Edwards v Nine Network Australia Pty Limited (No 5)

[2024] FCA 422

FEDERAL COURT OF AUSTRALIA

Edwards v Nine Network Australia Pty Limited (No 5) [2024] FCA 422  

File number(s):

NSD 129 of 2022

Judgment of:

WIGNEY J

Date of judgment:

26 April 2024

Catchwords:

DEFAMATION – where defamatory imputations allegedly conveyed by a television program called “A Current Affair” and accompanying articles about dispute concerning the ownership of a supposedly Instagram famous dog named Oscar  – the wondrous life and times of Oscar the cavoodle  – where alleged imputations included theft and financial exploitation of Oscar and delay of related court proceedings – whether alleged imputations carried or conveyed by the publications – held that most of the imputations were conveyed

DEFAMATION – defence of justification – whether substantially true that the applicant “stole” Oscar  – where the applicant obtained possession of the dog by a deception  –  whether applicant had an honest claim of right  – defence not established – defence of contextual truth  – contextual imputations not substantially true and any damage caused by them would not have “swamped” the damage caused by other imputations  

DAMAGES – extent of damages for non-economic loss – whether aggravated damages should be awarded – whether pre-publication conduct can be considered for aggravated damages – where defamatory publications damaged applicant’s reputation and caused hurt to feelings and distress to applicant – mitigation or reduction of damages as a result of disreputable conduct on the part of the applicant - applicant awarded compensatory and aggravated damages

Legislation:

Federal Court of Australia Act 1976 (Cth) s 51A Companion Animals Act1998 (NSW) ss 7, 12A

Crimes Act 1900 (NSW) ss 117, 118, 132

Defamation Act 2005 (NSW) ss 4, 8, 25, 26, 34, 35

Defamation Amendment Act 2020 (NSW)

Gazette No 250, 9 June 2023, p 15

Cases cited:

Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 at 165-66; [1998] NSWSC 4

Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225

Australian Broadcasting Corporation v McBride [2001] NSWCA 322; (2001) 53 NSWLR 430

Barilaro v Google LLC [2022] FCA 650

Barker v R (1983) 153 CLR 338

Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154.

Bristow v Adams [2012] NSWCA 166

Broome v Cassell & Co Ltd [1972] AC 1027

Burstein v Times Newspapers Ltd [2000] EWCA Civ 338; [2001] 1 WLR 579

Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44

Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335

City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477

Corby v Allen & Unwin Pty Ltd (2014) 108 NSWLR 431; [2014] NSWCA 227

Coyne v Citizen Finance Limited (1990 – 1991) 172 CLR 211

Crampton v Nugawela (1996) 41 NSWLR 176

Cripps v Vakras [2014] VSC 279

Cross v Queensland Newspapers Pty Limited [2008] NSWCA 80

Croton v The Queen (1967) 117 CLR 326

Dennis v Dennis (1971) 124 CLR 317

Donoghue v Coombe (1987) 45 SASR 330

DPP v Gomez [1993] AC 442; [1993] 1 All ER 1; (1992) 96 Cr App R 359

Duma v Fairfax Media Publications Pty Ltd (No 3) [2023] FCA 47

Edwards v Nine Network Australia Pty Limited [2022] FCA 509

Edwards v Nine Network Australia Pty Ltd (No 2) [2022] FCA 1332

Fairfax Media Publications Pty Ltd v Zeccola (2015) 91 NSWLR 341

Flegg v Hallett [2015] QSC 167

Foster v The Queen (1967) 118 CLR 117

Harris v Harrison [1963] Crim LR 497

Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1

Hibbert v McKiernan [1948] 2 KB 142

Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33

Howden v “Truth” & “Sportsman” Ltd (1937) 58 CLR 416

Ilich v The Queen (1986-1987) 162 CLR 110

John Fairfax Publications v Rivkin (2003) 77 ALJR 1657 at [27]; [2003] HCA 5

Kumova v Davison (No 2) [2023] FCA 1

Lewis v Daily Telegraph Ltd [1964] AC 234

McMahon v John Fairfax Publications Pty Limited (No 3) [2012] NSWSC 196

Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643

Nassif v Seven Network (Operations) Ltd [2021] FCA 1286

Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 422

John Fairfax Publications Pty Ltd v O’Shane (No 2) [2005] NSWCA 291

Palmer v McGowan [2021] FCA 430

Pamplin v Express Newspapers Ltd [1988] 1 WLR 116

Plato Films Ltd v Speidel [1961] AC 1090

Praed v Graham (1889) 24 QBD 53

R v Baruday [1984] VR 685; (1984) 13 A Crim R 190

R v Cameron (1924) 24 SR (NSW) 302

R v Josifovski [2006] ACTSC 30

R v Lawrence [1997] 1 VR 459; (1996) 138 ALR 487

R v Love (1989) 17 NSWLR 608

R v Nundah (1916) 16 SR (NSW) 482

R v Salvo [1980] VR 401

Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16

Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327

Rush v Nationwide News (No 7) [2019] FCA 496

Schiff v Nine Network Australia Pty Ltd (No 2) [2022] FCA 1120

Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15

StockCo Agricapital Pty Ltd v Tucki Hills Pty Ltd [2022] FCA 929

Sutherland v Stopes [1925] AC 47

Toyota Finance Australia Ltd v Dennis; Tekitu Pty Ltd v Dennis (2002) 58 NSWLR 101; [2002] NSWCA 369

Triggell v Pheeney (1951) 82 CLR 497

Turner v News Group Newspapers Ltd [2006] 1 WLR 3469

Wagnerv Harbour Radio Pty Ltd [2018] QSC 201

Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58

Webster v Brewer [2020] FCA 1343

Whelan v John Fairfax Publications Pty Ltd [2002] NSWSC 1028

Williams v Phillips (1957) 41 Cr App R 5

Woolworths v Waverly Council [1999] NSWSC 308; 103 LGERA 227

Division:

General Division

Registry:

New South Wales

National Practice Area:

Other Federal Jurisdiction

Number of paragraphs:

464

Date of hearing:

12-20 December 2022, 27-28 March 2023

Counsel for applicant

S Chrysanthou SC with N Olson and T Smartt

Solicitor for applicant

Giles George

Counsel for respondents

D Sibtain SC with C Roberts

Solicitor for respondents

Bird & Bird

ORDERS

NSD 129 of 2022

BETWEEN:

GINA EDWARDS

Applicant

AND:

NINE NETWORK AUSTRALIA PTY LIMITED

First Respondent

TCN CHANNEL NINE PTY LIMITED

Second Respondent

STEVE MARSHALL

Third Respondent

ORDER MADE BY:	WIGNEY J
DATE OF ORDER:	26 APRIL 2024

THE COURT ORDERS THAT:

1.Within 14 days of delivery of this judgment, the parties provide the Court with agreed or competing short minutes of order providing for:

(a)judgment to be entered in favour of the applicant in the sum of $150,000, together with such prejudgment interest (if any) as either agreed or contended by the parties respectively; and

(b)any other order or orders necessary to finalise the matter, as either agreed or contended by the parties respectively, including in respect of any injunctive relief and costs.

2.The matter be for listed for a case management hearing at 9.30 am on 16 May 2024 for the purpose of either:

(a)the entry of judgment in favour of the applicant and the making of final orders if the parties are able to reach agreement as to the outstanding issues and the appropriate final orders; or

(b)the making of procedural orders and the listing the matter for a further hearing to hear and determine argument in respect of any and all outstanding issues.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

TABLE OF CONTENTS

THE PUBLICATIONS	[12]
The first broadcast	[13]
The first article	[23]
The second broadcast	[30]
The second article	[37]
THE ALLEGED DEFAMATORY IMPUTATIONS	[38]
Defamatory imputations allegedly conveyed by the first broadcast	[39]
Defamatory imputations allegedly conveyed by the first article	[41]
Defamatory imputations allegedly conveyed by the second broadcast	[43]
Defamatory imputations allegedly conveyed by the second article	[45]
ISSUE ONE: DID THE PUBLICATIONS CARRY THE IMPUTATIONS?	[47]
Imputations carried by the first broadcast	[53]
Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle	[54]
Ms Edwards, a barrister, stole Oscar the cavoodle for her own financial benefit	[65]
Ms Edwards, a barrister, deliberately delayed a court case about Oscar	[69]
Ms Edwards, a barrister, exploited Oscar for her own financial benefit	[72]
Imputations carried by the first article	[75]
Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle	[76]
Ms Edwards, a barrister, stole Oscar the cavoodle for her own financial benefit	[82]
Ms Edwards, a barrister, exploited Oscar for her own financial benefit	[85]
Imputations carried by the second broadcast	[89]
Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle	[90]
Ms Edwards, a barrister, adopted delay tactics so as to prolong her unlawful possession of Oscar	[94]
Ms Edwards, a barrister, deliberately delayed a court case about Oscar	[97]
Ms Edwards, a barrister, failed to fulfil her obligation to appear in court in relation to her AVO application against Mr Gillespie	[99]
Imputations carried by the second article	[104]
Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle	[105]
Ms Edwards, a barrister, adopted delay tactics so as to prolong her unlawful possession of Oscar	[108]
Ms Edwards, a barrister, deliberately delayed a court case about Oscar	[109]
Ms Edwards, a barrister, failed to fulfil her obligation to appear in court in relation to her AVO application against Mr Gillespie	[110]
Summary of conclusions concerning the imputations	[111]
ISSUE TWO: WERE THE IMPUTATIONS DEFAMATORY?	[118]
ISSUE THREE: WERE THE IMPUTATIONS SUBSTANTIALLY TRUE?	[123]
Relevant statutory provisions and principles	[125]
Overview of the parties’ claims and counterclaims	[131]
The Publishers’ case	[132]
Ms Edwards’ case	[146]
The offence of larceny and stealing	[152]
Witness demeanour and credibility	[162]
Did Ms Edwards steal Oscar?	[175]
Did Mr Gillespie agree with Ms Edwards and Mr Flavell at the outset that they would be co- owners of Oscar?	[178]
Did Ms Edwards and Mr Flavell otherwise acquire ownership or possessory rights concerning Oscar?	[200]
Did Mr Flavell abandon Oscar when he left him in the care and custody of Mr Fidler and Ms Angeli?	[220]
Did Ms Edwards genuinely and honestly believe that she had the legal right to obtain possession of Oscar?	[231]
When did Mr Hodgson give the advice?	[236]
What was Mr Hodgson told by Ms Edwards?	[240]
What advice did Mr Hodgson give Ms Edwards?	[252]
What did Ms Edwards believe about her rights to Oscar following the receipt of Mr Hodgson’s advice?	[265]
Did the account of the facts concerning Oscar that Ms Edwards gave Mr Hodgson include any facts which Ms Edwards knew to be false or misleading?	[267]
Was the belief Ms Edwards held based on Mr Hodgson’s advice honestly and genuinely held?	[281]
Was Mr Hodgson’s advice correct?	[285]
Did Ms Edwards and Mr Flavell obtain possession of Oscar by fraud or deception?	[297]
Did Ms Edwards have an intention to permanently deprive Mr Gillespie of ownership or possession of Oscar?	[308]
Conclusion: Ms Edwards did not steal Oscar	[317]
Did Ms Edwards steal Oscar for her own financial benefit?	[324]
CONCLUSION IN RELATION TO THE PUBLISHERS’ JUSTIFICATION DEFENCE	[330]
ISSUE FOUR: THE PUBLISHERS’ DEFENCE OF CONTEXTUAL TRUTH	[331]
Relevant statutory provisions and principles	[333]
The alleged contextual imputations	[339]
Were the contextual imputations carried by the publications?	[341]
Were the contextual imputations substantially true?	[350]
Did the contextual imputations “swamp” the defamatory imputations?	[356]
Conclusion in respect of the defence of contextual truth	[359]
CONCLUSION IN RELATION TO THE PUBLISHERS’ LIABILITY	[360]
ISSUE FIVE: DAMAGES	[361]
Relevant principles - general or compensatory damages	[362]
Relevant principles – aggravated damages	[370]
Extent of publication	[377]
Damage to Ms Edwards’ reputation	[382]
Hurt and distress suffered by Ms Edwards	[400]
Was Ms Edwards’ hurt aggravated by the Publishers’ conduct?	[410]
Mitigation or reduction of damages	[437]
What is the appropriate award of damages in Ms Edwards’ case?	[450]
ISSUE SIX: OTHER RELIEF	[461]
DISPOSITION AND ORDERS	[463]

