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,…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] NSWSC 300
Decision Date: 26 March 2021

CaseChat Overview and Summary

In the case of CD v FG, the plaintiff sought relief from the court for defamatory statements made by the defendant, FG, which included injurious falsehoods. The court was required to determine whether a final injunction should be granted to prevent further publication of the defamatory content and to assess the principles to be applied when exercising the court's discretion in granting a permanent injunction in defamation cases. The case also involved an application for a suppression order and a permanent restraining order.

The court examined the principles for granting a permanent injunction in defamation cases, which include the balance between the right to freedom of speech and the need to protect the reputation of individuals from defamatory statements. The court considered the severity and impact of the defamatory statements, the likelihood of repetition, and the public interest in the case. Additionally, the court assessed whether the defendant had a genuine intention to cease the defamatory conduct and whether an interlocutory injunction was sufficient or if a final injunction was warranted.

After careful consideration of the evidence and arguments presented, the court found that the defamatory statements made by FG were indeed injurious to the plaintiff's reputation and warranted the granting of a final injunction. The court determined that the balance of convenience favoured the plaintiff, and the public interest did not outweigh the need to protect the plaintiff's reputation. The court also granted a suppression order and a permanent restraining order to prevent FG from publishing further defamatory statements about the plaintiff.

The court's final orders included a permanent injunction prohibiting FG from publishing the defamatory statements, a suppression order preventing the dissemination of the defamatory content, and a permanent restraining order to ensure that FG does not engage in similar conduct in the future. These orders were intended to provide comprehensive protection to the plaintiff and to deter FG from repeating the defamatory statements.

Orders