Federal Court of Australia
Edwards v Nine Network Australia Pty Limited (No 5) [2024] FCA 422
ORDERS
Applicant | ||
AND: | NINE NETWORK AUSTRALIA PTY LIMITED First Respondent TCN CHANNEL NINE PTY LIMITED Second Respondent STEVE MARSHALL Third Respondent | |
DATE OF ORDER: | 26 April 2024 |
THE COURT ORDERS THAT:
1. Within 14 days of delivery of this judgment, the parties provide the Court with agreed or competing short minutes of order providing for:
(a) judgment to be entered in favour of the applicant in the sum of $150,000, together with such prejudgment interest (if any) as either agreed or contended by the parties respectively; and
(b) any other order or orders necessary to finalise the matter, as either agreed or contended by the parties respectively, including in respect of any injunctive relief and costs.
2. The matter be for listed for a case management hearing at 9.30 am on 16 May 2024 for the purpose of either:
(a) the entry of judgment in favour of the applicant and the making of final orders if the parties are able to reach agreement as to the outstanding issues and the appropriate final orders; or
(b) the making of procedural orders and the listing the matter for a further hearing to hear and determine argument in respect of any and all outstanding issues.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TABLE OF CONTENTS
REASONS FOR JUDGMENT
WIGNEY J:
1 A Current Affair is a television program produced and broadcast by, respectively, Nine Network Australia Pty Limited and TCN Channel Nine Pty Limited. In late May and early June 2021, two episodes of A Current Affair included a story which, broadly speaking, concerned a dispute about the ownership and custody of a supposedly famous cavoodle dog named Oscar. The reporter who was primarily responsible for the presentation of that story was Mr Steve Marshall. The broadcasts were both followed up by articles which were made available for viewing on a website and various social media platforms associated with Nine Network, TCN Channel Nine or A Current Affair. The articles reproduced, in text and still image form, material sourced from the broadcasts. Nine Network, TCN Channel Nine and Mr Marshall will be collectively referred to as the Publishers in these reasons unless it is necessary to identify them separately or individually.
2 The broadcasts and articles were largely based around claims by a man named Mr Mark Gillespie that he was the rightful owner of Oscar, and that a woman named Ms Gina Edwards and her husband Mr Ken Flavell, who were said to be Oscar’s “dog-sitters”, had refused to return Oscar to Mr Gillespie. That dispute had remarkably found its way into the Supreme Court of New South Wales, having previously been the subject of proceedings commenced by Ms Edwards in both the Local Court and the District Court. Mr Gillespie claimed that Ms Edwards, who was a barrister, had delayed those court proceedings. Mr Gillespie also claimed that, while Oscar was in their custody while he was overseas, Ms Edwards and Mr Flavell had exploited and “monetised” the dog by establishing an Instagram account and obtaining endorsements from pet food companies.
3 The two A Current Affair broadcasts were, it would be fair to say, sensationalist, if not hyperbolic. The articles were not much better. It would also not be unfair to say that both the broadcasts and the articles portrayed Ms Edwards in a most unfavourable light. Mr Marshall’s sarcastic and pun-laden commentary throughout the broadcasts mostly sided with Mr Gillespie’s version of events and disparaged and demeaned Ms. Edwards.
4 In the first broadcast, Mr Marshall is first shown pursuing Mr Flavell down the street while he was walking Oscar and peppering him with questions about who owned Oscar. After outlining Mr Gillespie’s claim that Ms Edwards was a dog-sitter who had refused to return his dog to him, Mr Marshall, with a camera crew in tow, confronted Ms Edwards while she was with Oscar in a park. He was soon joined by Mr Gillespie, no doubt as pre-arranged by Mr Marshall. Ms Edwards was clearly distressed, particularly when Mr Gillespie in due course took possession of Oscar. As the A Current Affair anchor had said in her introduction to the story, the ensuing and entirely predictable fracas between Ms Edwards and Mr Gillespie had to be “seen to be believed”. The first article provided a narrative account of what was said to be the “extraordinary scenes” in the dog park between Mr Gillespie, referred to as Oscar’s “registered owner”, and Ms Edwards, who was somewhat disparagingly described as a barrister and dog-sitter.
5 In the second broadcast, Mr Marshall is shown meeting up with Mr Gillespie outside Manly Local Court. Mr Gillespie was said to be attending that court in answer to an apprehended violence order (AVO) that Ms Edwards had “slapped” on him following the previous emotional scenes in the dog park. Many of those scenes were reprised during the second broadcast. Ms Edwards and Mr Flavell were said by Mr Marshall to be “no shows” at court, which Mr Gillespie claimed to be consistent with a pattern of behaviour on the part of Ms Edwards involving “delay tactics”. Following their court outing, Mr Marshall and his camera crew were then shown asking after Ms Edward at her chambers and home. The second article provided a narrative recount of the entire Oscar affair, including the fact that the “dog-sitting barrister” had been a “no show” at court that day.
6 Ms Edwards commenced this proceeding against the Publishers claiming that she had suffered loss and damage as a result of several defamatory imputations allegedly carried by the broadcasts and articles. Those imputations included, in summary, that Ms Edwards, a barrister: was a thief who stole Oscar; had stolen Oscar for her own financial benefit; had deliberately delayed a court case about Oscar; had exploited Oscar for her own financial benefit; had adopted delay tactics so as to prolong her unlawful possession of Oscar; and had failed to fulfil her obligation to appear in court in relation to her AVO application against Mr Gillespie.
7 The Publishers defended the defamation action. They denied that the broadcasts and articles carried the alleged defamatory imputations, denied that some or all of the imputations were defamatory, and raised positive defences under the Defamation Act 2005 (NSW) and common law. They pleaded that the alleged imputations which concerned Ms Edwards stealing Oscar were substantially true and that they therefore had available to them the defence of justification pursuant to s 25 of the Defamation Act and the common law. They did not mount any justification defence to any of the other imputations. The Publishers also claimed that the broadcasts and articles conveyed other contextual imputations which were substantially true, and that the other imputations that were carried by the broadcasts and articles did not cause any further harm to Ms Edwards’ reputation. They therefore claimed that they had available to them the defence of contextual truth in s 26 of the Defamation Act.
8 To determine Ms Edwards’ defamation action, it is first necessary to determine whether the defamatory imputations that Ms Edwards claims were carried by the broadcasts and articles were in fact carried. What would the ordinary reasonable viewer or reader have understood the words and images in the broadcasts and articles to mean, either literally, or through implication or inference?
9 If the alleged imputations which included the assertion that Ms Edwards stole Oscar are found to have been carried, the next issue to determine is whether those imputations were substantially true. The resolution of that issue is unfortunately by no means straightforward. The parties adduced voluminous evidence which traversed the wondrous life and times of Oscar the dog, including the nature of the arrangements between Mr Gillespie and Ms Edwards and Mr Flavell concerning the care and custody of Oscar which gave rise to the ownership dispute and the circumstances in which Ms Edwards came to obtain possession of Oscar. Unfortunately, a good deal of the evidence was of, at best, marginal relevance and concerned tangential factual issues, such as whether Ms Edwards and Mr Gillespie were referred to as Oscar’s “Mommy” and “Papi” (spoiler alert: they were not in fact Oscar’s biological parents) and whether Oscar had somehow been abandoned because he was being treated like a “country dog” while he was being cared for by Mr Gillespie’s family in the Southern Highlands.
10 Irrespective of the findings concerning the truth of the stealing imputations, it will next be necessary to consider and determine whether the broadcasts and articles conveyed the alleged contextual imputations, whether the contextual imputations that were conveyed were substantially true, and whether the contextual imputations that were substantially true were such that no further damage was caused to Ms Edwards’ reputation by the other imputations carried by the publications that were not found to be substantially true. It should be noted, in this context, that the Publishers ultimately did not appear to contend that their contextual truth defence could succeed if it was found that the imputations concerning Ms Edwards stealing Oscar were carried and that those imputations were not substantially true.
11 Finally, if it is found that some, or all, of Ms Edwards’ pleaded imputations were carried by the publications and were defamatory, and none of the Publishers’ defences succeed, it will be necessary to quantify the loss and damage suffered by Ms Edwards.
12 Section 8 of the Defamation Act provides that a “person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter”. As has already been noted, Ms Edwards’ claim concerns four separate publications, each of which she claimed contained several defamatory imputations. While the general nature of the publications was described earlier, it is necessary to first provide a slightly more detailed description of them before addressing the question whether the publications carried the imputations that Ms Edwards claimed they did.
13 The first broadcast was a story which appeared in the episode of A Current Affair which was broadcast on 24 May 2021. That story was introduced by the A Current Affair anchor in the following terms:
Oscar the cavoodle is one popular pooch. Not only does he have thousands of fans, he’s also sparked an all out war between two former friends fighting over Oscar’s ownership. But what happened in the dog park has to be seen to be believed.
14 The story then begins with Mr Marshall referring to the fact that the tranquillity of Kirribilli, a suburb of Sydney, had been “torn apart when a feud between three former friends erupted over the custody of a famous cavoodle”. Mr Marshall then introduces the main players in that feud by showing short film clips of Mr Gillespie, Ms Edwards, and Mr Flavell and then rhetorically asking Oscar who he would rather live with – “Daddy Mark” [Mr Gillespie], “Aunty Gina” [Ms Edwards] or “Uncle Ken” [Mr Flavell]. The clip of Ms Edwards is unflattering. It depicts her telling a camera operator to stop filming her. Further unflattering clips of Ms Edwards, taken from the melee in the dog park, are then shown. Mr Gillespie is seen holding Oscar and is heard to say, as Ms Edwards approaches: “I’m just collecting my property, thank you”; and Mr Marshall is heard to say to Ms Edwards: “Is that the owner of Oscar?”
15 In a voiceover, Mr Marshall then says: “The dogs of war. These canine carers won’t give up this prized pup without a fight”. The reference to the “canine carers” is an apparent reference to Ms Edwards and Mr Flavell.
16 After some further chaotic scenes from the dog park are shown, an exchange between Mr Marshall and Mr Gillespie provides the following context as photographs of Mr Gillespie, Oscar, Ms Edwards, and Mr Flavell are shown (SM is Mr Marshall and MG is Mr Gillespie):
SM: Mark, Gina, and her husband Ken, were the best of mates. Bonded, by their love for cute cavoodle, Oscar. Mark bought and raised Oscar. Gina and Ken dog sat the pup while Mark was working on cruise ships. The dog-sitters ramped up Oscar's Instagram account. The famous furball had over 10,000 followers. Oscar starred in TV shows and operas on the harbour.
MG: If you say sit or stop or stay or eat this or don't eat that or hold this he will. So he's a perfect Instagram model.
SM: Mark claims while he was away on the high, seas, Gina and Ken were living the high life rolling in endorsements from pet companies.
MG·: She never wanted him as a visit as a pup, she wanted to exploit and monetize him. I just want my dog, to be a dog.
SM: Mark was on a cruise ship when Gina torpedoed his world, that she was keeping Oscar and wouldn't be returning his pooch.
MG: Heartbroken instantly and didn't think that she would do that to me I mean, he's my dog.
SM: It triggered a long and bitter doggy dispute which has ended up before the NSW Supreme court.
17 Mr Marshall is then shown approaching Mr Flavell in the street. Mr Marshall says that he had just “bumped into Ken [Flavell] while he and Oscar were stretching their legs”. Mr Marshall asks Mr Flavell: “Isn’t this Mark’s dog?”. The following exchange then occurs (KF is Mr Flavell):
KF: What do you mean is this Mark’s dog?
SM: Did Mark pay for this dog?
KF: This is a decision that’ll be made in the court.
SM: Is this about money?
KF: This has never been about money.
18 Mr Marshall then says, in a voiceover, that Mr Gillespie claimed that Ms Edwards “keeps delaying the court case”. He then suggests that he “spotted” Mr Gillespie in Kirribilli “scouring the streets for his beloved pooch” and that soon after he just happened to come upon Ms Edwards at the dog park. Ms Edwards is then seen running away from Mr Marshall and his camera team and is heard to say: “Call the police please, I’m being harassed”.
19 The rather chaotic and fraught encounter between Ms Edwards and Mr Marshall only got worse when Mr Gillespie was seen arriving on the scene and Ms Edwards calls for Oscar to come. Mr Gillespie is then seen hugging Oscar affectionately. Oscar appears to be happy to see Mr Gillespie, his tail wagging furiously. It is at about this point that the exchange, referred to earlier, occurs, with Mr Gillespie saying that he was just collecting his property and Mr Marshall asking Ms Edwards whether Mr Gillespie was Oscar’s owner.
20 Further chaotic scenes between Mr Gillespie and Ms Edwards are then depicted. The following exchange occurs (GE is Ms Edwards):
GE: I can’t believe you did this.
MG: What! I can’t believe you took him in the first place.
GE: There is a court case pending.
…
MG: You’re delaying, delaying, delaying.
GE: You cannot take him.
MG: He’s my property.
GE: You cannot take him.
MG: You keep delaying and delaying and delaying.
21 The following exchange between Mr Marshall and Ms Edwards then occurs:
SM: Why do you believe you’re the rightful owner?
…
GE: I understand what you’re doing, I’m calling the lawyer.
SM: You’re a lawyer.
GE: I’m a barrister.
SM: Aren’t you running your own case on this?
…
SM: Gina’s a qualified barrister.
22 Some heated exchanges between Mr Gillespie and a “fellow cavoodle lover”, identified as Anne, are then shown. Anne is shown trying to retrieve Oscar from Mr Gillespie. Mr Marshall notes that Anne “looks after Oscar when Ken and Gina are at work”. In response to Anne’s claim that Mr Gillespie had not seen Oscar for a long time, Mr Gillespie asserts that Ms Edwards had been hiding Oscar and moving him from house to house. The police then arrive. Mr Marshall says that the police decide that Mr Gillespie can take Oscar, but Mr Gillespie is then heard to say that, after the “incident”, he had decided that it was better to leave Oscar with Ms Edwards.
23 The first article first appeared on the “9 Now” website on 24 May 2021. It was also made available on a Twitter account bearing the handle @ACurrentAffair9 on the same day. Mr Marshall was said to be the author of the article. The article appeared under the byline “‘He’s my dog’: Cavoodle custody battle sees man snatch pooch in park”.
24 The article effectively provided a narrative running account of the incident in the dog park which had been the subject of the first broadcast. It opened as follows:
The Sydney suburb of Kirribilli is best known for playing home to the Prime Minister among well-to-do neighbours.
But its tranquillity was torn apart when a feud between former friends erupted over the custody of an Instagram-famous Cavoodle that played out in front of A Current Affair cameras.
Oscar found himself at the centre of an extraordinary game of fetch in the dog friendly Milsons Park, as Gina Edwards chased down Mark Gillespie, who was clutching the confused pooch.
25 There is then a photograph of Mr Gillespie holding Oscar above the caption: “Mark with cavoodle Oscar, who he gave to friends to care for while working away”. The article then continued:
Accusations and insults flew between Sydney barrister Gina and Mark, a cruise ship director, in a commotion that drew in other dog owners who’d been enjoying a glass of bubbles.
The extraordinary scenes came after an 18-month standoff in which Mark claims Gina stole Oscar from him.
Mark Gillespie is the registered owner of Oscar, and Gina Edwards and her husband used to dog-sit the pooch when he travelled for work.
26 There is then a photograph of Ms Edwards above the caption: “While Mark was away, Gina and Ken became devoted to Oscar, asking Mark if they could take over the dog’s Instagram account – he has more than 10,000 followers”. The article then continued:
The dog-sitters ramped up Oscar's Instagram to a point where he appeared in TV shows and the Opera on Sydney Harbour, as products and endorsements from pet companies rolled in.
Mark claims, while he was away for work in late 2019, Gina took Oscar for a TV shoot and wouldn’t return him.
The pair's lawyers have been battling it out ever since with the case now before the NSW Supreme Court.
A Current Affair approached Gina in the dog park who turned her back on Oscar and ran from the camera crew, calling out to her friends to call the police.
27 There is then a photograph of Ms Edwards apparently calling out to Mr Gillespie, who is shown holding Oscar, above the caption: “Mark says he owns Oscar, but Gina says he is ‘not legally entitled’”. The article then continued:
To everyone’s surprise Mark appeared out of nowhere.
Despite their time apart, Oscar recognised him instantly, ran to him, licked his face and wagged his tail uncontrollably.
Gina realised what was happening and chased Mark around the perimeter of the park as he carried Oscar in his arms.
"Don't you dare, don't you dare" Gina screamed.
Mark ran from Gina and tripped over a tree root.
"Get away from me. He’s my dog,” Mark yelled back.
28 There is then a photograph of Oscar above the caption: “Oscar the dog is the subject of a custody battle”. The article then continued:
Gina’s friend Anne tried to snatch Oscar from Mark’s arms.
"Do not touch me,” Mark screamed as he whirled away from the clutching Anne.
Other dog owners circled as nine police officers arrived including the Kirribilli Station Commander, who is probably more used to dealing with the PM’s security detail rather than a doggy dust up.
"You used the police to take him away 'from me, you can’t use them to take him back,” Mark told Gina.
29 There is then another photograph of Mr Gillespie holding Oscar, apparently taken at an earlier and happier time, above the caption: “Oscar the dog with owner Mark”. The article then concluded as follows:
Night fell, leaving everyone wondering just who this Oscar would go to?
The next day Mark told A Current Affair, police gave him the okay to take Oscar as he is still the registered owner and he was technically back in possession of his property.
However, Gina was beside herself, so Mark put Oscar on the ground and allowed her to take him back.
"I decided to be the better person in the situation, but Oscar is much loved and I’ll fight for him in court and follow the due process," he said.
Following the incident, Gina filed for an AVO against Mark which will chew up more valuable court time which will be heard next month.
30 The second broadcast was a story which appeared in the episode of A Current Affair which was broadcast on 1 June 2021. It was effectively a follow-up to the first broadcast. The anchor that evening introduced the story as follows:
It’s the custody twist that no one saw coming. The dispute over much-loved Oscar the dog was today played out in the court instead of the dog park. And Steve Marshall was there.
31 The story then commenced with a replay of some of the footage from the dog park which was aired in the first broadcast. Mr Gillespie is then shown walking to, and arriving at, a courthouse along with two others. Mr Marshall’s commentary to that footage, along with interposed footage taken from the dog park incident, was as follows:
What a difference a week makes. Mark Gillespie arriving at court today on the heel of his team after that incredible chaos over Oscar the cavoodle in Sydney's Kirribilli.
…
Mark saw it as a reunion with Oscar. Gina, who gave chase, feared it was a dog knapping. The battle for the Instagram famous furball between Gina, a Sydney barrister –
[interposed footage of Ms Edwards in the dog park]
Her hubby Ken –
[interposed footage of Mr Flavell walking]
And cruise ship director Mark –
[interposed footage of Mr Gillespie in the dog park]
Had already reached the New South Wales District and Supreme Courts. After this dog’s breakfast, Gina slapped Mark with an AVO, heard today at Manly Local Court.
32 Mr Gillespie is then shown outside court. He states that it was wonderful to hold Oscar, an apparent reference to the time he held Oscar in the dog park the previous week. He also says that he was happy that Oscar was affectionate towards him because “he’s my dog”. In a voiceover, Mr Marshall then continued:
Mark had a barrister and a solicitor in tow. Gina and Ken were no shows. No sign of Oscar either. Still, Mark found some solace, given it was court companion dog day at Manly local court. He really does have a way with the pooches.
Mark's not surprised, he said it's a pattern of behaviour he's seen from Gina over the past eighteen months involving delay tactics.
33 Mr Marshall then asks rhetorically: “Where’s Gina and Ken?”. The footage in the dog park, where Mr Gillespie is seen accusing Ms Edwards of “delaying, delaying, delaying” the court case, is then replayed.
34 Mr Marshall is then seen visiting the chambers where Ms Edwards conducted her practice as a barrister. She is said not to be there. He is also shown knocking on a door said to be Ms Edwards’ home. Nobody answers. Mr Marshall says, somewhat sarcastically, “must have taken Oscar for a walk”. Further footage from the dog park incident is then replayed.
35 Mr Marshall concludes his story as follows:
Remember, police allowed Mark to take Oscar that night because he’s still the dog’s registered owner. But Mark relinquished the lead, allowing this drama to play out in the courts at Gina's request.
36 The anchor concludes the story as follows:
Well, we will keep turning up in court and that matter’s set to be heard in the Local Court next month while the other matter also involving Oscar in the Supreme Court is set down for August. We’ll keep you updated.
37 The second article first appeared on the 9 Now website on 1 June 2021. The author of the article was said to be “A Current Affair Staff”. The article appeared under the byline “New twist in cavoodle custody battle”. The body of the article (not including photographs and captions) was as follows:
A week after a chaotic scene played out at a Sydney dog park over Oscar the cavoodle, the registered dog owner was forced to take a walk to court today.
Last week, Instagram famous Oscar was caught in the middle of a bitter custody feud between two former friends with a dog chase playing out at a Kirribilli park in front of A Current Affair’s cameras.
The 18-month standoff began after the registered dog owner and cruise ship director Mark Gillespie claimed dog sitter and Sydney Barrister Gina Edwards stole Oscar from him.
He said Mrs Edwards refused to give back the cavoodle when he returned home. after working away.
When A Current Affair reporter Steve Marshall arrived at the dog park to ask Mrs Edwards about the dognapping accusations Mr Gillespie appeared out of nowhere, taking Oscar in his arms.
Which was when Mrs Edwards took chase, with police then called to the scene.
"Mark you are going to be arrested stop it," Mrs Edwards shouted at the registered dog owner, last week as he attempted to stumble away with Oscar – tripping over a tree root.
Police eventually gave Mr Gillespie the okay to take Oscar, but seeing Ms Edwards beside herself at the time, the registered owner allowed the dog sitter to take the cavoodle back.
"I decided to be the better person in the situation, but Oscar is much loved, and I'll fight for him in court and follow the due process," he told A Current Affair at the time.
Their feud had already reached the NSW District and Supreme Courts.
But after last week’s dogs’ breakfast at the dog park, Mrs Edwards then slapped Mr Gillespie with an AVO which was heard today at the Manly Local Court.
Mr Gillespie arrived at court on the heal of his legal team, but dog-sitting barrister, Mrs Edwards, and her husband Ken were no shows and there was no sign of Oscar either.
“As far as the proceedings go, we didn't accept some points of the AVO so it's going to just be a continuing thing, keep on going,” Mr Gillespie said.
After Mrs Edwards failed to appear at court, A Current Affair looked for her at work, at home and at her local dog park, where all the fur had previously hit the fan.
But Mrs Edwards and Oscar were nowhere to be seen.
While police allowed Mr Gillespie to take Oscar last week because he’s still the dog’s registered owner, Mr Gillespie relinquished the lead, allowing the drama to play out in the courts as Mrs Edwards had requested.
And while Mrs Edwards was a no show today, the matter will be heard back in court next month.
The alleged DEFAMATORY imputations
38 Ms Edwards alleged that each of the publications carried several defamatory imputations.
Defamatory imputations allegedly conveyed by the first broadcast
39 Ms Edwards alleged that the first broadcast carried the following defamatory imputations, or imputations that did not differ from them in substance:
(a) Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle;
(b) Ms Edwards, a barrister, stole Oscar the cavoodle for her own financial benefit;
(c) Ms Edwards, a barrister, deliberately delayed a court case about Oscar; and
(d) Ms Edwards, a barrister, exploited Oscar for her own financial benefit.
40 The Publishers denied that the first broadcast carried any of those imputations and denied that the imputations (or at least imputations (c) and (d)), if carried, were defamatory of Ms Edwards.
Defamatory imputations allegedly conveyed by the first article
41 Ms Edwards alleged that the first article carried the following defamatory imputations, or imputations that did not differ from them in substance:
(a) Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle;
(b) Ms Edwards, a barrister, stole Oscar the cavoodle for her own financial benefit; and
(c) Ms Edwards, a barrister, exploited Oscar for her own financial benefit.
42 The Publishers denied that the first article carried any of those imputations and denied that the imputations (or at least imputation (c)), if carried, were defamatory of Ms Edwards.
Defamatory imputations allegedly conveyed by the second broadcast
43 Ms Edwards alleged that the second broadcast carried the following defamatory imputations, or imputations that did not differ from them in substance:
(a) Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle;
(b) Ms Edwards, a barrister, adopted delay tactics so as to prolong her unlawful possession of Oscar;
(c) Ms Edwards, a barrister, deliberately delayed a court case about Oscar; and
(d) Ms Edwards, a barrister, failed to fulfil her obligation to appear in court in relation to her AVO application against Mr Gillespie.
44 The Publishers denied that the second broadcast carried any of those imputations and denied that the imputations (or at least imputations (c) and (d)), if carried, were defamatory of Ms Edwards.
Defamatory imputations allegedly conveyed by the second article
45 Ms Edwards alleged that the second article carried the following defamatory imputations, or imputations that did not differ from them in substance:
(a) Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle;
(b) Ms Edwards, a barrister, adopted delay tactics so as to prolong her unlawful possession of Oscar;
(c) Ms Edwards, a barrister, deliberately delayed a court case about Oscar; and
(d) Ms Edwards, a barrister, failed to fulfil her obligation to appear in court in relation to her AVO application against Mr Gillespie.
46 The Publishers denied that the second article carried any of those imputations and denied that the imputations, if carried, were defamatory of Ms Edwards.
Issue one: DID THE PUBLICATIONS CARRY the imputations?
47 The first issue that must be addressed is whether the publications conveyed any or all of the defamatory imputations that Ms Edwards alleged they conveyed.
48 There was, or appeared to be, no real dispute between the parties concerning the principles to be applied in determining whether the alleged defamatory imputations were carried. The applicable principles were summarised in the following terms in Rush v Nationwide News (No 7) [2019] FCA 496 at [72]-[85]:
First, the applicant … bears the onus of proving, on the balance of probabilities, that the alleged defamatory meanings or imputations were conveyed by the publication in question.
Second, the question of whether the defamatory meanings were in fact conveyed is a question of fact.
Third, the relevant question is whether the publication would have conveyed the alleged meanings to an ordinary reasonable person. Where, as here, the publications are in writing, the question is what the words used would have conveyed to the ordinary reasonable reader. The Court is required to put itself in the shoes of, or assume the role of, the ordinary reasonable reader. The question is not a question of construction of the words used in the article in the legal sense.
Fourth, in this context the authorities ascribe the ordinary reasonable reader with certain character traits, qualities or characteristics. The ordinary reasonable reader is variously said to be of fair to average intelligence, experience and education. The ordinary reasonable reader is also taken to be fair-minded and neither perverse, morbid nor suspicious of mind, nor “avid for scandal”. Of course, as the High Court pointed out in Trkulja at [31], ordinary men and women in fact have different temperaments, outlooks, degrees of education and life experience, so the exercise is really one of “attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning”.
Fifth, the meaning that the words would convey to the ordinary reasonable reader is often called “the natural and ordinary meaning” of the words. In some cases, the natural and ordinary meaning of the words may be obvious from the direct or literal meaning of the words themselves. More often than not, however, the question turns on what implications or imputations the ordinary reasonable reader would understand were conveyed by the words.
Sixth, in determining what implications or imputations the ordinary reasonable reader would understand or draw from the words, the authorities suggest that the ordinary reasonable reader should generally be taken to approach or consider a publication in a particular way or ways. The ordinary reasonable reader is, for example, said not to be a lawyer who examines the publication overzealously, but rather someone who views the publication casually and is prone to a degree of “loose thinking”. The ordinary reasonable reader also apparently does not live in an “ivory tower” but can and does “read between the lines” in light of their general knowledge and experience of worldly affairs. While they do not search for hidden meanings or adopt strained or forced interpretations, they nevertheless draw implications, especially derogatory implications, more freely than a lawyer would. While they read the entire publication and consider the context as a whole, they take into account emphasis that may be given by conspicuous headlines or captions.
Seventh, the mode or manner of publication can be a relevant matter in determining what was conveyed to the ordinary reasonable reader. The ordinary reasonable reader of a book, for example, is likely to read it with more care than he or she would read an article in a newspaper, particularly if that article is sensational. The ordinary reasonable reader of such an article is more prone to engage in loose thinking. That is all the more so where the words which are published are imprecise, ambiguous, loose, fanciful or unusual.
Eighth, as already adverted to, each alleged defamatory imputation has to be considered in the context of the entire publication. It does not follow, however, that each part of the publication must be given equal significance. A headline, for example, may give the reader a predisposition about what follows and may therefore assume particular importance: John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at [187]; (2003) 201 ALR 77 at [187]; [2003] HCA 50 at [187] (Callinan J; Gleeson CJ agreeing at [1]; Heydon J agreeing at [219]; see too McHugh J at [26]). Equally, contrary statements in an article will not necessarily or automatically negate the effect of other defamatory statements contained in the article: Rivkin at [26] (per McHugh J) and the cases there cited.
Ninth, the meaning that an ordinary reasonable reader would attribute to a publication, or the impression that the reader forms, may be influenced by the overall tone or tenor of the article in question. The article may, for example, be tinged with, or even pregnant with, insinuation or suggestion. It may also implicitly invite the reader to adopt a suspicious approach. As Gleeson CJ observed in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137:
It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong.
Tenth, the natural and ordinary meaning of words may be either the literal meaning, or an implied or inferred or an indirect meaning based on the general knowledge of the ordinary reasonable reader: Jones v Skelton [1963] 1 WLR 1362 at 1370; [1963] 3 All ER 952 at 958F. General knowledge, in this context, includes ““matters of universal notoriety” – that is to say, matters which any intelligent viewer or reader may be expected to know”: Fox v Boulter [2013] EWHC 1435 (QB) at [16] (citing Lord Mansfield CJ in R v Horne [1775-1802] All ER Rep 390 at 393E). Evidence is not admissible to prove the general knowledge of the ordinary reasonable reader: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506-507.
Eleventh, the determination of what an ordinary reasonable reader would read into or imply from the words complained of is often a matter of impression.
Twelfth, while a publication may in some cases be reasonably capable of bearing more than one meaning, the tribunal of fact, whether it be a jury or a judge sitting alone, must ultimately determine whether the alleged defamatory meaning was in fact the single natural and ordinary meaning of the words complained of: Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 173-175: Ten Group Pty Ltd v Cornes (2012) 114 SASR 46 at [34], [47]-[50]; Hockey at [73].
Thirteenth, in determining the meaning in fact conveyed by the publication, the intention of the publisher is irrelevant: Lee v Wilson and MacKinnon (1934) 51 CLR 276 at 288 (per Dixon J); Baturina v Times Newspapers Ltd [2011] EWCA Civ 308; 1 WLR 1526 at [24].
Fourteenth, the manner in which the publication was actually understood is also irrelevant in determining what meaning was conveyed to the ordinary reasonable reader: Hough v London Express Newspaper, Ltd [1940] 2 KB 507 at 515; [1940] 3 All ER 31 at 35; Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 at 301-302. The question is to be determined on the basis of the natural and ordinary meaning of the publication alone.
49 None of the parties quibbled with the above summary of the principles in Rush, or advanced any submissions that were inconsistent with or contrary to that summary.
50 The publications in question in Rush were articles in a newspaper. In relation to a televised broadcast, the issue is to be addressed from the perspective of the ordinary reasonable viewer. The sounds, images, manner of speech and any captions in the broadcast are all relevant in determining the meanings carried: Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 at 165-66; [1998] NSWSC 4; Schiff v Nine Network Australia Pty Ltd (No 2) [2022] FCA 1120 at [34]-[61].
51 There is one additional principle that should be noted. It concerns the situation where the publication in question repeats defamatory statements by third parties. In Corby v Allen & Unwin Pty Ltd (2014) 108 NSWLR 431; [2014] NSWCA 227, McColl JA (with whom Bathurst CJ and Gleeson JA relevantly agreed), approved (at [140]) the following statement by McHugh J in John Fairfax Publications v Rivkin (2003) 77 ALJR 1657 at [27]; [2003] HCA 50:
The rule that the publication must be read as a whole is particularly important where the publication reports a defamatory statement by a third party. The general rule is that a person who publishes the defamatory statement of a third party adopts the statement and has the same liability as if the statement originated from the publisher. Accordingly, it is not the law that a person reporting the defamatory statement of another is only liable if he or she adopts the statement or reaffirms it. But, as Griffith CJ pointed out in Ronald v Harper, although as a general rule a person who repeats a defamation adopts it as his or her own statement, it is not a “rule of invariable application”. The context of the statement may show that it is refuted or undermined by other parts of the publication.
(Footnotes omitted)
52 Ms Edwards contended that the broadcasts and articles published defamatory statements made by Mr Gillespie, that the Publishers therefore adopted those statements, and that nothing in the broadcasts or articles refuted or undermined the statements.
Imputations carried by the first broadcast
53 As has already been noted, Ms Edwards contended that the first broadcast carried four imputations concerning her. There is a degree of overlap between those imputations, though they should nevertheless be considered separately.
Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle
54 The Publishers contended that the first broadcast did not convey that Ms Edwards had stolen Oscar. Rather, it conveyed no more than that Ms Edwards had taken the dog and refused to return it to Mr Gillespie and that her actions in that regard had caused Mr Gillespie profound distress. The Publishers submitted that the broadcast made it clear that the dispute as to who owned Oscar was to be decided in the courts, which was inconsistent with any suggestion that Ms Edwards had stolen the dog. They emphasised the following parts of the broadcast: the statement by the anchor that the story was about an “all out war between two former friends fighting about Oscar’s ownership”; Mr Marshall’s statement that the “feud” between the former friends concerned “the custody of a famous cavoodle”; Mr Gillespie’s statement to Ms Edwards that she had “used the police to take him [Oscar] away from me, you can’t use the police to take him back”; Mr Marshall’s statement that the dispute had ended up in the Supreme Court; the statements by Mr Flavell and Ms Edwards to the effect that the dispute concerning Oscar’s ownership would be determined by the court; and Mr Marshall’s statement that “everyone involved believes Oscar is part of their family and belongs with them”.
55 The problem with the Publishers’ submission in that regard is that it is based on a few isolated and highly selective extracts from the broadcast. Those extracts, however, must be considered in the context of the broadcast as a whole. The Publishers’ submission also ignores the sensationalist nature of the broadcast and its general tenor and tone.
56 When the broadcast is considered as a whole, there could be little doubt that, not only was Mr Gillespie asserting that he was Oscar’s owner and that Ms Edwards had deprived him of his “property”, but that Mr Marshall was clearly siding with Mr Gillespie. The broadcast reported or relayed the following statements by Mr Gillespie concerning Oscar: “He’s [Oscar’s] my property”; that he was “just collecting my property”; that he couldn’t believe that Ms Edwards “took him [Oscar] in the first place”; that Ms Edwards just “wanted to exploit him [Oscar] and monetise him”; and that, while there may have been a court case pending, Ms Edwards was “delaying and delaying and delaying” that case. Mr Gillespie also claimed that Ms Edwards had been hiding Oscar and moving him from “house to house” and that he was “happy to talk to the police”.
57 As for Mr Marshall, his somewhat sarcastic and sneering commentary plainly sided with Mr Gillespie’s version of events and undermined and disparaged Ms Edwards. He referred to Ms Edwards and Mr Flavell as mere “canine carers” and “dog-sitters” and clearly suggested that, while there may be a dispute about it, Mr Gillespie was clearly Oscar’s owner. Mr Marshall put to Mr Flavell: “Isn’t this Mark’s dog?”, “Did Mark pay for this dog?” and “Is this about money?” He puts to Ms Edwards (as footage is shown of Mr Gillespie hugging Oscar with Oscar’s tail wagging uncontrollably): “Gina, is that the owner? Is that the owner of Oscar?”; and later: “Why do you believe that you’re the rightful owner?” Mr Gillespie, or “Daddy Mark” was said by Mr Marshall to “still [be] the registered owner of Oscar”. In relation to the court case, Mr Marshall pointed out that Ms Edwards was a “qualified barrister” who, he suggested, was running “[her] own case on this” – the apparent implication being that she was using her knowledge of the legal system to retain possession of Oscar.
58 The overall tenor and tone of the broadcast is also deprecating and demeaning towards Ms Edwards. Ms Edwards is first shown shouting “stop filming. I don’t, I don’t give you permission to film, please stop filming” and later running away from Mr Marshall and his camera crew while Mr Marshall calls out “Gina, we just want a word”. The subtext or implication in all the circumstances was that Ms Edwards is fleeing because she suffers from consciousness of guilt. This footage is repeated during the broadcast. Ms Edwards is then shown hysterically screaming at, and pursuing, Mr Gillespie, who at that point had taken possession of Oscar. That footage is also replayed during the broadcast. Mr Marshall’s voiceover while Ms Edwards is first seen pursuing Mr Gillespie was: “Gina’s a retriever at heart”. At first blush that might appear to be yet another bad dog pun. In context, however, it is plainly disparaging Ms Edwards and comparing her to a dog (a labrador retriever).
59 Overall, the broadcast was replete with snide insinuation and suggestion. Its sensationalist nature invites not only a degree of loose thinking on the part of its audience, but also the drawing of implications, including derogatory implications, about and against Ms Edwards. The overriding impression conveyed was that Mr Edwards was a conniving dog-sitter who wanted to exploit and monetise the famous cavoodle and who, in that context, not only callously refused to return the dog to its rightful owner, but was also hiding Oscar and, as a barrister, was using the legal system and delaying the proceedings to retain possession of him.
60 It may perhaps be accepted that a person who obtains possession of property, apparently lawfully, and refuses to return the property to its owner, might not legally or literally be said to be a thief, or to be guilty of theft or stealing. The ordinary reasonable viewer of the broadcast would not, however, analyse it as if he or she were a lawyer considering a criminal charge, or by reference to dictionary definitions. Moreover, considered in its entirety, the broadcast conveyed far more than the implication that Ms Edwards had simply not returned Oscar to his rightful owner.
61 It may also be accepted that the broadcast did not directly call Ms Edwards a thief, or state, in terms, that she had stolen Oscar. Considered in its entirety, however, the broadcast implied and insinuated that to be the case. As already noted, the broadcast implied and insinuated that Ms Edwards connived to obtain and retain possession of valuable property, in the form of an apparently famous dog, so she could exploit and monetise that property. She then callously continued to refuse to return the dog to its rightful owner, hid the dog by moving from house to house, and delayed court proceedings concerning the ownership or custody of the dog. She also ran away when confronted in the dog park about the ownership of the dog. In common parlance, a person who obtains possession of valuable property and who then hides and refuses to return the property to its rightful owner would be seen to be a thief who has stolen that property. In my view, that is what the ordinary reasonable viewer would have gleaned and concluded from the broadcast.
62 While it may be accepted, as the Publishers submitted, that the ordinary reasonable viewer of a national Current Affair program does not necessarily go searching for sinister meanings, the overall tone and tenor of the first broadcast, including Mr Marshall’s commentary, effectively invited the viewer to do just that. It essentially encouraged loose thinking and effectively invited the viewer to read between the lines. As Lord Devlin said in Lewis v Daily Telegraph Ltd [1964] AC 234 at 285, a “man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire”. Mr Marshall certainly did not pick his words carefully.
63 There is also some merit in Ms Edwards’ submission that the broadcast republished defamatory statements by Mr Gillespie to the effect that Ms Edwards was a thief who had stolen Oscar from him. As already noted, the broadcast includes statements by Mr Gillespie that Oscar was his property and that Ms Edwards had taken Oscar and refused to return him because she wanted to exploit and monetise him. Mr Gillespie also asserted that Ms Edwards had been hiding Oscar and delaying the court case about his ownership. Those statements considered together and in the context of the broadcast as a whole, amounted to an assertion by Mr Gillespie that Ms Edwards was a thief who had stolen Oscar. By publishing those statements by Mr Gillespie in the broadcast, the Publishers effectively adopted them. Nothing in the broadcast could be said to have refuted or undermined Mr Gillespie claims. Indeed, as already indicated, the broadcast essentially sided with Mr Gillespie and undermined Ms Edwards’ position.
64 In all the circumstances, putting myself in the hypothetical shoes of the ordinary reasonable viewer of the first broadcast, I am satisfied that the first broadcast, considered as a whole, carried the imputation that Ms Edwards, a barrister, was a thief who stole Oscar the cavoodle.
Ms Edwards, a barrister, stole Oscar the cavoodle for her own financial benefit
65 For the reasons already given, I am satisfied that the first broadcast conveyed to the ordinary reasonable viewer that Ms Edwards, a barrister, stole Oscar the cavoodle. The additional element in this second imputation is that Ms Edwards stole Oscar “for her own financial benefit”.
66 There could be little doubt the first broadcast conveyed that additional element. The broadcast included a statement by Mr Marshall that the “dog-sitters” (Ms Edwards and Mr Flavell) “ramped up Oscar’s Instagram account” to the point that he had over 10,000 followers, and that Oscar had “starred in TV shows and operas on the harbour.” Mr Marshall also referred to Mr Gillespie’s claim that while he was “away on the high seas”, Ms Edwards and Mr Flavell were “living the high life rolling in endorsements from pet companies”. Mr Gillespie was then shown asserting that, unlike him, Ms Edwards did not just want Oscar to “be a dog”, but rather wanted to “exploit” and “monetise” him.
67 The clear implication from those statements by Mr Marshall and Mr Gillespie was that Ms Edwards had acted as she did for her own financial benefit. The broadcast plainly adopted Mr Gillespie’s statements or assertions. They were in any event also effectively backed up by Mr Marshall.
68 I am accordingly satisfied that the first broadcast carried the imputation that Ms Edwards, a barrister, stole Oscar the cavoodle for her own financial benefit.
Ms Edwards, a barrister, deliberately delayed a court case about Oscar
69 The Publishers effectively conceded that the first broadcast conveyed that Ms Edwards had delayed a court case about Oscar. They submitted, however, that the first broadcast did not explicitly state that Ms Edwards made a “conscious decision to effect delay to the proceedings”.
70 It may readily be accepted that the first broadcast does not include any explicit statement that Ms Edwards had made a conscious decision to delay the court case concerning Oscar. In my view, however, the broadcast clearly conveyed to the ordinary reasonable viewer that Ms Edwards had deliberately delayed the case. Mr Marshall repeated Mr Gillespie’s claim that Ms Edwards “keeps delaying the court case” and the broadcast included an exchange between Mr Gillespie and Ms Edwards during which, in response to Ms Edwards’ statement that there was a “court case pending”, Mr Gillespie stated “[y]ou’re delaying, delaying, delaying” and “[y]ou keep delaying and delaying and delaying”. Considered in the context of the broadcast as a whole, those statements by Mr Gillespie would have been perceived by the ordinary reasonable viewer as an assertion by Mr Gillespie that Ms Edwards was deliberately delaying the proceedings so she could retain Oscar. Nothing in the broadcast could be said to have refuted or undermined Mr Gillespie’s claims in that regard. Indeed, the overall tone and tenor of the broadcast, which was supportive of Mr Gillespie and disparaging of Ms Edwards, effectively adopted and supported Mr Gillespie’s claims in that regard.
71 I am accordingly satisfied that the first broadcast carried the imputation that Ms Edwards, a barrister, deliberately delayed a court case about Oscar.
Ms Edwards, a barrister, exploited Oscar for her own financial benefit
72 This imputation is similar to the second alleged imputation (Ms Edwards, a barrister stole Oscar the cavoodle for her own financial benefit), though it does not include the stealing element and includes instead the imputation that Ms Edwards exploited Oscar.
73 As discussed earlier in the context of the second alleged imputation, the broadcast included a statement by Mr Marshall that Ms Edwards and Mr Flavell had “ramped up” Oscar’s Instagram account and that Oscar had “starred in TV shows and operas on the harbour.” Mr Marshall also referred to Mr Gillespie’s claim that Ms Edwards and Mr Flavell were “living the high life rolling in endorsements from pet companies”. The broadcast also included footage of Mr Gillespie himself asserting that Ms Edwards wanted to “exploit” and “monetise” Oscar. Those statements, considered in the context of the overall tenor and tone of the broadcast, discussed earlier, clearly conveyed that Ms Edwards had exploited Oscar for her own financial benefit. The Publishers effectively adopted those statements and nothing in the broadcast undermined, refuted or qualified them.
74 I am accordingly satisfied that the first broadcast carried the imputation that Ms Edwards, a barrister, exploited Oscar for her own financial benefit.
Imputations carried by the first article
75 Ms Edwards alleged that the first article carried three imputations, each of which was in the same terms as an imputation carried by the first broadcast. That is perhaps not surprising as the first article was, in effect, a narrative account of the first broadcast.
Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle
76 The first article clearly conveyed that Ms Edwards, a barrister, was a thief who had stolen Oscar from Mr Gillespie.
77 The fifth paragraph of the article referred to Mr Gillespie’s claim that “Gina [Edwards] stole Oscar from him”. Nothing that followed in the article refuted or undermined that claim. Indeed, the narrative that followed clearly supported and sided with Mr Gillespie’s claim in that regard.
78 The very next paragraph referred to Mr Gillespie as the “registered owner of Oscar”. The balance of the article also conveyed that Mr Gillespie was Oscar’s owner and that Ms Edwards, who was said to have taken Oscar and refused to return him to Mr Gillespie, was not Oscar’s owner and was not entitled to keep him. A caption under one of the photos in the article referred to Mr Gillespie as Oscar’s owner. The article also stated that Mr Gillespie told A Current Affair that the “police gave him the okay to take Oscar as he is still the registered owner and he was technically back in possession of his property”. Ms Edwards, on the other hand, was deprecatingly referred to as a “dog-sitter” who “took Oscar for a TV shoot and wouldn’t return him”.
79 The article also noted that when A Current Affair (Mr Marshall) approached Ms Edwards, she “turned her back on Oscar and ran from the camera crew”. In contrast, the article stated that “[d]espite their time apart, Oscar recognised him [Mr Gillespie] instantly, ran to him, licked his face and wagged his tail uncontrollably”, the clear implication being that Ms Edwards had no entitlement to Oscar and had callously kept him away from his rightful owner.
80 The article also referred to Ms Edwards as a “Sydney barrister”.
81 I am satisfied that the first article would have conveyed to the ordinary reasonable reader that Ms Edwards, a barrister, was a thief who had stolen Oscar the cavoodle.
Ms Edwards, a barrister, stole Oscar the cavoodle for her own financial benefit
82 For the reasons already given, I am satisfied that the first article conveyed that Ms Edwards had stolen Oscar. The question is whether it also conveyed that she did so for her own financial benefit.
83 A caption to one of the photographs in the article stated that Ms Edwards and Mr Flavell had asked Mr Gillespie if they could take over Oscar’s Instagram account and the article then stated that the “dog-sitters ramped up Oscar’s Instagram account to a point where he appeared in TV shows and the Opera on Sydney Harbour, as products and endorsements from pet companies rolled in”. It was in that context that the article stated that, while Mr Gillespie was away for work, Ms Edwards “took Oscar for a TV shoot and wouldn’t return him”. The clear implication was that Ms Edwards had taken Oscar for her own financial benefit, being the financial benefits flowing from Oscar’s “ramped up” Instagram account and the resulting appearances, products and endorsements that were said to be “rolling in”.
84 I am satisfied that the first article would have conveyed to the ordinary reasonable reader that Ms Edwards, a barrister, had stolen Oscar the cavoodle for her own financial benefit.
Ms Edwards, a barrister, exploited Oscar for her own financial benefit
85 This imputation is similar to the second imputation, save that the statement is that Ms Edwards “exploited”, rather than stole, Oscar for her own financial benefit.
86 I am satisfied, for essentially the same reasons as those given in respect of the second imputation, that the article conveyed that Ms Edwards exploited Oscar for her own financial benefit. Read in the context of the article as a whole, the statements that Ms Edwards “ramped up Oscar’s Instagram to a point where he appeared in TV shows and the Opera on Sydney Harbour, as products and endorsements from pet companies rolled in” conveyed that Ms Edwards had exploited Oscar for her own financial benefit, including by receiving products and endorsements from pet companies.
87 While operating an Instagram account in a dog’s name and receiving products and endorsements from pet companies might in some cases not be seen to constitute exploitation of the dog, the overall tone and tenor of the first article implied or insinuated that Ms Edwards’ actions in respect of Oscar were exploitative. As already discussed, the article conveyed that Mr Gillespie was Oscar’s owner and that Ms Edwards had no legal entitlement to Oscar, but that she had nevertheless taken Oscar and refused to return him to Mr Gillespie. Moreover, while Ms Edwards was said to have “turned her back on Oscar”, Oscar was said to have run towards Mr Gillespie and “licked his face and wagged his tail uncontrollably,” the implication being that Ms Edwards had been keeping Oscar away from the owner to whom he was devoted. Viewed in that light, the fact that Ms Edwards was said to have used Oscar to obtain products and endorsements would have been seen or perceived by the ordinary reasonable viewer as being exploitative.
88 I am accordingly satisfied that the first article carried the imputation that Ms Edwards, a barrister, exploited Oscar for her own financial benefit.
Imputations carried by the second broadcast
89 Ms Edwards alleged that the second broadcast carried four imputations, two of which coincided with the imputations conveyed by the first broadcast.
Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle
90 The focus of the second broadcast was that, following the events in the dog park which featured in the first broadcast, Ms Edwards was said to have “slapped” Mr Gillespie with an AVO, and yet Ms Edwards had not attended court when that AVO was heard in the Manly Local Court. The broadcasts did, however, provide a brief recap of the events in the dog park and replayed some of the footage from the first broadcast, including the footage of Ms Edwards running away from Mr Marshall and the footage of Ms Edwards chasing Mr Gillespie as he held Oscar.
91 While the second broadcast again clearly represented that Mr Gillespie was Oscar’s lawful owner, and cast Ms Edwards in a bad light, it is difficult to see how, standing alone, it carried the imputation that Ms Edwards was a thief who stole Oscar. The A Current Affair anchor introduced the story by referring to the “custody twist” and dispute about Oscar. For his part, Mr Marshall referred to the fact that the “battle” for Oscar between Ms Edwards and Mr Gillespie had already reached the New South Wales District and Supreme Courts. Little if any detail, however, was given concerning the background to the dispute. Those responsible for the second broadcast seem to have assumed that most viewers would have seen the first broadcast or read the first article and were therefore already aware of background. It should be noted in that context, however, that Ms Edwards did not plead or otherwise contend that the second broadcast should be considered or viewed together with the first broadcast, or that the ordinary reasonable viewer of the second broadcast would necessarily have viewed or read, as the case may be, the earlier publications. The ordinary reasonable viewer of the second broadcast who had not seen the first broadcast, or read the first article, would most likely have thought poorly of Ms Edwards, but would have been left wondering as to exactly how and why she had custody of Oscar and why she was not returning him to his rightful owner.
92 Ms Edwards submitted that the overall impression conveyed by the second broadcast was that, now that Ms Edwards was required to face court and justify her actions, she could not, or did not do so, because she was a “cowardly thief”, and her legal arguments were “wholly unmeritorious”. I do not agree that the ordinary reasonable viewer would have gained that overall impression from the broadcast. The reference to Ms Edwards and Mr Flavell being “no-shows” was certainly disparaging and was linked to Mr Gillespie’s claims that Ms Edwards had employed “delay tactics” in respect of the proceeding concerning Oscar. There was, however, some delineation between the AVO proceedings and the proceedings concerning Oscar and I doubt that the broadcast went so far as to suggest that Ms Edwards did not appear at the hearing concerning the AVO because she was a “cowardly thief” who had stolen Oscar.
93 In the circumstances, I am not persuaded that the second broadcast, standing alone, would have conveyed to the ordinary reasonable viewer that Ms Edwards was a thief who had stolen Oscar. Putting aside, for the moment, the content of the broadcast dealing with Ms Edwards non-appearance in respect of the AVO, the broadcast would have conveyed, to those unfamiliar with the first broadcast and first article, little more than that there was a custody dispute concerning Oscar between Ms Edwards and Mr Gillespie, that Mr Gillespie claimed that Oscar was his dog and his property, that Ms Edwards had delayed the court proceedings in respect of that dispute and – by replaying the footage from the dog park – that Ms Edwards was rather hysterical, if not slightly unhinged. While it was apparent that Mr Marshall sided with Mr Gillespie and the broadcast was generally disparaging of Ms Edwards, it did not go so far as to convey or impute that she was a thief who had stolen Oscar.
Ms Edwards, a barrister, adopted delay tactics so as to prolong her unlawful possession of Oscar
94 It is also difficult to accept that the second broadcast carried the imputation that Ms Edwards had adopted delay tactics so as to prolong her unlawful possession of Oscar. The difficulty is not with the first element of the alleged imputation, that Ms Edwards had “adopted delay tactics”. The broadcast included Mr Marshall’s commentary that Mr Gillespie had seen a “pattern of behaviour” from Edwards over the preceding 18 months which had involved “delaying tactics”. Mr Marshall may be taken to have adopted that statement. Nothing in the broadcast refuted or undermined it.
95 The difficulty is that the imputation is said to be that Ms Edwards adopted those delaying tactics so as to prolong her “unlawful” possession of Oscar. For the reasons given earlier in respect of the first alleged imputation said to have been conveyed by this broadcast, it is difficult to accept that the broadcast contained sufficient detail concerning the dispute over Oscar to convey the inference or imputation that Ms Edwards’ possession of Oscar was necessarily unlawful. Certainly, Mr Marshall and the broadcast generally sided with Mr Gillespie and insinuated that Ms Edwards’ claims concerning Oscar were unmeritorious. Towards the end of the broadcast, Mr Marshall also reminded viewers that Mr Gillespie was “still the dog’s registered owner”. The broadcast was also generally disparaging of Ms Edwards. That said, the broadcast also indicated that the custody dispute was before a court and the implication was that, while Ms Edwards had delayed the court proceeding, the court would nevertheless resolve the custody dispute. Mr Gillespie was reported to have “relinquished the lead, allowing this drama to be played out in the courts”. I am, in all the circumstances, unpersuaded that, standing alone, the second broadcast went so far as to convey that Ms Edwards’ possession of Oscar was unlawful.
96 It follows that I am not satisfied that the second broadcast carried the imputation that Ms Edwards, a barrister, adopted delay tactics so as to prolong her unlawful possession of Oscar.
Ms Edwards, a barrister, deliberately delayed a court case about Oscar
97 I am, however, satisfied that the second broadcast conveyed that Ms Edwards, a barrister, had deliberately delayed a court case about Oscar.
98 Mr Marshall, having pointed out that Ms Edwards and Mr Flavell were “no shows” at the hearing in respect of the AVO, went on to recite Mr Gillespie’s assertion that the “no show” by Ms Edwards was consistent with a pattern of behaviour that he had observed from her which involved “delay tactics”. In that context, the broadcast reprised the footage from the first broadcast during which, in response to Ms Edwards’ statement that there was a court case pending, Mr Gillespie said “Yeah so? You’re delaying, delaying, delaying”. The juxtaposition of Mr Gillespie’s assertion concerning delaying tactics and the previous footage clearly conveyed that Ms Edwards, who had been introduced as a “Sydney barrister”, had deliberately delayed a court case about Oscar. There is no merit in the Publishers’ submission that the broadcast did not convey that the delay was deliberate.
Ms Edwards, a barrister, failed to fulfil her obligation to appear in court in relation to her AVO application against Mr Gillespie
99 The second broadcast clearly conveyed that Ms Edwards did not appear at the hearing of the AVO that she had, so it was said, “slapped” on Mr Gillespie. The issue is whether it conveyed that Ms Edwards’ non-appearance constituted a “failure” on Ms Edwards’ behalf to “fulfil her obligation to appear in court in relation to her AVO application”.
100 The commentary in the broadcast did not include any statement, in terms, that Ms Edwards was obliged to appear in court at the hearing of the AVO and that her failure to appear therefore constituted a failure to comply with that obligation. Considered as a whole, and from the perspective of the ordinary reasonable viewer, however, the broadcast insinuated or implied that to be the case.
101 The overall tenor and tone of the second broadcast was critical of Ms Edwards and tended to demean and disparage her. It commenced by reprising the footage taken from the dog park the previous week that, as has already been discussed, portrayed Ms Edwards in a negative light. That provided the context for the reference to Ms Edwards having “slapped” Mr Gillespie with an AVO. Mr Gillespie was then depicted in a positive light, attending court with a barrister and solicitor “in tow”, and later patting the court companion dog. Ms Edwards, on the other hand, having been introduced as a “Sydney barrister”, was referred to as a “no show”. To make matters worse, that was said by Mr Gillespie to be consistent with a “pattern of behaviour” involving “delay tactics”. The overall impression conveyed by this negative language was that Ms Edwards had done something wrong – that she was expected or obliged to, but did not, appear at the hearing of the AVO.
102 The ordinary reasonable viewer of the broadcast would be unlikely to be aware of the precise procedure involved in proceedings concerning AVOs. In particular, the ordinary reasonable viewer would not necessarily know that in cases where the police instigate such proceedings, the complainant is not necessarily expected or obliged to occur. The statement that Ms Edwards “slapped” the AVO on Mr Gillespie would, however, tend to suggest to the ordinary reasonable viewer that Ms Edwards instigated the proceeding – that it was her application. The ordinary reasonable viewer would be likely to think or believe that a person who instigated a proceeding would be expected or obliged to appear in court when the proceeding was heard. The use of the expression “no show” also tended to convey that Ms Edwards was expected or obliged to show up at the hearing. Nothing said in the broadcast suggested otherwise.
103 In all the circumstances, I am satisfied that the second broadcast, considered as a whole, would have conveyed to the ordinary reasonable viewer that Ms Edwards, a barrister, failed to fulfil her obligation to appear in court in relation to her AVO application against Mr Gillespie.
Imputations carried by the second article
104 Ms Edwards alleged that the second article carried the same four imputations as the second broadcast.
Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle
105 While the second article was largely based on and provided a narrative version of the second broadcast, it contained more detail concerning the background to and nature of the so-called “custody battle”. In particular, it repeated, without demur or qualification, Mr Gillespie’s claim that “dog-sitter and Sydney Barrister Gina Edwards stole Oscar from him” and that Ms Edwards “refused to give back the cavoodle when he returned home after working away”. Mr Gillespie’s claim was also referred to as a “dognapping” accusation.
106 The article also clearly sided with Mr Gillespie’s account. Mr Gillespie is repeatedly referred to as the “registered owner”, whereas Ms Edwards is referred to as the “dog-sitter”, or the “dog-sitting barrister”. The article also records that, after the fracas in the dog park over Oscar, the police “eventually gave Mr Gillespie the okay to take Oscar”, thereby implying that the police accepted Mr Gillespie’s claim. It was in that context that the article referred to Ms Edwards and Mr Flavell as being “no shows” at the hearing of the AVO that Ms Edwards was said to have “slapped” on Mr Gillespie. The article went on to state that, after Ms Edwards “failed to appear at court, A Current Affair looked for her at work, at home and at her local dog park”, but that Ms Edwards and Oscar were “nowhere to be seen”. The overall impression conveyed, particularly in light of the earlier references to Mr Gillespie’s claims that Oscar had been stolen, was that Ms Edwards was in hiding, conscious of her guilt.
107 I am accordingly satisfied that, considered as a whole, the second article carried the imputation that Ms Edwards, a barrister, was a thief who stole Oscar the cavoodle.
Ms Edwards, a barrister, adopted delay tactics so as to prolong her unlawful possession of Oscar
108 Unlike the second broadcast, the second article did not refer to Mr Gillespie’s claim that Ms Edwards’ “no show” was part of a pattern of behaviour involving “delay tactics”. Nor did it refer to Mr Gillespie’s claim that Ms Edwards had been delaying the court proceedings concerning the ownership or custody of Oscar. While the article referred to Ms Edwards’ non-appearance in the Manly Local Court, that was in respect of the AVO. I am not, in those circumstances, persuaded that the second article carried the imputation that Ms Edwards had adopted delay tactics so as to prolong her unlawful possession of Oscar.
Ms Edwards, a barrister, deliberately delayed a court case about Oscar
109 I am also not persuaded, for essentially the same reasons, that the second article carried the imputation that Ms Edwards deliberately delayed a court case about Oscar. The article said next to nothing about Ms Edwards delaying the proceeding concerning Oscar.
Ms Edwards, a barrister, failed to fulfil her obligation to appear in court in relation to her AVO application against Mr Gillespie
110 I am satisfied that the second article carried this imputation for essentially the same reasons as those given earlier in relation to whether the second broadcast carried the same imputation. By referring to Ms Edwards as being a “no show” at the hearing of the AVO which she had “slapped on” Mr Gillespie, the article effectively insinuated that Ms Edwards failed to fulfil her obligation to appear in court in respect of that application. That is particularly so given the overall negative tone and tenor of the article towards Ms Edwards.
Summary of conclusions concerning the imputations
111 I have found that the following four imputations were carried by the publications in question.
112 First, the imputation that Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle was carried by the first broadcast, the first article and the second article.
113 Second, the imputation that Ms Edwards, a barrister, stole Oscar the cavoodle for her own financial benefit was carried by the first broadcast and the first article.
114 Third, the imputation that Ms Edwards, a barrister, deliberately delayed a court case about Oscar was carried by the first broadcast and the second broadcast.
115 Fourth, the imputation that Ms Edwards, a barrister, exploited Oscar for her own financial benefit was carried by the first broadcast and the first article.
116 Fifth, the imputation that Ms Edwards, a barrister, failed to fulfil her obligation to appear in court in relation to her AVO application against Mr Gillespie, was carried by the second broadcast and the second article.
117 I have found that the imputation that Ms Edwards, a barrister, adopted delay tactics to prolong her unlawful possession of Oscar was not conveyed by the second broadcast or the second article as alleged. Ms Edwards did not allege that that imputation was carried by either the first broadcast or the first article.
ISSUE TWO: WERE THE IMPUTATIONS DEFAMATORY?
118 While the test of whether an imputation conveyed by a publication is defamatory has been expressed in various ways, the simplest statement of the general test is “whether the published matter is likely to lead an ordinary reasonable person to think less of” the plaintiff or applicant: Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16 at [5] (French CJ, Gummow, Kiefel and Bell JJ).
119 The Publishers initially appeared to dispute that any of the imputations, if conveyed, were defamatory. By the time they made their closing submissions, however, the Publishers only disputed that two of the relevant imputations (those that have been found to have been conveyed) were defamatory: the imputation that Ms Edwards, a barrister, had deliberately delayed a court case about Oscar, and the imputation that Ms Edwards, a barrister, exploited Oscar for her own financial benefit. The Publishers’ submission that those imputations were not defamatory may be disposed of briefly.
120 In relation to the imputation that Ms Edwards had delayed a court case about Oscar, the Publishers submitted that the mere fact of delay by a litigant would not cause a reasonable viewer to think less of Ms Edwards. That submission fails for a number of reasons. First, it conveniently ignores the fact that the imputation is that Ms Edwards “deliberately” delayed the court case. It is difficult to accept that a statement that a litigant deliberately delayed a court case would not lead an ordinary reasonable person to think less of that person. Second, it ignores the fact that the imputation in question includes the element that Ms Edwards is a barrister. An ordinary reasonable person is even more likely to think less of a person who deliberately delays a court case if that person is a barrister, even if the barrister is the litigant in that court case. Third, the submission completely ignores the relevant context, in particular the nature of the court case in question and the surrounding circumstances. Plainly an ordinary reasonable person would think less of Ms Edwards for deliberately delaying a court case, brought by her, in respect of the ownership of a dog which she was said to have stolen from its rightful owner.
121 In relation to the imputation that Ms Edwards had exploited Oscar for her own financial benefit, the Publishers submitted that there was no suggestion that the dog was mistreated. In their submission, nobody would think less of Ms Edwards because she was developing a profitable public profile for the dog, particularly as the publications also indicated that Ms Edwards and Mr Flavell were devoted to Oscar. That submission has no merit. The statement that Ms Edwards exploited Oscar for her own financial benefit is almost self-evidently going to cause ordinary reasonable persons to think less of Ms Edwards. The Publishers submission also relies on an incomplete account of the context in which the imputation was conveyed. The surrounding context included that Ms Edwards had retained Oscar and refused to return him to his rightful owner so she could profit from endorsements received in conjunction with Oscar’s television and other appearances. While it may be accepted that there was no suggestion that Oscar had been mistreated, I am nevertheless satisfied that the statement that Ms Edwards had exploited Oscar for her own benefit was likely to cause ordinary reasonable persons to think less of her.
122 While the Publishers ultimately did not contend that any of the other imputations which were carried were not defamatory, I should nevertheless make plain that I am satisfied that all of the imputations that were carried were defamatory of Ms Edwards, in the sense that they would have caused ordinary reasonable persons to think less of her.
ISSUE THREE: WERE THE IMPUTATIONS SUBSTANTIALLY TRUE?
123 The Publishers contended that two of the imputations carried by the publications were substantially true: that Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle and that Ms Edwards, a barrister, stole Oscar the cavoodle for her own financial benefit. They did not contend that any of the other imputations were substantially true.
124 The Publishers’ justification defence in respect of the two imputations relating to Ms Edwards’ theft of Oscar the cavoodle occupied the vast bulk of the trial. The parties both insisted on tendering a morass of evidence which was said to be relevant to whether those imputations were substantially true. That evidence dealt in minute detail with every aspect of Oscar’s daily life and his relationship with Mr Gillespie, Ms Edwards and Mr Flavell. It included oral evidence from Ms Edwards, Mr Flavell and Mr Gillespie, each of whom was cross-examined at some length, as well as a trove of text messages, Instagram posts and photographs of or concerning Oscar.
Relevant statutory provisions and principles
125 Section 25 of the Defamation Act provides as follows:
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
126 Section 4 of the Defamation Act provides that “substantially true” means true in substance or not materially different from the truth.
127 To establish that an imputation is substantially true, the publisher must prove that every material part of the imputation is true, otherwise the defence fails: Howden v “Truth” & “Sportsman” Ltd (1937) 58 CLR 416 at 420-421 (Dixon J) see also Cross v Queensland Newspapers Pty Limited [2008] NSWCA 80 at [71]. The publisher must also “not only prove the truth of the words complained of in their literal meaning but also the truth of the defamatory sting”: Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [274]; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [138]. The “defamatory sting” is the meaning or meanings found to have been conveyed by the publication.
128 The question whether the defamatory sting is substantially true should not be approached in an overly technical or “meticulous” way, particularly in respect of inconsequential details. As Lord Shaw of Dunfermline explained in Sutherland v Stopes [1925] AC 47 (at 78-79):
It remains to be considered what are the conditions and breadth of a plea of justification on the ground of truth. The plea must not be considered in a meticulous sense. It is that the words employed were true in substance and in fact. I view with great satisfaction the charge of the Lord Chief Justice when he made this point perfectly clear to the jury, that all that was required to affirm that plea was that the jury should be satisfied that the sting of the libel or, if there were more than one, the stings of the libel should be made out. To which I may add that there may be mistakes here and there in what has been said which would make no substantial difference to the quality of the alleged libel or in the justification pleaded for it. If I write that the defendant on March 6 took a saddle from my stable and sold it the next day and pocketed the money all without notice to me, and that in my opinion he stole the saddle, and if the facts truly are found to be that the defendant did not take the saddle from the stable but from the harness room, and that he did not sell it the next day but a week afterwards, but nevertheless he did, without my knowledge or consent, sell my saddle so taken and pocketed the proceeds, then the whole sting of the libel may be justifiably affirmed by a jury notwithstanding these errors of detail.
In the second place, however, the allegation of fact must tell the whole story. If, for instance, in the illustration given, the facts as elicited show what my writing had not disclosed – namely, that the defendant had a saddle of his own lying in my harness room, and that he took by mistake mine away instead of his own and, still labouring under that mistake, sold it – then the jury would properly declare that the libel was not justified on the double ground that there were facts completely explaining in a non-criminal sense anything that was done, and the jury would disaffirm the truth of the libel because, although meticulously true in fact, it was false in substance.
129 The example given by Lord Shaw in the second paragraph is of particular significance to the circumstances of this case.
130 The publisher bears the onus of proving that the imputations were substantially true.
Overview of the parties’ claims and counterclaims
131 The Publishers provided relatively detailed particulars of their contention that Ms Edwards not only stole Oscar from Mr Gillespie, but that she did so for her own financial benefit. The nub of their case may be summarised as follows. Some uncontentious facts have been added to this summary of the Publishers’ case to provide appropriate context.
132 Mr Gillespie purchased Oscar in July 2016 and was his registered owner.
133 Mr Gillespie was friends with Ms Edwards and Mr Flavell at the time. Ms Edwards and Mr Flavell had previously looked after a dog named Milo which had been owned by Mr Gillespie and his then partner. Mr Gillespie worked on cruise ships and was frequently away from home for work.
134 From “time to time” between about August 2016 and August 2018, Mr Gillespie “allowed” Ms Edwards and Mr Flavell to “dog-sit” Oscar, including by “permitting” Ms Edwards and Mr Flavell to take possession of Oscar and have him stay at “premises” they occupied.
135 It was uncontentious that Ms Edwards and Mr Flavell were very taken with Oscar and were very affectionate towards him. They frequently referred to themselves as Oscar’s “Mommy” and “Papi” respectively. Mr Gillespie had established an Instagram account for Oscar and, in May 2017, he permitted Ms Edwards to access and post material to that account. The Instagram account had many followers and Oscar acquired a social media profile. Oscar’s notoriety increased when, in April 2018, he was cast in and subsequently appeared in an Opera Australia production of La Boheme. There was essentially no real dispute that Ms Edwards was responsible for much of Oscar’s notoriety.
136 In about August 2018, Mr Gillespie was required to travel for an extended period for work. He arranged to lave Oscar in the care and custody of his brother, Mr Peter Fidler, and Mr Fidler’s wife, Ms Simona Angeli. Mr Fidler and Ms Angeli lived in Wingello in the Southern Highlands, about two hours’ drive south of Sydney. It would appear to be common ground that Oscar spent some time in Wingello before Mr Gillespie departed overseas in August 2018.
137 After Mr Fidler and Ms Angeli began to look after Oscar in Wingello, Ms Edwards and Mr Flavell asked Mr Gillespie if they could visit Oscar in Wingello and occasionally take Oscar away with them for “limited periods” for social and other events. Mr Gillespie agreed, and Ms Edwards and Mr Gillespie were permitted to collect Oscar for periods of time, before returning him to Wingello. These arrangements persisted for many months.
138 It was uncontentious that Ms Edwards and Mr Flavell were not happy about Oscar’s move to Wingello. It was also common ground that the arrangement whereby Ms Edwards and Mr Flavell were allowed to collect Oscar from Wingello and have custody of him for periods of time generated some friction, in particular with Ms Angeli. Mr Gillespie and Ms Edwards had a heated argument concerning those arrangements in July 2018.
139 In about late September or early October 2019, Ms Angeli refused to permit Ms Edwards and Mr Flavell to have possession of Oscar, at least until Mr Gillespie returned from overseas.
140 The Publishers’ case was that, throughout the course of the arrangement pursuant to which Ms Edwards and Mr Flavell were permitted to take custody of Oscar for periods of time while he was otherwise being looked after at Wingello, Mr Gillespie and his family made it clear to Ms Edwards and Mr Flavell that Mr Gillespie remained Oscar’s owner.
141 In about November 2019, Ms Edwards and Mr Flavell sought advice concerning their rights in respect of Oscar from a barrister, Mr Thos Hodgson. This was prompted by either Ms Angeli’s refusal to allow them access to Oscar until Mr Gillespie returned, or Ms Edwards learning that Mr Gillespie might be moving to Las Vegas and was planning on taking Oscar with him.
142 There was a disagreement between the parties concerning the precise date on which Mr Hodgson gave advice to Ms Edwards and Mr Flavell. More significantly, the circumstances in which that advice was provided, and in particular the factual instructions that Ms Edwards and Mr Flavell provided to Mr Hodgson, were contentious. The evidence in that regard will be addressed in detail later. It is probably the most critical issue. It suffices at this point to note that the Publishers’ case was that Ms Edwards gave Mr Hodgson factual instructions that she knew were false or misleading. They also contended that all times Ms Edwards knew that she was not the owner, or an owner, of Oscar.
143 On 4 December 2019, Ms Edwards sent a text message to Mr Gillespie in which she said that there was an opportunity for Oscar to appear in a television show called “Pooch Perfect”. In the ensuing exchange of text messages, an arrangement was made between Mr Gillespie and Ms Edwards for a friend of Ms Edwards, Reverend James Aaron, to collect Oscar from Wingello on 16 December 2019 to enable Oscar’s participation in that show. The arrangement was that Reverend Aaron would return Oscar shortly thereafter.
144 In fact, there was no opportunity for Oscar to appear in a television show. Ms Edwards obtained possession of Oscar by deception and had no intention of returning Oscar to Mr Gillespie on 16 December 2019 or thereafter. On the afternoon of 16 December 2019, Ms Edwards sent Mr Gillespie an email which attached a draft statement of claim in which it was alleged, among other things, that Ms Edwards and Mr Flavell were the legal and beneficial owners of Oscar. Oscar was not returned to Wingello. Ms Edwards then commenced proceedings in the Local Court. The Local Court proceedings were subsequently discontinued and Ms Edwards commenced similar proceedings in the District Court in January 2020.
145 The Publishers alleged that at the time Ms Edwards obtained possession of Oscar by deceptive means, she knew that she did not own Oscar and had no intention of returning Oscar to Mr Gillespie. As will be seen, the question whether Ms Edwards knew that she did not own Oscar and did not have a genuine and honest belief that she was entitled to take possession of Oscar is perhaps the most critical issue in determining the Publishers’ justification defence.
146 Ms Edwards does not bear any onus of proof in respect of the Publisher’s claim that she stole Oscar. It is nevertheless useful to briefly summarise her response to the Publishers’ allegations, particularly in light of the fact that she effectively conceded that she obtained possession of Oscar by deception on 16 December 2019.
147 First, Ms Edwards claimed that she and Mr Flavell were at all relevant times co-owners of Oscar with Mr Gillespie. Her principal contention in that regard appeared initially to be that she and Mr Flavell had entered into an agreement with Mr Gillespie, at the very outset when he first purchased the dog, that she and Mr Flavell would co-own Oscar with him. That agreement was said to have been an oral agreement made during a telephone conversation on about 4 or 5 July 2016. Ms Edwards subsequently appeared to claim that the co-ownership arrangement developed over time, or that she acquired some ownership or custody rights during the time that she and Mr Flavell cared for Oscar, including by virtue of the fact that she and Mr Flavell had paid some of the expenses in relation to his upkeep. She also relied on the provisions of the Companion Animals Act 1998 (NSW) in support of her claim that she was a co-owner.
148 Second, Ms Edwards contended that she and Mr Flavell genuinely believed that they had some access or custody rights in respect of Oscar. Her belief in that regard was, she claimed, based on the advice that they received from Mr Hodgson. Ms Edwards’ case was that at a dinner they attended at a Thai restaurant, Mr Hodgson advised her and Mr Flavell that the “sharing arrangement” they had with Mr Flavell gave her the right to retain possession of Oscar because Mr Flavell had failed to honour that arrangement and had effectively abandoned the dog. According to Mr Hodgson, that meant that Ms Edwards and Mr Flavell had ownership or possessory rights which were superior to those of Mr Fidler and Ms Angeli, who were mere bailees of a chattel. It was on the basis of Mr Hodgson’s advice that Ms Edwards and Mr Flavell decided to obtain possession of Oscar from Mr Fidler and Ms Angeli. Mr Hodgson also advised that once they obtained possession, Ms Edwards and Mr Flavell should commence proceedings so that a court could determine who owned Oscar.
149 As noted earlier, Ms Edwards ultimately did not appear to dispute that she obtained possession of Oscar by deception, though she in effect sought to justify her actions in that regard on the basis of the advice she received from Mr Hodgson.
150 While perhaps not put precisely in these terms, the effect of Ms Edwards’ case was that she could not be said to have stolen Oscar because she had a genuine belief or claim of right in respect of her ownership or right to possess Oscar.
151 Third, Ms Edwards claimed that, at the time she obtained possession of Oscar in December 2019, she did not intend to permanently deprive Mr Gillespie of possession. Rather, she and Mr Flavell intended only to deprive Mr Gillespie of possession pending the court’s determination of the ownership dispute. That is why she sent Mr Gillespie the draft statement of claim soon after taking possession of Oscar and later commenced proceedings in the Local Court and then District Court. She maintained that she could not be said to be a thief who stole Oscar in those circumstances.
The offence of larceny and stealing
152 To prove the substantial truth of the first of the two imputations in question, the Publishers must prove that Ms Edwards, a barrister, is a “thief” who “stole” Oscar the cavoodle. To prove the substantial truth of the second of the two imputations in question, the Publishers must prove that Ms Edwards not only “stole” Oscar, but that she did so for her own financial benefit.
153 To say that someone is a “thief” is, in common parlance, to say that they are guilty of theft or stealing. Likewise, to say that someone “stole” something is, in common parlance, to say that they are guilty of stealing that thing. That is the essential “sting” of the imputations in question. The words, “theft” and “stealing” are words that are often used to refer to or describe the common law offence of larceny, though in some jurisdictions there are statutory offences which are called, or employ the words, “theft” or “stealing”. Those statutory offences generally involve the same or similar elements as the common law offence of larceny.
154 In their submissions in support of the proposition that the imputations in question were substantially true, the Publishers did not identify any particular offence or offences involving larceny, theft or stealing which they claimed Ms Edwards committed when she effectively took and refused to return Oscar to Mr Gillespie. That was no doubt because the imputations did in question did not identify any particular offence, but rather used the general expressions “thief” and “stole”. Both parties nevertheless appeared to proceed on the basis that the Publishers were required to prove, in effect, that Ms Edwards was, in all the circumstances, guilty of stealing Oscar. Both parties also referred in their submissions to facts or elements that must generally be established before someone could be said to be guilty of theft, stealing or larceny.
155 It is, in those circumstances, necessary to briefly address the main elements or ingredients of the offence of stealing or larceny. That is not to say that this matter should be approached as if it were a criminal trial of specific charges against Ms Edwards. Rather, it is necessary to have regard to the natural and ordinary meaning of the words “thief” and “stole”. Moreover, as the passage from the judgment of Lord Shaw in Sutherland v Stopes, referred to earlier, illustrates, the question of the substantial truth of an imputation should not be approached in an overly technical way, but rather as a matter of substance. In considering whether the imputations in question were substantially true in this matter, it is necessary to have regard to what might, from the perspective of the ordinary reasonable person, be commonly understood to be the elements or ingredients of offences such as larceny, theft or stealing. It is also necessary to consider whether there are facts, other than those referred to in the imputations, that might explain “in a non-criminal sense what was done”, or otherwise “disaffirm the truth of the libel because, although meticulously true in fact, it was false in substance”.
156 In New South Wales, larceny is a common law offence punishable pursuant to s 117 of the Crimes Act 1900 (NSW). There is no general offence of stealing or theft, though curiously (and perhaps irrelevantly) there is a specific offence of stealing dogs: s 132 of the Crimes Act. The common law offence of larceny was defined in the following terms by Wilson and Dawson JJ in Ilich v The Queen (1986-1987) 162 CLR 110 at 123:
At common law, larceny is committed by a person who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof.
157 Their Honours went on to observe that an “owner”, for the purposes of the offence of larceny, may include a person who was lawfully in possession of the thing that was taken and (at 123-124) that larceny is “sometimes described as an offence against possession”. A thing which is capable of being stolen must be a tangible, movable item with some value, or “property which is capable of physical possession and removal”: Croton v The Queen (1967) 117 CLR 326 at 330. There could be little doubt that a domesticated dog is a thing capable of being stolen. Property may be taken or appropriated without the consent of the owner if the owner’s consent was gained by deception or fraud: DPP v Gomez [1993] AC 442 at 450; [1993] 1 All ER 1; (1992) 96 Cr App R 359; R v Baruday [1984] VR 685 at 693; (1984) 13 A Crim R 190.
158 It can be seen from the above general description of the offence of larceny that the key elements of the offence are: first, the taking and carrying away of a thing without the owner’s consent (including where consent was obtained by fraud or deception); second, the taking must involve fraud or the absence of “a claim of right in good faith” on the part of the person who was responsible for the taking; and third, the person must have had an intention to permanently deprive the owner of possession. The two elements that are of particular importance in the circumstances of this case are those that involve an absence of a claim or right and an intention to permanently deprive the owner. As the earlier summary of Ms Edwards’ case indicates, she submitted that she not only had a claim of right, but also had no intention of permanently depriving Mr Gillespie of Oscar. Given the importance of those two elements, it is necessary to briefly address some of the relevant legal principles concerning them.
159 A claim of right, in simple terms, involves a belief as to the right to possess the property possessed by another. The belief must be as to a legal right, not a mere moral right: Harris v Harrison [1963] Crim LR 497; R v Salvo [1980] VR 401 at 408, 435. The belief must be genuinely and honestly held, but need not be reasonable, though unreasonableness may bear on the question whether the belief was genuinely held: R v Lawrence [1997] 1 VR 459; (1996) 138 ALR 487; R v Nundah (1916) 16 SR (NSW) 482 at 489. The question is whether the person had a genuine belief in the legal right to the property in question, rather than a belief in a legal right to employ the means in question to recover it: R v Love (1989) 17 NSWLR 608 at 615-616; R v Salvo; Barker v R (1983) 153 CLR 338.
160 As for the element of intention to permanently deprive, an intention to return the property to the owner is not a defence to a charge of larceny if the accused has appropriated the property for his or her own use or benefit: s 118 of the Crimes Act. As Barwick CJ explained in Foster v The Queen (1967) 118 CLR 117 at 121:
Thus, if the intention is to deprive the true owner of possession for a limited time, larceny is not made out. But if the intention of the taker is to exercise ownership of the goods, to deal with them as his own, an intention later to restore the property in the goods will not prevent the original taking being larcenous. Of course, in truth, the thief cannot alter the ownership of the goods: but he can have an intention to do so.
161 I should reiterate than in referring to the elements that are ordinarily necessary to make out the offence of larceny, I am not suggesting that, to prove the substantial truth of the two stealing imputations, the Publishers were required, in effect, to prove that Ms Edwards would, if tried, have been convicted of the offence of larceny. Rather, the question is whether the imputations were true in substance and in fact having regard to the ordinary and natural meaning of the words “thief” and “stole” in the context in which they appear in the imputations. The main point to emphasise is that the ordinary and natural meaning of the words “thief” and “stole” is likely to broadly coincide with what are commonly known to be the main or essential elements of the offence of larceny. Most people would not consider that someone was a thief who stole a dog if, as it turned out, the person honestly believed that the dog was theirs – that is, that they had a claim of right - or did not intend to permanently deprive the owner of his or her possession of the dog.
Witness demeanour and credibility
162 Before addressing and making factual findings about the key factual issues relating to the alleged theft of Oscar, some brief observations should be made concerning the demeanour and credibility of the witnesses who gave evidence regarding those factual issues. Those witnesses were, in the main, Ms Edwards, Mr Flavell and Mr Gillespie.
163 Dealing first with Ms Edwards, on the whole she was not an impressive witness, particularly when it came to the disputed facts concerning the terms of the arrangement she supposedly entered into with Mr Gillespie when he first bought Oscar, the nature of the arrangement that evolved in respect of the care and custody of Oscar and the factual instructions she gave Mr Hodgson and the advice she received from him. While Ms Edwards gave her evidence in a confident and assertive fashion, all too often she gave very longwinded and dissembling answers that included a good deal of unnecessary commentary, assertion and innuendo that was not responsive to the question. On occasion she appeared to avoid responding to the question altogether. She also appeared prone at times to exaggeration and embellishment.
164 The unsatisfactory nature of Ms Edwards’ evidence became particularly apparent during cross-examination, during which she often gave unresponsive and unhelpful answers. It was necessary for me to direct Ms Edwards to give responsive answers to questions and not volunteer unresponsive commentary on no few than six occasions. Ms Edwards also appeared both unwilling to make reasonable concessions in respect of issues that she thought might be adverse to her case, and quite willing to give rather implausible explanations for other evidence, in particular documentary evidence, that she perceived to be adverse to her case.
165 I do not propose to give extensive examples to demonstrate the observations just made in respect of Ms Edwards’ evidence. Two examples will suffice.
166 The first example arose when Ms Edwards was cross-examined about the contents of a statement of claim she filed in the Local Court shortly after she obtained possession of Oscar in December 2019. That statement of claim included factual allegations concerning the nature and terms of the agreement that Ms Edwards claimed she and Mr Flavell entered into with Mr Gillespie at around the time he purchased Oscar. The details concerning the agreement in the statement of claim differed in some respects from the evidence she had given about the agreement the previous day. Initially Ms Edwards appeared to disavow or disown what was said in the pleading, or deny that the pleading contained her narrative of what had occurred or what had given rise to the agreement. She also claimed that what was said in the pleading was wrong and blamed others – mainly Mr Hodgson – for what she said was a mistake in the pleading. Her evidence in that regard included:
[MR SIBTAIN:] All right. So that pleaded version that you advanced in the Local Court in December 2019 was not correct. Is that what your evidence is now?
[MS EDWARDS:] Yes.
[MR SIBTAIN:] All right. And you knew it wasn’t correct at the time?
[MS EDWARDS:] No.
[MR SIBTAIN:] What facts did you acquire between December 2019 and now that corrected your understanding of this discussion that took place, according to you, in August 2016?
[MS EDWARDS:] I believe that Thos drafted certain parts of this based upon some conversations that he and I had and Ken and he had and that he mixed up various things, and I think in the rush to get this filed quickly there was oversight, including issues with bailor and bailee that he admitted was an oversight and other things as well. So I – I think it’s more of an issue that it was just a rush and that there wasn’t attention paid to details such as that.
[MR SIBTAIN:] All right. Now – but, nevertheless, it was a document that you were prepared to sign and to affix Ken’s signature to; correct?
[MS EDWARDS:] I think we both affixed our signature to it.
167 Ms Edwards’ suggestion that the apparent inconsistency between the pleading and her evidence could be explained by the supposed urgency in filing the pleading and a lack of attention to detail by Mr Hodgson was implausible and lacked credibility. It demonstrated both an unwillingness to make reasonable concessions and a proclivity on the part of Ms Edwards to tailor her evidence in a way which she perceived would assist, or avoid any damage to, her case. Ms Edwards and Mr Flavell were ultimately responsible for filing the pleading and it is entirely implausible that they did not check its content to ensure its accuracy before filing it, particularly in respect of the key facts and particulars that were said to support or give rise to the alleged agreement.
168 The second example concerned Ms Edwards’ evidence about an email she sent to Mr Flavell when the dispute concerning the care and custody of Oscar first arose. In that email, Ms Edwards said, among other things: “I know you [Mr Gillespie] have 100 per cent of the power here in terms of us having a relationship with you and Oscar.” That statement appeared to be at odds with Ms Edwards’ claim and evidence that she had entered into an agreement with Mr Gillespie concerning the ownership of Oscar. Ms Edwards’ rather unsatisfactory explanation of the statement, as well as another statement in the email that she obviously perceived as being inconsistent with her evidence, was that it was untruthful, or at least not genuine, and that she had been told by others, including an unnamed doctor, to include it in the email. That evidence was somewhat implausible and cast doubt on the reliability of Ms Edwards’ evidence generally.
169 Those two examples are by no means the only instances where Ms Edwards’ evidence appeared to be both unsatisfactory and unreliable. She gave similarly tortured or tortuous evidence concerning the contents of a letter providing further particulars of a later iteration of the pleadings and a joint affidavit she and Mr Flavell swore for the purposes of the proceedings she had commenced. My overall impression was that Ms Edwards was prone to tailoring her evidence in a way that she perceived to be favourable to her case. I do not believe that Ms Edwards was at all times frank and forthright when giving evidence and have doubts about the reliability of at least some of her evidence.
170 Mr Flavell was a somewhat more satisfactory witness than Ms Edwards. He gave more direct and responsive answers to questions and did not appear to be tailoring his evidence to suit Ms Edwards’ case. The Publishers did not directly impugn Mr Flavell’s credit or contend that his evidence was generally unreliable. I do, however, entertain doubts about the accuracy and reliability of Mr Flavell’s recollection of some of the key events, in particular the initial conversations with Mr Gillespie concerning the arrangements for the care of Oscar when Mr Gillespie went overseas and the conversations with Mr Hodgson in late November 2019 when he gave Ms Edwards and Mr Flavell advice about the custody of Oscar. My perception of Mr Flavell’s evidence concerning those conversations is that it was influenced and perhaps even contaminated, albeit perhaps subconsciously, by the events that followed and his discussions with Ms Edwards.
171 Mr Gillespie, on the other hand, was a more impressive witness. He appeared to be a generally frank and forthright witness who was endeavouring to give honest and accurate evidence about the events in question. Mr Gillespie also had no real “skin in the game”, so to speak. He had ultimately consented to a declaration in the Supreme Court that Ms Edwards owned Oscar, mainly because he could no longer afford to defend the proceeding, so he really had nothing to gain from giving an untruthful account of the dispute about Oscar’s ownership and possession. In any event, nothing of substance arose in the context of Mr Gillespie’s evidence which gave rise to any reason to doubt his credit or reliability as a witness. While there were some discrepancies or inconsistencies between aspects of Mr Gillespie’s evidence concerning the relevant events and an affidavit he had sworn for the purposes of previous litigation, those inconsistencies concerned relatively minor issues and, for the most part, Mr Gillespie made appropriate concessions concerning them. Unlike Ms Edwards, he did not attempt to explain them away. Those inconsistencies were not such as to cast any significant doubt on the reliability of Mr Gillespie’s evidence generally.
172 In all the circumstances, I would tend to prefer Mr Gillespie’s evidence to Ms Edwards’ evidence in respect of disputed or controversial conversations and events, at least where Ms Edwards’ evidence was uncorroborated by documentary or other evidence.
173 I do not propose to deal at length with the credibility or reliability of Reverand Aaron and Ms Anne Roach, who were the other witnesses who gave evidence about the contested events concerning the arrangements relating to the care and custody of Oscar. I have no reason to doubt the credibility or reliability of their evidence, though their evidence tended to concern more tangential issues or was otherwise deserving of limited weight. That includes, for example, Reverend Aaron’s recollection of hearing conversions during which Ms Edwards and Mr Flavell were referred to as Oscar’s “Mommy” and “Papi”, or during which the arrangements concerning Oscar were referred to as “co-parenting” or “co-sharing”.
174 Finally, as for Mr Hodgson, the Publishers did not seek to impugn his credit or the reliability of his evidence concerning the advice he gave Ms Edwards and Mr Flavell. It does not follow that his evidence in that regard was entirely satisfactory. That issue is discussed in detail later.
175 It is convenient to first address whether the Publishers succeeded in discharging their onus or burden of proving that Ms Edwards stole Oscar. If it cannot be said that Ms Edwards stole Oscar, it also could not be said that she was a thief. The question whether Ms Edwards stole Oscar for her financial benefit will be determined separately.
176 As noted earlier, the parties adduced voluminous evidence ostensibly in respect of the question whether Ms Edwards could be said to have stolen Oscar from Mr Gillespie when she obtained possession of Oscar in December 2019 under the pretence that Oscar was going to appear in or audition for a television program. That evidence ranged over many topics relating to Oscar’s care and custody over an almost three-year period. I do not propose to wade through the morass and address or make factual findings concerning each and every one of the many factual disputes thrown up by the evidence. Some of the factual disputes concerned trivial or tangential issues that did not significantly or materially bear on the question whether Ms Edwards could be said to have stolen Oscar. The parties tended to become so enmeshed in the minutia of the evidence concerning the dog that they failed to see the wood for the trees. I do not intend to get lost in the thicket.
177 In my view, having regard to the way the parties put their respective cases, the key factual issues that must be resolved in order to determine whether the Publishers proved that Ms Edwards was a thief who stole Oscar are: first whether, when Mr Gillespie acquired Oscar, he agreed with Ms Edwards and Mr Flavell that they would be co-owners of Oscar; second, whether Ms Edwards and Mr Flavell acquired ownership or possessory rights in respect of Oscar by virtue of the fact that over time they came to care for and pay expenses relating to Oscar; third, whether Mr Gillespie abandoned Oscar when he went overseas and left Oscar in the care and custody of Mr Fidler and Ms Angeli; fourth, whether, when Ms Edwards obtained possession of Oscar from Mr Fidler and Ms Angeli, she had genuine and honest belief that she had a legal right to possession of Oscar; fifth, whether Ms Edwards obtained Oscar by fraud or deception and without Mr Gillespie’s consent; and sixth, whether Ms Edwards had an intention of permanently depriving Mr Gillespie of ownership or possession of Oscar.
Did Mr Gillespie agree with Ms Edwards and Mr Flavell at the outset that they would be co- owners of Oscar?
178 The question whether, when he first acquired Oscar, Mr Gillespie agreed with Ms Edwards and Mr Flavell that they would be co-owners of Oscar is an important issue because, if Ms Edwards was in fact Oscar’s co-owner, it is difficult to see how she could be said to be a thief who stole Oscar. As noted earlier, one of the elements of larceny is that the taking away of the item was without the owner’s consent. A person is not likely to be considered to be a thief who stole property if he or she was an owner or co-owner of that property. That said, in some circumstances an owner of property can be guilty of stealing that property if he or she takes the property from a person who is in lawful possession of it: R v Cameron (1924) 24 SR (NSW) 302.
179 This factual issue also bears to some extent on whether Ms Edwards’ taking of Oscar could be said to have been fraudulent and without a genuine claim of right.
180 While there was a good deal of evidence concerning this issue, it is ultimately possible to resolve it in fairly brief terms.
181 There was no dispute that on 4 July 2016 Mr Gillespie paid a deposit for the purchase of Oscar and that on 10 July 2016 he became Oscar’s registered owner. Ms Edwards, however, claimed that on or about the day that Mr Gillespie paid the deposit for Oscar, Mr Gillespie telephoned her and had a conversation with her about her and Mr Flavell becoming the dog’s other “parents”. Mr Gillespie admitted that he had a conversation with Ms Edwards and Mr Flavell about sharing the dog, but denied that they discussed the sharing of expenses in respect of the dog.
182 Ms Edwards’ evidence, in short summary, was that on either 4 or 5 July 2016, Mr Gillespie called her from the United States to wish her a happy 4th of July. In that conversation, which Ms Edwards said occurred on a speakerphone at her end so Mr Flavel could hear and participate in the conversation, Mr Gillespie told her that he had purchased a dog and that he was worried about caring for the dog given his work commitments. In that context, Mr Gillespie “wanted to know if we would be interested in essentially being the other parents like Atti [Mr Gillespie’s former partner] was to Milo [Mr Gillespie’s former dog]”. Ms Edwards said that she agreed with Mr Gillespie’s proposal and that “there was then some talk about sharing expenses, and … when we had him, we would pay”.
183 Ms Edwards also gave evidence about a conversation which occurred when Mr Gillespie visited her and Mr Flavell’s home in Kirribilli in around late July 2016 and introduced Oscar to them. Her evidence about that conversation was:
[MS CHRYSANTHOU:] Yes. It’s - - -?
[MS EDWARDS:] To the best of my recollection, words were said to the following effect: “Are you still happy with what we discussed on the phone?” Mark speaking. Ken or I saying – or both, “Yes”. Mark said words to the effect of, “And we’ll just share time and I have some trips planned overseas with people I’ve met online and I have some work trips planned, and I also go down to see my family to help out. And also you can” – because Ken was out of work, he said, “You can see Oscar whenever you want.”
[MS CHRYSANTHOU:] Was anything else said?
[MS EDWARDS]: I believe that Ken and Mark had a discussion about the expenses because Ken was worried about money, being that he was unemployed. I can’t remember the direct words that were said but there was some discussion about the expenses. I apologise. I can’t remember the exact words.
184 In cross-examination, however, Ms Edwards gave the following evidence concerning her understanding of the arrangement that she and Mr Flavell had been made with Mr Gillespie when Oscar was introduced to them on 26 July 2016:
[MR SIBTAIN:] No. No. I understand that. You understood from that first meeting of the dog on 26 July that the terms of the arrangement that you’d entered into with Mark were that you could take care of the dog when he went away?
[MS EDWARDS:] In addition to other times. Yes.
[MR SIBTAIN:] And you say, “In addition to other times, yes.” Can I suggest to you that was not part of the agreement but it was something that by some subsequent arrangement did occur?
[MS EDWARDS:] Your Honour, may I say more than yes or no?
HIS HONOUR: Yes?
[MS EDWARDS:] Mr Sibtain, I’m not trying to be evasive. But to answer your question fully, I do need to explain that the way that Ken and I always viewed it was that it was an evolving arrangement, not a contract formed on 26 July. It was course of conduct that continued between the parties. And that’s what ..... had focused us on, was not a “agreement” that was – it was a course of conduct between the parties that has to be looked at as a whole because, of course, there was no written contract between the two of us.
185 Ms Edwards characterised the discussions with Mr Gillespie on 4 July and 26 July 2016 as comprising “initial outlines of our arrangement and agreement”. Her evidence was that the “arrangement expanded dramatically from what we initially contemplated”.
186 Mr Flavell’s evidence differed from Ms Edwards’ evidence in some respects. He did not give any evidence about a telephone conversation with Mr Gillespie on 4 or 5 July 2016. He recalled becoming aware that Mr Gillespie had purchased a dog, though he was unaware of the exact timeframe. He recalled that Mr Gillespie brought the dog to his and Ms Edwards’ house and that Mr Gillespie “basically told us that … we were going to share Oscar in terms of looking after Oscar … the expenses would be essentially split between us … that there would be three people in the relationship looking after Oscar”. Mr Gillespie also introduced Ms Edwards to Oscar as “your Mami” and to Mr Flavell as “your Papi”. In cross-examination, Mr Flavell did not disagree with the proposition that the effect of the conversation which occurred during the meeting when Oscar was introduced to him was that he and Ms Edwards would be the “other parents”.
187 Mr Gillespie’s evidence was that he may have telephoned Ms Edwards and Mr Flavell from the United States to tell them that he had bought a dog, but he did not recall doing so. He also recalled taking Oscar to Ms Edwards’ and Mr Flavell’s house in late July 2016 to show them Oscar. His evidence concerning the conversation that occurred on that occasion was as follows:
[MR SIBTAIN:] All right. And when you got to Kirribilli and you showed them the dog, what happened? Tell his Honour what happened?
[MR GILLESPIE:] I came into the house. I said to Ken and Gina, “Hello. This is Oscar.” They said he’s cute, lovely. They played with him. While they were playing with him, I asked Ken and Gina were they interested in looking after him like they did with Milo if I travelled or went away, otherwise he would go down to Wingello and stay with the family and have country time. They both came back and said, “No, he’s adorable. We would love to look after him.”
