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s 8(1)(a) and/or (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), the following information is not to be published: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 (2008) 235 CLR 125

Hogan v Hinch (2011) 243 CLR 506

John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344

Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3

McJannett v Daley [No 2] [2012] WASC 386 (S)

Moage Ltd (in liq) v Jagelman [2002] NSWSC 953

Nationwide News Pty Ltd v Qaumi [2016] 93 NSWLR 384

News Digital Media Pty Ltd v Mokbel [2010] 30 VR 248

North East Equity Pty Ltd v Goldenwest Equities Pty Ltd [2008] WASC 190

Price v ClearView Life Nominees Pty Ltd [2024] NSWSC 706

Prime Finance Pty Ltd v Randall [2009] NSWSC 361

Rinehart v Welker (2011) 93 NSWLR 311

Springfield Nominees Pty Ltd v Bridgeland Securities Ltd (1992) 38 FCR 217

Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd (2020) 282 FCR 95

Trkulja v Google LLC (2018) 263 CLR 149; [2018] HCA 25

Texts Cited:

Victoria Legislative Assembly, Parliamentary Debates (Hansard), 28 May 2024 at 1834

Category:

Procedural rulings

Parties:

Anton Smolin (Plaintiff)
Dailymail.Com Australia Pty Ltd (Defendant)
Tita Smith (Defendant)

Representation:

Counsel:
Mr C Parkin (Plaintiff)
Mr N Olson (Defendants)

Solicitors:
O'Brien Criminal & Civil Solicitors (Plaintiff)
Mark O’Brien Legal (Defendants)

File Number(s):

2024/00080162

Publication restriction:

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

Judgment

The circumstances leading to the plaintiff’s defamation action

1. In November 2023, several women who met the plaintiff by using a dating website complained to the Daily Mail about his conduct. In the course of inquiries, the second defendant, a journalist, found references on a “Buy on Amazon” Goodreads site to a 2014 online publication (“the e-book”) authored by “Anton Smolin”, entitled “Seduction Chronicles of a Psychopath”, which the “Buy on Amazon” review asserted contained stories that were “all true”. The journalist sent an email on 23 November 2023 to the plaintiff and his employer about the women’s complaints and then stated:

“It is also noted that you wrote a book in 2014 titled ‘seduction chronicles of a psychopath’ where you state that you are a psychopath and detail your personal pick up strategies.

‘The stories are all true and the events described took place in real life. They are portrayed through the eyes of a psychopath with almost no empathy or moral and ethical standards of any kind…’.”

2. The journalist attached the review from the Goodreads site (from which the quotation in the second paragraph above was taken) and concluded by asking for the plaintiff’s comments.

3. The following day, no reply having been received, the Daily Mail published an article headed:

“EXCLUSIVE: Anton Smolin: Read the shocking messages a high-flying associate director sent to his Hinge matches after they turned down a date.”

4. The article claimed that “Anton Smolin” was “the author of a self-published 2014 e-book titled ‘Seduction Chronicles’”, described as an “explicit account of a man’s sexual escapades”.

5. The plaintiff commenced proceedings for defamation by statement of claim filed on 1 March 2024 in relation to two publications, namely the email of 23 November 2023 (referred to in paragraph 1 above) and the Internet publication on the Dailymail website on 24 November 2023 (referred to in paragraph 3 above). The statement of claim identified the imputations relied upon and set out that the allegations about the e-book formed the basis for an imputation that the plaintiff was a sexual predator.

6. At the time of preparing their defences, the defendants did not have the full text of the e-book to which they had referred. After pleadings closed, the defendants issued a subpoena addressed to the plaintiff’s former employer which resulted in production of a 305-page e-book matching the description of the e-book sought by the defendants.

How these applications came before the court

7. The defendants initially brought two applications. The first was to amend the defence by providing further particulars of the defence of justification. The second was to be released from their Hearne v Street obligations (Hearne v Street (2008) 235 CLR 125 at [96]; “Hearne v Street”) so that they could provide the material obtained under subpoena to the NSW Police Service. Both applications were listed before me for determination on 3 October 2024 and a timetable for the provision of submissions and evidence was entered into.

