Martin v Najem

District Court of NSW|2022-10-12

td [2010] NSWSC 365 Sloutsker v Romanova [2015] EWHC 545 (QB) Stocker v Stocker [2019] UKSC 17; [2020] AC 593 Thunder Studios Inc (California) v Kazal (No 13) [2022] FCA 256 United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 Webster v Brewer (No 3) [2020] FCA 1343 Wilson v Bauer Media Pty Ltd [2017] VSC 521 Texts Cited: Council of Attorney-General Review of the Model Defamation Provisions - Background paper New South Wales Government Gazette, No 250, 10 June 2022 Category: Principal judgment Parties: Plaintiff: Mr Issac Martin Defendant: Mr Fouad Najem Representation: Counsel: Plaintiff: Mr T Senior Defendant: No appearance

Solicitors: Plaintiff: HWL Ebsworth Lawyers Defendant: Mr Halabi (excused from further attendance) File Number(s): 2022/00196825

The evidence before the court

The plaintiff prepared a Court Book (Exhibit B) which included the following affidavits: 1. Affidavit of the plaintiff. 2. Affidavit of the plaintiff's wife. 3. Affidavit of David Nesbitt.
The defendant has served no evidence. On the evening before the hearing, his solicitors sent the following email to my associate: "From: Zaki Hajjar [redacted] Sent: Tuesday, 11 October 2022 5:56 PM To: Wenjing Zhang [redacted] Cc: Tim Senior [redacted]; Neil Wallman Subject: Issac Martin v Fouad Najem ([redacted]) Dear Associate, We refer to the above matter. We note this matter is listed for Hearing tomorrow at JMT at 10am. We wish to inform the Court that we no longer act for Mr Najem. We confirm that do not hold instructions to appear for and on behalf of Mr Najem tomorrow. Noting the above, could you kindly confirm whether Her Honour will require our attendance tomorrow. We thank you in advance and look forward to hearing from you. Kind Regards, Zaki Hajjar | Partner"
Conformably with his obligations as a legal practitioner, Mr Halabi of Millennium Lawyers attended court to advise that the defendant had terminated their services on the previous day. As the defendant had failed to comply with Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 7.27 to serve a notice to this effect, indicating his current address for service, Mr Halabi assisted the court by providing the most current address he had for the defendant. I then excused him from any further attendance before the court.
The defendant was called three times outside the court at 10:15 AM and did not appear. A check of the AVL services confirms that he did not attempt to appear online. He has sent no message to my associate advising of his whereabouts, or whether he seeks an adjournment.
The practical result of his non-attendance is that there is no challenge to the plaintiff's submissions as to the capacity and defamatory meaning of the imputations, the adequacy or evidence of serious harm or damage to reputation, or to the plaintiff's request for a permanent injunction.
The procedure to be followed if a party is absent is set out in UCPR r 29.7, which provides: "29.7 Procedure to be followed if party is absent (1) This rule applies when a trial is called on. (2) If any party is absent, the court - (a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or (b) may adjourn the trial. (3) If, in relation to a liquidated claim, the plaintiff appears, but a defendant does not appear, the court may, without proceeding to trial, give judgment against that defendant on evidence of - (a) the amount then due to the plaintiff in respect of the cause of action for which the proceedings were commenced, and (b) any payments made or credits accrued since the commencement of the proceedings in reduction of the amount of the plaintiff's claim or costs. (4) If, in relation to any proceedings, the defendant appears, but the plaintiff does not appear, the court may dismiss the proceedings. (5) Subrules (3) and (4) do not limit the court's powers under subrule (2)."
A party is taken to have failed to appear if they have had adequate notice of the hearing and fail to attend. There can be no doubt that the defendant, who was represented on the date the hearing was set down by experienced counsel and a reputable law firm, had ample notice of the hearing. Where that party is a defendant, the plaintiff is only obliged to prove the claim so far as the burden of proof dictates.
The court must also honour its obligations towards the absent party. In Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365, Barrett J sets out the duties owed to the court by the party who is present, and the approach the judge should take in such circumstances. Conformably with those obligations, I have put questions to Mr Senior about certain issues raised in the defence as well as the factual material.
Ultimately, however, as Barrett J notes at [64], in an adversarial system, the responsibility for conduct of a case rests with the party concerned. Taking Barrett J's observations into account, I did not require the plaintiff or his witnesses to step into the witness box to expand upon their affidavit evidence; nor do I consider I was obliged to have a Socratic argument with Mr Senior about whether the imputations are conveyed, or to look for arguments in the defendant's favour in relation to serious harm, damages and injunction issues. I have been guided also by the approach taken to serious harm issues in hearings in England where the defendant does not appear, such as Fentiman v Marsh [2019] EWHC 2099 (QB) (although it must be acknowledged that in England ex parte defamation proceedings are, unlike Australia, comparatively rare).
One aspect of the evidence does, however, require comment from me. It is the general practice, in judgments, to set out the matters complained of and to refer to their contents when determining issues of imputations, serious harm and damages. After careful consideration, and having consulted Mr Senior, I have decided not to do so and, in particular, not to refer to the defendant's Instagram accounts by name. This is because the publications sued on and the subsequent publications relied upon for damages issues are, to use the description of them in paragraph 14 of the statement of claim, so sensational, abusive and profane that they should not be reproduced without the most compelling reasons.

The parties and the circumstances leading to publication

The plaintiff and defendant each describe themselves as social media "influencers" who publish blogs on Instagram. Both post blogs on food-related issues.
The plaintiff started his career as a pastry chef, and later began his career in social media by posting photographs of his food and by participating in competitive food eating, where he was known by the name "Sir Eats-a-lot". As a result of these competitions, he began promoting the venues he was eating at by posting photographs and venue details on his Instagram account. He became widely known by his social media name (or "handle"), "@Issac_eatsalot". He built up a substantial following on social media as well as a reputation in the food industry. As a result, he began to be asked to promote restaurants and other venues through his Instagram account and social media platforms. The plaintiff has been so successful in these activities that he now works as a food blogger, promoting and reviewing food venues online. He works in paid partnership with venues and business to advertise and promote them. He also manages social media accounts for his business, Chew Crew Media.
At the time of the matters complained of, the plaintiff had more than 210,000 followers on Instagram, around 40,000 followers on TikTok and around 10,000 followers on Facebook. He is a verified personality on Instagram (denoted by the coveted "blue tick" symbol). As a result, he is invited to, and involved in, prestigious public events, such as the NSW Government's Australia Day celebrations in 2022, where he featured in a video that was played during events and participated in promotional activities this year for the NRL Indigenous All Stars game.

