Zimmerman v Perkiss

[2022] NSWDC 448

District Court

New South Wales

Medium Neutral Citation:

Zimmerman v Perkiss [2022] NSWDC 448

Hearing dates:

11 August, 7 September 2022

Date of orders:

7 October 2022

Decision date:

07 October 2022

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

Order:

(1) Pursuant to s 10A of the Defamation Act 2005 (NSW) and Uniform Civil Procedure Rules 2005 (NSW) r 28.2, the plaintiff has failed to prove that publication of the matter complained of caused or was likely to cause harm to her reputation and the claim is dismissed.

(2)   Costs reserved, with liberty to apply.

(3)    Exhibits retained until further order.

Catchwords:

TORT - defamation - Facebook Messenger publication to the plaintiff’s employer from the mother of her former employer - whether plaintiff has established “serious harm” conformably with s 10A of the Defamation Act 2005 (NSW)

Legislation Cited:

Defamation Act 2013 (UK) s 1

Defamation Act 2005 (NSW) ss 10A and 12A(1)(a)(ii)

Online Safety Act 2021 (Cth) s 5

Civil Procedure Act 2005 (NSW) s 56

Mental Health (Forensic Provisions) Act 1990 (NSW), cl 2.

Migration Act 1958 (Cth) s 91R(1)(b)

Uniform Civil Procedure Rules 2005 (NSW) r 28.2

Cases Cited:

Alsaifi v Trinity Mirror plc & Board of Directors and another [2017] EWHC 2873 (QB)

Banks v Cadwalladr [2022] EWHC 1417 (QB)

Bazzi v Dutton [2022] FCAFC 84

Bent v. Platnick, 2020 SCC 23

Bode v Mundell [2016] EWHC 2533 (QB)

Browne v Dunn 1894 6 R 67

Defteros v Google Inc [2020] VSC 219

Defteros v Google Inc [2021] VSCA 167

Gatto v Australian Broadcasting Corporation [2021] VSC 83

George v Cannell and another [2021] EWHC 2988 (QB)

Harris v 718932 Pty Limited [2003] NSWCA 38

Herron v Harpercollins Publications Australia Pty Ltd (No 2) [2022] FCAFC 119

Hewson v Times NL & anor [2019] EWHC 650 (QB)

Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652

Hodges v Naish [2021] EWHC 1805

In the Matter of ACN 005 408 462 Pty Ltd (Formerly Teac Australia Pty Ltd) [2008] FCA 1184

Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets (No 6) [2007] NSWSC 124

Johnson v McArdle [2020] EWHC 644 (QB)

Jones v Amalgamated Television Services Pty Ltd (1991) 36 NSWLR 364

Nanosecond Corp Pty Ltd v Glen Carron Pty Ltd (No 2) [2018] SASC 188

Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13

Newman v Whittington [2022] NSWSC 249

Ontario Limited v. Pointes Protection Association, 2020 SCC 22

Perkins v Floradale Productions Pty Ltd & Ors (District Court of NSW, Walmsley SC DCJ, 28 May 2013, unreported)

R v Pashahzahiri [2014] O.J. No. 4801

Rader v Haines [2022] NSWCA 198

Ruta v Department for Work and Pensions [2022] EWHC 1535 (QB)

Slaven v Prime Media Group Limited [2019] NSWDC 502

Speight v Gosnay (1891) 60 LJ QB 231 CA

Taylor v Nationwide News Pty Ltd [2022] FCA 14

Tewari v Khetarpal [2022] EWHC 266

Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)

Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291

Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173

Tsamis v Victoria (No 8) (costs) [2020] VSC 67

Turley v Unite the Union and another [2019] EWHC 3547

V’Landys v Australian Broadcasting Commission (No 3) [2021] FCA 500

VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 CLR 1

Wen Yue He v Chinese Newspapers Pty Ltd [2005] NSWSC 253

Wilks v Qu (Ruling) [2022] VCC 620

Texts Cited:

C Sewell, “More serious harm than good? An empirical observation and analysis of the effects of the serious harm requirement in section 1(1) of the Defamation Act 2013”, (2020) Journal of Media Law DOI: 10.1080/177577632.2020.1776560

D Ipp in "Problems with Fact-finding" (2006) 80 Australian Law Journal 667

D Rolph “A Serious Harm Threshold for Australian Defamation Law” (2022) 51 Australian Bar Review 185

Explanatory Note to the Defamation Amendment Bill 2020 (NSW)

New South Wales, Department of Justice, Council of Attorneys-General Review of the Model Defamation Provisions - Background Paper, (December 2019)

New South Wales, Department of Justice, Stage 2 Review of the Model Defamation Provisions, (22 August 2022)

Second Reading Speech (Legislative Assembly), 29 July 2020

Category:

Principal judgment

Parties:

Plaintiff: Katie Zimmermann
Defendant: Kim Perkiss

Representation:

Counsel:
Ms M Hall (Plaintiff)
Mr J O’Connor (Defendant)

Solicitors:
Brander Smith McKnight Lawyers (Plaintiff)
Fulcrum Legal (Defendant)

File Number(s):

2022/00070757

Judgment

Application for determination of “serious harm”

1. This is a preliminary issues trial, held to determine whether a publication the subject of a claim for defamation has caused, or is likely to cause, serious harm to the plaintiff’s reputation: s 10A of the Defamation Act 2005 (NSW) (“the Act”).

2. Section 10A, adapted from s 1 of the Defamation Act 2013 (UK), was enacted as a reform to discourage the bringing of cases likely to result in modest damages awards, where the costs were out of proportion to the damages: Newman v Whittington [2022] NSWSC 249 at [30] - [46]; Wilks v Qu (Ruling) [2022] VCC 620. If a plaintiff cannot establish serious harm, that is the end of the proceedings.

3. A party may apply for the serious harm element to be determined as soon as practicable, pursuant to s 10A(5) of the Act:

10A Serious harm element of cause of action for defamation

…

(5) If a party applies for the serious harm element to be determined before the trial for the proceedings commences, the judicial officer is to determine the issue as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceedings (including during the trial).

4. This is the first time that an application for determination of serious harm under s 10A has resulted in a hearing. The publication in question, a Facebook Messenger message sent to one person, is the kind of publication for which the Second Reading Speech (Legislative Assembly), 29 July 2020 indicated that the s 10A procedure was intended.

5. Conformably with the intention of the legislation, the evidence in this hearing was able to be completed in one day, followed by written submissions and a day for oral argument. It was, however, a hard-fought case and, in deference to the parties’ determined submissions, as well as the fact that this is the first serious harm hearing, I have set out my findings in far more detail than would otherwise have been warranted.

6. Two days before this judgment was listed to be handed down, the decision of the New South Wales Court of Appeal in Rader v Haines [2022] NSWCA 198 was published. That decision deals with s 1 of the Defamation Act 2013 (UK) and not s 10A of the Act, but the observations contained in it are generally apposite. I have taken the decision, conformably with the overarching principles of case management in s 56 of the Civil Procedure Act 2005 (NSW) that I should not defer the handing down of this judgment in order to seek further submissions from the parties about Rader v Haines, principally because my statements of law in this judgment are intended to reflect their Honours’ views. My statements of the relevant legal principles should be viewed through the prism of the principles of law as enunciated in that decision, the correctness of which I accept and follow.

Preliminary issues

7. Three preliminary questions arise:

1. Is a ruling on imputations necessary for such an application to proceed? If there has been no such ruling, what are the consequences?

2. Should an order be made for a separate trial pursuant to Uniform Civil Procedure Rules 2005 (NSW)(“UCPR”) r 28.2 or does the manner in which a s 10A trial is described in the legislation render this step unnecessary?

3. How strictly should a concerns notice be construed? In particular, what are the consequences of serving a concerns notice and statement of claim which fail to refer in previse terms to “serious harm”?

8. These are important case management issues and I will deal with each of them in turn.

A: Rulings on imputations as part of a serious harm determination

9. No ruling was sought on imputations either before or during this hearing, and the parties have agreed (T 5) that the issue of serious harm should be determined as if the imputations were all held to be conveyed.

10. I note, however, that the different approach taken to imputations in English decisions (see for example Alsaifi v Trinity Mirror plc & Board of Directors and another [2017] EWHC 2873 (QB) at [27] - [51]) may require adjustment of the current practice of determining imputations on a threshold basis, as s 10A-related imputation rulings would need to be the imputations to go to trial. The sole exception would be if a ruling on serious harm was sought on a summary basis, in which case the imputations pleaded by the plaintiff would have to be accepted.

11. At some stage, Australian courts may need to consider the English case management practice of having the judge determine the imputations rather than being forced to accept the plaintiff’s drafting and, in addition, do so, as a matter of routine, “on the papers” (Hewson v Times NL & anor [2019] EWHC 650 (QB). This would avoid the unfortunate result of lengthy trials on all issues when the imputations have been so poorly pleaded that they are not conveyed (Taylor v Nationwide News Pty Ltd [2022] FCA 14; V’Landys v Australian Broadcasting Commission (No 3) [2021] FCA 500; Gatto v Australian Broadcasting Corporation [2021] VSC 83; Nanosecond Corp Pty Ltd v Glen Carron Pty Ltd (No 2) [2018] SASC 188; Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652) or, worse, when the findings concerning the imputations are reversed on appeal (Bazzi v Dutton [2022] FCAFC 84; Herron v Harpercollins Publications Australia Pty Ltd (No 2) [2022] FCAFC 119).

B. Is an order under UCPR r 29(2) required?

12. The manner in which the legislation is framed permits s 10A to be raised at an early stage as well as during the trial of substantive issues, so the correct answer is likely to be that no order for a separate trial under UCPR r 28.2 is necessary. However, as the failure to seek such an order (in relation to a separate trial of capacity or identification) can be catastrophic (Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13 at [2] and [20] - [22]; Slaven v Prime Media Group Limited [2019] NSWDC 502 at [11], [38] - [45]), I have erred on the side of caution and made an order pursuant to UCPR r 28.2. Once again, the use of this procedure highlights the absurdity of “threshold” imputation rulings.

C. Particularisation of serious harm in the concerns notice and statement of claim

13. As to the third issue, the plaintiff failed to refer to, or particularise, “serious harm” as such in the concerns notice, although referring to consequential damage such as lost employment opportunities. The statement of claim similarly did not particularise any claim for “serious harm” or refer to s 10A.

14. On the first return date, I drew these problems to the plaintiff’s attention. The parties agreed between themselves as to the filing of an amended statement of claim which set out particulars of serious harm in accordance with s 10A and the hearing of the separate harm issue proceeded on that basis, although all but one of the particulars were abandoned at the commencement of the hearing.

15. At the end of the hearing, in oral submissions, after I inquired if the point was to be taken, the defendant made a submission that failure to include particulars specifically identified as serious harm in the concerns notice meant that the concerns notice (and thus the proceedings) should be struck out. I have set out at the end of this judgment my reasons for refusing that application.

The parties

16. The plaintiff is a dog-groomer who worked full-time for the defendant’s daughter, Tiarne Perkiss (“Tiarne”) in her dog-grooming business, “Perky Pooches”, for about three years, until an incident occurred on Monday 20 September 2021.

17. The defendant, Kim Perkiss, was not involved in the actual running of her daughter’s business until June 2021. From that time on, the defendant ran the retail shop at the front of the premises, where she also attended to administrative tasks such as accounts and payroll.

18. Also in September 2021, Ms McPherson, the recipient of the matter complained of, started up a dog-minding business, which she named “Albion Bark [sic] Lodge” as it was situated in Albion Park, a suburb which is not far from the business premises for Perky Pooches. Despite their shared fondness for double entendres in their names, these two businesses offered very different services for their clients’ dogs.

19. On Monday 20 September 2021, after an incident involving allegations of missing dog grooming scissors, the plaintiff went home sick. Tiarne sent an apology to the plaintiff that same evening, but the plaintiff remained away from work, sending medical certificates in relation to her absence. During this time, she contacted Ms McPherson about a job, and worked for her for two days on a trial basis. She was hired to commence work from the week commencing 11 October 2021. She then sent a letter of resignation on 5 October 2021, stating that her last day of employment would be Friday 8 October 2021 (CB: 91).

20. Ms McPherson was delighted with her new employee and published a post on Facebook on 12 October 2021, showing the plaintiff, on her first day at work, cuddling a dog as part of her new job.

21. The defendant read Ms McPherson’s Facebook post. She agreed that she had had “a few wines” (T 81, 86) at the time. She sent short text messages to Ms McPherson privately (not publicly on Facebook) in response to her post about the plaintiff’s new job. These text messages are the matter complained of.

The matter complained of

22. The publication in question is a short series of text messages, sent by the defendant by Facebook messenger on 12 October 2021 at 9:13 PM to the plaintiff’s new employer. The first was:

“Hey

Good luck”

23. Seven minutes later, at 9:20 PM, the defendant added the following five sentences:

“Katie resigned due to organising the theft of company possessions.

You should check references.

She went on stress leave due to not coping with being caught taking items from the business

We could have had police involved

About $1000 worth of scissors taken.”

24. Eighteen minutes later, at 9:38 PM, the defendant added the following two sentences:

“she denied all

8 cameras don’t lie.”

The imputations

25. The following imputations are pleaded:

1. As an employee, the plaintiff stole, took or otherwise arranged for the theft of employer property.

2. As an employee, the plaintiff was captured on closed circuit television footage stealing, taking or otherwise arranging for the theft of employer property.

3. As an employee, the plaintiff committed a criminal offence.

4. As an employee, the plaintiff took stress leave due to the above reasons.

5. As an employee, the plaintiff is unreliable.

26. Section 12A(1)(a)(ii) of the Act requires the aggrieved person to notify the publisher of the “imputations of concern” in the concerns notice. It is unnecessary to consider this issue further as the defendant has acknowledged that there is no challenge to any of the imputations.

27. The serious harm is the harm to reputation, not of the imputation, as Brereton JA explains in Rader v Haines at [10] - [27]. There may be differences between English and Australian courts’ treatment of defamatory meaning in serious harm trials because of the specific use of “not defamatory” in s 1 of the UK legislation, which means that defamatory meaning is subsumed into the serious harm component: see Rader v Haines at [17]. The parties did not address me on any challenge to defamatory meaning (which is conceded), so it is unnecessary for me to consider this point further.

The revised claim for serious harm at the hearing

28. As is explained in Banks v Cadwalladr [2022] EWHC 1417 (“Cadwalladr”) at [51], there are two kinds of serious harm identified in s 1, namely past and future. The same is the case for s 10A. Harm already caused is identified by the word “has”, whereas harm that “is likely to” be caused is harm in the future. Evidence for each such harm relies upon propositions of fact which necessarily call for an investigation of the actual impact of the statement. When determining whether a statement 'has caused' serious harm, the focus is on historic harm. When determining whether a statement “is likely to” cause serious harm, the focus is on probable future harm, and it is examined in the same way.

29. At the commencement of the hearing, the plaintiff abandoned most of her claims for serious harm as set out in the concerns notice and in paragraphs 9A of the amended statement of claim, namely for future difficulties in procuring alternate employment, purchase of equipment and harm to her reputation in the dog grooming industry. The claim for serious harm thus is limited to the new material not set out in the original concerns notice, namely a claim of essentially past harm in terms of the reaction of the plaintiff’s current employer, as can be seen from its revised form as set out at the commencement of the hearing:

“9A By reason of the matters pleaded in paragraph 4 to 5 inclusive and 7 to 9 inclusive above, the Defamatory Publication, inter alia, was strong, affected in an adverse manner the attitude of the Plaintiff’s employer towards the Plaintiff.”

30. Evidence was led that the plaintiff’s employer still has this “strong” and “adverse” attitude towards the plaintiff now, and will do so in the future, but this part of the claim was not particularised.

31. The plaintiff has changed her particulars of serious harm on three occasions: in the concerns notice, in the amended statement of claim (where a reference to her current employer appears) and at the trial (when all but the current employer claim particulars are abandoned). I consider that she is entitled to do so because s 12A(1)(a)(iv) only requires her to set out the harm that she “considers” to be serious, and not harm which is objectively determinable as serious. However, while the plaintiff is entitled to amend and replead her particulars of serious harm, past and/or future, a series of attempts of the kind demonstrated here may suggest that in fact no harm, serious or otherwise, has in fact occurred or was likely to occur. This was one of the submissions made by the defendant.

The extent of publication

32. This text message was sent to one person only, namely Ms McPherson. Is a publication to one person more at risk of failing the “serious harm” test than publications to a larger group?

33. The phrase “not a numbers game” commonly occurs in English serious harm judgments where the matter complained of was seen by only one or by a handful of people. The importance of the extent of publication is explained in a study of the 44 serious harm applications heard over the five-year period from the enactment of s 1 in 2013 to the end of 2018 (C Sewell, “More serious harm than good? An empirical observation and analysis of the effects of the serious harm requirement in section 1(1) of the Defamation Act 2013”, (2020) Journal of Media Law DOI: 10.1080/177577632.2020.1776560). That study set out the factors discussed in those 44 hearings and found that the extent or scale of publication was the most often discussed (in 77.2% of all judgments), eclipsing even the gravity of the imputations (73.7%). While the application of statistical analysis of data of this kind to judicial reasoning is regarded with some degree of caution, it permits me to venture the opinion that the extent of publication is a central factor.

34. The quality of the publications, not their quantity is, however, the key:

“In respect of the extent of publication, seriousness of harm caused is not merely an arithmetical test: such assessment is not simply a “numbers game”: see Dhir v Saddler [2017] EWHC 3155 (QB); [2018] 4 W.L.R.1 at [55] (this was pre-Lachaux). In Hodges v Naish [2021] EWHC 1805 (QB) Richard Parkes QC considered serious harm in the context of a claim in slander at [144] - [150]. He considered Nicklin J's conclusion in Dhir in which Nicklin J concluded that the kind of limited harm which will usually be caused by the very limited publication of a slander could still cause serious harm as understood by s.1. Notably, Nicklin J emphasised that it is the "quality of the publishees, not their quantity, that is likely to determine the issue of serious harm in cases involving relatively small-scale publication”: [55]. Richard Parkes QC endorsed these propositions. At [150] he stated that the grapevine effect might also be highly relevant to serious harm.”

(George v Cannell and another [2021] EWHC 2988 (QB) at [118])

35. Most of the limits on publication were imposed by the publishee, Ms McPherson. According to her evidence, Ms McPherson never discussed the matter complained of even with the plaintiff, or with anyone else except the plaintiff’s mother (T 42), a step she took after consulting her husband (T 43). Even when she spoke to the plaintiff’s mother, she was reluctant to reveal its contents, merely telling her, “I have received messages overnight from Katie’s former employer. I do not want to share those messages with anyone.” (T 43). Ms McPherson told the court that she was so careful about this because she was concerned that she and her business could be sued if she participated in further publication of the matter complained of (T 45), adding that she did not have the kind of money necessary to defend defamation or workplace actions.

36. The following day, the plaintiff’s mother rang Ms McPherson to say she had consulted her husband and they both wanted to see the message, so Ms McPherson took a screenshot and texted it to them. Ms McPherson insisted that she never gave a copy of the text to the plaintiff and the plaintiff said that she had not been shown the text by Ms McPherson.

37. The plaintiff does, however, appear to have had some knowledge of the allegations as, in a text message dated 15 October 2021, she told another employee, Caitlin Taylor (“Caitlin”), that “…Tiarne has contacted my boss and accused me of stealing scissors and said other things about me. I’m not sure what’s been said because my boss doesn’t want to hurt me in telling me what she said.”

38. Ms McPherson’s motivation was the protection of herself and her business:

“Q. So, you didn't tell Katie?

A. God no, God no, I have not spoken to Katie about this matter ever. I don't want to, I'm the meat in the sandwich here, I lose either way how this Court case goes, I lose.

HER HONOUR: What do you mean you lose?

WITNESS: Well, I'm considerably worried, your Honour, it goes Katie’s way, Perky doesn't like me, it goes Perky’s way, Katie doesn't like me. I'm the meat in the sandwich here, my business is affected.