8. The parties then had settlement discussions and agreed to a settlement on the following terms:

1. Judgment for the defendants against the plaintiff.

2. The plaintiff to pay defendants’ costs on an indemnity basis as agreed or assessed.

3. An order releasing the defendants from their Hearne v Street obligations, the terms of which would permit the provision of the document titled “Seduction Chronicles of a Psychopath” to an officer or officers of the NSW Police and/or the Queensland Police Service, for the purpose of reporting possible criminal conduct evidence by reference to that document.

9. The plaintiff was initially prepared to agree to settlement on these terms if orders to this effect could be made by me “in Chambers”, as opposed to being made in open court, and an email to this effect was forwarded to my associate. The defendants, in response, raised the question as to whether such an issue could be dealt with “in Chambers” at all, as release from the obligation was not a matter the parties could consent to and the position of the party to which the subpoena had been issued was unknown.

10. Upon receiving these communications, I placed the matter in the Defamation List on 12 September 2024 and directed the parties to notify the producing party (the plaintiff’s former employer) under subpoena.

11. The plaintiff now understands that there is no confidentiality arising from having orders made “in Chambers”, as the procedure for making orders in Chambers is an unregulated case management procedure for the making of consent orders where no appearance is required. The orders in question, far from being confidential, are placed on the court file in the usual way, and the procedure is wholly unsuited to applications of this nature.

12. Notwithstanding his earlier acquiescence, the plaintiff now seeks to be heard in relation to the release of the Hearne v Street obligations. He asks the court to make a wider order pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (“CNSPO Act”) than the proposed order proffered by the defendants.

13. The party producing the document has indicated to the court, through the defendants, that it has no objection to the defendants seeking an order releasing them from their Hearne v Street obligations.

14. As the application could not be finalised on 13 September 2024, as both parties sought leave to provide further written submissions, I made an interim order in the following terms, the text of which was agreed to by the parties:

“(1) Until 19 September 2024 at 5:00pm, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the following information not be published:

(a) Any information about, or otherwise revealing, the contents of the 305 page PDF filed which is Exhibit B in these proceedings, subject to the continued entitlement to publish other material in the public domain regardless of whether it is also contained in Exhibit B.

(b) This order is to have effect throughout the Commonwealth of Australia.”

The evidence before the court

15. The defendants rely upon the affidavit of Monica Helen Allen sworn on 29 August 2024. That affidavit sets out information about the circumstances in which a subpoena was addressed to the plaintiff’s former employer for a document contained on the hard drive of the plaintiff’s work computer.

16. In the course of the proposed earlier applications, the parties had already provided me with the text of the document “Seduction Chronicles of a Psychopath”. They have agreed that I may take into account those portions of it which I have been able to read.

17. The plaintiff did not tender any evidence.

Ms Allen’s evidence

18. The circumstances of discovery of the book are set out by Ms Allen. She learned, from the material under subpoena, that the plaintiff requested, as a condition of agreeing to resign from his employer, that his employer “format” (i.e. wipe out all data) the C-Drive of his work computer. The employer agreed to do so but retained a copy of the C-Drive. When produced under subpoena, this C-Drive was found to contain a 305-page PDF of the e-book, which featured the plaintiff’s email and telephone details embedded in it.

19. Ms Allen identifies the following passages as relevant to this application:

1. The references on pp. 2 – 3 of the e-book describing its contents as “true”.

2. References (p. 88) to the plaintiff having “de-virginised” three girls aged 14 or under.

3. References (in Appendix 3) to the plaintiff having sex with three girls in Brisbane when they were aged 14 or 15.

4. Advice on how to overcome “last minute resistance” by young women seeking to prevent sexual intercourse from occurring (p. 13) and to how to get women too drunk to resist (pp. 8, 190 – 192, 38 – 39, 255 – 256), including how to avoid criminal consequences. Ms Allen particularly draws the court’s attention to the following statement by the plaintiff:

“I oppose violence but there is nothing in my rule-book about not fucking a bitch that I hooked up with, who just happened to pass out before giving consent. In my opinion, consent is implied in situations like this, even though by law it is not.”

