Stokes v Ragless
[2014] SASC 56
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
STOKES v RAGLESS
[2014] SASC 56
Reasons for Decision of The Honourable Justice Parker
17 April 2014
DEFAMATION - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS
The plaintiff commenced proceedings against the defendant for defamation in respect of, inter alia, material published on a website maintained by the defendant. The website was frequently updated and was being viewed by many others. The plaintiff made an application for an interlocutory injunction requiring that the defendant remove the relevant material and refrain from further publishing material of that sort.
Held (Parker J): Application granted. The plaintiff had made out a prima facie case in defamation. The balance of convenience lay with the plaintiff. Damages would not be an adequate remedy.
Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440; Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; Australian Airlines Commission v Commonwealth (1986) 17 FCR 445, considered.
STOKES v RAGLESS
[2014] SASC 56Civil: Application
PARKER J: This is an application for an interlocutory injunction ordering the defendant to remove certain statements from a website which he maintains and also restraining him from further publication of particular material. After hearing counsel for the plaintiff and the respondent in person, on 2 April 2014 I issued an injunction in the terms sought by the plaintiff. I indicated that I would publish my reasons later. These are my reasons.
Relief sought
On 23 October 2013 the plaintiff commenced proceedings seeking remedies for defamation. The plaintiff has lodged his third statement of claim and the defendant had until 9 April 2014 to file an amended defence.
On 2 April 2014 a Master of this court, by consent, ordered that the defendant remove from a website all words stating or suggesting that the plaintiff had attempted to intimidate people. The Master further ordered that the defendant be restrained from publishing words stating or suggesting that the plaintiff had attempted to intimidate the defendant and other people, had attempted to steal or cause others to attempt to steal, is a liar, is a cheat, is or has engaged in illegal or immoral conduct or is corrupt or part of a corrupt group.
The Master referred to a judge the question of whether the plaintiff ought to be restrained from publishing certain other statements or suggestions about the plaintiff and also ordered to remove such material from the relevant website. The defendant had opposed the making of orders to that effect.
Background
The background to this matter is a dispute between the defendant and the plaintiff arising from their involvement in the South Australian Field and Game Association Inc (“the Association”). That body has a number of branches or sub-branches. The plaintiff was formerly a committee member of the Association’s Southern Branch and recently became President of the Association (i.e. the State body).
It is common ground that the relevant statements were published on a website maintained and updated by the defendant. It is also common ground that the content of the website changes almost daily and continues to refer to the plaintiff. A counting mechanism built into the website records the number of occasions upon which it been viewed. Over recent months the number of persons viewing the site has averaged about 50 per day. Counsel for the plaintiff conceded that those figures would include some visits to the site by her instructing solicitor or his staff.
The plaintiff has pleaded that he is widely known because he is the founder and former proprietor of a large world-wide franchise group known as Cartridge World.
The defendant is or was a member of the Southern Branch. While his membership status is apparently in dispute, that issue does not need to be resolved for the purposes of the present application. The defendant is also the holder of a firearms licence and a recreational shooter. On or about 15 October 2012 the defendant’s firearms licence was suspended under s 20 of the Firearms Act 1977 following a notification under s 21I of that Act to the Registrar of Firearms by the management of the Southern Branch. The basis for that statutory notification and the subsequent suspension by the Registrar was the suspicion that the defendant may be suffering from a mental condition or illness that may make it unsafe for him to possess firearms. I note that if the management of the club had reasonable cause to suspect the defendant was suffering from a mental illness that posed a risk to his own safety or that of others, the making of such a report was mandatory. The plaintiff has denied any involvement in the giving of that notification. The suspension was revoked after several months.
Following the suspension of his firearms licence, on 30 October 2012 the defendant sent an email message in which he made various allegations and complaints relating to the affairs of the Southern Branch. That email was published to a television station, a newspaper, South Australia Police and the Human Rights Commission. The plaintiff alleges that the content of the email defamed him in several respects.
Thereafter, the defendant forwarded many emails to members of the Southern Branch and other persons drawing their attention to material published on his website about the plaintiff.
The plaintiff has alleged in his third statement of claim that the email message dated 30 October 2012 was defamatory in that it imputed that he had knowingly engaged in corrupt practices, had acted illegally and had unconscionably made baseless threats of legal action to silence or intimidate persons who might be sympathetic to the concerns of the defendant. The plaintiff has also alleged that the material published on the defendant’s website was defamatory in that it imputed that the plaintiff was a dishonourable person, had attempted to use the ill health of the defendant to retain or otherwise advance his own position in the Southern Branch, had abused his position while serving as a committee member and had acted illegally.
The plaintiff has also alleged in his third statement of claim that the update of the website on 17 May 2013 defamed him by imputing that he had improperly conspired to have the defendant’s gun licence suspended, was prepared to engage in corrupt practises, was a bully, was a bigot and had engaged in criminal behaviour or behaviour warranting the laying of criminal charges.
The defendant has admitted that he was responsible for the publications complained of by the plaintiff. However, the defendant has relied upon the defences of substantial truth (s 23 of the Defamation Act 2005), contextual truth (s 24) and qualified privilege (s 28). He has been ordered to file particulars of the latter defence by 9 April 2014. He has also foreshadowed that he will seek to rely upon the defence of fair report of proceedings of public concern (s 27). He indicated in submissions that he intends the basis for that proposed defence will be that the material about which the plaintiff complains is a fair report of “proceedings of public concern” within the meaning of paragraph (i) of the definition of that phrase in s 27(4). In essence, that definition covers fair reports of decisions made by sport or recreation associations about their members.
The particular statements or comments which are the subject of the proposed injunction are not identical to those referred to in the plaintiff’s third statement of claim. However, the clear thrust of the imputations has not changed. The differences arise from the fact that the defendant’s website is updated almost daily with material being published in a slightly different form from time to time. However, the substance insofar as it relates to the plaintiff does not materially change.
The plaintiff has given the usual undertaking as to damages in accordance with Rule 246(4).
Decision
The power to grant an interlocutory injunction in a defamation case must be exercised with great care and only in very clear cases.[1] The ordinary principles applicable to the grant of interlocutory injunctions must be applied in that light.
[1] Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440.
Whether prima facie case
Before granting an interlocutory injunction the court must be satisfied that the plaintiff has made out a prima facie case. That does
“not mean that the plaintiff must show that it is more probable than not that he will succeed at the trial. It is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial”.[2]
2 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at 82 [65] (Gummow and Hayne JJ).
The plaintiff seeks a mandatory injunction requiring that the defendant remove particular material from his website. A higher degree of probability of the plaintiff’s succeeding at trial is required where a mandatory rather than prohibitory interlocutory injunction is sought.[3] I am also mindful that the assessment of the strength of the respective cases for the plaintiff and defendant is necessarily preliminary and incomplete in a case such as this where an interlocutory injunction is sought.[4]
[3] Australian Airlines Commission v Commonwealth (1986) 17 FCR 445.
[4] Mutual Life and Citizens’ Assurance Co Ltd v Balfours Pty Ltd (1979) 23 SASR 82 at 87 (King CJ).
There is no dispute that the words complained of were published by the defendant and refer to the plaintiff. That material is couched in strong terms and accuses the plaintiff of, amongst other things, corruption, dishonesty and intimidation.
In assessing whether there is a prima facie case it is also necessary to take into account the several defences that the defendant proposes to rely upon at the trial.[5] The defendant sought to explain the basis for those defences in his submissions.
[5] Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440.
Having taken into account those several matters and principles, I am satisfied that the plaintiff has shown a sufficient likelihood of success to justify restraint of publication pending the trial.
