Munro v Wheeler (No 3)

[2025] NSWDC 3

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Munro v Wheeler (No 3) [2025] NSWDC 3

Hearing dates:

26-28 February, 21-25 October, 6 and 19 December 2024

Date of orders:

13 February 2025

Decision date:

13 February 2025

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1)   Judgment for the defendants.

(2)   Costs reserved, with liberty to apply.

(3)   Exhibits retained until further order.

Catchwords:

TORT – defamation – two publications on Facebook about a search for the first defendant’s lost puppy – whether publication and downloading established - defences of common law and statutory qualified privilege, honest opinion and comment, justification, s 91 of the Broadcasting Services Act (Cth) and innocent dissemination - failure of plaintiffs to plead or particularise malice in relation to the qualified privilege and honest opinion defences – judgment for the defendants

Legislation Cited:

Broadcasting Services Act 1992 (Cth), s 91

Companion Animals Act 1998 (NSW), ss 13, 62

Defamation Act 2005 (NSW), ss 25, 30, 31, 32

Evidence Act 1995 (NSW), ss 50, 140

Uniform Civil Procedure Rules 2005 (NSW), rr 15.19(2), 15.19(3), 15.19(2)(a), 15.31

Cases Cited:

Aaronson v Stones [2023] EWHC 2399 (KB)

ABC v Reading [2004] NSWCA 411

Adeang v The Australian Broadcasting Corporation (No 2) [2016] FCA 1599

Aktas v Westpac Banking Corporation Limited [2009] NSWCA 9

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

Al-Shennag v Statewide Roads [2010] NSWSC 1412

Australian Broadcasting Corporation v Obeid (2006) 66 NSWLR 605

Bailey v WIN Television NSW Pty Ltd (2020) 104 NSWLR 541; [2020] NSWCA 352

Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279

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

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

Brien v Mrad [2020] NSWCA 259

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

Browne v Dunn (1894) 6 R 67

Burstein v Times Newspapers Ltd [2001] 1 WLR 579

Callan v Chawk [2023] FCA 898

Cantwell v Sinclair [2011] NSWSC 1244

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

Carter v Blanco [2024] WASC 447

Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027

Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60

Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232

Cock & Anor v Hughes & Ors [2001] WASC 24

Coles Supermarkets Australia Pty Ltd v Clarke [2013] NSWCA 272

Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726; (2023) 169 ACSR 583

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

Deveigne v Askar [2007] NSWCA 45; (2007) 239 ALR 370

Echo Publications Pty Ltd v Tucker; Fast Buck$ v Tucker (No 3) [2007] NSWCA 320

Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70; Aust Torts Reports 82–161

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

Feldman v Nationwide News Pty Ltd [2020] NSWSC 26

Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035

Feo v Pioneer Concrete (Vic) Pty Ltd [1999] VSCA 180

Golden Season Pte Ltd v Kairos Singapore Holdings Pte Ltd [2015] SGHC 38

Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152

Google LLC v Defteros (2022) 277 CLR 358; (2022) 403 ALR 434; [2022] HCA 27

Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299; [2010] NSWCA 34

Harbour Radio Pty Ltd v Wagner (2019) 2 QR 468

Harrigan v Jones [2000] NSWSC 814

Hay v Cresswell [2023] EWHC 882 (KB)

Hayson v Nationwide News Pty Ltd [2019] FCA 81

Holmes a Court v Papaconstuntinos (2011) Aust Torts Reports 82-081; [2011] NSWCA 59

Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96

Howe v Zuchowski [2024] VSCA 56

Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188

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

Lee v Keddie [2011] NSWCA 2

Legge v Universal Hospitality Group Pty Limited (No 2) [2020] NSWSC 1411

Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369

LVMH Watch & Jewellery Australia Pty Limited v Michael Lassanah & Ors (Costs) [2011] NSWCA 407

Maisel v Financial Times Ltd [1915] 3 KB 336

Marshall v Megna [2013] NSWCA 30

Martrat Pty Limited trading as Huxley Hill & Associates v Murphy [2020] NSWDC 1

McCarey v Associated Newspapers Pty Ltd (No 2) [1965] 2 QB 86

Millane v Nationwide News Pty Ltd t/as Cumberland Newspaper Group [2004] NSWSC 853

Monson v Tussauds Ltd [1894] 1 QB 671

Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(note)

Munro v Wheeler [2024] NSWDC 23

Munro v Wheeler (No 2) [2024] NSWDC 492

O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289

Ouda v Hunter [2024] VSCA 323

Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264

Phelps v Nationwide News Pty Limited [2001] NSWSC 130

Poland v Fairfax Digital Australia & New Zealand Pty Ltd [2023] WASC 383

Prouten v Buxton [2024] NSWDC 182

R v MacDonald [1983] 1 NSWLR 729

Rader v Haines [2022] NSWCA 198

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

Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555

Rodgers v Gooding [2023] QDC 115

Russin v Wesson, 183 Vt 301, 949 A. 2d 1019 (2008)

Sandilands v Channel 7 Sydney Pty Ltd [2005] NSWSC 1250

Selkirk v Wyatt (2024) 302 FCR 541; [2024] FCAFC 48

Singleton v Ffrench (1986) 5 NSWLR 425

Skalkos v Assaf (2002) Aust Torts Reports 81-644; [2002] NSWCA 14

Smith v ADVFN Plc & Ors [2008] EWHC 1797 (QB)

Spicer v The Commissioner of Police of the Metropolis [2020] EWHC 1778 (QB)

Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348

Stocker v Stocker [2020] AC 593

Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45

Surie v MacDonald [2024] QCA 254

The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1

Tournier v National Provincial and Union Bank of England [1924] 1 KB 461

Trantum v McDowell [2007] NSWCA 138

Triggell v Pheeney (1951) 82 CLR 497

Umeyor v Ibe [2016] EWHC 862 (QB)

Vale v Sutherland (2009) 237 CLR 638; [2009] HCA 26

Voller v Nationwide News Pty Ltd [2019] NSWSC 766

Wake v John Fairfax & Sons Limited (1973) 1 NSWLR 43

Walsh v Nationwide News Pty Ltd [2011] NSWDC 42

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

Waterhouse v Mirror Newspapers Ltd (1985) 1 NSWLR 81

Watson v Foxman (1995) 49 NSWLR 315

White v Overland [2001] FCA 1333

Wing v The Australian Broadcasting Corporation [2018] FCA 1340

Wraydeh v Fairfax Media Publications Pty Ltd (2021) 105 NSWLR 254; [2021] NSWCA 153

Zuchowski v Howe; Howe v Cavendish Properties and Zuchowski [2022] VCC 1604

ZXC v Bloomberg LP [2022] AC 1158; [2022] UKSC 5

Texts Cited:

Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (2nd ed), at [10-82]

Gatley on Libel and Slander (12th ed, 2013, Sweet & Maxwell)

J C Gibson (ed.), Aspects of the Law of Defamation in New South Wales (Law Society of New South Wales, 1990) at p. 8

Meital Pinto and Guy Hardman “Shaming: Definition, Historical Origins and Contemporary Proliferation of an Illusiveness Concept”, January 2022 SSRN Electronic Journal

P George, Defamation Law in Australia (4th ed., 2023, LexisNexis) at [19.1]

Category:

Principal judgment

Parties:

Ainslee Kate Munro (1st Plaintiff)
Lauren Alicia Marchant (2nd Plaintiff)
Shannan Kathleen-Jean Wheeler (1st Defendant)
Anne-Marie Francis Curry (2nd Defendant)

Representation:

Counsel:
M Lazinski (Plaintiffs)
P Larkin SC, J Petry (2nd Defendant)

Solicitors:
Australian Property Lawyers (Plaintiffs)
1st Defendant (self-represented)
360Certainty Legal (2nd Defendant)

File Number(s):

2021/00168977

Judgment

The parties and the proceedings

1. The first plaintiff is a veterinarian working for the Australian Government and the second plaintiff works in primary industry. The first defendant is the owner of a puppy (“Teddy”) and the second defendant is a “pet detective” consulted by the first defendant on 12 June 2020 after Teddy went missing from her backyard on 9 June 2020.

2. The plaintiffs, by statement of claim filed on 11 June 2021 (as amended on 21 October 2021), bring proceedings for defamation for two Facebook publications made during the defendants’ searches for Teddy. These are as follows:

1. Publication by the first defendant on her personal “Shannie Wheeler” Facebook page and on an additional Facebook page entitled “Bring Teddy Home” of what is described in paragraph 6 of the statement of claim as “the posts in attachment A to this pleading”, including publication of “still photographs extracted or taken from CCTV footage obtained by the second defendant and published by the first defendant on or about 17 June 2020 and earlier” (paragraph 10 of the statement of claim). This 70-page document contains screenshots of approximately 201 posts excluding multiple copies (of which 48 were, by my count, authored by the first defendant) which are asserted to have been published between 11 June 2020 and 11 June 2021 (paragraph 7 of the statement of claim).

2. Publication by the second defendant, on her Facebook page “Arthur & Co Pet Concierge”, of “the posts in attachment B to this pleading” and referring to (but not including) “a post… published on 16 June 2020 but subsequently removed or hidden” (paragraphs 16 and 17 of the statement of claim). This 40-page document contains screenshots of approximately 172 posts (of which 13 were, by my count, authored by the second defendant and 2 by the first defendant).

3. The legislation applicable is the Defamation Act 2005 (NSW) (“the Act”) as it applied to publications made before 1 July 2021.

Summary of findings

4. As the plaintiffs have failed to establish publication, the bulk of this judgment consists of alternative findings. I summarise my findings as follows:

Publication and downloading: The plaintiffs have failed to establish that the first defendant published Exhibit A (the first matter complained of) or that the second defendant published Exhibit B (the second matter complained of), not only in the form that these publications are pleaded to have been made, but also in relation to the 43-page versions attached to the statements of the three witnesses called to say they downloaded each of the matters complained of.

Imputations: As an alternative finding, the following imputations would be conveyed by Exhibits A and B (or alternatively in the documents annexed to the three witness statements):

1. First defendant: Imputations (b), (c), (d), (e), (h), (i), (j) and (k).

2. Second defendant: Imputations (d), (e), (h), (i), (j) and (k).

Defences: In the alternative findings for their respective publications, both in their full and truncated form, and assuming that all pleaded imputations are conveyed, the defendants have succeeded in relation to the defences of justification, statutory and common law qualified privilege, honest opinion and (in the case of the first defendant), the common law defence of fair comment. The defence of innocent dissemination and the defence brought under s 91 of the Broadcasting Services Act 1992 (Cth) fail.

Damages: I have made alternative findings, by reason of mitigation issues, that, if the plaintiffs were to be awarded damages, the award should be for a very modest amount. No allowance should be made for aggravated damages. No injunctive relief should be granted.

