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 56
Civil: 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…

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.

Continue reading Stokes v Ragless

Details

AGLC: Stokes v Ragless [2014] SASC 56
Case: [2014] SASC 56
Decision Date

CaseChat Overview and Summary

In the case of Stokes v Ragless, the plaintiff sought an interlocutory injunction to restrain the defendant from publishing certain statements on his website and to remove existing material. The dispute arose from the defendant's allegations against the plaintiff, who is the President of the South Australian Field and Game Association Inc, in connection with the defendant's firearms licence suspension. The plaintiff argued that the content of the website, which included defamatory statements, should be restrained and removed.

The court was required to determine whether the plaintiff had established a prima facie case for defamation, given the strength of the evidence and the likelihood of success at trial. The court also needed to assess the balance of convenience, considering the public interest in freedom of communication, which traditionally weighs against the grant of an interlocutory injunction in defamation cases.

The court found that the plaintiff had demonstrated a sufficient likelihood of success to justify restraining the publication of the defamatory content pending the trial. However, the balance of convenience, particularly the public interest in freedom of communication, weighed heavily against granting an interlocutory injunction. Consequently, the court declined to make the injunction orders sought by the plaintiff.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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).

Ratio Decidendi

Legal Principle Established

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