Richards (a pseudonym) v Jones (a pseudonym)
[2025] NSWSC 5
•9 January 2025
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New South Wales |
Case Name: | Richards (a pseudonym) v Jones (a pseudonym) |
Medium Neutral Citation: | [2025] NSWSC 5 |
Hearing Date(s): | 9 January 2025 |
Date of Orders: | 9 January 2025 |
Decision Date: | 9 January 2025 |
Jurisdiction: | Common Law |
Before: | Dhanji J |
Decision: | Orders made in terms of the short minutes of order provided to the Court. |
Catchwords: | TORTS – Economic torts – Injurious falsehood – Injunctions – ex parte application for interim relief – balance of convenience found to be in favour of granting relief sought – interim orders made |
Legislation Cited: | Court Suppression and Non-Publication Orders Act 2010 (NSW), s 10 |
Category: | Procedural rulings |
Parties: | Richards (a pseudonym) (First Plaintiff) |
Representation: | Counsel: |
File Number(s): | 2025/11184 |
Publication Restriction: | Pursuant to s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the names of the parties are suppressed and replaced with the pseudonyms adopted in this judgment. |
EXTEMPORE JUDGMENT (REVISED)
HIS HONOUR: My Associate was approached by the representative for the plaintiffs, this afternoon, as a result of my being listed as the Duty Judge in Common Law. As a result of that contact, an urgent sitting of the Court was convened out of hours.
Leave was granted to the plaintiffs to file their summons in Court. The affidavit of Patrick George of 9 January 2025, together with exhibit PG-1, was admitted and read.
The plaintiffs by their summons seek, as the ultimate relief, orders pursuant to s 66 of the Supreme Court Act1970 (NSW) permanently restraining the defendant from publishing or causing to be published certain representations. The plaintiffs additionally seek, as part of the final relief, orders under the Court Suppression and Non-Publication Orders Act2010 (NSW) in the nature of a suppression order prohibiting the publication or other disclosure of information relating to the proceedings.
The nature of the final relief sought is such that, on the plaintiffs’ case, it would be seriously undermined in the absence of interim relief. On that basis, the plaintiffs before me today seek, on an ex parte basis, urgent relief pursuant to s 66 of the Supreme Court Act restraining the defendant until further order of the Court, from publishing or causing to be published certain representations with respect to each of the plaintiffs. Without setting out in full the terms of the orders sought, what is, in essence, sought to be restrained is the defendant making claims that the plaintiffs have committed extremely serious criminal offences in circumstances where, on the plaintiffs’ case, they have no basis in fact. The suppression order is sought on an interim basis to protect the plaintiffs from any dissemination of these proceedings, on the basis that that such dissemination would, in a similar manner, create issues with respect to public knowledge of the allegations which, on the plaintiffs’ case, are utterly without foundation.
In addition, the plaintiffs seek an order pursuant to s 12B(3) of the Defamation Act 2005 (NSW) granting leave to the plaintiffs to commence proceedings for defamation against the defendant notwithstanding noncompliance with s 12B(1)(c) of the Act.
It is necessary to provide some short outline of the background leading to the application.
The first plaintiff is the uncle of the defendant, the defendant being the son of the first plaintiff’s brother. The second and third plaintiffs are brothers, and each is a cousin of the first plaintiff and consequently also related to the defendant.
Each of the plaintiffs is a person who has reached an extremely elevated position in their particular areas of endeavour.
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The affidavit of Mr George sets out the background to matters that give rise to the application. It appears from that material that none of the plaintiffs have had a particularly close relationship with the defendant. Over the years there has been, as might be expected, sporadic contact as a result of family gatherings or events. The first plaintiff, I am told, would ordinarily see the defendant two or three times a year at family functions. The second and third plaintiffs, commensurate with their more distant relationship, have had a less involved relationship with the defendant. The second plaintiff estimates he has seen the defendant only approximately 10 to 15 times in total and the third plaintiff estimates some 10 meetings.
It seems that the defendant, commencing in March 2023, sent a series of messages to the second plaintiff via the messaging application, WhatsApp. Those messages did not contain any threats.
In June, the defendant sent a WhatsApp message to a group including the first and second plaintiffs in which he made certain allegations against his grandfather. The plaintiffs question the veracity of this allegation. The messages at that stage were also sent to the third plaintiff’s wife. It seems the defendant likely believed he was sending them to the third plaintiff.
Matters escalated in mid-December 2024. At that time, a series of messages were sent to the first plaintiff including three video recordings of the defendant.
In the first video, the transcript of which is set out in the affidavit of Mr George, the defendant indicates he has sent his bank account details. He also indicates his appreciation for the fact that, as he puts it, the first plaintiff was sending him $50,000. That, as I understand it, relates to an expectation on the part of the defendant that he was to receive that amount as the result of the distribution of an estate with respect to which the first plaintiff was the executor. As I understand it, the amount in fact received by the defendant from the estate was substantially less than $50,000.
In the second video the defendant adopted a significantly different tone. After addressing the first plaintiff by name, he said:
“…Let me tell you what happens when, one, you fuck my mum, two you fuck my life, three you fuck my dad over, and four you steal my money. I will annihilate you and your business and your fucking career, you fucking paedophile. I know you. I know about you and your kids. I know about you and our family.”
In the third video the defendant referred to the first plaintiff as being “the paedophile of our family”.
In the period between 15 December 2024 and 5 January 2025, the defendant sent a series of text messages to the second plaintiff. Those messages are exhibited by Mr George at pages 34 - 40 of Ex PG-1.
Further, between 16 and 20 December 2024, the defendant posted a number of Google reviews of the first plaintiff’s primary business. One of those reviews referred to the first plaintiff stealing from the defendant, and made reference to “so much abuse” and a threat of litigation. Needless to say, the review was quite unrelated to the services of the company being reviewed. Other reviews, under different names but understood to be authored by the defendant, made demands for money.
Between the period 23 and 31 December 2024, a number of text messages were sent by the defendant to the wife of the third plaintiff. As I have indicated, it appears that that was in the mistaken belief that the mobile number related to the third plaintiff. Those messages requested the third plaintiff purchase a business for $150,000. The nature of the messages, however, reflect not an ordinary investment but rather have what might be regarded as an implicitly threatening tone.
On 6 January 2025, the defendant sent an audio message to the mobile number of the third plaintiff’s wife. In that message he addressed the third plaintiff by name, confirming that communications to that phone were intended for the third plaintiff. That message can be described as racist and hateful.
On 6 January 2025, the third plaintiff also received a call from the defendant at 6.30am in the morning. The defendant, having identified himself as the “cousin you never see or get in touch with or care about”, said: “I just wanted to tell you that I’m going to destroy you and your brother. I’m going to fuck you both up and destroy your careers”. The defendant indicated he intended to do so by contacting organisations significant to the second and third plaintiff’s careers and reputations and “[t]ell them all sorts of shit and tear you down.”
On 5 January 2025, the second plaintiff received a series of messages in a group text thread which included the first plaintiff and the third plaintiff’s wife, presumably on the basis that it was intended to include the third plaintiff. The defendant left a message addressing the plaintiffs as “my stupid paedophile family”. He stated:
“…just a reminder to all of you retards that I actually know where you live and where your businesses are and like where your houses are and shit. So, like, don’t be surprised if [I] just like rock up and like have a chat with you about some stuff. Because like firstly, you guys owe me a heap of cash. Secondly, you are all paedophiles. Thirdly, you don’t talk to me enough and I fucking hate you. Fourthly, you’re all bitches pieces of shit…”
Following the message, the defendant expressed his purported love for the plaintiffs. Thereafter, one of the reviews of the first plaintiff’s business to which I have referred earlier was posted.
On 5 January 2025, at around 4.34am, the second plaintiff received a voice recording from the defendant. After wishing him a happy new year and merry Christmas, the defendant made reference to the second plaintiff’s lack of contact with him and said:
“I already threatened to sue you man. Like, I don’t mind threatening you because like you are a bit of a paedophile man. So, I can put you in jail like quick as man.”
The message continued making reference to the second plaintiff being a paedophile and then stated:
“But I love you because you’re my cousin, and it’s like that. So, the thing is ... like, you got to support me in everything I do and if I ask for finance and stuff you got to support me.”
The defendant additionally stated: “[h]owever, like it’s like this, like, you either support me or I put you in prison for being a paedophile.”
As I have indicated, each of the plaintiffs maintain that the allegations of sexual misconduct made by the defendant against them is without foundation.
The affidavit of Mr George continues to set out the social media presence of the defendant on Facebook, LinkedIn, Instagram and YouTube. On the material provided, I accept that the defendant operates the various profiles, including the Facebook profile to which the plaintiffs would serve the defendant as one of various alternative means of electronic service sought. In that regard, I also accept the email address and phone numbers to which service is sought to be effected are those of the defendant.
It is plain from the communications I have set out that the defendant has threatened harm to each of the plaintiffs; in effect, blackmailing them by seeking money or other recompense in order to avoid publication of allegations of serious criminal activity against children. Having regard to the significant profiles of each of the plaintiffs, I accept that publication of allegations of paedophilia would be extremely detrimental both personally and professionally.
With respect to the first plaintiff, as part of his work he requires a Working with Children Check. More generally, the nature of his enterprise and business dealings are such that suggestion of such serious wrongdoing would significantly undermine his reputation and businesses.
With respect to the second plaintiff, his work is politically sensitive. In the area in which he works, there is a real risk that persons politically opposed to him, or supporters of such persons, would seize upon false allegations to his significant detriment.
With respect to the third plaintiff, it is said that his career hinges upon his reputation. I accept that the nature of the high profile clients by whom he is engaged are such that they are risk averse. They are likely to avoid contact with him in the event that there were allegations of serious criminal conduct against him even if the clients themselves did not accept that there was any foundation to the allegations.
The Court has a power under s 66(1) of the Supreme Court Act to restrain, by interlocutory or other injunction, an apprehended tort such as injurious falsehood, that being the tort on which the claim for relief is based. With respect to such interlocutory relief, such relief may be granted if the plaintiffs establish, first, that there is a serious question to be tried in the sense that the degree of likelihood of the plaintiffs’ ultimate success is sufficient in the circumstances of the case to warrant intervention; and, second, that the balance of convenience weighs in favour of the injunction being granted. That is, that the inconvenience or injury which the plaintiffs would suffer if the injunction were refused outweighs the inconvenience or injury which the defendant would suffer if it were granted.
In the present circumstances, I accept that there is a serious question to be tried.
In order to establish an action for injurious falsehood, the plaintiff must establish, (a), a false statement of or concerning the plaintiff’s trade, goods or business; (b), publication of that statement by the defendant to a third person; (c), malice on the part of the defendant; and, (d), proof by the plaintiff of actual damage suffered as a result of the publication of the statement.
On an application for injunctive relief, it is sufficient for the applicant to demonstrate there is a reasonable probability that actual loss would be suffered if the injunction were not granted even if no such loss has in fact yet been suffered.
The defendant has specifically threatened to make allegations of the type set out in his various communications with the plaintiffs to persons with whom the plaintiffs work and do business. He is explicit in setting out in those communications his awareness of the business interests of the plaintiffs and, implicitly, the potential for serious harm to those interests.
The information before me, albeit on an ex parte and therefore untested basis, is that the representations are false. That is, in my view, sufficient at this stage of the proceedings. From the material before me, it appears there is a real likelihood that the defendant would carry out his threats if not restrained by an injunction.
With respect to malice, the defendant’s motive is obvious from the nature of the communications and in my view, on the material before me and in the absence of contradictor, is malicious.
With respect to actual loss, I accept there is a reasonable probability that actual loss would be suffered if the defendant were to publish his threats.
With respect to the balance of convenience, it strongly favours the interim relief sought by the plaintiffs. The nature of the damage is likely, if the threats were carried out, to be serious and potentially irreparable. Against that, it does not appear that the defendant will suffer any significant prejudice in being restrained from carrying out his threats for the limited period proposed for the purposes of the interim orders.
On that basis, I am satisfied that the interim orders restraining the defendant from publishing or causing to be published various representations which are set out in the proposed short minutes of order should be made.
I turn then to the application for the suppression order under the Court Suppression and Non-Publication Orders Act.
At this stage, pursuant to s 10 of the Act, an order is able to be made without determining the merits of the application. Such an order will have effect, subject to revocation by the Court, until the application can be determined. Pursuant to s 10(2), the Court must determine the application as a matter of urgency.
In the circumstances, I am of the view that an interim order pursuant to s 10(1) of the Court Suppression and Non-Publication Orders Act should be made in the terms proposed in the short minutes of order provided by the plaintiffs.
The final aspect of the interim relief sought by the plaintiffs is for an order under s 12B(3) of the Defamation Act. At present, the plaintiffs are unable to commence an action for defamation as a result of the operation of s 12B(1)(c) of the Defamation Act. That provision prohibits a prospective plaintiff commencing defamation proceedings until that person has issued a concerns notice to the prospective defendant under Pt 3 Div 1 of the Act and the applicable period for the defendant to make an offer to make amends (a period of 28 days) has elapsed. In the circumstances of the present case, the plaintiffs have not issued a concerns notice. The basis on which they have not done so is that such a notice would have defeated the purpose of bringing the application for urgent relief; that is, it would have put the defendant on notice and given him the opportunity to, in effect, get in first by publishing his allegations prior to him being the subject of any restraint.
Pursuant to s 12B(3) of the Defamation Act, the Court may grant leave for the proceedings to be commenced despite noncompliance with the ordinary requirements with respect to the issue of a concerns notice if, as is relevant in the present case, “it is just and reasonable to grant leave”. I am of the view that it is just and reasonable to grant such leave, essentially, for the reasons I have indicated; that is, the issue of a concerns notice may have had the result of prompting publication by the defendant. In those circumstances, the relief sought with respect to s 12B of the Defamation Act should be granted as set out in the proposed short minutes of order.
For those reasons, I make the orders sought in the proposed short minutes of order which have been provided to me. Those short minutes of order will be signed and dated by me and endorsed with the Court stamp, and copies will be provided to the plaintiffs.
I note that those orders include orders with respect to service by various electronic means and the matter is to return before the Court at 3pm on Wednesday, 15 January 2025, subject to the parties having liberty to re-list the matter before the Court on 24 hours’ notice.
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