Murdoch University v Gooding - [2018] WASC 372

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MURDOCH UNIVERSITY -v- GOODING [2018] WASC 372
CORAM:   QUINLAN CJ
HEARD:   26 NOVEMBER 2018
DELIVERED          :   26 NOVEMBER 2018
PUBLISHED           :   30 NOVEMBER 2018
FILE NO/S:   CIV 3006 of 2018
BETWEEN:   MURDOCH UNIVERSITY
Plaintiff
AND
GABE GOODING
First Defendant
NATIONAL TERTIARY EDUCATION INDUSTRY UNION
Second Defendant

Catchwords:

Interlocutory injunction - Publication of article about university inquiry - Whether prima facie case or serious question to be tried - Misleading or deceptive conduct - Tort of injurious falsehood - Balance of convenience - Freedom of expression

Legislation:

Competition and Consumer Act 2010 (Cth), sch 2
Murdoch University Act 1973 (WA), s 5, s 6
Workplace Relations Act 1996 (Cth)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr J D MacLaurin
First Defendant	:	Mr C Tran
Second Defendant	:	Mr C Tran

Solicitors:

Plaintiff	:	Minter Ellison
First Defendant	:	Maurice Blackburn
Second Defendant	:	Maurice Blackburn

Case(s) referred to in decision(s):

AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd (2011) Aust Torts Reports 82-077
Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
Beechwood Homes Pty Ltd v Camenzuli [2010] NSWSC 521
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592
Capilano Honey Ltd v Dowling (No 2) [2018] NSWCA 217
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Laing (1998) 89 FCR 17
Firewatch Australia Pty Ltd v Country Fire Authority (1999) 93 FCR 520
Fu v Winstar Group Pty Ltd [2014] WASC 496
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388

QUINLAN CJ:

(This decision was delivered extemporaneously on 26 November 2018 and has been edited from the transcript.)

Introduction

Murdoch University (the University) is a public university established with the objects of 'the advancement of learning and knowledge, and the provision of university education'.[1] Its functions include serving the Western Australian, Australian and international communities and the public interest by promoting critical and free enquiry, informed intellectual discussion and public debate within the University and in the wider society.[2]
[1] Murdoch University Act 1973 (WA), s 5.
[2] Murdoch University Act 1973 (WA), s 6(1)(f)(iii).
This is an application by the University to restrain the defendants from publishing, on a website and in hard copy, an article containing statements of mixed fact and commentary critical of the University. In addition, the application seeks to enjoin the defendants from publishing statements to the same, or similar, effect as a number of statements set out in Schedule 1 to the University’s Further Minute of Proposed Orders dated 23 November 2018.[3]
[3] Statements such as 'The University had unduly limited the information made available to the inquirer/reviewer/investigator', and 'The University had prevented relevant staff from contributing to or being consulted about the inquiry'.
On such an application, there are broadly two issues that arise.
The first is whether the University has demonstrated a serious question to be tried, or prima facie case, in relation to the relief it ultimately seeks in the action. The second is whether the balance of convenience lies in favour of granting the restraint sought.
In relation to the first issue, I adopt the statements of principle set out by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill,[4] in relation to the phrase 'prima facie case'. In that context, their Honours made clear that:[5]
[T]he phrase 'prima facie case' [does] not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.
[4] Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57.
[5] Australian Broadcasting Corporation v O'Neill [65].
Gleeson CJ and Crennan J, in Australian Broadcasting Corporation v O'Neill, agreed with Gummow and Hayne JJ's explanation of the organising principles to be applied in relation to an interlocutory injunction.[6] Gleeson CJ and Crennan J went on to say:[7]
In the context of a defamation case, 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.
[6] Australian Broadcasting Corporation v O'Neill [19].
[7] Australian Broadcasting Corporation v O'Neill [19].
The University relies upon two causes of action as supporting its application for an interlocutory injunction.
The first is a claim for misleading or deceptive conduct in contravention of s 18 of Schedule 2 of the Competition and Consumer Act 2010 (Cth), being the Australian Consumer Law. The second is a claim in the tort of injurious falsehood.
I will come to the elements of each of those causes of action later. First, it is necessary to set out the relevant factual background.

