McIntosh v Peterson [No 2]

[2024] WASC 428

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   MCINTOSH -v- PETERSON [No 2] [2024] WASC 428

CORAM:   QUINLAN CJ

HEARD:   10–14 JUNE & 9 AUGUST 2024

DELIVERED          :   25 NOVEMBER 2024

FILE NO:   CIV 2202 of 2021

BETWEEN:   ANDREW MICHAEL PATRICK MCINTOSH

First Plaintiff

KAY ELISSA MCINTOSH

Second Plaintiff

FOR PAWS AND FEATHERS PTY LTD TRADING AS BICTON VETERINARY CLINIC

Third Plaintiff

AND

NATASHA JANE PETERSON

First Defendant

JACK HIGGS

Second Defendant

V-GAN BOOTY PTY LTD

Third Defendant

Catchwords:

Defamation – Publications made by way of Facebook Post – Animal rights activists – Plaintiffs operated veterinary clinic – Imputations in relation to personal and professional reputations of plaintiffs

Defamation – Defences – Honest opinion – Whether defamatory matter expression of opinion – Whether defamatory matter related to a matter of public interest – Whether defamatory matter based on proper material

Defamation – Defences – Common law qualified privilege – Whether reciprocity of interest – Malice

Defamation – Defences – Statutory qualified privilege – Whether interest or apparent interest – Reasonableness of conduct –

Defamation – Defences – Justification – Whether imputations substantially true

Damages – Extent of publication and republication – Effect on plaintiffs – Aggravating circumstances

Damages – Economic loss – Special damage – Cost of mitigation

Injurious falsehood – Whether false statements actuated by malice – Whether corporate plaintiff suffered actual damage

Trespass – Whether implied licence existed – Whether implied licence revoked – Damages – Whether to award exemplary damages

Civil conspiracy – Unlawful means conspiracy – Whether agreement to injury by unlawful means

Legislation:

Defamation Act 2002 (WA), s 8, s 25, s 30, s 31, s 33, s 34, s 35, s 36, s 37, s 39

Result:

Judgment for the plaintiffs against the first and second defendants
Judgment for the third defendant against the plaintiffs

Category:    A

Representation:

Counsel:

First Plaintiff	:	M L Bennett & D E Swain
Second Plaintiff	:	M L Bennett & D E Swain
Third Plaintiff	:	M L Bennett & D E Swain
First Defendant	:	J MacLaurin SC & J O'Hara
Second Defendant	:	J MacLaurin SC & J O'Hara
Third Defendant	:	J MacLaurin SC & J O'Hara

Solicitors:

First Plaintiff	:	Bennett
Second Plaintiff	:	Bennett
Third Plaintiff	:	Bennett
First Defendant	:	McNally & Co
Second Defendant	:	McNally & Co
Third Defendant	:	McNally & Co

Cases referred to in decision:

Stone v Moore [2016] SASFC 50

Armstrong v McIntosh [No 4] [2020] WASC 31

Barker v The Queen (1983) 153 CLR 338

Barker v The Queen (1994) 54 FCR 451

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

Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; (2018) 56 VR 674

Bazzi v Dutton [2022] FCAFC 84; (2022) 289 FCR 1

Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183

Bill Karageozis as trustee for the bankrupt estate of Siobhan Lamb v Sherman [2023] QCA 258

Bolton v Stoltenberg [2018] NSWSC 1518

Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2011] NSWSC 642

Bristow v Adams [2012] NSWCA 166

Broome v Cassell & Co Ltd [1972] AC 1027

Byrne v Deane [1937] 1 KB 818

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

CC Containers Pty Ltd v Lee [2011] VSC 537

Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185

Chong v CC Containers Pty Ltd [2015] VSCA 137; (2015) 49 VR 402

Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605

Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176

De Kauwe v Cohen [No 4] [2022] WASC 35

Defteros v Google LLC [2021] VSCA 167

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

Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27; (2021) 273 CLR 346

Fairfax Publications Pty Ltd v Kermode (2011) 81 NSWLR 157

Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716

Feldman v Polaris Media Pty Ltd as trustee of the Polaris Media Trust t/as The Australian Jewish News [2020] NSWCA 56; (2020) 102 NSWLR 733

Fox v Wood (1981) 148 CLR 438

Gacic v John Fairfax Publications Pty Ltd (2015) 89 NSWLR 538

George v Rockett [1990] HCA 26; (1990) 170 CLR 104

Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 525

Google LLC v Defteros [2022] HCA 27; (2022) 96 ALJR 766

Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1

Green v Fairfax Media Publications Pty Ltd [No 4] [2021] WASC 474

Halliday v Nevill (1984) 155 CLR 1

Harbour Radio Pty Ltd v Ahmed [2015] NSWCA 290; (2015) 90 NSWLR 695

Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584

Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1

Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440

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

Hunt v Star Newspaper Co Ltd [1908] 2 KB 309

Jay v Petrikas [2023] NSWCA 297

Jensen v Nationwide News Pty Ltd & Anor [2019] WASC 451 (S)

Jensen v Nationwide News Pty Ltd & Anor [No 13] [2019] WASC 451

John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484

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

John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164; (2005) Aust Torts Reports 81-789

Jones v Skelton [1964] NSWR 485

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

Lazos v West Australian Newspapers Ltd [No 2] [2024] WASC 238

Lee v Abedian [2016] QSC 92

Leigh v Bruder Expedition Pty Ltd [2020] QCA 246; (2020) 6 QR 475

Lincoln Hunt (Australia) Pty Ltd v Willesee (1986) 4 NSWLR 457

Lindholdt v Hyer [2008] NSWCA 264; (2008) 251 ALR 514

Lipman v Clendinnen (1932) 46 CLR 550

Lisle-Mainwaring v Associated Newspapers Ltd [2017] EWHC 543 (QB)

March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

McIntosh v Peterson [2024] WASC 285

Mirror Newspapers Ltd v Fitzpatrick (1984) 1 NSWLR 643

Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432

Neal v The Queen (1982) 149 CLR 305

New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638

Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388

Palmer v McGowan (No 5) [2022] FCA 893; (2022) 404 ALR 621

Plenty v Dillon (1991) 171 CLR 635

Poland v Hedley [No 5] [2023] WASC 294

Rayney v The State of Western Australia [No 9] [2017] WASC 367

Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500

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

Robson v Hallett [1967] 2 QB 939

Roy v O'Neill [2020] HCA 45; (2020) 272 CLR 291

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

Rush v Nationwide News Pty Ltd (No 9) [2019] FCA 1383

Sims v Jooste [No 2] [2016] WASCA 83

Smethhurst v Commissioner of the Australian Federal Police [2020] HCA 14; (2020) 272 CLR 177

Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; (2021) 387 ALR 123

Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211

Stocker v Stocker [2020] AC 593

Stuart v Hanna [2018] WASCA 181

Stuart v Hanna [No 3] [2018] WASC 208

Summit Rural (WA) Pty Ltd v Lenane Holdings Pty Ltd [2024] WASCA 122

TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333

Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497

Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149

Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118

Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43

Wang v Yu [2023] NSWSC 1182

Webb v Bloch (1928) 41 CLR 331

Webb v Tang [2023] WASCA 119

Wilson v Bauer Media Pty Ltd [2017] VSC 521

Wright v De Kauwe [No 2] [2024] WASCA 51

Zoef v Nationwide News Pty Ltd [2016] NSWCA 283

Table of Contents

Introduction and overview

Dramatis personae

Kay McIntosh

Andrew McIntosh

For Paws and Feathers Pty Ltd

Natasha (Tash) Peterson

V-Gan Booty Pty Ltd

Jack Higgs

The events of 23 and 24 September 2021 and the Facebook Post

23 September 2021

24 September 2021

The Facebook Post

Causes of action and summary of issues

Defamation – the Facebook Post

Publication of the Facebook Post

Ms Peterson was a publisher of the Facebook Post

Mr Higgs was a publisher of the Facebook Post

V-Gan Booty Pty Ltd was not a publisher of the Facebook Post

Ms Peterson's evidence as to V‑Gan Booty Pty Ltd's responsibility for the Facebook page

Cross-examination as to Ms Peterson's financial and taxation affairs

The business model allegation

Conclusion as to V‑Gan Booty Pty Ltd

Extent of publication of the Facebook Post

Republications of the Facebook Post

Defamation – alleged defamatory imputations

Defamatory meaning – legal principles

Findings as to defamatory imputations

The plaintiffs are animal abusers – Statement of Claim [8.1]

Dr McIntosh and Mr McIntosh are hypocrites – Statement of Claim [8.2] and [8.2A]

The plaintiffs enslave animals – Statement of Claim [8.2B] and [8.3]

Dr McIntosh and Mr McIntosh eat the Clinic's patients – Statement of Claim [8.4]

Dr McIntosh is an unethical veterinarian by eating meat – Statement of Claim [8.5]

Conclusions in relation to defamatory imputations

Defamation – honest opinion

Honest opinion – legal principles

Was the Facebook Post an expression of opinion?

Did any opinion expressed in the Facebook Post relate to a matter of public interest?

Was any opinion expressed in the Facebook Post based on proper material?

Honest opinion – conclusion

Defamation – qualified privilege

Defamation – common law qualified privilege

Occasion of privilege – reciprocity of interest?

Defamation – statutory qualified privilege

Interest or apparent interest?

Was Ms Peterson and Mr Higgs' conduct reasonable?

Defamation – malice

Malice – legal principles

Malice – application

Defamation – triviality

Defamation – truth

Is the animal slavery imputation true?

Defamation – damages

Damages for non-economic loss – general principles

Effect of the publication on Dr McIntosh and Mr McIntosh

Dr McIntosh

Mr McIntosh

Aggravated damages

The amount of non‑economic loss

Dr McIntosh

Mr McIntosh

Clinic

Special damages (Clinic)

Cost of mitigation – legal principles

Cost of mitigation – factual findings

Special damages – disposition

Defamation – injunction

Defamation – conclusions

Injurious falsehood

Injurious falsehood – legal principles

Injurious falsehood – falsehood

Injurious falsehood – malice

Injurious falsehood – actual damage

Injurious falsehood – conclusion

Trespass

Trespass – relevant factual findings

Trespass – legal principles

Trespass – implied licence?

Trespass – revocation of implied licence?

Trespass – damages

Civil conspiracy

Civil conspiracy – legal principles

Civil conspiracy – agreement to injure by unlawful means

Civil conspiracy – pecuniary loss

Civil conspiracy – conclusion

Conclusion

Schedule 1 – Transcript of the Facebook Post

QUINLAN CJ:

Introduction and overview

1. Natasha Peterson and her partner, Jack Higgs, are animal rights activists. They both hold strong views opposed to what they regard as the exploitation of animals by human beings, including in the food, clothing and entertainment industries.

2. As part of their activism, Ms Peterson and Mr Higgs engage in what they describe as 'disruptive protests', which are designed to bring widespread attention to their views concerning animal exploitation. Those disruptive protests use both confronting imagery (such as blood and a pig's head) and overt sexuality (Ms Peterson often protests semi‑naked or wearing only lingerie). Ms Peterson and Mr Higgs also use strong, graphic and anthropomorphic language to describe humans' treatment of animals: 'murder', 'slavery', 'rape' and 'torture'.

3. As a means of attracting attention to their cause, Ms Peterson and Mr Higgs' disruptive protests have evidently been very successful. Ms Peterson, in particular, has a very significant social media 'presence' and regularly features in more traditional forms of media.

4. This case is not about the correctness of Ms Peterson and Mr Higgs' views in relation to animal rights. Those views are entitled to respect, and the expression of them is a legitimate exercise of Ms Peterson and Mr Higgs' freedom of speech. Indeed, in a number of respects, Ms Peterson and Mr Higgs' advocacy for the interests of animals, and their concern for the suffering of animals, is admirable.

5. This case is, rather, concerned with a particular Facebook post by Ms Peterson (Facebook Post), and the events leading up to it, concerning two individuals, Dr Kay McIntosh and Mr Andrew McIntosh, and the veterinary practice that they operate through a company, For Paws and Feathers Pty Ltd, under the business name Bicton Veterinary Clinic (Clinic).[1]

   [1] In these reasons, depending upon the context, 'the Clinic' refers to both For Paws and Feathers Pty Ltd, the corporate plaintiff, and the physical location at which the business of the corporate plaintiff is conducted.

6. On 24 September 2021, Ms Peterson and Mr Higgs entered the Clinic and recorded interactions with Dr McIntosh and Mr McIntosh, both inside and outside the Clinic, in which they made various statements concerning the treatment of animals by Dr McIntosh, Mr McIntosh and the Clinic itself. Later that day, Ms Peterson posted parts of that recording on her Facebook page, together with a written commentary, under the heading 'Exposing Vets for Being Hypocrites'.

7. Dr McIntosh, Mr McIntosh and the Clinic (plaintiffs) now sue Ms Peterson and Mr Higgs, and a company controlled by Ms Peterson, V‑Gan Booty Pty Ltd (defendants). The plaintiffs claim that the defendants are liable to the plaintiffs for damages pursuant to various causes of action, including defamation, injurious falsehood, trespass and civil conspiracy.

8. For the reasons that follow, I am satisfied that the Facebook Post, and the republications of it, were defamatory of the plaintiffs and that Ms Peterson and Mr Higgs are liable as publishers of that defamatory matter. I am not satisfied that V‑Gan Booty Pty Ltd was, relevantly, a publisher of the Facebook Post (or the republications).

