Kalil v Eppinga [2023] NSWDC 107

District Court New South Wales

Medium Neutral Citation: Kalil v Eppinga [2023] NSWDC 107 Hearing dates: 20, 21 and 22 February and 3 April 2023 Date of orders: 21 April 2023 Decision date: 21 April 2023 Jurisdiction: Civil Before: Weber SC DCJ Decision: (1) That there be judgment and verdict for the cross defendants against the cross claimant. (2) That the cross claimant pay the cross defendants' costs. Catchwords: DEFAMATION – Qualified privilege – Response to an attack – Malice Cases Cited: Sims v Joost (No 2) [2016] WASCA 83 Roberts v Bass (2002) 212 CLR 1 KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden (2020) 101 NSWLR 729 Jones v Dunkel (1959) 101 CLR 298 Category: Principal judgment Parties: First Plaintiff/Cross Defendant: Mahmoud Kalil Second Plaintiff: Kylie Eather Cross Defendant: Magda Kalil Defendant/Cross Claimant: Ellie Rose Eppinga Representation: Counsel: Plaintiffs/Cross Defendants: Mr K Smark SC Defendant/Cross Claimant: Mr L.C. Muriniti (Solicitor)

Solicitors: Plaintiffs/Cross Defendants: Rostron Carlyle Rojas Lawyers Defendant/Cross Claimant: L.C. Muriniti & Associates File Number(s): 2019/45573 Publication restriction: None