The evidence

5. The evidence in these proceedings falls into three categories:

1. Evidence which is either not challenged (for example, the evidence of Mr and Mrs Gorham about seeing Teddy with the plaintiffs) or is contemporaneous documentation that is unchallenged. A summary of this evidence is set out under the heading “Facts not in dispute” below.

2. The explanations given by the plaintiffs for their conduct after picking up Teddy to take with them on 9 June 2020 and for the period up to the end of June 2020. Findings of credibility are of significance to this evidence, the bulk of which is set out in the section of this judgment concerning the defence of justification.

3. Evidence which is not in dispute, but where there are inconsistencies in the documentation suggesting that caution should be exercised in accepting it as reliable. This difficulty arises principally in relation to tenders by the parties of documents produced under subpoena by the New South Wales Police Force.

Facts not in dispute

6. In March 2020, the first defendant and her partner were given, and then gave to their two young children, a black and tan King Charles Cavalier Spaniel pedigree puppy (“Teddy”). Teddy, who was only three months old, had been microchipped but not yet been desexed. The children were thrilled with their acquisition, and Teddy was a focal point in the family’s life.

7. Three months later, on 9 June 2020, the first defendant returned home from work to find that Teddy was missing. She posted photographs and other relevant material, such as her location, on Facebook at 7:29 PM. On the following day, she visited the local pound and the sole veterinary surgery in Young. She began a running commentary on her Facebook page, asking if anyone had seen Teddy. She reported the loss to police and placed advertisements in shop windows and other public display areas, including the shop where she ran her own beauty business.

8. Despite all these inquiries, there were no sightings of Teddy. The first defendant’s children were increasingly distressed and on 12 June 2020, she retained the services of the second defendant, a “pet detective”. At 5:04 PM the second defendant posted on Facebook about her proposed search for Teddy.

9. By coincidence, the first evidence of a sighting of Teddy also occurred on 12 June, but as a result of a more traditional information source than social media. The first defendant’s mother had arranged for an advertisement to be inserted in the local newspaper, which was published in the edition which came out on 12 June 2020. Mrs Gorham, a local resident, read the advertisement and immediately recalled seeing a dog very like Teddy at about 10:00 AM on 9 June 2020, as did her husband, who had been out walking with her at the time they saw the puppy (Exhibit 8; Tcpt 489, 520, 560 – 566, 566 - 567). They went to the first defendant’s home to tell her they had seen Teddy at about 10:00 AM on 9 June in Lachlan Street, Young. Crucially, they said they had seen him in the possession or apparent control of two women, one of whom had him in her arms. They said that one of the women had volunteered that they had found the dog in the street and that they were taking him to the pound. Both Mr and Mrs Gorham gave a detailed description of the appearance of each of the persons they had seen with this dog.

10. The information provided by Mr and Mrs Gorham was set out in a Facebook message that the second defendant received from the first defendant:

“At 7:55pm I received the following Facebook message via Facebook messenger from Ms Wheeler: "I also had the woman who called, come and knock on our door this evening and spoke with us in person regarding the two women. They were both blonde and her husband corrected her statement about them looking like mother/daughter and said they were both around the same age in their twenties and one had her hair up in a high bun. Her husband said that he believes he has seen them in the past fortnight. also realised today that there is a school on our street — it's a small Muslim school and it’s not far off the road so I think their cameras might actually reach the footpath. A client of mine send her children there so she has given me a contact number to phone in the morning.” (Exhibit 17, Paragraph 46)

11. The persons they described were indeed the plaintiffs, who were in Lachlan Street that day because they were taking an exercise walk, something they did regularly. The plaintiffs had met in the Aldi carpark at 9:00 AM, where they had parked their cars, and were about half way on their way back to their cars when they saw Teddy in the middle of Lachlan Street. They managed to get him off the road and took him with them for the rest of their walk.

12. They knew Teddy was a lost dog and, as he had a collar and was well cared for, not a stray. They knew about lost dog sites and who to contact. When they first saw Teddy, the second plaintiff took a photograph of the puppy on her phone, which she then posted on the Young Community Facebook page, together with the information about where he was and that he appeared to be lost. (It should be noted, out of sequence, that very shortly afterwards she took down this post. She also deleted the photograph from her phone.)

13. At about the same time, they encountered Mr and Mrs Gorham. The plaintiffs admit that the first plaintiff told the Gorhams they were taking Teddy to the pound.

14. However, the plaintiffs did not take Teddy to the pound. Nor did they take Teddy to the nearby Young Veterinary Clinic, which was the only veterinary clinic in town and well known to the first plaintiff (as she had worked there as a veterinary student), and to the second plaintiff (who had taken her own pets there). Nor did they knock on any neighbourhood doors, despite many residents being at home because of the pandemic. Nor did they go into any shops or businesses that were open, although the first plaintiff’s stepdaughter worked in a nearby bank (Tcpt 138).

15. Instead, the plaintiffs walked for a further 14 minutes back to their cars, with the first plaintiff carrying him in her arms after he made an earlier attempt to get away. Arriving at the Aldi car park, the first plaintiff put Teddy in her car intending to drive to the nearby home of a former work colleague (Mr Loader). She would tell the police that this was because she did not want to leave the puppy in the car while she did her shopping, but her explanation later became that she wanted Mr Loader, a licensed microchipper, to read Teddy’s chip to find out who his owner was, so that she could personally take Teddy to his owner.

16. While the first plaintiff drove her SUV to Mr Loader’s home, Teddy was unrestrained and jumping between the back and front seats.

17. Arriving at Mr Loader’s home at 5 Brock Street, the first plaintiff parked outside and telephoned him. There was no answer. She left a 7-second message, the contents of which are disputed. Despite Mr Loader not answering, the first plaintiff opened her car door to get out, for unexplained reasons. Teddy then escaped from her car.

18. The first plaintiff did not spend any time looking for Teddy. This is confirmed by CCTV from Mr Luff, a resident in Brock Street. Although not kept by police, it is not in dispute that this CCTV shows the first plaintiff’s car arriving and leaving very soon afterwards. The first plaintiff had left her very ill daughter, who required constant attendance, in her partner’s care and she was keen to get home (Tcpt 58). She said she rang the second plaintiff to tell her that the puppy had run away, but the second plaintiff gave a different time for this call.

19. From the evening of 9 June 2020 onwards, the first defendant’s searches for Teddy appeared not only on her own Facebook pages but on other community and lost dog sites such as “Lost, Found and Missing Pets in Australia” (which had 215,456 followers), the Young Community Facebook page (the page where the second plaintiff, who was a member, had briefly published her post about Teddy) and on the personal Facebook pages of veterinary clinics in the area, as well as on the Facebook pages of many residents of Young. There were posters in shop windows as well. The first defendant commented on 17 June 2020 that “it was nearly impossible for [the plaintiffs] to NOT see all our missing ads” (statement of claim, paragraph 10(b)). The reach of these advertisements after the second defendant’s involvement from 12 June 2020 onwards increased even further due to the large number of followers she had (Tcpt 665 – 666) and the business techniques she used to call for assistance from the public. Her engagement came after Mr and Mrs Gorham came forward on 12 June 2022, and both defendants were calling for these mystery women to come forward.

11. Neither of the plaintiffs contacted either of them to say that they had seen (and, in the case of the second plaintiff, photographed) a dog looking a lot like the missing Teddy. Both say that they saw none of these Facebook posts or advertisements in Lachlan Street windows, despite taking the same walking route twice in the following days.

12. Both the plaintiffs have Facebook accounts and phone records confirm they were using their phones on the evening of 9 June at the same time that the first defendant first posted about Teddy being missing (at about 7:40 PM). The second plaintiff sent the first plaintiff an MMS picture message and a Facebook Messenger post (she says that these have since been unsent), the contents of which have not been discovered or otherwise provided. On 12 June 2020, between 9:00 PM and 9:52 PM, the plaintiffs exchanged 9 SMS messages, the texts of which have similarly not been provided.

13. Wanting to follow up Mr and Mrs Gorham’s information about the two women, the second defendant asked Mr Chmait, the headmaster at a private College, to check its Lachlan Street CCTV. Mr Chmait emailed her regarding the CCTV footage and what it depicted. He confirmed that he could see "2 blonde females walking a dark, small dog at approximately 9:57am in front of the school. I have taken 2 screenshots below. I hope they help. Let me know if there is anything else I can help with." (Exhibit 17, paragraph 61).

14. As is set out in his statement and evidence (Exhibit 9, Tcpt 594), Mr Chmait watched the 9 June 2020 footage showing two women walking with a small dark-coloured dog at 9.57am and took two shots from the CCTV which he forwarded to the second defendant, requesting that identifying features of the school be blurred, and telling the second defendant that on the CCTV footage, it looked as if the dog was on a leash.

15. On 16 June 2020 at about 6:35 pm, the second defendant posted a comment on her 12 June post which added the newly obtained CCTV image of the plaintiffs walking along the street with Teddy. She put up a separate post which contained the CCTV photograph and calling for these women to be named and to come forward:

“Hi everyone! Thank you for your assistance, support and information. Just to be clear – we are NOT accusing these women of theft – we just want to speak with them to assist or they can call local police if they feel more comfortable doing so. A police report is being made in the morning by Teddy’s owners. The owners and us just want Teddy found safe and sound no questions asked and understand that sometimes people find a wandering dog and assume it needs help but in this case Teddy is a VERY loved family pet and needs to go home.”

(Exhibit 17; Tcpt 728)

25. She published the following at 6:38 pm:

“DO YOU KNOW THESE WOMEN??? WE URGENTLY NEED TO SPEAK TO THESE TWO BLONDE HAIRED WOMEN WHO FOUND TEDDY & WERE SEEN WITH HIM NOT FAR FROM HIS HOME. We ask that they please CONTACT US ASAP to assist with our investigation OR ask that they ANONYMOUSLY DROP TEDDY TO A LOCAL VET OR POUND ASAP."

(Exhibit 17)

26. This also appeared on the page operated by the first defendant.

27. At 9:19pm, the first defendant sent the second defendant MMS messages with photographs from a third party’s Facebook in which the first plaintiff was identified. Following further calls, at approximately 11.20pm the second defendant edited the 16 June post to the following:

“"ALERT TO YOUNG COMMUNITY". DO YOU KNOW THESE WOMEN?? WE URGENTLY need to SPEAK with THESE WOMEN. CCTV & WITNESS STATEMENTS suggest these young women walked along LACHLAN ST, Young @ Approx 10 am on 9/06/20 WITH what is believed to be TEDDY and stated they had just found him. We ask they please CONTACT US ASAP to assist with our investigation. (call) 0406 834 001. They are described as youngish with blonde hair. See below for further info on Teddy."

