Al Muderis v Duncan - [2016] NSWSC 1363

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Al Muderis v Duncan [2016] NSWSC 1363
Hearing dates: 14 September 2016
Decision date: 14 September 2016
Jurisdiction: Common Law
Before: McCallum J
Decision:
Interlocutory injunction to restrain publication of defamatory website granted.

Catchwords: DEFAMATION – ex parte application for injunction to restrain publication - defamatory website with name similar to plaintiff’s professional website – where suspected publisher subject to apprehended violence order prohibiting creation of a website that harasses the plaintiff – where breach of AVO would also breach a bond entered into upon suspension of term of imprisonment – no response by defendant to letter of demand.
Legislation Cited: Trade Practices Act 1974
Cases Cited: Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57
Caplin v Go Daddy NSW [2005] NSWSC 636
Mazzella v Al Muderis [2014] NSWSC 1087
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69
Swimsure (Laboratories) Pty Limited v McDonald [1979] 2 NSWLR 796
Category: Procedural and other rulings
Parties: Dr Munjed Al Muderis (plaintiff)
Rodney Duncan (first defendant)
Gerardo Mazzella (second defendant)
Instra Corporation Pty Ltd (third defendant)
Representation:
Counsel:
M Richardson, M Rabsch (plaintiff)
No appearance for the defendant
Solicitors:
Newhouse & Arnold Lawyers (plaintiff)

File Number(s): 2016/276179

Judgment

HER HONOUR: Dr Munjed Al Muderis is an orthopaedic surgeon practising in Sydney. Dr Al Muderis has this afternoon commenced proceedings on an urgent basis to restrain the continued publication on the internet of material he alleges is defamatory of him. The application has been brought before me as the defamation list judge in accordance with clause 8 of the defamation list practice note SC CL 4. The plaintiff moves for urgent interlocutory relief on an ex parte basis. Although the proceedings come against the background of a lengthy history of dealings between the plaintiff and one of the defendants, the event which triggered the present application came to the plaintiff’s attention on 31 August 2016.
On that date, the plaintiff’s solicitor wrote to the registrant of the relevant website, the defendant Mr Rodney Duncan, complaining of the material and seeking a response by 5 pm on 5 September 2016. That letter was sent by post and also by email to the appropriate addresses. No response was received.
At 12.26 pm today, the solicitor sent an email to the first and second defendants noting the absence of any response to the letter of 31 August 2016; enclosing a copy of the summons and unsworn supporting affidavit and seeking consent to the orders sought in the summons, failing which it was indicated that the plaintiff would approach the Court after 2.00 pm today. There was no response to that email. I acknowledge the relatively short period of notice of the ex parte application. However, the defendants have been on notice of the plaintiff’s complaints since 31 August 2016 and have not responded.
In the circumstances, I was satisfied that it was appropriate to proceed to hear the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Al Muderis v Duncan

Details

AGLC: Al Muderis v Duncan [2016] NSWSC 1363
Case: [2016] NSWSC 1363
Decision Date: 14 September 2016

CaseChat Overview and Summary

In the matter of Al Muderis v Duncan, the plaintiff sought an injunction to restrain the defendant from publishing defamatory content on a website with a name similar to the plaintiff’s professional website. The respondent, who was suspected to be the publisher, was subject to an apprehended violence order (AVO) prohibiting them from creating a website that harassed the plaintiff. The respondent’s breach of the AVO would also constitute a breach of a bond entered upon the suspension of their term of imprisonment. The defendant did not respond to a letter of demand from the plaintiff.

The primary legal issue the court had to address was whether an injunction should be granted to restrain the defendant from publishing the defamatory content. This involved considering the balance between the plaintiff's right to reputation and the defendant's right to freedom of expression. The court had to determine if there was a serious question to be tried and if the balance of convenience favoured the plaintiff. Additionally, the court needed to assess the impact of the AVO and the bond on the respondent's actions and obligations.

The court found that the balance of convenience favoured the plaintiff. Given the respondent's history of non-compliance with court orders and the potential for serious harm to the plaintiff's reputation, the court concluded that a serious question to be tried was present. The court also considered the respondent's failure to respond to the letter of demand, which suggested a likelihood of continued non-compliance. Therefore, the court granted the plaintiff an injunction to restrain the defendant from publishing the defamatory content on the website. The injunction aimed to protect the plaintiff's reputation and prevent further harm until the case could be fully heard and determined.

Orders