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to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), to provide that the following information not be published: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

1. 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.

2. The plaintiff now seeks:

1. A stay of 28 days of the orders provided to the parties as being to the orders to be made, save for order 2, which released the defendants from their Hearne v Street obligations (Hearne v Street (2008) 235 CLR 125). Mr Parkin asks for the interim order made on 13 September 2024 be continued for 28 days or, if that is considered too long, until 5:00 pm on Monday 23 September 2024.

2. The redaction of paragraphs [18], [19], [26] and [27] of the judgment provided to the parties this morning.

3. I note one matter of uncertainty in the orders the plaintiff seeks. Although Mr Parkin acknowledged that his client had consented to orders for judgment against him and to pay costs on an indemnity basis, it was made clear that the orders against which a stay was sought included order 5 of my orders made today, namely the order on costs of this application, so I assume that a stay is sought by Mr Parkin in relation to the indemnity costs order for the proceedings as well.

4. My interim order of 13 September 2024, which Mr Parkin now asks me to continue beyond its expiry today at 5:00 pm, was in the following terms:

“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:

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.

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

5. The defendants oppose the application. Mr Olson draws to my attention that an appeal lies against my decision only with leave of the appellate court (s 14 of the Court Suppression and Non-publication Orders Act 2010 (NSW). The defendants also oppose the extension of time sought, on the basis that s 10 requires interim orders to be determined "as a matter of urgency". It would be a contradiction in terms if a party could seek a 28-day stay while considering whether to appeal. Mr Olson submitted that if the plaintiff wanted to seek leave to appeal, he had until 5 pm today, when the interim order will run out, to go before the Duty Judge to seek appropriate orders; instead, the plaintiff has not even indicated whether he proposed to appeal at all.

6. The application before me was made in circumstances of haste, and there is a corresponding degree of informality in this short judgment.

7. Mr Parkin explains the need for a stay by reference to Le Miere J's metaphor concerning the impossibility of putting the genie back into the bottle (McJannett v Daley [No 2] [2012] WASC 386 (S) at [7]). His client lives interstate and will need to read the judgment and receive advice, probably from Senior Counsel, as to whether to seek leave to appeal. Given the costs orders made in the proceedings by consent, it is likely that an application would be made for security for costs, and advice on topics such as this would need to be sought as well.

8. Mr Parkin submitted that no issue of prejudice would arise as all that was involved was a delay of 28 days while his client considered his position and sought advice.

9. Mr Olson submitted, and I agree, that the nature of interim orders under s 10 imposes a burden on the court to determine the application as a matter if urgency and that the parties must expect that the court will do so.

10. I do not agree, however, that the nature of the interim order gave sufficient time for the plaintiff to do so before 5 pm today. The plaintiff should be accorded sufficient time to consider his position and to seek appropriate further interim orders from the Court of Appeal. The only question is how much extra time should be permitted.

11. Mr Parkin asked for an extension of time to 5:00 pm on Monday 23 September 2024. I consider that this is a realistic time period for the plaintiff to receive and consider advice as to his leave to appeal rights.

12. Courts, especially inferior courts, should be careful to be flexible in relation to applications of this nature. The possibility of first instance error requiring appellate intervention should always be taken into account, as should the convenience of appellate courts when determining applications such as the present. In the present case, where the delay in question is a matter of days, such flexibility is called for. I accordingly propose to extend the interim order to 5:00 pm on Monday 23 September 2023, to stay all but order 2 of the orders made in my earlier judgment and to stay the indemnity costs order made.

13. I was not addressed on the question of costs in relation to this application and I have accordingly reserved them.

Orders

14. The orders I make are as follows:

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:

1. 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.

2. 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.

Decision last updated: 24 September 2024