(Exhibit 17)

28. The plaintiffs were using their mobile phones and social media while this was occurring. At 6:50 PM the second plaintiff sent an MMS picture to the first plaintiff. The plaintiffs sent each other further texts, such as an MMS motif at 10:13 PM. These have not been produced to the court.

29. Late in the evening of 16 June 2020, the plaintiffs went to the police station to say that they had seen Teddy in the street and had picked him up, planning to take him to the pound. They told police they had then walked back to Aldi where the first plaintiff “intended to go shopping before contacting the pound” and did not want to leave the dog in her car while she did so. Accordingly, she had driven to a property at “5 Brock Street”, in order “to secure the dog in the rear yard” but Teddy had jumped out as soon as she opened the car door (Court Book 3956 – 7).

30. Notwithstanding the uncertainties of accuracy in relation to what the Police did, there has been no challenge to the Police running sheet (Court Book 3956 – 7) recording what the plaintiffs told the police, which was as follows:

“Both P/N have told police they were walking along Lachlan Street where they had to remove the dog in question from the roadway. They stated the dog run [sic] off before coming back and following them along Lachlan Street. The dog continued to run onto the roadway, so P/N Munro picked the dog up with the intention of taking the dog to the pound. She walked back to her car at Aldi where she intended to go shopping before contacting the pound. A post was put on Young Community page notifying people of the dog being located. Instead of leaving the dog in the vehicle, the P/N Munro drove to 5 Brock Street to secure the dog in the rear yard. As she opened the door the dog jumped out of the car and run [sic] off and P/N Munro was unable to catch the dog. After the dog run [sic] off the P/N Munro has removed the post from the Young Community page as she didn’t have the dog any more. P/N Munro returned to Aldi and completed her shopping.”

[Emphasis added]

31. Several points should be noted. First, the first plaintiff described to police a consistent purpose of taking the dog to the pound. Second, she does not appear to have informed the police that the Young Community post (put up by the second, not the first, plaintiff) was deleted almost immediately. Third, she gives a very different reason for her visit to “5 Brock Street” (acknowledged to be the address of Mr Loader), namely that it was as an alternative to leaving the dog in the vehicle while she did her shopping, and not that it was for the purpose of having Teddy’s chip checked.

32. Who was Mr Loader? Mr Loader was a meat inspector, a dog breeder (King Charles Cavalier dogs and poodles) and ran his own microchipping business, Hilltops Mobile Microchipping. The first plaintiff had helped train him to do microchipping and they had worked together “for years” (Tcpt 361) although they were “not friends” (Tcpt 360). They shared an interest in breeding dogs and is not in dispute that:

1. The first plaintiff had given Mr Loader a female King Charles Cavalier dog (which had not been desexed) in 2018 (Tcpt 416, 426).

2. Mr Loader had four breeding dogs in his yard in June 2020, namely two female Cavalier King Charles Spaniels and two female English Springer Spaniels (Tcpt 427).

3. In June 2020, to inseminate his female breeding dogs, Mr Loader would use different mates from breeders “around town and in Boorowa” (Tcpt 427).

33. (It should be noted, out of sequence, that neither the first plaintiff nor Mr Loader told the police that Teddy had been brought to check his microchip; Mr Loader mentioned it as a possible reason but told police it was quite difficult to check and that Teddy may have required an X-ray to find it (Court Book 3952)).

34. The police suggested the plaintiffs pass their version of events on to the second defendant. At 12:13 AM the first plaintiff sent a Facebook message to the second defendant’s business Facebook page, saying they had been “cleared by the Police of any wrongdoing” and asking her to take down the post “naming and shaming” them containing their names. The full message was as follows:

“In regard to Teddy I have been named as the person who allegedly stole the wandering dog. Myself and Lauren Marchant, who was accompanying me on my walk have attended Young Police station tonight to resolve the complaints made against us and have been advised to contact you directly. We have provided Young Police with information regarding the sighting of the missing dog. Unfortunately we have no knowledge of Teddy’s current whereabouts as he ran away several times, I ask you to remove the post which includes photos and information regarding myself and my profession. I would appreciate it if our privacy could be respected.”

35. This sounds as though the plaintiffs only briefly saw the dog in Lachlan Street. There is no mention of the first plaintiff carrying Teddy for 14 minutes to her parked car, driving him to a work friend’s home or planning to check his microchip. Nor is there any mention of the photograph the second plaintiff took, or the post she put up and then deleted.

36. The second defendant, who had been asleep when this message arrived, had several phone conversations with the plaintiffs on the following morning, 17 June 2020. The first plaintiff told the second defendant to delete the posts identifying the plaintiffs, which the second defendant immediately did, principally because of her assertion of exoneration by the police. The portrayal of Teddy running away several times, in circumstances where the plaintiffs had no control, was clearly drawn.

37. After agreeing to do so and then deleting these posts, the second defendant then rang Mrs Gorham, the woman who had seen the plaintiffs with Teddy. Mrs Gorham described their conduct as “odd” and the second defendant decided to inquire further. She rang the first plaintiff back and coaxed her into a fuller version of events and went on to telephone the second plaintiff and Mr Loader in the same way.

38. The contents of those conversations are contested but the accuracy of the second defendant’s meticulous notes of them have not been the subject of serious challenge.

39. The second defendant has disclosed all her notes, messages and texts, but the plaintiffs have discovered nothing. The phone records produced under subpoena by Telstra confirm that the plaintiffs were in constant contact with each other by phone over this time, exchanging 15 MMS picture messages, 74 SMS and 6 voice calls. The first plaintiff also had four telephone calls with Mr Loader. The texts of these MMS and SMS have not been provided and there is no account given as to what was said in the voice calls.

40. Although the first plaintiff told the court that she was not a prolific phone or social media user, and that she barely knew Mr Loader, these phone records show she was in frequent contact with Mr Loader over the period from 9 – 17 June 2020. They exchanged one SMS message (sent from the First Plaintiff to Mr Loader on 17 June 2020 at 10:46:29am), 32 MMS (RCS) messages, and at least 23 telephone calls for a total duration of more than 4500 seconds (the equivalent of 75 minutes). Again, there was no discovery of the contents of the messages exchanged between the plaintiffs and/or Mr Loader referred to above. It is also relevant to note that the plaintiffs walked over the same route several times in the days following Teddy’s disappearance, as the second plaintiff’s watch data confirms. They would have passed the salon where the first defendant worked, which had a big sign up about Teddy.

41. After seeing the plaintiffs, the attitude of the police towards the defendants changed. The second defendant’s statement (Exhibit 17) sets out that Senior Constable Kentwell had a telephone conversation with the second defendant on 17 June 2020 at 4:00 PM about a “problem” with social media posts, although adding that the police “didn’t have a problem with your post” as it was “similar to police posts” (Document 62 in the Chronology). However, they took a very different attitude to the first defendant, visiting her shop premises late that evening, telling her to stop posting or risk harassment charges (although the question of who would bring these was not explained).

42. It was in those circumstances that the first and second defendants had a disagreement about what would be published in future. The second defendant refused to publish any further material about the plaintiffs and counselled the first defendant not to go to Mr Loader’s home to confront him. The first defendant set up the “Bring Teddy Home” page and published many of the posts in Exhibit A on that Facebook page. On 18 June she went to Mr Loader’s home, despite the second defendant’s attempts to dissuade her from this course.

43. The police had not, however, exonerated the plaintiffs. They went to the first plaintiff’s home on 17 and 18 June and searched the premises, in the belief that there were illicit drugs there. It is not in dispute that this was a police error for which the defendants were not responsible, but it certainly worsened the situation between the parties. (The numerous errors made by police are set out in a separate section below.)

44. Although the second defendant was not prepared to place any further material on Facebook identifying the plaintiffs, she did not cease investigating. The documents produced by police under subpoena reveal that she was in touch with them regularly and that she prepared and sent, on 3 July 2020, a meticulously prepared Brief setting out the relevant legislation, a chronological account of her inquiries and the texts of all conversations she had.

Contemporaneous records and the role of the police

45. This summary of events identifies two problem areas when determining the defences, and, in particular the s 25 defence of justification. The first of these is the availability of contemporaneous documentation and the second of these is the response by NSW police to each of the parties.

Contemporaneous records

46. The difference, in terms of in the parties’ production of corroborative documentation, is stark. The plaintiffs kept no notes or documents and have told the court their phones have been unavailable because they were lost, destroyed and/or replaced. This included failure to discover or produce mobile phone, messenger and social media messages between them (as well as between the first plaintiff and Mr Loader) even though they were in constant contact with each other, as the telephone records and message tracking documents confirm. It also transpired that the second plaintiff had an Apple watch the contents of which confirmed that the plaintiffs took two or more walks in the same area in the days following their encounter with Teddy.

47. In their statements, the plaintiffs were rarely able to provide information from their own recollection about any of the events. The first plaintiff’s statement records only that she “offered to comply with any requests from Police”; she could not remember the names of the officers she spoke to (paragraphs 110 – 114). All that the second plaintiff could recall of their attendance at the Young Police Station on 16 June 2020 was that they told police that “we had been accused of stealing a dog” (Tcpt 202). Both said they could not recall police taking any notes. In cross-examination, questions about matters which should not have been difficult to recall, such as what the first plaintiff had done after Teddy ran away in Brock Street and whether she had spoken to anyone at the time, were responded to by saying she did not recall (Tcpt 374 - 7). Mr Loader was similarly unable to remember the events in question in any detail.

48. By contrast, both defendants have meticulously set out all their documentation. Both gave comprehensive answers in cross-examination demonstrating clear and concise recollections of these events even though four years have passed. There is also extensive contemporaneous documentation, all of which has been carefully retained by them as well as (in the case of the Brief) by the police. The first defendant made a statement to the police on 17 June 2020 (Court Book 3966) and the second defendant’s contemporaneous Brief to the police, prepared and delivered within days of the events in question, records all her inquiries, conversations and documentation.

Approaches to the police by the parties

49. The plaintiffs paint their “early involvement” with police in a light flattering to them, pointing to their voluntary attendance and submitting that, as neither of them was charged, let alone convicted (submissions, paragraphs 107, 109 – 110; see also paragraph 151), any claim for justification must evaporate:

“In this case, there was an early involvement of the NSW police who spoke to the first plaintiff and attended her residence on two occasions. Neither plaintiff has ever been charged with any criminal offence with respect to Teddy let alone convicted.

…

Even if the first plaintiff might have been justified (which is denied) is [sic] claiming substantial truth, the claim would have evaporated before she proceeded with the Name and Shame post which went up at 10:37PM on Wednesday, 17 June 2020.59 By that stage, Ms Wheeler was already told by the second defendant that Dr Munro called and said that her and the second plaintiff had been cleared by the Police of any wrong doing. Even more alarmingly, it was after the Police attended her salon and told her that she herself may be the subject of a harassment charge.