REASONS FOR JUDGMENT

WIGNEY J:

1. A Current Affair is a television program produced and broadcast by, respectively, Nine Network Australia Pty Limited and TCN Channel Nine Pty Limited.  In late May and early June 2021, two episodes of A Current Affair included a story which, broadly speaking, concerned a dispute about the ownership and custody of a supposedly famous cavoodle dog named Oscar.  The reporter who was primarily responsible for the presentation of that story was Mr Steve Marshall.  The broadcasts were both followed up by articles which were made available for viewing on a website and various social media platforms associated with Nine Network, TCN Channel Nine or A Current Affair.  The articles reproduced, in text and still image form, material sourced from the broadcasts.  Nine Network, TCN Channel Nine and Mr Marshall will be collectively referred to as the Publishers in these reasons unless it is necessary to identify them separately or individually.

2. The broadcasts and articles were largely based around claims by a man named Mr Mark Gillespie that he was the rightful owner of Oscar, and that a woman named Ms Gina Edwards and her husband Mr Ken Flavell, who were said to be Oscar’s “dog-sitters”, had refused to return Oscar to Mr Gillespie.  That dispute had remarkably found its way into the Supreme Court of New South Wales, having previously been the subject of proceedings commenced by Ms Edwards in both the Local Court and the District Court.  Mr Gillespie claimed that Ms Edwards, who was a barrister, had delayed those court proceedings.  Mr Gillespie also claimed that, while Oscar was in their custody while he was overseas, Ms Edwards and Mr Flavell had exploited and “monetised” the dog by establishing an Instagram account and obtaining endorsements from pet food companies.       

3. The two A Current Affair broadcasts were, it would be fair to say, sensationalist, if not hyperbolic.  The articles were not much better.  It would also not be unfair to say that both the broadcasts and the articles portrayed Ms Edwards in a most unfavourable light.  Mr Marshall’s sarcastic and pun-laden commentary throughout the broadcasts mostly sided with Mr Gillespie’s version of events and disparaged and demeaned Ms. Edwards. 

4. In the first broadcast, Mr Marshall is first shown pursuing Mr Flavell down the street while he was walking Oscar and peppering him with questions about who owned Oscar.  After outlining Mr Gillespie’s claim that Ms Edwards was a dog-sitter who had refused to return his dog to him, Mr Marshall, with a camera crew in tow, confronted Ms Edwards while she was with Oscar in a park.  He was soon joined by Mr Gillespie, no doubt as pre-arranged by Mr Marshall.  Ms Edwards was clearly distressed, particularly when Mr Gillespie in due course took possession of Oscar.  As the A Current Affair anchor had said in her introduction to the story, the ensuing and entirely predictable fracas between Ms Edwards and Mr Gillespie had to be “seen to be believed”.  The first article provided a narrative account of what was said to be the “extraordinary scenes” in the dog park between Mr Gillespie, referred to as Oscar’s “registered owner”, and Ms Edwards, who was somewhat disparagingly described as a barrister and dog-sitter.   

5. In the second broadcast, Mr Marshall is shown meeting up with Mr Gillespie outside Manly Local Court.  Mr Gillespie was said to be attending that court in answer to an apprehended violence order (AVO) that Ms Edwards had “slapped” on him following the previous emotional scenes in the dog park.  Many of those scenes were reprised during the second broadcast.  Ms Edwards and Mr Flavell were said by Mr Marshall to be “no shows” at court, which Mr Gillespie claimed to be consistent with a pattern of behaviour on the part of Ms Edwards involving “delay tactics”.  Following their court outing, Mr Marshall and his camera crew were then shown asking after Ms Edward at her chambers and home.  The second article provided a narrative recount of the entire Oscar affair, including the fact that the “dog-sitting barrister” had been a “no show” at court that day.

6. Ms Edwards commenced this proceeding against the Publishers claiming that she had suffered loss and damage as a result of several defamatory imputations allegedly carried by the broadcasts and articles.  Those imputations included, in summary, that Ms Edwards, a barrister: was a thief who stole Oscar; had stolen Oscar for her own financial benefit; had deliberately delayed a court case about Oscar; had exploited Oscar for her own financial benefit; had adopted delay tactics so as to prolong her unlawful possession of Oscar; and had failed to fulfil her obligation to appear in court in relation to her AVO application against Mr Gillespie. 

7. The Publishers defended the defamation action.  They denied that the broadcasts and articles carried the alleged defamatory imputations, denied that some or all of the imputations were defamatory, and raised positive defences under the Defamation Act 2005 (NSW) and common law. They pleaded that the alleged imputations which concerned Ms Edwards stealing Oscar were substantially true and that they therefore had available to them the defence of justification pursuant to s 25 of the Defamation Act and the common law. They did not mount any justification defence to any of the other imputations. The Publishers also claimed that the broadcasts and articles conveyed other contextual imputations which were substantially true, and that the other imputations that were carried by the broadcasts and articles did not cause any further harm to Ms Edwards’ reputation. They therefore claimed that they had available to them the defence of contextual truth in s 26 of the Defamation Act.

8. To determine Ms Edwards’ defamation action, it is first necessary to determine whether the defamatory imputations that Ms Edwards claims were carried by the broadcasts and articles were in fact carried.  What would the ordinary reasonable viewer or reader have understood the words and images in the broadcasts and articles to mean, either literally, or through implication or inference? 

9. If the alleged imputations which included the assertion that Ms Edwards stole Oscar are found to have been carried, the next issue to determine is whether those imputations were substantially true.  The resolution of that issue is unfortunately by no means straightforward.  The parties adduced voluminous evidence which traversed the wondrous life and times of Oscar the dog, including the nature of the arrangements between Mr Gillespie and Ms Edwards and Mr Flavell concerning the care and custody of Oscar which gave rise to the ownership dispute and the circumstances in which Ms Edwards came to obtain possession of Oscar.  Unfortunately, a good deal of the evidence was of, at best, marginal relevance and concerned tangential factual issues, such as whether Ms Edwards and Mr Gillespie were referred to as Oscar’s “Mommy” and “Papi” (spoiler alert: they were not in fact Oscar’s biological parents) and whether Oscar had somehow been abandoned because he was being treated like a “country dog” while he was being cared for by Mr Gillespie’s family in the Southern Highlands.

1. Irrespective of the findings concerning the truth of the stealing imputations, it will next be necessary to consider and determine whether the broadcasts and articles conveyed the alleged contextual imputations, whether the contextual imputations that were conveyed were substantially true, and whether the contextual imputations that were substantially true were such that no further damage was caused to Ms Edwards’ reputation by the other imputations carried by the publications that were not found to be substantially true.  It should be noted, in this context, that the Publishers ultimately did not appear to contend that their contextual truth defence could succeed if it was found that the imputations concerning Ms Edwards stealing Oscar were carried and that those imputations were not substantially true.    

2. Finally, if it is found that some, or all, of Ms Edwards’ pleaded imputations were carried by the publications and were defamatory, and none of the Publishers’ defences succeed, it will be necessary to quantify the loss and damage suffered by Ms Edwards.                  

   THE PUBLICATIONS

3. Section 8 of the Defamation Act provides that a “person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter”. As has already been noted, Ms Edwards’ claim concerns four separate publications, each of which she claimed contained several defamatory imputations. While the general nature of the publications was described earlier, it is necessary to first provide a slightly more detailed description of them before addressing the question whether the publications carried the imputations that Ms Edwards claimed they did.

   The first broadcast

4. The first broadcast was a story which appeared in the episode of A Current Affair which was broadcast on 24 May 2021.  That story was introduced by the A Current Affair anchor in the following terms:

   Oscar the cavoodle is one popular pooch. Not only does he have thousands of fans, he’s also sparked an all out war between two former friends fighting over Oscar’s ownership.  But what happened in the dog park has to be seen to be believed.

5. The story then begins with Mr Marshall referring to the fact that the tranquillity of Kirribilli, a suburb of Sydney, had been “torn apart when a feud between three former friends erupted over the custody of a famous cavoodle”.   Mr Marshall then introduces the main players in that feud by showing short film clips of Mr Gillespie, Ms Edwards, and Mr Flavell and then rhetorically asking Oscar who he would rather live with – “Daddy Mark” [Mr Gillespie], “Aunty Gina” [Ms Edwards] or “Uncle Ken” [Mr Flavell].  The clip of Ms Edwards is unflattering.  It depicts her telling a camera operator to stop filming her.  Further unflattering clips of Ms Edwards, taken from the melee in the dog park, are then shown.  Mr Gillespie is seen holding Oscar and is heard to say, as Ms Edwards approaches: “I’m just collecting my property, thank you”; and Mr Marshall is heard to say to Ms Edwards: “Is that the owner of Oscar?” 

6. In a voiceover, Mr Marshall then says: “The dogs of war.  These canine carers won’t give up this prized pup without a fight”.  The reference to the “canine carers” is an apparent reference to Ms Edwards and Mr Flavell. 

7. After some further chaotic scenes from the dog park are shown, an exchange between Mr Marshall and Mr Gillespie provides the following context as photographs of Mr Gillespie, Oscar, Ms Edwards, and Mr Flavell are shown (SM is Mr Marshall and MG is Mr Gillespie):

   SM: Mark, Gina, and her husband Ken, were the best of mates. Bonded, by their love for cute cavoodle, Oscar. Mark bought and raised Oscar. Gina and Ken dog sat the pup while Mark was working on cruise ships. The dog-sitters ramped up Oscar's Instagram account. The famous furball had over 10,000 followers. Oscar starred in TV shows and operas on the harbour.

   MG: If you say sit or stop or stay or eat this or don't eat that or hold this he will. So he's a perfect Instagram model.

   SM: Mark claims while he was away on the high, seas, Gina and Ken were living the high life rolling in endorsements from pet companies.

   MG·:She never wanted him as a visit as a pup, she wanted to exploit and monetize him. I just want my dog, to be a dog.

   SM: Mark was on a cruise ship when Gina torpedoed his world, that she was keeping Oscar and wouldn't be returning his pooch.

   MG: Heartbroken instantly and didn't think that she would do that to me I mean, he's my dog.

   SM: It triggered a long and bitter doggy dispute which has ended up before the NSW Supreme court. 