9. The defendants pleaded various defences to the publication of the defamatory matter. None of them have been established.

10. I am also satisfied that Ms Peterson and Mr Higgs are liable to the Clinic in the tort of trespass. While Ms Peterson and Mr Higgs' entry onto the Clinic's premises was permitted by an implied licence that any member of the public had to enter those premises, their licence to be on the property was almost immediately withdrawn by Dr McIntosh, on behalf of the Clinic, upon their arrival. Dr McIntosh and Mr McIntosh asked them to leave the Clinic on a number of occasions.

11. The plaintiffs are, accordingly, entitled to relief against Ms Peterson and Mr Higgs, including damages for defamation and, in the case of the Clinic, trespass. The other causes of action have not been established.

12. My reasons for these conclusions are as follows.

Dramatis personae

1. It is convenient that I commence with a general introduction to each of the parties, including a number of observations in relation to my impression of each of the parties who gave evidence.

Kay McIntosh

1. Dr McIntosh, the second plaintiff, is a registered veterinarian. She graduated with a Bachelor of Science (Hons) from Griffith University, a Bachelor of Veterinary Science (Hons) from the University of Queensland and a Masters in Veterinary Studies from Murdoch University.

2. Dr McIntosh has practised as a veterinarian for 22 years, including, since January 2020, at the Clinic. Her practice includes the treatment of dogs, cats, birds, rabbits, mice, rats, guinea pigs and, on occasion, turtles.

3. Dr McIntosh and her husband, Mr McIntosh, have two teenage sons.

4. Dr McIntosh impressed me as a thoughtful and caring individual, who was committed to the welfare of the animals under her care. Over the years, she and her family have also taken in a number of stray animals from the practices at which she has worked, including dogs, cats and birds.

5. Dr McIntosh also impressed me as a truthful and considered witness. She did not, in my assessment, attempt to embellish her evidence in any way; indeed, Dr McIntosh appeared at times to be nervous and withdrawn during her evidence. It was clear that Dr McIntosh was deeply affected by the publication of the Facebook Post and this caused her to become distressed in the course of giving her evidence. Dr McIntosh's emotional responses to the events surrounding the Facebook Post were, in my assessment, genuine and sincere.

6. On the whole I found Dr McIntosh to be a reliable witness and, save where I indicate to the contrary, I accept her evidence.

Andrew McIntosh

1. Mr McIntosh, the first plaintiff, is currently employed as a biosecurity officer with the Commonwealth Government. He has previously worked with the Tasmanian Fire Service, holding a Graduate Certificate in Fire Investigation from Charles Sturt University and a Certificate 4 in Public Safety from TAFE Tasmania.

2. Following an incident at the Fire Service, Mr McIntosh spent 12 years as a stay‑at‑home parent, while Dr McIntosh pursued her veterinary career. At the time of the Facebook Post, Mr McIntosh was the administration manager at the Clinic.

3. By contrast to Dr McIntosh, I found Mr McIntosh to be an unsatisfactory and unreliable witness. Much of his evidence was, in my assessment, clouded by the outrage he feels at having been the subject of the Facebook Post. His anger towards Ms Peterson was palpable and it is fair to say that he has become obsessed with Ms Peterson, in general, and with the Facebook Post, in particular. Mr McIntosh said that he reviews the Facebook Post 'just about every day, just to see if people are still commenting on it'.[2] And I believe him. The effect of Mr McIntosh's single‑minded focus on Ms Peterson and the Facebook Post, however, is that he was, particularly in cross‑examination, combative, belligerent, and refused to make even the most obvious concessions.

   [2] Ts 189.

4. In late 2021, for example, Mr McIntosh set up a GoFundMe page to raise funds to pursue this action against Ms Peterson, which he promoted on other social media, including the Clinic's Facebook page. Notwithstanding that the GoFundMe page was titled 'Defamation action against Ms Tash Petersen [sic]', Mr McIntosh steadfastly refused to accept that, when he established the GoFundMe page, he thought there would be people motivated to fund a claim against Ms Peterson.[3] Indeed, he refused to accept that the social media posts promoting the GoFundMe page were even 'about' Ms Peterson.[4] Mr McIntosh's evidence in this respect was simply divorced from reality and reflected a tendency on his part to deny anything that he perceived was not in the plaintiffs' interest.

   [3] See ts 220 - 222.

   [4] See ts 224 - 251.

5. Notwithstanding the unfavourable impression that I formed of Mr McIntosh as a witness, it must be said that there were very few issues in relation to which his evidence was critical, or even significant. Indeed, as I find to be the case, Mr McIntosh's presentation and demeanour when giving evidence can be explained by the emotional impact on him of Ms Peterson and Mr Higgs' conduct in recording and posting the Facebook Post. To that extent, his obsessive and belligerent demeanour simply served to demonstrate the adverse effect that the Facebook Post has had on him. One matter in relation to which the reliability of Mr McIntosh's evidence was significant, however, concerned the financial impact of the Facebook Post on the Clinic's business. For reasons I will come to, I do not accept that evidence.

For Paws and Feathers Pty Ltd

1. For Paws and Feathers Pty Ltd, the third plaintiff, is the corporate owner of the Clinic. Dr McIntosh[5] and Mr McIntosh[6] are both directors of the company, which took over the conduct of the practice at the Clinic on 21 January 2020.

   [5] Ts 131.

   [6] Ts 167.

2. The Clinic is located in a small shop in a collection of shops in Bicton. The premises are leased to For Paws and Feathers pursuant to a lease dated 15 January 2020 (Lease).[7] The permitted use under the Lease is as a 'Veterinary Clinic carried on under the business name 'Bicton Veterinary Clinic'. Dr McIntosh and Mr McIntosh are both guarantors under the Lease. The Clinic was, I find, lawfully in possession of the premises on 24 September 2021.

   [7] Exhibit 2.

1. The Clinic currently employs six people (other than Dr McIntosh): one veterinarian, four nurses and a casual kennel hand. The Clinic has never had more than seven employees at any one time.[8] As stated above, Mr McIntosh was formerly the administration manager at the Clinic.

   [8] Ts 131.

2. When the plaintiffs took over the business of the Clinic, there were two cockatiels (or weiros) who lived at the Clinic, named Bruce and Gandalf (together, the birds). The birds lived in a cage, which had the dimensions: 60 cm wide, 60 cm deep and 130 cm tall. The cage was on wheels and could be moved outside the Clinic when the weather permitted. In addition, the birds were encouraged to have flight time outside of the cage, within the Clinic, including when the cage was being cleaned.[9] Bruce and Gandalf were, nevertheless, domesticated birds. Dr McIntosh gave evidence, which I accept, that they would not be able to survive outside (i.e. in the wild).[10]

   [9] Ts 132 - 133, 169.

   [10] Ts 159.

3. The birds appear to have become something of a local attraction. Dr McIntosh, for example, said:[11]

   We elected to continue with having the birds, because they had become quite a large part of the community. Quite often children and elderly would come into the clinic if the birds weren't outside and ask if they could speak, or interact with the birds as well.

   [11] Ts 138; see also ts 175.

4. In September 2021, one of the Clinic's employees was Kerryn Stanes. Ms Stanes was a veterinary nurse, having graduated in November 2020. Ms Stanes gave evidence at the trial in relation to the events of 23 and 24 September 2021. Her evidence was given in a straightforward and impartial way and she was not cross‑examined to any great extent. I find that Ms Stanes did her best to be truthful in her evidence, albeit that her estimates of time and other impressions she described in her evidence were not, in my assessment, particularly reliable. Ms Stanes, for example, estimated that on 24 September 2021 Ms Peterson and Mr Higgs were at the Clinic for approximately '45 minutes, maybe 40 minutes'.[12] Their attendance was, however, as is clear from the raw footage of the incident,[13] much shorter.

Natasha (Tash) Peterson

[12] Ts 292.

[13] Exhibit 43.

1. Ms Peterson, the first defendant, has a degree in Outdoor Recreation from the University of Notre Dame Australia. She has previously worked as a swimming instructor with the Department of Education and as a lifeguard with the City of Fremantle.

2. On 1 February 2017, Ms Peterson went through something of a Damascene conversion as a consequence of watching a documentary concerning the animal agricultural industry, Food Choices. On that day Ms Peterson became a vegan and has been an animal rights activist ever since.

3. As part of her activism, Ms Peterson began to engage in disruptive protests, so as to garner public attention to her cause. Precisely when she began this form of activism is not clear, although it appears to have been in 'about 2020'. Mr Higgs filmed the protests, at first on his and Ms Peterson's mobile telephones. By 2021 they upgraded to professional camera equipment.[14]

   [14] Ts 334.

4. For the purposes of her activism, Ms Peterson maintains a number of social media accounts, including on Facebook,[15] Instagram,[16] Twitter,[17] YouTube[18] and (previously) TikTok.[19] Of particular relevance to this case is Ms Peterson's Facebook page (Facebook page), which is the page on which she made the Facebook Post. Ms Peterson created the Facebook page in 2018 and has maintained it since that time (including changing the URL in 2020).[20]

   [15] Exhibit 16.

   [16] Exhibit 17.

   [17] Exhibit 21.

   [18] Exhibit 30.

   [19] Ts 414.

   [20] Ts 413.

5. When asked what guides her decision as to what to post on the Facebook page, Ms Peterson answered:[21]

   Anything related to animal rights, whether it be activism or spreading a message about – to inform people about animal rights. That's essentially what guides me. That's what my public Facebook page is dedicated to, and most of my other social media pages are dedicated to being a voice for non‑human animals and using social media as a tool to spread that message on behalf of non‑humans.

   [21] Ts 348 - 349.

6. Ms Peterson's Facebook page is a 'public' page. That means, and I find, that any person who is on Facebook can view, and repost, any post that is made to the Facebook page. In particular, a user of Facebook does not need to be a 'follower' of Ms Peterson's Facebook page in order to view a post on that page. Thus, for example, while Ms Peterson has 84,000 'followers' of her Facebook page,[22] the persons who may 'view' her page are not confined to those followers.[23] Ms Peterson agreed that the absence of restrictions on her Facebook page was designed to ensure the 'broadest possible reach':[24]

   Yes. That's the point of having a public Facebook page and you can't make any posts private or anything because it is specifically designed to be a public page.

   [22] Exhibit 16.

   [23] Ts 400.

   [24] Ts 402.

7. Ms Peterson was, and is, responsible for the settings on the Facebook page. While the 'public' nature of Ms Peterson's Facebook page was specifically addressed in evidence, I infer (including by the number of views recorded on each of those other sites), that Ms Peterson's Instagram, Twitter and YouTube pages are also 'public' pages. I so find.

8. The parties tendered, by consent, a Statement of Agreed Facts (together with supporting exhibits) in relation to posts on Facebook and YouTube relating to Ms Peterson's public protests.[25] That evidence reveals a substantial number of protests (the first being on or about 15 August 2020), the posts in relation to which have been viewed many thousands of times (sometimes in excess of one million times).[26] The protests depicted in those posts, for example, include the following:

   (a)in August 2020, a protest at a McDonald's restaurant, in which Ms Peterson was dressed in a cow costume, and to which the police were called;[27]

   (b)in early December 2020, protests at three different locations, in which Ms Peterson was again dressed in a cow costume, although on this occasion she was topless (with titles such as, 'Vegan goes TOPLESS in supermarket');[28]

   (c)in late December 2020, a protest at a Coles supermarket, in which Ms Peterson was dressed in bloodied clothing holding a pig's head (with titles such as, 'Vegan enters Coles with a real pigs head'). This protest garnered millions of views;[29]

   (d)in early July 2021, a protest at a Coles supermarket, in which Ms Peterson entered a supermarket with a dead lamb (with titles such as, 'Vegan Storms Coles with a dead lamb');[30]

   (e)in late July/early August 2021, a protest in Melbourne in which Ms Peterson and a colleague were dressed in lingerie (with titles such as, 'Hot Vegans Protest in Lingerie');[31] and

   (f)from late August to the middle of September 2021, a number of protests at Louis Vuitton and Gucci stores, in which Ms Peterson was, variously, topless, dressed in lingerie and smeared with blood (with titles such as, 'Bloodied NAKED vegan storms Louis Vuitton').[32]

   [25] Exhibit 881 (and the exhibits referred to therein).

   [26] The 'views' recorded in Exhibit 881 are agreed to be the views as at 30 April 2024.

   [27] Ts 369; Exhibits 509 ‑ 510.

   [28] Ts 373 - 376; Exhibits 521 - 527.

   [29] Exhibits 528 - 537.

   [30] Exhibits 588 - 590.

   [31] Exhibits 591, 593 - 594.

   [32] Exhibits 601 - 612.

9. Each of these posts and protests took place before the events the subject of this trial. A number of them were the subject of prominent attention in mainstream television and newspaper media.[33] I am satisfied on the evidence, and I find, that Ms Peterson's notoriety as a disruptive animal rights activist was well‑established by that time.

   [33] See e.g. Exhibits 535, 600.