110 Consequently, it is respectfully submitted that the defence with respect to the Name and Shame post fails.”

50. However, they were not the first to contact police and they did not do so until publicly named. Contact with the police was as follows:

1. The first defendant went to the police station on 12 June 2020 (Tcpt 488; Court Book 3956) and was in regular contact with them thereafter. She made a statement on 17 June 2020.

2. The second defendant, who regularly had contact with police for her job, was retained on 12 June 2020 and was in regular contact with police, including sending them a comprehensive brief of evidence on 3 July 2020 which police note receipt of on 6 July 2020 and produced in answer to a subpoena for their documents about their inquiries (Court Book 3942ff).

3. The plaintiffs went to the police very late in the evening on 16 June 2020 after not only their CCTV photographs but their names were published.

51. The plaintiffs did, however, have early contact with their solicitor; concerns notices were sent on 19 June 2020 (paragraphs 15A and 26C of the statement of claim). The police appear to have received copies, as the police records refer to their contents and used this information to tell the first defendant, when she made inquiries, that this was a “civil” matter.

52. There appears to have been little actual investigation and what inquiries were made were wasted opportunities due to police errors. These include disregarding the information from Mr Chmait because police contacted the wrong school (Court Book 3952, 3959), failing to keep CCTV from Mr Loader’s neighbour, Mr Luff (Court Book 3960), carrying out two searches of the first plaintiff’s home because they thought they were looking for illegal drugs rather than illegal dogs, getting into an argument with members of the first defendant’s family and telling them that this was a “civil” defamation claim for $100,000 and not a police matter (Court Book 3953), problems ascertaining Teddy’s microchip records (Court Book 3950) and failing to follow up any of the information provided by the second defendant (Exhibit 17; Court Book 3942 ff, 3950 ff). The police repeatedly refer to their investigation as not really being a criminal one, as this was a “civil” matter, even though the second defendant had drawn their attention to the inconsistencies between the plaintiffs’ conduct and their obligations when finding a lost dog.

53. There was limited cross examination of either plaintiff about what they told the police and accounts of what the police said to the plaintiffs were challenged as hearsay (see for example Tcpt 14-15, 105-107). However, the parties consented to the police COPS and running sheets going into evidence, even though the issue of their admissibility was raised by the court (Tcpt 184 – 5), so I propose to regard the material produced under subpoena by police as having some degree of credence.

51. One finding that I do propose to make is that the police records confirm that there was some kind of investigation going on, for at least several weeks or months, into the circumstances of Teddy’s disappearance. In those circumstances, I do not accept the plaintiffs’ statement to the second defendant on 16 June 2020, repeated in their submissions, that they had been “cleared” by the police that very evening, as being an accurate statement. The first defendant had yet to give a statement, the second defendant was still making inquiries, police had not interviewed the other witnesses and the circumstances in which the plaintiffs had held back until identified by others was one which warranted more than peremptory dismissal. At the time that the police decided to take no further action and close the investigation, they do not appear to have notified anyone except the first defendant.

52. By the time that the investigation was closed, nothing had been heard from the plaintiffs, either in relation to the police or to the defendants, for some months. There matters remained until 11 June 2021, days before the expiry of the limitation period, when these proceedings for defamation were commenced.

The parties’ identification of factual issues in dispute

56. The evidence which is in dispute is narrow in focus. The questions are whether the first plaintiff took Teddy to Mr Loader’s home for her stated reason or was in fact stealing (or attempting to steal) him, and the second plaintiff’s role (if any) in this, including whether she withdrew her message and photograph of 9 June for her stated reason or some other reason.

57. As well as the extent of publication (this being a question of contention throughout these proceedings), the issues of what imputations were conveyed, and by which part of any asserted matter complained of, are the next complication. The imputations are not simply an allegation of dog stealing. Unfortunately for the plaintiffs, unlike the applicant in Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369, who wisely limited the imputations he pleaded to specific charges of rape, the pleader in these proceedings has also pleaded a series of broad general imputations of lying, untrustworthiness, causing distress to children and being dishonest, none of which have as a prerequisite that the plaintiffs actually stole, or attempted to steal, Teddy. Their failure to hand over Teddy promptly and appropriately, or to provide vital information about his whereabouts, and their unsatisfactory explanations for their conduct are matters that could go to the truth of one or more of these imputations which, as Mr Larkin SC noted several times, was relevant to the defendants’ pleaded case of mitigation.

58. Credit is an issue of great significance to the facts in dispute. The defendants have provided comprehensive discovery including a brief the second defendant provided to police in July 2020 containing all evidence in her possession. The defendants submit that the plaintiffs’ failure to comply with court orders (particularly in relation to discovery) on 16 occasions since this matter was set down for trial, their withholding/destruction of 105 SMS and 12 MMS messages between the period 9 – 17 June 2020 and their asserted destruction or disposal of mobile phones (Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264) mean that their evidence should not be accepted.

59. The plaintiffs say that they have given honest evidence and that there is “no evidence” (submissions, paragraphs 89 and 150) that they withheld any material or played any role in the stealing of Teddy.

The issues of law in these proceedings

60. Shortly before the hearing commenced in February 2024, the parties provided an outline of the issues asserted to arise. Mr Lazinski identified the “legal and factual issues to be determined by the Court” for liability as being identification, whether the matters “are defamatory”, whether each defendant is liable for the publication of third-party comments in their respective publications “acting reasonably”, whether the plaintiffs have suffered any damage and if so, what quantum and whether each of the defences pleaded was made out.

61. This list also included a claim of malice in relation to the defence of honest opinion under s 31 of the Act (at paragraphs 38 – 39). I indicated, in the course of ruling on these documents, that, as there was no particularisation of malice in relation to the defences of statutory and common law qualified privilege, honest opinion and fair comment at common law (pleaded by the first defendant), all references to malice would be struck out. Mr Lazinski conceded in final submissions that his clients cannot lead evidence of malice against the second defendant but submits that the reckless publications made by the first defendant are sufficient to permit such a claim to be made despite the absence of a pleading to this effect.

62. The first defendant, who is self-represented, did not provide the court with a statement of issues. The second defendant’s list of issues, prepared by Mr O’Callaghan (the second defendant’s solicitor), correctly identified many of the problem areas set out below but, by the time it was provided, it was too late for the plaintiffs to correct these.

Problem areas in the pleadings and submissions

63. Where pleading problems arise about issues as fundamental as what the matter complained of is and what the imputations are, there are two ways forward: the aggrieved party can seek case management assistance before the hearing occurs or leave the problems to the hearing as part of the “docket” system.

64. As I noted in Munro v Wheeler (No 2) [2024] NSWDC 492 at [14], the experienced solicitors and barristers who previously appeared for the defendants chose the latter course. They forewarned the plaintiffs of their significant errors in relation to the pleading of publication and the defences but took no action to strike out any portion of the pleading.

65. Leaving such issues to the trial is a practice endorsed by the Federal Court of Australia in defamation case management, where the entertaining of interlocutory applications by judges has been described as “meretricious” (Adeang v The Australian Broadcasting Corporation (No 2) [2016] FCA 1599; Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152 at [26]; Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726; (2023) 169 ACSR 583). This has not always been the Federal Court’s view (White v Overland [2001] FCA 1333 at [4]) but the modern practice of leaving everything to the trial (including amendments to the defence: Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98 at [50] – [90]) is not only a feature of Federal Court defamation actions but a practice now increasingly used in other courts, such as this court, as well, as Poland v Fairfax Digital Australia & New Zealand Pty Ltd [2023] WASC 383, where the plaintiff had similar problems, demonstrates.

66. The pleading and evidentiary problems that consequently had to be dealt with at trial were as follows:

1. Determining what constituted the matters complained of (Exhibits A and B): The 110 pages attached to the statement of claim as constituting the two matters complained of are not documents that anyone ever published on Facebook, but a collection of hundreds of screen shots, out of chronological order and consisting of multiple copies. The three witnesses called to say they had downloaded the matters complained of had a much thinner version (only 43 pages), which was different. An even slimmer version of the matters complained of was provided as part of the plaintiffs’ submissions.

2. The imputations: The plaintiffs’ submissions (paragraphs 71 – 81) do not address the pleaded imputations individually in the context of the matter complained of, stating instead that “the broad impression of the “Name and Shame” post is that they, the plaintiffs, stole Teddy [emphasis in the original text]”, followed by claims that proof that “such defamatory meaning was conveyed” can be obtained from “the way that the plaintiffs were cross-examined” (submissions, paragraph 91). This conflates meaning with the defences. A number of the imputations (such as that the plaintiffs were liars and untrustworthy) do not require proof of dog-stealing at all.

3. No plea of malice in the Reply: Although a Reply was filed, it failed to refer at all to malice in relation to the defences of statutory and common law qualified privilege, honest opinion or common law fair comment. Despite this, the plaintiffs’ submissions point to malice by the first defendant (paragraphs 113 – 121) and second defendant (paragraph 155), but in relation to qualified privilege only. Mr Lazinski acknowledges the plaintiffs cannot claim malice in relation to the second defendant but submits that the recklessness in publishing by the first defendant should be a matter he can rely on in relation to defences in which malice is an element. No draft particulars of malice have been provided.

4. Liability for publication should be restricted to the party against whom the claim is brought: The plaintiffs at times appeared to conduct these proceedings as if the claim for damages for both defendants was brought against both of them (Tcpt 455 – 456, 462), and as if the content of both publications (which are pleaded to give rise to the same imputations) is the same. They are not.

5. Defences: There was confusion about what defences were pleaded and what facts related to each defence:

1. As to statutory qualified privilege, both defendants refer in their submissions to s 30(3) but the plaintiffs’ submissions do not refer to s 30(3), perhaps because of uncertainty as to which checklist applies (the answer is the checklist for s 30 for publications prior to 1 July 2021).

2. The common law and statutory opinion defences have been conflated by the plaintiffs in their submissions concerning the first defendant’s defences.

3. Proof in relation to justification issues has not been determined with regard to the imputations pleaded.

4. Although the plaintiffs have made submissions on the defence of innocent dissemination in relation to the first defendant, the first defendant has not in fact pleaded this defence, as is pointed out in the first defendant’s submissions in reply (paragraph 102).

6. Discovery issues: There have been discovery problems since the trial commenced: Munro v Wheeler (No 2). The defendants rely upon the asserted absence of hundreds of social media posts, SMS, MMS and other electronic records on credit issues. The plaintiffs have replied to this only in the briefest fashion by stating that there is “no evidence” (submissions, paragraphs 89 and 150) of the withholding of any such documentation.

