Checking The Facts Before You Write A Review

After a six year battle of defending her opinion, Carrie Curtis, formerly known as Carrie Barlow, has been ordered by the District Court of Queensland (Asbog Veterinary Services Pty Ltd & Anor v Barlow [2020] QDC 112) to pay damages for defamation in excess of $35,000.00, and could be up for more.

Throughout October 2014, Ms Curtis made a number of scathing reviews of Albion Veterinary Surgery and the owner, veterinary surgeon and physician Mr Allen O’Grady, on Twitter, True Local and Facebook. The reviews followed her attendances at the Albion Surgery with her pet beagle, Valentine, which required minor surgery following an altercation with another pooch. Ms Curtis received a $427.00 bill for anaesthetics, surgical fees, materials (stitching), surgery drugs (antibiotics), injections and fluid administration. She thought the price of the antibiotics were excessive and initially sought clarification as to why there was a 350% mark-up on the drugs after the owners of the offending pet refused to pay the bill. Practice Manager, Ms O’Grady, advised Ms Curtis that the fees included a dispensing fee of $14, postage and handling costs and a standard mark-up, reiterating that purchasing drugs online would not provide Valentine with the immediate care it required. No after-hours surcharge was applied.

Upon the conclusion of Ms Curtis’ investigations, she requested that Valentine’s records be collected upon the next visit, as she no longer required the services of the Albion Clinic. Mr O’Grady provided Ms Curtis with a letter enclosing Valentine’s records, advising that her withdrawal from the Albion Clinic’s services meant Valentine would no longer have access to the after-hour emergency service benefits or hydrobath discounts offered to its customers. Seven defamatory posts ensued.

On 17 October 2017, FC Lawyers, formerly known as Ferguson Cannon Lawyers, solicitors for the plaintiffs, issued Ms Curtis with a Concerns Notice in relation to the defamatory posts. Ms Curtis’ responded by making “genuine attempts to address [her] concerns” through amending the True Local and Facebook posts, relying on the defences of justification (s 25 of the Defamation Act 2005 (Qld) (“the Act”)), contextual proof (s 26 of the Act) and honest opinion (s 31 of the Act). Following further demands by FC Lawyers, Ms Curtis declined to provide an apology on the basis that the posts carried the views expressed but deleted the Facebook and Twitter posts and made a request to True Local to remove the remaining post. Unfortunately for the Albion Clinic and Mr O’Grady, the damage was done, as the backlash from Ms Curtis’ posts forced the sale of the Albion Clinic. Defamation proceedings were issued against Ms Curtis for damages to the parent company of the Albion Clinic (“the Company”) and Mr O’Grady’s reputation.

First Question – Is the Company an excluded corporation?

In her decision, District Court Justice Sheridan (“DCJ Sheridan”) found that the Company was an excluded corporation for the purposes of s 9(1) of the Act, as it employed less than 10 employees and was not related to another corporation. The number of employees employed by the Company were counted pursuant to s 9(2)(b) and 9(3) of the Act, which provides that part-time employees are to be taken into account as an appropriate fraction of a full-time equivalent.

Second Question – Do the pleaded imputations arise from the publications?

DCJ Sheridan reiterated that it is a question of law and facts as to what imputations arose from the statements in the posts. The test is to “ask what an ordinary, reasonable reader in the general community would understand the published words to mean”. An ordinary reasonable reader is a person of “fair, average intelligence who approached the interpretation of the publication in a fair and objective manner, not overly suspicious, not ‘avid for scandal’, not searching for forced meanings and not naïve.” Each post is to be considered as a whole, but separately where a passage of time has passed between several posts on different forums.

Ms Curtis admitted a number of the imputations with respect to the Company and Mr O’Grady, however denied that she did not question or comment on Mr O’Grady’s morals, professional knowledge, qualifications or competence.

Despite Ms Curtis’ denials, DCJ Sheridan held that the imputations relating to Mr O’Grady’s morals and professionalism were in fact made by the posts, as the words included ‘over-charged, ‘hiding after hours surcharged’, ‘unfair business practice’, ‘my dog was not welcome’, ‘grumpy’, ‘should not be dealing with people or animals’ and ‘I never found the owners to be very personable or caring’ to list a few.

