Greenwich v Latham

Risk or apprehension of republication

1. At [14]-[17] of the applicant's written submissions on final relief (dated 1 November 2024), Mr Greenwich submitted as follows: Whilst Mr Latham took down the Primary Tweet after public outcry, Mr Latham's other post-publication conduct considered in [59]ff. establishes a real apprehension of republication in the future. Even after Mr Latham took down the Primary Tweet he gave a relatively lengthy interview to TNT Radio during which he spoke about Mr Greenwich and his thoughts about the "disgusting" nature of anal sex between men: Judgment, [60]. When the whole of the evidence of Mr Latham's post-publication conduct is considered, not merely the deletion of the Primary Tweet, it demonstrates that Mr Latham did not take the publication of the defamatory matter seriously. He treated the matter flippantly and mockingly on social media. It was a joke to him. There is a real apprehension that Mr Latham will keep making these kinds of slurs against Mr Greenwich in the future unless he is permanently restrained.
2. The passages from the primary judgment to which counsel referred in that submission are set out below: Events after the publications 59 Mr Greenwich instructed his lawyers to send a letter to Mr Latham on 19 April 2023, containing a concerns notice … By that letter, Mr Greenwich made an offer of settlement in which he sought, among other things, an apology from Mr Latham. 60 On 27 April 2023, TNT Radio broadcast an interview between Chris Smith, host of The Chris Smith Show, and Mr Latham. During the interview, Mr Latham stated, inter alia: "I told [Mr Greenwich] what I thought was disgusting and I speak for a lot of straight men, Chris, in saying that the idea of having anal sex with another man would make you vomit … The basic natural reality is that we don't go for anal sex with blokes and it's pukeworthy". … 61 Mr Latham posted a number of tweets promoting the TNT Radio interview. The interview was also reported in the news media in articles published on 27 and 28 April 2023, including by The Daily Mail Australia, OUTinPerth, The Star Observer, The Guardian Australia and Q News. 62 Also on 27 April 2023, Mr Latham "liked" a tweet posted by a Twitter user which said "Stick your apology up your ass". 63 On or about 28 April 2023, Mr Latham published a tweet which said "I must be wonderfully Deplorable if Chris Minns wants to cancel me but he's attending Kyle Sandilands wedding tomorrow, complete with organised crime figures and a convicted drug smuggler as best man!! Kyle has 'picked on' the disabled and Alphabet people even more than me [crying laughing emoji]". 64 On the same day, Mr Latham replied to this tweet with a comment which said "Where's Greenwich when you need him?" 65 On 2 May 2023, NSW politician Ms Abigail Boyd posted on Twitter a link to a Sydney Morning Herald article entitled, "NSW opposition leader vows to work with Latham despite homophobic slurs". 66 Also on 2 May 2023, Mr Latham posted a tweet in response to Ms Boyd's tweet which said "I'm very sorry for saying I hate the idea of having anal sex with another man. Has it become compulsory?" 67 On the same day, Mr Latham posted a second tweet in response to Ms Boyd's tweet which said "The Left has sexualised politics particularly through the predominance of LGBTQIAP+ issues. But of course, in the media double standard that applies, no one from the Right should ever participate in these debates and give their true opinion. We are lesser, disgusting human beings." 68 Later on 2 May 2023, Mr Latham "liked" comments in reply to [his] first tweet in response to Ms Boyd, including the following: (a) "Well done M.L."; (b) "100% agree. So does most of society just quietly", enclosing a photograph of text which read: Put 100 women and 10 men on a deserted island. In 100 years, you will have a thriving community of men, women, boys, and girls. Now, put 100 trans women and 10 men on a deserted island. In 100 years you will find the skeletons of 110 men. Follow me for more science. (c) "Good to see you telling the truth & sticking to your guns, mate. More politicians should try it [clapping hands emoji, thumbs up emoji]". 69 On 4 May 2023, Mr Latham posted a tweet which said "I can't win: I apologised here and now Alex Greenwich has referred this Tweet (and many others) to the NSW Anti-Discrimination Board for action. He's obsessed with petty litigation against me for disagreeing with him". 70 Also on or about 4 May 2023, Mr Latham posted a tweet which said "Ultimately this is the great Greenwich crime: disagreeing with an entitled European Prince. Lawfare instead of sorting it out in the parliament to which we have both been elected. Should I take out an AVO for harassment? [four crying, laughing emojis]".
3. Mr Reynolds SC, who appeared with Ms Rubagotti of counsel for Mr Latham at the 18 December 2024 hearing (but not at the trial), submitted in his oral address that there was no reasonable apprehension that Mr Latham would repeat the defamatory statements, for the following reasons (see transcript at page 31, noting that the words were incorrectly attributed to Dr Collins AM KC): And I say it's relevant both generally, and in relation to some of the more specific points that we make. Now, can I focus, then, on an absence of evidence of threats of repetition, I'm unaware of what that evidence is. And as your Honour well knows, before a court of equity will grant a permanent and final injunction operating in perpetuity against my client, there has to be a material which shows that there's a threat of repetition. Now, this argument, I submit, fails in [limine], because my learned friend simply hasn't pointed to any evidence that my client is threatening to repeat any of this material, the subject of the tweet. I don't know what that evidence is. And picking up my point about the implied freedom, I submit there would want to be clear evidence of that, that is clear evidence of such a threat before your Honour would even contemplate an injunction. My learned friend's argument also, with respect, lacks common sense, because most respondents, most defendants in defamation cases who've lost a case, are not in any hurry to go about repeating allegations, the subject of the publication on which they lost. And as I say that's a matter of common sense. Why would your Honour find that it has been established that my client is threatening repetition of it?
4. It seems to me that there is no sufficient basis for me to apprehend that Mr Latham "may, by reason of irrationality, defiance, disrespect of the Court's judgment or otherwise, publish allegations similar to those found to be defamatory unless restrained from doing so". See generally Hockey at 130 [15] (White J). His public statements after the publications are defiant, even vehement, to be sure, but the applicant has not pointed to any occurrence after May 2023, or after judgment was handed down on 11 September 2024, which might suggest a threat of republication of the defamatory material.
5. In all the circumstances, I am not inclined to infer that, unless restrained, there is an appreciable risk that Mr Latham will continue to make allegations similar to those found to be defamatory. There is, in my view, no sufficient basis for me to infer that Mr Latham may or will ignore or intentionally disobey the findings in the primary judgment.

The right to freedom of communication and expression concerning governmental and political matters

1. In his oral address, Mr Reynolds placed considerable emphasis on Mr Latham's right to freedom of communication and expression concerning governmental and political matters, and relied in particular on this passage from the judgment of Gaudron, McHugh and Gummow JJ in Roberts v Bass (2002) 212 CLR 1 at 29 [73]: It is a serious mistake to think that [Lange v Australian Broadcasting Corporation (1997) 189 CLR 520] exhaustively defined the constitutional freedom's impact on the law of defamation. Lange dealt with publications to the general public by the general media concerning "government and political matters". It was not concerned with statements made by electors or candidates or those working for a candidate, during an election, to electors in a State electorate, concerning the record and suitability of a candidate for election to a State Parliament. Such statements are at the heart of the freedom of communication protected by the Constitution.
2. In my view, it cannot possibly be accepted that, when Mr Latham published in the Primary Tweet the words "Disgusting? How does that compare with sticking your dick up a bloke's arse and covering it with shit?", he was making a statement in his capacity as a candidate in the then-upcoming NSW election which concerned the record and suitability of Mr Greenwich as a candidate for election, such that it was a statement that the courts regard as being "at the heart of the freedom of communication protected by the Constitution". The content of the Primary Tweet was, as I found in the primary judgment (at [243]), "personal and not germane to any matter of politics".
3. For those reasons, and contrary to his counsels' submission, Mr Latham's right to freedom of communication and expression concerning governmental and political matters is not relevant to the question of whether permanent injunctive relief should be granted in this case.