The plaintiff sees the matters complained of

On 22 April 2022, the plaintiff began to receive messages from people he knew, informing him that the defendant had published a video about him on Instagram. Those people included David Nesbitt, who was someone who had followed the plaintiff for some years on Instagram and interacted with the plaintiff and his wife through that platform. Mr Nesbitt knew the plaintiff to be someone with a significant following and a good reputation in his food blogging work. He instantly recognised that the defendant was referring to the plaintiff in the video and heard the defendant call the plaintiff a paedophile and a racist. He was concerned and contacted the plaintiff and his wife to check on their wellbeing.
The plaintiff did not follow the defendant on Instagram and so had to search for his account. He quickly found the defendant's First Instagram Account and saw that a video that had been posted on the defendant's First Instagram Account directed followers to the defendant's Second Instagram Account. The handle to the Defendant's Second Instagram Account was superimposed over the video, and acted as a link to the Defendant's Second Instagram Account. The plaintiff selected that link and was taken to the Defendant's Second Instagram Account which he did also, noting that those who followed these directions of the defendant were told, in the post, to "let him [the plaintiff] know what u [sic] think about him".
The plaintiff was appalled and offended by the contents of the first matter complained of. It made him feel sick, particularly given the abusive and profane language and the almost visceral hatred in the defendant's tone of voice. He was offended and concerned about the impact on him, his family members and his business relationships by being called a racist and a paedophile. His upset and anxiety was exacerbated by his knowledge that they had been made by an Instagram business rival who had a relatively substantial following. His hurt to feelings was increased by seeing the distress of his wife, who was sickened by what she saw and in great distress.
The plaintiff initially hoped that this was a "one-off" rant and that there would be nothing further. However, the next day, while the plaintiff and his wife were having lunch with a friend, the plaintiff became aware that the defendant had published a second video about him on his Second Instagram Account. The defendant repeated the imputations that the plaintiff was a paedophile by calling him a "pedo dog" and by calling him a racist who attacks Muslims. The defendant said that the plaintiff was the most hated person in the industry.
What was particularly upsetting for the plaintiff was that, at the end of this second video, the defendant had posted a photoshopped picture of the plaintiff at Bondi Beach with the word "RACIST" superimposed over him. That photograph had been taken and used to promote the plaintiff's work with this year's NRL Indigenous All Stars game, a particularly successful venture of the plaintiff's and one which had enjoyed widespread publicity. The plaintiff would be immediately recognisable from this photograph, not only to those who knew him personally but also to anyone who recalled the NRL publicity about this important event supporting indigenous players.
In addition, the plaintiff had the distress of hearing the defendant viciously attack his wife's appearance and personality and of seeing his wife very distressed to read the attacks on herself as well as the attacks upon him. The attack on the plaintiff as a racist was particularly hurtful because the plaintiff's wife is Filipino.
The plaintiff's wife has provided an affidavit for the court. She sets out how the publications made by the defendant during the April long weekend had impacted on her husband, describing him as generally a very positive and "happy go lucky" person who dramatically changed, almost immediately, to become constantly stressed out and mentally drained.
This was only the beginning of the campaign of abuse. First, the defendant was deluged by posts from other Instagram users, including by people who posted comments in response to posts he made on his account, people sending him direct messages and people sending him messages to his mobile phone.
At about the same time, the defendant began to publish a series of abusive messages about the plaintiff and his wife. Those further publications (which are relied upon for aggravated damages only) were as follows. Several hours after the second matter complained of was published, the defendant published Video 3, which again included the photograph of the plaintiff at Bondi Beach. The plaintiff was concerned that this was the commencement of a campaign against him that would involve further attacks and that the defendant was intent on destroying the plaintiff's reputation in the industry.
These fears were realised when Video 4 was published by the defendant the next day (24 April 2022). The plaintiff became aware of the video while he was checking the Defendant's Second Instagram Account. The video was derogatory and highly offensive towards the plaintiff's wife, and seeing her distressed about the attack on both of them increased his hurt.
The plaintiff was particularly concerned to see that the defendant had separately posted a video on his First Instagram Account which, like the first matter complained of, directed the defendant's many followers from that account to Video 4 on his Second Instagram Account.
Worse was to come. On the 24 April 2022, the plaintiff received a direct message from the defendant in which he told the plaintiff (among other things) that he was "going to end [him]" and that he was a "racist dog" and that he was "going to destroy you". This direct message compounded the anxiety felt by the plaintiff following the publication of the four earlier videos and he started to feel concerned about his safety.
A further video was published on 24 April 2022 by the defendant, which included a screen shot of the message he had sent that day to the plaintiff.
On 25 and 26 April 2022, the plaintiff reported the publications to the police and sought to apply for an apprehended violence order against the defendant. He was deeply distressed and sought medical assistance as well.
Since the plaintiff commenced these proceedings in July 2022, he has continued to receive negative and derogatory comments on his own Instagram account. Some are too gross to repeat, but there was a common theme of attacking the plaintiff having sued the defendant when he was a racist and a paedophile. Examples include: 1. "this guy sued [the defendant]. What a little weak prick." 2. "Praying for your downfall." 3. "FUKN GRONK." 4. "Racist leave [the defendant] alone! You look more guilty suing the single dad!!!" 5. "Who the hell takes recommendations from a guy that looks like a kiddy fiddler, yuck have a shower grub." 6. "You're the fakest bloke I ever seen you wanna go ruin somebody's life and business they worked hard for and then ignore all out [sic] comments your [sic] weak."
I have set out further material about the impact that this campaign of abuse in general and the matters complained of in particular have both had on the plaintiff in the sections of this judgment on serious harm and damages.
I additionally note the evidence of Mr Nesbitt. Mr Nesbitt only knew the plaintiff and his wife in the virtual sense; he had never met them, but he was a follower of the Instagram accounts of both the plaintiff and defendant. He helpfully explains, at paragraph 8 of his affidavit, how the defendant uses his smaller Instagram account to host publications that are offensive such as these, in order not to put his larger Instagram account at risk.
The first issue for determination is the capacity and defamatory meaning of the imputations pleaded.

Capacity and defamatory meaning

Mr Senior submitted that the relevant principles to be applied when determining whether a publication conveyed particular defamatory meanings are those which are set out in Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 at [63] - [73]) and Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [70] - [85] ("Rush") (which cites Hockey at [70] and [83]).
These judgments deal with publications made by the media, and not with expletive-laden social media rants of the kind demonstrated here. As the Full Court of the Federal Court explained in Bazzi v Dutton [2022] FCAFC, the approach to meaning taken by White J at first instance (which the Court set aside) was erroneous and contrary to the correct approach for social media publications, citing Stocker v Stocker [2019] UKSC 17; [2020] AC 593 ("Stocker").
In Stocker at 605-606 [41], Lord Kerr JSC said: [41] The fact that this was a Facebook post is critical. The advent of the 21st century has brought with it a new class of reader: the social media user. The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read."
The Full Court's rejection of White J's approach to meaning in the trial below must mean (since his Honour applied these principles at first instance in Dutton v Bazzi) that White J's interpretation of the tests for the meaning of a tweet as set out in Hockey v Fairfax Media Publications Pty Ltd are no longer good law, certainly in relation to publications such as the matters complained of here, and probably also in a more general sense, in that both these judgments refer to authorities which largely predate the uniform legislation. The same is the case with Rush, where the matter complained of's lurid "red-top" tabloid-style heading "King Leer" may now be seen to have required a similar approach, instead of reliance upon White J's test and comparison to reading a book or a serious news article. Dutton v Bazzi is a significant decision, and at appellate level, and is the decision to apply.
As Lord Kerr JSC went on to state in Stocker at [43], the imperative is to ascertain how a typical (ie an ordinary reasonable) reader would interpret the message. That search should reflect the circumstance that social media is a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre-eminently one in which the reader reads and passes on.
Conformably with the principles set out in Bazzi v Dutton, I have taken into account the nature of publications on social media as being critical to the determination of meaning.

The first matter complained of

The imputations pleaded in relation to the first matter complained of are: "a. The Plaintiff is a paedophile. b. The Plaintiff is a racist in that he mocks and verbally attacks Muslims"

The first imputation

The word "paedophile" is used in the introductory sentence "Isaac Eats-a-lot paedophile looking mother fucker", which immediately grabs the listener's attention. The word "paedophile" is used again in lines 28, 32. The crucial statement is at line 28, where he says that "this fucking paedophile looking mother fucker, which he is" (emphasis added). This is a clear statement that not only does the plaintiff look like a paedophile, but he is one.
This meaning is reinforced by the defendant directly addressing the audience, "So for everyone watching this right now" just before the statement that the plaintiff "is" a paedophile, which is the equivalent of saying "hey you" to the viewers to grab their attention to an important statement of fact. It is important to see the visual and verbal cues as these are how the viewer is drawn in.
Applying the approach of Lord Kerr JSC, the defendant's expletive-laden rant against the plaintiff may well wash over the ordinary reasonable reader before he or she passes on, but two statements would stand like stone. The first is the repeated allegation that the plaintiff is a paedophile, which is stated as a categorical fact. The first imputation is accordingly conveyed.
The second imputation, as I set out below, is the imputation of racism, which is similarly the subject of a categorical allegation.

