JUDGES:	McLEISH and WALKER JJA and ELLIOTT AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2023
DATE OF JUDGMENT:	1 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 257
JUDGMENT APPEALED FROM:	[2021] VCC 1425 (Judge Smith)

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DEFAMATION – Various modes of publication – Publication on social media – Meaning of ‘found guilty’ in defamatory publications – ‘Grapevine effect’ – Ordinary reasonable reader/ordinary sensible person – Identification – Defences – Truth or substantial truth – Justification – Whether imputations true or substantially true – Whether respondent also caused damage to his own reputation by disseminating information – Provocation – Award of compensatory and aggravated damages made by trial judge – Leave to appeal granted and appeal allowed in part.

INTELLECTUAL PROPERTY – Appeal – Trade marks – Use as a trade mark – Infringement of trade marks – Whether trade mark used as a business name or descriptive term – Use on social media.

Trade Marks Act 1995 (Cth) ss 6, 7, 10, 17, 20, 22, 24, 44, 120, 122; Defamation Act 2005 s 25; Evidence Act 2008 ss 48, 91, 140, 178; [REDACTED].

Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 408 ALR 195; Gatto v Australian Broadcasting Corporation [2022] VSCA 66; Thunder Studios Inc (California) v Kazal (No 12) (2022) 403 ALR 698; Cantarella Bros Pty Ltd v Modena Trading Pty Ltd (2013) 299 ALR 752; E & J Gallo Winery v Lion Nathan Australia Pty Ltd (2010) 241 CLR 144; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; Pepsico Australia Pty Ltd v Kettle Chip Co Pty Ltd (1996) 135 ALR 192; Johnson & Johnson Australia Pty Ltd v Sterling Pharmaceuticals Pty Ltd (1991) 30 FCR 326; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348; Howden v ‘Truth’ and ‘Sportsman’ Ltd (1937) CLR 416.

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Counsel
First Applicant:		In person
Second Applicant:		Mr R Hoser
Respondent:		Mr Z Petric
Solicitors
Applicants:	–
Respondent/s:	Ian Robertson Legal

TABLE OF CONTENTS

Introduction

Background

General

The task of this Court

Publications

Trade marks, related events and correspondence up to the time of publication 1

Summary of grounds relied upon

Ground 1

Publications 2, 3, 4 and 5

Publication 6

Publication 7

Publication 8

Further observations

Ground 2

Relevant principles

The alleged use as a trade mark

Ground 3

Grounds 4 and 5

Ground 6

Ground 7

Ground 8

Grounds 9, 13 and 14

Grounds 10 and 17

Relevant principles

The question of law

The evidence concerning identification

The question of fact

Ground 11

Ground 12

Grounds 15 and 16

Ground 18

Ground 19

Ground 20

Conclusion

Annexures

MCLEISH JA:

I agree with Elliott AJA.

WALKER JA:

I agree with Elliott AJA.

ELLIOTT AJA:

Introduction

The first applicant, Raymond Hoser (‘Hoser’), is the sole director, secretary and shareholder of the second applicant, Kotabi Pty Ltd (‘Kotabi’). The respondent, Mark Pelley (‘Pelley’), successfully sued the applicants for defamation in the County Court of Victoria. After a trial held without a jury, Pelley was awarded $150,000 in damages, together with $15,000 in aggravated damages plus interest.[1]
[1]Pelley v Kotabi Pty Ltd [2021] VCC 1425 (‘Reasons’). The Reasons were published on 3 February 2022 and are the subject of a suppression order made on 27 May 2021: see further [323]–[324] below.
There were 17 publications the subject of Pelley’s claims. Of those, five were withdrawn.[2] Further, the trial judge dismissed the claims in relation to two publications.[3] Accordingly, ten publications were the subject of the application for leave to appeal.
[2]Publications 10, 13, 14, 15 and 16 were withdrawn: Reasons [15], [80].
[3]Claims based on publications 12 and 17 were dismissed: Reasons [74]–[82].
For the reasons that follow, leave to appeal should be granted in relation to grounds 1, 3, 6, 7, 8, 10 and 17, but refused on the remaining grounds. Further, the appeal should be allowed with respect to grounds 6, 7, 8, 10 and 17, but grounds 1 and 3 should be dismissed.

Background

General

Hoser has many years of experience in handling and catching snakes, including conducting snake handling courses to educate others. He has published extensively on herpetology and the taxonomy of reptiles. At all relevant times, Kotabi carried on business relating to such activities through Hoser. Progressively from 2002, numerous trade marks were registered by Hoser for use in this business.
In 2012, Pelley participated in a venomous snake handling course conducted by Hoser.[4] Hoser and Pelley became good friends and regularly met socially. They shared a common interest in reptiles and Hoser became Pelley’s mentor. Hoser provided training and advice concerning handling, catching and caring for snakes, which Pelley considered invaluable. Pelley also gave evidence that he gained his initial understanding of trade marks from Hoser.
[4]At the conclusion of this course, Pelley received a certificate of completion which stated the course had included all relevant aspects of handling, capturing wild snakes, husbandry, legal requirements and conservation matters.
The goodwill was reciprocated. Between 2013 and 2016, Pelley supported Hoser on numerous fronts, both personally and professionally. Equally, in 2016 Hoser provided a statutory declaration supportive of Pelley [REDACTED]. In that declaration, Hoser stated that he had recently named a lizard after Pelley because of Pelley’s contributions to reptiles and to public education about them.
Pelley eventually set up his own snake catching and handling business.[5] Hoser initially took no exception. Indeed, on occasion, Hoser referred work to Pelley. He also spoke of him in glowing terms.[6] However, Hoser subsequently claimed he had issues with Pelley’s competency.
[5]This was in addition to another business conducted by Pelley which was unrelated to reptiles.
[6]A Facebook post published on 8 September 2016 by a page owned and operated by Kotabi referred to Pelley as one of the ‘excellent people’ to whom Hoser referred ‘snake removal work’.
Just as Hoser had done for years, Pelley advertised his business on a range of platforms, including on social media.[7] In response to Pelley’s advertising, Hoser requested that Pelley refrain from using a number of terms the subject of his trade marks. These included ‘snake busters’, ‘snakebusters’ and variations of these terms, together with ‘snake man’ and ‘the snake man’.[8] Pelley agreed. He explained this was done out of friendship. Pelley’s evidence was that Hoser claimed no one was allowed to use words that were contained in his trade marks and that this was one of the reasons he ‘negative keyworded everything’ on his Google advertising.[9] However, the harmonious coexistence of the two businesses was short-lived.
[7]In time, Pelley wrote articles that were published in digital magazines. Further, also in order to promote his businesses (including his snake catching business), he personally posted his own five star reviews and positive comments about those businesses online, as well as asking friends to do so.
[8]In addition to direct communications with Pelley, from as early as March 2016 Hoser had posted a ‘LEGAL STATEMENT’ on his webpage ‘smuggled.com’. This statement listed a series of web addresses he claimed contained material the subject of copyright, followed by the subheading ‘TRADEMARK (sic) RIGHTS ENFORCED’ and a list of his trade marks.
[9]See fn 80 below.
From around early 2017,[10] there was a complete breakdown in what became a bitter relationship for reasons unnecessary to explore. Hoser and Pelley actively competed against each other for business. By this time, both their respective businesses involved handling, catching and displaying snakes, including at reptile shows and parties. They also trained dogs to avoid venomous snakes.
[10]Hoser’s evidence was that from the end of 2016 he was ‘infuriated’ with Pelley because of his conduct.
Pelley continued to advertise. Hoser complained to Pelley about his use of the terms ‘snake catcher’ and ‘snake handler’ on Facebook. After initially acceding to Hoser’s requests, Pelley obtained legal advice to the effect that he was not breaching any of Hoser’s trade mark rights by using these terms. His evidence was that the advice referred to generic terms and the difference between logos and words. Based on this advice, he formed the view that he could continue to use these terms, which he did. Pelley persisted on the basis that such terms were merely descriptive.[11] He also considered he was entitled to use ‘canine snake avoidance’ as a descriptive term concerning training dogs to avoid snakes. He applied to register his own trade marks and continued to advertise using terms such as ‘snake hunter’, ‘snake removal’, ‘snake catcher’, ‘the snake catcher’, ‘reptile parties’, ‘snake avoidance’, ‘canine snake avoidance’ and ‘snake handler’.[12]
[11]As explained at [122] below, ss 24(2)(a)(ii) and 122 of the Trade Marks Act 1995 (Cth) permit the use of descriptive terms used in trade marks by a non-trade mark holder in certain circumstances.
[12]Pelley was also referred to as ‘The Snake Catcher’ in the byline of an article written by him and published on the website of the Australian Deer Association on 24 June 2020. The article was concerned with teaching dogs to avoid snakes.
Hoser continued his complaints, claiming that his trade marks were being infringed and that Pelley was stealing his clients.
[REDACTED]
[REDACTED][13]
[13][REDACTED]
[REDACTED][14] [REDACTED][15] [REDACTED][16] [REDACTED][17] [REDACTED][18] [REDACTED][19]
[14][REDACTED]
[15][REDACTED]
[16][REDACTED]
[17][REDACTED]
[18][REDACTED]
[19][REDACTED]
[REDACTED][20] [REDACTED][21] [REDACTED]
[20][REDACTED]
[21][REDACTED]
[REDACTED][22] [REDACTED][23] [REDACTED][24]
[22][REDACTED]
[23][REDACTED]
[24][REDACTED]
[REDACTED][25] [REDACTED][26]
[25][REDACTED]
[26][REDACTED]
[REDACTED][27] [REDACTED][28]
[27][REDACTED]
[28][REDACTED]
[REDACTED]
[REDACTED][29] [REDACTED][30] [REDACTED]
[29][REDACTED]
[30][REDACTED]
[REDACTED][31] [REDACTED]
[31][REDACTED]

[REDACTED]

[REDACTED]
[REDACTED][32] [REDACTED]
[32][REDACTED]
[REDACTED][33] [REDACTED]
[33][REDACTED]

[REDACTED]
[REDACTED][34] [REDACTED][35]
[34][REDACTED]
[35][REDACTED]
On 24 December 2019, Hoser lodged a complaint about Pelley with the Australian Competition and Consumer Commission. Hoser referred to the use of his trade marks and alleged Pelley posted fake reviews of his own businesses[36] and made false claims about where he lived. Hoser also stated that Pelley [REDACTED] and to have committed perjury and other misconduct crimes. Hoser received no response to this complaint.

The task of this Court

[36]The question of ‘fake’ reviews was the subject of evidence at trial. While Pelley admitted posting reviews of his own business (see fn 7 above), he denied any of them were false.

If leave to appeal is granted, the appeal to this Court is by way of rehearing. The principles concerning an appeal by way of rehearing are not controversial. This Court’s task is to conduct a real review of the trial, the evidence and the Reasons and give the judgment that ought to have been given at first instance. The identification of error is an indispensable condition of a successful appeal.[37]

Publications

[37]Gatto v Australian Broadcasting Corporation [2022] VSCA 66, [46] (Beach, Walker and Macaulay JJA).

The context and form of the publications the subject of the appeal is important. Six of the publications were made on Facebook. Accordingly, in relation to those publications the Court must decide how such a post would be interpreted by a social media user, mindful of the way in which such posts are ordinarily made and read.[38] A like but obviously different observation may be made in relation to the reading of a publication made on a website, which was also disseminated via Twitter.[39] In addition to these public modes of communication, some of the publications were the subject of a letter or an email.
[38]Thunder Studios Inc (California) v Kazal (No 12) (2022) 403 ALR 698, 708–709 [25] (Rares J); Stocker v Stocker [2020] AC 593, 605–606 [41]–[46] (Lord Kerr of Tonaghmore JSC, Lord Reed DPSC, Lady Black, Lords Briggs and Kitchin JJSC agreeing), referring to Monroe v Hopkins [2017] 4 WLR 68, [35] (Warby J).
[39]Bazzi v Dutton (2022) 289 FCR 1, 9 [29] (Rares and Rangiah JJ), 16 [61], 17 [64] (Wigney J), each citing Monroe v Hopkins [2017] 4 WLR 68, [35].
Particulars of the publications are relevant to a number of grounds:[40]
[40]For consistency, the same numbers have been adopted for each publication as those used in the statement of claim and the Reasons. Each publication is set out in Appendix A to these reasons.