8. Mr Marshall is then shown approaching Mr Flavell in the street.  Mr Marshall says that he had just “bumped into Ken [Flavell] while he and Oscar were stretching their legs”.  Mr Marshall asks Mr Flavell: “Isn’t this Mark’s dog?”.  The following exchange then occurs (KF is Mr Flavell):

   KF:     What do you mean is this Mark’s dog?

   SM:      Did Mark pay for this dog?

   KF:      This is a decision that’ll be made in the court.

   SM:      Is this about money?

   KF:      This has never been about money.

9. Mr Marshall then says, in a voiceover, that Mr Gillespie claimed that Ms Edwards “keeps delaying the court case”.  He then suggests that he “spotted” Mr Gillespie in Kirribilli “scouring the streets for his beloved pooch” and that soon after he just happened to come upon Ms Edwards at the dog park.  Ms Edwards is then seen running away from Mr Marshall and his camera team and is heard to say: “Call the police please, I’m being harassed”. 

10. The rather chaotic and fraught encounter between Ms Edwards and Mr Marshall only got worse when Mr Gillespie was seen arriving on the scene and Ms Edwards calls for Oscar to come.  Mr Gillespie is then seen hugging Oscar affectionately.  Oscar appears to be happy to see Mr Gillespie, his tail wagging furiously.  It is at about this point that the exchange, referred to earlier, occurs, with Mr Gillespie saying that he was just collecting his property and Mr Marshall asking Ms Edwards whether Mr Gillespie was Oscar’s owner. 

11. Further chaotic scenes between Mr Gillespie and Ms Edwards are then depicted.  The following exchange occurs (GE is Ms Edwards):

    GE:     I can’t believe you did this.

    MG:     What! I can’t believe you took him in the first place.

    GE:     There is a court case pending.

    …

    MG:     You’re delaying, delaying, delaying.

    GE:     You cannot take him.

    MG:     He’s my property.

    GE:     You cannot take him.

    MG:     You keep delaying and delaying and delaying.

12. The following exchange between Mr Marshall and Ms Edwards then occurs:

    SM:      Why do you believe you’re the rightful owner?

    …

    GE:      I understand what you’re doing, I’m calling the lawyer.

    SM:      You’re a lawyer.

    GE:      I’m a barrister.

    SM:      Aren’t you running your own case on this?

    …

    SM:      Gina’s a qualified barrister.

13. Some heated exchanges between Mr Gillespie and a “fellow cavoodle lover”, identified as Anne, are then shown.  Anne is shown trying to retrieve Oscar from Mr Gillespie.  Mr Marshall notes that Anne “looks after Oscar when Ken and Gina are at work”.  In response to Anne’s claim that Mr Gillespie had not seen Oscar for a long time, Mr Gillespie asserts that Ms Edwards had been hiding Oscar and moving him from house to house.  The police then arrive.  Mr Marshall says that the police decide that Mr Gillespie can take Oscar, but Mr Gillespie is then heard to say that, after the “incident”, he had decided that it was better to leave Oscar with Ms Edwards.

    The first article

14. The first article first appeared on the “9 Now” website on 24 May 2021.  It was also made available on a Twitter account bearing the handle @ACurrentAffair9 on the same day.  Mr Marshall was said to be the author of the article.  The article appeared under the byline “‘He’s my dog’: Cavoodle custody battle sees man snatch pooch in park”.

15. The article effectively provided a narrative running account of the incident in the dog park which had been the subject of the first broadcast.  It opened as follows:

    The Sydney suburb of Kirribilli is best known for playing home to the Prime Minister among well-to-do neighbours.

    But its tranquillity was torn apart when a feud between former friends erupted over the custody of an Instagram-famous Cavoodle that played out in front of A Current Affair cameras.

    Oscar found himself at the centre of an extraordinary game of fetch in the dog friendly Milsons Park, as Gina Edwards chased down Mark Gillespie, who was clutching the confused pooch.

16. There is then a photograph of Mr Gillespie holding Oscar above the caption: “Mark with cavoodle Oscar, who he gave to friends to care for while working away”.  The article then continued:

    Accusations and insults flew between Sydney barrister Gina and Mark, a cruise ship director, in a commotion that drew in other dog owners who’d been enjoying a glass of bubbles.

    The extraordinary scenes came after an 18-month standoff in which Mark claims Gina stole Oscar from him.

    Mark Gillespie is the registered owner of Oscar, and Gina Edwards and her husband used to dog-sit the pooch when he travelled for work.

17. There is then a photograph of Ms Edwards above the caption: “While Mark was away, Gina and Ken became devoted to Oscar, asking Mark if they could take over the dog’s Instagram account – he has more than 10,000 followers”.   The article then continued:

    The dog-sitters ramped up Oscar's Instagram to a point where he appeared in TV shows and the Opera on Sydney Harbour, as products and endorsements from pet companies rolled in.

    Mark claims, while he was away for work in late 2019, Gina took Oscar for a TV shoot and wouldn’t return him.

    The pair's lawyers have been battling it out ever since with the case now before the NSW Supreme Court.

    A Current Affair approached Gina in the dog park who turned her back on Oscar and ran from the camera crew, calling out to her friends to call the police.

18. There is then a photograph of Ms Edwards apparently calling out to Mr Gillespie, who is shown holding Oscar, above the caption: “Mark says he owns Oscar, but Gina says he is ‘not legally entitled’”.  The article then continued:

    To everyone’s surprise Mark appeared out of nowhere.

    Despite their time apart, Oscar recognised him instantly, ran to him, licked his face and wagged his tail uncontrollably.

    Gina realised what was happening and chased Mark around the perimeter of the park as he carried Oscar in his arms.

    "Don't you dare, don't you dare" Gina screamed.

    Mark ran from Gina and tripped over a tree root.

    "Get away from me. He’s my dog,” Mark yelled back.

19. There is then a photograph of Oscar above the caption: “Oscar the dog is the subject of a custody battle”.  The article then continued:   

    Gina’s friend Anne tried to snatch Oscar from Mark’s arms.

    "Do not touch me,” Mark screamed as he whirled away from the clutching Anne.

    Other dog owners circled as nine police officers arrived including the Kirribilli Station Commander, who is probably more used to dealing with the PM’s security detail rather than a doggy dust up.

    "You used the police to take him away 'from me, you can’t use them to take him back,” Mark told Gina.

20. There is then another photograph of Mr Gillespie holding Oscar, apparently taken at an earlier and happier time, above the caption: “Oscar the dog with owner Mark”.  The article then concluded as follows:

    Night fell, leaving everyone wondering just who this Oscar would go to?

    The next day Mark told A Current Affair, police gave him the okay to take Oscar as he is still the registered owner and he was technically back in possession of his property.

    However, Gina was beside herself, so Mark put Oscar on the ground and allowed her to take him back.

    "I decided to be the better person in the situation, but Oscar is much loved and I’ll fight for him in court and follow the due process," he said.

    Following the incident, Gina filed for an AVO against Mark which will chew up more valuable court time which will be heard next month.

    The second broadcast

21. The second broadcast was a story which appeared in the episode of A Current Affair which was broadcast on 1 June 2021.  It was effectively a follow-up to the first broadcast.  The anchor that evening introduced the story as follows:

    It’s the custody twist that no one saw coming. The dispute over much-loved Oscar the dog was today played out in the court instead of the dog park.  And Steve Marshall was there.

22. The story then commenced with a replay of some of the footage from the dog park which was aired in the first broadcast.  Mr Gillespie is then shown walking to, and arriving at, a courthouse along with two others.  Mr Marshall’s commentary to that footage, along with interposed footage taken from the dog park incident, was as follows:

    What a difference a week makes. Mark Gillespie arriving at court today on the heel of his team after that incredible chaos over Oscar the cavoodle in Sydney's Kirribilli.

    …

    Mark saw it as a reunion with Oscar. Gina, who gave chase, feared it was a dog knapping. The battle for the Instagram famous furball between Gina, a Sydney barrister –

    [interposed footage of Ms Edwards in the dog park]

    Her hubby Ken –

    [interposed footage of Mr Flavell walking]

    And cruise ship director Mark –

    [interposed footage of Mr Gillespie in the dog park]

    Had already reached the New South Wales District and Supreme Courts.  After this dog’s breakfast, Gina slapped Mark with an AVO, heard today at Manly Local Court.

23. Mr Gillespie is then shown outside court.  He states that it was wonderful to hold Oscar, an apparent reference to the time he held Oscar in the dog park the previous week.  He also says that he was happy that Oscar was affectionate towards him because “he’s my dog”.  In a voiceover, Mr Marshall then continued:

    Mark had a barrister and a solicitor in tow. Gina and Ken were no shows. No sign of Oscar either. Still, Mark found some solace, given it was court companion dog day at Manly local court. He really does have a way with the pooches.

    Mark's not surprised, he said it's a pattern of behaviour he's seen from Gina over the past eighteen months involving delay tactics.

24. Mr Marshall then asks rhetorically: “Where’s Gina and Ken?”.  The footage in the dog park, where Mr Gillespie is seen accusing Ms Edwards of “delaying, delaying, delaying” the court case, is then replayed.

25. Mr Marshall is then seen visiting the chambers where Ms Edwards conducted her practice as a barrister.  She is said not to be there.  He is also shown knocking on a door said to be Ms Edwards’ home.  Nobody answers.  Mr Marshall says, somewhat sarcastically, “must have taken Oscar for a walk”.  Further footage from the dog park incident is then replayed.

26. Mr Marshall concludes his story as follows:

    Remember, police allowed Mark to take Oscar that night because he’s still the dog’s registered owner. But Mark relinquished the lead, allowing this drama to play out in the courts at Gina's request.   

27. The anchor concludes the story as follows:

    Well, we will keep turning up in court and that matter’s set to be heard in the Local Court next month while the other matter also involving Oscar in the Supreme Court is set down for August. We’ll keep you updated.

    The second article

28. The second article first appeared on the 9 Now website on 1 June 2021.  The author of the article was said to be “A Current Affair Staff”.  The article appeared under the byline “New twist in cavoodle custody battle”.  The body of the article (not including photographs and captions) was as follows: 

    A week after a chaotic scene played out at a Sydney dog park over Oscar the cavoodle, the registered dog owner was forced to take a walk to court today.

    Last week, Instagram famous Oscar was caught in the middle of a bitter custody feud between two former friends with a dog chase playing out at a Kirribilli park in front of A Current Affair’s cameras.

    The 18-month standoff began after the registered dog owner and cruise ship director Mark Gillespie claimed dog sitter and Sydney Barrister Gina Edwards stole Oscar from him.

    He said Mrs Edwards refused to give back the cavoodle when he returned home. after working away.

    When A Current Affair reporter Steve Marshall arrived at the dog park to ask Mrs Edwards about the dognapping accusations Mr Gillespie appeared out of nowhere, taking Oscar in his arms.

    Which was when Mrs Edwards took chase, with police then called to the scene.

    "Mark you are going to be arrested stop it," Mrs Edwards shouted at the registered dog owner, last week as he attempted to stumble away with Oscar – tripping over a tree root.

    Police eventually gave Mr Gillespie the okay to take Oscar, but seeing Ms Edwards beside herself at the time, the registered owner allowed the dog sitter to take the cavoodle back.

    "I decided to be the better person in the situation, but Oscar is much loved, and I'll fight for him in court and follow the due process," he told A Current Affair at the time.

    Their feud had already reached the NSW District and Supreme Courts.

    But after last week’s dogs’ breakfast at the dog park, Mrs Edwards then slapped Mr Gillespie with an AVO which was heard today at the Manly Local Court.

    Mr Gillespie arrived at court on the heal of his legal team, but dog-sitting barrister, Mrs Edwards, and her husband Ken were no shows and there was no sign of Oscar either.

    “As far as the proceedings go, we didn't accept some points of the AVO so it's going to just be a continuing thing, keep on going,” Mr Gillespie said.

    After Mrs Edwards failed to appear at court, A Current Affair looked for her at work, at home and at her local dog park, where all the fur had previously hit the fan.

    But Mrs Edwards and Oscar were nowhere to be seen.

    While police allowed Mr Gillespie to take Oscar last week because he’s still the dog’s registered owner, Mr Gillespie relinquished the lead, allowing the drama to play out in the courts as Mrs Edwards had requested.

    And while Mrs Edwards was a no show today, the matter will be heard back in court next month.

    THE ALLEGED DEFAMATORY IMPUTATIONS

29. Ms Edwards alleged that each of the publications carried several defamatory imputations.

    Defamatory imputations allegedly conveyed by the first broadcast

30. Ms Edwards alleged that the first broadcast carried the following defamatory imputations, or imputations that did not differ from them in substance:

    (a)Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle;

    (b)Ms Edwards, a barrister, stole Oscar the cavoodle for her own financial benefit;

    (c)Ms Edwards, a barrister, deliberately delayed a court case about Oscar; and

    (d)Ms Edwards, a barrister, exploited Oscar for her own financial benefit.

31. The Publishers denied that the first broadcast carried any of those imputations and denied that the imputations (or at least imputations (c) and (d)), if carried, were defamatory of Ms Edwards. 

    Defamatory imputations allegedly conveyed by the first article

32. Ms Edwards alleged that the first article carried the following defamatory imputations, or imputations that did not differ from them in substance:

    (a)Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle;

    (b)Ms Edwards, a barrister, stole Oscar the cavoodle for her own financial benefit; and

    (c)Ms Edwards, a barrister, exploited Oscar for her own financial benefit.

33. The Publishers denied that the first article carried any of those imputations and denied that the imputations (or at least imputation (c)), if carried, were defamatory of Ms Edwards.

    Defamatory imputations allegedly conveyed by the second broadcast

34. Ms Edwards alleged that the second broadcast carried the following defamatory imputations, or imputations that did not differ from them in substance:

    (a)Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle;

    (b)Ms Edwards, a barrister, adopted delay tactics so as to prolong her unlawful possession of Oscar;

    (c)Ms Edwards, a barrister, deliberately delayed a court case about Oscar; and

    (d)Ms Edwards, a barrister, failed to fulfil her obligation to appear in court in relation to her AVO application against Mr Gillespie.

1. The Publishers denied that the second broadcast carried any of those imputations and denied that the imputations (or at least imputations (c) and (d)), if carried, were defamatory of Ms Edwards.

   Defamatory imputations allegedly conveyed by the second article

2. Ms Edwards alleged that the second article carried the following defamatory imputations, or imputations that did not differ from them in substance:

   (a)Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle;

   (b)Ms Edwards, a barrister, adopted delay tactics so as to prolong her unlawful possession of Oscar;

   (c)Ms Edwards, a barrister, deliberately delayed a court case about Oscar; and

   (d)Ms Edwards, a barrister, failed to fulfil her obligation to appear in court in relation to her AVO application against Mr Gillespie.

3. The Publishers denied that the second article carried any of those imputations and denied that the imputations, if carried, were defamatory of Ms Edwards.

   ISSUE ONE: DID THE PUBLICATIONS CARRY THE IMPUTATIONS?

4. The first issue that must be addressed is whether the publications conveyed any or all of the defamatory imputations that Ms Edwards alleged they conveyed.

5. There was, or appeared to be, no real dispute between the parties concerning the principles to be applied in determining whether the alleged defamatory imputations were carried.  The applicable principles were summarised in the following terms in Rush v Nationwide News (No 7) [2019] FCA 496 at [72]-[85]:

   First, the applicant … bears the onus of proving, on the balance of probabilities, that the alleged defamatory meanings or imputations were conveyed by the publication in question.

   Second, the question of whether the defamatory meanings were in fact conveyed is a question of fact.

   Third, the relevant question is whether the publication would have conveyed the alleged meanings to an ordinary reasonable person. Where, as here, the publications are in writing, the question is what the words used would have conveyed to the ordinary reasonable reader. The Court is required to put itself in the shoes of, or assume the role of, the ordinary reasonable reader.  The question is not a question of construction of the words used in the article in the legal sense.

   Fourth, in this context the authorities ascribe the ordinary reasonable reader with certain character traits, qualities or characteristics. The ordinary reasonable reader is variously said to be of fair to average intelligence, experience and education.  The ordinary reasonable reader is also taken to be fair-minded and neither perverse, morbid nor suspicious of mind, nor “avid for scandal”.  Of course, as the High Court pointed out in Trkulja at [31], ordinary men and women in fact have different temperaments, outlooks, degrees of education and life experience, so the exercise is really one of “attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning”.

   Fifth, the meaning that the words would convey to the ordinary reasonable reader is often called “the natural and ordinary meaning” of the words.  In some cases, the natural and ordinary meaning of the words may be obvious from the direct or literal meaning of the words themselves. More often than not, however, the question turns on what implications or imputations the ordinary reasonable reader would understand were conveyed by the words.

   Sixth, in determining what implications or imputations the ordinary reasonable reader would understand or draw from the words, the authorities suggest that the ordinary reasonable reader should generally be taken to approach or consider a publication in a particular way or ways.  The ordinary reasonable reader is, for example, said not to be a lawyer who examines the publication overzealously, but rather someone who views the publication casually and is prone to a degree of “loose thinking”. The ordinary reasonable reader also apparently does not live in an “ivory tower” but can and does “read between the lines” in light of their general knowledge and experience of worldly affairs. While they do not search for hidden meanings or adopt strained or forced interpretations, they nevertheless draw implications, especially derogatory implications, more freely than a lawyer would.  While they read the entire publication and consider the context as a whole, they take into account emphasis that may be given by conspicuous headlines or captions.

   Seventh, the mode or manner of publication can be a relevant matter in determining what was conveyed to the ordinary reasonable reader. The ordinary reasonable reader of a book, for example, is likely to read it with more care than he or she would read an article in a newspaper, particularly if that article is sensational. The ordinary reasonable reader of such an article is more prone to engage in loose thinking. That is all the more so where the words which are published are imprecise, ambiguous, loose, fanciful or unusual.

   Eighth, as already adverted to, each alleged defamatory imputation has to be considered in the context of the entire publication.  It does not follow, however, that each part of the publication must be given equal significance.  A headline, for example, may give the reader a predisposition about what follows and may therefore assume particular importance: John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at [187]; (2003) 201 ALR 77 at [187]; [2003] HCA 50 at [187] (Callinan J; Gleeson CJ agreeing at [1]; Heydon J agreeing at [219]; see too McHugh J at [26]). Equally, contrary statements in an article will not necessarily or automatically negate the effect of other defamatory statements contained in the article: Rivkin at [26] (per McHugh J) and the cases there cited.

   Ninth, the meaning that an ordinary reasonable reader would attribute to a publication, or the impression that the reader forms, may be influenced by the overall tone or tenor of the article in question. The article may, for example, be tinged with, or even pregnant with, insinuation or suggestion.  It may also implicitly invite the reader to adopt a suspicious approach. As Gleeson CJ observed in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137:

   It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong.

   Tenth, the natural and ordinary meaning of words may be either the literal meaning, or an implied or inferred or an indirect meaning based on the general knowledge of the ordinary reasonable reader: Jones v Skelton [1963] 1 WLR 1362 at 1370; [1963] 3 All ER 952 at 958F. General knowledge, in this context, includes ““matters of universal notoriety” – that is to say, matters which any intelligent viewer or reader may be expected to know”: Fox v Boulter [2013] EWHC 1435 (QB) at [16] (citing Lord Mansfield CJ in R v Horne [1775-1802] All ER Rep 390 at 393E). Evidence is not admissible to prove the general knowledge of the ordinary reasonable reader: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506-507.

   Eleventh, the determination of what an ordinary reasonable reader would read into or imply from the words complained of is often a matter of impression.

   Twelfth, while a publication may in some cases be reasonably capable of bearing more than one meaning, the tribunal of fact, whether it be a jury or a judge sitting alone, must ultimately determine whether the alleged defamatory meaning was in fact the single natural and ordinary meaning of the words complained of: Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 173-175: Ten Group Pty Ltd v Cornes (2012) 114 SASR 46 at [34], [47]-[50]; Hockey at [73].

   Thirteenth, in determining the meaning in fact conveyed by the publication, the intention of the publisher is irrelevant: Lee v Wilson and MacKinnon (1934) 51 CLR 276 at 288 (per Dixon J); Baturina v Times Newspapers Ltd [2011] EWCA Civ 308; 1 WLR 1526 at [24].

   Fourteenth, the manner in which the publication was actually understood is also irrelevant in determining what meaning was conveyed to the ordinary reasonable reader: Hough v London Express Newspaper, Ltd [1940] 2 KB 507 at 515; [1940] 3 All ER 31 at 35; Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 at 301-302. The question is to be determined on the basis of the natural and ordinary meaning of the publication alone.

6. None of the parties quibbled with the above summary of the principles in Rush, or advanced any submissions that were inconsistent with or contrary to that summary.

7. The publications in question in Rush were articles in a newspaper.  In relation to a televised broadcast, the issue is to be addressed from the perspective of the ordinary reasonable viewer. The sounds, images, manner of speech and any captions in the broadcast are all relevant in determining the meanings carried: Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 at 165-66; [1998] NSWSC 4; Schiff v Nine Network Australia Pty Ltd (No 2) [2022] FCA 1120 at [34]-[61].

8. There is one additional principle that should be noted.  It concerns the situation where the publication in question repeats defamatory statements by third parties.  In Corby v Allen & Unwin Pty Ltd (2014) 108 NSWLR 431; [2014] NSWCA 227, McColl JA (with whom Bathurst CJ and Gleeson JA relevantly agreed), approved (at [140]) the following statement by McHugh J in John Fairfax Publications v Rivkin (2003) 77 ALJR 1657 at [27]; [2003] HCA 50:

   The rule that the publication must be read as a whole is particularly important where the publication reports a defamatory statement by a third party.  The general rule is that a person who publishes the defamatory statement of a third party adopts the statement and has the same liability as if the statement originated from the publisher. Accordingly, it is not the law that a person reporting the defamatory statement of another is only liable if he or she adopts the statement or reaffirms it. But, as Griffith CJ pointed out in Ronald v Harper, although as a general rule a person who repeats a defamation adopts it as his or her own statement, it is not a “rule of invariable application”. The context of the statement may show that it is refuted or undermined by other parts of the publication.

   (Footnotes omitted)

9. Ms Edwards contended that the broadcasts and articles published defamatory statements made by Mr Gillespie, that the Publishers therefore adopted those statements, and that nothing in the broadcasts or articles refuted or undermined the statements.  

   Imputations carried by the first broadcast

10. As has already been noted, Ms Edwards contended that the first broadcast carried four imputations concerning her.  There is a degree of overlap between those imputations, though they should nevertheless be considered separately.

    Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle

11. The Publishers contended that the first broadcast did not convey that Ms Edwards had stolen Oscar.  Rather, it conveyed no more than that Ms Edwards had taken the dog and refused to return it to Mr Gillespie and that her actions in that regard had caused Mr Gillespie profound distress.  The Publishers submitted that the broadcast made it clear that the dispute as to who owned Oscar was to be decided in the courts, which was inconsistent with any suggestion that Ms Edwards had stolen the dog.  They emphasised the following parts of the broadcast: the statement by the anchor that the story was about an “all out war between two former friends fighting about Oscar’s ownership”; Mr Marshall’s statement that the “feud” between the former friends concerned “the custody of a famous cavoodle”; Mr Gillespie’s statement to Ms Edwards that she had “used the police to take him [Oscar] away from me, you can’t use the police to take him back”; Mr Marshall’s statement that the dispute had ended up in the Supreme Court; the statements by Mr Flavell and Ms Edwards to the effect that the dispute concerning Oscar’s ownership would be determined by the court; and Mr Marshall’s statement that “everyone involved believes Oscar is part of their family and belongs with them”.

12. The problem with the Publishers’ submission in that regard is that it is based on a few isolated and highly selective extracts from the broadcast.  Those extracts, however, must be considered in the context of the broadcast as a whole.  The Publishers’ submission also ignores the sensationalist nature of the broadcast and its general tenor and tone. 

13. When the broadcast is considered as a whole, there could be little doubt that, not only was Mr Gillespie asserting that he was Oscar’s owner and that Ms Edwards had deprived him of his “property”, but that Mr Marshall was clearly siding with Mr Gillespie.  The broadcast reported or relayed the following statements by Mr Gillespie concerning Oscar: “He’s [Oscar’s] my property”; that he was “just collecting my property”; that he couldn’t believe that Ms Edwards “took him [Oscar] in the first place”; that Ms Edwards just “wanted to exploit him [Oscar] and monetise him”; and that, while there may have been a court case pending, Ms Edwards was “delaying and delaying and delaying” that case.  Mr Gillespie also claimed that Ms Edwards had been hiding Oscar and moving him from “house to house” and that he was “happy to talk to the police”. 

14. As for Mr Marshall, his somewhat sarcastic and sneering commentary plainly sided with Mr Gillespie’s version of events and undermined and disparaged Ms Edwards.  He referred to Ms Edwards and Mr Flavell as mere “canine carers” and “dog-sitters” and clearly suggested that, while there may be a dispute about it, Mr Gillespie was clearly Oscar’s owner. Mr Marshall put to Mr Flavell: “Isn’t this Mark’s dog?”, “Did Mark pay for this dog?” and “Is this about money?”  He puts to Ms Edwards (as footage is shown of Mr Gillespie hugging Oscar with Oscar’s tail wagging uncontrollably): “Gina, is that the owner? Is that the owner of Oscar?”; and later: “Why do you believe that you’re the rightful owner?”  Mr Gillespie, or “Daddy Mark” was said by Mr Marshall to “still [be] the registered owner of Oscar”.  In relation to the court case, Mr Marshall pointed out that Ms Edwards was a “qualified barrister” who, he suggested, was running “[her] own case on this” – the apparent implication being that she was using her knowledge of the legal system to retain possession of Oscar.   

15. The overall tenor and tone of the broadcast is also deprecating and demeaning towards Ms Edwards.  Ms Edwards is first shown shouting “stop filming. I don’t, I don’t give you permission to film, please stop filming” and later running away from Mr Marshall and his camera crew while Mr Marshall calls out “Gina, we just want a word”. The subtext or implication in all the circumstances was that Ms Edwards is fleeing because she suffers from consciousness of guilt.  This footage is repeated during the broadcast. Ms Edwards is then shown hysterically screaming at, and pursuing, Mr Gillespie, who at that point had taken possession of Oscar.  That footage is also replayed during the broadcast.  Mr Marshall’s voiceover while Ms Edwards is first seen pursuing Mr Gillespie was: “Gina’s a retriever at heart”.  At first blush that might appear to be yet another bad dog pun.  In context, however, it is plainly disparaging Ms Edwards and comparing her to a dog (a labrador retriever).   

16. Overall, the broadcast was replete with snide insinuation and suggestion.  Its sensationalist nature invites not only a degree of loose thinking on the part of its audience, but also the drawing of implications, including derogatory implications, about and against Ms Edwards.  The overriding impression conveyed was that Mr Edwards was a conniving dog-sitter who wanted to exploit and monetise the famous cavoodle and who, in that context, not only callously refused to return the dog to its rightful owner, but was also hiding Oscar and, as a barrister, was using the legal system and delaying the proceedings to retain possession of him. 

17. It may perhaps be accepted that a person who obtains possession of property, apparently lawfully, and refuses to return the property to its owner, might not legally or literally be said to be a thief, or to be guilty of theft or stealing.  The ordinary reasonable viewer of the broadcast would not, however, analyse it as if he or she were a lawyer considering a criminal charge, or by reference to dictionary definitions.  Moreover, considered in its entirety, the broadcast conveyed far more than the implication that Ms Edwards had simply not returned Oscar to his rightful owner. 

18. It may also be accepted that the broadcast did not directly call Ms Edwards a thief, or state, in terms, that she had stolen Oscar.  Considered in its entirety, however, the broadcast implied and insinuated that to be the case.   As already noted, the broadcast implied and insinuated that Ms Edwards connived to obtain and retain possession of valuable property, in the form of an apparently famous dog, so she could exploit and monetise that property.  She then callously continued to refuse to return the dog to its rightful owner, hid the dog by moving from house to house, and delayed court proceedings concerning the ownership or custody of the dog.  She also ran away when confronted in the dog park about the ownership of the dog.  In common parlance, a person who obtains possession of valuable property and who then hides and refuses to return the property to its rightful owner would be seen to be a thief who has stolen that property.  In my view, that is what the ordinary reasonable viewer would have gleaned and concluded from the broadcast.

19. While it may be accepted, as the Publishers submitted, that the ordinary reasonable viewer of a national Current Affair program does not necessarily go searching for sinister meanings, the overall tone and tenor of the first broadcast, including Mr Marshall’s commentary, effectively invited the viewer to do just that.  It essentially encouraged loose thinking and effectively invited the viewer to read between the lines.  As Lord Devlin said in Lewis v Daily Telegraph Ltd [1964] AC 234 at 285, a “man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire”. Mr Marshall certainly did not pick his words carefully.

20. There is also some merit in Ms Edwards’ submission that the broadcast republished defamatory statements by Mr Gillespie to the effect that Ms Edwards was a thief who had stolen Oscar from him.  As already noted, the broadcast includes statements by Mr Gillespie that Oscar was his property and that Ms Edwards had taken Oscar and refused to return him because she wanted to exploit and monetise him.  Mr Gillespie also asserted that Ms Edwards had been hiding Oscar and delaying the court case about his ownership.  Those statements considered together and in the context of the broadcast as a whole, amounted to an assertion by Mr Gillespie that Ms Edwards was a thief who had stolen Oscar.  By publishing those statements by Mr Gillespie in the broadcast, the Publishers effectively adopted them.  Nothing in the broadcast could be said to have refuted or undermined Mr Gillespie claims.  Indeed, as already indicated, the broadcast essentially sided with Mr Gillespie and undermined Ms Edwards’ position.   

21. In all the circumstances, putting myself in the hypothetical shoes of the ordinary reasonable viewer of the first broadcast, I am satisfied that the first broadcast, considered as a whole, carried the imputation that Ms Edwards, a barrister, was a thief who stole Oscar the cavoodle.

    Ms Edwards, a barrister, stole Oscar the cavoodle for her own financial benefit

1. For the reasons already given, I am satisfied that the first broadcast conveyed to the ordinary reasonable viewer that Ms Edwards, a barrister, stole Oscar the cavoodle.  The additional element in this second imputation is that Ms Edwards stole Oscar “for her own financial benefit”. 

2. There could be little doubt the first broadcast conveyed that additional element.  The broadcast included a statement by Mr Marshall that the “dog-sitters” (Ms Edwards and Mr Flavell) “ramped up Oscar’s Instagram account” to the point that he had over 10,000 followers, and that Oscar had “starred in TV shows and operas on the harbour.”  Mr Marshall also referred to Mr Gillespie’s claim that while he was “away on the high seas”, Ms Edwards and Mr Flavell were “living the high life rolling in endorsements from pet companies”.  Mr Gillespie was then shown asserting that, unlike him, Ms Edwards did not just want Oscar to “be a dog”, but rather wanted to “exploit” and “monetise” him. 

3. The clear implication from those statements by Mr Marshall and Mr Gillespie was that Ms Edwards had acted as she did for her own financial benefit.  The broadcast plainly adopted Mr Gillespie’s statements or assertions.  They were in any event also effectively backed up by Mr Marshall.

4. I am accordingly satisfied that the first broadcast carried the imputation that Ms Edwards, a barrister, stole Oscar the cavoodle for her own financial benefit.

   Ms Edwards, a barrister, deliberately delayed a court case about Oscar

5. The Publishers effectively conceded that the first broadcast conveyed that Ms Edwards had delayed a court case about Oscar.  They submitted, however, that the first broadcast did not explicitly state that Ms Edwards made a “conscious decision to effect delay to the proceedings”. 

6. It may readily be accepted that the first broadcast does not include any explicit statement that Ms Edwards had made a conscious decision to delay the court case concerning Oscar.  In my view, however, the broadcast clearly conveyed to the ordinary reasonable viewer that Ms Edwards had deliberately delayed the case.  Mr Marshall repeated Mr Gillespie’s claim that Ms Edwards “keeps delaying the court case” and the broadcast included an exchange between Mr Gillespie and Ms Edwards during which, in response to Ms Edwards’ statement that there was a “court case pending”, Mr Gillespie stated “[y]ou’re delaying, delaying, delaying” and “[y]ou keep delaying and delaying and delaying”.  Considered in the context of the broadcast as a whole, those statements by Mr Gillespie would have been perceived by the ordinary reasonable viewer as an assertion by Mr Gillespie that Ms Edwards was deliberately delaying the proceedings so she could retain Oscar.  Nothing in the broadcast could be said to have refuted or undermined Mr Gillespie’s claims in that regard.   Indeed, the overall tone and tenor of the broadcast, which was supportive of Mr Gillespie and disparaging of Ms Edwards, effectively adopted and supported Mr Gillespie’s claims in that regard.

7. I am accordingly satisfied that the first broadcast carried the imputation that Ms Edwards, a barrister, deliberately delayed a court case about Oscar.

   Ms Edwards, a barrister, exploited Oscar for her own financial benefit

8. This imputation is similar to the second alleged imputation (Ms Edwards, a barrister stole Oscar the cavoodle for her own financial benefit), though it does not include the stealing element and includes instead the imputation that Ms Edwards exploited Oscar. 

9. As discussed earlier in the context of the second alleged imputation, the broadcast included a statement by Mr Marshall that Ms Edwards and Mr Flavell had “ramped up” Oscar’s Instagram account and that Oscar had “starred in TV shows and operas on the harbour.” Mr Marshall also referred to Mr Gillespie’s claim that Ms Edwards and Mr Flavell were “living the high life rolling in endorsements from pet companies”.  The broadcast also included footage of Mr Gillespie himself asserting that Ms Edwards wanted to “exploit” and “monetise” Oscar.  Those statements, considered in the context of the overall tenor and tone of the broadcast, discussed earlier, clearly conveyed that Ms Edwards had exploited Oscar for her own financial benefit.  The Publishers effectively adopted those statements and nothing in the broadcast undermined, refuted or qualified them.