10. As is also apparent from a number of the posts summarised at [38] above, many of Ms Peterson's disruptive protests use overt sexuality to attract attention to her cause (see, for example, the references to Ms Peterson being 'TOPLESS', 'NAKED' or 'in Lingerie'). This is a deliberate tactic by Ms Peterson, using what was described in evidence as a 'thirst trap'.[34] In this context, a 'thirst trap' is a post that includes seductive or sexual material designed to entice persons who might otherwise not be interested in animal rights to view the post (and thereby potentially look further into animal rights material). Ms Peterson's 'thirst traps' regularly link to two prominent animal rights documentaries: Dominion ( and Don't Watch ( See Exhibit 495.

[35] Ts 354 - 355.

1. When Ms Peterson commenced her public protests, she was still working for the Department of Education and the City of Fremantle. She continued to do so until mid‑2021. Ms Peterson ceased those occupations as her police clearance was eventually denied because of 'legal trouble as a result of [her] activism'.[36]

   [36] Ts 331.

2. In May 2021, Ms Peterson started two OnlyFans pages (OnlyFans pages), which are now her principal source of income.[37] On the advice of her accountant, in October 2021, the ownership of the OnlyFans pages was taken over by the third defendant, V‑Gan Booty Pty Ltd.[38] Unlike Ms Peterson's 'activism' pages, the content of the OnlyFans pages is not public, but is for paid subscribers only.[39] It is apparent from their 'homepages' that the OnlyFans pages contain what is euphemistically known as 'adult' content. Ms Peterson's OnlyFans business has been extremely successful, a matter that I will return to later.

   [37] There are, in fact, two separate OnlyFans pages to which Ms Peterson has posted (see Exhibits 26 and 28). They can, however, relevantly be regarded as one account as they are both identified as being owned by V‑Gan Booty Pty Ltd.

   [38] Ts 470 - 471.

   [39] Ts 475; Exhibits 26, 28; see also [54] below.

3. Ms Peterson was, in my assessment, a calm, confident and respectful witness. For the most part, I found her to be truthful in her evidence and, while she was occasionally given to making rhetorical statements consistent with her activism, Ms Peterson was responsive to the questions asked of her and straightforward in her answers.

4. In the course of cross‑examination, it was put to Ms Peterson that, while she had declared business income on her tax return for the year ended 30 June 2022 of approximately $70,000, she had earned significantly more income during that year. It was put to Ms Peterson, for example, that she 'recorded receipts of [$]70,000, when [her] actual receipt on OnlyFans alone was [$]385,000'.[40] The stated purpose of those questions was that the plaintiffs intended to 'make a submission that [I] should treat with caution the evidence of somebody who can't be honest in a tax return'.[41]

   [40] Ts 417 (see also ts 416, 430, 455 - 456).

   [41] Ts 438.

5. I make two findings in relation to this serious attack on Ms Peterson's character and credibility.

6. First, the attack was unfair and without any foundation. In putting to Ms Peterson that she had declared $70,000 in income for the year ended 30 June 2022, counsel did not refer, or even allude, to the fact that, in that same year, there was evidence that V‑Gan Booty Pty Ltd (as trustee for the Peterson Family Trust) had declared $250,952 in OnlyFans income.[42] Indeed, even the figure of $70,000 put to Ms Peterson from her personal income tax return (the correctness of which she acquiesced in)[43] was unfair and misleading to the witness. Upon close inspection, the business income of $70,126 in that tax return was the 'net business income'.[44] The tax return makes clear that the OnlyFans sales for that year declared in Ms Peterson's personal return were in fact $132,948.[45] The combined OnlyFans income declared in both Ms Peterson and V‑Gan Booty Pty Ltd's tax returns for the year ended 30 June 2022 was therefore $383,900, a figure remarkably close to the plaintiffs' own calculation of $385,000. Contrary to the suggestion put to Ms Peterson in cross‑examination, I find that all of the OnlyFans income for that year was properly declared and accounted for.

   [42] Exhibit 312.

   [43] Ts 430, 472.

   [44] Exhibit 165, page 4.

   [45] Exhibit 165, page 12.

7. Ultimately, the plaintiffs made no submission that Ms Peterson had been dishonest in her taxation affairs.[46] The plaintiffs' counsel should never have suggested as much in cross‑examination.

   [46] Ts 554.

8. Secondly, Ms Peterson's rather guileless responses to that part of the cross‑examination bolstered, rather than undermined, her credibility as a witness. Ms Peterson was neither defensive, nor evasive, in relation to what was a serious imputation in the cross‑examination, and she answered, calmly, to the effect that, having provided her accountant with all information, she left her tax affairs to him.[47] As I will return to, I accept that evidence as truthful.

   [47] Ts 455 - 456, 472.

9. As I have said, I found Ms Peterson to be generally a credible and reliable witness. As I will come to, I accept, as sincere and genuine, her evidence as to the motivation for her animal rights activism and her social media activity.

10. There were, nevertheless, certain aspects of Ms Peterson's evidence that I find were unsatisfactory. These relate principally to her evidence in relation to the recording of the events of 24 September 2021 and her description of her interactions with Dr McIntosh and Mr McIntosh. As I will address later, Ms Peterson (and Mr Higgs) affected a certain feigned innocence or feigned naïveté in relation to the reaction of the plaintiffs to her entering the Clinic on 24 September 2021. For example, Ms Peterson said that when she was first asked to leave the Clinic on 24 September 2021:[48]

    I was actually quite confused because I was expressing a genuine concern and I felt like I was being asked to leave on the basis that they knew who I was and they had pre‑assumptions about who I was. Asking – saying that they didn't want me to cause trouble and I was trying to say that I'm not here to cause trouble, I have a genuine concern and I just want to express those concerns and ask some questions. So I think – yes – I initially was quite confused being asked to leave and also quite shocked.

    [48] Ts 335.

11. This evidence, and evidence like it, was, in my assessment, entirely disingenuous on Ms Peterson's part. Ms Peterson, I find, knew perfectly well that her reputation preceded her and knew why Dr McIntosh would think she was there to cause trouble. Indeed, as I will come to, Ms Peterson had every intention, at the time of entering the Clinic, that the Clinic would be subject to a social media post that would do just that.

12. I will return to these issues later.

V-Gan Booty Pty Ltd

1. V‑Gan Booty Pty Ltd, the third defendant, was incorporated on 13 October 2021. Ms Peterson is its sole director and shareholder.[49] Ms Peterson gave evidence, which I accept, that V‑Gan Booty Pty Ltd was established on the advice of her accountant and is responsible for the OnlyFans account.[50] In that regard the company is the trustee of the Peterson Family Trust.[51]

   [49] Exhibit 10.

   [50] Ts 411.

   [51] See ts 471; Exhibit 312.

2. The company is the proprietor of the OnlyFans pages.[52] The pages themselves include a 'Disclaimer' to the following effect:[53]

   DISCLAIMER: This media is owned by V‑Gan Booty Pty Ltd. Any redistribution of photos or videos is considered illegal. By subscribing to OnlyFans, you are hereby agreeing to these terms against illegal distribution of media posted on OnlyFans. Legal action will be taken if content is republished.

   [52] Ts 470.

   [53] See Exhibit 26. The same assertion of ownership appears on the second OnlyFans page, with the omission of the words 'Legal action will be taken if the content is republished' (see Exhibit 28).

3. It is important, at this point, to draw a distinction between V‑Gan Booty Pty Ltd, the company, and Ms Peterson's online persona, which is also variously styled as 'Vegan Booty', 'vganbooty' and other variations on that name. The latter persona predated and was well established prior to the creation of the company, V‑Gan Booty Pty Ltd. Ms Peterson had developed that persona as a result of a running joke within the activist community because she wore shorts that had 'vegan booty' written on them.[54] Having adopted that persona, in 2020 Ms Peterson changed the name of the URL for a number of accounts (including a website, Instagram page, Twitter account, YouTube account, TikTok account and Patreon page) from 'Tash Peterson' to 'vganbooty' (or similar variants).[55]

   [54] Ts 413.

   [55] Ts 413 - 414.

4. The distinction between V‑Gan Booty Pty Ltd, the company, and 'vgan booty', Ms Peterson's online persona, will be important when it comes to the liability, if any, of the company. I will return to that issue later, but it is sufficient for present purposes to note that it cannot be assumed that online activity in the name 'vgan booty' refers to, or can be attributed to, the company V‑Gan Booty Pty Ltd.

Jack Higgs

1. Mr Higgs, the second defendant, is Ms Peterson's long‑term partner and collaborator. Mr Higgs and Ms Peterson met in about 2019, through their animal rights activism.[56] As with Ms Peterson, Mr Higgs holds firm and considered views in relation to the rights of animals, which he regards as 'an extension of human rights simply because [animals are] sentient'.[57]

   [56] Ts 489.

   [57] Ts 490.

2. While Mr Higgs does appear in, and participate, in disruptive protests himself, he has, for many years, undertaken the role of filming and photographing protests involving Ms Peterson.[58] The material filmed by Mr Higgs was and is, to his knowledge, used for what he described as Ms Peterson's 'outreach and protesting', including in the weeks prior to the events at the Clinic, such as the protests at Louis Vuitton and Gucci.[59]

   [58] Ts 498; see also ts 334.

   [59] Ts 499.

3. Mr Higgs, nevertheless, gave evidence, which I accept, that he did not have access to Ms Peterson's social media accounts (including the Facebook page), in the sense that he did not have access, as an owner of the accounts, so as to be able to publish or post material from those accounts.[60]

   [60] Ts 497 - 498. Ms Peterson gave evidence to the same effect (ts 357).

4. Mr Higgs was also a measured and respectful witness. As with Ms Peterson, I accept that Mr Higgs' views as to animal rights are honestly held and the motivation for his animal rights activism is sincere.

5. There were, however, aspects of Mr Higgs' evidence in relation to the events of 24 September 2021 that, in my assessment, were not credible. As with Ms Peterson, Mr Higgs professed to have been 'surprised' and 'confused' at being asked to leave the Clinic. He said, for example:[61]

   I was confused because, firstly, the way it was immediately brought up just startled me. I was like, 'Why are we being asked to leave straightaway'. And then, the fact that being told to leave but then the conversation still continuing by Dr McIntosh, then we make a few steps, another – something else is said on the topic, so we stop to listen. So yes, I was confused.

   [61] Ts 526; see also ts 496.

6. As I will return to again later, I reject this evidence as contrived and disingenuous. As with Ms Peterson, I find that Mr Higgs was perfectly well aware that he and Ms Peterson might be asked to leave the Clinic and knew why it was that would be so. Equally disingenuous, in my view, was Mr Higgs' evidence, which he maintained under cross‑examination, that he did not regard Dr McIntosh's initial requests to 'leave' as being directed at him personally, but only to Ms Peterson 'because Tash was the one speaking'.[62] As I will come to, this evidence was, with great respect to Mr Higgs, risible. I credit Mr Higgs with too much intelligence to believe that he honestly thought that the initial requests to leave the Clinic were not directed at both him and Ms Peterson.

   [62] Ts 496, 512 - 513.

7. I turn then to my findings as to the events of 23 and 24 September 2021 in more detail.

The events of 23 and 24 September 2021 and the Facebook Post

1. In September 2021, Ms Peterson and Mr Higgs were temporarily residing together at an address in Bicton. That address was within walking distance of the collection of shops that includes the Clinic. Also at that location was a café (Café). While living at the address together, Ms Peterson and Mr Higgs developed a daily habit of walking to the Café for coffee.

23 September 2021

1. On 23 September 2021, Ms Peterson and Mr Higgs went to the Café. Mr Higgs gave evidence that they noticed the birds in the cage outside the Clinic on the way to the Café and that he and Ms Peterson discussed the birds while they were at the Café.[63] Ms Peterson said that she first noticed the birds after finishing their coffee.[64] That difference in their respective recollections is not material.

   [63] Ts 491.

   [64] Ts 332.

2. Nevertheless, it is clear that prior to leaving the area, Ms Peterson and Mr Higgs decided to enter the Clinic to say something about the birds. They both gave evidence that they considered that keeping the birds in a cage, for the purpose of a business, was wrong and that the birds did not have shade and that it was a warm day.

3. Ms Peterson and Mr Higgs entered the Clinic. Ms Stanes was behind the counter. Their interaction in the Clinic was recorded on CCTV and lasted approximately 10 seconds. Ms Stanes asked Ms Peterson, 'how can I help?', to which Ms Peterson responded, 'I just want to express some concern for the birds out here. I just think it's a little bit cruel they are out in the sun and they are in a cage'. Ms Stanes walked outside, and as she did, she said, 'They are used to being out here'. It is not possible to hear anything else that was said but it cannot have been much because, within seconds, the interaction was cut short by a telephone call which, I accept, caused Ms Stanes to say, 'the birds are safe and well cared for and thank you for your concern' and to go back inside.[65] The entire interaction (inside and outside the Clinic) lasted less than 30 seconds.

   [65] Ts 283.

4. Ms Peterson gave evidence that she found Ms Stanes 'demeanour to be relatively unfriendly and a little bit dismissive'.[66] Mr Higgs gave evidence to similar effect.[67] If that was what they thought, in my view it was not reflective of Ms Stanes' behaviour as it appears on the CCTV, which was open and friendly. Ms Peterson and Mr Higgs both gave evidence, which I accept, that they discussed the birds on the walk home.

   [66] Ts 333.

