King and Anor v Greenwood

Judgment

1. The plaintiffs, by statement of claim filed on 26th February 2021, bring proceedings for defamation for publication of material on Facebook on 15 and 25 February 2021.
2. The defendant was served with the statement of claim on 16 March 2021 and appeared in person on the first return date, 1 April 2021.
3. Between the date on which the defendant was served and the first return date, the defendant made a number of further publications concerning both plaintiffs. These consist largely of a threat to repeat his allegations about the plaintiffs to the media, as well as fresh allegations of wrongdoing.
4. On 23 March 2021, the plaintiffs filed a notice of motion seeking interlocutory injunctive orders pursuant to section 46 of the District Court Act 1973 (NSW).
5. At the directions hearing on 1 April 2021, the plaintiffs sought early resolution of their application for injunctive relief. The defendant said that he would need time to obtain legal representation to answer this, and to file a defence. A timetable was entered into requiring him to file a defence by 20 May 2021 and bringing the matter back before the court on 3 June 2021, on the understanding that the application for injunctive relief would proceed on that date. The defendant told the court that he would be pleading a defence of justification and that he would need to gather material together to provide the relevant particulars, but the date of 20 May 2021 for filing the defence was accepted by him as reasonable.
6. The defendant has not complied with the order to file a defence. Instead, he has continued to publish a series of attacks on both plaintiffs. He has not attended court today to explain why he has not filed his defence, or to oppose the application brought by the plaintiffs.
7. The application before the court is unusual in one respect, namely that the orders sought relate only to the first matter complained of, and not the second. Mr King explained that, as publishers, the plaintiffs were very conscious of the rights of freedom of speech and freedom to publish, and that the second matter complained of, which related to complaints that the plaintiffs had not paid persons for their work, was not a publication to which he sought relief. The principal concern was the repetition of allegations of the kind referred to in the first matter complained of, which concerned allegations of corrupt conduct.
8. Another factor of relevance is that, since these proceedings were commenced, the defendant has made a number of personal attacks on the second plaintiff. These are not the subject of any orders sought in the Notice of Motion and in fact the allegations relating to the second plaintiff accuse her of conduct which has no relation to either of the matters complained of. The defendant is entitled to be heard in relation to this issue and, when the proceedings are next before the court, any application to amend the statement of claim and/or seek additional interlocutory injunctive relief (or, in the case of the defendant, to oppose any such applications) and be made when the matter is next before the court on 17 June 2021.

The evidence before the court

1. The plaintiffs tendered the following material: 1. The affidavit of Cristian Alexander Kings sworn 23 March 2021, attaching 22 publications between 16 and 20 March 2021. In one of these (Annexure L), the defendant stated "I'm attending every session of court, and any attempt to have a temporary injunction put in place will be argued by me before the justice with documentary evidence. Your lawsuit is vexatious and malicious AKA a SLAPP lawsuit." He adds that he has "also started making complaints to authorities about your corruption" (Annexure M). In Annexure R, he states that "a major stakeholder is paying for me to engage a Sydney lawyer with regards to the defamation case" and that he was seeing this lawyer on "Monday". He also refers to an appointment he has made with a Detective Chief Inspector at Waverly Police. 2. An email from the defendant to the second plaintiff dated 19 May 2021. I note that this email states that "on 4 June 2021, I intend to provide the court with evidence of your criminality, including statutory declarations", from which I infer that the defendant had not forgotten the next return date for these proceedings. 3. A series of Facebook posting made as recently as yesterday.
2. Mr King gave a brief outline of the circumstances leading to the bringing of the defamation proceedings as well as this application. The plaintiffs are the publishers of a monthly local print newspaper called "LatteLife Wingecarribee" that services the New South Wales Southern Highlands region. It is a family business, as the second plaintiff is the first plaintiff's mother. The defendant had been an independent contractor for this business, providing copywriting and graphic design services between 2014 and 2017. There was a falling out between the parties and in April 2019 the presiding magistrate at Waverley Local Court granted an Apprehended Personal Violence Order for 12 months pursuant to section 19 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) in relation to what Mr King describes as the defendant's "continual intimidation and harassment" of both plaintiffs.
3. The allegations made against the plaintiffs in the first matter complained of need not be set out in detail; their contents may be gleaned from the imputations pleaded. The snide tone of the first matter complained of, which refers to the plaintiffs as "Mummy and Clyde", is of particular note, as it is not only offensive but makes the plaintiffs (who are not specifically named) readily identifiable. The first plaintiff's affidavit sets out the relevant material concerning the falsity of these imputations, as well as the background history relevant to the motive for publication.