10. I am accordingly satisfied that the first broadcast carried the imputation that Ms Edwards, a barrister, exploited Oscar for her own financial benefit.

    Imputations carried by the first article

11. Ms Edwards alleged that the first article carried three imputations, each of which was in the same terms as an imputation carried by the first broadcast.  That is perhaps not surprising as the first article was, in effect, a narrative account of the first broadcast.

    Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle

12. The first article clearly conveyed that Ms Edwards, a barrister, was a thief who had stolen Oscar from Mr Gillespie.

13. The fifth paragraph of the article referred to Mr Gillespie’s claim that “Gina [Edwards] stole Oscar from him”.  Nothing that followed in the article refuted or undermined that claim.  Indeed, the narrative that followed clearly supported and sided with Mr Gillespie’s claim in that regard. 

14. The very next paragraph referred to Mr Gillespie as the “registered owner of Oscar”.  The balance of the article also conveyed that Mr Gillespie was Oscar’s owner and that Ms Edwards, who was said to have taken Oscar and refused to return him to Mr Gillespie, was not Oscar’s owner and was not entitled to keep him.  A caption under one of the photos in the article referred to Mr Gillespie as Oscar’s owner.  The article also stated that Mr Gillespie told A Current Affair that the “police gave him the okay to take Oscar as he is still the registered owner and he was technically back in possession of his property”.  Ms Edwards, on the other hand, was deprecatingly referred to as a “dog-sitter” who “took Oscar for a TV shoot and wouldn’t return him”. 

15. The article also noted that when A Current Affair (Mr Marshall) approached Ms Edwards, she “turned her back on Oscar and ran from the camera crew”.  In contrast, the article stated that “[d]espite their time apart, Oscar recognised him [Mr Gillespie] instantly, ran to him, licked his face and wagged his tail uncontrollably”, the clear implication being that Ms Edwards had no entitlement to Oscar and had callously kept him away from his rightful owner.

16. The article also referred to Ms Edwards as a “Sydney barrister”.

17. I am satisfied that the first article would have conveyed to the ordinary reasonable reader that  Ms Edwards, a barrister, was a thief who had stolen Oscar the cavoodle.

    Ms Edwards, a barrister, stole Oscar the cavoodle for her own financial benefit

18. For the reasons already given, I am satisfied that the first article conveyed that Ms Edwards had stolen Oscar.  The question is whether it also conveyed that she did so for her own financial benefit.

19. A caption to one of the photographs in the article stated that Ms Edwards and Mr Flavell had asked Mr Gillespie if they could take over Oscar’s Instagram account and the article then stated that the “dog-sitters ramped up Oscar’s Instagram account to a point where he appeared in TV shows and the Opera on Sydney Harbour, as products and endorsements from pet companies rolled in”.  It was in that context that the article stated that, while Mr Gillespie was away for work, Ms Edwards “took Oscar for a TV shoot and wouldn’t return him”.  The clear implication was that Ms Edwards had taken Oscar for her own financial benefit, being the financial benefits flowing from Oscar’s “ramped up” Instagram account and the resulting appearances, products and endorsements that were said to be “rolling in”.

20. I am satisfied that the first article would have conveyed to the ordinary reasonable reader that Ms Edwards, a barrister, had stolen Oscar the cavoodle for her own financial benefit.

    Ms Edwards, a barrister, exploited Oscar for her own financial benefit

21. This imputation is similar to the second imputation, save that the statement is that Ms Edwards “exploited”, rather than stole, Oscar for her own financial benefit. 

22. I am satisfied, for essentially the same reasons as those given in respect of the second imputation, that the article conveyed that Ms Edwards exploited Oscar for her own financial benefit.  Read in the context of the article as a whole, the statements that Ms Edwards “ramped up Oscar’s Instagram to a point where he appeared in TV shows and the Opera on Sydney Harbour, as products and endorsements from pet companies rolled in” conveyed that Ms Edwards had exploited Oscar for her own financial benefit, including by receiving products and endorsements from pet companies. 

23. While operating an Instagram account in a dog’s name and receiving products and endorsements from pet companies might in some cases not be seen to constitute exploitation of the dog, the overall tone and tenor of the first article implied or insinuated that Ms Edwards’ actions in respect of Oscar were exploitative.  As already discussed, the article conveyed that Mr Gillespie was Oscar’s owner and that Ms Edwards had no legal entitlement to Oscar, but that she had nevertheless taken Oscar and refused to return him to Mr Gillespie.  Moreover, while Ms Edwards was said to have “turned her back on Oscar”, Oscar was said to have run towards Mr Gillespie and “licked his face and wagged his tail uncontrollably,” the implication being that Ms Edwards had been keeping Oscar away from the owner to whom he was devoted.  Viewed in that light, the fact that Ms Edwards was said to have used Oscar to obtain products and endorsements would have been seen or perceived by the ordinary reasonable viewer as being exploitative. 

24. I am accordingly satisfied that the first article carried the imputation that Ms Edwards, a barrister, exploited Oscar for her own financial benefit.

    Imputations carried by the second broadcast

25. Ms Edwards alleged that the second broadcast carried four imputations, two of which coincided with the imputations conveyed by the first broadcast.

    Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle

26. The focus of the second broadcast was that, following the events in the dog park which featured in the first broadcast, Ms Edwards was said to have “slapped” Mr Gillespie with an AVO, and yet Ms Edwards had not attended court when that AVO was heard in the Manly Local Court.  The broadcasts did, however, provide a brief recap of the events in the dog park and replayed some of the footage from the first broadcast, including the footage of Ms Edwards running away from Mr Marshall and the footage of Ms Edwards chasing Mr Gillespie as he held Oscar.

27. While the second broadcast again clearly represented that Mr Gillespie was Oscar’s lawful owner, and cast Ms Edwards in a bad light, it is difficult to see how, standing alone, it carried the imputation that Ms Edwards was a thief who stole Oscar.  The A Current Affair anchor introduced the story by referring to the “custody twist” and dispute about Oscar.  For his part, Mr Marshall referred to the fact that the “battle” for Oscar between Ms Edwards and Mr Gillespie had already reached the New South Wales District and Supreme Courts.  Little if any detail, however, was given concerning the background to the dispute.  Those responsible for the second broadcast seem to have assumed that most viewers would have seen the first broadcast or read the first article and were therefore already aware of background.  It should be noted in that context, however, that Ms Edwards did not plead or otherwise contend that the second broadcast should be considered or viewed together with the first broadcast, or that the ordinary reasonable viewer of the second broadcast would necessarily have viewed or read, as the case may be, the earlier publications.  The ordinary reasonable viewer of the second broadcast who had not seen the first broadcast, or read the first article, would most likely have thought poorly of Ms Edwards, but would have been left wondering as to exactly how and why she had custody of Oscar and why she was not returning him to his rightful owner. 

28. Ms Edwards submitted that the overall impression conveyed by the second broadcast was that, now that Ms Edwards was required to face court and justify her actions, she could not, or did not do so, because she was a “cowardly thief”, and her legal arguments were “wholly unmeritorious”.  I do not agree that the ordinary reasonable viewer would have gained that overall impression from the broadcast.  The reference to Ms Edwards and Mr Flavell being “no-shows” was certainly disparaging and was linked to Mr Gillespie’s claims that Ms Edwards had employed “delay tactics” in respect of the proceeding concerning Oscar.  There was, however, some delineation between the AVO proceedings and the proceedings concerning Oscar and I doubt that the broadcast went so far as to suggest that Ms Edwards did not appear at the hearing concerning the AVO because she was a “cowardly thief” who had stolen Oscar.

29. In the circumstances, I am not persuaded that the second broadcast, standing alone, would have conveyed to the ordinary reasonable viewer that Ms Edwards was a thief who had stolen Oscar.  Putting aside, for the moment, the content of the broadcast dealing with Ms Edwards non-appearance in respect of the AVO, the broadcast would have conveyed, to those unfamiliar with the first broadcast and first article, little more than that there was a custody dispute concerning Oscar between Ms Edwards and Mr Gillespie, that Mr Gillespie claimed that Oscar was his dog and his property, that Ms Edwards had delayed the court proceedings in respect of that dispute and – by replaying the footage from the dog park – that Ms Edwards was rather hysterical, if not slightly unhinged.  While it was apparent that Mr Marshall sided with Mr Gillespie and the broadcast was generally disparaging of Ms Edwards, it did not go so far as to convey or impute that she was a thief who had stolen Oscar.        

    Ms Edwards, a barrister, adopted delay tactics so as to prolong her unlawful possession of Oscar

30. It is also difficult to accept that the second broadcast carried the imputation that Ms Edwards had adopted delay tactics so as to prolong her unlawful possession of Oscar.  The difficulty is not with the first element of the alleged imputation, that Ms Edwards had “adopted delay tactics”.  The broadcast included Mr Marshall’s commentary that Mr Gillespie had seen a “pattern of behaviour” from Edwards over the preceding 18 months which had involved “delaying tactics”.  Mr Marshall may be taken to have adopted that statement.  Nothing in the broadcast refuted or undermined it.

31. The difficulty is that the imputation is said to be that Ms Edwards adopted those delaying tactics so as to prolong her “unlawful” possession of Oscar.  For the reasons given earlier in respect of the first alleged imputation said to have been conveyed by this broadcast, it is difficult to accept that the broadcast contained sufficient detail concerning the dispute over Oscar to convey the inference or imputation that Ms Edwards’ possession of Oscar was necessarily unlawful.  Certainly, Mr Marshall and the broadcast generally sided with Mr Gillespie and insinuated that Ms Edwards’ claims concerning Oscar were unmeritorious.  Towards the end of the broadcast, Mr Marshall also reminded viewers that Mr Gillespie was “still the dog’s registered owner”.  The broadcast was also generally disparaging of Ms Edwards.  That said, the broadcast also indicated that the custody dispute was before a court and the implication was that, while Ms Edwards had delayed the court proceeding, the court would nevertheless resolve the custody dispute.  Mr Gillespie was reported to have “relinquished the lead, allowing this drama to be played out in the courts”.  I am, in all the circumstances, unpersuaded that, standing alone, the second broadcast went so far as to convey that Ms Edwards’ possession of Oscar was unlawful.

32. It follows that I am not satisfied that the second broadcast carried the imputation that Ms Edwards, a barrister, adopted delay tactics so as to prolong her unlawful possession of Oscar. 

    Ms Edwards, a barrister, deliberately delayed a court case about Oscar

33. I am, however, satisfied that the second broadcast conveyed that Ms Edwards, a barrister, had deliberately delayed a court case about Oscar.

34. Mr Marshall, having pointed out that Ms Edwards and Mr Flavell were “no shows” at the hearing in respect of the AVO, went on to recite Mr Gillespie’s assertion that the “no show” by Ms Edwards was consistent with a pattern of behaviour that he had observed from her which involved “delay tactics”.  In that context, the broadcast reprised the footage from the first broadcast during which, in response to Ms Edwards’ statement that there was a court case pending, Mr Gillespie said “Yeah so? You’re delaying, delaying, delaying”.  The juxtaposition of Mr Gillespie’s assertion concerning delaying tactics and the previous footage clearly conveyed that Ms Edwards, who had been introduced as a “Sydney barrister”, had deliberately delayed a court case about Oscar.  There is no merit in the Publishers’ submission that the broadcast did not convey that the delay was deliberate.

    Ms Edwards, a barrister, failed to fulfil her obligation to appear in court in relation to her AVO application against Mr Gillespie

35. The second broadcast clearly conveyed that Ms Edwards did not appear at the hearing of the AVO that she had, so it was said, “slapped” on Mr Gillespie.  The issue is whether it conveyed that Ms Edwards’ non-appearance constituted a “failure” on Ms Edwards’ behalf to “fulfil her obligation to appear in court in relation to her AVO application”. 

36. The commentary in the broadcast did not include any statement, in terms, that Ms Edwards was obliged to appear in court at the hearing of the AVO and that her failure to appear therefore constituted a failure to comply with that obligation.  Considered as a whole, and from the perspective of the ordinary reasonable viewer, however, the broadcast insinuated or implied that to be the case.

37. The overall tenor and tone of the second broadcast was critical of Ms Edwards and tended to demean and disparage her.  It commenced by reprising the footage taken from the dog park the previous week that, as has already been discussed, portrayed Ms Edwards in a negative light.  That provided the context for the reference to Ms Edwards having “slapped” Mr Gillespie with an AVO.  Mr Gillespie was then depicted in a positive light, attending court with a barrister and solicitor “in tow”, and later patting the court companion dog.  Ms Edwards, on the other hand, having been introduced as a “Sydney barrister”, was referred to as a “no show”.  To make matters worse, that was said by Mr Gillespie to be consistent with a “pattern of behaviour” involving “delay tactics”.  The overall impression conveyed by this negative language was that Ms Edwards had done something wrong – that she was expected or obliged to, but did not, appear at the hearing of the AVO.      

38. The ordinary reasonable viewer of the broadcast would be unlikely to be aware of the precise procedure involved in proceedings concerning AVOs.  In particular, the ordinary reasonable viewer would not necessarily know that in cases where the police instigate such proceedings, the complainant is not necessarily expected or obliged to occur.  The statement that Ms Edwards “slapped” the AVO on Mr Gillespie would, however, tend to suggest to the ordinary reasonable viewer that Ms Edwards instigated the proceeding – that it was her application.  The ordinary reasonable viewer would be likely to think or believe that a person who instigated a proceeding would be expected or obliged to appear in court when the proceeding was heard.  The use of the expression “no show” also tended to convey that Ms Edwards was expected or obliged to show up at the hearing.  Nothing said in the broadcast suggested otherwise.      

1. It is true, as the Publishers submitted, that this type of “foot in the door” sensationalist journalism is not necessarily improper.  There would also appear to be some public appetite for it.  Nevertheless, publishers run the risk that if they employ those tactics or journalistic methods, they may potentially face aggravated damages if such publications are also found to carry defamatory allegations or imputations.

2. I am satisfied that the sensationalist nature of the publications and their needlessly denigrating and demeaning tenor and tone towards Ms Edwards aggravated Ms Edwards’ hurt and suffering.  The publications, in that respect, could be said to be relevantly improper and unjustifiable. 

3. I am also satisfied that the publications in question recklessly inflicted damage on Ms Edwards in circumstances where the Publishers made no effort to independently investigate the allegations before confronting Ms Edwards in the park.  The Publishers had only spoken with Mr Gillespie, who was the source of the allegations, and had not contacted Ms Edwards to get her side of the story.  The Publishers effectively conceded as much.  To make matters worse, the day after the confrontation in the park, Ms Edwards sent an email to Channel Nine which, in effect, requested A Current Affair to contact her barrister, Mr Hodgson, who would give a statement or answer questions about the case.  Ms Edwards received no reply to that email.  Mr Marshall made no attempt to contact Ms Edwards or Mr Hodgson before the first broadcast went to air.   

4. There is also no indication that Mr Marshall made any attempt to contact Ms Edwards or Mr Hodgson between the time of the first broadcast and first article and the publication of the second broadcast and second article, or that he took any steps to investigate the circumstances in which an application had been made for an AVO against Mr Gillespie, or whether Ms Edwards was expected to appear in court on the return of that application.  Had he taken any steps to investigate that issue, Mr Marshall was likely to have ascertained that the police made the application on Ms Edwards’ behalf and that she was not in fact obliged or even expected to appear in court on its return.

5. I am satisfied that the Publishers’ blind acceptance of Mr Gillespie’s version of events and their unwillingness to obtain Ms Edwards’ version of events, other than in the context of the surprise confrontation of Ms Edwards in the park, aggravated the hurt and distress inflicted on Ms Edwards.  The Publishers’ conduct in that regard was relevantly improper and unjustifiable.   

6. Finally, I am satisfied that Ms Edwards’ hurt and distress was aggravated by the fact that the Publishers refused to remove the offending broadcasts and articles from their website and, more significantly, failed to take any steps to remove the thousands of comments which members of the public had posted to the website and associated social media platforms.  It may be accepted that the Publishers were not compelled to remove the offending publications from their website.  It does not follow, however, that their failure or refusal to do so cannot be said to have aggravated Ms Edwards’ hurt and suffering.  The comments posted on the Publishers’ website and social media platforms were obviously likely to aggravate Ms Edwards’ hurt and suffering.  I am unable in all the circumstances to see any possible justification for the Publishers’ failure or refusal to remove those comments, even if the Publishers’ were determined to defend the publications in question.  As has already been noted, many of the comments were gratuitously and needlessly offensive, vile and unjustifiable.

7. It remains to briefly address two additional particulars which Ms Edwards sought to rely on in support of her claim for aggravated damages.

8. First, Ms Edwards claimed aggravated damages on the basis of the “destruction of camera footage despite being on notice from [her] on 19 May 2021 that she had a barrister and they [the Publishers] should contact him”.  That allegation, which was really only raised for the first time in the course of the trial, may be disposed of shortly.  I am not persuaded that there is any cogent or reliable evidence capable of supporting the serious allegation that the Publishers had destroyed any relevant camera footage. 

9. Second, Ms Edwards contended that the Publishers’ conduct of their defence was a factor which aggravated damages.  She submitted, in that context, that the Publishers had denied that the publications conveyed any of the imputations pleaded by her and denied that the imputations were defamatory, even those concerning the stealing of Oscar.  Those denials were said to be untenable and unjustifiable.  She also submitted that the Publishers’ justification and contextual truth defences were improper and unjustifiable.  The contextual truth defence was said to be clearly hopeless.

10. There is no doubt that in some circumstances the conduct of a defence by a publisher may be found to be an aggravating factor: see for example Barilaro v Google LLC [2022] FCA 650 at [352]-[363]; Kumova v Davison (No 2) [2023] FCA 1 at [85]-[86]; Duma v Fairfax Media Publications Pty Ltd (No 3) [2023] FCA 47.

11. I would also readily agree that the conduct of this litigation was far from ideal. 

12. Among other things, the Publishers failed, without reasonable excuse or justification, to file their defence within time: see Edwards v Nine Network Australia Pty Limited [2022] FCA 509. The Publishers also applied, at a very late stage of the proceedings, for leave to amend and significantly expand their defence, an application which was only partially successful: Edwards v Nine Network Australia Pty Ltd (No 2) [2022] FCA 1332. I also agree that the Publishers’ refusal to admit that any of the imputations were defamatory bordered on the absurd, though that element of their defence was given short shrift and wasted little if any time. I would also tend to agree that the Publishers’ contextual truth defence was very weak, though I would not necessarily describe it as clearly hopeless. I would not, however, characterise the justification defence in respect of the stealing allegations as being improper or unjustifiable. It was, in my view, clearly arguable.

13. Beyond those matters, the proceeding was hard fought, though that observation applies to both sides.  As is unfortunately the case in many defamation cases, both sides were equally persistent, uncompromising and unwilling to give an inch.  As has already been observed, both sides tendered, or sought to tender, very large numbers of documents, and otherwise vigorously contested many factual issues which on just about any view were tangential or of marginal relevance.  To give but one example, Ms Edwards adduced documentary and oral evidence, and cross-examined witnesses, about whether Oscar had been mistreated or not properly cared for in Wingello because his fur had burs in it, or he was not being fed properly, or spent time outside in the yard and was therefore said to be at risk of injury.  The suggestion appeared to be that he had therefore been abandoned.  The Publishers responded to that evidence by adducing, or attempting to adduce, evidence concerning Oscar’s treatment at Wingello.  I effectively refused to allow them to adduce expert evidence from a veterinarian on that topic.  Ultimately Ms Edwards abandoned any suggestion that Oscar had been mistreated at Wingello.  

14. While the conduct of this litigation was far from ideal, I am not, in all the circumstances, satisfied that the Publishers conduct of their defence was unjustifiable, improper or lacking in bona fides such as warrant an award of aggravated damages. 

15. Putting the conduct of the litigation to one side, for the reasons I have given I am otherwise satisfied that Ms Edwards’ hurt and humiliation arising from the defamatory publications was aggravated by the Publishers’ conduct and the circumstances of publication.   

    Mitigation or reduction of damages

16. The issue of mitigation or reduction of damages in this case, put simply, is whether the largely uncontested evidence that Ms Edwards obtained possession of Oscar from Ms Angeli and Mr Fidler, and ultimately from Mr Gillespie, by deceit or deception, is relevant to the assessment of damages payable to Ms Edwards.  In particular, can and should that evidence, and the Court’s findings concerning it, reduce the compensatory damages that Ms Edwards should receive for defamation.  The evidence concerning Ms Edwards’ deceit was properly before the Court because it was relevant to the Publishers’ justification defence in respect of the two imputations concerning the stealing of Oscar.  While the Publishers’ justification defence ultimately failed, it does not follow that the evidence concerning Ms Edwards’ deceit may not be relevant to the assessment of damages.

17. The relevant principles were simply and concisely explained as follows by Neill J in Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 120:

    But a defendant is also entitled to rely in mitigation of damages on any other evidence which was properly before the court and Jury.  This other evidence can include evidence which has been primarily directed to, for example, a plea of justification or fair comment.

    …

    There may be many cases, however, where a defendant who puts forward a defence of justification will be unable to prove sufficient facts to establish the defence at common law … Nevertheless the defendant may be able to rely on such facts as he has proved to reduce the damages, perhaps almost to vanishing point.  Thus a defence of partial justification, though it may not prevent the plaintiff from succeeding on the issue of liability, may be of great importance on the issue of damages.

18. To be relevant to an assessment of damages, evidence of misconduct or misbehaviour by the applicant which is before the court because it was adduced, for example, in the context of a justification defence that was not ultimately made out, must be relevant to an assessment of the applicant’s reputation in the “sector” relevant to the defamatory imputations.  As Lord Denning neatly explained this otherwise rather curious principle in Speidel at 1140, “if the libel imputes theft, the relevant sector is [the applicant’s] character for honesty, not his character as a motorist”. Thus, if the defamatory publication imputes theft and therefore bears on the applicant’s reputation for honesty, evidence that may bear on the applicant’s reputation as a motorist would be irrelevant. It therefore could not mitigate or reduce the damages that would otherwise be appropriate.

19. This principle must, however, be approached with a “modicum of common sense” and “[q]uestions of degree are involved”: Rush at [690]. In my view, it is not appropriate to minutely dissect and parse the imputation in question so as to identify the narrowest possible sector, so that it can then be submitted that certain evidence of bad reputation is irrelevant because it does not fall within that narrowly defined sector. Nor should the evidence of bad reputation be analysed in that way. As Fitzgerald AJA noted in Australian Broadcasting Corporation v McBride [2001] NSWCA 322; (2001) 53 NSWLR 430 at [106], the imprecision and difficulties that may arise in respect of the “same sector” test evaporate once it is understood that the “ultimate test is whether the facts, matters and circumstances affecting a plaintiff’s reputation which a defendant seeks to rely on in mitigation could rationally diminish the harm to the plaintiff’s reputation from the defamatory imputation”. I respectfully agree. The issue should be approached with that ultimate test in mind rather than by some minute and artificial dissection of the applicant’s reputation.

20. As was unfortunately often the case in this matter, there was a vast chasm between the parties’ submissions in respect of the mitigation or reduction of damages.   

21. The Publishers submitted that the evidence that established that Ms Edwards engaged in deceptive and dishonest conduct to obtain possession of Oscar would “have a devastating impact” and should “dramatically” reduce the damages to be awarded to Ms Edwards.  They submitted that, given that Ms Edwards’ primary complaint appeared to be the damage caused to her reputation as a barrister, the evidence as to how she came to take possession of Oscar was relevant to an assessment of damages because the Court would be “compensating a lawyer who is prepared to lie and lie in a calculated fashion”.  In the Publishers’ submission, that was an “element of her character that cannot be ignored and an element of her character which ought not be rewarded”.

22. Ms Edwards’ submission concerning the relevance or weight to be given to the evidence relating to her deceptive conduct in respect of the assessment of damages was at the other extreme.  She initially appeared to suggest that the evidence concerning her deceptive conduct was irrelevant because it had nothing to do with her “professional reputation as a barrister”.  Rather, it involved a “personal issue”.  That appeared to be a suggestion that the evidence concerning Ms Edwards’ deceptive conduct related to a different sector of her reputation.  If that was the purport of the submission, it is rejected.  In any event, Ms Edwards ultimately appeared to concede that the evidence was relevant to mitigation of damages and was “something to take into account” in mitigation damages, but should not result in any “obliteration” of her damages.  Ms Edwards also submitted that the evidence was of limited relevance, or should be given little, if any, weight, because the deceptive conduct occurred in the context of a claim of right.    

23. In my view, the evidence concerning the circumstances in which Ms Edwards came to possess and retain possession of Oscar, including the deceptive means she employed to obtain the dog, is relevant to the assessment of damages.  It tends to diminish the harm to Ms Edwards’ reputation which was otherwise caused by the defamatory imputations.  I must not assess damages in a vacuum or “in blinkers, in ignorance of background context directly relevant to the damage which the claimant claims has been caused by the defamatory publication”: Burstein v Times Newspapers Ltd [2000] EWCA Civ 338; [2001] 1 WLR 579 (May LJ, with whom Sir Christopher Slade and Aldous LJ agreed); see also Turner v News Group Newspapers Ltd [2006] 1 WLR 3469 at [56] (Keene LJ, with whom Moses LJ and Pill LJ agreed) and [88] (Moses LJ). The evidence and findings concerning Ms Edwards’ deceit is in my view directly relevant to the damage which she claims has been caused by the defamatory publications.

24. The evidence concerning the deceptive means employed by Ms Edwards involves the same sector of Ms Edwards reputation as the sector the subject of at least some of the imputations.  The most serious of the imputations are those that conveyed that Ms Edwards, a barrister, was a thief who stole Oscar.  The imputation was not that Ms Edwards stole the dog in the course of her practice as a barrister.  It was that she stole the dog and was a barrister.  The relevant sector of Ms Edwards’ reputation in my view is her reputation for honesty and integrity, or perhaps her reputation as a person who is a barrister and who is therefore generally considered to be honest.  The evidence concerning the deceptive means by which Ms Edwards obtained possession of Oscar is relevant to her reputation in that sector because it bears on the question of her reputation for honesty and integrity, or her reputation as a person who is a barrister and therefore is considered to be honest.  The fact that she was prepared to employ dishonest and deceptive means to obtain possession of Oscar bears on the assessment of her reputation in that respect. It rationally diminishes the harm to her reputation arising from the defamatory imputations, particularly those concerning the stealing of Oscar.

25. It should perhaps be noted in this context that the evidence concerning Ms Edwards’ reputation, including her professional reputation, did not include a great deal of evidence that Ms Edwards’ reputation included a reputation for honesty and integrity.  The only witness who gave evidence concerning Ms Edwards’ reputation that said anything about Ms Edwards’ reputation for honesty was Mr Searson, who said that she had a reputation of being “forthright and truthful” and someone who you could trust.  It nevertheless can perhaps be inferred that Ms Edwards had a reputation for honesty and integrity by virtue of the fact that she had been admitted as a barrister.

26. As for the weight to be given to the evidence concerning Ms Edwards’ employment of deceptive means, I agree with Ms Edwards’ submission that the evidence mitigates, but does not “obliterate” or “drastically” reduce the damages that should appropriately be awarded in respect of the damage to Ms Edwards’ reputation.  I do not, however, agree with Ms Edwards’ submission that it should be given little weight because the deceptive means were employed in the context of Ms Edwards’ exercise of her claim of right, based on the advice she had received from Mr Hodgson.  The problem with that submission is that it ignores the fact that Mr Hodgson did not give Ms Edwards any advice as to how she could or should obtain possession of Oscar and did not, as Ms Edwards claimed in her evidence, advise that she should “contrive” a way to obtain possession.  For the reasons given earlier, I reject the apparent attempt by Ms Edwards, in her evidence, to justify her deceit by claiming, in effect, that Mr Hodgson advised that she could or should engage in such conduct. 

27. It is, in all the circumstances, difficult to imagine that the fact that Ms Edwards used deceptive means to obtain Oscar would not materially affect, in an adverse way, what others thought of her, or would not lower her reputation in the estimation of others.  That is the case even though Ms Edwards may have believed, based on the advice she received from Mr Hodgson, that she had superior rights of possession of Oscar to Ms Angeli, Mr Fidler and Mr Gillespie.  While she may have believed that she had superior rights to possession, she had no genuine or honest belief that she was entitled to, or justified in, employing dishonest and deceptive means to obtain possession of Oscar from Ms Angeli, Mr Fidler and Mr Gillespie.  She could, of course, have chosen to commence proceedings, based on Mr Hodgson’s advice, to secure possession of Oscar.  She chose instead to obtain him by deceit. 

28. In all the circumstances, I propose to take into account and give some weight to the evidence concerning Ms Edwards’ deceptive conduct in determining Ms Edwards’ reputation and the damage caused to it by the defamatory imputations.  I am not required to, nor do I propose to, quantify the extent to I have reduced the award of damages to reflect that finding.         

    What is the appropriate award of damages in Ms Edwards’ case?

29. The assessment of compensatory damages in a defamation case is not a scientific or mathematical exercise.  There is no single right answer.  The process involves considering and synthesising a range of factors.   

30. In assessing the appropriate award of compensatory damages in Ms Edwards’ case I have, in short summary, taken into account the following considerations which have been discussed at length earlier in these reasons.

31. First, the defamatory imputations carried by the publications, in particular those that imputed that Ms Edwards had stolen Oscar, were serious and had the capacity to significantly damage Ms Edwards’ reputation.  

32. Second, the publications were published to and viewed or read, as the case may be, by many people.  The broadcasts were segments on a well-known national current affairs program broadcast by one of the major television networks.  They were both viewed by over a million people.  The articles were associated with that program and were also viewed by many people.

1. Third, the sum to be awarded to Ms Edwards must be sufficient to signal to the public the vindication of her reputation.

2. Fourth, the defamatory publications undoubtedly caused some damage to Ms Edwards’ reputation, including her professional reputation as a fledgling barrister, though the direct evidence concerning the impact on her reputation was far from overwhelming.  As I explained earlier, I have also taken into account, in this context, the evidence concerning Ms Edwards’ use of deceptive means to take possession of Oscar which directly bears on the damage caused to Ms Edwards’ reputation for honesty and integrity, both generally and as a barrister.  The fact that Ms Edwards acted in that way rationally diminishes the harm to her reputation arising from the defamatory imputations.

3. Fifth, there could be no doubt that the defamatory publications caused Ms Edwards considerable hurt and distress.  The effect on Ms Edwards was quite devastating.  It is unnecessary to repeat what I said earlier in that regard.  Moreover, the hurt and distress suffered by Ms Edwards from the defamatory publications was aggravated by the Publishers’ conduct, including the sensationalist and unnecessarily extravagant and disparaging nature of the publications, the Publishers’ recklessness in failing to make any attempt to investigate or independently verify Mr Gillespie’s allegations and in ignoring Ms Edwards’ entreaties in that regard, and their refusal or failure to take down the publications, or even the offensive comments that had been posted on their social media platforms.

4. Sixth, overall I must ensure that there is an appropriate and rational relationship between the harm sustained by Ms Edwards and the amount of damages awarded.

5. In her submissions, Ms Edwards’ referred to damages awards in cases that were said to be comparable to this case.  I do not propose to analyse those cases, essentially because I do not consider them to be comparable or of any real assistance.  Most of them involved public figures or facts and circumstances which differed markedly from the facts and circumstances of this case.  I have, however, had regard to the general trend or range of assessments of damages in those cases, as well as other cases involving mass media publications and serious imputations concerning an applicant’s honesty and integrity.

6. Having regard to all the relevant circumstances, including the general purposes of compensatory damages for defamation, I consider that an appropriate award of compensatory damages, including aggravated damages, is $150,000. 

7. Ms Edwards’ originating application includes a claim for interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth). The parties did not make any substantive submissions in respect of interest. Indeed, it appeared to be agreed that I should hear from the parties further in respect of that issue. That would appear to be appropriate, particularly as I must in any event hear from the parties further in respect of the other relief sought by Ms Edwards. I also do not propose to do my own interest calculation. I should note, however, that at this point at least I cannot see any reason why Ms Edwards should not be awarded interest up to judgment. I would in those circumstances encourage the parties to confer and endeavour to reach an agreement concerning prejudgment interest.

   ISSUE SIX: OTHER RELIEF

8. In addition to seeking damages, Mr Edwards sought orders requiring the Publishers to permanently remove the publications in question, including any “republications” and “any matter to the same effect (within the control of the [Publishers] or any of them) from the internet”.  Ms Edwards also sought an order that the Publishers be “permanently restrained from publishing any matter that carries any defamatory imputation (or imputation that does not differ in substance) the Court finds and of the matters complained of carry”. 

9. The parties agreed that I should hear further submissions from them in respect of the injunctive relief sought by Ms Edwards.  I will make orders facilitating a further hearing in respect of the injunctive relief sought by Ms Edwards should that be required.  I would, however, again encourage the parties to confer and endeavour to reach an agreement concerning this aspect of the matter.     

   DISPOSITION AND ORDERS

10. Judgment will be entered in favour of Ms Edwards in the sum of $150,000, together with such prejudgment interest (if any) as may be agreed, or which I consider appropriate having heard submissions from the parties in respect of that issue.  I will not, however, enter judgment until I hear further from the parties concerning prejudgment interest and, more significantly, the other relief sought by Ms Edwards.  It will also be necessary for me to hear further from the parties in respect of costs. 

11. I will make orders facilitating a further hearing, if necessary, in respect of all outstanding issues and the making of final orders.

I certify that the preceding four hundred and sixty-four (464) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.

Associate:

Dated:       26 April 2024