5. There are nude and semi-nude photographs of women, a number of whom do not appear to be either conscious or consenting. Some of these photographs were taken in Brisbane.

The relevant legal principles for release from the obligation

20. The Hearne v Street obligation, which protects documentation provided to documents compulsorily under processes such as subpoena, can be released or modified by the court where “special circumstances” exist (Hearne v Street at [107]). The generally accepted test is that set out by Wilcox J in Springfield Nominees Pty Ltd v Bridgeland Securities Ltd (1992) 38 FCR 217 at 225. Such circumstances will be made out where there is some feature of the case which affords a reason for modifying the obligation or relieving a party of it. Relevant factors include:

1. The nature of the document and its subject matter.

2. The circumstances in which it came into existence.

3. The attitude of the author of the document and any prejudice the author may sustain.

4. Whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain.

5. The nature of the information in the document.

6. The circumstances in which the document came into the hands of the applicant for relief.

7. Perhaps more most important of all, the likely contribution of that document to achieving justice in the second proceeding.

21. The notion of “special circumstances” does not require extraordinary factors, but rather that “in all the circumstances, good reason must be shown where, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes” (Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 at [31]; the application for leave was to use an affidavit in other court proceedings).

22. This is a complex area of the law. As Kunc J points out in Price v ClearView Life Nominees Pty Ltd [2024] NSWSC 706 at [19], “the obligation is subject to inconsistent statutory provisions, curial process and other litigation”, and the power to grant leave is not lightly exercised (Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at pp 33 and 37). I also note that caution must be exercised by inferior courts: BUSB v The Queen (2011) 80 NSWLR 170; [2011] NSWCCA 39 at [24]-[34] per Spigelman CJ.

23. The first question is whether “public interest” can be established. In the present case, the “public interest” factor is a familiar topic in defamation litigation, namely revelations of sexual activity that could be criminal in nature. The public interest in investigating and prosecuting potential criminal offences, including sex offences, has long been recognised as being capable of amounting to a “special circumstance” justifying exercising the discretion in a number of authorities. The general principles are set out by Johnson J in Prime Finance Pty Ltd v Randall [2009] NSWSC 361 at [37] – [39]:

“[37] The courts have recognised that there can be a public interest in favour of disclosure in respect of information that is relevant to the investigation and prosecution of a criminal offence, which can override the public interest, in the administration of justice, in the preservation of the confidentiality of discovered documents: Rank Film Distributors Limited v Video Information Centre [1982] AC 380 at 447; Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476 at 486-487, 490-491; Moage Ltd v Jagelman at 176-177 [16], [21]; North East Equity Pty Limited v Golden West Equities Pty Limited [2008] WASC 190 at [42]-[45].

[38] This public policy is illustrated by the offence in this State of concealing a serious indictable offence contrary to s.316 Crimes Act 1900. If a person has committed a serious indictable offence (punishable by imprisonment for five years or more) and another person knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender, and the person fails without reasonable excuse to bring that information to the attention of a member of the police force or other appropriate authority, then that person is guilty of an offence under s.316. Of course, the existence of the implied undertaking would no doubt constitute a reasonable excuse for the non-provision of the information to police whilst that undertaking remains on foot. However, the existence of this offence emphasises the policy foundation in support of the public interest in reporting of serious crime which is believed to have occurred so that the police may investigate.

