Webster v Brewer

Case [2020] FCA 622

FEDERAL COURT OF AUSTRALIA

Webster v Brewer [2020] FCA 622

File number: VID 293 of 2020
Judge: WHEELAHAN J
Date of judgment: 8 May 2020
Catchwords:

DEFAMATION – application for an interim injunction in relation to alleged publication of defamatory material – interim injunction order made.

PRACTICE AND PROCEDURE – application for an order for substituted service in accordance with r 10.24 of the Federal Court Rules 2011 (Cth) – no order for substitution service made.
Legislation:

Federal Court Australia Act 1976 s 23

Federal Court Rules 2011 r 10.24

Trans-Tasman Proceedings Act2010 (Cth) s 9, s 48

Trans-Tasman Proceedings Act 2010 (NZ) s 32

Cases cited:

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57

Chappell v TCN Channel 9 Pty Ltd (1988) 14 NSWLR 153

Dow Jones and Company Inc v Gutnick [2002] HCA 56; 210 CLR 575

Ley v Hamilton (1935) 153 LT 384

Macquarie Bank Ltd v Berg [1999] NSWSC 526

Park (Trustee) v Tschannen (a Bankrupt) [2016] FCA 361

Takapana Pty Ltd v Teco Information Systems Co Ltd (1998) 82 FCR 25; 153 ALR 377

Walker v Pickles [1980] 2 NSWLR 281

X v Twitter Inc [2017] NSWC 1300; 95 NSWLR 301

Date of hearing: 8 May 2020
Registry: Victoria
Division: General Division
National Practice Area: Other Federal Jurisdiction
Category: Catchwords
Number of paragraphs: 22
Counsel for the applicants: J Hooper
Solicitor for the applicants: Norton Rose Fulbright
Table of Corrections
11 May 2020 Cover page, Legislation field has been amended.
11 May 2020 Page 6, paragraph [18] the deletion of the word “defamation” from the fifth line.
11 May 2020 Cover page, Cases cited field has been amended.

ORDERS

VID 293 of 2020
BETWEEN:

ANNE WEBSTER

First Applicant

PHILLIP WEBSTER

Second Applicant

ZOE SUPPORT AUSTRALIA

Third Applicant
AND:

KAREN BREWER

Respondent

JUDGE:

WHEELAHAN J

DATE OF ORDER:

8 MAY 2020

PENAL NOTICE

TO:KAREN BREWER

IF YOU (BEING THE PERSON BOUND BY THIS ORDER):

(A)REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B)DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

IN THESE ORDERS:

(a)The “First Post” is the post uploaded to the respondent’s Facebook account on or about 26 April 2020 at 6.21am.

(b)The “First Video” is the video post uploaded to the respondent’s Facebook account on or about 26 April 2020 at 2.01pm.

(c)The “Second Post” is the post uploaded to the respondent’s Facebook account on or about 27 April 2020 at 5.14am.

(d)The “Second Video” is the video uploaded to the respondent’s Facebook account on or about 30 April 2020 at 6.13pm.

THE COURT ORDERS THAT:

1.Upon the applicants giving the usual undertaking as to damages (see Practice…

Continue reading Webster v Brewer

Sign in free to access the full text

Details
AGLC
Webster v Brewer [2020] FCA 622
Case
[2020] FCA 622
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Webster v Brewer involved a defamation dispute where the applicants sought an interim injunction against the respondent for publishing allegedly defamatory material on Facebook. The applicants were members of the Australian Parliament and a not-for-profit organisation, Zoe Support, which assists young mothers in the Mildura region. The respondent, residing in New Zealand, was alleged to have posted defamatory content about the applicants on her Facebook profile.

