FEDERAL COURT OF AUSTRALIA
Webster v Brewer (No 2) [2020] FCA 727
File number: VID 293 of 2020 Judge: GLEESON J Date of judgment: 19 May 2020 Date of publication of reasons: 28 May 2020 Catchwords: DEFAMATION – application for interlocutory injunction in relation to alleged publication of defamatory material – circumstances in which Court will grant an interlocutory injunction – serious question to be tried – damages not an adequate remedy – balance of convenience favoured injunction and take-down order – interlocutory injunction granted and take-down order made Legislation: Trans-Tasman Proceedings Act 2010 (Cth)
Defamation Act 2005 (Vic)
Cases cited: Capilano Honey v Dowling (No 2) [2018] NSWCA 217
Chappell v TCN Channel Nine (1988) 14 NSWLR 153
Nationwide v Furber (1984) 3 FCR 19
The School for Excellence Pty Ltd v Trendy Rhino Pty Ltd & Ors [2018] VSC 514
Date of hearing: 19 May 2020 Registry: New South Wales Division: General Division National Practice Area Other Federal Jurisdiction Category: Catchwords Number of paragraphs: 45 Counsel for the Applicants: J Hooper Solicitor for the Applicants: Norton Rose Fulbright Australia Counsel for the Respondent: There was no appearance for the Respondent
Table of Corrections 1 June 2020 In paragraphs 29 and 32, “Ms Richardson” has been replaced with “Ms Robertson”. 1 June 2020 All references to the first applicant as “Ms Webster” have been replaced with “Dr Anne Webster” 1 June 2020 All references to the second applicant as “Dr Webster” have been replaced with “Dr Philip Webster” ORDERS
VID 293 of 2020 BETWEEN: ANNE WEBSTER
First Applicant
PHILIP WEBSTER
Second Applicant
ZOE SUPPORT AUSTRALIA (ABN 76161029705)
Third Applicant
AND: KAREN BREWER
Respondent
JUDGE:
GLEESON J
DATE OF ORDER:
19 MAY 2020
THE COURT ORDERS THAT:
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 respondent’s Facebook account is accessible at the URL address ‘ “First Post” is the post uploaded to the respondent’s Facebook account on or about 26 April 2020 at 6.21am.
c.the “First Video” is the video post uploaded to the respondent’s Facebook account on or about 26 April 2020 at 2.01pm.
d.the “Second Post” is the post uploaded to the respondent’s Facebook account on or about 27 April 2020 at 5.14am.
e.the “Second Video” is the video uploaded to the respondent’s Facebook account on or about 30 April 2020 at 6.13pm.
f.the “Third Post” is the post uploaded to the respondent’s Facebook account on or about 8 May 2020 at 5.42am.
g.the “Third Video” is the video uploaded…
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Details
- AGLC
- Webster v Brewer (No 2) [2020] FCA 727
- Case
- [2020] FCA 727
- Decision Date
CaseChat Overview and Summary
In Webster v Brewer (No 2), the court was asked to grant an interlocutory injunction and a take-down order against Ms Brewer in relation to alleged defamatory publications made on Facebook. The applicants, Dr Anne Webster, Dr Philip Webster and Zoe Support, alleged that Ms Brewer had published seven defamatory items on Facebook, including posts and videos, that identified them and contained defamatory imputations. The court was required to decide whether there was a serious question to be tried as to the applicants' entitlement to relief, whether the applicants were likely to suffer injury for which damages would not be an adequate remedy, and whether the balance of convenience favoured granting the injunction and take-down order.
The court found that the applicants had established a serious question to be tried, as there were credible allegations of defamation and the applicants had a plausible case. The court also found that the applicants were likely to suffer injury for which damages would not be an adequate remedy, as the publications had already caused harm to their reputations and there was a risk of ongoing harm if the publications were not removed. The court further found that the balance of convenience favoured granting the injunction and take-down order, as the harm to the applicants outweighed any potential harm to Ms Brewer's freedom of speech. The court therefore made an interlocutory injunction and a take-down order against Ms Brewer.
The final orders made by the court were that Ms Brewer be restrained from publishing or maintaining online the seven defamatory items, any other matter to the same purport or effect, and that she remove three of the items from her Facebook account. The court also made orders for case management, including a shortened time for filing a defence and a case management hearing date. Costs and liberty were reserved.
