Kelly v Fairfax Media Limited
[2017] ACTSC 322
•25 October 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kelly v Fairfax Media Limited |
Citation: | [2017] ACTSC 322 |
Hearing Date: | 25 October 2017 |
DecisionDate: | 25 October 2017 |
Before: | Mossop J |
Decision: | 1. The application for an interlocutory injunction be dismissed. 2. The plaintiff to serve the originating application, the affidavit of 25 October 2017, and a copy of exhibit 1, on the defendant by 3 November 2017. 3. The matter be listed for directions before the registrar on Monday 13 November 2017 at 9:30am. |
Catchwords: | DEFAMATION – INTERLOCUTORY INJUNCTION – Injunction sought to prevent publication of alleged defamatory article – defendant not served – consideration of circumstances – application dismissed |
Legislation Cited: | Court Procedures Rules 2006 (ACT), r 39 |
Cases Cited: | Australian Broadcasting Corporation v O'Neill [2006] 227 CLR 57 Bonnard v Perryman [1891] 2 Ch 269 Stocker v McElhinney (No 2) [1961] NSWR 1043 |
Parties: | Peter James Kelly (Plaintiff) Fairfax Media Limited (Defendant) |
Representation: | Counsel In person (Plaintiff) |
| Solicitors In person (Plaintiff) | |
File Number: | SC 423 of 2017 |
MOSSOP J:
This is an application for an interlocutory injunction to restrain the defendant, Fairfax Media Limited, from publishing any article that identifies the plaintiff, Mr Peter Kelly, his family, or his associates. The proceedings were commenced by originating application today, 25 October 2017, and were listed before me on an urgent basis sitting as the duty judge.
Notwithstanding the proceedings are proceedings for defamation, which would ordinarily be commenced by originating claim supported by a statement of claim, they have been commenced by originating application. The originating application seeks only injunctive relief and does not seek damages. Because no statement of claim has been filed, the plaintiff has not been required to articulate the basis for the allegation that the publication or any publication within the scope of the injunction would be defamatory. Rule 39 of the Court Procedures Rules 2006 (ACT) permits the Court to deal with a situation where proceedings are wrongly commenced by originating application and permits the Court to make directions requiring a matter to proceed on pleadings. As a consequence, I do not consider that the procedural deficiency relating to the manner in which the proceedings have been commenced to be significant for present purposes.
However, the absence of a pleading makes it more difficult to identify the basis upon which it is said that any further publication would be defamatory. I note that no notice of the proceedings has been given to the defendant and the defendant was not represented before me today.
The application for an injunction was supported by the affidavit of the plaintiff dated 25 October 2017. That affidavit discloses that the plaintiff is a councillor on the Ku-ring-gai Council in New South Wales. Following a conversation and further communications with a Fairfax Media journalist, Ms Lisa Visentin, an article was published on 22 September 2017 in the Sydney Morning Herald relating to the plaintiff. An electronic printout of the text of that article was put into evidence and became exhibit 1. It is an article headed "One Nation councillor Peter Kelly has links to a Muslim sultan and a questionable PhD". The affidavit discloses that, following the publication of that article, a complaint was lodged with the Press Council. It also discloses that today the plaintiff was contacted again by Ms Visentin who stated that she intends to publish a further story about him “imminently”.
The plaintiff says in his affidavit that the publication "will potentially do harm to me, my children and my friends". It describes the content of the article that is anticipated to be published shortly as that it "continues the same line as before and delves into my personal history, my service in the Australian Intelligence Corps, a fictional publication I wrote and other matters …" The affidavit also states that in recent weeks "other journalists who work for the same publication – Fairfax Media Limited – have embarked on similar attacks on associates of mine in what can only be described as a series of character assassinations".
The absence of a pleading, the fact that no notice has been given to the defendant, and the absence of any other clear articulation of what is alleged to be defamatory makes it more difficult to assess whether or not an injunction should be granted.
It is clear that the general principles relating to the grant of interlocutory injunctions are supplemented in the case of injunctions to restrain publications which are considered to be defamatory by a high degree of caution because of the interest in free speech and public discussion of matters of public interest. The oft cited case of Bonnard v Perryman [1891] 2 Ch 269 includes the statement (at 285) that "in all but exceptional cases …" it is appropriate to "abstain from interference until the trial". In Australian Broadcasting Corporation v O'Neill [2006] 227 CLR 57 at [18]-[19], Gleeson CJ and Crennan J discussed this decision and how that formulation should be currently applied. Their Honours noted that the principles have been discussed not only in the decision of Walsh J in Stocker v McElhinney (No 2) [1961] NSWR 1043 at 1048, but a number of other decisions. Their Honours articulated the correct approach to an application for such an injunction (at [19]), indicating that:
the application of those organising principles will require particular attention to the considerations which courts have identified as dictating caution. Foremost among those considerations is the public interest in free speech. A further consideration is that, in the defamation context, the outcome of a trial is especially likely to turn upon issues that are, by hypothesis, unresolved. Where one such issue is justification, it is commonly an issue for jury decision. In addition, the plaintiff's general character may be found to be such that, even if the publication is defamatory, only nominal damages will be awarded.
[footnote omitted]
In the present case, the matters which conceivably could be considered to be adverse to the plaintiff recorded in the article previously published are his associations with a particular political party, the endorsement of his candidacy for election by Prince Omar Kiram, said in the article to be the cousin of the Sultan of the Sultanate of Sulu and Sabah which, the articles indicates, is a Sultanate not formally recognised by the Philippines government since the 1980s.
Finally, the article refers to a PhD said to be claimed to be held by the plaintiff and draws attention to what the article describes as the questionable legitimacy of the institution which granted it. It is notable that no proceedings have been commenced for damages or to restrain the further publication of the original article.
In the circumstances I consider it appropriate to proceed on the assumption, but not the finding, that there is a serious question to be tried as to whether or not a permanent injunction should be granted. However, having regard to the lack of crystallisation of the issues between the parties and the fact that this is a case in which there would clearly be room for the operation of defences to a claim of defamation as well as the exceptional caution reflected in the authorities that must be adopted where an injunction is sought to restrain an allegedly defamatory publication, I do not consider that the balance of convenience favours the grant of any injunction.
It is for that reason that it is unnecessary to reach any final conclusion as to whether or not, on the basis of the very limited material that is before me, a serious question to be tried is disclosed. For those reasons the application for an interlocutory injunction, in terms of equivalent to orders 1 and 2 set out in the originating application, is dismissed.
The directions that I make are
1. The plaintiff to serve the originating application, the affidavit of 25 October 2017, and a copy of exhibit 1, on the defendant by 3 November 2017.
2. I list the matter for directions before the registrar on Monday 13 November 2017 at 9:30am.
| I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 30 October 2017 |
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