CD v FG - [2021] NSWSC 300

Supreme Court

New South Wales

Medium Neutral Citation: CD v FG [2021] NSWSC 300
Hearing dates: 25 and 26 June 2019 and 4 July 2019; 23 September 2020; further written submissions September and November 2020
Date of orders: 26 March 2021
Decision date: 26 March 2021
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) The plaintiff is entitled to appropriate orders by way of injunctive relief.
(2) Submissions are to be made with respect to the form of the injunctive relief, suppression orders and on the question of costs.
(3) The proceedings are listed at 2:30pm on Friday, 9 April 2021 to take submissions on those questions.
(4) Any affidavits in support of the form the final orders should take are to be filed and served by Friday, 2 April 2021.

Catchwords:
TORT – defamation – injurious falsehood – injunctions – whether final injunction should be granted – principles to be applied in the exercise of the Court’s discretion to grant a permanent injunction in defamation cases – freedom of speech – suppression order – permanent restraining order – final injunction granted

Legislation Cited:
Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8 and 12
Defamation Act 2005 (NSW), s 30
Supreme Court Act 1970 (NSW), s 66

Cases Cited:
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 45
Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69
Rush v Nationwide News Pty Limited (No 9) [2019] FCA 1383

Category: Principal judgment
Parties: CD (Plaintiff)
FG (Defendant)
Representation:
Counsel:
B McClintock SC/M Richardson (Plaintiff)
L Goodchild (Defendant)
Solicitors:
Unsworth Legal (Plaintiff)
Michael Vassili Barristers & Solicitors (Defendant)
Self-Represented (November 2020) (Defendant)

File Number(s): 2018/329095
Publication restriction: Redactions have been made to this judgment to reflect non-publication orders made on 9 April 2021 by Lonergan J

Judgment

This case raises the vexed question of the role of the Court in intervening with rights of freedom of speech where the plaintiff, here CD, claims that the defendant, FG, plans to abuse those rights by publishing defamatory statements about him which are untrue.
The participants in this dispute are two adults who willingly embarked on a sexual relationship with each other in about March 2014 which ended at a time that is a matter of some debate, but was probably early 2016, although the last physical contact was October 2015.
CD was at the time, and as I understand it, still was at the time of the trial, a married man who normally lives in the [redacted] but travelled internationally for work. FG lives in Australia, was not married and was interested in perhaps transitioning into the area in which CD worked, namely [redacted].
After the relationship broke up, and there was email and phone contact by FG with CD and CD’s wife, CD sought an AVO in the Local Court in Sydney. These AVO proceedings were terminated with consent orders that included a most unfortunate and breathtakingly wide “gag” order that the “name of CD not be published or broadcast publicly”. These consent orders were imposed by the Local Court in [redacted]. The orders were complied with by FG.
In [redacted], FG sought a variation of the “gag” order because its width was oppressive and, as she interpreted it, prevented her from speaking at all about her experience, including to her health care professionals. That application and the affidavit filed in support of it, prepared, I suspect, without legal assistance, prompted these proceedings being commenced in October 2018 by Summons.
First, an interlocutory injunction was sought and, on legal advice, agreed to - also in rather wide terms but as I understand it was done pragmatically to preserve the status quo - and then, eight months later, the hearing before me seeking a final and enforceable ban on FG writing certain defamatory things about CD and their relationship. Both parties were cross-examined and oral and written submissions were made.
As a jury had not been requested, I had to perform the role of judge and jury in determining, on its merits, the matters raised in the Amended Statement of Claim and Defence and whether the final orders sought should be made.
After reserving, the decision of Rush v Nationwide News Pty Ltd (No 9) [2019] FCA 1383 dealing with the question of final injunctions was published and I sought submissions from the parties about that decision and the discussion of the authorities within it, which were provided in November and December 2020.
For the reasons that follow, I have determined that a final injunction should be granted, but given my findings, the terms of the injunction will need some adjustment to ensure that FG is not prevented from discussing, writing and if she so desires, publishing truthful things about CD, including naming him as the person with whom she had an extra-marital (for him) affair.

The wide-ranging relief sought by CD

On 20 October 2018, CD filed a Summons which sought interlocutory orders that:

The defendant by herself, servants and agents be restrained from publishing the following imputations or words conveying such imputations to the same effect:

The plaintiff took advantage of his position as the defendant’s employer to compel her to have unwanted sexual relations with him;

The plaintiff sexually assaulted the defendant;

The plaintiff sexually harassed the defendant;

The plaintiff employed the defendant.

The order specifically excluded from its effect FG discussing matters with her treating medical practitioner, her lawyers or the police.
Part of the interlocutory relief sought included a very wide-ranging suppression order that provided another level of restraint preventing FG from making any reference to CD.
The order sought pursuant to the Court Suppression and Non-publication Orders Act2010 (NSW) was prohibition by publication or otherwise throughout the Commonwealth of:

the pleadings;

the identity of the plaintiff or information which might tend to disclose his identity; and

any information that comprises evidence or information about evidence given in the proceedings; and

any orders of the Court made in these proceedings, other than for the purpose of service and compliance with the order of the Court in the proceedings.

On 13 November 2018, Adamson J made the restraining order by consent and the interim suppression order sought pursuant to s 8(1)(a) of the Court Suppression and Non-publication Orders Act until further order of the Court.
A Statement of Claim was filed on 20 November 2018 seeking a permanent suppression order in the same form and a permanent restraining order preventing FG from publishing any of the imputations, or any imputation to substantially the same effect or words conveying any such imputation or any imputation to substantially the same effect that:

The plaintiff took advantage of his position as the defendant’s employer to compel her to have unwanted sexual relations with him;

The plaintiff sexually assaulted the defendant;

The plaintiff sexually harassed the defendant;

The plaintiff employed the defendant;

on the basis that those assertions were defamatory and false, that there was a threat to publish and that there was malice and a valid basis for a claim in injurious falsehood.

An Amended Statement of Claim filed on 5 June 2019 modified sub-par (d) to read “The plaintiff filmed the defendant having sex without her consent” and pleaded associated imputations and sought relief to restrain publication of that matter on the basis that it comprised defamation and injurious falsehood.
The Defence to the Amended Statement of Claim filed on 13 June 2019 pleaded the facts of the alleged sexual assault on [redacted] January 2015, denied that the filming by CD of their sexual intercourse on 11 June 2015 in [redacted] was with FG’s consent, denied the relationship ended in November 2015 - stating it ended in May 2016, denied that the imputations pleaded arise, denied the imputations are defamatory and listed a series of tasks, - mainly emails and phone calls - that FG claims she did at the request of CD that amounted to “employment” of her by him and/or his company.
Specifically, FG pleaded in par 19:

In answer to paragraph 28 of the ASOC, the defendant denies that she is threatening or has threatened to publish the Complaint, the substance thereof and the imputations alleged in paragraph 19 of the statement of claim. The defendant admits that she wishes she be able to speak about what happened between her and the plaintiff in the circumstances referred to in the Complaint.
1. Par 28 of the Amended Statement of Claim states:
The defendant threatens to publish the Complaint, the substance thereof and the imputations alleged in paragraph 19 above and will do so unless restrained by order of this Honourable Court.
PARTICULARS
(a) The defendant put on an application to vary Order 11(b) of the Final Order Apprehended Violence Order in the Local Court of New South Wales on [redacted].
(b) In the defendant’s statement, the defendant stated the Final Order Apprehended Violence Order was consented to in the following context:
i. on a without admission basis;
ii. that issues of Harvey Weinstein and people associated with the “me too” movement was not yet in the public domain; and
iii. the defendant could not argue against a person as powerful in the media industry as the plaintiff as the defendant’s career would be over in doing so.
(c) In the defendant’s statement, the defendant stated she would like to be an advocate for young women in her position.
(d) In the defendant’s statement, the defendant stated the Final Order Apprehended Violence Order prevents the defendant from identifying the plaintiff as her abuser as an advocate for young women.
(e) In the defendant’s statement, the defendant stated the Final Order Apprehended Violence Order prevents the defendant from saying “me too”.
(f) In the defendant’s statement, the defendant stated journalists have approached the defendant to speak about the abuse but the defendant is unable to speak to them due to the Final Order Apprehended Violence Order.
(g) It is to be inferred from (a)-(f) above that the defendant also wishes to publish the Further Complaint, including to journalists.
1. Par 19 of the Amended Statement of Claim pleaded the particulars of the imputations, although particular 19(a)(iii) was in effect removed in closing submissions. [1]
  1. Tcpt, 26 June 2019, pp 165 to 166
The Complaint in its natural and ordinary meaning is defamatory of the plaintiff.

PARTICULARS OF IMPUTATIONS

(a) The defendant’s complaint conveyed the following defamatory imputations of and concerning the plaintiff:
i. The plaintiff took advantage of his position as the defendant’s employer to compel her to have unwanted sexual relations with him;
ii. The plaintiff sexually assaulted the defendant;
iii. The plaintiff sexually harassed the defendant; and

19A The Further Complaint in its natural and ordinary meaning is defamatory of the plaintiff.

PARTICULARS OF IMPUTATIONS

(a) The defendant’s Further Complaint conveyed the following defamatory imputation of and concerning the plaintiff:

i. The plaintiff filmed the defendant having sex without her consent.

FG denied CD is entitled to the relief claimed and denied that the injurious falsehood claim is made out.
In terms of statutory defences to the alleged defamation, FG pleaded that the imputations set out in par 19(a)(ii)-(iv) of the Amended Statement of Claim are substantially true, and if defamatory, qualified privilege applies under s 30 of the Defamation Act2005 (NSW) on the basis that sexual abuse is an important matter of public interest and there is public interest in the discussion of this subject matter.
A Cross-Claim was filed by FG on 18 June 2019 seeking an order restraining CD from displaying, sending or disclosing a record of he and FG having sexual intercourse (the recording in [redacted] in June 2015) and that it was a breach of confidence to make the recording as that recording was made without her consent. The cross-claim asserted CD showed the recording to his wife in July 2015. On this basis FG also claims equitable compensation, interest and costs.
In his Defence to the cross-claim, CD denied the recording was without consent and said his wife found the footage in a “deleted items” folder and so denies any breach of confidence.