The court found that the applicants had established a serious question to be tried, as there were credible allegations of defamation and the applicants had a plausible case. The court also found that the applicants were likely to suffer injury for which damages would not be an adequate remedy, as the publications had already caused harm to their reputations and there was a risk of ongoing harm if the publications were not removed. The court further found that the balance of convenience favoured granting the injunction and take-down order, as the harm to the applicants outweighed any potential harm to Ms Brewer's freedom of speech. The court therefore made an interlocutory injunction and a take-down order against Ms Brewer.
The final orders made by the court were that Ms Brewer be restrained from publishing or maintaining online the seven defamatory items, any other matter to the same purport or effect, and that she remove three of the items from her Facebook account. The court also made orders for case management, including a shortened time for filing a defence and a case management hearing date. Costs and liberty were reserved.
Orders
Orders of the court
1. Upon the applicants giving the usual undertaking as to damages (see Practice Note GPN-UNDR), until 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;
e. the Third Post;
f. the Third Video;
g. the Fourth Video; and
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. Upon the applicants giving the usual undertaking as to damages (see Practice Note GPN-UNDR), the respondent by herself or by her servants or agents, or howsoever, remove each of the Third Post, the Third Video and the Fourth Video from the respondent’s Facebook account.
4. Pursuant to section 13(1)(b) of the Trans-Tasman Proceedings Act 2010 (Cth), the time for the respondent to file an appearance be abridged to 26 May 2020.
5. By 4pm on 9 June 2020, the respondent file and serve any defence.
6. By 4pm on 16 June 2020, the applicants file and serve any reply.
7. These orders be served on the respondent personally as soon as practicable, and in any event before 5pm on 22 May 2020.
8. The matter is listed for a Case Management Hearing on a date not before 9:30am on 18 June 2020.
9. Costs reserved.
10. Liberty is reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
These are my reasons for making those orders.BACKGROUND AND ALLEGED DEFAMATORY PUBLICATIONS Background facts concerning the applicants are set out in the first judgment at [7] as follows:The first applicant [Dr Anne Webster] 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 [Dr Philip Webster], 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. …. Wheelahan J noted that Zoe Support Australia (Zoe Support) appears to be an “excluded corporation” within the meaning of the Defamation Act 2005 (Vic) and corresponding provisions in the other states and territories of Australia. By s 9(1) of that Act, a corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the relevant publication. By their amended statement of claim dated 18 May 2020, the applicants claim damages from Ms Brewer in respect of the publication of seven items on the Facebook social media platform, on an account alleged to be operated and controlled by Ms Brewer (Facebook account). The seven publications are:(1)A post uploaded to the Facebook account on or about 26 April 2020 at 6.21am (first post).(2)A video uploaded to the Facebook account on or about 26 April 2020 at 2.01pm (first video).(3)A post uploaded to the Facebook account on or about 27 April 2020 at 5.14am (second post).(4)A video uploaded to the Facebook account on or about 30 April 2020 at 6.13pm (second video).(5)A post uploaded to the Facebook account on or about 8 May 2020 at 5.42am (third post).(6)A video uploaded to the Facebook account on or about 8 May 2020 at 6.00am (third video).(7)A video uploaded to the Facebook account on or about 8 May 2020 at 7.44am (fourth video). The first applicant (Dr Anne Webster) is named in the first post. All of the applicants are named in the first video, the second post and the second video. Dr Anne Webster and Zoe Support are named in the third post, the third video and the fourth video.Alleged defamatory imputations
Evidence
Evidence Before The Court
