The initial dispute
On 4 October 2014, Carrie ‘Karen’ Curtis (then Barlow) attended the Albion Vet practice with her dog, who required treatment after being attacked by two other dogs. Her dog was provided treatment by Albion Vet, including sedation, pain relief, cleaning and suturing wounds and dispensing of post-operative antibiotics. She was charged $427 for these services and was provided with a tax invoice for the fees and charges.
Not happy with the cost of the treatment, she subsequently emailed through some queries about the treatment, and complained about the cost of $32.50 for the antibiotics, alleging a 350% markup. She later spoke with the manager about it for 16 minutes, and informed the manager that she no longer wished to have her pets treated by the Albion Vet. An appointment was made for her to collect her dog’s records on 15 October 2014. At that appointment, she also received a letter in an envelope from Allen O’Grady, the director of the Albion Vet advising her that her dog would no longer be offered after hours emergency or discounted hydrobath services by their practice.
The online campaign
Upset by O’Grady’s letter, and unable to speak with O’Grady’s manager because such a person did not exist, she then took to Twitter, TrueLocal, the Albion Vet’s Facebook page and her own Facebook page to ventilate her various complaints.
On Twitter, she published the following words:
“Shame on you #albionvet – 400% mark-up on #pet drugs after #dogattack animalpractice.com.au #BrisbaneHomePet SamfordPetRes @VPI”
On Albion Vet’s True Local webpage, she published the following words:
“Disgusting! This was my regular vet until my dog was attacked and I was grossly over-charged there. They truly took advantage of a distressed pet owner, charging me 400% mark-up on antibiotics and a range of other pharmaceuticals. I paid the bill, but when I (nicely) queried it a few days later, they issued me with a letter saying that my dog was not welcome there if he ever needed emergency treatment. And yes, the vet is a very grumpy who should not be dealing with people or animals.”
On her personal Facebook webpage, she published the following words:
“ATTENTION Brisbane dog owners: Beware of the Albion Vet http://www.animalpractice.com.au – I was grossly overcharged there after my beagle Valentine was attacked by two vicious and unrestrained dogs on 4 Oct 2014. I was extremely distressed at the time and paid the bill (which the owners of the vicious dogs left me with). A few days later, I (nicely) queried the 400% mark-up on his antibiotics. The vet responded with this “lovely” letter refusing him emergency treatment if he needs it in future. Please share so that others can avoid being taken advantage of. I understand that the same owner runs a practice in Eatons Hill as well.”
On another Facebook webpage, she published the following words:
“I had a terrible experience at the Albion Vet. I had requested my pet’s records (to take my business elsewhere) after receiving an unsatisfactory response from them when I queried a 350% (approx) mark-up on antibiotics and other pharmaceuticals after a dog attack. The vet responded, advising that this mark-up is justified when you factor in postage, dispensing fee and the fact that I would have otherwise had to wait five days for the pharmaceuticals to arrive in the mail. Regardless, I feel that this letter refusing my dog emergency treatment in future was unprofessional and inflammatory. After paying $427 for my dog to receive two very simple stitches (during normal operating hours), I would have expected to receive a letter thanking me for my business and inviting me to return at any time. I posted a photo of their letter on my Facebook page and then I received a letter from their lawyer a week later threatening me with defamation! I understand that the same owner runs a practice in Eatons Hill as well.”
On the Albion Vet’s Facebook webpage, she published the following words:
“ATTENTION Brisbane dog owners: Beware of the Albion Vet. I was grossly overcharged there after my beagle Valentine was attacked by two vicious and unrestrained dogs on 4 Oct 2014. I was extremely distressed at the time and paid the bill (which the owners of the vicious dogs left me with). A few days later, I (nicely) queried the 400% mark-up on his antibiotics. The vet responded with this “lovely” letter refusing him emergency treatment if he needs it in future. Please share so that others can avoid being taken advantage of. I understand that the same owner runs a practice in Eatons Hill as well.”
Some of these posts were later amended or taken down.
Because Ms Curtis declined to give any apology and did not agree to pay any damages or legal costs, the Albion Vet and Mr O’Grady commenced court proceedings against her for defamation, alleging that the above posts contained defamatory meanings, including the following:
– the Albion Vet grossly overcharges its clients, engages in unfair and unreasonable business practices, takes advantage of its clients and “should be avoided”; and
– Mr O’ Grady was unprofessional, petty, uncaring, not a nice person, and lacks morals and compassion, among other things.
Ms Curtis admitted most of these defamatory meanings were conveyed as alleged. Amazingly however she denied that they were defamatory. She also contended that the defences of truth, honest opinion and fair comment applied, and therefore she was not liable in defamation for the above publications.
What is defamatory
A plaintiff is said to have been defamed if a publication causes the reasonable person to think less of them: Reader’s Digest Services Pty Ltd v Lamb  HCA 4.