   [67] Ts 492.

5. Ms Stanes said that she told Dr McIntosh and Mr McIntosh about the interaction later that afternoon.[68] I accept that evidence and find that Dr McIntosh and Mr McIntosh were made aware of the interaction on 23 September 2021. Dr McIntosh and Mr McIntosh asked Ms Stanes to prepare a written account of the interaction. They both gave evidence that they made that request on 23 September 2021.[69] I find that both Dr McIntosh and Mr McIntosh's recollections were mistaken in that regard; in fact, Ms Stanes did not prepare the written account until some weeks later, when she left her employment at the Clinic.[70]

   [68] Ts 171, 283.

   [69] Ts 171.

   [70] Ts 283. The statement prepared by Ms Stanes is dated 21 October 2021 (Exhibit 163).

6. The interaction on 23 September 2021 provides relevant context as to why Dr McIntosh was immediately wary of Ms Peterson and Mr Higgs the following day. It also adds further support to my finding that, on 24 September 20212 Ms Peterson and Mr Higgs would have been conscious that they might be asked to leave the Clinic (and why).

7. Otherwise, little turns on the events of 23 September 2021. There was a muted suggestion in Ms Peterson's cross‑examination that, because she was wearing identical clothing on 23 and 24 September 2021, she may have intended to splice footage from both days.[71] There is, however, no evidence to suggest that Ms Peterson or Mr Higgs took any footage on 23 September 2021.

24 September 2021

[71] Ts 365.

1. Ms Peterson and Mr Higgs returned to the Café the following morning, 24 September 2021.

2. At some point in time, Ms Peterson and Mr Higgs decided to go back to the Clinic. I cannot make a clear finding as to when that decision was reached and, in particular, I do not find that the decision to return to the Clinic and film the interaction was the subject of any significant planning (for example on 23 September 2021 or prior to their attendance at the Café on 24 September 2021).

3. The decision to return to the Clinic was, I find, most likely to have been relatively spontaneous. While Ms Peterson said that Mr Higgs 'may have been using the bathroom' when she decided 'to document what was happening',[72] she agreed in cross‑examination that she 'likely discussed [going into the Clinic] with' Mr Higgs and 'likely told him that [she] wanted him to covertly film the interaction'.[73] Mr Higgs gave evidence that:[74]

   I don't remember the exact moment that we discussed that I'm going to be the one to film it. It could have been unsaid as well, because I'm the videographer primarily. It could [have] just been unsaid. If you're going to go do this, Tash will hand me the phone and I will be filming it.

   [72] Ts 334.

   [73] Ts 361.

   [74] Ts 494

4. Mr Higgs also agreed in cross‑examination that Ms Peterson 'probably asked me to film and handed me the phone' after she had recorded an introductory statement.[75] He also agreed that it was not a surprise to him when Ms Peterson entered the Clinic, 'because we probably discussed it whilst sitting in the café'.[76]

   [75] Ts 504.

   [76] Ts 506.

5. While the agreement was spontaneous, I am satisfied, and I find, that Ms Peterson and Mr Higgs agreed that they would enter the Clinic to speak with the staff of the Clinic and that the interaction would be surreptitiously filmed by Mr Higgs. Given their usual roles in their activism, that agreement may have been (and in my view was likely to have been) a tacit agreement requiring little (if any) discussion. Nevertheless, Ms Peterson and Mr Higgs entered the Clinic in the common knowledge that the interaction would be recorded. This finding is consistent with the evidence of Ms Peterson and Mr Higgs and is supported by the evidence of the recording itself. Mr Higgs was clearly holding the phone while it was recording prior to their entry into the Clinic. In my view, Mr Higgs would only have been doing so as a result of an agreement with Ms Peterson.

6. I am also satisfied that Mr Higgs recorded the interactions within the Clinic surreptitiously. That is, Mr Higgs deliberately held the phone in a way that was intended to avoid the other persons in the Clinic becoming aware that they were being filmed. Mr Higgs gave evidence that he did not 'think it was [his] intention to avoid anyone seeing [the phone]', and that he 'didn't see the need to film someone's face'.[77] I reject that evidence. It is inconsistent with the recording itself, which was clearly made in such a way that the phone would not be conspicuous. There could be no reason to film in that manner other than to keep the recording hidden from view. Both Dr McIntosh and Mr McIntosh gave evidence, which I accept, that they were not aware that they were being filmed in the Clinic.[78] As I have also said, Ms Peterson did not deny, and indeed assented to, the proposition that she likely told Mr Higgs that she wanted him to 'covertly' film the interaction.

   [77] Ts 507.

   [78] Ts 138, 172.

7. I am also satisfied, and I find, that, at the time of making the recording, Ms Peterson and Mr Higgs intended that it was being made for the purpose of a social media post by Ms Peterson.

8. Ms Peterson's intention to make a post from the recording is clear from the introductory statement that she recorded before she and Mr Higgs entered the Clinic. It is clearly an introduction designed to be included in a communication to other persons.

9. As for Mr Higgs, he also gave evidence that at least one of the reasons for filming the interaction was for use in a social media post. When asked 'why would [he] film' the interaction he said:[79]

   It's the same reason we film all of our – I would say actually, at that point in time, mostly Tash's interactions with people of the public. The first reason is always around education. If it is going to be posted on social media, it is to educate people on the topic of animal rights, and as activists, I guess, a lot of the time challenge people's beliefs around animal rights.

   [79] Ts 494.

10. Both Ms Peterson and Mr Higgs said that there was a 'secondary' purpose to the recording, namely for their safety. They referred to having previously been abused and assaulted in their protests and activism.[80] I have my doubts about the genuineness of this second 'purpose' for the recording, although to the extent that Ms Peterson and Mr Higgs had any such concerns, it confirms my view that they were expecting their attendance at the Clinic to be provocative, and potentially confronting. In any event, regardless of any safety purpose, Mr Higgs clearly intended the footage that he took to be used by Ms Peterson in a social media post if she saw fit.[81]

    [80] Ts 387, 494, 508

    [81] See also ts 507.

11. After Ms Peterson recorded the introductory statement, she and Mr Higgs entered the Clinic, with Mr Higgs recording from Ms Peterson's phone. What occurred next can be seen and heard in the recording, the raw footage of which was tendered in evidence,[82] as was the portion of the footage included in the Facebook Post.[83] The recording speaks for itself. A transcript of the interactions that appear on the Facebook Post can be found in Schedule 1 to these reasons.

    [82] Exhibit 43.

    [83] Exhibit 39.

12. In addition to what can be seen and heard in the footage on the Facebook Post itself, I make the following findings in relation to Ms Peterson and Mr Higgs' attendance at the Clinic, including, the points in time of the relevant events in the footage.

13. When Ms Peterson and Mr Higgs first walked into the Clinic (1:04 minutes), Dr McIntosh, Ms Stanes and another female staff member were in the reception area.[84] Ms Peterson and Mr Higgs remained in, and did not go beyond, the reception area the entire time that they were in the Clinic. Mr McIntosh walked into the reception area at the point at which Dr McIntosh says, 'It's not animal slavery' (1:24 minutes).

    [84] Ts 136.

14. Mr Higgs initially did not speak, but stood immediately to the right of Ms Peterson (as depicted in the footage). I find that it would have been clear to all persons in the Clinic that Ms Peterson and Mr Higgs were together.

15. Ms Peterson initially adopted what I have described earlier as an affected or feigned innocence in speaking with Dr McIntosh (such as 'I'm just not understanding why a veterinary clinic is advertising animal slavery', 'I'm not trying to cause trouble. I'm just trying to understand why slavery'). This was, I find, a rhetorical device employed by Ms Peterson. That is, Ms Peterson was not genuinely 'just trying to understand'. She was using language (such as 'animal slavery') that she knew (or expected) would provoke a reaction from those in the Clinic. No reasonable person, including Ms Peterson, would think that opening an interaction with a reference to 'animal slavery' would lead to a constructive discussion. In that sense she also knew that she was 'causing trouble'. In many ways that was the point of the exercise.

16. Dr McIntosh first asked Ms Peterson and Mr Higgs to leave the Clinic at 1:30 minutes ('I'd like to ask you to leave our premises. You are not welcome here'). While the request was specifically addressed to Ms Peterson, I find that, in context, it was clearly directed to both Ms Peterson and Mr Higgs, and would have been so understood by Mr Higgs as would the other requests or directions to leave the Clinic. I reject Mr Higgs' evidence to the contrary as lacking credibility.

17. Dr McIntosh asked Ms Peterson and Mr Higgs to leave for the second time at 2:11 minutes ('I would like you to please leave') and then a third time at 2:32 minutes ('Please leave'). It was at that point that Mr Higgs first spoke.

18. Ms Peterson and Mr Higgs were asked to leave for the fourth time, this time by Mr McIntosh, at 2:35 minutes ('You've been asked to leave. Go or we'll call the police'). This was almost immediately followed by Dr McIntosh doing so again (the fifth time) at 2:37 minutes ('Yeah, if you don't leave, I'll call the police').

19. During the interactions that immediately followed, in which Ms Peterson asked Dr McIntosh if she 'eats her own patients' and said that Dr McIntosh was 'enslaving animals', I find that Dr McIntosh became agitated. Her voice became raised and her tone more forceful.

20. Mr McIntosh said 'ring the police' at 2:56 minutes.

21. Dr McIntosh gave a sixth and seventh direction to leave the Clinic at 3:07 minutes (saying 'Leave') and at 3:08 minutes with a raised voice ('Please get out'), following which Mr McIntosh said, for the final time, 'Leave' (3:10 minutes).

22. It was at this point that Ms Peterson and Mr Higgs left the Clinic. The time that elapsed between when Ms Peterson and Mr Higgs were first asked to leave the Clinic and when they left was 1 minute and 40 seconds.

23. Once outside the Clinic, Ms Peterson took the phone from Mr Higgs and continued filming at the point at which she can be heard to say, 'Blatant animal abusers. Disgusting. Give me the phone I'm filming this slavery'. The balance of the footage on the Facebook Post (from 3:29 to 6:10 minutes) is focused on Mr McIntosh, who had followed Ms Peterson and Mr Higgs outside. It was at that time that Mr McIntosh said that he became aware that he was being filmed.[85] I accept that evidence. It was consistent with Mr McIntosh's conduct on the video, in which he referred to Ms Peterson 'recording' towards the end of the interaction.

    [85] Ts 174.

24. The exchanges between Mr McIntosh, Ms Peterson and Mr Higgs continued past the end of the footage on the Facebook Post, as is apparent from the raw footage.[86] Most of those exchanges are not, in my view, relevant to the issues before me, although it may be noted that, in the raw footage, but not in the Facebook Post, there is an exchange in which Mr McIntosh tells Ms Peterson and Mr Higgs that he is not a veterinarian.

    [86] Exhibit 43.

25. After those exchanges Ms Peterson and Mr Higgs left the area.

The Facebook Post

1. When Ms Peterson returned home, she edited the footage that she and Mr Higgs had taken, prepared a post in relation to the interaction and posted it to her Facebook page. While it is not clear precisely when the Facebook Post was added to Ms Peterson's Facebook page, it was, I find, posted 'fairly quickly' on 24 September 2021.[87]

   [87] Ts 357.

2. Consistent with her use of Facebook generally (see [35] above), Ms Peterson said that her purpose in making the Facebook Post was:[88]

   To raise awareness for animal rights and the fact that birds should not be confined in cages because it's exploitation, it's slavery and it's abuse.

   [88] Ts 357.

3. Ms Peterson said that Mr Higgs was not involved in the editing or posting of the Facebook Post.[89] She said that she did not discuss posting it with Mr Higgs, because 'he knows that I use my social media to post my videos to raise awareness for animal rights'.[90] Mr Higgs similarly said that there was no discussion between them prior to Ms Peterson publishing the Facebook Post; he said 'I left it up to her'.

   [89] Ts 357.

   [90] Ts 363.

4. I accept this evidence and find that Mr Higgs was not involved in the preparation or posting of the Facebook Post itself. Consistent with my finding as to Mr Higgs' intention at the time of filming at the Clinic, however, Mr Higgs clearly intended for the footage that he took to be used by Ms Peterson in a post, if she saw fit, and that he and Ms Peterson had an understanding in that regard. Mr Higgs was also aware that Ms Peterson's activism is conducted on a public Facebook page.[91]

   [91] Ts 497.

5. The Facebook Post itself appears on a computer screen as follows:[92]

   [92] Exhibit 39 (detail). I have redacted the last four digits of the Clinic's telephone number.

6. As can be seen, the title of the Facebook Post is 'Exposing Vets for Being Hypocrites'.

7. The text included in the Facebook Post, seen to the right in the above image, reads as follows:

   This morning I questioned a Veterinary Clinic who were advertising animal slavery and was almost immediately told to leave. The police came to my house thirty minutes later and I have now been issued a banning notice and cannot enter the clinc [sic].

   I was shocked when I noticed this clinic who are supposed to care about animals, displaying animal slavery out the front of their premises where two birds were locked in a small cage with no shade whatsoever.