The second imputation

As was the case with imputation (a), the defendant prepares his audience by calling to them, in this case saying "For my Muslim brothers and sisters, get ready, this is why" (line 9). Claims the plaintiff "disses" Muslims (line 12), is "taking the piss out of Muslims" (line 15) and "attacks the Lebanese people" (line 26) form the bulk of the personal attacks made on the plaintiff (apart from the attack on his cooking and influencer skills which, by reason of the sensational nature of the other allegations, comes out as an afterthought).
The allegation that the plaintiff is a racist who mocks and verbally attacks Muslims is clearly conveyed, in that these allegations form the bulk of the statements made.

Conclusions concerning the first matter complained of

Each of the imputations is conveyed and self-evidently defamatory.

The second matter complained of

The imputations pleaded in relation to the second matter complained of are: a. The Plaintiff is a paedophile. b. The Plaintiff is a racist in that he attacks Muslims. c. The Plaintiff is the most hated person in the social media marketing industry

The first imputation

The defendant states (line 14) that the plaintiff is "a fucking pedo dog". The ordinary reasonable reader would have no difficulty in understanding this to be a reference to paedophilia. Even allowing for the degree of informality on social media, this is a blunt statement of fact and I am satisfied that an imputation of paedophilia is conveyed and defamatory.

The second imputation

There are numerous references to the plaintiff's asserted racism towards Muslims. Not only is the plaintiff called a "racist dog" (lines 13 and 23) whose habit is "attacking Islam, attacking Muslims" (line 13) and who "hates multiculturalism" (line 14), but he is shown in a photoshopped photograph with the word "RACIST" on it. This imputation is clearly conveyed and defamatory.

The third imputation

The matter complained of specifically refers to the plaintiff at line 25 as "probably the most hated person in the social media marketing industry". There is so much bile and hatred expended on why the plaintiff is so hated that any impact from the word "probably" completely falls away.
This imputation is clearly conveyed and defamatory.

Conclusions concerning the second matter complained of

All three imputations are conveyed and defamatory.

Extent of publication

The plaintiff sets out in his affidavit and submissions that the defendant has two Instagram accounts which were used to circulate these publications. Both are public accounts and readily accessible to any interested member of the public.
Mr Senior has not named these accounts in his written submissions. As noted above, I do not propose to name them either. They are hereafter referred to as "the First Instagram Account" and "the Second Instagram Account". The number of followers for these two accounts is as follows: 1. The First Instagram Account: At the time of publication this account had around 20,000 followers. The screenshot at annexure E to the Plaintiff's affidavit indicates that it currently has around 24,500 followers. 2. The Second Instagram Account: The defendant's Second Instagram Account currently has 1,442 followers (annexure G to the plaintiff's affidavit). There is evidence that, on 23 April 2022, the Defendant's Second Instagram Account had 1,389 followers (paragraph 75 of the plaintiff's affidavit).
As Mr Nesbitt explained in his affidavit, the defendant used the larger account to publicise items he only published on his smaller account, in order to outwit Instagram's account supervision rules.
As is set out below in relation to damages, the plaintiff relies upon the grapevine effect for both publications, a matter that may be inferred as the typical result of serious allegations made by a well-known food blogger on social media. In Fentiman v Marsh, Richard Spearman QC referred to the test set out in Dhir v Saddler [2017] EWHC 3155 (QB) at [55]: "In my judgment, the authorities demonstrate that it is the quality of the publishees not their quantity that is likely to determine the issue of serious harm in cases involving relatively small-scale publication. What matters is not the extent of publication, but to whom the words are published. A significant factor is likely to be whether the claimant is identified in the minds of the publishee(s) so that the allegation "sticks" … (ii) A feature of the "sticking power" of a defamatory allegation that has potential relevance to the assessment of serious harm is the likelihood of percolation/repetition of the allegation beyond the original publishees ("the grapevine effect") (Slipper v BBC [1991] 1 QB 283, 300 per Bingham LJ). In Sloutsker v Romanova [2015] [2015] EWHC 545 (QB); [2015] 2 Costs LR 321, Warby J said at [69]: "… It has to be borne in mind that the assessment of whether there is a real and substantial tort is not a mere numbers game, and also that the reach of a defamatory imputation is not limited to the immediate readership. The gravity of the imputations complained of… is a relevant consideration when assessing whether the tort, if that is what it is, is real and substantial enough to justify the invocation of the English court's jurisdiction. The graver the imputation the more likely it is to spread, and to cause serious harm. It is beyond dispute that the imputations complained of are all extremely serious.""
It is often said that the graver the imputation, the more likely it is to spread and to cause serious harm: Sloutsker v Romanova [2015] EWHC 545 (QB), at [69]. That has certainly been the evidence here, where the grapevine effect is significant, looking at the other posts made to and about the plaintiff.
A relevant factor connected to the extent of publication is how long the matters complained of remained on the site. As is noted elsewhere, the plaintiff does not know precisely how long each of the matters complained of and the subsequent videos remained on the defendant's Instagram pages. I can infer that, as "Stories", they were published for at least 24 hours, unless they were added to the defendant's profile; the "Stories" feature on Instagram highlights where they would have remained for a longer period (paragraph 10 of the plaintiff's affidavit).
Even if they were only published for 24 hours, I can infer, from the evidence of Mr Nesbitt, that they percolated and spread to a wide group of publishees that included friends of the plaintiff. There is direct evidence, in the form of posts, that persons not known to the plaintiff trolled and abused him as a result.
I take into account in this regard that, as any social media user knows, it is in the nature of social media postings for them to be shared and commented upon. The evidence of the plaintiff and his wife, as well as Mr Nesbitt, suggests that is what happened, as part of the defendant's deliberate campaign to "destroy" and "end" the plaintiff, which threats are repeatedly made in both the matters complained of and the subsequent videos.

