Harvey v Henderson

[2025] NSWSC 601

Supreme Court

New South Wales

Medium Neutral Citation:

Harvey v Henderson [2025] NSWSC 601

Hearing dates:

15-19, 22-24, 26, 29, 30 April 2024
12 June 2024

Date of orders:

12 June 2025

Decision date:

12 June 2025

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   Judgment for the plaintiff.

(2)   The defendants shall pay the plaintiff $65,000 in damages.

(3)   The defendants shall pay interest at the rate of 3% per annum on $32,500 from 1 July 2020.

(4)   The defendants and each of them are restrained from publishing, on social media, the internet or anywhere else, any material that alleges or imputes to anyone, other than each other, that the plaintiff or Wild2Free has been involved in misappropriation of funds or fraud or that the plaintiff has carried on Wild2Free or any activities in animal care for the plaintiff’s own personal benefit or for the purpose of obtaining funds for herself.

(5)   The defendants shall pay the plaintiff’s costs of and incidental to the proceedings.

(6)   If any party seeks a special or different order as to costs or interest, such application may be made within 14 days of the date of judgment by a submission in writing consisting of no more than 3 pages, not including any documents that are not otherwise in evidence upon which the application relies.

(7)   Any party adversely affected by any such application may reply, on the same conditions, no later than 14 days after receipt of the application.

(8)   Other than the leave granted, leave is granted to re-list the matter on the issue of costs, if the matter cannot, on a disclosed, reasonable basis, be dealt with on the papers. Any such application should be made to my Associate within seven (7) days of judgment.

(9)   The plaintiff is directed to file and serve a Short Minute of Order reflecting the foregoing and calculating the interest within seven (7) days of judgment.

Catchwords:

DEFAMATION — defamatory matter — particular imputations — fraud — misuse of charitable funds for personal financial benefit — misappropriation of funds — misleading people for the purpose of raising funds — registered charity — Wild2Free — wildlife care

DEFAMATION — defamatory matter — capacity to convey pleaded imputations — ordinary reasonable reader — ordinary and natural meaning of words — Grapevine effect — onus of proof on plaintiff — on the balance of probabilities — Jones v Dunkel — publications found to have conveyed some pleaded imputations

DEFAMATION — publication — multiple publications — emails — social media — Facebook — Facebook comments — defendants found to have published defamatory material — republication — defendants responsible for republication

DEFAMATION — harm — Defamation Act 2005-2019 — previous version of legislation applicable — assumption of harm — serious harm not necessary to prove — plaintiff suffered significant harm

DEFAMATION — defences — Defamation Act 2005 (NSW) — justification— triviality — honest opinion —contextual truth — lack of jurisdiction — where email was published overseas — common law qualified privilege — mutual interest and/or duty — reply to attack — where Facebook comments posted for a short period of time — onus of proof on defendants — plaintiff to prove malice in relation to qualified privilege — malice not found — plaintiff was not acting dishonestly

DEFAMATION — remedies — injunctive relief — general damages — aggravated damages — malice — where plaintiff had a good reputation — where plaintiff suffered hurt and damage to reputation — general damages awarded

Legislation Cited:

Conveyancing Act 1919 (NSW), ss 23C, 54A

Corporations Act 2001 (Cth), ss 180, 181, 182, 184

Defamation Act 2005 (NSW), ss 10A, 12A, 12B, 33, 34, 35, 36, 38, Sch 4, Pt 3

Cases Cited:

Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79; [2010] HCA 25

Ali v Nationwide News Pty Ltd [2008] NSWCA 183

Australand Holdings Ltd v Transparency and Accountability Council Incorporated [2008] NSWSC 669

Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5

Bell v Thompson (1934) 34 SR (NSW) 431

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Bristow v Adams [2012] NSWCA 166

Cantwell v Sinclair [2011] NSWSC 1244

Carr v Baker (1936) 36 SR (NSW) 301

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31

Cassell & Co Ltd v Broome [1972] AC 1027

Charleston v News Group Newspapers Ltd [1995] 2 AC 65

Clark v Ainsworth [1996] 40 NSWLR 463

Crampton v Nugawela (1996) 41 NSWLR 176; [1996] NSWCA 128

Cush v Dillon; Boland v Dillon (2011) 243 CLR 295; [2011] HCA 30

Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56

Eppinga v Kalil [2023] NSWCA 287

Fabre v Arenales (1992) 27 NSWLR 437

Fitzpatrick v Mirror Newspapers [1984] 1 NSWLR 643

Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84

Harbour Radio Pty Ltd v John Tingle [2001] NSWCA 194

Henderson v Queensland (2014) 255 CLR 1; [2014] HCA 52

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Lewis v Daily Telegraph [1964] AC 234

Li v Liao [2025] NSWSC 168

McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1147

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66

Papaconstuntinos v Holmes á Court (2012) 249 CLR 534; [2012] HCA 53

Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174

Rantzen v Mirror Group Newspapers Ltd [1994] QB 670

Ratcliffe v Evans [1892] 2 QB 524

Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57

Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52

RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3

Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1

Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65

West v Government Insurance Office of New South Wales (1981) 55 ALJR 544

Texts Cited:

Clerk & Lindsell on Torts (19th ed)

Category:

Principal judgment

Parties:

Laurae Michelle Harvey (Plaintiff)
Gary Henderson (First Defendant) (self-represented)
Sara Tilling (Second Defendant) (self-represented)

Representation:

Counsel:
R Rasmussen / A Cheema (Plaintiff)
Solicitors:
Kalantzis Lawyers (Plaintiff)

File Number(s):

2020/348051

Publication restriction:

N/A

JUDGMENT

1. HIS HONOUR: The plaintiff, Laurae Michelle Harvey (also known as Rae), sues the first and second defendant, Gary Roger Henderson and Sara Louise Tilling, respectively. The cause of action is defamation, and the plaintiff alleges that the defendants published emails and social media posts imputing, in general, that the plaintiff is a fraud and has misused charitable funds for her own personal financial benefit.

2. The impugned publications are:

1. an email from the defendants to a single email address recipient (although addressed to two persons);

2. an email from the defendants to the Executive Director of the American Red Lion Disaster Fund, which had provided funds to an organisation with which the plaintiff is associated and of which she is the principal;

3. an email from the defendants to a single recipient;

4. an email from the defendants to another single recipient;

5. a social media post made by the defendants on the Public Facebook page of the Animal Rescue Cooperative, read by at least two people;

6. social media posts made by the defendants on the Public Facebook page of ABC South East, which was read by at least ten people; and

7. a GoFundMe private message sent to a single recipient.

3. The plaintiff relies upon the grapevine effect regarding the publications and seeks damages (including aggravated damages) and a final or permanent injunction.

4. The plaintiff, Ms Harvey, is a committee member and founder of the registered charity Wild2Free, which, without delving into the detail at this point, is involved in wildlife care. Essentially, the two defendants, who were also involved in wildlife care, were involved in a dispute with the plaintiff over the ownership or use of certain items. The defendants considered that the plaintiff misrepresented the work of Wild2Free and, for the purposes of claims for funds, the ownership of certain property. The foregoing is a very brief overview of the issues between the parties and the issues involved in the proceedings.

The impugned publications

First matter complained of

5. The first matter complained of, as was briefly described above, is an email sent on or about 14 April 2020 to two persons, Yana De Valle and Simon Orbell, at a single email address. The email is Annexure A to the Amended Statement of Claim. It is in the following terms:

“Hi Yana and Simon

We just wanted to double check that you are not prepared to facilitate the distribution of financials and other documents related to the operations of Wild2Free? Failure to provide the financials is a breach of the Incorporated Associations Act, and there can be nothing to gain as ultimately we will obtain the documents. In light of Rae’s continued obstruction and fraudulent conduct it is our view she should be removed from the board immediately.

We do have some sympathy for the position Rae has put you in, but at the end of the day we are determined to see the charity function with proper governance, funds going where they are needed and it no longer be a private fundraiser for Rae Harvey.

We are following through with further action this week and would welcome the opportunity to discuss an alternative course of action.

Kind Regards

Gary & Sara.”

6. The plaintiff submits and pleads that the email publication (hereinafter “impugned publication 1” or “the first impugned publication”) imputes the following:

1. that the plaintiff is a fraud;

2. that the plaintiff has conducted herself fraudulently with respect to the operation of the Wild2Free charity;

3. that the plaintiff has run the Wild2Free charity as a private fund raiser for her own financial benefit; and

4. that the plaintiff has conducted the Wild2Free charity fraudulently.

Second matter complained of

7. Annexure B to the Amended Statement of Claim is an email dated 7 July 2020 from the defendants to Janelle Babington, the Executive Director of the American Red Lion Disaster Fund with the subject matter “Australian Bushfires”. This email (hereinafter “impugned publication 2” or “second impugned publication”) is an answer to an email from Ms Babington and is in the following terms:

“Two emails in 4 months is hardly harassment Janelle, but after labelling us as scammers and diverting funds elsewhere I had hoped you would have been able to justify your decision making.

I understand the difficult position you have been placed in, but honesty is always the best response and if you ever wish to clear the matter up please feel free to contact us. Hiding your involvement in fraudulent activity by Rae Harvey and misleading your donors is not the ideal way to define your most welcome attempt to support animals in Australia affected by the recent bushfires.

Thanks

Gary.”

8. An earlier email sent to Ms Babington on 5 July 2020, which forms part of impugned publication 2 is relevantly in the following terms:

“Again however I need to reach out to you in an attempt to clear our name after the unsavoury attack on our credibility by so called fellow wildlife carers in Australia. While your website is clear and compelling about your research, how is it that not one cent, I repeat not one cent of the money you collected from donors and forwarded to Australia for bush fire assistance was spent helping animals in need from that disaster?

Sara and I here at Cobargo Wildlife Sanctuary know exactly what happened after you offered us a donation by way of Facebook post. Recently at a board meeting for the Wild2Free charity Rae Harvey stated to the board that the entire correspondence between Wild2Free and American Red Lion consisted of just one email, and has refused to answer any questions about how the donation came about. At the time your donation was received, Wild2Free had some $600,000 in their account and that money, along with your donation sits there now doing absolutely nothing. The other two charities involved in the fraud, Little Urchins and Red Box Shelter were not in a fire affected area and did not help any fire affected animals. How can you feature Little Urchins with a joey not affected by the fires under the heading ‘Australian Wildfire 2019” ?

I understand it can be difficult at time to know who is telling the truth, but to label us as scammers while holding the other three up to be genuine is totally unacceptable. We are continuing to investigate this incident to try and find the main person responsible for fraudulently obtaining funds at our expense and the police are now involved. The issue is not the money, but the defamation of ourselves and disregard for the effort we have and still are putting into helping animals.”