   Animals should not be forcibly bred into existence and used for human pleasure. Birds should not be bred to spend their entire lives in enslavement living in a cage. Seeing birds in a cage is so normalised, many find it difficult to see how immoral it is. Imagine if there were dogs instead of those birds; living just about their entire lives in a cage. I am sure most would be outraged then. There is no moral difference, it is slavery

8. The video in the Facebook Post opens with footage of the birdcage at the front of the Clinic while Ms Peterson says her introductory remarks, which are reproduced in the transcript in Schedule 1.

9. The footage of the birdcage at the commencement of the video appears as follows:[93]

   [93] Exhibit 40 (detail).

10. From the vantage point of the recording at this time, it is very difficult to see the birds in the cage. Nor is there any closer footage of the cage in the balance of the Facebook Post. In particular, there is, I find, no footage in the Facebook Post in which the birds, or their condition, can be clearly seen.

11. The rest of the Facebook Post is as described at [84] to [94] and in Schedule 1.

Causes of action and summary of issues

1. The plaintiffs variously plead four causes of action against the defendants: defamation, injurious falsehood, trespass and civil conspiracy.

2. The defamation claims are brought by all three plaintiffs (Dr McIntosh, Mr McIntosh and the Clinic) against all three defendants (Ms Peterson, Mr Higgs and V‑Gan Booty Pty Ltd).

3. The issues that arise on the pleadings, in relation to the defamation claims, are as follows.

4. First, the defendants do not admit that either Mr Higgs or V‑Gan Booty Pty Ltd are publishers of the Facebook Post.[94] Publication by Mr Higgs or V‑Gan Booty Pty Ltd is therefore in issue. In this regard, I note that, while the defendants initially maintained that there was no allegation of publication against Mr Higgs, they accepted at the commencement of the trial that the Statement of Claim pleaded that Mr Higgs was a publisher of the Facebook Post, on the basis that he participated both in the interaction at the Clinic and the recording of the footage.[95] It is also necessary to make findings in relation to a number of pleaded republications, which are not admitted.[96]

   [94] Defence dated 14 April 2023 (Defence) [7].

   [95] Ts 66 - 68; see Amended Substituted Statement of Claim dated 14 April 2023 (Statement of Claim) [7].

   [96] Defence [9] - [28].

5. Secondly, the defendants deny that any of the imputations pleaded by the plaintiffs arise from the Facebook Post, or that they were defamatory.[97]

   [97] Defence [8].

6. Thirdly, the defendants plead that the Facebook Post was the expression of their honest opinion and that they have a defence under s 31 of the Defamation Act 2005 (WA) (Defamation Act).[98]

   [98] Defence [30].

7. Fourthly, the defendants plead that the Facebook Post was published on an occasion of qualified privilege both at common law and under s 30 of the Defamation Act.[99] In reply to the qualified privilege defence, the plaintiffs plead that the publication of the Facebook Post was actuated by malice.[100] All aspects of the defences of qualified privilege remain in issue between the parties.

   [99] Defence [31] - [32].

   [100] Amended Reply dated 10 June 2024 (Reply) [4A].

1. Fifthly, the defendants plead that the circumstances of the publication of the Facebook Post were such that the plaintiffs were unlikely to sustain any harm and that the defendants have a defence of triviality under s 33 of the Defamation Act.[101]

   [101] Defence [33].

2. Sixthly, in relation to one of the pleaded defamatory imputations (namely that the plaintiffs 'enslave animals'), the defendants plead the defence of justification, namely, that that defamatory imputation is substantially true. The defendants rely upon the defence of truth both at common law and pursuant to s 25 of the Defamation Act.[102]

   [102] Defence [34].

3. Finally, depending upon whether, and if so which, defamatory imputations are not defensible, it is necessary to assess the quantum of damages. In that regard, the plaintiffs plead that the circumstances are such as to warrant an award of aggravated damages (and so also that the statutory cap imposed by s 35 of the Defamation Act may be exceeded).[103] In addition to general damages, which are claimed by all of the plaintiffs, the Clinic claims special damages in the sum of $8,480.31.[104]

   [103] Statement of Claim [16] - [17].

   [104] Statement of Claim [18]. While the Statement of Claim [18] identified the claim as being for 'approximately $8,895', the Plaintiffs' Schedule of Special Damages dated 5 June 2024 (Schedule of Special Damages), filed shortly prior to trial, claimed the special damages in the sum of $8,480.31.

4. The injurious falsehood claim is brought by the Clinic against the three defendants. The false statements pleaded by the Clinic largely reflect the defamatory imputations pleaded in the defamation claims.[105] The damage pleaded by the Clinic in relation to the injurious falsehood claim is the same as the special damages pleaded in relation to its defamation claim.[106]

   [105] Statement of Claim [20].

   [106] Statement of Claim [22].

5. The trespass claim is brought by the Clinic against Ms Peterson and Mr Higgs. The Clinic pleads that Ms Peterson and Mr Higgs' entry onto the premises of the Clinic was beyond the ambit of a lawful entry[107] and, in any event, that they refused to leave when requested to do so.[108] All issues, including damages, are in issue in relation to the trespass claim.

   [107] Statement of Claim [23.2].

   [108] Statement of Claim [23.3].

6. The civil conspiracy claim is brought by the Clinic against Ms Peterson and Mr Higgs. The unlawful means the subject of the pleaded conspiracy is the unlawful trespass on the Clinic's premises that is the subject of the trespass claim.[109]

   [109] Statement of Claim [24].

7. In relation to each of the injurious falsehood claim, the trespass claim and the civil conspiracy claim, the Clinic claims exemplary damages.[110]

   [110] Statement of Claim [28.5].

8. One of the themes permeating the plaintiffs' case is that Ms Peterson is motivated in her social media activity, including the Facebook Post, to generate publicity and income for herself. That is, the plaintiffs contend that the publication of the Facebook Post, and other 'attention‑grabbing social media content' is in reality a business model for 'driving traffic to OnlyFans'.[111] In that context, the plaintiffs placed much emphasis on the fact that Ms Peterson has a 'linktree' on her social media pages, whereby a 'visitor' to one social media page may follow links to other pages, including the OnlyFans pages.[112]

   [111] Plaintiffs' Outline of Closing Submissions dated 14 June 2024 (Plaintiffs' Closing Submissions) [14], [22].

   [112] See e.g. ts 451, 452, 454.

1. This allegation (which I will call the business model allegation) finds varying expression throughout the Statement of Claim. It is reflected, for example, in the plaintiffs' plea that they are entitled to aggravated damages for defamation;[113] the plea of malice in relation to the injurious falsehood claim;[114] in reply to the honest opinion and qualified privilege defences;[115] and in the plea as to the purpose of the alleged conspiracy.[116]

   [113] Statement of Claim [16.8].

   [114] Statement of Claim [21.1.2].

   [115] Reply [4A].

   [116] Statement of Claim [25].

2. While not expressly pleaded in that context, the business model allegation also forms part of the plaintiffs' pleaded case that the third defendant, V‑Gan Booty Pty Ltd, was (together with Ms Peterson) the entity responsible for the publication and maintenance of the Facebook page. That allegation is the basis upon which the plaintiffs contend that V‑Gan Booty Pty Ltd was a 'publisher' of the Facebook Post. I will therefore address the business model allegation, at least in part, in that context.[117]

   [117] See [164] - [182] below.

3. I turn to the defamation claims.

Defamation – the Facebook Post

1. Each of the plaintiffs claim damages for defamation arising from the publication of the Facebook Post. In relation to the third plaintiff, the Clinic, I am satisfied that that the Clinic was, at all material times, an excluded corporation within the meaning of the Defamation Act. A corporation is an excluded corporation if it employs fewer than 10 persons and is not related to another corporation.[118] That definition comfortably applies to the Clinic, which, I find, has never had more than seven employees at any one time and is a sole purpose corporate entity.[119]

Publication of the Facebook Post

[118] Defamation Act, s 9(2)(b).

[119] See [27] above.

1. As a post on a social media site, namely Facebook, the Facebook Post is relevantly 'published' when it is downloaded to the computer (or other device, such as a mobile telephone) of a person who is using the Facebook site (or application), so that the Post is in comprehensible form.[120] Given that Ms Peterson's Facebook page is a 'public' page, the Facebook Post could be so downloaded (and then viewed) by any person using Facebook, anywhere in the world. And, as I will come to in more detail, I find that it was in fact downloaded and viewed, and therefore published, to a great many such persons.

   [120] Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 [44] (Gleeson CJ, McHugh, Gummow & Hayne JJ), [124] (Kirby J). 'Download', in ordinary usage, is capable of a number of different meanings, including that of permanently saving a file to a computer. In this context, 'downloading' refers to the material being loaded in an accessible form the internet to a device such that it may be 'viewed' (and so comprehended) by the viewer, even if it is stored only temporarily on the device.

2. To be actionable in Australia, the Facebook Post must, of course, have been published in this way to at least one person in Australia. While that fact could readily be inferred from the many thousands of people who viewed, 'liked' or commented on the Facebook Post, it is not necessary to infer such a publication. Ms Stanes gave direct evidence, which I accept, that she watched the Facebook Post after she became aware of it the day after it was posted.[121] If the other elements of the cause of action are satisfied, publication was, at that point, complete.

   [121] Ts 292 - 293.

3. In any event, as I will come to, the Facebook Post was downloaded and viewed by many thousands of people, including in Australia, and was still able to be accessed at the time of trial.[122] Before addressing the extent of publication, it is necessary to identify which of the defendants was, relevantly, a 'publisher'.

Ms Peterson was a publisher of the Facebook Post

[122] Ts 184, 195. On 9 August 2024, the defendants were given leave to reopen their case to adduce evidence from Ms Peterson to the effect that she took down the Facebook Post on 25 July 2024: see McIntosh v Peterson [2024] WASC 285 (McIntosh v Peterson).

1. There is no dispute that Ms Peterson was a publisher of the Facebook Post. The defendants admitted on the pleadings that Ms Peterson posted the text and the video footage.[123] Similarly, Ms Peterson accepted in her evidence that she edited the footage, prepared the post and posted it to her Facebook page.

Mr Higgs was a publisher of the Facebook Post

[123] Statement of Claim [7]; Defence [7(a)].

1. I am also satisfied that Mr Higgs was a publisher of the Facebook Post. The law in this regard is clear. All degrees of participation in the publication of defamatory matter are publication, and include a person who contributes to any extent to that publication.[124] As Isaacs J said in relation to the publication of defamatory matter in Webb v Bloch:[125]

   [I]f [a person] has intentionally lent [their] assistance to its existence for the purpose of being published, [their] instrumentality is evidence to show a publication by [them].

   [124] Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149 (Trkulja v Google) [39] - [40] (Kiefel CJ, Bell, Keane, Nettle & Gordon JJ); Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27; (2021) 273 CLR 346 [30], [32] (Kiefel CJ, Keane & Gleeson JJ).

   [125] Webb v Bloch (1928) 41 CLR 331, 363 - 364 (Isaacs J) (emphasis in the original).

2. These principles were recently affirmed in Wright v De Kauwe [No 2] which Mitchell JA said:[126]

   In Voller, the court held that a publisher's liability does not depend on their knowledge of the defamatory matter which is being communicated or their intention to communicate it. The court held that any act of participation in the communication of a defamatory matter to a third party is sufficient to make a defendant a publisher. It is not necessary that the defendant intend to communicate the material complained of as defamatory in order to be a publisher. All that is required is a voluntary act of participation in its communication.

   [126] Wright v De Kauwe [No 2] [2024] WASCA 51 (Wright v De Kauwe [No 2]) [109] (Mitchell JA), [15] (Buss P), [351] (Lundberg J).

3. In the present case, Mr Higgs actively participated in the interaction with the staff of the Clinic and he filmed the interaction on Ms Peterson's phone. As I have found, Mr Higgs clearly intended the footage to be used by Ms Peterson in a social media post if she saw fit and, given his presence at the Clinic he knew what had been said to, and about, the plaintiffs in the footage. He not only lent his assistance to the creation of the footage for the post, his involvement in the interaction at the Clinic gave his encouragement to the statements that were made in it.

4. The fact that Mr Higgs took the footage for use by Ms Peterson 'if she saw fit' and that he 'left [the creation of a post] up to her', does not detract from his active participation in the publication of the Facebook Post. It simply means that the use of the footage and the content of the post were left to Ms Peterson's discretion, in accordance with their usual understanding, which included Mr Higgs' knowledge that Ms Peterson's Facebook page was a public page. Nor does it matter that Mr Higgs did not have prior knowledge of the text added to the Facebook Post by Ms Peterson. In Webb v Bloch, for example, members of a committee who authorised the preparation and publication of a circular containing defamatory matter were liable for the publication, notwithstanding that they were unaware of the contents of the circular or whether the statements in it were true or false.[127]

   [127] See Google LLC v Defteros [2022] HCA 27; (2022) 96 ALJR 766 (Google v Defteros) [34] (Kiefel CJ & Gleeson J).

5. Mr Higgs was a publisher of the Facebook Post.

V-Gan Booty Pty Ltd was not a publisher of the Facebook Post

1. The pleaded case in relation to V‑Gan Booty Pty Ltd is that it is, and was from 13 October 2021, 'together with [Ms Peterson], the entity responsible for the publication and maintenance of the Social Media Pages'.[128] The 'Social Media Pages' are defined to mean all of the social media pages operated by Ms Peterson, including the Facebook page.[129]

   [128] Statement of Claim [6.2] (see also [4.4], [24.1.8], [24.1.9]).