The court had to decide whether to grant the applicants' request for an interim injunction to prevent the respondent from further publishing the defamatory material, and whether to allow substituted service of the originating application in light of the respondent's overseas residence. The court found that it had jurisdiction over the respondent under the Trans-Tasman Proceedings Act and the Federal Court Australia Act, and that the applicants had satisfied the criteria for an interim injunction. The court noted the serious nature of the allegations, the lack of response from the respondent, and the potential for ongoing harm to the applicants' reputation. The court also decided against granting substituted service, as the applicants had not demonstrated sufficient efforts to serve the respondent directly.

The court granted the interim injunction, restraining the respondent from publishing the identified defamatory material. The order included provisions for the respondent to notify relevant online platforms and mandated that the applicants inform the respondent of the court's order and the legal documents involved. The court reserved costs and granted liberty to apply for further orders.

Orders

Orders of the court

1. Upon the applicants giving the usual undertaking as to damages (see Practice Note GPN-UNDR), until 5.00pm Tuesday 19 May 2020 or further order, the respondent by herself or by her servants or agents, or howsoever, be restrained from publishing or causing to be published in any form, or maintaining online for downloading, or uploading so as to make available for publication online:

(a) the First Post;

(b) the First Video;

(c) the Second Post;

(d) the Second Video; and

(e) any other matter to the same purport or effect as any of the above matters to the extent that such other matters identify the applicants, whether expressly or by implication.

2. The order in paragraph 1 shall not operate to preclude the respondent from publishing the matters referred to therein to a legal practitioner retained by her for the sole purpose of advising or acting for her in connection with this proceeding.

3. The interlocutory application filed on 7 May 2020 is adjourned to 10.15am on 19 May 2020 for further hearing.

4. The applicants make reasonable endeavours to bring to the notice of the respondent as soon as reasonably practicable, whether electronically or otherwise –

(a) this order;

(b) the reasons for making this order;

(c) the originating application;

(d) the statement of claim;

(e) the interlocutory application;

(f) the affidavits filed in support of the interlocutory application; and

(g) the applicants’ written submissions in support of the interlocutory application.

5. The applicants may give notice of this order to Facebook, MeWe or any other online platform.

6. Costs reserved.

7. Liberty to apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the following reasons, I have determined to grant the applicants interim injunctive relief.Background The following unsworn affidavits were received by the Court and treated as evidence –(1)Anne Elizabeth Webster dated 7 May 2020;(2)Philip David Webster dated 7 May 2020; (3)Merinda Lee Robertson dated 7 May 2020; and(4)Peter Edmund Cash dated 8 May 2020. The Court accepts that in the current environment, where there are restrictions on movement in Victoria, it has been impractical to have the affidavits sworn. These difficulties are recognised by the Court’s Practice Note, Special Measures in Response to COVID-19 (SMIN‑1) issued by the Chief Justice on 23 March 2020, which provides –4.2The Court also acknowledges that remote working arrangements may pose significance challenges to having affidavits sworn or affirmed. The Court will accept the filing of unsworn affidavits on the understanding that, if required, these will later be sworn or affirmed when circumstances allow. Sworn copies of the affidavits should be filed when the circumstances allow.The applicants The first applicant is a member of the Australian Parliament in the House of Representatives. She has a background in social work, working with vulnerable young families, and she is a founder of the third applicant, Zoe Support. She has lived in Mildura with her husband, who is the second applicant, for 42 years. The second applicant is a medical practitioner who practises in Mildura. He has a number of positions with institutions and community organisations in the Mildura area. He is a director of the third applicant. The third applicant, Zoe Support, is a company limited by guarantee that operates as a not for profit community based organisation operating within Mildura and surrounding districts. It provides benevolent relief of social isolation, poverty, ill health, destitution and distress of pregnant women and new mothers who lack support and resources. It targets disadvantaged and welfare-dependant young mothers aged between 13 and 25, and provides pathways to education, training and employment. It has four centres in Mildura from which it provides its services. Prima facie, the third applicant would appear to be an excluded corporation for the purposes of s 9 of the Defamation Act 2005 (Vic) and corresponding provisions in the other States and Territories.The respondent The evidence before the Court is that the respondent is a woman who currently resides in Taheke Northland, in New Zealand. On the basis of the evidence before the Court, I accept on a prima facie basis that the respondent has been responsible for uploading four publications on a Facebook profile and which are alleged in applicants’ statement of claim –(1)a post to the respondent’s Facebook profile, under her name, dated 26 April 2020, which identifies the first applicant by name;(2)a further post to the respondent’s Facebook profile dated 27 April 2020, which identifies by name the first and third applicants;(3)a video uploaded by the respondent to her Facebook account on 26 April 2020, which comprises a lengthy monologue by the respondent which identifies each of the applicants; and(4)a further video uploaded to the respondent’s Facebook page on 30 April 2020, which identifies each of the applicants.

