FEDERAL COURT OF AUSTRALIA
VID 293 of 2020
Date of judgment:
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.
Federal Court Rules 2011 r 10.24
Trans-Tasman Proceedings Act 2010 (Cth) s 9, s 48
Trans-Tasman Proceedings Act 2010 (NZ) s 32
Chappell v TCN Channel 9 Pty Ltd (1988) 14 NSWLR 153
Dow Jones and Company Inc v Goodnick  HCA 56; 210 CLR 575
Ley v Hamilton (1935) 153 LT 384
Macquarie Bank Ltd v Berg  NSWSC 526
Park (Trustee) v Tschannen (a Bankrupt)  FCA 361
Takapana Pty Ltd v Teco Information Systems Co Ltd (1998) 82 FCR 25; 153 ALR 377
Walker v Pickles  2 NSWLR 281
X v Twitter Inc  NSWC 1300; 95 NSWLR 301
Date of hearing:
8 May 2020
National Practice Area:
Other Federal Jurisdiction
Number of paragraphs:
Counsel for the applicants:
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  the deletion of the word “defamation” from the fifth line.
Cover page, Cases cited field has been amended.
ZOE SUPPORT AUSTRALIA
DATE OF ORDER:
8 May 2020
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 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.
(ex tempore, revised)
1 The applicants have commenced a proceeding in this Court by originating application filed 1 May 2020 by which they seek injunctive relief and damages from the respondent in relation to defamatory publications which they allege the respondent has made and maintains on the internet platform, Facebook. Today, the applicants moved on an urgent application for injunctive relief to restrain the respondent from continuing the publications.
2 The application was heard remotely on the Microsoft Teams platform. The best evidence before the Court is that the respondent currently resides in New Zealand. Last evening, the solicitors for the applicants attempted to give the respondent informal notice of the application and the Teams hearing by sending the documents and the Court’s Teams invitation to an email address which on the evidence has been associated with the respondent. However, an automated response stating that “no delivery notification was sent by the destination server” was received by the applicants’ solicitors. I am not persuaded that the applicants’ attempt to bring this application to the attention of the respondent was successful. Had the respondent responded to the Teams invitation, I would have given consideration to giving her leave to appear remotely pursuant to s 48 of the Trans-Tasman Proceedings Act 2010 (Cth). In the event, I have heard the application ex parte.
3 For the following reasons, I have determined to grant the applicants interim injunctive relief.
4 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.
5 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 –
4.2 The 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.
6 Sworn copies of the affidavits should be filed when the circumstances allow.
7 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.
8 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.
9 Screen shots of the respondent’s Facebook account that were made at 12.40pm on 7 May 2020 disclose that, as at that time –
(1) the respondent’s Facebook account has 7,694 followers;
(2) the first post had received 54 comments, 120 emoji responses and had been shared by 112 other Facebook accounts;
(3) the second post had received 121 comments, 157 emoji responses and had been shared by 221 other Facebook accounts;
(4) the first video had received 315 comments, 249 emoji responses and had received 2,400 views and had been shared by 204 other Facebook accounts; and
(5) the second video had received 350 comments, 272 emoji responses, 1,000 views and had been shared by 76 other Facebook accounts.
10 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.
11 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  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.
12 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.
13 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  (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 - (Gleeson CJ and Crennan J), citing Stocker v McElhinney [No 2]  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  (Gleeson CJ and Crennan J). See also, Gummow and Hayne JJ at - and . 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.
14 On their face, the publications of which the applicants complain are vile, and they are clearly capable of conveying many of the serious imputations that the applicants allege in their statement of claim. I shall not reproduce in this judgment the impugned claims made by the respondent, which the applicants state are false: see, Chappell v TCN Channel 9 Pty Ltd (1988) 14 NSWLR 153 at 156F. No defence with any real prospect of success is readily apparent on the material currently before the Court. The respondent will have an opportunity to point to any arguable defence upon the return of the interim orders. I conclude for present purposes that there is a serious question to be tried.
15 The vile nature of the publications is such that this is one of those exceptional cases where the Court may decide to give the applicants interlocutory relief until trial. On the basis of the screen shots of the Facebook posts, it appears that publication has already been extensive. There is evidence before the Court that the publications have come to the attention of some persons within the City of Mildura. Accepting for the purposes of this application that the defamatory imputations are false, there must be considerable doubt that damages would be an adequate remedy. In Ley v Hamilton (1935) 153 LT 384 at 386, in explaining why damages are awarded at large, Lord Atkin stated –
It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of a false accusation.
16 In this case, given the potency of the allegations that the respondent makes in her online posts, the scandal created may well reach quarters that cannot be known. The prospect that the applicants will be left with only a remedy in damages may do little to assuage the distress that the respondent’s publications will cause to the first and second applicants, and the potential disruption and harm to the benevolent community work that is being undertaken by the third applicant. On the material currently before the Court, this is one of those rare cases where damages may not be an adequate remedy.
17 The next matter to consider is the fact that on the evidence currently before the Court, the respondent resides in New Zealand. A question arises as to whether in that circumstance an interim order made by this Court can be directed to the respondent. I have already explained why I consider that the respondent is amenable to the jurisdiction of the Court. In X v Twitter Inc  NSWSC 1300; 95 NSWLR 301 at -, Pembroke J explained that the question whether an injunction should go to restrain conduct outside Australia goes to discretion, and not to power. However, in truth this is not a case involving conduct entirely outside Australia. The joint judgment in Dow Jones and Company Inc v Gutnick  HCA 56; 210 CLR 575 at - and  confirmed that the tort of defamation focuses on publication causing damage to reputation, and is not complete until there is comprehension of defamatory matter by a reader, listener, or viewer. The place of commission of the tort is therefore the place where the defamatory matter is seen, heard, or read, and thereby comprehended. The injunctions which the applicants seek are to enjoin the commission of torts in Australia.
18 I have also considered the decision of Simpson J in Macquarie Bank Ltd v Berg  NSWSC 526, where her Honour declined to grant an interim injunction in respect of an internet publication by a person who was not present in New South Wales. A principal reason for the refusal of the injunction in that case was that her Honour considered that its effect was to superimpose the laws of New South Wales relating to defamation on every other state, Territory and country of the world. Since that case was decided, the legislation of the States and Territories of Australia have rendered the laws within Australia largely uniform, such that the concerns that her Honour expressed no longer arise in relation to publications within Australia. And in relation to overseas jurisdictions, while her Honour referred to the prospect that the laws of defamation in “the Bahamas, Tazhakistan, or Mongolia” might give a respondent an unfettered right to publish the material, the choice of those jurisdictions was to emphasise her Honour’s point in that case. In this case, the content of the impugned matters directs attention to the States and Territories of Australia as likely places of publication. To the extent that publication might speculatively occur elsewhere, for the time being I am content to act on the common law presumption that the laws of the forum are the same as the laws of the place of the wrong: Walker v Pickles  2 NSWLR 281.
19 Nor do I consider that any perceived difficulties about enforceability are a reason not to make the order. There is evidence that the respondent has lived in Australia, and that she remains on the electoral roll. If, in due course, the orders are not complied with, then it may well be open to the applicants to apply to the New Zealand courts under s 32 of the Trans-Tasman Proceedings Act 2010 (NZ) for interim relief in support of this proceeding.
20 The interim orders that I shall make shall be for a period of 11 days. Should the respondent have any arguable defence to the claims made against her, she will have a proper opportunity to submit to the Court that the injunction should not be continued, or should be discharged. In that way, any legitimate interests the respondent has in publishing this material will be accommodated.
21 The applicants made an application for an order for substituted service of documents in the proceeding on the respondent. Section 9 of the Trans-Tasman Proceedings Act 2010 (Cth) authorises service of an initiating document issued by an Australian court or tribunal in New Zealand. My tentative view is that the terms of s 9(2) of that Act may be sufficiently broad to pick up service of a document as permitted by an order made pursuant to r 10.24 of the Federal Court Rules 2011.
22 However, I am not satisfied on current material that it is appropriate to make an order for substituted service in the manner proposed by the applicants, namely service by email to the address previously associated with the respondent. If the applicants are so advised, an application for substituted service may be renewed upon the return of the interim orders.