   [129] Statement of Claim [4.4], [4.4.1].

2. Beyond V‑Gan Booty Pty Ltd's pleaded '[responsibility] for the publication and maintenance of the Social Media Pages', the Statement of Claim does not plead (or at least not as a principal allegation) any particular participation by it in the Facebook Post. Indeed, where the company is expressly referred to in the Statement of Claim it always appears in the context of an alternative to an allegation made in relation to Ms Peterson. For example, the plaintiffs plead that the settings on the Facebook Post were applied 'by the First Defendant, alternatively the First and Third Defendants'.[130] The same formula is repeated throughout the Statement of Claim.[131] References in the Statement of Claim to publication by 'the Defendants' generally, otherwise do not plead any additional material facts as to V‑Gan Booty Pty Ltd's alleged participation in the publication of the Facebook Post.[132]

   [130] Statement of Claim [7.5].

   [131] Statement of Claim [16.1], [16.1A], [16.2], [16.2A], [16.4], [16.5], [16.8], [18], [21.1.3], [21.2], [22], [22A] (a reference to the 'Third Defendant' in [18.2], is clearly a typographical error and is intended to refer to the 'Third Plaintiff').

   [132] Statement of Claim [10], [13].

3. In this regard, the plaintiffs' case against V‑Gan Booty Pty Ltd therefore stands or falls on the plaintiffs establishing, on the balance of probabilities, its factual allegation that V‑Gan Booty Pty Ltd is, together with Ms Peterson, the entity responsible for the publication and maintenance of the Facebook page.[133]

   [133] Counsel for the plaintiffs said in passing during oral closing submissions that 'the other point that one could look at' was accessorial liability in tort, referring to Wang v Yu [2023] NSWSC 1182. As I made clear at the time, the plaintiffs did not plead, or run, a case on that basis and did not seek to reopen or amend in order to do so (see ts 649).

4. There is an immediate hurdle that confronts the plaintiffs in establishing that factual allegation. The hurdle is that, at the time that Ms Peterson posted the Facebook Post to the Facebook page, V‑Gan Booty Pty Ltd did not exist. V‑Gan Booty Pty Ltd was not incorporated until 13 October 2021. On any view of the facts, V‑Gan Booty Pty Ltd cannot have been responsible for the publication and maintenance of the Facebook page between the date that the Facebook Post was posted (24 September 2021) and the date of its incorporation.

5. It may therefore safely be concluded that all of the 'publications' (that is, all of the downloads or 'views') of the Facebook Post between 24 September 2021 and 13 October 2021 were not published by V‑Gan Booty Pty Ltd and that it could have no liability in relation to them. While the plaintiffs established that, as at April 2024, the Facebook Post had been viewed approximately 78,000 times,[134] they did not seek to specify how many of those views occurred prior to the incorporation of V‑Gan Booty Pty Ltd. Nor does the evidence reveal the timing of the views to any significant extent, although given the ethereal nature of social media sites it might be inferred that a significant amount of the 'traffic' occurred fairly soon after the date that the Facebook Post was posted.[135] For example, all but one of the many 'republications' pleaded by the plaintiffs, from 'reposts' of the Facebook page, were made before the incorporation of V‑Gan Booty Pty Ltd.[136] Even if V‑Gan Booty Pty Ltd is liable as a publisher, the extent of its publication would be less than that of Ms Peterson and Mr Higgs.

   [134] See Exhibit 42; ts 400 - 401; 528 - 529.

   [135] There was some limited evidence in that regard. For example, Dr McIntosh referred to the post receiving 'nearly 5000 views' in the first 24 hours (ts 144) and the Concerns Notice referred to there having been more than 11,000 views by 4 October 2021 (Exhibit 162).

   [136] Statement of Claim [10B] - [10AC]; see [192] below.

6. V‑Gan Booty Pty Ltd's incorporation after the date on which Ms Peterson posted the Facebook Post is, however, not necessarily fatal to the plaintiffs' claims against the company. That is because, as I have noted above, the Facebook Post was relevantly 'published' each time it was downloaded to the computer (or other device) of a person using the Facebook site (or application) and viewed by that person, including after 13 October 2021. If V‑Gan Booty Pty Ltd became responsible for the maintenance of the Facebook page after its incorporation, its failure to remove the Facebook Post from that point could, as the plaintiffs submitted, readily amount to 'publication' by V‑Gan Booty Pty Ltd in accordance with the line of cases following Byrne v Deane.[137]

   [137] Byrne v Deane [1937] 1 KB 818; Plaintiffs' Closing Submissions [22] - [23].

7. Nevertheless, it remains the case that the plaintiffs must prove, as a matter of fact, that V‑Gan Booty Pty Ltd became responsible for the publication and maintenance of the Facebook page after its incorporation (in the sense that it became jointly responsible, with Ms Peterson, which is how the balance of these reasons on this point should be understood).

8. In order for the plaintiffs to establish that fact, it would be necessary for the evidence to establish (even by way of inference) that some later act or event occurred that created or transferred responsibility for the Facebook page from Ms Peterson to the company. That might be proved, for example, by evidence that Ms Peterson, on behalf of V‑Gan Booty Pty Ltd, asserted ownership of the media on the Facebook page or that she, on behalf of the company, arranged for payments with respect to the Facebook page to be paid directly to the company.

9. The important point, however, is that the fact of transfer of joint responsibility to V‑Gan Booty Pty Ltd cannot merely be assumed. It must be proven and it is not proven simply by pointing to the fact that Ms Peterson is the controlling mind of the company. Ms Peterson and V‑Gan Booty Pty Ltd remain separate entities and whether any particular act or omission on the part of Ms Peterson is an act or omission of the company must be established on the evidence.

10. For example, in relation to the OnlyFans pages it is clear, and I find, that the ownership and responsibility for those pages is held by V‑Gan Booty Pty Ltd and was transferred to it by some positive action of Ms Peterson. This is reflected on the face of the OnlyFans pages themselves, which, after the incorporation of V‑Gan Booty Pty Ltd, were amended to assert the company's ownership of the media (see [54] above). No comparable assertion of ownership or responsibility appears on the Facebook page. The Facebook page does not refer to V‑Gan Booty Pty Ltd at all. For the reasons I gave at [55] to [56] above, references to Ms Peterson's online persona 'vgan booty' cannot be taken as references to the company.

Ms Peterson's evidence as to V‑Gan Booty Pty Ltd's responsibility for the Facebook page

1. Ms Peterson was clear in her own evidence that V‑Gan Booty Pty Ltd was established solely for her OnlyFans business. It was not directly put to Ms Peterson that she ever transferred ownership or responsibility for the Facebook page to V‑Gan Booty Pty Ltd. Nevertheless, it was put to her that she had done so with another page, being her Patreon account, which she denied:[138]

   [W]ho was maintaining the Patreon page as at 17 November 2021? – Myself. It has only been myself.

   When did V‑Gan Booty Propriety Limited take over that? – It has not. The company, V‑Gan Booty, is responsible only to do with OnlyFans as advice from my accountant. It has nothing to do with this.

   [138] Ts 411.

2. While, as I have said, it was not put to Ms Peterson that she transferred ownership or responsibility for the Facebook page to V‑Gan Booty Pty Ltd, this answer (to the effect that '[t]he company, Vegan Booty, is responsible only to do with OnlyFans'), in my view would apply equally to the Facebook page.

3. In this regard, I find that in Ms Peterson's mind there is a clear distinction between the OnlyFans pages, which are operated by V‑Gan Booty Pty Ltd (on the advice of her accountant) and her other social media pages, which she operates herself in her own personal capacity. As the controlling mind of the company, Ms Peterson's evidence in that regard, while not determinative, militates against the plaintiffs' case that responsibility for the Facebook Page was transferred from Ms Peterson personally to the company, V‑Gan Booty Pty Ltd (jointly with her).

1. I find that, when Ms Peterson and Mr Higgs first entered the Clinic on 24 September 2021, they did so for the purpose of communicating with the staff of the Clinic in relation to the birds, as they had done the day before. That is, I find that at least one of their purposes was to speak to the staff at the Clinic in relation to the birds. That entry was within the scope of the implied licence. I accept that the communication by Ms Peterson and Mr Higgs on 24 September 2021 was intentionally confronting and was not desired or welcomed by the staff at the Clinic. That fact did not, however, negate the implied licence.[487]

   [487] Roy v O'Neill [69] (Keane & Edelman JJ).

2. As I have found, Ms Peterson and Mr Higgs also entered the Clinic for the purpose of surreptitiously filming the interaction at the Clinic, for use in a social media post. I have given careful consideration to whether that additional purpose and motivation could be said to negate the implied licence that they had to enter the Clinic.

3. In that context, the Clinic placed heavy reliance on the decision of the Court of Appeal in New South Wales in TCN Channel Nine Pty Ltd v Anning.[488] That case involved a television reporter and camera operator employed by the appellant entering business premises for the purposes of filming a raid, recording the use of the land and conducting what interviews it could with a view to broadcasting the material collected. The Court held that those purposes were wholly outside any implied licence, including a licence to communicate with the occupant.

   [488] TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 (TCN Channel Nine v Anning).

4. While there are some similarities between TCN Channel Nine v Anning and the present case, there are important differences.

5. First, while TCN Channel Nine v Anning also concerned business premises, they were not, as in the present case, premises generally open to the public; that is, the premises in that case were not a 'shopfront' with a reception area.

6. Secondly, and more significantly, the Court in TCN Channel Nine v Anning concluded that the purpose of the employee of the appellant was not to communicate with the occupier. The outcome in TCN Channel Nine v Anning was expressly explained by Keane and Edelman JJ on that basis in Roy v O'Neill.[489] In the present case I am satisfied that Ms Peterson and Mr Higgs did enter the Clinic on 24 September 2021 for the purpose of communicating with the staff of the Clinic.

   [489] Roy v O'Neill [71] (Keane & Edelman JJ).

7. The fact that Ms Peterson and Mr Higgs had an additional motivation, and purpose, for recording the interaction, even surreptitiously, did not make their entry unlawful, by entering with another and alien purpose in mind. This is made clear in Roy v O'Neill, in the passage reproduced above,[490] citing Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd[491] and Barker v The Queen (HC).[492]

   [490] See [616] above.

   [491] Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584.

   [492] Barker v The Queen (1983) 153 CLR 338 (Barker v The Queen (HC)).

8. In this regard, the present case is relevantly indistinguishable from that of the Federal Court in Barker v The Queen (FC),[493] in which the client of an accountant and solicitor attended upon their premises for the purpose of professional advice, in circumstance in which she was merely pretending to be interested in the adviser's advice and had the intention of recording the conversation in the hope that they would make admissions of criminal conduct. Applying the High Court's decision in Barker v The Queen (HC), the Court concluded that her ulterior purpose did not render her a trespasser.[494]

   [493] Barker v The Queen (1994) 54 FCR 451 (Barker v The Queen (FC)).

   [494] Barker v The Queen (FC), 472 ‑ 474 (Jenkinson & O'Loughlin JJ).

9. Ms Peterson and Mr Higgs were therefore not trespassing when they entered the Clinic on 24 September 2021.

Trespass – revocation of implied licence?

1. I am, however, comfortably satisfied that Ms Peterson and Mr Higgs became trespassers when Dr McIntosh asked them to leave the Clinic's premises and they did not leave the Clinic.

2. In that regard, I am satisfied that Dr McIntosh, as an officer of the Clinic, revoked Ms Peterson and Mr Higgs' implied licence when she first asked them to leave. That revocation was reinforced and repeated, by either Dr McIntosh or Mr McIntosh, a further seven times before Ms Peterson and Mr Higgs left the premises.

3. I am also satisfied that Ms Peterson and Mr Higgs did not leave the Clinic within a reasonable time. It is true that they left the Clinic approximately 1 minute and 40 seconds after they were first asked to leave, which is not, in absolute terms, a long period of time. A 'reasonable time' in this context, however, is not determined by reference to the number of seconds or minutes that elapsed. A reasonable time is determined by reference to the time that it would reasonably take to leave the premises.

4. In the present case, Ms Peterson and Mr Higgs were in the reception area of the Clinic. Once they were asked to leave, they were obliged to do so immediately by the most appropriate route available. In that regard, Ms Peterson and Mr Higgs were within metres of the door and, I find, it would only have taken them a few seconds to leave the premises. There was nothing impeding their exit and there was otherwise no basis for Ms Peterson and Mr Higgs not to leave immediately. That is what they were required to do.

5. As it was, Ms Peterson and Mr Higgs had to be asked to leave a further seven times before they did so.

6. I reject Ms Peterson and Mr Higgs' evidence that they were confused about being asked to leave. As I have already found, in my view that evidence was contrived and disingenuous.[495] Dr McIntosh and Mr McIntosh were not instigating further conversation so as to implicitly authorise Ms Peterson and Mr Higgs to stay. It was, rather, Ms Peterson and Mr Higgs who continued to attempt to draw the staff of the Clinic into further conversation.

   [495] See [51] and [62] above.