7. Evidentiary issues: The self-represented defendant had difficulties in relation to compliance with the rule in Browne v Dunn (1894) 6 R 67. I granted leave to Mr O’Callaghan (who had appeared for the second defendant, his wife, for the first three days of the hearing) for further cross-examination of both plaintiffs, but Browne v Dunn issues of significance remain, such as whether it was put to both plaintiffs that Teddy in the CCTV is seen wearing a leash.

8. Technology: Although complex technological issues have been raised and thousands of pages of computer and phone records tendered, no expert evidence has been called, despite Mr Larkin SC foreshadowing that this may be necessary. I have had little guidance from the parties as to how to incorporate evidence from these records into the facts, so I have taken the same approach as that taken in Howe v Zuchowski [2024] VSCA 56 at [162]ff.

9. Damages: The orders sought in the statement of claim show the plaintiffs seek an award of $250,000 to be paid to them jointly, as against both defendants jointly, even though they have been sued separately. This is contrary to the legislation as well as to the court’s approach to damages generally.

10. Mitigation: I drew the parties’ attention, during submissions, to the need for submissions on mitigation (Tcpt 818, 827) and to address these submissions to the imputations. I have not received further submissions from either of them.

11. Injunctive relief: I drew the plaintiffs’ attention to the need to set out whether injunctive relief was still sought (Tcpt 794) but, as Mr Larkin SC pointed out after the final round of submissions was made, these have not been provided.

67. The problems arising in this litigation as a result is a reminder that defamation actions are complex, and that misunderstandings of legal issues are more than usually easy to make, for judges as well as for parties, as occurred in the judgment appealed from in Howe v Zuchowski at [223, n.140], where the first instance judge applied the wrong s 30.

68. David Hunt J (as his Excellency then was), in an essay of advice provided to practitioners (reproduced in “Aspects of the Law of Defamation in New South Wales” (J C Gibson (ed.), Law Society of New South Wales, 1990 at p. 8) gave the following warning:

“Another piece of advice that should be given is that commencing a defamation action is like taking a tiger by the tail - it is very difficult to let go without serious injury. Above all, an action should never be commenced without a genuine intention of taking it to trial in the absence of a satisfactory offer of settlement from the defendant: cf Packer v Meagher [1984] 3 NSWLR 486.”

69. “Take a tiger by the tail” (W. Scarborough 'Collection of Chinese Proverbs',1875, no. 2082: “He who rides a tiger is afraid to dismount”) is a saying that has since passed into defamation folklore, but is still occasionally cited as a warning to those who overlook the legal difficulties and astonishing expense of defamation litigation. (More recently, in Lehrmann v Network Ten Pty Limited at [1091], Lee J cited the Somali proverb that a person who has escaped the lion’s den should not go back for his hat.) The message from these analogies is that parties in defamation actions should expect complexity and risk, because this is the price of a cause of action which effectively explores the tension between freedom of speech and protection of reputation.

70. The recital of these problems is not intended as a criticism of the counsel in this case, both of whom came into these proceedings very late (in Mr Larkin SC’s case, on Day 4 of the hearing), in circumstances where white-hot hostility between the parties and their legal representatives (Court Book 3899 ff) has been aggravated by serious health problems on both sides. Given the identity of the parties and the subject matter, this was always going to be a legally complex case.

71. Regardless of how these problems came about, the combined impact of these problems requires the court not merely to note them, but to make every effort to achieve as just and final a result as is possible between the parties. The first, and most difficult, of these issues is whether the matter complained of existed in the form tendered, whether it can (and should) be construed from the contents of other documents or the evidence, and whether the matters complained of were each downloaded in whole (as opposed to in part) by any third party.

The form of the matter complained of

72. A reasonably precise identification of the matter complained of, particularly where both the fluid medium of technology and the informality of social media publications have to be taken into account, is an essential prerequisite to any defamation action. This is for the following reasons:

1. Defamatory meaning: The ordinary reasonable reader is taken to have read the whole of the matter complained of: Hayson v Nationwide News Pty Ltd [2019] FCA 81 at [9].

2. Defences: The importance of establishing precisely what was said is that the defences to be pleaded may be stronger (or weaker) as a result. The plaintiff must not only identify the publication but also its extent, and failure to do so may result in the loss of the claim entirely: Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192.

3. Calculation of damages: The seriousness of the imputations, the extent of publication and the response of those witnesses who read or saw a publication are vital to the assessment of damages.

73. It is not necessary for a plaintiff to sue for every single word said. Very often a claim is made for further publications in a general pleading, as going to an assessment of damages only. Additionally, an allowance in the quantification of damages is given to such publications in any event, on the basis that the “lurking place” (Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 at 1125) of future defamations, like the ripples in a pool, are not necessarily ascertainable at the time of trial.

74. However, while it is not necessary to sue for every part of a publication, or every single publication, attempts must be made to recreate as accurately as possible what was said or written.

Could anyone have published the matter complained of?

75. The form and contents of both matters complained of have been the subject of controversy since the hearing commenced:

“O'CALLAGHAN: The other housekeeping matters are matters of quite serious procedural fairness, frankly. Just as we've walked into court this morning, my friend has indicated that there's going to be the possibility of changing the nature of the comments that are within attachment B. Attachment B has been a work of fiction from the outset. This has been raised with the plaintiffs. They have had a very detailed annotated copy of attachment B—

HER HONOUR: Didn't I require that exhibit B be served in one of my previous orders? That's the second matter complained of?

O'CALLAGHAN: So there was an order in relation to the plaintiffs providing particulars of downloading of attachment B. Those were provided on Wednesday last week, however, the material that's in that set of particulars is a different form to what is in attachment B. We've now been handed just this morning some material that then would seek to alter this course yet again. The second defendant - and I do understand, and I'll let the first defendant speak on this, but I understand that she has been presented with a similar issue with respect to the material that is being put to her. It is just quite astounding.

HER HONOUR: I hear what you say but I thought when you raised this with me basically when it was first before the Court that there was some uncertainty about the form of the second matter complained of, and I seem to recall that I made a direction for this to be served in some kind of final form so that we knew where we were going. I'm just looking for that order.

O'CALLAGHAN: Yes, so there was an issue around the second defendant had never been served with sealed copies of the amended statement of claim, including attachment B.

HER HONOUR: That's right, and I actually gave it to you in court so that that would—

O'CALLAGHAN: You served it to me, yes. That copy that was on the Court's file was only approximately 25 pages, thereabouts. The copy that was stamped and filed in Court is only the amended statement of claim, not attachment B.”

(Tcpt 2 – 3)

76. Mr O’Callaghan, on behalf of the second defendant, gave the following helpful summary of the second matter complained of, thereby identifying the chief problems:

“O'CALLAGHAN: No, but the matter complained of, what is in attachment B is a combination of posts that were made on 12 June and comments there, posts that were made on 16 June and comments there, and posts that were made on 17 June and comments there, and in the pleadings the plaintiffs' point all of these posts to the URL for 12 June post. It's a complete confusion. I think that it's going to be impossible for there to be any evidence that someone had somehow jumped around and also too it is not an entire copy of the comments that were sitting on any of those posts. Very relevantly, there is a comment from my client in very explicit words saying, "We are not accusing these women of anything." Conveniently, the plaintiffs do not include that comment.”

77. The contents of the matters complained of were in doubt from the first. At the commencement of the trial, Mr Lazinski sought to tender two PDF documents which he said were the two matters complained of (Tcpt 8). It transpired that these documents differed from the matters complained of as set out in the annexures to the original and amended statements of claim, and the tender was withdrawn (they are marked as MFI 5). The matters complained of were accordingly re-tendered as being the two documents (70 and 40 pages respectively) attached to the statement of claim, in place of the PDFs previously proffered by Mr Lazinski (see Tcpt 461 ff, referring to the tender of the matters complained of at Tcpt 8, and Tcpt 465). After further discussion (Tcpt 474), the hearing proceeded to finality on the basis that the matters complained of were the schedules to the statement of claim which are now Exhibits A and B, in place of the PDF documents previously sent to the court by Mr Lazinski.

78. A sample of the unsatisfactory nature of these cumbersome and repetitious documents is set out on paragraph 29 of Mr Larkin SC’s submissions:

1. Neither Exhibit A nor Exhibit B is in fact a computer-generated document or otherwise representative of what appeared on the Facebook pages identified as the source for these posts. Each of them is a series of screenshots which have been compiled by an unknown person for unknown reasons and on unknown criteria, which raise evidentiary issues of some nicety (Legge v Universal Hospitality Group Pty Limited (No 2) [2020] NSWSC 1411 at [59] – [62]). The matters complained of were publications on Facebook, not screenshots, and it should be possible to demonstrate that there was, somewhere on Facebook, a publication which in some way resembled at least part of these documents. No such material has been tendered. Although there are URLS contained in the statement of claim for each of the matters complained of, the inference being that each of them is equated with the material appearing at the hyperlink in question, this is not the case.

2. There are no dates and, from their contents, it is clear that the posts are out of date order. Although there are references to “Wednesday at 10:37 pm” and the like, I was not able to locate dates which form part of the matter complained of, as opposed to the time of day and day on which these records were captured by the screenshot.

3. There is considerable duplication. For example, the first 10 pages of the first matter complained of contain the same post, although the screenshots appear to have been taken at different times. As to the second matter complained of, Mr Larkin SC draws my attention to duplication of pages 29 and 30, 20 and 35 and 21 and 39.

4. Some of the material is illegible by reason of being in very small print, blue ink that has faded and being an end result of multiple photocopying. Examples include pages 11, 13, 14 and 53 of the first matter complained of. Many cut off in mid-sentence.

5. There are significant omissions of relevant posts, such as the post referred to by Mr O’Callaghan at Tcpt 3, details of which are set out in more detail below.

6. Some of the material appearing in the matters complained of would not have been published as a post at all. Pages 3 to 7 of the second matter complained of appear to be the “edit history” for a post made by the second defendant on 17 June 2020. The “edit history” shows how she amended the text but this would not be material that would be read as part of the matter complained of unless the reader went into the edit history itself, for the purpose of viewing all versions of the post contained in the edit history.

7. The witnesses who were called to say they read the matters complained of did not refer to the matters complained of tendered as Exhibits A and B in these proceedings. Instead, a much shorter copy (43 pages) of what was asserted to be the matters complained of was shown to the witnesses Corinne Rolls, Patricia Healey and Sharon Bruce. That document is demonstrably different to either of the matters complained of. Mr Larkin SC points out that four of the pages that they were shown do not appear in the second matter complained of despite these containing significant “antidote” to the bane. For example, the comment the second defendant left on the 12 June post at 6:35 PM on 16 June 2020, concurrently with posting a separate comment with CCTV images, was of particular importance.

