Greenwich v Latham (No 2)

Case [2025] FCA 131

FEDERAL COURT OF AUSTRALIA

Greenwich v Latham (No 2) [2025] FCA 131

File number(s): NSD 475 of 2023
Judgment of: O’CALLAGHAN J
Date of judgment: 26 February 2025
Catchwords: DEFAMATION – application for permanent injunction to restrain republication of defamatory imputation – whether injunction should go – Court’s jurisdiction to grant permanent injunctions – whether real or appreciable risk of republication of defamation – consideration of right to freedom of communication and expression concerning governmental and political matters – question whether damages an adequate remedy inapposite on application for permanent injunctive relief where applicant awarded damages for personal distress and hurt and the harm to his personal and professional reputation and where there is no suggestion that the respondent is or will be unable to pay the damages sum awarded – application for permanent injunction dismissed  
Legislation:

Federal Court of Australia Act 1976 (Cth) s 23

Defamation Act 2005 (NSW) s 23
Cases cited:

Blake v Fox [2024] EWHC 956 (KB)

Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351

Chau v Australian Broadcasting Corp (No 3) [2021] FCA 44; (2021) 386 ALR 36

Greenwich v Latham [2024] FCA 1050

Harbour Radio Pty Ltd v Wagner (2019) 2 QR 468

Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127

Lachaux v Independent Print Ltd [2021] EWHC 1797 (QB)

Palmer v McGowan (No 5) [2022] FCA 893; (2022) 404 ALR 621

Proctor v Bayley (1889) 42 Ch D 390

Roberts v Bass (2002) 212 CLR 1

Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327

Rush v Nationwide News Pty Ltd (No 9) [2019] FCA 1383

Tavakoli v Imisides (No 4) [2019] NSWSC 717

Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Division: General Division
Registry: Victoria
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 39
Date of hearing: 18 December 2024
Counsel for the Applicant: M J Collins AM KC with S Jeliba
Solicitor for the Applicant: Dowson Turco Lawyers
Counsel for the Respondent: G O’L Reynolds SC with G R Rubagotti
Solicitor for the Respondent: Zali Burrows at Law

ORDERS

NSD 475 of 2023
BETWEEN:

ALEXANDER GREENWICH

Applicant
AND:

MARK WILLIAM LATHAM

Respondent

ORDER MADE BY:

O’CALLAGHAN J

DATE OF ORDER:

26 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The applicant’s application for permanent injunctive relief be dismissed.

2.Unless the question of costs can be resolved by agreement, the parties address the question orally at the hearing on 18 March 2025.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).


REASONS FOR JUDGMENT

O’CALLAGHAN J

Introduction

  1. On 18 December 2024, I heard Mr Greenwich’s applications for: (i) entry of judgment and interest; (ii) costs; and (iii) permanent injunctive relief.

  2. At that hearing, I made orders as to (i); adjourned (ii) until 18 March 2025 to enable the applicant’s solicitors to adduce further evidence; and reserved my decision about (iii). 

  3. These reasons deal with the reserved…

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Greenwich v Latham (No 2) [2025] FCA 131
Case
[2025] FCA 131
Decision Date

CaseChat Overview and Summary

In Greenwich v Latham (No 2), the applicant, Mr Greenwich, sought a permanent injunction to prevent the respondent, Mr Latham, from republishing defamatory content that had already been the subject of a judgment in a prior proceeding. The primary judgment had found that Mr Latham had defamed Mr Greenwich in a publication known as the Primary Tweet. The court was required to decide whether it should grant a permanent injunction to prevent Mr Latham from repeating the defamatory content, considering the principles governing the issuance of such injunctions in defamation cases. The court also needed to assess whether there was a real or appreciable risk of Mr Latham republishing the defamatory content and whether damages would be an adequate remedy. The court concluded that permanent injunctions are not issued as a matter of course and that an additional factor, such as a risk of repeated publication, is usually required. The court found no such risk in this case and dismissed Mr Greenwich's application for permanent injunctive relief. The court ordered that unless the question of costs could be resolved by agreement, the parties should address it orally at the hearing on 18 March 2025.

Orders

Orders of the court

1. The applicant’s application for permanent injunctive relief be dismissed.

2. Unless the question of costs can be resolved by agreement, the parties address the question orally at the hearing on 18 March 2025.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

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

These reasons deal with the reserved question, and they assume some familiarity with my reasons in which I found that Mr Latham had defamed Mr Greenwich in a publication that was dubbed the Primary Tweet. See Greenwich v Latham [2024] FCA 1050 (the primary judgment).Principles applicable to the grant of permanent injunctions in defamation cases Permanent injunctions restraining the repeated publication of matters already found to be defamatory are not issued as a matter of course, and until recently such orders were rarely sought. (It seems that the position may be a little different in England, where, although discretionary and thus not available as of right, a permanent injunction is said to be “the natural remedy that flows from the Court’s decision, and, in the absence of a satisfactory undertaking, it is necessary to prevent further publication”. See Lachaux v Independent Print Ltd [2021] EWHC 1797 (QB) at [239] (Nicklin J); Blake v Fox [2024] EWHC 956 (KB) at [11] (Collins Rice J).) The power to grant such relief is found in s 23 of the Federal Court of Australia Act 1976 (Cth), which provides that the court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds as it thinks appropriate. Generally speaking, injunctions are issued in Australia only when some additional factor is evident – usually, an apprehension that the respondent may, by reason of irrationality, defiance, disrespect of the court’s judgment or otherwise, publish allegations similar to those found to be defamatory unless restrained from doing so. See Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127 at 130 [15] (White J) and the cases there cited; Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351 at [15]–[16] (McCallum J); Rush v Nationwide News Pty Ltd (No 9) [2019] FCA 1383 at [13] (Wigney J); Palmer v McGowan (No 5) [2022] FCA 893; (2022) 404 ALR 621 at 730 [519] (Lee J); and Harbour Radio Pty Ltd v Wagner (2019) 2 QR 468 at 488–489 [51] (Fraser JA, with whom Morrison JA and Burns J agreed). This has been the position for a very long time. See Proctor v Bayley (1889) 42 Ch D 390 at 401 (Fry LJ) (“[a]n injunction is granted for prevention, and where there is no ground for apprehending the repetition of a wrongful act there is no ground for an injunction”). The requirement that there be some risk or apprehension of republication of the defamatory imputation before a permanent injunction is granted is consistent with the general law concerning injunctive relief in cases involving the infringement of legal rights. See Rush at [27]; Spry ICF, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages (9th ed, Lawbook Co, 2014) at pages 391–394; Heydon JD, Leeming MJ and Turner PG, Meagher, Gummow & Lehane’s Equity Doctrines and Remedies (5th ed, LexisNexis Butterworths, 2015) at [21-040]; and Rolph D, Rolph on Defamation (2nd ed, Lawbook Co, 2024) at [17.160].

Ratio Decidendi

Legal Principle Established

Mr Latham’s right to free speech is another matter. Mr Latham has, and continues to have, the right, within limits, to criticise or express opinions about the correctness of the primary judgment, and nothing I have said above is to be taken as suggesting otherwise. As Collins Rice J said in Blake at [44]: “[t]o be very clear, I am saying nothing here about restraining [the defendant’s] exercise of free speech in any respect or for any purpose other than to evaluate the risk that he will, unless injuncted, repeat the [defamation]. That is the beginning and end of my function”. And so it is here.Other considerations If the injunction proposed by Mr Greenwich is not made, and Mr Latham does repeat or republish the defamatory imputation, the only course available to Mr Greenwich would be to commence another defamation proceeding. Section 23 of the Defamation Act may apply, and Mr Greenwich in that event would need to seek leave to commence any proceeding in relation to any publication of any “matter” which is properly considered to be the same as or “like” the matters the subject of this proceeding. But the need to seek such leave “can nevertheless not really be considered to be a particularly burdensome exercise” for Mr Greenwich to undertake. Compare Rush at [85]. And if the commencing of such a new proceeding was the only way that Mr Greenwich could seek redress, then no court would refuse to grant him the requisite leave permitting him to do so. Mr Reynolds made much of damages being what he called “an adequate remedy”, as follows (see transcript at page 31, noting that the words were incorrectly attributed to Dr Collins):Second of all, we submit that there isn’t any reason in this case why damages would not be an adequate remedy. There’s no suggestion that my client is impecunious, or there’s any other reason why, if there were a second action and damages were recovered, that Mr Greenwich wouldn’t be paid.There are on the books cases, I’ve been in them, where defendants have repeated what they’ve earlier said. This happens quite a bit in the media cases, where you have something on the internet which isn’t taken down, and it’s left up there, and the plaintiff comes along … and says, “Still up there. Every person that reads it, that constitutes a new defamation, and I want damages.” And they’ve been awarded damages. Now, there’s no reason why, if that were to happen, that an award of damages wouldn’t be adequate compensation. Mr Greenwich would simply get more money. And if the remedy at law is adequate, then equity has no jurisdiction to be [granting] permanent injunctive relief. Mr Reynolds continued (at pages 31–32 of the transcript):Your Honour would know this whole idea of granting permanent injunctions in defamation cases is a very novel one. Your Honour would, I’m sure, accept from me that I’ve been in a lot of these cases … but this is the first time I’ve stood on my feet and argued in relation to a permanent injunction, and I think I’ve been in hundreds of them, and that’s because it wasn’t a traditional remedy. And it wasn’t a traditional remedy for the sorts of reasons that I’m talking about today, and that is if the defendant wants to go ahead and do it again, then it just means the plaintiff will get more money.