Carolan v Fairfax Media Publications Pty Ltd (No 7)

[2017] NSWSC 351

Supreme Court

New South Wales

Medium Neutral Citation:	Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351
Hearing dates:	2 September 2016
Decision date:	03 April 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Application for permanent injunctions refused
Catchwords:	DEFAMATION – where plaintiff wholly successful against media defendants in action for damages for defamation – whether permanent injunctions should be granted requiring removal of the defamatory material from websites and archives controlled by the defendants and restraining publication of that material – where defendants took no steps to remove the defamatory material prior to judgment but voluntarily removed it following publication of the court’s judgment in favour of the plaintiff – principles to be applied in the exercise of the court’s discretion to grant a permanent injunction in defamation cases
Legislation Cited:	Defamation Act 2005 (NSW), s 23, s 26
Cases Cited:	Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 Higgins v Sinclair [2011] NSWSC 163 Higgins v Sinclair (No 2) [2011] NSWSC 238 Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127; [2015] FCA 750 Law Society v Kordowski [2011] EWHC 3185 Phillips v Robab Pty Ltd [2014] NSWSC 1520 Polias v Ryall [2014] NSWSC 1692 Rastogi v Nolan [2010] NSWSC 735 Reid v Dukic [2016] ACTSC 344 Royal Society for the Prevention of Cruelty to Animals New South Wales v Davies [2011] NSWSC 1445 Sierocki v Klerck (No 2) [2015] QSC 92
Texts Cited:	ICF Spry, The Principles of Equitable Remedies (8th ed, 2010, Sweet & Maxwell)
Category:	Consequential orders (other than Costs)
Parties:	Sean Carolan (plaintiff) Fairfax Media Publications Pty Ltd (first defendant) Peter FitzSimons (second defendant)
Representation:	Counsel: K Smark SC with S Chrysanthou (plaintiff) ATS Dawson SC (defendants)   Solicitors: Kalantzis Lawyers (plaintiff) Banki Haddock Fiora (defendants)
File Number(s):	2014/245957

JUDGMENT

1. HER HONOUR: Mr Sean Carolan has been wholly successful in his action for defamation arising out of the publication of a series of articles in The Sydney Morning Herald and has obtained an award of damages in the sum of $300,000: see Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091.

2. In addition to claiming damages, Mr Carolan seeks permanent injunctive relief. During the hearing, the parties sought to have that part of the claim determined separately, after publication of the principal judgment. This judgment determines the application for permanent injunctions.

Relief sought

3. The relief sought includes both mandatory and prohibitory orders. In respect of each matter complained of, the orders sought are as follows:

1. An order that the matter complained of, or any matter in substantially the same form, be permanently removed from:

1. the SMH website; and

2. any archive and/or other website(s) associated with the SMH website; and

3. any other website related to, operated or controlled by the first defendant.

2. An order that the first defendant be permanently restrained from publishing the matter complained of or any matter to the same effect.

3. An order that the first defendant be permanently restrained from publishing the imputations found by the court to be carried by the matter complained of, of and concerning the plaintiff and any imputations that do not differ in substance.

4. The parties’ submissions did not separately address the question of the mandatory orders (order (1) set out above). The need for such orders had evaporated by the time of the hearing of the present application because each of the matters complained of had been removed from all Fairfax websites (albeit recently) by that time. In the circumstances, I am unsure whether the plaintiff intended to press for those orders. In case he did, I indicate that I would decline to grant any mandatory injunction in the present case because it would, in the circumstances, serve no practical purpose: cfHockey v Fairfax Media Pty Ltd (No 2) (2015) 237 FCR 127; [2015] FCA 750 at [10] per White J.

5. The principal focus of the submissions was the application for permanent prohibitory orders. I have determined that I should also decline to make those orders, for the following reasons.

Principles to be applied

6. The plaintiff’s written submissions acknowledge that, at the interlocutory stage, the courts have traditionally been reluctant to grant injunctions to restrain the publication of defamatory matter.

7. To a degree, the explanation for that reluctance is historical, as helpfully explained in Spry, The Principles of Equitable Remedies at page 325:

A rule of practice became established by which courts of equity ordinarily refused to issue interlocutory injunctions for this purpose [to restrain the publication of a libel], unless the grant of relief could be justified under a different head such as on the ground that what was intended to be done amounted also to a breach of confidence. One of the matters that led to the adoption of this rule was found in the difficulties that would be encountered by a court of equity in deciding various issues of fact which were more appropriately decided by a jury and which, indeed, it might in any event ultimately be necessary to have decided by a jury. These difficulties did not have the same force when it was a court of law that had jurisdiction to grant injunctions. Hence especially since the precise terms of s 79 [of the Common Law Procedure Act of 1854] were of great width and did not appear to import limitations based on the particular practices of courts of equity it was soon accepted that a common law injunction may be awarded, in an appropriate case, to restrain the publication of a libel or slander, although it has been stressed from time to time that this power should be exercised with caution if the injunction in question is sought before the tortious nature of the words in question has been definitively established at the final hearing.

8. Leaving aside that interesting historical analysis, there is an enduring rationale for drawing a distinction, at the interlocutory stage, between proceedings for defamation and other kinds of proceedings, as explained by Gleeson CJ and Crennan J in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [16]:

In his widely quoted judgment in Bonnard v Perryman, in which Lord Esher MR, and Lindley, Bowen and Lopes LJJ concurred, Lord Coleridge CJ explained why "the subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong" and why, when there is a plea of justification, it is generally wiser, in all but exceptional cases, to abstain from interference until the trial and determination of the plea of justification. First, there is the public interest in the right of free speech. Secondly, until the defence of justification is resolved, it is not known whether publication of the matter would invade a legal right of the plaintiff. Thirdly, a defence of justification is ordinarily a matter for decision by a jury, not by a judge sitting alone as in an application for an injunction. Fourthly, the general character of the plaintiff may be an important matter in the outcome of a trial; it may produce an award of only nominal damages.

9. The plaintiff submitted, however, that those principles have no application in relation to final injunctions. Mr Smark SC, who appears with Ms Chrysanthou for the plaintiff, submitted: “the public interest is not offended by the restraint of indefensible defamation; put another way, the public interest to which the law gives effect is the public interest in receiving truth, not falsehood”.

10. The submission entails a number of untested assumptions and comes close to suggesting the existence of a principle to the effect that, like costs, permanent injunctions follow the event. It may be accepted that, once a defendant has failed to prove a defamatory publication is true, the force of the special considerations identified in ABC v O’Neill is largely spent. However, I do not think it follows that a permanent injunction should be granted whenever a truth defence has failed.

11. There is surprisingly little discussion in the authorities at the level of principle as to when a permanent injunction to restrain the publication of defamatory matter should (and should not) be granted. It is helpful in that circumstance to begin by considering the nature of the jurisdiction to grant the relief sought. The application invokes the auxiliary jurisdiction of the Court; what is sought is an injunction in aid of a common law cause of action.

12. Leaving aside offers to make amends (which are voluntary), the primary remedy for defamation contemplated by the Defamation Act 2005 (NSW) is an award of damages. A significant award has been granted in the present case.

13. So far as I am aware, the proposition that a permanent injunction should ordinarily accompany an award of damages following the unsuccessful defence of a common law claim is unknown in any other field. The court would not, without more, make an order restraining the unsuccessful defendant in a professional negligence or motor vehicle accident claim from acting negligently in the future. I accept that the analogy is imperfect but it is appropriate to test what appears to be a premise of the plaintiff’s argument. I do not think it can be said, without qualification, that the restraint of speech - even indefensible speech - necessarily or ordinarily serves the public interest.

14. Nor can it be said, without qualification, that the public interest is “not offended” by the restraint of indefensible defamation. The public interest is offended by any court-imposed restraint that is not reasonably necessary in the circumstances. It is tempting to think that is particularly so in the case of injunctions to restrain publication, since such orders necessarily impair or take away a person’s freedom of speech. Upon reflection, however, it is difficult to articulate any principled basis for placing defamation in a special category in this context; any restraint of ordinary freedom imposed by order of the court warrants the same caution.

15. In my view, as a matter of principle, the critical factor in determining whether to grant a final prohibitory injunction in aid of a claim for defamation should be an assessment of the existence and degree of any threat or risk of a repeat of the publication of the defamatory matter successfully sued on in the proceedings. Such an order should only be made where the court is satisfied that the order is reasonably necessary to address that threat or risk.