Serious harm

Section 10A, adapted from s 1 of the Defamation Act 2013 (UK), was enacted as a reform to discourage the bringing of cases likely to result in modest damages awards, where the costs were out of proportion to the damages: Newman v Whittington [2022] NSWSC 249 at [30] - [46]. Serious harm must be established in every action brought for publications in which s 10A has been enacted where those publications were made after the date of the provision coming into force. While caution must be exercised when interpreting how serious harm is to be addressed under Australian law as opposed to English law, the analysis of Brereton JA in Rader v Haines at [28]-[29] may be confidently accepted.
These proceedings are the first to consider s 10A in Australia in the course of a trial.
In the plaintiff's submission, the relevant factors in assessing whether serious harm has been caused or is likely to be caused include: 1. The meaning of the words and the gravity of any imputations. 2. The extent of publication. 3. The standing of the defendant, 4. The identity of the recipients and their relationship (if any) with the plaintiff. 5. The circumstances of the plaintiff. 6. The reaction of the recipients.
However, these are essentially headings, rather than evidence.
Serious harm requires fact-rich proof of harm which is actually or likely to be serious, rather than inferences of serious harm and a tendency to cause being drawn from the number of persons who were in the audience or other generalised statements. There must be causation between the publication and the serious harm. "Serious harm" may be established by inference, particularly in relation to future matters, such as whether the statement was read by people who will come to know him in the future: Napag Trading Ltd v Gedi Gruppo Editoriale SPA [2020] EWHC 3034 (QB).
The factors I consider to give rise to serious harm in each of the publications are as follows: 1. These publications are unique, in terms of serious harm considerations, in that the defendant is actually threatening the plaintiff with serious physical and professional harm. The imputations are published in the context of the defendant asserting that the plaintiff deserves to be harmed because of the asserted truth of their contents and he calls on his followers to do so. 2. The extreme nature of the allegations is an important factor. There are few more hated criminals in Australia than paedophiles. They are not even safe in gaol. To call a person a paedophile is at or near the top of the list of serious allegations. Allegations of being a racist are repugnant, but not in the same class. 3. The manner of publication is a key feature. The defendant is making a call to arms to his supporters. He is threatening to harm the plaintiff and calling on his supporters to help him. Part of that process of threatening the plaintiff is to insult and belittle him and his wife in such a way that he becomes dehumanised. This is the pedagogy of hate. It is the most disturbing aspect of the matters complained of. I note there is a reference to the manner of publication in the concerns notice and have treated this as a form of particular of serious harm, which the concerns notice has not specifically spelled out. References such as these, however, would be capable of amounting to serious harm, whether specified as such in the concerns notice or not. 4. The extent of publication is very wide. As indicated above, I am satisfied that the defendant published the matters complained of on both his Instagram accounts. One has 24,500 followers and the other 1,442 followers. What is more, these are public accounts. Social media accounts are not just seen by their followers; they may appear on feeds based on AI analysis of likely interested parties, or come up in a search. On any reading of the data, these publications were available to a substantial audience. The defendant was issued with a notice to produce to obtain analytics of the number of Instagram users who viewed and interacted with the two matters complained of. The defendant has failed to answer that notice to produce but there is ample evidence before the court of the very wide circulation of his blogs and videos on Instagram. 5. One of the reasons why the defendant's Instagram audience is so important is that he uses his second, smaller, Instagram account for controversial material which enables him to keep his account with a large following from getting into trouble with Instagram. By publishing a link on the bigger account to the controversial material on the smaller account, he avoids having his lucrative Instagram account suspended. (This does not augur well for Instagram's ability to police internet abuse, but that is irrelevant.) 6. There is strong evidence, from the comments posted by third parties and the affidavit of Mr Nesbitt, that there was an extensive grapevine effect. 7. The damage done to the plaintiff, in terms of the impact the publications have had on his health and concerns about his security, is compounded and ongoing by reason of evidence of the allegations "sticking" due to repetition by the defendant as recently as a few days before the hearing. The impact on his health is serious and capable of itself to amount to serious harm.
The plaintiff sets out, at paragraphs 112 - 113 of his affidavit, the level of stress and anxiety he was suffering. This caused him to seek medical advice and to take medication. In addition, he remained away from suburbs and places with a high Muslim publication in case he is recognised from the photographs. He is concerned about danger to himself, his wife and children. He has been and remains concerned about the impact of these publications on his business. He worries that Muslims might not want to deal with him and he has in fact refused some work involving Muslims, particularly of Lebanese background, as these persons were specifically referred to in the matters complained of.
This harm is exacerbated by ongoing publications from the defendant. On 9 October 2022, the defendant posted a further video on his second Instagram account, which referred to him and called him a "snitch", a "low life scum of a person" and a "fucken cunt". Of greater concern is the continued call by the defendant to his followers to approach the plaintiff on the street; "it's only going to get worse", he jeers at the plaintiff in this latest video.
The plaintiff continues to receive posts from third parties threatening him. One very recent example is: "Puk [sic] off grub no one cares pukwit [sic] trust me if I was you I would close the account and disappear that's the best thing you can do for yourself because people are coming and nothing you can do will stop it champ your mouth has got you in trouble and now its pay up time you fifthly [scil: should be "filthy"] grub."
Another post warns the plaintiff to "watch were [sic] you tread", calling him a racist.
All of the evidence points to the six months of threats as having a serious impact on the plaintiff's health and wellbeing. He has had to seek medical assistance and is taking a course of medication. He is anxious about security and has refused jobs or to visit certain areas of Sydney because of fears of attack, not only on him, but on his wife and children. The fact that this all came out of the blue - the plaintiff has never even met the defendant - makes it all the more frightening.

Conclusions concerning serious harm

I am satisfied that the plaintiff has established that the publication of each of the matters complained of has caused serious harm. In a sense, that harm appears even greater in relation to the second publication, given that it is repetition of the claims in the first matter complained of, and uses a photograph of the plaintiff from one of his successful business activities. Each of the matters is, however, individually as well as jointly, capable of causing serious harm to the plaintiff.

Conclusions concerning liability

I am satisfied that all imputations pleaded by the plaintiff are conveyed and defamatory and that the plaintiff has established serious harm.
As no substantive defences are pleaded, the plaintiff is entitled to judgment and the remaining question is one of assessment of damages.

Damages

This is the first time that damages have been assessed under the amendments to the Defamation Act 2005 (NSW) ("the Act") which came into force on 1 July 2021. As the relevant publications were made in New South Wales and there is no claim for publication outside that jurisdiction, I need not be concerned about publications in States or Territories where the amendments have not yet come before Parliament.

The relevant statutory provisions

In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded: s 34. This section provides that the amount of damages awarded must have "an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
Section 35(1) of the Act, the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is limited. Currently, the maximum award is $443,000 from 1 July 2022 (Government Gazette No 250 of 10 June 2022).
Section 35(2) of the Act provides that the maximum damages amount is to be awarded only in a most serious case. This provision reflects amendments made to the Act to clarify that the cap on damages for non-economic loss operates as a maximum amount in a scale of damages: Council of Attorney-General Review of the Model Defamation Provisions - Background paper at p 30.
Section 35(2A) of the Act provides that the maximum damages amount in s 35(1) of the Act does not limit the Court's power to award aggravated damages if an award of aggravated damages is warranted in the circumstances. Section 35(2B) of the Act provides that an award of aggravated damages is to be made separately to any award of damages for non-economic loss to which subsection (1) applies.
Sections 35(2A) and (2B) were introduced as part of the amendments made to the Act and following the decision in Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154 to clarify that the cap is applicable regardless of whether aggravated damages are awarded or not.

Non-economic loss

The nature and extent of this relationship between damages and the relevant harm, as set out in s 34, is explained by Applegarth J in Cerutti v Crestside Pty Ltd [2014] QCA 33 at [26]-[36].
I note, at the outset, that it may be that the defendant will not have the means to satisfy any judgment debt. That is irrelevant to the assessment of quantum. This is a case in which the court can, and should, give a judgment that achieves the object of vindicating the plaintiff's reputation.
As to the seriousness of the imputations, like French v Fraser (at [62]), they include that most terrible of allegations, paedophilia. Other cases with similar unprovoked attacks alleging paedophilia in social media posts (usually made, curiously, by total strangers) include North Coast Children's Home Inc. trading as Child & Adolescent Specialist Programs & Accommodation (CASPA) v Martin [2014] NSWDC 125 and Webster v Brewer (No 3) [2020] FCA 1343. While differing amounts have been awarded, all these judgments stress that paedophilia is among the most serious of claims. Racism is similarly an imputation of the most serious nature.
Hurt to the plaintiff's feelings is of particular importance in this claim. The plaintiff has suffered not only hurt and anxiety, but also from feelings of outrage, humiliation and helplessness at being unable to stop these attacks.
All of these factors call for a substantial award for each of the publications. The second is perhaps worse, in that it uses the plaintiff's photograph, but the first publication contains much repetition of the allegation of paedophilia. In practical terms, there is not much to distinguish between them. Substantial damages of the kind awarded in French v Fraser are called for. One sum should be awarded for both publications.