[39] Where a conflict arises, the Court must weigh up the competing public interests, as it will not necessarily be in every case where documents are sought in respect of the investigation and prosecution of the offence that the public interest in disclosure will outweigh the public interest in the preservation of the confidentiality of documents subject to the implied undertaking. Where an application such as this is made, it has been said that factors relevant to the exercise of the Court’s discretion will include the nature of the offence alleged, the cogency of the evidence sought to be adduced in support of it, the authority to which the documents are sought to be disclosed, the manner of the authority’s intended use and the possibility of misuse by that authority and any prejudice, actual or potential, which may be occasioned by the disclosure: Bailey v Australian Broadcasting Corporation at 486; North East Equity Pty Limited v Golden West Equities Pty Limited at [43]. A further relevant factor is whether the application has been brought for some personal advantage or improper purpose, rather than to advance the public interest: North East Equity Pty Limited v Golden West Equities Pty Limited at [44].”

24. A comprehensive review of the circumstances in which courts will make orders of this kind is set out in Glencore Coal Pty Limited v Franks (2021) 284 FCR 622; [2021] FCAFC 61 at [26] – [29].

25. There are, however, countervailing considerations. It may be argued that the information is trivial, that the application is brought for an improper purpose, or that such an application would prevent the claiming of a privilege, such as a privilege against self-incrimination. In such circumstances, the court may examine the following:

1. the cogency and reliability of the evidence in question.

2. The nature of the offences in question.

3. The authority to which the documents are sought to be disclosed.

4. The manner of the authorities intended use and the possibility of misuse by that authority. Issues of prejudice, actual or potential.

5. Any allegation of improper purpose.

26. The defendants draw to my attention to the features of the book relied upon. The document they seek to refer to police contains admissions of criminal activity as well as the production and dissemination of child abuse material, in that the document is designed for members of the public to read and describes the plaintiff as not only having, but enjoying, sexual intercourse with minors (see Division 15A of the Crimes Act 1900 (NSW)). The plaintiff also offers advice about how to have sexual intercourse with minors as well as on how to overcome reluctance from female participants. The defendants submit that this is a publication glorifying and encouraging a wide range of criminal conduct against women and children. While most of these events took place in 2014 or earlier and in an overseas country, at least some of the events in question took place in Australia.

26. Mr Parkin, for the plaintiff, stated that the plaintiff neither consented to nor opposed the release, but sought to make observations as to the utility of the release (submissions, paragraph 22). He submits that there could be little or no likelihood of any inquiry by police into events occurring more than ten years ago in countries outside Australia and that there is no evidence of any publication occurring since the introduction of Division 15C of the Crimes Act. The few particular instances of alleged criminality are vague in description and clearly occurred long ago.

27. Mr Parkin also referred, in his submissions on release of the obligation as well as on non-publication orders, to the dangers of a rise in both kinds of applications in courts exercising jurisdiction under the Family Law Act 1975 (NSW), where applications of this kind are becoming more common. This “floodgates” submission must be viewed in the context of the principles of law governing defamation. The use of defamation proceedings to “weaponise” (Victoria Legislative Assembly, Parliamentary Debates (Hansard), 28 May 2024 at 1834) domestic violence and #MeToo claims was a factor in amendments to the Defamation Act 2005 in New South Wales, Victoria and the Australian Capital Territory coming into force on 1 July 2024; in those circumstances, I do not regard these trends as relevant in relation to whether the release should be granted or a non-publication order made.

Should the obligation be released?

29. The following factors are relevant:

1. The purpose for which the release is sought is a powerful consideration: Moage Ltd (in liq) v Jagelman [2002] NSWSC 953 at [21].

2. The authority is sought for the sole purpose of reference to police in New South Wales and Queensland.

3. The nature of the potential offences is serious.

4. While there must be some requirement for cogent evidence, the test is whether the e-book is of potential benefit to an investigation: North East Equity Pty Ltd v Goldenwest Equities Pty Ltd [2008] WASC 190 at [52].

5. The circumstances in which the e-book was created.

30. The purpose of the Hearne v Street obligation is for the protection of the court process from abuse of the compulsory process of production under subpoenae and discovery, not for the protection of the plaintiff. He elected to publish a book the mere title of which was certain to draw attention (although hopefully not of the kind described by Peter Ditchfield in “Books Fatal to Their Authors”,1895, Project Gutenberg).

