Duthie v Nixon
[2015] VSC 672
•27 November 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2015 05967
| KIMBERLEY LOUISE DUTHIE | Plaintiff |
| v | |
| RICKY LEE NIXON and TOOT TOOT PRODUCTIONS PTY LTD | Defendants |
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JUDGE: | BEACH JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 November 2015 |
DATE OF JUDGMENT: | 27 November 2015 |
CASE MAY BE CITED AS: | Duthie v Nixon |
MEDIUM NEUTRAL CITATION: | [2015] VSC 672 |
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PRACTICE AND PROCEDURE – Injunction – Interlocutory injunction – Application to restrain publication of material about the plaintiff pending the hearing and determination of plaintiff’s proceeding – Serious question to be tried – Balance of convenience.
DEFAMATION – Interlocutory injunction – Principles for grant – Defendants proposing to justify – Freedom of speech.
CONFIDENTIAL INFORMATION – Whether information has the necessary quality of confidence – Whether information was imparted in circumstances importing an obligation of confidence – Identification of confidential information – Whether status quo should be preserved pending trial.
COURTS – Orders – Enforcement of orders – Whether defendant should be enjoined from breaching order previously made – Order made under Family Violence Protection Act 2008 – Family Violence Protection Act 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W T Houghton QC with Mr O M Ciolek | Condello Lawyers |
| For the Defendants | Mr D P Gilbertson QC with Mr T Alexander | Lamplugh McIntosh |
HIS HONOUR:
Introduction
The defendants, Mr Ricky Lee Nixon and Toot Toot Productions Pty Ltd, wish to publish a book entitled ‘My Side’ (‘the book’). The book is an autobiography written by the first defendant. The plaintiff, Ms Kimberley Louise Duthie, makes complaint about two chapters of the book, chapters 6 and 7, set out at pp 60–113 of the book (‘the chapters’). While the chapters do not contain the plaintiff’s name, the plaintiff contends (and it is not disputed) that the chapters purport to set out certain dealings alleged, by the defendants, to have occurred between the plaintiff and the first defendant.
On 17 November 2015, the plaintiff obtained interim ex parte injunctions against the defendants, restraining them, until noon on 24 November 2015 or further order:
(a) from publishing, on the internet, by email or other electronic communication, any material about the plaintiff; and
(b) from publishing or causing to be published (whether by electronic or by any other means) the book or any part thereof.
On the same day (17 November), the plaintiff gave the defendants notice of the orders that had been made against them. On 20 November, the plaintiff filed a generally endorsed writ against the defendants, seeking interlocutory and permanent injunctions in the same terms as the interim injunctions granted on 17 November. The parties have now filed affidavit material, and this is the return of the plaintiff’s application for the interlocutory injunctions which she seeks.
Background
The chapters describe events said by the defendants to have taken place between the plaintiff and the first defendant in 2010 and 2011, and when the plaintiff was 17 years of age. The evidence tendered on this application discloses that some of the detail of these events has been reported on by, and discussed in, the media. Further, it appears that, from time to time in the past, each side (the plaintiff and the first defendant) has felt at liberty to disclose or not disclose what he or she said did, or did not, take place between them.[1]
[1]See the affidavits sworn by the parties in this application (plaintiff’s affidavit sworn 20 November 2015 and first defendant’s affidavit sworn 23 November 2015) and the transcript of this application at T6.6 to T7.8.
In July 2011, the plaintiff applied for and was granted a family violence intervention order pursuant to the provisions of the Family Violence Protection Act 2008. In her affidavit,[2] the plaintiff has sworn that, as a result of a publication made by the first defendant, while this order was in force, she believes that the first defendant was charged with breaching the order in or about February 2012, and that the charge was dealt with by way of a diversion order. The defendants did not dispute these assertions before me.
[2]Sworn 20 November 2015.