Aggravated damages

The relevant principles for the award of aggravated damages were set out by Applegarth J in Cerutti v Crestside Pty Ltd [2014] QCA 33 at [37]-[42]. As this analysis predates the differing view of the relationship between general and aggravated damages as set out by John Dixon J in Wilson v Bauer Media Pty Ltd [2017] VSC 521, it is an accurate analysis of the relevant principles, including the manner in which the fixed cap on damages should be approached when aggravated damages are awarded.
In his written submissions, Mr Senior draws my attention to the features in relation to aggravation relied on by his client. These are the seriousness of the imputations, the extent of publication, the impact on the plaintiff, the language used and the harm to reputation. These are largely matters for non-economic loss, although they can also feature in a claim for aggravated damages where appropriate.
In French v Fraser, McCallum J set out a series of factors which warranted the making of an award of aggravated damages in proceedings similar to the present. Those factors are all relevant here and I propose to apply them.
The first was the particular resonance of the imputations to the plaintiff's work, as is the case here: [87] The evidence establishes beyond doubt that Dr French has in fact suffered significant, lasting damage to his reputation as a result of the publication of the three matters complained of. As submitted on his behalf, the imputations had a particular resonance in the place where his reputation counts most, in the financial services and banking industry and the vexed field of complaint handling. The sensitivity of that particular community to allegations of the kind captured in the imputations is revealed by the way in which people who knew Dr French well reacted to what they read, notwithstanding the scurrilous tone of the publications and their complete lack of cogency or factual foundation.
The same is the case here. The matters complained of and subsequent videos, such as Video 3 and Video 4 evidence a malicious campaign against the plaintiff's business.
The attack was also very personal. The defendant not only attacked the plaintiff about his professional skills and competence, but also insulted and abused his wife and, even more relevantly for the purposes of aggravation, encouraged others to do so (which they did). This business connection is an explanation for the knowingly false allegations; I am satisfied that the defendant engaged in this campaign to attack and discredit the reputation of the plaintiff because he was a competitor. This motive is shown by the private message sent to the plaintiff by the defendant on 24 April 2022, in which the defendant further threatened to "end" and "destroy" him. That private message was subsequently published publicly by the defendant with the words "HAHAHAH I WANT EVERYONE TROLLING THIS CUNT" superimposed over the message plaintiff's affidavit at paragraphs 97 - 100). The defendant's intention was to encourage others to abuse and troll the plaintiff, to help the defendant put the plaintiff out of business.
The second factor McCallum J listed was the extraordinarily high amount of emotional pain and hurt caused by a campaign of terrifying (because it is meaningless and unexplained) vilification. Like the plaintiff in these proceedings, the attack on Dr French was an attack on someone the defendant had never met and had seemingly selected randomly. McCallum J explained that it was important not to increase the damages to include the broader campaign, even though the hurt of that campaign could be greater than the damage from the imputations in the publications complained of: [88] The evidence also establishes beyond doubt that Dr French has suffered an immense amount of emotional pain and hurt as a result of the publications. Care must be taken in that context to distinguish between what is actionable and what is not. The case is unusual in that the seriousness of the defamation, awful as it is, is dwarfed by the extremity of Mr Fraser's broader campaign of stalking, harassing and intimidating Dr French. I must be careful not to increase the damages awarded in this case to account for harm that is not actionable or at least not compensable in these proceedings. Dr French concedes that the "primary vector" for compensation must be damage arising from the publication of the three matters complained of.
Similarly in this case, the matters complained of were part of a campaign of tremendous ferocity and insult.
McCallum J additionally took into account the whole of the defendant's conduct, which was improper and unjustifiable: [89] It is permissible, however, to have regard to Mr Fraser's whole conduct to the extent that it has aggravated the hurt suffered by Dr French as a result of the publications, which undoubtedly it has. There can be no doubt that most if not all of Mr Fraser's conduct towards Dr French was improper and unjustifiable: cf Triggell v Pheeney (1951) 82 CLR 497. Mr Fraser's conduct could probably also be characterised as lacking in bona fides, especially since he abandoned his defence and capitulated to the entry of judgment against him. However, without having heard from Mr Fraser and not knowing the state of his mind, I would stop short of making that additional finding, which is not necessary in any event.
The evidence of lack of bona fides in this case includes the cynical use of the smaller Instagram to get around Instagram taking action against the defendant's valuable large account.
Her Honour was also careful to take into account the likelihood that the tone and content of the publications was such that some might have dismissed them as irrational rants. That is very much the case here. The profanity, aggressive language and at times incoherent presentation used by the defendant is such that some people would have dismissed the defendant's ranting for such a reason. I suspect that some might have stopped listening these rants and continued scrolling down to other social media content because the content is so confronting. Importantly for this factor, however, is that the imputations of paedophilia and racism appear at the very beginning of these rants, so even those social media readers who scrolled away would have had difficulty missing them.
Additionally, as was the case in French v Fraser, the defendant was claiming to take the moral high ground as a consumer advocate in his rants. McCallum J explained how this aspect of the damage should be dealt with as follows: [90] I have regard to the fact that, although many people plainly reacted seriously to what they read, the tone and content of the publications would have prompted some to dismiss Mr Fraser's missives as irrational rants. The imputations would not have had the impact of an imputation published in a major newspaper by a respected journalist. Still, the sheer brazenness of the allegations and Mr Fraser's cynical invocation of the noble status of consumer advocate and activist may have sounded compelling to some readers.
The defendant in French v Fraser did, however, have one redeeming characteristic, in that he ultimately consented to the entry of judgment and did not contest any of the material on damages, sparing the plaintiff the "unhappy prospect" of facing the defendant in court: [91] I also have regard to the fact that the harm suffered by Dr French, although aggravated by Mr Fraser's conduct (including his abandoned plea of truth), has in some small measure been stemmed by the fact that Mr Fraser ultimately consented to the entry of judgment against him and did not contest any of the material put on damages, sparing Dr French the unhappy prospect of facing Mr Fraser in court. That has afforded Dr French an opportunity to vindicate his reputation and to have that vindication recorded in this judgment without further aggravation. That is not a mitigating factor - I mean only to record the absence of an aggravating factor which must be kept in mind when comparing this case with other recent verdicts in defamation cases."
That is not the case here. The defendant could have come to court to challenge the plaintiff's evidence as well as cross-examining him and his witnesses - the plaintiff, his wife and Mr Nesbitt have been spared this indignity because he simply failed to attend court - but the likelihood is, given the defendant's conduct to date, that the plaintiff and his family will have to suffer further online attacks.
McCallum J handed down many perceptive judgments during her time as the Defamation List Judge; the extracts from her judgment set out above demonstrate the compassion she showed to the plaintiff (and, for that matter, to the defendant) in a case very similar to the present. Regrettably, there have been many cases since where attacks of this kind occur. In his written submissions, Mr Senior referred to Rothe v Scott (No 4) [2016] NSWDC 160, where I was the trial judge, where the sufferings the plaintiff endured included a serious physical assault. In approaching very similar issues to those before me now, I noted the helpfulness of French v Fraser in terms of dealing with what might be called "Internet Road Rage", a theme common to these kinds of internet attacks.
Taking all of the above into account, and applying the "hard cap" on damages appropriately, a sum similar to that awarded in French v Fraser and towards the top of the cap is called for, with the aggravated damages component included. While the campaign in that case was much longer and the number of publications greater, the defendant in French v Fraser had the grace in the end to acknowledge his wrongdoing. No such conduct is likely here; the result of this judgment is likely to be further attacks.
Factoring all of these matters into the sum to be awarded, and having read Mr Senior's additional submissions on quantum, I propose to award the sum of $300,000 inclusive of aggravated damages.