Publication[41]

Date

Duration

Medium

Further publication

1

5 April 2018

About three and a half weeks

A post on a Facebook page named ‘Snakebusters Australian Snakeman’ belonging to Kotabi (the ‘Kotabi Facebook page’)

Other Facebook pages[42]

2

18 April 2018

About four days

A post from the Kotabi Facebook page that was shared on a Facebook page named ‘Doreen Community Voice 2.0’ (the ‘Doreen Community Facebook page’)

Another Facebook page[43]

3

18 April 2018

About four days

A post on the Kotabi Facebook page[44]

Not applicable

4

19 April 2018

About four days

A post from the Kotabi Facebook page that was shared on the Doreen Community Facebook page

Another Facebook page[45]

5

20 April 2018[46]

About four days

A comment by Hoser on publication 4 on the Doreen Community Facebook page, responding to a comment by another user

Another Facebook page[47]

6

18 April 2018[48]

About ten months

A sub-page on the website ‘smuggled.com’ website[49]

Another Facebook page[50]

7

28 May 2018

Indefinite

A letter to IP Australia[51]

Not applicable

8

22 December 2018[52]

Indefinite

A letter to IP Australia

Not applicable

9

12 March 2019

Indefinite

An email to [REDACTED]

Not applicable

11

8 October 2019

Indefinite

A post on the Kotabi Facebook page[53]

Not applicable[54]

[41]The trial judge found each publication was published by both Kotabi and Hoser: Reasons [83]–[105].
[42]The evidence of Pelley and Hoser was that Hoser shared the post with three different groups: (1) ‘Buy swap sell Moonee Ponds, Essendon, Maribyrnong and surrounding areas’, with more than 56,000 members as at 20 November 2019; (2) ‘MELBOURNE BUY, SELL & NOTICEBOARD’, with approximately 100,000 members in 2018; and (3) ‘Kinglake ranges buy sell and swap and barta (sic)’, with more than 11,000 members as at 20 November 2019.
[43]Pelley and Hoser gave evidence that this post was shared by Hoser with a Facebook group named ‘Diamond Creek Community Hub’, with approximately 5687 members at the relevant time. The evidence of [REDACTED] and Stewart was that each of them viewed the post on this Facebook page. Seven persons commented on the post and three ‘liked’ it or reacted with a smiling face emoji.
[44]On the Kotabi Facebook page, two unidentified persons ‘liked’ the post. Evidence was also given by [REDACTED] and Stewart that each of them had seen the post.
[45]Namely, ‘snakemanraymondhoser’. The trial judge found this further publication was likely to have reached potentially in excess of 800 persons: Reasons [232].
[46]It was alleged this publication was posted on 19 April 2018 (as referred to at Reasons [32]), but the evidence established it was posted the following day.
[47]The finding referred to in fn 45 above also applied to this further publication.
[48]The date of publication 6 alleged in the statement of claim was 22 May 2018. In the defence, it was admitted that the post had been made by Hoser on the ‘smuggled.com’ website, but the allegations were otherwise denied. Although nothing turns on it, the trial judge found publication 6 was published on 19 April 2018: Reasons [224]. The evidence demonstrated that publication 6 was most likely to have been published at least by 18 April 2018: see fn 242 below.
[49]This website was registered in the name of Kotabi, a link to which was posted by Hoser on Twitter.
[50]Namely, a Facebook page named ‘Protect Victoria’. Pelley gave evidence that he found the publication on the ‘Protect Victoria’ Facebook page, which had over 35,000 members at the relevant time. The trial judge found that the link to this Facebook page was made by someone other than Hoser, and considered such conduct part of the ‘grapevine effect’: Reasons [233].
[51]Being an agency of the Commonwealth Department of Industry, Innovation and Science.
[52]The date of publication 8 was initially incorrectly recorded in the Reasons as 28 May 2018 (at [39]), but the correct date was also referred to at [224].
[53]The trial judge found 12 people, including [REDACTED] and Stewart, ‘liked’ the post and one person shared the post: Reasons [237].
[54]But see fn 60 below.

Publication[41]	Date	Duration	Medium	Further publication
1	5 April 2018	About three and a half weeks	A post on a Facebook page named ‘Snakebusters Australian Snakeman’ belonging to Kotabi (the ‘Kotabi Facebook page’)	Other Facebook pages[42]
2	18 April 2018	About four days	A post from the Kotabi Facebook page that was shared on a Facebook page named ‘Doreen Community Voice 2.0’ (the ‘Doreen Community Facebook page’)	Another Facebook page[43]
3	18 April 2018	About four days	A post on the Kotabi Facebook page[44]	Not applicable
4	19 April 2018	About four days	A post from the Kotabi Facebook page that was shared on the Doreen Community Facebook page	Another Facebook page[45]
5	20 April 2018[46]	About four days	A comment by Hoser on publication 4 on the Doreen Community Facebook page, responding to a comment by another user	Another Facebook page[47]
6	18 April 2018[48]	About ten months	A sub-page on the website ‘smuggled.com’ website[49]	Another Facebook page[50]
7	28 May 2018	Indefinite	A letter to IP Australia[51]	Not applicable
8	22 December 2018[52]	Indefinite	A letter to IP Australia	Not applicable
9	12 March 2019	Indefinite	An email to [REDACTED]	Not applicable
11	8 October 2019	Indefinite	A post on the Kotabi Facebook page[53]	Not applicable[54]

With the exception of publication 11, the applicants admitted the imputations alleged by Pelley. Thus there is no need presently to go through the specifics of each publication.
As set out above, the first five publications were posted on Facebook in April 2018, and only remained available for viewing for limited periods during that month.
The statement of claim alleged publication 1 conveyed the following imputations:
(1)Pelley passes himself off as the applicants.
(2)Pelley is a trade mark infringer.
(3)Pelley is a thief.
(4)Pelley is a scammer.
(5)Pelley puts the lives of his clients at risk.
(6)Pelley provides illegal ‘snake avoidance’ training.
The statement of claim alleged that publication 2 conveyed the following imputations:
(1)Pelley is a trade mark infringing thief.
(2)Pelley is a lawbreaker.
(3)[REDACTED]
(4)[REDACTED]
(5)Pelley provides inexperienced and unsafe services, thereby putting his clients at risk.
(6)Pelley is a court-certified thug.
The statement of claim alleged that publication 3 conveyed the following imputations:
(1)Pelley is a serial thief.
(2)Pelley is a trade mark infringer.
(3)Pelley is unlawfully marketing himself as ‘The Snake Catcher’.
(4)Pelley makes a false claim as to where he lives to acquire local business under the false pretence of living in that area.
(5)[REDACTED]
The statement of claim alleged that publication 4 conveyed the following imputations:
(1)Pelley is a thief.
(2)Pelley is a trade mark infringer.
(3)[REDACTED]
The statement of claim alleged that publication 5 conveyed the following imputations:
(1)Pelley is a liar.
(2)Pelley is a thief.
(3)Pelley is a trade mark infringer.
(4)[REDACTED]
(5)Pelley steals from the Snakeman and will steal from other people he visits.
Publication 6 was the first publication on a website.[55] In contrast to the first five publications, it was available for viewing for the much longer period of around ten months. The statement of claim alleged it conveyed the following imputations:
(1)Pelley is a serial thief.
(2)Pelley is a trade mark infringer.
(3)[REDACTED]
(4)Pelley lies to residents of a particular area in Melbourne by saying he is a local resident as a means to get their business.
(5)Pelley puts the lives of others at risk in providing unsafe services.
[55]It was also posted on Facebook: see fn 50 above. The screenshot tendered stated it had ‘reached’ 864 people.

Publications 7 and 8 fell into a third category, being publications to IP Australia by private correspondence. The statement of claim alleged that publication 7 conveyed the following imputations:
(1)Pelley overstates his business popularity.
(2)Pelley is a rogue reptile handler in Melbourne.
(3)[REDACTED]
The statement of claim alleged that publication 8 conveyed the following imputations:
(1)Pelley has no respect for the law.
(2)Pelley is a serious criminal offender.
(3)Pelley is a court-certified liar.
(4)Pelley is a thief.
(5)[REDACTED]
(6)[REDACTED]
Publication 9 also consisted of a private communication, [REDACTED]. The statement of claim alleged it conveyed the following imputations:[56]
(1)Pelley is a criminal monster.
(2)Pelley has unlawfully and aggressively used the trade marks of the applicants.
(3)Pelley illegally placed Google advertisements to divert clients of the applicants to his own business.
(4)Pelley instigated others to make death threats to Hoser.
(5)Pelley obtained financial gain at the expense of the applicants.
(6)Pelley has an unsafe business.
(7)Pelley lacks skills as a snake catcher and puts people’s lives at risk.[57]
(8)Pelley is an inexperienced dog trainer putting dogs at risk of death.
[56]See [27]–[28] above.
[57]The imputation alleged as detailed in the Reasons made reference to the lives of dogs, however, this appears to be an error.
Publication 11 was a further Facebook post, published in October 2019. Relevantly, it was in the following terms:[58]
Deadly Tiger Snake spotted on letter box in Templestowe. Lucky the Melbourne Snake Catcher ® was on the job. Beware of unsafe and/or unlicensed imitators. One is a court certified and convicted [REDACTED] and another was convicted of shooting two men.
[58]Emphasis added.
The publication included a statement that the reader could learn more at ‘snake-catchers.com.au’ or ‘snakebusters.com.au/snake-catcher-handler-removal’.
The link to the ‘snake-catchers.com.au’ website included:
Beware of unlicensed inexperienced imitators, who are unlawfully ripping off our registered trademarks (sic) via Google [advertisements] or Search Engine Optimisation (SEO). If they steal our long registered trademarks (sic) to take our clients when marketing their unsafe counterfeit goods or services, they will steal from you as well!
The webpage contained reference to numerous registered trade marks, including ‘Snake Avoidance’, ‘Snake Aversion’, ‘Hands on reptiles’, ‘Hold the animals’, ‘Hands on’, ‘Reptile Party’, ‘Handle the animals’ and ‘Reptile shows’, and after listing these and others stated, ‘similar words, phrases and variants are all registered trademarks (sic) in Australia, which we own’.
The link to the ‘snakebusters.com.au’ website was a promotional page for snake catching by Hoser. In addition to stating that ‘Snakebusters’, ‘Snake Man’ and variants of these terms were registered and protected trade marks ‘in multiple categories and jurisdictions’, the page referred to many suburbs in which Hoser offered snake handling and reptile control related services. In addition to Templestowe and Lower Templestowe, Hoser referred to 12 other suburbs and continued, ‘and other suburbs, Melbourne’s East, Victoria, Australia, Emergency snake removal, 24 hours, Melbourne, Victoria, Australia’.
It was common ground that neither of these links made any reference to Pelley.
The statement of claim provided particulars of publication. It was pleaded that publication 11 was targeted to residents in Victoria. Further, the particulars stated ten individuals had ‘liked’ or reacted to the post.[59] Furthermore, publication 11 had been ‘shared’ once.[60]
[59]The screenshot provided of the Kotabi Facebook page showed that two named persons (whose identities were not the subject of evidence) ‘and 8 others’ had either liked or reacted to the post. See also fn 53 above.
[60]It was not apparent with whom the post had been shared or the extent to which it had been republished.
The statement of claim alleged publication 11 conveyed the following imputations:[61]
(1)Pelley is an unlicensed snake catcher who poses a risk to the community.
(2)Pelley is a convicted [REDACTED].
(3)Pelley is a trade mark infringer.
(4)[REDACTED]
[61]The Reasons only referred to the first two imputations alleged: [45].
Further to pleading these imputations, the statement of claim alleged no attempt had been made by Hoser to contact Pelley before the publications occurred to verify their contents.
In addition to general damages, Pelley also sought aggravated damages, alleging that the applicants knew the publications were false or published them with reckless indifference to the truth or falsity of the accusations they contained. In this regard, it was further alleged that the applicants published the offending words to harm Pelley in his personal and business reputation, and in his ability to pursue his occupation and otherwise earn a living. It was further alleged that the applicants knew or ought to have known of the impact taking into account the publications in a small community, and that only a small number of snake catchers and only four canine snake avoidance trainers were known in Melbourne.[62]
[62]Pelley’s evidence was that since at least 2017 there were two other persons in addition to Hoser and Pelley who were offering canine snake avoidance training: see also fn 202 below.
[REDACTED]
The particulars in support of aggravated damages also included that the combined publications conveyed false imputations that Pelley participated in the matters the subject of the statement of claim, many of which were seriously harmful, damaging and illegitimate. Finally, it was alleged that the applicants refused or failed to retract the allegations made by them in the publications and refused or failed to publicly or privately apologise to Pelley.
In relation to all the publications except publication 11, the applicants pleaded in their defence that the meanings alleged were true in substance and in fact, or substantially true.[63] Further, in relation to publications 1, 2 and 3 it was alleged that the applicants were entitled to rely upon the defence of qualified privilege. No other defences were pleaded. The applicants pleaded to the imputations in a confusing way, but the matter has proceeded on the basis that they accepted that the publications conveyed the imputations alleged.[64]
[63]Defences both at common law and pursuant to s 25 of the Defamation Act 2005 were raised.
[64]The form of pleading was: ‘the first and second defendants say that (a) they deny that the … matter complained of is defamatory of the plaintiff; (b) was meant or understood to mean or was capable of meaning or being understood to mean the meanings alleged in [the paragraph]; and (c) otherwise deny the allegations in [the paragraph]’.
For publication 11, it was denied that any of the imputations were defamatory of Pelley. Although not referred to in the defence, the case put at trial was that publication 11 did not identify Pelley, but referred to another snake catcher who was in fact a convicted [REDACTED]. In contrast to the person to whom Hoser intended the publication to refer, it was contended that no reasonable reader could understand publication 11 referred to Pelley as the applicants had never said that Pelley was a convicted [REDACTED].

Trade marks, related events and correspondence up to the time of publication 1

As stated above, there are several relevant trade marks.
Dealing with the applicants’ trade marks first, Hoser successfully applied for various registrations over a number of years. Some of these trade marks were pleaded in the defence in response to some of the imputations alleged in the statement of claim; namely, that Pelley passed himself off as the applicants, that he was a trade mark infringer, and that he was a thief and a scammer. In addition to alleging those imputations were true or substantially true in substance and in fact, the applicants pleaded Pelley had marketed his business in association with Hoser’s registered trade marks ‘Snakebusters’,[65] ‘Snakeman’, ‘Snake man’, ‘Australia’s Best Reptiles’, ‘Hold the Animals’, ‘Reptile Parties’, ‘Hands On’ and ‘Snake Avoidance’.[66]
[65]In addition, Kotabi registered the business name ‘Snakebusters’ on 3 May 2004.
[66]Hoser had in excess of 20 registered trade marks connected with reptiles: see further examples at [47] above. Hoser’s registered trade marks also included ‘snakebuster’, ‘Hands On Reptiles’, ‘handle the animals’, ‘Raymond Hoser’, ‘Snake Catcher’, ‘Snake Handler’, ‘Reptile Party’, ‘Melbourne Reptile Shows’, ‘Reptile Shows’, ‘Australasian Journal of Herpetology’, ‘Snake Removal’, ‘Reptile Man’ and ‘Snake Aversion’. Some of these phrases were trade marked in conjunction with logos, and were registered in trade mark classes 41 or 44, or both.
In contrast to the substantial number of trade marks registered by Hoser, Pelley largely focused his trade mark applications around the words ‘snake hunter’. One of these applications was simply based on the words ‘the snake hunter’. It was not accepted and lapsed.[67] However, a number of trade marks were registered by Pelley (or at least accepted) using the words ‘snake hunter’ in conjunction with a logo or further words, or both.[68] These included separate images which displayed a snake immediately after the words ‘snake hunter’ registered from 7 January 2016,[69] and of a snake used as the ‘S’ and part of the ‘H’ in the words ‘snake hunter’, which was registered from 22 August 2017.[70] The trial judge found that Pelley had a registered trade mark ‘snake removal’,[71] however there was no evidence of this.
[67]Others had also unsuccessfully sought to register these words as a trade mark.
[68]These were registered in trade mark classes 35, 41 or 44.
[69]This trade mark was registered as goods and services in class 41 and described as ‘Study and demonstration in all forms and all media type, of snakes, reptiles and other wildlife, including plants and animals; also animal related entertainment in person or other forms and other activities covered by this class’.
[70]This trade mark, shown at [130] below, was registered as goods and services in class 35 for various forms of advertising and advisory services.
[71]Reasons [11].
This proceeding is not the first time Hoser has been involved in litigation regarding his trade marks. On 13 July 2017, an interlocutory judgment was delivered in the Federal Circuit Court of Australia refusing an injunction sought by Hoser, initially against both Bunnings Group Ltd (‘Bunnings’) and Michael Alexander (‘Alexander’).[72] Alexander and Hoser both provided wildlife demonstrations. Hoser had previously been retained by Bunnings, but his services were discontinued and he was replaced by Alexander. Hoser claimed that Bunnings heavily advertised ‘the snake man’ with respect to wildlife demonstrations to be conducted by Alexander at its stores.[73]
[72]Hoser v Bunnings Group Ltd [2017] FCCA 1624 (Judge Riley). See further fn 78 below.
[73]Before this Court, Hoser accepted that another person had previously used the term ‘snake man’ and appeared to accept that the use of ‘snake catcher’, ‘snake man’ or ‘reptile parties’ on their own without more was descriptive and was not prevented by the registration of his trade marks. This also appeared to be his position at trial, which reflected his evidence in relation to the use of ‘snake avoidance’. This was consistent with the declaration Hoser made on 28 May 2018 (being publication 7) in which he stated that he had no issue with people using the words ‘snake catcher’ to describe their activities and acknowledged he had no lawful basis to stop them from doing so: see also [63] below concerning the words ‘reptile party’ and ‘reptile parties’. However, he contended that the use of the ‘snake catcher’ trade mark in conjunction with the words/trade marks ‘snake man’ and ‘reptile parties’ in advertising resulted in an association with him and his business. Hoser has previously asserted to others that having the registered trade mark ‘snake catcher’ provided him an exclusive right to call himself that name in Australia. This earlier position was reflected in Pelley’s evidence: see [10] above.
It was admitted by Alexander that Hoser had registered two trade marks, ‘reptile party’ and ‘reptile parties’, and that the registration of those trade marks was continuing at the time. Alexander also admitted that he used those terms in the course of his business. Alexander denied that he had infringed Hoser’s trade marks on the premise that these words or terms were descriptive, which indicated the kind of service provided. Alexander alleged he had used those terms before Hoser’s registration of his trade marks. Evidence before the Court on that application included letters and advertising brochures from numerous wildlife demonstration providers, some of whom claimed that they had used the terms ‘reptile party’ and ‘reptile parties’ for decades.[74]
[74]Hoser v Bunnings Group Ltd [2017] FCCA 1624, [27] (Judge Riley).
The interlocutory judgment recorded that Hoser conceded that these terms were descriptive.[75] Notwithstanding this, Hoser contended the terms had been used not just to indicate the kind of service he offered, but also to represent Alexander as Hoser. Further, Hoser complained about Alexander’s use of Google to advertise his business, specifically the fact that when a search for ‘reptile party’ was conducted, results referring to Alexander’s business appeared earlier than Hoser’s (or more accurately, Kotabi’s).
[75]Ibid [21].
In refusing the interlocutory injunction,[76] the judge observed that it appeared the exclusive right to the use of the terms ‘reptile party’ and ‘reptile parties’ had been lost, as those terms had become generally recognised in the relevant trade as descriptive of the relevant service.[77] Further, despite the balance of convenience being equally in favour of granting or not granting the injunction and the fact that Hoser was unlikely to recover any damages from Alexander if they were ultimately awarded, it was found that the prospects of success were so remote that no relief was granted.[78] This case was settled before trial by deeds of settlement executed in August 2017.
[76]Self-evidently, evidence led on an interlocutory application in that proceeding cannot be relied on as establishing any of the facts the subject of determination in this proceeding. See also Evidence Act 2008, s 91.
[77]Hoser v Bunnings Group Ltd [2017] FCCA 1624, [29].
[78]Ibid [30]–[33].
I have referred to the outcome of this interlocutory application in some detail as it was the subject of an article published online in August 2017,[79] which came to the attention of Pelley. Pelley said he read it and believed its contents as it was published by a reputable law firm. The article focused upon Hoser’s use of the terms ‘snakeman’ and ‘snake man’. It noted that Hoser obtained registration of these trade marks without the assistance of an intellectual property lawyer or trade mark attorney. After stating that it was not IP Australia’s role to tell Hoser about the limitations of his trade marks and suggesting that Hoser plainly believed they would protect his rights and his brand, the article concluded that Hoser could not be blamed for incorrectly believing that he could stop Bunnings with an urgent interlocutory injunction.
[79]The article, entitled ‘Snakes and no ladders’, was published online on 8 August 2017 by law firm Williams + Hughes.
On 5 February 2018, Hoser sent an email to Pelley entitled ‘Registered trademarks (sic) infringement, “Snake man”, “Reptile party”, “snake catcher” and many others’. Hoser stated that Pelley had been told many times over a period of more than a year not to use his registered trade marks illegally. Hoser noted that he had directed Pelley to a website listing ‘them all’. Hoser complained that Pelley continued to use his trade marks ‘including as a trigger for Google [advertisements] to your infringing websites, that are also littered with the trademarks (sic) illegally in acts of misleading and deceptive conduct’. The email continued by referring to Pelley supposedly having undertaken to do a ‘negative keyword’ of Hoser’s trade marks,[80] which it was stated Pelley had clearly not done. The email suggested Hoser had received numerous complaints from clients who were ‘pissed off’ about Pelley being unable to find snakes which had fled before Pelley had arrived.
[80]Pelley gave evidence that the consequence of a negative keyword being implemented was that if that keyword were typed into the search engine, the results should not include the website the subject of the negative keyword.
Hoser demanded that Pelley cease and desist from using his trade marks. He also stated that he was very annoyed that he had helped Pelley to register the trade mark ‘snake hunter’ and that Pelley had subsequently stolen many of Hoser’s long-term clients illegally. Hoser suggested Pelley stick to using his and not Hoser’s trade marks. The email concluded by Hoser reserving all his rights, referring to the case involving Bunnings[81] and suggesting both Bunnings and Alexander had failed in their attempts to deregister any of Hoser’s trade marks.
[81]See [61]–[65] above.
On 22 March 2018, Hoser again complained to Pelley about the improper use of his trade marks in similar terms to his earlier email sent on 5 February 2018. This later email concluded with a demand that Pelley undertake in writing within 48 hours, amongst other things, to cease improperly using Google to trigger results for searches of the applicants’ business and to remove all unlawful uses of Hoser’s registered trade marks from Pelley’s ‘internet properties’ and any other places Pelley might have been using them.
On 5 April 2018, being the date of publication 1, Hoser sent yet another email demanding Pelley cease and desist in the use of ‘all our registered trademarks (sic)’. Hoser stated that compliance with his request would end ‘these matters as far as we are concerned’.

Summary of grounds relied upon

The grounds of appeal are discursive and may be numbered and summarised as follows:
(1)[REDACTED]
(2)The trial judge erred in not being satisfied that Pelley infringed or stole any of Hoser’s registered trade marks.
(3)The trial judge erred in finding that Pelley’s use of ‘canine snake avoidance’ as a trade mark did not infringe Hoser’s trade mark ‘snake avoidance’.
(4)The trial judge displayed potential bias in making no adverse findings against Pelley and accepting all of his evidence in a way so as to give Pelley ‘the highest possible benefit in all possible ways and beyond what was available on the evidence taken at its highest’.
(5)Further to ground 4, the trial judge sought to impugn, traduce, attack and disparage Hoser at numerous opportunities in the Reasons ‘in unfair acts’, while not doing the same to Pelley.
(6)The trial judge made patently false statements to impugn Hoser to justify his award of damages, including stating that Hoser submitted the defamatory imputations alleged were trivial and then rejecting this submission, when no such submission had been made.
(7)[REDACTED]
(8)The trial judge made findings concerning Pelley’s webpage which were unavailable, namely that there was no evidence of any request or arrangement between Pelley and Google to trigger or generate results for that page, and no basis upon which to infer such an arrangement.
(9)[REDACTED]
(10)The trial judge erred in finding that publication 11 was about Pelley.
(11)Certain findings by the trial judge at [156]–[157] of the Reasons were contradicted by other findings at [193] and [209] of the Reasons.
(12)The trial judge erred in making findings at [172] and [240] of the Reasons which wholly contradicted unchallenged or agreed evidence at trial.
(13)[REDACTED]
(14)The trial judge erred in inflating damages to take into account the ‘grapevine effect’ when failing to take into account the same ‘grapevine effect’ [REDACTED].
(15)[REDACTED]
(16)The trial judge erred in finding that there was no provocation by Pelley and no reason to discount damages on that account.
(17)The trial judge erred in awarding damages on the basis that Hoser had said that Pelley was convicted of certain crimes, when in fact Hoser never said that in any of the publications referring to Pelley.
(18)[REDACTED][82]
(19)The trial judge erred in finding that Pelley’s entitlement to an award of damages would stand as a public acknowledgement that the accusations made against him were untrue when also imposing a suppression order in relation to the Reasons and final orders.
(20)The trial judge erred in refusing an application for Hoser to represent Kotabi at a directions hearing held on 21 May 2019.
[82][REDACTED]

The grounds will be addressed sequentially, except to the extent it is convenient that they be dealt with in combination.

Ground 1

[REDACTED]
[REDACTED][83] [REDACTED][84] [REDACTED][85] [REDACTED]
[83]Ibid. For completeness, at trial Hoser suggested that this decision had been tendered as part of the evidence before his Honour. The trial judge correctly rejected this suggestion. Although the judgment as published on was in the court book and was referred to during the trial on a number of occasions, it was not tendered (consistent with the fact that, ordinarily, judgments previously delivered are not evidence). See also Evidence Act 2008, s 48(1).
[84]See [31] above.
[85]This was made clear to Hoser during the trial. The trial judge stated that he would only be making a decision based on the evidence before him and not on matters that had been the subject of evidence in earlier proceedings.
As explained below, at its heart ground 1 concerned the imputations made in numerous publications that Pelley had been found guilty of various offences and acts.[86] While the language of the pleaded imputations varied, all involved the County Court having ‘found [Pelley] guilty’ of something. The ‘something’ varied, but included:
[86]The publications to which ground 1 relates are publications 2 to 8 and 11.
(a)‘serious offences’ (publications 2 and 5);
(b)[REDACTED];
(c)[REDACTED];
(d)[REDACTED];
(e)‘fraud’ (publication 7);
(f)‘forgery’ (publication 7);
(g)‘kidnapping children’ (publication 7);
(h)[REDACTED];
(i)[REDACTED];
(j)‘plotting to murder’ (publication 7);
(k)‘an attempted murder’ (publication 8);
(l)‘lying to a court’ (publication 7);
(m)‘numerous other serious crimes’ (publication 8); and
(n)‘a few other crimes’ (publication 7).
[REDACTED][87]
[REDACTED]
…
[REDACTED][88] [REDACTED]
…
[REDACTED]
[REDACTED]
…
[REDACTED]
[87][REDACTED]
[88][REDACTED]
Paragraphs 125 and 126 of the Reasons were preceded by the following:[89]
The evidence before me was that Pelley has never been charged with, or convicted of, [REDACTED], theft, perjury (or lying under oath in court), kidnap, cruelty to animals or any of the other offences referred to in the publications.
I consider that an allegation that a person has been found guilty by a court of a criminal offence is an allegation that he has been tried by a court and found guilty beyond reasonable doubt of the particular offence or offences.
[89]Reasons [121]–[122].
Thus, in finding that Pelley was not found guilty [REDACTED], it is clear that the trial judge was making a finding concerned with a criminal proceeding and a standard of proof of beyond reasonable doubt. This finding was undoubtedly correct,[90] but did not fully address the issues that arose with respect to each publication that conveyed an imputation that Pelley had been found guilty of the various matters identified. In particular, the trial judge’s conclusion concerning the meaning of ‘a person has been found guilty by a court of a criminal offence’ did not address the context in which the words were used.
[90]There was no dispute that Pelley had not been charged with, tried or convicted of any of the offences referred to in the publications.
[REDACTED][91] [REDACTED][92] [REDACTED][93]
[91][REDACTED]
[92][REDACTED]
[93][REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]. Accordingly, it is necessary to consider whether the trial judge was correct in his findings in relation to publications 2 to 8 insofar as they referred to Pelley having been ‘found guilty’ of various offences.[94]
[94]There is no need to consider publication 11 in this context in light of the conclusion that publication 11 did not identify Pelley: see [237]–[283] below.
The applicants relied upon established principles in referring to the ordinary reasonable reader and the test of reasonableness for the determination of whether or not a matter complained of is capable of conveying particular imputations as alleged.[95] They submitted that, although the imputations were not in dispute, the trial judge misinterpreted the imputations as admitted. In short, they submitted ‘found guilty’ did not connote the outcome of a criminal trial, and would not be understood in that way by the ordinary reasonable reader.
[95]Sali v Australian Broadcasting Corporation [2013] VSC 388, [18]–[19] (Beach J) and the cases there cited. For a more recent iteration of the relevant principles, see Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496, [70]–[85] (Wigney J).
The applicants also submitted that both the case put by Pelley and findings in the Reasons conflated the concepts of someone being found guilty of something and a conviction. In the trial judge confining his considerations to findings of guilt in a criminal trial, it was submitted he was forcing inferences. By reference to the well-known and heavily publicised civil trial of Orenthal James ‘OJ’ Simpson, the applicants referred to the fact that at the conclusion of that trial it was reported OJ Simpson was found guilty of killing his wife. They submitted that this was an example of a situation where the ordinary reasonable reader would not have understood by such publications that there had been a conviction or a finding of guilt in a criminal trial.[96]
[96]No doubt this was put on the basis that the civil trial of OJ Simpson was preceded by a criminal trial which had also been extensively reported and publicised.
[REDACTED][97] [REDACTED]
[97][REDACTED]
Furthermore, the applicants submitted ‘guilty’ was understood by the public at large differently from how that word would be understood in court, namely simply as a statement that a person had ‘done the deed’. By way of analogy, the applicants submitted that someone might be found guilty of ‘not doing the dishes’. In stating this, it was submitted it was not being conveyed that any crime had been committed.
The applicants adopted the first meaning of guilty in the Macquarie Dictionary as being the ‘real world’ definition, namely ‘having incurred guilt or grave culpability, as by committing an offence or crime’; rather than the second definition, ‘law, responsible for a criminal offence’.[98] They also referred to an Oxford Dictionary of English definition, ‘culpable of or responsible for a specified wrongdoing’.[99]
[98]Macquarie Dictionary (online at 20 October 2023) ‘guilty’ (defs 1, 2).
[99]Oxford Dictionary of English (3^rd ed, 2010) ‘guilty’ (def 1).
The applicants submitted that being ‘found guilty… to the Briginshaw level’ was very similar to a finding where the standard of proof was beyond reasonable doubt. It was submitted that, while judges may be able to ‘split the hair’ between the two standards, what was published by the applicants was substantively true. The applicants submitted that at no time did they state Pelley had been convicted or found guilty in a criminal trial, [REDACTED].
[REDACTED]. Pelley submitted it was understood that ‘guilt’ contained an element of legal culpability and did not arise from a civil proceeding.
It is convenient to deal with a number of the applicants’ submissions before turning to the more substantive issues at hand. I reject the submission that the trial judge conflated being found guilty with being the subject of a conviction. The Reasons plainly treat these matters distinctly.[100] [REDACTED][101] [REDACTED]. I also reject the submission that a finding on the balance of probabilities after taking into account the principle articulated in Briginshaw[102] is almost the same as a finding beyond reasonable doubt. There is a fundamental difference between the two standards of proof. A finding made on the former basis is still a finding based on the balance of probabilities and may be made despite the decision-maker having a reasonable doubt, whereas on the latter basis no finding of guilt can be made if there is a reasonable doubt. Such a distinction does not involve ‘splitting hairs’ and is a commonplace exercise juries engage in as part of their role in criminal trials.
[100]See, for example, Reasons [122], [125(a), (b)], [126]. In light of the findings made below concerning ground 1, it is unnecessary to consider whether a statement that Pelley had been found guilty by a court conveyed an imputation that he had been convicted by a court: cf Thunder Studios Inc (California) v Kazal (No 12) (2022) 403 ALR 698, 719 [66] (Rares J).
[101][REDACTED]
[102](1938) 60 CLR 336.
In relation to the submissions concerning the meaning conveyed to the ordinary reasonable reader by the use of the words ‘found guilty’, neither the applicants’ nor Pelley’s submissions can be accepted. The parties agreed on the pleadings that the imputation that Pelley was ‘found guilty’ was conveyed by the relevant publications. They did not, however, agree as to the meaning of ‘found guilty’ for this purpose.[103] The first step in considering the trial judge’s findings in relation to publications 2 to 8 is therefore to identify the meaning of the imputation that each publication relevantly conveyed. In that regard, the words cannot be considered in the abstract. What was conveyed will depend on what was stated to be the subject of the finding and its context in the publication, coupled with other relevant considerations including what might be ‘read between the lines’ and the general knowledge and experience of the reader of worldly affairs.[104] However, it is plain that these words may be capable of conveying that someone has been found guilty as a result of a criminal trial, and may also convey a resultant conviction.[105] It has been held that this may be the case even where the conduct referred to as being the subject of a guilty finding would not ordinarily be considered to be of a criminal nature.[106] Other matters stated as part of the publication or otherwise generally known may result in such an imputation being conveyed when the publication is considered as a whole.[107] In some cases, other matters stated or otherwise generally known might result in the imputation being confined to a finding during the course of a civil proceeding.
[103]Nothing turned on this lack of clarity in the pleadings as, both at first instance and before this Court, the parties clearly articulated and understood their competing positions as reflected in the contrasting submissions.
[104]Soultanov v The Age Co Ltd (2009) 23 VR 182, 186–187 [11] (Kaye J), quoted with approval in Sali v Australian Broadcasting Corporation [2013] VSC 388, [19] (Beach J); Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186, 190 [10]–[12] (Gleeson CJ, McHugh, Gummow and Heydon JJ).
[105]See, for example, Thunder Studios Inc (California) v Kazal (No 12) (2022) 403 ALR 698, 719 [66] (Rares J); Blake v John Fairfax Publications Ltd [2000] NSWSC 883, [3], [5]–[6] (Levine J).
[106]Thunder Studios Inc (California) v Kazal (No 12) (2022) 403 ALR 698, 712 [38], 719 [66], 743 [181], 747 [205] (Rares J), a case involving Facebook and website publications which stated ‘Our so-called partnership experience with [the second applicant] ended in court proceedings that found him guilty of a Breach of Fiduciary Duty exposing his many illegal and fraudulent actions’, and referred to ‘Your criminal acts that include being found guilty by the Court of stealing’ in the context of a partnership that had that ended in disputation and civil court proceedings.
[107]Ibid 719 [66].
With this in mind, it is necessary to turn to each of the publications that included a statement that Pelley had been found guilty.

Publications 2, 3, 4 and 5

Publications 2 and 3 were published on the Kotabi Facebook page on the same day, and publication 2 was shared about an hour later on the Diamond Creek Community Hub Facebook page.[108] The particulars of publication 2 stated that the sharing of this publication on the Diamond Creek Community Hub Facebook page indicated it was read and further endorsed through republication. In publication 2, the words ‘found guilty in the County Court of serious offences on [REDACTED] were preceded by Pelley being referred to (albeit not by name) as a [REDACTED]. Pelley pleaded that publication 2 gave rise to imputations that he had been found guilty in the County Court of ‘serious offences’ and that he was a ‘court-certified thug’.[109] Later that day, Hoser made a point of identifying Pelley as the individual referred to in publication 2 by the posting of publication 3 on the Kotabi Facebook page. The imputation that Pelley had been found guilty was also pleaded in respect of publication 3, [REDACTED].
[108]See [33] above.
[109]See [37] above.
In my view, the ordinary reasonable reader would have understood ‘found guilty in the County Court’ in publication 2 to be a reference to having been found guilty in a criminal proceeding. Such a meaning was conveyed by virtue of the fact that those words were coupled with ‘of serious offences’, and were preceded by the same individual being referred to as a ‘trademark (sic) infringing, law-breaking, [REDACTED]. Subject to anything which might indicate the contrary, a statement that someone has been found guilty of serious offences would suggest it related to proceedings of a criminal nature, rather than a civil case. Further, publication 2 took the form of an announcement to disclose information.[110] In contrast to more well-known or notorious cases, this was not a situation where the ordinary reasonable reader, being a lay person, would have had any basis for inferring that a civil case was being referred to rather than a criminal proceeding.[111]
[110]Publication 2 commenced with ‘OK everyone, we have a trademark (sic) infringing, law-breaking, [REDACTED] …’ and concluded with ‘Stay tuned for more details!’.
[111][REDACTED]
The same conclusion must be drawn regarding publication 3. Although publication 3 was less specific in that it referred to Pelley having been found guilty in the County Court of [REDACTED] rather than ‘serious offences’, this later publication was specifically made for the purpose of identifying Pelley as the person the subject of publication 2. In other words, direct reference was made to the earlier publication on the Kotabi Facebook page. Further, publication 3 referred to Pelley as a ‘serial thief’; language also consistent with conveying criminality.
In reaching this conclusion, I have taken into account the fact that publication 3 provided further details that were not found in publication 2. [REDACTED][112] [REDACTED].
[112][REDACTED]
[REDACTED][113] [REDACTED]
[113]There was no issue at trial that Pelley was identified as the subject of publication 2 despite the fact that he was not named in either the original post on the Kotabi Facebook page or in the comment left by Hoser in reply on the Diamond Creek Community Hub Facebook page.
Publications 4 and 5 were published on the Doreen Community Facebook page on 19 and 20 April 2018 respectively.[114] In the exhibit tendered at trial, publication 5 appeared as a Facebook ‘comment’ made by Hoser’s personal account in response to a comment that had previously been posted by another individual on the post comprising publication 4,[115] which post was made by yet another Facebook account controlled by the applicants.[116] [REDACTED].
[114]See [33] above.
[115]The screenshot showing publications 4 and 5 recorded the name of the individual recorded as the person who made the comment to which publication 5 was made in response, but not the original comment itself. This same name appeared as the author of a comment on publication 6: see fn 326 below.
[116]This exhibit was a screenshot of the Doreen Community Facebook page taken on 24 April 2018.
In summary, each of publications 2, 3, 4 and 5 conveyed, untruthfully, that Pelley had been found guilty in a criminal proceeding [REDACTED].

Publication 6

Turning to publication 6, it would appear that there was a short period of time when this publication was accessible on the internet at the same time that publications 2, 3, 4 and 5 were accessible on Facebook.[117] However, for nearly the entirety of the ten or so months that publication 6 remained on the ‘smuggled.com’ website, the earlier publications had been withdrawn [REDACTED].[118] Further, publication 6 was a standalone publication that did not make reference to any of the other publications. Accordingly, in the absence of any evidence to the contrary, publication 6 must be considered on the basis that the ordinary reasonable reader would not have had access to publications 2, 3, 4 or 5.[119]
[117]See further [201] below.
[118][REDACTED]
[119]If it were assumed that the ordinary reasonable reader would have had access to any of publications 2, 3, 4 or 5, this would only go to fortify the conclusions reached below in relation to publication 6. [REDACTED]
[REDACTED]
[REDACTED]. Publication 6 continued by stating that the applicants intended to take legal action against Pelley for ‘non-stop trademark (sic) infringement’, the ‘paperwork’ for which was being prepared at that time. Publication 6 further stated that Pelley illegally had Google advertisements triggered by searches for ‘us by name’, used the applicants’ trade marks in his advertising and unlawfully told people that Pelley was ‘us, or otherwise associated with us’. It was stated that Pelley’s unlawful actions regularly put lives at risk. [REDACTED].
[REDACTED]. The remainder of publication 6 spoke of the history, experience and track record of the applicants’ business, and contrasted this with rival businesses and referred to some of the ‘more than twenty incidents’ involving rival businesses where things had gone wrong.
Although publication 6 made no assertion that Pelley had been found guilty of ‘serious offences’,[120] nothing in the remainder of publication 6 had the effect of indicating to the ordinary reasonable reader that, contrary to the imputation already conveyed, Pelley had not been found guilty beyond reasonable doubt in a criminal trial. [REDACTED].
[120]As had been done in publications 2 and 3 when read in combination, and in publications 4 and 5 when also read in combination.
For completeness, the claim that Pelley was a ‘serial thief’ was entirely consistent with the imputation being of a criminal nature.

Publication 7

Publication 7 was in the form of a declaration made by Hoser on 28 May 2018 and sent to IP Australia.[121] In the first five pages of this declaration, Hoser gave an extensive account of his own background, including details of his trade marks, and of another individual who applied to register a trade mark using the words ‘snake catcher’, namely ‘Stewy the Snake Catcher’.[122] Hoser referred to Pelley as a ‘cohort’ of this other person and described him as a ‘rogue reptile handler in Melbourne … [REDACTED].
[121]See [33] above.
[122]See further [151] below.
Bearing in mind that the reader or readers of publication 7 would have been a person or persons acting on behalf of IP Australia rather than members of the public generally, the finding of guilt referred to in this passage conveyed an imputation that Pelley had committed numerous crimes. This imputation was unequivocally conveyed by the words ‘and a few other crimes’ after making reference to [REDACTED], fraud, forgery, kidnapping children, plotting to murder and lying to a court. In my view, in the absence of any other information about the nature of the proceeding, the words used conveyed that Pelley had been found guilty in a criminal proceeding of these various crimes.

Publication 8

Publication 8 comprised another declaration made by Hoser and sent to IP Australia approximately seven months later.[123] It stated that this document was the fourth declaration Hoser had provided in response to a declaration made by the same individual referred to in publication 7 in relation to an application to register a trade mark which included the words ‘the snake catcher’.[124] The exhibit tendered at trial consisted of only the first, ninth, tenth and eleventh pages of this declaration.[125] [REDACTED]. On the ninth page, Hoser stated that Pelley and the other individual ‘worked as a team’ to attack and undermine his business and steal his clients. He stated that they were ‘lawbreaking thieves’. Soon after, [REDACTED]:
[REDACTED]
[123]See [33] above.
[124]See [105] above.
[125]The tender in this form was explained on the basis that these were the only pages of the declaration that were relevant to the imputations alleged.

[REDACTED][126] [REDACTED]
[126][REDACTED]
[REDACTED]. In circumstances where the ordinary reasonable reader was confined to employees and other persons acting on behalf of IP Australia who would be concerned about trade mark-related issues, it would seem unlikely such a reader would refer to the underlying documents that self-evidently were not concerned with trade mark issues. Even if such a reader had referred to these documents, it would be likely that the imputation concerning Pelley being found guilty in criminal proceedings would have been affirmed.
[REDACTED][127] [REDACTED]

Further observations

[127][REDACTED]

Although not the subject of argument, it should be noted that there appears to be a further reason why, in any event, the applicants’ defence of truth had to fail in relation to publication 8. The defence of substantial truth both at common law and under s 25 of the Defamation Act requires that a defendant prove the truth of all of the imputations contained in the publication, not merely some of them.[128] In this case, the applicants did not prove the truth of all of the imputations in publication 8.
[128]See Howden v ‘Truth’ and ‘Sportsman’ Ltd(1937) 58 CLR 416, 419.4 (Starke J), 420.10–421.1 (Dixon J), 425.2 (Evatt J). See also Agustin-Bunch v Smith (No 2) [2022] VSC 290, [18] (J Dixon J); Fairfax Media Publications Pty Ltd v Kermode(2011) 81 NSWLR 157, 169 [46], 172–173 [59] (McColl JA, Beazley and Giles JJA agreeing); Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232, 263–264 [138] (McColl JA, Spigelman CJ, Beazley JA, McClellan CJ at CL and Bergin CJ in Eq agreeing); Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 57–58 [279], 63 [306] (Gillard AJA, Winneke ACJ and Warren AJA agreeing).
[REDACTED][129] [REDACTED]
[129][REDACTED]
Thus, even if, contrary to my conclusion above, the imputations concerning Pelley being ‘found guilty’ of [REDACTED] were proved to be substantially true, it could have been argued that the defence of substantial truth should have failed nonetheless because there is at least one imputation in the defamatory matter of publication 8 that is not substantially true, namely the imputation that Pelley had been found guilty of attempted murder.
In summary, the applicants have succeeded in establishing error in some of the trial judge’s findings. Accordingly, leave to appeal should be granted in relation to ground 1, but I would dismiss this ground as any error was not material to the findings that Pelley had been defamed as alleged and that the defences of substantial truth were not made out.

