considered by a court. 66The plaintiff submits that the Court should be satisfied that the allegations are false to "a certain degree" before awarding the injunctions. Injunctive relief in these proceedings 67The plaintiff submits that there is a real risk that the defendant will continue to repeat the imputations. In support of that proposition it points to the defendant's persistent past publications and his failure to respond to the concerns notices sent by the plaintiff. 68The plaintiff has issued a number of concerns notices to the defendant relating to other publications on his website. On 14 May 2010, the plaintiff's solicitors informed the defendant by email that there were errors in material that he had published. On 26 May 2010 an article was removed and replaced by a shorter article. The defendant did not respond to the email. 69Around 7 September 2010, the plaintiff's solicitors issued another concerns notice to the defendant, who did not respond. On 28 April 2010, Smyth Wozniak (the firm of solictors normally engaged by the plaintiff) attempted to serve further concerns notices to the defendant. The defendant appeared to have blocked that firm as senders. 70Some publications relating to the Ruth Downey matter remain on the website, including access to an "e-book" called "The Ruth Downey Inquisition". 71The plaintiff also states that the defendant's failure to respond to these proceedings evidences his disregard for requests made by the plaintiff that he cease publishing the allegations. Ms Chrysanthou stated that the "flavour" of the plaintiff's submissions was that the defendant had a vendetta against RSPCA NSW. 72The plaintiff submits that the primary basis on which it seeks the injunctions is the "mission of the RSPCA". It claims that the imputations attack the specific role that the RSPCA intends to perform, and that by accusing the RSPCA of being cruel to animals the website has a real tendency to affect the organisation's ability to raise funds to carry out its objectives. 73The plaintiff acknowledges that since service of the Statement of Claim the defendant has not published any new defamatory material on the "SOS-News" website about the plaintiff. However, the plaintiff states that a number of emails have been sent to subscribers which refer to the Ruth Downey matter. 74The defendant has also made a submission into the "Inquiry into the RSPCA raid on the Waterways Wildlife Park" (Legislative Council, General Purpose Standing Committee No 5, Report 32, September 2010). That submission refers to the investigation conducted by SOS News into the Ruth Downey matter. 75The plaintiff argues that the vehemence of the defendant's language in the matter complained of, and in other articles, supports the conclusion that the defendant will continue to defame the plaintiff unless he is ordered not to do so. 76The injunction sought by the plaintiff would have the effect that the defendant would have to remove any material that is "substantially to the same effect as any part of the matter complained of" from the internet site, and any historical versions of the internet site. While the material is still available for download, it might still be published in breach of the injunction: Dow Jones v Gutnik . 77In my view, the orders sought by the plaintiff are warranted. The medium of the publications and the extreme nature of the defendant's views create a real risk that the defendant will not desist, unless by order of a court. Orders (1)Damages in the sum of $100,000.00 (2)Interest on the judgment sum in the amount of 3%, as and from 18 April 2011. (3)An order that the matter complained of be permanently removed from the website or any other website controlled by the defendant (4)An order that the defendant be permanently restrained, by himself and/or his servants or agents from publishing any matter substantially to the same effect as any part of the matter complained of (5)An order that the defendant be permanently restrained, by himself and/or his servants or agents from publishing any of the imputations of and concerning the plaintiff found by the Court to be carried by the matter complained of, or any imputation that does not differ in substance to any of those imputations (6)Costs on an indemnity basis in accordance with s 40 of the Act