Aurisch v Wilson

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

DEFAMATION LIST

Case No. CI-20-02642

SHARRYN AURISCH	First Plaintiff
and
UNIQUE FRENCH BULLDOGS PTY LTD	Second Plaintiff
and
CHERYL WILSON	Defendant

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	22, 23, 24, 28, 29 and 30 March 2022
DATE OF JUDGMENT:	13 May 2022
CASE MAY BE CITED AS:	Aurisch & Anor v Wilson
MEDIUM NEUTRAL CITATION:	[2022] VCC 720

REASONS FOR JUDGMENT
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Subject:DEFAMATION
Catchwords:              Four publications – whether publications defamatory of the plaintiffs – defences of truth or substantial truth, qualified privilege, honest opinion – whether the alleged defamatory statements, either in their natural or ordinary meaning or by reason of extrinsic facts, was capable of bearing the imputations alleged in respect of each publication – aggravated damages – ordinary damages - costs
Legislation Cited:      Defamation Act 2005 (Vic); Domestic Animals Act 1994 (Vic)
Cases Cited:Australian Consolidated Press Ltd v Uren (1965-1966) 117 CLR 185; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474; Cables v Winchester[2018] VSC 392; Carson v John Fairfax & Sons Ltd & Slee (1993) 178 CLR 44; Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33; Roberts v Bass (2002) 212 CLR 1; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; Triggell v Pheeney (1951) 82 CLR 497
Judgment:                  For the plaintiffs against the defendant for damages in the sum of $115,000 including aggravated damages in the sum of $15,000.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J Levine	Matrix Legal
For the Defendant	The defendant appeared in person

HIS HONOUR:

The second plaintiff, Unique French Bulldogs Pty Ltd (“UFB”) operates a dog-breeding business (“the business”) from premises near Sale in Victoria. The business breeds and sells dogs known as French Bulldogs.
The first plaintiff (“Aurisch”) is the owner and sole director of UFB. Aurisch operates the business through UFB and has done so since about 2003.
UFB operates a Facebook page known as (“the UFB Facebook page”). The UFB Facebook page contained a section known as the Reviews page where persons could post reviews of various aspects of the business.
In March and April 2020, the defendant (“Ms Wilson”) published a number of posts on the UFB Reviews page.
The plaintiffs allege that each of those posts, the subject of this proceeding, are defamatory of them.
The plaintiffs’ claim in this proceeding is for:
(a)   Damages, including aggravated damages;
(b)   A permanent injunction restraining the defendant from publishing or causing to publish, whether by herself, her officers or employees or agents or otherwise howsoever, any material to the same purport or effect as the publications;
(c)   A mandatory injunction ordering the defendant to remove each of the publications referred to in the Third Further Amended Statement of Claim (the “Statement of Claim”) from the worldwide web;
(d)   Interest and costs.
I shall now deal with each of the publications or posts, the subject of this proceeding.
The First Publication
The plaintiffs alleged that from around 13 March 2020 until around April 2020, Ms Wilson published a post on the UFB Reviews page. The post by Ms Wilson, which I find was directed to Aurisch and UFB, reads as follows:
“… You have at least 100 dogs out with friends etc, Kcc will not have a bar of you, you are a puppy farmer on a mass scale, I have been there … .” [1]
[1]Paragraph 5 of the Statement of Claim; Exhibit 5.
The preceding post on the UFB Reviews page was from the plaintiffs in response to a post from a person named Jade and read as follows:
“Puppy farms are illegal … Jade you must be think (sic) of some on (sic) else?”[2]
[2]Exhibit 5.
It is clear that the post by Ms Wilson set out above is a response to the post by the plaintiffs referred to in the previous paragraph.
The plaintiffs allege that the first publication meant and was understood to mean that:
(a)   Aurisch is not a fit and proper dog breeder;
(b)   UFB operates an intensive dog-breeding facility under inadequate conditions, but fails to meet the dogs’ behavioural, social and psychological needs;
(c)   Aurisch is responsible for operating an intensive dog-breeding facility in inadequate conditions, that fail to meet the dogs behavioural, social and psychological needs;
(d)   Aurisch does not care for the wellbeing of dogs in her care;
(e)   [Withdrawn]
(f)    [Withdrawn]
(g)   UFB operates a business that is strongly opposed by the Royal Society for the Prevention of Cruelty to Animals Incorporated (“RSPCA”); and
(h)   Aurisch is not competent to care for dogs, in that she shows deliberate disregard for the RSPCA.
The plaintiffs rely on the following extrinsic facts[3]:
[3]        Paragraph 7 of the Statement of Claim.
(a)   “Kcc” refers to KCC Park operated by Dogs Victoria, being the State Dog Centre at 655 Westernport Highway, Skye, Victoria, 3977, as referred to on the website which:
(i)    holds dog events on most weekends of the year; and
(ii)is a body that acts pursuant to Victorian State Law under the umbrella of Dogs Victoria;
(b)     The contents of the webpage of the RSPCA at which includes the following statements:
(i)a puppy farm is defined as an intensive dog-breeding facility that is operated under inadequate conditions that fail to meet the dogs’ behavioural, social and/or physiological needs;
(ii)puppy farming is a major animal welfare issue in Australia;
(iii)the RSPCA is strongly opposed to puppy farming.
I am satisfied that these extrinsic facts were made out on the evidence of Aurisch and on an RSPCA document entitled “What is a puppy farm?”[4]
[4] Exhibit 2.
I ruled that the imputations alleged in paragraph 7, save for (e) and (f), were capable of being conveyed by the words contained in the publication to the ordinary reasonable reader.
Further, I ruled that the imputations were defamatory of the plaintiffs.
The Second Publication
The plaintiffs allege that in or around April 2020, Ms Wilson uploaded the following statement on the UFB review page.
“My partner is Unique French Bulldogs vet … I stand by Patricia and her daughter 100% I have seen all this and more.”[5] (the “Second Publication”)
[5]Paragraph 9(a) of the Statement of Claim.
The plaintiffs allege that the following extrinsic facts were relevant to the second publication.