9. Again, the plaintiff alleges that the foregoing email is defamatory and carries the following imputations:

1. that the plaintiff has misused funds donated by the American Red Lion Disaster Fund to the Wild2Free charity by not using those funds to help animals in need from the 2019 bushfire disaster;

2. that the plaintiff has committed a fraud upon the American Red Lion Disaster Fund;

3. that the plaintiff is involved in fraudulent activity along with Janelle Babington, Little Urchins and Red Box Shelter;

4. that the plaintiff and her Wild2Free charity is involved in a fraud with two other charities, Little Urchins and Red Box Shelter in that they falsely claimed to be in an area affected by the 2019 Australian Wildfire and falsely claimed to be helping fire affected animals; and

5. that the plaintiff fraudulently obtained funds at the expense of the Cobargo Wildlife Sanctuary.

10. Cobargo Wildlife Sanctuary is an enterprise run by the defendants.

Third matter complained of

11. The third matter about which the plaintiff complains (hereinafter “the impugned publication 3” or “third impugned publication”) is an email sent on 15 July 2020 from the same email address described as “Sara and Gary” to a single addressee, Margaret, who it seems was a nominee at the time to the board of Wild2Free. The publication is, like the two previous publications, short enough to recite and is in the following terms:

“Hi Margaret

We notice you have nominated to be on the board of Wild2Free and just wanted to drop you a quick line to ensure you know the environment you are entering if you are successful with your nomination. Rae is part of a small group of antagonists who seem intent on causing trouble to other carers and charities in this region, and this has resulted in a tarnished reputation for Wild2Free amongst genuine wildlife people.

We were on the board until recently resigning, but found it to be an absolutely awful experience. As you would know the charity is run by Rae Harvey, and until recently it existed purely to raise funds for herself as it does not offer any animal rescue service. She is currently paying herself a $700 per week land rental fee and until recently also paid her phone bill, water delivery, part of her rates and power bills and even her food. No other members were offered anything. Also Sara in particular was attacked through a unsubstantiated official complaint to the charity orchestrated by Rae Harvey.

Currently there are complaints lodged with ACNC, Fair Trading and the Police in regard to the conduct of Rae Harvey and Wild2Free, and Ray is trying to conceal the contents of an application which resulted in the charity receiving $50,000 from the NSW Government Bush Fire Relief Fund, to which we have written legal advice the charity was not entitled to.

Unless there is a significant change in attitude, the charity will also soon be involved in legal proceedings with regard to the allocation of funds raised through their sanctuary rebuild appeal and a failure to address a legitimate reimbursement claim.

If you are aware of the current situation and wish to be involved then of course that’s entirely up to you, but also if you would like clarification or further information feel free to give us a call.

Regards

Gary Henderson

Sara Tilling [phone numbers redacted].”

12. The email, which is Annexure C to the Amended Statement of Claim, is alleged to have the following imputations:

1. that the plaintiff ran the Wild2Free charity purely to raise funds for herself and not to provide animal rescue services;

2. that the plaintiff is trying to conceal from the ACNC, Fair Trading and the Police the contents of an application she made on behalf of the Wild2Free charity which resulted in the charity receiving $50,000 from the NSW Government Fire Relief Fund because she knew the application to have been illegally made by her;

3. that the plaintiff orchestrated an unsubstantiated and false complaint to the Wild2Free charity against Sara Tilling;

4. that the plaintiff has misappropriated funds received by the Wild2Free charity through its Sanctuary rebuild appeal;

5. that the plaintiff tried to conceal the contents of an application she made on behalf of the Wild2Free charity which resulted in the charity receiving $50,000 from the NSW Government Fire Relief Fund because she knew the charity was not entitled to it; and

6. that the plaintiff did not facilitate the Wild2Free charity allocating funds raised through its sanctuary rebuild appeal to address legitimate claims.

Fourth matter complained of

13. The fourth matter complained of (hereinafter “impugned publication 4” or “fourth impugned publication”) is another email to an individual, Anita Morgan, dated 15 July 2020 from the same email address. It is obvious from the terms of the email that the authors of the email understood that Ms Morgan was also a person who had nominated to be on the board of Wild2Free.

14. The publication, which is separately annexed as Annexure D to the Amended Statement of Claim, is, with the exception of addressees, in precisely the same terms as Annexure C. The allegations of imputations contained in the publication are in identical terms to those alleged in relation to impugned publication 3.

Fifth matter complained of

15. The fifth matter complained of (hereinafter “impugned publication 5” or “fifth impugned publication”) is a comment posted on a public Facebook page operated by the Animal Rescue Cooperative. The publication by Animal Rescue Cooperative (also referred to as “ARC”) refers to Wild2Free as “one of the most important shelters in the area” and states that volunteers were on the ground helping after the wildfires swept through the area and damaged or wiped-out properties. There was a reference to a particular joey (baby kangaroo or wallaby) which rescuers were trying to get to the shelter.

16. There are a number of positive comments on the Facebook post which praise the plaintiff and Wild2Free for their work. Among them is a reply to a comment, allegedly by the first defendant, which is in the following terms:

“The only person Harvey helps is herself. She helped herself to over 50K in charity funds last FY and took in one Joey.”

17. The plaintiff alleges that the foregoing post contained the imputations that:

1. that the plaintiff misused $50,000 of charity funds and took in one joey; and

2. that the plaintiff runs the Wild2Free charity for her own personal financial benefit and not for the purpose of rescuing animals.

Sixth and seventh matter complained of

18. It is alleged that, on or about 8 August 2020, the second defendant published comments on a post on the Facebook page of ABC South East NSW. There are four comments relating to the sixth and seventh matters complained of (hereinafter “impugned publication 6” and “impugned publication 7” or “sixth or seventh impugned publication” respectively).

19. Impugned publication 6 is under the name of the second defendant in the following terms:

“Carol Pittman that is lie, the gofundme was shut down and removed from Cobargo Wildlife Sanctuaries page in February and we have not and do not solicit for funds anywhere. Please remove your comment. However perhaps you are referring to Wild2Free as Rae Harvey continues to use the bushfires to raise money.”

20. There is another comment immediately below the first (still part of impugned publication 6) in the following terms:

“Claire Pragnell as I’m sure you are aware we have been purchasing the property since November last year. And please send me proof where we said we had nothing to do with the other org. you won’t be able to as we did not. You will also find that all of the fundraising by Rae Harvey used the Cobargo property. We also did not request 500K for a house. So please remove your comment as it is also completely incorrect.”

21. Impugned publication 7 is another two comments on the same post also under the name of the second defendant. In its totality, it is as follows:

“Carol Pittman, so looking after over 50 animals since the fires, doing wildlife feeds drops everyday in the surrounding area for some 3 months after the fires, doing rescues multiple times per week, giving animals a chance that no one else would, rehabilitating and successfully releasing injured and orphaned animals all from a caravan and now shipping containers, carers for some 12 years, 100% funded by ourselves until that gofundme, mentoring and assisting new carers, taking phone calls at 1am hurts ‘real sanctuaries’ does it. (sic) More than happy for 60 Minutes to come and see us, and speak to those that we have worked with and continue to work with over the past 12 years perhaps you can organise it for me, perhaps your ‘friends’ would also like to be a part of it? Let’s compare that to Wild2Free, over $80,000 spent mostly on her rates, personal groceries, phone, internet and 35K in payments to lease her own property, all charity funds, one Joey in care in the past 12 months, no rescues, no feed drops after the fires, nothing. That’s what gives sanctuaries a bad name.

…

Carol Pittman, well don’t make false and defamatory statements about us then.”

22. The plaintiff alleges that these publications carry the following imputations:

1. that the plaintiff takes money from people on the false pretence of continuing to use the bushfires to raise money for her Wild2Free sanctuary;

2. that the plaintiff will continue to take money from people on false pretences until she is caught out or cornered;

3. that the plaintiff has misused Wild2Free charity funds by spending $80,000 on her rates, personal groceries, telephone, internet and $35,000 to lease her own property; and

4. that the plaintiff is not running a genuine wildlife rescue charity because it has not rescued any animals after the fire and has conducted no feed drops after the fires and had only one joey in its care in 12 months.

Eighth matter complained of

23. On 30 August 2020, an email (“impugned publication 8” or “eighth impugned publication”) was sent from the same email address as earlier to Caitlin Williams. The subject matter is described as “New Message from Gary Henderson” and it is in the following terms:

“Hi Caitlin

I see that you are the organiser for this Rae Harvey fundraiser and believe I have information that suggests you been mislead (sic) by Rae Harvey in relation to her losses. I am investigating her actions over the last two years involving some questionable conduct, including fraudulently obtaining a financial advantage. My name is Gary Henderson and my phone number is [redacted].”

24. The plaintiff alleges that impugned publication 8 carries the following imputations:

1. that the plaintiff has mislead (sic) Caitlin Williams and those who contribute to her GoFundMe fundraiser on behalf of Rae Harvey about her losses;

2. that the plaintiff fraudulently obtained a financial advantage; and

3. the plaintiff is reasonably suspected of fraudulently obtaining a financial advantage.

Defences

25. The publication of the material is generally admitted by the defendants who raise a number of defences. In relation to impugned publication 1, the defendants raise the defence of justification pursuant to s 25 of the Defamation Act 2005 (NSW) in that the statements are true or substantially true. They also raise the defence of qualified privilege at common law and the defence of triviality pursuant to s 33 of the Act (since repealed).

26. The defendants deny that this Court has jurisdiction to hear and determine impugned publication 2 on the basis that the publication occurred in the United States where the email recipient is based. Further or in the alternative, they raise the defences of justification, qualified privilege and honest opinion pursuant to s 31 of the Defamation Act.

27. For impugned publications 3 and 4, being identical emails sent to two different recipients, the defendants raise the defences of justification, contextual truth pursuant to s 26 of the Defamation Act, qualified privilege and honest opinion.

28. As to the comment on the ARC Facebook page, being impugned publication 5, the first defendant denies that it was read and understood by 189 Facebook members (an allegation of the plaintiff) and submits that it was removed within no more than one hour of its posting by the moderator of the Facebook page. The defendants also raise the defences of justification, honest opinion and triviality.

29. In relation to impugned publications 6 and 7, being further Facebook comments, the second defendant admits that she published the comments but only in so far as it relates to paragraphs 9 and 11 of the publication in Annexure F2 and 4 and 5 of the publication in Annexure F1 of the Amended Statement of Claim. The second defendant denies that her comments were read by the persons alleged to have read them and pleads that the comments were edited and removed by the moderator of the Facebook page within two hours of being posted. The defendants also raise the defences of justification and qualified privilege.

30. For the last email, impugned publication 8, the defendants plead defences of justification, qualified privilege and contextual truth.

31. If liability be found, the defendants deny the entitlement of aggravated damages on the basis that the defendants held a genuine and honest belief in that which was published and did not publish the impugned publications for the purpose of injuring the plaintiff’s reputation.

Background

32. A brief history or recitation of some of the background needs to be provided. There are a number of uncontroverted facts which, while not directly relevant, allow a better understanding of the issues between the parties.

33. At eighteen years old, the plaintiff began promoting concerts and commenced managing various bands. She became well-known in the music industry amongst bands and had a number of them, the most famous of which was “The Living End” which achieved significant success.

34. As might be suspected in such an industry and at such a young age, the plaintiff faced financial difficulties, and her mother assisted her in paying off a $20,000 debt she had incurred from promoting concerts.