79. The first defendant made similar points in her submissions:

1. The first defendant explains that the purpose of this rearrangement of posts is to make it appear that “all comments in the FMCO from the Bring Teddy Home page are in response to a version of a Name and Shame post which included the plaintiff’s name and CCTV footage” (paragraph 38(d)(xv) of the first defendant’s submissions). She draws attention to the difference in timestamps for these posts which show that the portrayal of these posts as all being in some way connected to the “Name and Shame” post must be wrong.

2. This rearrangement is further complicated (at pp 15 to 16 of her submissions and in paragraphs 35 – 41) by the mistaken inclusion of posts that were not on her website at all. At least 17 pages show posts and comments made on Facebook groups that are not on sites controlled or moderated by the first defendant, and certainly not to the two Facebook pages she maintained.

3. Some of the posts she is asserted to have made, such as those in paragraphs 10(a) and 10(b) of the statement of claim, are not included in the first matter complained of.

4. There are different Facebook users, different devices being used, different dates for the same post in multiple copies, unrelated Facebook pages and Facebook groups, some of which are unascertainable (see pages 13, 46 and 65). Comments that were later edited, in response to posts on other organisation pages such as the Young New South Wales Community Group, are included. There are even comments that appear on some pages of the series of screenshots but not on others, because they have been deleted (the first defendant particularly draws my attention to pages 19 and 39). Finally, there are duplicate comments on many of the pages (see pages 11 to 12).

80. The next difficulty was that the witnesses who gave evidence of reading the matter complained of had read different material entirely.

Two further versions of the matters complained of

81. No one was called to say that they read Exhibits A and B. Instead, two further versions of the matters complained of were put before the court:

1. A 43-page bundle of screen shots which is attached to the statements of each of the three witnesses called to establish publication to a third party. These three witnesses gave evidence of downloading the matters complained of, attaching what they said they had read.

2. A further, and new, version of both matters complained of (headed “Annexure A”) which is attached to Mr Lazinski’s submissions of 19 November 2024. Under the heading “Against the first defendant” there is one post of nearly 4 pages from her “Personal Facebook Page”, and one of 5 pages from the “Bring Teddy Home” Facebook page, both of which name the plaintiffs. There is one post of just over 5 pages from the Arthur & Co Pet Concierge page which shows the photographs but do not name the plaintiffs; the ensuing comments include a post from the first defendant identifying the first (but not the second) plaintiff. All posts contain third party comments asserted to have been generated by the defendants’ posts. The defendants’ submissions (paragraphs 5 – 15) challenge the plaintiffs’ entitlement to redraft the matter complained of after the evidence has closed and noting that it is inconsistent with other submissions referring to the whole of Exhibits A and B (submissions, page 2, fn 1). The provenance of this document is unknown; the defendants point out that there is no evidence these comments were made in reply to the post and the evidence points to the final two pages of “Annexure A” being comments made on the 12 June post because of the time and date stamps.

82. The first amended version of the matters complained of is the 43 pages of attachments to statements from witnesses who said they downloaded the matters complained of.

The 43-page document attached to witness statements

83. Each of these witnesses’ identical extracts is 43 pages long. It consists of extracts from the first defendant’s “Bring Teddy Home” page (34 pages) and the second defendant’s “Arthur & Co Pet Concierge” (9 pages), but nothing from the first defendant’s Shannie Wheeler Facebook page. Excluding multiple copies, Exhibit A in this truncated form consists of only 66 entries, of which 14 are from the first defendant. Exhibit B consists of 9 pages, which include 4 entries from the second defendant and one from the first defendant.

84. Each extract thus differs from both Exhibit A (the first defendant’s two social media accounts, “Bring Teddy Home” and “Shannie Wheeler”) and Exhibit B (the second defendant’s “Arthur & Co Pet Concierge” page) in terms of source, content and length. These differences include the percentage of commentary from each of the defendants and the result is a carefully curated selection of extracts which the witnesses claim they consulted repeatedly for weeks or months.

85. The 9 pages of posts from the “Arthur & Co Pet Concierge” page include material not forming part of Exhibit B and, in particular, photographs from the CCTV footage which, it is now acknowledged, were hidden or removed from the Arthur & Co Pet Concierge Facebook page after the request by the first plaintiff to the second defendant for their removal from the site. These posts were not included in the matter complained of in either the original statement of claim or in the amended version. No formal application for leave to amend was, however, made.

86. None of the competing versions of the matters complained of identified the portions of the text from which it is asserted that each of the imputations arose. Mr Larkin SC submitted that this was contrary to the provisions of Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 15.19(2) and that the failure of the plaintiffs to provide a typescript with numbered lines as well as the text of the matters complained of should be fatal to the issue of publication. I note, however, that UCPR r 15.19(3) states that this subrule must be complied with “in respect of radio and television publications” but does not refer to any such requirement for what are described as “email or other computer displayed publication” (UCPR r 15.19(2)(a)). In those circumstances, it is hard to see how the plaintiffs can be criticised for not providing copies of the matters complained of in this form.

87. These differing versions of the matter complained of create difficulties for the plaintiffs in establishing that publication of at least one of them has occurred. What must be stressed from the outset is that these are evidence problems, and do not arise from any challenge to basic principles for liability for publication in defamation, namely that such liability remains both broad and strict despite (or in fact because of) technological innovation resulting in publications of the kind sued upon in this litigation. The defendants accept that, where publications are made by third parties on an internet page or site, liability may arise (Fairfax Media Publications Pty Ltd v Voller (2021) 273 CLR 346; [2021] HCA 27 (“Voller”) at 357 (CLR) per Kiefel CJ, Keane and Gleeson JJ; Google LLC v Defteros (2022) 277 CLR 358 ; (2022) 403 ALR 434; [2022] HCA 27 at 442 (ALR) per Kiefel CJ and Gleeson J, at 468 per Gordon J). The basis of the defendants’ challenge to publication is that, as occurred in The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1, each of the plaintiffs has failed to demonstrate that any person ever read the matter complained of (including each other: Trantum v McDowell [2007] NSWCA 138 at [7] and [45] – [53]). Nor is there any evidence that even the three witnesses called to give downloading evidence had read the equally artificially constructed 43-page screenshot extract attached to each of their statements.

88. Mr Larkin SC adds, in his submissions in reply, that no one could have read what appears to be the latest version of the matter complained of, namely the even slimmer document attached to Mr Lazinski’s submissions. He has also objected to any consideration of capacity of the imputations being determined in relation to any of these different versions, submitting that it is too late now for the plaintiffs to be including in their submissions a completely new matter complained of, with the passages asserted to give rise to the imputations marked on it.

89. Given the significant differences in structure and content of social media and its structure (which is closer to spoken rather than written publication), it is surprising that disputes about the content of the matter complained of are not more common. The problem of establishing just what was said has always been a feature of slander cases, as Warby J noted in Umeyor v Ibe [2016] EWHC 862 (QB) at [1], for reasons not dissimilar to the nature of social media publication, such as what the exact words were, and in what order they were published. This difference has been referred to in English decisions as “fatal variance” (Gatley on Libel and Slander (12th ed, 2013, Sweet & Maxwell, [32.15])). While the applicability of this concept in Australia was rejected in Brien v Mrad [2020] NSWCA 259 at [24], the position is still that, where a plaintiff sues on a publication that is materially different to the matter complained of, the claim may be struck out on that basis alone.

90. Whether described as “fatal” or “material”, the “difference” between the document asserted to have been published and the document which was published needs to be significant. A recent example of differences between two publications failing to amount to being a different publication occurred in Surie v MacDonald [2024] QCA 254. These differences were that the matter complained of was described as being a “letter” in red ink when it was in fact an email in red ink, and some formatting and minor text changes. The defendants sought to argue that these differences meant that the document sued on (as opposed to that referred to in the Concerns Notice) was an entirely different document, for which an extension of time and a fresh concerns notice were required.

91. Brown JA, with whom Mullins P and Crowley J concurred, regarded the acknowledged changes as minor, noting that the imputations remained the same, and the appeal was dismissed. At least the Court of Appeal had two documents which were capable of comparison. In the present case, I have so many different versions of the matter complained of that it is hard to know where to start.

92. The defendants submit that failure to provide a matter complained of which accurately sets out what was said (and evidence that this publication was then downloaded by a third party) should mean that publication cannot be established if other statements materially altering or qualifying what was said are not included.

93. The defendants’ argument needs to be considered in light of the Court of Appeal’s rejection of “fatal variance” as well as the relatively generous approach that courts have taken in relation to proof of the text of the publication. In Feo v Pioneer Concrete (Vic) Pty Ltd [1999] VSCA 180, the Court was content to refer to the “gist” of what was said, although the differences in question (where the imputations were of corrupt conduct) appear to have been minor at best. (See also Coles Supermarkets Australia Pty Ltd v Clarke [2013] NSWCA 272 at [89], citing Tournier v National Provincial and Union Bank of England [1924] 1 KB 461). However, where there is demonstrable difference between what is pleaded and what is proved, in terms of both pleading and downloading, this becomes a significant hurdle for the party pleading the publication not only occurred online but was downloaded.

94. The onus lies on the plaintiff to establish that the matter complained of accurately represents was said on social media. This can be difficult, for a number of reasons. First, the availability of publication-limiting devices such as the hiding or removal of a text may mean that reconstruction is difficult, especially where the fast-moving nature of publication changes the order of publications or in other ways starts to differ from the version initially seen. Second, the sheer vastness of the material makes selection of the text to be pleaded difficult, especially where technology-challenged complainants have not kept a proper electronic copy of the publication.

95. The requirement for a plaintiff to establish that the matter complained of has been read by a third party is just as important in relation to internet and social media publications as it is in relation to books, television broadcasts and even non-verbal publications such as Monson v Tussauds Ltd [1894] 1 QB 671 (in fact, it is even more important, in that the nature of internet publication requires proof of downloading by a reader, whereas readership of a newspaper or a book requires no such proof).

96. Before the internet, print publications could be the subject of applications to “strike out” or “strike in” material asserted to impact the meanings pleaded. In Hayson v Nationwide News Pty Ltd [9], Bromwich J explained how courts determined the parameters of pre-internet publications:

“There was little dispute as to the relevant principles, as outlined in the competing submissions. The issue is as to their application. Those principles may be stated in short form as follows:

(1) There is a cause of action for each publication of “defamatory matter”, “matter” being defined as including “an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical”: see ss 4(a) and 8, Defamation Act 2005 (NSW). A single published article is therefore usually to be considered as a separate matter unless there is a sufficient reason to treat it in some other way relative to other published material.

(2) An allegation of a defamatory meaning, especially when there is a question as to whether an imputation in one part is negated by reference to what appears in another part, must be determined by reference to the matter that has been published, considered as a whole: Morosi v Broadcasting Station 2GB Pty Ltd, unreported, New South Wales Court of Appeal, Samuels JA, 28 September 1978, but published in the manner of a report as an Editor’s endnote to Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 per Hunt J, at 418 to 421, relevantly at the bottom of 419.

(3) The requirement to read a matter that has been published as a whole means that an allegation of defamation cannot be pleaded in a way that denies its overall meaning. Thus, the pleading must include “every passage which materially alters or qualifies the complexion of the imputation complained of”: Gordon at 413[6], endorsed in Australian Broadcasting Corporation v Obeid [2006] NSWCA 231; 66 NSWLR 605 at [26(a)]. The pleading must place the parts relied upon in their full context if that context is capable of materially affecting the imputations relied upon: Obeid at [26(e)-(f)].

(4) Beyond the requirement to plead a matter complained of contextually, an allegation of defamation may be cast as a matter of forensic choice (and, it may be said, risk: see Obeid at [4]). As Simpson J pointed out in Phelps v Nationwide News Pty Ltd [2001] NSWSC 130 at [22] (quoted and effectively applied in Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 at [54]-[56], and endorsed more recently by McCallum J in Gav v Ryde Ex Services Memorial and Community Club Ltd [2018] NSWSC 621 at [7]):

“Individual circumstances will dictate whether a particular pleading will be permitted to stand. However, it is to be borne in mind that, subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen, it is generally for the plaintiff to select the manner in which he/she/it wishes to present a case. It is only if the plaintiff’s selection of the mode of pleading is untenable for one of those reasons that it will be struck out. By this I mean that where, for example, a plaintiff elects to proceed as though a number of individual parts of the matter complained of together amount to a composite publication, it is only if that approach is not reasonably open, or creates unfairness of such a degree as to constitute an abuse of process, that the pleading will be struck out. Similarly, where the plaintiff elects to proceed as though each were a separate publication, it is only where that view is not reasonably open (or where unfairness amounting to abuse of process would result) that that pleading will be struck out. Within those boundaries, a plaintiff is entitled to mark out the playing field.”

422. Another complicating factor is, of course, that the plaintiffs’ failure to particularise malice relates to this defence. I have rejected the plaintiffs’ belated attempt to particularise malice by the first defendant and I propose to deal similarly with the plaintiffs’ failure to address the elements of the common law fair comment defence. Accordingly, I find that the first defendant’s defence of fair comment succeeds in relation to both publications.

Innocent dissemination

429. Pursuant to s 32 of the Act, the second defendant (but not the first defendant: submissions, paragraph 126 ff) pleads that she published the third party comments in the matter complained of merely in the capacity of a subordinate distributor and neither knew, nor reasonably ought to have known, that the third-party comments were defamatory of the plaintiffs. Such lack of knowledge is thus asserted not to be due to any negligence on her part.

430. Nothing could be clearer, on the facts of this case, than that the second defendant had access to the comments and was aware of what was being said. The second defendant told the court that she did not, at the time, know how to remove these comments, but ignorance is no excuse, particularly where a social media page is used for business purposes. There is no evidence before me, expert or otherwise, to the effect that removal of third party posts is difficult. There are, in fact, descriptions of how easily such posts can be removed in the appeal judgment in Howe v Zuchowski at [162] – [165]; see also Prouten v Buxton [2024] NSWDC 182 at [53] – [70]) and Selkirk v Wyatt (2024) 302 FCR 541; [2024] FCAFC 48 (in each of these cases, the court was able to deal with this evidence without the benefit of expert evidence). The defamatory nature of the posts was, moreover, self-evident.

431. For the above reasons, and noting again that the first defendant did not plead it, the second defendant has failed to make out this defence.

Schedule 5 cl 91 of the Broadcasting Services Act 1992 (Cth)

432. Each of the defendants relies upon these provisions to submit that she was an internet content host in relation to the third-party comments comprised in the matters complained of. Each defendant claims she was not aware of the nature of the content of the third-party comments comprised in the matter complained of, and thus no cause of action is maintainable in relation to publication of the third-party comments therein, by reason of Schedule 5, cl 91(1)(a)-(b) of the Broadcasting Services Act 1992 (Cth).

433. The defendants submit that they were not aware of the nature of the comments in that despite statements to the contrary neither was actively monitoring the comments. Further, the nature of the inquiries was such that each of the defendants was obliged to receive and process contributions to the debate in case they contained information of relevance to the inquiry. In addition, the sheer magnitude of the number of comments made the vetting process onerous in the extreme. Each defendant submits that they have met the evidential onus to prove that each of them was unaware of the nature of the comments.

434. These submissions are wholly inconsistent with the facts of the case. Each of the defendants was clearly keeping a close eye on the posts in case they contained new information. Those posts which accused the plaintiffs of stealing Teddy did not offer any new information; invariably, they consisted of this allegation and nothing more. The quantity of the responses was not such as to render either defendant unaware of the nature of the comments.

435. In Zuchowski v Howe, the defendant submitted that he was the “subordinate distributor” and not the first or primary distributor of the comments to the ten publications sued on. The plaintiff, relying on the first instance judgment of Rothman J in Voller v Nationwide News Pty Ltd [2019] NSWSC 766 at [105], [106], [205], [208], [214], [225] and [228], submitted that the defendant was in fact the first or primary distributor, for the following reasons:

1. On a Facebook Page, publication of a comment occurs when the reader comprehends it, which occurs after the publisher makes the comment available and a third party has it available for his or her comprehension. The author of the comment publishes it and the media company renders it relevantly public.

2. A public Facebook page is unique, for its administrator can forbid all comments by others or, through the use of a list of prohibited words (including, for example, all pronouns and definite and indefinite articles), he or she could hide all comments before monitoring them.

3. The comment is published when the author places it on a public Facebook page. It is in a “comprehensible form” from which a reader can download it onto his or her computer.

4. To the general reader of a public Facebook page, apart from the administrator and a Facebook friend of the commentator, in Voller’s case, the defendant media company was the first and only publisher of the comment.

436. Lauritsen J accepted these submissions, and his Honour’s reasoning demonstrates that the broad test applicable does not relate only to media defendants but also to private individuals such as a volunteer administrator of a public Facebook page. The facts here are very similar; the first defendant was not merely paying close attention to these posts for her own personal reasons but was paying the second defendant to make inquiries, inquiries that required her to read the posts.

437. On appeal, the Court did not endorse Lauritsen J’s finding that the defendant must establish that he or she did not have qualitative awareness of the comment but nevertheless held that the defendant had failed to establish that he was not aware of the nature of the content being hosted, a finding open to me to make in these proceedings, given the close attention both defendants were paying to the information coming to them through their Facebook pages.

438. Mr Larkin SC submitted that I should not follow or apply Zuchowski v Howe as it is bad in law and had, by inference, been treated as such on appeal.

439. I do not propose to do so. Apart from the principles of both precedent and comity, correctly set out by Lauritsen J at [250] – [257], the Court of Appeal, when determining the grounds of appeal from his Honour’s judgment, dismissed the appeal, although on the basis of other factual findings rather than on the basis of the defendant having to establish an absence of qualitative awareness. The Court (Beach and Lyons JJA; J Forrest AJA) explained (at [44] and [104]) that the factual findings as to the degree of control meant that Lauritsen J’s findings to be entirely correct. While I note that there were errors of law in the first instance judgment (particularly as to qualified privilege defences), the observations of the Court of Appeal on this issue support Lauritsen J’s approach to fact-finding, and the same approach to fact-finding should apply to the facts of this case.

440. For the above reasons, the defendants both fail in relation to this defence.

Conclusions concerning liability

441. As the plaintiffs have failed to establish that publication occurred in the form of Exhibits A and B (or other versions thereof), I make alternative findings that the defendants would have succeeded in relation to the defences of common law and statutory qualified privilege in their entirety as well as in relation to the defence of honest opinion. The first defendant has succeeded in relation to the defence of common law fair comment.

442. As noted above, as to s 25, the defendants have not been successful in relation to the imputation that the plaintiffs were of ill repute but otherwise succeed in relation to the remaining imputations. This has significant bearing on any damages to be awarded by reason of the mitigating factors.

443. The plaintiffs would have succeeded in relation to the defences of innocent dissemination and s 91.

Damages

444. The plaintiffs seek damages, including aggravated damages, but the pleading of their claim is unusual.

The plaintiffs’ claim for damages as pleaded

445. The plaintiffs have not set out their claims for damages in the usual way.

446. The plaintiffs initially sought, in the statement of claim as first drafted, one award of $125,000 general damages and one award of $50,000 aggravated damages collectively (statement of claim, paragraphs 3 and 4 of the orders sought; see the second defendant’s submissions in reply, paragraph 13). In the amended statement of claim (hereafter referred to in this judgment as “the statement of claim”), these orders have been crossed out and new orders are set out on page 2 under the heading “Relief Claimed”. The amounts now sought are $250,000 in damages (without reference to any specific sum sought for aggravated damages). As was the case with the earlier version of the statement of claim, that sum appears to be claimed as being owed to the plaintiffs jointly.

447. An award of damages for defamation is not made jointly in favour of two plaintiffs. Although Mr Lazinski referred in his further submissions in reply (paragraph 96) to an award of “$279,000 in damages to a couple who were defamed by a Facebook user” in Rodgers v Gooding [2023] QDC 115, examination of the award shows that the plaintiffs were in fact awarded damages individually, in terms of both general damages and aggravated damages; the amount of $279,000 is simply the total awarded to each of them against the defendant.

448. Each of the plaintiffs must individually establish an entitlement to damages. That includes any entitlement to aggravated damages. It would be inappropriate to make a joint award.

449. There are similar problems with the way in which the damages are framed as being jointly made against both defendants. An award for damages cannot be made against a defendant who is not a publisher. The plaintiffs have elected to sue each of the first and second defendants individually and must conduct their case conformably with that decision.

The quantum of damages

450. These are alternative findings, so my observations will be brief.

451. Where a plaintiff has delayed commencing proceedings until shortly before the limitation period has expired, this may be a matter of “some significance” (McCarey v Associated Newspapers Pty Ltd (No 2) [1965] 2 QB 86; see Rader v Haines [2022] NSWCA 198 at [35] – [39]). The plaintiffs offer no explanation as to why, having consulted solicitors and sent a concerns notice on 19 June 2020, they delayed for more than eleven months before commencing proceedings. It would be open to the court to consider that they did so because they did not consider the injury to their reputations to be a highly serious matter.

452. Even if all imputations were conveyed and no defence succeeded, the court would still be entitled to take the same approach as that taken by Lee J in Lehrmann in relation to damages awards and the likelihood of a small sum would be very high.

453. As the impact of an award of aggravated damages would lift the cap, I would not set a figure for general damages until determining if this would be an appropriate award to make. In addition, issues of mitigation would be relevant to the issue of general damages in relation to the truth of any imputations which is proved.

Aggravated damages

454. In paragraph 29 of the statement of claim, the plaintiffs set out the following particulars as the basis for the claim for aggravated compensatory damages:

1. The knowledge that the defamatory meanings complained of are untrue.

2. On 17 June 2020 and 18 June 2020 the first plaintiff was subjected to searches of her residence by members of the New South Wales police service, namely Senior Constable Kentwell, Sergeant Bambrick and Constable Homes of the Young Police Station, in relation to possible criminal conduct regarding the alleged theft of the puppy and illegal or illicit drugs, such searches not identifying any evidence to support the commission of an offence.

3. The knowledge that the defendants publish the matters and continue to publish the matters complained of in the circumstances pleaded above.

4. The defendants’ unjustifiable failure to (permanently) remove the publications complained of.

5. The publication of the matter complained of on the Internet at the two websites over a period from the date of publication and continuing.

6. The first plaintiff’s claim that as a result of the publication of the matters complained of she has suffered and continues to suffer from depression, anxiety and mental anguish requiring medical treatment and intervention including taking time off work and receiving medical treatment is set out in paragraph 26A of the statement of claim.

455. The plaintiffs’ submissions on aggravated damages (at paragraphs 195 – 198) set out the relevant legal principles but do not refer to any of the particulars set out above. On Day 9 (Tcpt 803) I invited the plaintiffs to specify the conduct alleged to amount to aggravating conduct, following which the plaintiffs identified an entirely new ground, namely maintenance of the defence of justification (paragraph 93 of the plaintiffs’ further submissions). As Mr Larkin SC notes in his submissions in reply, no particulars as to how maintaining this defence is improper, unjustifiable or lacking in bona fides have been provided. The first defendant’s aggravating conduct is asserted to be her knowledge that the “name and shame” post occurred after the she knew that the plaintiffs had denied any wrongdoing to the police.

456. As to the defendants’ maintaining of a defence of justification, as Professor Rolph notes (at p. 498), a defendant is entitled to plead, even vigorously, a bona fide defence without risk of aggravating the damages, even where that defence is one of justification: Triggell v Pheeney (1951) 82 CLR 497 at 514; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 379; Singleton v Ffrench (1986) 5 NSWLR 425 at 439. It is only where some identified aspect of the pleaded defence (or the defendant’s conduct in relation to it, such as inappropriate cross-examination) is improper, unjustifiable or lacking bona fides that the plaintiff may rely on this factor in relation to a claim for aggravated damages: Triggell v Pheeney at 514. Without the required specificity, any claim for aggravated damages on such a basis must fail.

457. The additional bases on which such damages are sought were not pursued at the hearing, but are without substance in any event; for example, knowledge of the untruthfulness of the imputations is insufficient (Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75F; see also Harrigan v Jones [2000] NSWSC 814). The claim for damage to health was struck out prior to the hearing and would not, in any event, have constituted a basis for the award of aggravated damages, for reasons which I set out at the end of this judgment in relation to my ruling prior to the trial commencing. The defendants submit that the plaintiffs would not be entitled to an award of aggravated damages.

Mitigation of damages

458. The defendants bring a claim for mitigation of damages:

1. The substantial truth of so many of the plaintiffs’ imputations as are found to be substantially true;

2. Any findings made by the Court in relation to the defences of justification and honest opinion pleaded in this defence; and

3. Evidence adduced at trial in relation to the defences of justification and honest opinion.

459. A claim of mitigation may be brought where it is asserted that a plaintiff already has a bad reputation in the relevant sector. A defendant may also rely upon evidence given in mitigation which was in support of an unsuccessful or only partially successful plea of justification (Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96 at [26]-[32]), or which is relevant to background context (Burstein v Times Newspapers Ltd [2001] 1 WLR 579).

460. I have found that the defendants have established the truth of all but one of the imputations pleaded. If I have erred in doing so in relation to one or more of the imputations, the truth of any imputation surviving such challenge is a matter the defendants are entitled to ask the court to take into account.

461. If the plaintiffs succeeded in relation to all dog stealing imputations, I consider it unlikely that imputations which do not require justification of dog stealing (especially causing anguish to children) could not be proved true. If one or more of these imputations were proved true, the amount of damages which would be awarded would be nominal at best.

462. The plaintiffs’ conduct in taking Teddy was unwise and the circumstances in which he escaped from the first plaintiff’s care, if her version of events were to be accepted, shows gross incompetence by a veterinarian. The circumstances in which the second plaintiff took down her photo of Teddy and her post about finding a lost puppy are equally blameworthy, but I am satisfied that she did this at the first plaintiff’s direction.

463. However, their conduct in taking Teddy further away from his home and then losing him is dwarfed by their wrongdoing in not coming forward immediately to the appropriate authorities (the pound, the council ranger and/or the police and, in particular, the Young Community Facebook) to say that there was a lost puppy in the Brock Street area. Had they done so on 9 June, the chances of Teddy being found would have been considerably greater.

464. If the plaintiffs were to be awarded damages for these publications, I would have awarded $10,000 to the first plaintiff and $15,000 to the second plaintiff, but only if all imputations were found to be false. If any of the imputations not requiring proof of dog stealing were found to be true, I would have awarded $1,000 to the first plaintiff and $5,000 to the second plaintiff.

Injunctions

465. The plaintiffs seek injunctions “due to the defendants’ prior action of sharing information regarding being the subject of legal action” (submissions, paragraph 201), citing Harbour Radio Pty Ltd v Wagner (2019) 2 QR 468, where “persistent” conduct indicated a likelihood that the defamatory imputations would be repeated. The easy access the defendants have to social media is asserted to be of concern.

466. The second defendant deleted the post the plaintiffs complained about in a matter of hours after complaint (and I note that the complaint in question was made shortly after midnight, at a time when she was unlikely to be checking her phone for messages). She deleted an additional post on 20 June 2020 after Mr Edwards, in the employ of the plaintiffs’ solicitors, contacted her. While the undated and unsatisfactorily assembled matters complained of make it difficult for me to determine how long these posts about Teddy went on for, they appear to have stopped some time after July 2020 and no further posts were made. There is no evidence of the likelihood of any further repetition. In correspondence from her solicitor at the time, Mr Goldsmith, she proffered an undertaking not to republish.

467. Both the defendants continued to post social media entries about their continued search for Teddy. The plaintiffs have not nominated any passages in any of those emails which gave rise to any concerns. There is no identifiable threat of republication. On 17 June 2020, the second defendant edited the security settings on the Arthur & Co Pet Detectives Facebook page to restrict people leaving comments on any posts on the page, which contain the following words: "Ainslee"; "Ainslie"; "Lauren"; "Munro"; "Marchant"; "Vet"; "Dodgy”; “Thieves"; "Thief'; and other similar words (Exhibit 17). This is still in place today.

468. Mr Lazinski was invited to address this issue further in submissions in reply (Tcpt 794, 802), but has not done so.

469. Given the length of time since the events in question, there is unlikely to be any such threat in the future. Accordingly, if I had found for the plaintiffs, I would not have granted injunctive relief.

Ruling concerning injury to health

470. These proceedings were set down for hearing before me for three days plus, commencing on Monday 26 February 2024. The solicitors for the second defendant sought an urgent relisting of these proceedings on 4 February 2024, three weeks before the trial was to commence, due to asserted failures of the plaintiffs to comply with a timetable for hearing set down by Judge Dicker and failure to answer their correspondence. The solicitor for the second defendant also challenged the admissibility of a medico-legal report served upon his client. I made a ruling in relation to that report: Munro v Wheeler [2024] NSWDC 23.

471. There was then a blizzard of applications from the parties that took up four days over the remaining two and a half weeks before the hearing commenced. As I noted in my earlier judgment, many of the problems arose from the plaintiffs’ failure to comply with orders and/or to answer correspondence. However, the failure of the legal representatives on both sides to react to problems in the pleading and particularisation of the plaintiffs’ claim (including service of medical material without any particularisation, pleadings issues, discovery and answers to particulars) was also a contributing factor.

472. One of the applications brought was an application, notwithstanding my rejection of the late medico-legal report, to serve the following “treating doctor” reports in relation to both plaintiffs:

1. Dr Shiromi Liyanage (2nd Plaintiff)

2. Dr Sue Connor (2nd Plaintiff)

3. Dr Chetan Valuable (1st Plaintiff)

4. Dr Patrick Walsh (1st Plaintiff)

5. Dr Thomas Stewart (1st Plaintiff)

6. Associate Professor Suresh Naidoo (1st Plaintiff)

7. Professor Steve Vucic (1st Plaintiff)

8. Ms Jenny Duggan (1st Plaintiff)

9. Mr Candour Hu (1st Plaintiff)

10. Dr Stuart Saker (1st Plaintiff)

11. Associate Professor Cate Madill (1st Plaintiff)

12. Ms Kristin Dore (1st Plaintiff)

13. Mr Grahame Gould (1st Plaintiff)

14. Medicare & PBS Claims History Statement (1st Plaintiff)

15. Medicare & PBS Claims History Statement - updated (1st Plaintiff)

16. Pharmaceutical and Treatment Receipts (1st Plaintiff)

17. Medicare & PBS Claims History Statement (2nd Plaintiff)

18. Medicare & PBS Claims History Statement - updated (2nd Plaintiff)

473. Their relevance to the plaintiffs’ claim rested upon the plaintiffs’ asserted entitlement to claim, as an aggravating factor, that their health had been affected by the matters complained of.

474. In response to a complaint that these reports had not been served earlier, the plaintiffs withdrew all but four of them, on the basis that if there were fewer reports, then there may have been fewer complaints from the defendants. The defendants, however, remained firm in their opposition to the tender of any medical reports.

475. Medical evidence of this nature is inappropriate as the basis of a claim for aggravated damages. The defendants had no prior knowledge of, or association with, the plaintiffs and how their conduct could be viewed as high-handed or contumelious conduct of the kind that would warrant an award of aggravated damages is completely unexplained. If an intent to injure was to have been asserted, that should have been particularised as malice (Waterhouse v Mirror Newspapers Ltd (1985) 1 NSWLR 81 at 84). No pleading of malice was ever made in these proceedings.

476. It was for these reasons that I rejected the application by the plaintiffs for leave to serve and rely on these medical records.

Orders

477. The parties have asked me to reserve on the issue of costs. The orders I make are as follows:

1. Judgment for the defendants.

2. Costs reserved, with liberty to apply.

3. Exhibits retained until further order.

**********

Amendments

06 March 2025 - Typographical errors corrected in judgment

13 March 2025 - Paragraph 58 - typographical error

Paragraph 120 - 21 February 2024, replaces the date of 21 February 2023

Decision last updated: 13 March 2025