[MR SIBTAIN:] And was that the end of the conversation, or did anything else happen?
[MR GILLESPIE:] No, shortly after that, Ken said to me was I interested in having a fifty-fifty arrangement looking after him and sharing costs and being involved in his life. At that point, I said no, that I just got him. Why would I want to give half a dog away right now? And they said, “That’s okay.” And it was never discussed again.
188 When cross-examined, Mr Gillespie agreed that in a conversation with Ms Edwards and Mr Flavell in July 2016 he said, in the context of his purchase of Oscar, “[b]ecause of my work, I cannot do this alone” and “[w]ould you be interested in sharing Oscar”. When pressed about the conversation with Ms Edwards and Mr Gillespie on the day he introduced Oscar to them, however, he said that the “care arrangements” he discussed with Ms Edwards and Mr Gillespie involved “[d]og sitting arrangements, looking after Oscar when I travelled … [n]ot share”. He also denied offering to pay Ms Edwards and Mr Flavell. He said that they “didn’t want payment”.
189 It is difficult to determine precisely what was said between Mr Gillespie, Ms Edwards and Mr Flavell in the conversations that may have occurred over the telephone in early July 2016 and during the meeting with Oscar in late July or early August 2016. The witnesses were each purporting or endeavouring to recall what was said during a few fairly unremarkable conversations many years after those conversations were said to have occurred. Whatever arrangements concerning Oscar were made during those discussions, the precise terms of the arrangement do not appear to have been recorded or referred to in any contemporaneous documents.
190 It is tolerably clear that the arrangements that were discussed during those conversations included Ms Edwards and Mr Flavell looking after Oscar while Mr Gillespie was away for work. The making of such an arrangement appears plausible in the circumstances. I am, however, ultimately not persuaded that any arrangement or agreement beyond that was reached during the July 2016 discussions. In particular, whatever may have been said during those discussions, I am not satisfied that the discussions constituted, or amounted to, or gave rise to, any form of binding or enforceable agreement or arrangement that Ms Edwards and Mr Flavell were or would be co-owners of Oscar.
191 Aside from the general concerns I have concerning the credibility and reliability of much of Ms Edwards’ evidence on this topic, there are several issues and problems with Ms Edwards’ contention that, in the conversation or conversations concerning Oscar that occurred in late July or early August 2016, Mr Gillespie agreed that Ms Edwards and Mr Flavell would be co-owners of Oscar. First, it is quite implausible that Mr Gillespie, having outlaid a considerable sum to purchase Oscar, would have proposed or agreed that Ms Edwards and Mr Flavell would have equal rights as co-owners. Second, the evidence given by Ms Edwards and Mr Flavell concerning the two conversations was uncertain, vague and inconsistent. Third, even accepting Ms Edwards’ evidence that, during the conversation on 4 or 5 July 2016, Mr Gillespie asked whether Ms Edwards and Mr Flavell were interested in being “the other parents” of Oscar, that hardly amounts to an offer of co-ownership. It is more consistent with the agreement or arrangement amounting to no more than that Ms Edwards and Mr Gillespie would look after Oscar when Mr Gillespie was away. I doubt that “parent” in that context was intended to mean owner. Fourth, as noted earlier, Ms Edwards effectively conceded she did not consider that any contract was formed on 26 July 2016, but rather saw the arrangement concerning Oscar as being an “evolving arrangement” or “course of conduct” concerning the care and custody of Oscar. It is in any event difficult to see how it cold possibly be inferred or concluded that any of the parties intended to enter into legal relations, or intended that the discussions would give rise to any legally binding agreement.
192 It should perhaps be noted that Ms Edwards’ concession that she did not consider that any contract had been entered into on 26 July 2016 was inconsistent with the pleadings filed by Ms Edwards in both the Local and District Courts in late 2019 and early 2020. There are various iterations of the pleadings, though it suffices for present purposes to refer to the latest version which was filed in the District Court on 30 January 2020. In that document, Ms Edwards and Mr Flavell alleged that they and Mr Gillespie, “through their words and conduct” reached an agreement in August 2016 that “due to [Mr Gillespie’s] work travel schedule, [Ms Edwards and Mr Flavell] would care for Oscar on a regular basis whilst in their possession in their home in Kirribilli, NSW and all monies expended on his care would be shared”.
193 In answer to a request for further particulars of the conduct that was said to give rise to the alleged agreement, Ms Edwards and Mr Flavell provided the following particulars:
On or about 11 July 2016 [Mr Gillespie] advised [Ms Edwards and Mr Flavell] that he had decided to purchase a cavoodle dog known as Oscar and due to his regular travel onboard the P&O ships away from Sydney as well as his intentions to undertake regular overseas holidays, he requested [Ms Edwards and Mr Flavell] to share with him in the care of Oscar. He proposed that [Ms Edwards and Mr Flavell] on those many occasions he would not be in Sydney attend to the day to day care of Oscar and meet costs and expenses for Oscar. [Ms Edwards and Mr Flavell] agreed to [Mr Gillespie’s] proposition …
Shortly thereafter on or around 8 August 2016, [Mr Gillespie] brought Oscar to meet [Ms Edwards and Mr Flavell] and stated: “This is your Mommy and Papi.” During his first visit, [Ms Edwards and Mr Flavell] agreed again to share in the care of Oscar and contribute to his costs and expenses.
194 Even accepting this version of what was alleged to have been said and done on 11 July and 8 August 2016, it is difficult to see how that could be said to have constituted or comprised an agreement that Ms Edwards and Mr Flavell would be co-owners of Oscar. The agreement was no more than that Ms Edwards and Mr Flavell would care for Oscar while Mr Gillespie was not in Sydney.
195 Another difficulty with Ms Edwards’ account of the arrangement she claims to have made with Mr Gillespie is that it was almost entirely unsupported by any of the contemporaneous written communications between her, Mr Flavell and Mr Gillespie. Indeed, the documentary evidence is essentially inconsistent with Ms Edwards’ account. In particular, the text messages between Ms Edwards and Mr Gillespie in July and August provide no support for Ms Edwards’ contention that Mr Gillespie had agreed that she and Mr Flavell would be co-owners of Oscar with him.
196 The facts of this case, as I have found them, bear some similarity to the facts in Dennis v Dennis (1971) 124 CLR 317, a case concerning the ownership of a trotting horse. In that case, the facts as ultimately found by the High Court were that the registered owner of the horse in question entered into an oral agreement with a horse trainer that in consideration of the trainer maintaining and training the horse at his own expense, the trainer would be entitled to one half of the prize money if the horse won and one half of the price obtained by the horse if it was sold. The trainer was not expressly told that he was to have a half interest in the horse. The High Court allowed an appeal from the trial judge and found that it could not be concluded that the legal consequences of the agreement found to have been entered into was such as to provide a basis for a finding that the property in the horse was transferred from the owner to the trainer in equal shares, or to create a proprietary interest in the horse in the trainer. As Barwick CJ explained (at 321), “[n]othing in the conversation [between the owner and the trainer] suggests that the [owner] was to part with the ultimate control of the horse or that he was admitting the [trainer] to share that control, beyond the training of the horse”.
197 I have essentially reached the same conclusion on the facts as I have found them in this case. There was nothing in the conversations between Mr Gillespie and Ms Edwards and Mr Flavell to suggest that Mr Gillespie was to part with the ultimate control of Oscar, beyond allowing him to stay with and be cared for by Ms Edwards and Mr Flavell when Mr Gillespie went overseas, or on other occasions when he permitted that to occur. There was nothing to suggest that Mr Gillespie intended to transfer any proprietary interest in Oscar to Ms Edwards and Mr Flavell. Indeed, the evidence points in the opposite direction.
198 I should finally note that, while there may have been some issues in respect of Mr Gillespie’s evidence concerning the discussions he had with Ms Edwards and Mr Flavell in July 2016, I consider that his account of the conversations was more credible and reliable than the evidence of Ms Edwards and Mr Flavell on that topic. Mr Gillespie was cross-examined at some length about inconsistencies between the evidence he gave in this proceeding and an affidavit, and drafts of that affidavit, that were prepared for the purposes of the District Court proceeding commenced by Ms Edwards and Mr Flavell. While there were undoubtedly some inconsistencies, those inconsistencies tended to concern fairly peripheral matters. Mr Gillespie gave a relatively consistent account of having rejected any suggestion of co-ownership.
199 In all the circumstances, I reject Ms Edwards’ contention that she and Mr Flavell entered into an agreement with Mr Gillespie a term of which was that they would be co-owners of Oscar. That contention was unsupported by any cogent, reliable or credible evidence. Such reliable evidence as existed in respect of the discussions that occurred in July 2016 or early August 2016 tended to indicate that the discussions gave rise to no more than a loose arrangement whereby Ms Edwards and Mr Flavell would care for Oscar if and when Mr Gillespie was required to travel for work.
Did Ms Edwards and Mr Flavell otherwise acquire ownership or possessory rights concerning Oscar?
200 Ms Edwards also contended that the way that she, Mr Flavell and Mr Gillespie behaved and conducted themselves in respect of the care and custody over the period from about July 2016 to about September or October 2019 was consistent with Ms Edwards and Mr Flavell being co-owners of Oscar. The suggestion appeared to be that the course of conduct of the parties during that period either confirmed, or gave rise to, or constituted, an agreement that Ms Edwards and Mr Flavell were co-owners of Oscar.
201 In support of that proposition, Ms Edwards pointed to the uncontested fact that Mr Gillespie travelled overseas for work regularly in the latter part of 2016, throughout 2017 and in the first half of 2018, and that on each occasion Oscar was cared for by her and Mr Flavell. Oscar also stayed with Ms Edwards and Mr Flavell, at their request, on some occasions when Mr Gillespie remained in Sydney. Ms Edwards and Mr Flavell also visited Oscar on some occasions when he was at Mr Gillespie’s apartment. They even had access to the images of Oscar from a “puppy cam” which had been installed in Mr Gillespie’s apartment. Ms Edwards also frequently and enthusiastically posted images of Oscar on an Instagram account in Oscar’s name that Mr Gillespie had created and permitted Ms Edwards to access and use. It was also uncontentious that Ms Edwards and Mr Flavell occasionally purchased food and toys for Oscar, and even took him to, and paid for him to attend, “puppy school”.
202 There could be no doubt that Ms Edwards and Mr Flavell were fond of, if not besotted by, Oscar and cared for him greatly. Some would say that they indulged and pampered him. They called themselves, and considered themselves to be, Oscar’s “Mommy” (or “Mami”) and “Papi”. It may also be accepted that, for the most part, Mr Gillespie was more than content to continue to allow Ms Edwards and Mr Flavell to look Oscar while he was away and willingly allowed and facilitated Ms Edwards’ and Mr Flavell’s access to, and indulgences towards, Oscar at other times. Mr Gillespie also at times referred to Ms Edwards and Mr Flavell as Oscar’s “Mommy” and Papi”. It is tolerably clear that the relationship between Ms Edwards and Mr Flavell and Oscar was more than that of one of mere dog-sitters and dog, as the Publishers appeared to contend. The expression “dog-sitter” tends to connote a commercial, formal or somewhat detached arrangement in respect of looking after a dog. Ms Edwards and Mr Flavell were undoubtedly emotionally attached and devoted to Oscar. They were also good friends and socialised with Mr Gillespie and Oscar. Their relationship with Oscar was by no means commercial, formal or detached.
203 It does not follow that Ms Edwards and Mr Flavell were or became Oscar’s co-owners. The fact that they were particularly enthusiastic and committed participants and carers in Oscar’s life does mean that they had, or through that course of conduct acquired, some ownership or possessory rights in respect of Oscar, even though Mr Gillespie permitted, facilitated and even encouraged that conduct on the part of Ms Edwards and Mr Flavell. It cannot be accepted that Mr Gillespie somehow conferred joint ownership of Oscar on Ms Edwards and Mr Flavell simply because he arranged for them to look after Oscar while he was away from work, even for lengthy periods, or permitted and even facilitated their access to Oscar at other times.
204 The fact that Ms Edwards took it upon herself to actively post photos of Oscar on the Instagram account, and otherwise promoted and enhanced Oscar’s social media profile, also did not somehow confer ownership status on her, even if Mr Gillespie permitted or even encouraged Ms Edwards’ actions in that regard. As for the fact that Ms Edwards and Mr Flavell occasionally paid some expenses relating to Oscar’s care, that might arguably have given them some rights of recompense from Mr Gillespie, if it came to it, but even that is somewhat doubtful, particularly in respect of toys and other gifts that they may have voluntarily chosen to lavish upon Oscar.
205 As for the fact that Ms Edwards and Mr Flavell referred to themselves as Oscar’s “Mommy” and “Papi”, the use of those terms of endearment established no more than Ms Edwards’ and Mr Flavell’s love and affection towards Oscar. The same goes for the fact that Ms Edwards and Mr Flavell at times referred to themselves as Oscar’s “co-parents”. Needless to say, Ms Edwards and Mr Flavell were not in fact Oscar’s parents, or co-parents for that matter, though it may be accepted that they considered Oscar to be part of their “family”. I would also give little or no weight, in this context, to the fact that Ms Edwards and Mr Flavell told their friends and acquaintances that they were Oscar’s “co-parents”, or “Mommy” and “Papi”, and that their friends and acquaintances may therefore have formed certain views about the nature of their relationship with Oscar.
206 I would equally give little or no weight to the way Ms Edwards portrayed her relationship with Oscar on Instagram or in other social media or public settings. Ms Edwards agreed that on occasion she asked Mr Gillespie if she could pretend that she and Mr Flavell were Oscar’s “mommy and daddy” because that is what some of Oscar’s Instagram followers believed to be the case. That pretence would hardly have been necessary if Ms Edwards and Mr Flavell were in fact Oscar’s co-owners. It is in that context that the evidence concerning the media coverage of Oscar’s selection to appear as the dog in the production in La Boheme must be considered. The fact that Mr Gillespie referred to Ms Edwards as “Oscar’s adopted mummy” when asked by a reporter cannot, considered in context, be seen as an admission by Mr Gillespie that Ms Edwards was Oscar’s owner or co-owner. The fact that the media report subsequently described Ms Edwards as Oscar’s owner is equally deserving of little if any weight.
207 The apparent suggestion by Ms Edwards that she and Mr Flavell were co-owners of Oscar and therefore had equal rights to Mr Gillespie also flies in the face of the contemporaneous communications between Ms Edwards, Mr Flavell and Mr Gillespie concerning Oscar. I do not propose to trawl through the many text messages and emails that were tendered by the parties. On the whole, they indicate that, whatever may have been the nature of the “sharing arrangement” concerning Oscar, Ms Edwards and Mr Flavell knew that Mr Gillespie was Oscar’s owner and that it was ultimately up to Mr Gillespie to determine when and where they were able to have Oscar. It suffices to give two or three examples of communications which appear entirely at odds with Ms Edwards’ claim that she was a co-owner. Those communications have already been touched on in other contexts.
208 In a text Ms Edwards sent to Mr Gillespie on 17 September 2017, she said:
So cavoodle Harvey bear one of the cavoodle foursome is coming today for a bit as he’s finished puppy school. They live in the eastern suburbs and the four cavoodle mommies chat a lot. So I don’t have to go into a big long explanation – can we just pretend for their one hour visit Papi and I are mommy and daddy and you and aitti are Milo’s daddies? It might not even come up but they think because of Instagram oscar is here living next to the park!!
209 Why was this pretence necessary if Ms Edwards was in fact a co-owner, or even considered herself to be a co-owner? Why did Ms Edwards consider that it was necessary for her to ask Mr Gillespie whether she could pretend to be Oscar’s owner?
210 The fact that Ms Edwards and Mr Flavell were aware that she had no ownership rights, or any binding or enforceable rights to possess Oscar, became even more apparent in mid-2018 when relations between Mr Gillespie and Ms Edwards soured after Ms Edwards became aware that Mr Gillespie proposed to have Mr Fidler and Ms Angeli mind Oscar when he went overseas for work in late 2018. In an email to Mr Gillespie, which was sent following a heated disagreement between Mr Gillespie and Ms Edwards about the new arrangements concerning Oscar, Mr Flavell said:
Up till recently you were maintaining that we were part of you and Oscars life. You added us to his RSPCA data You uploaded the calendar etc. You told us we would have some rights. Not that we expected that to be legal thing of course but in your old apartment you told us we were included as his family.
You allowed us thankfully to be a part. You sent photos saying Good morning Mommy / Papi etc. We love Oscar dearly and want only to continue the small amount of contact time you will allow us. We will not impinge on Simone or Lucas time with him. If they want to cut the time shorter or reduce the visits then fine. But to not have anything we feel is just cruel and not understanding.
211 It is difficult to imagine that Mr Flavell would have made those statements to Mr Gillespie if he and Ms Edwards genuinely believed that they had co-ownership rights in respect of Oscar or had any binding or enforceable rights concerning his custody.
212 Similarly, in a lengthy and apologetic email Ms Edwards sent to Mr Gillespie after the fight, Ms Edwards said, among other things:
But perhaps the best thing you ever did for me and Ken was share Oscar with us and let us love, care for him and spend time with him. It was and will always be the greatest gift ever. Oscar is the wonderful creature he is because you are his father…
…
I know you have 100% of the power here in terms of us having a relationship with you and/or Oscar. We have no say, no power or nothing other than to beg for forgiveness and mercy…
213 Ms Edwards’ attempts, in her evidence, to distance herself from those statements were not only entirely unpersuasive but reflected poorly on her credibility and the reliability of her evidence generally. As noted earlier, Ms Edwards appeared to claim that she was not being genuine when she said that Mr Gillespie had “100% of the power” and that she and Mr Flavell had “no say, no power” and that she only said those things because she had been told to say them by Reverend Aaron, Mr Flavell, a friend who was a doctor ,and two other friends.
214 There could be little doubt that Ms Edwards and Mr Flavell believed at this point at least that Mr Gillespie was Oscar’s owner and that the arrangement between them concerning Oscar was that Mr Gillespie would “share” Oscar with them, in the sense that he would permit them to have care and custody of Oscar from time to time. While Ms Edwards and Mr Flavell may have believed that they had some form of rights arising from this sharing arrangement, they appeared to believe, at that point in time at least, that whatever those rights may have been, they were not legally binding or enforceable and did not make them co-owners. There is certainly no suggestion that they believed that the rights comprised or consisted of legal rights as co-owners.
215 Ms Edwards relied on the fact that Mr Gillespie provided Mr Flavell’s details as a secondary or alternative contact in respect of Oscar’s pet insurance. Similarly, at least according to Ms Edwards, Mr Gillespie provided Mr Flavell’s details as a secondary or alternative contact in respect of Oscar’s registration with the local council. I do not accept that the fact that Mr Flavell was listed as a secondary contact for Oscar’s insurance and registration were indicia or badges of joint or co-ownership of Oscar. It is common for insurers or registering bodies like councils to require secondary contact details simply so another responsible person can be contacted, usually in emergency situations, if the owner is uncontactable.
216 Ms Edwards also placed some reliance on the terms of s 7 of the Companion Animals Act, which provides that, for the purposes of that Act, an owner of a companion animal, such as a dog, includes not only the “owner of the animal (in the sense of being the owner of the animal as personal property”, but also “the person by whom the animal is ordinarily kept”.
217 Ms Edwards’ reliance on that provision was entirely misplaced. The provision itself makes it clear that the person by whom a dog is ordinarily kept is only considered to be an owner of the dog for the purposes of the Companion Animals Act. It is obvious why such a person might be considered to be a dog’s owner for the purposes of that Act. To give but one example, s 12A of the Companion Animals Act requires an owner to take all reasonable precautions to prevent a dog from escaping from the property on which it is being kept. It is obvious why that responsibility should extent to the person by whom the dog is ordinarily kept. The relevant issue in the context of this case is whether Ms Edwards could be considered to be a co-owner of Oscar “in the sense of being the owner of the animal as personal property”, not whether she might be considered to be an owner, for the purposes of the Companion Animals Act, because she occasionally looked after and therefore “kept” Oscar.
218 I am not, in all the circumstances, persuaded that the evidence concerning Oscar’s care and custody in the period from mid-2016 to mid-2018 supports, or is capable of supporting, the proposition, advanced by Ms Edwards, that she and Mr Flavell were Oscar’s co-owners, together with Mr Gillespie. Nor am I persuaded that the evidence supports the proposition that Ms Edwards and Mr Flavell acquired co-ownership of Oscar, or that they possessed any binding or enforceable rights in respect of the possession of Oscar by virtue of the course of conduct concerning Oscar’s care and custody over that period, including the payment of expenses. In short, the arrangement between Mr Gillespie, Ms Edwards and Mr Flavell never extended beyond a fairly loose and informal arrangement and there was never any intention by the parties, in particular Mr Gillespie, to enter into legal relations with Ms Edwards and Mr Flavell. In any event, even if the arrangement gave Ms Edwards and Mr Flavell any contractual rights, which is at best doubtful, their remedy for any breach of that arrangement would most likely be limited to damages or compensation, and would be most unlikely to extend to an order for specific performance which required Mr Gillespie to give Ms Edwards and Mr Flavell custody of Oscar.
219 The question whether Ms Edwards later came to honestly believe that she and Mr Flavell had some ownership or possessory rights in respect of Oscar, particularly following her receipt of advice from Mr Hodgson, is considered in detail later.
Did Mr Flavell abandon Oscar when he left him in the care and custody of Mr Fidler and Ms Angeli?
220 Ms Edwards contended, or at least appeared to contend, that Mr Gillespie abandoned Oscar when he put him in the care and custody of Mr Fidler and Ms Angeli in Wingello in late 2018. She submitted that in giving up possession of Oscar and ceding decision-making power to his relatives, Mr Gillespie thereby abandoned Oscar. The question whether Mr Gillespie abandoned Oscar is also of some importance because the advice that Mr Hodgson gave to Ms Edwards and Mr Flavell in late 2018 was premised in part on the fact that Mr Gillespie had supposedly abandoned Oscar, though it would be fair to say that Mr Hodgson’s opinion or advice concerning abandonment was anything but clear. In any event, Mr Hodgson’s advice is particularly significant to the question whether Ms Edwards genuinely and honestly believed that she had the legal right to obtain possession of Oscar.
221 The evidence concerning the circumstances in which Mr Gillespie came to leave Oscar in the care and custody of Mr Fidler and Ms Angeli was for the most part uncontentious, though the evidence of the care that Ms Fidler and Ms Angeli provided was contentious.
222 In about May 2018, Mr Gillespie told Mr Flavell that he would be spending six months overseas and that Oscar would be sent to Wingello to be cared for by Mr Fidler and Ms Angeli. Oscar was also sent to Wingello for about a week in May as a “trial”.
223 As has already been noted, the fact that Mr Gillespie was proposing to leave Oscar at Wingello upset Mr Flavell and Ms Edwards. They became even more upset when they learnt that Ms Angeli had expressed some reluctance to allow Oscar to be moved back and forth between Wingello and Sydney so he could spend time with Ms Edwards and Mr Flavell. In July 2018, a heated disagreement between Mr Gillespie and Ms Edwards about the arrangements concerning Oscar ensued during which Mr Gillespie said “keep the fucking dog” (Ms Edwards’ version) or “keep the fucking dog for now” (Mr Gillespie’s version) and stormed off. While Ms Edwards appeared to suggest that Mr Gillespie’s statement itself amounted to his abandonment of Oscar, that contention has no merit and cannot be accepted, whatever version of the statement is accepted. Considered in context, it is tolerably clear, and would have been clear to Ms Edwards, that Mr Gillespie was simply referring to Ms Edwards retaining custody of Oscar in the very short term in accordance with the previous arrangements. He plainly was not suggesting that Ms Edwards keep Oscar for good. Ms Edwards in fact returned Oscar to Mr Gillespie not long after the argument.
224 Mr Gillespie travelled overseas for work in August 2018. His contract was for six months. Oscar was left in the care and custody of Mr Fidler and Ms Angeli in Wingello. Ms Edwards and Mr Flavell did, however, regularly arrange to collect Oscar, or have Oscar collected by others, from Wingello so they could spend time with him. Some of those arrangements were made via communications with Mr Gillespie, though others were made directly with Mr Fidler and Ms Angeli. Oscar spent time with Ms Edwards and Mr Flavell on at least the following days: 7 December 2018; 25 December 2018 to 13 January 2019; 23 April 2019; 9 June to 5 July 2019; and 23 August 2019 to 12 September 2019.
225 In late September 2019, Ms Angeli told Mr Flavell that Oscar would not be having any further visits to Sydney because it was “unsettling” for her whole family. Ms Angeli did, however, let Mr Flavell collect Oscar for a further visit on 4 October 2019. A further request in late November 2019, however, was declined. In late November 2019, Mr Gillespie told Ms Roach, who was one of Ms Edwards’ friends, that he would be taking Oscar to Las Vegas in 2020.
226 Ms Edwards’ evidence was that at some point she became concerned about the care Oscar was receiving while he was in Wingello. She claimed, for example, that on some occasions when Oscar came to stay with her and Mr Flavell after he had been in Wingello his fur appeared to be matted and to contain burs. Ms Angeli gave evidence and was cross-examined about Oscar’s care while at Wingello. Other evidence was also adduced in respect of that topic. I do not, however, propose to consider that evidence in any detail. Suffice it to say that, while I accept that Ms Edwards had a genuine concern that Oscar was not receiving the same level of nurture and care that she and Mr Flavell lavished upon him in Kirribilli, I reject entirely the suggestion that Oscar was not being properly or adequately cared for in Wingello. While Oscar was cared for differently in Wingello, and the conditions in which he resided were different because he was residing in the country, that is not to say that his care was inadequate, or that the conditions in which he resided were unsatisfactory.
227 As noted earlier, Ms Edwards submitted that, because Mr Gillespie was no longer in possession of Oscar and had ceded any decision-making power in relation to Oscar to Mr Fidler and Ms Angeli, he had abandoned Oscar. No authority was cited in support of that proposition. I reject it.
228 While Mr Gillespie had placed Oscar in the custody of Mr Fidler and Ms Angeli and therefore was no longer in possession of Oscar, it is clear that that state of affairs was only intended to persist until Mr Gillespie returned from overseas. Mr Gillespie also remained in contact with Ms Angeli and retained decision-making powers in respect of Oscar, at least in respect of anything other than trivial or day to day issues. Abandonment of personal property requires more than the mere relinquishment of possession, or an intention to relinquish possession. It also requires an intention to relinquish any claim to the property: Hibbert v McKiernan [1948] 2 KB 142; Woolworths v Waverly Council [1999] NSWSC 308; 103 LGERA 227 at [47]. In other words, abandonment of goods only occurs where the owner is indifferent to any future asportation of them by others and leaves them “for anybody to take (them) away”: Williams v Phillips (1957) 41 Cr App R 5 at 8; Donoghue v Coombe (1987) 45 SASR 330 at 333. There was no suggestion, let alone evidence, that Mr Gillespie’s words or conduct manifested an intention to relinquish any claim to Oscar.
229 Further, to the extent that Ms Edwards’ contention relied on the proposition that Mr Gillespie had ceded all decision-making powers concerning Oscar to Mr Fidler and Ms Angeli, as already noted, that proposition was unsupported by the evidence and is rejected. The evidence indicated that Mr Gillespie remained in contact with Ms Angeli and Mr Fidler while he was overseas and Oscar was in Wingello and was involved in decisions concerning his care and custody during that period.
230 Finally, it should be noted that Mr Hodgson’s advice concerning abandonment was at best unclear. That issue is discussed later. As will be seen, Mr Hodgson’s advice concerning abandonment seemed to be premised or based on the proposition that Mr Gillespie effectively abandoned Oscar by virtue of the fact that he failed to honour the so-called sharing arrangement concerning Oscar. Mr Hodgson’s advice in that regard, which was given orally and in fairly informal circumstances, was not supported by any further reasoning, let alone authority. Ms Edwards also did not cite any authority in support of her contention that Mr Gillespie had abandoned Oscar. In all the circumstances, I reject the contention that Mr Gillespie abandoned Oscar in any relevant sense.
Did Ms Edwards genuinely and honestly believe that she had the legal right to obtain possession of Oscar?
231 Perhaps the most critical issue in determining whether the imputation that Ms Edwards stole Oscar is substantially true is whether, when she contrived to take possession of Oscar in December 2019, she genuinely and honestly believed that she had a right to possess, or take possession of, Oscar.
232 For the reasons already given, Ms Edwards was not a co-owner of Oscar and it is at best highly doubtful that she had any legal or enforceable right to obtain possession of the dog from Mr Gillespie or, more significantly, Mr Fidler and Ms Angeli. The arrangement which existed between Mr Gillespie, Ms Edwards and Mr Flavell concerning Oscar was no more than a loose and informal arrangement pursuant to which Ms Edwards and Mr Flavell came to have possession of Oscar from time to time. It is also at the very least highly doubtful that, at least prior to meeting with and receiving Mr Hodgson’s advice, Ms Edwards genuinely and honestly believed that she had legal right to obtain possession of Oscar from Mr Gillespie, Mr Fidler or Ms Angeli. For the reasons effectively already given, while she may have thought that she had some moral or otherwise amorphous rights arising from the sharing of Oscar over the preceding years, the evidence does not support a finding that she genuinely and honestly believed that she had the legal right to obtain possession of Oscar. Indeed, the available inference is that Ms Edwards ultimately sought advice from Mr Hodgson, at the suggestion of Ms Roach, because she did not know if she had any legal rights to obtain possession of Oscar.
233 The critical question, then, is whether she genuinely and honestly had such a belief after she received Mr Hodgson’s advice.
234 It was essentially common ground that Mr Hodgson was an experienced barrister. His practice was mainly in the areas of family law, criminal law and succession and equity matters. It was also common ground that Mr Hodgson’s advice was sought and given in very informal circumstances. He was a friend of Ms Roach. It was Ms Roach who introduced Ms Edwards to Mr Hodgson. That introduction took place during a dinner at a Thai restaurant in Kirribilli. No formal brief or written instructions were provided to Mr Hodgson at the time. It was, according to Mr Hodgson at least, “free advice” or “preliminary advice … a meeting of friends, people who love dogs … [j]ust talking about the circumstances and how might this situation be able to be resolved favourably for Oscar”. He was not asked to give, and did not give, any written advice, at least at this preliminary stage.
235 There are at least six factual issues that must be addressed and dealt with in relation to Mr Hodgson’s advice. The first issue is when that advice was given. The second issue is what Mr Hodgson was told concerning the situation involving Oscar. The third issue is what Mr Hodgson’s advice was. The fourth issue is what Ms Edwards believed about her rights to Oscar following the receipt of Mr Hodgson’s advice. The fifth issue, which arises given the way the Publishers put their case, is whether the account of the facts concerning Oscar that Ms Edwards gave Mr Hodgson included any facts which Ms Edwards knew to be false or misleading. The sixth issue is whether the belief Ms Edwards held based on Mr Hodgson’s advice was honestly and genuinely held. While perhaps not strictly relevant to the issue of whether Ms Edwards honestly and genuinely believed that she and Mr Flavell had a right to take possession of the dog, it is also appropriate to say something about the correctness of Mr Hodgson’s advice.
When did Mr Hodgson give the advice?
236 There was a dispute concerning the date on which Mr Hodgson gave advice to Ms Edwards. The date is important because Ms Edwards’ case proceeded on the basis that the dinner with Mr Hodgson occurred prior to 29 November 2019, when Ms Edwards and Mr Flavell began to take steps to obtain possession of Oscar from Mr Fidler and Ms Angeli. The Publishers contended, however, that the meeting occurred after 29 November 2019.
237 The issue was complicated by the fact that senior counsel for Ms Edwards opened her case on the basis that the meeting occurred on 10 December 2019. That date was also included in an agreed chronology and Mr Flavell agreed in cross-examination that the meeting occurred on 10 December 2019. Subsequently, however, Ms Edwards produced a statement in respect of her and Mr Flavell’s bank account which indicated that they spent $310 at the Thai restaurant in question on 28 November 2019. Ms Edwards’ evidence was that that was the only entry in the bank statement in respect of that restaurant for the months of November and December 2019. Ms Edwards’ evidence was that she could not remember the specific date on which the dinner was held. Ms Hodgson also said that he could not recall the specific date that he met Ms Edwards.
238 Despite the confusion caused by senior counsel’s opening statement and the agreed chronology, the evidence tended to suggest that the dinner did take place on 28 November 2019. While Mr Flavell agreed in cross-examination that the dinner occurred on 10 December 2019, it is difficult to imagine that he had any independent recollection of the date of the dinner almost four years after it occurred. While Ms Roach initially agreed to a question which was put to her in cross-examination as to the date of the dinner, she added, in relation to the date, “I’ll take your word for it”. It is readily apparent that she had no independent recollection of the date of the dinner. Mr Hodgson’s evidence was that he could not say on what date the dinner occurred, though in cross-examination he did not demur when a question was posed in terms which suggested that the meeting occurred on 10 December 2019. Ms Edwards’ evidence was that she did not recall the precise date of the dinner. She also emphatically denied that she “facilitated the collection of Oscar through deceptive means in advance of her meeting with Mr Hodgson”.
239 In my view, the most reliable evidence concerning the date of the dinner was the bank statement. I find, therefore, that the dinner took place on 28 November 2019.
What was Mr Hodgson told by Ms Edwards?
240 Mr Hodgson gave the following evidence about what Ms Edwards told him about the issue or dispute concerning the custody of Oscar:
[MS CHRYSANTHOU:] And do you recall what you were told by Ms Edwards about Oscar?
[MR HODGSON:] I was told that she had been involved in some sharing arrangement with a man named Mark Gillespie, in relation to this dog. That he had acquired the dog, registered and – registered the dog in his name, but the deal was that they would share the possession of this dog. He apparently worked for cruise lines, or whatever, and was overseas a lot. They had apparently had a previous arrangement with a dog called Milo, I think his name was, and this was another arrangement for this dog that they would equally share the care of the dog. As I understood it also, that they were spending quite a lot of money on the grooming of the dog and veterinary bills and the like. That was part of .....
…
[MS CHRYSANTHOU:] When you say they were spending money on the dog, who was spending money on the dog?
[MR HODGSON:] This is Gina Edwards and her husband, Kim.
[MS CHRYSANTHOU:] All right. Sorry. Keep going?
[MR HODGSON:] And that they were – I was told that a dispute had arisen. I also was told that – I think there was a time when the little puppy was acquired that Mark Gillespie had said at the time, “This is your mummy” or something like this. Certainly the intent was that this dog was to be – the possession of the dog was to be shared and essentially the dog was to be co-owned. I was told that some dispute had arisen between Mr Gillespie and Gina Edwards, that she was – apparently he was leaving the dog with some other people down in the Southern Highlands and that apparently he had said, “No” – they were saying to Ms Edwards, “You’re not seeing the dog” or “We won’t want you to see the dog”. They certainly weren’t treating the dog in the way that the dog had been treated when it was in the care of Ms Edwards. In fact, the impression I got was that the dog was – basically become a country dog and it was a dog so it stays outside or whatever. The fur was matted, it wasn’t groomed, and it wasn’t being as well looked after as Ms Edwards thought it should be.
[MS CHRYSANTHOU:] And I think you said that you understood that the dog was registered in Mr Gillespie’s name?
[MR HODGSON:] Definitely, yes. Registered in Mr Gillespie’s name. Yes. I was made aware of that.
[MS CHRYSANTHOU:] And that he had paid for and purchased the dog?
[MR HODGSON:] And he had paid to register the dog, yes.
241 While Mr Hodgson’s evidence of what he was told by Ms Edwards was somewhat discursive and did not purport to be a verbatim account of exactly what Ms Edwards said – perhaps a product of the nature of the question he was asked and the absence of any objection – it can be seen that the key elements of what he was told were: first, that Mr Gillespie had acquired the dog and it was registered in his name; second Mr Gillespie had entered into a “sharing arrangement” with Ms Edwards and Mr Flavell the “intent” of which was that “the possession of the dog would be shared and essentially the dog would be co-owned”; third, a dispute had arisen because Mr Gillespie had “[left] the dog with some other people in the Southern Highlands” who were saying that Ms Edwards and Mr Flavell could no longer see the dog; and fourth, the dog was not being treated in the same way as it was when it was in Ms Edwards’ custody, but was being treated like a “country dog” and his fur was matted and he had not been groomed.
242 In cross-examination, Mr Hodgson was pressed about what he had been told about the “sharing arrangement”. In Mr Hodgson’s somewhat rambling and confusing response he referred to the dog’s appearance in La Boheme, the fact that Ms Edwards had been referred to as “the mummy”, the fact that Ms Edwards and Mr Flavell had expended significant amounts of money relating to Oscar’s welfare, the fact that that Ms Edwards had held lavish parties for the dog, and that “this was something that had happened before” with another dog. His “impression” was that “it was very much a shared arrangement” and that “it was a bit like two people looking after a child”. Mr Hodgson was also asked about what Ms Edwards told him about how the dog was being cared for in the Southern Highlands. In his answer, Mr Hodgson said that the dog was a “pampered indoor dog” and that the dog was not being “groomed properly” or “cared for in the way certainly Ms Edwards believed the dog should be cared for”. He also said that Ms Edwards told him that the people in the Southern Highlands were not showing “great affection” for the dog.
243 Ms Edwards gave the following evidence about what she told Mr Hodgson:
[MS CHRYSANTHOU:] And then did you tell him something at the restaurant?
[MS EDWARDS:] And then at the restaurant, Ken and I explained to him about the fact that access was being blocked to Oscar and that it was upsetting, especially because thanksgiving was coming up and Christmas and we had always spent thanksgiving and Christmas, and that the fears that I had in July of 2018 were coming true about Simona exerting herself into the situation and he asked me a number of questions about money that I had spent – that Ken and I had spent on Oscar, how much time we had spent with Oscar. We went through things like the pet insurance, the puppy cam, the registration, the Instagram. He was particularly interested in the fact that Mark had allowed us to hold ourselves out to the world as Oscar’s parents. The Dog Lovers Show, he was particularly interested in the Channel 7 interview, all of those things. That was sort of what I presented to him in terms of what – we believed that we were Oscar’s parents. And I also told him that in the US the law is different state to state, so much so that in California the Family Court judges will bring the dog and see which parent it runs to before they decide custody, if you can believe that, your Honour, but that happens.
244 Ms Edwards’ answer to the question about what she told Mr Hodgson continued, but her longwinded, muddled and dissembling response combined her observations about what she believed Mr Hodgson may have been told by Ms Roach, what she knew or did not know about Australian law, what she believed or thought was important to Mr Hodgson and what he was interested in, and what advice Mr Hodgson gave her. Her evidence in that regard will be set out in full later when considering the issue about what advice Mr Hodgson gave. It is, for present purposes, sufficient to note that Ms Edwards’ evidence appeared to be that there was a discussion about the fact that Mr Gillespie had said “keep the fucking dog” and that Ms Edwards told Mr Hodgson that Mr Gillespie’s former dog, Milo, was still registered to Mr Gillespie but that dog had been living with Mr Gillespie’s former partner.
245 The key points that emerge from Ms Edwards evidence about what she told Mr Hodgson are: first, that she and Mr Flavell believed that they were Oscar’s parents; second, in that context, Ms Edwards told Mr Hodgson something about pet insurance, registration, Oscar’s puppy cam and Instagram; third, that Ms Edwards told Mr Hodgson that she and Mr Flavell had spent time with Oscar and had spent money on Oscar; fourth, that someone told Mr Hodgson that Mr Gillespie had said “keep the fucking dog”, though it is unclear what Mr Hodgson was told about the context in which that statement was made; and that Mr Hodgson was told, in effect, that Mr Gillespie had allowed Ms Edwards and Mr Flavell to hold themselves out to the world as “Oscar’s parents”.
246 Ms Edwards was not cross-examined at length about what she told Mr Hodgson. It was put to Ms Edwards that her evidence that Mr Hodgson was told by someone that Mr Gillespie had said “keep the fucking dog” was false. She denied that proposition. It was also put to Ms Edwards that she told Mr Hodgson that Mr Gillespie abandoned Oscar to his family in Wingello and had gone overseas in breach of the agreement that she had made with him. Ms Edwards’ evidence was: “I don’t think that’s what I said, no”. Aside from those questions, it was never put to Ms Edwards that she had told Mr Hodgson something that she knew to be false or misleading, let alone that she lied to Mr Hodgson so that she could obtain favourable legal advice.
247 Mr Flavell gave some evidence in chief about what was said during the dinner with Mr Hodgson, though that evidence was in a form that was somewhat unsatisfactory and not particularly cogent. In answer to a question about whether Mr Hodgson gave him and Ms Edwards advice about rights, Mr Flavell said: “we explained to him [Mr Hodgson] everything that we – we had done for Oscar”, that “we had in – invested our time with Oscar, how we’re emotionally attached to Oscar, and that, you know, Mark [Gillespie] was not even in the country, therefore he abandoned his property and that our claim was a valid claim”. While somewhat unclear, it would seem that the latter part of that answer was addressing something that Mr Hodgson had said. In answer to a leading question about whether he told Mr Hodgson that Mr Gillespie was the registered owner, Mr Flavell’s evidence was: “[w]e told him that Mark [Gillespie] had actually bought Oscar originally, but that, you know, obviously over time we had invested into Oscar and he had been living with us on multiple occasions for … many weeks and months”.
248 Mr Flavell’s evidence during cross-examination concerning what Mr Hodgson was told by Ms Edwards during the dinner was similar to the evidence he gave in chief. He said that Ms Edwards “explained our arrangement we have with – what Mark [Gillespie] and, you know, everything that had happened over the previous four years” and that “[w]e said she [Ms Edwards] didn’t pay for the dog, but we have looked after and cared for the dog since he was a – a puppy”. Mr Flavell gave the following evidence about what was said about abandonment during the meeting:
MR SIBTAIN: Now, you got some advice about abandonment from Mr Hodgson?
[MR FLAVELL:] Yes.
[MR SIBTAIN:] And who was it who brought up the topic of abandonment out of you and Ms Edwards?
[MR FLAVELL:] No, I think it was Thos [Hodgson] that brought it up. I don’t know if it was either of us. I mean, we said what had happened, so my – you know - - -
[MR SIBTAIN:] When you say you said “what had happened”, what did you say had happened?
[MR FLAVELL:] Well, I had said that, basically, you know, up until that period of time, we had been seeing Oscar on a regular. He had been living with us. Everything – essentially, the history of Oscar to date and that Mark was no longer, you know, around, and he had left them with these, you know, effectively, strange people – strangers, rather.
249 It was put to Mr Flavell, in the context of that evidence, that it was “not true to say that he [Mr Gillespie] had gone away and left”, to which Mr Flavell responded: “[w]ell, he had that period, and it – and he – I think he had even stated that he was extending his contract”.
250 Ms Roach, who was responsible for introducing Ms Edwards to Mr Hodgson and who attended the dinner at the Thai restaurant, was not asked any questions in her evidence in chief concerning the discussions that occurred at the restaurant. She was, however, asked some questions in cross-examination about what Ms Edwards told Mr Hodgson. She agreed that Ms Edwards told Mr Hodgson “in substance” that while Mr Gillespie had bought the dog, she was a co-owner. She also agreed that Ms Edwards “explained how the co-ownership arose”. She did not, however, recall Ms Edwards telling Mr Hodgson that Mr Gillespie had abandoned the dog when he went overseas, though she agreed that that might have been said.
251 Overall, the evidence concerning exactly what Mr Hodgson was told about the dispute concerning Oscar was not entirely satisfactory, particularly given the relative importance of the issue. In my view, the most cohesive and persuasive account was given by Mr Hodgson, though that is not saying much. Mr Flavell’s evidence was also broadly consistent with Mr Hodgson’s evidence, or at least not inconsistent with it in any material respects. I am not, however, persuaded that Ms Edwards’ account of what she told Mr Hodgson was entirely cogent or reliable. To the extent that there was any material conflict between Mr Hodgson’s evidence in that regard and the evidence of the other witnesses, I would prefer and accept Mr Hodgson’s evidence. In particular, I do not accept Ms Edwards’ evidence that someone told Mr Hodgson that Mr Gillespie had said “keep the fucking dog”.
What advice did Mr Hodgson give Ms Edwards?
252 Mr Hodgson’s evidence concerning the advice he gave based on the instructions or information he received from Ms Edwards was as follows:
[MS CHRYSANTHOU:] And did you give my client, after hearing those things, any advice about possession of the dog?
[MR HODGSON:] Yes, I did. I essentially said that I believe that possession was nine tenths of the law and that if there was no basis for people who live in the Southern Highlands to be retaining the dog as, essentially, bailees or intermeddlers as far as the thing was concerned, and if they could obtain possession of the dog, that they should do that. And also that I considered it was appropriate at that stage to institute proceedings in the local court to try and sort out the dispute to seek a declaration about the ownership of the dog; whether or not there was a shared ownership or a sole ownership or whether there should be compensation paid for the vast sums of money that they – Ms Edwards had told me they had spent in relation to the dog which hadn’t been compensated for – they hadn’t been compensated for.
….
[MS CHRYSANTHOU:] Did you give her any advice about her ownership rights compared to Mr Gillespie’s ownership rights given he was registered?
[MR HODGSON:] Yes, I did. I believe that she had equal rights notwithstanding that the dog may have been registered in Mr Gillespie’s name having regard to what was, I believe, an oral contract between them that there was a situation of co-ownership co-possession - - -
253 While again this did not purport to be a verbatim account of what Mr Hodgson told Ms Edwards, the key elements of his advice would appear to have been: first, Ms Edwards and Mr Flavel had “equal rights” to Oscar, apparently because there was “an oral contract between them” which gave rise to a “situation of co-ownership” or “co-possession”; second, the “people in the Southern Highlands” [Mr Fidler and Ms Angeli] were bailees or “intermeddlers” who had no basis to retain the dog; third, if Ms Edwards and Mr Flavell could obtain possession of the dog, they should do that; and fourth, it would be appropriate for Ms Edwards and Mr Flavell to commence proceedings in the Local Court seeking a declaration about the ownership of the dog.
254 In cross-examination, Mr Hodgson agreed that he told Ms Edwards that “as an owner of a dog, her claim was superior to that of a mere bailee” and that, because the other owner was overseas, as a co-owner she “had in terms of priorities a superior right to the bailee”. He also agreed that he told Ms Edwards that “possession is nine tenths of the law” and that “there was no reason why she shouldn’t in all the circumstances take possession of the dog”, but that “concurrently with that” she should “institute civil proceedings and to seek to have the dispute resolved by a court”. Mr Hodgson’s evidence, however, was that there was no discussion about how Ms Edwards and Mr Flavell should “go about getting possession” and that he gave no advice about that.
255 Mr Hodgson also gave the following evidence in cross-examination in respect of what was said about abandonment:
[MR SIBTAIN:] All right. Now, Ms Chrysanthou asked you a question about the topic of abandonment. Do you recall how that arose? Did you raise it or did she raise it?
[MR HODGSON:] Well, I think I may have raised it just in the whole discussion as far as the ownership was concerned at that the other co-owner seemed to have given up his rights and was leaving the dog – had left the dog with the bailees, if we can call them that.
[MR SIBTAIN:] So it was an impression that you had formed, is that right, that because – and I’m not saying this critically of you, Mr Hodgson, please understand me – it was an impression that you formed that because Mr Gillespie had gone overseas and taken the dog to his family he had abandoned it. Is that right?
[MR HODGSON:] No. Well, abandon the dog to the extent that the deal was that the dog would be with Gina Edwards and therefore, because he had given the dog to third parties that this was an abandonment of his – of the arrangement, but also, to an extent, of his co-ownership. So therefore, that’s why proceedings were instituted to work out what the situation was as far as ownership of the dog was concerned.
[MR SIBTAIN:] Just let me understand that. Were you saying that he had abandoned the dog to the bailees or abandoned the dog to the applicant?
[MR HODGSON:] I didn’t look at it in abandonment to either of the parties. He had full stop abandoned the dog at that stage because he wasn’t fulfilling the contract, the oral contract, between Ms Edwards and himself and the dog was in the possession of third parties who, I believe, did not have the right in all the circumstances to have the dog in their possession.
[MR SIBTAIN:] Your view about abandonment was premised on the existence of an agreement of co-sharing. Is that right?
[MR HODGSON:] Yes. Well – yes. Those were my instructions.
[MR SIBTAIN:] That’s what you were told?
[MR HODGSON:] Yes.
256 While that evidence was somewhat confusing and difficult to understand, the substance or effect of it appears to be that Mr Hodgson advised Ms Edwards that, in going overseas and leaving Oscar with Mr Fidler and Ms Angeli in Wingello, Mr Gillespie had somehow abandoned the arrangement of co-ownership or co-sharing, or abandoned Oscar by reason of the abandonment of that arrangement.
257 As adverted to earlier, Ms Edwards’ evidence about the advice she and Mr Flavell received concerning the dispute was longwinded, muddled and confusing, if not dissembling. It is nevertheless important to set it out in full:
[MS EDWARDS:] So, anyway, the law is different state to state and Mr Hodgson explained to me – and at that point I had only just taken three courses her in law, they required me to take administrative, constitutional, and one other that escapes me, and ..... ethics. And so I – and I had just gone to a Supreme Court ceremony of some kind, but I wasn’t working and I still felt completely naïve about the law and I didn’t even know about the Animal Companions Act, for example, and he explained to me that for 40 years he had been dealing with people fighting over personal property in family law proceedings, and he explained to me that – and again – and again, and I – my understanding was that he had already had conversations with Anne about the situation, and Anne had relayed to Thos all of her observations and her conversations with Mark and Simona, etcetera. So he was very well-prepared by the time we met him, and he said, when he heard about the, “Keep the fucking dog”, comment that Mark said to me, that we should have kept him right then and there and been done with it, because that was very clear abandonment of property, and he used the word, “Chattel”, and I couldn’t believe that Oscar was a chattel, and he said, “That’s the law in this country”, and he knew about the US and how the law was much different about who had cared for the dog was important, not the registration. We also talked about the fact that, and this was I think very important to him with regard to Atti, with Atti and Milo, that Milo – I told him that Milo was registered to – to Mark, and it had almost been three years since they broke up, and he was still registered to Mark, but he was living with Atti for three years, and – and Thos was very interested in that Atti/Milo comparison to say, “Well, the registration is not dispositive for a number of reasons”, and he explained to me, and your Honour, I apologise, but in the US we do not have equity court, so he was explaining to me about equitable interest and about how someone can own/register a car or register a piece of property, but if you spend a lot of time and energy and money and – that you have an interest, and Ken and I had always assumed, because Mark had threatened us regularly with not seeing Oscar, that he had the registration and that was the end all be all, and that he had the right to threaten us, and so we were always sort of cowered. But after that meeting with Thos, we realised that we had rights, we had legal rights, and Thos recommended that we file a lawsuit against Mark to get a declaratory judgement, and he hoped that it would bring the matter to people sitting down and talking reasonably, and it was not something that we wanted to do, but we had tried the other way, with Mark negotiating with Ken, and that didn’t work. So he said – he talked about abandonment from the 2018 point of view, and then he talked about equitable interest, and then he gave us advice that, despite that they have no rights beyond a potential bailment, not to walk onto the property and just take him, which was our inclination, and he said, “You have to contrive a way to get them to hand him over to you voluntarily through Mark”. That is – that is what the advice was.
MS CHRYSANTHOU: So what was your understanding of your rights in relation to Oscar after that dinner?
[MS EDWARDS:] That we were owners legally.
[MS CHRYSANTHOU:] And did you contrive a way to get him?
[MS EDWARDS:] Yes.
258 It is extremely difficult to make any sense of that evidence. The crux of it, however, was that, according to Ms Edwards, Mr Hodgson advised that: first, Ms Edwards and Mr Flavell had rights in relation to Oscar because they were “owners legally” and Mr Gillespie’s registration as owner was not “dispositive”; second, Mr Fidler and Ms Angeli (though Mr Hodgson did not name them) had “no rights beyond a potential bailment”; third, while Ms Edwards and Mr Flavell should not just “walk onto the [Southern Highlands] property and just take him [Oscar]”, they should “contrive a way to get them to hand him [Oscar] over” to them “voluntarily through Mark [Gillespie]”. Ms Edwards also claimed that Mr Hodgson gave some advice based on abandonment, though that appeared to relate to the fact that he had been told that Mr Gillespie had at some stage said “keep the fucking dog”.
259 It was put to Ms Edwards in cross-examination that Mr Hodgson did not give her any advice about the means of obtaining possession of the dog. Ms Edwards maintained that Mr Hodgson did give her advice in that regard. She also gave the following evidence on that topic during cross-examination:
MR SIBTAIN: You knew that you hadn’t received any advice from Mr Hodgson to tell a lie, didn’t you?
[MS EDWARDS:] No. I disagree with that.
[MR SIBTAIN:] So is your evidence that Mr Hodgson had told you it was okay to tell a lie?
[MS EDWARDS:] The evidence I gave is the best recollection of the conversation I had with him and Ken, which was we could not walk onto the property and take him, but we had to contrive a way in which they would hand him over voluntarily.
[MR SIBTAIN:] He didn’t - - -?
[MS EDWARDS:] And that’s what we did.
[MR SIBTAIN:] He didn’t tell you to contrive a way that involved a lie, did he?
[MS EDWARDS:] I don’t remember the depth of our discussion but I do know that there were several people who were aware and who we discussed with how to do this. I cannot tell you for certain whether we told Mr Hodgson before or on the morning of – we went to get Oscar.
260 Ms Roach was not asked any questions, either in her evidence in chief or in cross-examination, about the advice that Mr Hodgson gave to Ms Edwards and Mr Flavell during the dinner.
261 Mr Flavell’s evidence in chief concerning the advice given by Mr Hodgson during the dinner was that Mr Hodgson “explained that we [he and Ms Edwards] had rights to Oscar and that the family members in Wingello were subservient to those rights”. As noted earlier, Mr Flavell’s evidence also appeared to be that Mr Hodgson advised that because Mr Gillespie was no longer in the country “he had abandoned his property” and that his and Ms Edwards’ “claim” in respect of Oscar was a “valid claim”. Mr Flavell also said that Mr Hodgson advised that the fact that Mr Gillespie was the registered owner did not make him the “sole claimant to Oscar”.
262 Mr Flavell’s evidence concerning Mr Hodgson’s advice was not significantly challenged in cross-examination.
263 Like the evidence concerning what Mr Hodgson was told by Ms Edwards during the dinner at the Thai restaurant, the evidence concerning the precise terms of the advice given by Mr Hodgson at that meeting was somewhat unsatisfactory. My view, once again, is that the most cohesive and persuasive account of his advice was given by Mr Hodgson. To the extent that there was any material conflict between Mr Hodgson’s evidence in that regard and the evidence of the other witnesses, I would prefer and accept Mr Hodgson’s evidence.
264 Importantly, while I accept that Mr Hodgson advised Ms Edwards and Mr Flavell that there was no reason why they should not take possession of the dog, I reject Ms Edwards’ evidence that Mr Hodson gave her and Mr Flavell advice about how they could go about obtaining possession. Specifically, I reject Ms Edwards’ evidence that Mr Hodgson advised her and Mr Flavell that they should “contrive” a way to get Mr Fidler and Ms Angeli to give them possession of Oscar, or worse still, that he indicated that she could or should tell a lie to obtain possession. Ms Edwards’ evidence to that effect was plainly self-serving and lacked credibility. It also reflects poorly on her credibility. Mr Hodgson effectively denied that he gave any such advice and I consider it to be quite implausible that he did so. Ms Edwards’ evidence in this respect was also not supported by Mr Flavell’s evidence.
What did Ms Edwards believe about her rights to Oscar following the receipt of Mr Hodgson’s advice?
265 Ms Edwards’ evidence was that her understanding of her rights in relation to Oscar after her dinner with Mr Hodgson was, in short, that “we [she and Mr Flavell] were owners [of Oscar] legally” and that their rights to possess Oscar were greater than those of Ms Angeli and Mr Fidler who were bailees. Her evidence was that she “believed that we [she and Mr Flavell] had a legal claim to Oscar pursuant to legal advice that we received”. It was also clearly implicit in her evidence that she not only believed that she and Mr Flavell had rights in respect of the possession of the dog, but also that she and Mr Flavell should “contrive” to get Mr Fidler and Ms Angeli to voluntarily give them possession.
266 I will address whether Ms Edwards genuinely and honestly held those beliefs after addressing the question whether, as contended by the Publishers, Ms Edwards told Mr Hodgson any facts concerning the dispute about Oscar which she knew to be false or misleading. If she did, that would of course cast considerable doubt on whether the beliefs she claimed to have held following receipt of Mr Hodgson’s advice were genuinely and honestly held.
Did the account of the facts concerning Oscar that Ms Edwards gave Mr Hodgson include any facts which Ms Edwards knew to be false or misleading?
267 The Publishers’ principal contention as to why any belief that may have been held by Ms Edwards following her receipt of Mr Hodgson’s advice was not honestly or genuinely held by her was that Ms Edwards had knowingly given Mr Hodgson false instructions. The Publishers’ case in that regard, however, was somewhat elusive and difficult to grasp. In particular, it was difficult to comprehend exactly what facts Ms Edwards told Mr Hodgson that were said to be false or misleading, or why they were false and misleading. It was equally difficult to comprehend the precise basis upon which the Publishers contended that Ms Edwards knew that she was telling Mr Hodgson facts which were false.
268 The Publishers submitted that Ms Edwards told Mr Hodgson that there was a co-ownership agreement between her, Mr Flavell and Mr Gillespie and that Ms Edwards knew that that was not the case. The fundamental problem with that submission, however, is that the evidence, in particular Mr Hodgson’s evidence, suggested no more than that Ms Edwards told Mr Hodgson that there was a “sharing arrangement”. Exactly what he was told about the nature of that arrangement and the basis upon which it was made is somewhat unclear. The evidence does, however, tend to indicate that Ms Edwards told Mr Hodgson that the arrangement was a sharing, or co-sharing arrangement, not a co-ownership arrangement, and that it was Mr Hodgson that characterised the arrangement as involving co-ownership. That characterisation was based on an impression or view that Mr Hodgson formed based on what he was told.
269 Once it is accepted that it is likely that Ms Edwards told Mr Hodgson that there was a sharing arrangement, not a co-ownership arrangement, the Publishers’ contention that Ms Edwards knowingly gave false instructions to Mr Hodgson about the agreement or arrangement must fail. It was probably not inaccurate to say that there was some form of sharing arrangement concerning Oscar between Ms Edwards, Mr Flavell and Mr Gillespie. There could also be little doubt that Ms Edwards honestly and genuinely believed that there was some form of sharing arrangement involving Oscar. It is tolerably clear that there had been an arrangement in place between Mr Gillespie, Ms Edwards and Mr Flavell, albeit a relatively loose and informal one, to the effect that when he went overseas for work, Ms Edwards and Mr Flavell would look after Oscar. I reject the Publishers’ submission that there was no such sharing arrangement and that Ms Edwards knew that to be the case.
270 The Publishers also submitted that Ms Edwards gave Mr Hodgson false or misleading information about the precise nature and effect of the agreement or arrangement between her, Mr Flavell and Mr Gillespie about Oscar because she told Mr Hodgson that the terms of the arrangement included that if Mr Gillespie went overseas for work he was obliged to give Ms Edwards and Mr Flavell custody of Oscar. The Publishers contended that there was no such agreement or arrangement and Ms Edwards knew that to be the case.
271 As has already been noted, it is tolerably clear that Mr Hodgson was told that the sharing arrangement was, or included a term to the effect, that if Mr Gillespie travelled overseas, Oscar would be cared for by Ms Edwards and Mr Flavell. That fact appeared to be important to Mr Hodgson’s advice concerning abandonment. As discussed earlier, Mr Hodgson’s evidence concerning his advice was, somewhat confusingly or confoundingly, that Mr Gillespie had “abandon[ed] the dog to the extent that the deal was that [if Mr Gillespie went overseas] the dog would be with Gina Edwards and therefore, because he had given the dog to third parties that this was an abandonment of … the arrangement, but also, to an extent, of his co-ownership”. It seemed to be on that basis that Mr Hodgson advised that the “third parties [Mr Fidler and Ms Angeli] did not have the right … to have the dog in their possession”.
272 There are two problems with the Publishers’ submission that Ms Edwards gave Mr Hodgson false or misleading information concerning the precise nature or effect of the sharing arrangement. The first is that it is a very fine line between, on the one hand, saying that the sharing arrangement was that if Mr Gillespie went overseas, Ms Edwards and Mr Flavell would care for Oscar and saying, on the other hand, that if Mr Gillespie went overseas, he was obliged or required to give Oscar to Ms Edwards and Mr Flavell to look after.
273 It would not, in all the circumstances, have necessarily been false or misleading for Ms Edwards to have described the arrangement to Mr Hodgson in the first of those ways - that the arrangement was that when Mr Gillespie went overseas he would give Oscar to Ms Edwards and Mr Flavell because they had agreed to care for him. That appears not only to have been the nature of the arrangement from the outset, but also the way the arrangement had operated over time.
274 While it might have been misleading for Ms Edwards to describe the arrangement in the second of those ways – that Mr Gillespie was obliged or required to give her and Mr Flavell custody of Oscar if he went overseas – I am not persuaded that Ms Edwards necessarily described the arrangement in those precise terms to Mr Hodgson. While the evidence was somewhat unsatisfactory and unclear, Ms Edwards denied that she told Mr Hodgson that the agreement she had with Mr Gillespie was that he was “required” to give Oscar to her when he was overseas and denied telling Mr Hodgson that Mr Gillespie breached the agreement when he left Oscar with his family in Wingello when he went overseas. While Mr Hodgson appears to have formed the view that the arrangement required Mr Gillespie to give Oscar to Ms Edwards and Mr Flavell when he went overseas, and that Mr Gillespie breached the agreement when he gave the dog to his family in Wingello, that appears to have been based on an impression he formed from all the circumstances, rather than based on the precise description of the arrangement given by Ms Edwards.
275 The second problem for the Publishers is that, even if Ms Edwards did tell Mr Hodgson that the sharing arrangement was, in effect, that if Mr Gillespie went overseas, he was obliged or required to give Oscar to her and Mr Flavell, I am not persuaded that Ms Edwards did not genuinely and honestly believe that that was the general nature and effect of the arrangement. The substance and effect of Ms Edwards’ evidence in cross-examination was that she believed that the arrangement was that Mr Gillespie was required to leave Oscar with her and Mr Flavell when he went away, but that she did not know that Mr Gillespie was legally obliged to do so until she received Mr Hodgson’s advice. It was also never clearly put to Ms Edwards that she deliberately misled or lied to Mr Hodgson about the precise nature or terms of the so-called sharing arrangement.
276 My overall impression of Ms Edwards’ evidence as a whole, as unsatisfactory as it was at times, was that as the arrangement evolved over time, she did come to believe that Mr Gillespie was obliged to give Oscar to her and Mr Flavell if he went overseas, even if she may not have known that Mr Gillespie was legally obliged to do so until she received the advice from Mr Hodgson. I am not persuaded that Ms Edwards’ evidence to that effect should not be accepted. Nor am I satisfied that the evidence as a whole supports the Publishers’ submission that Ms Edwards deliberately misled or lied to Mr Hodgson about the nature or effect of the arrangement.
277 The Publishers relied on what was said in emails that Mr Flavell and Ms Edwards sent to Mr Gillespie in August 2018 when they first learnt that Mr Gillespie was going overseas and was going to send Oscar to Wingello while he was away. In those emails, which are discussed in more detail earlier, Mr Flavell appeared to concede that he did not “expect” that the rights that he and Ms Edwards had under the sharing arrangement were a “legal thing” and Ms Edwards appeared to concede that Mr Gillespie had “100% of the power” when it came to Oscar. Those statements provide some support for the proposition that Ms Edwards and Mr Flavell did not believe, at that stage at least, that the rights they had under the sharing arrangement were legally binding or enforceable. That does not greatly assist the Publishers, however, because there is no suggestion that Ms Edwards told Mr Hodgson that her and Mr Flavell’s rights under the sharing arrangement were legally binding or enforceable. Indeed, their evidence was that until they received Mr Hodgson’s advice, they were not certain that they had any legally enforceable rights in respect of the possession or ownership of Oscar.
278 The Publishers also submitted that their contention that Ms Edwards knowingly gave Mr Hodgson false information about the sharing arrangement was supported by the fact that Ms Edwards and Mr Flavell “acquiesc[ed] in Oscar living in Wingello for 16 months from August 2018 - December 2019”. The suggestion appeared to be that the fact that Ms Edwards and Mr Flavell had not taken any steps to enforce their supposed rights under the sharing arrangement during that period indicated that they knew they had no enforceable rights. The proposition that she and Mr Flavell had acquiesced while Oscar was in Wingello was put to Ms Edwards in cross-examination, and she denied it. I also reject it. It is not supported by the evidence, properly considered. The evidence indicated that Ms Edwards and Mr Flavell were upset and distressed by Oscar’s move to Wingello but were unsure whether they had any legally enforceable rights. In those circumstances, they were essentially content with being able to have Oscar for periods of time by arrangement with Mr Gillespie, Mr Fidler and Ms Angeli. It was when Ms Angeli refused to give them access that they took the step of seeking legal advice from Mr Hodgson. That does not amount to acquiescence.
279 Finally, the Publishers submitted that Ms Edwards falsely told Mr Hodgson that Mr Gillespie had abandoned the dog when he went overseas for six months and left him with Ms Angeli and Mr Fidler in Wingello. I have effectively already dealt with that submission. It is at best unclear from the evidence whether Ms Edwards told Mr Hodgson that Mr Gillespie had abandoned Oscar. Ms Edwards denied telling Mr Hodgson that Mr Gillespie had abandoned Oscar and Mr Hodgson’s evidence appeared to go no higher than that he formed the impression that the dog had been abandoned because Mr Gillespie had breached or abandoned the sharing arrangement. I am not in all the circumstances persuaded that Ms Edwards told Mr Hodgson that Mr Gillespie had abandoned Oscar or that she deliberately misled Mr Hodgson in that respect.