Ground 2

This ground raised a number of distinct questions for determination. First, it was stated that the trial judge erred in not being satisfied that Pelley infringed or stole any of Hoser’s registered trade marks.[130] Secondly, it was stated that such a finding was contrary to both a statement by the trial judge at trial and to an admission by Pelley that he knew at all times he was using the ‘reptile parties’ trade mark as a business name and not as a descriptor. Thirdly, it was stated that the Reasons at [10]–[12] made numerous statements of fact that were both untrue and not available.
[130]Reasons [152]. Also in this paragraph, the trial judge noted that Hoser had not commenced any infringement proceeding against Pelley. The applicants submitted this observation was inappropriate. When asked which ground this submission related to, the applicants stated it related to ‘the generality that [the trial judge]’s judgment is inappropriate’. Nothing further need be said about this submission. The fact that Hoser had not instigated any such proceeding was not relevant to any of the issues raised in the proceeding.
Provisions of the Trade Marks Act 1995 (Cth) (the ‘Trade Marks Act’) relevant to this ground are:
6        Definitions
(1)In this Act, unless the contrary intention appears:
…
registered trade mark means a trade mark whose particulars are entered in the Register [of Trade Marks] under this Act.
…
services of a person means services dealt with or provided in the course of trade by the person.
sign includes the following or any combination of the following, namely, any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent.
…
trade mark has the meaning given by section 17.
…
use of a trade mark has a meaning affected by subsections 7(1), (2) and (3).
use of a trade mark in relation to goods has the meaning given by subsection 7(4).
use of a trade mark in relation to services has the meaning given by subsection 7(5).
…
7        Use of trade mark
(1)If the Registrar or a prescribed court, having regard to the circumstances of a particular case, thinks fit, the Registrar or the court may decide that a person has used a trade mark if it is established that the person has used the trade mark with additions or alterations that do not substantially affect the identity of the trade mark.
(2)To avoid any doubt, it is stated that, if a trade mark consists of the following, or any combination of the following, namely, any letter, word, name or numeral, any aural representation of the trade mark is, for the purposes of this Act, a use of the trade mark.
(3)An authorised use of a trade mark by a person (see section 8) is taken, for the purposes of this Act, to be a use of the trade mark by the owner of the trade mark.
(4)In this Act:
use of a trade mark in relation to goods means use of the trade mark upon, or in physical or other relation to, the goods (including second‑hand goods).
(5)In this Act:
use of a trade mark in relation to services means use of the trade mark in physical or other relation to the services.
…
10Definition of deceptively similar
For the purposes of this Act, a trade mark is taken to be deceptively similar to another trade mark if it so nearly resembles that other trade mark that it is likely to deceive or cause confusion.
…
17What is a trade mark?
A trade mark is a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person.
…
20Rights given by registration of trade mark
(1)If a trade mark is registered, the registered owner of the trade mark has, subject to this Part, the exclusive rights:
(a)to use the trade mark; and
(b)to authorise other persons to use the trade mark;
in relation to the goods and/or services in respect of which the trade mark is registered.
(2)The registered owner of a trade mark has also the right to obtain relief under this Act if the trade mark has been infringed.
(3)The rights are taken to have accrued to the registered owner as from the date of registration of the trade mark.
…
22      Power of registered owner to deal with trade mark
(1)The registered owner of a trade mark may, subject only to any rights appearing in the Register to be vested in another person, deal with the trade mark as its absolute owner and give in good faith discharges for any consideration for that dealing.
…
24Trade mark consisting of sign that becomes accepted as sign describing article etc.
(1)This section applies if a registered trade mark consists of, or contains, a sign that, after the date of registration of the trade mark, becomes generally accepted within the relevant trade as the sign that describes or is the name of an article, substance or service.
(2)If the trade mark consists of the sign, the registered owner:
(a)does not have any exclusive rights to use, or authorise other persons to use, the trade mark in relation to:
(i)the article or substance or other goods of the same description; or
(ii)the service or other services of the same description; and
(b)is taken to have ceased to have those exclusive rights from the day determined by the court under subsection (4)
(3)If the trade mark contains the sign, the registered owner:
(a)does not have any exclusive rights to use, or authorise other persons to use, the sign in relation to:
(i)the article or substance or other goods of the same description; or
(ii)the service or other services of the same description; and
(b)is taken to have ceased to have those exclusive rights from the day determined by the court under subsection (4).
(4)For the purposes of subsections (2) and (3), a prescribed court may determine the day on which a sign first became generally accepted within the relevant trade as the sign that describes or is the name of the article, substance or service.
…
120When is a registered trade mark infringed?
(1)A person infringes a registered trade mark if the person uses as a trade mark a sign that is substantially identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered.
(2)A person infringes a registered trade mark if the person uses as a trade mark a sign that is substantially identical with, or deceptively similar to, the trade mark in relation to:
(a)       …
(c)services of the same description as that of services (registered services) in respect of which the trade mark is registered; or
...
However, the person is not taken to have infringed the trade mark if the person establishes that using the sign as the person did is not likely to deceive or cause confusion.
…
122When is a trade mark not infringed?
(1)In spite of section 120, a person does not infringe a registered trade mark when:
…
(b)the person uses a sign in good faith to indicate:
(i)the kind, quality, quantity, intended purpose, value, geographical origin, or some other characteristic, of goods or services; or
…
(c)the person uses the trade mark in good faith to indicate the intended purpose of goods … or services; or
…
The allegations in the defence to the effect that Pelley was a thief were related to the allegations that Pelley had infringed Hoser’s trade marks. The trial judge made a number of findings relevant to this ground in determining that Pelley had not infringed Hoser’s trade marks.[131] He concluded that the words ‘snake catcher’, ‘snake man’, ‘reptile parties’ ‘and the like’ as used by Pelley in his promotions or advertisements were merely descriptive of the services he was offering and were not used as trade marks.[132] Based on this, Pelley was found not to have infringed any of Hoser’s registered trade marks.[133] With respect to the imputations that Pelley was a thief (including ‘a trade mark infringing thief’ and ‘a serial thief’), the trial judge stated that a thief was someone who stole.[134] His Honour then referred to the elements of the offence of theft before concluding that Hoser had not established that Pelley was a thief because Hoser had failed to prove any of his trade marks had been infringed. Further, and in any event, the trial judge stated that even if he had found Pelley had infringed any of Hoser’s trade marks, he would not have found Pelley to be a thief because there was no evidence that Pelley had intended to permanently deprive Hoser of his trade marks.[135]
[131]There were further findings made concerning alleged infringements that are referred to below in addressing grounds 3 ([181]–[186]) and 8: [204]–[216] below.
[132]Reasons [147].
[133]Ibid [148].
[134]Ibid [154].
[135]Ibid [156]. See [284] below.
It is convenient to list the words or phrases used by Hoser in his registered trade marks:[136]
[136]Some of these words were the subject of more than one trade mark, including by the use of capital letters. Most of the trade marks were word marks; others featured stylized words and/or graphic images.
•Australasian Journal of Herpetology
•Australia’s best reptiles
•handle the animals
•hands on
•hands on reptiles
•hold the animals
•Melbourne reptile shows
•Raymond Hoser
•reptile man
•reptile parties
•reptile party
•reptile shows
•snake aversion
•snake avoidance
•snake catcher
•snake handler
•snake man
•snake removal
•snakebuster
•snakebusters
•snakeman

Relevant principles

Use ‘as a trade mark’ is the use of the mark as a ‘badge of origin’, in the sense that it indicates a connection in the course of trade between goods or services and the person who applies the mark to the goods or services.[137] This concept is embodied in s 17 of the Trade Marks Act.[138] It follows that if a sign is not used or intended to be used to distinguish goods or services dealt with or provided in the course of trade from those of any other person, then the use of a sign will not amount to an essential element of any alleged infringement, as it does not constitute use as a trade mark.[139] The question of whether the use of a sign is ‘as a trade mark’ must be assessed objectively, and requires an understanding of the purpose and nature of the impugned use by reference to the context in which the sign is used.[140]
[137]E & J Gallo Winery v Lion Nathan Australia Pty Ltd (2010) 241 CLR 144, 163 [43] (French CJ, Gummow, Crennan and Bell JJ), quoting with approval Coca-Cola Co v All-Fect Distributors Ltd (1999) 96 FCR 107, 115 [19] (Black CJ, Sundberg and Finkelstein JJ).
[138]Ibid.
[139]Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 408 ALR 195, 198 [7] (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ).
[140]Ibid 202 [24]. See also E & J Gallo Winery v Lion Nathan Australia Pty Ltd (2010) 241 CLR 144, 160 [33]; Johnson & Johnson Australia Pty Ltd v Sterling Pharmaceuticals Pty Ltd (1991) 30 FCR 326, 347.4 (Gummow J), citing Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd (1963) 109 CLR 407, 426.7 (Kitto J).
The common use of a sign in the relevant trade, including where the mark is a word mark, may be considered in determining whether a sign is used as a trade mark.[141] Where the trade mark alleged to have been infringed comprises ordinary English words, then that circumstance may be taken into account in considering whether the impugned use is not a use as a trade mark but is only a description of the goods or services in question (without signifying a badge of trade origin).[142] Where there is an issue of whether or not there has been infringement of a word mark:[143]
… the fundamental question remains … whether those to whom the user is directed are being invited to purchase the goods (or services) of the defendants which are to be distinguished from the goods of other traders “partly because” they are described by the words in question.
[141]Johnson & Johnson Australia Pty Ltd v Sterling Pharmaceuticals Pty Ltd (1991) 30 FCR 326, 347.4, citing Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd (1963) 109 CLR 407, 426.7.
[142]Ibid.
[143]Ibid 347.9–348.1 (emphasis added by Gummow J), citing Mark Foy’s Ltd v Davies Coop & Co Ltd (1956) 95 CLR 190, 205.2 (Williams J).
Although descriptive words may also serve as a badge of trade origin,[144] the more apt the words are to describe the goods or services, the less inherently apt they are to distinguish them as the goods or services of the supplier.[145] Importantly for present purposes, achieving registration of a word mark does not give rise to an exclusive right to use that word or those words. As has been stated in the context of a case involving goods:[146]
It is to put the matter too widely, and an illegitimate attempt to expand the exclusive rights given by trade mark legislation to something akin to a literary copyright, to say that there is a trade mark use if the alleged infringer applies the mark to packaging the goods so as to refer to those goods.
[144]Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 408 ALR 195, 202–203 [25] (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ); Woolworths Ltd v BP plc (No 2) (2006) 154 FCR 97, 117 [77] (Heerey, Allsop and Young JJ); Mark Foy’s Ltd v Davies Coop & Co Ltd (1956) 95 CLR 190, 194.2–195.7 (Dixon CJ).
[145]Clark Equipment Co v Registrar of Trade Marks (1964) 111 CLR 511, 515.3 (Kitto J).
[146]Cantarella Bros Pty Ltd v Modena Trading Pty Ltd (2013) 299 ALR 752, 762 [31] (Emmett J), citing Johnson & Johnson Australia Pty Ltd v Sterling Pharmaceuticals Pty Ltd (1991) 30 FCR 326, 347.7–348.1 (Gummow J).
In short, if descriptive words are legitimately registered as a trade mark, there is no proper basis to prevent others from using those words in a descriptive sense (which use does not include any use as a trade mark).[147] In this regard, the following observation is instructive:[148]
It is easier to find infringement of a registered mark where it consists of a coined phrase … than in a case where the registered mark is a generally descriptive word which has acquired a secondary meaning, so becoming distinctive of the plaintiff’s goods as a badge of origin. The reason is that there is always inherent in a word that is originally descriptive the risk that even when it is used by others in trade it will be used in its original descriptive sense. And of course, where a word that is initially descriptive subsequently acquires a secondary meaning, it remains that use of the word in its descriptive sense cannot be restrained by the proprietor of the trade mark.
[147]R v Johnstone [2003] 1 WLR 1736, 1740 [13] (Lord Nicholls of Birkenhead, Lords Hope of Craighead, Hutton and Rodger of Earlsferry agreeing); Mothercare UK Ltd v Penguin Books Ltd [1988] RPC 113, 118.9–119.1 (Dillon LJ, Woolf LJ agreeing), both quoted with approval in Christodoulou v Disney Enterprises Inc (2005) 156 FCR 344, 351 [38]–[39] (Crennan J).
[148]Pepsico Australia Pty Ltd v Kettle Chip Co Pty Ltd (1996) 135 ALR 192, 193.5 (Lockhart J) (citation omitted, emphasis added).
Equally, words may be used in trade simply as part of a narrative rather than as a trade mark. A pertinent example of this may be found in another case involving Hoser, Hoser v Sportsbet Pty Ltd.[149] In that case, Hoser claimed that television commercials by gambling company Sportsbet which used the word ‘snakeman’ (or ‘snake man’) infringed his trade mark and alleged this use suggested a connection between Sportsbet and Hoser and his business. Hoser also claimed that the use of the word ‘snakeman’ (or ‘snake man’) diluted his trade mark as it weakened its association with his identity and that of his business.[150] In rejecting Hoser’s claims, relevantly it was found that ‘snakeman’ (or ‘snake man’) had not been used as a trade mark in the advertisements because, amongst other things, the phrase was used in the ‘narrative section’ of the advertisement to capture the viewers’ attention and provide amusement, rather than in the ‘promotional section’ of the advertisement in connection with Sportsbet or the services offered.[151]
[149][2018] FCA 1557.
[150]Ibid [17]–[21] (Robertson J).
[151]Ibid [58] .
In determining whether use of a word or words is use as a trade mark, the context must be considered. In addition to use in the relevant trade,[152] factors to be taken into consideration include the positioning of the sign, the type and size of the font, the colours used and the manner in which the sign is applied to the advertising materials.[153] Further, use of another trade mark or other branding not associated with the impugned words may indicate that those words were not used or intended to be used as a trade mark.[154]
[152]See [120] above. See also Woolworths Ltd v BP plc (No 2) (2006) 154 FCR 97, 117 [77] (Heerey, Allsop and Young JJ).
[153]Christodoulou v Disney Enterprises Inc (2005) 156 FCR 344, 350 [35] (Crennan J).
[154]Pinnacle Runway Pty Ltd v Triangl Ltd (2019) 375 ALR 251, 295–296 [173] (Murphy J); Anheuser-Busch Inc v Budejovicky Budvar (2002) 56 IPR 182, 228 [191] (Allsop J).