7. The Clinic's action against Ms Peterson and Mr Higgs for the tort of trespass succeeds.

Trespass – damages

1. It is not necessary, in an action for trespass, for the plaintiff to prove some identifiable financial loss. Damages are not the 'gist' of the action. As Gageler J said in Smethurst v Commissioner of the Australian Federal Police:[496]

   It is important to be clear about what the common law would be attempting to compensate for in awarding compensatory damages. The gist of a common law cause of action for trespass, whether to land or to goods, is 'the wrong to the right to possession'. At the heart of the common law right to possession is the common law right to control access by others and thereby to exclude others from access. In protecting the right to possession, the policy of the common law is to protect the right to exclude others which is bound up in possession.

   [496] Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14; (2020) 272 CLR 177 [120] (Gageler J).

2. It is for this reason that, even where trespass causes no damage to the plaintiff's land or economic interests, damages are awarded for the 'purpose of vindicating the plaintiff's right to exclusive use and possession of his or her land'.[497]

   [497] Plenty v Dillon (1991) 171 CLR 635, 654 - 655 (Gaudron & McHugh JJ); New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638 (New South Wales v Ibbett) [29] - [30] (Gleeson CJ, Gummow, Heydon & Crennan JJ); TCN Channel Nine Pty Ltd v Anning [178] (Spigelman CJ).

3. In the present case, as I have found, the Clinic suffered no actual damage (in the sense of financial loss or damage to the property) from the events of 24 September 2021. The damages to be awarded to it for trespass are therefore limited to those required for the purpose of vindicating the Clinic's right to exclusive possession of the premises.

4. In all of the circumstances, however, those damages should be relatively modest. In that regard, Ms Peterson and Mr Higgs' violation of the Clinic's property rights was not, in my assessment, a particularly serious one. My reasons for that conclusion are as follows:

   (a)Ms Peterson and Mr Higgs were not trespassing when they entered the Clinic but became trespassers when they were asked to leave and did not do so within a reasonable time;

   (b)Ms Peterson and Mr Higgs entered in, and remained only in, the reception area of the Clinic; that is, they did not intrude into the 'staff only' areas of the Clinic;

   (c)the intrusion on the Clinic's property rights concerned business premises, rather than domestic or residential premises. An intrusion on domestic or residential property is generally a more serious breach of property rights;

   (d)while Ms Peterson and Mr Higgs did not leave within a reasonable time, they did leave the Clinic within a short period of time. They remained in the Clinic for only 1 minute and 40 seconds after they were first asked to leave; and

   (e)while they had to be asked to leave a number of times, Ms Peterson and Mr Higgs left voluntarily; that is, it was (fortunately) unnecessary for them to be physically removed.

5. The fact that Ms Peterson and Mr Higgs made the recording while they were in the Clinic does not increase the damages for the tort of trespass in this case. In this regard, the recording, and its adverse effect upon the Clinic, and indeed Dr McIntosh and Mr McIntosh, formed part of the damage to each of the plaintiffs in their defamation claims and has been taken into account in the assessment of damages in relation to those claims. In addition, of course, the damages with respect to trespass are available only to the Clinic, a body corporate. The recording of the interaction did not affect its property rights, as such.

6. While modest, however, the damages for trespass are not merely nominal. Ms Peterson and Mr Higgs' conduct in remaining in the Clinic when asked to leave was a substantive civil wrong, for which damages must vindicate the Clinic's right to exclusive possession. In all of the circumstances, in my view the appropriate award of damages for the trespass is $10,000.

7. The Statement of Claim does not claim aggravated damages for the Clinic in relation to the trespass claim. This is not, in any event, an appropriate case for aggravated damages. While in some cases aggravated damages can be awarded for trespass for the intangible hurt and affront to the occupier, in the present case the Clinic, being a corporation, suffered no such impact. In any event, the aggravating conduct of Ms Peterson and Mr Higgs has been taken into account in the award of damages for defamation.

8. The Statement of Claim does, however, claim exemplary damages in relation to the claim in trespass. As I discussed above, exemplary damages are awarded to punish the defendant, and must be based on something more substantial than the mere disapproval of the conduct of a defendant. They are generally reserved for cases of intentional wrongdoing in contumelious disregard of the plaintiff's rights.[498]

   [498] See [600] above.

9. In cases of trespass, the common law has recognised a particular role for exemplary damages in cases involving overreach by the Executive Government. In New South Wales v Ibbett, for example, the Court said:[499]

   The common law fixes by various means a line between the interests of the individual in personal freedom of action and the interests of the State in the maintenance of a legally ordered society. An action for trespass to land and an award of exemplary damages has long been a method by which, at the instance of the citizen, the State is called to account by the common law for the misconduct of those acting under or with the authority of the Executive Government. Indeed, the first reported use of the expression 'exemplary damages' may have been by Pratt LCJ in Huckle v Money. Huckle was one of several tort actions in the Court of Common Pleas arising from the use by the administration of George Grenville of general warrants in its campaign in the 1760s against the activities of John Wilkes and the publication styled the North Briton. The jury in Huckle awarded no less than £300 damages, an enormous sum for the times, and the Lord Chief Justice said they were not excessive.

   Windeyer J later doubted whether the origin of the idea conveyed by the term 'exemplary damages' was as recent as Huckle. However that may be, what is well established is that an award of exemplary damages may serve 'a valuable purpose in restraining the arbitrary and outrageous use of executive power' and 'oppressive, arbitrary or unconstitutional action by the servants of the government'. The words are those of Lord Devlin, no supporter of the general use of this remedy. His Lordship added that: 'the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service'.

   [499] New South Wales v Ibbett [38] - [39] (Gleeson CJ, Gummow, Heydon & Crennan JJ).

10. This line of authority obviously does not apply to Ms Peterson or Mr Higgs, who are a long way from exercising any executive or governmental power. Those authorities do nevertheless underscore the importance of property rights under the common law.

11. In this context, I have given careful consideration to whether an award of exemplary damages is appropriate in relation to trespass in this case. Ms Peterson and Mr Higgs' conduct in remaining in the Clinic, even for a short time, was wrongful and is rightly to be the subject of disapproval.

12. Nevertheless, disapproval of Ms Peterson and Mr Higgs' conduct is not enough under the law and, I have concluded, this is not an appropriate case for exemplary damages. Given that Ms Peterson and Mr Higgs did leave the Clinic, and did so less than two minutes from being required to do so, it cannot be said that they demonstrated contumelious disregard of the Clinic's right to exclusive possession of the premises. Those rights are sufficiently vindicated by the award of general damages. This is not a case in which the Court should take the exceptional course of punishing Ms Peterson or Mr Higgs by an award of exemplary damages.

13. In this context, it is important to recognise that the assessment of damages for Ms Peterson or Mr Higgs' trespass on the Clinic's right to exclusive possession should not be confused with, or become a cipher for, the Court's disapproval of Ms Peterson or Mr Higgs' actions in publishing the Facebook Post, or any contumelious disregard they may be alleged to have had for the plaintiffs' reputations. Section 37 of the Defamation Act provides that the court may not award exemplary or punitive damages for defamation. The Court could not, in a case such as the present, award exemplary damages to punish the relevant defendants for their conduct in publishing the defamatory matter (no matter how contumelious such conduct may have been) under the guise of awarding exemplary damages in relation to the trespass. It is necessary to assess the issue of exemplary damages in the context of the particular right or interest the subject of the cause of action which permits those damages.

14. As I have said, the invasion of the rights of the Clinic protected by the tort of trespass was not such as to justify an award of exemplary damages.

15. The Clinic has proven its claim in trespass against Ms Peterson and Mr Higgs and entitled to an award of general damages in the sum of $10,000.

Civil conspiracy

1. The final cause of action, again brought by the Clinic against Ms Peterson and Mr Higgs, is in the tort of civil conspiracy.

2. The pleaded case in relation to the claim of civil conspiracy, shorn of some of the particulars, is as follows:

   24.Further and in the alternative to the matters pleaded herein, by agreeing and arranging to attend on 24 September 2021 the [Clinic's] premises and trespass thereupon so as to record the Video Footage with the common intention of publishing the Video Footage on the Facebook Page, [Ms Peterson and Mr Higgs] conspired to cause harm to the [Clinic] by unlawful means, being the unlawful trespass on the [Clinic's] premises.

   …

   25.The predominant purpose of the conspiracy on the part of [Ms Peterson and Mr Higgs] was to cause harm to the [Clinic], further and alternatively, to generate publicity and income for [Ms Peterson] and the causes she purports to support with reckless indifference to the probable damage that would be suffered by the Plaintiffs.

   …

   26.The means by which [Ms Peterson and Mr Higgs] carried out the conspiracy to cause harm to the [Clinic], namely trespassing on the Plaintiffs' premises with the common intention of recording video footage to be published on the Facebook Page, thereby resulting in publication of the Video Footage on the Facebook Page, including images of [Dr McIntosh and Mr McIntosh] published without their authority or consent, was unlawful:

   Particulars of unlawfulness

   26.1 the Plaintiffs repeat the matters pleaded in the section entitled 'Trespass' at paragraph 23 above and the particulars thereto; and

   26.2 the means by which [Ms Peterson and Mr Higgs] carried out the conspiracy to cause harm to the [Clinic], namely trespassing on the Plaintiffs' premises with the common intention of recording video footage to be published on the Facebook Page, thereby resulting in the publication of the Video Footage on the Facebook Page, including images of [Dr McIntosh and Mr McIntosh] published without their authority or consent, was unlawful.

   27.By reason of the Defendants' conduct pleaded in paragraphs 24 to 26, including the publication of the Video Footage on the Facebook Page as part of the Facebook Post, the [Clinic] has suffered loss and damage:

   Particulars of loss and damage

   27.1 the Plaintiffs refer to and repeat the particulars of loss and damage set out at paragraph 18 above.

3. It will be immediately apparent that the Clinic's civil conspiracy claim pleads an 'unlawful means' conspiracy.[500] In that regard, there are relevantly two forms of civil conspiracy:[501]

   (a)an 'unlawful means' conspiracy in which the participants combine together to perform acts which are themselves unlawful; and

   (b)a combination to perform acts which, although not themselves unlawful, are done with the sole or predominant purpose of injuring the claimant.

   [500] Plaintiffs' Opening Submissions [166].

   [501] CC Containers Pty Ltd v Lee [2011] VSC 537 [11] (Ferguson J).

4. The Clinic's claim in the present case is of the former kind. In particular, the 'unlawful means' pleaded by the Clinic is an unlawful trespass on the Clinic's premises.

5. I turn to the legal principles in that regard.

Civil conspiracy – legal principles

1. In Stuart v Hanna [No 3],[502] Tottle J, approving the decision of Bond J in Lee v Abedian,[503] identified the essential elements of an 'unlawful means' conspiracy as follows:

   (a) there was a combination or agreement between two or more persons to engage in conduct amounting to unlawful means;

   (b) a purpose of that combination or agreement was to injure the plaintiff;

   (c) the combination or agreement was carried into effect by the commission of the agreed unlawful acts; and

   (d) those unlawful acts caused damage to the plaintiff.

   [502] Stuart v Hanna [No 3] [2018] WASC 208 [29] (Tottle J) (appeal dismissed in Stuart v Hanna [2018] WASCA 181).

   [503] Lee v Abedian [2016] QSC 92 [70] (Bond J).

2. In relation to the requirement of 'unlawful means', in Poland v Hedley [No 5] Tottle J observed:[504]

   There are two aspects to the element of 'unlawful means'. The first is that the acts involved are unlawful. The second is that the unlawful acts were the means of inflicting harm on the plaintiff.

   [504] Poland v Hedley [No 5] [2023] WASC 294 [66] (Tottle J) (Poland v Hedley [No 5]).

3. The existence of an intention to injure is a critical element of the tort. A plaintiff must prove that the unlawful act was done with the intention of injuring the plaintiff and that it did so. Thus, a conspiracy to injure a person is distinguishable from an agreement to do an unlawful act that results in damage to that person.[505]

   [505] Poland v Hedley [No 5] [67] (Tottle J).

1. The relevant agreement to injure by unlawful means need not be an express agreement, but may be inferred from the acts of the parties. In Chong v CC Containers Pty Ltd, for example, the court concluded that:[506]

   As conspirators will ordinarily conceal their unlawful agreement, it will often be the case that there is no direct evidence of the combination. The conspiracy may be proved without direct evidence of an express agreement or understanding as to the common design. It is generally a matter of inference deduced from certain acts of the parties done in pursuance of the apparent purpose in common between them. The overt acts done in furtherance of the combination may support the inference that there was such an agreement or understanding to further the common unlawful object of the combination. … A mere co‑incidence of separate acts however, which by their conjoined effect cause damage, will not suffice. The evidence must be such as to permit it to be inferred that the acts were undertaken in pursuit of the common object so that it may be said that the actors acted in concert towards the common end.

   [506] Chong v CC Containers Pty Ltd [2015] VSCA 137; (2015) 49 VR 402 [133] (Redlich, Santamaria & Kyrou JJA); Poland v Hedley [No 5] [68] (Tottle J) (footnotes omitted).

2. The tort of conspiracy requires proof of actual pecuniary or financial loss as a result of the defendants' acts done in furtherance of their agreement.[507]

   [507] Poland v Hedley [No 5] [69] (Tottle J).

3. Turning to the elements in the present case.

Civil conspiracy – agreement to injure by unlawful means

1. For the reasons that follow, I am not satisfied that Ms Peterson and Mr Higgs either:

   (a)had an agreement to engage in conduct amounting to unlawful means; or

   (b)had the purpose of injuring the Clinic.