35. The plaintiff’s interest in wildlife care emerged following a car accident involving a possum, where she rescued a joey. The plaintiff trained as a researcher for Wildlife Victoria and commenced volunteering.

36. The plaintiff founded the animal charity Wild2Free with her partner at the time. Initially, they purchased properties in Runnyford and Yowrie in New South Wales, to establish a sanctuary for wildlife.

37. In 2017 to 2018, the plaintiff took on a number of kangaroos and joeys that were injured and needed rehabilitation. Apparently, she struggled to maintain her business as a band manager during that period. During that period or shortly thereafter, she and her partner arrived at the property at Yowrie (also called the Cobargo Property during the course of proceedings), but after three days or so there was a fire, and she left the property.

38. Initially, the Committee of Wild2Free was constituted by the plaintiff, her then partner, her partner’s sister, the daughter of her partner’s sister, and the plaintiff’s friend.

39. The plaintiff and defendants first came into contact in February 2018 when a mutual friend mentioned to the plaintiff that the defendants were looking for somewhere to release six kangaroos. The plaintiff and defendants reached an agreement, and the defendants moved into the Cobargo Property around May 2018. The defendants became members of the board of Wild2Free. They also donated money to Wild2Free for the purpose of purchasing equipment for the Cobargo Property.

40. The plaintiff and the defendants had a falling out, amongst other things, it seems, over the ownership, attempt to purchase and other aspects of the Cobargo Property and issues associated with equipment that it was alleged was purchased for the Cobargo Property.

41. Surrounding all of these events was the Black Summer Bushfires, which occurred at the end of 2019 and the beginning of 2020. As earlier stated, the fires burnt the Cobargo Property and the Runnyford Property.

42. The plaintiff alleged that the fire had destroyed extensive medical equipment for the kangaroos, pouches which were used for the care of joeys, medicines that were required, feed and a raft of other equipment. After the fires, the defendants, who were at the time of the fires residing in Tasmania, returned to New South Wales. They arrived at the very beginning of 2020. In their absence, there was a caretaker who, amongst other things, cared for the animals there.

43. A claim was made for a grant and for insurance monies relating to the fire. The defendants claimed (and still claim) that they were entitled to receive at least some of the insurance monies for the property. The issues as to the proper disbursement and receipt of the insurance monies, grant monies and the proper ownership of the Cobargo Property or the sale of the Cobargo Property ran through the dispute between the plaintiff and the defendants.

44. The details of the dispute and the issues between the parties, apart from the defamation itself, is a central theme in the evidence that was adduced and the cross-examination of the plaintiff and others. To the extent that the defendants seek to justify the material that was published, the truth of the statements in that material depends upon the allegations that gave rise to the dispute between the plaintiff and the defendants. It is necessary to deal with the evidence.

Evidence called by plaintiff

Rae Harvey, plaintiff

45. The plaintiff’s evidence in chief covered her early life and how she came to be managing various bands. Once the plaintiff became successful in managing bands, her functions included organising overseas and other tours, in some cases involving millions of dollars.

46. The plaintiff enjoyed a reputation for honesty and integrity together with dedication. Examples were given of the plaintiff acting otherwise than in self-interest in that context and the plaintiff thrived as a result of the reputation she enjoyed. Further, the plaintiff was very proud of that reputation, which included that she was “hard but fair”.

47. The plaintiff’s love of animals led her to become a vegetarian when she was a teenager, for a temporary period, and permanently when she turned 22. At one stage, the plaintiff volunteered in a cat shelter, while still managing bands.

48. One night, the plaintiff “clipped a possum on the road”; pulled over and saw it run across the road and climb a fence. When the plaintiff investigated to see if the possum was hurt, she found a joey alive in the gutter, picked it up and put it down her jumper. Because it was the middle of the night and vets were closed, the plaintiff called a wildlife group who requested that she drive it to a named carer, which she did.

49. While the plaintiff had no further involvement with that animal, the incident was the catalyst for the plaintiff to commence volunteering at the shelter to which she had taken the joey. It was the Emerald Monbulk Wildlife Shelter. The plaintiff volunteered there once a week.

50. Mainly, the plaintiff performed menial tasks at the shelter, but she established a “Mycause” campaign, which the plaintiff described as a precursor to GoFundMe. The campaign raised about $20,000 over a few months, mostly from friends of the plaintiff.

51. The plaintiff also volunteered for Wildlife Victoria, where she and others were on call as rescuers, which involved going out to rescue animals. The animals were kangaroos, birds and possums, for the most part the latter two.

52. The plaintiff met and commenced a relationship with Sayo Prentic in around 2014. After about 18 months of research and travel, mostly along the New South Wales coast, the couple purchased two properties at or near the highest concentration of kangaroos and wallabies, which was on the south coast of New South Wales. One of the properties was at Runnyford, which was 67 acres, and the other was at Illawambra (also known as Yowrie or Cobargo). The properties were purchased in the plaintiff’s name, with mortgages on each. These properties were purchased in 2016.

53. While the original intention was to move to the Runnyford Property, then to Yowrie, the vendor of the Runnyford Property was unable to settle immediately, and the couple leased the property for six months. The couple moved straight into Yowrie.

54. When the plaintiff moved into Yowrie, there were three small cottages, a small outbuilding and some stables on the property. There was also a machinery shed.

55. After two or three days, there was a fire at the property. The fire occurred on 4 July 2016. The plaintiff and her partner moved to Tuross Heads, which is just north of the township of Cobargo, where they stayed for two weeks after which time they moved to Runnyford. There was an insurance payout for Yowrie of $300,000 from Allianz Insurance. It seems that there was also a payout from Youi, but the amount is not in evidence.

56. In or about November 2016, the plaintiff and her partner commenced caring for kangaroos at Runnyford. They commenced with two kangaroos and within six weeks, had another two kangaroos together with two swamp wallabies. The plaintiff was able to commence caring for the kangaroos because she had joined the NSW Wildlife Information, Rescue and Education Service (WIRES) and completed the rescue course and a macropod care training course.

57. In order to care for a species, a person was relevantly required to obtain authorisation either from WIRES or from Wildlife Rescue South Coast. Those two organisations are licensed by National Parks and Wildlife, and they are the only two organisations in the area surrounding Runnyford that are licensed for that purpose. In turn, those organisations authorise members to care for animals and such authorisation depended upon a course having been completed.

58. At the end of 2016, or the beginning of 2017, the plaintiff and her partner decided to establish Wild2Free as a charity. For this purpose, external lawyers were involved and Wild2Free was registered with the Australian Charities and Not-for-profits Commission (ACNC) and as a Designated Gift Recipient (DGR), in the latter case with the Australian Taxation Office (ATO).

59. Initially, the care for the kangaroos was for the younger animals for whom care involved feeding every six hours with a bottle; toileting; creating and feeding baskets of bushfoods; and walking with them in the bush, so they could learn to live in nature. Vets would visit sometimes, but the majority of care was done by the carers and included giving antibiotics under vet direction. Medical supplies were needed, including the antibiotics that were otherwise prescribed, different syringes, different needles, other medication; and the joeys were kept in cloth pouches that were in stands designed for that purpose so as to simulate their natural environment.

60. There were four kangaroos that were cared for in 2016 and throughout 2017, there were approximately twelve. By 2018, Wild2Free would have cared for approximately 30 kangaroos. Records for the care of the animals were kept.

61. The plaintiff identified the “membership cards” for Wildlife Rescue South Coast for the years ending 30 June 2022 and 30 June 2024. It seems the other cards were destroyed in the Black Summer Bushfires. The plaintiff completed a number of courses with WIRES.

62. Files were tendered showing the care of animals. The overwhelming number were Eastern Grey Kangaroos; there were some red neck wallabies; some swamp wallabies and two cats, which increased to three cats. Otherwise, Wild2Free fed and watered birds, to keep them from eating the food for the wildlife and then fed possums. [1]

    1. Ex P1, p 262.

63. The files to which the Court refers in the preceding paragraph do not differentiate species but divide the animals between domestic, farm and wildlife for the period April 2017 until December 2022. [2] In total there were 9,461 animals in care. [3] The domestic animals in care between April 2017 and February 2018 were two and they were the same animal, being two cats.

    2. Other tables and documents in evidence differentiate the animals in greater detail.

    3. The number here specified may be overstated because if an animal were in care in one month and continued in care a second month, then the animal would be counted in those figures twice.

64. Some of the figures to which reference has been made were completed retrospectively from other documents, including photographs. The records were kept for the purpose of reimbursement of the plaintiff, who commenced recordkeeping because of the allegations that were made, some or all of which are the subject matter of these proceedings. The expenses to which these reports refer were approved by the Committee or Board of Wild2Free at a meeting at which the plaintiff was in attendance.

65. The plaintiff was taken to minutes of meetings and, in the course of those exchanges, explained that she and her then partner donated $30,000 to the charity to cover legal expenses associated with the formation of Wild2Free.

66. In October 2017, there was a benefit initially entitled “Rae’s Benefit Show”, which was held for the purpose of reimbursing for the fire and all that had been suffered as a consequence of the fire. The plaintiff testified that because her “whole life was Wild2Free and [she] saw … an advantage … by promoting the charity to the fans, the music fans in Melbourne”, Wild2Free was added to the benefit and the amounts raised were to be split 50:50 between Wild2Free and the plaintiff. The ticket sales drew in approximately $50,000 and there was merchandise for the charity which was sold at the event.

67. According to the plaintiff in evidence, by 7 November 2018, the second defendant had left the Committee of Wild2Free over a dispute. This date is inaccurate, but I do not consider that the plaintiff was deliberately misleading in this regard, as it seems there were two periods of Committee membership, which this may assume but not reference. According to the plaintiff, the defendants had donated over $30,000 for the purchase of equipment, including a Razorback mower and other items.

68. Further, there had been a falling out over rent to be paid by the defendants to the plaintiff for the Yowrie Property. The mower that was the subject of dispute was being used by the defendants to prepare the Yowrie Property for kangaroos and to maintain the property. The defendants were living at the Yowrie Property, and the plaintiff was living at Runnyford with her partner.

69. The plaintiff suffered financial setbacks as a consequence of the band, The Living End, terminating her services. They gave notice of termination and continued to pay until the end of the financial year June 2019. The arrangement with the band involved a profit share arrangement, which was to have continued for a further five years.

70. The arrangement provided for the plaintiff to receive a percentage of the profit obtained as a consequence of the performances. However, apparently, the plaintiff, as manager of the band, had received more of the profit than that to which she was entitled.

71. The amount received and to which the plaintiff was not entitled must have been significant. When the overdrawing was discovered, the profit share arrangement ceased after six months instead of continuing for the five years. As a consequence, it must be inferred that the overdrawing was equivalent to, approximately, four and a half years’ worth of the profit share.

45. The cessation of the income from the band caused the plaintiff to have concerns for her finances. The plaintiff was unable to sell a property owned through a company, because of the effect of capital gains tax, and could not sell Yowrie because the defendants were occupying it. This seemed to be the catalyst for the plaintiff requesting Wild2Free to pay rent for the use of the Runnyford Property.