O’CONNOR

Q. So, you're saying you're giving all your evidence in this case to protect your business?

A. I am giving the evidence as how it is, what I felt, what was said, how I reacted to the letter, but I am concerned for my business.” (T 45)

39. I accept that Ms McPherson did not show the matter complained of to anyone except her husband, which is not pleaded as a publication. Neither Ms McPherson’s husband nor the plaintiff’s mother were called as witnesses. There is no suggestion of any harm, serious or otherwise, flowing from Ms McPherson showing the matter complained of to either of these persons.

Was there publication to any other persons?

40. Ms Hall points to other potential publishees as follows:

1. Third parties could have seen printed copies of the matter complained of, made after the concerns notice was sent. The defendant’s solicitor responded to the concerns notice by pointing out that the matter complained of was not attached. It was forwarded to his office and thereafter printed out either by his office, or the defendant (or her mother) or both. Ms Hall submitted that printed copies may have been left by the defendant on her desk where they could be seen by persons looking at what was on her desk. (T 88 - 90, 98, 103, 111; plaintiff’s submissions, paragraphs 26).

2. After the concerns notice was sent, a screenshot of the matter complained of was sent to Tiarne’s phone (T 106 - 107, plaintiff’s submissions, paragraphs 26 - 27, 33 - 34, 52, 100).

3. Conversations by the defendant or Tiarne with other Perky Pooches staff members may have occurred. For example, a copy of the matter complained of was shown to Caitlin, who was a witness in these proceedings (plaintiff’s submissions, paragraph 52). No claim is made, however, for the plaintiff repeating the substance of the matter complained of to Caitlin (see their text messages as set out below), although it could arguably have been put as a compelled publication of the kind described in Jones v Amalgamated Television Services Pty Ltd (1991) 36 NSWLR 364.

4. After the concerns notice was sent, the defendant showed the matter complained of to her daughter Tiarne on her own phone (plaintiff’s submissions, paragraph 26; T 88).

41. The relevant legal principles are as follows:

1. Printed copies of the matter complained of asserted to have been left on the defendant’s desk: The defendant was cross-examined about whether, after the concerns notice, the matter complained of might have been printed out and left by her on the defendant’s desk where others might see it, an allegation that she rejected (T 89, 91). Even if there was evidence that after the concerns notice was sent the matter complained of was printed out, courts have generally been reluctant to regard such publications as actionable, for the reasons set out in Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 at 293.

2. The possibility of other staff members hearing about the matter complained of after the concerns notice: It is put in a general way that some of the staff at Perky Pooches must have known, if only because the plaintiff told Caitlin about it. If the source of this is the plaintiff herself, that is not actionable publication. There is no evidence that Caitlin informed any third party, despite the plaintiff initially inviting Caitlin to tell her own parents, which means that the interesting questions of law arising from a plaintiff consenting and inviting publication to third parties need not be considered.

3. Showing the matter complained of to Caitlin or to other potential witnesses: Publication of the matter complained of to a witness, a potential witness or to other persons in the same legal office (or, for that matter, as part of the litigious process, such as sending a concerns notice) is generally accepted not to amount to publication: Toomey v John Fairfax & Sons Ltd at 293; Wen Yue He v Chinese Newspapers Pty Ltd [2005] NSWSC 253; Perkins v Floradale Productions Pty Ltd & Ors (District Court of NSW, Walmsley SC DCJ, 28 May 2013, unreported).

4. Publication of the matter complained of by the defendant to her daughter Tiarne after the concerns notice was received: This occurred as a direct response to the concerns notice and thus forms part of the litigious process described in Toomey. This does not amount to a further publication or to evidence of the grapevine effect.

42. All of these asserted publication are based on supposition, inference, or both, and all must be treated with caution. The pleader must specify each act of republication of defamatory matter as well as provide some kind of delineation of the grapevine effect. Even under the “single publication” rule, any new publication which exposes any republisher to liability in defamation must still be pleaded. Republication may expose the original publisher to further liability where the republication was the natural and probable result of the original publication (Speight v Gosnay (1891) 60 LJ QB 231 CA; Harris v 718932 Pty Limited [2003] NSWCA 38), either on a fresh cause of action or for increased damages on the original cause of action.

43. The next problem is that, even if one or more of the asserted publications to other salon staff, lawyers or potential witnesses was regarded as actionable and appropriately particularised, there would be real difficulty in determining how any harm, serious or otherwise, could accrue. This was the position taken by the first instance judge (although to the defence of unlikelihood of harm) in Defteros v Google Inc [2020] VSC 219 (at [265] - [6]) where claims of publication which included a person who already knew the facts as well as the lawyers working on the case. On appeal, the court agreed with the first instance judge, who “concluded that a substantial proportion of the other people, to whom the article was published, were working on Mr Defteros’ defamation proceeding, and accordingly … did not consider that the publication to those people was likely to have caused harm” (Defteros v Google Inc [2021] VSCA 167 at [244]). The same would be the case here. There is no evidence of any harm, serious or otherwise, arising from these asserted publications.

44. The better view on the facts in this case, however, is that no actionable publication of the kind identified above has been established to have occurred in relation to the persons identified in Ms Hall’s submissions, for the reasons set out above.

The grapevine effect

45. The “grapevine effect”, which is explained in Rader v Haines at [41] - [54], is a metaphor for the potential of circumstances of repetition of the defamatory statement by the person who published it originally or by those to whom that person has published it, to others who repeat it further, and so on. As such, it can be a relevant factor in serious harm, as is noted in George v Cannell and another at [118] (see also Hodges v Naish [2021] EWHC 1805 at [150]; Turley v Unite the Union and another [2019] EWHC 3547 at [109]). However, knowledge of the matter complained of must not be conflated with external events such as knowledge of the circumstances in which the plaintiff ceased her employment at Perky Pooches, for the reasons explained by Collins Rice J in Tewari v Khetarpal [2022] EWHC 266.

46. A claim for publication arising as a result of the “grapevine effect” was set out in both the concerns notice and the amended statement of claim, but was effectively resiled from in submissions (submissions, 1 August 2022, paragraph 3). The concerns notice and the amended statement of claim each refer to the grapevine effect as being the possibility that other employees of Perky Pooches may have come to hear of the allegations. There is no evidence to this effect and there is thus no grapevine evidence.

Conclusions concerning the extent of publication

47. The evidence is, therefore, that the matter complained of has been seen by only one person, namely Ms McPherson, who showed it to her husband and sent it to the plaintiff’s mother (and, I would infer, her father) in circumstances where no claim for publication and no harm arose.

The evidence

48. The plaintiff has served the following evidence:

1. Affidavit of the plaintiff affirmed 16 June 2022 (CB: 30).

2. Affidavits of Sarah McPherson affirmed 16 June 2022 and 28 July 2022 (CB: 35 and CB: 124)

49. The defendant has served the following evidence:

1. Affidavits of the defendant sworn 26 May and 29 June 2022.

2. Affidavit of Caitlin Taylor affirmed 29 June 2022 (CB: 111).

3. Affidavit of Tiarne Perkins sworn 29 June 2022 (CB: 66).

50. All of the witnesses were cross-examined.

Evaluating the evidence of serious harm

51. The findings of fact in this case turn on whether I accept the evidence of the plaintiff and Ms McPherson as to the harm caused to the plaintiff’s reputation in the eyes of Ms McPherson. This requires careful consideration of the evidence, including the following:

1. Assessing oral evidence and witness credibility.

2. Evaluation of witness recollection in terms of contemporaneous records.

3. Consideration of the rule in Browne v Dunn (Browne v Dunn 1894 6 R 67) and the obligation to put contested matters to witnesses.

The credit of the witnesses

52. In Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at [73]-[74], Tugendhat J provides a helpful analysis of the main tests to be used by judges when determining the credibility of evidence.

53. Each of the parties and their witnesses gave evidence emphasizing the truth of their respective accounts of events in circumstances in which there were obvious inconsistencies in their own evidence or in the evidence of a witness called to support their case.

54. From my assessment of the witnesses’ demeanour, implausible evidence, errors and inconsistencies were not necessarily the result of deliberate or dishonest lies. Rather than outright dishonesty, this was a case where the witnesses gave evidence of what occurred through their version of the truth as they hoped and believed it was. John Dixon J in Tsamis v Victoria (No 8) (costs) [2020] VSC 67 at [6] described this not uncommon situation in litigation as the “Rashomon effect” (see also In the Matter of ACN 005 408 462 Pty Ltd (Formerly Teac Australia Pty Ltd) [2008] FCA 1184 at [3] and R v Pashahzahiri [2014] O.J. No. 4801 at [44] - [50]). Ms McPherson in particular had strong self-interest motives, in that she sought to protect herself and her business from being drawn into a fight between the plaintiff and her former lawyer while wanting to retain her most valued employee, namely the plaintiff. However, there were considerable discrepancies between her evidence and the contemporaneous documentation.

Witness recollections and contemporaneous records

55. These same tests apply where a witness is telling the version of events which he or she would like the court to accept in circumstances where there are contemporaneous records, the objective accuracy of which is not in question.

56. Similar observations to those of Tugendhat J as to the greater likelihood of accuracy of written documents over memory and opinion were made by McDougall J in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets (No 6) [2007] NSWSC 124 at [353]-[355]. These have been the subject of careful analysis by the Honourable David Ipp in "Problems with Fact-finding" (2006) 80 Australian Law Journal 667.

57. Fact-finding by trial judges has undergone a profound change since these discussions of the relevant principles, thanks to electronic publication in general and social media in particular. Traditional methods of fact-finding based on demeanour and corroboration by another witness are now less common, as what a witness said or did is often now available from text messages, social media posts and emails. Tender of such records in many different kinds of civil and criminal proceedings is now routine. Although the potential for exaggeration and dishonesty in such records is just as high as for oral communication, there are no special provisions for the tender of such material. The one advantage such documents have over oral communications is that the text of what is written is immutable. In the present case, documents of this kind are of particular importance.

58. In the course of her submissions, Ms Hall submitted that Mr O’Connor had not put a number of the propositions upon which he relied to the witnesses under cross-examination. I have taken these challenges into consideration but, in practical terms, Mr O’Connor’s cross-examination (based on Exhibit 1, a bundle of contemporaneous records) made good most, if not all, of his challenges to the evidence of the plaintiff and of Ms McPherson. I note and accept Mr O’Connor’s submissions of 16 September 2022 concerning the court’s entitlement to reject evidence that is not cross-examined on if it is contradicted by other evidence.

59. It is with these precepts in mind that I set out an overview of the facts not in dispute, with particular emphasis on the documentation in question.

The circumstances leading to the publication

60. On Monday 20 September 2021, Tiarne arrived at work at about 8:45 AM. She noticed that scissors belonging to an employee, Annette Gilsenan, were missing. Tiarne had a conversation with Caitlin, who told her that the plaintiff took these scissors and that she knew nothing about it. Both these statements were untrue. At about 10 AM Tiarne had a conversation with the plaintiff the text of which is disputed, but which amounted to an accusation of taking the scissors. The plaintiff was upset. Tiarne had a further conversation with her, suggesting that she could use her annual leave or take leave without pay for the rest of the afternoon and go home. The plaintiff left the premises shortly thereafter and never returned.

61. After the plaintiff had left, Tiarne reviewed the CCTV footage and saw that Caitlin, not the plaintiff, had removed and packaged the scissors and then put them into a handbag. She sent a text message at 6:15 PM on 20 September 2021 to the plaintiff as follows:

“Hi Katie

I owe you an apology, I have reviewed the salon CCTV and am fully aware that it was not you who removed the scissors, as I was informed by another staff member.

Why you didn’t speak up and say so, I do not know but I will be taking this further with the other team members involved.

Tiarne.”

62. The plaintiff responded at 8:14 PM on that same day:

“Yeah ok didn’t think it was about me taking the scissors as you didn’t mention it to me it was more about u asking me annettes personal information and accusing us of talking behind your back you know I hate confrontation and that’s why I hate [sic: should be “had’] a panic attack which was brought on by the way that u handled the situation I wont [sic] be in tomorrow im going to the doctor. And Ill take leave without pay if that’s ok.” (Original spelling retained)

63. The following day, 21 September 2021, the plaintiff sent a medical certificate for absence for a week. Tiarne responded “no problem” and said it would come out of her sick leave. On 27 September 2021 the plaintiff sent a further medical certificate for a further week off and reminding her to continue to pay her annual leave for the time she was off work. The plaintiff asked her to return the salon key and this was done by the plaintiff’s father, who came to the premises for that purpose. On 5 October 2021 the plaintiff sent a further medical certificate. Also on 5 October 2021 the plaintiff sent Tiarne a resignation letter:

“Dear Tiarne

I am writing this letter to inform you that I am resigning from my fulltime position at Perky Pooches immediately. My last day will be Friday 8^th October. Thank you, I wish Perky Pooches all the best for the future.”

64. The plaintiff did not tell Tiarne that, while she was on sick leave, she had approached Albion Bark for employment for one day a week as a dog carer. She had two or more work experience days with Albion Bark and was offered a job for one day a week. She started in that position in the week commencing on the following Monday, 11 October 2021.

65. On 12 October 2021, the plaintiff’s new boss, Ms McPherson, posted on the Facebook page of Albion Bark Lodge a photograph of the plaintiff cuddling a dog and stated:

“Please welcome Katie to Albion Bark Lodge and Tiny Tots Tuesday! This ball of fluff is Wilbur having cuddles with our sweet Katie.”

66. Underneath the photograph were the words “Welcome Katie”. Underneath that post, in the comments section, Albion Bark posted “Believe us when we say the dogs LOVE Katie”, adding “We watch the dogs follow her everywhere. We could not be happier.” Ms McPherson added another comment: “We are stoked with how great Katie is with all the dogs.”

67. On that same day, the defendant read this post. She told the court she had had a few glasses of wine (T81, 86). At 9:13 PM, she sent the matter complained of to the plaintiff’s new employer, in a series of texts. She said she then regretted this and tried to delete all of it, and thought that she had. However, the evidence clearly demonstrates that the defendant “unsent” it to herself only, and that the series of messages therefore remained “sent” to Ms McPherson, which is why she was able to read it the following morning.

68. As set out in her affidavit of 16 June 2022, Ms McPherson read the matter complained of at or after 5:15 AM the next morning and, after a conversation with her husband, replied at 6:00 AM as follows:

“hi there,

I don’t know what you’re referring to (totally shocked).

I don’t do reference checks as I believe the dogs will show me if an employee is any good.

Thanks for the heads up though, but Katie speaks very highly of you/your business, your work.

Thanks,

Sarah”

69. Ms McPherson told the court that after consulting her husband she decided not to tell the plaintiff and instead telephoned the plaintiff’s mother, who was known to her from a telephone call earlier that month to thank Ms McPherson for offering the plaintiff the job. Ms McPherson spoke to the plaintiff’s mother on 13 October but did not initially send the screenshot of the message until the plaintiff’s mother contacted her again, the following day.

69. Clearly the plaintiff found out about this at or after this time because, on 15 October 2021 from 4:11 PM to 5:09 PM, she had a long exchange of text messages with Caitlin, who still worked at Perky Pooches. This correspondence paints a clear picture of who was talking to whom about the scissors incident, including the plaintiff’s parents, Caitlin and her parents, the plaintiff, Tiarne and Ms McPherson. In terms of working out who was talking to whom and about what, it is necessary to set them out in full. The idiosyncratic spelling and grammar for these texts have been retained.

70. The first message is sent by the plaintiff at 4:11 PM:

“Hi Caitlin just thought id let U know Tiarne has contacted my boss and accused me of stealing sissors [sic] and said other things about me not sure of whats been said because my boss doesn’t want to hurt me in telling me what she said but what I cant understand is that you put them in my bag so that make me innocent because tiarne told me she looked at the footage and it wasn’t me that took them (she didn’t say who took them) what has tiarne said about the sissor [sic] incident to you and why didn’t u speak up when tiarne brought it up and say your on a group chat with Annette when she requested we get her sissors [sic] back this is very serious and we don’t know which way we are gonna go with it legal wise and it’s a good idea if you show your mum n dad this message because if shes ballsy enough to do this to me then you should have them watching you and keeping an eye over you because you are working there and we both know that bullying and harassment goes on there they know they do it that’s one of the main reason [sic] i left lets face it who leaves a full time these days.”

72. Caitlin responded as follows:

“I told her I took them and put them in you [sic] bag so idk whats going on with tha e [sic] had cleared that all up…

And I mean she talked to me and said everything to me and that’s why my keys were taken from me and all cause they oculnt [sic] trust me all…

I have already talked to tairne [sic] about alk [sic] the scissor drama I talked up the next day…

Im sorry”

73. The plaintiff, who had not previously known about this, replied as follows:

“The keys where [sic] taken from everybody---and iv copt [sic] this today and this happened Tuesday mum didn’t tell me so I could get through a weeks works [sic] without being upset cuz it definitely has upset me Why is she still accusing me through my new job and obviously trying to get me sacked can u ask her why did u accuse katie when I told you I took the sissors [sic]? You are friends with her so u should be able to talk to her? cant you see what type of person she is by contacting my new employer shes lying to you by saying its over cuz she contacted my boss on Tuesday night after they welcomed me obviously tiarn[e] has a bee in her bonet [sic] make sure u show your parents cuz mum wants to ring your mum to clear things us cuz things are clear misread [text ends].”

74. Caitlin responded:

“The next day I have a full breakdown over it as well and went home at lunch but I went back I don’t have any part of tiarne call ur boss tho?

And yeah I misread it sorry”

75. She added, at 4:45 PM:

“Im sorry I know nothing about all of this. Ive spoken to my parents and they have told me not to speak to tiarne about this as they think it is up to you or your parents to bring this up to tiarne. She is aware that I put the scissors in your bag and that matter has been dealt with as far as Im aware.”

76. The plaintiff replied:

“sorry isn’t good enough Caitlin still really mad that u don’t have my back and stick up for me your [sic] supposed to be my friend obviously tiarne has sworn you to secretary [scil: should be ‘secrecy’] and this does involve you unfortunately cuz u didn’t speak up in the first place.”

77. Caitlin replied at 5:09 PM:

“Yes. I understand that I didn’t speak up straight away and that is on me. I realise that I have made that mistake. I did own up the next day about the scissors. I do not know of anything else that has gone on until your message.”

78. The final message in this exchange was from the plaintiff:

“We both know you didn’t own up tiarne caught you out so if u wanna believe that go right ahead. But just so u know watch out with tiarne cuz eventually she will backstab you to protect her business/herself

79. The plaintiff then appears to have changed her mind about telling Caitlin to speak to her parents as well as to Tiarne about the matter complained of, because the following day (16 October 2021) she sent Caitlin another text message:

“Hi Caitlin thought i would just let you know what I have said yesterday is totally confidential between me so don’t tell anyone and if your boss founds [sic] out ill know where it come [sic] from.”

80. Nothing further happened until 3 December 2021, when Ms McPherson posted a video on the Albion Bark Facebook page with the following introduction:

“OUR CREW [heart emoji]

Introducing April & Katie [dog footprint emoji]

we are so incredibly grateful these two wonderful ladies are part of our crew.

No matter the weather rain, hail or sunshine they are with us helping us provide the best care for our dogs and dog day care and our dog holidays days.

We couldn’t do this without you.

Thank you [thanks emoji]

what we do is truly “for the love of dogs”

Sarah

Albion Park Lodge”

81. The video attached to this publication shows the plaintiff, Ms McPherson and another employee and Ms McPherson is shown saying:

“Hi everybody. Sarah from Albion Bark Lodge. I just wanted to share with you our employees or [sic] our teammates. This is Katie and this is April. All of our customers see me mostly when they are dropping off and picking up, but I want everyone to know I couldn’t do this, my absolute passion, without the help of these two fine young ladies. They both reached out to us - um - of their own initiative, and we couldn’t be happier with their efforts every week, week in, week out, rain hail or shine. They’re just wonderful and I’m just so grateful to have you both on our team. So, thanks so much.”

82. This would be a heart-warming public endorsement from any employer. Ms McPherson’s explanation was that she remained suspicious and mistrustful of the plaintiff for at least a month, and that the only reason she put these posts onto Facebook was because she was advised to do so by her social media adviser. She remained so mistrustful of the plaintiff, she said, that she would not consider making her a partner in the business or employing her full-time or letting her have anything to do with the customers.

83. The plaintiff continued to work for Ms McPherson for one day a week. Although no business records were tendered, the evidence was that the plaintiff does so to this day.

84. Contrary to the concerns initially expressed (but later abandoned) in the particulars of serious harm, the plaintiff had no difficulty setting up her own business, “Kitty’s K9 Klips”, in the home in which she resides with her parents, saying, in her advertisement:

“So if you have a pooch that would like a pamper please don’t hesitate to call or text…”

85. The plaintiff’s evidence was that she started “Kitty’s K9 Klips” about two months before giving evidence, which would suggest the business was started in June 2022.

The evidence of Ms McPherson

86. Ms McPherson swore two affidavits. In the first affidavit, sworn on 16 June 2012, she stated that the plaintiff commenced business on a casual basis “from about 12 October 2021” (paragraph 4) and that it was not until 5:15AM on 11 December 2021, two months later, that she received the matter complained of, to which she replied on 11 December 2021 at about 6:00AM. She stated that from the time of opening and reading the messages she had “serious concerns regarding my choice to employ the Plaintiff who I had learnt was a thief and that it would seriously affect the reputation and standing of my Business” (paragraph 8). She considered terminating the plaintiff’s employment and decided not to employ her on a full-time basis. She also began to monitor the plaintiff when she was present in her home and limited her exposure to expensive items for the next two months (which would have been December and January).

87. However, the dates given by Ms McPherson for receipt of the matter complained of and the subsequent dates for her limiting the plaintiff’s exposure to her home were all wrong. This was because she had misread her phone and thought the messages were sent on 10 December 2021, when in fact they were sent on 12 October 2021.

88. Ms McPherson acknowledges, in her second affidavit, sworn 28 July 2022, that service of evidence by the defendant “has caused me to review and reflect upon my evidence in my First Affidavit” and correct “certain errors” (paragraph 1). While Ms McPherson does not say what “evidence” was wrong, it is not in dispute that the evidence served included the text messages the plaintiff exchanged with Caitlin (in which Ms McPherson is referred to) and the December 2021 Facebook posts praising the plaintiff. The second affidavit not only corrected the dates for the matters complained of but also included new evidence of conversations Ms McPherson said she had with her husband and with the plaintiff’s mother and enlarged some of the claims of evidence of mistrust, such as saying she would not allow the plaintiff inside her house to use the toilet.

89. It was put to Ms McPherson (T 52 - 53) that she had expanded her evidence on the issues of serious harm in her second affidavit. She denied this, saying that she had told the solicitor who prepared it all of this information when she was first interviewed.

90. Mr O’Connor, in paragraphs 18 - 24 of his submissions of 6 September 2022, points out another flaw in her evidence, namely that it was not obtained until after the proceedings were commenced and that the plaintiff became aware that serious harm must be established as an element of the claim in a separate preliminary hearing. Following this the plaintiff abandoned her earlier particularisation and produced the evidence of Ms McPherson, as there was no evidence to support the other grounds. Such evidence is unreliable for the reasons explained in Bode v Mundell [2016] EWHC 2533 (QB) at [70]. Warby J commented that it was “tolerably clear that the evidence put forward in response to the present application, or most of it, was only gathered after that application was launched” where there was “no evidence that any efforts were made before the claim was started to establish the extent of any harm”. Warby J dismissed the claim, which was for publication to two persons with republication to another seven, describing it as a “risky enterprise” (at [70]) to launch a libel claim over small-scale publication without undertaking such investigations beforehand.

91. That risk in the present case is demonstrated by the factual errors in Ms McPherson’s first affidavit, the terms of which are wholly at variance, inter alia, with her Facebook posts in December 2021 about the plaintiff. While the error about the dates of the matter complained of may have a reasonable explanation, it nevertheless casts a shadow on Ms McPherson’s accurate recollection of events that she would not remember receiving the matter complained of in response to her own Facebook post earlier that same day.

92. However, that is a minor matter compared to the inconsistencies between Ms McPherson’s evidence and the evidence of Caitlin, the plaintiff’s friend who still worked at Perky Pooches. The first of these was Ms McPherson’s resolute denial that she had ever spoken to the plaintiff about the matter complained of. Ms McPherson was given time out of the witness box (T 41) to read the plaintiff’s text messages to Caitlin after she was asked about a post from the plaintiff saying:

“Hi Caitlin, just thought I’d let you know, Tiarne has contacted my boss and accused me of stealing scissors and said other things about me. I’m not sure what’s been said because my boss doesn’t want to hurt me in telling me what she said.”

93. She was asked:

“Q. This was sent on 15 October 2021, this message. It’s two days after you read the messages?

A. Yep.

Q. In that period, did you have a conversation with Katie about the messages?

A. No.

Q. So--

A. To this day, I have not discussed those messages with Katie.

Q. Who did you discuss the messages with?

A. Katie’s mother.

Q. There’s no evidence in your affidavits about that discussion, is there?

A. I don’t think so.” (T 42)

94. There was no such evidence in her first affidavit, but there was in the second, where she states:

“I did this [contacted the plaintiff’s mother] because I thought maybe Katie had herself received messages from her previous employer about allegations of theft and, doing the best I can, I recall that Katie was meant to come in to work that day and work with big dogs. I was worried that if she was distracted because of such things, because dogs pick up on those emotions, it might cause the big dogs to react negatively. I thought if something like that happened it could be devastating to my business. I was very dependent at that time on Katie because my husband was unwell and my sister is afraid of big dogs and could not help me. I wanted to reassure Katie’s mother, and say whatever needed to be said, in case Katie had received something, so she would still come to work and not be anxious and thereby a danger to my business. I was worried about my reputation if something happened to one of the dogs because Katie was anxious, my Business livelihood would be ruined.” (Paragraph 5)

95. She explained:

A. So, I texted - I think I texted Katie’s mother. I had her number because it’s on the employee file next of kin, and I said - Look, I - I’d have to check the message to - to be spot on, but I said something along the lines of “I have received messages overnight from Katie’s former employer. I do not want to share those messages with anyone.” I am a believer of not sharing nasty because if I stop it, the nastiness stops, okay.

Q. So, you didn’t tell her? You just said, “I got these messages”?

A. Yes, yes.

Q. So, you didn’t tell her what the messages said?

A. No. I told her I didn’t want to. I don’t like to hurt people.

Q. So, you didn’t tell Katie’s mother what the messages--

A. I said, “I have received from Katie’s former employer some accusations about her behaviour” or what had gone on there, and I said, “Has Katie received any messages overnight?” and she said, “No.” I said, “Great. Is she okay?” She said, “Yes, fine,” and that was the conversation.

Q. Was it a text or a conversation?

A. I can’t remember, to be honest. I’d have to have a look on my phone. I cannot - I’m sorry, I can’t remember.” (T 43 - 44)

96. Ms McPherson said she did not tell the plaintiff’s mother what the matter complained of said. Later that day or the following day, the plaintiff’s mother rang her saying “we’re not happy” about this (T 44) and asking for a copy of the message, which she then provided, along with her reply.

97. Ms McPherson was adamant that she had never discussed the contents of the matter complained of with the plaintiff (see the extract from T 45 above), the inference being that as a result, she never found out that Tiarne had apologised the same day. However, examination of her conduct from the time of receiving the matter complained of is consistent with her knowing that there was never any substance in the allegations and her well-founded suspicion that the publication was just the plaintiff’s former employer “lashing out” at losing their valued employee. Her evidence at T 45 confirms that her real concern was for her business, not a concern about the plaintiff’s honesty. Ms McPherson feared she was “the meat in the sandwich” no matter whether the plaintiff or the defendant won the legal fight that would, she predicted, come as a result.

98. Although Ms McPherson continued to insist that she knew nothing about the scissors allegation or the subsequent apology from Tiarne, I am satisfied that, as a cautious and mistrustful person, she would not only already have some knowledge about the circumstances in which the plaintiff left her previous employ, both from the plaintiff and from her mother, but also that she never wavered in her high opinion of the plaintiff despite the terms of the matter complained of. Ms McPherson’s aggressive responses to questions on this issue only serve to heighten the unlikelihood of her never knowing the truth:

“Q. You know that she didn't steal the scissors.

A. I don't know anything about the scissors, I couldn't tell you – I can't stress this enough, I – I know zero about that situation.   

Q. You basically closed your eyes and ears to the question of whether Katie actually stole the scissors.

A. I haven't closed my – my mind to the accusation.

Q. I'm putting to you that you know that she didn't – she says she didn't steal, the scissors.

A. We have never spoken about the accusation. I – I don't know how more clearly I can say that.

Q. But you're saying that you didn't promote her to a senior role because of the messages, that's your argument.

A. I haven't promoted anybody and I have five staff now, I will never promote anybody to a senior role, because I am so goddamn scared about what could potentially happen to me as an employer, okay, and that is the way I am.

Q. Sorry, you've never promoted someone to a senior role, because you're worried about what would happen to you as an employer?

A. Yeah, look what her – her former employer has sent me. What if – what if that happens to me.

Q. Sorry, why have you not promoted anyone to a senior role? Because of what could happen to you?

A. Yes.

Q. I don't understand.

A. What if I have to end up dealing with something like this?

Q. But how is that relevant to whether they're a casual--

A. How is it not relevant?

Q. How is it relevant as to whether they're a casual employee or a full time employer or a junior employee or a senior employee as to what they may or may not do to you? As in--

A. I don't understand your question. Sorry, I'm not trying to be difficult, I don't understand.

Q. Explain to her Honour why you have not promoted anyone in your business to a senior role.

A. Because I do not feel I can trust anybody, I've already stated I have significant trust issues with people. I find it very difficult to gain trust back, that foundation has been shaken and shaken to its core. I will not employ anybody, Katie or anybody else, in a full time role because of that, okay.

Q. Because of your--

A. The messages, I can't stress that enough, sir.

Q. You're saying that you won't employ a person that's perfectly legitimately entitled to be appointed a senior person because of the messages you received from Katie.

A. That's right, not just--

Q. Ms McPherson, that's seriously not the truth.

A. No, that is the truth. How – prove to me it’s not the truth, sir.” (T 49).

99. In fact, however, Ms McPherson had an accurate idea of what had motivated the publication, namely that the plaintiff’s former employers were angry that she was now working for Ms McPherson:

“Q. Did you say something about you were concerned that you could be sued?

A. Yes.

Q. Who do you think can sue you and what for? Are you concerned about—

A. I don't know.

Q. --being sued for defamation?

A. I – well, I don't know about defamation, but what else? When – when the messages first came through, I thought, “Oh my God, they're lashing out at me because they think I stole Katie.” Katie approached me.” (T 50).

100. This perceptive analysis of the matter complained of goes a long way to explaining why Ms McPherson replied as she did. Instead of being drawn into an exchange of insults, she responds by saying that the plaintiff only had nice things to say about Perky Pooches. She adopted similar strategies in containing the damage by contacting the plaintiff’s mother rather than the plaintiff and by publishing laudatory posts about the plaintiff in December 2021. All of this was to assist not only herself and her business, but also the plaintiff.

100. Ms McPherson sought to explain away contacting the plaintiff’s mother as a wish not to upset the plaintiff, an explanation that sits ill with an asserted suspicion of her honesty. It is even harder to reconcile with the December 2021 posts about the plaintiff’s excellence as an employee.

101. Evidence of the serious harm is now reduced to a claim that Ms McPherson had been intending, even before the plaintiff had her first day at work, to place her in a position of responsibility or even as a business partner because her business was too busy for her to handle. The evidence of this is essentially Ms McPherson’s own words. Unfortunately, Ms McPherson’s evidence of her future business plans and even the success of her own business are open to question.

102. First, she stated that because her business is so successful, she has “five staff now” (T 48) plus a dog walker on the weekend (T 26), none of whom will be promoted to partner or business associate because she is so suspicious as a result of the matter complained of. However, those five staff turned out to be two schoolgirls who work in the school and Christmas holidays (T 27), herself and the plaintiff, and a semi-retired lady named Gemma who runs her own business who has to be “teed up quite early” if her services are required (T 27). Her husband’s assistance is limited because of health reasons and problems he has with dogs (T 27; CB: 108). Ms McPherson mentioned another employee named April but acknowledged that she had “health issues”, was “not often” available and was not in fact working for her any more (T 27 - 28; this is the same “April” referred to in the 3 December 2021 Facebook Post which praises the plaintiff).

103. Second, although Ms McPherson painted a picture of non-stop work, she was in fact either reducing hours or closing her business temporarily during January 2021. She shut the daycare program entirely for two weeks in January, as the majority of her clients were either Covid positive or in isolation and she was concerned about minimising her husband’s contact with the virus (CB: 108 - 9). From 1 March 2022 onwards she reduced the number of daycare days to three (Tuesdays, Wednesdays and Fridays) (CB: 110).

104. Third, Ms McPherson and her husband put their home (where the business is run from) onto the market for sale. The Domain advertisement (CB: 61) is headed, inter alia, ‘DO YOU WANT TO OPERATE A ‘DOGGY DAY CARE’ BUSINESS?”, but Ms McPherson denied that her business was for sale and said she was simply moving to another area of Albion Park as this was where her clients were (T 50 - 51).

105. Fourth, the second half of 2021 was dominated by the pandemic lockdown, the impact of which was particularly severe in suburbs around where Ms McPherson’s business was located. This was of concern to Ms McPherson because her husband had significant health problems.

106. I do not accept that Ms McPherson would have been planning on promoting the plaintiff when significant changes were occurring to her business such as business shutdowns, reduced hours and services, and selling the home from which the business was run. I do not accept that Ms McPherson’s workload had increased from starting up in September as she claims. I note the plaintiff’s evidence that her work for Ms McPherson over her whole period of employment remained at the same level.

107. Ms McPherson was a dogmatic witness who brooked no disagreement with her claims as to what happened, but her evidence is contradicted by documentary evidence as well as being inherently implausible on every issue, ranging from her response to the matter complained of to the description of her business. That is not to say that she was deliberately untruthful; she was endeavouring to help the plaintiff because she values her as an employee.

108. That is not to say that Ms McPherson was unconcerned by the matter complained of. She certainly was both angry and upset, but this was because she was concerned that this dispute could have ramifications for her and for her business. It was with the intention of minimising these ramifications that she took a series of very sensible steps to stop the harm. First, she sent a careful reply which did not suggest that defamatory counter-allegations were doing the rounds in her business. Second, she rang the plaintiff’s mother, not because of any concern that the plaintiff was a thief, but to check that the plaintiff had not been contacted and to ensure the plaintiff would find out later on, and thus not be stressed at work. Third, she published a series of laudatory posts on Facebook about the plaintiff in December, making it clear that the plaintiff was a valued team member.

109. All of her subsequent conduct points to Ms McPherson having, and continuing to have, a high regard for the plaintiff as a valued employee, which included using her Facebook page to promote her as such, and to viewing with suspicion the conduct of the defendant as being someone who was lashing out because the plaintiff had gone to work for her instead.

The evidence of the plaintiff

111. There is “no evidence” (T 65 - 66) as to what the plaintiff told her parents about the circumstances in which she suddenly left her employment at Perky Pooches after three years. She must have told them something because her father returned the keys to Tiarne and, according to Tiarne, he appeared to be angry.

112. Whether or not the plaintiff had told her parents beforehand about the accusation and the apology later the same day, that was certainly her response to both her mother and to her friend Caitlin:

“Q. When your mother showed you the message the defendant had sent Sarah McPherson on 12 October – the one we were just looking at – that you were shown by your mother – did you refer back to the fact that you’d received that earlier message which was, effectively, exonerating you of the allegations in the 12 October message?

A. Yes, I did refer back to that and said I was very shocked, because she – Tiarne had already apologised to me.

Q. So you were aware that Sarah McPherson, your new employer, had received the message on 12 October making the allegation? Yes?

A. On that day?

Q. No, I’m saying once your mother showed you the message, you’re aware that--

A. Yes.

Q. --Sarah McPherson received it, because on 15 October you wrote to Caitlin Taylor saying--

A. Yes, that’s right.

Q. --she received message and I was alleged to have stolen the scissors.

A. Yes.” (T 65 - 66).

113. However, the plaintiff denied ever telling her new employer, Ms McPherson, that the allegation could not be true because Tiarne had looked at the CCTV and apologised later the same day:

“Q. Did you approach Ms McPherson and tell her that the messages are not true?

A. No.

Q. You didn’t.

A. No.

Q. Why did you not tell Ms McPherson the messages are not true? You’re saying they’re not true.

A. Because I didn’t think it – she didn’t ask me anything about it, so I didn’t.

Q. So you’ve just started a new job, right? That’s correct?

A. Yes.

Q. And your new employer, you’re aware, has received a message from the defendant accusing you of being a thief. That’s correct?

A. Yes.

Q. And you’re saying that you didn’t think it was important to tell Ms McPherson that that’s not true.

A. I – As I said, it was quite a while ago, so I can’t remember exactly.

Q. So you may have told Ms McPherson it wasn’t you.

A. I may have told her, but I didn’t go into detail. I just said to her that it wasn’t true.

Q. So you did say to Ms McPherson it wasn’t true.

A. I can’t remember, sorry.

Q. Is your evidence that you can’t remember that you told Ms McPherson that it wasn’t true?

A. Yeah, I can’t remember.

Q. By that answer, you’re saying it’s possible you did tell her.

A. It’s possible, yeah.

Q. And if you had told her, it would’ve been pretty soon after you became aware. Is that correct?

A. Yes.” (T 66)

114. The plaintiff was asked again (at T 71):

“Q. I think you gave evidence that you can't recall, but you may have told Ms McPherson after she received the message that it's not true; the messages are not true?

A. Yes.”

115. Ms Hall submitted that these apparent concessions from an inexperienced young woman should be disregarded and the robust denials of Ms McPherson that she was ever told should be preferred.

116. I do not accept that submission. I am satisfied that Ms McPherson was well aware not only of the falsity of the allegation but also of Tiarne’s apology for it. There can be no doubt that the plaintiff told Caitlin (because this is confirmed in writing) and the plaintiff agrees she told her parents about both the accusation and the same-day apology, most probably, in my view, in relation to her ceasing to work at Perky Pooches in such a sudden fashion. Judging by Tiarne’s unchallenged evidence of the plaintiff’s father’s attitude when he came to her place of business, they very much took their daughter’s side. The plaintiff’s mother was sufficiently invested in her daughter’s new employment opportunity to ring Ms McPherson personally to thank her for offering her daughter a job, which established a relationship with Ms McPherson that led to the latter consulting her after she received the matter complained of.

117. In her affidavit of 19 June 2022, the plaintiff states that she was nervous and anxious at work and wondering whether she was going to retain her employment, as she was “confused as to why the defendant had sent the messages as I knew they were not true, and I had already received an apology from Tiarne” (paragraph 10(c)). It is completely implausible for the plaintiff to submit that, as an employee anxious about retaining her employment in circumstances where she had received an apology for it, she would not mention to her employer that it was untrue and that Tiarne had apologised.

118. The plaintiff’s evidence about the stable and ongoing nature of her employment is further evidence of the absence of any harm, serious or otherwise. Ms Hall submits that the real issue was that Ms McPherson stopped the plaintiff’s role in relation to customer service and interaction with human customers. This is, however, wholly inconsistent with the laudatory posts about the plaintiff placed on the Facebook pages in December 2021.

119. The plaintiff’s own plans to set up her own dog-grooming services from her home are confirmed by her advertisement for these services. She has no ready answer for Caitlin’s claims that she refused a job at VIP Doggy Day Care (“VIP”) because she wanted to set up her own dog grooming services. Caitlin was not cross-examined on this evidence. I note that the plaintiff’s case was opened (T 14) on the basis that the plaintiff was trying to obtain work from VIP but that no such evidence was put forward, either in affidavit form or oral evidence.

120. Mr O’Connor added an additional factor in relation to serious harm, namely that the plaintiff delayed sending a concerns notice for three months. I do not consider this evidence to be of any real significance. I note the observations of Brereton JA in Rader v Haines at [35] - [40].

The evidence of Caitlin Taylor

121. Caitlin Taylor worked with the plaintiff while she was an employee of Perky Pooches from 2016 until the plaintiff left the business in September 2021. She was cross-examined about two topics only, namely whether she had discussed her evidence with Tiarne and whether she had seen a hard copy of the matter complained of, as opposed to a screenshot on a phone, both of which she denied. The accuracy of the rest of her affidavit is unchallenged.

122. Caitlin sets out in her affidavit of 29 June 2022 that she became good friends with the plaintiff while they worked together and that they have remained close friends since, spending a lot of time together outside of work on activities such as camping and travelling to participate in dog sports (paragraphs 4 - 6).

123. In September 2021, Caitlin and the plaintiff were participating in a video chat on Facebook Messenger with Annette, another employee of Perky Pooches (who was not working there at the time because of Covid-19 issues) and also “another friend of the plaintiff” (paragraph 7). During that video chat, Annette asked Caitlin to “grab my scissors as Katie does not know which exact scissors they are” (paragraph 7) and put them in Katie’s bag so she could send them off to Annette later in the week. Both girls agreed and, on 20 September 2021 at about 8.30 AM, Caitlin put the scissors in question into the plaintiff’s bag.

124. Tiarne arrived for work and immediately noticed the scissors were missing. She asked Caitlin, “Where are Annette’s scissors?”. Caitlin lied and said, “I don’t know anything about it. You should ask Katie about it. She took the scissors to send them to Annette”. Caitlin did not tell the truth because she was “afraid I would get into trouble”. Tiarne then spoke to the plaintiff, who left work to go on sick leave and never returned.

125. The following morning at 9 AM, Tiarne spoke to Caitlin and said, “I have reviewed the CCTV and I saw that you actually took the scissors.” Caitlin replied, “I am sorry, I did take the scissors. I’m sorry for lying but I was scared of the consequences.” (paragraph 12). She was reprimanded and had to hand back her copy of the keys to the premises.

126. Although not referred to in her affidavit, Caitlin must have been aware that the plaintiff had started a new job, whether because the plaintiff told her herself or from some other source, such as Ms McPherson’s Facebook post. She was not aware of the message the defendant sent to Ms McPherson until the plaintiff told her about it in the text messages set out above. The last of those messages, dated 16 October 2021, was a warning not to discuss anything about the defendant’s messages. Caitlin was not cross-examined about her statement that she did not show anyone at Perky Pooches the messages until Friday 20 May 2022 because she took the plaintiff’s message of 16 October 2021 “to be a threat that Katie would somehow get me into trouble if I shared this message with anyone” (affidavit, paragraph 17; I took this to be not merely concern about employment issues but also potentially being sued for defamation; I note the similar concerns expressed by Ms McPherson).

127. At paragraph 18, Caitlin states that the plaintiff described her employment status in November 2021 as follows:

“I work at Albion Bark on a casual basis a few days a week. On my days off, I work at a dog home grooming salon in Dapto and I also dog sit for Albion Bark, doing dog-sitting. I’m looking to set up my own salon from home.”

128. At paragraph 22, Caitlin describes a conversation she had with the plaintiff on 22 June 2022 while they were away on a dog Flyball trip. One of the other girls was talking about becoming a dog groomer and Caitlin commented to the plaintiff that “there are lots of people looking for dog groomers”. The plaintiff responded, “I got offered a job with VIP Doggy Day Care. Once VIP found out that I was a groomer they wanted me to come over. The owner said they have a full grooming setup and if I want to groom a couple of days out of there. I’m not going to take it because I’ve started my own business from home.” (paragraph 22). This is a very different story to the claims on opening (T 14) that the plaintiff had been trying to get a job with VIP.

129. I take into account, in terms of Caitlin’s honesty, that she lied to Tiarne about the scissors. In addition, as a current employee of Tiarne’s, she has an interest in keeping her job. Nevertheless, her evidence is consistent with contemporaneous text messages. She was not cross-examined about her account of the plaintiff telling her about starting her own business and refusing a job from VIP.

The evidence of the defendant and Tiarne Perkiss

130. This evidence adds very little to the issue of serious harm.

131. The defendant admitted she had had a few drinks when she sent the Facebook Messenger messages. I am satisfied that she was angry that the plaintiff had in fact obtained another job while on sick leave and sent a malicious text message which she then failed to “unsend” properly.

132. Tiarne Perkiss gave evidence in a frank and straightforward fashion. She made admissions where appropriate, including admitting that when she looked at her mother’s phone, Ms McPherson’s reply was visible. I accept her evidence that she was careful about not discussing the scissors incident with other staff members, either at the time or after the matter complained of came to her attention.

The plaintiff’s submissions on serious harm

133. Ms Hall submits that serious harm is established by the reaction of Ms McPherson as follows:

1. Ms McPherson set out in her affidavit that she felt “rattled” and in “complete shock” (first affidavit, paragraph 7; second affidavit, paragraph 10). Such was her state of distress that she did not feel comfortable with raising the publication with the plaintiff (second affidavit, paragraph 7). It caused her to change her behaviour to the plaintiff in a number of ways, such as how she spoke to her, what duties she had in the business, dealing with customers, coming into the office part of her home (even to use the bathroom) and, most importantly, not offering her full time employment or a senior role/business partner opportunity.

2. Although Ms McPherson acknowledged that her opinion of the plaintiff had since recovered, she continued to prefer not to employ her on a full-time basis, whereas she had previously considered her suitable to be a senior manager or business partner (second affidavit at [4] and [16] - [17]). Although she has never spoken to the plaintiff about her doubts and concerns, they are such that trust has been lost because, once the seed is planted, it is hard to overcome, even with the best of intentions.

3. There can be no question of retraction because, regardless of Ms Perkiss providing an apology direct to the plaintiff (about which Ms McPherson know nothing because she has never discussed anything with the plaintiff), no retraction has been made to Ms McPherson (second affidavit paragraph 19 and annexure A).

134. Ms Hall summarises the serious harm as follows:

1. The “profound, and dramatic” impact and the “severity” of the drop in reputation is “qualitatively serious” (submissions, p. 5).

2. Ms McPherson’s conduct to the plaintiff amounted to “shunning and shaming” of the plaintiff (submissions, p. 5).

3. This impact continued for several weeks to that degree and still lingered to a considerable degree today, which means that the trajectory of the harm continues over a long period of time.

4. Specific factors surrounding the publication are relevant to the severity of the harm. These include the fact that Ms McPherson had only just started to employ the plaintiff, the sarcastic tone, the fact that it was sent to the plaintiff’s employer and the identity of the defendant as someone at Perky Pooches, a business with a good reputation.

5. The quality of the harm is the issue, not the extent of publication, and Ms McPherson’s evidence should be accepted on all issues.

The defendant’s submissions

135. The defendant submits:

1. The defendant sent a private message on Facebook Messenger to one person and there is no evidence that the publication was disseminated to third parties.

2. Ms McPherson’s reply of 13 October 2021 and her subsequent posts on Facebook about the plaintiff in December 2021 indicate that Ms McPherson’s opinion of the defendant as a reliable employee did not change. In the plaintiff’s own case, at its highest, Ms McPherson had concerns about the plaintiff for about a month. Ms McPherson’s evidence of suspicion and mistrust of the plaintiff should not be accepted as it is not merely implausible but also inconsistent with contemporaneous documentation. Ms McPherson’s claims about her intentions to give the plaintiff a bigger role in her business plans were inconsistent with the documentary evidence as well as with the evidence of the plaintiff and were implausible.

The background to s 10A and “serious harm”

136. Before considering the s 10A elements and test, I note observations of academics and legislators about the circumstances in which this new provision has been added to the Uniform Legislation in five out of seven of the States and Territories of Australia.

137. The first is that, as Professor David Rolph explains in “A Serious Harm Threshold for Australian Defamation Law” (2022) 51 Australian Bar Review 185, the clear intent of the provision is to raise the threshold of seriousness required at common law. The statutory serious harm threshold will need to be determined according to its own terms as a legislative provision, which by definition goes beyond mere codification of common law principles such as proportionality and abuse of process, whether these have been accepted as law or not.

138. Second, the serious harm threshold will need to be construed in the context of the legislation as a whole, in terms of the widespread concern about the dangers of defamation litigation in common law jurisdictions around the world. Caution should be exercised not to define “serious harm” disjunctively for the reasons explained by Basten AJA in Rader v Haines at [91].

139. Third, there is the need for caution when interpreting how “serious harm” is viewed in other jurisdictions. As the Department of Justice Stage 2 Review of the Model Defamation Provisions (22 August 2022) sets out in the chapter headed “Context”, defamation law reform has under consideration in other common law countries, notably in England and Canada, both of which jurisdictions introduced concepts of “serious harm” into the law, although taking a very different approach to how it should be applied. The decision, in Australia, to adapt s 1 of the Defamation Act 2013 (UK) means that the substantial body of judgments in England may provide guidance. Nevertheless, for the reasons explained by Sackar J in Newman v Whittington at [30] - [46], a cautious approach is necessary. Even greater caution is necessary in relation to Canadian judgments on “serious harm”, as its role is entirely different, in that it is a preliminary issue in anti-SLAPP motions (see Ontario Limited v. Pointes Protection Association, 2020 SCC 22; Bent v. Platnick, 2020 SCC 23).

140. Fourth, when considering the interpretation of the term “serious harm”, it should not be forgotten that this is not a new term, but a well-used statutory concept, appearing in more than a dozen other statutes in New South Wales (e.g. Mental Health (Forensic Provisions) Act 1990 (NSW), cl 2). It is even more widely used at the Commonwealth level, where it appears in statutes dealing with everything from terrorism to privacy. While “serious harm” does not have a particular statutory meaning that applies in all contexts, it has an ordinary English meaning which depends on and is construed in relation to the context in which the expression is used (such as the kind of harm to which it is addressed). The test must be carefully and consistently applied, as the High Court stressed in relation to the “serious harm” test set out in s 91R(1)(b) of the Migration Act 1958 (Cth): VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 CLR 1. It must be applied to the appropriate kind of harm identified in the statute; for example, the statutory definition of “serious harm” in s 5 of the Online Safety Act 2021 (Cth) warns that that mere “distress, grief, fear or anger” will not be sufficient.

141. I do not suggest that the tests applicable in these other statutes are of any relevance to the determination of serious harm in defamation proceedings. However, the use of this well-used term “serious harm” requires the same careful delineation of its elements, in terms of facts and law, as would be expected in other legislation where such a test is posed. It should not be a case of “business as usual” with defamation claims being indulgently waved through on the basis of an asserted “serious” imputation and/or a large audience being sufficient to establish what was intended to be a test of the magnitude identified by Brereton JA in Rader v Haines.

Identifying the purpose of s 10A

142. The Explanatory Note to the Defamation Amendment Bill 2020 (NSW) states that the aims of the amendments were, inter alia:

(a) to provide for serious harm to be an element of the cause of action for defamation,

(b) to require that, if raised by a party, a judicial officer is generally to determine whether the serious harm element is established as soon as practicable before the trial of defamation proceedings so as to deal with insignificant claims early in the proceedings…

143. In the Council of Attorneys-General Review of the Model Defamation Provisions - Background Paper (December 2019, p. 25), the observation was made that an increasingly common feature in defamation was the rise in number of small cases which were “neighbourly disputes” and “backyard defamation”, where the cause of action was generally commentary of an informal nature, usually made on digital platforms. The damages were often low but were accompanied by disproportionately high legal costs and additionally took up significant court resources. This concern was again identified by the New South Wales Attorney-General, Mr M Speakman KC MLA, in the Second Reading Speech concerning the amending legislation, which additionally noted the burden on court resources of claims where the imputations were of a relatively minor nature and/or the extent of publication was limited.

144. I should emphasise that limited publication is not, however, necessarily an indicator of lack of serious harm. A publication to one person can, in some circumstances, cause harm of a serious nature. Similarly, widespread publication may just as readily fail the test where, for example, the statements are made in the course of political discourse (Cadwalladr at [63]) or otherwise do not result in serious harm.

145. The test for serious harm is summarised by Brereton JA in Rader v Haines at [28] - [29]; I also note Basten AJA’s additional comments at [91]. The time for the assessment of harm is explained in Rader v Haines at [30] - [40]. I gratefully adopt these statements of principle.

Application of the serious harm test to the facts in this case

146. In the concerns notice sent three months after the publication, the plaintiff particularised significant damage to her business reputation, namely:

1. Financial loss resulting from difficulty procuring alternate employment (which may be ongoing).

2. Purchase of equipment of new employment (presumably dog scissors, although this was never explained).

3. Humiliation and damage to reputation within the dog grooming industry and from future employers.

147. All these particulars, which were repeated in the amended statement of claim, shrank away to nothing. All the plaintiff was left with was her new claim of damage to reputation in the eyes of her current employer which was an enlargement of the reference to her current employer’s “adverse” and “strong” reaction in the amended statement of claim.

148. Even that claim must fail. I do not accept Ms McPherson’s claim that “for weeks after” (T 38 - 39) she read the matter complained of, she felt the plaintiff could not be trusted. To the contrary, by contacting the plaintiff’s mother and arranging for her to tell the plaintiff at a suitable moment, she demonstrated a careful concern for the plaintiff as a valued employee. I am satisfied that she continued to treat the plaintiff as a valued employee without any change over the following months and held her out as such on Facebook posts because she genuinely believed this to be so, and not on the advice of some unnamed social media adviser. Ms McPherson was angry and suspicious about the matter complained of, but that anger and suspicion was, I consider, directed to the defendant and to the plaintiff’s former employer, whom she suspected of lashing out because they had lost a valued employee.

149. I also do not accept that Ms McPherson was in fact looking to give the plaintiff more work or a more senior role in her business, largely because of the many difficulties this very new venture was facing in terms of the economic conditions at the time.

150. Nor is there any evidence of any publication in the dog grooming industry or even in the plaintiff’s current workplace amongst her fellow employees. There is no evidence of anyone at Perky Pooches knowing anything except Caitlin, who knew because she is a witness in the proceedings. Nor is there any evidence of shunning or avoiding by other employees at Albion Bark; to the contrary, Ms McPherson said that everyone there got on with the plaintiff (T 31).

151. The grapevine effect having been abandoned, the only remaining sources of publication would be the plaintiff’s parents (a submission Ms Hall does not make) and Ms McPherson’s husband.

152. At its highest, the plaintiff’s claim cannot identify to any other source of serious harm beyond what is asserted to be a change in attitude towards her by her employer for a few weeks, a claim which I have not accepted. I do not consider that the plaintiff’s reputation suffered any harm in Ms McPherson’s eyes at all.

153. The plaintiff has thus failed to establish that she has suffered anything, beyond the distress and anger she felt at being falsely accused of theft; however, that distress cannot be equated with evidence of serious harm, which must be to reputation.

154. The plaintiff having failed to prove that publication of the matter complained of caused or was likely to cause serious harm to her reputation, the proceedings will accordingly be dismissed.

The concerns notice

155. I briefly note my reasons for refusing the defendant’s application to strike out the statement of claim on the basis that the concerns notice was invalid because it failed to set our particulars of serious harm.

156. Proceedings may not be commenced without a concerns notice (s 12B), the contents of which are set out in s 12A and include, relevantly for these proceedings, a requirement to attach the matter(s) complained of and to provide particulars of the serious harm the plaintiff considers has been caused.

157. The plaintiff’s solicitor sent a concerns notice on 6 January 2022 which was defective, in that her solicitor failed to attach the matter complained of or, in the body of the concerns notice, to set out a heading “Particulars of serious harm” followed by the matters that the aggrieved person considered to be serious harm to her reputation. The plaintiff’s solicitor then filed a statement of claim which again failed to set out the particulars of serious harm (paragraph 7 set out a claim only for damage to reputation and hurt to feelings) and (contrary to UCPR r 14.30) failed to attach the concerns notice.

158. I pointed out these omissions on the first return date. The defendant could have challenged the adequacy of the concerns notice and statement of claim but instead consented to the filing of an amended statement of claim particularising serious harm. A date for the serious harm application to be heard was allocated.

159. As the transcript records (T 5), the hearing proceeded on the basis that there was no challenge to the validity of the concerns notice for any reason. It was not until I inquired, after submissions had been provided and before oral addresses, whether any point was to be taken about the absence of a heading “particulars of serious harm” in the concerns notice and statement of claim that the defendant indicated a challenge would be made to the validity of the concerns notice.

160. How adequately does the concerns notice particularise serious harm? The defendant, in submissions in support of this application, focussed on paragraph 3.15, which described the damage to reputation in traditional terms without any reference to serious harm:

“The Imputations of concern have a tendency to cause injury to our client in her profession and exposes our client to hatred, contempt, or ridicule, and otherwise lower our client’s reputation in the estimation of others.”

161. That would not, of itself, be enough. Luckily, there was more to follow. After paragraph 4 of the concerns notice (a claim for misleading or deceptive conduct), paragraph 5, curiously headed “Request”, gave the following particulars:

“Our client instructs us that it [sic] has suffered financial loss resulting from difficulty procuring alternate employment (which may be ongoing), purchase of equipment of [sic] new employment, humiliation and damage to reputation within the dog grooming industry and future employer.”

162. If the heading “Particulars of serious harm” had appeared, instead of “Request”, there would be little doubt that these were the particulars of harm. This is confirmed by the fact that the amended statement of claim filed on 9 May 2022 repeats these claims, in paragraph 6A(d), stating that the concerns notice “informed the Defendant that [sic] the Plaintiff considers to be serious harm to her reputation caused, or likely to be caused, by the Defamatory Publication” and then provides particulars of serious harm as follows:

“9A By reason of the matters pleaded in paragraph 4 to 5 inclusive and 7 to 9 inclusive above, the Defamatory Publication, inter alia, was strong [sic], affected in an adverse manner the attitude of the Plaintiff’s employer towards the Plaintiff, resulted in difficulty in procuring alternate employment, purchase of equipment for new employment and harm to her reputation within the dog grooming industry and future employers.

9B By reason of the matters pleaded in paragraph 9A above, the Defamatory Publication has caused and further, or in the alternative, is likely to cause serious harm to the reputation of the Plaintiff within the meaning of section 10A(1) of the Act.

9C The Concerns Notice informed the Defendant of the matters pleaded in paragraph 9A above.”

163. Where a claimant fails to properly particularise an adequate claim for serious harm, this is a threshold issue and the particulars of claim are liable to be struck out: Ruta v Department for Work and Pensions [2022] EWHC 1535 (QB) at [38], citing Johnson v McArdle [2020] EWHC 644 (QB). The failure of the plaintiff to set out, under an appropriate heading, such particulars of serious harm as would be relied upon at the hearing, was a serious deficiency and could have invalidated the concerns notice. By coincidence, the plaintiff provided particulars of losses which would, if established, have been identifiable as serious harm. What is more, both parties treated these particulars as if they were the particulars of harm in question, with the defendant permitting the plaintiff to insert them in the amended statement of claim. In light of what was clearly the parties’ mutual understanding, it would be unduly technical, at the end of the trial, to strike these particulars out due to what is little more than an absent heading.

Form of orders and costs

164. I note the form of orders made in English decisions, such as Cadwalladr at [416], namely that dismissal based on failure of serious harm results in dismissal on the basis of lack of defamatory meaning. In Rader v Haines at [17], Brereton JA explains the differing position of defamatory meaning in s 10A. Accordingly the appropriate order is the dismissal of the claim without reference to defamatory meaning.

165. I have reserved the issue of costs, with liberty to apply.

Order:

1. Pursuant to s 10A of the Defamation Act 2005 (NSW) and Uniform Civil Procedure Rules 2005 (NSW) r 28.2, the plaintiff has failed to prove that publication of the matter complained of caused or was likely to cause harm to her reputation and the claim is dismissed.

2. Costs reserved, with liberty to apply.

3. Exhibits retained until further order.

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Decision last updated: 07 October 2022