(a)   Patricia Giampaolo had published on the UFB Reviews page on the same date the following:
“… I also had her vets partner call myself and my vet telling us all of her illegal activities that she did with her puppies.”[6]
[6]Paragraph 10(d)(i) of the Statement of Claim.
[The evidence disclosed that the plaintiffs’ veterinary surgeon at all relevant times was Dr David Lucas, who was the then partner of Ms Wilson. I am satisfied that the reference to “the information provided by her vets partner” was a reference to information provided by Ms Wilson.]
(b)   The reference to “Patricia” was a reference to Patricia Giampaolo who had purchased a puppy from the plaintiffs in January 2019 and had published complaints about the puppy on the UFB Reviews page in January 2019. Patricia and her daughter Carly had published posts, directed to the plaintiffs, at pages 3, 5, and 8 of the UFB Reviews page, as follows:
Carly - “Not to mention the $2,800 mum had to spend in a couple of weeks to keep this puppy alive. She [a reference to
Aurisch] fails to acknowledge the money my mother had to spend to improve her health. It even states in the report that her health could lead to DEATH – I even highlighted it. She still isn’t 100% because of this.”;[7]
[7]Paragraph 10(d)(ii) of the Statement of Claim.
Carly - “… Yes dogs do get worms. But not worms that are twice the length of the dog. The dog was VERY sick and that’s on you not us. Why can’t you just accept responsibility …”;[8]
[8]Paragraph 10(d)(iii) of the Statement of Claim.
Carly - “Also she did contact you to advise you of the dog’s health also and I’m pretty sure you were more interested in getting your money, rather than looking after the dogs health.”[9]
[9]Paragraph 10(d)(iv) of the Statement of Claim.
Carly - “Even if that was the case, why would she want to return the dog to a breeder like you? So you can sell the sick pup to another vulnerable family? I don’t think so.”[10]
[10]Paragraph 10(d)(iv) of the Statement of Claim.
(c)   Patricia Giampaolo had published at page 9 of the UFB Reviews page, directed to the plaintiffs:
“You moron you’re not getting your money back so f piss off. Your (sic) just a fraud who runs a puppy farm ….”[11]
(d)   Carly Giampaolo had published at page 14 of the UFB Reviews page, directed to the plaintiffs:
“You are more interested in getting your funds by comparing it to afterpay, than you are concerned about the dog’s health. Not once have you asked if the dog is ok. That in itself explains it all.”[12]
(e)   Carly Giampaolo had published at page 17 of the UFP Reviews page, directed to the plaintiffs:
“I can provide screen shots too. Even your VETS PARTNER has said how unhealthy your pups are on this post? Why can’t you respond to that? We have proof of the dog’s condition so you …”;[13]
[11]Paragraph 10(d)(v) of the Statement of Claim.
[12]Paragraph 10(d)(vi) of the Statement of Claim.
[13]Paragraph 10(d)(vii) of the Statement of Claim.
In paragraph 11 of the Statement of Claim, the plaintiffs allege that the second publication is defamatory of them, in that it meant, and was understood to mean, that:
(a)   Aurisch does not care for dogs;
(b)   Aurisch is not a fit and proper dog breeder; and
(c)   UFB operates a business that engages in abuse of dogs in its care.
“Particulars
The plaintiffs rely on the following extrinsic facts:
(A)     Patricia Giampaolo was the “Patricia” referred to as she had         bought a puppy from UFB;
(B)Patricia and/or her daughter Carly had posted complaints on the UFB Reviews page about the puppy that she bought from UFB; and
(C)Patricia and or Carly Giampaolo had made numerous posts on the UFB Reviews page relating to the puppy purchased from UFB at or around the same time as the Second Publication.”[14]
[14]Paragraph 11(d) of the Statement of Claim.
I am satisfied that these extrinsic facts were made out on the evidence.
I ruled that the imputations pleaded in parts (a), (b), and (c) of paragraph 11 of the Statement of Claim were capable of being conveyed by the words contained in the second publication to the ordinary reasonable reader.
Further, I ruled that the imputations were defamatory of the plaintiffs.
The key words of the second publication were those of Aurisch:
“I stand by Patricia and her daughter 100% I have seen all this and more.”
I ruled that these words carried the meaning that Ms Wilson adopted the comments made by Patricia and Carly Giampaolo in their complaints concerning Aurisch and the puppy purchased by Patricia from UFB and which were posted on the UFB Reviews page as set out above. I consider that Ms Wilson’s statement that she stood by Patricia and her daughter 100% meant and was understood to mean that Ms Wilson adopted the statements by Patricia and Carly including the statement that Aurisch was a fraud who runs a puppy farm.
The Third Publication
The plaintiffs allege that, in or around April 2020, Ms Wilson uploaded the following publication to the UFB Reviews page:
“(a) (Withdrawn)
(b) The pup would have got sick in your stinking nursery. I could not bear to be in there it stunk of putrid urine and ammonia from the urine that is way (sic) I stopped coming to help my vet partner I could not stand the smell”; [15]
(c) (Withdrawn)
[15]Paragraph 13(b) of the Statement of Claim.
The allegation is admitted by Ms Wilson in her Amended Defence dated 16 December 2020 (“the Amended Defence”).[16]
[16] Paragraph 13(b) of the Amended Defence.
In paragraph 14 of the Statement of Claim the plaintiffs plead extrinsic facts – namely that Patricia and Carly Giampaolo had purchased a puppy from the plaintiffs; had published a number of complaints about the puppy purchased on the UFB Reviews page; and that the Third Publication was published in response to those publications by Mrs and Ms Giampaolo (which publications were particularised by reference to paragraph 10 of the Statement of Claim).
The plaintiffs allege (following their withdrawal of parts (a) and (c) of paragraph 13 of the Statement of Claim) that the third publication meant, and was understood to mean, that:
(a)   The plaintiffs’ nursery stank of putrid urine and ammonia;
(b)   The condition of the nursery would have caused the puppy in question to get sick - [which I consider to be a clear reference to the puppy purchased by Patricia Giampaolo];
(c)   The plaintiffs’ nursery was not properly cleaned; and
(d)   Neither UFB nor Aurisch are fit and proper dog breeders.
I ruled that the imputations pleaded in paragraph 15 of the Statement of Claim were capable of being conveyed by the words contained in the Third publication to the ordinary reasonable reader.
Further, I ruled that the imputations were each defamatory of the plaintiffs.
Fourth publication
The plaintiffs allege that on or about April 2020, the following statements were uploaded onto the UFB Review page by Ms Wilson:
“(a)come on Sharyn, my partner is your vet and I help him with desex’s, you are full of lies every puppy that has come here for desexing have (sic) had poor dull coats, wormy bellies…”;
…
(b)“Its all from your poor management Sharyn this does not happen overnight, I have seen photos of the pup the day it was received it looked underfed and wormy.”;
…
(c)“Its all for money, he told her to desex a genetically bad dog that has a soft pallet problem, bad nose, can hardly breath, one eye and the good eye has been neglected he said she should not breed from the poor blind dog with bad genetics, he said find a loving home she said no, I paid $45,000 its not about the cost it about breeding with a dog with bad faults.”[17] (sic)
[17]Paragraphs 17(a)-(c) of the Statement of Claim.
The plaintiffs allege that the fourth publication meant, and was understood to mean, that:
(a)   Aurisch tells lies about the dogs in her care;
(b)   Aurisch does not take proper care of the dogs in her care;
(c)   Aurisch is not a fit and proper dog breeder;
(d)   Aurisch cares more for money than the wellbeing of dogs in her care;
(e)   [Withdrawn]
(f)    UFB engages in a business that puts its financial wellbeing above the interests of the animals in its care.
I ruled that the imputations pleaded in paragraph 19 of the Statement of Claim, save for the imputation contained in paragraph (e), were capable of being conveyed by the words contained in the Fourth publication to the ordinary reasonable reader.
Further, I ruled that those imputations were each defamatory of the plaintiffs.
Fifth Publication
The plaintiffs also claimed damages in respect of a fifth publication.[18] Eight imputations were alleged to arise from that publication[19] and were pleaded in paragraph 23 of the Statement of Claim. Early in the trial, counsel for the plaintiffs advised the Court that the plaintiffs did not rely upon any of the imputations set out in sub-paragraphs (b) to (h) but only upon the imputation set out in sub-paragraph (a) – that Ms Wilson was “mentally unstable”. Although such imputation would, I consider, be defamatory of her, I did not consider that it arose from the publication. I considered that the allegation that she was “an unstable lady” could give rise to the suggestion that she was merely inconsistent, erratic, emotionally changeable, or moody. I did not consider that it would suggest that she was mentally unstable which in turn would suggest that she was mentally unwell or suffered from some mental health problem.
[18] Paragraphs 21 to 24 of the Statement of Claim
[19] Paragraph 19 of the Statement of Claim.
It follows that I ruled that the imputation in (a) did not arise from the fifth publication. As a consequence, Counsel for the plaintiffs advised the Court that the plaintiffs did not rely upon the fifth publication in this proceeding. The allegations of defamatory publications were restricted to the first, second, third and fourth publications.
Defences
Ms Wilson pleaded a number of defences to the allegations.[20] She carried the onus of establishing in relation to each of the imputations pleaded, that on the balance of probabilities, one or more of these defences were made out.
[20] Paragraphs 8, 9, 10,11 of the Amended Defence.
The defences pleaded are:
(a) That the imputations (if defamatory) were substantially true and accordingly there was a defence at common law and also pursuant to s25 of the Defamation Act 2005 (“the Act”).
(b) The publications (if defamatory) were made on an occasion of Qualified Privilege at common law and/or Qualified Privilege pursuant to s30 of the Act.
(c) The publications (if defamatory) were made in circumstances giving rise to a defence of honest opinion pursuant to s31(3) of the Act.
The pleaded imputations relating to the four publications overlap and to a degree are repetitive. I consider the defamatory imputations relating to one or more of the four publications are:
(a)           Aurisch and UFB conducted a Puppy Farm and were    Puppy Farmers.
(b)           Aurisch and UFB operate an intensive dog breeding    facility under inadequate conditions that fail to meet the    dogs’ behavioural, social, and psychological needs.
(c)            Aurisch and UFB operate a business that is strongly    opposed by the RSPCA.
(d)           Aurisch is not competent to care for dogs in that she    shows deliberate disregard for the RSPCA.
(e)           Aurisch and UFB are not fit and proper dog breeders.
(f)            Aurisch and UFB operate a business that engages in    abuse of dogs in their care.
(g)           Aurisch tells lies about dogs in her care.
(h)           Aurisch cares more for money than the wellbeing of dogs    in her care.
(i)             The plaintiffs’ nursery stank of putrid urine and ammonia.
(j)             The condition of the nursery would have caused a pup to    get sick.
(k)            The Plaintiffs’ nursery was not properly cleaned.
I shall deal with each of the defences pleaded in turn.
Defence - Justification or Substantial Truth
Ms Wilson pleaded that, if the imputations were defamatory of the plaintiffs (which I have found each of them was), they were each true or substantially true, and that she had a defence at common law and/or pursuant to section 25 of the Act.
The imputations that I have found arise from the four publications can effectively be summarised as two broad categories:
(a) The plaintiffs are not fit and proper dog breeders. This category includes allegations that they do not care properly for dogs; that they are Puppy Farmers; they operate a puppy farm; they operate a business strongly opposed by the RSPCA; that the UFB nursery is not fit for breeding dogs; and that they abuse dogs.
(b) The complaints of Patricia and Carly Giampaolo concerning a puppy purchased from UFB, which complaints were adopted by Ms Wilson on the UFB Reviews page.
I am not satisfied that Ms Wilson has established any of these allegations are true or substantially true.
As regards the matters concerning the Giampaolo puppy, I am satisfied that this puppy had been purchased by Patricia Giampaolo from UFB in January 2019, about 15 months before Ms Wilson posted the four publications the subject of this proceeding.

Ms Wilson appeared surprised during the evidence of Aurisch to learn that the puppy had been purchased more than a year earlier than her posts. She said she had understood that the puppy had been purchased in or just before April 2020.
Ms Wilson was aware that the Giampaolo puppy had been seen from time to time by a vet named Dr Mannix, who practised in Sale. No evidence was called from Dr Mannix.
Dr David Lucas did give evidence, but he was not questioned by either party as to whether or not he had ever seen or treated the Giampaolo puppy.
Neither Patricia nor Carly Giampaolo was called to give evidence at the trial.
Ms Wilson appeared to base some of her opinions concerning the competence of Ms Aurisch or UFB to breed dogs upon her experiences when she accompanied Dr Lucas, who was then her partner, on visits to the plaintiffs’ premises where, on each attendance, she spent time in the puppy nursery. Her evidence was that she had visited the premises on four to five occasions between 2017 and 2019 – all well prior to her posts in or around April 2020, the subject of this proceeding. On each occasion that she attended the UFB premises, she was in the company of Dr Lucas.
At the trial, Ms Wilson called Dr Lucas as a witness. Dr Lucas has been the regular vet for UFB since 2011 until the current time. He had visited the UFB premises generally monthly but at least 8 times per year over that period. He gave no evidence suggesting that that Ms Aurisch or other UFB employees lacked competence in raising puppies or in breeding dogs generally or that they were not fit and proper dog breeders. He gave no evidence at all concerning the puppy purchased by Patricia Giampaolo. It is unclear whether he had ever treated that puppy.
In addition to evidence of Ms Aurisch and Dr Lucas, evidence was given by employees of UFB who had worked at UFB around April 2020 and for a varying number of years before then. Those witnesses were Amanda Beechey, Rose Langshaw, and Tracey Clavarino.
I found that Ms Aurisch and the witnesses to whom I have just referred were impressive individuals who I consider were honest and reliable witnesses. Where their evidence was inconsistent with evidence of Ms Wilson, I preferred their evidence to that of Ms Wilson.
The expression “Puppy Farming” is defined in a document published by the RSPCA entitled “What is a puppy farm?”[21] as:
“… an intensive dog breeding facility that is operated under inadequate conditions that fail to meet the dogs’ behavioural, social, and/or physiological needs.”
[21] Exhibit 2.
Puppy Farms are described in that document as:
“ … a major animal welfare issue in Australia. The main welfare problems associated with puppy farms include but are not limited to :
oExtreme confinement – in some cases breeding animals may never be allowed out of their cage to exercise, play, socialise, have companionship or even go to the toilet.
oInadequate veterinary care and general care (grooming and parasite control).
oUnhygienic living conditions.
oInadequate and overcrowded housing conditions.
oFrequent long-term health and/or behavioural problems in breeding dogs and puppies born in puppy farms as a result of the poor conditions they are bred in and a lack of adequate socialisation.[22]
[22] Exhibit 2 contains a reference to being updated on April 30, 2019. I infer that it was originally published prior to or, at the latest, on that date.
The document states that:
“RSPCA Australia is strongly opposed to puppy farming. We advocate regulation of the breeding supply and sale of companion animals to help set minimum standards and stamp out puppy farms.”
I find that the imputations that the plaintiffs were puppy farmers or that they operated a puppy farm were defamatory of them.
Aurisch and UFB denied that they operated a puppy farm. I accept the evidence of Aurisch, Dr Lucas, Ms Beechey, Ms Langshaw and Ms Clavarino that the breeding dogs and puppies were not unduly confined, that they were regularly allowed out of their cubicles and exercised and had good veterinary and general care. They each gave evidence that the dogs were raised in hygienic living conditions. I accept their evidence.
I find that there was no evidence to support the allegation that:
(a)           the plaintiffs operated a puppy farm or were puppy    farmers.
(b)           the plaintiffs operated a business that was strongly    opposed by the RSPCA.
(c)            the plaintiffs showed deliberate disregard for the RSPCA.
I reject the suggestion of Ms Wilson that the terms “puppy farm” or “puppy farmer” were not derogatory in the community or amongst persons with an interest in the breeding of dogs.
I accept that the breeding business conducted by UFB was a relatively large one. However, this does not mean, and could not, without evidence, be understood as meaning that the plaintiffs were puppy farmers or were not fit and proper dog breeders.
Ms Wilson posted that the nursery stunk of urine and ammonia from the urine, that is why she stopped coming to help her vet partner, and that she could not stand the smell. Her evidence was that, on each of the four or five occasions she had attended at the plaintiffs’ premises and, in particular, in the nursery area, she had been in the company of Dr Lucas. His evidence did not support that of Ms Wilson concerning the nursery odour or lack of hygiene.
Exhibit 1 consisted of a bundle of photographs mainly of the nursery area around the time of Ms Wilson’s posts. They showed a relatively modern area of about 10 metres in length and 5 metres in depth with 6 comfortably sized cubicles with air-conditioning. The nursery area consisted of a large modern room which contained 6 cubicles for 6 breeding females and her litter of pups to occupy. The evidence was that they were not always fully occupied but often were – that is, occupied by up to 6 adult females, each with a litter of puppies.
The nursery area appeared to be clean.
I appreciate that photographs taken on a particular date may not necessarily reflect the permanent or usual conditions of the nursery. However, the evidence of Aurisch, Dr Lucas, Amanda Beechey, Rose Langshaw, and Tracey Clavarino was that the nursery area was clean, suitable for breeding and did not smell offensively. Dr Lucas considered that all dog breeding areas did have, to some extent, an odour of dogs as one would expect. However he did not opine that this was over-powering or that the nursery area or other parts of the premises were dirty or in any way unfit to be used as breeding kennels. I accept the evidence of those witnesses.
I accept that at all relevant times the nursery area was equipped with exhaust fans and was regularly cleaned several times each day. I accept that for the time that the puppies were kept in the nursery area, they were not toilet trained - nor could that have been expected. It is likely that at various times during each day or night the nursery area would have smelt of dogs and sometimes of their urine and faeces. This, I consider, is likely to have been a normal and unavoidable feature of a puppy nursery.
Ms Wilson gave evidence that, on her four or five visits to the UFB premises , she saw no other employees present. I interpreted this evidence as an attempt to show that the kennels were not adequately staffed. I accept the evidence of Ms Aurisch ,Ms Beechey, Ms Langshaw and Ms Clavarino that at all times of the day from about 7.30 am to 6 pm, there were about six employees present at the facility which included the nursery area, and that this constituted adequate staff for the business. I accept the evidence of those witnesses in preference to the evidence of Ms Wilson.
There was extensive evidence from Aurisch and the employees of UFB to whom I have referred concerning the regular cleaning of the nursery area. I accept that they were regularly and adequately cleaned.
I accept that the only additions made to the nursery area since April 2020 have been minor decorative changes and the insertion of “doggy doors” linking every second cubicle. These doors enabled the breeding mothers to climb through into the adjoining cubicle enabling them to obtain a break from their ever-present puppies for a time.
To establish the truth of the allegation that the state of the nursery would have caused the pup (whether this was a reference to the Giampaolo puppy or some other puppy) to become sick, such evidence would have involved opinion evidence and would have had to be given by an appropriately qualified expert. There was no such expert evidence led at the trial. I am not satisfied this imputation was established as substantially true. I consider that Dr Lucas would have been suitably qualified to give evidence as to what conditions might have caused a puppy to become ill. However, he gave no such evidence. In addition there was no evidence concerning the health of the Giampaolo puppy at any time.
In summary, I am not satisfied that Ms Wilson has established, on the balance of probabilities, the truth or substantial truth of any of the imputations pleaded by the plaintiffs as arising from any of the four publications.
Defence – Qualified Privilege
In general, there is a defence of qualified privilege at common law on an occasion where the publication in question is:
(a)   made by the publisher in pursuance of a legal, social or moral duty to a person who has a corresponding duty or interest to receive it;
(b)   made for the protection or furtherance of an interest to a person who has a reciprocal or corresponding duty or interest to receive it; or
(c)   made to a person sharing a common interest.[23]
[23]        Defamation Law in Australia – P. George. 3^rd Ed.at 22.1
The reciprocity of the duty or interest is essential to give rise to the defence of qualified privilege.
The High court has said:
“The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it. Communications made on such occasions are privileged because their making promotes the welfare of society. But the privilege is qualified - hence the name qualified privilege - by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement.”[24] (Footnotes omitted.)
[24]Roberts v Bass (2002) 212 CLR 1 at paragraph [62][
In order to apply these principles, a court must make a close scrutiny of the circumstances of a case, of the situation of the parties, or the relations of all concerned, and which include the nature of the defamatory communication, the status or position of the publisher, the number of recipients and the nature of any interest they have in receiving, and the time, place and manner of, and reason for, the publication.[25]
[25]George, Defamation Law in Australia (3^rd ed, Nexus Butterworths, 2017) page 420.
I have taken into account, in relation to each of the four publications, that:
(a)   each publication was published on the relevant Facebook page on an internet domain registered in the name of UFB and to which the public at large had access;
(b)   the four publications were effectively available to any member of the public to access. I am satisfied that Ms Wilson would have had little knowledge of who might see and read them or how many persons might read them;
(c)   I am not satisfied that Ms Wilson had any duty (legal, social or moral) to publish any of the publications in question;
(d)   I am not satisfied that Ms Wilson has established that persons who read the posts had any duty or interest to receive them.
(e)   I am of the view that Ms Wilson published each of the publications with the intention of harming the business of the plaintiffs. The precise reason for that intention was not disclosed in the evidence. I note that Ms Wilson was not a dog breeder herself and was not in competition with the plaintiffs’ business. Nevertheless, I reject Ms Wilson’s evidence that she never intended to harm the plaintiffs.
(f)    Ms Wilson had attended at the plaintiff’s breeding premises on four or five occasions in the space of approximately two to three years. On each occasion, she was in the company of a veterinary surgeon, Dr Lucas. Dr Lucas gave evidence at trial that did not support the allegations made in any of the four publications. On the basis of his evidence, there were no grounds for her to conclude that the plaintiffs:
·   were not fit and proper dog breeders;
·   were puppy farmers;
·   had shown deliberate disregard for the RSPCA.
·   operated a business that was strongly opposed by the RSPCA.
·   did not care for dogs.
·   engaged in the abuse of dogs in their care.
·   bred dogs in a nursery which stank of putrid urine and ammonia.
·   bred dogs in a nursery which would have caused a puppy to become sick.
·   bred dogs in a nursery which was not property cleaned.
·   told lies about dogs in her care.
·   engaged in a business that put their respective financial wellbeing above the interests of animals in their care.
I am not satisfied that Ms Wilson has established that she had any duty or interest to publish any of the four publications.
Further, I consider that the identity and number of the recipients of the four publications cannot be precisely established. I can infer from the Facebook page posts that various others including Mrs and Ms Giampaolo and women by the names of Jade and Dom were likely to have read Ms Wilson’s posts.
I am not satisfied it has been established by Ms Wilson that the recipients of the publications, being persons who read them, had any reciprocal duty (legal, social, or moral) or interest to receive such publications.
Defence – Qualified Privilege (Statutory)
The defendant also alleged that she had a defence of qualified privilege for the publication of any defamatory matter in the four publications, pursuant to s30 of the Defamation Act 2005 (Vic). To establish that statutory defence, the Act provides that the defendant must prove that:
(a)   The recipient has an interest or apparent interest in having information on some subject; and
(b)   The matter is published to the recipient in the course of giving to the recipient information on that subject; and
(c)   The conduct of the defendant in publishing that matter is reasonable in the circumstances.
Section 30(2) of the Act provides that a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest. [My emphases].
Ms Wilson was unable to recall the dates of her four or five visits to the UFB premises and importantly, when she had last attended there before her posts were published.
Section 30(3) provides that in determining whether the conduct of the defendant in publishing a matter about a person is reasonable in the circumstances, a Court may take into account the following circumstances:
(a)   the seriousness of any defamatory imputation carried by the matter published – I consider the imputations were serious and that there was a real prospect that the Business would be detrimentally affected.