31. While the power to grant leave is not lightly exercised, the facts of this case are exceptional. This was never a confidential publication; to the contrary, the plaintiff published his “tell-all” book to the world at large, offering it for sale on Amazon, in circumstances where its existence was not difficult to ascertain because of the book reviews which remain online. The Hearne v Street obligation only applies because the defendants were unable to locate the full text of the e-book from other, non-confidential sources.

32. Finally, I note that the party producing the e-book has no objection to its use for the stated purpose.

33. All of the discretionary factors are strongly in favour of the granting of a release from the Hearne v Street obligation.

The plaintiff’s application for a non-publication order

34. The plaintiff seeks a non-publication order pursuant to s 7 of the CNSPO Act. This application is made on the following grounds:

1. The order is necessary to prevent prejudice to the proper administration of justice (s 8(1)(a)); and

2. It is otherwise necessary in the public interest for the order to be made, which public interest significantly outweighs the public interest in open justice (s 8(1)(e)).

The plaintiff’s submissions

35. Mr Parkin submits that the principle of open justice must be abrogated in cases where the publication of that material would defeat the very purpose of the granting of release: Hogan v Hinch (2011) 243 CLR 506 at [21] per French CJ. Confidentiality lies at the heart of the implied undertaking, and this must be given great emphasis, particularly in relation to the confidentiality of a party’s documents: Alcoa of Australia Ltd v Apache Energy Ltd (No 6) [2014] WASC 287 at [21] per Le Miere J. It is in the public interest to ensure that confidentiality remain unless the document is tendered in evidence or formally read in open court.

36. The corollary of this is that any release should be confined as to that which is necessary. In the present case, these proceedings are effectively concluded and no documents will be read in open court. A nonpublication order is thus necessary in order to ensure that the administration of justice in any future proceedings will not be prejudiced.

37. Mr Parkin submits that the defendants have acknowledged the importance of abrogation of confidentiality by the restrictions they have placed on the extent of the use of the material, namely to provide to police into jurisdictions in Australia. He says this does not go far enough, as the practical effect is that it will be “open to all and sundry” (submissions, paragraph 11) to report the content of the e-book so far as it is thereby revealed. Mr Parkin submits that the court would effectively be making a wholesale unrestricted release, which would undermine the limited one sought by the defendants. If reporting of the rest of the contents of the e-book were permitted, any implied undertaking would be rendered futile and the whole argument about whether this document should remain confidential would become pointless.

38. In those circumstances, Mr Parkin submits, a more comprehensive non-publication order is necessary, to prevent prejudice to the proper administration of justice and the public interest in preserving the confidentiality of documents produced on subpoena.

39. Such an order would also be necessary to prevent the contamination of juries and witnesses.

40. Mr Parkin also drew my attention to the weakness of the material in the e-book in terms of evidence. Although it was not put to me in terms, this submission seems to be that the prejudicial impact of the publication may, in any criminal proceedings, outweigh its evidentiary value.

The defendants’ submissions

41. The e-book the subject of this application is not a confidential document in the same way that trade secrets or confidential information would be. It was promoted with one of the largest online sale marketplaces, in that it was for sale through Amazon. It had 9 ratings and 2 reviews and, although the links no longer work, articles summarising its contents have remained online since 2014 (Exhibit A, [32] – [35]). It contains no confidential information. It only obtains protection because it was produced in answer to a subpoena; had a member of the public come forward to give the defendants a copy of the e-book, or had the defendants been able to order the e-book online, any application for restriction of its contents (other than in terms of protection of the identities of potential victims) would have failed. In those circumstances, the orders proposed by the plaintiff are a futility.

42. The Hearne v Street obligation is intended to prevent invasion of privacy and confidentiality in circumstances where protection of the compulsory processes of the court such as discovery and the issuing of subpoena come into conflict with a claim for use of the documentation outside the parameters of the court process. Although confidential information is exchanged between the parties in many if not most of the proceedings coming before the court (in the form of medical, taxation and other personal documentation), applications for release are rare, and still more rarely made.