46. This was agreed by the Committee and Wild2Free paid the plaintiff $2,895.83 per month. Wild2Free also paid 50% of the council rates referrable to Runnyford, and other items. [4] The plaintiff was in attendance during the meeting that passed these resolutions and in attendance during the discussion of these resolutions.

    4. Ex P1, p 381-2, Minutes of Committee 1 May 2019.

47. At or about this time, there was a dispute between the plaintiff and the defendants relating to equipment that was being utilised at Yowrie. The defendants had donated monies to Wild2Free, and equipment had been purchased, which was to be utilised, according to the defendants, at Yowrie. The equipment was utilised at Runnyford and the defendants sought to have the equipment transferred to Yowrie.

48. The evidence of the plaintiff is that Wild2Free received advice to the effect that it would be unlawful for Wild2Free to transfer the equipment to the defendants. The evidence does not establish that the defendants were seeking to transfer the ownership of the equipment to them. Rather, the request was that the equipment purchased with part of the donation provided by the defendants should be utilised by Wild2Free at the Yowrie or Cobargo Property and not the Runnyford Property.

49. Notwithstanding the dispute and some antagonism between the plaintiff and the defendants, there was a reconciliation between them, even though the dispute as to the equipment continued. On 29 July 2019, the plaintiff split up from her then partner and there were proceedings relating to the property that occurred in the Federal Circuit Court (as it was then called). The plaintiff sent the second defendant a copy of the plaintiff’s affidavit in the Federal Circuit Court proceedings.

50. During her evidence, the plaintiff was referred to a donation recorded in the minutes of the Committee on 14 August 2019 in which an amount of $30,000 was recorded as having been donated by the plaintiff or her related corporation. [5]

    5. Ex P2, p 393.

51. Because of the dispute between the plaintiff and her ex-partner, steps were taken to protect the funds of Wild2Free and a motion was passed at the meeting on 6 November 2019, acknowledging that there had been a pre-payment of rent to the plaintiff up to April 2020, which caused the accounts to show a loss greater than might otherwise be the case. The motion was moved by the defendants, without any complaint as to the payment of rent for the Runnyford Property. [6]

    6. Ex P1, p 386.

52. As a result of the departure of the plaintiff’s partner, it was alleged that the partner took property that had been purchased by Wild2Free, including a mobile phone, camera, camera lens, memory card, rechargeable battery and the like.

53. The minutes record that the organisation would be temporarily suspending care for animals in order to clean and repair property. At the time, the defendants, or one of them, was required to work in Tasmania and could not deal with Yowrie, and Runnyford required preparation for the bushfire season. The minutes record an animal report relating to the number of animals then in care, which animals were the subject of care at either Yowrie or Runnyford and the activities of the Wild2Free included that which was occurring at Yowrie/Cobargo.

54. At the time of the November 2019 committee meeting, the plaintiff was discussing with the defendants the proposition that the plaintiff would sell to the defendants the Yowrie (or Cobargo) Property. In or about December 2019, the first defendant crafted a document purportedly witnessing the sale of the property to them from the plaintiff and that document was signed by the plaintiff. The document was not drafted by a legal practitioner.

55. The agreement “for sale” was signed by the plaintiff on 28 November 2019 and by each of the defendants on 1 December 2019. It bears the hallmarks of a document not crafted by someone familiar with conveyancing.

56. Nevertheless, it is in writing and, subject to its terms, is capable of creating and disposing of an interest in land. [7] If the agreement were sought to be enforced, there could be arguments that the Court would have to consider. The enforceability of the agreement is only marginally relevant in the current proceedings.

    7. Conveyancing Act 1919 (NSW), s 23C.

57. The agreement defines and identifies the parties; the price; and the terms, although the legal effect of some of the terms may be the subject of debate. The agreement purports to relate to the purchase of the property, vendor finance and a number of conditions.

58. One of the difficulties associated with the opening clauses of the agreement is that it purports to record an agreement whereby “the vendor will sell to the purchaser” [emphasis added]. However, there is then a requirement for the purchasers to pay “on the commencement date” (a defined term) the payments required for a loan facility with the ANZ Bank, which, for 12 months, would remain in the name of the vendor and thereafter (or earlier) pay the remaining amount to the vendor, being the equity calculated by the agreed purchase price less the amount of the mortgage.

59. Under the subheading “Title”, the agreement is in the following terms:

“When the sale price is paid in full to the vendor, then the vendor shall make best endeavours to ensure the title (or remaining title) is then transferred to the purchaser.”

87. There are provisions relating to costs, stamp duty, default and a reference to a subdivision in circumstances where the “[r]emaining amount” has not been paid within six months of the commencement date.

88. Assuming all the necessary preconditions are fulfilled, and the parties have otherwise complied with the terms of their agreement, the agreement would probably be enforceable but may require an order of the Court requiring the vendor to complete a transfer or some other similar step. Nevertheless, on its face, the agreement is or seems to be enforceable, albeit in the absence of argument in relation to it and with the question as to the outcome of any enforcement. In other words, would enforcement of the agreement require a further agreement to be executed or allow for the transfer of the property to be ordered?

89. As is well known, there were significant bushfires in the area on the South Coast of New South Wales at the end of 2019 and the beginning of 2020. On or about 9 December 2019, the defendants were at Runnyford to pick up material, including goats, for transfer to the Yowrie Property. Yowrie, at the time, had a caretaker Leon who, it is said, cared for the animals there. The defendants returned to Tasmania.

90. At about 4am on 31 December 2019, the plaintiff became aware of the fire that was coming towards Runnyford. She had been woken up by a volunteer and a neighbour.

91. Initially, the plaintiff thought that the fire would miss her property, but eventually it became clear that it would not. The plaintiff was rescued by a boat operated by one of her neighbours. The plaintiff returned to Runnyford on 5 January 2020.

92. When the plaintiff returned, the house was destroyed. The house had been used for caring for joeys and kangaroos. It also contained medical supplies, all of which were destroyed. Further, machinery and all other equipment had been destroyed. When the plaintiff returned to the property, one of the male kangaroos, named Kanku, was protecting other kangaroos and relaxed when he heard the plaintiff’s voice.

93. A documentary called “The Bond” was produced focusing on the relationship between the plaintiff and Kanku. The documentary was produced for Discovery Channel in the United States. The documentary is in evidence as is a poster advertising the documentary. [8]

    8. Ex P2, p 591

94. The documentary displays the premises which includes the house in which the plaintiff lived. This had been rebuilt by July 2021. There was a joey house which had been rebuilt by approximately September or October 2021. Immediately after the fires, the plaintiff lived in what is described as a small cottage.

95. On 4 or 5 February 2020, the plaintiff engaged in a conversation with Ms Kat Agar-Teehan, in which Ms Agar-Teehan asked the plaintiff whether she owned the Yowrie Property and whether she had agreed to sell it to the defendants. The plaintiff responded to the effect that she had agreed to sell it to the defendants, but it was still owned by her at the time.

96. In the conversation, the plaintiff also indicated to Ms Agar-Teehan that the first defendant crafted the “contract”. After that first conversation, a second conversation occurred a few hours later during which Ms Agar-Teehan said that Sara Tilling (the second defendant) had made comments to the effect that the plaintiff was dishonest and Ms Tilling had been spreading rumours about the plaintiff.

97. The plaintiff recounted a conversation with Ms Agar-Teehan in which Ms Tilling described the second defendant as saying, it seems, that the plaintiff was a fraud and was corrupt and that the defendants were keeping her on and keeping her “sweet” until they “get the insurance money”. When the plaintiff was told this, her evidence is that she fell to the floor in shock.

98. Having heard this conversation from Ms Agar-Teehan, the plaintiff, it seems, formed the view that the defendants were isolating her from the “entire community” and “were really out to destroy” her and take everything that she had. At the time this conversation occurred, the first and second defendants were, respectively, the Secretary and President of Wild2Free. The plaintiff considered that she was in conflict with the defendants from February 2020.

99. The defendants were members of the Committee for Wild2Free until approximately August 2020, when they resigned. On 14 April 2020, the defendants sent an email to the plaintiff’s neighbours, Yana and Simon, to whom earlier reference has been made. Yana and Simon were members of the Committee as well. This is the first impugned publication.

100. The plaintiff was “hit pretty hard” when she read the word “fraud” in the first impugned publication. The publication referred to financials that had been or were being sought by the defendants.

101. It was the plaintiff’s understanding that the financials to which the publication refers were the list of donations received since 1 January 2020. There had been, according to the plaintiff, approximately 4,000 people who had donated monies to Wild2Free. According to the plaintiff, the plaintiff was not obstructing the provision of financials, which were eventually sent to the defendants around 30 April 2020.

102. The plaintiff was “mortified” and “shocked” when she read the passage accusing her of “fraudulent conduct” and expressed the view that the plaintiff “should be removed from the board immediately”.

103. The plaintiff was “surprised”, on reading the reference by the defendants to “proper governance”, because the second defendant had been on the Committee on two different occasions, and the first defendant had been on the Committee, each during this time and neither of them had raised the issue of governance. The plaintiff felt “an overwhelming need to justify” herself to her two neighbours.

104. The plaintiff denied that Wild2Free was being conducted as a “private fundraiser” for her. The plaintiff held her neighbours, Simon and Yana, in high regard and this exacerbated the concern that they would begin to believe the allegations and the perceived need to justify herself.

105. The Court next deals with the evidence of the plaintiff relating to the second impugned publication, the email exchange, at least in so far as it derives from the defendants, between the defendants and American Red Lion Disaster Fund or, more accurately, Ms Janelle Babington, its Executive Director. American Red Lion Disaster Fund is an organisation based in Wilmington, North Carolina, United States of America. Prior to this communication the organisation, American Red Lion Disaster Fund, had donated funds to Wild2Free.

106. The contents of the second impugned publication were dissected in questions, as may be obvious from the foregoing, and the plaintiff commented on how she felt about each of the statements. The plaintiff commented about paragraph 13 of the publication [9] in so far as it dealt with whether there was only one piece of correspondence between Wild2Free and American Red Lion.

     9. Ex P1, p 4.

107. The passage is, in and of itself, not defamatory and does not contain any material which gives rise to any of the imputations alleged in relation to the publication. [10] As to the passage in which it was alleged that Wild2Free had $600,000 in their account (approximately) and that nothing was being done with the money donated by American Red Lion Disaster Fund, the plaintiff said that she felt really angry in relation to it because there was so much trouble being caused within the Committee and nothing could get done. The defendants had, at that stage, reported Wild2Free to the ATO and the ACNC and the organisation had decided to freeze its funds until all of the issues were resolved.

     10. Tcpt, p 155, ln 20-26.

108. The plaintiff made an application on behalf of Wild2Free for a grant from NSW Services and received $50,000 for damage in the fire. The plaintiff is unaware of, or could not recall, the details of the machinery, equipment or other items that were compensated by the $50,000. During the course of discussions with NSW Services, the plaintiff referred to items at Runnyford and Yowrie.

109. The dispute on the Committee of Wild2Free continued and related to the application for the grant from NSW Services, insurance claims and payouts and the utilisation of money for purposes that were alleged to be otherwise than for Wild2Free. There also continued to be a dispute about the nature of the exchange between Wild2Free, or the plaintiff, and the American Red Lion Disaster Fund.

110. In or about September 2020, Wild2Free repaid the $50,000 grant from Services NSW. This followed a conversation between the plaintiff and an employee of Services NSW from which the plaintiff came to an understanding that Wild2Free was not eligible for the $50,000 grant in the first place. The plaintiff testifies that she had misunderstood the eligibility for the government grant.

111. Impugned publication 3 [11] was received by the plaintiff from Margaret Parke. Margaret Parke was a person seeking to nominate to the board of Wild2Free and who had nominated for election to the Committee at the AGM to be held in August. In that capacity, Ms Parke received the email from the joint email account of the defendants and forwarded it to the plaintiff.

     11. Ex P1, p 5, matter complained of C.

112. On reading the document, the plaintiff was “appalled, shocked, embarrassed, confused” and the plaintiff’s body reacted “like, it feels like all the blood is rushing through your body to the bottom of your feet”.

113. Ms Parke was a “great supporter of Wild2Free” and the plaintiff held her in high regard. Ms Parke had recruited the plaintiff to join the regional group for the Animal Justice Party. The first defendant had written to Ms Parke.

114. When asked about the allegation that Wild2Free was being operated to raise funds for the plaintiff, the plaintiff answered that, until the bushfires occurred, a large portion of the money raised by Wild2Free was coming from the plaintiff and suggested that it was therefore impossible for her to be “fraudulent” if the plaintiff were the one donating the money.

115. The difficulty with such a suggestion is manifest. If the money was donated by the plaintiff to Wild2Free and then returned to the plaintiff in a form that was not taxable, then the plaintiff would receive a tax deduction for the donation to Wild2Free, a DGR organisation, and gain a benefit from the tax not paid. However, to the extent that the monies were paid by way of rent for the property, the money would prima facie be taxable but would allow the plaintiff to deduct the expenses of the property as a business expenditure.

116. Further, to the extent that Wild2Free renovated or re-built fixtures on the property, such as the house, fixed sheds, fences and storage facilities, or otherwise made improvements to the property, it was increasing the value of the property, which did not belong to Wild2Free and increased the value of the plaintiff’s assets.

117. The third impugned publication alleges that Wild2Free did not “offer any animal rescue service”. The plaintiff testified that such a claim was not true and in support of that proposition the plaintiff relied upon her membership of Wildlife Rescue South Coast and the circumstances that Wild2Free had their “doors open for other animals and helped other animals”.

118. The plaintiff was “so angry” about the allegation that Wild2Free was paying her $700 per week, in circumstances that as at 15 July, the date of the email to Ms Parke, no such payments were being received. The plaintiff clarified that she had not been paid since November 2019, when an amount of $28,000 was paid in advance.

119. The arrangement is covered by a lease, which is in evidence. The leases, for two subsequent periods, are also in evidence. The first subsequent period of the lease was for the period 1 March 2020, to be reviewed on 30 June 2021. [12]

     12. Ex P4, p 1125.

120. The second lease period commenced on 1 July 2021 and was for a period of ten years, concluding 30 June 2031. [13] There is an option to renew for a further ten years.

     13. Ex V3, pp 3-123.

121. The rent payable in the second period was $3,750 per month, which, except as outlined here, increased each year (except in year three, 2024) by the greater of the CPI or 3%. The increases did not apply in the years commencing 1 July 2027, 1 July 2032 and 1 July 2037. [14]

     14. Ex V3, pp 3-126.

122. For the years commencing 1 July 2027, 2032 and 2037, an independent expert must be jointly instructed and paid for by the plaintiff and Wild2Free to determine the market rent, which would then form the rent payable in that year and to which the yearly increases would thereafter apply. Further, Wild2Free was to pay 80% of all council rates, levies, charges for the land, electricity supply and usage costs and charges, gas supply and usage costs and charges, water purchases, and bore water licence fees.

123. The plaintiff and Wild2Free were jointly responsible for the care and upkeep, maintenance and repair of improvements to the property and, without limiting that expression, these included dams, roads, inground and above water tanks, fences, pasture improvement, fire risk minimisation and all the plant, fittings, fixtures and equipment. The plaintiff was to pay labour costs associated with the slashing of paddocks.

124. The first lease, apart from setting the rent payable, continued the terms originally recorded in the minutes as the terms for the first lease agreement. The second lease agreement, which was much more formal, provided that the modular house and improvements known as the plaintiff’s home was to be for the exclusive use of the plaintiff, as was the 20 metre shipping container and any additional shipping containers brought onto the land by the plaintiff, an area of 400 square metres adjoining the northern side of the plaintiff’s home, three open bays and one lockup bay of the southern side of the seven bay machinery shed, and any pens or enclosures for the use of animals in the care of the plaintiff.

125. Otherwise, the plaintiff and Wild2Free would have shared use of: all other land with the exception of that for the exclusive use of the plaintiff; a six square metre shed near the plaintiff’s home; a 100,000 litre concrete underground water tank near the plaintiff’s home; a second such underground water tank; a third underground water tank in the paddock behind the Carer’s Cabin; a 25,000 litre concrete water tank behind the seven bay machinery shed; a 2,500 litre plastic water tank installed at the six square metre shed; the plaintiff’s tractor; animal shelters (five new animal shelters, each having an individual water tank); dams (three earth dams); five 2,500 litre plastic tanks at animal shelters; and any additional pens or enclosures for the use of animals in the care of the plaintiff or Wild2Free.

87. While the plaintiff’s tractor was for shared use, Wild2Free was to pay for all fuel and the cost of maintaining, servicing, cleaning and repairing the tractor. The rent payable in the first lease was $2,600 per month, which is a lesser rent than was charged commencing in 2021. It may have been the same rent, if adjusted at 3% per annum (or the increase in land value, see later), which calculation is not before the Court.

88. The terms of the lease that existed and was paid from 3 May 2019 or, to the extent appropriately summarised, is contained in the minutes of the meeting of the Committee of 1 May 2019, [15] and the lease called for annual rent of $34,750, payable monthly at $2,895.83 on and from 3 May 2019, with increases at 3% annually or the percentage increase in land value, whichever is the greater. The minutes of the November meeting record a prepayment of land rental of $28,958.30, paid between 1 July 2019 and 30 November 2019. At a rate of $2,895.83 per month, the prepayment was for a period of 10 months. The plaintiff, as earlier summarised, testified that it was paid in November 2019.

    15. Ex P1, p 381.

89. The minutes of the meeting held on 14 August 2019 record two months rental having been paid between 1 April 2019 and 30 June 2019. The minutes of the meeting of August 2019 do not show any comment about the prepayment of rent.

90. The financial accounts, such as they are, show that the occupation costs of Wild2Free were $36,375 in the financial year 2020, an increase up from $9,547 in the financial year ending 30 June 2019. The figure of $9,547 is over three months’ rent and the figure for 2020 is a figure which is greater than 12 months’ rent.

91. There may have been, and under the lease would have been, occupation costs over and above rent, but there is no independent record disclosing that the prepayment of rent was only until the end of April 2020. The figures suggest that the prepayment of rent was for a period longer than that suggested in the minutes. The rent was payable on or before the first of the month and the 10 months from December 2019 (i.e. for a period commencing on the first of the month after November) would conclude 30 September 2020. If the period commenced on 1 November 2019, then it would conclude on 31 August 2020.

92. As stated, the rent is payable in advance on a monthly basis and, if, as the testimony of the plaintiff records, the catalyst for the prepayment was the separation between the plaintiff and her then partner, the separation did not occur until August 2019. The payment therefore could not have been for a period commencing before 1 September. The first payment, which would have formed part of the prepayment, assuming for present purposes that the prepayment was made immediately upon the separation (which is a view to the benefit of the plaintiff) would have been the payment for September. The pre-payment was for ten months, as earlier indicated.

93. Consequently, the pre-payment was at the earliest, for the period September 2019 to 30 June 2020. The date of the publication was 15 July 2020. But for the two weeks between 1 July and 15 July 2020, to the extent that the publication imputes that the plaintiff was being paid a land rental fee, it was an accurate statement, at least up until 30 June 2020 and, under the lease between Wild2Free and the plaintiff, was an ongoing requirement. Further, if the plaintiff is accepted as to the November timing, it was, as stated a pre-payment for the period including either August or September 2020.

94. While the publication imputes that the amount paid was $700 per week, the amount was $34,750 per annum, which is approximately $666.50 per week. This figure does not include the automatic increases.

95. It is difficult to understand, in those circumstances, or on any rational basis, the testimony of the plaintiff that she was “so angry” as there was “no record of any expenses like that happening when that statement was made”, because the payments had stopped after that “large amount was taken in August 2019”. But the large payment was a payment in advance. If it were paid in August 2019, then it was being paid up to and including 30 June 2020. If it were paid in November 2019 to cover the period commencing 1 December, then, as already stated, it was payment in advance until 30 September 2020.

96. In relation to the third impugned publication, the plaintiff was asked about the use of the term “an unsubstantiated official complaint” against the second defendant. Asked whether there was an unsubstantiated official complaint against one of the defendants, the plaintiff answered that “there was an official complaint”. The plaintiff denied that the official complaint was “orchestrated” by her.

97. Paragraph 5 of the third impugned publication refers to complaints lodged with the ACNC, Fair Trading and the Police in regard to the conduct of the plaintiff and Wild2Free and states that the plaintiff “is trying to conceal the contents of an application”. The plaintiff denied trying to “conceal the application” and said she felt frustrated by paragraph 5 of the third impugned publication. She also testified that the application “did not exist” and that the plaintiff could not provide an application that she did not have. However, the passage refers to the contents of the application, not a copy of it.

98. The plaintiff does not explain how she came to be in receipt of the communication between the defendants and Ms Parke, but the overwhelming inference is that Ms Parke sent it to the plaintiff, which was the subject of later evidence.

99. Notwithstanding the attempt by the defendants to discourage Ms Parke from nominating for the Committee of Wild2Free, Ms Parke did nominate and became a member of the Committee. Either Ms Parke or the plaintiff gave the Committee the document for discussion at a meeting.

100. The plaintiff was then taken to the fourth impugned publication, which is to the same effect as the third impugned publication. This was received by the plaintiff a week or two after she had received the third impugned publication.

101. Nevertheless, it seems that the original emails were sent on the same day, approximately eleven minutes apart. The fourth impugned publication was an email from the defendants to Anita Morgan. Ms Morgan was also seeking to nominate to the Committee of Wild2Free.

102. This email, I infer, was sent by Anita Morgan to the plaintiff and, on the evidence of the plaintiff, which in this respect I accept, was tabled at a committee meeting. Further, the plaintiff republished the material to her neighbours, Simon and Yana, to whom earlier reference has been made.

103. The plaintiff then gave evidence relating to the fifth impugned publication which is a screenshot of the public Facebook page of the ARC. The particular post contains a photo of a kangaroo and a fire trailer, each named “Riley”. Above the photograph is a general comment, I infer, by the administrator of the Facebook page of ARC. That content is in the following terms:

“Wild2Free is one of the most important shelters in the area. Alli and the team in South Coast were on the ground helping straight after the fires came through. No one could experience what the south coast rescuers went through when their properties were wiped out and the damage was done. No one. In years to come there will be studies into the personal impact on the community, we can never thank them enough for the sacrifices they have all made to help animals.

We are really looking forward to getting Riley to the shelter and helping cart water and move supplies around. Thank you everyone for supporting this project.”

143. The reason the fire trailer was called Riley was as a result of the donation and the capacity, on donation, to name the fire trailer. Relevantly after some complimentary comments about the plaintiff, there is a particular complimentary comment by Paula Griggs. The comment by Ms Griggs is in the following terms:

“Rae Harvey of Wild2Free Inc - Kangaroo Sanctuary - helps dozens of shelters nationally

she is an inspiration for united supportive advocacy for a roos (sic). a silent achiever who asks for nothing in return.

Happy that Riley will help this amazing shelter.”

144. There is then a comment under the name Gary Henderson, the first defendant, which is in the following terms:

“Paula Griggs The only person Harvey helps is herself. She helped herself to over 50K in charity funds last FY and took in one Joey.”

145. The screenshot that discloses the comment under the name Gary Henderson, was taken, on the records portrayed on the screenshot, five minutes after it was posted.

146. On the evidence of the plaintiff, two people spoke to the plaintiff about having read the comments: Paula Griggs and Ms Kat Agar-Teehan. Further to those two persons, Ms Jodie Blackney posted a comment. Although it is unclear from the comment itself, knowledge of the operation of Facebook suggests it is a comment on the ARC post. While the plaintiff has a memory of talking to Ms Blackney about the post, the memory is at best hazy, and the evidence does not support the inference that Ms Blackney read the allegedly offending posts.

147. Asked about the truth of the imputation said to arise from the fifth impugned publication, the answers were, at least in part, equivocal in some respects. The plaintiff denied that the only person that the plaintiff actually helped was the plaintiff herself.

148. The plaintiff also denied that she helped herself to $50,000 of charity funds in the last financial year and took in one Joey. Asked how many joeys and kangaroos the plaintiff (for which I read Wild2Free) took in during the previous year, the plaintiff could not recall the number and said it was a difficult year because of the bushfires and they “were caring for a lot of kangaroos that had been affected by the fire”.

149. The plaintiff then gave the number of joeys that were in care at the time of the fire, all but two of which were released between July and December 2019. After the bushfire, Wild2Free was not really “equipped to do a lot”.

150. In March 2020, Wild2Free had “one joey and an adult female kangaroo in care” and were “feeding and providing everything for the animals, the kangaroos that [had] been released that were relying on us”. Given that the evidence of the plaintiff was that all but two of the kangaroos were released prior to the fire and there were two (a joey and a kangaroo) in care in March 2020, it seems that no additional kangaroos or joeys were taken into care in that period.

151. The plaintiff felt overwhelmed when she read the comment and felt that she could not defend herself anymore. The plaintiff felt defeated and was particularly concerned because of the nature of the page upon which the comment was published.

152. Her concerns as to the nature of the page were because ARC was a “really active charity after the bushfires” and active in raising funds to help animals affected. As a consequence, a large number of people were posting and following its webpage and Facebook page, and the plaintiff was concerned about how the posting by the first defendant was going to “affect the charity [Wild2Free] moving forward”.

153. There are approximately 20,000 followers of the ARC Facebook page.

154. The terms of the sixth impugned publication were then the subject of examination. The publication is a little difficult to follow. Reading the whole of the document, the necessary inference is that there are comments by Carol Pittman in reply to Linda Crutz; by Claire Pragnell in reply to Kipa Anne; by “Rebel Withacause” in reply to Kipa Anne; and then two comments by the second defendant.

155. The second defendant’s comments are in reply to the comments by Ms Pittman and Ms Pragnell. The first three comments concern the Cobargo and Yowrie Property. It is irrelevant for the current proceedings but necessary to remark that the first three comments on the page are uncomplimentary of the Cobargo Wildlife Sanctury.

156. Those comments accuse the Cobargo Sanctury or the defendants of taking money from anyone until they get caught or cornered and hurting “good decent sanctuaries”. The second comment (by Ms Pragnell) asks, rhetorically, why they would spend 500k on a house on a property the sanctuary does not own; how it was raised off the back of their Sanctuary; and alleges that the money was raised by the other organisation which the defendant said on one of their posts after the fires that they had nothing to do with.

157. The third comment refers to the circumstance that it is not “their Sanctuary” and is not “their land”. It alleges that it was not a sanctuary at all; that the defendants were not there to look after their animals, because they put in a caretaker and were leasing the land.

158. In relation to those comments, the second defendant made two comments in the following terms:

“Carol Pittman that is a lie, the GoFundMe was shut down and removed from Cobargo Wildlife Sanctuary’s page in February and we have not and do not solicit for funds anywhere. Please remove your comment. However perhaps you are referring to Wild2Free as [the plaintiff] continues to use the bushfires to raise money.”

And then:

“Claire Pragnell as I am sure you are aware we have been purchasing the property since November last year. And please send me proof where we said we have nothing to do with the other org (sic). You won’t be able to as we did not. You will also find that all of the fundraising by [the plaintiff] used the Cobargo Property. We also did not request 500K for a house. So please remove your comment as it is also completely incorrect.”

159. Neither comment was seen by the plaintiff on Facebook. One or more screenshots of the comments were sent to the plaintiff. When she saw the comment, she was “freaked out by it”, because of the concern as to how many people were commenting and becoming involved.

160. A number of wildlife carers were commenting on the post. The plaintiff was “really angry” at the comment by the second defendant that Ms Pittman may have been referring to Wild2Free, because, at the time, Wild2Free was not doing any fundraising.

161. The plaintiff was angry about the comment relating to the GoFundMe page having been shut down because she believed it was not true. However, the comment did not relate to anything that the plaintiff or Wild2Free was doing.

162. The seventh impugned publication is a continuation of the comments of the sixth impugned publication. Again, it commences with some uncomplimentary comments about the defendants and Cobargo Wildlife Sanctuary. In the course of the comments, the second defendant posted:

“Carole Pittman, so looking after over 50 animals since the fires, doing wildlife feed drops everyday in the surrounding area for some three months after the fires, doing rescues multiple times per week, giving animals a chance that no one would, rehabilitating and successfully releasing injured and orphaned animals all from a caravan and now shipping containers, carers for some 12 years, 100% funded by ourselves until that GoFundMe, mentoring and assisting new carers, taking phone calls at 1am hurts ‘real sanctuaries’ does it. (sic) More than happy for 60 Minutes to come and see us and speak to those that we have worked with and continue to work with over the past 12 years perhaps you can organise it for me, perhaps your ‘friends’ would also like to be part of it? Let’s compare that to Wild2Free, over 80,000 spent mostly on her rates, personal groceries, phone, internet and 35K in payments to lease her own property, all charity funds, one Joey in care in the past 12 months, no rescues, no feed drops after the fires, nothing. That gives sanctuaries a bad name.”

163. Ms Pittman replied that she did not need the second defendant’s permission or narrative, to which the second defendant replied to Ms Pittman enjoining her not to “make false and defamatory statements about” them, to which Ms Pittman replied in a like manner and suggesting that the second defendant did not intimidate her and that it was she, the second defendant, and/or the first and second defendant, that was defaming people.

164. As a consequence of these posts and talking to her friends about them, the plaintiff felt that she needed to justify herself. She did not like and had never previously been required to justify herself.

165. Impugned publication 8 is an email sent from the defendants’ email address to Ms Caitlin Williams, who, apparently, was an organiser for a GoFundMe page relating to either the plaintiff or Wild2Free. The email suggests that the author believes he has “information that suggests you have been mislead (sic) by [the plaintiff] in relation to her losses. [The author is] investigating her actions over the last two years involving some questionable conduct, including fraudulently obtaining a financial advantage”. It is signed off with the name of the first defendant and his phone number.

166. Caitlin Williams was a longtime fan of the band, The Living End, which the plaintiff had managed for some 22 years. The GoFundMe page was a fundraising attempt in 2016 for money for the plaintiff. As far as the plaintiff is aware, the fundraising activity was no longer active.

167. The plaintiff considered it was embarrassing that people who had supported the band for decades were now being brought into the dispute.

168. Evidence was adduced that Ms Williams told three others who were fans of the band. Such evidence is not evidence of the truth of that fact, but is relevant to the level of hurt, if any, suffered by the plaintiff because she understood that more people were involved in the dispute and were aware of the nature of the allegations. [16]

     16. Mirror Newspapers v Fitzpatrick [1984] 1 NSWLR 643 at 647 (Hutley JA).

169. Questions were then asked of the plaintiff relating to a letter from the first defendant to the auditor for Wild2Free. [17] This document is not a publication complained of in the proceedings and the correspondence occurred over 30 and 31 July 2020.

     17. Ex P1, pp 301-307.

170. Even though the correspondence and questions of the auditor are not part of the matters complained of, they are, it seems, tendered by the plaintiff as evidence of the campaign and/or malice motivating the defendants. There is further reference to correspondence with one or more insurance companies relating, at least inferentially, to the proposition that the plaintiff has claimed compensation for an event under each of two insurance policies. The claim relied upon an affidavit of the plaintiff filed in family law proceedings. The affidavit had been given to one or other of the defendants by the plaintiff.

171. While the plaintiff testified that she considered the affidavit confidential, there is no evidence to suggest that she had requested of the defendants that it remain confidential. Rather, there is reliance upon the nature of the document itself and the circumstance that it was part of the family law proceedings.

172. Reliance was also placed on an email exchange between the first defendant and Yana del Valle, under the subject heading “Wildlife Fraudster”, which suggests that the plaintiff taking these defamation proceedings is akin to putting “herself on trial for fraud”. The email invites the recipient to feel free to share the attached document (the Amended Defence in these proceedings filed by the second defendant). The email was forwarded to Costa Green, who, it is alleged, already knew about the document.

173. Reliance was also placed upon an email from the defendants to Ms Jenny Packwood, which was copied to Anne Cherry and Joy Weatherall, each of whom is at Wildlife Rescue South Coast. Again, as with the earlier correspondence, this document is not a matter complained of but seems to be relied upon as part of the “grapevine” effect. It also attached the Amended Defence filed by the second defendant in these proceedings. The plaintiff testified that she was “really upset” that people were going to read the defence and believe everything that was written in it. The relevance of being upset at the filing of a defence in proceedings is not immediately apparent.

503. As to impugned publication 5, the Court has already dealt with the truth of the imputation that Wild2Free was run for the plaintiff’s “own personal financial benefit and not for the purpose of rescuing animals”. Apart from the distinction that arises from the circumstance that Wild2Free was not licensed to rescue animals, it cannot be said, on the evidence before the Court, that the plaintiff ran Wild2Free “for her own personal financial benefit”. This imputation is not justified.

504. Further, for reasons already provided, the monies transferred from Wild2Free to the plaintiff were not a “misuse” of the funds of the charity. The imputations that are said to arise and have been held to arise separately in relation to impugned publication 5 do arise, are defamatory and are not justified or true.

505. The two emails to persons who were nominating for the Board of Wild2Free, the third and fourth impugned publications, have, as questions of fact, largely been the subject of earlier comment. It is necessary to formalise the findings that arise from the earlier comments.

506. Imputation (i) arises and is not justified. The same can be said for imputation (ii). Even if the plaintiff did, to some extent, conceal from the Court, the ACNC, Fair Trading and the Police, the contents of the application for the $50,000 grant from the NSW Government, it has not been shown that the conduct in failing to reveal the contents of the application was undertaken because the plaintiff “knew the application to have been illegally made” by her or anyone else.

507. Nor have the defendants satisfied the Court on the balance of probabilities that the plaintiff’s complaint against the second defendant was “unsubstantiated and false”. It may well have been each or both, but the evidence before the Court does not require the Court to come to that conclusion and the Court does not conclude that the allegation is true.

508. For reasons already given, I do not consider that the defendants have proved, on the balance of probabilities, that the plaintiff misappropriated funds received by Wild2Free through its Sanctuary Rebuild Appeal. I consider that the ordinary reasonable reader would consider that dishonesty or knowing misuse was necessary for misappropriation to have occurred.

509. Like fraud, the legal, criminal or equitable and technical meaning of misappropriation is only marginally relevant. That which is relevant is how the ordinary, reasonable reader would understand the allegation.

510. The earlier comments have dealt with the content of imputation (v) to the third and fourth impugned publications, which deals with the concealing of the contents of the application for the $50,000 grant because the plaintiff knew that the charity was not entitled to the grant.

511. As to impugned publication 2, imputations (ii), (iii), (iv) and (v) each allege fraud or fraudulent conduct. For the reasons already given, I do not consider that the defendants have proved on the balance of probabilities that the plaintiff was engaged in fraud or knowingly dishonest conduct.

512. The only remaining imputation is that the plaintiff misused funds donated by American Red Lion Disaster Fund to Wild2Free by not using those funds to help animals in need from the 2019 bushfire. As already described, after the allegations were made by the defendants as to the eligibility of Wild2Free to the Government grant and the misuse of funds in other respects, expenditure by Wild2Free was frozen. The fact that funds were not expended immediately does not result in the conclusion that the funds were not used to help animals.

513. Further, to the extent that funds were used to pay rent for the property on which Wild2Free operated or for other expenditures of Wild2Free, in circumstances where Wild2Free was helping animals in need, those funds were being used to help animals in need.

514. The Court is not satisfied that the funds were used to help animals in need from the 2019 bushfire disaster, but the Court is also not satisfied that they were not used for such a purpose. Given that the defendants bear the onus of proof, imputation (i) in impugned publication 2 has not been proved to be true and is not justified.

515. Each of the imputations that are said to arise from the first impugned publication involve either fraud or fraudulent conduct or the operation of Wild2Free as a private fundraiser for the plaintiff’s own financial benefit. Each of those matters and the conclusions arising from the evidence has already been discussed. Each of the separate imputations that arise as a result of the first impugned publication is defamatory and is not justified or true.

516. Having dealt with the defence of justification, it is necessary for the Court to deal with the other defences raised by the defendants in these proceedings. First, the Court will deal with the issue of qualified privilege, which falls into two subcategories: reply to attack; and mutual interest and/or duty.

517. The Court has already discussed the submission of the defendants that the mere fact that the attack to which a publication is a reply is published by a “third person”, being a person other than the person defamed, does not of itself negate the availability of the qualified privilege of reply to attack.

518. The qualified privilege of reply to attack is raised in relation to the social media posts, being impugned publications 6 and 7. As already discussed, impugned publication 7 was a post placed upon the ABC South East Facebook page in which there had been no attack on the defendants. The alleged attack on the defendants was on a different social media page and it has not been shown that the readership is the same or even similar. Indeed, it has not been shown that the readership overlaps.

519. It is unnecessary to determine whether, of itself, the circumstance so described would deny to the defendants the availability of the qualified privilege of reply to attack because there are other reasons why these social media posts fall into the same category as impugned publication 6.

520. Essentially, the defendants seek to defend, with this argument, an attack on the plaintiff as a result of an attack on the defendants or their organisation. The defendants, in refuting the allegations made against them and the Cobargo Wildlife Sanctuary, volunteer the information that criticises Wild2Free and/or the plaintiff.

521. Such defamatory material is the equivalent of suggesting that an allegation of corruption by a politician, for example, can be answered by submitting that other politicians are corrupt. The example is not intended to single out politicians. Such an example would apply to any occupation in which an allegation of corruption would be damaging.

522. As earlier expressed in relation to the principles associated with the qualified privilege of reply to attack, the determinant of whether the qualified privilege applies to the particular publication and/or imputations depends upon the relevance of that which is said to answer the attack. It is not relevant to the question of misconduct or corruption by the defendants or Cobargo Wildlife Sanctuary that another sanctuary, in particular the plaintiff and/or Wild2Free, is also, or is otherwise, corrupt, fraudulent or giving wildlife sanctuaries a bad name.

523. The qualified privilege allows the defendants to answer the attack and, in so doing, publish defamatory imputations that are relevant to the answer to the attack. It does not allow the publication of defamatory imputations that are irrelevant to the attack made against them.

524. When it is alleged that the defendants and/or Cobargo Wildlife Sanctuary have conducted themselves in a manner which involves damaging the reputation of either one or both, a comment that another organisation or another person has behaved in that manner is not an answer to the attack on the defendants. I consider that the attack by the defendants on Wild2Free and/or the plaintiff in these social media posts, while intended to be part of a reply to attacks on the defendants, makes allegations that harm the plaintiff, are damaging to the reputation of the plaintiff, and the allegations are irrelevant to the attack on the defendants and the Cobargo Wildlife Sanctuary. The qualified privilege of reply to attack does not apply to the social media posts.

525. It is then necessary to deal with the qualified privilege arising from alleged “community of interest”.

526. On 14 April 2020 when the first matter complained of was sent to Mr Orbell and Ms de Valle, the defendants were members of the Board of Wild2Free as were the recipients of the publication. Similarly, on 7 July 2020, when the second matter complained of was published to Ms Babington of the American Red Lion Disaster Fund, the defendants were members of the Committee of Wild2Free.

527. When the third and fourth impugned publications were sent, in July 2020, the defendants or one of them was a member of the Board of Wild2Free and the recipients were nominees for the Board. None of the other matters complained of were contained in publications that are even arguably the subject of mutual interest.

528. There can be no mutual interest between the defendants and all of the readers of the ABC South East NSW Facebook page.

529. Impugned publication 8 was sent to the organiser/administrator of the GoFundMe fundraiser page for Wild2Free, which was no longer operative. It is unarguable to suggest that there is a mutuality of interest between the defendants, or either one of them, on the one hand, and, on the other hand, the recipients of any one of those latter publications.

530. I return then to the first four impugned publications for which the defendants claim qualified privilege based upon mutual duty/interest. The principles associated with qualified interest under this rubric have been previously outlined in these reasons.

531. As earlier stated, Wild2Free was a corporation which operated as a charity and was registered under the ACNC and possessed DGR Status under the provisions supervised by the ATO. Consequently, each of the members of the Board of Wild2Free are directors or officers of the corporation and while, because incorporation occurred under the Associations Incorporation Act2009 (NSW), they are not bound by all the terms of the Corporations Act 2001 (Cth), they still owe duties to the corporation and to the members of the corporation. I discuss those duties or interests by reference to the Corporations Act, but only because it codifies, in relevant respects, the duties owed by the officers.

532. If there were, as alleged, misappropriation of funds or fraudulent conduct, then each of the members of the Board had an interest in knowing of such conduct and a duty to act in the interests of the corporation (and its members) to ensure such conduct had ceased. Further, as officers of the corporation, they were required to exercise their powers and discharge their duties with a degree of care and diligence that a reasonable person would exercise if the reasonable person occupied the office or were a director. [106]

     106. Corporations Act, s 180; the common law would require similar duties.

533. Further, or in the alternative, each of the directors are required to exercise their powers and discharge their duties in good faith in the best interest of the corporation and for a proper purpose. [107] If, as was alleged, the plaintiff were using her position improperly to gain an advantage for herself or cause the corporation detriment, and the other officers knew or were involved in that contravention, the plaintiff and each of the other officers would also be in contravention of such duties. [108]

     107. Corporations Act, s 181.

     108. Corporations Act, s 182.

534. Thus, if the allegations or imputations published by the defendants to other members of the Board were imputations or allegations relating to the improper use or the position of the plaintiff in Wild2Free for her own personal gain, or dishonestly using her position for that purpose and/or not acting in good faith, it was a reciprocal duty of each of the members of the Board of Wild2Free to publish that which they knew of that circumstance and to ensure that the other officers of the charity were aware of it. There was a mutual interest and/or duty involved in the publication of such allegations.

535. Further, to the extent that a person was nominating for a position on the Board of Wild2Free, there is an obligation and/or duty or interest to know that which is being alleged of the corporation and the conduct of its officers that are in breach of duties and the principles of good governance. Each of these publications (except impugned publication 2) involve the mutuality of interest or community of interest and/or duty, such that qualified privilege arises in relation to the communication.

536. It matters not that the communication may be untrue. However, the Court does not conclude that the imputations are untrue. The Court has concluded that the defendants have not proved the imputations that arise to be true, but that is a different concept.

537. I hold that each of impugned publications 1, 3 and 4 is a publication to which qualified privilege applies as a defence to the defamation proceeding. I do not consider that there is the requisite mutuality of interest or duty between the defendants and Red Lion Disaster Relief Fund or its officers.

538. The plaintiff submits that the defence of qualified privilege is vitiated by malice. As a principle, malice will defeat the defence of qualified privilege.

539. As to malice, there are a number of comments that need to be made. First, it has not been proved that, on the balance of probabilities or otherwise, the defendants knew that the allegations were untrue.

540. Secondly, the circumstance that the defendants may have been conducting a campaign is not, of itself, a basis for defeating qualified privilege. The campaign, in order to defeat qualified privilege, must be for an improper purpose. A campaign may be evidence of an improper purpose.

541. The plaintiff submits that there were a number of purposes that can be inferred for the campaign. It is said that those inferences arise from the evidence before the Court.

542. If a purpose of the campaign was to ensure that Cobargo Wildlife Sanctuary received a distribution of monies raised from the fundraising activities to which reference has already been made, such a purpose does not, if it were improper, defeat qualified privilege. The plaintiff must prove the substantial or operative purpose for the campaign and that the purpose was improper (not different).

543. Conduct may have a number of purposes. It is only when the operative purpose of the conduct is “improper” that malice has been disclosed, and the qualified privilege is defeated.

544. The evidentiary findings of the Court have been set out in some detail. There is no doubt that there is animosity between the plaintiff and the defendants. The animosity may have a rational basis. It is unnecessary for the Court to determine that question.

545. The findings of the Court, as set out above, are that: the plaintiff and Wild2Free misled donors as to the activities of Wild2Free in rescuing animals; significant amounts of money were paid from Wild2Free to the plaintiff for rent and outgoings; funds were raised by Wild2Free on the basis, amongst other things, of the losses incurred at Cobargo and there was no distribution to Cobargo from those funds raised; while Cobargo Wildlife Sanctuary is a separate operation now, there was a time when Cobargo was part of Wild2Free and the defendants donated monies for equipment to Wild2Free for use at Cobargo, but the monies were not used for purchase of the equipment for that Sanctuary; and, the defendants as members of the Board of Wild2Free and the operators of the Sanctuary at Cobargo were aggrieved by the level of payments to the plaintiff and the failure of Wild2Free to distribute funds raised proportionately to the benefit of the Cobargo Sanctuary and the delivery of the machinery for use at the Cobargo Sanctuary.

546. The Court has not concluded, on the basis of the evidence adduced, that the defendants knew that the conduct of the plaintiff was not fraudulent, was not misappropriation and was not the misuse of funds. While the Court has concluded that it has not been proved that there was misappropriation or misuse of funds, or dishonesty and, more relevantly, that the defendants have failed to prove any impropriety, the Court is not satisfied that the “campaign” and, more relevantly, the publication of the documents, was for an improper purpose in that such improper purpose was an operating factor on the publication.

547. Consequently, the Court is not satisfied that the defendants have acted with malice relating to impugned publications 1, 3, and 4, and the claims for qualified privilege on the basis of community of interest operate as a defence to the defamatory publications.

548. I turn then to the American Red Lion Disaster Fund publication. This publication occurred in the United States of America as it was an email to the United States which was, in the sense earlier referred to, downloaded in the United States and published there. The plaintiff submits that the Court should operate on the presumption that the law in the United States, absent proof of the law, is the same as that which operates in Australia. The difficulty with such a presumption is that it is rebuttable. It is also a presumption that cannot operate in the face of common sense.

549. The Court is aware that defamation law in the United States of America is different from that which operates in Australia. While the Australian Constitution (especially Chapter III) is modelled on the Constitution of the United States of America, the Australian Constitution does not have a Bill of Rights.

550. No Australian legal practitioner would be unaware of the First Amendment to the Constitution of the United States which forbids laws abridging the freedom of speech, freedom of the press and the right of assembly.

551. Nevertheless, the freedom of the press guaranteed by the First Amendment does not qualify defamation law as it applies to persons who are not public figures. In the case of public figures, knowing or reckless conduct of the publisher must be proved. However, this is not a publication that concerns public figures.

552. Even though the Court is aware that there are different burdens of proof and a different onus of proof of some of the details associated with defamation law in some States of the United States of America, it is appropriate, at least relating to a person who is not a public figure, to operate on the presumption that the law in the United States of America as to defamation is the same as operates in Australia.

553. As a consequence, the submission of the defendants that the Court ought to dismiss the claim in relation to the publication is not accepted. Further, the Court has jurisdiction to determine the claim, even though the lex loci delicti (the location where the tort occurred) is the United States. As already stated, qualified privilege does not apply to this publication and damages will be assessed.

554. The defendants raise the defence of “triviality”, which, under the law as it operated at the time relevant to these proceedings, was an aspect of the Defamation Act. [109] The provision was repealed when the legislature required “serious harm” as an element of the cause of action. The terms of s 33 were as follows:

“It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.”

109. Defamation Act 2005-2019, s 33.

593. The defence requires that the circumstances of the publication were unlikely to cause any harm. Further, its operation speaks of the likelihood of damage in the circumstances pertaining to publication. If, on publication, there were no damage or harm caused, the question would still arise as to whether that outcome was likely at the time and in the circumstances of the publication.

593. The comments on the ARC Facebook page could not be said to have been posted in circumstances where it was unlikely that any harm would be inflicted. That the comments may have been on the page for a short time does not deal with what was likely at the time of publication.

594. I accept that the emails to individuals, including Ms Babbington, may have been unlikely to cause substantial harm to the plaintiff, and did not cause substantial harm to the plaintiff’s reputation. However, the term “any harm” is not confined to damage to reputation and is not confined to substantial harm.

595. In the context of defamation, where distress and hurt feelings are compensable, it cannot be said that no harm was caused. Nor can it be said that no harm was likely. Even if one were to confine the operation of the section to damage to reputation, it cannot be said that the circumstances of the publication were likely to cause no damage other than that which is ephemeral or insignificant.

596. I turn then to the issue of republication. I accept that the defendants are liable for republication to the plaintiff and to the Board of Management of impugned publications 1, 2, 3, 4 and 8. In the case of impugned publications 1, 2, 3, and 4, the republication is to the plaintiff and from her to the Board. That latter re-publication is subject to qualified privilege and the first re-publication cannot cause damage to reputation. It does and has caused hurt feelings.

597. I also accept that impugned publications 5, 6, 7 and 8 had a grapevine effect. In each case, the grapevine effect has not been shown to be overly significant.

598. As the summary of evidence discloses impugned publication 8 was the subject of discussion and known only to a few, impugned publication 5, being the comments to the public Facebook page of the ARC, was not seen by 189 persons.

599. The figure of 189, which the Facebook page records, relates to the number of persons who saw the Facebook post, not the comments which are impugned. Similarly, the sixth and seventh matters complained of cannot be shown to have been published to and read by a significant number of persons.

600. The evidence leads the Court to the conclusion that they were removed from the relevant social media outlet within very short times, some of the details of which are outlined in the preceding comments. It is for the plaintiff to prove the readership of the publications.

601. As a consequence, the defamatory publications that are actionable are confined to matters complained of in impugned publications 2, 5, 6, 7 and 8.

602. In relation to impugned publication 2, it is a publication to Ms Babington and one or two employees of the American Red Lion Disaster Fund, the plaintiff and the members of the Board of Wild2Free. In the case of impugned publication 5, the publication was a post on a social media outlet, which was removed shortly after its posting, and for which there is some grapevine effect. That is also true of impugned publications 6 and 7. I have already dealt with publication 8. There is evidence from the documents that the allegations “were all over”, which I infer was a reference to the grapevine effect.

603. As for republication, I consider that the defendants are liable for the republication of impugned publications, 1, 2, 3, 4 and 8. Those publications fall within the principles already discussed, rendering the defendants liable for the republication, although the republication is minor and in some of those matters, as already discussed, qualified privilege applies.

604. Lastly, I refer to the issue of fair comment. The defendants submit that some at least of the publications are “fair comment”. In order for the defence of opinion to be arguable, it must be shown to be opinion, and it must be based on proper material.

605. The material either has to be substantially true or published on an occasion of absolute or qualified privilege. Further, under the common law, the comment must be based upon facts that are either notorious or stated. None of the publications fall into the category of material published as an expression of opinion.

Remedy

607. It is necessary, given that which follows, to assess damage for the imputations that arise in the publications that are actionable. There is also a prayer for injunctive relief.

608. There is no doubt, as earlier indicated, that the defamatory publications had a profound effect on the plaintiff. It is difficult to separate the effect of the actionable imputations from the effect of those imputations and publications that are not actionable.

609. Nevertheless, given the nature of the social media platforms, even a brief posting on the public Facebook pages, with which impugned publications 5, 6 and 7 are concerned, would have a damaging impact upon the reputation of the plaintiff, and it would have had a significant grapevine effect. The damage must be compensated, and the compensation must be such as to make clear that the plaintiff has been vindicated of the allegation made against her.

610. As earlier stated, the cap on damage is not reserved, as a limit, for the worst category of defamation. The Court assesses damage, and, if the assessment takes it beyond the cap, limits the damages to that prescribed by the legislature.

611. As is clear from the finding on malice and the comments thereon, it is not appropriate to make an award for aggravated damages.

612. In assessing the damage to be awarded, I take no account of the limit. As earlier stated, I assess the damage and apply the limit only if it be relevant.

613. The defamatory publications that are actionable and the imputations that arise therefrom are not insubstantial. They have caused significant harm to the plaintiff and have, apart from the hurt of feelings, damaged her reputation, albeit not as much as the plaintiff fears or perceives.

614. The hurt feelings and the damage caused to the plaintiff by the imputations is and must be significant. It has had a lasting impact on the plaintiff’s capacity to carry on her life as it was and to work as before.

615. In this sense, it can have a rational relationship with the harm caused. Were the plaintiff in other employment, she would no doubt no longer be able to carry on her work at the level previously performed. Nevertheless, there is no claim for special damage or economic loss.

616. Bearing in mind the provisions of the Defamation Act, including the reference to the harm done, an appropriate award to vindicate the plaintiff, in the context of all that has occurred and otherwise applies, is $65,000. This is general non-economic damage for the defamation, taking into account the principles earlier adumbrated.

617. Interest is payable at 3% from the date of publication, which varies and will be taken from a convenient date in the midst of the publications, which will be 1 July 2020.

618. As for the injunctive relief, there are some issues that need to be addressed. First, the Court should be mindful not unduly to restrict freedom of speech.

619. Secondly, where there is privilege, the Court ought not to interfere with the capacity of the defendants to exercise the freedom, in relation to any mutual interest or duty, which the privilege protects. Thirdly, the relief, if it were granted, must be confined to that which I have found to be defamatory.

620. Because of the existence of the campaign and the universality and spread of social media, it is appropriate for there to be injunctive relief, confined in accordance with the previously mentioned restrictions. There is an overwhelming balance of convenience in that respect. Further, neither defendant is any longer a member of the Committee of Wild2Free. Qualified privilege in those circumstances is a very limited possibility.

621. The Court makes the following orders:

1. Judgment for the plaintiff.

2. The defendants shall pay the plaintiff $65,000 in damages.

3. The defendants shall pay interest at the rate of 3% per annum on $32,500 from 1 July 2020.

4. The defendants and each of them are restrained from publishing, on social media, the internet or anywhere else, any material that alleges or imputes to anyone, other than each other, that the plaintiff or Wild2Free has been involved in misappropriation of funds or fraud or that the plaintiff has carried on Wild2Free or any activities in animal care for the plaintiff’s own personal benefit or for the purpose of obtaining funds for herself.

5. The defendants shall pay the plaintiff’s costs of and incidental to the proceedings.

6. If any party seeks a special or different order as to costs or interest, such application may be made within 14 days of the date of judgment by a submission in writing consisting of no more than 3 pages, not including any documents that are not otherwise in evidence upon which the application relies.

7. Any party adversely affected by any such application may reply, on the same conditions, no later than 14 days after receipt of the application.

8. Other than the leave granted, leave is granted to re-list the matter on the issue of costs, if the matter cannot, on a disclosed, reasonable basis, be dealt with on the papers. Any such application should be made to my Associate within seven (7) days of judgment.

9. The plaintiff is directed to file and serve a Short Minute of Order reflecting the foregoing and calculating the interest within seven (7) days of judgment.

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Endnotes

Decision last updated: 12 June 2025