The relevant principles of law

1. Where it is clear there is a triable defence, that is ordinarily fatal to an application for an interlocutory injunction. However, where no defence has been filed in accordance with a court order, the court is entitled to assume that no defence may be apparent: Doe v Dowling [2017] NSWSC 1793 at [24]. This is not a case where there is any dispute to the element of publication or challenge to the imputations or their defamatory nature, or uncertainty as to the plaintiffs' entitlement to ultimate relief: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535.
2. The principles to be applied in determining an application for an interlocutory injunction to restrain the publication of allegedly defamatory matter were considered by the High Court in ABC v O'Neill (2006) 227 CLR 57. Those principles were helpfully summarised by McCallum J in Allan v The Migration Institute of Australia Ltd [2012] NSWSC 965 at [13]. Applying those principles here, in circumstances where there is no defence before the court despite orders to file one, the balance of convenience favours the granting of the order. I must take proper account of the significance of the value of free speech before restraining publication, but the very serious nature of the allegations and the entitlement of the plaintiffs to protect their reputations must, on the facts of this case, outweigh that component in relation to the imputations for which the restraint is sought.
3. I am also satisfied that there is a prospective threat of further publication. The defendant has continued to publish material defamatory of both plaintiffs despite being aware of this application being brought before the court on the first return date and being listed for today for determination. He has referred only obliquely to the first matter complained of that is the subject of the application but, reading between the lines, it is clear that the conduct about which he is seeking media publicity and police investigation includes the very serious claim of corrupt conduct involving a senior minister in the government.
4. The absence of the defendant, and his failure to file a defence, are unexplained. The defendant should not benefit from these failures to attend or to comply with orders. However, I should add that the continuation of the orders I have made today is a matter that the defendant can challenge when these proceedings are next before the court. In addition, as the orders reflect, the time for the defendant to file a defence has been extended.
5. Although the plaintiffs are litigants in person, they have incurred disbursements which may be the subject of a future claim. I have accordingly reserved costs.

Orders: 1. Time for the defendant to file a defence extended from 20 May 2021 to Monday 14 June 2021. 2. Matter stood over to the Defamation List for directions Thursday 17 June 2021 at 9am, on which date the plaintiffs propose to seek a Self-Executing Order if no defence has been filed. 3. The plaintiff is to notify the defendant of these orders by email by 5pm today. 4. Costs reserved. 5. Notice of Motion Orders: By way of an interlocutory injunction and until further orders and upon provisions by the plaintiffs of the usual undertaking as to damages, pursuant to section 46(1) of the District Court Act 1973 (NSW): 1. The defendant be restrained by himself, his servants or agents, from publishing or causing to be published the first matter complained of, namely the Facebook post, "Tayloring Your Political Bribes", or matters substantially to the same effect as such matter on the worldwide web (including Facebook and YouTube) or otherwise. 2. The defendant is restrained from publishing on the worldwide web or otherwise any matter of and concerning the plaintiffs to the same effect as the imputations contained in the Statement of Claim and set out below: 1. The first plaintiff has made monetary bribes to an elected Commonwealth of Australia Cabinet Minister and Member of Parliament, The Honourable Angus Taylor MP, for the first plaintiff's own personal advantage; 2. The first plaintiff has made monetary bribes to an elected Commonwealth of Australia Cabinet Minister and Member of Parliament, The Honourable Angus Taylor MP, to improperly precure, by deception, Federal Government grant schemes that would financially benefit the first plaintiff's company; 3. The first plaintiff has committed serious and indictable criminal offences by giving a monetary bribe to an elected Member of Parliament of the Commonwealth of Australia; 4. The first plaintiff has been the recipient of illegally obtained funds from taxpayers of the Commonwealth of Australia; 5. The first plaintiff has deceptively attempted to influence the election result of the Federal District of Hume, during the 2019 Federal Election; 6. The first plaintiff conspired with the second plaintiff to deceptively attempt to influence the election result of the Federal District of Hume, during the 2019 Federal Election; 7. The first plaintiff published a news article on the front page of LatteLife Wingecarribee newspaper that had fabricated information against a political candidate running for the Federal District of Hume, during the 2019 Federal Election; 8. The first plaintiff has engaged in illegal and/or corrupt actions and/or business practices on previous occasions; 9. The second plaintiff has made monetary bribes to an elected Commonwealth of Australia Cabinet Minister and Member of Parliament, The Honourable Angus Taylor MP, for the second plaintiff's own personal advantage; 10. The second plaintiff has made monetary bribes to an elected Commonwealth of Australia Cabinet Minister and Member of Parliament, The Honourable Angus Taylor MP, to improperly precure, by deception, Federal Government grant schemes that would financially benefit the second plaintiff's company; 11. The second plaintiff has committed serious and indictable criminal offences by giving a monetary bribe to an elected Member of Parliament of the Commonwealth of Australia; 12. The second plaintiff has been the recipient of illegally obtained money from taxpayers of the Commonwealth of Australia; 13. The second plaintiff has deceptively attempted to influence the election result of the Federal District of Hume, during 2019 Federal Election. 14. The second plaintiff has engaged in illegal and/or corrupt actions and/or business practices on previous occasions. 15. 48 hours after service of these orders, the defendant take all reasonable steps to remove forthwith from the worldwide web (including Facebook) all matter that he has published, posted or uploaded concerning the plaintiffs to the same effect as the imputations set out in order 2(a) to 2(n) above. 1. Both the plaintiff and the court will notify the defendant of these orders by service on the defendant at the email address of [redacted] by 5pm today. 2. Costs reserved. 3. Any application to set aside these orders must be by Notice of Motion supported by affidavit evidence, returnable for next directions hearing on 17 June 2021.

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: 03 June 2021