Third Questions – Were the imputation defamatory?

DCJ Sheridan noted that defamatory matters are not defined by the Act, thus the common law test applies. The test is whether an ordinary, reasonable reader would understand the published words in a defamatory sense, given the circumstances. A publication will be defamatory if it lowers a person or excluded company’s reputations in the eyes of an ordinary, reasonable person. It is imperative to understand that it is not a question whether actual injury is caused to the person’s reputation. It was held that “the ordinary, reasonable reader would think less of a business that grossly overcharges, engages in unfair business practices, takes advantage of its clients and is a business to be avoided”, and furthermore that “the ordinary, reasonable reader would think less of a person who engages in unfair and unreasonable business practices, lacks morals and compassion, is unprofessional and as a vet should not be dealing with animals.”

Fourth Question – What are the defences?

As an advocate for freedom of speech and fair review, Ms Curtis raised the following defences:

1. Substantial truth or justification (s 25 of the Act); and
2. Honest opinion (s 31 of the Act)

Both defences failed. Ms Curtis relied on evidence from research she conducted in relation to comparative pricing and the letter from Mr O’Grady. Despite her best efforts, Ms Curtis’ evidence in chief was lacking, and her recollection of events poor. She proceeded to admit that she is unable to make a judgement on what is reasonable and what is not, as prices depend on inclusions. Furthermore, her justification for describing Mr O’Grady as a grumpy person and should not be dealing with people or animals was essentially based on a single event where Mr O’Grady failed to say “hello” to her, despite not being Valentine’s treating clinician. DCJ Sheridan also held that the words used in Mr O’Grady’s letter were incorrectly construed by Ms Curtis, in that the Albion Clinic would merely be “unable to provide in house after hours emergency services”, not “refusing [Valentine] emergency treatment if he needs it in the future”. Further evidence suggested that the amount charged for Valentine’s treatment was fair and reasonable.

Despite raising the defence of honest opinion in the pleadings, Ms Curtis failed to make written or oral submissions in support thereof. The Defence of honest opinion requires that the publication be an expression of opinion rather than a statement of fact, be of public interest and must be based on proper materials. Apart from Ms Curtis’ evidence being unreliable, DJC Sheridan concluded that some of the posts were simply untrue and failed to “fully explain the events that took place in her dealings with the company and Mr O’Grady.” In the absence of truth and further reasoning provided by DJC Sheridan, it followed that Ms Curtis’ opinion was not based on proper materials.

Final Question – What are the damages?

Often individuals who pursue defamation actions see “dollar signs”, likely as a result of the ever increasing popularity defamatory matters are given by the media, this case being no exception. General damages for defamation serves three purposes, being to compensate for damage to:

1. Both personal and business reputation (if applicable);
2. Give consolation for the personal hurt and distress; and
3. Vindicate the person/business’ reputation.

There is no requirement to prove actual damages to reputations, nor to call for evidence that anyone has thought less of the person/business. Ultimately, it must signal to the public or bystander and convince them “of the baselessness of the charge”. In the case of a corporate entity, DCJ Sheridan considered the “grapevine effect” arising from the posts, as they have the potential to increase exposure and damage to the Company’s reputation. It should be noted that any award for damages is discretionary, and the Courts must maintain a level of consistency between comparable cases.

The Company and Mr O’Grady were awarded damages (general and aggravated) in the amount of $10,000.00 and $15,000.00 plus interest respectively. Furthermore, Ms Curtis has been restrained from publishing or causing to be published the words set out in her posts or word to the like effect (injunctive relief).

Unfortunately for Ms Curtis, the damages do not stop here. In December 2014, FC Lawyers made a formal offer on behalf of the Company and Mr O’Grady pursuant to Chapter 9, Part 5 of the Uniform Civil Procedure Rules to settle the matter for $17,500.00 (an amount less than awarded by the Court), which was subsequently rejected by Ms Curtis. In the circumstances, the Company and Mr O’Grady are now pursuing indemnity costs for a matter which has been before the Courts for 6 years.

Have you been defamed by someone else?

If you feel that you have been defamed or someone is alleging that you have defamed them, please do not hesitate to contact our legal team to help you through what can be a very difficult and complex area of law.