43. Additionally, protection is qualified, in that it ceases once the document in question has been received into evidence, and this must be borne in mind when determining issues of open justice: Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd (2020) 282 FCR 95 at [83]. This is because the entitlement of the media to report what happens in courtrooms is a corollary of the principle of open justice: John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 at [20] per Spigelman CJ; Rinehart v Welker (2011) 93 NSWLR 311 at 321 [33] per Bathurst CJ and McColl JA.

44. As noted by Mr Olson in paragraph 15 of his submissions, the plaintiff appears to argue that prejudice to the administration of justice will flow from the fact that this application is before the court in circumstances where the book is tendered and its contents discuss will result in a broader disclosure of the books contents than the leave sought by the defendants. That is, however, one of the dangers of modern litigation (sometimes referred to as the “Streisand effect”: Trkulja v Google LLC (2018) 263 CLR 149; [2018] HCA 25 at [49]). This application took place in open court and members of the public have the same right to be informed about the litigation and how the court came to its conclusions as they would in any other kind of proceedings. The safeguards for the release of the obligation must be seen in that light.

45. If what is suggested is that there is some kind of general practice of making non-publication orders as a corollary to the seeking of release from a Hearne v Street obligation, there is no authority to support that contention.

46. Mr Olson submitted that the question of contamination of juries and witnesses is largely a matter of speculation as any criminal proceedings are not likely to take place for some years; in those circumstances, such an order is not sufficiently “necessary”: News Digital Media Pty Ltd v Mokbel [2010] 30 VR 248 at 272 [94] per Warren CJ and Byrne AJA. Any jury of the future, if empanelled, will be given the appropriate warnings about not making their own searches and enquiries. While such orders have been made in criminal trials, at least one subsequent appellate decision noted doubts about the “correctness” of those rulings: Nationwide News Pty Ltd v Qaumi [2016] 93 NSWLR 384 at [13] and [89]-[91]. In Advertiser Newspapers Pty Ltd v Penhall (2021) 139 SASR 252; [2021] SASCA 76 at [87], Doyle JA (with whom Kourakis CJ concurred) accepted the “King Canute” futility argument where a document or information has long been in the public domain.

Conclusions: the orders proposed by the defendants are sufficient protection

47. I have set out the parties’ submissions in detail as the issues they raise are matters of interest in defamation law generally, due to the increasing number of defamation actions raising issues of this kind. Essentially, however, what the decisions referred to by the parties demonstrate is that the question of the necessity of such an order depends upon the facts and circumstances of the particular case in which the order is sought.

48. What makes the orders sought by the plaintiff an unnecessary extra flourish (as opposed to the orders proposed by the defendants) are the length of time this e-book has been for sale on the internet and the uncertainty of whether, after all this time, there will be any prosecutions. In such circumstances, it is “too late to try to get the genie back into the bottle” (McJannett v Daley [No 2] [2012] WASC 386 (S) at [7] per Le Miere J). The orders sought challenge the tension between freedom of speech and reputation protection; if non-publication orders were sought for any plaintiff commencing defamation proceedings over an allegation of criminal conduct, the balance between freedom of speech and protection of reputation could be imperilled.

49. The plaintiff will have the benefit of the limited non-publication order proposed by the defendants. He should not also be entitled to the order in broad terms sought by the plaintiff. Such as order is not “necessary” for the purposed identified in s 8 of the Act and would, in addition, not only lack utility but be difficult to enforce.

Concluding remarks and costs

50. I have made orders in accordance with the draft provided by the defendants, but I have added an additional order for return of the e-book to the defendants so that no copy will remain in the file.

51. The plaintiff has already consented to pay the defendants’ costs on an indemnity basis. The plaintiff asks for an order that each party bear their own costs of this application. The defendant submits (submissions, paragraph 68) that the plaintiff should be ordered to pay the costs of this application (although not on an indemnity basis).

52. The orders proposed by the defendants were sensible and reasonable. Costs should follow the event.

Orders

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:

1. 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

2. 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.

Decision last updated: 24 September 2024