Henderson v Harvey

1. [1]

   MITCHELMORE JA: I agree with Adamson JA.

2. [2]

   ADAMSON JA: Gary Henderson and Sara Tilling (the applicants) seek leave to appeal against the judgment ordered by Rothman J (the primary judge) in the Supreme Court (the Court below) on 12 June 2025 for damages in defamation in the sum of $65,000 in favour of Laurae Harvey (the respondent): Harvey v Henderson [2025] NSWSC 601 (J). The applicants were ordered to pay the respondent’s costs on an indemnity basis by reason of an early offer which had been bettered by the judgment sum. Leave to appeal is required as the matter in issue does not amount to more than $100,000: s 101(2)(r) of the Supreme Court Act 1970 (NSW).

3. [3]

   The applicants and the respondent were interested in wildlife rescue in South East New South Wales. The respondent owned two rural properties, known as Cobargo (or Yowrie or Ilawambra) and Runnyford respectively. She was associated with an association known as “Wild2Free” which promoted the care of native animals. A dispute arose between the parties which included issues relating to an agreement whereby the respondent had agreed to sell the Cobargo property to the applicants, who leased it for a period. The applicants, together and separately, published statements concerning the respondent, some of which were relied on by the respondent as impugned publications (IPs) in her claim for damages in the proceedings before the primary judge. The topics of those publications included the propriety of the respondent’s fund-raising activities, following a house fire in 2016 and also following the widespread bushfires in New South Wales (and elsewhere) in late 2019 and early 2020 which destroyed the respondent’s home on the Runnyford property

4. [4]

   The trial was conducted by the primary judge alone (without a jury) over 12 days in April and June 2024 and the judgment was delivered on 12 June 2025. The respondent was represented throughout by Mr Rasmussen (who also appeared on her behalf on appeal with Mr Cheema) and a solicitor. The applicants were legally represented at various interlocutory stages but appeared for themselves at the trial. They were represented by Mr Smark SC and a solicitor in this Court. At the trial, the respondent gave evidence and was cross-examined but the applicants did not give evidence.

5. [5]

   In total, there were eight IPs. There was no challenge to the primary judge’s finding that each of the IPs was defamatory. In the Court below, the applicants argued that all of them were protected by qualified privilege (other defences, including justification, were raised in the Court below). The primary judge found IP1, IP3 and IP4 were protected by qualified privilege. The applicants do not seek to challenge the finding that IP5 was not protected by qualified privilege but they seek to challenge the primary judge’s rejection of their defence of triviality under s 33 of the Defamation Act 2005 (NSW) (the Act), as it stood prior to 1 July 2021. They also seek to challenge the primary judge’s failure to differentiate between the two respondents as to the quantum for which each was liable (judgment was entered against both of them in the sum of $65,000).

6. [6]

   Accordingly, leave is sought to challenge the following:

7. [7]

   In order to obtain leave to appeal, the applicants need to demonstrate an issue of principle, a question of public importance or a reasonably clear injustice going beyond something which is merely arguable: see the authorities referred to in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 (PPK) at [6] (Bell P and Simpson AJA).

8. [8]

   In Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164, this Court (Basten JA, Tobias AJA agreeing) confirmed that s 58 of the Civil Procedure Act 2005 (NSW), which requires the Court to act in accordance with “the dictates of justice”, applies to leave applications, as does s 60 of the Civil Procedure Act which provides:

9. [9]

   To determine whether leave is warranted, the proposed grounds must be addressed sufficiently to assess whether any of the matters referred to in PPK above have been demonstrated.

10. [10]

    The proposed grounds of appeal are:

The primary judge’s reasons

1. [11]

   IP2 were emails sent on 5 and 7 July 2020 by the applicants to Janelle Babington, the Executive Director of the American Red Lion Disaster Fund (the Fund), an organisation based in Wilmington, North Carolina in the United States of America. In those emails, the applicants purported to inform Ms Babington that “not one cent of the money [the Fund] collected from donors and forwarded to Australia for bush fire assistance was spent [by the respondent] helping animals in need from that disaster [the bushfires in 2019-2020]”.

2. [12]

   The particulars of qualified privilege on which the applicants relied in the Court below were as follows:

3. [13]

   The communications between the applicants and the Fund were in evidence. On or about 1 March 2020, the Fund wrote to the “Cobargo Wildlife Sanctuary” (which was operated by the applicants) telling them that they had a large donation to send to them. The applicants responded by thanking them. In a further message sent on 1 March 2020 the Fund said that a cheque could be sent through the mail and that the Fund had $3,400 “now” and another $1,500 in about a month. On 3 March 2020, the Fund wrote to Ms Tilling telling her that the Fund was still trying to work out how to send the funds, informing her that “the girl from go fund me” mentioned that the Fund should donate to Wildlife Rescue Sunshine and asking whether Wildlife Rescue Sunshine was “good”. Ms Tilling responded by saying that Wildlife Rescue Sunshine was “an amazing organisation”. On 17 March 2020, Ms Tilling followed this up with another message. She also sent a further message on 21 March 2020 in which she said:

4. [14]

   The Fund responded:

5. [15]

   On 21 March 2020, the applicants sent a further message to the Fund which said:

6. [16]

   On 30 March 2020, the applicants sent an email to the Fund which said in part:

7. [17]

   On 5 July 2020, the applicants sent the email to Ms Babington, IP2, purporting to warn her (and the Fund) that the respondent was involved in a fraud since the money she had raised for Wild2Free was not spent helping animals in need. The email of 7 July 2020 was to similar effect.

8. [18]

   The primary judge’s reasons for rejecting the defence of qualified privilege in respect of IP2 are at J [575], as follows:

9. [19]

   At the relevant time (prior to 1 July 2021), s 33 of the Act (which has since been repealed) provided:

10. [20]

    IP5 was a Facebook comment posted by Mr Henderson on the Animal Rescue Cooperative (ARC) Facebook page. The comment appeared below an article which promoted Wild2Free and paid tribute to the animal shelter run by the respondent. Mr Henderson’s comment was:

11. [21]

    The primary judge found that IP5 carried each of the two imputations as alleged (J [340]-[341]):

12. [22]

    The primary judge’s reasons for rejecting the s 33 defence were as follows:

13. [23]

    IP6 and IP7 were comments posted by Ms Tilling on the ABC South East NSW Facebook page in response to comments posted by others (not including the respondent) about the applicants. The topic of crowdfunding for wildlife carers was the subject of an online ABC News article written by journalists, Emily Baker and Claire Wheaton. Its headline was, “Feud over money donated to wildlife carers amid NSW bushfires prompts crowdfunding warning”. The article said, in part:

14. [24]

    It is evident from the text of the article that the authors had spoken to the applicants, the respondent, Leon Kelly, who was the caretaker of the Cobargo property when the fires burned through it, and Kat Agar-Teehan, one of the fund-raising organisers. Each of these sources was quoted in the article.

15. [25]

    Of Mr Kelly, the authors wrote:

16. [26]

    The authors reported that Ms Agar-Teehan “said she’d co-founded the crowdfunding campaign in the belief Mr Henderson and Ms Tilling had spent all their money buying lllawambra.” Ms Agar-Teehan is quoted as saying, “The fundraiser went into something that, as far as I was concerned, wasn’t real … They weren’t living on a sanctuary, they had lived on land that was going to become a sanctuary.”

17. [27]

    The authors quoted Ms Tilling as saying that the allegation that the (Cobargo) property was not a sanctuary was “absurd”.

18. [28]

    The topic of crowd-funding for the sanctuary on the Cobargo property and how, and on what basis, funds were solicited was discussed on the ABC South East NSW Facebook page. It was common ground that there was a link on the ABC South East NSW Facebook page to the article. The Facebook page published comments from persons other than the respondent which were critical of the applicants. Ms Tilling posted comments defending her own conduct. She also referred to the respondent’s own fund-raising and said:

19. [29]

    In the Court below, Ms Tilling relied on the common law defence of qualified privilege based on reply to attack with respect to IP6 and IP7. The respondent replied by contending that she had not attacked Ms Tilling herself and that what Ms Tilling said about her was not relevant to the attacks made by others about Ms Tilling’s conduct.

20. [30]

    The primary judge addressed these arguments as follows:

21. [31]

    The primary judge found that it was unnecessary to decide whether the defendants had established the defence of qualified privilege of reply to attack because their defence did not succeed in any event: J [555]-[557]. His Honour found, at J [561], that the defence of qualified privilege “allows the defendants to answer the attack and, in so doing, publish defamatory imputations that are relevant to the answer to the attack [but] does not allow the publication of defamatory imputations that are irrelevant to the attack made against them.”

22. [32]

    The primary judge said further at J [562]:

23. [33]

    Having rejected the qualified privilege of reply to attack, the primary judge found that there was no “mutual interest” between the applicants and “all of the readers of the ABC South East NSW Facebook page”: J [566].

24. [34]

    IP8 was an email sent by Mr Henderson on 30 August 2020 to Caitlin Williams, who was said to be associated with crowd-funding by the respondent in 2016. In the email, Mr Henderson said:

25. [35]

    The background to IP8 was as follows. In 2016, a GoFundMe campaign entitled ‘Rae & Sayo’s Relief Fund’ was established to help the respondent and her then partner raise $1,000 after a house fire destroyed their home at Yowrie in June 2016. As at the date of publication, 30 August 2020, the GoFundMe page had long been inactive.

26. [36]

    The primary judge found that each of the pleaded imputations was made out (J [344]):

27. [37]

    The primary judge’s reasons for rejecting the defence of qualified privilege for IP8 were as follows (J [567]):

28. [38]

    It was common ground in this Court that the parties had addressed the question of damages on the basis that there would need to be separate awards (as both applicants were liable for IP2; Mr Henderson was liable for IP5 and IP8; and Ms Tilling was liable for IP6 and IP7).

29. [39]

    Mr Rasmussen informed this Court that in the Court below the respondent had suggested separate amounts for each applicant and proposed that the amount for which Mr Henderson should be held liable could be 20% more than the damages for which Ms Tilling should be held liable.

30. [40]

    For reasons which do not appear in the judgment, the primary judge made an order for judgment in a global figure against both applicants.

31. [41]

    At the hearing of the application for leave to appeal, the parties agreed that, if leave were granted only in respect of ground 5, they would consent to an order that the appeal be allowed on that ground and that the judgment ordered by the primary judge be set aside and, in lieu thereof, there be judgment for the respondent against each of the applicants in the sum of $32,500 each.

Whether leave ought be granted

1. [42]

   Mr Smark submitted that the only reason leave was required was because the amount of the judgment was less than $100,000. He submitted that it could reasonably be inferred that the liability imposed on the applicants for the costs of the proceedings (which took 12 days) on an indemnity basis would dwarf their liability for the judgment itself. He also submitted that any change in their relative success which may be occasioned by success on one or more grounds of appeal could have a significant effect on their liability for costs. On this basis, he submitted that the proceedings were worthy of a grant of leave since the amount actually at stake far exceeded $100,000.

2. [43]

   The vice of a disproportionality between the amount in issue and the magnitude of the costs expended is notorious. Defamation claims would appear to be particularly productive of this type of disproportionality. Trials tend to be hard fought; frequently several defences (including justification) are raised and the damages which are awarded are, almost inevitably, disproportionate to the costs expended to achieve them. This is not to say that plaintiffs ought not sue since vindication is a significant and important motive. However, I regard the disproportionality between the costs and the amount of the judgment to be a factor which weighs against the grant of leave and not, as Mr Smark submitted, one which ought weigh in its favour: see the discussion in Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15]-[21] (Bell CJ, Ward P and Basten AJA). That it may be worth the while of an unsuccessful party in defamation proceedings to seek to challenge the result with the hope of altering a costs order does not mean that this Court ought grant leave to appeal.

Proposed grounds of appeal

1. [44]

   Mr Smark submitted, with respect to IP2:

2. [45]

   Mr Smark submitted that the question whether a communication was protected by qualified privilege was one which admitted of only one answer and that the primary judge was in error to determine that IP2 was not protected by qualified privilege.

3. [46]

   One of the difficulties with the alleged error is that the evidence of what led the applicants to believe that the respondent was responsible for the applicants not receiving the foreshadowed donations from the Fund was so scant. The terms of the texts and the emails which preceded IP2 indicated that this was the applicants’ belief but their belief was not substantiated and they did not give evidence in the Court below. It was in this context that the primary judge was not satisfied that the requisite mutuality of interest or duty to establish the defence had been made out.

4. [47]

   This question does not give rise to any reasonably clear injustice going beyond what is merely arguable. Nor does it raise an issue of principle or public importance.

5. [48]

   Mr Smark argued that the primary judge was in error in not making the “appropriate” finding that there was no real chance of harm in circumstances where the allegations made were “not very serious” in that they did not allege dishonesty or fraud and took the form of a comment in what was a relatively limited and short-lived Facebook post.

6. [49]

   The assessment whether the circumstances of publication were such that the plaintiff was unlikely to sustain any harm required an exercise of judgment. It is difficult to accept the submission that the allegations made were “not very serious” because they did not allege dishonesty and fraud. The imputations that the respondent misused charity funds and ran a charity for her own benefit and not for the purpose of rescuing animals amounted to allegations of serious wrongdoing. Further, the comment was published on the ARC Facebook page. Mr Rasmussen informed the Court that the evidence which the respondents led at trial established that the page was followed by large numbers of people throughout Australia who were concerned about the harm to wildlife caused by the widespread bushfires in 2019 and 2020.

7. [50]

   Proposed ground 2 does not give rise to any reasonably clear injustice going beyond what is merely arguable. Nor does it raise an issue of principle or public importance. The question whether hurt to feelings ought be taken into account with damage to reputation in the assessment whether there was a real chance of harm does not arise since the primary judge found that the threshold was exceeded even if only harm to reputation was taken into account. As s 33 of the Act was repealed in 2021, its meaning and application are no longer of current general relevance.

8. [51]

   Mr Smark submitted that the primary judge was in error in concluding that IP6 and IP7 were not protected by qualified privilege in the nature of reply to attack when Ms Tilling responded to the attack that the applicants had given sanctuaries a bad name by contrasting their position with that of the respondent. He submitted that the approach taken by the primary judge was inconsistent with authorities, such as Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44, which emphasised the latitude which ought be allowed in the context of reply to attack qualified privilege.

9. [52]

   Mr Smark relied on the fact that the respondent had not challenged the primary judge’s finding that the attack does not have to come from the plaintiff. He submitted that, in these circumstances, the availability of the defence of qualified privilege with respect to IP6 and IP7 turned on whether Ms Tilling’s response was germane to what was said about her. He submitted that the effect of the primary judge’s finding was that Ms Tilling had, in effect, said that, although she had done the wrong thing, the recipient of her message should have regard to what the respondent had done, which was worse. Mr Smark submitted that this analysis was erroneous because Ms Tilling had said, in substance, that she had not done the wrong thing of which she had been accused but that the respondent had done the wrong thing.

10. [53]

    Even if the primary judge’s analysis of the dynamic of Ms Tilling’s responses in IP6 and IP7 was erroneous in the respect for which Mr Smark contended, relevance is still a requirement. A gratuitous attack on the respondent in this context would not warrant a finding of qualified privilege.

11. [54]

    I am not persuaded that the error alleged in proposed ground 3 gives rise to any reasonably clear injustice going beyond what is merely arguable. Nor does it raise an issue of principle or public importance.

12. [55]

    Mr Smark accepted that the sole recipient of the email which constituted IP8 was Ms Williams, who was the organiser of the GoFundMe page, and that the page was “inactive and had outlived its purpose”. However, he submitted that the applicant’s case on qualified privilege was that Ms Williams had been the organiser of the GoFundMe page and that Mr Henderson had information which suggested that Ms Williams had been misled by the respondent with respect to the establishment of that GoFundMe page. Mr Smark submitted that:

13. [56]

    Mr Rasmussen submitted in this Court that the way in which the applicants had put their defence of qualified privilege in the Court below did not accord with the way in which Mr Smark put the defence in this Court. He annexed to his submissions, the applicants’ written submissions on the defence in the Court below, which dealt globally with IP1, 2, 3, 4 and 8. These submissions referred to the authorities in general terms and said that the defence required a privileged occasion which arises from a reciprocity of interest between a publisher and its recipient. The applicants’ submissions continued:

14. [57]

    The balance of the submissions on the defence of qualified privilege for IP8 referred only to the particulars of qualified privilege alleged in the applicants’ further amended defence. These particulars were as follows:

15. [58]

    I accept Mr Rasmussen’s submission that the applicants’ defence of qualified privilege before the primary judge did not incorporate the nuance developed by Mr Smark. The primary judge addressed the case which had been put by the applicants. It can be inferred that the relatively brief reasons given by his Honour for rejecting the defence of qualified privilege to IP8 (including the observation that the defence was unarguable) reflected the generality with which the applicants put the defence in the Court below. While the applicants were entitled to appear for themselves in the Court below they cannot thereby obtain the forensic advantage of being permitted to reframe their defence by briefing counsel of Mr Smark’s calibre and experience in this Court.

16. [59]

    Proposed ground 4 does not give rise to any reasonably clear injustice going beyond what is merely arguable. Nor does it raise an issue of principle or public importance.

17. [60]

    Mr Smark submitted that the primary judge’s single order for damages can only be understood as being the amount, $65,000, which reflects the combined effect of each of the IPs for which either or both of the applicants were found liable. He submitted that, to the extent that the judgment was ordered against Mr Henderson in respect of IP6 and IP7, and Ms Tilling for IP5 and IP8, it is necessarily too high. He submitted that it was necessary for separate awards to be made (in lesser sums) against each applicant.

18. [61]

    Mr Rasmussen submitted that, although it had not been proposed by the parties (and although the primary judge’s reasons did not indicate any reasoning process to that effect), the approach taken by the primary judge was “probably authorised” by s 39 of the Act. He also submitted that it could be explained by the primary judge’s observation, when assessing damages, that it was difficult to separate the effect of the actionable publications from those which were not (J [608]-[609] and J [613]-[614]). Mr Rasmussen also submitted that it could be inferred that the primary judge intended to divide the $65,000 award as between the applicants equally. He relied on the circumstance that the primary judge had ordered pre-judgment interest on half the sum ($32,500) from 1 July 2020.

19. [62]

    However, Mr Rasmussen accepted that a grant of leave on this ground may be appropriate and that “[a] reasonable approach to take on the above analysis would be to divide the $65,000 awarded as between the defendants equally”. Otherwise, he submitted that this Court could grant leave on this ground, set aside the order as to damages and reassess the liability of each applicant, including pre-judgment interest. He submitted that this discrete question could be determined on the papers.

20. [63]

    I consider that a grant of leave on ground 5 is warranted. The respective responsibilities of Mr Henderson and Ms Tilling for the actionable publications are different. The circumstance that they identify as a couple does not warrant this separate liability being treated as joint. Nor does it warrant each of the applicants being responsible for the whole of the damage caused by all actionable publications, including those for which he or she was not responsible. It is not necessary to address, for the purposes of the present application, the circumstances in which it might be appropriate for defendants in defamation proceedings to be held jointly liable for actionable publications or the parameters of s 39 of the Act.

Conclusion

1. [64]

   With respect to proposed grounds 1, 3 and 4, Mr Smark has raised arguable bases for challenging the primary judge’s finding that IP2, IP6, IP7 and IP8 were not protected by qualified privilege. With respect to ground 2, he has also raised an arguable basis for challenging the primary judge’s conclusion that the defence of triviality under s 33 of the Act was not made out. For the reasons given at the commencement of these reasons, more is required for a grant of leave.

2. [65]

   In respect of ground 5, it was effectively common ground that the primary judge had erred in ordering a joint judgment. The parties and their representatives have, in compliance with the principle in s 56 of the Civil Procedure Act and their duties under ss 57 and 58 of that Act, agreed that the total damages awarded by the primary judge should be borne 50/50 by each applicant. Accordingly, these orders can be made by consent.

Costs

1. [66]

   While the applicants have had some success, the parties did not contribute to the error alleged in ground 5, which has been made out. I do not consider this matter to be of sufficient moment to deprive the respondent of her costs of the leave application or to warrant any alteration to the costs order in the Court below.

Proposed orders

1. [67]

   I propose the following orders:

   1. (1)

      Grant leave to appeal in respect of proposed ground 5.

   2. (2)

      Otherwise refuse leave to appeal.

   3. (3)

      Direct the applicants to file a notice of appeal limited to ground 5 within seven days hereof.

   4. (4)

      By consent:

   5. (5)

      Order the appellants to pay the respondent’s costs of the leave application and the appeal.