Factual Background

The University relies on:
(a)an affidavit of Darren McKee, the Chief Operating Officer of the University, sworn on 21 November 2018; and
(b)an affidavit of Jarod Glenn Benson, Director of Legal Services, affirmed on 21 November 2018.
The defendants rely on:
(a)an affidavit of Gabrielle Elizabeth Gooding, the first defendant, affirmed on 23 November 2018; and
(b)an affidavit of Angus Macdonald Mackenzie, affirmed on 22 November 2018.
Mr Mackenzie's affidavit largely consists of the results of Google searches carried out by him in relation to the University.
The publication which forms the impetus for the application is headed 'Trouble at Murdoch Again' (the Article). It was written by, and attributed to, Ms Gooding. Ms Gooding is the National Assistant Secretary of the National Tertiary Education Industry Union (NTEU), the second defendant.
The Article was published in two forms:
(a)on the website of the NTEU, having been posted on the website on 15 November 2018; and
(b)within an edition of the Advocate, a journal published by the NTEU for its members. The Advocate is described by Ms Gooding as 'the NTEU’s journal of record'.[8] It is distributed electronically and in hard copy and can be downloaded from the NTEU's website. The relevant edition of the Advocate (volume 25, number 3) includes the Article on page 7 (again headed 'Trouble at Murdoch Again').
[8] Affidavit of Gabrielle Elizabeth Gooding affirmed 23 November 2018 [9].
The Article is relatively brief, and reads:
Trouble at Murdoch Again
Murdoch University recently made headlines again for all the wrong reasons - a substantial influx of international students, many with poor English language skills, and concerns about both the failure rate and plagiarism.
Murdoch had initiated an inquiry into a range of topics, many of which have been concerns of NTEU members for some time. Issues to be covered by the inquiry [sic], headed by a barrister, included international student selection and appointment processes, staff selection and appointment processes, senior management selection and appointment processes, well-being and mental health of staff and of students (especially international students), and OHS and HR grievance processes.
NTEU members have told the Union that the substantial increase in international students enrolled at Murdoch, many under-prepared, is exacerbating workload pressures. In addition, they also hold genuine concerns for the welfare of students. At a packed members' meeting members expressed their frustration with insufficient resourcing of support, an ongoing fear of bullying that prevents many staff from speaking out, and what they allege is inadequate management responses to complaints.
You would think that this would lead to the appointed barrister receiving a wealth of information from a wide range of staff, but sadly, no. We understand that the inquiry was limited to a small number of selected staff and that those staff were required to sign non-disclosure agreements. NTEU also understands that staff were not offered the opportunity to seek independent legal advice before signing.
Perhaps not surprisingly, the Vice-Chancellor recently reported to staff that there were no adverse findings about Murdoch staff. She did not report whether there were any adverse findings about Murdoch processes and decision making.
A university that was prepared to terminate its employees' Collective Agreement was always going to find it difficult to regain the confidence of staff and rebuild morale.
Not holding a full, open, transparent and public inquiry, and not inviting submissions from all staff without them being required to sign a binding non-disclosure agreement is not going to assist in that process. Neither is a failure to publish the report.
Gabe Gooding, National Assistant Secretary
I will turn to some specific aspects of the Article later, but note that it concerns what is described as 'an inquiry into a range of topics' initiated by the University, in relation to which a barrister was appointed.
The background to the Article, which I need not deal with in detail, and which is outlined in Mr McKee's affidavit, includes a history of industrial disputation between the University and the NTEU, particularly in relation to an enterprise agreement negotiated between the University and its employees in 2016.
The more immediate context to the Article relates to issues raised in the public sphere in relation to the University, including in two newspaper articles appearing in the West Australian on 14 September 2018. One of those newspaper articles was headed 'International students at Murdoch University investigated over allegations of cheating'. The other was headed 'Murdoch University academic voices concern over language skills of international students'.
The first of the newspaper articles included the following:
The West Australian has learned that Murdoch has hired a barrister from Francis Burt Chambers to investigate a range of issues, including processes around the recruitment and support of international students.
Following that newspaper article Ms Gooding, on behalf of the NTEU, wrote to the Chancellor of the University by letter dated 14 September 2018. In that letter, Ms Gooding referred to the newspaper article and went on:
NTEU understands that you commissioned that investigation and that those issues are:
·International student recruitment and support
·OHS and HR grievance and complaint processes
·Staff wellbeing and mental health
·Staff appointment processes
·Student welfare and mental health (particularly international students)
·Appointment processes for senior officers and executive.
Ms Gooding then proceeded to raise other issues about which NTEU members were said to have expressed concern, including allegations of 'an entrenched culture of bullying, secrecy and intimidation' at the University. She also referred to the NTEU's understanding that:
… staff at Murdoch have not been advised of the investigation and that there has not been a call for employees to bring forward evidence. Rather, selected employees have been invited to participate. In our view, this does not demonstrate a genuine commitment to a thorough investigation of the issues.
Certain written assurances were then sought by Ms Gooding.
The University responded to the letter of 14 September 2018 by letter dated 18 September 2018, under the hand of Mr McKee. That response includes the following paragraphs:
Your letter contains a number of factual inaccuracies that we wish to draw to your attention.
The University has not commissioned an 'investigation' into the relevant issues. Due to the lack of detail initially provided by the complainant, the University has instructed a third party to undertake a preliminary review of various allegations, in order to establish if there is any reasonable suspicion of misconduct in relation to any University employee or employees which may warrant a formal investigation.
It is accurate that the University has not advised all of its approximately 1700 employees of the review or invited them all to participate. It is difficult to see how that would be fair or practical in circumstances where the University is reviewing particular allegations which do not involve the majority of its employees.
The letter then goes on to address Ms Gooding's request for written assurances.
The University's letter of 18 September 2018, I note, does not directly respond to the statement in Ms Gooding's letter of 14 September 2018 to the effect that the six issues identified by dot points were the issues being considered by the barrister. Indeed, on one reading of the University's letter, it might be thought that the preliminary review was confined to issues of misconduct by individuals, rather than the systemic issues identified by Ms Gooding in her letter.
Nevertheless, it is apparent from the affidavit of Ms Gooding that the source for her identification of the six subjects was a copy of a letter signed by the complainant (that is, the person whose complaint to the University had prompted the review) to a member of the NTEU. That letter requested the member to give evidence in the preliminary review and identified the matters in issue in the review as being the six issues referred to by Ms Gooding.
In that regard, it is apparent from the affidavit of Mr Benson that the complainant did, with the agreement of the University, write to 28 current employees of the University inviting them to provide information to the preliminary review.
It is therefore, in my view, the irresistible inference that the preliminary review, at least as reflected in that correspondence, extended to the six issues identified by Ms Gooding.
This is also consistent with two documents that were tendered in evidence before me: a redacted copy of the Preliminary Review Protocol (Exhibit 1) and a redacted copy of the Executive Summary of the Preliminary Review (Exhibit 2).
It is apparent from the Background set out in in Paragraph 1.1 of the Preliminary Review Protocol that the concerns raised by the complainant included both specific allegations of misconduct and also matters going to broader systemic issues, for example, in relation to the recruitment process for international students and the neglect of duty of care to international students.
The Executive Summary (Exhibit 2) identifies a number of allegations (and sub-allegations), numbered 1 to 7.
Some of those allegations are clearly allegations of misconduct in relation to specific individuals. Some of the allegations, however, are in relation to what may be described as process or systemic matters.
In that regard, as was later reported by the University, the inquiry did not find any reasonable suspicion of misconduct in relation to almost all of the allegations set out in the Executive Summary. Nevertheless, the Reviewer did state, based on the documentation provided to her, that she was not able to reach a conclusion as to whether there was a reasonable suspicion of misconduct in relation to allegation 2(a), which concerned international students. That allegation was that admission criteria had been waived in a manner not consistent with the University's policy in relation to recruitment processes.
Following its correspondence to Ms Gooding dated 18 September 2018, Mr McKee again wrote to her on 5 October 2018 stating, amongst other things:
To date, I have not received a response to my letter. You have not taken up my request to meet to discuss the allegations contained in your communication. You have also not provided any evidence which would give you a reasonable basis for making the serious allegations contained by you in your letter.
I take this to be a reference to the allegation of 'an entrenched culture of bullying, secrecy and intimidation'. The letter from Mr McKee continued:
In light of the above, Murdoch understands the NTEU does not wish to pursue the matters contained in your letter dated 14 September 2018 any further. Therefore, Murdoch considers this matter to be closed.
On 9 October 2018 the Vice-Chancellor of the University sent an email to University staff stating, inter alia:
Dear Colleagues
I would like to share with you the outcome of a review relating to concerns raised about various University matters. This review was conducted by an independent, external barrister via the Senate.
The Chancellor informed me that there were no adverse findings about Murdoch staff.
As has been demonstrated during recent University consultation processes, I place a high value on input from our staff on important strategic matters and give these views serious consideration.
I want to ensure all staff are engaged and able to share their views on matters that will improve and strengthen our University.
…
It is in this context that the Article was published by the defendants.