Paragraph 209 of the Reasons was directed to the relevance of the state of mind of the defendant at the time of publication, and was as follows:
Section 36 of the Defamation Act provides that, in awarding damages, the Court is to disregard the state of mind of the defendant at the time of the publication except to the extent that malice or other state of mind affects the harm sustained by the plaintiff. In this matter, I accept that Hoser was engaged in intense competition with Pelley in the snake catching business. I find that this had its genesis in Hoser’s belief that Pelley had improperly and possibly illegally used Hoser’s registered trademarks (sic), although there was no evidence that he had sought legal advice about that issue.
In my view, the latter two paragraphs are not contradictory to the earlier paragraphs. The paragraphs dealt with different topics. Even putting that to one side, I simply see no inconsistency between them.
The trial judge made findings touching upon Hoser’s business being adversely affected by Pelley’s business. However, these were confined to Hoser’s beliefs about what was happening or was likely to happen. Again, there was no contradiction in finding that, in substance, Hoser perceived that his business, including his trade marks, was being adversely affected and a finding that Hoser had failed to establish such matters at trial.
Before leaving this ground, it is noted that Hoser gave evidence that he lost business as a result of the competition with Pelley. However, as discussed in more detail below in dealing with ground 12,[320] there was neither evidence by which the applicants sought to quantify their alleged loss nor of any particular customer of the applicants’ who had become a customer of Pelley’s. In this context, on no view could the trial judge’s later findings concerning Hoser’s belief be understood as conveying any sort of finding or the drawing of an inference that Hoser’s trade marks had been infringed, or that his trade marks or customers had been the subject of theft by Pelley.
[320]See [293]–[295] below.
Leave to appeal on this ground should be refused.

Ground 12

This ground stated that certain findings of the trial judge were contrary to unchallenged evidence and were therefore unavailable. The findings in question were that there was no evidence of: (1) the financial affairs of either Pelley or Hoser; (2) Pelley making any financial gain; or (3) Hoser suffering any financial or consequential loss at any time on account of the conduct of Pelley.[321] [REDACTED][322]
[321]Reasons [172].
[322][REDACTED]
The ‘unchallenged evidence’ consisted of general assertions by Hoser at trial that in March and April 2018 he had received booking cancellations and was the subject of complaints posted on his Facebook page that [REDACTED]. This evidence was a repetition of what had been previously stated by Hoser in publication 9, being the letter dated 12 March 2019 [REDACTED].[323] That letter also referred to the ‘financial self enrichment of Pelley at [Hoser’s] expense’. The letter itself contained no evidence to substantiate this.
[323][REDACTED]
When asked by the trial judge whether he intended to lead any evidence on these matters, Hoser stated he was unable to do so because at the materially relevant time he was very busy writing a scientific paper naming new species of lizards. Hoser also stated he might have deleted bad posts and blocked the authors of these posts. He gave evidence that ‘of course’ on most occasions when clients cancelled they did not necessarily inform him of why and that they sometimes cancelled for different reasons. He also stated that often cancellations were legitimate. Later in his evidence, Hoser was again asked by the trial judge whether he was going to lead any evidence of actual losses suffered. In response to the trial judge’s query, Hoser stated that quantifying any losses was almost impossible because of the COVID-19 pandemic, to which the trial judge correctly pointed out that any restrictions were imposed some two or three years after the time during which Hoser alleged he initially suffered loss.
Tellingly, in his written submissions in this Court, Hoser stated that [REDACTED] in early 2018[324] he was unaware of why he had suffered the business cancellations. Further, Hoser did not call any witnesses to substantiate the allegation [REDACTED].[325] [REDACTED].[326]
[324]See [16] above.
[325][REDACTED]
[326][REDACTED]
In any event, no Kotabi business records or any other evidence was adduced to demonstrate that the applicants had suffered a loss of turnover or profits (much less that any alleged loss in either regard was attributable to Pelley rather than other factors), or that Pelley had directly benefited from obtaining customers that otherwise would have been customers of the applicants. In these circumstances, the trial judge was correct in making the observations he did about the absence of evidence establishing any loss suffered by the applicants.
Therefore, leave to appeal on this ground should be refused.

Grounds 15 and 16

[REDACTED][327] [REDACTED]. Further, it was stated that, because Pelley caused the defamatory publications to be made, and they were not wholly made up or fabricated in malice by Hoser, the quantum of damages awarded should have been nominal.
[327][REDACTED]
Ground 16 stated that the trial judge’s finding that there was not any provocation by Pelley and his conclusion that there was no reason to discount damages on that account were perverse and unreasonable.
[REDACTED][328] [REDACTED][329] [REDACTED]
[328][REDACTED]
[329][REDACTED]
[REDACTED]. Further publication was their own choice. For reasons discussed in dealing with ground 16,[330] the applicants’ attempt to blame Pelley for their conduct was without merit.
[330]See [314]–[Error! Reference source not found.] below.
Consideration of ground 16 does not require an analysis of the relevant part of the Reasons. The trial judge simply stated he did not consider there was any provocation by Pelley without giving any reasons for this conclusion.[331]
[331]Reasons [247]–[248].
Although the scope of the operation of the principle remains uncertain, if a plaintiff provokes a defendant who then defames the plaintiff, the provocation may be relevant to the assessment of damages.[332] Before the provocation is capable of reducing any award, it must be directly relevant to the subject matter of the defamatory publication and its context or the relevant part of the plaintiff’s reputation.[333] Further, the plaintiff’s conduct before the defamatory publication may be relevant if that conduct goaded the defendant’s response.[334]
[332]Thunder Studios Inc (California) v Kazal (No 10) [2020] FCA 1636, [7]–[11] (Rares J) and the cases there cited. See also Patrick George, Defamation Law in Australia (LexisNexis, 4^th ed, 2023) [36.2].
[333]O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89, 91 [5] (Meagher JA, Stein JA and Brownie AJA agreeing).
[334]Burstein v Times Newspapers Ltd [2001] 1 WLR 579, 591 [27] (May LJ, Sir Christopher Slade and Aldous LJ agreeing), 602 [57] (Sir Christopher Slade).
In seeking to establish that he had been provoked, Hoser referred to his earlier submissions in relation to the alleged trade mark infringements. Whatever Hoser may have thought about Pelley’s conduct in connection with his registered trade marks,[335] on no view could it provide any proper basis to conclude that Pelley was provoking the applicants to publish information concerning Pelley being found guilty of serious criminal offences.[336]
[335]Hoser gave evidence he had been infuriated by Pelley since Pelley started using his trade marks and undermining his business in 2016.
[336]For completeness, in light of the position adopted at trial, reference should be made to a Facebook post on a business page operated by Pelley on 3 April 2018. Hoser gave evidence that it infuriated him as the ‘entire post’ was said to contain Hoser’s trade marks. Immediately under Pelley’s name, the post read: ‘TEACH YOUR DOG TO AVOID SNAKES Enroll (sic) your pup in The Snake Hunter’s Canine snake avoidance training’. This was immediately followed by Pelley’s mobile telephone number and a link to the ‘snakehunter.com.au’ website. Included in the post were two photographs of snakes with dogs close by. Again, this post could not be viewed as giving any plausible or remotely reasonable basis to respond in the manner that the applicants did.
Next, Hoser referred to a Facebook post by Pelley on or about 9 February 2018. The post read ‘Woke up to pranksters on New [Y]ears (sic) day but found this instead. Interesting read.’[337] It attached an article dated 20 June 2013 published online on ‘ScientificAmerican.com’ entitled ‘Taxonomic vandalism and the Raymond Hoser problem’.[338] Without descending to too much detail,[339] the article was highly critical of Hoser and made many ‘charges’ against him concerning his naming of reptiles.
[337]Pelley’s post received three ‘likes’ or reactions and two comments.
[338]The author of this article identified himself as a science writer, technical editor and palaeozoologist affiliated with the University of Southampton, United Kingdom. The article was also available on the author’s website.
[339]Together with comments, the article ran for 28 pages.
In addition to these criticisms, the article also ridiculed Hoser, sarcastically referring to him as, amongst other things, ‘one of the greatest herpetologists of all time!’. Hoser’s taxonomic recommendations were said to be ‘problematic, frequently erroneous and often ridiculous’ and were suggested to represent a sort of ‘taxonomic vandalism’. It was also suggested that Hoser was ‘very obviously, cleverly, “cheating” his way through zoological nomenclature’. Hoser’s work, ‘all appearing in his self-published Australasian Journal of Herpetology’, was referred to as ‘amazingly slapdash’, ‘shockingly and hilariously unscientific’, ‘truly amateurish, if not childish’, ‘typically inadequate, contradictory, vague, or erroneous’, and so on.[340] The article suggested most working herpetologists deliberately ignored and had not used the names Hoser had published in his articles. Hoser’s reputation was also questioned by reference to ‘interesting videos online’ that were said to show how Hoser interacted with female work experience students. In its conclusion, the article stated that ‘Hoser Taxonomy (as it’s known)’ had been mentioned or discussed previously on the author’s podcast, and contained links to various episodes.
[340]A ruling of the International Commission on Zoological Nomenclature made on 30 June 2020, amongst other things, rejected proposals to have issues 1 to 24 of the Australasian Journal of Herpetology suppressed and unavailable for the purposes of zoological nomenclature. The reasons included that the Commission was reluctant to suppress a large part of an active zoologist’s work in an indiscriminate way: Opinion 2468 (Case 3601), Bulletin of Zoological Nomenclature 78 (30 April 2021) 42, 44. It was noted that the Commission was not empowered to investigate or rule upon alleged breaches of the applicable code of ethics.
There were 48 comments posted in response to the article.[341] Many of them were derisory and spoke of Hoser’s work in terms that denounced its value or efficacy. They also referred to protests that had apparently been made by Hoser in the past about the criticism of his work.
[341]The comments were posted over a period of five days from 20 June 2013. Before a comment could be made on the article, a person was required to sign in or register as a member of ‘ScientificAmerican.com’.
There could be no doubt that Hoser would have found these publications upsetting. Not without reason, Hoser understood the article as portraying him as a scientific fraud. Objectively it appeared there was an element of provocation in Pelley seeking to recirculate this article from 2013 with his covering remark. That said, there are a number of reasons why this was of only marginal significance.
There was no evidence that Pelley posted the article more than once. Further, although his comment was made in the context of referring to ‘pranksters’ (not being a reference to Hoser), Pelley did not weigh in on the subject matter of the article beyond saying it was an ‘interesting read’. Furthermore, the article was already generally available on the internet, which is how Pelley found it. Its contents suggested this was not the first time Hoser’s work had been criticised. In addition, the fact that the article had attracted a significant number of comments and remained on the internet for a number of years[342] suggested that it was already quite widely circulated.
[342]See also fn 338 above.
Moreover, Pelley’s Facebook post needs to be considered in light of how it was raised at trial. Hoser sought to tender it after both Pelley and Hoser had completed their evidence. As he did so, he submitted Pelley knew the article was incorrect. The trial judge suggested that Pelley had not been given the opportunity to confront this allegation.[343] Hoser’s response was that one of the ‘ambit questions’ Hoser put to Pelley during cross-examination was whether Pelley had ever attacked Hoser or had done anything like that, and that Pelley had denied doing so. When the trial judge asked for a transcript reference to the question Hoser was referring to, he was unable to provide it.[344] In any event, Pelley was not given the opportunity to respond to the accusation that he had deliberately provoked Hoser by this Facebook post. In these circumstances, there was no basis to draw any inference in favour of Hoser.[345]
[343]The document had been referred to in Hoser’s evidence after Pelley had closed his case, but it was not put to Pelley.
[344]During Hoser’s cross-examination of Pelley, he did ask Pelley a number of questions concerning whether Pelley had done anything to invoke, induce or provoke Hoser. In reply, Pelley stated that he had not provoked Hoser. When Hoser stated he was trying to get a straight answer from Pelley, the trial judge intervened and stated that provocation was not a known defence at law in a defamation action.
[345]Australian Securities and Investments Commission v Rich (2009) 236 FLR 1, 96–97 [452]–[453] (Austin J); R v GEC (2001) 3 VR 334, 344–345 [41] (Vincent JA, Charles and Batt JJA agreeing); Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389, 418E–419G (Handley JA), see also 398B (Kirby P).
In summary, although when viewed objectively Pelley’s Facebook post was provocative on its face, in the circumstances it could not be considered to be materially so. Further, in light of the fact that the topic was never raised with Pelley directly while he was giving his evidence, there was no proper basis to find that Pelley provoked Hoser by publishing a Facebook post which included a link to the article.
Next, the applicants submitted the trial judge failed to take into account ‘fake one star reviews’ posted by Pelley and members of his family in relation to the applicants’ snake handling business.[346] Suffice to say, there was no probative evidence that any of Pelley, [REDACTED] or any other family member of Pelley’s was responsible for one star reviews of Kotabi’s business or Hoser himself. In any event, even if they had posted such reviews,[347] that could not be seen as a form of provocation to publish allegations concerning Pelley having been found guilty of serious criminal offences.
[346]Hoser gave transcript references to support this submission, which included evidence of Pelley rejecting the suggestion that Pelley was behind a one star review that had been given for the applicants’ business under someone else’s name. Hoser later sought to introduce evidence of this one star review by a person who was not called to give evidence in seeking to establish that Pelley was responsible for the review. The proposed tender was correctly rejected by the trial judge.
[347][REDACTED] gave evidence that she gave a one star review for a competitor of Pelley’s migration business, but this did not relate to the applicants.
Next, the applicants contended Pelley ‘repeatedly’ had police ‘lay false criminal charges’ against Hoser. There were only two documents created over a short period of time that were relied upon to support this serious contention.[348] In short, there was no substance to the allegation.[349]
[348]The applicants referred to a statement Pelley made to the police on 19 November 2018, [REDACTED]. The other document was a preliminary brief by an informant which recorded a statement made by Hoser in response to Pelley’s statement on 27 February 2019. The charges were subsequently withdrawn.
[349]To put this matter in context, there was also correspondence in September 2019 in which Hoser complained to the police about Pelley [REDACTED]. Hoser invited the police to charge Pelley with four counts of making false complaints against him. In addition, Hoser gave evidence of being visited regularly by the police as a result of another person he accused of infringing his trade marks taking exception to Hoser’s response.
Next, the applicants referred to Pelley seeking to have Hoser’s business pages removed from Google. This proposition was put to Pelley during cross-examination, which he denied.[350] While Pelley admitted to contacting Google to inform it that Pelley did not believe a business listed under the name ‘Snake Catcher Eltham’ existed because Hoser owned no such business and the address given was not real, Pelley’s evidence was that it was entirely a matter for Google as to what occurred after that. His understanding was that Google would check with the business owner before taking any steps. Thus, there was no evidence that Pelley took any steps to seek to delete any of the applicants’ business pages beyond providing the limited information that he did. The business page in question was never deleted.
[350]The trial judge refused Hoser’s attempted tender of the document referred to during this cross-examination. There was no leave to appeal sought in relation to that ruling.
[REDACTED][351] [REDACTED]
[351][REDACTED]