(b)   the extent to which the matter published distinguishes between suspicions, allegations and proven facts – I consider that, in general, the posts failed to make it clear whether the comments in them were factual or opinions;
(c)   the nature of the business environment in which the defendant operates – Ms Wilson was not involved in any business in April 2020;
(d)   whether it was appropriate in the circumstances for the matter to be published expeditiously – there was no urgency or need for expeditious posting as disclosed by the evidence;
(e)   any other steps taken to verify the information in the matter published – Ms Wilson appears to have made no enquiries of Aurisch, Dr Lucas, Dr Mannix Mrs or Ms Giampaolo or any of the UFB staff before posting the posts the subject of this proceeding.
In all the circumstances, I have come to the conclusion that the conduct of Ms Wilson in publishing these posts was not reasonable.
It is my view that she had no reasonable grounds for suspecting or believing any of the defamatory remarks published by her concerning the plaintiffs. True it is that she had visited the plaintiffs’ premises and been present in the nursery area at the time of such visits. She was derogatory of the plaintiffs in her comments that the nursery premises were “stinking”, caused one or more dogs to become ill, and were not properly cleaned. Further, in the fourth publication she referred to Ms Aurisch as telling lies about dogs in her care and not taking proper care of them.
She gave evidence that pens outside had dirt floors. However there was no evidence from a vet or anyone else that such a facility was unsuitable for breeding dogs. Her evidence was that the smell in the nursery area was overwhelming and that cubicles had not been cleaned when she arrived. She said there were no exhaust fans in the nursery area. I accept the evidence of the plaintiffs and their witnesses referred to above that the cubicles were cleaned on several occasions during each day and that exhaust fans were installed and functioning. Even if I accepted Ms Wilson’s evidence that she personally found the smell in the nursery to be overwhelming, I do not accept that such evidence would establish the allegation made by her that the facilities were inadequate, or that there was maltreatment or inadequate care on the part of the plaintiffs of breeding dogs or puppies at the premises. The evidence of Dr Lucas provided no support for those allegations. Ms Wilson appears to have made no enquiries of another local vet, Dr Mannix, who had treated the puppy purchased by Mrs Giampaolo from UFB. He was not called to give evidence. She did not call either of Patricia or Carly Giampaolo to give evidence.
It follows that I do not consider that the defence of qualified privilege, whether at common law or pursuant to s30 of the Defamation Act 2005, is made out in respect of any of the publications.
Defence – Honest Opinion – s31(3) Defamation Act 2005
Section 31(3) of the Act provides that it is a defence to the publication of defamatory matter if the defendant proves that —
(a)   the matter was an expression of opinion of a person rather than a statement of fact; and
(b)   the opinion related to a matter of public interest; and
(c)   the opinion is based on proper material.
I do not consider that Ms Wilson established that the publications were matters of public interest.
In any event, the defence is only available if the opinion of the publisher is based on proper material.
Section 31(5) of the Act provides that an opinion is based on proper material if:
(a)   the material on which it is based is —
(i)set out in specific or general terms in the published matter; or
(ii)notorious; or
(iii)accessible from a reference, link or other access point included in the matter (for example, a hyperlink on a webpage); or
(iv)otherwise apparent from a context in which the matter is published; and
(b)   the material —
(i)is substantially true; or
(ii)was published on an occasion of absolute or qualified privilege (whether under the Act or at general law); or
(iii)was published on an occasion that attracted the protection of a defence under this section (s31) or ss28 or 29.[26]
[26]        Neither of ss28 (dealing with public documents) or 29 (dealing a fair report of proceeding of public        concern) apply here.
I am not satisfied that the defendant has established that she based her opinions, the subject of any of these imputations, on any proper material.
It would seem that much of her opinions were based on posts uploaded to the UFB Facebook page by one or other of Patricia or Carly Giampaolo. The substance of those posts was that Patricia had purchased a French bulldog puppy from the plaintiffs and that it had been unwell with worms requiring veterinary treatment. Ms Wilson had never seen or examined the Giampaolo puppy. She had merely seen a photograph of it. She had no veterinary qualifications and no expertise in the examination of dogs or medical diagnoses of dogs.

There was no veterinary evidence that the Giampaolo puppy had any health issues at any time. The posts by Ms Giampaolo implied that one or more veterinary surgeons had inspected the puppy and treated it. However, no such evidence was put before the Court. Further, there was no evidence from either Patricia or Carly Giampaolo at the trial.
In the circumstances, I am not satisfied that Ms Wilson’s opinions concerning any of her opinions expressed in the four publications, the fitness of the plaintiffs to engage in the business, the suitability of the plaintiffs’ premises for the breeding of dogs, the health of the Giampaolo puppy or any other dogs at the plaintiffs’ premises, were based on proper material.
There was no evidence which, in my opinion, could lead to a conclusion that such opinions contained in the publications were based on “proper material” as defined in accordance with s31(5) of the Act. It is therefore not necessary for me to deal with issue as to whether the statements made in the publications were statements of opinion rather than statements of fact.
Conclusion
It follows from the above paragraphs that I am not satisfied that any of the defences relied upon by the defendant are made out.
It follows that there will be Judgement for the plaintiffs against the defendant.
Damages
The purposes of an award of damages in a defamation proceeding are:
(a)     to provide consolation for hurt to the feelings of the defamed person;
(b)     to compensate the defamed person for damage to his or her reputation; and
(c)     to vindicate that person’s reputation.[27]
[27]        Carson v John Fairfax & Sons Ltd & Slee (1993) 178 CLR 44 at [32].
The assessment of general damages is necessarily imprecise and, accordingly, damages are at large.[28]
[28] Rogers v Nationwide NewsPty Ltd (2003) 216 CLR 327 at [65].
The level of damages ought to reflect the high value that the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment.[29]
[29] Hockey v FairfaxMedia Publications Pty Ltd (2015) 237 FCR 33 at [446]
Nevertheless, s34 of the Act provides that in determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
Matters to be taken into account by the court include the extent and seriousness of the defamatory sting of the publications.
Here the extent of the publications was limited. The publications were made on the review page of the plaintiffs’ Facebook page. Unlike a case involving a newspaper, it is not possible to assess with any real accuracy the number of persons who might potentially have read the publications. The evidence of Ms Aurisch was that the page had some 53,000 followers. The defendant did not take issue with this. It does not follow of course that that number of persons read the publications.
