Smolin v Dailymail.com Australia Pty Ltd - [2024] NSWDC 433

District Court

New South Wales

Medium Neutral Citation: Smolin v Dailymail.com Australia Pty Ltd [2024] NSWDC 433
Hearing dates: 13 September 2024
Date of orders: 19 September 2024
Decision date: 19 September 2024
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1)   The interim order of 13 September 2024 made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) on 13 September 2024 is vacated and the plaintiff’s application for its continuation (other than in the form of the order sought by the defendants, as set out in paragraphs (3) – (4) below) is refused.
(2)   The defendants are released from their Hearne v Street obligations (Hearne v Street (2008) 235 CLR 125) in relation to the e-book “Sexual Chronicles of a Psychopath” for the purpose of providing it to an officer or officers of the New South Wales Police Force and/or the Queensland Police Service, for the purpose of reporting possible criminal conduct by the plaintiff.
(3) Other than for the purposes referred to in order 2 above, pursuant to s 7, and on the grounds provided for by s 8(1)(a) and/or (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), the following information is not to be published:
(a) The names of any of the women referred to in the 305-page PDF e-book file titled “Seduction Chronicles of a Psychopath” (Exhibit B); and
(b) The photographs of women published in the 305-page PDF e-book file titled “Seduction Chronicles of a Psychopath”.
(4)   This order is to have effect throughout the Commonwealth of Australia and is to expire on 19 September 2034.
(5)   The plaintiff is to pay the defendants’ costs of these applications.
(6)   Exhibits retained until further order, save for Exhibit B, which is returned to the defendants’ custody.

Catchwords:
TORT – defamation – plaintiff brings proceedings after he is named by the defendants as the author of an e-book “Seduction Chronicles of a Psychopath” - defendants plead justification based on the e-book extracts in their possession and issue a subpoena to obtain a full copy – e-book provided in response to subpoena to third party - parties agree to settlement subject to the defendants seeking leave to be released of their Hearne v Street obligations to enable them to provide the e-book to NSW and Queensland police – defendants released from Hearne v Street obligations – limited non-publication order sought by defendants under the Court Suppression and Non-publication Orders Act 2010 (NSW) granted but wider non-publication order sought by plaintiff refused.

Legislation Cited:
Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8

Cases Cited:
Advertiser Newspapers Pty Ltd v Penhall (2021) 139 SASR 252; [2021] SASCA 76
Alcoa of Australia Ltd v Apache Energy Ltd (No 6) [2014] WASC 287
BUSB v The Queen (2011) 80 NSWLR 170; [2011] NSWCCA 39
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Glencore Coal Pty Limited v Franks (2021) 284 FCR 622; [2021] FCAFC 61
Hearne v Street

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWDC 433
Decision Date: 19 September 2024

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Smolin brought defamation proceedings against Dailymail.com Australia Pty Ltd (Dailymail) after the defendant named him as the author of an e-book titled "Seduction Chronicles of a Psychopath." Dailymail defended the defamation claim by asserting justification based on the content of the e-book. To substantiate their defence, Dailymail issued a subpoena to obtain a full copy of the e-book. Subsequently, the parties agreed to a settlement contingent upon the defendants being released from their obligations under Hearne v Street to enable them to provide the e-book to the police for investigation of potential criminal conduct.

The court was required to decide whether Dailymail should be released from their obligations under Hearne v Street to allow them to provide the e-book to the police. The court was also tasked with determining whether a non-publication order should be granted in relation to the e-book. The court considered the implications of releasing the defendants from their Hearne v Street obligations and weighed this against the need to maintain confidentiality and protect the identities of the individuals involved in the case.

The court ruled that Dailymail should be released from their Hearne v Street obligations to provide the e-book to the police for investigating potential criminal conduct. The court granted a limited non-publication order to protect the names and photographs of the women mentioned in the e-book, while refusing a broader non-publication order sought by the plaintiff. The court's decision balanced the need for transparency and investigation against the right to privacy and the potential harm of further defamation. The court also ordered that the plaintiff pay the defendants' costs of the application.

The final orders of the court were that the interim non-publication order was vacated, the defendants were released from their Hearne v Street obligations for the purpose of providing the e-book to the police, and specific information regarding the e-book was to be kept confidential and not published. The non-publication order was to remain in effect until 19 September 2034 and apply throughout the Commonwealth of Australia. The plaintiff was ordered to pay the defendants' costs of the application, and exhibits were to be retained until further order, except for the e-book, which was to be returned to the defendants' custody.

Orders

Orders of the court

(1) The interim order of 13 September 2024 made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) on 13 September 2024 is vacated and the plaintiff’s application for its continuation (other than in the form of the order sought by the defendants, as set out in paragraphs (3) – (4) below) is refused.

(2) The defendants are released from their Hearne v Street obligations (Hearne v Street (2008) 235 CLR 125) in relation to the e-book “Sexual Chronicles of a Psychopath” for the purpose of providing it to an officer or officers of the New South Wales Police Force and/or the Queensland Police Service, for the purpose of reporting possible criminal conduct by the plaintiff.

(3) Other than for the purposes referred to in order 2 above, pursuant to s 7, and on the grounds provided for by s 8(1)(a) and/or (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), the following information is not to be published:

(a) The names of any of the women referred to in the 305-page PDF e-book file titled “Seduction Chronicles of a Psychopath” (Exhibit B); and

(b) The photographs of women published in the 305-page PDF e-book file titled “Seduction Chronicles of a Psychopath”.

(4) This order is to have effect throughout the Commonwealth of Australia and is to expire on 19 September 2034.

(5) The plaintiff is to pay the defendants’ costs of these applications.

(6) Exhibits retained until further order, save for Exhibit B, which is returned to the defendants’ custody.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Smolin v Dailymail.com Australia Pty Ltd [2024] NSWDC 433
Hearing dates:	13 September 2024
Date of orders:	19 September 2024
Decision date:	19 September 2024
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The interim order of 13 September 2024 made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) on 13 September 2024 is vacated and the plaintiff’s application for its continuation (other than in the form of the order sought by the defendants, as set out in paragraphs (3) – (4) below) is refused. (2) The defendants are released from their Hearne v Street obligations (Hearne v Street (2008) 235 CLR 125) in relation to the e-book “Sexual Chronicles of a Psychopath” for the purpose of providing it to an officer or officers of the New South Wales Police Force and/or the Queensland Police Service, for the purpose of reporting possible criminal conduct by the plaintiff. (3) Other than for the purposes referred to in order 2 above, pursuant to s 7, and on the grounds provided for by s 8(1)(a) and/or (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), the following information is not to be published: (a) The names of any of the women referred to in the 305-page PDF e-book file titled “Seduction Chronicles of a Psychopath” (Exhibit B); and (b) The photographs of women published in the 305-page PDF e-book file titled “Seduction Chronicles of a Psychopath”. (4) This order is to have effect throughout the Commonwealth of Australia and is to expire on 19 September 2034. (5) The plaintiff is to pay the defendants’ costs of these applications. (6) Exhibits retained until further order, save for Exhibit B, which is returned to the defendants’ custody.
Catchwords:	TORT – defamation – plaintiff brings proceedings after he is named by the defendants as the author of an e-book “Seduction Chronicles of a Psychopath” - defendants plead justification based on the e-book extracts in their possession and issue a subpoena to obtain a full copy – e-book provided in response to subpoena to third party - parties agree to settlement subject to the defendants seeking leave to be released of their Hearne v Street obligations to enable them to provide the e-book to NSW and Queensland police – defendants released from Hearne v Street obligations – limited non-publication order sought by defendants under the Court Suppression and Non-publication Orders Act 2010 (NSW) granted but wider non-publication order sought by plaintiff refused.
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8
Cases Cited:	Advertiser Newspapers Pty Ltd v Penhall (2021) 139 SASR 252; [2021] SASCA 76 Alcoa of Australia Ltd v Apache Energy Ltd (No 6) [2014] WASC 287 BUSB v The Queen (2011) 80 NSWLR 170; [2011] NSWCCA 39 Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 Glencore Coal Pty Limited v Franks (2021) 284 FCR 622; [2021] FCAFC 61 Hearne v Street