280 In all the circumstances, I am not persuaded that Ms Edwards knowingly gave Mr Hodgson false or misleading information concerning the so-called sharing arrangement. Given the somewhat unfortunate state of the evidence, and in particular the unreliability of Ms Edwards’ account of what she told Mr Hodgson, I accept that there was a distinct possibility that, when she described the evolving arrangements between her, Mr Flavell and Gillespie concerning the care and custody of Oscar, Ms Edwards may well have exaggerated or embellished her account to a certain extent. I am not, however, satisfied to the requisite standard that Mr Hodgson was misled in any material respect by what he was told by Ms Edwards, or that any exaggeration or embellishment by Ms Edwards was deliberate, or that Ms Edwards intended to mislead Mr Hodgson.
Was the belief Ms Edwards held based on Mr Hodgson’s advice honestly and genuinely held?
281 While Mr Hodgson’s advice was sought and received in very informal circumstances over dinner in a Thai restaurant, I am nevertheless satisfied that, based on what she was told by Ms Hodgson, Ms Edwards genuinely and honestly believed that: first, she and Mr Flavell had ownership, or co-ownership, rights in respect of Oscar; second, that those rights were superior to the rights of Ms Angeli and Mr Fidler, who were in possession of Oscar as mere bailees or intermeddlers; third, that they had a “legal claim” to Oscar; and fourth, if they could obtain possession of Oscar from Ms Angeli and Mr Fidler, they should do so and that they could then retain possession of Oscar; and fifth, if they did obtain possession of Oscar, they should commence proceedings in court to so that the court could determine, among other things, the issue concerning Oscar’s ownership.
282 The Publishers’ submission that Ms Edwards did not genuinely or honestly hold those particular beliefs after she received Mr Hodgson’s advice depended entirely on the contention that Ms Edwards deliberately gave Mr Hodgson false or misleading instructions, or false or misleading information. While the evidence concerning exactly what Ms Edwards told Mr Hodgson was somewhat unclear and unsatisfactory, I am nevertheless not persuaded that Ms Edwards deliberately misled Mr Hodgson in any of the ways contended by the Publishers.
283 I am not, however, satisfied that Ms Edwards genuinely or honestly believed that she and Mr Flavell were, as she appeared to claim, somehow entitled to “contrive” a way to get Ms Angeli and Mr Fidler to give them possession of Oscar, or justified in lying to Mr Gillespie, Ms Angeli or Mr Fidler in order to obtain possession. For the reasons given earlier, I do not accept Ms Edwards’ evidence that Mr Hodgson advised her and Mr Flavell that “[y]ou have to contrive a way to get them [Ms Angeli and Mr Fidler] to hand him [Oscar] over to you voluntarily through Mark [Gillespie]”. I also reject entirely Ms Edwards’ apparent suggestion that Mr Hodgson indicated that she could or should tell a lie to obtain possession of Oscar. While Mr Hodgson’s evidence was that he advised Ms Edwards and Mr Flavell that, if they could obtain possession of Oscar from Ms Angeli and Mr Fidler, they should do so, he denied that he gave Ms Edwards and Mr Flavell any advice about how they could or should go about getting possession of Oscar. I prefer Mr Hodgson’s evidence to that of Ms Edwards in respect of that aspect of his advice. Ms Edwards’ apparent attempt to justify her subsequent actions in deceiving Mr Gillespie, Ms Angeli and Mr Fidler so as to obtain possession reflected poorly on her.
284 For the reasons given later, however, this finding does not alter the fact that, when she obtained possession of Oscar from Ms Angeli and Mr Fidler, she genuinely and honestly believed that she had ownership rights or a legal claim to Oscar based on Mr Hodgson’s advice. That is the critical consideration when determining whether a person has a claim of right.
Was Mr Hodgson’s advice correct?
285 It was effectively common ground that it was unnecessary for me to decide whether Mr Hodgson’s advice was correct. That was because what mattered was Ms Edwards’ state of mind, in particular as to whether, based on Mr Hodgson’s advice, she genuinely and honestly believed that she had some ownership or possessory rights in respect of Oscar when she obtained possession of him, albeit by deception, from Ms Angeli and Mr Fidler. If, as I have found, Ms Edwards did genuinely and honestly hold those beliefs, the question whether Mr Hodgson’s advice was right or wrong is strictly irrelevant. It would, however, be remiss of me not to make some brief observations concerning the correctness of Mr Hodgson’s advice, particularly because at various times in her submissions Ms Edwards maintained that Mr Hodgson’s advice was correct and that she was perfectly entitled to take possession of Oscar as she did.
286 On my consideration of the evidence, I am unable to see how Mr Hodgson’s opinion or advice, based on what he was told, that the so-called sharing arrangement gave Ms Edwards and Mr Flavell any rights that could be said to constitute ownership or co-ownership rights in respect of Oscar, could possibly have been correct. As discussed earlier, the evidence suggested that the description of the arrangement given to Mr Hodgson was that when Mr Gillespie went overseas, Ms Edwards and Mr Flavell would care from Oscar, and that in that respect, the care for Oscar would be shared. Mr Hodgson was also told that Ms Edwards and Mr Flavell had expended considerable sums of money caring for Oscar pursuant to that arrangement, that Ms Edwards was referred to as Oscar’s “mommy”, and that Ms Edwards had parties for Oscar and had arranged for his appearance at La Boheme.
287 While it may be accepted that, as Mr Hodgson advised, the fact that Mr Gillespie was Oscar’s registered owner was not “dispositive”, for the reasons effectively given earlier I do not agree that the sharing arrangement, as described to Mr Hodgson, could possibly be said to have given Ms Edwards and Mr Flavell any ownership rights in respect of Oscar. Nor am I able to accept that the sharing arrangement gave Ms Edwards and Mr Flavell any enforceable rights to obtain possession of Oscar from either Mr Gillespie or Ms Angeli and Mr Fidler. Like the agreement between the owner of the trotting horse and the trainer in Dennis v Dennis, the sharing agreement in this case, as recited to Mr Hodgson, could not support any finding that Ms Edwards and Mr Flavell obtained any proprietary interest in Oscar. Ms Edwards and Mr Flavell were not Oscar’s co-owners.
288 I am equally unable to see how Mr Hodgson could correctly have formed the opinion that, by putting Oscar in the care and custody of Ms Angeli and Mr Fidler when he went overseas, Mr Gillespie somehow abandoned Oscar, or abandoned the sharing arrangement with Ms Edwards and Mr Flavell in a way that somehow gave Ms Edwards and Mr Flavell ownership rights, or possessory rights that were superior to the rights of Ms Angeli and Mr Fidler. It is no doubt correct to say that, as a matter of law, Oscar was a chattel. It was also correct that Ms Angeli and Mr Fidler possessed Oscar as bailees because they held the relevant chattel, Oscar, on behalf of its owner, Mr Gillespie, while he was overseas. I am, however, unable to see how the mere fact that, even assuming that the sharing arrangement gave Ms Edwards and Mr Flavell any enforceable right to secure possession of Oscar when Mr Gillespie went overseas, Mr Gillespie’s alleged breach of that arrangement somehow meant that Mr Gillespie had abandoned Oscar in any relevant sense, or that Ms Edwards and Mr Flavell obtained rights to possession that exceeded or were dominant to those possessed by Ms Angeli and Mr Fidler. In my view, nothing that Ms Edwards told Mr Hodgson could support his advice that Mr Gillespie had somehow abandoned Oscar in any relevant sense, or that Mr Gillespie’s alleged breach of the so-called sharing agreement somehow meant that Ms Edwards and Mr Flavell had superior rights to those of the bailees, Ms Angeli and Mr Flavell. For the reasons given in detail earlier, the evidence is incapable of supporting the conclusion that Mr Gillespie abandoned Oscar.
289 Mr Hodgson’s advice to Ms Edwards and Mr Flavell was, it appears, expressed in very short and general terms. Needless to say, he did not refer to any authorities which supported his advice. Nor did Ms Edwards when she appeared to submit, in this proceeding, that Mr Hodgson’s advice was correct. In those circumstances I do not propose to consider the correct legal position in any detail. It suffices to make the following general points.
290 It might perhaps be accepted that if, as Mr Hodgson advised, Ms Edwards and Mr Flavell were co-owners of Oscar, they might be said to have had superior rights in respect of the possession of Oscar to Ms Angeli and Mr Fidler, though that would depend entirely validity and terms of the bailment pursuant to which Ms Angeli and Mr Fidler were then in possession of Oscar. If the bailment was for some reason invalid, or had been terminated or repudiated, Ms Edwards and Mr Flavell, assuming they were co-owners, might be said to have had superior rights of possession to Ms Angeli and Mr Flavell. It might also have been arguable that the bailment was invalid if Mr Gillespie made it without the agreement or consent of the co-owners. If, however, the bailment was valid and remained on-foot, the mere fact that Ms Edwards and Mr Flavell were co-owners would not necessarily mean that they had greater rights to possession than Ms Angeli and Mr Fidler. A bailee may have superior rights to possession of a chattel than the owner of the chattel if the bailment pursuant to which the bailee is in possession is valid and remains on foot: see for example City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477, 483.
291 The point is that, even assuming that it was correct to say that Ms Edwards and Mr Flavell were co-owners, Mr Hodgson’s advice that Ms Angeli and Mr Fidler were mere bailees or intermeddlers who had no right to possession of Oscar, as against Ms Edwards and Mr Flavell, was at best overly simplistic and, depending on the precise circumstances concerning the validity and currency of the bailment, potentially wrong. It was almost certainly wrong if there was no proper basis upon which to assert that the bailment was invalid or had been terminated. The position is even clearer if, as in my view was the case, Ms Edwards and Mr Flavell were not co-owners of Oscar, but merely had some arrangements with Mr Gillespie in respect of looking after Oscar while Mr Gillespie was overseas. In those circumstances, it is almost impossible to see how it could correctly be said that Ms Edwards and Mr Flavell had greater rights in respect to the possession of Oscar than Ms Angeli and Fidler.
292 I should reiterate that the correctness or otherwise of Mr Hodgson’s advice is largely beside the point. The critical question is whether, based on Mr Hodgson’s advice, Ms Edwards genuinely and honestly believed that she had the right to possess Oscar. For the reasons already given, the evidence supports the proposition that Ms Edwards genuinely and honestly held that belief. It is essentially immaterial whether it was reasonable for Ms Edwards to hold that belief and, in any event, there is nothing to suggest that it was necessarily unreasonable for Ms Edwards to accept Mr Hodgson’s advice, even if it turns out that the advice was incorrect.
293 There is one further aspect of Mr Hodgson’s advice that should be noted, though it perhaps has more to do with what Mr Hodgson did not refer to in his advice, rather than what he did. Mr Hodgson’s advice was, in summary, that because Ms Edwards and Mr Flavell had some ownership rights in respect of Oscar, whereas Ms Angeli and Mr Fidler were mere intermeddlers or bailees, Ms Edwards and Mr Flavell could retain possession of Oscar, if and when he came into their possession. Mr Hodgson did not, however, give Ms Edwards and Mr Flavell any advice about how they could or should go about obtaining possession of Oscar.
294 The point to note in that context is this. There is some authority for the proposition that where chattels are wrongfully in the possession of another, the owner has a common law right of entry to retake possession. That right or remedy, which is generally referred to as “recaption”, has its limits, in particular where it involves the use of force: see Toyota Finance Australia Ltd v Dennis; Tekitu Pty Ltd v Dennis (2002) 58 NSWLR 101; [2002] NSWCA 369. In some circumstances, the right of recapture may be raised as defence in civil or criminal proceedings involving, for example, trespass: R v Josifovski [2006] ACTSC 30 at [184]-[188]. The law in respect of recapture is, however, complex and uncertain, as demonstrated by the decision in Toyota Finance; see also StockCo Agricapital Pty Ltd v Tucki Hills Pty Ltd [2022] FCA 929 at [36].
295 It is both unnecessary and undesirable to address those complexities or endeavour to resolve those uncertainties in the context of this proceeding. It perhaps suffices to note that, if Ms Edwards and Mr Flavell were indeed co-owners of Oscar and had a superior right of possession of Oscar, as Mr Hodgson advised, it may have been open to Mr Hodgson to advise that they could retake possession of Oscar from Ms Angeli and Mr Flavell, at least if they did so without using any force. Given the complexity and uncertainty of the law concerning recaption, however, the giving of such advice would have involved a degree of risk and would have had to have been approached with considerable caution. In any event, as events transpired Mr Hodgson, perhaps wisely, did not give any such advice. It is also more appropriate, in the circumstances of this case, to consider the question whether it was lawful or unlawful for Ms Edwards to take possession of Oscar by considering whether, in all the circumstances, she had a genuine claim of right in respect of Oscar.
296 I should finally note, in respect of Mr Hodgson’s advice, that I am not intending to be at all critical of Mr Hodgson for giving the advice he did. It would, however, be fair to say that the circumstances of this case provides a cautionary tale as to why it is generally unwise or imprudent for barristers or solicitors to give free or “preliminary” legal advice (as Mr Hodgson called it) to friends or acquaintances in informal circumstances, especially where the advice is based on potentially contentious factual instructions, and particularly where the recipient of the preliminary advice might act on the advice immediately and without further reflection.
Did Ms Edwards and Mr Flavell obtain possession of Oscar by fraud or deception?
297 There was ultimately no dispute that Ms Edwards obtained possession of Oscar by deceiving Mr Gillespie and, through him, Ms Angeli and Mr Fidler. Following is a short summary of the agreed circumstances in which Ms Edwards obtained possession of Oscar on 16 December 2019.
298 The context in which these events occurred is that, as at late November, Ms Angeli and Mr Fidler had told Mr Flavell that they would not permit Oscar to have any further “visits” to Sydney until Mr Gillespie returned. Ms Edwards had also recently become aware that Mr Gillespie was planning on moving to Las Vegas and taking Oscar with him. Those events prompted Ms Edwards and Mr Flavell, though Ms Roach, to arrange to meet with Mr Hodgson to obtain some legal advice. As discussed earlier, the evidence indicates that the meeting with Mr Hodgson occurred at a Thai restaurant on 28 November 2019.
299 The day after that dinner, Ms Edwards sent Mr Gillespie a text message in which she stated that there was an opportunity for Oscar to appear on a Channel 7 television show which, in subsequent texts, was referred to as “Pooch Perfect”. That was untrue. Ms Edwards well-knew that when she sent that message to Mr Gillespie there was no such opportunity for Oscar to appear in “Pooch Perfect” or any other television show. Ms Edwards made that story up. She included it in her text message to induce Mr Gillespie to agree to allowing her to pick up Oscar and to advise Ms Angeli and Mr Fidler accordingly.
300 Between 4 and 6 December 2019, Ms Edwards and Mr Gillespie exchanged further text messages in which they arranged for the collection of Oscar to enable his participation in Pooch Perfect. Ms Edwards informed Mr Gillespie that Oscar would be collected and returned within the day and that Reverend Aaron would collect Oscar from Mr Fidler and Ms Angeli. As already noted, there was no arrangement for Oscar to participate, or potentially participate, in Pooch Perfect and Ms Edwards had no intention of returning Oscar to Ms Angeli and Mr Fidler within the day or at all.
301 Ms Edwards and Mr Gillespie exchanged further text messages about the arrangements concerning Oscar on 12 December 2019. Ms Edwards’ text included the following statement:
I’m just waiting for James to confirm a time for next Monday – I suspect it will be quite early as he needs to be back and we have to be there before 11 so we might leave at 6:00 am to get there for 8:30 or so. He will leave me on the street somewhere … he remembers going from 2 other times he drove and has that talking car GPS amazing!
302 There was a further exchange of text messages between Ms Edwards and Mr Gillespie on 15 December 2019. Ms Edwards advised that Reverend Aaron would drive to Wingello the following day and would arrive at about 7.00 to 7.30 am.
303 Mr Gillespie was on a ship in the Caribbean at the time of these exchanges. There could be little doubt that he permitted Oscar to be picked up by Reverend Aaron to be delivered to Ms Edwards based on the deliberately false and deceptive statements by Ms Edwards that Oscar was to appear on Pooch Perfect and would be returned within the day. He was clearly misled.
304 On 16 December 2019, Reverend Aaron picked up Oscar from Wingello as had been arranged. Mr Fidler handed the dog to Reverend Aaron. Ms Angeli believed that the arrangements were that Oscar was going to appear on Pooch Perfect and would be returned later that day. Reverend Aaron later delivered Oscar to Ms Edwards and Mr Flavell.
305 During the day on 16 December 2019, Ms Edwards and Mr Gillespie exchanged a series of text messages regarding Oscar. In one text message, Mr Gillespie asked “what time do you plan to have him back?” Ms Edwards responded: “I am waiting to hear from Daniela and Hayden on timing tonight”. Mr Gillespie then said, “ok but early evening sometime”. Ms Edwards had no intention of having Oscar returned that evening.
306 Later in the day on 16 December 2019, Ms Edwards sent an email to Mr Gillespie, Ms Angeli and Mr Fidler. She attached a draft statement of claim to that email. The relief sought in the draft statement of claim included a declaration that Ms Edwards and Mr Flavell were the legal and beneficial owners of Oscar and an order restraining Mr Gillespie from removing Oscar from their possession, pending determination of the proceedings.
307 On 17 December 2019, Ms Angeli and Mr Fidler reported the taking of Oscar to the police. It is unnecessary to detail the various claims and counterclaims that were made to the police concerning the taking of Oscar. Ultimately the police effectively determined that the dispute was a civil dispute. One can well understand why the police did not want to become involved.
Did Ms Edwards have an intention to permanently deprive Mr Gillespie of ownership or possession of Oscar?
308 Ms Edwards submitted that she did not have an intention to deprive Mr Gillespie of ownership or possession of Oscar. The sole basis of that submission was that, in accordance with the advice given by Mr Hodgson, she and Mr Flavell commenced proceedings, first in the Local Court, but later in the District Court, concerning the ownership of Oscar. As noted earlier, in those proceedings Ms Edwards and Mr Flavell sought a declaration that she and Mr Flavell were the legal and beneficial owners of the dog known as Oscar and an order that the dog remain in their possession, care and control. They also sought an order that Mr Gillespie be restrained from removing Oscar from them pending determination of the proceedings. It is worth noting that Ms Edwards and Mr Flavell did not seek a declaration that they were co-owners of Oscar. The declaration they sought was that they were Oscar’s owners.
309 Ultimately the proceedings were transferred to the Supreme Court because the District Court did not have the jurisdiction to grant some of the relief sought by Ms Edwards and Mr Gillespie. It is also tolerably clear that the progress of the proceedings was delayed. It is unnecessary to go into any detail concerning the reasons for the delays. The proceedings were subsequently settled and the court made consent orders on 11 November 2021 which included a declaration that Ms Edwards and Mr Flavell were the owners of the dog referred to as Oscar. It was effectively common ground that the making of that declaration by consent was not probative of the question who owned the dog prior to the making of the declaration. I also accept Mr Gillespie’s evidence that his consent to the making of the declaration was the product of financial pressure. He had incurred large expenses in connection with the proceedings and could not afford to continue with them.
310 While the submission that Ms Edwards did not have the intention to permanently deprive Mr Gillespie of ownership and possession of Oscar might appear, at first blush at least, to have some superficial attraction, Ms Edwards faces a number of hurdles in making good that submission.
311 The first hurdle is that the document prepared by the parties that set out some agreed facts included the agreed fact that on 6 December 2019, when Ms Edwards was arranging with Mr Gillespie to have Oscar collected from Wingello, she did not intend to return Oscar to Ms Angeli and Mr Fidler “within the day or at all”. Ms Edwards did not seek leave to withdraw that agreed fact or admission.
312 The second hurdle is that in her evidence in chief, Ms Edwards did not say that she intended to return Oscar if the court proceedings were determined adversely to her. She did not say that she had no intention to permanently deprive Mr Gillespie of Oscar. She was silent in respect of that issue.
313 The third hurdle is that the fact that Ms Edwards’ evidence in chief did not include evidence that she did not intend to permanently deprive Mr Gillespie of Oscar may perhaps explain why Ms Edwards was not cross-examined on that topic. Ms Edwards was, however, cross-examined on the topic of depriving Mr Gillespie of Oscar more generally. Her evidence was as follows:
MR SIBTAIN: In your ownership proceedings, you were seeking a declaration to be the sole or exclusive owners of Oscar?
[MS EDWARDS:] Yes. That’s correct.
[MR SIBTAIN:] On the basis of your contended agreement, which you understand we take issue with that you and Mr Gillespie were co-owners, on the basis of that agreement your proceedings were intended to deprive him of his ownership rights; correct?
[MS EDWARDS:] On the basis of legal advice, the pleading was drafted as a declaratory judgment for us to have sole ownership, yes.
[MR SIBTAIN:] Why did you think it was appropriate to deprive him of his rights to Oscar?
[MS EDWARDS:] I received legal advice to that effect.
…
[MR SIBTAIN:] Why did you think it was appropriate to take away a dog that was jointly owned, on your contention, by two people from him?
[MS EDWARDS:] You’re asking me the why?
[MR SIBTAIN:] Yes?
[MS EDWARDS:] Because he left the country for 19 months and said it was going to be for six months, and he was only coming back for short periods of time and had abandoned him to relatives who I believed and Ken believed and others that were not caring for him properly and who had inappropriately denied access to us – to our property. That’s the why.
[MR SIBTAIN:] Can I suggest to you the reason why you decided to deprive him or attempt to deprive him and then were successful in that attempt was that you knew that he may go at some stage to Las Vegas and take the dog away?
[MS EDWARDS:] I disagree with that.
314 It is notable that Ms Edwards did not state, in answer to any of the questions put to her concerning the topic of depriving Mr Gillespie of his rights in respect of Oscar, that she did not intend to permanently deprive Ms Gillespie of the dog, or that she only intended to deprive Mr Gillespie of the dog while the court proceedings were being determined and would otherwise abide by the court’s determination of the issue. The impression gained from Ms Edwards’ evidence is that she was determined to keep possession of Oscar and not return him to Mr Gillespie.
315 This issue is not easy to resolve. On the one hand, the available inference is that the very purpose of the court proceedings was for Ms Edwards and Mr Flavell to vindicate their claim that they owned Oscar and secure a declaration by the court to that effect. That would have enabled her and Mr Flavell to permanently retain ownership and possession of Oscar. On the other hand, it is difficult to accept that if Ms Edwards lost the court proceedings, she would not abide by the court order, particularly as she was a barrister. It is somewhat difficult to imagine that Ms Edwards failed to turn her mind to that possibility when she contrived to take possession of Oscar and commence proceedings. The issue is further complicated by the absence of any meaningful evidence on the topic and the apparent admission, by agreed fact, that she did not intend to return Oscar “at all”.
316 It is strictly unnecessary to decide this issue given the findings I have made concerning Ms Edwards’ belief, based on legal advice, concerning her ownership rights or claims about Oscar. That said, in the event that I am found to have erred in some way in making those findings, I should make it clear that I am satisfied that, at the moment she took possession of Oscar by deception, Ms Edwards intended to permanently deprive Mr Gillespie of possession. Given the absence of any evidence from Ms Edwards concerning her intentions, including her intentions should she lose the court proceedings, I am not persuaded that Ms Edwards turned her mind to the possibility of losing the proceedings and what she would do if that occurred. I am satisfied from the evidence as a whole that Ms Edwards intended to take and retain possession of Oscar at all cost and had no intention of returning him. Moreover, and perhaps more significantly, I am satisfied that Ms Edwards intended that, once she obtained possession of Oscar, she intended to “exercise ownership of” Oscar and “deal with [him] as [her] own”, to adapt the words of Barwick CJ in Foster v The Queen, referred to earlier. It follows that, even if she had an intention to later restore Oscar to Mr Edwards if the proceedings were resolved against her, that would not prevent her original taking from being considered larcenous.
Conclusion: Ms Edwards did not steal Oscar
317 The Publishers bore the burden of proving that Ms Edwards stole Oscar. They have not discharged that burden.
318 The Publishers succeeded in proving that Ms Edwards, in effect, took Oscar and carried him away. That was not really in dispute. Ms Edwards arranged for Reverend Aaron to pick Oscar up from Wingello and deliver him to her.
319 The Publishers also succeeded in proving that Ms Edwards obtained possession of Oscar without the consent of his owner, Mr Gillespie. While Mr Gillespie in fact consented to Ms Edwards taking possession of Oscar on 16 December 2019, that consent was obtained by deception on the part of Ms Edwards. That deception effectively negatived the consent otherwise given by Mr Gillespie. That element was again not really in dispute.
320 I am also satisfied that, when she obtained possession of Oscar by deception, Ms Edwards intended to permanently deprive Mr Gillespie of possession of Oscar, despite the fact that she subsequently commenced proceedings so as to secure a declaration that she and Mr Flavell were Oscar’s owners. I am satisfied that Ms Edwards intended to appropriate Oscar, in the sense of exercising ownership of Oscar and treating him as if he were her own. Even if Ms Edwards turned her mind to the possibility that she might have to return Oscar to Mr Gillespie if her legal action was unsuccessful, which in any event is doubtful, the fact that she intended to appropriate Oscar in the meantime meant that she had an intention to permanently deprive Mr Gillespie of possession of Oscar.
321 The problem for the Publishers is that they failed to prove that Ms Edwards did not have a claim of right in good faith – that she did not genuinely and honestly believe that she had the right to possess Oscar. For the reasons that have already been given in detail, the evidence indicated that, following the receipt of advice from Mr Hodgson, Ms Edwards believed that she and Mr Flavell had ownership, or co-ownership, rights in respect of Oscar, that those rights were superior to the rights of Ms Angeli and Mr Fidler, who were in possession of Oscar as mere bailees, and that, if she and Mr Flavel obtained possession of Oscar from Ms Angeli and Mr Fidler, she could retain possession of Oscar. The evidence also indicates that those beliefs were genuinely and honestly held by Ms Edwards. The Publishers failed to establish that Ms Edwards did not genuinely and honestly hold those beliefs because she gave false or misleading information to Mr Hodgson.
322 The fact that the Publishers were unable to prove that Ms Edwards did not genuinely and honestly believe that she had the right to possess Oscar means that it cannot be said that it is substantially true that Ms Edwards stole Oscar. Ms Edwards could not be said to have been guilty of larceny or stealing in circumstances where it could not be said that she did not have a genuine and honest claim of right in respect of Oscar. Ordinary reasonable persons would not consider that a person who took possession of a dog from someone else was a thief who stole that dog if that person genuinely and honestly believed that they had ownership rights and were entitled to have possession of a dog. To adapt the words of Lord Shaw in Sutherland v Stopes, the fact that Ms Edwards genuinely believed, based on Mr Hodgson’s advice, that she and Mr Flavell had ownership rights in respect of Oscar, explained “in a non-criminal sense…[what] was done” and “disaffirm[ed] the truth of the libel” because they indicated that the claim that Ms Edwards stole Oscar was “false in substance”.
323 I should reiterate here that I do not accept that Ms Edwards genuinely and honestly believed that she could take possession of Oscar by means of a deception. As discussed in detail earlier, I do not accept Ms Edwards evidence that Mr Hodgson advised her that she should or could “contrive” a way to obtain possession of Oscar. I accept Mr Hodgson’s evidence that he did not give Ms Edwards any advice about how she should go about obtaining possession of Oscar and I consider it entirely implausible that Mr Hodgson would have advised Ms Edwards that she could employ a deception. It does not follow, however, that Ms Edwards did not have a genuine claim of right in respect of Oscar. As discussed earlier in the context of the elements of the offence of larceny, the relevant question as to whether Ms Edwards had a claim of right is whether she had a genuine belief that she had a legal right to possess Oscar, not whether she had a belief that she could employ any particular means to obtain possession of Oscar. In other words, Ms Edwards could not be said to have stolen Oscar if she genuinely believed she had the right to possess Oscar, even if she did not genuinely believe that she could obtain possession of Oscar by employing a deception. In my view, the ordinary reasonable person would also consider that Ms Edwards did not steal Oscar in those circumstances.
Did Ms Edwards steal Oscar for her own financial benefit?
324 Given the finding that it is not substantially true that Ms Edwards stole Oscar, it is strictly unnecessary to consider the additional element in the second imputation in question – that she did so “for her own financial benefit”. That question can, in any event be disposed of briefly.
325 The evidence relied on by the Publishers in support of the proposition that Ms Edwards was motivated by financial considerations was very limited. There was evidence that, during the periods that Ms Edwards and Mr Flavell had access to Oscar, Ms Edwards regularly posted photographs to Oscar’s Instagram account. As a result, Oscar acquired a large social media following. He also acquired a degree of publicity and notoriety as a result of the media coverage of Oscar being chosen to appear in La Boheme.
326 Oscar also occasionally received cards and presents from his Instagram followers. The gifts included collars and leads. At one point, Ms Edwards subscribed to services offered by companies in the United States to assist her in learning how to grow Oscar’s social media profile. Ms Edwards, however, denied that she engaged those companies to assist her in increasing the “earning potential” of Oscar’s social media account. There was also some evidence that suggested that Ms Edwards and Mr Gillespie had been approached about whether Oscar could become a brand ambassador or otherwise become involved in promoting various dog-related products. It was, however, unclear whether Ms Edwards or Mr Gillespie ever received any money as a result of those approaches. The amounts involved were also fairly small. There was, for example, evidence that “Underwater Dogs” was going to pay $500 in respect of a promotion by Oscar, which was to be split equally between Mr Gillespie and Ms Edwards and Mr Flavel, however Mr Flavel’s evidence was that he did not think that they received that money. Ms Edwards denied that she was “on a mission to make him [Oscar] a dog model, a brand ambassador, and to attract sponsorships”.
327 The evidence just referred to may perhaps support a finding that Ms Edwards was excited and enthusiastic about Oscar’s public and social media profile. It may also be accepted that, given his profile, Ms Edwards received, on behalf of Oscar, some very minor dog-related gifts and some offers relating to potential sponsorships and endorsements involving very small sums of money. That, however, falls a very long way short of establishing that, when Ms Edwards took steps to obtain possession of Oscar from Ms Angeli and Mr Fidler in December 2019, she did so for “her own financial benefit”.
328 Even assuming, for present purposes, that Ms Edwards stole Oscar, the evidence considered as a whole does not establish the substantial truth of the statement or proposition that Ms Edwards did so for her own financial benefit. Indeed, the evidence supports the proposition that Ms Edwards was motivated almost entirely by her and Mr Flavell’s love and affection for the dog. I do not accept that she was motivated at all by financial considerations. The evidence clearly indicates that Ms Edwards and Mr Flavell were upset when Mr Gillespie decided that Oscar would stay with Ms Angeli and Mr Fidler in Wingello when Mr Gillespie went overseas in 2018. They were also devastated when Ms Angeli and Mr Fidler refused to continue to allow Oscar to visit them in Sydney. They were devastated not because they were deprived of the opportunity to derive any financial benefits from Oscar, but because they considered Oscar to be part of their family and part of their lives, and because they were concerned about whether Oscar was being looked after in Wingello in the manner he was accustomed to in Kirribilli. They were not motivated by financial considerations.
329 It follows that, even if, contrary to the finding that has been made, it was substantially true that Ms Edwards stole Oscar, I am not satisfied that it is substantially true that she did so for her own financial benefit.
CONCLUSION IN RELATION TO THE PUBLISHERS’ JUSTIFICATION DEFENCE
330 The Publishers’ justification defence in respect of the two imputations to the effect that Ms Edwards stole Oscar has not been made out. They have failed to prove that the two imputations in question – that Ms Edwards, a barrister, was a thief who sole Oscar the cavoodle and that Ms Edwards, a barrister, stole Oscar the cavoodle for her own financial benefit – were substantially true.
ISSUE FOUR: THE PUBLISHERS’ DEFENCE OF CONTEXTUAL TRUTH
331 The Publishers’ defence of contextual truth can be disposed of shortly. That is because the Publishers effectively conceded that that defence must fail if the Court found that the two imputations concerning the theft or stealing of Oscar were carried by the publications and were not substantially true and therefore justified. That concession was properly made.
332 Even putting that concession to one side, the defence has no merit for the reasons that follow.
Relevant statutory provisions and principles
333 The starting point is s 26 of the Defamation Act, before its recent amendment, which provided:
It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
334 The essence of the defence of contextual truth has been said to be that “if, viewed in its factual context, the defamatory publication was true enough that no further harm to reputation was done by the particular imputations selected by the plaintiff, no remedy should lie”: McMahon v John Fairfax Publications Pty Limited (No 3) [2012] NSWSC 196 at [19].
335 In summary, to make out the defence of contextual truth, a respondent bears the onus of proving the following facts or circumstances.
336 First, the publication in question must convey imputations – the so-called “contextual imputations” – in addition to the defamatory imputations pleaded by the applicant. The contextual imputations must differ in substance from the defamatory imputations pleaded by the applicant (Fairfax Media Publications Pty Ltd v Zeccola (2015) 91 NSWLR 341 at [70]-[74]) and must not be a “lesser version” of those imputations: Nassif v Seven Network (Operations) Ltd [2021] FCA 1286 at [128]-[133]; Schiff at [106]-[108].