2. In that context, I have found that Ms Peterson and Mr Higgs entered into an agreement that they would enter the Clinic and speak with the staff of the Clinic. I have also found that they agreed that the interaction would be surreptitiously filmed. That agreement, however, involved little (if any) discussion between Ms Peterson and Mr Higgs. It was most likely a tacit agreement.[508]

   [508] See [76] above.

3. That agreement, however, did not, I find, amount to an agreement to engage in unlawful conduct and, in particular, did not amount to an agreement to engage in the unlawful conduct pleaded by the Clinic; namely an unlawful trespass.

4. Ms Peterson and Mr Higgs were both cross‑examined in relation to previous occasions upon which they were asked to leave business premises. Counsel for the plaintiffs, for example, put to Ms Peterson that she knew enough to know that if a proprietor asked her to leave premises, she was obliged to leave. Ms Peterson responded 'within a reasonable time, that was my belief'.[509] Mr Higgs gave evidence to similar effect:[510]

   And did you know, prior to 23 September, that trespass would occur if you refused or failed to leave when immediately asked to leave? – I can't recall my knowledge of trespass at that time. I know that now. I didn't know the specifics of trespass, but generally speaking, I would say I probably knew that if you didn't leave within a reasonable amount of time after a property owner has asked you, it could constitute trespass.

   [509] Ts 385; see also ts 389 as to Ms Peterson's understanding of the tort of trespass.

   [510] Ts 499.

5. While, as I have found, Ms Peterson and Mr Higgs did not leave the Clinic within a reasonable time of being asked to leave, their understanding of their legal obligations was nevertheless generally correct. In that regard, I am not satisfied that they believed that they would be trespassing by entering the Clinic. Whether they would be trespassing would, from their perspective, depend upon whether they were asked to leave and, if so, whether they left within a reasonable time.

6. While Ms Peterson and Mr Higgs' beliefs are not determinative, their understanding is relevant to whether they entered into an agreement to engage in conduct amounting to unlawful means. If they agreed, expressly or impliedly, to commit a trespass, that would no doubt satisfy the first element of a civil conspiracy. I am not, however, satisfied that they did reach such an agreement. It was, as I have said, a tacit agreement to enter the Clinic, speak to the staff and record the interaction. It did not extend to unlawful means, even if, as events transpired, Ms Peterson and Mr Higgs ultimately committed an unlawful trespass when they did not leave within a reasonable time of being required to do so.

7. Equally, I am not satisfied that Ms Peterson and Mr Higgs' agreement on 24 September 2021 had, as a purpose, the purpose to injure the Clinic by trespassing on its premises. That is, I am not satisfied that the unlawful act alleged by the Clinic was done with the intention of injuring the Clinic. Indeed, insofar as the alleged unlawful act is concerned (i.e. entering the Clinic) it could not have foreseeably injured the Clinic (in the sense of causing actual damage), let alone be intended to do so.

8. If there was any foreseeable injury to the Clinic or its staff by Ms Peterson and Mr Higgs' actions on 24 September 2021 it was not as a result of their entry into the Clinic but from the publication of defamatory material in a social media post. That conduct, however, is not the unlawful conduct alleged as the civil conspiracy and in any event, the plaintiffs have been awarded damages for that unlawful conduct.

9. Moreover, to the extent that Ms Peterson and Mr Higgs' actions on 24 September 2021 generally gave rise to a foreseeable risk of injury to the Clinic, such foreseeability would still not amount to a positive intention on their part. As it is, in my view it is more likely that, in pursuit of their cause, Ms Peterson and Mr Higgs are indifferent to the injury or harm that they may cause by their activism. Such indifference may be morally questionable, but it does not amount to an intention to injure.

Civil conspiracy – pecuniary loss

1. In any event, as I have found in the context of the Clinic's defamation claim, its injurious falsehood claim and its trespass claim, I am not satisfied that the Clinic suffered any actual damage (in the sense of financial loss or damage to the property) from the events of 24 September 2021. In particular, I have specifically rejected the pleaded loss and damage pleaded as part of the civil conspiracy claim (namely the damage pleaded at Statement of Claim [18]).[511]

Civil conspiracy – conclusion

[511] See [535] - [556] above.

1. For all of these reasons, the Clinic's claim of a civil conspiracy must fail.

2. It is, accordingly, not necessary to deal with the defendants' submission that Ms Peterson and Mr Higgs could not have been liable for both a conspiracy to effect a wrong (i.e. trespass) and the wrong itself (i.e. trespass).

3. Nevertheless, I would observe that it is difficult to see how the civil conspiracy claim could ever have added anything of consequence to the plaintiffs' action. On the face of it, the civil conspiracy claim could not have succeeded without the trespass claim succeeding and the damages claimed in relation to each claim was identical (including the claim for exemplary damages). There is much to be said for the view that the civil conspiracy claim was entirely superfluous and mere surplusage.

Conclusion

1. For all of the forgoing reasons, I conclude that:

   1.Dr McIntosh is entitled to judgment against Ms Peterson and Mr Higgs (in respect of her claim in defamation) in the sum of $150,000;

   2.Mr McIntosh is entitled to judgment against Ms Peterson and Mr Higgs (in respect of his claim in defamation) in the sum of $110,000;

   3.the Clinic (For Paws and Feathers Pty Ltd) is entitled to judgment against Ms Peterson and Mr Higgs (in respect of its claim in defamation) in the sum of $10,000;

   4.the Clinic (For Paws and Feathers Pty Ltd) is entitled to judgment against Ms Peterson and Mr Higgs (in respect of its claim in trespass) in the sum of $10,000;

   5.the Clinic's claims for injurious falsehood and civil conspiracy are dismissed; and

   6.the plaintiffs' action against V‑Gan Booty Pty Ltd is dismissed. V‑Gan Booty Pty Ltd is entitled to judgment against the plaintiffs.

2. Dr McIntosh, Mr McIntosh and the Clinic are entitled to prejudgment interest with respect to the damages for defamation from 24 September 2021, adjusted to reflect the fact that not all of the damage from the defamation occurred at the same time and, also, to reflect the general principle of spreading the loss over the period from the date of publication to trial.[512] Subject to those adjustments, I am of the preliminary view that interest should be awarded at the rate of 6% per annum.

   [512] Jensen v Nationwide News Pty Ltd & Anor [2019] WASC 451 (S) [5] - [20] (Quinlan CJ).

3. The Clinic is entitled to prejudgment interest with respect to the damages for trespass from 24 September 2021. I am of the preliminary view that interest should be awarded at the rate of 6% per annum.

4. I will, however, hear the parties as to the final orders, including in relation to interest and costs.

Schedule 1 – Transcript of the Facebook Post

Transcript of the Facebook Post (Exhibit 39)

Ms Peterson:           So yesterday I was walking past a veterinary clinic and I noticed some birds enslaved in a cage on display out the front of this veterinary clinic and I expressed my concerns to them saying they shouldn't be in a cage, this is slavery and they're also out in the sun, so I've come back today and they've moved them into the shade but these poor birds are still on display in a tiny cage throughout the entire day and this is just completely immoral and animal slavery and I can't believe that a veterinary clinic is advertising and stating that it's okay to enslave animals. This is disgusting. So I'm going to go back now and have a chat to them.

Dr McIntosh:          Hi how are you going?

Ms Peterson:          Hi. Good thanks.

Dr McIntosh:          That's good. Can I help you today?

Ms Peterson:           I just came in yesterday to express some concern for the birds and I think there was a bit of a misunderstanding. I mean it's great that you've moved them in the shade but I'm just not understanding why a veterinary clinic is advertising animal slavery.

Dr McIntosh:          It's not animal slavery and I appreciate your opinion and that's your opinion and I'd like to ask …

Ms Peterson:           But they're in a cage.

Dr McIntosh:          I'd like to ask you to leave our premises. You are not welcome here. I know who you are and I don't want any trouble.

Ms Peterson:           No I'm not, I'm not causing any trouble. I'm just trying to understand why slavery …

Dr McIntosh:           These birds have time out, they get flying around in the clinic and they are outside because I can't let them free out there because they're actually captive birds that have been in a cage for 14 years. They were with this clinic when I started the ownership here and so I'm not about to take them out and let them free when they wouldn't be able to look after themselves.

Ms Peterson:           I know but surely there's a better option for them to be in a bigger cage where their needs are met rather than just advertising slavery.

Dr McIntosh:           They're not advertising. They are actually out there enjoying the weather and I would like you to leave please. I understand your feelings and I acknowledge that and I'm not about to change anything at the moment because I am currently in the process of obtaining a larger enclosure for them. I'm only a new owner to this premises and I agree that their cage is too small but I am getting them a bigger environment. I appreciate your concern. Please leave.

Mr Higgs:                I couldn't understand why

Mr McIntosh:          You've been asked to leave. Go or we'll call the police.

Dr McIntosh:          Yeah, if you don't leave I'll call the police.

Ms Peterson:           Oh so you're the type of vets that eat your own patients are you?

Dr McIntosh:           Yeah I do eat meat, but I don't eat dogs and I don't eat cats and I don't appreciate you pushing your agenda on my personal …

Ms Peterson:           I don't appreciate you enslaving animals and forcing them into murder factories.

Dr McIntosh:           That is not enslaving animals.

Ms Peterson:           It is.

Mr McIntosh:          Ring the police.

Ms Peterson:           What if they were dogs?

Mr Higgs: Yeah, what if it were a dog in there? What if it was a dog or a cat? Just sitting outside in a cage.

Dr McIntosh:           I have a dog in a cage out the back at the moment receiving treatment. Am I enslaving it?

Dr McIntosh:           Please get out.

Mr McIntosh:          Leave.

Ms Peterson:           Blatant animal abusers. Disgusting. Give me the phone I'm filming this slavery. Do you have something to hide here?

Mr McIntosh:          Do you? I wonder what.

Ms Peterson:           No, no, I'm just trying to show that this veterinary clinic is displaying animal slavery.

Mr McIntosh:          Because next thing I'll be taking is a court injunction out against you. So you …

Mr Higgs:                What for?

Ms Peterson:           What have I done?

Mr McIntosh:          Harassment.

Mr Higgs:                Harassment?

Mr McIntosh:          Yeah.

Ms Peterson:           Excuse me.

Mr McIntosh:          I'm sure I wouldn't have trouble having a judge, with the trouble that you're in at the moment.

Mr Higgs:                So what if there was a dog in a cage right there?

Mr McIntosh:          There's dogs in the cage out the back there.

Mr Higgs:                For their entire life?

Mr McIntosh:          They are not in there for their entire life. You're coming here –

Mr Higgs:                The woman said 14 years. 14 years in a cage.

Mr McIntosh:          Yeah, they're not in there their entire life, they actually do get free time in the clinic.

Mr Higgs:                So what if a dog was in a cage?

Mr McIntosh:          No, I'm not arguing with you, leave.

Ms Peterson:           We're in public space now so we can stay here, thank you.

Mr McIntosh:          That's okay, okay.

Mr Higgs:                So if there was a dog in a cage –

Mr McIntosh:          I'm not arguing with you.

Mr Higgs:                For 14 years

Mr McIntosh:          I'm not arguing with you

Mr Higgs: And you let the dog out to play for about half an hour a day or whatever you do, would that be okay?

Mr McIntosh:          I'm not arguing with you.

Ms Peterson:           Because you know its slavery, you have no answer. Is that why?

Mr McIntosh:          You're talking for me are you now?

Ms Peterson:           Well, can you respond to us, we're just –

Mr McIntosh:          Why?

Ms Peterson:           We're enquiring at, you're on the job now

Mr McIntosh:          Why should I respond to you?

Ms Peterson:           We're just enquiring about these animals.

Mr McIntosh:          No, why should I respond to you?

Ms Peterson:           Because we have an enquiry.

Mr McIntosh:          You have an enquiry?

Ms Peterson:           Yes.

Mr McIntosh:          You have an opinion.

Ms Peterson:           Yeah, but I'm enquiring

Mr McIntosh:          You have an opinion

Ms Peterson:           Okay, and what's yours? What's your opinion on animal slavery?

Mr McIntosh:          No, no, you have an opinion … and an agenda.

Mr Higgs:                An agenda to stop animal …

Ms Peterson:           So because you know who I am you won't answer me? You're judging me based on what you've seen in the media.

Mr McIntosh:          You have an opinion and an agenda

Mr Higgs:                And that opinion is the truth.

Mr McIntosh:          You're entitled to your opinion.

Mr Higgs:                So you don't believe its slavery?

Mr McIntosh:          No, I'm saying you're entitled to your opinion.

Ms Peterson:           And these animals are entitled to live freely from harm.

Mr McIntosh:          You're entitled to your opinion, you're entitled to your opinion, you're entitled to eat your grass and your cabbages and that sort of stuff.

Ms Peterson:           Oh so you eat your patients too.

Mr McIntosh:          Sorry, that's drawing a long bow and because you're photographing or recording, that's really nice. Do you want my good side or do you want my other side?

Ms Peterson:           Whatever you want. Do you eat your own patients? Do you?

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

MJM

Research Associate to the Hon Chief Justice Quinlan

25 NOVEMBER 2024