Interest

Mr Senior did not address me on interest, and I infer that he has left this issue to the court.
The principles for interest awards are summarised in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1540] ff. Interest rates on defamation awards tend to vary to take into account how the hurt decreases over time.
This case is unusual when compared to other defamation trials, in that the matters complained of were only published six month ago; I am unaware of any interest calculations relating to such a short period of time in other judgments. Given the very short period of time since publication, the hurt is arguably still considerable, so I propose to award 4.55% from the second date of publication (23 April 2022).

A permanent injunction

The defendant has always been on notice that in the statement of claim the plaintiff sought the following order: "An order permanently restraining the Defendant by himself or by his servants or agents, from publishing or causing to be published any defamatory imputation of and concerning the Plaintiff found by the Court to be carried by any of the matters complained of by any means whatsoever."
The plaintiff seeks a permanent injunction in the following form: "The Defendant by himself or by his servants or agents, be permanently restrained from publishing, or causing to be published, any matter that conveys any one or more of the following imputations, or imputations not differing in substance, of and concerning the Plaintiff: (a) he is a paedophile; (b) he is a racist; and (c) he is the most hated person in the social media marketing industry."
The District Court is a creature of statute and thus has no inherent powers. Mr Senior submits that if these proceedings had been assigned to the Common Law Division and included a claim for an amount not exceeding this court's jurisdictional limit (s 44(1)(a) - as this is $750,000, this would be the case for all but a handful of defamation claims), the ancillary equitable jurisdiction of this court to grant injunctions under s 46(1) of the District Court Act 1973 (NSW) is enlivened, not only for the making of interlocutory but also final orders.
Section 46 of the District Court Act provides: "46 Ancillary equitable relief: injunctions (1) Without affecting the generality of Division 8, the Court shall, in any action, have power to grant any injunction (whether interlocutory or otherwise) which the Supreme Court might have granted if the action were proceedings in the Supreme Court. (2) In relation to the power of the Court to grant an injunction under this section - (a) the Court and the Judges shall, in addition to the powers and authority otherwise conferred on it and them, have all the powers and authority of the Supreme Court and the Judges thereof in the like circumstances, (b) the appropriate officer of the Court shall, in addition to the duties otherwise imposed on the officer, discharge - (i) any duty which an officer of the Supreme Court would be required under the practice of the Supreme Court to discharge in the like circumstances, and (ii) any duty imposed on the officer by the rules or by any order of the Court, (c) the practice and procedure of the Court shall, so far as practicable and subject to this Act and the rules, be the same as the practice and procedure of the Supreme Court applicable in the like circumstances, and (d) without affecting the generality of the foregoing provisions of this section, the powers, authority and duty conferred by paragraphs (a) and (b), and the practice and procedure of the Court referred to in paragraph (c) shall, subject to the rules, extend to the enforcement of any order of the Court made in connection with proceedings for the grant of the injunction. (3) Without affecting the generality of any other provision of this Act authorising the making of rules, the rules may make provision for or with respect to - (a) the procedure to be followed with respect to the granting and enforcing of an injunction under this section, and (b) any other matter necessary or convenient for giving effect to this section."
The question of this court's power to grant interlocutory relief including injunctions is not in doubt. Such relief must be ancillary. Does "ancillary" include final orders?
This court's lack of jurisdiction to grant equitable relief has been considered in a series of decisions. In United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 ("Hardy") at 332, Samuels JA stressed (at 332C - 333D) this court's lack of jurisdiction to deal with a threatened contempt of court where that contempt was not "in the face" of the court. The correctness of Hardy in relation to the determination of this court's limited equitable jurisdiction has generally been accepted: see, for example, Andrew Hennessey v Architectus Group Holdings Pty Ltd [2010] NSWDC 61. However, Hardy may be distinguished because s 46 did not apply.
In Pelechowski v Registrar (1999) 198 CLR 435 at [44], Gaudron, Gummow and Callinan JJ considered Hardy at [28] - [29] and the precursors to the District Court Act 1973 (NSW) in relation to a Mareva injunction, holding (at [38] - [46]) that this court did not have jurisdiction to punish and setting aside the conviction of the appellants.
There is no doubt that this court can make Mareva injunction orders; these are generally interlocutory in any event, and are clearly covered by s 46. There are, however, interesting observations by McHugh J, dissenting (at [76] - [83]) to the effect that this court does have a power of a much broader kind: "76. There can be no doubt therefore that, if the action between Mr Rahme and the appellant and Ms Stephens had been brought in the Supreme Court of New South Wales, that Court would have had jurisdiction to make the order that Christie DCJ made in the present case. Whether a judge of the Supreme Court would have made an order on the limited material before Christie DCJ may be doubted. But that is of no present relevance. The critical question is whether s 46 conferred jurisdiction on the District Court to make such an order. In my opinion, it did. 77. Jurisdiction is authority to decide. It is "the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision." When s 46(1) says that the District Court "shall, in any action, have power to grant any injunction ... which the Supreme Court might have granted if the action were proceedings in the Supreme Court", it gives the District Court authority to adjudicate in actions that could have been brought in the Supreme Court seeking the grant of an injunction. Consequently, it gives it jurisdiction in such matters. Moreover, the sub-section not only confers jurisdiction, it defines the rights and liabilities of the parties in actions in the District Court where an injunction is sought that could have been granted in a similar action in the Supreme Court. In The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett, Dixon J pointed out that statute law contains "varying examples of attempts to provide for matters of substance by arming courts with power to deal with them, instead of legislating directly and laying down inflexible rules prescribing independently the liabilities of the parties or what they may or must do." Nothing turns on the omission of the word "jurisdiction" in s 46. Nor is there any reason to think that the express mention of the term "jurisdiction" in s 133 indicates that s 46(1) was not conferring jurisdiction on the District Court. Section 46(1) gives the District Court authority to decide the rights of parties in an action calling for the grant of injunctions, and that is sufficient basis to hold that the sub-section confers jurisdiction. 78. The power conferred by s 46(1) is clearly wide enough to authorise the District Court to grant Mareva-type injunctions, including assets preservation orders, in an "action". That term is defined in s 4 of the Act to mean an "action in the Court, but does not include any proceedings under Division 8 of Part 3 or under Part 4." The present action was one for debt, and was outside Div 8 and Pt 4. Hence, the District Court had jurisdiction to grant a Mareva-type injunction in the action brought by Mr Rahme against the appellant and Ms Stephens. 79. The appellant sought to place a gloss on s 46(1) by reference to the side note to the section - "Ancillary equitable relief: injunctions" - and the historical fact that Mareva-type injunctions were unknown at the time that s 46 was enacted. Neither of these matters provides a persuasive reason for reading down the wide words of s 46(1). The side note merely confirms what is obvious from reading s 46 with the rest of the Act - the District Court is first and foremost a common law court on which s 46 confers an auxiliary equitable jurisdiction in aid of its common law jurisdiction. That Mareva injunctions were unknown in New South Wales in 1973 is a matter of no moment. The jurisdiction conferred by s 46 marches hand in hand with the jurisdiction of the Supreme Court. As the jurisdiction of the Supreme Court in respect of the grant of injunctions expands - whether by the development of equitable principle or as the result of statutory enactment - so does the jurisdiction of the District Court. In Knight v FP Special Assets Ltd Gaudron J pointed out: "It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant." Those words must be borne in mind when construing s 46(1). 80. One limitation that s 46(1) does impose on the jurisdiction of the District Court to grant injunctions is that its authority to injunct must be "in any action". Given this limitation, the appellant contends that the jurisdiction of Christie DCJ to grant an assets preservation injunction finished with his pronouncement of judgment for Mr Rahme. At that point, so the appellant argues, the action was over, Mr Rahme's cause of action having become merged in the judgment. 81. It is true, of course, that once the action was litigated in the District Court and judgment given, there was "a final and complete decision of the case in the ... court, and consequently that the question, whether the debt recovered was due, cannot be again litigated in any other Court." But that does not mean that the action was finished for all purposes. Thus, the Act provides that, where the judgment debt has not been satisfied, the registrar of the District Court may "issue a writ of execution to enforce the judgment in the action". A judgment is given in "the action". I can see no reason in principle or expediency why the power to grant an assets preservation injunction to prevent the defendant from frustrating the beneficial effect of a judgment for the plaintiff should not be regarded as given in an "action" even when it is given after judgment is pronounced. 82. Moreover, in the present case, the application for injunction was filed before judgment was pronounced. When judgment was pronounced, the parties understood that the motion for the assets preservation order had still to be resolved. That being so, it is impossible to conclude that the action between the parties had finished once judgment had been pronounced. To hold in the circumstances of this case that an assets preservation order could have been made immediately before judgment for Mr Rahme was formally pronounced, but not immediately after, is a result that should be avoided if it is reasonably open to do so, as I think it is. 83. In any event, s 46(2) extends the grant of jurisdiction conferred by s 46(1). Even if s 46(1) does not give the District Court jurisdiction to make an assets preservation injunction after judgment is pronounced, s 46(2) surely does. It declares that "[I]n relation to the power of the Court to grant an injunction under this section ... the Court and the Judges shall, in addition to the powers and authority otherwise conferred on it and them, have all the powers and authority of the Supreme Court and the Judges thereof in the like circumstances" (emphasis added). The powers and authority conferred by this sub-section are expressed in terms wide enough to encompass the authority - that is to say, the jurisdiction - to make an order preserving or protecting assets after judgment in an action has been given."