Relevant authorities

16. Although a test has not been formulated in those precise terms in the authorities relied upon by the parties, they do lend support to that approach.

17. Mr Dawson submitted that a clear distinction is drawn in the authorities between media defendants on the one hand and individual defendants. He submitted that all of the reported cases in which final injunctions have been granted have involved defendants assessed by the court to pose a specific threat of re-publication. In the only case involving a media defendant (Hockey), permanent injunctions were refused.

18. In Hockey, White J addressed the supposed existence of a principle that permanent injunctions ordinarily accompany success in a defamation action. His Honour said (at [13]-[15]):

Mr Hockey referred to three matters in particular in contending that the permanent injunctions he sought should be issued.

The first was the judgment in Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40; [2002] 1 WLR 3024. In that case, the House of Lords set aside an award of substantial damages and substituted an award of nominal damages. Lord Bingham of Cornhill held at [27] that the appellant was nevertheless entitled to protection against repetition of the defamatory allegation. Lord Scott of Foscote went further saying at [89]:

It is normal for success in a defamation action to be accompanied by an injunction restraining the defendant tortfeasor from repeating the defamatory remarks.

Whatever be the position in England, permanent injunctions restraining a repetition of publication of matters found to be defamatory are not usually issued as a matter of course in this country. The authorities show that injunctions are issued only when some additional factor is evident, usually, an apprehension that the respondent may, by reason of irrationality, defiance, disrespect of the Court’s judgment or otherwise, publish allegations similar to those found to be defamatory unless restrained from doing so: Higgins v Sinclair [2011] NSWSC 163 at [245]; Royal Society for the Protection of Cruelty to Animals v Davies [2011] NSWSC 1445 at [63] [66]; Polias v Ryall [2014] NSWSC 1692 at [99]; Sierocki v Klerek (No 2) [2015] QSC 92 at [52] [53].

19. It may be noted that the Lords of Appeal were not unanimous in Grobbelaar. Lord Millett and Lord Hobhouse shared the view that the plaintiff should have liberty to apply to the High Court for a suitably worded injunction to restrain the repetition of the defamatory imputation on which the plaintiff had succeeded (at [61] and [69]). However Lord Steyn, in dissent, would have applied a different test, favouring freedom of expression (at [40]).

20. In any event, with perhaps one exception, all of the Australian authorities relied upon by the parties in the present case (or of which I am otherwise aware) in which permanent injunctions were granted involved some additional factor of the kind to which White J there referred. Indeed, that is also the position with the only English case relied upon by the plaintiff: Law Society v Kordowski [2011] EWHC 3185. The defendant in that case was the founder and publisher of a website called “Solicitors from Hell”. The decision includes an interesting discussion of the public interest question raised by Mr Smark in the present case. Tugendhat J expressed the view, with which I can only agree, that “freedom of expression can only advance the objective of truth if the participants in a debate aim at truth”. The decision nonetheless ultimately turned on an assessment of risk; in granting perpetual injunctions, Tugendhat J described the defendant as “a public nuisance” (at [183]).

21. So far as the parties’ submissions revealed, the relevant Australian jurisprudence begins with the decision of Simpson J (as her Honour then was) in Rastogi v Nolan [2010] NSWSC 735. That was a claim brought by a cosmetic surgeon against a former patient who was unhappy with the outcome of breast augmentation surgery performed by him. Even before the publication of the matters complained of in the proceedings, the defendant had engaged in a course of conduct revealing the existence of a threat to publish defamatory matter unless restrained. She had sent “a bombardment of correspondence” (at [15]), first complaining to the plaintiff directly and then writing further letters addressed to him but copied to various statutory bodies including the Medical Board, the Minister for Health and the Health Care Complaints Commission. When the plaintiff retained a solicitor, the defendant wrote to the solicitor making serious accusations about the plaintiff and claiming monetary compensation from him for revision of her surgery. She also wrote to the Premier complaining about the performance of cosmetic surgery (without specifically naming the plaintiff) and disrupted the launch of a book written by the plaintiff, flourishing two breast implants and screaming. Police were called. The plaintiff ultimately sought an apprehended violence order against the defendant, to which she responded by giving an undertaking not to approach him or defame him by any means. The matters complained of were published after those events. In addition to awarding damages, Simpson J considered a permanent injunction to be “necessary and appropriate”.

22. In Higgins v Sinclair [2011] NSWSC 163, the plaintiffs were directors of a company which marketed and sold an electrical conductor system under the name “Mainline”. The defendant was one of the inventors of that system. He published a number of allegations on websites and by email to the effect that that the Mainline system was not safe and that the rights to the invention had been stolen from him. The defendant represented himself in the proceedings. He acknowledged that he had published the matters complained of and accepted that the imputations and representations pleaded by the plaintiffs were conveyed by those publications. He sought to defend the claim on the basis that everything he had published was true and he stood by its content. The defence failed and the plaintiffs were each awarded damages in the sum of $100,000.

23. Dealing with the application for final injunctions, Johnson J noted that the defendant had the opportunity at the hearing to prove the truth of the imputations and had failed to do so. His Honour noted that the defendant had described himself as being emotional about the subject matter of the litigation and that it was apparent from some of his emails that he had not been able to restrain himself from communicating with others concerning that subject matter (at [269]). His Honour concluded that, in the “unusual circumstances” of that case, a proper basis had been demonstrated for the grant of injunctive relief in respect of the claim in defamation (his Honour considered the appropriate terms of the injunction in a separate judgment: Higgins v Sinclair (No 2) [2011] NSWSC 238). The decision to grant a final injunction in that case turned on his Honour’s assessment of the risk that the defamation would be repeated.

24. Royal Society for the Prevention of Cruelty to Animals New South Wales v Davies [2011] NSWSC 1445 was a case concerning an article published on a website and emailed to subscribers to the website. The article made a scathing attack on the conduct of the RSPCA (NSW) in its prosecution of a cattle farmer. It accused the RSPCA (NSW) of executing healthy cows for no reason and of corruption in the misuse of public donations.

25. The defendant had been served with the originating process by substituted service and did not appear at the hearing. Latham J awarded damages assessed in the sum of $100,000. The plaintiff submitted, as had the plaintiffs in Higgins v Sinclair, that while in many defamation actions damages are an adequate remedy, there are cases in which a defendant may be likely to publish similar allegations unless restrained, despite having been afforded an opportunity to defend those allegations and despite the allegations having been found by a court of competent jurisdiction to be unwarranted.

26. An additional feature relied upon by the plaintiff was the “mission of the RSPCA”. Specifically, it was submitted that the imputations attacked the specific role the RSPCA seeks to perform and that, in accusing the RSPCA of cruelty to animals, the defendant’s website had a real tendency to undermine that organisation’s ability to raise funds to carry out its objectives. Latham J was persuaded that both mandatory and prohibitive injunctions were warranted in that case.

27. In Graham v Powell (No 4) [2014] NSWSC 1319, I granted permanent injunctions against a defendant who had made repeated, unsubstantiated allegations of fraud and dishonesty against a Councillor of Palerang Council. Judgment had been entered by default and the defendant did not appear at the hearing. The evidence persuaded me that the defendant’s allegations about the plaintiff were irrational and that, unless restrained, he would persist in making them.

28. Phillips v Robab Pty Ltd [2014] NSWSC 1520 arguably provides an exception to the Australian trend. In that case, there does not appear to have been any suggestion of a threat of future repetition of the defamation. The trial judge, Rothman J, took an approach similar to that suggested by the House of Lords in Grobbelaar, saying “permanent injunctions, as part of the final relief, are a more common feature of defamation proceedings than was previously the case”. His Honour considered that permanent injunctions “have a particular use in circumstances where the defamatory material has been published on the internet and, therefore, can easily be republished”. An additional factor in that case was the view his Honour took as to the application of s 23 of the Defamation Act. That aspect of the judgment is considered below.

19. Polias v Ryall [2014] NSWSC 1692 was also a decision of Rothman J. In that case, the grant of permanent injunctions was firmly based on a finding relating to the likely conduct of the defendants if the order were not made. The plaintiff in that case was a poker player. He had attended a poker tournament in Las Vegas with the first defendant. In short, the proceedings arose from allegations published orally and on Facebook accusing the plaintiff of having stolen money from another player during that trip. In granting permanent injunctions, Rothman J said (at [99]):

Given the continuing nature of the publication and the refusal of the defendants to remove the publications or to cease and desist from the continuing repetition of the imputations, it is appropriate, particularly given the scurrilous nature of the defamatory imputations and their lack of bona fides, to grant injunctions, the effect of which is to enjoin the defendants and each of them from continuing to publish imputations of that kind relating to these incidents: see Rastogi v Nolan [2010] NSWSC 735, per Simpson J.

30. Sierocki v Klerck (No 2) [2015] QSC 92 was primarily a dispute between former business partners. Mr Sierocki and Mr Klerck had been in business together for a short period, providing insolvency advice under the name “Insolvency Guardian”. They had a falling out the cause of which was unexplained on the evidence. Mr Klerck was unhappy about the circumstances of their parting. After repeated “threats” (the nature of which is not specified in the judgment), he began publishing defamatory material concerning Mr Sierocki on various websites. His publications conveyed a broad range of defamatory imputations including imputations that Mr Sierocki was evil, stupid, a liar, “a fake” and that he had made false claims to having university qualifications. The fourth defendant, a disgruntled former client of Insolvency Guardian, joined in the campaign. In the month after service of the statement of claim, they published 24 further articles about Mr Sierocki. Justice Flanagan was “satisfied that the first and fourth defendants may be likely to publish similar allegations against the first plaintiff unless restrained” and granted final injunctive relief.

31. For completeness, reference may be made to Reid v Dukic [2016] ACTSC 344, which was published after the present application was argued. The plaintiff in that case was the Chief Executive Officer at Capital Football Pty Ltd. The defendant published of a series of defamatory posts about her on Facebook attacking her professional capacity to perform her role, conveying imputations of dishonesty and incompetence, among others.

32. Judgment was entered against the defendant by default. Following the entry of default judgment and before damages had been assessed, the defendant sent several emails to the plaintiff and her lawyers. One accused her of not telling the truth. Another, sent to the plaintiff’s solicitor, threatened the release of a media statement about the plaintiff “breaking the law”. Justice Burns held that the emails constituted a threat to publish further the defamatory matter that had already been published. Applying the decision of White J in Hockey, Burns J was satisfied that the defendant’s “tendencies to act irrationally and with defiance of any judgment that may be entered” provided “a clear case for the granting of injunctive relief”.

Assessment of risk in the present case

33. The fact that the defendants in the present case are a newspaper proprietor and a professional journalist is significant but not determinative. It remains necessary to assess the existence of any risk of future repetition by them of the defamatory imputations on which Mr Carolan has succeeded.

34. It is common ground that the defendants took no steps to remove the matters complained of from The Sydney Morning Herald website or other Fairfax websites on which that material appeared until publication of the principal judgment. Within three days after publication of the judgment, the material remained on the first defendant’s website. However, over the following several weeks, the defendants went to some lengths to remove all offending material.

35. The detail of the steps taken is set out in an affidavit affirmed by the defendants’ solicitor, Ms Norman. Ms Norman’s evidence was that, within a relatively short period after publication of the principal judgment, the defendants first took steps to have the matters complained of taken down from The Sydney Morning Herald website and all other Fairfax websites on which they appeared. Counsel for the plaintiff then sought to have other articles, which repeated some of the content of the matters complained of, removed from Fairfax websites as well. Initially, two further articles were identified. Shortly afterwards, additional articles were added to the list. The defendants sought to address the additional articles by excising the portions of the text which repeated the content of the matters complained of. That proved impracticable and ultimately the additional articles were removed in their entirety from all Fairfax websites.

36. Ms Norman’s affidavit concluded:

I am instructed by [the Managing Editor of The Sydney Morning Herald] and believe that Fairfax Media has no intention of republishing any of the matters complained of or any parts of any of the other publications [identified by the plaintiff] which repeat the contents of the matters complained of and which were the subject of the judgment in these proceedings.

37. Mr Smark relied upon the manner in which the defendants responded to these proceedings as a factor pointing in favour of granting the relief sought. He submitted that the course of the trial ought to have brought home to the defendants the weakness of their defences. He further noted that the plaintiff’s claim included a very serious imputation as to which the only defence was the defence of comment. Mr Smark submitted that the failure of that defence “would not have come as any surprise to those who saw the trial”. In that context, he submitted that the defendants’ decision not to remove the matters complained of from Fairfax websites even after the trial indicated that the defendants could not be relied upon to exercise responsible journalism in the future.