[REDACTED]
[REDACTED][352] [REDACTED]
[352][REDACTED]
[REDACTED]
In conclusion, while it is difficult to ascertain from the Reasons the basis on which the trial judge concluded that there was no provocation by Pelley, most of the matters about which the applicants complained did not constitute provocation either individually or in combination. Further, any provocative conduct by Pelley was negligible, such that I agree with the trial judge’s ultimate finding that there was no reason to discount damages on that account. Accordingly, leave to appeal on grounds 15 and 16 should be refused.
As a result of this conclusion, it is not strictly necessary to consider a submission made by Pelley that the issue of provocation ought not to have been considered as it had not been pleaded in the applicants’ defence, which was settled by counsel. Be that as it may, having reviewed the transcript, it would appear that the trial was conducted on the basis that this was a live issue notwithstanding it had not been pleaded.[353] The trial judge noted Hoser’s failure to seek leave to amend the defence to plead provocation in response to the claim for aggravated damages, and also suggested any such application would have been likely to fail.[354] However, in light of my conclusion on ground 16, it is unnecessary to say anything further on the matter.
[353]Banque Commerciale SA (En liquidation) v Akhil Holdings Ltd (1990) 169 CLR 279, 286.8–287.3 (Mason CJ and Gaudron J), 293.2 (Dawson J).
[354]Reasons [247].

Ground 18

This ground may be addressed briefly. It stated that [260] of the Reasons contradicted ‘evidence’ [REDACTED].[355] The evidence the applicants contended was contradicted was not identified.
[355][REDACTED] VSC [REDACTED].
This ground was misconceived. Paragraph 260 did no more than set out the circumstances particularised in the statement of claim alleged to entitle Pelley to an award of aggravated damages.[356] In providing his analysis as to why Pelley was entitled to aggravated damages in the sum of $15,000, the trial judge only addressed some of these matters.[357] These included the uncontroversial findings that Hoser did not retract or apologise for any of the publications, or express any remorse.[358]
[356]The trial judge declined to refer to one of them as he considered the details to be unintelligible: Reasons [260(i)].
[357]Reasons [262]–[263], [265]–[266].
[358]Hoser made submissions about the inaccuracy of the finding at [262] of the Reasons about not making enquiries concerning ‘criminal acts, criminal convictions’. However, this does not arise on a strict reading of the terms of this ground.
In any event, as was stated above with respect to ground 1,[359] the mere fact that it might be said that findings in a proceeding were contradicted by evidence that had been given (or findings that had been made) in another proceeding could not, without more, be a proper basis to challenge findings made in the first proceeding based on the evidence before that court.[360] Therefore, leave to appeal on this ground should be refused.
[359]See [73] above.
[360]Evidence Act 2008, s 91. See also s 178.

Ground 19

This ground concerned the trial judge’s finding that Pelley was entitled to an award of damages that would stand as a public acknowledgement that the accusations made against him were untrue.[361] [REDACTED]
[361]Reasons [256].
It must be observed at the outset that, at the time the Reasons were delivered, a suppression order was already in place. On 27 May 2021, being the sixth day of trial, the trial judge gave a ruling as to why a suppression order was to be imposed. The order made later that day prohibited publication of any details of the proceeding, including any of the allegations, parties, evidence, documents or things involved in the proceeding or related proceedings. Further, it was ordered that the order would continue indefinitely unless revoked by further order of the County Court.
Accordingly, the finding referred to was made with the knowledge that the suppression order was in place and would continue, subject to further order. In light of this, I understand the reference to ‘public acknowledgement’ to relate to the fact that, regardless of any suppression order, there would be a public record of the result of the proceeding, being the order made on 3 February 2022 recording the judgment of the court. There was no error on the part of the trial judge in making this finding.
Further, as already stated, the suppression order made on 27 May 2021 was subject to further order. Indeed, the applicants have submitted as part of this ground that the suppression order should no longer be in place. As the question of whether or not the suppression order ought to remain in place is not relevant to the issue of whether or not the trial judge erred, it is unnecessary to address this question at this stage. It is expected that it will be revisited upon the delivery of these reasons.
Therefore, leave to appeal on this ground should be refused.

Ground 20

This ground concerned a decision made by the trial judge on 21 May 2019 at a directions hearing, long before the trial commenced. On that occasion, Hoser was refused leave to represent Kotabi. Initially, the applicants acted in accordance with this ruling. Solicitors were retained and documents were filed by the solicitors on behalf of the applicants. However, the solicitors ceased to act and Hoser again acted for himself.[362]
[362]On the application for leave to appeal, Hoser stated that this was a consequence of him being unable to raise the funds required to have solicitors conduct the trial.
At the start of the trial, after acknowledging that Hoser appeared for himself, the trial judge enquired as to whether Kotabi was not represented formally in accordance with earlier rulings. Hoser stated in response that that was correct. Thus, there was no application made at trial for Hoser to appear on behalf of Kotabi.
Neither the transcript of the directions hearing on 21 May 2019 nor the reasons delivered on that occasion were the subject of the application for leave to appeal. In short, there were no materials previously before the trial judge at first instance upon which this Court was able to consider whether or not leave to appeal ought to have been granted.[363]
[363]Hoser submitted that there was no hearing of any submissions, and no affidavits or other evidence before the Court at the directions hearing when the decision was made to refuse leave. However, there was no record of the hearing before this Court upon which any assessment could be made of what had occurred or the basis of any decision.
Accordingly, because of the absence of both the relevant reasons and materials relied upon, this ground cannot succeed. That said, it is of no real consequence. At the commencement of the hearing of the application for leave to appeal, leave was granted to Hoser to represent Kotabi.[364] Further, during his submissions before this Court, Hoser acknowledged that this issue was not strictly relevant to the applicants’ grounds for leave to appeal.
[364]Hoser v Pelley (No 2) [2023] VSCA 14.
Therefore, leave to appeal on this ground should be refused.

Conclusion

For the reasons stated, the applicants ought to be partially successful. Leave to appeal should be to be granted in respect of grounds 1, 3, 6, 7, 8, 10 and 17 and the appeal should be allowed with respect to grounds 6, 7, 8, 10 and 17. However, leave to appeal should be refused in respect of grounds 2, 4, 5, 9, 11, 12, 13, 14, 15, 16, 18, 19 and 20, and grounds 1 and 3 should be dismissed.
In summary, while the applicants have not succeeded in relation to any grounds directed to the trial judge’s conclusion that publications 1 to 9 were defamatory of Pelley and the judge’s conclusion that the pleaded defences in relation to those publications must fail, they have succeeded in relation to publication 11. They have also succeeded in disturbing some of the trial judge’s other findings that were relevant to the amount of damages to be awarded. As a result, the orders made by the trial judge made on 3 February 2022 awarding damages in the sum of $179,000 (including interest) should be set aside.
I would propose a further hearing be held to assess damages as soon as practicable. The appropriate course would be that the applicants file and serve submissions on the issue of damages by 15 November 2023 and Pelley file and serve his submissions by 29 November 2023.
In addition, the parties should also be directed to make submissions in relation to whether there should be a restriction on the publication of some or all of these reasons, and if so on what basis. Subject to any submissions, I would propose the same timetable as that set out above in relation to damages.
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Annexures

[Appendix A redacted.]

Details

AGLC: Hoser v Pelley [No 3] [2023] VSCA 257
Case: [2023] VSCA 257
Decision Date: 1 November 2023

CaseChat Overview and Summary

The case of Hoser v Pelley [No 3] involved a defamation claim and an intellectual property dispute. The plaintiff, Hoser, sued Pelley for defamatory statements made on social media, as well as for the alleged infringement of a trade mark. The matter was heard in the Federal Court of Australia. The defamation claim stemmed from posts made by Pelley on social media, where he claimed that Hoser had been "found guilty" of certain actions, leading to reputational damage. The intellectual property aspect of the case involved the use of a trade mark as a business name on social media.

The court was required to determine several legal issues. Firstly, it had to consider the meaning of the phrase "found guilty" in the context of the defamatory publications and the potential "grapevine effect" on the ordinary reasonable reader or ordinary sensible person. Secondly, the court needed to decide whether the imputations made by Pelley were true or substantially true, thereby justifying the defamation claim. Thirdly, it had to assess whether Pelley's actions caused damage to his own reputation by disseminating the information. Lastly, the court had to consider the applicability of the defence of provocation and the award of compensatory and aggravated damages made by the trial judge.

The court found that the phrase "found guilty" did not necessarily mean a formal conviction in a court of law but could be understood in the context of social media. The imputations made by Pelley were deemed not to be substantially true, and thus, the defamation claim was upheld. The court also held that Pelley's actions did not cause significant damage to his own reputation. The defence of provocation was rejected as it did not apply to the facts of the case. The appeal was allowed in part, with the award of compensatory and aggravated damages being set aside.

The final orders of the court included the dismissal of Pelley's appeal in relation to the defamation claim, and the setting aside of the award of compensatory and aggravated damages. The court's decision highlighted the complexities of defamation in the digital age and the importance of context in interpreting social media posts.

Orders