Kirby J, who also held that the appeal should be dismissed, first explained the nature of the District Court as follows: "Early statutory provisions permitting parties to an action in the District Court to rely on defences based on equitable grounds were limited and specific. They remain so. The court is called "inferior" because its jurisdiction is limited. Unless power is expressly conferred on the District Court, or necessarily implied from powers so conferred, a party seeking broader remedies must resort to a court of unlimited jurisdiction. In New South Wales, this is the Supreme Court of the State." (Citations omitted)
However, power to make such orders was contained in s 46, and Kirby J disagreed with the narrow approach taken by the appellant to the language of this provision, calling it "absurd" and "unpersuasive" (at [137] - [138]) because it ran contrary to "commercial realism" (at [140]). Part of that "commercial realism" included a recognition of the rapidly changing technology used in banking (at [141]) and, I would infer, electronic communications of other kinds as well, such as internet publications where the court needed quick methods to deal with breaches of orders.
These observations nail the unreality of a strained reading of s 46 by the majority to produce a result contrary to common sense. The "commercial realism" referred to by Kirby J should apply not only to the kind of orders under discussion in the proceedings before the High Court, but also to the making of permanent injunctions generally.
I am conscious that Mr Senior has not referred to or relied upon the dissenting opinions of McHugh J and Kirby J in support of his submissions that this court has power to grant permanent injunctions. He does not submit that Pelechowski was wrongly decided. In circumstances where the defendant is not even represented, caution must be exercised. However, the reasons explained by McHugh J and by Kirby J for stating that this court has powers of this kind under s 46 are persuasive. The issue of this court's power to grant permanent injunctions cannot continue being uncertain.
The problems caused by this uncertainty are all the more the case in this century than it was in the past, as Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305 demonstrates. The first instance judge had refused to apply the principles of equitable estoppel and the Court of Appeal accordingly inquired as to how far the District Court could apply the principles of equity. The complexities of the issues were such that Young CJ in Equity was brought in to hear the appeal. His Honour stated at [58] - [62]: "(4) Equity and the District Court 58 Mr Finch's submissions were to the effect that the Judge in the District Court ought to have applied equitable principles of estoppel and that she was wrong not to do so. The Court queried just how far the District Court could apply principles of equity. 59 Mr Finch replied that s 46 of the District Court Act 1973 conferred on the District Court in any action power to grant any injunction which the Supreme Court might have granted. Accordingly he says, that as what was before the District Court Judge was an action, that is a common law action, she was given the ancillary power of granting injunctions. Thus she should have directed her mind as to whether equity would have granted an injunction to prevent the respondent, unconscionably, relying on the statute. 60 Although I initially had some doubt about this matter, it seems to me that the limited submission which I have set out above is correct. Whilst the District Court has only a very limited jurisdiction to grant injunctions under its special jurisdiction in ss 134 and 135 of the District Court Act where there is an action at law properly before it, it has greater powers to grant an injunction in those proceedings by way of ancillary equitable relief. 61 Questions were asked of counsel as to how the District Court might enforce any injunction it might give under s 46 or otherwise. No clear answer was given. The District Court does not appear to have any machinery for enforcing injunctions. However, in the ultimate this is of little moment as either that Court would invent its own machinery under its inherent powers to make the jurisdiction given to it by its Act work, or alternatively the matter could be reported to this Court. 62 Mr Finch also put that even if the District Court did not have jurisdiction to make an injunction this Court is conducting a rehearing and has all the powers of the Supreme Court. I very much doubt whether this is correct. When this Court is hearing an appeal from the District Court, it is considering whether the District Court should have come to the decision that it did come to, having regard to its jurisdiction and powers. The fact that had the matter been before this Court from the beginning other orders could be made is to my mind irrelevant. As Isaacs J said in Dearman v Dearman (1908) 7 CLR 549, 561, "the whole duty of every Court of Appeal is to give the judgment which in its opinion ought to have been given in the first instance." However, the ratio of this decision is that an estoppel can never be set up to defeat a statute, and this decision can be distinguished for that reason."
The discussion has not developed further. The question of this court's equitable jurisdiction has arisen in two recent decisions before the Court of Appeal but, as both were hopeless cases, neither was a suitable vehicle. In the first of these appeals, Mahommed v Unicomb [2017] NSWCA 65, the Court of Appeal accepted that the plaintiff's statement of claim (which had been struck out as both hopeless and outside this court's jurisdiction) sought relief that fell outside this court's jurisdiction. Ward JA (as her Honour the President then was) noted the uncertainties surrounding the District Court's equitable jurisdiction but was concerned as to whether it was a suitable vehicle for the determination of this important issue. (Her Honour's fears were well justified; despite the Court of Appeal making it a condition that any further amendments to the claim had to be settled by Senior Counsel, the pleading grew ever more hopeless (Mahommed v Unicomb [2018] NSWSC 291 at [20] - [22]) and was eventually struck out (Mahommed v Unicomb [2021] NSWCA 108), so the issue of equitable jurisdiction remained unresolved.)
The second occasion for appellate consideration of this court's powers (and in particular the granting of a permanent injunction) involved a defamation claim where a plaintiff's sole complaint was that a disgusting insult he used to an 18-year-old cadet journalist, which led to his dismissal and professional ruin, had not been reported with sufficient precision (the rest of the matters complained of were not the subject of complaint). The plaintiff's demand for a permanent injunction was briefly made at first instance in bald terms of reliance upon s 46, but with a call to consider law reform issues. As the plaintiff wholly failed, this request was refused and the Court of Appeal, in dismissing the appeal, similarly did not deal with the issue: Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150 at [286] - [288].
Permanent injunctions have been granted in defamation proceedings in this court, but in specific circumstances, namely after transfer from the Supreme Court, as occurred in Gair and Turland v Greenwood [2020] NSWDC 586. Where such a transfer occurs, the powers of the Supreme Court travel with the claim. However, as this decision illustrates, if this court does not have jurisdiction to make permanent injunctions, the result is a two-tiered distinction between cases transferred from the Supreme Court, where there is power to grant a permanent injunction where the limited nature of the claim makes it more suitable to run in the District Court, and cases commenced in this court, where the plaintiff is effectively punished for starting in the correct court by not being able to seek a permanent injunction. That is undesirable.
The answer, in my view, lies in the analysis of s 46 set out by McHugh J in Pelechowski at [77] and the acceptance of Kirby J's criticism of the interpretation of s 46. The court's power is to decide these issues conformably with any action commenced in the Supreme Court.
Accordingly I am of the view that, for the reasons set out in the dissenting judgments of McHugh and Kirby JJ in Pelechowski, the District Court of New South Wales has jurisdiction to grant permanent injunctions. I accordingly make an order for a permanent injunction in the form sought by the plaintiff.
The ability to obtain a permanent injunction may appear an attractive remedy, particularly as, as is set out in the next section of this judgment, the Campbelltown police have refused to act and there has been no follow-up to the plaintiff's complaint to the Australian Cyber Security Centre. Unfortunately, the procedure for enforcing the injunction I propose to grant may be lengthy, expensive and uncertain, for the following reasons: 1. The wronged party's role in enforcement of an injunction is unclear. Whether the wronged party or some other person such as the Registrar of the Court of Appeal conducts the enforcement, he or she may still to have to bear more legal costs: Johnson v Nationwide News Pty Ltd & 1 Or [2005] NSWCA 17; 62 NSWLR 309 ("Johnson"), as there is "a real question" as to whether the party seeking to enforce the injunction can be awarded their own costs at all (Johnson at [25]; see the decisions referred to in Hague v Cordiner (No. 2) [2020] NSWDC 23 at [35]). 2. If the court refuses to make an enforcement order, or the Registrar or other person taking over pursuance of contempt proceedings decides not to go ahead, there may be no right of appeal: Johnson at [22]. 3. The enforcement process may not only be expensive and uncertain but also lengthy, as the history behind Thunder Studios Inc (California) v Kazal (No 13) [2022] FCA 256 demonstrates.
I mention these matters because the attraction of using a quick and cheap complaints procedure under the Online Safety Act 2021 (Cth) has much to recommend it. What is that procedure, and what happened when the plaintiff attempted to use it?