Similarly, the plaintiff has sworn to the existence of subsequent intervention orders being made after July 2011, the most recent of which was made in the Magistrates’ Court at Moorabbin on 10 June 2015 (‘the 2015 intervention order’). The plaintiff has also deposed (and again not contradicted by the defendants) to the first defendant being found to have breached an intervention order in April 2013. This contravention related to the sending of certain text messages, and for which the first defendant received a 12-month good behaviour bond.
Currently, the June 2015 intervention order is in force. On its terms, this order will expire on 9 June 2016 unless it is extended or varied. Relevantly, the June 2015 intervention order provides:
The Court orders that the respondent [first defendant] must not:
…
3.publish on the internet, by email or other electronic communication any material about the protected person [the plaintiff].
…
6.get another person to do anything he/she must not do under this order.
The parties’ submissions
At hearing, senior counsel for the plaintiff conceded that it was only chapters 6 and 7[3] that contained material of and concerning the plaintiff.[4] As a result, the plaintiff abandoned her attempt to enjoin the publication of those chapters of the book that were not about her.[5]
[3]Appearing between pp 60 and 113.
[4]While initially it was said that there was material on p 128 of the book that was defamatory of the plaintiff, ultimately counsel for the plaintiff conceded that a closer reading of p 128 revealed that the reference to the person who ‘had [the first defendant’s] phone’ in the 13th line of that page was not a reference to the plaintiff, but was a reference to some other person.
[5]Chapters 1–5 and 8–12.
The plaintiff put her claim for the interlocutory injunctions she now seeks on three bases. First, the plaintiff submitted that this Court should restrain threatened breaches of the 2015 intervention order made by the Magistrates’ Court. Secondly, the plaintiff relied upon the cause of action of breach of confidence (confidential information). The plaintiff contended that she had shown that there is a serious question to be tried in relation to this cause of action and that the balance of convenience favours the granting of interlocutory relief. Thirdly, the plaintiff relied upon the cause of action of defamation. Again, the plaintiff contended that the material disclosed a serious question to be tried and that the balance of convenience favoured the granting of interlocutory relief.
On the other hand, the defendants filed written submissions opposing the granting of any interlocutory relief to the plaintiff. However, during argument, senior counsel for the defendants informed the Court that, consistently with a statement contained in the first defendant’s affidavit,[6] that the first defendant did not intend to publish the book electronically, the defendants did not oppose an order being made against them, in this Court, in the same terms as paragraph 3 of the 2015 intervention order, for the period that that order is currently in force (that is, up to midnight on 9 June 2016).
[6]Sworn 23 November 2015.
That said, the application for an interlocutory injunction preventing any publication of the book or the chapters remained opposed by the defendants. As to the claim based on confidential information, the defendants’ position was that that cause of action was hopeless and could not justify the granting of the interlocutory relief sought. In relation to the defamation cause of action, the defendants’ primary position was that, on the authorities, the facts of this case did not justify the granting of any interlocutory relief.
Interlocutory injunctions: general principles
The general principles governing the grant of interlocutory injunctions are not in dispute in this case. The principles were helpfully summarised by Kaye JA in the Court of Appeal’s recent decision of Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd.[7] His Honour said:
They [the principles governing the grant of an interlocutory injunction] require, first, that the applicant must demonstrate that there is a serious issue to be tried as to its entitlement to relief at trial. In order to satisfy that requirement, the applicant must make out a prima facie case as to its entitlement to that relief, in the sense that it must show a sufficient likelihood of success at trial to justify, in the circumstances, the preservation of the status quo pending trial. In addition, the applicant must demonstrate that, if interlocutory relief is not granted, it is likely to suffer injury for which an award of damages would not be an adequate remedy, and that the balance of convenience favours the grant of the injunction.[8]
[7][2015] VSCA 98 (Osborn, Ferguson and Kaye JJA).
[8]Ibid [108] (citations omitted).
The defamation claim
In order to assess whether the plaintiff should be granted an interlocutory injunction on the basis of her claimed cause of action in defamation, one needs to make some assessment of the strength of that claim. At the commencement of the hearing of the plaintiff’s application, the defamation claim was particularised in the most general of terms, namely that the plaintiff would be grossly defamed by the publication of what is written in the chapters. No imputations were initially proffered by the plaintiff. When the difficulty this situation created in assessing the strength of the plaintiff’s claim were drawn to the attention of senior counsel for the plaintiff, he put forward the following as imputations that it was said would be conveyed by the chapters if they were published:
(a) the plaintiff set up and framed the first defendant for illicit drug use and sex with a minor by falsifying a video of an encounter in a city hotel;
(b) the plaintiff took advantage of the first defendant in drugging him with the drug GBH or similar;
(c) the plaintiff stole the first defendant’s credit card;
(d) the plaintiff used the first defendant’s credit card without authority;
(e) the plaintiff stole from the first defendant; and
(f) the plaintiff maliciously stalked the son of the first defendant.
In her affidavit, the plaintiff has sworn that a number of identified passages and statements, in the chapters upon which these imputations are said to be based, are false. On the other hand, in his affidavit, the first defendant has sworn, in relation to the book, that:
The opinions expressed in it are honestly held by me and to the best of my knowledge and belief, the facts stated in the book are true. I may have made some minor factual errors about dates or details, but the substance of the book, in particular chapters 6 and 7, is true.
The first defendant’s affidavit goes on to refute various of the details and assertions sworn to by the plaintiff in her affidavit.
Consistently with the first defendant’s affidavit, the defendants say that they will plead and run justification defences in defence of the plaintiff’s defamation claim.[9] They also point to a number of statements in the chapters, about which they say the plaintiff makes no complaint, that they say would be the basis for the successful pursuit of the defence of contextual truth.[10]
[9]Justification at common law and under s 25 of the Defamation Act 2005.
[10]See s 26 of the Defamation Act 2005.
The question of whose version of the events that transpired, in 2010 and 2011, between the plaintiff and the first defendant, is correct, is heavily dependent upon the evidence of the plaintiff and the first defendant, and upon which of them is to be believed. One matter is certain: the credibility and reliability of each of the plaintiff and the first defendant will be hotly contested issues at trial. Each will assert that the other has lied and continues to lie about the critical facts that underlie the present proceeding.
Senior counsel for the plaintiff invited me to conclude, on a mere reading of the documents, that the account given by the first defendant is ‘unbelievable’. Of course, as is the case in applications of the present kind, neither the plaintiff nor the first defendant has yet had to enter the witness box and face cross-examination. In those circumstances, notwithstanding that I have read all of the filed material (and watched the YouTube videos referred to in the first defendant’s affidavit), I have been unable to form any conclusion as to who might or might not ultimately be believed at trial. That will be a matter for the trial judge (or a jury, if the defendants give the requisite jury notice).
There are a number of authorities that govern matters that need to be considered when an interlocutory injunction is sought in relation to the publication of material that is alleged to be defamatory. The principal authorities to which I was taken in argument were Stocker v McElhinney (No 2),[11] National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd,[12] Chappell v TCN Channel Nine Pty Ltd,[13] and Australian Broadcasting Corporation v O’Neill.[14] Each of these authorities concerned the approach to be taken in defamation cases where a defendant proposes to plead and run a justification defence. To the extent that differences in approach or language might be identified between some of the authorities that deal with this issue, it is, of course, important to bear in mind that some of the authorities relate to jurisdictions where truth was or is an absolute defence,[15] and other authorities deal with the position where public benefit must be established in order for a justification defence to succeed.[16]
[11][1961] NSWR 1043 (‘Stocker’).
[12][1989] VR 747 (‘National Mutual’).
[13](1988) 14 NSWLR 153 (‘Chappell’).
[14](2006) 227 CLR 57 (‘O’Neill’).
[15]See, for example, National Mutual [1989] VR 747.
[16]See, for example, Chappell (1988) 14 NSWLR 153.
Undoubtedly, the Court has a discretion to grant an interlocutory injunction prohibiting the publication of material alleged to be defamatory pending trial. However, the authorities make it clear that courts should deal ‘most cautiously and warily’ with the granting of injunctions pending trial.[17] As was said by the Full Court in National Mutual:
In the case of an application to restrain a libel …, the very great importance which our society and our law have always accorded to what is called free speech, means that equity exercises great care in granting injunctive relief and does so only where it is very clear that it should be granted. It has been said in high places, and said on high authority from the Bench, that it is by no means rarely a benefit to society that a hurtful truth be published. It has been felt, we think, that it is usually better that some plaintiffs should suffer some untrue libels for which damages will be paid than that members of the community generally, including the so-called news media, should suffer restraint of free speech. The judges over the centuries have also been well aware how easy it would be for a tyrant to stifle all opposition by deciding what was ‘genuine’ free speech, to be allowed, on the one hand and what was an unjust or unfair or dishonest taking advantage of free speech, to be repressed, on the other hand. When the court enjoins, it must be extremely clear that no unacceptable repression is taking place. It has thus been laid down that it is only in a clear case that the court will intervene by injunction.[18]
[17]National Mutual [1989] VR 747, 763.
[18]Ibid 764.
More recently, the proposition that free speech is of such importance that it is better, in all but exceptional cases, to abstain from interference in publication until trial, was endorsed by Gleeson CJ and Crennan J in O’Neill.[19] In their joint judgment, their Honours cited with approval what was said by Walsh J in Stocker, namely:
(1)Although it was one time suggested that there was no power in the court, under provisions similar to those contained in [the Act governing procedure in the Supreme Court of New South Wales] to grant an interlocutory injunction, in cases of defamation, it is settled that the power exists in such cases.
(2) In such cases, the power is exercised with great caution, and only in very clear cases.
(3) If there is any real room for debate as to whether the statements complained of are defamatory, the injunction will be refused. Indeed, it is only where on this point, the position is so clear that, in the judge's view a subsequent finding by a jury to the contrary would be set aside as unreasonable, that the injunction will go.
(4) If, on the evidence before the judge, there is any real ground for supposing that the defendant may succeed upon any such ground as privilege, or of truth and public benefit, or even that the plaintiff if successful, will recover nominal damages only, the injunction will be refused.[20]
[19]O’Neill (2006) 227 CLR 57, 66–68 [16]–[18]. See also the judgment of Gummow and Hayne JJ in O’Neill, 84-89 [73]-[94].
[20]Stocker [1961] NSWR 1043, 1048 as cited by Gleeson CJ and Crennan J in O’Neill, 67 [18].
The present case is neither an ‘exceptional case’ of the kind identified in the authorities to which I have referred; nor can it be described as a ‘clear case’ so that interlocutory relief should be ordered. While there is a real possibility that the plaintiff may establish an entitlement to significant damages, it cannot be said that the defendants’ prospects of successfully defending the plaintiff’s claim are sufficiently insignificant, or sufficiently small, so as to justify a prohibition on the publication of the chapters pending trial. Put another way, on the present material, the plaintiff’s case cannot be relevantly likened to the ‘clear’ cases that have been identified in the authorities as justifying the granting of an interlocutory injunction.
Further, and as is often said in defamation claims, damages is the appropriate remedy if a cause of action in defamation is made out. While the plaintiff contends that a line in the book, that asserts that the first defendant does not have sufficient funds to launch unrelated litigation against another party, shows that an award of damages would be a hollow victory for the plaintiff, I do not accept that the line to which the plaintiff refers supports any such conclusion. First, on one view the line means no more than that the first defendant is not prepared to spend a significant sum of money to pursue expensive legal proceedings. Secondly, the line says nothing about the capacity of the second defendant to meet an award of damages. Thirdly, even if an award of damages against the defendants remained unsatisfied (in whole or in part), as the authorities in this area show, the very fact of an award of damages being made by a court is a vindication that has the capacity to redress harm.
In argument, much was made by senior counsel for the plaintiff that the plaintiff was only 17 years of age at the time of the events purportedly described in the book. So much may be accepted. Further, in a borderline case, the fact that the party seeking the interlocutory injunction was a minor at a relevant point in time may tip the scales in favour of the granting of the order sought. In assessing the balance of convenience, much may depend upon precisely how young an applicant might have been at a relevant time. However, for the reasons already given, the present case is not borderline. Giving full weight to the plaintiff’s age and each of the matters advanced on her behalf, I am not persuaded that an interlocutory injunction should be granted in respect of the plaintiff’s defamation claim.
Confidential information
The chapters are a somewhat rambling account of meetings, events and encounters said to have taken place between the plaintiff and the first defendant. They contain statements of the first defendant’s opinions on different matters interspersed between what purport to be the facts of particular matters. Some of the material is set out in the form of an argument (‘My main points are …’). On occasions, the writer purports to quote third parties. In other parts, he poses for himself a question which he then answers.[21]
[21]Having regard to confidentiality orders, relating to the book, that are in force until shortly after the publication of these reasons, I have been less precise about the contents of the chapters than I would have been in the absence of these orders.
As the defendants submitted, a clear statement of the elements of a breach of confidence claim appears in the judgment of Gummow J[22] in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic).[23] His Honour said:
[I]n order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff: (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question; and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge); (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence; and (iv) there is actual or threatened misuse of that information.[24]
[22]Who dissented as to the result.
[23](1987) 14 FCR 434 (‘Corrs’).
[24]Ibid 443. See also, Coco v A N Clarke (Engineers) Ltd [1969] RPC 41, 47; Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37, 40; Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 8 NSWLR 341.
It may be that there is a serious question to be tried that some of the matters that are said to have occurred between the plaintiff and the first defendant have the necessary quality of privacy to warrant the application of the law of breach of confidence. For example, in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,[25] Gleeson CJ said:
If the activities filmed were private, then the law of breach of confidence is adequate to cover the case. I would regard images and sounds of private activities, recorded by the methods employed in the present case, as confidential. There would be an obligation of confidence upon the persons who obtained them, and upon those into whose possession they came, if they knew, or ought to have known, the manner in which they were obtained.
…
There is no bright line which can be drawn between what is private and what is not. Use of the term ‘public’ is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.
…
A film of a man in his underpants in his bedroom would ordinarily have the necessary quality of privacy to warrant the application of the law of breach of confidence. Indeed, the reference to the gratuitously humiliating nature of the film ties in with the first of the four categories of privacy adopted in United States law, and the requirement that the intrusion upon seclusion be highly offensive to a reasonable person.[26]
[25](2001) 208 CLR 199 (‘Lenah Game Meats’).
[26]Ibid 225 [39], 226 [42] and 230 [54]. But cf Theakston v MGN Limited [2002] EWHC 137 (QB), [57]-[59] and [65] (per Ouseley J).
However, there are at least two difficulties with the plaintiff’s confidential information claim. First, the plaintiff has not identified with any specificity the information she seeks to protect. There is merely an assertion in ‘global terms’[27] that the contents of the chapters are confidential and publication should therefore be enjoined pending trial. This assertion cannot be made out for the entirety of the chapters: there is plainly material in the chapters (for example, some of the introductory passages, quotes of third parties, quotes of statements made to the media, or in the public domain, and various musings of the first defendant) which could not constitute information confidential to the plaintiff. Indeed, there are paragraphs in the chapters that cannot be said to be in any way about the plaintiff.[28]
[27]Cf Corrs (1987) 14 FCR 434, 443.
[28]See, for example, the middle paragraph on p 63, which describes a time when the first defendant was ‘rushed to St Vincent’s Hospital’ as a result of having fluid on his lungs..
Secondly, as it was put by senior counsel for the plaintiff in argument, the plaintiff’s case is that the book ‘is essentially a farrago of lies’. In such circumstances, it is even more difficult to identify what the plaintiff says is the true information as compared to what is said to be lies — which ‘lies’ could not easily be described as information, much less confidential information.[29]
[29]Although that is not to say that merely because a plaintiff asserts that a defendant’s description, of what may have occurred on an occasion of confidentiality, is untrue, disentitles that plaintiff from successfully asserting a claim for breach of confidence.
A further difficulty the plaintiff has in establishing what might be confidential information relates to the imputations that have been proffered in her claim for defamation. Quite properly, senior counsel for the plaintiff conceded that these imputations could not be confidential. In those circumstances, it is difficult to see how the words that are said to give rise to these imputations could all be confidential. A similar difficulty also arises in respect of other matters (described in the book) that the plaintiff accepts are not confidential.[30] However, it is not necessary for the purposes of this application to resolve these issues. It is sufficient to say that (again having regard to the plaintiff’s age)[31] the plaintiff has not persuaded me that her confidential information case is sufficiently arguable (serious question to be tried)[32] so as to justify the enjoinder of chapters 6 and 7 of the book, either in whole or in part.[33]
[30]For example in argument, senior counsel for the plaintiff stated that it was not confidential that there was a sexual relationship between the plaintiff and the first defendant, or that they ‘did drugs’: see the transcript of this application at T8.1 to T8.7.
[31]See paragraph 23 above.
[32]In addition to the difficulties that I have already referred to, the fact of the plaintiff’s engagement with the media about her dealings with the first defendant (see, for example, the first nine words of line six on page 77 of the book) is a further impediment to the plaintiff’s confidential information claim.
[33]For the sake of completeness I should mention those authorities that have held that the principles governing applications for interlocutory injunctions in defamation cases may also have application to claims for breach of confidence contained in the same proceeding (at least where the issues are broadly the same in the breach of confidence claim as they are in the defamation claim): see, for example, Woodward v Hutchins [1977] 1 WLR 760. While there are other decisions to like effect, it has also been said in competing authorities that there are cases where a court would be entitled to grant an interlocutory injunction notwithstanding the existence of a claim in defamation in the same proceeding. In Microdata Information Services Ltd v Rivendale Ltd [1991] FSR 681, 688, Griffiths LJ said:
If the Court were to conclude that though the plaintiff had framed his claim in a cause of action other than defamation but nevertheless his principal purpose was to seek damages for defamation, the court will refuse interlocutory relief. If, on the other hand, the court is satisfied that there is some other serious interest to be protected such as confidentiality, and that that outweighs consideration of free speech, then the court will grant an injunction.
See further, the analysis of Heydon J in his dissenting judgment in O’Neill (2006) 227 CLR 57, 124–157 [194]–[281]. That said, the matter was not argued before me, and accordingly it is not necessary for me to resolve the issues that are raised by these cases, or to decide whether the point may have provided an additional reason for refusing interlocutory relief in relation to the plaintiff’s confidential information claim.
The 2015 intervention order
Paragraph 3 of the 2015 intervention order prohibits the first defendant from publishing on the internet, by email or by other electronic communication any material about the plaintiff. In his affidavit in opposition to the plaintiff’s application, the first defendant has deposed that it is not his intention to publish the book on the internet or electronically. In argument, senior counsel for the defendants stated that neither of his clients intended to publish the book electronically.
The plaintiff tendered evidence from the web page twitter.com/rickynixon19, a twitter account controlled by the first defendant. The evidence showed that on 19 November 2015, there was material published (electronically) by the first defendant that expressly referred to the plaintiff (a link was published by the first defendant to a newspaper article in which the plaintiff was named). In addition, the evidence disclosed other material published by the first defendant, that would have been understood by people, with knowledge of certain extrinsic facts (the details of which extrinsic facts were set out in the plaintiff’s affidavit, and which were and are plainly known to the first defendant), to have been a reference (in derogatory terms) to the plaintiff. These publications by the first defendant were, to say the least, unsatisfactory. Paragraph 3 of the 2015 intervention order prohibits absolutely the first defendant publishing electronically any material about the plaintiff. The first defendant cannot circumvent this order by merely asserting that he did not specifically name the plaintiff in a particular electronic publication.
It was the plaintiff’s submission that this Court should make an interlocutory order in the same terms as paragraph 3 of the 2015 intervention order. The defendants did not contest the jurisdiction of this Court to make such an order. Initially, their position was that it would be exceptional for this Court to duplicate an order already made in another court.[34] However, in the course of argument, the defendants withdrew their opposition to an order being made against them in identical terms to paragraph 3 of the June 2015 intervention order — and for the period of that order.
[34]As to which, see generally, Victoria v Australian Building Construction Employees’ and Builders’ Labourers’ Federation (1982) 152 CLR 25, 42; Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, 49–50; Gouriet v Union of Post Office Workers [1978] AC 435, 481; Pillay v Nine Network Australia Pty Ltd [2002] NSWSC 983, [24].
Ordinarily, one would be slow to grant an injunction prohibiting conduct which was the subject of a prohibitive injunction in another court. However, the evidence discloses a basis for contending that the first defendant has not been as punctilious as he might have been in obeying court orders in proceedings to which he and the plaintiff are parties. In the circumstances, I am prepared to make the order sought by the plaintiff in the same terms as paragraph 3 of the 2015 intervention order, against both defendants. However, as the order will only be made so as to more fully ensure that the 2015 intervention order is complied with by the first defendant, the order in this Court can be for no greater period than that of the 2015 intervention order.
In his reply submissions, senior counsel for the plaintiff submitted that if the Court was going to make an order in the same terms as paragraph 3 of the 2015 intervention order, then it would be illogical not to prohibit hard copy publication as well as electronic publication. This submission overlooked the fact that, if the plaintiff was not entitled to an interlocutory injunction in support of her defamation and confidential information causes of action, then the only basis for the making of the order that is sought, would be that the order was to be made in aid of the enforcement of the 2015 intervention order. However, such an order could not extend the ambit of the prohibition of the order, the compliance with which was sought by the plaintiff to be more securely enforced.[35]
[35]See Lenah Game Meats (2001) 208 CLR 199, 217 [10], 231-232 [59]-[60] and 241 [91].
When this matter was raised with senior counsel for the plaintiff, counsel then submitted that the magistrate would have prohibited hard copy publication had he been aware that the first defendant contemplated publishing material about the plaintiff in hard copy.[36] The short answer to that point is that if, under the provisions of the Family Violence Protection Act 2008, there should be a prohibition on hard copy publishing, then the plaintiff should seek that order from the Magistrates’ Court. To date, that has not been done.
[36]While it was said that this proposition could be supported by counsel who appeared for the plaintiff in the Magistrates’ Court on 10 June 2015 (and who was present in court on the hearing of the current application), it is difficult to see how, in the absence of evidence of the Magistrate’s reasons for the making of the 2015 intervention order, counsel who appeared for the plaintiff could have given any admissible evidence of what the Magistrate would or would not have done if the first defendant had said that he intended to publish a hard copy book that would contain material about the plaintiff. In any event, as I said in argument, these were matters that could be taken up in the Magistrates’ Court if the plaintiff so desired.
It is not possible for this Court to speculate what a magistrate might or might not have done had he or she been made aware of an intention by the first defendant to publish, in hard copy, a book that contained references to the plaintiff. It might be that orders under the Family Violence Protection Act 2008 routinely prohibit only electronic publication because that publication (being easier to make, and more immediate in its reach) might be capable of significantly greater harm (by reason of that much faster timeframes within which material might be electronically disseminated, individually or to large numbers of people), than hard copy publications. In any event, there can be no basis for this Court expanding the operation of the 2015 intervention order, either on the evidence tendered in this application or at all. The question of what orders are appropriate in respect of applications between the parties under the provisions of the Family Violence Protection Act 2008 is a question for the Magistrates’ Court, not this Court.
Conclusion
There will be an order prohibiting the defendants from publishing on the internet, by email or other electronic communication any material about the plaintiff until midnight on 9 June 2016. Otherwise, the plaintiff’s application for interlocutory injunctions is dismissed.
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