38. Having presided over the trial, I understand the basis for the submission. However, I am not persuaded that the suggested weakness of the defences is a factor that should inform this question. Without wishing to suggest that litigation is a dark art, parties should not be expected to predict the outcome of a case based on the apparent course of the trial. In my view, it would be neither fair nor appropriate to attempt to judge whether the defendants can be relied upon to exercise “responsible journalism” according to an assessment as to what they ought to have appreciated before publication of the principal judgment.

39. As to the period after publication of the judgment, while the steps described by Ms Norman could have been taken more promptly, the difficulties she encountered in addressing those tasks are adequately explained. Ms Norman’s evidence has persuaded me that the defendants have ultimately reacted to the Court’s judgment in an appropriate manner, as should be expected of a respectable, mainstream media organisation. I am further satisfied that the defendants behaved reasonably in co-operating with the plaintiff’s legal representatives to identify all offending material for removal from Fairfax websites.

40. Mr Smark relied on a number of additional features of the present case which he submitted point to a risk of further defamation of Mr Carolan by the defendants.

41. First, he submitted that the matters complained of and the additional articles reflect a broad-based attack on Mr Carolan. He submitted that the Fairfax parties have, in a practical way, “gone after” Mr Carolan in this case. I accept, as submitted by Mr Smark, that this is not a case of a plaintiff being mentioned in passing in an article, or even being roundly defamed in a single publication; there was a sustained and vigorous attack on Mr Carolan in the Fairfax press which was continued (by keeping the matters on-line) after trial and even after judgment.

42. No doubt the scope of the attack was due in part to the subject matter of the articles and this nation’s fanaticism for the competition whose climax is affectionately termed “the festival of the boot”. Perhaps nothing excites the media in this country quite so much as the fantastic spectacle that is rugby league. The likely high profile of any future story concerning the use of drugs in sport is a relevant factor in assessing the risk of repetition by the defendants of the defamatory imputations concerning Mr Carolan.

43. As to Ms Norman’s instructions (that Fairfax Media has no intention of republishing any of the matters complained of or the additional publications), Mr Smark submitted that the internal position reflected in those instructions, being couched in terms of a lack of present intention, is neither enforceable nor such as to engender any confidence that a system would be put in place to ensure no repetition of the defamation. Mr Smark submitted that, in the circumstances, the grant of a final injunction would be “a fair way” of affording the plaintiff the best prospect of not being defamed again.

44. Mr Dawson submitted that, in the absence of some threat to publish, the Court would not exercise its “extraordinary power” to impose a permanent restraint on a defendant in respect of something it has accepted must be removed from its websites. He submitted that, in light of Ms Norman’s evidence, the Court could be confident that any future publication due to inadvertence would, upon being drawn to the attention of the defendants, immediately be removed. He submitted that the object of spurring Fairfax into taking additional internal measures to prevent inadvertent republication of the imputations would not be sufficient warrant for the exercise of the Court’s discretion to grant a permanent injunction. There is force in those submissions.

45. On the issue of judicial reluctance to restrain publication, Mr Smark suggested that a reason why there are not many reported cases of final injunctions being granted is that they have not been sought. He submitted that, in the modern world, there is a greater imperative for injunctions in light of the ready availability of defamatory matter on the internet and the higher risk of its being regurgitated by other journalists in the preparation of other articles.

46. Mr Smark submitted that, if an injunction is not granted in the present case, the plaintiff potentially faces two difficulties in the commencement of any further proceedings in the event that the defamatory imputations are repeated by the Fairfax parties. First, he referred to s 23 of the Defamation Act, which provides:

23 Leave required for further proceedings in relation to publication of same defamatory matter

If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought.

47. Mr Smark acknowledged that the proper application of that section is not settled; indeed, opinion appears to be divided as to its application in the circumstances posited. In Hockey, White J rejected a submission that the application of the section would subject Mr Hockey to the burden of having to seek leave of the Court before being able to commence fresh proceedings in the event of future repetition by the defendants of the imputations on which he succeeded. His Honour considered that the submission was based on a misunderstanding of the effect of the section, the purpose of which is to limit the proliferation of proceedings when a single publication, or several publications of the same or similar kind, give rise to multiple causes of action.

48. Justice White considered that the section “should not readily be construed as requiring an applicant to obtain leave for a second set of proceedings in respect of causes of action arising from publications occurring after judgment on claims in respect of earlier publications”. His Honour considered that, in a case of that kind, “it is improbable that the later publication would satisfy the description of a ‘publication of the same or like matter’ for the purposes of s 23”.

49. A different view of the section was taken by Rothman J in Phillips v Robab. His Honour evidently considered that a successful plaintiff would have to obtain leave to commence further proceedings if the same defendant republished the same defamatory matter after judgment. His Honour said at [182]:

Given the terms of s 23 of the Defamation Act, a re-publication by the same defendant of the same matter cannot be the subject of further proceedings, except for leave of the court. In my view, it is appropriate to issue a permanent injunction to restrain publication of the material or imputations. Such injunction should, in the circumstances of this case, enjoin all of the defendants.

50. In oral submissions, Mr Smark submitted that I would not need to resolve those different views of the section for the purposes of the present application and, indeed, that I “probably should not”, since it was not fully argued. Perhaps, then, I have misconceived the extent to which it was a matter relied upon by the plaintiff. To the extent that he does rely on that consideration, it is difficult to see how I can avoid expressing at least a tentative view as to the potential application of the section.

51. On that qualified basis, I would respectfully prefer the analysis of White J in Hockey. In my respectful opinion, s 23 should not be construed so as to place any hurdle in the way of a plaintiff who, having succeeded in a claim for defamation, finds himself defamed again by the same defendant in the same way. Further proceedings in that event would not be a vice and could not be taken to be the vice to which the section was directed. I would understand the section to be directed at preventing the proliferation of concurrent actions against the same defendant in relation to the same or like matter. Repetition after judgment raises different considerations.

52. The second kind of hurdle Mr Smark submitted may be faced by Mr Carolan in the event of future repetition of the imputations on which he has succeeded in these proceedings was the gloomy spectre of a defence of contextual truth under s 26 of the Defamation Act. It is not the clearest section of the Act.

53. Mr Smark gave the following example (at T10.13):

If there were, whether by accident, either the regurgitation process, or otherwise, an article which repeated the allegation about him being sacked… but in the context of an article which made fresh allegations about him, what does he do? The allegation is untrue. He is left, potentially, not being able to, in a practical sense, sue if he recognises there is a substantial risk the other imputations could be proved true. He might still win, but he might get substantial mitigation. All of that in circumstances where the defendants should, “should”, the normative should, should not have been publishing that and one would expect, wouldn't do so if an injunction were ordered. It could be a question of real utility.

54. It is a powerful example. I accept that there is some risk, in Mr Carolan’s case, of future accidental repetition of some of the defamatory material on which he has successfully sued. Of course, the hypothetical example posited assumes the contextual publication of different imputations as to which he might be less sanguine in deciding whether to sue. It is difficult to know how to treat that consideration. On balance, while Mr Smark’s example illustrates a proper basis for entertaining some concern, I do not think it is such as to warrant the granting of final relief in all the circumstances of the present case.

Conclusion

55. Unlike many of the cases involving individual, non-media defendants, the defendants in the present case make no overt threat to repeat the defamation. Following publication of the principal judgment, they no longer assert an entitlement to publish the imputations sued on. I accept that there is a small risk of inadvertent repetition of the defamatory imputations. However, on balance, I am satisfied that the defendants would react responsibly in that event. Failure to do so would plainly aggravate any award of damages, in light of the content of this judgment.

56. There are powerful reasons for refusing to grant the relief sought. I am not persuaded that permanent injunctions should ordinarily follow success in an action for defamation. As stated by White J in Hockey, some additional factor is required. In my view, the power to grant a perpetual injunction which impairs or takes away a person’s freedom of speech should be exercised only where it is reasonably necessary to address the risk or threat of repetition of the defamation.

57. Those are my reasons for refusing the injunctive relief sought by the plaintiff. It will be necessary to hear the parties as to costs.

*****

Decision last updated: 05 April 2017