The applicants contend that, by failing to remove the other three publications, Ms Brewer failed to comply with the 8 May 2020 interim injunction on the basis that she had maintained online matter to the same purport or effect as one or more of the first four publications which identified Dr Anne Webster and Zoe Support.EVIDENCE AND NOTICE TO MS BREWER OF HEARING The evidence in support of the application comprised the following affidavits:(1)affidavit of Dr Anne Webster sworn 12 May 2020, being a sworn version of her affidavit filed 7 May 2020;(2)affidavit of the second applicant (Dr Philip Webster) sworn 12 May 2020, being a sworn version of his affidavit filed 7 May 2020;(3)affidavit of Merinda Robertson, Manager of Zoe Support sworn 12 May 2020, being a sworn version of Ms Robertson’s affidavit filed 7 May 2020.(4)two affidavits of Peter Cash, the applicants’ solicitor, filed 8 May 2020 and 18 May 2020 respectively; and(5)affidavit of Michael Sabin, private investigator, sworn 12 May 2020. Based on Mr Sabin’s affidavit, I am satisfied that Ms Brewer has been served with:(1)the originating application;(2)the statement of claim dated 1 May 2020;(3)the interlocutory application dated 7 May 2020 by which the applicant sought orders including:1. An interlocutory injunction requiring the respondent to remove each of the Defamatory Publications from the Facebook Account and not to author and upload to the internet any further matter to the same purport or effect as any of the Defamatory Publications, as those terms are defined in the applicants’ statement of claim.(4)the applicants’ evidence and submissions in support of the interlocutory application;(5)the orders made by Wheelahan J on 8 May 2020; and(6)the first judgment. On 14 May 2020, Mr Cash sent an email to Ms Brewer notifying her of the time of the 19 May 2020 hearing and of the Court’s details, so that she could participate in the hearing by telephone or video link. Mr Cash also sent Ms Brewer the applicant’s proposed amended statement of claim. On 18 May 2020, Mr Cash sent Ms Brewer a revised proposed amended statement of claim. By mid-afternoon on 18 May 2020, Mr Cash had not received any communication from Ms Brewer.LEGAL FRAMEWORK At [11] and [12] of the first judgment, Wheelahan J set out the basis of the Court’s jurisdiction in this matter and, more particularly, in respect of Ms Brewer who is located in New Zealand.Interlocutory injunction At [13], his Honour set out the source of the Court’s power to grant interlocutory injunctive relief and the relevant principles as follows: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.
Decision
Reasons for decision
On 19 May 2020, on the applicants’ undefended application, I made an interlocutory order having the effect of extending, and expanding the scope of, an interim injunction ordered by Wheelahan J on 8 May 2020: Webster v Brewer [2020] FCA 622 (first judgment). I also made an order requiring the respondent (Ms Brewer) to remove a post and two videos from her Facebook account. Each of those orders was made upon the applicants giving the “usual undertaking as to damages”, which is an undertaking:(1)to 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 that person is a party), affected by the operation of the order or undertaking or any continuation (with or without variation) of the order or undertaking; and(2)to pay the compensation referred to in (1) to the person affected by the operation of the order or undertaking: see cl 2.2 of Federal Court Practice Note “Usual Undertaking as to Damages” Practice Note (GPN-UNDR). I also made orders for case management with a view to an early final hearing that would minimise the duration of the interlocutory orders. These are my reasons for making those orders.BACKGROUND AND ALLEGED DEFAMATORY PUBLICATIONS Background facts concerning the applicants are set out in the first judgment at [7] as follows:The first applicant [Dr Anne Webster] 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 [Dr Philip Webster], 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. …. Wheelahan J noted that Zoe Support Australia (Zoe Support) appears to be an “excluded corporation” within the meaning of the Defamation Act 2005 (Vic) and corresponding provisions in the other states and territories of Australia. By s 9(1) of that Act, a corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the relevant publication. By their amended statement of claim dated 18 May 2020, the applicants claim damages from Ms Brewer in respect of the publication of seven items on the Facebook social media platform, on an account alleged to be operated and controlled by Ms Brewer (Facebook account). The seven publications are:(1)A post uploaded to the Facebook account on or about 26 April 2020 at 6.21am (first post).(2)A video uploaded to the Facebook account on or about 26 April 2020 at 2.01pm (first video).(3)A post uploaded to the Facebook account on or about 27 April 2020 at 5.14am (second post).(4)A video uploaded to the Facebook account on or about 30 April 2020 at 6.13pm (second video).(5)A post uploaded to the Facebook account on or about 8 May 2020 at 5.42am (third post).(6)A video uploaded to the Facebook account on or about 8 May 2020 at 6.00am (third video).(7)A video uploaded to the Facebook account on or about 8 May 2020 at 7.44am (fourth video).
Ratio Decidendi
Legal Principle Established
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