HER HONOUR: This is an application by the plaintiff for an interim injunction pursuant to s 46 District Court Act 1973 (NSW). The application was lodged with the Court on 16 November 2019 at 11.26am, and the matter urgently added to the defamation list. That is not the way that matters generally proceed under Practice Note 7, but an exception must be made in the case of urgent applications of this kind.
The order that is sought is an order for the removal by the defendant of material from the internet, which is in mandatory form. I note the observations in Stokes v Ragless [2014] SASC 56, that where mandatory orders are sought, there is an even greater requirement for caution to be exercised.
There are a number of preliminary matters that must be determined. The first is whether or not a prima facie case has been made out, which I propose to assume here. The second is the balance of convenience. The third is whether damages are an adequate remedy. The fourth is other relevant discretionary factors arising from the factual material.
I will first set out the history of the proceedings and the text of the publication in question.
The plaintiff commenced proceedings against the defendant for defamation for an unrelated publication, which was set down for hearing on 13 and 14 February 2020. An earlier hearing date of 8 - 9 October 2019 had to be vacated by reason of the unavailability of the parties, due to the late withdrawal of the defendant's solicitors, the unavailability of the plaintiff due to a religious occasion, and problems with listings in the Court.
The hearing, which will take place in February 2020, raises issues of a limited nature, in that the only defence made is the defence of amends. I summarise the relevant material briefly as it appears in the affidavit of Ms Sellers (exhibit C). The first offer of amends, which was made on 12 April 2019, offered not only a retraction and removal of the publication in question, but a written apology to be published on the website, as well as to persons who have read the matter complained of, and legal costs, for which an estimate was offered. The offer of amends was expressed to be reflected in the following matters:
1. the defendant sincerely regretted and apologised to the plaintiff for the hurt and distress caused by publication of the matter;
2. the limited number of persons who read the material;
3. the fact that the defendant does not have the financial capacity to continue with the cost of litigation, nor to pay any further sum to the plaintiff, and would request time to pay by instalments.
This offer was increased on 14 May 2019, from $5,000 to $25,000, such a sum to be paid by instalments of $2,500 a month over ten months.
Although Mr Goldsmith says he is unaware of the date that the matter complained of was taken down, it was in fact taken down, as is conceded. While there is still the question of whether or not there is some particular date or certainty about this, it appears to me to be common ground that the matter complained of has long since vanished from the site.
The difficulty is, however, that after the hearing date for these proceedings in October was vacated and a 2020 hearing date given, fresh proceedings for defamation were commenced by way of statement of claim, filed on 20 September 2019, in relation to a post appearing on or about 11 September 2019 on the same Rose Bay Community Original and Official Group page. The contents were as follows:
"I have lived in Rose Bay for most of my life. Many of you are probably aware that there exists [sic] two community boards in the area. I am a very strong advocate for women [sic] rights and the right for women and young girls to feel safe in all spaces, including online. In my opinion, one certain person did not hold the same views, and is now claiming defamation against me and taking the moderator of this board to Court for allowing the post. If you have been affected, seen, or do not like how some people are treated online, I urge you to show your support. Please read my campaign. As always, this statement is my opinion only."
Attached to that is a link to a GoFundMe.com site, which says "Click here to support funds for defamation Court case organised by Alice Voigt". It is only when one clicks onto the site on GoFundMe (which I pause to note requires no direct entry other than by clicking on the link) that the defendant identifies the plaintiff:
"[After referring to some prior Court proceedings which were unrelated, the defendant says]… now a man called Bruce Goldberg from Rose Bay (who many of you may know from a Rose Bay community Facebook page) is suing me for defamation in the District Court of New South Wales. I cannot begin to tell you how stressful this is, and I'm also afraid to say that being involved in a third Court case is beyond expensive. I have great lawyers, and we briefed a great defamation barrister. For the first time in my life I am asking for help. I need your financial and moral support through this time as I can no longer do this alone. My lawyers have advised me not to comment about the case that Mr Goldberg has brought against me. You can understand why because we have very strict defamation laws.