337 Second, the contextual imputations must be substantially true. The principles that apply in determining whether the defamatory imputations pleaded by the applicant are substantially true apply equally when it comes to determining whether the contextual imputations are substantially true.
338 Third, it must be established that the defamatory imputations did not cause the applicant any further harm because of the substantial truth of the contextual imputations. In making that assessment, the Court must consider the “combined effect of all the established contextual imputations” and does not “engage in a comparison of individual imputation against individual imputation”: Palmer v McGowan [2021] FCA 430 at [30] (emphasis in original); Nassif at [126]; Schiff at [18]. In other words, the Court must “weigh or measure the relative worth or value of the several imputations contended for by both the parties”: Mahommed at [139] (McColl JA, Spigelman CJ, Beazley JA, McClelland CJ at CL and Bergin CJ in Eq agreeing) and the cases there cited. The defence will fail if the defamatory imputations pleaded by the applicant “would still have some effect on his or her reputation notwithstanding the effect of the substantial truth of the [respondent’s] contextual imputations”: Mahommed at [139]; Whelan v John Fairfax Publications Pty Ltd [2002] NSWSC 1028 at [35] (Levine J). A colloquial or shorthand description of that test is that the contextual imputations must “swamp” the defamatory imputations pleaded by the applicant: Mahommed at [140] and the cases there cited.
The alleged contextual imputations
339 The Publishers contended that each of the publications (the first broadcast, the first article, the second broadcast, and the second article) carried the following two imputations (or imputations not different in substance) in addition to the applicant’s imputations that are found to have been conveyed:
(a) Ms Edwards, a barrister and dog-sitter, refused to return a dog (Oscar) to his owner after dog-sitting the dog; and
(b) Ms Edwards, a barrister and dog-sitter, caused profound distress to the owner of a dog (Oscar) by refusing to return the dog and taking proceedings to deprive the owner of his dog.
340 As can be seen, the key elements of the first alleged contextual imputation are: first, that Ms Edwards is a barrister and “dog-sitter”; and second, that she refused to return Oscar to its owner “after dog-sitting the dog”. The key elements of the second alleged contextual imputations are: first, Ms Edwards is a barrister and dog-sitter; second, she refused to return the dog and took proceedings to deprive the owner of his dog; and third, that caused “profound distress” to the owner of the dog.
Were the contextual imputations carried by the publications?
341 The question whether the contextual imputations were carried by the publications can be addressed in brief terms.
342 Ms Edwards contended that the contextual imputations were not carried “in addition” to the defamatory imputations because the contextual imputations are simply “a lesser version of the stealing imputations…and are subsumed within them”. I do not agree.
343 While it is perhaps arguable that refusing to return a dog to its owner is a lesser variant of stealing the dog, the contextual imputations contain other elements which make them differ in substance from the defamatory imputations concerning the stealing of the dog. The first contextual imputation includes the elements that Ms Edwards is not only a barrister but also a “dog-sitter” and that her refusal to return the dog occurred after she dog-sat it. The second contextual imputation also includes the elements that Ms Edwards is a dog-sitter and that she not only failed to return the dog, but also took proceedings to deprive the owner of his dog. It also includes that element that Ms Edwards’ actions caused the owner “profound distress”.
344 In any event, the contextual imputations differ in substance from the other defamatory imputations that do not relate to the stealing of Oscar.
345 It is readily apparent that the two pleaded contextual imputations were conveyed by the first broadcast and the first article. It is, however, questionable that all the elements of the contextual imputations were conveyed by the other publications.
346 The first broadcast referred to Ms Edwards and Mr Flavell as “canine carers” and dog-sitters. It also indicated that Ms Edwards is a barrister. It also clearly conveyed that Ms Edwards refused to return Oscar to Mr Gillespie after dog-sitting him. Mr Gillespie is referred to as Oscar’s registered owner. It also referred to the proceedings concerning the dispute over Oscar. While it does not expressly state that Ms Edwards commenced the proceedings, that is effectively implied. Mr Marshall, for example, asks Mr Flavell whether the court had better things to do with its time. After referring to Ms Edwards as a lawyer, Mr Marshall also asks her whether she is running her own case. While the broadcast does not state in terms that Ms Edwards’ action had caused Mr Gillespie “profound distress”, that is again clearly implied.
347 The first article also clearly stated or imputed that Ms Edwards is not only a barrister but also a dog-sitter and that she had refused to return Oscar to his registered owner, Mr Gillespie, after she dog-sat him. It referred to court proceedings, though it did not state that Ms Edwards commenced them, or that she did so to deprive Mr Gillespie of his dog. That casts some doubt on whether it conveyed that element of the second contextual imputation. The overall tone of the article does, however, suggest that Ms Edwards was responsible for the proceedings and that, in doing so, she intended to deprive Mr Gillespie of his dog. For example, after referring to Ms Edwards filing an AVO against Mr Gillespie, the article stated that that proceeding would “chew up more valuable court time”, thus suggesting that Ms Edwards was responsible for chewing up court time in respect of the case concerning Oscar. While the article also did not express convey that Ms Edwards’ actions had caused Mr Gillespie profound distress, that is also clearly implied by the tone and tenor of the article as a whole.
348 As for the second broadcast, I am not satisfied it carried all the elements of the two contextual imputations. In particular, it does not refer to Ms Edwards as a dog-sitter, or otherwise indicate that the “battle” over Oscar arose because Ms Edwards refused to return Oscar to Mr Gillespie after dog-sitting him.
349 It is also doubtful that the second article conveyed all the elements of the contextual imputations. While it referred to Ms Edwards as a barrister and dog-sitter and stated that she refused to return Oscar to Mr Gillespie when he returned home after working away (thus implying that Ms Edwards was dog-sitting Oscar at the time), it is at best doubtful that it conveyed that Ms Edwards commenced court proceedings to deprive Mr Gillespie of the dog and that those actions caused Mr Gillespie “profound distress”. The second article did state that Ms Edwards had “slapped” Mr Gillespie with an AVO which was to be heard in the Manly Local Court, however it did not suggest or imply that the proceedings in the Manly Local Court had anything to do with Ms Edwards seeking to deprive Mr Gillespie of the dog.
Were the contextual imputations substantially true?
350 I am not persuaded that the Publishers established that all the elements of the contextual imputations, or their “sting”, were substantially true.
351 In relation to the first contextual imputation, the reference to Ms Edwards being a “barrister and dog-sitter” clearly conveyed or implied that Ms Edwards’ career or occupation was not only as a barrister, but also a “dog-sitter”. The juxtaposition of the words “barrister” and “dog-sitter” implied that Ms Edwards derived income from dog-sitting in an organised way. That connoted more than that Ms Edwards occasionally looked after Oscar, as the Publishers contended. It also conveyed that she was, in effect, a professional dog-sitter. The fact that Ms Edwards was a professional dog-sitter, in that sense, was in my view also part of the sting of the imputation.
352 I am not satisfied that it is, or was, substantially true that Ms Edwards was a dog-sitter in the sense conveyed by the contextual imputations. There was no evidence that Ms Edwards was a dog-sitter, in the sense that dog-sitting was one of her jobs or occupations or was a source of income for her. I am also not satisfied that the fact that Ms Edwards and Mr Flavell looked after Oscar when Mr Gillespie went overseas, and also had care and custody of him on other occasions, meant that she was a dog-sitter. Ms Edwards relationship with Oscar was more than as a mere dog-sitter.
353 The Publishers also did not establish that it was substantially true that Ms Edwards refused to return Oscar to Mr Gillespie after dog-sitting him. It may be accepted that Ms Edwards refused to return Oscar to Mr Gillespie after Oscar was picked up under the pretence that Ms Edwards was going to take Oscar to an audition or some other event relating to the television show Pooch Perfect. It would not be accurate to say, however, that Ms Edwards was dog-sitting Oscar at that time.
354 The overall sting of the first contextual imputation was that Ms Edwards’ relationship with Oscar was that of a mere dog-sitter and that she refused to return him to his owner after dog-sitting him. I am not persuaded that that was what had occurred. The imputation is therefore not substantially true.
355 The same problem exists in relation to the second imputation. While the imputation does not expressly state that Ms Edwards refused to return Oscar to Mr Gillespie after dog-sitting him, that is clearly implied and part of the overall sting of the imputation. That is why Ms Edwards is said to be a dog-sitter. If it was not intended to imply that Ms Edwards refused to return Oscar after dog-sitting him, why is she referred to as a dog-sitter? What would be the relevance of that fact? It follows that, for the same reasons as those given in respect of the first contextual imputation, I am not satisfied that the Publishers have established that the second contextual imputation was substantially true.
Did the contextual imputations “swamp” the defamatory imputations?
356 It is unnecessary to consider whether the contextual imputations could be said to have “swamped” the defamatory imputations, in the sense that the substantial truth of the contextual imputations meant that Ms Edwards’ reputation was not further harmed by the defamatory imputations. That is because, for the reasons already given, the contextual imputations have not been found to be substantially true. Moreover, as noted earlier, the Publishers conceded that, if the defamatory imputations concerning the stealing of Oscar were found to have been conveyed and were not found to be substantially true, it could not reasonably be contended that the contextual imputations swamped the defamatory imputations. For the reasons already given, I am satisfied that the defamatory imputations concerning the stealing of Oscar were carried and were not substantially true.
357 I should nevertheless note that I am in any event far from satisfied that the contextual imputations swamped the defamatory imputations, in the sense explained earlier. That is particularly so in circumstances where I have found that the defamatory imputations that were conveyed included the two imputations concerning the stealing of Oscar and have found that those imputations were not substantially true.
358 Even if I had found that the stealing imputations were not conveyed, or that they were conveyed but were substantially true, I find it difficult to accept that the contextual imputations would necessarily swamp the remaining defamatory imputations. That issue is difficult because the sting of the contextual imputations, while referring to Ms Edwards as both a barrister and dog-sitter, tend to focus on her actions as a dog-sitter who refused to return a dog to its true owner. In other words, they tend to impugn or sully Ms Edwards’ reputation as a dog-sitter. The defamatory imputations, other than those relating to the stealing of Oscar, tend to focus on Ms Edwards’ actions as a barrister and tend to sully her reputation as a barrister. On balance, however, if I was required to decide the issue, I would incline toward the view that Ms Edwards’ reputation was further harmed by the defamatory imputations about her delaying a court case and failing to comply with her obligations to appear, albeit marginally so, even if the contextual imputations about her failing to return a dog to its owner were found to be substantially true.
Conclusion in respect of the defence of contextual truth
359 The Publishers’ contextual truth defence fails. The contextual imputations were not substantially true and, in any event, would not have “swamped” the defamatory imputations in the requisite sense.
conclusion in relation to the PUBLISHERS’ liability
360 The Publishers are liable to Ms Edwards in defamation. Their publications conveyed imputations concerning Ms Edwards which have been found to be defamatory. Those defamatory imputations have not been found to be substantially true and the Publishers’ justification defence, limited as it was to two of the defamatory imputations, accordingly fails. The Publishers’ contextual truth defence also fails because the contextual imputations were not found to be substantially true. The remaining issues concern the appropriate relief, in particular the assessment of damages.
361 Ms Edwards claimed general or compensatory damages in respect of the injury to her reputation and the hurt and embarrassment she suffered by reason of the defamatory imputations found to have been carried by the publications. She also claimed aggravated damages on the basis that her hurt was aggravated by her knowledge of the Publishers’ conduct.
Relevant principles - general or compensatory damages
362 There was no material disagreement between the parties concerning the relevant principles in respect of general or compensatory damages. The following summary of the principles has largely been derived from what was said in Rush at [666] – [673].
363 Once a publication is found to be defamatory, damage is presumed: Bristow v Adams [2012] NSWCA 166 at [20]-[31].
364 Section 34 of the Defamation Act provides that “[i]n determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the [applicant] and the amount of damages awarded”. Past authorities shed some light on what might be said to be an “appropriate and rational relationship” for the purposes of s 34 of the Defamation Act.
365 There are three purposes to be served by damages awarded for defamation: consolation for the personal distress and hurt caused to the applicant by the publication, reparation for the harm done to the applicant’s personal and (if relevant) business reputation, and vindication of the applicant’s reputation: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60. The first two purposes are frequently considered together, whereas “[v]indication looks to the attitude of others to the [applicant]: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the [applicant’s] reputation”: Carson at 61.
366 The level of damages should reflect the fact that “the law should place a high value upon reputation and in particular upon the reputation of those whose work and life depend upon their honesty, integrity and judgment”: Crampton v Nugawela (1996) 41 NSWLR 176 at 195; John Fairfax Publications Pty Ltd v O’Shane (No 2) [2005] NSWCA 291 at [3].
367 It is common ground that the amendments to s 35 of the Defamation Act which were made by the Defamation Amendment Act 2020 (NSW) do not apply to this proceeding.
368 Section 35(1) of the Defamation Act, in its form at the time relevant to this proceeding, in effect specified a cap for non-economic loss. The prescribed cap for the purposes of s 35 of the Defamation Act is currently $459,000: Gazette No 250, 9 June 2023, p 15. The effect of s 35(1) of the Defamation Act was to create a cap or “cut-off” amount; it does not create a “range” or “scale”, with the amount of the cap reserved for the most serious cases of defamation: Cripps v Vakras [2014] VSC 279 at [599]-[609]; Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 at [125]-[127]; Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154.
369 Section 35(2) of the Defamation Act provided that the cap may be exceeded “if, and only if, the [C]ourt is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages”. When a court is satisfied that an award of aggravated damages is appropriate, the court is entitled to make an order for damages for non-economic loss that exceeds the statutory cap in respect of both pure compensatory damages and aggravated compensatory damages; in other words, when an award of aggravated damages is warranted, the statutory cap is inapplicable: Wilson (No 2) at [249]. In Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 422 the Full Court indicated (at [459]-[466]) that it was not satisfied that Wilson (No 2) was plainly wrong; see also Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; (2021) 387 ALR 123 at [236]. Importantly, however, the “direction” under s 34 of the Defamation Act continues to apply and provides an “ever-present guide” even where an award of aggravated damages is appropriate and the Court should exercise its discretion to exceed the cap: Wilson (No 2) at [244]; Stead at [236].
Relevant principles – aggravated damages
370 Save in one respect, there was also no significant disagreement between the parties concerning the relevant principles in respect of aggravated damages. The following summary of the principles has largely been derived from what was said in Rush at [721] – [727].
371 Aggravated damages may be awarded where there is a lack of bona fides in the respondent’s conduct, or where the conduct is improper or unjustifiable: Triggell v Pheeney (1951) 82 CLR 497 at 514. Conduct with those characteristics may be taken to increase or aggravate the harm the defamation caused or may reasonably be supposed to have caused: Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653B; Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at [446(g)]. Where conduct of a respondent which is improper, unjustifiable or lacking in bona fides is established, an increase to the applicant’s sense of hurt may be presumed from all the evidence: Wagner v Harbour Radio Pty Ltd [2018] QSC 201 at [743]. It is not necessary for the applicant to give evidence that the aggravating behaviour of the respondent “augmented his [or her] sense of hurt”: Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 250; Flegg v Hallett [2015] QSC 167 at [232], [237].
372 Circumstances of aggravation can be found in the respondent’s conduct from the commission of the tort up until the day of judgment: Broome v Cassell & Co Ltd [1972] AC 1027 at 1071; [1972] 1 All ER 801; see also Wilson v Bauer Media Pty Ltd [2017] VSC 521(statement of principle not disturbed on appeal in Wilson (No 2)). There was some disagreement between the parties in respect of this principle. Ms Edwards contended, in effect, that in some circumstances, circumstances of aggravation can be found in the respondent’s pre-publication conduct. That issue is addressed later in these reasons.
373 The failure to publish a retraction or an apology may make an award of aggravated damages appropriate if it amounts to a continuing assertion of the defamatory imputations: Carson at 78; Hockey at [446(h)]; Wilson at [87]; Wagner at [744].
374 Aggravated damages may be appropriate where the defamatory matter is published in an extravagant, excessive or sensationalist manner: Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 79; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [34].
375 The respondent’s aggravating conduct may be found in the circumstances of publication where the respondent increased the harm suffered by the applicant by recklessly inflicting damage on the applicant’s reputation, or failing to investigate the defamatory allegations before publishing them: Andrews at 243-4; Wilson at [86].
376 The conduct of the litigation can in some circumstances justify aggravated damages, however mere persistence, even vigorous persistence, in a bona fide defence, in the absence of improper or unjustifiable conduct, cannot be used to aggravate compensatory damages: Coyne v Citizen Finance Limited (1990 – 1991) 172 CLR 211 at 237 (Toohey J, with whom Dawson and McHugh JJ agreed).
377 In assessing both the extent of the damage to Ms Edwards’ reputation and the hurt and distress suffered by her it is relevant to have regard to the extent or scale of the publications in question: Webster v Brewer [2020] FCA 1343, [44]; Wilson (No 2), [165]. The facts concerning the extent of publication were agreed or not disputed. As might be expected of a national Current Affair program broadcast in prime time by a major network, the broadcast publications were viewed by many people. The associated articles uploaded to the internet were also viewed by a relatively large number of people, though less so in respect of the second article.
378 It was estimated that the first broadcast was viewed by just over a million people. A further 724,000 people viewed the broadcast on Facebook.
379 There were 57,122 “unique visitors” to the first article on the date it was first uploaded or published. There were 117,410 unique visitors to the article up to 11 November 2022.
380 It was estimated that the second broadcast was also viewed by just over a million people. A further 143,000 people viewed the broadcast on Facebook.
381 There were 3,378 “unique visitors” to the second article on the date it was first uploaded or published. There were 36,257 unique visitors to the article up to 11 November 2022.
Damage to Ms Edwards’ reputation
382 It is worth briefly noting here exactly what reputation means in the context of an action for defamation. Lord Denning provided the following simple explanation in Plato Films Ltd v Speidel [1961] AC 1090 at 1138:
A man’s “character,” it is sometimes said, is what he in fact is, whereas his “reputation” is what other people think he is. If this be the sense in which you are using the words, then a libel action is concerned only with a man’s reputation, that is, with what people think of him: and it is for damage to his reputation, that is, to his esteem in the eyes of others, that he can sue, and not for damage to his own personality or disposition.
(Emphasis in original)
383 Ms Edwards was by no means a public or prominent figure at the time of the first broadcast. Nor did she have a high profile, either privately or professionally. That does not mean that she did not have a reputation among those who knew her. She had a circle of friends and acquaintances who thought highly of her. She was also becoming more widely known because of the Instagram account relating to Oscar. Professionally, she had only recently commenced her career as a barrister, a profession in which reputation is particularly important. There could be little doubt that the publications had the capacity to, and did, cause at least some damage to Ms Edwards’ personal and professional reputation.
384 Mr Brendan Searson was a barrister who met Ms Edwards in 2019 when they both attended ethics and procedure lectures presented by the Bar Association for new or prospective barristers. He subsequently attended social functions with her. His evidence concerning Ms Edwards’ reputation was, from his perspective, that she was “forthright and truthful” and “the type of person that you could trust and have a conversation with”. She was “enjoyable to be around”. As far as he was aware, Ms Edwards was perceived in the same way by others.
385 Ms Susan Greeves met Ms Edwards in about 2017, having been introduced to her by Mr Gillespie. Ms Greeves also had a cavoodle. She initially used to see Ms Edwards at the dog park every week, though when Ms Edwards later moved she generally only saw her twice a month. She had a common circle of friends with Ms Edwards, which included Mr Flavell and Ms Roach. Ms Greeves’ evidence was that within that friendship circle Ms Edwards had a “very good reputation” and that people admired her for coming from America and working hard and becoming a barrister.
386 Reverend Aaron, who was a minister in the Uniting Church, met Ms Edwards in 2017. Through Ms Edwards, he subsequently met Mr Gillespie, Mr Gillespie’s then partner and Ms Roach. Reverend Aaron’s evidence concerning Ms Edwards’ reputation was that she was “hospitable” and a “host” and “networker” who “called people together”. He described her as “friendly, bubbly, raucous and joyful”. His perception was that she was known for those traits amongst the people that both he and she knew.
387 Ms Roach met Ms Edwards in May 2017 at a “dog party” that they both attended. Her evidence was that among the group of people with whom they socialised Ms Edwards was “considered incredibly warm, friendly, hospitable and very, very generous”.
388 Mr Alex Sosnov met Ms Edwards in 2017 through Instagram “dog accounts” that they both operated. They had been friends ever since and they developed mutual friendships mainly through dog ownership. He described Ms Edwards’ reputation as being someone who was the “glue that brought people together” and as being “fun loving” and an “amazing dog parent”. She was also known as being “very smart and professional”. He gave the following evidence about his observations about Ms Edwards’ reputation after the second broadcast:
[MR SMARTT:] And did you observe her reputation in that circle of friends to change after the second broadcast?
[MR SOSNOV:] So the circle of friends, you know, obviously believed her. You know, did not think that that was – that what was said was true. But, certainly, in terms of, like, the broader, you know, dog parties, if you like, people who did not – were not close friends, I did observe people making comments. Like, just really wanting to know, well, what happened. You know, was it true. Asking questions like that.
[MR SMARTT:] And outside that circle of friends, did you have any conversation with anyone else about how they felt about Ms Edwards after watching the broadcast?
[MR SOSNOV:] So I – I mentioned it to a couple of work colleagues, and, I guess, they were – like, they had seen it. But they were, sort of, shocked and surprised to hear that it was not true. Yes.
389 That evidence was perhaps the main direct evidence concerning the damage to Ms Edwards’ personal reputation. As can be seen, the damage does not appear to have been particularly extensive, mainly because her friends believed Ms Edwards and did not believe the truth of what had been conveyed by the broadcasts.
390 Mr Mark Maconachie was a barrister. He met Ms Edwards in September 2019 when she inquired about becoming a reader in his chambers. Ms Edwards subsequently accepted a readership position and read with Mr Maconachie. He was her certifying tutor. Ms Edwards commenced the Bar Practice course in September 2020. After Ms Edwards finished that course, she assisted Mr Maconachie and some other barristers on the floor on some cases, though she spent more time with her other tutor who was a Crown Prosecutor. Mr Maconachie did not work extensively with Ms Edwards.
391 Mr Maconachie’s evidence was that Ms Edwards had a reputation as a “hard worker” who could “turn around work on a deadline” and “produce good results”. She was also “enjoyable to work with” and was “becoming a good barrister”. Her reputation among other barristers on the floor was that she was a “vivacious, fun person” who had a “big, loud character” and whose “reputation preceded her”. Mr Maconachie also observed that Ms Edwards was gradually developing her own practice and “making good progress”.
392 Mr Maconachie’s evidence was that, after Mr Marshall and a camera crew attended his chambers and asked for Ms Edwards, Ms Edwards’ profile was removed from the chambers website. He also said that after Mr Marshall’s visit to chambers, he heard conversations in the kitchen to the effect of “What’s going on with Gina?” and “There’s a lot of drama around Gina, isn’t there”.
393 Mr Maconachie gave the following evidence concerning Ms Edwards’ reputation in the period after the broadcast:
[MR OLSON:] You’ve given evidence about the kind of reputation that Ms Edwards had on the floor before the broadcast. In this period after the first broadcast, do you – was there – did that stay the same, or was there a change?
[MR MACONACHIE:] There was definitely a change. Gina wasn’t coming into chambers. She wasn’t, to my observation, working any more. She was the source of whispers. The impression I formed was that she was regarded as, potentially, a threat to chambers. That the Channel Nine controversy may not just be a problem for Gina, but might be a problem for the floor more generally. And that if instances of people coming to Chambers were repeated, then it might, for instance, go so far as to put the staff in harm’s way.
394 Mr Maconachie’s evidence was perhaps the most compelling direct evidence concerning the damage to Ms Edwards’ professional reputation. What remained somewhat unclear was the extent to which that damage extended beyond the relatively small circle of barristers in Mr Maconachie’s and Ms Edwards’ chambers at the time and how enduring that damage was or was likely to be.
395 As was the case with many of the submissions advanced by the parties in this matter, there was a vast gulf between Ms Edwards’ submissions concerning the damage to her reputation and the Publishers’ submissions on that topic. On the one hand, Ms Edwards submitted that the publications did “serious damage” to her “personal and professional reputation.” On the other hand, the Publishers submitted that the evidence as to damage to Ms Edwards’ reputation was “very limited”. The true position lies somewhere between those two extremes.
396 While I would readily accept that the nature and content of the defamatory imputations conveyed by the publications was such that they had the capacity to cause serious damage to Ms Edwards’ reputation, both personal and professional, the evidence did not go so far as to establish that the publication in fact had that effect. While I accept that the publications caused some damage to Ms Edwards’ reputation, I would not conclude or infer from the evidence which was adduced in respect of this issue that the damage was serious.
397 The damage to Ms Edwards’ personal reputation, at least in her circle of friends and acquaintances, appeared to be quite minimal, mainly because her friends and acquaintances remained loyal to her and did not believe what had been conveyed by the publications. As for the damage to Ms Edwards’ professional reputation, the evidence suggested that the damage appeared to be largely limited to the barristers and others who practiced out of or worked in Mr Maconachie’s and Ms Edwards’ chambers at the time. That was perhaps a reflection of the fact that Ms Edwards had only just commenced at the Bar and did not have a significant or extensive professional profile. I am, however, willing to infer that the damage to Ms Edwards’ professional reputation was likely to have extended more widely than that, though the full extent of the damage and how long it persisted remained somewhat unclear.
398 I should emphasise in this context that, while Ms Edwards did not have a public profile or reputation prior to the publications, the publications themselves gave Ms Edwards a degree of notoriety and an essentially negative public profile or reputation. That can be seen in particular from some of the vile and disparaging “comments” about Ms Edwards that were posted on the website and various social media platforms which were associated with the Nine Network, Channel Nine or A Current Affair. I also accept that the particularly insidious “grapevine effect” that social media often has was likely to have spread those disparaging comments like a contagion, at least amongst those who choose to read such material: see Tribe v Simmons (No 2) [2021] FCA 1164 at [24]. By the same token, it is somewhat difficult to accept that the broader public interest in, and public profile of, Ms Edwards was likely to have persisted for long beyond the period of the publications. The virus-like effect of social media is often fickle and fleeting and I doubt that Ms Edwards’ notoriety among the broader public was likely to have persisted. That observation is not intended to understate the insidious effect that the pernicious social media comments may have had on Ms Edwards at the time. The damage caused by those comments, however, is better considered in the context of the hurt and distress suffered by Ms Edwards, as opposed to the damage to her reputation.
399 I accept that the law places a high value upon reputation and in particular upon the reputation of those whose occupation depends on their honesty, integrity and judgment. That obviously includes a barrister. I also accept, as I have said, that Ms Edwards’ reputation, both personally and as a barrister, was obviously damaged to some extent by the imputations carried by the publications. In all the circumstances, however, I do not accept that the publications caused “serious damage” to Ms Edwards’ reputation, or that the award of damages referrable to the injury to Ms Edwards’ reputation should be “extreme” and “substantial”, as was contended by Ms Edwards.
Hurt and distress suffered by Ms Edwards
400 There could be no doubt whatsoever that the publications and the imputations carried by them caused serious hurt and distress to Ms Edwards. Ms Edwards’ evidence in that respect was compelling.
401 The incident during which Mr Marshall and an A Current Affair camera crew effectively accosted Ms Edwards in the park in Kirribilli occurred on 19 May 2021. On Friday 21 May 2021, Ms Edwards and Mr Flavell attended Chatswood Police Station, following which the police applied for an AVO against Mr Gillespie. A provisional AVO was made by a Local Court judge on Saturday 22 May 2021. Either that day, or the following day, Channel Nine broadcast a promotion of the first broadcast. Another promotion was broadcast on 24 May 2021, the day of the first broadcast. The two promotions included much of the footage from the first broadcast. Ms Edwards was contacted by friends who saw the promotions and in due course watched them. While Ms Edwards did not sue upon the promotions, her reaction to seeing them was probative of the hurt and distress she suffered as a result of the publications, which she did eventually view and read. Her evidence was as follows:
[MS CHRYSANTHOU:] And once you saw the promotional videos and you said before you thought that the AVO would stop anything from happening, how did you feel about the fact, given you had the belief that Channel 9 had been told about the AVO, how did you feel about the fact that they persisted in publishing the first broadcast and the first article?
[MS EDWARDS:] I was in total shock. I was – it was beyond my comprehension that in the middle of a court case before the Supreme Court of New South Wales that this vigilante justice madness could happen. I couldn’t understand it. I couldn’t understand why this was happening. I was so shocked and I was so sick and I had the beginning of some of the worst and darkest and weeks of my entire life starting on May 19, and then when I saw the broadcast and I couldn’t believe what I was seeing and I couldn’t process it. So many parts of it. Yelling that I was a barrister over and over again and calling me essentially a thief and a dog sitter and even saying that Mark was a cruise director when he has never been a cruise director a day in his life. They couldn’t even get that right, but they got my profession right. I felt assaulted, I felt talked, I felt humiliated and harassed, I felt sickened, I felt disappointed because I thought by filing a civil dispute that the law – that my case would be decided in a court of law, not on some horrible trashy television program that made me look like a crazy person in my big fat ugly sweatshirt. It was the worst thing I’ve ever seen other than carrying my friend’s coffin in February this year. It was horrible. I wanted to die. I never wanted to come out of my room. I never wanted to be a lawyer again. I just wanted to die. I’m so sorry, your Honour.
[MS CHRYSANTHOU:] Did you read the article that night or the next day? It’s right, isn’t it, you didn’t actually watch the broadcast as it aired?
[MS EDWARDS:] No. I just saw the promotional videos and everyone was sending me photographs and clips of the videos and Alison Biscoe called me and her and Peter and everyone I knew was messaging me and sending me clips of the video and photographs and it was everywhere, everyone. It was awful. It swallowed me up whole. That’s the best way I can describe it. I was afraid.
402 Ms Edwards subsequently read the first article. She described her reaction to it as follows:
HIS HONOUR: No. That’s all right. But I think the question was did you read the online article? You were sent a whole lot of material?
[MS EDWARDS:] I did, your Honour. I read it that night because someone sent it to me, and particularly the comments about rolling – living the high life and rolling in pet endorsements when I had less than $1000 in my bank account, and Ken and I were living out of suitcases for 18 months, and slapping him with an AVO to waste more valuable court time, it felt like a knife in my heart and it – yes. So yes. I’ve read the article.
403 In relation to the second broadcast and the second article, Ms Edwards’ evidence about how she felt when she read that article and saw that broadcast was as follows:
[MS CHRYSANTHOU:] How did you feel after you read that second article and watched that second broadcast?
[MS EDWARDS:] I collapsed in the bathroom. Couldn’t eat. I couldn’t sleep. I thought – I couldn’t believe it. I couldn’t believe they were hunting me. I couldn’t believe that they said that I failed to appear in court and that I was a no-show. As a barrister that I was a no-show and that I failed to appear and I was the protected person and it – it hurt me so much. That really, really hurt because I wasn’t supposed to be there, and it just – it just made me realise that I could not continue any longer, that it was over for me and my career was over and my life in Australia was over and I could not ever be a lawyer again.
404 Ms Edwards also became aware that many comments had been made on the website and various social media platforms which were associated with the Nine Network, Channel Nine or A Current Affair. I do not propose to refer to any of those comments. Suffice it to say that most of them were vacuous and puerile and many of them were misogynistic, grossly offensive and deprecating of Ms Edwards, including her appearance and character. Some of them appeared to focus on the fact that Ms Edwards was a barrister. Ms Edwards’ evidence was that the comments were “like torture” to her and that she burned and threw away her clothes, stopped eating, dyed her hair, took to wearing a beanie to disguise herself and was afraid to call Oscar by his name when she walked him. She even had suicidal thoughts. Her ability to work was affected because she could not sleep or eat, was afraid and her ability to concentrate was affected. She did not go into chambers for 10 months. She was embarrassed to see anyone in chambers. She sought and was eventually granted an extension of her readership.
405 Ms Edwards’ evidence concerning the effect that the publications and associated social media commentary had on her was not seriously challenged and was in any event largely corroborated by others. Mr Maconachie, for example, saw and spoke with Ms Edwards in the aftermath of the publications. He gave the following evidence of his observations about the effect that the publications had on Ms Edwards:
[MR OLSON:] In the period after the broadcasts, did you have any more discussions with Ms Edwards about the broadcasts?
[MR MACONACHIE:] We had lots of discussions. It’s difficult to isolate any particular, but, yes, we did.
[MR OLSON:] And did Ms Edwards tell you how she was faring in that period following the broadcasts?