JUDGMENT

Introduction 1. The cross claimant sues the cross-defendants in defamation. 2. The proceedings arise out of incidents which occurred at the Beacon Hill Veterinary Clinic ("BHVC"). The cross-defendants are proprietors of that business, conducting it in partnership. 3. As at January 2019 the cross claimant was undertaking a veterinary nursing course at TAFE. She approached BHVC to ascertain whether the clinic would be in a position to provide her with unpaid work experience. This was agreed, and the cross claimant was told she would start on the morning of 25 January 2019. 4. The Cross claimant duly arrived at BHVC early on 25 January 2019. She was instructed to clean out the cages in which dogs and cats under treatment were housed. 5. What happened thereafter was to some degree a matter of controversy. 6. What is undisputed is that the cross claimant became concerned about the hygiene standards at BHVC, and was quickly and forthrightly expressing her concerns in that regard to the first cross-defendant Dr Kalil and his veterinary nurse Ms Eather. A row ensued between the cross claimant, Ms Eppinga and Dr Khalil, in less than 30 minutes after her arrival at BHVC. Following these events, the cross claimant was told to leave the premises. 7. Ms Eppinga was obviously very agitated at what she had seen, which agitation was evidenced to some extent by the number of phone calls which she made in connection with her concerns in the two days following the events in question. 8. The phone calls made on 25 and 26 January were placed inter alia to: 1. The RSPCA; 2. The Veterinary Practitioners board; 3. Dee Why Police; 4. A state member of Parliament Mr James; 5. The then Premier Ms Berejiklian. 1. In addition, Ms Eppinga posted the following post on 25 January 2019 at 4:53am. The post was on her Facebook account. "I HAVE CONTACTED THE VPB AND ALL OTHER RELEVANT AVENUES. Alright I might edit this along the way but I'm gonna run with this. Tha full story! BOYCOTT BEACON HILL AND NORTH NARRABEEN VET CLINIC! I can not rest until something is done. This morning I went to what I thought was going to be valuable work experience, at Beacon Hill Vet Clinic, which turns out is run by a real life monster. Dr (He doesn't deserve that before his name!) Kahil, as I am planning to study vet nursing this year. On arrival I had a bad feeling but was eager to gain some experience in the industry. I was asked to clean out the boarding cages. After being given a filthy cloth, I did this. The boarding cat had nothing in his cage but newspaper and a litter tray filled with newspaper, soaked. No bedding, nothing. He looked clearly distressed. Yes, there was food and water but let's remember that's a basic, normal right for the animal to have so don't get too excited. I then cleaned up the urine and faeces of a boarding dog I let out into a small room while I cleaned her cage out. Apparently the boarding dogs are not taken outside until later In the day, which is a bit strange. Don1t think there is much interaction with the boarders sadly but this might be a good thing. It's filthy all over but by the sink I see a dirty container that consisted mainly of mould1 an old toothbrush and a pen, but no , cloths or scrub brush to clean anything with. First thing I took a photo of. I refilled water bowls which had that unclean slimy feeling. I washed them with my hands because the only cloth I was given to clean the cages with looked like it hadn't been washed In 6 weeks. Vet nurse Kylie tells me where the clean bedding Is. I grab a few things out (One for the cat that had nothing!) and I can feel and smell that they are not clean, they are actually visibly soiled with old stains and stunk of urine. I then ask Kylie where the washing area is, so I can wash the bedding I removed previously and she takes me out the back, points down the stairs and tells me to just hang them on the line and bring the clean bedding up. Puzzled, I walk down to the clothesline, and I notice everything has not been washed at all and is soiled with faeces, urine, blood, fur and vomit. I thought for a moment how much I want this work experience but it did not take me long to go back inside and say these things are dirty and unwashed. Kylie told me not to worry, that she would do it. Moving on. I'm now cleaning the cages in the treatment room and I am noticing extremely unhygienic and hazardous areas right where the animals are treated. I walk out of the room to get new newspaper and come back to Kahil and Kylie attempting to take blood from a small terrified dog. They are in front of the cages so I said I will wait and watch (Because work experience!?) but Kahil removed the tourniquet, shoved the dog back In the cage and said that they will do it later. What was he worried about? It's normal procedure. I carry on noticing disgusting conditions and cleaning cages while listening to Kahil in the next room yelling at Kylie as to why I am not out of the way mopping the floor somewhere. I was alone in the treatment room and this is when I decided to take those photos. I walk out to grab some new bedding. I don't know why, it was filthy anyway. Walk back in feeling absolutely wrong, place the bedding on the bench, and turn to see Kylie walking back through the room. I looked at her and said I can not do this, what are the standards here? This is not right. She said to just leave so I grabbed my keys to go and walked out into the front office where Kahil is. Kylie comes from through behind me. She says some shit, at this stage I don't care and I am continuously asking what the standards are. Kahil walks up to me, grabs me with force and tried to physically and forcefully push me out of the clinic. Why? I did nothing, I just wanted to understand his extremely low standards. In shock, I step forward to defend myself, put my phone on record and he jogs off into a back room. Concerned and shocked, I try ring the police. They do not answer. I kept trying a few times to no avail. Thought I'll just go down to the station, I didn't want to charge the man at this stage, just wanted it to be in a police report and I said that to the police. I make my report and leave. A couple of hours pass and I receive a phone call from a female constable saying she had attended the scene and that some allegations had also been made against me. That I had stolen medication. Absolutely gobsmacked, that these two sad excuses for human beings would make up such madness I am a little bit defensive. The constable continued to intimidate me into deleting the Facebook posts which I declined. I was trying to explain my side of the story and the whole reason for the job she just attended, Because I have not even spoken with her before this, and she just hung up. Distressed still, I call Dee Why Police Station for information and a lovely officer consoled me because I was emotionally exhausted and upset at this stage and said it'll be OK, just wait for a call. So now I am waiting for that call. And I will not stop until this vile man and his brainwashed sidekick are shut down and prosecuted for everything they have done to people and their pets." 1. She also started a petition on the website change.org.au where she made a substantially identical post. 2. Finally, on the same day, Ms Eppinga published the following post on the Sydney Northern Beaches Buy, Swap, and Sell Public Group: "PLEASE PLEASE PLEASE I JUST DID SOME WORK EXPERIENCE AT BEACON HILL VET AND THEIR STANDARDS ARE ABSOLUTELY DISGUSTING AND THE VET-ACTUALLY ASSAULTED ME OUT OF THE CLINIC WHEN I ASKED ABOUT THE STANDARDS THEY SET, the vet nurse had the nerve to say they meets standards!!! Please go get your poor babies don't spend any money there. Marley a large poodle a Bengal cat and a smallish chihuahua cross named candy in boarding are the poor sweethearts I met there in fucking squalor!!! Please go pick them up!!! Absolutely disgusting." 1. On 3 February 2019, the cross-defendants published the matter complained of. It was published on the BHVC Facebook page ("Matter Complained Of"). 2. The Matter Complained Of is in the following terms: "The last few weeks have been a very challenging time for our business. We have refused to respond directly on Ellie's page as we feel that doing so would legitimize the lies that have been purported by her. Instead, we feel that it would be more wise to respond to these allegations directly on our page. Ellie volunteered at our practice for no more than 30 minutes. Her main task was to arrive first thing in the morning to help clean. At the time, the Vet and Nurse were treating a dog and left Ellie alone to clean out the kennels. After 20 minutes of Ellie being in our practice, our Nurse went to check on Ellie and found her going through drawers and our medicine cabinet. When confronted, Ellie began using a range of vile and racist profanity. Clearly aware that she had been caught red handed, she threatened us that she would take the practice down if we called the police. Of course, attempting to steal drugs from a veterinary practice is a serious criminal offence and so we were obligated to call the police. If anyone is curious about the incident I urge them to call Dee Why police and ask. What we then saw was Ellie exploiting human nature's love for animals in order to further her personal vendetta against us. She claimed that we were mistreating the animals in our care, providing no photographic evidence of this but instead photographing needles that had just been used in our treatment room. Over night, our ratings on google have dropped from over 4 stars to what it is now. Our business has slowed, but we will not succumb to pressure to close our practice. We have done nothing wrong, and have served the northern beaches community for over 25 years. We have saved the lives of countless pets, and devoted hours of sleepless nights to ensure that our clients pets are well cared for. We would like to take this time to also thank our loyal customers who called us when hearing of these allegations to show their support. Without you, we wouldn't be where we are .. We thank you for continuing to support us, and we will do everything we can to continue to love and care for your pets. - The Practice Managers, Beacon Hill Veterinary Hospital."