Smolin v Dailymail.com Australia Pty Ltd (No.2) - [2024] NSWDC 444

District Court

New South Wales

Medium Neutral Citation: Smolin v Dailymail.com Australia Pty Ltd (No.2) [2024] NSWDC 444
Hearing dates: 19 September 2024
Date of orders: 19 September 2024
Decision date: 19 September 2024
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) An extension of the interim order made on 13 September 2024 until 23 September 2024 at 5:00pm, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), to provide that the following information not be published: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.
(2)   Orders 1 and 3 - 6 of my orders in Smolin v Dailymail.com Australia Pty Ltd [2024] NSWDC 433 be stayed until 23 September 2024 at 5:00 pm.
(3)   The consent order for the plaintiff to pay the defendants' costs on an indemnity basis, placed on JusticeLink today, be stayed until 23 September 2024 at 5:00 pm.
(4)   Paragraphs [18], [19], [26] and [27] of the judgment Smolin v Dailymail.com Australia Pty Ltd [2024] NSWDC 433 be redacted until 23 September 2024 at 5:00 pm.
(5)   Costs of the application for a stay reserved.

Catchwords:
TORTS – defamation – application for stay of suppression order

Legislation Cited:
Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 10, 14
Uniform Civil Procedure Rules 2005 (NSW), r 36.11

Cases Cited:
Hearne v Street (2008) 235 CLR 125
McJannett v Daley [No 2] [2012] WASC 386 (S)
Smolin v Dailymail.com Australia Pty Ltd [2024] NSWDC 433
Zimmerman v Perkiss(No.2) [2022] NSWDC 458

Texts Cited:
Nil

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

Introduction

On 19 September 2024, I provided a copy of orders I proposed to make in these proceedings to the parties as attached to the judgment I proposed to hand down. My purpose was to ensure that those orders correctly reflected what the parties had sought in those orders and in anticipation of an application for a stay (see the authorities referred to in Zimmerman v Perkiss (No.2) [2022] NSWDC 458). The parties have agreed that, as long as there is the addition of the consent orders for judgment and costs (which will go onto JusticeLink as consent orders made separately today pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 36.11), those orders correctly reflect the orders sought.
The plaintiff now seeks:

A stay of 28 days of the orders provided to the parties as being to the orders to be…

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 444
Decision Date: 19 September 2024

CaseChat Overview and Summary

In this matter, the plaintiff, Smolin, brought an application against Dailymail.com Australia Pty Ltd for a stay of a suppression order that had been previously made in the District Court of New South Wales. The dispute involves allegations of defamation against the plaintiff, with the defendant seeking to publish specific information deemed defamatory. The suppression order, which restricted the publication of certain details, was contested by the defendant.

The court was tasked with determining whether the suppression order should be stayed, allowing the defendant to publish the contested information. This involved assessing the balance between the plaintiff's right to reputation and the public interest in the freedom of information and expression. The court had to weigh the potential harm to the plaintiff's reputation against the societal benefits of publishing the information in question.

In delivering the judgment, the court granted an extension of the interim order until 23 September 2024 at 5:00pm. This extension aimed to protect the plaintiff's interests while allowing time for further consideration of the suppression order's validity. The court also stayed specific orders related to costs and the publication of certain paragraphs from the previous judgment until the same date. The reasoning behind these decisions was to ensure a fair and balanced approach to both parties' rights and interests, pending further deliberation.

The final orders included an extension of the interim suppression order, a stay on certain costs orders and specific paragraphs from the previous judgment, all until 23 September 2024 at 5:00pm. The costs of the application for a stay were reserved for further determination.

Orders

Orders of the court

(1) An extension of the interim order made on 13 September 2024 until 23 September 2024 at 5:00pm, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), to provide that 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.

(2) Orders 1 and 3 - 6 of my orders in Smolin v Dailymail.com Australia Pty Ltd [2024] NSWDC 433 be stayed until 23 September 2024 at 5:00 pm.

(3) The consent order for the plaintiff to pay the defendants' costs on an indemnity basis, placed on JusticeLink today, be stayed until 23 September 2024 at 5:00 pm.

(4) Paragraphs [18], [19], [26] and [27] of the judgment Smolin v Dailymail.com Australia Pty Ltd [2024] NSWDC 433 be redacted until 23 September 2024 at 5:00 pm.

(5) Costs of the application for a stay reserved.

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 (No.2) [2024] NSWDC 444
Hearing dates:	19 September 2024
Date of orders:	19 September 2024
Decision date:	19 September 2024
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) An extension of the interim order made on 13 September 2024 until 23 September 2024 at 5:00pm, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), to provide that 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. (2) Orders 1 and 3 - 6 of my orders in Smolin v Dailymail.com Australia Pty Ltd [2024] NSWDC 433 be stayed until 23 September 2024 at 5:00 pm. (3) The consent order for the plaintiff to pay the defendants' costs on an indemnity basis, placed on JusticeLink today, be stayed until 23 September 2024 at 5:00 pm. (4) Paragraphs [18], [19], [26] and [27] of the judgment Smolin v Dailymail.com Australia Pty Ltd [2024] NSWDC 433 be redacted until 23 September 2024 at 5:00 pm. (5) Costs of the application for a stay reserved.
Catchwords:	TORTS – defamation – application for stay of suppression order
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 10, 14 Uniform Civil Procedure Rules 2005 (NSW), r 36.11
Cases Cited:	Hearne v Street (2008) 235 CLR 125 McJannett v Daley [No 2] [2012] WASC 386 (S) Smolin v Dailymail.com Australia Pty Ltd [2024] NSWDC 433 Zimmerman v Perkiss(No.2) [2022] NSWDC 458
Texts Cited:	Nil
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