In Random House Australia Pty Ltd v Abbott  FCA 1538, Beaumont J stated:
The test for what may be defamatory at common law is well established. A publication, without justification or lawful excuse, exposing a person to hatred, contempt or ridicule, calculated to injure that person’s reputation, is a libel. But this is not to be taken as an exhaustive statement. A person may be defamed by an imputation of a disability in the performance of the functions of his or her office, although the imputation does not expose him or her to hatred, contempt or ridicule. A false statement about a person to his or her discredit is defamatory. Thus to attribute to a person a want of capacity as the holder of an office will be defamatory. The mere imputation of a lack of ability to discharge the duties of that office is sufficient. It is not necessary that there should be an imputation of immoral or disgraceful conduct (per Brennan J in John Fairfax v Punch  FCA 100; (1980) 31 ALR 624 at 632 – 633 citing Lord Herschell in Alexander v Jenkins  1 QB 797 at 800). Thus, the substantive legal issue here may be expressed as whether the material complained of was defamatory of the plaintiffs in that it was to his or her “discredit … [tended] to lower him [or her] in the estimation of others … to expose him [or her] to hatred, contempt or ridicule, or to injure his [or her] reputation in his [or her] trade or profession” (see Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 per Gaudron and Gummow JJ at 545 quoting Gatley on Libel and Slander, 8th ed. (1981), par 31)”
To be defamatory, the matter must injure the plaintiff’s reputation by lowering them in the estimation of others, exposing them to hatred, contempt or ridicule or causing them to be shunned or avoided.
Defamatory meaning can arise from the natural and ordinary meaning or true innuendo of the matter. True innuendo refers to matter which is defamatory as a result of an audience’s knowledge of certain extrinsic facts.
The defence of truth
Section 25 of the Defamation Act 2005 provides that:
“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.”
The defence of honest opinion
Section 31(1)-(3) of the Defamation Act 2005 provides that it is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter was an expression of opinion of the defendant, an employee or agent of the defendant or another person rather than a statement of fact, and
(b) the opinion related to a matter of public interest, and
(c) the opinion is based on proper material.
Section 31(4) of the Defamation Act 2005 says that a defence under this section is only defeated if the opinion was not honestly held by the defendant at the time the defamatory matter was published, or if the defendant did not believe the opinion was honestly held by the person who expressed it.
Section 31(5) of the Defamation Act 2005 says that ” proper material” means material that:
(a) is substantially true, or
(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or
(c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.
In addition, Section 31(5) of the Defamation Act 2005 provides that “An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material”.
Sheridan DCJ found that the proven imputations alleged are defamatory in that they would have a tendency to lower the reputations of the company and Mr O’Grady in the eyes of the ordinary reasonable reader.
The defence of truth
In respect of the defence of truth, Sheridan DCJ found that the recollection of the manager in relation to her telephone conversation with Curtis was more reliable, having regard to the manager’s typed notes after the conversation, her better recollection and Curtis’s inaccurate Facebook post which referred to a law degree she did not in fact hold. Sheridan DCJ also accepted the evidence of the vet who performed the treatment that the charges were fair and reasonable. The alleged 400% mark-up was untrue. Importantly, no evidence was adduced by Ms Curtis as to the cost of running a vet practice, how those costs are or should reasonably be recovered by charges for the services offered or what might be a reasonable mark-up for pharmaceuticals. For these reasons the truth defence failed.
The defence of honest opinion
In respect of the defence of honest opinion, Sheridan DCJ inter alia found that:
– Because the claims of a “400% mark-up” had been found to be not true, they were not based on proper material.
– As the claims that Mr O’Grady should not deal with people or animals and was not personable or caring was on her own admission based on little more than his failure to greet her, they were not based on proper material.
– the cost of the antibiotic was $32.50 in a bill totalling $427, a small part of the bill. Claims of overcharging were therefore not based on proper material.
– statements about Mr O’Grady’s letter being “pretty petty” and relating to the refusal of emergency treatment were therefore not based on proper material because they did not reflect the words in that letter.
For these reasons, the honest opinion defence failed.
The defence of fair comment
In respect of the defence of fair comment, Sheridan DCJ noted that this Defence was not pursued at trial.
For this reason, that defence also failed.
Assessment of damages
In respect of the assessment of damages, Sheridan DCJ noted that the publications were made in different forums with broad circulation and repeated a number of times. The Albion Vet and Mr O’Grady had both been bombarded with abusive phone calls and nasty emails. Mr O’Grady’s family had also suffered from the reputational fallout.
On the other hand, the publications did not accuse the Albion Vet and Mr O’Grady of dishonesty or criminal conduct and it was noted that social media is of a temporal nature. Furthermore, Curtis had deleted the Facebook posts and reviews.
As a result, the Albion Vet was awarded $10,000 in damages for vindication and Mr O’Grady was awarded $15,000 for vindication, hurt and distress.
Due to Curtis’ unrepentance and repetition of her unsupported views throughout the case, in addition to her participation in interviews about the matter to A Current Affair and the Courier Mail, there was found to be a risk she could further defame the Albion Vet and Mr O’Grady.
As a result, Curtis was permanently restrained, by herself and/or her servants or agents, from publishing or causing to be published the words set out in the First to Seventh Publications or words to the like effect.
This is yet another case which demonstrates the dangers of posting negative comments about others on the internet, particularly social media. By posting such material, a person is publishing it, and is therefore liable for it under the law of defamation. In this case, the grievance about the cost of $32.50 for antibiotics followed by a letter she took offence to resulted in a spectacular overreaction that led to nearly six years of litigation and Carrie ‘Karen’ Curtis being found to be liable to pay damages with interest, as well as an injunction, and probably also costs. This was a particularly ridiculous and expensive overreaction. The customer is not always right.Posted on