Background Facts

i) CD’s account and my assessment of his evidence

In his affidavit of [redacted], CD described himself as a [redacted] year old [redacted] who lives in [redacted] with his wife and their [redacted] children who were at that time aged [redacted] and [redacted].
He described himself as a [redacted] of “[redacted]”, a company which [redacted]. He has one [redacted] and the company does not have an office in Australia.
The company presented [redacted] in [redacted] and [redacted] in 2018. Australia is an important market for the company.
CD stated that he will not [redacted] in Australia because he anticipated that FG “may cause him harm” if he did.
CD met FG online in October 2013. She was single and he was married. In April 2014 they met in person and they commenced a sexual relationship.
Over the following years, FG met CD whilst he was on [redacted], “at his personal expense”, at [redacted] 28 April to 5 May 2014, in [redacted] for a two-day business stopover in mid-June 2014, in [redacted] in mid to late September 2014, in [redacted] in January 2015, in early June 2015 in [redacted] and then in [redacted] in early October 2015. Consensual sexual activity continued throughout. His intimate relationship with FG lasted about 18 months and he says ended in around October 2015.
I interpolate here that in July 2015, CD’s wife found a recording on CD’s phone of CD and FG having sex. This was not mentioned in CD’s initial affidavit but has arisen as an issue as a result of the cross-claim FG filed seeking an order preventing CD from disseminating that recording.
CD’s wife finding the recording led to a series of WhatsApp messages between CD and FG, including this extract from the many exchanges on 9 July 2015, between 11:49am and 11:56am:

PL: I tried, deleted from her phone but failed to get to the apple messages on her computer in time when we got home

PL: Fuckin Apple backups everywhere

D: Call them if you have too. Apple can delete from backend

D: Gees

PL: Now she has her computer pass protected, changed her phone pass

PL: Apple won’t listen to a husband in this situation

D: Not that this is an option. Know the IP of a PC or a mac. That file can be deleted

PL: Phone still a problem

PL: And don’t know if the file is elsewhere in her hard drive other than just Apple messages

D: You have to keep playing it down

PL: Playing what down

D: It was a one off and my idea to film

D: Blame it on me

D: Crazy and reckless

PL: Still doesn’t make it easier to handle

The affair continued, with CD and FG meeting in [redacted] in October 2015.
On 18 March 2016, a cheque was drawn on [redacted] for USD$6,000 and sent to FG by CD, to cover airfares and expenses only.
At the beginning of 2016 CD says that he politely asked FG not to contact him again but she disregarded this request. He took steps to block her calls and emails but she “began using another email address” and set her number to private so she could contact him.
Between early June 2016 and February 2017, CD says that FG harassed him by continually contacting him as well as contacting his wife and his [redacted]. An email to CD’s [redacted] in January 2017 gave details of their affair and suggested a right to “ask for a public apology… both verbally and in writing” and proposing [redacted] donate [redacted] to various children’s charities for [redacted]. FG also referred to having not been “compensated for the harassment, character assassinations or any of the work” she did “supporting CD throughout this time” but that “he did reimburse me for three of my flights though, thank you. It was a [redacted] cheque, and rightly so”.
This was followed by an email to CD on 8 February 2017 that also requested a formal public apology and described how she felt about being used by him for sex, that he is a “disgrace to [redacted]” and that he “used his [redacted] to use women for sex and favours”. The email closed with:

“Please don’t return to Australia ignoring these issues. In Australia we publicly shame men like you. Every press person you talk to, I’ll share my story with, [redacted]. Sydney is a small country town at the end of the day”.

I note there is no accusation of sexual assault and no assertion that FG was actually employed by CD or [redacted] in either of these emails.
On [redacted], CD filed an application for an AVO in Sydney, supported by a written statement which detailed the contact made by FG between June 2016 and February 2017. The statement deposed to a belief that after announcing [redacted] would [redacted] in Australia in 2017, the harassment by FG “picked up dramatically” and that various emails and public posts intimated that she would expose their affair and that there were other messages that he interpreted as an oblique threat and/or demanding a formal public apology and threatening to “publicly shame him” and that he felt the harassment was escalating and was causing him “fear that she will show up at a [redacted]” and that he felt intimidated and it was causing him mental harm and harm to his relationship with his wife.
I note the emails and correspondence no doubt formed a reasonable basis for an application for an AVO but would not form a valid basis for a claim in defamation as the material in the emails, on the evidence before me, is substantially true. I should add that some of the emails sent by FG earlier on - July 2015 were in reply to a particularly humiliating, ugly and vicious piece of correspondence from CD’s wife in July 2015 which is also in evidence.
A final AVO was made in the Local Court of NSW at Sydney by consent and without admissions. The consent orders were signed by the solicitors acting for CD and FG. They contained the following orders:

For a period of two years from the date of the making of the orders:

Orders about behaviour

1. The defendant must not do any of the following to the applicant or anyone the applicant has a domestic relationship with:

a. Assault or threaten;
b. Stalk, harass or intimidate; and
c. Intentionally or recklessly destroy or damage any property that belongs to or is in their possession.

Orders about contact

2. The defendant must not approach or contact the applicant or anyone the applicant has a domestic relationship with in any way, unless the contact is through the defendant’s legal representative.

3. The defendant must not try to find the applicant or anyone the applicant has a domestic relationship with except as ordered by a court.

Orders about where the defendant cannot go

4. The defendant must not go within 500 metres of:

a. Any place where the applicant or anyone the applicant has a domestic relationship with lives; and
b. Any place where the applicant or anyone the applicant has a domestic relationship with works.

5. The defendant must not attend any [redacted] by the applicant.

Other orders

6. The name of the applicant must not be published or broadcast publicly.

In the “Final Order” executed by the Local Court, order 6 of the consent orders became order 11(b). That order should never have been drafted in such wide terms. It should not have been agreed to, it should not have been made and I doubt it was enforceable however it is common ground that FG complied with all of these orders.

On [redacted] FG filed an application to vary the AVO by the deletion of order 11(b) on the grounds that it is in the interests of justice to do so. The application was served on CD’s solicitors together with a statement which relevantly said the following under the heading “Application to Vary AVO”:

5. I seek to vary order 11 b being that the name of the (sic) must not be published or broadcast publicly.

6. Since the court date, a number of circumstances have changed that make the current AVO orders oppressive.

7. The Applicant and I were in an adulterous relationship. The Applicant is a [redacted]. During the course of our relationship he was sexually abusive towards me. The Applicant has been recognized with numerous grants and awards from organizations including the [redacted] and the [redacted] and is a celebrated [redacted]. He is the [redacted] of [redacted] and [redacted] for all of the [redacted] series. During this period, I was also employed by the Applicant as his Personal Assistant and Digital Media Coordinator. This entailed managing the Applicant’s digital media content and where necessary liaising with the Applicant’s associates and [redacted].

8. The Final orders were consented to in the context that they were:

a. on a without admission basis;
b. that issues of Harvey Weinstein and people associated with the ‘me too’ movement was not yet in the public domain;
c. I felt I could not argue against someone as powerful in the media industry as (CD), as my career would be over in doing so.

9. On or around March 2017 I have been seeking counselling from a medical practitioner due to circumstances of rehabilitation from the abusive relationship, however due to the nature of the court order as to non-publication, I am prohibited from publishing the name of the Applicant at any time, to any person.

10. This publication order is oppressive to my treatment.

11. The broadness of the terms of the order has the effect of me being unable to disclose the name of my employer over the course of the three years, (the Applicant being my employer for three years), whilst in his employ as his personal assistant and Digital Media Coordinator.

12. I have also since sought to be an advocate for young women in my position and I believe that I should be able to advocate through the Women in Film & Television NSW. This being in the context of an adulterous relationship after initial sexual relations have occurred.

13. This organisation is an organisation to assist with the advocacy of young women in the media industry. Attached is a screenshot of the Advocacy statement of the Women in Film & Television NSW, marked JB-1.

14. At this time, I am prevented from identifying my abuser, to either my medical practitioner or as an advocate for young women, because of the broad terms of the final orders; I simply cannot say “me too”.

Nature of the relationship with (CD)

15. I first met (CD) on or around September 2013. I commenced working for (CD) on or around May 2014.

16. On or around the end of March 2014 we started a relationship. I recall that my relationship with (CD) changed when he returned to Australia for the [redacted] at the [redacted].

17. On or around January 2015, I was sexually assaulted by (CD).

18. On or around [redacted] January 2015, (CD) and I returned from the [redacted] to the [redacted] Hotel in Sydney, and when at the hotel room, we went into the bath together.

19. At this time, I thought that we were just going to engage in foreplay and potentially intercourse, however when we soon were in the bath he aggressively demanded that I perform oral sex on him.

20. Because of the way he spoke I soon felt very uncomfortable and tried to stand up. At the time I was sitting with my legs underneath me, in the water, and I could not get up and he put his body weight on his right arm and on my shoulder. I refused to perform oral sex on (CD). He then grabbed the back of my head and forced my head to his crotch.

21. I recall that I struggled, and my jaw was sore but could not move due to the position I was in and as he was above me he blocked me from moving.

22. He then grabbed by right hand. I could only manage a few minutes of oral sex as my jaw was terribly sore. I had to use both hands to masturbate him.

23. I felt dehumanised and humiliated by this experience. I did not consent to the force that the applicant excreted (sic) on me.

24. I have been approached by journalists who want me to speak out about the abuse I suffered, but have not done so, owing to the non-publication order.

Appended to the statement was a three-page extract from a website WIFT, Women in Film and Television NSW headed “Advocacy”, stating that the group’s advocacy centres around “the five most important barriers to women’s equality as defined by the Committee for economic development of Australia” and includes workplace culture, lack of female leaders, gender stereotypes, lack of flexible work practices and affordability and accessibility of childcare. The pamphlet goes on to state the “aims and objectives to combat these” as to promote diverse and positive representation of women in screen-based media, to enhance women’s professional development, to ensure equal employment opportunities for women, to promote women’s achievements, to maintain a communications network for women, to raise women’s issues, to speak on behalf of our members and lobby for improvement in the related industries.
Having read FG’s affidavit in the proceedings, CD “denied wholeheartedly” that he forced her to perform fellatio without her consent while they were in a bath in the [redacted] Hotel on or around [redacted] January 2015.
He stated that the relationship continued for approximately nine months after that and during that period FG went to [redacted] and [redacted] in June and October respectively, to spend time with him.
I presume because of the positioning of this assertion in CD’s affidavit that this is somehow said to be relevant to the question of whether CD did or did not force FG to perform fellatio upon him against her will in January 2015 and that I should infer from those circumstances that the allegation is untrue. I do not draw any such inference, but there is other material that will be discussed later in this judgment that leads me to that conclusion.
Both CD and FG sent many hundreds of WhatsApp messages to each other during the relationship and some of these are appended to CD’s affidavit. He said that this does not contain all the messages sent and received between them, and that around [redacted] January 2015 there was “small talk” between them and “other communications reflecting a consensual relationship”. CD also stated that FG never complained to him that she did not consent to any act of sexual intimacy at any stage during the relationship, until she prepared the statement in support of her application to vary the AVO condition 11(b).
CD stated that he was “alarmed” that FG claimed that she worked for him when that was not the position. She simply accompanied him [redacted] as “his guest, as someone involved in a consensual relationship neither in any employment capacity nor as a hired independent contractor”. CD said that anything FG did to comment on any work that he was doing or to help promote his work, was done out of friendship and that the first time she alleged that she worked for him was in her [redacted] statement.
CD stated that FG told him she was employed by the [redacted] in a position related to social media marketing and technical assistance. FG told him that she aspired to be in the film and modelling industry, which is not his industry which is the [redacted] industry and that to his perception, she was “never in any industry that I was involved in or over which I had any influence”.
CD concluded his affidavit by expressing concern that FG “wants to damage my reputation based on an allegation of sexual assault and that I used my power as her employer to force her to engage in unwanted sexual relations. The allegations that I sexually assaulted her and that she was my employee are entirely false”.
CD prepared a second affidavit dated [redacted] in which he dealt with some matters raised in FG’s affidavit filed in these proceedings on [redacted].
CD confirmed that a cheque was drawn on [redacted] in an attempt to shield the transaction from his wife and that he reimbursed the flights out of fear that FG would tell his wife the full extent of the relationship. Reference was made to two emails that FG sent - one to CD’s wife on 17 July 2016 which stated, amongst other things:

“…He reimbursed me for all my flights and expenses as I constantly threatened to tell the truth. If a married man wants a mistress, at least pay for expenses and don’t take from her livelihood…”

and another to CD on 8 February 2017 in which she stated amongst other things “…all you did was reimburse me for my flights…”.

CD denied that he filmed himself and FG having sexual intercourse without obtaining her consent to that filming. He said that during the trip to [redacted] in June 2015, FG proposed that they film themselves having sex and he agreed. He said that during that same trip, they watched the video together as a method of foreplay before engaging in sexual intercourse on at least two occasions. He said that this had also occurred in May 2014 when they were in [redacted], although he did not recall the conversation in which they decided to film themselves but his understanding was that they agreed to do so on that occasion as well.
In cross-examination CD was adamant that he had never employed FG. He said that he “interacted with her like I would any of my colleagues. If that’s to say I was courteous and professional then sure but it was never a professional employment relationship, ever”.
He denied that he had ever introduced her to anyone overseas as employed by [redacted]. When asked how he introduced FG to certain people in [redacted], CD said:

“I introduced her as a friend and introduced her as FG. FG in fact introduced herself as someone that was working with us. It was a cover that she and I agreed that if it came up, in order to cover the relationship that we were having, that if she felt that she needed to refer to herself like this, she could”.

Somewhat confusingly when asked the question of how he introduced FG to [redacted] in [redacted], CD answered: “as a friend and as a colleague, as she was with multiple other people that she encountered on the various trips that we spent together”.
CD conceded that he did not remember the exact terms he used when he introduced FG to [redacted] in [redacted], but insisted that he had never introduced her as somebody “in his official employment”. CD said that in [redacted] on two occasions FG introduced herself as “working with [redacted] on PR and digital marketing” but that was not correct - she had never worked for him or his company.
CD described FG as a “fixer” meaning a person who fixes, changes or makes suggestions - “things like that”. He said that at times she would come up with suggestions that he thought were reasonable ideas and other times he didn’t agree with them. He said that he understood that FG had some expertise with the [redacted] but that any work or tasks she did for him were undertaken by her unbidden and that they were simply “suggestions and things that were done to assist in the way to treat someone that you’re in a relationship with, nothing more”. He emphasised more than once that all these tasks were unsolicited.
The cheque for USD$6,000 sent in March 2016 was explained to be drawn on the [redacted] account to “shield that transaction from my wife” and that it was “for flights and expenses after repeated threats from FG that if I did not do that, she would tell my wife the extent of our affair”. CD said that he reimbursed that money personally to the [redacted]’s business account and that it was drawn on that account because that was the only bank account he had access to that his wife could not access.
CD was cross-examined regarding the allegation of sexual assault in the form of coerced fellatio at the [redacted] Hotel in late January 2015. He repeatedly denied that he had ever coerced FG into any sexual act, stating that all sex was consensual. He claimed to have a clear memory of the sexual acts he and FG performed on that particular day at the [redacted] Hotel, and that he recalls a circumstance where FG instigated oral sex whilst they were having intercourse in the bath. He denied that he requested oral sex or that he was demanding or used the term “suck me off” or referred to his wife not being a willing participant in oral sex. He disputed FG’s account that the oral intercourse was forced or that she said anything to indicate unwillingness to engage in oral intercourse at that particular point in time.
In respect of the recording of the sexual intercourse in [redacted], CD said that what the recording shows is FG positioning herself in a chair so that the recording can be taken and that she “chuckled” at the end of the intercourse when CD approached the camera to turn it off. CD’s recollection is that they then took the recording to bed and used it as part of their foreplay.
Because it was put to CD by counsel for FG that the three-minute recording did not show what CD stated it did in his evidence, both counsel were of the view I needed to review the footage and I did so. I am unable to conclude that the video records any particular physical positioning or attitude that indicates FG was aware that she and CD were being recorded, nor did I hear anything that sounded like a “chuckle” at the end as CD reached towards the phone to switch it off, nor can I see in the film anything that shows that FG must have seen CD reach for the phone and switch it off. This does not mean however, that I can conclude that the filming was done without FG’s consent and I reach no such conclusion.

ii) FG’s evidence and my assessment of that evidence

FG worked as a [redacted] for the [redacted] full-time for nine years. She took leave from that position when travelling to meet with CD.
In her affidavit of [redacted], FG refers to the fact that she had, “for many years”, a personal, and what she describes as “professionally (sic) interest and involvement”, in film production. She references her CV in support of that and states that she was involved in a short film as Creative Producer and that she had attended to “creative projects” for [redacted] and other organisations, the specifics of which were not stated. Perhaps relevantly to these assertions, FG describes having completed a “screen producers Australia business essentials” course as well as an Adobe creative suite video editing and post-production course. FG also refers to “numerous acting and film courses from 2004 in London and Sydney” but does not specify what was involved in those courses or who or what organisations conducted any of these courses.
FG described the relationship with CD as commencing around 30 March 2014 and that she saw it as a “loving and respectful relationship”. She was aware CD was married and stated that he claimed to her that he was unhappily married.
FG described “running errands” for CD when she was with him, preparing his food and his [redacted], organising food and providing him with massages when he was stiff from [redacted]. FG also said that CD would introduce her as someone employed by [redacted] or employed by CD.
Under the heading “Employment by the Plaintiff” are listed number of limited instances or events with no substantive description of the tasks or alleged “business activities” or “work” purportedly completed that would or could comprise “employment”:

Between 28 April and 5 May 2014 FG met certain individuals in [redacted]. CD introduced her saying “You remember FG. You met her in Sydney. FG will be working with me and [redacted] on PR and digital marketing” and a few days later CD introduced her to a [redacted] stating that “she helps me with my website and PR for [redacted]. She will be working with us going forward”;

On 17 May 2014, CD sent an email where he acknowledged that FG had sent him a PDF about which he would “send his thoughts when he had more time” and confirming that she should invite a certain individual to a [redacted] at the end of May;

FG says that this was in response to her emailing CD on 11 May 2014 with ideas for the [redacted] website “as requested”, however she does not refer to how and when these requests were conveyed to her or the context of the “requests”;

On 13 April 2014 FG sent an email to a particular individual noting that a [redacted] had been reserved for him at a [redacted] and that she would introduce CD to this person. In the email she says complimentary things about CD’s experience and career;

On 28 May 2014 the introduction proposed took place where FG introduced CD and his [redacted] and described CD as a “[redacted]” and that he and his [redacted] run [redacted];

The cheque received in March 2016 was said to be for reimbursement for flights to [redacted] and [redacted] “and my remuneration for some of the works I performed”. No further detail is given.

Relevantly the affidavit refers to forced sexual activity on or around [redacted] January 2015 which FG described, consistently with what is set out in the statement in [redacted] in support of the application to vary the AVO, as being coerced to perform oral sex when she was kneeling in the bath, that he spoke roughly to her and that she said she did not want to participate and tried to, but was unable to get up, because of the force exerted by CD on her arm. After a few minutes of oral sex, her jaw was sore and so she masturbated CD to orgasm. FG described feeling de-humanised and humiliated by this experience, and that she did not consent to the force that CD exerted on her nor did she consent to performing oral sex on him, nor the act of masturbation (although it is hard to visualise non-consensual manual masturbation). FG also stated that she recalled some bruising on her left upper arm.
FG said that she returned to the room and that she recalled “not speaking to CD” but that she was afraid to leave or say that she was leaving in view of the aggression CD had demonstrated.
I have significant reservations in accepting the evidence that FG was “afraid to leave” and I do not accept that forced oral and manual intercourse occurred for reasons that I will explain later in this judgment. I do accept that on reflection much later, and probably after the relationship broke up, FG was upset and felt humiliated by the roughness of CD on this occasion, but I do not accept that she indicated that she did not consent to the oral intercourse or that she was unwilling to complete the intercourse by using her hand(s) to masturbate him to orgasm.
FG spent the night with CD in his hotel room and the next day did not go back to the hotel in the evening saying, “I’m sorry CD I can’t, I’m tired, I don’t want to see you” and that when he pressed her to visit, she hung up.
On [redacted] January 2015, FG met with CD and others and took them on a sightseeing tour around Sydney which she said she “felt that …was professionally required” of her. I read that as an acknowledgment of the agreement she made to do this but I do not accept that it was in fact, “professionally required of her”.
FG said that when asked by CD out of earshot of the others in the group “Why didn’t you come back to the hotel when I asked you to”, she said “Because I didn’t appreciate what happened in the hotel. You can’t treat me like that”. I am unable to conclude that this is true or that this was in fact said.
FG subsequently spent the Friday and Saturday night following this with CD in his room.
In respect of the recording made on 11 June 2015 in [redacted] on the phone, FG said that she was shown this by CD and that she said “That’s horrible. Get rid of it” and then on 8 July 2015, when she was contacted by CD and told that CD’s wife had found the video, that she “felt physically sick, felt disgusted and violated as she was unaware she was being videoed” and that she “began to cry and felt deprived of her dignity” and when CD called her back a few minutes later, she berated him including saying “I never allowed you to video me. How could you do this to me?” and that CD responded “she has access to my computer. If I contact you, I will start every message with the letters AAA. Do not respond to any message that starts without that”.

I interpolate here that the rather prudish tone of FG’s evidence about the recording is very different to the worldly, highly sexualised and knowing tone displayed by her in the hundreds of the WhatsApp exchanges about this and other sexual exploits, I do not accept FG’s evidence that she was “humiliated and disgusted”. I accept that she was concerned about what CD’s wife might do in response to seeing her having sex with her husband.
FG denied that when she and CD had intercourse at a particular flat in [redacted] in June 2015 on a chair, that she observed a camera or mobile phone anywhere and does not recall CD ever saying that he had videoed them having intercourse together, prior to the discussion on 8 July 2015 about his wife having found the phone. I am simply unable to make a positive finding that FG did not know and did not consent to the filming of this sex act.
In terms of the AVO proceedings and the consent orders that terminated those proceedings, FG said that she decided to consent to the orders (without admitting the allegations), as she “did not have the financial means to contest the matter”.
In terms of the application to vary the AVO, FG emphasised that she felt that during what she described as a “three-year relationship with CD”, she was “engaged to undertake both personal assistance duties and other duties including promoting his [redacted] within my network, general networking and assisting and website design and improvements”.
The evidence simply does not support anything like this level of “engagement”. It is so exaggerated that it is simply untrue. In my view the tasks done were not treated by either FG or CD as employment tasks at all, but were done as part of the affair, done largely, if not entirely, unbidden and were completed in ways and at times that did not involve a great deal of time or effort. Certainly there is no evidence that it interfered with FG’s full time employment at the [redacted], and it seems she took leave for the short intermittent periods she spent with CD overseas.
FG said that she was always introduced by CD professionally as “someone with whom he was working”, and I accept that occurred at least once, and may have occurred other times and was part of the ruse CD wanted her to adopt to keep his extra-marital affair secret from business contacts and, no doubt, his wife.
FG described working with CD as “exciting and a great professional opportunity for me, given my interest and experience in the entertainment industry”. She described this as “an experience I would like to talk about to other women within the industry” and that she would like to talk openly to other women who might be tempted into relationships with powerful figures about the possible dangers and compromises they might have to handle”. Again this is over statement and manipulation of the truth of the “employment” relationship. FG added that she did not wish to “speak openly about the relationship with CD other than for that sort of purpose” and “if I am approached and asked questions by people about myself or my life I wish to be able to respond honestly.”
In response to matters raised in CD’s affidavits FG emphasised that she did communicate that she was not consenting to the oral sex in the bath at the [redacted] Hotel on or around [redacted] January 2015 and that she said “No (CD), why are you speaking to me this way”, “No (CD). Not tonight, not like this”, “What is this”, “Let go of me (CD)” and “I don’t like this”.
In terms of evidentiary material appended to the affidavit, in addition to FG’s two-page CV is an email from CD dated 17 May 2014 which states “FG thanks so much for all of this, finally had a chance to look over your PDF, much appreciated. Send some thoughts when I have more time, about to leave for [redacted]. I engaged a local photographer for [redacted], he’s good. Yes, please invite [redacted] to [redacted], I think it would be good for him to see it.…”. Also attached are some downloads about “[redacted]” which appear to be extracts from advertising and/or a website design.
In addition to the material is a statement of a [redacted] who is a founding board member of WIFT Australia. She described the organisation as advocating for the rights of all female-identifying screen industry practitioners through education, lobbying and promotion. She sets out the objectives and states that “following the onset of the “#metoo” movement, countless women have come forth and have narrated their experiences of abuse and sought justice. [Redacted] goes on to say:

“I have formed this view based on my observation and experience in the media industry where countless women in the film and television industry have shared their experiences with me and my organisation. I have formed the view that this movement has had a powerful ripple effect within Australia and has also reverberated throughout our industry specifically. I believe there is public interest in issues of abuse, particularly of the current context of “#metoo”. The movement is unveiling long-standing power issues and creating an international and national platform to discuss abuse in the way the current social, economic, legal, political and organisational systems allow these to continue. I am of the view that an experience of an abusive relationship faced by an Australian woman at the hands of a celebrity, where there is an imbalance of power and economic disparity, would be of particular public interest in Australia. I further state that the issue of abuse in relationships at the hands of powerful celebrities, is not only a matter of public interest, but also public concern.”
There is however in my view no reality at all entailed in FG’s assertion that she worked in the film industry with or for CD.

Also appended to FG’s affidavit is a report of a Consultant Psychologist, [redacted], dated 11 October 2018 where he describes that FG’s instructions to him included that the relationship was “physical and allegedly rife with sexual abuse and manipulation” and that the relationship was with a “high-profile personality” and that the “sexual abuse and manipulation culminated ultimately in an alleged sexual assault on or about [redacted] January 2015.” He gives an account of the abuse consistent with what is in the affidavit of FG. He says FG saw the orders made on [redacted] as preventing her from mentioning the individual’s name and this was an impediment to attending a psychologist for treatment because she cannot name the individual, even in the therapeutic context.
[Redacted] described FG’s symptoms as “escalating”, and that this was compounded by the restrictions that made her unable to engage in therapy and that the order prevents her from discussing particular aspects of the relationship that may lead to the identification of the person, describing this as a “continuation of the exploitation and abuse that she suffered during the course of the relationship”. [Redacted] concluded that he supported the variation of the order that FG was seeking, which would enable her to disclose what happened and by whom and that that will restore some sense of empowerment against a current background of her feeling entirely hopeless regarding her future.
A further affidavit of FG of 13 June 2019 deposed to conversations FG says that she had with CD about the cheque that was sent to her in March 2016, a response to the account of CD as to what occurred when the two of them had sex in a chair in [redacted] in June 2015, and an explanation of the series of communications in the WhatsApp exchanges on 9 July 2015.
In relation to the first matter, FG said that she recalled a conversation with CD on or about 3 March 2016 where he said “I’m going to give you a cheque for the work that you have done for me as well as to cover all of the flights and expenses” and that she replied “Thank you that is appreciated” and then he said “you should receive it for your birthday”. On 23 March 2016 FG received a package from CD containing a red baseball cap, assorted confectionery, a birthday card and a cheque for USD$,6000.
I reject the assertion that CD said the cheque (or any of it) was to cover “work”. I consider it to be overwhelmingly likely that CD made sure he never said any such thing to FG. Her emails in January 2017 to CD’s [redacted] and to CD in February 2017 state the true position: FG did things for CD and felt used by him. Her “employment” or “working with” him was nothing but a lie he wanted told to hide his affair with her and to explain why she, an Australian, turned up at various overseas destinations.
In respect of CD’s account that he reimbursed the flights out of fear that FG would tell his wife the full extent of the relationship, FG said that she does not recall CD ever saying words to that effect to her.
I conclude that it does not matter if CD said that to her or not. The fact is that he paid that money to FG as reimbursement for the air fares and expenses and nothing more, and her emails in January and February 2017 to CD and his [redacted], and in July 2016 to CD’s wife where FG refers to that “reimbursement”, are consistent with that being the fact.
In respect of the recording in [redacted], FG says that CD showed her the recording saying “Have a look at this” and she said “That’s horrible, get rid of it. Why would you do that? Delete it”. She said that she then observed CD press a button on the phone and the video disappeared from the screen and so she believed the video had been deleted.
I accept that CD did “delete” the recording but his wife found it on or around 9 July 2015 in the “deleted items” file on his phone. I entirely accept CD’s account of this circumstance.
FG said that she recalled having intercourse with CD on a chair in the flat in [redacted] which was at the invitation of CD, and that at no time during that act did CD say he was recording it and she did not consent to any recording. FG said that when she was told that CD’s wife had possession of the recording when he spoke to her on or around 8 July 2015, she felt “immense panic” and remembered feeling nauseous and felt pressured by CD to attempt to help CD in fear that CD’s wife would distribute the video further.
FG said that where she said in the WhatsApp exchange “It was a one off” and “my idea to film” and “blame it on me”, she thought that if CD’s wife thought she had produced the video, she would be more forgiving to CD but if she did not, and had the idea that it was his idea to film it, that she would distribute the video further in spite or retribution.
I have great difficulty accepting any of this evidence from FG. It is inconsistent with the WhatsApp chat between her and CD and inconsistent with common sense. Even if it was not her idea to film, I do not accept that FG did not know about the recording. I accept that she knew about it, but thought it had been successfully deleted, but this proved to be not the case.
FG says that she received multiple telephone calls from 8 July 2015 for a period of about three months from CD’s wife, and I accept that this is true and that there were nasty and upsetting exchanges between FG and CD’s wife, including an email from CD’s wife dated 12 July 2015 of breathtaking meanness.
FG said that CD would view pornographic videos on his laptop prior to and during sexual intercourse and that he would ask her to watch the videos with him, but she does not recall ever observing a video of she and CD having intercourse. On one occasion in May 2014 when he attempted to video them, she snatched the phone back from CD.
I do not need to conclude whether those statements are true or not but I can and I do conclude that the relationship was highly sexually charged and that the exchange of sexually explicit messages was an almost daily feature of the hundreds of WhatsApp messages that are in evidence.
FG was subjected to a fair but rigorous cross-examination and a number of answers FG gave about significant matters were unsatisfactory, argumentative and deflective.
The first challenge to her credibility was directed to sworn statements contained in the [redacted] document filed in support of her application for variation of the AVO in which she stated, without qualification, that she had “been employed for three years by (CD)”. When it was put to her that this was patently untrue, FG responded that preparing the document was “an overwhelming process” and the reference to three years was a typographical error and she meant to say “two years”. I found these responses difficult to accept when it was she who had commenced the process of revising the terms of the AVO and she must have understood the importance of accurately stating the length of her “employment”.
I do accept however that the imposition of the AVO in [redacted] was a difficult process for her, and one in which she seems to have been badly advised in respect of the impossibly wide “gag” order imposed as part of resolution of that matter, and she felt and continued to feel very aggrieved by that “gag” order.
Whilst FG agreed that she was not paid a salary, she claimed that she had paid tax on the money that was paid to her by CD and that it was included in her 2016 tax return. Once that tax return was produced in response to a call and cross-examination upon it ensued, it became evident that this statement was not borne out by anything in the tax return.
The answers given on this subject were evasive [2] , and ultimately, in my assessment, demonstrated that her assertion that the “payment” by CD featured in her 2016 tax return was untruthful.

Q. You see, FG, (CD) never paid you any money for work you did as an employee of his?

A. He paid me money, sir.

Q. He never dealt with [redacted], did he?

A. No, sir, but I did tell him about it.

Q. Yes. And you've made this entire thing about being an employee of his up, haven't you? It is just a complete fabrication?

A. No, sir, I did work for him. The whole experience was work for him. I enjoyed it very much. It was a work experiencing, sir, every moment with (CD) was work. [3]

2. Tcpt, 26 June 2019, pp 140-143

3. Tcpt, 26 June 2019, p 143(1-13)

The evidence FG gave about how she defined the word “employment” appeared to me to be wilfully manipulative and evasive:

Q. Yes. And there's nothing in your affidavits that sets out any conversation between you and him where it was agreed that he would employ you, nor is there anything in those affidavits about agreeing to a salary, is there?

A. May I be specific? There were two questions.

Q. Yes, there were.

A. Can we just go back to your understanding, for the Court and I, your idea of employment?

HER HONOUR

Q. No, ma'am.

A. No, I can't ask?

Q. That's not the way it works.

A. No, okay. My apologise, your Honour.

Q. You need to answer the questions that Mr McClintock asks you, but your barrister, Ms Goodchild‑‑

A. Okay.

Q. ‑‑once the cross‑examination is over, can re‑examine if she thinks anything became unclear.

A. I'm terribly sorry.

Q. No, that's all right. It's better that you understand the process.

MCCLINTOCK: Thank you, your Honour.

HER HONOUR

Q. And if there's a question that Mr McClintock asks that is objectionable, your barrister will object to it. So the way we work is you need to answer the questions.

A. Sorry, sir.

Her Honour: But Mr McClintock, you might just bear in mind what the witness has just said.

McClintock: I have, your Honour.

Q. FG, I don't want to be accused of taking unfair advantage of you by anyone. You made a reference to my understanding of the word "employment", didn't you?

A. Yes.

Q. What's your understanding of the word "employment"?

A. It can mean numerous things. Over my lifetime of working in nine different cities in 12 years, sometimes I've been employed full‑time, part‑time, casually, on spec, consultancy or just for networking. So I think it's up to an individual's experience with regards to being employed or how one earns money. It comes back to how one earns money for a livelihood and a living.

Q. Do you say or don't you say that you're employed by (CD) or his company?

A. I do. That's the way it was worded.

Q. Well, as you sit there ‑ put aside the statement ‑ as you sit there in the witness box, do you say that you were employed by (CD) and his company?

A. At times.

Q. At times?

A. Yeah.

Q. But not for three years?

A. Two years. There's a typo. I'd like to acknowledge I think it's a typo.

Q. Now, FG, the answer you've just given is false, and you know it's false, don't you?

A. It's how you interpret it maybe.

Q. Thank you. Now, do you draw a distinction between your employment by the [redacted] and what you say was your employment by (CD)?

A. Legally I'm allowed to do both.

Q. But is there a difference in kind?

A. Oh yes. Oh yes, sorry, I didn't understand the question. Yes, very different in kind. [4]

4. Tcpt, 25 June 2019, pp 92(48)-94(28)

FG agreed that she initially had paid for the airfares for herself to travel to [redacted] and [redacted] in 2014 and [redacted] in October 2015. She said that the trip to [redacted] in 2015 was paid for using frequent flyer points belonging to CD. Despite this outline of airfare expenses, FG insisted that there was still an element in the USD$6000 that was payment for work she did for CD.
When pressed that things said in the document filed in support of the application for variation of the AVO were not true, FG resorted to stating that she was “terribly sorry” and that she was “very upset at the time” and “very emotional”, rather than answering the content of the questions put to her.
In terms of her intention to publish and whether what FG said in the emails she had sent to CD and his wife in July 2016 and February 2017 indicated a threat to “make private matters public”, the following exchange occurred:

Q. But of course you want to make public now two allegations, don't you? You want to make public that my client ‑ I'll use compendious phrase ‑ had oral sex with you without consent; you want to make that public, don't you?

A. No, sir.

Q. You don't?

A. No.

Q. You don't propose to publish that at all?

A. Not at all. It's only in court documents and with a counsellor.

Q. So you wouldn't have a difficulty in undertaking to her Honour that you won't publish that, make it public?

A. No, I haven't said anything publicly and I just would like to live a life without suppression, please. That's all. That's what this day is about.

Q. I see. But you see, if the suppression order is lifted, you will make these things public, won't you?

A. No, sir.

Q. I see.

A. No, sir.

Q. If you won't make them public, it would follow, wouldn't it, that you would be prepared to undertake solemnly to her Honour that you won't do that?

A. May you repeat that again? It was just a bit long‑winded.

Q. Thank you, FG. I'll put it to you again. For completeness, the other thing, though, I want to suggest that you want to make public is an allegation that my client made a sex tape of you in [redacted] without your consent; you want to make that public, don't you?

A. No, sir. I don't wish to discuss the video in any way.

Q. Now, if you do not propose to make public either of those allegations, it would follow, wouldn't it, that you would be prepared to make a solemn promise to her Honour, as the Supreme Court of New South Wales, that you won't do so?

A. A promise without suppression, please confirm?

Q. Let's understand this. What concerns you about the suppression order?

A. I have lived with suppression for over three years. It has emotionally and mentally and professionally affected my mental health. I ask the Court that I go forward in life to be ‑ live an authentic, joyous life so I can be socially connected. Suppression makes me feel isolated. I do not want to live a life in any way with suppression.

Q. But you'd be prepared to make a promise to the Court not to make those things public, wouldn't you?

A. I don't know what happens in the future, Mr McClintock, so your Honour, with all due respect, I don't know how to answer that question. [5]

5. Tcpt, 25 June 2019, pp 100(49)-101(48)

It seems to me that the final answer does not amount to any promise or indication that FG will not publish the matters in issue at some point in the future; indeed the emphasis in the previous answer on the negative effect of “suppression” suggests to me that these things are her reality and she does not wish to be “supressed” from speaking about them publicly in whatever form that may take.
FG was cross-examined about other matters referred to in the statement she filed in support of her application to vary the AVO. I should interpolate here that no objection was taken to the deployment of this document, filed as it was in proceedings in another court, in these proceedings. No Harman [6] objection was taken and no submission made that the document was privileged and could not be used to underpin the submission that this is evidence that FG holds an intention to publish certain defamatory matters that are untrue.
6. Harman v Secretary of State for the Home Department [1983] 1 AC 280
Other answers given in cross-examination by FG about this document and her involvement of “journalists” are telling:

Q. Didn't it occur to you that it would be a frank thing to do to include in this document a statement that the journalist had originally contacted you about Car Next Door?

A. This was the first time I had done a statement to vary an AVO, a process that I heavily relied on my lawyers and I thought this was the best way to write this at the time. If, Mr McClintock, you feel that this has been misinterpreted in any way, we all acknowledge this is a private document to vary an AVO with a suppression order. This was solely to remove the suppression order so I could talk about my life.

Q. FG, you swore on oath when you got into the witness box to tell the truth, the whole truth and nothing but the truth, didn't you?

A. Yes, sir.

Q. And you knew that that obligation applied to you when you were making this statement, didn't you?

A. Yes, sir.

Q. And you didn't tell the whole truth, did you?

A. I disagree with you, sir. This statement was written in a way that I thought was the best way to vary the suppression order, where there's a closed document, that is, it is not for public consumption, as I understand it—

Q. But you ‑ I withdraw that. I'm sorry, I didn't mean to interrupt you.

A. It's okay. It's okay.

Q. And you knew that you had an obligation to tell the complete truth, didn't you?

A. Yes, sir. I tried my very best under the circumstances of varying an AVO. [7]

7. Tcpt, 26 June 2019, pp 121(45)-122(23)

These answers suggest to me that rather than indicating a fixed position that she would publish certain things about CD, FG was at that time at least, rather misguidedly, trying to muster a collection of persuasive arguments as to why the Court ought to vary the preposterously wide “gag” order that had been made in those Local Court proceedings. I am not suggesting this in any way excuses the exaggerations and untruths that are contained in that document, however it does provide context. Unfortunately it also indicates that FG is prepared to include untruths in a document put before a Court upon which reliance will be placed to make a legally binding decision.
FG was cross-examined as to why the two affidavits that were sworn in the proceedings before this Court within a short space of time from each other included in the second account of her conversation with CD about the video she says was taken without her consent, that she also said to him: “Why would you do that? Delete it”.
I have concluded that rather than it being a later recalled detail as FG suggested, it was an exaggeration of an account of a conversation that may well not have taken place. As was put to FG in cross-examination, there was an intense spate of WhatsApp messages on 9 July 2015 and following, that dealt with the fallout from CD’s wife discovering the recording of CD and FG having sex on a chair in [redacted]. Nowhere in that exchange is there any indication that FG did not know what video was being discussed and nothing that supports that she was “distressed” or “humiliated” about the content of the video. Her answers given in cross-examination regarding this series of events were unsatisfactory and/or unresponsive.
There was cross-examination about the nature and content of many of the WhatsApp messages between CD and FG in which she discussed (and likely sent) nude photos of herself. The answers she gave regarding these matters [8] were unresponsive and deflecting and in my view, deliberately so. Purporting to feign “innocence”, or that she was perhaps drawing or making “art” and referencing the artist Brett Whiteley in this regard in relation to what was clearly a raunchy, sexually explicit exchange was unhelpful and unconvincing.
8. Tcpt, 26 June 2019, p 124
Important context was extracted from those hundreds of WhatApp messages. Counsel for CD put to FG that a series of WhatsApp messages on 19 July 2015 clearly were referencing the oral (and manual) intercourse that FG spoke of that occurred in January 2015 in the bath at the [redacted] Hotel. It was put to FG that what this exchange of messages demonstrated was that, “in effect, (she) participated with enthusiasm in the oral sex in the bath in Sydney at the [redacted] Hotel in January 2015.”
It is necessary to recount the cross-examination, which includes the detail of what was in each of the WhatsApp messages and FG’s responses to the propositions put to her about them, as it is both the content of the messages and those responses that have contributed significantly to my conclusion that what occurred on that day was in fact consensual intercourse, and FG did not indicate to CD that she was not consenting:

Q. You did exchange WhatsApp messages with (CD) about that incident in the bath in Sydney, didn't you?

A. I don't recall.

Q. You don't recall?

A. (No verbal reply.)

Q. Have a look, would you, at 325? You see, 325 is a series of WhatsApp messages on 19 July 2015?

A. Yes, sir.

Q. Now let's just look at the entry for 23.36, pick it up there. You say, "But love sending you off to deep sleep so peaceful", and he says, "Yes", 23.37. Then you say, "Goes from incredible intense energy to flowing". You are talking about sexual matters there, aren't you?

A. Yes, sir.

Q. And then you see what (CD) says, "Thinking of your hands" and so on?

A. Yes, sir.

Q. That's perfectly clearly a reference to manual sex, if I could call it that, isn't it?

A. Yes, sir.

Q. And then you express with the words "mmm" at 23.37, "a scent", don't you?

A. (No verbal reply.)

Q. You are agreeing with him and encouraging him, aren't you?

A. Yes, sir.

Q. And then you say, 23.38, "Coming and going with my lips"; you see that, don't you?

A. Yes, sir.

Q. A reference to oral sex, isn't it?

A. Most likely, sir, yes.

Q. And (CD) says, "Always nice", you see that?

A. Yes.

Q. And then he says:

“That orgasm in the bath in Sydney was amazing. Mouth twisting with one hand and massaging my balls with the other, incredible trifecta.”

You see that?

A. Yes, sir.

Q. That, when you read this on 19 July 2015, you knew, was a reference to the oral sex in the bath in Sydney in January 2015, didn't you?

A. I don't recall.

Q. You don't recall?

A. (No verbal reply.)

Q. Well, there was no other occasion where you had oral sex with (CD) in a bath in Sydney other than that one occasion in Sydney in January 2015; that's correct, isn't it?

A. No, sir.

Q. Well, when else do you say you had oral sex in a bath with (CD) in Sydney?

A. I can't recall. I can only recall feeling uncomfortable for an incident. I can't recall every time. I just recall one incident being uncomfortable. I don't recall every night.

Q. Let's get this straight. Are you saying that there were other incidents where you were in a bath with (CD) and you had consensual oral sex with him?

A. I don't recall the oral but there may have been a bath.

Q. You see, this is perfectly clearly a reference by him, isn't it, to oral sex in the bath in Sydney?

A. If that's what he's written.

Q. You see, he says, "The orgasm" ‑ as in the bath in Sydney ‑ "was amazing mouth", you see that?

A. Yes, sir.

Q. When you read this in July 2015 you knew, and you knew full well, that the "mouth" in question was your mouth, didn't you?

A. Yes, sir, if that's what—

Q. Then he says, "Twisting with one hand and massaging my balls with the other", do you see that?

A. Yes, sir.

Q. I don't want to be overly crass about this, forgive me, FG, but I need to put it to you. What's being talked about there is you masturbating his penis while you are giving him oral sex and massaging his balls with the other hand; that's what he is talking about there, isn't he?

A. That's what (CD) is talking about, yes, sir.

Q. And he says, "Incredible trifecta" which makes it perfectly clear he is talking about three things?

A. Trifecta, three, yes, sir.

Q. And you respond at 23.40, "Hehe", don't you?

A. Yes, sir.

Q. You didn't say, "That was horrible, I hated it, you raped me", did you?

A. No, sir. As this man has a video of me, his wife had a video of me at this time, I said whatever I needed to say to keep him happy.

Q. And you see he says, "So hard thinking of that" and you say, "So sensual"?

A. Yes, sir.

Q. And then you said, "Love hearing you come"?

A. Yes, sir.

Q. You see, it's obvious from reading this, FG, that you had participated with enthusiasm in the oral sex in the bath in Sydney in January; perfectly clear, isn't it?

A. Can I say "yes and no"?

Q. I'll let you say "yes and no", but please ‑ and I'll ask you to explain why "yes and no". I don't want to be again accused of taking unfair advantage of you. Why yes? Answer that one first, why yes; and then why no?

A. Well, these messages are heightened sexual ‑ how do I put it ‑ these messages ‑ the sexual messages, because you've all looked at these WhatsApp messages ‑ are often ‑ I felt ‑ exaggerated, fantasised. It is just talking about consent ‑ sorry, talking about sex, and that was something (CD) really enjoyed, was being anywhere around the world and being able to text me and have a sexual conversation, and at this time I continued the sexual conversations to ensure that the video situation would be contained. So I said what I needed to say to support (CD) and how he was feeling. Does that make sense, Mr McClintock? [9]

9. Tcpt, 26 June 2019, pp 146(39)-149(15)

In my view, at some later date and upon reflection about her grievances about the relationship ending and/or the power dynamics of the relationship whilst still in it, FG revisited this instance of sexual contact and decided that it had made her physically and psychologically uncomfortable because of the dominating way CD had acted as the events of that particular sexual encounter unfolded. I accept CD’s account that it was consensual and that nothing was said to him to the contrary at that time or later, until September 2018.
The passage of cross-examination that followed is also telling:

Q. ‑‑but, you see, that is what this is. That passage on 325 is a reference to a particular sexual encounter between you and (CD), isn't it?

A. I can't recall. I recall it differently.

Q. And, you see, if what you were saying was true about your lack of consent, it would have been perfectly easy for you to say, after he used the words "incredible trifecta", "I don't want to talk about that, it was horrible", for example; and you didn't do that, did you?

A. No, I didn't do that with (CD). It had kept (CD) happy, that was the most important thing.

Q. You didn't even attempt to change the topic, did you?

A. Not that I recall at the time, no.

Q. And, you see, the point I want to put to you, FG, is that you have completely fabricated this story about lack of consent because, as part of your vindictive hatred of (CD); that's correct, isn't it?

A. No, sir, not at all. I don't hate (CD).

Q. But you've fabricated that allegation, haven't you?

A. No, sir. It was intense sexual relationship at times, yes.

Q. I should put this to you. The oral sex in the bath occurred in the afternoon, not the evening, didn't it?

A. I can't recall. I think it was in the evening.

Q. And you stayed that night with him and had more sex, didn't you?

A. I can't recall if we had sex that evening or in the morning, I can't recall.

Q. And the next night you stayed at your own house, didn't you?

A. The Thursday night I stayed in Annandale, yes.

Q. And then on the Friday night and the Saturday night you came back to the hotel and had more sex with him?

A. I can't recall the sex but I did stay that night.

Q. And you never raised with him ever, did you, the suggestion that you hadn't consented the oral sex?

A. I recall feeling uncomfortable at times but I didn't. No, sir, I didn't. I agree. I did what I was told. [10]

10. Tcpt, 25 June 2019, p 15(1-40)

There is nothing in that exchange, or any of the other evidence in the WhatsApp messages from 2015 that support the conclusion that FG was not a willing participant in the oral and manual intercourse that day at the [redacted] Hotel. I accept CD’s account as truthful and his account is borne out by the attitude and content of the WhatsApp messages of both of them about what was clearly that event. In particular, the last answer FG gave is agreement to the proposition that she did not raise with CD that she had not consented to oral sex. It is evidence that she consented and she “did what she was told”.
In re-examination, the answer given by FG when she was asked to explain what she meant by “a life without suppression”, leads me to the view that there is a real risk of publication of the defamatory material:

A. Well, no contractual agreement in this Court or any court in Australia or anywhere in the world has control over me about what I will say and not say in the future. I think that is a very human issue because we, as humans, don't know what happens in the future. So I just request a life without suppression. [11]

11. Tcpt, 26 June 2019, p 167(19-25)

This answer was followed by an agreement to the propositions put to her by her counsel that she had “no intention” to speak to anybody about the sex tape and “no intention” of speaking to anyone about the allegation with respect to CD and the sexual abuse. However what FG said that I have quoted in par 123 and what she said earlier in her cross-examination about this [12] rather undercuts those answers. To conclude that FG “simply wanted to talk about dysfunctional relationships if asked, by a journalist” is I suspect an obfuscation of the full gamut of FG’s plans and intentions in terms of publication of matters involving CD.
12. Tcpt, 25 June 2019, p 101
Significantly, FG was given the opportunity to undertake not to publish the assertions that “the plaintiff sexually assaulted the defendant” and “the plaintiff filmed the defendant having sex without her consent” but she refused to give such an undertaking. That position was committed to an open offer (MFI 1) left open until judgment, with each party pay its own costs.
Whilst the position is a little complicated by the current constellation of interim orders made by Adamson J in 2018, the fact that FG would not undertake not to publish those assertions is a factor that informs my assessment of the current reality of a threat to publish.
Other evidence given by FG bears on the question of her intention to publish matters about CD, even though the bases of the questions were emails send some years ago. The heading of the email dated 7 February 2017 to CD was “Read the email from your wife and why I will publicly share my story about the affair”. [13] FG was asked:

Q. That was a threat, wasn't it?

A. Well, I was a bit feisty and I'm terribly sorry.

Q. Please, would you answer my question? It was a threat, wasn't it?

A. No, I feel that I was very upset at the time, that's all, and I address both of them or‑‑

Q. You don't see that as a threat, to publicly share your story about the affair?

A. I was simply addressing the poor behaviour of (CD) and hoped that he would reach out to me to discuss it further privately. That's all. That's all. It's not a big thing, Mr McClintock. I'm terribly sorry that this has appeared this way.

Q. I see. It's not a big thing to ‑ I'll put it to you ‑ threaten to publicly share a story about a private sexual affair? You don't see that as a big thing?

A. I was very, very upset and very emotional. I'm terribly sorry.

13. Tcpt, 25 June 2019, p 100(6-21)

FG was cross-examined as to whether she understood that accusing a man of sexual assault was an exceptionally serious allegation. FG responded: [14]

A. In legal words, that's what ‑ they're very strong words ‑ along with oral rape. I can only explain what I felt at the time. So I believe at times (CD) could be a little forceful, or forceful, and at times I found it difficult to say no, at times. And sometimes I put up with it and sometimes I ‑ I don't really recall every time. Because I loved this man very much, but it was an abusive relationship.

14. Tcpt, 26 June 2019, p 155(30-34)

In the context of being cross-examined as to the truthfulness of her assertion that CD forced her to have oral sex with him in Sydney in January 2015 at the [redacted] Hotel, FG would not accept that many of the WhatsApp messages and emails contained what could be considered to be abuse of CD stating: “I was simply trying to stand up for myself. That’s all”. FG agreed that none of those emails or messages ever accused CD of forcing her to have oral sex against her will and agreed that it was not mentioned in the email she sent to CD’s wife where FG stated: “Please for legal purposes please find and attached an outline document of the truth”. There was nothing in that document about the supposed act of forced oral intercourse. [15]
15. Tcpt, 26 June 2019, pp 155-156
In respect of the email in which FG stated “Please don’t return to Australia ignoring these issues. In Australia we publicly shame men like you” she was asked whether that was a threat, and responded:

A. No, sir, I was simply addressing his poor behaviour. It was a joyous way of trying to communicate that I felt upset, that's all. This ‑ just to get his attention, that's all. I just tried to stand up for myself. I was on my own. I apologise if this seems threatening. I pestered but not threatened. That's all.

Q. You see the heading, "Read the Email From Your Wife and Why I Will Publically Share My Story About the Affair"?

A. Yes, sir.

Q. There is hardly anything joyous about that, is there?

A. Well, it definitely gets your attention, sir. That's all. I tried to get his attention and he could have easily picked up the phone and said, "FG, I can see that you are upset, let's discuss it". He is a grown man as well. That's all. A few emails, that's it, Mr McClintock. It did not warrant a domestic violence order. It was a professional ‑ I tried to write it in a professional way. In my own joyous way. I am not a lawyer.

Q. You think saying that you "publically shame men like you" is a way of getting him to talk, do you?

A. I felt frustrated. [16]

16. Tcpt, 26 June 2019, pp 158(44)-159(13)

Factual findings

Based on the analyses of the evidence set out above I make the following findings.
I have concluded that CD and/or his company never employed FG in any capacity and that any tasks that she carried out that could ever be considered to be in the nature of work were done of her own volition and as part of her love affair with CD.

[23] In Munsie v Dowling (No 10) [2018] NSWSC 709, for example, Rothman J appeared to accept that the risk or threat of republication was a relevant consideration in determining whether a permanent injunction should be made. His Honour referred to his earlier judgment in Phillips v Robab and said (at [58]):

Ordinarily, when the Court is dealing with mass media, there can be an expectation that a defamatory publication will not be republished by that defendant. With the advent of the Internet, on which anyone can be a “publisher”, such expectations may be unfounded. Where, as is suggested in these proceedings, there is a probability that, in the absence of restraining orders, republication or the publication of similar imputations will occur, the power to issue permanent injunctions is obvious.

[24] Justice Rothman made similar observations in Tavakoli v Imisides (No 4)[2019] NSWSC 717 at [55]-[57], another case involving publication on the internet by a defendant who was not a professional journalist or mainstream media organisation. His Honour made permanent injunctions in circumstances where the defendant had threatened to republish the defamatory imputations.

There is one relatively recent case where injunctive relief was granted against a media organisation. That is the decision of Flanagan J in Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201. In that case, a prominent radio announcer had made defamatory statements concerning the plaintiffs on radio stations operated by the defendants. The plaintiffs sought permanent injunctions on the basis that the announcer had maintained his belief in the truth of many of the defamatory imputations which had been conveyed and none of the defendants had undertaken not to repeat the defamatory imputations. The defendants opposed the granting of injunctive relief on the basis that there was no evidence that publication continued after the commencement of the proceedings and no evidence that there was any current threat of anything similar being said in the future.
Justice Flanagan held (at [916]) that injunctive relief was appropriate because the announcer “in the course of giving his evidence, chose to continue to attack the plaintiffs’ reputations and to repeat many of the defamatory imputations”. It is not entirely clear why the finding concerning the announcer’s apparent intransigence or belligerence when giving evidence supported the making of a permanent injunction. Nor is there any detailed discussion or consideration of the relevant principles in relation to the grant of permanent injunctions in defamation matters. While his Honour did not expressly find that there was a risk that the defamatory imputations would be republished in the future, it may well be that his Honour accepted that the announcer’s intransigence and belligerence while giving evidence suggested that there was such a risk despite the findings that were ultimately made against him.
The general requirement that there be some risk or apprehension of republication of the defamatory imputations before permanent injunctions are granted in defamation cases is consistent with the general law concerning injunctive relief in cases involving the infringement of legal rights. In Spry ICF, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages (5^th ed, LBC Information Services, 1997), for example, the learned author states (at p 394) that a plaintiff who seeks a perpetual injunction to restrain a defendant from engaging in acts which would breach the plaintiff’s legal rights “must satisfy the court that there is a sufficient risk that these acts will take place to render it just, in all the circumstances, that an injunction should be granted”. The following is then added in that context (at p 394):
To this extent the decision of the court is discretionary and does not depend on proof of imminence of the material acts on the balance of probabilities. This is not to say that proof on the balance of probabilities that the acts that are complained of will in fact occur is not generally sufficient. On the contrary, proof of that kind must be considered ordinarily to give rise to a right to specific relief. But the more fundamental enquiry relates to the extent of hardship that would be caused by leaving the plaintiff to resort to damages or to renew his application subsequently if the threat of injury to him should become greater, and this consideration in turn depends not merely on the precise probability that the acts to be enjoined will take place, but also on the gravity of those acts and on the degree of damage or inconvenience that they would cause if they took place.
(Footnotes omitted.)

[28] Similarly, in Heydon JD, Leeming MJ and Turner PG, Meagher, Gummow & Lehane’s Equity Doctrines & Remedies (5^th ed, LexisNexis Butterworths, 2015), one of the ingredients which a plaintiff must establish to obtain an injunction to restrain a legal wrong is said (at [21-035]) to be that “the right was either threatened or that the right had already been infringed and that the infringement was likely to be continued or repeated”. The learned authors add, in that regard (at [21-040]):

A threat of future infringement will normally be inferred from past infringement unless the circumstances point to the contrary, as where the harm to the plaintiff has ceased, or will not resume, or an undertaking not to continue the alleged wrong is offered, or an undertaking not to do so without reasonable notice to the plaintiff is offered, or an undertaking to alleviate its consequences is offered, or the defendant can be trusted to remedy the problem by itself.
(Footnotes omitted.)

[29] Importantly, the passage extracted from Spry’s highly regarded work would tend to suggest that it is not sufficient to merely consider the existence of a risk or apprehension of repetition of the impugned conduct. It is necessary to also consider the extent of that risk, the gravity or seriousness of the relevant acts and the further harm or hardship that the plaintiff would suffer if the conduct was to be repeated. In the defamation context, that would mean that it is necessary to consider not only the extent of the risk of republication of the defamatory imputations, but also the seriousness of the defamation and the hardship and damage that the plaintiff or applicant would suffer if the defamation was repeated. It would also be relevant to consider the burden that would be placed on the plaintiff or applicant if a permanent injunction was not granted and he or she was required to commence further defamation proceedings in the event that the defamatory imputations were republished.

It would also appear that one of the reasons why it may be appropriate to grant a permanent injunction to restrain the repetition of conduct already found to be unlawful is to avoid a multiplicity of proceedings. In cases involving the infringement of intellectual property rights, for example, it has been said that “[p]ermanent injunctions are granted conventionally in respect of cases of intellectual property infringement against proven infringement and a proven threat to continue infringing as this avoids multiplicity of proceedings”: Nokia Corporation v Truong [2005] FCA 1141; 66 IPR 511 at [46]. That consideration would plainly also apply in the defamation context.”
1. His Honour went on to discuss the complexities introduced into the considerations by s 23 of the Defamation Act 2005 (NSW) which requires leave of the Court before further defamation proceedings for damages can be brought about the same subject matter. Those concerns do not apply here as this is not a “defamation proceedings” for damages.
2. His Honour also discussed other discretionary considerations:

“[44] The grant of a permanent injunction is discretionary. Reference has already been made to some of the key discretionary considerations: the degree or extent of the risk or apprehension of any republication of the defamatory imputations, the extent of the hardship that would be caused if the plaintiff or applicant was required to resort to new proceedings if the defamatory imputations were to be republished, the nature and seriousness of the defamatory imputations and the general undesirability of a multiplicity of actions between the parties. Reference has also already been made to the possible relevance, as a discretionary consideration, of the risk that the public interest in the right to free speech would be relevantly curtailed by the making of a permanent injunction in the particular circumstances of the case.

The relevant authorities in the defamation context are mostly silent on whether there are any other discretionary considerations which may feed into the decision whether or not to grant a permanent injunction restraining any republication. General principles in relation to the making of permanent injunctions in other contexts would suggest, however, that there may be other discretionary considerations depending on the particular circumstances of the case.

[46] In Equitable Remedies, Spry suggests (at p 334), by reference to the decision of the House of Lords in Mercedes Benz AG v Leiduck [1996] AC 284, that ultimately the key criterion is injustice: that the court may grant an injunction where that is required to avoid injustice. He also identified (at pp 399-416) the other discretionary considerations that might arise as including any hardship that might be caused to the defendant if an injunction were granted, any inequitable conduct on the part of the plaintiff, the ability of the defendant to comply with the injunction, the prospect that compliance with the order will not ultimately benefit the plaintiff and any acquiescence or delay on the part of the plaintiff.”

I agree with his Honour’s discussion of the relevant principles and considerations I must apply. These comprise:

(i)   An assessment of the existence and degree of any threat or risk of publication of the defamatory material.

(ii)   I should make the order(s) only if I am satisfied that the order is reasonably necessary to address the threat or risk.

(iii)   I should consider the hardship to one or other party if they are required to resort to new proceedings if the defamatory imputations are published.

(iv)   The nature and seriousness of the defamatory imputations.

(v)   The general undesirability of multiplicity of actions.

(vi)   The public interest in the right to free speech.

(ii) Defamation

Defamation is generally speaking, something said or written by one person about another which negatively affects the reputation of that other person, and that thing said or written is not true.
Whilst there was some difference in positions between counsel for CD and counsel for FG as to the judicial task entailed in these current proceedings, the way I have approached the proceedings is to determine whether the matters sought to be published arise as imputations from the documents in question, whether they are defamatory and then considered my discretion to grant a (“quia timet”) permanent injunction, bearing in mind the fundamental right to free speech and the other matters and considerations I should bear in mind as set out in the discussion of principles in pars 146 to 151 of this judgment.
Whilst generally actions commenced in defamation in NSW involve a publication that has already occurred, and proceedings are commenced for damages for defamation with perhaps an interim injunction to suspend the publication, followed by a hearing as to whether the material is in fact defamatory and whether any defences apply (often involving a jury although not always), followed by final orders that may, on occasion include a permanent injunction, in this case I was required to act as the jury, determine whether the imputations referred to were available, whether they were defamatory and whether any of the defences pleaded under the Defamation Act were made out, and then to consider whether there was a risk or threat that they would be published. In that latter context I am required to consider whether I should exercise my discretion under s 66 of the Supreme Court Act to permanently restrain FG from publishing those defamatory matters.
On behalf of CD it was submitted that the imputations set out in pars 19 and 19A of the Amended Statement of Claim plainly arise from the proposed publications, they are untrue, and so a cause of action in terms of a threatened defamation is made out.
FG submitted that the statutory defences of justification, qualified privilege and triviality apply and so for that reason, and others set out in the “submissions” part of this judgment, the orders sought should not be made. However, for the reasons above and that follow I have rejected all of those potential defences.

(iii) Injurious falsehood

CD pleaded in the alternative that I ought to restrain the threatened publication(s) on the basis of injurious falsehood. The four elements of that tort were set out by Gummow J in Palmer Bruyn & Parker Pty Limited v Parsons (2001) 208 CLR 388; [2001] HCA 69 at [52]. First, a false statement of or concerning the plaintiffs’ goods or business; second, publication of that statement by the defendant to a third person, third, malice on the part of the defendant; and fourth, proof by the plaintiff of actual damage which may include a general loss of business suffered as a result of the statement.
The onus is on the plaintiff to prove each of the elements. The “malice” requirement has to be underpinned by the publication being shown to be motivated by an intention to cause harm to the plaintiff.
I am not satisfied that the necessary elements for injurious falsehood have been established. I am not prepared to find that there was malice and I do not believe damage has been demonstrated. I decline therefore to find this potential tort is a basis upon which to grant the relief sought and so for the purposes of the decision-making, that cause of action can be put to one side.

(iv) Suppression orders

In respect of the permanent suppression orders sought, the Court Suppression and Non-publication Orders Act provides a regime and the machinery for orders of that type to be made, premised upon the primary objective of the administration of justice and to safeguard the public interest in open justice: s 6.
Section 7 provides the power to make orders:

7 Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of—

(a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b) information that comprises evidence, or information about evidence, given in proceedings before the court.

Section 8 provides the grounds for making the order:

8 Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds—

(a)  the order is necessary to prevent prejudice to the proper administration of justice,
(b)  the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,
(c)  the order is necessary to protect the safety of any person,
(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900),
(e)  it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.

(3) Despite subsection (1) (d), a court may make a suppression order or non-publication order on the grounds that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances.

Section 12 provides that the length of time the order is in place must be specified and should be confined as to duration:

12 Duration of orders

(1) A suppression order or non-publication order operates for the period decided by the court and specified in the order.

(2) In deciding the period for which an order is to operate, the court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

(3) The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

Submissions

Extensive written submissions were provided by both parties. They have been carefully considered and taken into account, and there is no need to re-state them but I will highlight some key points of each.

(i) FG

Counsel for FG submitted that I should not assume that the refusal of FG to accept the offer set out in MFI 1 informs the issue of intention to publish, given that the offer still has within it leaving in place a very wide suppression order and restraining orders.
It was submitted that I should take at face value FG’s statement that she does not want to publish anything about the filming by CD without her consent or the allegation that he sexually assaulted her.
Third, I only need to decide whether the defence of truth is reasonably arguable when considering whether to grant the quia timet injunction.
Fourth, there is a lack of precision regarding the asserted imputations because what is likely to be said and the risk that it will be said, has not been established on the evidence. The imputations relied on have not been properly pleaded and they are not concise, precise and material.
Fifth, I do not need to make a finding that CD knew that FG was not consenting to intercourse in the bath in January 2015, I just have to find whether the defence of substantial truth is reasonable, and in the context of a sexual abuse allegation, the finding would need to be that there is no hope that the allegation would be found to be substantially true.
Sixth, the defence of qualified privilege is available, particularly where we do not know the nature of the publication and the audience it may be directed to, and therefore the Court should not rule out that qualified privilege may well apply as a defence.
Seventh, I should read the evidence of FG as indicating only a very confined intent to speak openly about her relationship with CD and the possible damage and compromises that may be caused to young women who enter into affairs with older, powerful men. There is no real intention to say anything about the video of the sexual intercourse between CD and FG and no intention to say anything about the non-consensual oral sex in January 2015.
Eighth, I should bear in mind that there may potentially be a pleading back of some contextual truths regarding the matters raised and I should bear in mind that the defence of triviality is made out.
Ninth, the publication will not be widespread such as would be the case of a media organisation. Any publication would be likely limited to Facebook or blogs. This is a matter that should be taken into account on the issue of the discretion as to whether to grant the final restraining orders.
Tenth, damages would be an adequate remedy because one would really query what damage would be caused to CD, given the very limited extent of potential publicity, particularly given that CD is essentially “nobody” in Australia which is the only relevant place affected by the orders sought.

Finally, the risk of publication is simply not real or imminent.
In respect of the injurious falsehood claim, there is no loss and no malice shown and no proof of actual damage and therefore that cause of action must fail.
In respect of the cross-claim, the video was taken without the knowledge of FG and therefore it was a breach of confidence and she is entitled to an equitable remedy in damages for the actions of CD.

(ii) CD

Counsel for CD submitted that the test for damage in terms of the injurious falsehood claim is simply “reasonable probability of actual damage” to CD. In the context of a quia timet injunction, it is evident that damage has not occurred yet because the publication has been prevented, but the Court can still consider whether the injunction should be granted to avoid that outcome.
Second, FG has the onus to show that the imputations in question were true and she has not met that onus.
It is part of the Court’s role in this hearing to adjudicate the defences. The truth defence fails and the defence of qualified privilege cannot arise because there is no subject matter to which the relevant considerations could be applied.
Intent to publish has been established on the balance of probabilities. When the conduct of FG is examined, comprising the statement provided to a Court in [redacted], the matters raised in the Defence, the nature content and tenor of her evidence at this hearing and her refusal to undertake not to publish the imputations in issue, the Court should infer from those matters considered together that there is the requisite degree of threat or risk that she will publish the defamatory material, and the Court should find that it is reasonably necessary to make the orders sought to address that threat or risk.
In respect of the injurious falsehood claim, there is enough evidence in the affidavit of CD to show that a sexual assault allegation would probably cause harm to his reputation and thus financial harm to his potential to come to Australia to [redacted] and the like and so there was a probability of financial loss if the falsehoods are published.

Decision

I have no doubt that the three imputations in question that CD sexually assaulted FG, that CD filmed her having sex without her consent and that CD used his position as her employer to force her to have unwanted sexual relations with him are all imputations available on the statement FG provided to the Local Court in [redacted] and more recently, via the assertions in the Defence and Cross-Claim and her affidavits filed in these proceedings.
For the reasons I have set out in detail above, I find that each of those assertions are untrue.
I have no doubt that any of those assertions, if published, are likely to damage CD’s reputation irrevocably and in a way that will not necessarily be addressed by a claim for damages.
I have carefully considered the important role of the right to free speech and the public interest in that right, as well as the current important public debate regarding the “#metoo” movement where abuse of power by male authority figures, particularly involving younger and or vulnerable female staff, is a matter of significant public concern and interest.
The difficulty with that last consideration is that I do not consider the facts of what occurred between CD and FG to fall into that category. Indeed I consider the evidence to indicate a consensual, passionate, sexual relationship where FG was truly in love with CD and when the relationship broke down she was devastated and felt used and disempowered. She did not work for him and she was not employed in his industry.
In my view there is no public interest in this circumstance, and there is certainly no public interest in enabling and/or failing to prevent the threat or risk of publication of defamatory material that I have been able to determine on the evidence presented before me to be untrue.
Considering the six principles extracted in the analysis carried out by Wigney J in Rush (No 9) and informed by the additional and thoughtful observations of McCallum J in Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351 at [13]-[15], in my view there is a relevant and present threat and risk that FG will publish the defamatory material.
I have formed that view from a combination of the tenor and content of her evidence at this trial, the document she submitted to the Local Court in [redacted], with the detailed and emotive narrative some of which was patently untrue, her insistence in her evidence that she was “employed” by CD and/or his company in the face of overwhelming evidence to the contrary, and her repeated mantra that she does not want to be “suppressed”.
Given those matters and FG’s refusal to take the opportunity provided in open Court and on an ongoing basis by the open offer to undertake not to publish those things, I am satisfied that the order is reasonably necessary to address that threat or risk.
I consider that there is no true hardship to FG in being restrained from publishing things that are untrue, but there is significant potential hardship to the plaintiff if he is required to resort to new proceedings if the defamatory material is published.
I consider the nature of the defamatory material to be serious and of a type that would affect the reputation of CD, particularly in the public aspect of [redacted]. I acknowledge that he is not a “known personality” in Australia, but there is an appetite for news regarding “#metoo” type matters and this may be a most unfortunate and unfair and untrue basis upon which he may become known.
It is undesirable to create potential for a multiplicity of actions by not making orders restraining FG from publishing the clearly defamatory material. If I lift the current suppression and injunctive orders, and what follows is that the risk or threat I consider to be present, becomes an actuality, then proceedings may well need to be brought again in this Court, seeking the same relief as well as damages for a published defamation.
I do consider the public interest in the right to free speech to be a significant matter and I do consider that FG should be able to write about CD, including identifying him by name and discussing those parts of her experience of her relationship with him that she found to be upsetting and disempowering and to comment freely on the personal characteristics of CD that caused her pain and distress but she cannot, and there is no public interest in her being allowed to, publish things that have been determined by this Court to be untrue.
In all the circumstances I have decided that CD is entitled to appropriate orders by way of injunctive relief.

Orders

The shape and form of any final order needs to reflect these reasons and the form of the restraining orders. To that end I will order that the parties make submissions as to the appropriate form of injunctive relief and suppression orders, as well as on the question of costs. The parties should bear in mind that going forward there should be a clear path as to what FG can publish and that will include the name of CD and the nature and extent of their affair and her feelings about, it but she cannot say or suggest that:

She was employed by him or his company; or

That CD took advantage of his position as her “employer” to compel her to have unwanted sexual relations; or

That she was sexually assaulted by him, or that the oral and masturbatory sexual intercourse at the [redacted] Hotel in January 2015 was non-consensual; or

That CD filmed her having sexual intercourse without her consent; or

That CD showed the recording of them having intercourse to anyone.

I make the following orders:

The plaintiff is entitled to appropriate orders by way of injunctive relief.

Submissions are to be made with respect to the form of the injunctive relief, suppression orders and the question of costs.

The proceedings are listed at 2:30pm on Friday, 9 April 2021 to take submissions on those questions.

Any affidavits in support of the form the final orders should take are to be filed and served by Friday, 2 April 2021.

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Endnotes

Decision last updated: 19 April 2021

Medium Neutral Citation:	CD v FG [2021] NSWSC 300
Hearing dates:	25 and 26 June 2019 and 4 July 2019; 23 September 2020; further written submissions September and November 2020
Date of orders:	26 March 2021
Decision date:	26 March 2021
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	(1) The plaintiff is entitled to appropriate orders by way of injunctive relief. (2) Submissions are to be made with respect to the form of the injunctive relief, suppression orders and on the question of costs. (3) The proceedings are listed at 2:30pm on Friday, 9 April 2021 to take submissions on those questions. (4) Any affidavits in support of the form the final orders should take are to be filed and served by Friday, 2 April 2021.
Catchwords:	TORT – defamation – injurious falsehood – injunctions – whether final injunction should be granted – principles to be applied in the exercise of the Court’s discretion to grant a permanent injunction in defamation cases – freedom of speech – suppression order – permanent restraining order – final injunction granted
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8 and 12 Defamation Act 2005 (NSW), s 30 Supreme Court Act 1970 (NSW), s 66
Cases Cited:	Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 45 Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 Rush v Nationwide News Pty Limited (No 9) [2019] FCA 1383
Category:	Principal judgment
Parties:	CD (Plaintiff) FG (Defendant)
Representation:	Counsel: B McClintock SC/M Richardson (Plaintiff) L Goodchild (Defendant) Solicitors: Unsworth Legal (Plaintiff) Michael Vassili Barristers & Solicitors (Defendant) Self-Represented (November 2020) (Defendant)
File Number(s):	2018/329095
Publication restriction:	Redactions have been made to this judgment to reflect non-publication orders made on 9 April 2021 by Lonergan J