The case has been running for nearly a year now. We did have trial dates set in October, but now it's been pushed to 2020. In a few weeks, we will try to mediate the matter. All the funds raised will go to help my legal team, so I can focus once again on supporting my daughters through this horrific time. I cannot express how hard this is for me to ask for help, and I truly thank you for [sic] the bottom of my heart."
There is then a note that $340 had been raised as at the date the screenshot was taken, which appears to have been on or shortly after the date of the post.
Mr Goldsmith submits that the balance of convenience favours his client, that the plaintiff will suffer irreversible damage to his reputation, notwithstanding the allegation of the hearing date on 13 and 14 February, if this post is not removed immediately, and that the statements by the defendant concerning her financial limitations mean that she is unable to pay the damages and/or legal costs of any proceedings in relation to this post.
The relevant principles are set out in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57. I note these to be as follows. Firstly, before granting an interlocutory injunction, the Court must be satisfied the plaintiff has made out a prima facie case. It is sufficient for the plaintiff to show a sufficient likelihood of success to justify the preservation of the status quo pending the trial. However, while the Court noted that general equitable principles of this kind relate to the grant of injunctive relief in defamation cases, the majority stressed that the circumstances in which such orders would be made in defamation dictates significant caution. In particular, their Honours stated at [19]:
"[19] … In the context of a defamation case, the application of those organising principles [Beecham Group Ltd v Bristol Laboratories Pty Ltd] will require particular attention to the considerations which Courts have identified as dictating caution. Foremost among those considerations is the public interest in free speech. A further consideration is that in a defamation context, the outcome of a trial is especially likely to turn on issues that are, by hypothesis, unresolved. Where one such issue is justification, it is commonly an issue for jury decision. In addition, the plaintiff's general character maybe found to be such that, even if the plaintiff publication defamatory, only nominal damages will be awarded."
Generally speaking, what occurs when applications of this kind are brought before the Court, is that the defendant will set out the defences in question to assist the court on this issue. What the defences is to this publication may be, the plaintiff is unable to tell me. I have heard this application urgently today because the defendant has come to Court with her two children, whom she was unable to leave with anyone, and has had to drive three hours in order to get here, in circumstances where she has asked the Court to hear from her and to determine the issues, rather than to defer it.
Part of the reason for this difficulty is that she does not currently have legal representation. I anticipate that is likely to be the case at the trial.
The circumstances in which a person may publish defamatory remarks while seeking to raise funds for litigation, especially defamation litigation, is a subject which has exercised the minds of the Court of Appeal in Bennette v Cohen [2009] NSWCA 60, where defences of qualified privilege and honest opinion enjoyed mixed success at first instance, but none at all on appeal, although the facts in that case may explain those results. In terms of a prima facie case, these are not easy actions to defend.
As to damages, Mr Goldsmith characterised the conduct of the defendant and the language of her posts in the most animated language, comparing them to the publications in Munsie v Dowling [2014] NSWSC 598, and Jane Doe 1 and Jane Doe 2 v Dowling [2016] NSWSC 1909. He submits that the plaintiff was well aware of the earlier proceedings against her, which is stating the obvious, and that what she is doing is, "jumping on the Facebook bandwagon". One of the results is that her comments have in fact been endorsed by others; there is an example of a further posting which is attached to the affidavit of Mr Goldsmith, at p 93, by a member of the public who, rather unwisely, criticises the plaintiff and then ends the post with, "Come at me, Goldberg". However, the nature of the further publication, and the circumstances in which the interested person has to click on the link to obtain Mr Goldberg's name, for the purpose of presumably donating to the fund to resist the claim brought by the plaintiff, also needs to be taken into account.
Mr Goldsmith submits that the defendant has shown, "blatant disregard to the fact that legal proceedings were pending, and has, in effect, "'thumbed her nose' at the legal process" (written submissions, paragraph 7). He asserts that the damage to the plaintiff's reputation will be irreversible, and points to the absence of a defence of justification.