I find that the page would likely have been read on occasions by persons with an interest in the breeding of dogs and, in particular the breeding and sales of French Bulldogs. It seems likely to me that many persons who followed the page would be contemplating the purchase of a French Bulldog and were seeking information concerning the identity of breeders and general information about that breed of dog and of the breeders of them.
It is accepted that the first publication was published on the page on 13 March 2020 and the second, third and fourth publications on a date in April 2020. The evidence of the defendant was that all relevant publications were removed from the page on 10 May 2020. It follows that the first publication was on the page for just under two months whilst the second, third, and fourth publications were able to be read on the page for a period likely to be between two and four weeks.
These periods are not fleeting. Readers would have had ample opportunity to read and follow the matters the subject of the publications. It is likely, in my opinion, that persons considering whether or not to purchase a French Bulldog from the plaintiffs would have been concerned to read the posts concerning them and likely to have followed the posts with interest over the time that they were up.
The imputations are serious especially when one takes into account that the plaintiffs are and were professional breeders and sellers of French Bulldogs.
Although there was no evidence of how many French Bulldogs were bred and sold in Victoria in 2020 or over the years that followed by the plaintiffs or by breeders in general, the evidence of Ms Aurisch was that she spent in excess of $200,000 in marketing her business around the relevant time. There was no evidence of the number of French Bulldogs in Victoria over the period. I can however infer that the plaintiffs’ business was relatively substantial from the number of staff employed to care for and tend to the dogs at their facility.
It is also appropriate for me to take account of the “grapevine effect”. This principle has been applied by courts to acknowledge that the publications are regularly spread beyond those persons who saw the publications for themselves.
Publication of defamatory material to one person is sufficient to give rise to a cause of action by the defamed person against the publisher. Here I am satisfied that the posts were published to a substantial number of persons who had an interest in the breeding and/or purchase of French Bulldog puppies and a particular interest in the plaintiffs’ breeding business.
I reject the claim made by the defendant in paragraph 48 of her Further Amended Defence, that: “Further, the circumstances of the publication (sic) were such that the plaintiffs was (sic) unlikely to sustain any harm and they have a defence of triviality pursuant to s33 of the Defamation Act 2005 (Vic).”
It is not clear from that paragraph whether that pleading related to all of the five publications originally pleaded by the plaintiffs or only to the Fifth Publication.
In any event I do not consider that any of the imputations pleaded could be described as trivial. Nor do I consider that circumstances of the publication or publications were such that the plaintiffs were unlikely to sustain any harm.
I find that the very nature of the of the four publications, the subject of the claim, and the imputations arising from each of them, was likely to harm and did harm the reputation of the plaintiffs. I reject the triviality defence.
I take into account that no claim here is made by the plaintiffs for special damages in the nature of lost or diminished income.
In paragraph 46 of the Further Amended Defence it is pleaded that:
“Further, … the defendant will give evidence in mitigation of damages that it (sic) made an apology to the plaintiffs in respect of the matter complained before the commencement of the action,”
Particulars of that allegation were:
“The apology was on or around 29 May 2020 and was by telephone. No request for a public apology online was made.”
In final submissions made by the defendant on 5 May 2022, the defendant stated to the court that the proposed apology put forward by the plaintiffs for her to make was not satisfactory to her because the content of it was prepared by the plaintiffs and did not consist of her words.
It was clear from those submissions and from submissions made by Counsel for the plaintiffs the parties had indeed discussed the idea of the defendant making an apology to the plaintiffs with regard to the publications, it is clear that the parties could not reach any agreement concerning the content of such apology.
I should add that it would be unusual and usually inappropriate for there to be evidence before the court as to any unsuccessful settlement negotiations between the parties.
There was no evidence as to any apology being made by the defendant to the plaintiffs. However, in her oral submissions to the court, she submitted that some discussions had occurred between she and the plaintiffs as to a proposed apology, but no agreement was reached concerning it. Even if the plaintiffs were demanding an unacceptable apology from the defendant there would be no restraint on the defendant making an appropriate and reasonable apology to them. Given that the defamatory material was posted to a publicly accessible Facebook page, it might be expected that any apology would be made on the same or similar site.
I am not satisfied that there was any “apology” made by the defendant within the meaning of that term in s38(1) of the Act.
I am not aware of any other matters going in mitigation of damages.
Aggravated Damages
Damages may be increased as a consequence of the aggravating conduct of the defendant at the time of publication of defamatory material or if the conduct is improper, unjustifiable, or lacking in bona fides.[30] Malice on the part of the defendant is not necessary.[31]
[30] Triggell v Pheeney (1951) 82 CLR 497, at 514.
[31] Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 497
In a case where the plaintiff knows the imputation is false, the hurt to his or her feelings is increased by that knowledge. The trial presents the opportunity for the plaintiff to “nail the lie” and express the aggravation caused by it.[32]
[32] Defamation Law in Australia – P. George 3^rd Ed. at [34.2]; Australian Consolidated Press Ltd v Uren (1965-1966) 117 CLR 185, at 205.
The plaintiffs claim aggravated damages particularised as follows:[33]
(a)     The defendant had no genuine belief in the truth of the words at the time they      were published;
(b)     the defendant published the words for the purpose of injuring the plaintiffs’          reputations, which purpose can be inferred from the content of those          publications and the surroundings circumstances;
(c)     the defendant has refused to apologise to the plaintiffs for publishing the          publications.
[33]        Statement of Claim paragraph 25.
The defendant gave evidence regarding her belief in the truth of the words published by her. Her belief concerning the state of the plaintiffs’ breeding facility was, she said, based on her five or six visits to the facility with her then partner Dr Lucas in 2018-19. As detailed earlier in this Judgment, I accept the evidence of Ms Aurisch and the witnesses Beechey, Langshaw, and Clavarino. As previously stated, I preferred their evidence to that of the defendant where there was conflict. I did so firstly because I found Ms Aurisch and her witnesses to be impressive and credible witnesses. Secondly, the only witness called by the defendant was Dr Lucas. He had visited the facility on numerous occasions prior to, during and after the period of the publications. He gave no evidence that:
(a)     the state of the breeding facility was inadequate;
(b)     the plaintiffs were at any time operating a Puppy Farm;
(c)     the plaintiffs were not fit and proper dog breeders.