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

Prior to the commencement of the proceeding on 29 April 2020, the applicants’ solicitors sent a letter by Facebook Messenger to the respondent requesting that she remove the Facebook posts and the videos from the internet, and to give an undertaking not to upload further disparaging comments about the applicants. There has been no response to this letter. Following the solicitors’ letter, the respondent has published further videos and posts on her Facebook profile, including today, in which she has continued to refer to the first and third respondents in disparaging terms. There is also evidence in the form of the respondent’s recent posts that Facebook may be seeking to block the respondent for 24 hours, and that the respondent has foreshadowed that she will now publish on another internet platform, MeWe.Consideration On the basis of the material currently before the Court, I am satisfied of the Court’s jurisdiction, both as to power, and in the sense of jurisdiction over the respondent. There is evidence that at least one publication for which the respondent is alleged to be liable was downloaded and read in the Australian Capital Territory: see, Crosby v Kelly [2012] FCAFC 96; 203 FCR 451. Even without that evidence, I would be satisfied that the Court has jurisdiction by reason of an inference of probable publication in the Australian Capital Territory of at least one of the matters that arises from the fact that the first applicant is a member of the Australian Parliament in Canberra, and by reason of the number of publications of the Facebook posts that appear to have been made. In any event, the applicants’ application embraces an application for injunctive relief, which would include an application enjoining publication within the Australian Capital Territory. The Court has jurisdiction over the respondent in the sense considered in Laurie v Carroll (1958) 98 CLR 310 at 323 (Dixon CJ, Williams and Webb JJ). That is because on the assumption that the respondent resides in New Zealand as the evidence suggests, she is amenable to service of process filed in this Court pursuant to s 9 of the Trans-Tasman Proceedings Act, which provides –9 Service of initiating documents in New Zealand(1)An initiating document issued by an Australian court or tribunal that relates to the proceeding may be served in New Zealand under this Part.(2)However, the document must be served in New Zealand in the same way that the document is required or permitted, under the procedural rules of the Australian court or tribunal, to be served in the place of issue.Note:For service of the initiating document in New Zealand under this Part, it is not necessary for the Australian court or tribunal:(a)to give leave for the service; or(b)to be satisfied that there is a connection between the proceeding and Australia. The Court has statutory power under s 23 of the Federal Court Australia Act 1976 (Cth) to grant an interim injunction, including an interim injunction to enjoin the commission of a tort: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [30] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ). That jurisdiction extends to enjoining the publication of a defamatory matter. However, as a question of discretion, the power to enjoin publication is ordinarily exercised only with great caution, and only in very clear cases: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [16]-[18] (Gleeson CJ and Crennan J), citing Stocker v McElhinney [No 2] [1961] NSWR 1043 at 1048 (Walsh J). That is because of the regard which the law has for the value of freedom of speech. Accordingly, in practice, if there is any real ground for supposing that a respondent may succeed at trial, an injunction would ordinarily be refused. The organising principles for considering whether to grant an injunction are well known. “[I]n all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction”: Australian Broadcasting Corporation v O’Neill at [19] (Gleeson CJ and Crennan J). See also, Gummow and Hayne JJ at [65]-[72] and [85]. The organising principles are to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed.