FEDERAL COURT OF AUSTRALIA
Russell v S3@Raw Pty Ltd [2023] FCA 305
File number(s): QUD 398 of 2022 Judgment of: MEAGHER J Date of judgment: 5 April 2023 Catchwords: PRACTICE AND PROCEDURE – Interlocutory injunction – Defamation – Where publications are posted on social media – Application to take down publication and restrain defendants from future publication – Serious question to be tried – Balance of convenience – Freedom of speech Legislation: Competition and Consumer Act 2010 (Cth)
Defamation Act 2005 (Vic)
Federal Court Rules 2011 (Cth)
Cases cited: Australian Broadcasting Corporation v O'Neill 227 CLR 57
Australian Securities and Investments Commission v China Environment Group Ltd [2013] FCA 286
Capilano Honey Ltd v Dowling (No 2) [2018] NSWCA 217
Duthie v Nixon (2015) 47 VR 355
QBH Commercial Pty Ltd v Nine Network Australia Pty Ltd [2016] VSC 441
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460
School for Excellence Pty Ltd v Trendy Rhino Pty Ltd [2018] VSC 514
Stocker v McElhinney (No 2) [1961] NSWR 1043
Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 37 Date of hearing: 23 March 2023 Counsel for the Applicant: Stewart Webster Solicitor for the Applicant: Synkronos Legal Counsel for the First Respondent: Douglas Gration Solicitor for the First Respondent: Lord Commercial Lawyers Counsel for the Second Respondent: The Second Respondent did not appear Counsel for the Third Respondent: The Third Respondent did not appear ORDERS
QUD 398 of 2022 BETWEEN: HAYLEY ELIZABETH RUSSELL
Applicant
AND: S3@RAW PTY LTD ACN 159 918 742
First Respondent
PAUL ANTHONY NORRIS-ONGSO
Second Respondent
JOSHUA NORRIS-ONGSO
Third Respondent
ORDER MADE BY:
MEAGHER J
DATE OF ORDER:
5 APRIL 2023
THE COURT ORDERS THAT:
1.The interlocutory application is dismissed.
2.The applicant is granted leave to file their amended interlocutory application dated 23 March 2023.
3.Pursuant to rule 10.23 of the Federal Court Rules 2011 (Cth), the interlocutory application filed on 27 February 2023, the affidavit of Gregory John Litster filed on 6 March 2023 and the affidavit of Stephen Charles Russell filed on 10 March 2023 be taken to have been served on the third respondent on 10 March 2023, by the applicant having sent emails to the third respondent on that date annexing copies of the interlocutory application and affidavit to the email address joshno@icloud.com.
4.Costs are reserved.
REASONS FOR JUDGMENT
MEAGHER J
INTRODUCTION
By an amended interlocutory application, the applicant seeks an injunction requiring the third respondent to remove various Instagram posts referred to collectively as “the January Posts” (Take Down Order) and an injunction restraining the first and third respondents, their officers, servants or agents from re-publishing the January Posts and a post referred to as “the Main Post”, or publishing any other matters relating to the applicant to the same effect of the posts (
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- AGLC
- Russell v S3@Raw Pty Ltd [2023] FCA 305
- Case
- [2023] FCA 305
- Decision Date
CaseChat Overview and Summary
The court considered the nature of the publications, the responses of the respondents, and the potential for damages to be an inadequate remedy. The court found that the balance of convenience weighed in favour of the applicant due to the lack of a defence from the first respondent and the uncertainty of the third respondent's potential defence. However, the court also recognised the importance of freedom of speech and the potential for the publications to be considered merely arguably defamatory. The court held that the seriousness of the alleged defamation did not warrant the grant of an interlocutory injunction, particularly given the lack of repeated publication or evidence of a vendetta.
The court ultimately concluded that the matter was finely balanced, and the importance of free speech tipped the balance against the grant of an interlocutory injunction. The court dismissed the interlocutory application but granted the applicant leave to file an amended application. The court also ordered that the interlocutory application and relevant affidavits be deemed served on the third respondent, and reserved costs. The decision highlights the difficult balance that courts must strike between protecting reputation and upholding freedom of speech in the digital age.
Orders
Orders of the court
1. The interlocutory application is dismissed.
2. The applicant is granted leave to file their amended interlocutory application dated 23 March 2023.
3. Pursuant to rule 10.23 of the Federal Court Rules 2011 (Cth), the interlocutory application filed on 27 February 2023, the affidavit of Gregory John Litster filed on 6 March 2023 and the affidavit of Stephen Charles Russell filed on 10 March 2023 be taken to have been served on the third respondent on 10 March 2023, by the applicant having sent emails to the third respondent on that date annexing copies of the interlocutory application and affidavit to the email address joshno@icloud.com.
4. Costs are reserved.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In Webster v Brewer, Wheelahan J granted interlocutory relief in relation to what his Honour referred to as “vile” publications. Interlocutory relief was also granted in Tribe v Simons [2021] FCA 930 where “very serious” allegations were made, and there was evidence of repeated publication after the commencement of the proceeding. Consideration The applicant has demonstrated that there is a serious question to be tried. The Instagram posts are of such quality as to be “likely to lead an ordinary person to think less” of the applicant (Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 6 at [5]). The balance of convenience weighs in favour of the applicant based on the following:·The first respondent has pleaded no defence other than to deny publication;·The third respondent did not appear at the interlocutory hearing, despite being put on notice of the application. It is therefore impossible to know what defence he might advance, although based on the email dated 20 February 2023 referred to in paragraph [7] above, a defence of justification might be inferred;·Damages will be difficult to quantify and unlikely to be an adequate remedy;·The first respondent is a two dollar company;·The third respondent resides off shore; and·The applicant seeks to run a business associated with the proceeding. Based on the above this matter is finely balanced. The Main Post has been taken down and there is no suggestion of further publication by the first respondent. Furthermore, the alleged defamation by the third respondent is “merely arguably defamatory” (Trendy Rhino at [37]). The importance of free speech must be recognised. The alleged defamation complained of is not of the kind referred to in paragraph [32] above. Whilst that it is not an exhaustive list, I am not satisfied that the alleged defamation warrants the granting of an interlocutory injunction. My conclusion may have differed had the publications complained of been repeated such as to for example assume the “flavour of a vendetta”. Accordingly the interlocutory application is dismissed.