Goldberg v Voigt - [2019] NSWDC 691

District Court

New South Wales

Medium Neutral Citation: Goldberg v Voigt [2019] NSWDC 691
Hearing dates: 17 October 2019
Date of orders: 17 October 2019
Decision date: 17 October 2019
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Plaintiff’s application pursuant to s 46 District Court Act 1973 (NSW) for urgent interlocutory relief is refused.
(2) The defendant as a litigant in person is entitled to such reasonable disbursement as may be agreed or assessed, including but not limited to the disbursements of her appearance today.
(3) Pursuant to r 7.36 Uniform Civil Procedure Rules 2005 (NSW), refer the defendant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.
(4) Matter stood over to the Defamation List on Thursday 5 December 2019 for further directions.

Catchwords: INJUNCTION – application by the plaintiff pursuant to s 46 District Court Act 1973 (NSW) and District Court Civil Practice Note 6 (Defamation List), paragraph 9 for removal by the defendant of material from the internet – balance of convenience issues in applications for interim injunctions defamation proceedings – application refused
Legislation Cited: District Court Act 1973 (NSW), s 46
Cases Cited: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Bennette v Cohen [2009] NSWCA 60
Bonnard v Perryman [1891] 2 Ch 269
Doe v Dowling [2017] NSWSC 1793
Munsie v Dowling [2014] NSWSC 598
Jane Doe 1 and Jane Doe 2 v Dowling [2016] NSWSC 1909
Stokes v Ragless [2014] SASC 56
Texts Cited: Hunt, D., Nicholas, H., Sackar, J. H., Tobin, T. K., and Sexton, M., Aspects of the Law of Defamation in New South Wales, (Young Lawyers Section, Law Society of NSW, Sydney, 1990, J C Gibson (ed))
Category: Procedural and other rulings
Parties: Plaintiff: Bruce Goldberg
Defendant: Alice Voigt
Representation:
Counsel:
Plaintiff: Mr B Goldsmith (solicitor)
Defendant: In person
Solicitors:
Plaintiff: Goldsmiths Lawyers
Defendant: In person

File Number(s): 2019/294969
Publication restriction: None

Judgment

HER HONOUR: This is an application by the plaintiff for an interim injunction pursuant to s 46 District Court Act 1973 (NSW). The application was lodged with the Court on 16 November 2019 at 11.26am, and the matter urgently added to the defamation list. That is not the way that matters generally proceed under Practice Note 7, but an exception must be made in the case of urgent applications of this kind.
The order that is sought is an order for the removal by the defendant of material from the internet, which is in mandatory form. I note the observations in Stokes v Ragless [2014] SASC 56, that where mandatory orders are sought, there is an even greater requirement for caution to be exercised.
There are a number of preliminary matters that must be determined. The first is whether or not a prima facie case has been made out, which I propose to assume here. The second is the balance of convenience. The third is…

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.

Continue reading Goldberg v Voigt

Details

AGLC: Goldberg v Voigt [2019] NSWDC 691
Case: [2019] NSWDC 691
Decision Date: 17 October 2019

CaseChat Overview and Summary

The plaintiff in this case sought an interim injunction under section 46 of the District Court Act 1973 (NSW) and District Court Civil Practice Note 6 (Defamation List), paragraph 9, requesting that the defendant remove certain defamatory material from the internet. The dispute arose from comments posted by the defendant on a social media platform, which the plaintiff alleged were defamatory. The case was heard in the District Court of New South Wales.

The court was required to determine whether the balance of convenience favoured the plaintiff in this interim injunction application. The central issue was whether the plaintiff's right to protect their reputation outweighed the defendant's right to freedom of expression and the public interest in open discussion. The court considered the irreparability of harm, the strength of the plaintiff's case, and the impact of the injunction on the defendant's rights.

The court found that the balance of convenience did not favour the plaintiff. While the plaintiff's reputation was at stake, the court considered the public interest in open discussion and the defendant's right to freedom of expression. The court determined that the defamatory material was not so egregious that it necessitated immediate removal. The court also noted that the defendant, as a litigant in person, might require legal assistance, and thus referred her to the registrar for potential legal aid.

The court refused the plaintiff's application for an interim injunction and ordered that the defendant be referred to the registrar for possible legal aid. The matter was stood over for further directions on the Defamation List.

Orders

Orders of the court

(1) Plaintiff’s application pursuant to s 46 District Court Act 1973 (NSW) for urgent interlocutory relief is refused.

(2) The defendant as a litigant in person is entitled to such reasonable disbursement as may be agreed or assessed, including but not limited to the disbursements of her appearance today.

(3) Pursuant to r 7.36 Uniform Civil Procedure Rules 2005 (NSW), refer the defendant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

(4) Matter stood over to the Defamation List on Thursday 5 December 2019 for further directions.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Goldberg v Voigt [2019] NSWDC 691
Hearing dates:	17 October 2019
Date of orders:	17 October 2019
Decision date:	17 October 2019
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff’s application pursuant to s 46 District Court Act 1973 (NSW) for urgent interlocutory relief is refused. (2) The defendant as a litigant in person is entitled to such reasonable disbursement as may be agreed or assessed, including but not limited to the disbursements of her appearance today. (3) Pursuant to r 7.36 Uniform Civil Procedure Rules 2005 (NSW), refer the defendant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. (4) Matter stood over to the Defamation List on Thursday 5 December 2019 for further directions.
Catchwords:	INJUNCTION – application by the plaintiff pursuant to s 46 District Court Act 1973 (NSW) and District Court Civil Practice Note 6 (Defamation List), paragraph 9 for removal by the defendant of material from the internet – balance of convenience issues in applications for interim injunctions defamation proceedings – application refused
Legislation Cited:	District Court Act 1973 (NSW), s 46
Cases Cited:	Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Bennette v Cohen [2009] NSWCA 60 Bonnard v Perryman [1891] 2 Ch 269 Doe v Dowling [2017] NSWSC 1793 Munsie v Dowling [2014] NSWSC 598 Jane Doe 1 and Jane Doe 2 v Dowling [2016] NSWSC 1909 Stokes v Ragless [2014] SASC 56
Texts Cited:	Hunt, D., Nicholas, H., Sackar, J. H., Tobin, T. K., and Sexton, M., Aspects of the Law of Defamation in New South Wales, (Young Lawyers Section, Law Society of NSW, Sydney, 1990, J C Gibson (ed))
Category:	Procedural and other rulings
Parties:	Plaintiff: Bruce Goldberg Defendant: Alice Voigt
Representation:	Counsel: Plaintiff: Mr B Goldsmith (solicitor) Defendant: In person Solicitors: Plaintiff: Goldsmiths Lawyers Defendant: In person
File Number(s):	2019/294969
Publication restriction:	None