The Causes of Action Relied Upon by the University

I turn then to the elements of the two causes of action relied upon by the University.
The elements of the misleading or deceptive conduct claim are, for the purposes of this application, twofold. It must be proven:
(a)that the defendants engaged in misleading or deceptive conduct; and
(b)that they did so in trade or commerce.
The elements of the tort of injurious falsehood were usefully summarised by Gummow J in the High Court decision of Palmer Bruyn & Parker Pty Ltd v Parsons.[9] Gummow J identified those elements as being:[10]
(1)a false statement of or concerning the plaintiff's goods or business;
(2)publication of that statement by the defendant to a third person;
(3)malice on the part of the defendant; and
(4)proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement.
[9] Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388.
[10] Palmer Bruyn & Parker Pty Ltd v Parsons [52] (Gummow J).
As will be apparent from the two causes of action, each raises an issue as to the falsity, in a general sense, of the statements made by the defendants, or the conduct of the defendants, in publishing the Article. I say 'in a general sense' because the criteria are not identical. In particular, in relation to a claim for misleading or deceptive conduct the authorities are clear that whether particular conduct is misleading or deceptive is a question of fact to be determined in the context of the alleged conduct as a whole and in light of all of the relevant surrounding facts and circumstances.
In Butcher v Lachlan Elder Realty Pty Ltd, for example, Gleeson CJ, Hayne and Heydon JJ stated that:[11]
[I]t is important that the … conduct be viewed as a whole. It is not right to characterise the problem as one of analysing the effect of its 'conduct' divorced from … circumstances which might qualify its character. Everything relevant … must be taken into account.
[11] Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 [39].
Similarly, in that case, McHugh J said:[12]
It invites error to look at isolated parts of the corporation's conduct. The effect of any relevant statements or actions or any silence or inaction occurring in the context of a single course of conduct must be deduced from the whole course of conduct. Thus, where the alleged contravention of s 52 relates primarily to a document, the effect of the document must be examined in the context of the evidence as a whole. The court is not confined to examining the document in isolation. It must have regard to all conduct of the corporation in relation to the document including the preparation and distribution of the document and any statement, action, silence or inaction in connection with the document.
[12] Butcher v Lachlan Elder Realty Pty Ltd [109].

It will therefore be apparent from the principles concerning misleading or deceptive conduct that 'conduct' is not limited to representations and includes all conduct that meets the description of misleading or deceptive in all of the circumstances, including, for example, half-truths (that is, statements that are literally true but likely to mislead unless suitably qualified).[13]
[13] See e.g. Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546, 554-555.
The test for misleading or deceptive conduct is therefore a broad one in relation to which many circumstances will be relevant.
In relation to the tort of injurious falsehood, in my view, greater attention needs be paid to the particular statement concerning the plaintiff's goods or business itself. In that context it is necessary to identify the particular statement and determine whether it is false.
Nevertheless, the authorities do indicate that, in considering questions of falsity in the context of a claim in injurious falsehood, a plaintiff may rely not only on the precise words themselves, but also upon imputations that arise from the words used.
In that respect, as Brereton J stated in AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd:[14]
In injurious falsehood, unlike in defamation, the plaintiff bears the onus of proving falsity. From time to time, AMI's submissions slipped into the form that there was no evidence to support or justify an imputation, and therefore that it was false. This is not the way in which the tort of injurious falsehood works; unlike in defamation, where it is for the defendant to justify an imputation, in injurious falsehood the plaintiff must prove the imputation to be false. However, the absence of evidence to justify a falsehood is not without significance. Where there is nothing to justify it, it may take very little to establish, on balance, that the imputation is false.
[14] AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd (2011) Aust Torts Reports 82-077 [30].
In light of these principles, in determining whether there is a prima facie case in relation to each of the causes of action, I approach the issues on the basis that the broader context will be of greater significance in the case of the misleading or deceptive conduct claim than in the case of the injurious falsehood claim.
In relation to the latter claim, of course, it is also necessary to establish that the falsehoods were made with malice on the part of the defendant. Again, as observed by Brereton J in AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd:[15]
While the notion of 'malice' in the context of this tort is not easy to define, … it is a question of motive, intention or state of mind and it involves the use of an occasion for some indirect purpose or indirect motive such as to cause injury to another person.
[15] AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [31].
A little later, in a passage relied upon by the University, his Honour continued:[16]
As motive must often be inferred from what the defendant did or said or knew, malice is commonly proved by inference … Malice may be inferred from the 'grossness and falsity of the assertions and the cavalier way in which they were expressed'… Proof that the defendant knew that the statement was untrue is ordinarily conclusive evidence that its publication was actuated by an improper motive … On the other hand, mere lack of affirmative belief in truth is insufficient of itself to establish malice … But malice can be inferred, not only where the false publication was made with knowledge of its falsity, but also where it was made with reckless indifference as to whether it was true or false.
[16] AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [32].
It remains, then, to apply these principles to the present case.

Is there a Prima Facie Case or Serious Question to be Tried?

As noted above, while the tests may differ to some extent, in determining whether there is a prima facie case in relation to each of the causes of action, the University must demonstrate a prima facie case in relation to the falsity or misleading nature of the Article.
In relation to the misleading or deceptive conduct claim, the defendants did, in their written submissions, contest that the conduct was relevantly 'in trade or commerce'. The point was not strongly pressed at the hearing. Indeed, counsel for the defendants, Mr Tran, referred me to Firewatch Australia Pty Ltd v Country Fire Authority,[17] which was to the contrary effect.
[17] Firewatch Australia Pty Ltd v Country Fire Authority (1999) 93 FCR 520.
In my view, particularly in light of that decision, it is sufficiently arguable that the conduct in the present case, not being simply confined to internal communications between members of the NTEU, is capable of meeting the description of having occurred 'in trade or commerce'. For the purposes of the claim for interlocutory relief, I am satisfied that there is a serious question to be tried as to the conduct being 'in trade or commerce'.
The real issue, in my view, is whether or not there is a prima facie case in relation to the allegation of 'misleading or deceptive' conduct or falsehood.
In that respect, I return to the Article itself.
As can be seen, the second paragraph of the Article sets out the topics identified by Ms Gooding in her letter of 14 September 2018. Other than the use of the word 'inquiry' (as opposed to 'review') no complaint could be made about that paragraph. While the University did take issue with the preliminary review being referred to as an 'inquiry', I do not consider there to be a great deal of significance attached to the words 'inquiry', 'investigation' or 'review' in this context.
The next paragraph does not deal directly with the inquiry, but refers to concerns raised by NTEU members for the welfare of students.
The particular paragraphs of the Article upon which the University focuses for the purposes of this application are the following:
You would think that this would lead to the appointed barrister receiving a wealth of information from a wide range of staff, but sadly, no. We understand that the inquiry was limited to a small number of selected staff and that those staff were required to sign non-disclosure agreements. NTEU also understands that staff were not offered the opportunity to seek independent legal advice before signing.
Perhaps not surprisingly, the Vice-Chancellor recently reported to staff that there were no adverse findings about Murdoch staff. She did not report whether there were any adverse findings about Murdoch processes and decision making.
A university that was prepared to terminate its employees' Collective Agreement was always going to find it difficult to regain the confidence of staff and rebuild morale.
Not holding a full, open, transparent and public inquiry, and not inviting submissions from all staff without them being required to sign a binding non-disclosure agreement is not going to assist in that process. Neither is a failure to publish the report.
In many respects, in my view, the University's complaint in relation to these words must be found in the imputations said to arise from them as a whole, rather than the literal meaning of the words themselves.
For example, the sentence 'We understand that the inquiry was limited to a small number of selected staff and that those staff were required to sign non-disclosure agreements' is, on at least one reading, literally true. As is clear from Mr Benson's affidavit, there were only 28 staff contacted by the complainant with a request to provide material to the preliminary review, and the staff were asked to sign non-disclosure agreements. The Article does not, for example, literally state that the University 'forced' staff to sign non-disclosure agreements 'in oppressive circumstances and against their will', as appears in Schedule 1 to the University's Further Minute of Proposed Orders. Accordingly, a degree of implication or imputation is necessary before one could characterise that statement following as false or misleading.
Again, the following sentence, namely that 'NTEU also understands that staff were not offered the opportunity to seek independent legal advice before signing', is literally true. Indeed, Mr Benson deposes to the fact that no staff asked for independent legal advice, and there is no suggestion in his affidavit that any staff were offered such advice.
What emerged as being of principal concern to the University was what counsel described as the overall insinuation that appears from the Article as a whole and, in particular, from the words 'Perhaps not surprisingly' and 'selected staff'. In that respect, the imputation said to arise from the Article was variously described as an imputation that the preliminary review was a 'sham' or that it was deliberately designed or confined so as to produce a particular outcome.
I accept the defendants' submission that that is not what the Article literally says. Nevertheless, in my view, the Article (particularly the sentence commencing 'Perhaps not surprisingly') is, on one reading, capable of carrying the meaning that the preliminary review was directed towards a pre-ordained outcome. Likewise, the reference to 'a small number of selected staff' is capable of carrying the meaning that the staff were 'selected' by the University in order to produce a particular outcome.
I do not consider that those meanings are the only ones available, or indeed the most likely way in which the material as a whole should be construed. Nevertheless, for the purposes of this application I am prepared to conclude that the meaning conveyed by the Article is, at least prima facie, capable of being construed as suggesting that the review was directed towards a predetermined outcome. The affidavit material filed by the University is to the effect that this was, in fact, not the case. Whether that is so is not a matter to be determined at this interlocutory stage.
For that reason I consider that there is at least an arguable case that the Article as a whole conveys a meaning that could be characterised as misleading.
I have more difficulty in relation to the prima facie case concerning injurious falsehood. Again, the statements are capable of carrying the pejorative meaning in the context of the material as a whole, but they are not clearly false. Rather, they are statements which seek to put the material available to the defendants in a particular light. Nevertheless, for the reasons set out in relation to the misleading or deceptive conduct claim, in my view there is some basis for maintaining that the statements are, strictly speaking, false.
Of course, in relation to this claim the University must also establish malice on the part of the defendants. In my view, it would be particularly difficult to establish that the statements in the Article were made with malice, as that requirement is understood.
In particular, it would be difficult to apply the notion of 'grossness and falsity of the assertions'[18] giving rise to an inference of malice in the present case. What is alleged in the present case is a meaning conveyed by a choice of words that owe much to the judgments or opinions of the person using them; it would be difficult to characterise them as 'grossly false' so as to infer malice.
[18] AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [32].
In that respect, Ms Gooding deposed to her belief in the truth of the statements in the Article and the genuineness of her opinions. For example, Ms Gooding described her approach as:[19]
… using conversational language to reflect my opinion that any review conducted by an external barrister on matters as serious and as broad-ranging as the matters being reviewed here, we would expect the review to take in lots of sources of information and evidence.
[19] Affidavit of Gabrielle Elizabeth Gooding affirmed 23 November 2018 [51].
Ultimately, however, particularly given the conclusion I have reached in relation to misleading or deceptive conduct, and not without some hesitation, I will proceed on the basis that there is a prima facie case for injurious falsehood in the present case.
That is not to say that I consider the University's case in relation to either cause of action to be strong. In particular, in my view, the case in relation to the falsity or misleading nature of the Article is not a strong one and depends in large part upon matters of nuance and characterisation of the words themselves.
The Article as a whole, for example, is capable of being characterised as expressing the genuinely held opinion of Ms Gooding in relation to what she regarded as the inadequacy of the preliminary review. In that respect, as I have said, I do not consider there to be a great deal of significance attaching to whether one uses the word 'inquiry', 'investigation' or 'review'. For example, in the communication by the Vice-Chancellor on 9 October 2018, the review was not described in a qualified way but as a 'review in relation to concerns raised about various university matters' that was to produce 'findings'. The University's own public statements, therefore, do not suggest the kind of restricted review emphasised in the letter to Ms Gooding dated 18 September 2018.
In addition, there is the issue of damage to the University.
In the present case, in my view, the evidence in support of the proposition that the Article would be likely to cause actual damage is not strong. In particular, it is clear from the material filed by the University, as a whole, that there are various public sources of information in relation to the University. There are a number of media reports appended to the affidavit of Mr McKee which evidence issues that have been raised in the public sphere (including by members of Parliament). In my view, in the context of the available material as a whole, it is difficult to see the likelihood of an international student making a decision not to attend the University on the basis of what is a relatively brief article in the NTEU's journal. Again, while the case may be arguable in that respect, I do not consider that it is strong.

The Balance of Convenience

I turn then to the question of the balance of convenience.
The strength of the University's case is relevant to the balance of convenience. For the reasons set out above, in my view, the University's case in relation to either cause of action is not strong.
In the present case, in my view, the impact of the proposed injunction on freedom of expression is also an important consideration.
It was made clear, for example, in Australian Broadcasting Corporation v O'Neill that in the context of defamation, freedom of expression will be a particularly important consideration. In addition to the remarks of Gleeson CJ and Crennan J referred to above, Gummow and Hayne JJ said in that case at [73]:
In Bonnard v Perryman, after explaining what was to be taken as the derivation from the 1854 Act of the modern jurisdiction to enjoin defamatory publications, Lord Coleridge CJ continued:
'But it is obvious that the subject matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong.'
His Lordship added:
'The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions.'
It has been remarked in the past that that statement of caution in preventing publication of libel has not been applied with the same vigour in relation to actions for injurious falsehood. The University refers, for example, to Beechwood Homes Pty Ltd v Camenzuli[20] and Fu v Winstar Group Pty Ltd.[21]
[20] Beechwood Homes Pty Ltd v Camenzuli [2010] NSWSC 521.
[21] Fu v Winstar Group Pty Ltd [2014] WASC 496 [15].
Nevertheless, and accepting those statements of principle, in my view the impact on freedom of speech remains a relevant matter in a case of this kind. In that regard the University accepted, as stated by Basten JA in Capilano Honey Ltd v Dowling (No 2),[22] that freedom of speech and freedom of expression are relevant in relation to applications for interlocutory injunctive relief to restrain injurious falsehood.
[22] Capilano Honey Ltd v Dowling (No 2) [2018] NSWCA 217 [53].
The defendants also relied upon similar statements in a variety of other contexts, including in the decision of French J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Laing.[23]
[23] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Laing (1998) 89 FCR 17.
In that case, his Honour was dealing with powers under the Workplace Relations Act 1996 (Cth), as they then existed, in relation to orders available in relation to industrial action. In that context, his Honour, at page 33, dealt broadly with the impact of orders on basic liberties. His Honour said:[24]
At a more fundamental level such orders may interfere unduly with basic liberties. When the conduct in question involves a significant element of communication about matters of public interest, no constitutional implication is necessary to say that the value attached by democratic societies by the common law and by developing norms of international law the freedom of expression should be respected and given weight in the exercise of the discretion to stop or prevent the conduct.
The principle informing the exercise of discretion in cases in which industrial action is brought as or as an incident of, expression of opinion on a matter of public interest, should require a conservative approach to the orders which are made.
[24] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Laing, 33.
Accepting that that statement was made in the context of industrial action, the principle is, nevertheless, applicable to a case such as the present. The Court should be careful, in the exercise of its power to grant injunctive relief, not to unduly stifle freedom of expression or expression of opinion on matters of public interest.
In my view, this is particularly so in a case such as the present where the 'business' is unlike other cases involving injurious falsehood directed to 'goods or a business'.[25] The business in the present case is the business of a university.[26] The statements in the Article about which the University complains did not directly relate to the core 'business' of the University (i.e. its provision of education) but to its administrative processes. The statements were also made in the context of what were already issues of public comment and, indeed, political inquiry. In such a case, it is appropriate to be cautious, so as not to stifle any person's participation in that public debate.
[25] That is, referring to the statement of Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons at [52]: 'a false statement of or concerning the plaintiff's goods or business'.
[26] With the objectives and functions referred to in [1] above.
This need for caution is demonstrated, in my view, by the form of order sought by the University in the present case, which would enjoin the defendants from publishing statements to the same or similar effect as the statements set out in Schedule 1 to the University's Further Minute of Proposed Orders dated 23 November 2018. Such an order, if made, would, in my view, unduly affect freedom of expression in relation to matters concerning the review. That is because, as counsel for the University properly accepted, it is not possible to confine the effect of the proposed orders to the literal words of the statements themselves. Rather they would extend to words to the same, or similar, effect.

To make an order in relation to the manner in which a party may raise particular issues or the form in which they might do so, in my view, carries a significant risk of a chilling effect, particularly having regard to the difficulty it would impose on the party in determining whether their future conduct falls on one side or the other of the kind of statements that they are enjoined from making.

Conclusion

In the circumstances, having regard to:
(a) what I find to be a relatively weak case (including the claim that the Article would be likely to cause the University financial damage); and
(b) the adverse effect that an injunction would have on freedom of expression,
in my view, the balance of convenience does not favour an injunction being made in this case.
I would dismiss the University's application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EA
RESEARCH ASSOCIATE TO THE HONOURABLE CHIEF JUSTICE QUINLAN
30 NOVEMBER 2018