Dr Lucas was a qualified veterinary surgeon whose evidence concerning any problems with the facility (had there been any) I would have given considerable weight.
I do not accept that the defendant had a genuine belief in the truth of the imputations pleaded by the plaintiffs in respect of the first, second, third and fourth publications. I find that the words referring to those imputations were not published honestly. At the very least, they were published recklessly and without making any proper investigations.
With regard to the imputations concerning the puppy owned by Mrs Giampaolo, I make the following findings:
(a)     The defendant had never sighted the puppy prior to any of the publications nor          since, let alone examined the puppy for any illness or abnormality. She had          seen a photograph of what she assumed to be Mrs Giampaolo’s puppy about a year before the publications. There was no evidence that it was a photograph        of her puppy. There was no evidence as to the condition of Mrs Giampaolo’s puppy as at the date of the publications.
(b)     The puppy had been purchased by Mrs Giampaolo approximately a year before the publications by the defendant.
(c)     The defendant had been of the belief that Mrs Giampaolo had purchased the          puppy shortly before the date of the publications and she considered she had      been misled by Mrs Giampaolo about the date of that purchase.
(d)     The defendant’s partner Dr Lucas gave no evidence of ever having seen or          examined the puppy purchased by Mrs Giampaolo;
(e)     The defendant made no attempt to contact Mrs Giampaolo prior to publishing      any of the material to establish the truth or otherwise of the material concerning       the puppy purchased by her.
Further, having heard all of the evidence presented at trial, the defendant did not withdraw any of her published remarks. At one point in her evidence she did state that she had never intended to upset or hurt Ms Aurisch.
Nevertheless, in her written submissions she maintained her allegations concerning the truth or substantial truth of all of the imputations of her publications.
In short, the evidence at the trial did not establish any reason that I was able to discern as to why the defendant made the publications containing the defamatory material of the plaintiffs. The evidence did not disclose the defendant was a competitor of the plaintiffs; did not disclose any prior hostility between the defendant and the plaintiffs; and did not disclose any prior dealings of any nature between the defendant and the plaintiffs. The reason, if any, for her publications remains a mystery.
In those circumstances I consider that an award of aggravated damages is warranted.
Quantum of Damages
I consider that matters relevant to quantum of damages are or at least include the following:
(a)     The defamatory remarks were serious and made in circumstances where they      were not necessary or genuine.
(b)     The remarks suggested not merely inefficiency or lack of ability on the part of       the plaintiffs but also included an element of animal cruelty about them in the           sense of being understaffed, caring for money for themselves rather than for          caring for the dogs and their health.
(c)     Although no claim is made by the plaintiffs for economic loss, the nature of           the defamatory remarks was likely to cause persons who read the publications        to think less of the plaintiffs and their puppy breeding enterprise.
In her written submissions, the defendant submitted that no damages should be awarded in favour of the plaintiffs. However, it seems that the basis of that submission was her belief that she had good defences to the plaintiffs’ claims.
As referred to earlier in this Judgment , I concluded that none of the defences referred to in her Defence were made out.
Taking all of the circumstances into account, I have come to the conclusion that damages should be awarded to the plaintiffs in the sum of $115,000 which sum includes aggravated damages in the sum of $15,000.
I shall award those sums to both plaintiffs on a joint and several basis. I accept that Unique French Bulldogs Pty Ltd was and is an “excluded corporation” as defined in s9 of the Act at the time of the publications. Such was admitted by the defence.
Interest
I shall award interest on the judgment pursuant to s60 of the Supreme Court Act 1986. The section provides that interest shall be awarded by the Court at such rate not exceeding the rate for the time being fixed under s2 of the Penalty Interest Rates Act 1983 as the Court thinks fit from the commencement of the proceeding until the date of Judgment over and above the damages awarded.
That penalty interest rate has been fixed at 10 % per annum since 2017. However I have some discretion as to the rate at which interest is to be awarded. The rate to be fixed by me is a rate not exceeding 10% per annum. I consider that I can take judicial notice that commercial rates of interest since that time in Victoria have been far less than 10% p.a. In the original Statement of Claim, there was no claim for Aggravated damages; dates of the four publications were not alleged. There were substantial amendments to the Statement of Claim on 7 September 2020. In the circumstances, I shall award interest from 7 September 2020 (the date of the substantial amendment of the claim) until 13 May 2022 at the rate of 3% per annum. I note that this was the rate at which interest was to be calculated in the matter of Cables v Winchester.[34]
[34] [2018] VSC 392
Costs
I shall order that the defendant pay the costs of the plaintiffs of and incidental to this proceeding (including any reserved costs) on a standard basis in accordance with the rules of the County Court. In the event that the parties are unable to agree on the quantum of such costs, those costs are to be determined by the Costs Court in accordance with this Order.
Stay
I order that there be a stay of payment of damages (including interest) and costs for 30 days from this date.
Injunction sought by Plaintiffs
Although the plaintiffs seek in their prayer for relief a permanent injunction restraining the defendant from publishing or causing to be published any material to the same purport or effect as the publications, written submissions filed with the court and signed by their solicitors make no reference to any claim for any permanent injunctive relief.
Regardless, I am of the view that the plaintiffs have not made out a case for such relief. There is no evidence pointing to a risk of any further publishing of defamatory remarks concerning the plaintiffs or either of them.
The evidence was that the publications were all removed from the Facebook page almost exactly two years ago and have not been repeated. There was no evidence of any likelihood of such a repeat.
Orders
It follows that I shall make the following Orders:
1)Judgement for the plaintiffs for damages in the sum of $115,000 (including aggravated damages in the sum of $15,000) together with damages in the nature of interest in the sum of $5,796,[35] a total Judgement sum of $120,796.
[35] Calculated at the rate of 3% per annum from 7 September 2020 up to and including 13 May 2022.
2)The defendant is to pay the plaintiffs’ costs of and incidental to the proceeding on a standard basis to be determined by the Costs Court in default of agreement between the parties.
3)There be a stay of 30 days in respect of payment of damages and costs.

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[2022] VCC 720

13 May 2022