The plaintiff's complaints to the Australian Cyber Security Centre and to Campbelltown Police

The plaintiff sets out in his affidavit (at paragraphs 101 - 102) that, on 25 April 2022, he lodged a Cybercrime report to the Australian Cyber Security Centre, who in turn made a report to the Campbelltown police. The plaintiff went to the Campbelltown police station the following day (26 April 2022), because he was concerned about his safety given the threatening content and language in the videos. He states in his affidavit that he has not heard anything further about the status of that application even though it was made nearly six months ago.
In the course of the hearing, I inquired what the current status of this complaint was and if the plaintiff had made a complaint under the Online Safety Act 2021 (Cth) to the eSafety Commissioner. The plaintiff stated in court that he understood a "brief" for taking the material down had been prepared by, he thought, the eSafety Commissioner, and sent to the police for the relevant steps to be taken. However, when he went to see the police to find out what was being done, he was told that this was "a civil matter" and were not prepared to speak to him or to take any steps.
As is set out on the eSafety Commissioner's website (https://www.esafety.gov.au/about-us/what-we-do/government-agencies), there are four Australian Government agencies supporting online safety and security. The Online Safety Act refers to "serious harm" (ss 5 and 7) and sets out a complaint procedure. (It will be interesting to see how this kind of "serious harm" is to be interpreted, but evidence of the kind led in these proceedings might go some way). I do not know if this was the procedure used or not.
It is unclear to me why nothing has been done in relation to the plaintiff's complaints about the defendant's video posts, given their threatening nature. Perhaps there is some confusion as to the correct procedure. Whatever the explanation, I think it potentially likely to be the case that, after this judgment is circulated, there will be further publications by the defendant. If so, use of this new process for take-down orders may be quicker and cheaper than further court proceedings, but that is a matter for the plaintiff.

The application for leave to withdraw admissions

I conclude this judgment by briefly noting my reasons for orders I made on 29 September 2022 in relation to an application by the defendant to withdraw omissions.
The defendant brought an application pursuant to UCPR 17.3(3), that he be given leave to withdraw any admission relating to a Notice to Admit Facts dated 6 September 2022. These are my reasons for making the orders that I did on 29 September 2022.
The relevant background is as follows. At a directions hearing on 1 September 2022, defendant's former solicitor informed the court that he intended to serve a Notice to Admit Facts and, on that basis, the matter was adjourned until 22 September 2022 (and subsequently to 23 September 2022) in order to accommodate the 14 day period after service of a Notice to Admit Facts when, assuming no notice disputing any relevant fact is served, the relevant facts are deemed to have been admitted for the purpose of the proceedings: r 17.3(2) of the UCPR.
On 6 September 2022 at approximately 10:30am, the Notice to Admit Facts was served by email on the solicitor for the Defendant. However, no response was received. As a result, the facts specified in the notice were taken to have been admitted as at 21 September 2022.
At the directions hearing on 23 September 2022, the Plaintiff proposed in light of the above matters that the proceedings be listed for a final hearing to determine the questions of (a) meaning, (b) serious harm and (c) damages. It was then that the solicitor for the Defendant indicated for the first time that the Defendant intended to seek to withdraw the relevant admissions. The Defendant's application was listed for hearing on 29 September 2022.
The defendant's counsel explained that the Notice to Admit Facts had been overlooked. He acknowledged that most of the admissions sought were not controversial but challenged two groups of admissions sought. The first was that the persons whose social media addresses were given as "likes" or otherwise in a manner indicating that they had read the matters complained of had in fact downloaded and read the material. The second was that the publication was made on both of the defendant's Instagram accounts.
I allowed the defendant to withdraw admissions (items 7, 8, 23, 31-34 and 39-42) because the relationship between the two Instagram accounts is clearly a disputed issue of fact for the trial, and the oversight by the defendant's legal representatives should not prevent the defendant from relying upon such evidence as he proposed to call in this regard. However, as to the remaining admissions about readership, the plaintiff should not be put to proof of the identity of the persons who "liked" or otherwise responded to the defendant's posts and videos, as tender of this material is generally permitted for such a purpose in defamation proceedings.

Costs and other orders

I have not been addressed on costs but they should follow the event; I grant liberty to apply.

Order: 1. Judgment for the plaintiff for the sum of $300,000, including aggravated damages, plus interest of $6,656. 2. Defendant pay plaintiff's costs, with liberty to apply for indemnity costs and/or a gross sum costs order pursuant to s 98 of the Civil Procedure Act 2005 (NSW). 3. The Defendant by himself or by his servants or agents, be permanently restrained from publishing, or causing to be published, any matter that conveys any one or more of the following imputations, or imputations not differing in substance, of and concerning the Plaintiff: 1. he is a paedophile; 2. he is a racist; and 3. he is the most hated person in the social media marketing industry. 1. Exhibits retained until further order.

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: 17 October 2022

Defamation Act 2005(NSW)ss 10A, 34

At a glance

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Judgment (31 paragraphs)

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Legislation Cited (5)

Cases Cited (27)

Cited By (3)