FEDERAL COURT OF AUSTRALIA
Ferguson v Dallow [2020] FCA 1739
File number: TAD 31 of 2020 Judgment of: KERR J Date of judgment: 2 December 2020 Catchwords: PRACTICE AND PROCEDURE – claim that online publication of a video contravened the Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) and constituted defamation – ex parte application for urgent interim injunctive relief, including orders permitting proceeding to be conducted under a pseudonym and prohibiting further publication of the relevant video – exceptional circumstances found to exist – orders not made permitting proceeding to be conducted under a pseudonym – other orders sought made on an interim basis until an interlocutory hearing, but confined to terms appropriate to minimise impact on open justice Legislation: Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) ss 18, 19, 236
Federal Court of Australia Act 1976 (Cth) s 37AI
Cases cited: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618
Bonnard v Perryman [1891] 2 Ch 269
Church of Scientology of California Inc v Readers Digest Services Pty Ltd [1980] 1 NSWLR 344
Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520
Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 31 Date of hearing: 1 and 2 December 2020 Counsel for the Applicant: Mr C Gunson SC and Ms J Sawyer Solicitor for the Applicant: Page Seager ORDERS
TAD 31 of 2020 BETWEEN: MICHAEL DARREL JOSEPH FERGUSON (Previously EYZ20)
Applicant
AND: KANE DALLOW
First Respondent
GOOGLE INC (ABN 34 118 972 998)
Second Respondent
ORDER MADE BY:
KERR J
DATE OF ORDER:
2 DECEMBER 2020
THE COURT ORDERS THAT:
(1)The Applicant have leave to file an amended Originating Application in his name in these proceedings.
(2)Upon the usual undertaking of the Applicant by his counsel and his further undertaking that by no later than 4:00pm on 8 December 2020 he will file a Statement of Claim and will serve that Statement of Claim on the First Respondent immediately upon the First Respondent providing an address for service, the First Respondent be restrained from publishing, republishing, distributing, disseminating or making available for viewing:
(a)the video entitled “Behind the Classroom Door” (First Video) published on the website (Website) and on the online platform (YouTube);
(b)the video entitled “Update Behind the Classroom Door” (Second Video) published on the Website and YouTube; and
(c)the allegations made against the Applicant in the First and Second Videos
for a period of 7 days commencing immediately upon the Applicant’s amended Originating Application, these Orders and the Court’s reasons having been served upon him (the Period).
(3)For the purposes of Order 2, the First Respondent shall remove both the First Video and the Second Video from the Website and YouTube within two hours of these Orders having been…
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- AGLC
- Ferguson v Dallow [2020] FCA 1739
- Case
- [2020] FCA 1739
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the applicant had made out a case for an interim injunction to restrain publication of the video. The court also had to decide whether the applicant should be permitted to proceed under a pseudonym and whether the orders sought should be made on an interim basis until an interlocutory hearing. The court found that exceptional circumstances existed that warranted the grant of the injunction, but did not permit the proceeding to be conducted under a pseudonym. The court did, however, make the other orders sought on an interim basis until an interlocutory hearing.
The court found that the applicant had made out a case for an interim injunction to restrain publication of the video. The court found that the applicant had shown that the publication of the video constituted a serious invasion of his privacy and reputation and that there was a real risk of substantial injustice if the publication was not restrained. The court also found that exceptional circumstances existed that warranted the grant of the injunction, including the urgency of the application and the risk of harm to the applicant if the injunction was not granted. The court did not, however, permit the proceeding to be conducted under a pseudonym, finding that the applicant had not shown that such a course was necessary to protect his privacy or reputation. The court did, however, make the other orders sought on an interim basis until an interlocutory hearing, but confined the terms of the orders to those appropriate to minimise the impact on open justice.
The court made several orders in relation to the interim injunction. The court granted the applicant leave to file an amended Originating Application in his name in the proceedings. The court also restrained the respondent from publishing, republishing, distributing, disseminating or making available for viewing the video in question and the allegations made against the applicant. The court further ordered that the respondent remove the video from the relevant websites and online platforms within two hours of the orders being served upon him. The court also granted liberty to the respondent to apply to discharge the orders and to the applicant to apply for a hearing of his application for interlocutory relief. The court further ordered that the applicant file an affidavit of service within 24 hours of having effected service of the orders on the respondent and that the court file in the proceeding not be inspected by any person who was not a party to the proceeding without leave of a Judge of the Court. The court also ordered that the court's reasons for making the orders be published only to the parties until the expiry of the period specified in the orders or further order.
Orders
Orders of the court
(1) The Applicant have leave to file an amended Originating Application in his name in these proceedings.
(2) Upon the usual undertaking of the Applicant by his counsel and his further undertaking that by no later than 4:00pm on 8 December 2020 he will file a Statement of Claim and will serve that Statement of Claim on the First Respondent immediately upon the First Respondent providing an address for service, the First Respondent be restrained from publishing, republishing, distributing, disseminating or making available for viewing:
(a) the video entitled “Behind the Classroom Door” (First Video) published on the website www.tasnews24.tv (Website) and on the online platform www.youtube.com (YouTube);
(b) the video entitled “Update Behind the Classroom Door” (Second Video) published on the Website and YouTube; and
(c) the allegations made against the Applicant in the First and Second Videos
for a period of 7 days commencing immediately upon the Applicant’s amended Originating Application, these Orders and the Court’s reasons having been served upon him (the Period).
(3) For the purposes of Order 2, the First Respondent shall remove both the First Video and the Second Video from the Website and YouTube within two hours of these Orders having been served upon him or, if the First Respondent cannot comply in that timeframe after making all reasonable efforts, he must remove both Videos from the Website and YouTube as soon thereafter as he is reasonably able to and ensure that neither can be accessed by such means during the Period.
(4) The First Respondent have liberty to apply on short notice to discharge these Orders.
(5) The Applicant have liberty to apply on short notice for a hearing of his application for interlocutory relief, and leave to apply for orders extending the operation of these Orders pending such a hearing.
(6) Pursuant to r 41.06 of the Federal Court Rules 2011 (Cth), these Orders are endorsed with a penal notice in the following form:
TO: KANE DALLOW
IF YOU (BEING THE PERSON BOUND BY THESE ORDERS):
REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THESE ORDERS FOR THE DOING OF THE ACT; OR
DISOBEY THESE ORDERS BY DOING AN ACT WHICH THESE ORDERS REQUIRE YOU NOT TO DO,
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THESE ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THESE ORDERS MAY BE SIMILARLY PUNISHED.
(7) It is further ordered that:
(a) The Applicant file an affidavit of service within 24 hours of his having effected service of these orders on the First Respondent;
(b) Until further order, the court file in this proceeding not be inspected by any person who is not a party to the proceeding without leave of a Judge of the Court; and
(c) Until the expiry of the Period or further order, the Court’s reasons for making these orders be published only to the parties.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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Evidence Before The Court
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Legal Principle Established
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