Defences of freedom of speech are not restricted to justification. The concept of freedom of speech essentially underlines all defences, and will protect publications made on occasions which are not merely justified, but excused or protected by law, as the Honourable M H McHugh AC pointed out in his helpful summary of the law in "What is an actionable defamation?" in Aspects of the Law of Defamation in New South Wales, Law Society of NSW, 1990, at p. xxxi.
The adjustment of freedom of speech rights is part of the balancing act that lies between protection of reputation and the right to express a view. Although Mr Goldsmith put to me that his client would not be complaining if the defendant had not made defamatory statements while seeking to raise funds, it is hard to see how the defendant could have said anything about the litigation which would not in some way have adversely reflected upon the plaintiff.
As I read the context of what is said on the Facebook page, noting the absence of the plaintiff's name and her explanation of the events leading to the fundraising, I do not consider this publication falls within the parameters of the sort of publication that this Court would regard as warranting an order for interlocutory relief.
The procedural history of Doe v Dowling is exceptional for a number of reasons, many of which are pointed out by McCallum J, Doe v Dowling [2017] NSWSC 1793. Factual analogies from other cases are not often of assistance, and it is best to be guided by the careful warnings of the High Court in Australian Broadcasting Corporation v O'Neill.
Returning to basic principles, I note that, in Bonnard v Perryman [1891] 2 Ch 269, Lord Coleridge CJ stated,
"…[b]ut it is obvious that the subject matter for an action of defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong".
At that time, the remedy was in a state of development, and before the modern formulations of general principles of a kind set out in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618.
I note what the High Court says about the test in question and its applicability to liberty of the press, but liberty of expression is a community value, as well as news value, and the Court should be cautious not to impose a rigid approach based on facts from other cases.
The final issue is whether or not damages will be an adequate remedy.
Mr Goldsmith submits that the concessions about financial issues set out in the defendant's offers to make amends amount to an admission that the plaintiff has no funds to satisfy an award of damages. In those circumstances, injunctive relief should be granted.
I am troubled by the idea that there is a financial threshold a person must pass in order to demonstrate that an injunction should not be made against them. I am also troubled by the absence as of any evidence as to what that irreversible damage would be, in circumstances where this is a publication that does not identify the plaintiff in that, while the structure of the matter complained of in these proceedings sets out the contexts of the hyperlink, the fact remains that unless one clicks on the hyperlink, presumably for the purpose of making a donation, the plaintiff's name is not discoverable.
There are only five persons named who did so click. This is a social media and not a mass media publication, but it certainly is not a publication of the same broad extent as was the case in the Dowling litigation. While I have no information as to the defences to be pleaded, whether or not damages would be obtainable if the plaintiff succeeds at trial is not a submission upon which I have evidence, apart from the plaintiff's submissions. In the offer of amends, there is no suggestion that the plaintiff is bankrupt; she has not publicly stated she was penniless in the same way that Mr Dowling did; and her statements bear signs of being part of the formulated offer in circumstances where the costs of defamation litigation going to trial are considerable.
Finally, there is the question of the balance of convenience to the defendant, if this publication were removed from the website. The defendant is seeking to raise funds and, while Mr Goldsmith says that this is not intended to stop her from looking for those funds as long as she does not criticise his client in some defamatory way, that really would be the practical effect of the orders his client seeks. While that is only a minor factor in relation to my determination, I am of the view that it is nevertheless relevant.
For these reasons, after taking in to account the greater rigor required in defamation cases, I do not consider that the case for the plaintiff is sufficiently compelling to warrant the grant of an interlocutory injunction under s 46, having both mandatory and prohibitory operation, and I propose to refuse to make the orders sought.
[2]
Orders
1. Plaintiff's application pursuant to s 46 District Court Act 1973 (NSW) for urgent interlocutory relief is refused.
2. The defendant as a litigant in person is entitled to such reasonable disbursement as may be agreed or assessed, including but not limited to the disbursements of her appearance today.
3. Pursuant to r 7.36 Uniform Civil Procedure Rules 2005 (NSW), refer the defendant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.
4. Matter stood over to the Defamation List on Thursday 5 December 2019 for further directions.
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 22 November 2019