Balance of convenience
The defendant has published the relevant material referring to the plaintiff in an attempt to have resolved in his favour the various grievances he has with the Association and the Southern Branch and to put before interested persons his side of the story. The defendant apparently believes that the plaintiff has played a leading role in the difficulties that he has experienced.
The public interest in freedom of communication about matters of public or general interest is a very significant consideration in the assessment of the balance of convenience. That interest weighs heavily against the grant of an interlocutory injunction in defamation cases.[6]
[6] Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440 at 442 – 443 (Doyle CJ), 448 (Williams J).
The substance of the defendant’s submission in relation to the freedom of communication issue was that there is a public interest in the community being informed about what, he contends, are irregularities in the management and control of the sport of shooting. Plainly, the possession and use of firearms gives rise to important public safety issues. For that reason the sport of shooting is regulated under the Firearms Act. I consider that communication about such issues would be in the public interest.
I understood counsel for the plaintiff to accept that proposition. Instead, her submission was that the proposed injunction was not directed at such matters but sought only to restrain the making of personal attacks on the character of the plaintiff.
Moreover, I note that some of the material published by the defendant refers to disagreements amongst the members of the Association that do not have any obvious connection with safety issues. I refer to the accusations published by the defendant describing the plaintiff as a “cheat” or someone who “steals”. The defendant stated in his submissions that these words related to a proposal that real property owned by the Association be transferred to its Southern Branch.[7] I consider that the public interest in freedom of communication carries less force in relation to matters that are solely internal to the Association, its members and affiliates and do not affect others.
[7] I infer that the Branch must be a separately incorporated legal entity.
The grant of an injunction in the terms sought by the plaintiff will prevent the defendant from seeking to redress his perceived grievances by publication on his website of material in a form that he apparently considers is best calculated to present his case to those he seeks to persuade. However, he will not be prevented from publicising his grievances and concerns in any manner or in any terms he chooses provided that he does not refer to the plaintiff using the words or descriptions restrained by the injunction.
Accordingly, I consider that the balance of convenience lies with the plaintiff.
Whether damages an adequate remedy
I also do not consider that damages would be an adequate remedy if the plaintiff succeeds at trial. The words used by the defendant about the plaintiff have apparently been accessed, and presumably read, by many thousands of people. The plaintiff’s international business connections suggest that some readers may be outside Australia. The particular words used may cause damage to the reputation of the plaintiff. The defendant has made it very clear that he will continue to use those words about the plaintiff unless he is restrained by the court from doing so.
For these reasons, after taking into account the greater rigour required in defamation cases, I considered that the case for the plaintiff was sufficiently compelling to warrant grant of an interlocutory injunction having both mandatory and prohibitory operation.
Orders
After noting that the plaintiff, by his counsel, has undertaken to:
(a)submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person (whether or not a party) affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) of the order or undertaking; and
(b)pay the compensation referred to in (a) to the person or persons referred to in the order;
I made the following orders.
The Court orders that:
1.The defendant do forthwith upon service of this order on him, remove or cause to be removed from the website bearing the addresses “what happened to Raggy”, and all words stating or suggesting that the plaintiff, Bryan Maxwell Stokes:
·has attempted to intimidate people.
2.Until further order the defendant be restrained from publishing words:
2.1stating or suggesting that the plaintiff, Bryan Maxwell Stokes;
· has attempted to intimidate the defendant and other people;
· has attempted to steal or cause others to attempt to steal;
· is a liar;
· is a cheat;
· is or has engaged in illegal or immoral conduct; or
· is corrupt or part of a corrupt group.
3.The defendant be at liberty to apply upon 24 hours’ notice in writing to the plaintiff to dissolve or vary this injunction.
4.This order, with the endorsement required by Rule [6R225(1)] of the Supreme Court Rules, be forthwith served personally on the defendant.
5.The question of costs be reserved for further consideration.
6.The parties have liberty to apply for further orders and directions.
3
4
0