The right of free speech

1. Mr Latham's right to free speech is another matter. Mr Latham has, and continues to have, the right, within limits, to criticise or express opinions about the correctness of the primary judgment, and nothing I have said above is to be taken as suggesting otherwise. As Collins Rice J said in Blake at [44]: "[t]o be very clear, I am saying nothing here about restraining [the defendant's] exercise of free speech in any respect or for any purpose other than to evaluate the risk that he will, unless injuncted, repeat the [defamation]. That is the beginning and end of my function". And so it is here.

Other considerations

1. If the injunction proposed by Mr Greenwich is not made, and Mr Latham does repeat or republish the defamatory imputation, the only course available to Mr Greenwich would be to commence another defamation proceeding.
2. Section 23 of the Defamation Act may apply, and Mr Greenwich in that event would need to seek leave to commence any proceeding in relation to any publication of any "matter" which is properly considered to be the same as or "like" the matters the subject of this proceeding. But the need to seek such leave "can nevertheless not really be considered to be a particularly burdensome exercise" for Mr Greenwich to undertake. Compare Rush at [85].
3. And if the commencing of such a new proceeding was the only way that Mr Greenwich could seek redress, then no court would refuse to grant him the requisite leave permitting him to do so.
4. Mr Reynolds made much of damages being what he called "an adequate remedy", as follows (see transcript at page 31, noting that the words were incorrectly attributed to Dr Collins): Second of all, we submit that there isn't any reason in this case why damages would not be an adequate remedy. There's no suggestion that my client is impecunious, or there's any other reason why, if there were a second action and damages were recovered, that Mr Greenwich wouldn't be paid. There are on the books cases, I've been in them, where defendants have repeated what they've earlier said. This happens quite a bit in the media cases, where you have something on the internet which isn't taken down, and it's left up there, and the plaintiff comes along … and says, "Still up there. Every person that reads it, that constitutes a new defamation, and I want damages." And they've been awarded damages. Now, there's no reason why, if that were to happen, that an award of damages wouldn't be adequate compensation. Mr Greenwich would simply get more money. And if the remedy at law is adequate, then equity has no jurisdiction to be [granting] permanent injunctive relief.
5. Mr Reynolds continued (at pages 31-32 of the transcript): Your Honour would know this whole idea of granting permanent injunctions in defamation cases is a very novel one. Your Honour would, I'm sure, accept from me that I've been in a lot of these cases … but this is the first time I've stood on my feet and argued in relation to a permanent injunction, and I think I've been in hundreds of them, and that's because it wasn't a traditional remedy. And it wasn't a traditional remedy for the sorts of reasons that I'm talking about today, and that is if the defendant wants to go ahead and do it again, then it just means the plaintiff will get more money.
6. Dr Collins, who appeared with Ms Jeliba of counsel for Mr Greenwich, submitted the following (at pages 41-42 of the transcript): … your Honour would be comfortably satisfied that if Mr Latham were to republish the imputation your Honour has found to be carried by the primary tweet, it would unleash a torrent of hate mail of the kind that, in fact, occurred when it was first published and when Mr Latham doubled down on it. There's no reason to think that there wouldn't be the same reaction were Mr Latham now, in the face of the judgment of the court, to continue to publish statements to the effect that your Honour has found to be defamatory. That torrent of hatred - damages are a very blunt remedy when dealing with the sort of harm which is caused by the publication of statements of the kind that my client had to endure as a result of Mr Latham's defamation of him.
7. I do not see how the issue of whether damages would be an adequate remedy arises in the context of an application for final injunctive relief in a defamation case such as this, where (as Mr Reynolds said) there is no suggestion that the applicant will not be able to recover the sum awarded as damages, including aggravated damages.
8. As Windeyer J said in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150: When it is said that in an action for defamation damages are given for an injury to the plaintiff's reputation, what is meant? A man's reputation, his good name, the estimation in which he is held in the opinion of others, is not a possession of his as a chattel is. Damage to it cannot be measured as harm to a tangible thing is measured. Apart from special damages strictly so called and damages for a loss of clients or customers, money and reputation are not commensurables. It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.
9. And as Hayne J said in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 349 [66]: In searching for the standard against which manifest excess of an award of damages for defamation can be judged, account must be taken of three basic propositions. First, damage to reputation is not a commodity having a market value. Reputation and money are in that sense incommensurable. Secondly, comparisons between awards for defamation are difficult. Every defamation, and every award of damages for defamation, is necessarily unique. Thirdly, because the available remedy is damages, courts can and must have regard to what is allowed as damages for other kinds of non-pecuniary injury. …
10. As to the first of those propositions, Hayne J continued at 349 [67]: Defamation may cause identifiable economic consequences for the person who is defamed. This was not said to be the case in this matter. In the present, as in so many cases of defamation, the wrong that was done to the appellant was alleged to have caused him personal distress and hurt and to have caused harm to his personal and his professional reputation; it was not alleged that his professional earnings had diminished by an identified amount. Assigning a money sum as sufficient to remedy those harms and to vindicate the appellant's reputation translates losses which have no market value into amounts of money. Of course, defamation is not the only area of the law in which this is done. Damages for pain and suffering suffered in consequence of personal injury or for the loss of liberty brought about by wrongful imprisonment are two other cases in which this is done. But in neither defamation nor in other cases of non-pecuniary loss can any standard of evaluation be employed except one that is described in qualitative and therefore necessarily imprecise terms. The damages that may be awarded "are such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man" [citing Prehn v Royal Bank of Liverpool (1870) LR 5 Ex 92 at 99-100 (Martin B)].
11. This case is like Uren and Rogers, in that the applicant has sued for damages for the personal distress and hurt and the harm to his personal and his professional reputation that the respondent's conduct brought about, not for any diminution of his professional earnings (Mr Uren, like Mr Greenwich, was a politician and Mr Rogers was an eye surgeon). In such a case, where "money and reputation are not commensurables" and an award of damages is "a solatium rather than a monetary recompense for harm measurable in money", the question of whether damages are adequate is, generally speaking, inapposite in the context of determining whether to grant final injunctive relief. As Mr Reynolds said, "if the defendant wants to go ahead and do it again, then it just means the plaintiff will get more money" - and, I would venture to add, much more money.
12. I say that is so "generally speaking" because there are some cases where the question of the adequacy of damages may be relevant. In Tavakoli v Imisides (No 4) [2019] NSWSC 717, for example, "the first defendant ha[d] snubbed her nose at the plaintiff's cause of action by making it clear to the plaintiff … that she ha[d] no money or assets which the plaintiff [could] obtain in any remedy in damages" (at [57]). The inadequacy of damages in those circumstances was a significant reason that Rothman J was satisfied that the interlocutory injunctions that had been in force should be made permanent in that case.

Conclusion

1. Weighing the factors in the balance, I am not persuaded, in the exercise of the court's discretion, that it is appropriate to grant the permanent injunctive relief that Mr Greenwich seeks, in particular because I am not persuaded that there is a real or appreciable risk that Mr Latham, if not restrained from doing so, will repeat or republish the relevant defamatory imputation. Compare, by way of example, Chau v Australian Broadcasting Corp (No 3) [2021] FCA 44; (2021) 386 ALR 36 at 82 [184] where Rares J granted a final injunction because "the program published untrue and seriously defamatory imputations about Dr Chau" and "as the publishers have made clear, they intend to continue publishing it and so making those imputations that I have found to be false, seriously defamatory and otherwise indefensible". Also compare Blake at [35]-[46] (Collins Rice J); and Lachaux at [238] (where Nicklin J found that the claimant had successfully established that, unless an injunction were granted, the defendants would continue to publish the defamatory articles).
2. It follows that Mr Greenwich's application for a permanent injunction restraining Mr Latham from republishing the defamatory imputation should be dismissed.
3. If the question of costs cannot be resolved by agreement, the parties may address the question orally at the hearing scheduled to occur on 18 March 2025. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.