Kalil v Eppinga

[2023] NSWDC 107

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kalil v Eppinga [2023] NSWDC 107

Hearing dates:

20, 21 and 22 February and 3 April 2023

Date of orders:

21 April 2023

Decision date:

21 April 2023

Jurisdiction:

Civil

Before:

Weber SC DCJ

Decision:

(1) That there be judgment and verdict for the cross defendants against the cross claimant.

(2) That the cross claimant pay the cross defendants’ costs.

Catchwords:

DEFAMATION – Qualified privilege – Response to an attack – Malice

Cases Cited:

Sims v Joost(No 2) [2016] WASCA 83

Roberts v Bass (2002) 212 CLR 1

KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare onHaig v Bowden (2020) 101 NSWLR 729

Jones v Dunkel (1959) 101 CLR 298

Category:

Principal judgment

Parties:

First Plaintiff/Cross Defendant: Mahmoud Kalil
Second Plaintiff: Kylie Eather
Cross Defendant: Magda Kalil
Defendant/Cross Claimant: Ellie Rose Eppinga

Representation:

Counsel:
Plaintiffs/Cross Defendants: Mr K Smark SC
Defendant/Cross Claimant: Mr L.C. Muriniti (Solicitor)

Solicitors:
Plaintiffs/Cross Defendants: Rostron Carlyle Rojas Lawyers
Defendant/Cross Claimant: L.C. Muriniti & Associates

File Number(s):

2019/45573

Publication restriction:

None

JUDGMENT

Introduction

1. The cross claimant sues the cross-defendants in defamation.

2. The proceedings arise out of incidents which occurred at the Beacon Hill Veterinary Clinic (“BHVC”). The cross-defendants are proprietors of that business, conducting it in partnership.

3. As at January 2019 the cross claimant was undertaking a veterinary nursing course at TAFE. She approached BHVC to ascertain whether the clinic would be in a position to provide her with unpaid work experience. This was agreed, and the cross claimant was told she would start on the morning of 25 January 2019.

4. The Cross claimant duly arrived at BHVC early on 25 January 2019. She was instructed to clean out the cages in which dogs and cats under treatment were housed.

5. What happened thereafter was to some degree a matter of controversy.

6. What is undisputed is that the cross claimant became concerned about the hygiene standards at BHVC, and was quickly and forthrightly expressing her concerns in that regard to the first cross-defendant Dr Kalil and his veterinary nurse Ms Eather. A row ensued between the cross claimant, Ms Eppinga and Dr Khalil, in less than 30 minutes after her arrival at BHVC. Following these events, the cross claimant was told to leave the premises.

7. Ms Eppinga was obviously very agitated at what she had seen, which agitation was evidenced to some extent by the number of phone calls which she made in connection with her concerns in the two days following the events in question.

8. The phone calls made on 25 and 26 January were placed inter alia to:

1. The RSPCA;

2. The Veterinary Practitioners board;

3. Dee Why Police;

4. A state member of Parliament Mr James;

5. The then Premier Ms Berejiklian.

9. In addition, Ms Eppinga posted the following post on 25 January 2019 at 4:53am. The post was on her Facebook account.

“I HAVE CONTACTED THE VPB AND ALL OTHER RELEVANT AVENUES.

Alright I might edit this along the way but I'm gonna run with…