FEDERAL COURT OF AUSTRALIA

Rush v Nationwide News Pty Limited (No 9) [2019] FCA 1383

ORDERS

THE COURT ORDERS THAT:

1.    The application by the applicant for a permanent injunction against the first respondent restraining it from republishing the defamatory imputations be dismissed.

2.    If either party wishes to submit that a costs order should be made in respect of this application, they should file and serve written submissions, not exceeding two pages in length, by 4.00 pm on 30 September 2019.

3.    If submissions are filed and served in accordance with order two, the question of costs will be determined on the papers.

4.    If no submissions are filed in accordance with order two, there be no order as to the costs of this application.

5.    Orders 4 and 5 of the orders made on 23 May 2019 be vacated.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The issue which is addressed and resolved in this, the ninth, and possibly last, first instance judgment in the defamation proceedings between Mr Geoffrey Rush and Nationwide News Pty Limited and one of its journalists, Mr Jonathon Moran, is whether a permanent injunction should be made against Nationwide restraining it from republishing certain defamatory imputations concerning Mr Rush. Mr Rush did not press his application for an injunction against Mr Moran. In an earlier judgment, I found that a billboard and various articles which appeared in two editions of The Daily Telegraph, a newspaper published by Nationwide, conveyed various defamatory imputations and that Nationwide and Mr Moran had not proved that the imputations were substantially true: Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 (the liability judgment). That judgment did not deal with the question of injunctions because the parties had agreed that it was preferable to consider whether that relief should be granted after the question of liability had been determined.

2    Mr Rush contended that a permanent injunction restraining Nationwide from republishing any of the defamatory imputations should be made because there was a serious risk or apprehension that, unless restrained, Nationwide would continue to publish the imputations. He submitted that Nationwide was a respondent which had displayed irrationality, a lack of objectivity and defiance and disrespect concerning the liability judgment and the findings that had been made against it. Mr Rush also contended that the restraint he proposed was narrow and would not result in any relevant or significant curtailment of Nationwide’s right of free speech. For its part, Nationwide disputed that there was any threat or risk of republication and submitted that the proposed injunction was a “blunt instrument” which would unfairly and unnecessarily curtail its right to report on or express opinions about the findings in the liability judgment and the proceedings on appeal.

3    The question whether it would be appropriate to make the injunction sought by Mr Rush is by no means easy to resolve. Before considering the various considerations which weigh in favour of and against the grant of a permanent injunction, it is necessary to briefly address the principles which guide the exercise of the Court’s discretion in relation to this relief. There was some disagreement between the parties in relation to those principles.

Relevant principles

4    There is no express provision for the making of permanent injunctions as a remedy against the publisher of defamatory statements or imputations in the Defamation Act 2005 (NSW) and the cognate legislation in the other States and Territories. The main remedy provided in the Defamation Act is the award of damages. It does not follow, however, that there is no power or jurisdiction to make a permanent injunction against a publisher who has been found to have published defamatory statements that were not shown to be substantially true.

5    In State or Territory courts, the jurisdiction to make permanent injunctions in defamation cases is generally to be found in the court’s auxiliary jurisdiction to restrain the threatened infringement, or the continued or repeated infringement, of a plaintiff’s legal rights. In this Court, the power or jurisdiction is to be found in s 23 of the Federal Court of Australia Act 1976 (Cth), which provides that the Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.

6    Nationwide did not contend that the Court did not have power to make an injunction restraining it from republishing the imputations which have been found to be defamatory and not substantially true. Rather, it contended that an injunction should not be made in the particular circumstances of this case. The relevant issue, therefore, concerns the circumstances in which it is appropriate to make an injunction in a defamation case. What are the principles which the Court should apply in considering whether to grant permanent injunctive relief to a successful plaintiff or applicant in a defamation case?

7    Perhaps surprisingly, while there is considerable authority in relation to the principles that apply in relation to interlocutory injunctions in defamation cases, there is relatively little discussion in the authorities about the applicable principles in relation to the grant of permanent injunctions in such cases.

Interlocutory injunctions – The relevance of the right of free speech

8    There is ample authority that “exceptional caution” should be exercised before granting an interlocutory injunction restraining the publication of an anticipated defamatory publication. There are essentially three reasons why caution is warranted in the case of interlocutory injunctions: first, the fact that the right of free speech might be unnecessarily curtailed or restricted by the injunction; second, the fact that until any defence of justification is resolved, it is not known whether publication of the matter will in fact invade the legal right of the applicant; and third, the fact that the defence of justification is ordinarily a matter for decision by a jury, not by a judge sitting alone as in an application for an injunction: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at [16].

Permanent injunctions – The requirement of an apprehension of republication

9    The second of the three reasons for caution which are identified in O’Neill is self-evidently not applicable where a permanent injunction is sought by an applicant who has successfully proved that the respondent published defamatory imputations which were not substantially true. The third reason has no particular relevance in this Court in any event because defamation cases are ordinarily tried by a judge alone.

10    The applicability of the first reason for caution which is referred to in O’Neill, the public interest in the right of free speech, requires further consideration in the context of permanent injunctions. At first blush, at least, it is difficult to see why the public interest in free speech would be relevantly offended by the granting of a permanent injunction which simply restrains the republication of defamatory imputations which have not been found to be substantially true. It is difficult to see how anyone could be said to have a right to republish such statements or imputations, let alone that there is any public interest in protecting any such right. It does not necessarily follow, however, that the public interest in free speech may not be a relevant consideration in determining whether it is appropriate to make a permanent injunction in a defamation case.

11    The right of free speech is a fundamental right which, subject to certain statutory and other exceptions, should generally not be interfered with or restricted: cf. Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 at [72]. Restraining an unsuccessful respondent in a defamation case from republishing defamatory statements or imputations which have not been shown to be substantially true should generally be considered to be one of the types of cases where a restriction or limitation on the right of free speech may be warranted. Like any other litigant, however, an unsuccessful defendant in a defamation case generally has the right, within certain limits, to comment on, express disagreement with, or even criticise a judgment of this or any other court, or express opinions about matters of public interest which may have been raised in the litigation. If the effect of a permanent injunction would be to materially restrict or curtail that right, it is difficult to see why that would not be regarded as a relevant consideration weighing against the grant of the injunction. That said, relatively little has been said in the relevant authorities in respect of that issue.

12    What the authorities do reveal is that the main consideration in determining whether it is appropriate to make a permanent injunction in a defamation case is whether there is a risk or apprehension that the respondent will republish the imputations that have been found to be defamatory.

13    In Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750; 237 FCR 127, White J said (at [15]):

Whatever be the position in England, permanent injunctions restraining a repetition of publication of matters found to be defamatory are not usually issued as a matter of course in this country. The authorities show that injunctions are issued only when some additional factor is evident, usually, an apprehension that the respondent may, by reason of irrationality, defiance, disrespect of the Court’s judgment or otherwise, publish allegations similar to those found to be defamatory unless restrained from doing so: Higgins v Sinclair [2011] NSWSC 163; [2011] ASAL 55-214 at [245]; Royal Society for the Prevention of Cruelty to Animals New South Wales v Davies [2011] NSWSC 1445 at [63]-[66]; Polias v Ryall [2014] NSWSC 1692 at [99]; Sierocki v Klerck (No 2) [2015] QSC 92 at [52]-[53].

14    His Honour’s reference to the “position in England” was primarily a reference to the decision of the House of Lords in Grobbelaar v News Group Newspapers Ltd [2002] All ER (D) 355 (Oct); 4 All ER 732; 1 WLR 3024. In that case, Lord Bingham of Cornhill and Lord Scott of Foscote concluded that a plaintiff who was only entitled to nominal damages for defamation was nevertheless entitled to an injunction. Lord Scott observed (at [89]) that “[i]t is normal for success in a defamation action to be accompanied by an injunction restraining the defendant tortfeasor from repeating the defamatory remarks”. Lord Millett and Lord Hobhouse of Woodborough agreed that the plaintiff should have liberty to apply for a suitably worded injunction, whereas Lord Steyn dissented.

15    It appears to have been put to White J that Grobbelaar was authority for the proposition that permanent injunctions are effectively granted as a matter of course when a defendant has failed to prove the substantial truth of a defamatory publication. It is, however, doubtful that Grobbelaar is authority for any such proposition. It is also doubtful that the apparently unqualified statement by Lord Scott in Grobbelaar adequately reflects the state of the law in England.

16    In Gatley on Libel and Slander (12th ed, Sweet & Maxwell, 2013), it is said that the court “will grant an injunction if it is satisfied that the words are injurious to the claimant, and there is reason to apprehend further publication by the defendant”. The case cited as authority for the second limb of that statement is Proctor v Bayley (1889) 42 Ch D 390. In that case, Fry LJ said (at 401) that “[a]n injunction is granted for prevention, and where there is no ground for apprehending the repetition of a wrongful act there is no ground for an injunction”. Footnoted reference is also made in Gatley to the decision in Roache v News Group Newspapers Ltd [1998] EMLR 161, where Stuart-Smith LJ said (at 173) that a claim for an injunction is “standard form in a defamation action; though whether there is any real risk that a defendant will repeat the libel so justifying the grant of an injunction will vary greatly according to the circumstances of the case”. Thus, it would appear that it is generally accepted in England that it must ordinarily be shown that there is a risk or apprehension of further publication of the defamatory statement before a permanent injunction is granted.

17    The Australian cases cited by White J in the passage from Hockey extracted earlier are all first instance decisions where permanent injunctions were made in circumstances where the trial judge had accepted that there was a risk that the defendant would continue to publish the imputations which had been found to be defamatory. They all involved defendants who were not journalists or media organisations. They also involved relevant defamatory statements which were made on the internet or on social media, rather than in the mass media. There are a number of other first instance judgments which fall into the same category: see for example Rastogi v Nolan [2010] NSWSC 735; Graham v Powell (No 4) [2014] NSWSC 1319; Reid v Dukic [2016] ACTSC 344. There is, however, relatively little discussion in those cases concerning the relevant principles to apply in respect of permanent injunctions in defamation matters.

18    One case where there was some discussion of the relevant principles is Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351. In that case, McCallum J rejected the contention or suggestion that permanent injunctions should be made as a matter of course once a defendant has failed to prove that a defamatory publication was substantially true. Her Honour said (at [13]-[15]):

So far as I am aware, the proposition that a permanent injunction should ordinarily accompany an award of damages following the unsuccessful defence of a common law claim is unknown in any other field. The court would not, without more, make an order restraining the unsuccessful defendant in a professional negligence or motor vehicle accident claim from acting negligently in the future. I accept that the analogy is imperfect but it is appropriate to test what appears to be a premise of the plaintiff’s argument. I do not think it can be said, without qualification, that the restraint of speech - even indefensible speech - necessarily or ordinarily serves the public interest.

Nor can it be said, without qualification, that the public interest is “not offended” by the restraint of indefensible defamation. The public interest is offended by any court-imposed restraint that is not reasonably necessary in the circumstances. It is tempting to think that is particularly so in the case of injunctions to restrain publication, since such orders necessarily impair or take away a person’s freedom of speech. Upon reflection, however, it is difficult to articulate any principled basis for placing defamation in a special category in this context; any restraint of ordinary freedom imposed by order of the court warrants the same caution.

In my view, as a matter of principle, the critical factor in determining whether to grant a final prohibitory injunction in aid of a claim for defamation should be an assessment of the existence and degree of any threat or risk of a repeat of the publication of the defamatory matter successfully sued on in the proceedings. Such an order should only be made where the court is satisfied that the order is reasonably necessary to address that threat or risk.

19    Justice McCallum also conducted a detailed review of the Australian first instance decisions in which permanent injunctions had been granted. Her Honour concluded (at [16]) that while those cases did not formulate any “test” in the precise terms proposed by her, they did lend support to her approach. That was essentially because in each of the cases where an injunction had been granted there had been a finding that there was a threat or risk of republication. Her Honour also noted that those cases where injunctions had been granted generally involved defendants who were not media proprietors or professional journalists.

20    Justice McCallum noted that the only possible exception to the “trend” in the Australian cases was the decision in Phillips v Robab Pty Ltd [2014] NSWSC 1520; 110 IPR 184. In that case, Rothman J granted a permanent injunction and noted (at [182]) that permanent injunctions “are a more common feature of defamation proceedings than was previously the case” and “have a particular use in circumstances where the defamatory material has been published on the internet and, therefore, can easily be republished”. His Honour did not expressly find that there was a risk of republication, though his reference to the ease in which republication may occur on the internet suggests that his Honour may have considered that there was such a risk. His Honour also appears to have given considerable weight to the operation or effect of s 23 of the Defamation Act. The operation of that section is considered later in these reasons.

21    Carolan was a case which involved publication by a media organisation in a major newspaper and associated websites. Justice McCallum ultimately declined to make a permanent injunction. The factors which appeared to have influenced that decision included that the defendants had made no overt threat to repeat the defamation and no longer asserted an entitlement to publish the imputations which had been sued upon. Her Honour accepted that there was a “small risk of inadvertent repetition of the defamatory imputations”, but indicated that she was “satisfied that the defendants would react responsibly in that event” (at [55]). Justice McCallum also expressed the view (at [56]) that “the power to grant a perpetual injunction which impairs or takes away a person’s freedom of speech should be exercised only where it is reasonably necessary to address the risk or threat of repetition of the defamation”.

22    There have been a number of judgments since Carolan was decided which also support the proposition that a permanent injunction will generally only be granted where there is some demonstrated threat or risk that the defamation will be repeated.

23    In Munsie v Dowling (No 10) [2018] NSWSC 709, for example, Rothman J appeared to accept that the risk or threat of republication was a relevant consideration in determining whether a permanent injunction should be made. His Honour referred to his earlier judgment in Phillips v Robab and said (at [58]):

Ordinarily, when the Court is dealing with mass media, there can be an expectation that a defamatory publication will not be republished by that defendant. With the advent of the Internet, on which anyone can be a “publisher”, such expectations may be unfounded. Where, as is suggested in these proceedings, there is a probability that, in the absence of restraining orders, republication or the publication of similar imputations will occur, the power to issue permanent injunctions is obvious.

24    Justice Rothman made similar observations in Tavakoli v Imisides (No 4) [2019] NSWSC 717 at [55]-[57], another case involving publication on the internet by a defendant who was not a professional journalist or mainstream media organisation. His Honour made permanent injunctions in circumstances where the defendant had threatened to republish the defamatory imputations.

25    There is one relatively recent case where injunctive relief was granted against a media organisation. That is the decision of Flanagan J in Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201. In that case, a prominent radio announcer had made defamatory statements concerning the plaintiffs on radio stations operated by the defendants. The plaintiffs sought permanent injunctions on the basis that the announcer had maintained his belief in the truth of many of the defamatory imputations which had been conveyed and none of the defendants had undertaken not to repeat the defamatory imputations. The defendants opposed the granting of injunctive relief on the basis that there was no evidence that publication continued after the commencement of the proceedings and no evidence that there was any current threat of anything similar being said in the future.

26    Justice Flanagan held (at [916]) that injunctive relief was appropriate because the announcer “in the course of giving his evidence, chose to continue to attack the plaintiffs’ reputations and to repeat many of the defamatory imputations”. It is not entirely clear why the finding concerning the announcer’s apparent intransigence or belligerence when giving evidence supported the making of a permanent injunction. Nor is there any detailed discussion or consideration of the relevant principles in relation to the grant of permanent injunctions in defamation matters. While his Honour did not expressly find that there was a risk that the defamatory imputations would be republished in the future, it may well be that his Honour accepted that the announcer’s intransigence and belligerence while giving evidence suggested that there was such a risk despite the findings that were ultimately made against him.

27    The general requirement that there be some risk or apprehension of republication of the defamatory imputations before permanent injunctions are granted in defamation cases is consistent with the general law concerning injunctive relief in cases involving the infringement of legal rights. In Spry ICF, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages (5th ed, LBC Information Services, 1997), for example, the learned author states (at p 394) that a plaintiff who seeks a perpetual injunction to restrain a defendant from engaging in acts which would breach the plaintiff’s legal rights “must satisfy the court that there is a sufficient risk that these acts will take place to render it just, in all the circumstances, that an injunction should be granted”. The following is then added in that context (at p 394):

To this extent the decision of the court is discretionary and does not depend on proof of imminence of the material acts on the balance of probabilities. This is not to say that proof on the balance of probabilities that the acts that are complained of will in fact occur is not generally sufficient. On the contrary, proof of that kind must be considered ordinarily to give rise to a right to specific relief. But the more fundamental enquiry relates to the extent of hardship that would be caused by leaving the plaintiff to resort to damages or to renew his application subsequently if the threat of injury to him should become greater, and this consideration in turn depends not merely on the precise probability that the acts to be enjoined will take place, but also on the gravity of those acts and on the degree of damage or inconvenience that they would cause if they took place.

(Footnotes omitted.)

28    Similarly, in Heydon JD, Leeming MJ and Turner PG, Meagher, Gummow & Lehane’s Equity Doctrines & Remedies (5th ed, LexisNexis Butterworths, 2015), one of the ingredients which a plaintiff must establish to obtain an injunction to restrain a legal wrong is said (at [21-035]) to be that “the right was either threatened or that the right had already been infringed and that the infringement was likely to be continued or repeated”. The learned authors add, in that regard (at [21-040]):

A threat of future infringement will normally be inferred from past infringement unless the circumstances point to the contrary, as where the harm to the plaintiff has ceased, or will not resume, or an undertaking not to continue the alleged wrong is offered, or an undertaking not to do so without reasonable notice to the plaintiff is offered, or an undertaking to alleviate its consequences is offered, or the defendant can be trusted to remedy the problem by itself.

(Footnotes omitted.)

29    Importantly, the passage extracted from Spry’s highly regarded work would tend to suggest that it is not sufficient to merely consider the existence of a risk or apprehension of repetition of the impugned conduct. It is necessary to also consider the extent of that risk, the gravity or seriousness of the relevant acts and the further harm or hardship that the plaintiff would suffer if the conduct was to be repeated. In the defamation context, that would mean that it is necessary to consider not only the extent of the risk of republication of the defamatory imputations, but also the seriousness of the defamation and the hardship and damage that the plaintiff or applicant would suffer if the defamation was repeated. It would also be relevant to consider the burden that would be placed on the plaintiff or applicant if a permanent injunction was not granted and he or she was required to commence further defamation proceedings in the event that the defamatory imputations were republished.

30    It would also appear that one of the reasons why it may be appropriate to grant a permanent injunction to restrain the repetition of conduct already found to be unlawful is to avoid a multiplicity of proceedings. In cases involving the infringement of intellectual property rights, for example, it has been said that “[p]ermanent injunctions are granted conventionally in respect of cases of intellectual property infringement against proven infringement and a proven threat to continue infringing as this avoids multiplicity of proceedings”: Nokia Corporation v Truong [2005] FCA 1141; 66 IPR 511 at [46]. That consideration would plainly also apply in the defamation context.

31    It is relevant, in that context, to address a particular issue which may arise when assessing the burden that may be placed on a successful plaintiff or applicant in defamation proceedings if they had to resort to commencing further defamation proceedings in the event of republication. That issue concerns the operation of s 23 of the Defamation Act.

Section 23 of the Defamation Act

32    Section 23 of the Defamation Act provides as follows:

If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought.

33    The issue, in the present context, is whether the operation of s 23 of the Defamation Act would relevantly prevent or impede a successful plaintiff or applicant in defamation proceedings from commencing fresh defamation proceedings in respect of a republication of the imputations which had been found to be defamatory in the initial proceedings. There has, in that context, been some disagreement in the authorities concerning the proper construction or interpretation of s 23 of the Defamation Act.

34    In Hockey, White J held (at [23]) that s 23 of the Defamation Act should not “readily be construed as requiring an applicant to obtain leave for a second set of proceedings in respect of causes of action arising from publications occurring after judgment on claims in respect of earlier publications”. The main reason that his Honour gave for arriving at that finding was (at [22]) that the obvious purpose of s 23 of the Defamation Act was to “limit the potential for a multiplicity of proceedings when a single publication gives rise to multiple causes of action or when several publications of the same or similar kind give rise to multiple causes of action”.

35    A different conclusion was reached by Rothman J in Phillips v Robab. His Honour concluded (at [182]) that the effect of s 23 of the Defamation Act was that “a republication by the same defendant of the same matter cannot be the subject of further proceedings, except for leave of the court”. His Honour considered that this provided a reason why it was appropriate to issue a permanent injunction.

36    In Carolan, McCallum J expressed the “tentative view” (at [50]-[51]) that the analysis of White J in Hockey was preferable to the analysis in Phillips v Robab and that s 23 of the Defamation Act “should not be construed so as to place any hurdle in the way of a plaintiff who, having succeeded in a claim for defamation, finds himself defamed again by the same defendant in the same way” (at [51]). Like White J, her Honour understood the section to be directed at preventing the proliferation of concurrent actions against the same defendant in relation to the same or like matter (at [51]).

37    In Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90, however, the Court of Appeal of the Supreme Court of New South Wales expressed some doubt about the reasoning of both White J in Hockey and McCallum J in Carolan concerning the purpose or scope of s 23 of the Defamation Act. The issue in Ghosh was limited to whether leave to appeal should be granted. As a result, neither Basten JA nor Simpson JA expressed a concluded view in relation to the proper construction of s 23 of the Defamation Act. Basten JA, however, noted (at [20]) that McCallum J had “adopted a view of the limited purpose of the section which was not to be found in the express language used, the statutory context in which the provision appeared, or in any extrinsic materials relevant to the drafting of the provision”. His Honour referred (at [52]), in that context, to a statement made in the New South Wales Law Reform Commission Report on Defamation (1971) LRC No 11 at p 100, which had earlier been referred to with approval by McColl JA in Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90 (at [69]). That report relevantly stated as follows (at [52]):

We, think that a person defamed should not have an uncontrolled liberty to sue a defendant whom he has already sued in respect of the same report, article, speech or other matter. The law as to res judicata is not fitted to impose the appropriate restraint, either under the present rules as to causes of action or under the solution which we propose. Thus, if defamatory matter is published in a newspaper, judgment in an action for publication to residents of Sydney would not bar a second action for publication to residents of Newcastle. The second action might be stayed as vexatious, but it is perhaps a strong use of that power to stay proceedings on an undoubted cause of action which has not been litigated. We do not, however, think that second action should automatically be barred: the first action might have been for what was a very limited dissemination and the second for a general dissemination to the public, perhaps not occurring until after the first action was brought. We propose that a second action should not be brought except by leave of the court.

38    Simpson JA also expressed reservations about White J’s construction of s 23 of the Defamation Act in Hockey, noting that it was not part of the ratio of the decision, was made in a particular factual circumstance and did not purport to be a concluded construction of that section.

39    There is force in the observations of Basten JA in Ghosh concerning the limited purpose which White J in Hockey and McCallum J in Carolan attributed to s 23 of the Defamation Act. There is nothing in the text of s 23 of the Defamation Act to suggest that it would not operate to require a plaintiff who had successfully sued on an article or report which appeared in, for example, a newspaper, to obtain the leave of the court before commencing or prosecuting any further action based on any subsequent republication of that article or report, or any “like” article or report. Nor does the context in which s 23 appears in the Defamation Act, or any extrinsic material, including the New South Wales Law Reform Commission Report, support the suggested limitation.

40    In the present case, the relevant “matter”, for the purposes of s 23 of the Defamation Act, comprised the three “matters complained of”: the billboard which appeared on 30 November 2017, and the articles which were published in the 30 November and 1 December 2017 editions of the Telegraph. That is because the word “matter” is defined in s 4 of the Defamation Act as including various different types of publication, for example “an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical”. The plain wording of s 23 of the Defamation Act would thus suggest that Mr Rush could not bring further defamation proceedings against Nationwide or Mr Moran in relation to those three “matters” or any other publication of the same or “like” matters, except with the leave of the court in which the further proceedings are to be brought.

41    Difficult questions might, however, arise in determining what would constitute the publication of a “like” matter in the present circumstances. That is because, as has just been noted, the relevant “matters” for the purposes of s 23 of the Defamation Act in this case comprise the relevant billboard and the articles published on 30 November and 1 December 2017, not the imputations conveyed by those publications. There is and could be no suggestion that Nationwide is likely to republish those “matters”. It is difficult to imagine why it would. Mr Rush’s contention is that there is a risk that Nationwide will or might republish the defamatory imputations in new articles which relate to or report on the liability judgment or the appeal from it. The question in relation to the potential application of s 23 of the Defamation Act in those circumstances will be whether any such articles are relevantly “like” the billboard and the articles in the 30 November and 1 December 2017 editions of the Telegraph. If they are not, s 23 of the Defamation Act will not apply and Mr Rush will not need to seek leave before commencing fresh proceedings in relation to those articles.

42    It is in my view somewhat questionable whether any article which reports on or expresses opinions about the liability judgment could be said to be “like” the original articles which gave rise to the original proceedings. It is therefore questionable whether s 23 of the Defamation Act will necessarily apply to any action which Mr Rush might choose to bring in respect of the types of articles that he fears Nationwide might publish in the future.

43    It is ultimately unnecessary to reach a concluded view on the proper construction of s 23 of the Defamation Act or its potential operation in Mr Rush’s case. It suffices to note that, depending on the nature of any further publication that might occur, Mr Rush may or may not be required to seek the leave of the court pursuant to s 23 of the Defamation Act before commencing or prosecuting any defamation action in relation to the further publication. Even if he is required to seek leave pursuant to s 23 of the Defamation Act, however, it does not necessarily follow that that would constitute a significant or material hurdle for Mr Rush. While again much will depend on the precise circumstances, it is difficult to imagine this Court, or any other court in which Mr Rush may choose to prosecute any new action, would be likely to refuse to grant leave to do so if the republication arguably gives rise to new or additional damages.

Other discretionary considerations

44    The grant of a permanent injunction is discretionary. Reference has already been made to some of the key discretionary considerations: the degree or extent of the risk or apprehension of any republication of the defamatory imputations, the extent of the hardship that would be caused if the plaintiff or applicant was required to resort to new proceedings if the defamatory imputations were to be republished, the nature and seriousness of the defamatory imputations and the general undesirability of a multiplicity of actions between the parties. Reference has also already been made to the possible relevance, as a discretionary consideration, of the risk that the public interest in the right to free speech would be relevantly curtailed by the making of a permanent injunction in the particular circumstances of the case.

45    The relevant authorities in the defamation context are mostly silent on whether there are any other discretionary considerations which may feed into the decision whether or not to grant a permanent injunction restraining any republication. General principles in relation to the making of permanent injunctions in other contexts would suggest, however, that there may be other discretionary considerations depending on the particular circumstances of the case.

46    In Equitable Remedies, Spry suggests (at p 334), by reference to the decision of the House of Lords in Mercedes Benz AG v Leiduck [1996] AC 284, that ultimately the key criterion is injustice: that the court may grant an injunction where that is required to avoid injustice. He also identified (at pp 399-416) the other discretionary considerations that might arise as including any hardship that might be caused to the defendant if an injunction were granted, any inequitable conduct on the part of the plaintiff, the ability of the defendant to comply with the injunction, the prospect that compliance with the order will not ultimately benefit the plaintiff and any acquiescence or delay on the part of the plaintiff.

Should a permanent injunction be granted?

47    As has already been noted, the respective submissions of the parties focussed on two central issues: first, whether there was a risk or apprehension that Nationwide would, if not restrained from doing so, republish the defamatory imputations; and second, whether the injunction sought by Mr Rush would impose an unjustified or unwarranted restraint or curtailment on Nationwide’s right to report on or express opinions about these proceedings.

Risk or apprehension of republication

48    Mr Rush’s contention that there was a risk of republication by Nationwide relied primarily on the nature and content of articles that Nationwide had published following the handing down of the liability judgment. He submitted that those articles not only revealed defiance and disrespect towards the Court’s judgment, but also effectively republished the defamatory imputations and undermined the Court’s vindication of his reputation.

49    Mr Rush also relied on evidence which he contended revealed that Nationwide’s approach to the proceedings has lacked objectivity and has at times been irrational or unreasonable. That evidence included evidence from his solicitor concerning Nationwide’s rejection of the settlement offer of $50,000 which Mr Rush made shortly after the impugned articles were published, as well as evidence concerning various articles which Nationwide published during the course of the proceedings. Finally, Mr Rush relied on the fact that, while Nationwide had agreed to remove from the internet the articles shortly after the liability judgment was handed down, Nationwide had given no explicit assurance or undertaking not to republish the articles in the future.

50    For its part, Nationwide disputed that there was any basis to conclude that there was any risk that it would republish the defamatory imputations.

51    It is unnecessary to refer to all of the post-judgment articles that appeared in the Telegraph and other Nationwide publications. Mr Rush’s submissions focussed mainly on four particular articles.

52    The first was an article which appeared in the Telegraph on 12 April 2019, the day after the liability judgment was handed down. It featured a large photograph of Ms Norvill alongside the following statement, attributed to her:

I told the truth. I knew what happened. I was there.

53    The article itself contained a purported summary of some of Ms Norvill’s evidence concerning Mr Rush’s conduct. While it was noted that Ms Norvill’s evidence in that regard had been rejected by the Court, it repeated Ms Norvill’s assertion that she had told the truth. The article also contained a statement from the Telegraph’s editor to the effect that he was “disappointed” with the findings in the liability judgment, in particular the “dismissal” of Ms Norvill’s evidence, and that he disagreed with the criticisms of Ms Norvill’s evidence in the liability judgment.

54    Mr Rush submitted that this was not a fair report of the proceeding. Rather, in his submission it amounted, in effect, to the editor of the Telegraph saying that, despite or irrespective of the findings made in the liability judgment concerning Ms Norvill’s allegations, Ms Norvill should be believed and Mr Rush should not be believed. That amounted, in Mr Rush’s submission, to a repetition or republication of the defamatory imputations.

55    The second article was an opinion piece which appeared in the Telegraph on 14 April 2019. Under the headline “I must object”, the author referred to, criticised and expressed disagreement with a select summary of what were said to be factual findings made in the liability judgment concerning Ms Norvill’s evidence. The article concluded with the following synopsis of the judgment and the author’s opinion in relation to it:

At the start of his judgment, Justice Wigney repeatedly said The Daily Telegraph’s story associated Rush with the #metoo movement and therefore effectively painted him as a “pervert” on the scale of Harvey Weinstein or Kevin Spacey – and that The Telegraph totally failed to prove that he was, in fact, a pervert.

I think Justice Wigney has completely missed the point. You don’t have to be a pervert or a predator to be capable of inappropriate behaviour that makes a young woman feel, as Eryn Jean Norvill put it, “small as a human”.

56    Mr Rush submitted that this part of the article repeated Ms Norvill’s allegations and effectively asserted that, whatever may have been said in the judgment, Ms Norvill should be believed, or should have been believed, and that Mr Rush had in fact acted inappropriately.

57    The third article relied on by Mr Rush was in some respects similar to the second. It was an opinion piece which appeared in the Telegraph on 16 April 2019. Under the headline “You call this justice?”, the author expressed the opinion that it was wrong, if not unjust, to conclude that Mr Rush had not sexually harassed Ms Norvill. The article stated, in the context of the allegations against Mr Rush, that “what we do know is that sexual harassment is very rarely carried out by “bad” men” and that “[w]hat appears to seem far-fetched to Justice Wigney rings all too true to the many young women who have dared to come forward with workplace war stories of their own, only to be dismissed and patronised by those enjoying the advantages of power and position”.

58    Mr Rush relied on this article as an example of an article published by Nationwide which expressed defiance and disrespect of the Court’s judgment. It was therefore said to satisfy one of the “additional factors” which White J in Hockey suggested must ordinarily be present before a permanent injunction is granted. Mr Rush ultimately appeared to concede, however, that this article did not repeat the defamatory imputations. Indeed, he held it out as an example of a critical article or opinion piece that would not contravene the injunction proposed by him.

59    The fourth article was published in the wake of the appeal filed by Nationwide. It asserted, albeit in the context of the appeal, that “[t]he judge in the Geoffrey Rush defamation case was biased” and went on to summarise parts of Nationwide and Mr Moran’s notice of appeal. It stated, for example, that the “appeal document” said that “Justice Wigney’s bias was on display in his finding ‘that Ms Norvill was an unreliable witness prone to exaggeration and lacking in credibility’”.

60    There could be little doubt that these four articles expressed trenchant disagreement with the findings that had been made against Nationwide and Mr Moran in the liability judgment. Perhaps more significantly, they effectively sided with Ms Norvill’s version of events and criticised the rejection of her evidence in the liability judgment. Some of those criticisms were based on what was said in the judgment, though others appeared to amount to a broader social commentary about sexual harassment by men in the workplace. Some of the criticisms in the third article, for example, appeared to be based not so much on what was said in the judgment concerning the evidence and the findings made in respect of it, but rather on the author’s personal experience and knowledge concerning the nature and prevalence of sexual harassment. Some of the broader social commentary could fairly be said to be hostile to, and somewhat disparaging of, the factual findings and ultimate outcome of the proceeding.

61    The difficulty for Mr Rush, however, is that whatever one may think of the quality and objectivity of the journalism, analysis and commentary in those articles, they do not provide any sound basis upon which to infer that, unless restrained, Nationwide will continue to publish the imputations that have been found to be unjustified and defamatory. It is true, as has just been noted, that some of the articles included short summaries of the defamatory imputations and the allegations that Nationwide had levelled at Mr Rush in its unsuccessful attempt to justify the imputations. Each of the articles made it tolerably clear, however, that the Court had essentially found that the allegations had not been proved and that, accordingly, the imputations were not substantially true. They did not simply refer to or repeat the imputations and allegations in a vacuum.

62    It is equally true that the articles criticised and expressed disagreement with some of the key findings made in the liability judgment. That itself does not justify the grant of a permanent injunction. A person, including a media organisation is, within limits imposed by the law of contempt by publication relating to scandalising the court, which is not in issue in this matter, entitled to express disagreement with, criticise and express opinions concerning findings made by a court. Whether the criticisms are valid, or the opinions meritorious or worthy, is essentially beside the point, at least in this context.

63    Perhaps more significantly, a media organisation which expresses disagreement with or criticises a court’s finding that a particular defamatory imputation was not proved to be true does not thereby necessarily republish or repeat that defamatory imputation. The issue is not that simple. In most circumstances, the ordinary reasonable reader would read such expressions of disagreement and criticisms for what they undoubtedly are: comments or expressions of opinion. That is how the ordinary reasonable reader is likely to have viewed the post-judgment articles and opinion pieces published by Nationwide in this matter. That is also how such statements are properly viewed.

64    The distinction between a statement of fact and a comment or expression of opinion is well-recognised in the law of defamation: see for example the discussion in Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at [35] (Gummow, Hayne and Heydon JJ). It is also reflected in the defence of honest opinion in s 31 of the Defamation Act. This is not the occasion to consider the elements of the defence of fair comment or honest opinion, or the sometimes difficult exercise in distinguishing between a comment or opinion and statement of fact. Nor is this the occasion to consider whether the comments or opinions expressed in the articles in question are fair or based on proper material. It is sufficient to say that, while there are some circumstances where statements which appear on their face to be comments or expressions of opinion may sometimes, upon closer analysis, be found to convey factual assertions, the articles published by Nationwide that are relied on by Mr Rush do not clearly or unequivocally cross into that line of territory.

65    For example, the statement by the Telegraph’s editor that he was “disappointed” with the findings, in particular the dismissal of Ms Norvill’s evidence, and that he disagreed with the criticisms of Ms Norvill, is properly viewed as an expression of opinion, not a restatement of any of the defamatory imputations. Given the Telegraph’s strenuous defence of the proceedings, it is hardly surprising that the editor would express disappointment and disagreement with the findings. Similarly, the statement in an opinion piece that the author thinks that I somehow missed the point that a person does not have to be a pervert to engage in inappropriate behaviour is not the same as simply restating the defamatory imputation that Mr Rush had engaged in inappropriate behaviour. It is fairly obviously a comment or opinion. Whether that opinion or criticism is fair or based on proper material is not relevant in the present context.

66    This case is relevantly distinguishable from most, if not all, of the recent Australian cases where permanent injunctions restraining republication have been made. With the possible exception of Wagner, in each of those cases it was found that there was a risk or apprehension that the unsuccessful defendant might simply ignore or intentionally disobey the court’s finding and continue to publish the very statements that had been found to be defamatory and unjustified. In some of the cases, there was an overt threat to repeat the defamation.

67    In this case, there is no sound basis for inferring that there is a risk or apprehension that Nationwide will simply ignore or disregard the Court’s findings and will continue to publish articles which are the same or similar to those that have been found to have conveyed the defamatory imputations. There is no suggestion, let alone evidence, that Nationwide is likely to simply republish, in whole or in part, the articles which appeared in the Telegraph on 30 November and 1 December 2017, or any articles similar to them. Any future repetition or recitation of the defamatory imputations will almost certainly occur in the context of articles or opinion pieces concerning the findings in the liability judgment or the appeal from that judgment. It is difficult to imagine any other reason why, or any other context in which, Nationwide would continue to publish articles which conveyed the imputations. For the reasons already given, the repetition of the allegations or imputations in that context, even if accompanied by expressions or disagreement, or criticism of the findings, does not necessarily amount to a repetition or republication of the defamatory imputations.

68    The fact that any future articles or opinion pieces which might be published by Nationwide are likely to refer to the defamatory imputations only in the context of reports or commentary concerning the liability judgment or the appeal from it gives rise to the second critical discretionary consideration: the extent to which the restraint sought by Mr Rush might curtail or interfere with Nationwide’s right of free speech. That consideration will be addressed next. It is, however, necessary to first address the other two substantive points raised by Mr Rush in support of the proposition that there is a risk or apprehension that Nationwide might, if not restrained, republish the defamatory imputations: the fact that Nationwide has not given any express assurance or undertaking that it would not republish the imputations and the contention that Nationwide had acted irrationally and without objectivity throughout the proceedings.

69    As for the first of those matter, it is a relevant and important consideration that Nationwide has not undertaken that it will not republish the imputations, or given any express assurance to that effect. That consideration, however, must be balanced against the fact that there is evidence that, within a few days of the handing down of the liability judgment, Nationwide removed the online versions of the second and third matters complained of from all of the websites within its power. Nationwide also removed from those websites, upon request, a number of other articles that had been published during the course of the proceedings. Nationwide’s actions in that regard suggest that it has no intention of republishing the defamatory articles, even if it has not provided any undertaking not to do so.

70    As for the second matter, Mr Rush contended that Nationwide’s implicit rejection of his settlement offer of $50,000, together with the nature and character of Nationwide’s coverage of its defence of the proceeding in its own publications, revealed a lack of objectivity and a high degree of irrationality in relation to Nationwide’s defence of the proceedings. It is, however, doubtful that the evidence supports that contention.

71    As for the settlement offer, there may have been a number of reasons why Nationwide rejected, or at least failed to respond to, Mr Rush’s initial settlement offer. As Nationwide pointed out, Mr Rush’s initial settlement offer also required Nationwide to publish a prominent apology. It may have been the case that Nationwide was unwilling to publish that apology in the way proposed by Mr Rush. Perhaps more significantly, Nationwide’s rejection of the offer may simply have reflected a high degree of confidence that it could successfully defend the proceedings. The fact that, as events have transpired to date, that confidence may perhaps have been misplaced does not alone demonstrate irrationality or a lack of objectivity.

72    Nationwide’s conduct in its defence of the proceedings, including its coverage of the proceedings in the Telegraph and other publications, is addressed at some length in the liability judgment in the specific context of the findings concerning aggravated damages. It is unnecessary to repeat what was said in the liability judgment in relation to that issue. There is no doubt that Nationwide vigorously and aggressively defended the proceedings as it was perfectly entitled to do. That included making various interlocutory applications which were ultimately resolved against it. That alone does not reveal any irrationality or lack of objectivity even if, as things presently stand, its defence was ultimately unsuccessful. More significantly, Nationwide’s vigorous defence of the proceeding does not provide a sound basis for any inference that, having failed in its defence to date, it will simply ignore or disregard the Court’s findings. Nor does the reasonableness or otherwise of Nationwide’s past coverage of the proceedings.

73    In his submissions, Mr Rush likened Nationwide’s conduct of the proceedings to the conduct of the announcer in Wagner which led Flanagan J to grant a permanent injunction. It is, however, somewhat doubtful that the two cases are relevantly comparable. There could be little doubt that Nationwide continues to believe that the evidence of its witnesses, in particular Ms Norvill, relevantly justified the imputations. There could equally be little doubt that Nationwide disagrees with the findings that were made in the liability judgment concerning the evidence and contends that the Court erred in its assessment of the evidence. That is no doubt, why it has appealed the judgment. It does not follow that there is any real or appreciable risk that Nationwide will simply ignore or disregard the judgment and continue to publish the articles or the imputations in question.

The public interest in the right of free speech

74    It would perhaps be fair to characterise some of Nationwide’s submissions concerning the effect that the permanent injunction sought by Mr Rush would have on its right of free speech as being somewhat alarmist, if not mildly hysterical. It was, for example, asserted that Mr Rush was seeking to “shut down any criticism of the judgment”, that the injunction would have a “chilling effect on future reporting of an issue which is of enormous significance” and that any legitimate comment about the liability judgment would be “criminalised” by the injunction. Those rather extravagant claims are not supported by the evidence and tend to overstate the potential impact of the injunction on its right to publish reports concerning the liability judgment and the proceedings on appeal.

75    It does not follow, however, as Mr Rush effectively submitted, that the public interest in the right of free speech is not a relevant or material consideration in determining whether a permanent injunction should be granted in this case, or that the injunction proposed by him would not have any material impact on Nationwide’s right of free speech. As discussed earlier, there are some cases where the circumstances are such that the public interest in the right of free speech is a relevant consideration in determining whether it is appropriate to grant a permanent injunction. This is such a case. That is because there are reasons to believe that the practical effect of the proposed injunction might well be to materially impinge on Nationwide’s right or freedom to publish reports, articles or opinion pieces concerning the liability judgment, the appeal from that judgment and other issues of public interest arising from these proceedings.

76    It may readily be inferred that Nationwide may at some point in the future wish to, or may have reasonable cause to, publish reports or articles which refer or relate to the liability judgment, most likely in the context of reports concerning the appeal from that judgment. Those articles or reports are likely to include some reference to the defamatory imputations that were found to have been conveyed by the Telegraph articles that were the subject of the liability judgment. Like the reports and articles published by Nationwide shortly after the liability judgment was handed down, the articles that Nationwide may wish to publish in the future may also express disagreement with, or contain criticisms of or opinions about, the liability judgment and the findings made in it. The injunction proposed by Mr Rush would not necessarily preclude Nationwide from publishing such articles. That is because, for the reasons given in detail earlier, articles of that nature are likely to be considered to constitute comment or opinion, as opposed to the mere repetition or a republication of the defamatory imputations.

77    There is, however, some scope for disagreement or uncertainty in that regard. That is because it is not always easy to distinguish between a comment or opinion and a statement of fact. Sometimes a statement which may appear, at first blush, to be an opinion or comment may properly be found, upon close analysis, to amount to a statement of an underlying fact about which the opinion was expressed. The scope for disagreement about such matters is amply demonstrated by the competing submissions that were made by the parties concerning the articles that have already been published by Nationwide in relation to the liability judgment. While the issue concerning the articles published to date has largely been resolved in favour of Nationwide, the scope for disagreement nonetheless creates a degree of uncertainty. If a permanent injunction is granted, that uncertainty may well have a dampening or inhibiting effect on Nationwide’s ability to freely publish articles about the liability judgment and the appeal from it. That is because, even if Nationwide might genuinely believe that an article commenting on the liability judgment or the appeal from it does not constitute a republication of the defamatory imputations, it might nevertheless not be willing to take the risk that the Court might disagree with that assessment, particularly in the light of the seriousness of sanctions that are available and might be imposed for breaching an injunction.

78    Mr Rush appears to have recognised that Nationwide has, and should continue to have, the right to publish fair reports of this proceeding and the appeal proceedings. The form of the injunction proposed by him excises from the relevant restraint any publication of the defamatory imputations that is contained in “a fair report of these proceedings and any appeal from these proceedings”. That excision appears to be intended to replicate the defence in s 29 of the Defamation Act relating to the fair report of proceedings of public concern. Mr Rush also appeared to acknowledge that Nationwide was entitled, within certain limits, to criticise or express opinions about the correctness of the liability judgment. He submitted, however, that that could be done without repeating the defamatory imputations and thereby breaching the proposed injunction.

79    The proposed excision of fair reports from the proposed injunction does not provide a complete answer to the issues that arise in relation to the potential inhibiting effect of the proposed injunction on Nationwide’s ability to freely publish articles or reports about the liability judgment or the appeal. An expression of an opinion about the correctness of a finding in the liability judgment, for example, may well not comprise a fair report of the proceedings and thus may not fall within the proposed “fair report” excision. The proposed injunction also does not excise from the operation of the restraint any republication of the defamatory imputations which might occur in the context of an article containing a comment or opinion about the liability judgment or appeal. Section 31 of the Defamation Act provides a defence to the publication of a defamatory matter if the respondent proves that the matter was an expression of opinion, as opposed to a statement of fact, relating to a matter of public interest and the opinion was based on proper material. The proposed injunction does not include an excision corresponding with s 31 of the Defamation Act, or its common law equivalent. Nationwide accordingly would not be able to raise any such defence in answer to a charge of contempt for breaching the proposed injunction.

80    It is also no answer to this issue to say that Nationwide can criticise or express disagreement with the liability judgment without referring to the defamatory imputations. It is difficult to see how a sensible critique or commentary could be written about the liability judgment without providing appropriate context. That context would include the defamatory imputations which were found to have been conveyed by the relevant articles and the allegations which provided the basis for Nationwide’s unsuccessful justification defence.

81    None of what has just been said should be taken as suggesting that permanent injunctions which restrain the repetition of statements which have been found to be defamatory should generally not be made against a media organisation because they must necessarily amount to an interference with or restriction on the right to free speech. The circumstances of this case are fairly unique. Unlike this case, many defamation cases do not raise significant matters of public interest or concern, or attract the same level of public or media interest, or give rise to the same sorts of issues concerning the right to comment on or criticise the judgment of the court in the defamation proceeding. The public interest in the right of free speech will not always be a relevant or significant consideration weighing against the grant of a permanent in junction in defamation cases. In the particular circumstances of this case, however, the public interest in the right of free speech is a factor which weighs against the making of the injunction proposed by Mr Rush.

82    It should finally be noted that it would be somewhat anomalous if Nationwide’s right to comment on or express opinions about the liability judgment and the appeal from it was effectively inhibited by the granting of a permanent injunction in the form proposed by Mr Rush. That is because this proceeding has been the subject of considerable media attention across the spectrum. Other mainstream media organisations and commentators have published articles and opinion pieces concerning the liability judgment. Nationwide tendered some of those articles on this application. Some of them expressed disagreement with or contained criticisms of the findings in the liability judgment which were similar in some respects to the criticisms contained in the articles which have been published to date by Nationwide.

83    It is again questionable whether it can be concluded that, by criticising or commenting on the judgment, any of the articles published by other media organisations effectively repeated or republished any of the defamatory publications. The point is, however, that even if they did, other media organisations cannot be enjoined from continuing to publish such articles. They may continue to publish such articles even if, by reason of the making of the permanent injunction sought Mr Rush, Nationwide cannot. That also suggests that there is a degree of futility in Mr Rush’s application for a permanent injunction against Nationwide.

84    Mr Rush submitted that there was no anomaly because the other media organisations had not been sued and been found to have published the defamatory imputations. That of course explains why injunctions cannot be sought or made against the other media organisations. It does not, however, assist in explaining why the proposed injunction should be made despite the apparent anomaly.

Other considerations

85    If the injunction proposed by Mr Rush is not made and Nationwide does repeat or republish the defamatory imputations at some point in the future, the only course available to him would be to commence further defamation proceedings. He is not precluded from doing so by s 23 of the Defamation Act. It may be accepted, however, at least for the purposes of this application, that s 23 of the Defamation Act may apply and may require Mr Rush to seek the court’s leave before he commences any further proceedings against Nationwide in relation to any publication of any “matter” which is properly considered to be the same as or “like” the matters the subject of this proceeding. If that turns out to be the case, the need to seek the leave of the court before commencing new proceedings can nevertheless not really be considered to be a particularly burdensome exercise for Mr Rush to undertake. It is also difficult to imagine why the court would refuse to grant Mr Rush leave if the commencing of new proceedings was the only way he could seek redress in respect of any republication of the imputations.

86    It may be accepted that the need to commence further defamation proceedings to remedy any repetition or republication of the defamatory imputations would be burdensome and give rise to some hardship for Mr Rush. By the same token, however, if an injunction in the terms proposed by Mr Rush was made, the enforcement of that injunction by way of contempt proceedings may also be burdensome for Mr Rush. Such proceedings would most likely be anything but straightforward. If, as would likely be the case, the article which allegedly contravened the injunction was an article or opinion piece that commented on or expressed opinions concerning the liability judgment or the appeal, difficult questions would almost inevitably arise about whether the article in fact republished any of the defamatory imputations, or whether the article in any event comprised a fair report of the proceedings or the appeal.

87    It may also be accepted that some of the media coverage to date, including the post-judgment articles published by Nationwide, has largely deprived Mr Rush of the benefits of the vindication of his reputation that ordinarily accompanies a favourable defamation judgment. Unfortunately for Mr Rush, however, that is largely beside the point on the question whether a permanent injunction should be granted against Nationwide. That is because articles which criticise or express adverse opinions about the liability judgment are likely to have that effect whether or not it could be said that they repeat or republish the defamatory imputations. In addition, as has already been pointed out, other media organisations cannot be enjoined in any event.

Conclusion

88    Mr Rush has not demonstrated that it is appropriate, in all the circumstances, to make the permanent injunction sought by him. In particular, he has failed to demonstrate that there is a real or appreciable risk that, if not restrained from doing so, Nationwide will repeat or republish the relevant defamatory imputations.

89    Following the handing down of the liability judgment, Nationwide published articles that expressed disagreement with and criticised the judgment. Properly considered, however, those articles were either reports of the judgment or comprised comment or opinion about it. They did not simply repeat or republish the defamatory imputations. While it is likely that Nationwide will publish similar articles in the future, most likely in the context of the appeal proceedings, it cannot be concluded that any such articles will republish the defamatory imputations. While Nationwide has not given any express assurance or undertaking not to republish the imputations, it has removed the defamatory articles, and a number of other articles, from its websites.

90    The other discretionary consideration which weighs against making a permanent injunction is the public interest in the right of free speech. Nationwide, like any other person, has a right, within limits, to criticise and express disagreement with the liability judgment. There is at least a risk that the injunction sought by Mr Rush might effectively impinge on or restrict that right in a way which is not warranted or justified in all the circumstances.

91    While it may readily be accepted that it would be burdensome for Mr Rush to have to resort to fresh defamation proceedings to remedy any republication of the defamatory imputations, and that he might require the leave of the court to commence or prosecute any such proceedings, that consideration does not outweigh the other factors which weigh against the grant of a permanent injunction.

DISPOSITION

92    Mr Rush’s application for a permanent injunction restraining Nationwide from republishing the defamatory imputations should be dismissed.

93    Neither party submitted that any specific costs order should be made in respect of this application, which but for the position taken by the parties would have been considered and determined as part of the main proceedings. It may, in those circumstances, be appropriate to make no order as to costs. It should also be noted in that regard that the application was heard on the same day as Nationwide and Mr Moran’s unsuccessful application for me to recuse myself from determining the issue of injunctive relief. It would nevertheless be appropriate to allow the parties to file brief written submissions, should they wish to do so, in relation to whether an order for costs should be made. If either of the parties wish to avail themselves of that opportunity, they should put the other party on notice of their position and file their written submissions, not exceeding two pages in length, before 4.00 pm on 30 September 2019. Any issue in relation to costs will be determined on the papers. If no submissions are filed, there will be no order as to costs.

Associate:

Dated:    28 August 2019