[MR MACONACHIE:] In that period following, certainly, the second broadcast, she was fairly withdrawn. We still spoke a lot, but she was never coming into Chambers. Her mobile telephone was always turned off. If I wanted to speak to her, I would call and it would go to voice message and I would just not bother leaving a message. Gina would usually call me back some time later. I was – we would have conversations to the effect that I would say things like, “I know it’s difficult, but I think you should come back to Chambers”. She would say things to the effect that, “I can’t bring myself to go there. Every time I think of going to Chambers, I have a panic attack. I can’t believe Steve Marshall came there”. I would urge her gently to come back. I told her things to the effect that whilst it might be difficult, it’s important that she build on the traction she was gaining and, I suppose, I said things like, you know, “If you fall off a horse, you have to get back on”. I was – those conversations almost invariably led to Gina becoming very distressed. She would talk more quickly, more loudly. And she would say things to the effect that, “I simply cannot – I can’t even conceive of going back to Chambers at the moment. Especially after Steve Marshall went there.”
….
[MR OLSON:] You just mentioned that you had conversations with her about how she was feeling. Do you recall what she told you about her mental state in the period after the broadcasts?
[MR MACONACHIE:] Yes. She used to say things to the effect that, “I’m not coping. I haven’t been able to hold down food. I don’t sleep. Ken tells me that he’s worried he will have to take me to hospital.” She was losing weight. She was having nightmares about going to the park, nightmares about coming into chambers. She didn’t feel safe, she told me, when she walked Oscar. From what she was telling me, and from the observations I made about her demeanour when we spoke, from how her voice sounded and how quickly she was speaking, those sorts of things, I got the impression that she was a bit of a wreck.
406 In his evidence, Mr Flavell also described the effect that the publications had on Ms Edwards:
[MR CHRYSANTHOU:] And were you with Ms Edwards when she first watched it?
[MR FLAVELL:] Yes.
[MR CHRYSANTHOU:] And can you just describe to his Honour her reaction when she first watched that broadcast?
[MR FLAVELL:] A – a devasted person. She was just shocked at how she was being portrayed; the words that were being used. You know, she was very upset, so she wasn’t eating. So she was, yes, distressed.
[MR CHRYSANTHOU:] And did she come to read, to your knowledge, the articles that were associated with the broadcast?
[MR FLAVELL:] Yes. I think people, you know, it – thought they were doing the good thing, but people had, you know, basically sent the articles on to us.
[MR CHRYSANTHOU:] And did she tell you how she felt after looking at those?
[MR FLAVELL:] Sick. Sick to the stomach.
[MR CHRYSANTHOU:] And what about the second broadcast, were you with her when she first watched that?
[MR FLAVELL:] The same thing. I believe it wasn’t on the actual night. We avoided watching it on the actual night, but we saw it over the next, you know, few days.
[MR CHRYSANTHOU:] And what was her reaction to watching the second broadcast, your observation?
[MR FLAVELL:] The same – the same thing as before. I mean, it was just, you know “ ..... never going to leave me alone” and, you know, “How long is this going to go on for.” You know, this was a case that was due to be heard in court.
407 Mr Flavell also gave the following evidence about how Ms Edwards reacted to the fact that the articles concerning her remained on the website which was associated with the Nine Network, Channel Nine or A Current Affair:
[MR CHRYSANTHOU:] And had you observed over time how she’s reacted to the fact that the broadcast and the articles are still online?
[MR FLAVELL:] It’s – it’s pretty much destroyed her in many ways. She – she had just started her career as a barrister and, you know, part of that is obviously you, you know, have to advertise yourself to some degree by having your name, you know, out there, and if you were to Google her name, what comes up is – is not what we want to come up, which is Channel 9 broadcast. So, you know, that pretty much destroyed her starting her career as a barrister. We were – she was, to some extent, in hiding. She was – we were living at that time – we had abandoned our house in North Sydney because we knew that they knew where that was, so we moved to live with James and Chris, friends of ours. And we were living up in New – up in East Balmain, but Gina was very scared to go out the house. She kept thinking she would see people. She would hide behind cars or hide behind the bushes because she thought she was going to be filmed again. She threatened suicide. She, on a number of occasions, told me she was just going to fill her, you know, pockets with rocks and just walk into the harbour.
408 It is unnecessary to detail any further evidence concerning the hurt and distress that Ms Edwards suffered as a direct result of the publications and the social media comments that accompanied them. The hurt and distress the publications caused was undoubtedly significant, and understandably so.
409 In their closing submissions, the Publishers’ submitted that Ms Edwards’ evidence concerning her hurt and distress was exaggerated. There are at least two difficulties with that submission. First, while, as noted earlier, when giving evidence Ms Edwards was at times prone to a degree of exaggeration, embellishment and even hyperbole, I accept her evidence concerning the hurt she suffered. The genuineness of her evidence in that regard was apparent from her demeanour and emotional response when giving evidence about the effect that the publications had on her. Second, it was never put to Ms Edwards that her evidence concerning her hurt and distress was exaggerated. As already noted, her evidence in respect of her hurt and humiliation was largely unchallenged.
Was Ms Edwards’ hurt aggravated by the Publishers’ conduct?
410 As appears to be common in most defamation cases, at least in my experience, Ms Edwards provided a lengthy and detailed list of particulars in support of her claim in respect of aggravated damages. The particulars included: Mr Marshall’s conduct in ambushing Ms Edwards with a camera crew; the false statements made by Mr Marshall to the effect that it was a coincidence that he and the camera crew were present when Mr Gillespie confronted Ms Edwards in the park and took possession of Oscar; Mr Marshall’s offensive ridicule of Ms Edwards throughout the broadcasts; the Publishers’ conduct in editing their footage in a selective and misleading way in order to denigrate Ms Edwards; continuing to film Ms Edwards in the park in circumstances where she was plainly distressed and did not consent to being filmed; the Publishers’ failure to test the veracity of the allegations made against Ms Edwards; the deliberate reference to Ms Edwards’ profession with the intention of damaging her professional reputation; Mr Marshall’s attendance at Ms Edwards’ chambers and home, which was intended to humiliate and harass her; the making of the improper allegation that Ms Edwards failed to appear in court in respect of the AVO in circumstances where the AVO was applied for by the police and Ms Edwards was not required to appear; the Publishers’ failure to apologise to Ms Edwards; the Publishers’ conduct in continuing to publish the articles and broadcasts; the fact that the Publishers ignored the concerns notice; the Publishers’ failure to delete the negative social media posts about Ms Edwards; the Publishers’ “campaign of denigration against [Ms] Edwards”; the failure of the Publishers to report the fact that the AVO applied for by the police on the complaint of Ms Edwards was effectively granted; and the publication of a further broadcast and further article concerning Ms Edwards in 2021.
411 During the trial, Ms Edwards applied to add further particulars in respect of her claim for aggravated damages. Some of the new particulars concerned incidents or events that occurred prior to the publication of the first broadcast. Ms Edwards also sought to adduce evidence in respect of some of those events, including evidence of a video apparently taken by Mr Marshall on his phone as he followed Mr Flavell through the streets of Kirribilli on 18 May 2021 or thereabouts. The tender of that evidence raised the question whether conduct by a publisher prior to the alleged defamatory publication could constitute conduct that would justify an award of aggravated damages. Ms Edwards maintained that pre-publication conduct could aggravate damages, whereas the Publishers contended that it could not.
412 The additional particulars of conduct which occurred prior to the publication that Ms Edwards sought to rely on as aggravating conduct were: the fact that the Publishers “connived” to obtain Ms Edwards’ residential address by means of Mr Gillespie “stalking” Mr Flavell home from work on 17 May 2021; the Publishers’ conduct on 18 May 2021 in “staking out” the home of Ms Roach in order to obtain footage of Ms Edwards, Mr Flavell and Oscar for use in the first broadcast; Mr Marshall’s conduct on 18 May 2021 in following Mr Flavell through Kirribilli for approximately 20 minutes while filming him and badgering him with questions; the Publishers’ conduct on 19 May 2021 in colluding with Mr Gillespie to lie in wait for Ms Edwards at Milsons Park.
413 I do not propose to finally determine the legal issue as to whether the conduct of a publisher which occurred prior to the alleged defamatory publication can justify an award of aggravated damages. That is primarily because, as unsatisfactory or untoward as some of the pre-publication conduct of the Publishers may have been, I am not in any event satisfied that it relevantly or materially aggravated Ms Edwards’ hurt flowing from the publications. It appears that Ms Edwards was largely unaware of the pre-publication conduct, at least prior to the trial, and at least insofar as it did not become apparent from the first broadcast in any event. There was, for example, no evidence that Ms Edwards was at any relevant time aware of the Publishers’ conduct in “staking out” Ms Roach’s home and no evidence that her knowledge of that fact aggravated her hurt and distress.
414 I should nevertheless indicate that my inclination is that, subject to one qualification, pre-publication conduct by a publisher is generally not capable of justifying aggravated damages. In Praed v Graham (1889) 24 QBD 53, Lord Esher MR (Lindley and Lopes LJJ agreeing) said that “[t]he jury in assessing damages are entitled to look at the whole of the defendant from the time the libel was published down to the time they give their verdict” (emphasis added). That formulation of the test was referred to with approval by Lord Hailsham of St Marylebone L.C. in Broome v Cassell at 1071-1072 and the plurality in Triggell v Pheeney at 513. Numerous cases since have expressed the relevant principle in those terms. My attention was not drawn to any case in which it was said, at least expressly, that pre-publication conduct by a publisher could justify an award of aggravated damages.
415 The qualification is that, in some circumstances, pre-publication conduct might be relevant to an award of aggravated damages where there is a relevant nexus between that conduct and the “circumstances of publication of the defamatory matter”, to pick up the words used in s 35(2) of the Defamation Act (in the form it was in at the time of publication in this matter). For example, as noted earlier, some pre-publication conduct, such as a failure to investigate defamatory allegations before publication, may justify an award of damages, but that would appear to be because there is such a close nexus between that conduct and the publication in question that it could be said to form part of the circumstances of the publication. The same could be said in respect of the editing of a broadcast in such a way that the broadcast was likely to increase the injury to the subject’s reputation. The conduct involved in editing the broadcast may have occurred prior to the publication, but the nexus between that conduct and the publication itself is generally likely to be such that the conduct could be said to form part of the circumstances of the publication.
416 I am unable to see how it could be said that the pre-publication conduct upon which Ms Edwards sought to rely could be said to form part of the “circumstances of publication of the defamatory matter”. There was, for example, no relevant nexus between the alleged “staking out” of Ms Roach’s home and the first broadcast such that it could be said that it formed part of the circumstances of the publication. The only pre-publication conduct which might be said to have a sufficient nexus to the circumstances of the publication is Mr Marshall’s conduct in following and badgering Mr Flavell on 18 May 2021. That is because footage of part of that incident, albeit a very small part, appeared in the first broadcast.
417 There is another and perhaps more compelling reason why it is unnecessary for me to finally decide whether the pre-publication conduct by the Publishers was capable of sounding in aggravated damages. That is because I am in any event satisfied that the Publishers’ conduct from the time of the publication of the publications in question is sufficient to justify aggravated damages in Ms Edwards’ case.
418 I do not propose to address every particular relied on by Ms Edwards, many of which were not really the subject of any, or any detailed, written or oral submissions. It is unnecessary to do so. It suffices to record that aggravated damages are warranted on the following bases.
419 The extravagant, excessive and sensationalist nature of the publications would alone warrant aggravated damages. Accepting, for the sake of argument, that the dispute between Mr Gillespie and Ms Edwards was somehow newsworthy, or involved a matter of public interest worthy of a national current affairs program, the broadcasts and accompanying articles were produced and edited in such a sensational way as to unnecessarily and unjustifiably deprecate and humiliate Ms Edwards. It was wholly unnecessary and unjustifiable for Mr Marshall and his camera crew to confront Ms Edwards in the park, let alone with Mr Gillespie in tow, and then chase her through the park. That was no doubt intended to, and did, produce a sensational scene. Not surprisingly, Ms Edwards was surprised and distressed by the confrontation, particularly when Mr Gillespie took possession of Oscar, yet Mr Marshall and his camera crew continued to pursue and harass her. Footage of those scenes, which plainly portrayed Ms Edwards in a negative and demeaning way, featured prominently in both broadcasts. The selective use and repetition of that footage portrayed Ms Edwards as being slightly hysterical, if not unhinged.
420 It should also be emphasised, in this context, that Mr Marshall’s suggestion, in the first broadcast that he “bumped into” Mr Flavell “while he and Oscar were stretching their legs” and then just happened to later spot Ms Edwards in the park, was fanciful and absurd. The confrontation was plainly planned and produced the desired results. To make matters worse, Mr Marshall’s pun-laden and sarcastic voice-over and commentary unnecessarily denigrated and ridiculed Ms Edwards. The juxtaposition of the references to Ms Edwards as a canine carer or dog-sitter and a barrister was unnecessary and plainly had the capacity to damage Ms Edwards’ professional reputation.
421 The second broadcast was not much better. It replayed much of the demeaning footage from the confrontation in the park which had featured in the first broadcast. Exactly why Mr Marshall, with camera crew in tow, considered it necessary or appropriate to attend Ms Edwards’ chambers is also difficult to fathom, particularly in circumstances where, despite having received emails from Ms Edwards, Mr Marshall had made no effort whatsoever to contact her or her barrister, as she had suggested, to get her side of the story. The fact that Ms Edwards was a barrister had little, if anything, to do with the dispute over Oscar. It is difficult to avoid the conclusion that the visit to Ms Edwards’ chambers and the inclusion of that footage in the broadcast was intended to denigrate and humiliate Ms Edwards. Even if that was not intended, which is at best doubtful, it must have been known that it was likely to have that effect.
422 It is true, as the Publishers submitted, that this type of “foot in the door” sensationalist journalism is not necessarily improper. There would also appear to be some public appetite for it. Nevertheless, publishers run the risk that if they employ those tactics or journalistic methods, they may potentially face aggravated damages if such publications are also found to carry defamatory allegations or imputations.
423 I am satisfied that the sensationalist nature of the publications and their needlessly denigrating and demeaning tenor and tone towards Ms Edwards aggravated Ms Edwards’ hurt and suffering. The publications, in that respect, could be said to be relevantly improper and unjustifiable.
424 I am also satisfied that the publications in question recklessly inflicted damage on Ms Edwards in circumstances where the Publishers made no effort to independently investigate the allegations before confronting Ms Edwards in the park. The Publishers had only spoken with Mr Gillespie, who was the source of the allegations, and had not contacted Ms Edwards to get her side of the story. The Publishers effectively conceded as much. To make matters worse, the day after the confrontation in the park, Ms Edwards sent an email to Channel Nine which, in effect, requested A Current Affair to contact her barrister, Mr Hodgson, who would give a statement or answer questions about the case. Ms Edwards received no reply to that email. Mr Marshall made no attempt to contact Ms Edwards or Mr Hodgson before the first broadcast went to air.
425 There is also no indication that Mr Marshall made any attempt to contact Ms Edwards or Mr Hodgson between the time of the first broadcast and first article and the publication of the second broadcast and second article, or that he took any steps to investigate the circumstances in which an application had been made for an AVO against Mr Gillespie, or whether Ms Edwards was expected to appear in court on the return of that application. Had he taken any steps to investigate that issue, Mr Marshall was likely to have ascertained that the police made the application on Ms Edwards’ behalf and that she was not in fact obliged or even expected to appear in court on its return.
426 I am satisfied that the Publishers’ blind acceptance of Mr Gillespie’s version of events and their unwillingness to obtain Ms Edwards’ version of events, other than in the context of the surprise confrontation of Ms Edwards in the park, aggravated the hurt and distress inflicted on Ms Edwards. The Publishers’ conduct in that regard was relevantly improper and unjustifiable.
427 Finally, I am satisfied that Ms Edwards’ hurt and distress was aggravated by the fact that the Publishers refused to remove the offending broadcasts and articles from their website and, more significantly, failed to take any steps to remove the thousands of comments which members of the public had posted to the website and associated social media platforms. It may be accepted that the Publishers were not compelled to remove the offending publications from their website. It does not follow, however, that their failure or refusal to do so cannot be said to have aggravated Ms Edwards’ hurt and suffering. The comments posted on the Publishers’ website and social media platforms were obviously likely to aggravate Ms Edwards’ hurt and suffering. I am unable in all the circumstances to see any possible justification for the Publishers’ failure or refusal to remove those comments, even if the Publishers’ were determined to defend the publications in question. As has already been noted, many of the comments were gratuitously and needlessly offensive, vile and unjustifiable.
428 It remains to briefly address two additional particulars which Ms Edwards sought to rely on in support of her claim for aggravated damages.
429 First, Ms Edwards claimed aggravated damages on the basis of the “destruction of camera footage despite being on notice from [her] on 19 May 2021 that she had a barrister and they [the Publishers] should contact him”. That allegation, which was really only raised for the first time in the course of the trial, may be disposed of shortly. I am not persuaded that there is any cogent or reliable evidence capable of supporting the serious allegation that the Publishers had destroyed any relevant camera footage.
430 Second, Ms Edwards contended that the Publishers’ conduct of their defence was a factor which aggravated damages. She submitted, in that context, that the Publishers had denied that the publications conveyed any of the imputations pleaded by her and denied that the imputations were defamatory, even those concerning the stealing of Oscar. Those denials were said to be untenable and unjustifiable. She also submitted that the Publishers’ justification and contextual truth defences were improper and unjustifiable. The contextual truth defence was said to be clearly hopeless.
431 There is no doubt that in some circumstances the conduct of a defence by a publisher may be found to be an aggravating factor: see for example Barilaro v Google LLC [2022] FCA 650 at [352]-[363]; Kumova v Davison (No 2) [2023] FCA 1 at [85]-[86]; Duma v Fairfax Media Publications Pty Ltd (No 3) [2023] FCA 47.
432 I would also readily agree that the conduct of this litigation was far from ideal.
433 Among other things, the Publishers failed, without reasonable excuse or justification, to file their defence within time: see Edwards v Nine Network Australia Pty Limited [2022] FCA 509. The Publishers also applied, at a very late stage of the proceedings, for leave to amend and significantly expand their defence, an application which was only partially successful: Edwards v Nine Network Australia Pty Ltd (No 2) [2022] FCA 1332. I also agree that the Publishers’ refusal to admit that any of the imputations were defamatory bordered on the absurd, though that element of their defence was given short shrift and wasted little if any time. I would also tend to agree that the Publishers’ contextual truth defence was very weak, though I would not necessarily describe it as clearly hopeless. I would not, however, characterise the justification defence in respect of the stealing allegations as being improper or unjustifiable. It was, in my view, clearly arguable.
434 Beyond those matters, the proceeding was hard fought, though that observation applies to both sides. As is unfortunately the case in many defamation cases, both sides were equally persistent, uncompromising and unwilling to give an inch. As has already been observed, both sides tendered, or sought to tender, very large numbers of documents, and otherwise vigorously contested many factual issues which on just about any view were tangential or of marginal relevance. To give but one example, Ms Edwards adduced documentary and oral evidence, and cross-examined witnesses, about whether Oscar had been mistreated or not properly cared for in Wingello because his fur had burs in it, or he was not being fed properly, or spent time outside in the yard and was therefore said to be at risk of injury. The suggestion appeared to be that he had therefore been abandoned. The Publishers responded to that evidence by adducing, or attempting to adduce, evidence concerning Oscar’s treatment at Wingello. I effectively refused to allow them to adduce expert evidence from a veterinarian on that topic. Ultimately Ms Edwards abandoned any suggestion that Oscar had been mistreated at Wingello.
435 While the conduct of this litigation was far from ideal, I am not, in all the circumstances, satisfied that the Publishers conduct of their defence was unjustifiable, improper or lacking in bona fides such as warrant an award of aggravated damages.
436 Putting the conduct of the litigation to one side, for the reasons I have given I am otherwise satisfied that Ms Edwards’ hurt and humiliation arising from the defamatory publications was aggravated by the Publishers’ conduct and the circumstances of publication.
Mitigation or reduction of damages
437 The issue of mitigation or reduction of damages in this case, put simply, is whether the largely uncontested evidence that Ms Edwards obtained possession of Oscar from Ms Angeli and Mr Fidler, and ultimately from Mr Gillespie, by deceit or deception, is relevant to the assessment of damages payable to Ms Edwards. In particular, can and should that evidence, and the Court’s findings concerning it, reduce the compensatory damages that Ms Edwards should receive for defamation. The evidence concerning Ms Edwards’ deceit was properly before the Court because it was relevant to the Publishers’ justification defence in respect of the two imputations concerning the stealing of Oscar. While the Publishers’ justification defence ultimately failed, it does not follow that the evidence concerning Ms Edwards’ deceit may not be relevant to the assessment of damages.
438 The relevant principles were simply and concisely explained as follows by Neill J in Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 120:
But a defendant is also entitled to rely in mitigation of damages on any other evidence which was properly before the court and Jury. This other evidence can include evidence which has been primarily directed to, for example, a plea of justification or fair comment.
…
There may be many cases, however, where a defendant who puts forward a defence of justification will be unable to prove sufficient facts to establish the defence at common law … Nevertheless the defendant may be able to rely on such facts as he has proved to reduce the damages, perhaps almost to vanishing point. Thus a defence of partial justification, though it may not prevent the plaintiff from succeeding on the issue of liability, may be of great importance on the issue of damages.
439 To be relevant to an assessment of damages, evidence of misconduct or misbehaviour by the applicant which is before the court because it was adduced, for example, in the context of a justification defence that was not ultimately made out, must be relevant to an assessment of the applicant’s reputation in the “sector” relevant to the defamatory imputations. As Lord Denning neatly explained this otherwise rather curious principle in Speidel at 1140, “if the libel imputes theft, the relevant sector is [the applicant’s] character for honesty, not his character as a motorist”. Thus, if the defamatory publication imputes theft and therefore bears on the applicant’s reputation for honesty, evidence that may bear on the applicant’s reputation as a motorist would be irrelevant. It therefore could not mitigate or reduce the damages that would otherwise be appropriate.
440 This principle must, however, be approached with a “modicum of common sense” and “[q]uestions of degree are involved”: Rush at [690]. In my view, it is not appropriate to minutely dissect and parse the imputation in question so as to identify the narrowest possible sector, so that it can then be submitted that certain evidence of bad reputation is irrelevant because it does not fall within that narrowly defined sector. Nor should the evidence of bad reputation be analysed in that way. As Fitzgerald AJA noted in Australian Broadcasting Corporation v McBride [2001] NSWCA 322; (2001) 53 NSWLR 430 at [106], the imprecision and difficulties that may arise in respect of the “same sector” test evaporate once it is understood that the “ultimate test is whether the facts, matters and circumstances affecting a plaintiff’s reputation which a defendant seeks to rely on in mitigation could rationally diminish the harm to the plaintiff’s reputation from the defamatory imputation”. I respectfully agree. The issue should be approached with that ultimate test in mind rather than by some minute and artificial dissection of the applicant’s reputation.
441 As was unfortunately often the case in this matter, there was a vast chasm between the parties’ submissions in respect of the mitigation or reduction of damages.
442 The Publishers submitted that the evidence that established that Ms Edwards engaged in deceptive and dishonest conduct to obtain possession of Oscar would “have a devastating impact” and should “dramatically” reduce the damages to be awarded to Ms Edwards. They submitted that, given that Ms Edwards’ primary complaint appeared to be the damage caused to her reputation as a barrister, the evidence as to how she came to take possession of Oscar was relevant to an assessment of damages because the Court would be “compensating a lawyer who is prepared to lie and lie in a calculated fashion”. In the Publishers’ submission, that was an “element of her character that cannot be ignored and an element of her character which ought not be rewarded”.
443 Ms Edwards’ submission concerning the relevance or weight to be given to the evidence relating to her deceptive conduct in respect of the assessment of damages was at the other extreme. She initially appeared to suggest that the evidence concerning her deceptive conduct was irrelevant because it had nothing to do with her “professional reputation as a barrister”. Rather, it involved a “personal issue”. That appeared to be a suggestion that the evidence concerning Ms Edwards’ deceptive conduct related to a different sector of her reputation. If that was the purport of the submission, it is rejected. In any event, Ms Edwards ultimately appeared to concede that the evidence was relevant to mitigation of damages and was “something to take into account” in mitigation damages, but should not result in any “obliteration” of her damages. Ms Edwards also submitted that the evidence was of limited relevance, or should be given little, if any, weight, because the deceptive conduct occurred in the context of a claim of right.
444 In my view, the evidence concerning the circumstances in which Ms Edwards came to possess and retain possession of Oscar, including the deceptive means she employed to obtain the dog, is relevant to the assessment of damages. It tends to diminish the harm to Ms Edwards’ reputation which was otherwise caused by the defamatory imputations. I must not assess damages in a vacuum or “in blinkers, in ignorance of background context directly relevant to the damage which the claimant claims has been caused by the defamatory publication”: Burstein v Times Newspapers Ltd [2000] EWCA Civ 338; [2001] 1 WLR 579 (May LJ, with whom Sir Christopher Slade and Aldous LJ agreed); see also Turner v News Group Newspapers Ltd [2006] 1 WLR 3469 at [56] (Keene LJ, with whom Moses LJ and Pill LJ agreed) and [88] (Moses LJ). The evidence and findings concerning Ms Edwards’ deceit is in my view directly relevant to the damage which she claims has been caused by the defamatory publications.
445 The evidence concerning the deceptive means employed by Ms Edwards involves the same sector of Ms Edwards reputation as the sector the subject of at least some of the imputations. The most serious of the imputations are those that conveyed that Ms Edwards, a barrister, was a thief who stole Oscar. The imputation was not that Ms Edwards stole the dog in the course of her practice as a barrister. It was that she stole the dog and was a barrister. The relevant sector of Ms Edwards’ reputation in my view is her reputation for honesty and integrity, or perhaps her reputation as a person who is a barrister and who is therefore generally considered to be honest. The evidence concerning the deceptive means by which Ms Edwards obtained possession of Oscar is relevant to her reputation in that sector because it bears on the question of her reputation for honesty and integrity, or her reputation as a person who is a barrister and therefore is considered to be honest. The fact that she was prepared to employ dishonest and deceptive means to obtain possession of Oscar bears on the assessment of her reputation in that respect. It rationally diminishes the harm to her reputation arising from the defamatory imputations, particularly those concerning the stealing of Oscar.
446 It should perhaps be noted in this context that the evidence concerning Ms Edwards’ reputation, including her professional reputation, did not include a great deal of evidence that Ms Edwards’ reputation included a reputation for honesty and integrity. The only witness who gave evidence concerning Ms Edwards’ reputation that said anything about Ms Edwards’ reputation for honesty was Mr Searson, who said that she had a reputation of being “forthright and truthful” and someone who you could trust. It nevertheless can perhaps be inferred that Ms Edwards had a reputation for honesty and integrity by virtue of the fact that she had been admitted as a barrister.
447 As for the weight to be given to the evidence concerning Ms Edwards’ employment of deceptive means, I agree with Ms Edwards’ submission that the evidence mitigates, but does not “obliterate” or “drastically” reduce the damages that should appropriately be awarded in respect of the damage to Ms Edwards’ reputation. I do not, however, agree with Ms Edwards’ submission that it should be given little weight because the deceptive means were employed in the context of Ms Edwards’ exercise of her claim of right, based on the advice she had received from Mr Hodgson. The problem with that submission is that it ignores the fact that Mr Hodgson did not give Ms Edwards any advice as to how she could or should obtain possession of Oscar and did not, as Ms Edwards claimed in her evidence, advise that she should “contrive” a way to obtain possession. For the reasons given earlier, I reject the apparent attempt by Ms Edwards, in her evidence, to justify her deceit by claiming, in effect, that Mr Hodgson advised that she could or should engage in such conduct.
448 It is, in all the circumstances, difficult to imagine that the fact that Ms Edwards used deceptive means to obtain Oscar would not materially affect, in an adverse way, what others thought of her, or would not lower her reputation in the estimation of others. That is the case even though Ms Edwards may have believed, based on the advice she received from Mr Hodgson, that she had superior rights of possession of Oscar to Ms Angeli, Mr Fidler and Mr Gillespie. While she may have believed that she had superior rights to possession, she had no genuine or honest belief that she was entitled to, or justified in, employing dishonest and deceptive means to obtain possession of Oscar from Ms Angeli, Mr Fidler and Mr Gillespie. She could, of course, have chosen to commence proceedings, based on Mr Hodgson’s advice, to secure possession of Oscar. She chose instead to obtain him by deceit.
449 In all the circumstances, I propose to take into account and give some weight to the evidence concerning Ms Edwards’ deceptive conduct in determining Ms Edwards’ reputation and the damage caused to it by the defamatory imputations. I am not required to, nor do I propose to, quantify the extent to I have reduced the award of damages to reflect that finding.
What is the appropriate award of damages in Ms Edwards’ case?
450 The assessment of compensatory damages in a defamation case is not a scientific or mathematical exercise. There is no single right answer. The process involves considering and synthesising a range of factors.
451 In assessing the appropriate award of compensatory damages in Ms Edwards’ case I have, in short summary, taken into account the following considerations which have been discussed at length earlier in these reasons.
452 First, the defamatory imputations carried by the publications, in particular those that imputed that Ms Edwards had stolen Oscar, were serious and had the capacity to significantly damage Ms Edwards’ reputation.
453 Second, the publications were published to and viewed or read, as the case may be, by many people. The broadcasts were segments on a well-known national current affairs program broadcast by one of the major television networks. They were both viewed by over a million people. The articles were associated with that program and were also viewed by many people.
454 Third, the sum to be awarded to Ms Edwards must be sufficient to signal to the public the vindication of her reputation.
455 Fourth, the defamatory publications undoubtedly caused some damage to Ms Edwards’ reputation, including her professional reputation as a fledgling barrister, though the direct evidence concerning the impact on her reputation was far from overwhelming. As I explained earlier, I have also taken into account, in this context, the evidence concerning Ms Edwards’ use of deceptive means to take possession of Oscar which directly bears on the damage caused to Ms Edwards’ reputation for honesty and integrity, both generally and as a barrister. The fact that Ms Edwards acted in that way rationally diminishes the harm to her reputation arising from the defamatory imputations.
456 Fifth, there could be no doubt that the defamatory publications caused Ms Edwards considerable hurt and distress. The effect on Ms Edwards was quite devastating. It is unnecessary to repeat what I said earlier in that regard. Moreover, the hurt and distress suffered by Ms Edwards from the defamatory publications was aggravated by the Publishers’ conduct, including the sensationalist and unnecessarily extravagant and disparaging nature of the publications, the Publishers’ recklessness in failing to make any attempt to investigate or independently verify Mr Gillespie’s allegations and in ignoring Ms Edwards’ entreaties in that regard, and their refusal or failure to take down the publications, or even the offensive comments that had been posted on their social media platforms.
457 Sixth, overall I must ensure that there is an appropriate and rational relationship between the harm sustained by Ms Edwards and the amount of damages awarded.
458 In her submissions, Ms Edwards’ referred to damages awards in cases that were said to be comparable to this case. I do not propose to analyse those cases, essentially because I do not consider them to be comparable or of any real assistance. Most of them involved public figures or facts and circumstances which differed markedly from the facts and circumstances of this case. I have, however, had regard to the general trend or range of assessments of damages in those cases, as well as other cases involving mass media publications and serious imputations concerning an applicant’s honesty and integrity.
459 Having regard to all the relevant circumstances, including the general purposes of compensatory damages for defamation, I consider that an appropriate award of compensatory damages, including aggravated damages, is $150,000.
460 Ms Edwards’ originating application includes a claim for interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth). The parties did not make any substantive submissions in respect of interest. Indeed, it appeared to be agreed that I should hear from the parties further in respect of that issue. That would appear to be appropriate, particularly as I must in any event hear from the parties further in respect of the other relief sought by Ms Edwards. I also do not propose to do my own interest calculation. I should note, however, that at this point at least I cannot see any reason why Ms Edwards should not be awarded interest up to judgment. I would in those circumstances encourage the parties to confer and endeavour to reach an agreement concerning prejudgment interest.
461 In addition to seeking damages, Mr Edwards sought orders requiring the Publishers to permanently remove the publications in question, including any “republications” and “any matter to the same effect (within the control of the [Publishers] or any of them) from the internet”. Ms Edwards also sought an order that the Publishers be “permanently restrained from publishing any matter that carries any defamatory imputation (or imputation that does not differ in substance) the Court finds and of the matters complained of carry”.
462 The parties agreed that I should hear further submissions from them in respect of the injunctive relief sought by Ms Edwards. I will make orders facilitating a further hearing in respect of the injunctive relief sought by Ms Edwards should that be required. I would, however, again encourage the parties to confer and endeavour to reach an agreement concerning this aspect of the matter.
463 Judgment will be entered in favour of Ms Edwards in the sum of $150,000, together with such prejudgment interest (if any) as may be agreed, or which I consider appropriate having heard submissions from the parties in respect of that issue. I will not, however, enter judgment until I hear further from the parties concerning prejudgment interest and, more significantly, the other relief sought by Ms Edwards. It will also be necessary for me to hear further from the parties in respect of costs.
464 I will make orders facilitating a further hearing, if necessary, in respect of all outstanding issues and the making of final orders.
I certify that the preceding four hundred and sixty-four (464) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. |
Associate:
