Ferguson v Dallow [2020] FCA 1739

Federal Court of Australia

File number:	TAD 31 of 2020

Judgment of:	KERR J

Date of judgment:	2 December 2020

Catchwords:	PRACTICE AND PROCEDURE – claim that online publication of a video contravened the Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) and constituted defamation – ex parte application for urgent interim injunctive relief, including orders permitting proceeding to be conducted under a pseudonym and prohibiting further publication of the relevant video – exceptional circumstances found to exist – orders not made permitting proceeding to be conducted under a pseudonym – other orders sought made on an interim basis until an interlocutory hearing, but confined to terms appropriate to minimise impact on open justice

Legislation:	Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) ss 18, 19, 236 Federal Court of Australia Act 1976 (Cth) s 37AI

Cases cited:	Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618 Bonnard v Perryman [1891] 2 Ch 269 Church of Scientology of California Inc v Readers Digest Services Pty Ltd [1980] 1 NSWLR 344 Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520

Division:	General Division

Registry:	Victoria

National Practice Area:	Commercial and Corporations

Sub-area:	Regulator and Consumer Protection

Number of paragraphs:	31

Date of hearing:	1 and 2 December 2020

Counsel for the Applicant:	Mr C Gunson SC and Ms J Sawyer

Solicitor for the Applicant:	Page Seager

ORDERS

		TAD 31 of 2020

BETWEEN:	MICHAEL DARREL JOSEPH FERGUSON (Previously EYZ20) Applicant
AND:	KANE DALLOW First Respondent GOOGLE INC (ABN 34 118 972 998) Second Respondent

order made by:	KERR J
DATE OF ORDER:	2 december 2020

THE COURT ORDERS THAT:

(1) The Applicant have leave to file an amended Originating Application in his name in these proceedings.

(2) Upon the usual undertaking of the Applicant by his counsel and his further undertaking that by no later than 4:00pm on 8 December 2020 he will file a Statement of Claim and will serve that Statement of Claim on the First Respondent immediately upon the First Respondent providing an address for service, the First Respondent be restrained from publishing, republishing, distributing, disseminating or making available for viewing:

(a) the video entitled “Behind the Classroom Door” (First Video) published on the website www.tasnews24.tv (Website) and on the online platform www.youtube.com (YouTube);

(b) the video entitled “Update Behind the Classroom Door” (Second Video) published on the Website and YouTube; and

for a period of 7 days commencing immediately upon the Applicant’s amended Originating Application, these Orders and the Court’s reasons having been served upon him (the Period).

(3) For the purposes of Order 2, the First Respondent shall remove both the First Video and the Second Video from the Website and YouTube within two hours of these Orders having been served upon him or, if the First Respondent cannot comply in that timeframe after making all reasonable efforts, he must remove both Videos from the Website and YouTube as soon thereafter as he is reasonably able to and ensure that neither can be accessed by such means during the Period.

(4) The First Respondent have liberty to apply on short notice to discharge these Orders.

(5) The Applicant have liberty to apply on short notice for a hearing of his application for interlocutory relief, and leave to apply for orders extending the operation of these Orders pending such a hearing.

(6) Pursuant to r 41.06 of the Federal Court Rules 2011 (Cth), these Orders are endorsed with a penal notice in the following form:

TO: KANE DALLOW
IF YOU (BEING THE PERSON BOUND BY THESE ORDERS):
REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THESE ORDERS FOR THE DOING OF THE ACT; OR
DISOBEY THESE ORDERS BY DOING AN ACT WHICH THESE ORDERS REQUIRE YOU NOT TO DO,
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THESE ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THESE ORDERS MAY BE SIMILARLY PUNISHED.

(7) It is further ordered that:

(a) The Applicant file an affidavit of service within 24 hours of his having effected service of these orders on the First Respondent;

(b) Until further order, the court file in this proceeding not be inspected by any person who is not a party to the proceeding without leave of a Judge of the Court; and

(c) Until the expiry of the Period or further order, the Court’s reasons for making these orders be published only to the parties.

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

REASONS FOR JUDGMENT

KERR J:

1 On Monday 30 November 2020, the Court was advised that an applicant (then unidentified) would be seeking an urgent hearing of an interlocutory application. The nature of that application became evident only late in the afternoon after the Applicant filed an affidavit in support of an application for interlocutory orders seeking, inter-alia, an interim injunction to restrain the prospective First Respondent (who was yet to be served) from publishing, republishing, distributing or making available for viewing a video he was alleged to have published on a website. The Applicant also sought an order that would permit him to commence and conduct this proceeding under a pseudonym. He further sought an order pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) that disclosure of any information tending to reveal his identity otherwise than by reference to that pseudonym be prohibited.

2 In view of the asserted urgency of that application I listed it to be heard, ex parte, on Tuesday 1 December 2020 at 9:00am. I received evidence by way of several affidavits of Mr Brett Cassidy on the basis that those several unsworn affidavits (as received pursuant to the present COVID-19 guidance) would be formally sworn prior to my making any orders. I am satisfied that that has now been done. For the convenience of counsel and to allow consideration of the issues arising, after hearing some preliminary oral submissions advanced by Mr Gunson SC, senior counsel for the Applicant, I adjourned the hearing to resume at 4:15pm that afternoon.

3 I have referred to the interim orders that the Applicant initially was seeking only in general terms. That is because Mr Cassidy subsequently filed a further affidavit in which he deposed that the First Respondent had published a second video containing similar allegedly defamatory content. The Applicant applied to amend his application to accommodate that circumstance. Upon my hearing from Ms Sawyer, junior counsel for the Applicant, early on Wednesday 2 December 2020 I granted leave for that to be done.

4 The Applicant now seeks orders, as amended, as follows:

Claim for ex-parte interlocutory relief

The Applicant also claims interlocutory relief that:

6. The applicant be permitted to conduct this proceeding under the pseudonym “EYZ20”.

7. The applicant have leave to file and serve an amended originating application in which the applicant is referred to as “EYZ20”.

8. Until further order, the first respondent is restrained from publishing, republishing, distributing, disseminating or making available for viewing:

a. the video entitled “Behind the Classroom Door” (First Video) published on the website www.tasnews24.tv (Website) and from the online platform www.youtube.com (YouTube);

b. the video entitled “Update Behind the Classroom Door” (Second Video) published on the Website and from the online platform YouTube.

c. any information or allegations contained in the Video.

9. The first respondent is to remove the First Video and Second Video from the Website. The first respondent must do so within one hour of service of this order or, if the first respondent is unable to do so within that timeframe after making all reasonable efforts, within such prompt timeframe as the first respondent is reasonably able to do.

10. The first respondent must promptly take all reasonable steps to remove the First Video and Second Video from YouTube.

11. For a period expiring on midnight 11 December 2020 (or such further period as may be ordered upon the application of a party), pursuant to s37AI of the Federal Court of Australia Act 1976 (Cth) the publication or other disclosure of:

a. any information tending to reveal the identity of the applicant as a party to these proceedings, and

b. the contents of the affidavits filed in support of this application including the First Video and Second Video and any information or allegations contained in the First Video or Second Video,

is prohibited.

12. That pursuant to r41.06 of the Federal Court Rules 2011 (Cth) this order is to be endorsed with a penal notice in the following form:

PENAL NOTICE
TO: KANE DALLOW
IF YOU (BEING THE PERSON BOUND BY THIS ORDER):
REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR
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.

13. The Court file not be inspected by any person who is not a party to the proceeding without leave of a judge.

14. Such further or other orders as the Court considers appropriate.

5 Two matters require preliminary attention.

6 First, by his Originating Application the Applicant foreshadows filing a Statement of Claim in which he will seek damages under s 236 of the Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth) (ACL)) and, in the alternative, damages for defamation.

7 Mr Gunson SC, appearing for the Applicant, advised the Court that the Applicant’s claim for damages pursuant to the ACL was based on the First Respondent having allegedly undertaken conduct contrary to the provisions of s 18 of the ACL. That claim would rely on the proposition that when maintaining the website upon which the Applicant claims the relevant material was published, the First Respondent was acting in trade and commerce. Given the name that the Second Respondent has used to identify the First Respondent’s website, I draw the inference that that premise is likely to be made good. However, whether or not it is ultimately made good is of no account. A non-colourable claim of that nature is sufficient to engage federal jurisdiction. I am accordingly satisfied that this Court necessarily has jurisdiction in respect of this matter. The matter will remain within federal jurisdiction even if the First Respondent is entitled to plead the provisions of s 19 of the ACL (that he is relevantly an “information provider”) as a complete defence to that aspect of the Applicant’s claim. Such a defence also invokes federal jurisdiction. Once engaged the balance of the Applicant’s claims, including in defamation, will remain within federal jurisdiction.

8 Second, the Applicant did not seek any interim relief before commencing the proceeding as would require the Second Respondent to remove any content that the First Respondent is alleged to have earlier posted on YouTube. That is because YouTube has voluntarily agreed to “geo-block” the relevant content, such that it now cannot be viewed from an Australian based computer. I assume a similar request will be made, and is likely to be similarly responded to, in respect of the second video.

9 The two most important factors that the Court must consider when requested to grant an ex parte interlocutory application to maintain the status quo are:

(a) whether the substantive application when heard would have real prospects of success; and

(b) the balance of convenience as between the parties.

10 As to the first consideration, I proceed on the basis that I am required to apply the principles affirmed by the High Court of Australia in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 (O’Neill). In that case the High Court re-affirmed that those are the principles that had earlier been stated in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618 at 622, when the Court had observed:

… The Court addresses itself in all cases, patent as well as other, to two main inquiries. The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief: Preston v Luck; Challender v Royle. How strong the probability needs to be depends, no doubt, upon the nature of the rights he asserts and the practical consequences likely to flow from the order he seeks …

…

Thus where the defendant goes into evidence on the interlocutory application the Court does not undertake a preliminary trial, and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case. James L.J. explained the general attitude of the Court when he said, in Plimpton v Spiller, in relation to a patent action where there was no outstanding issue as to validity:

“… the Court, not forming an opinion very strongly either one way or the other whether there is an infringement or not, but considering it as a fairly open question to be determined at the hearing, and not to be prejudiced by any observation in the first instance, reserves the question of infringement as one which will have to be tried at the hearing, and which it will then have to consider.”

And he proceeded to discuss what was the best mode of keeping things in statu quo:

“… for that …” - he said – “is what the Court has to do – to keep things in statu quo – until the final decision of the question.”

(Footnotes omitted).

11 Of course, where an ex parte application is brought the position must be as the matter then appears on the materials advanced only by one side and the Court must be astute to limit any compulsive orders to those essential to preserve the status quo and to ensure that they persist only to such time as would allow a defendant/respondent to seek to set them aside upon being heard in opposition.

12 However, an additional hurdle must be overcome in defamation matters. Thus in O’Neill Gummow and Hayne JJ noted at paragraph [86] the profound “issue involved in the policy of the law respecting prior restraint to publication of allegedly defamatory matter”. Their Honours’ observation was not novel. Thus in Church of Scientology of California Inc v Readers Digest Services Pty Ltd [1980] 1 NSWLR 344 Hunt J had earlier noted that it is “settled law that the power to grant interlocutory injunctions in defamation cases must be exercised with great caution, and only in very clear cases”. Notwithstanding the powerful dissent of Heydon J in O’Neill, I proceed on the basis that Hunt J’s observation was and remains both a correct statement of the law and consistent with judicial practice since Bonnard v Perryman [1891] 2 Ch 269 was decided.

13 Of course, this is not a case where publication is sought to be restrained prior to the fact. On the facts alleged before me, the material has been published already both on YouTube and on the First Respondent’s own website. Mr Gunson submits that the status quo to be preserved is that of limiting the publication of the video to only those few who have already accessed it by preventing its wider dissemination: at least pending a contested interlocutory hearing where such defences as the First Respondent might press (or decline to press) could then be made known. I accept that submission.

14 I am satisfied on the affidavit evidence before me that what the First Respondent is alleged to have published (both the video itself and a transcript are in evidence) is, as Mr Gunson described it, grossly defamatory. I am satisfied that the contrary is unarguable.

15 The Applicant holds public office. As Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520 (Lange) establishes, the text and structure of the Constitution operate as a restriction on exercises of legislative and executive power as would unreasonably curtail members of the public receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials: including officials of the Commonwealth and State governments and even local government. There is thus necessarily a defence of qualifed privilege available in respect of such communications. If need be said, I proceed on the basis that - if true - the allegations in the present case would require the conclusion that the Applicant is unfit to continue in the office he currently holds.

16 However, for the purposes of establishing what the status quo is - and the harm potentially to be caused to the Applicant if the status quo is not at least temporarily preserved - his current status as a respected holder of public office is a not insignificant fact. The Applicant, as might be anticipated, denies the truth of what has been published.

17 In the absence of any defences having yet been asserted, and in view of the Applicant’s denial of the truth of that which is alleged against him, I am satisfied that it is uncontentious that it is highly likely that he will be entitled to relief.

18 I am satisfied, at least for the moment, for the reasons that follow that this proceeding lies outside the usual run of matters such that - notwithstanding the great caution that is to be exercised - it is appropriate to make interim orders of limited duration pending a hearing of an application for their continuation after the First Respondent has been served. I am satisfied that the balance of convenience is strongly in favour of that conclusion.

19 That however is only a conditional conclusion, because I accept that I have to date heard only from one side. The position may well take on a quite different appearance once the First Respondent has had an opportunity to be heard.

20 In the facts as they presently appear however, I am satisfied that the Court is justified in making confined interim orders pending a hearing of the Applicant’s interlocutory application. I have reached that conclusion having regard to Annexures BJC12, BJC13 and BJC14 which are exhibits to the Affidavit of Mr Brett Cassidy filed on 30 November 2020 and Annexures BJC3.1, BJC3.2 and BJC3.3 to Mr Cassidy’s further affidavit provided to the Court on 1 December 2020.

21 Those annexures are copies of news articles from mainstream media providers. In those articles, the First Respondent is reported to have been convicted of multiple charges involving dishonesty.

22 Thus for example in BCJ3.1, an Adelaide Advertiser article of 30 April 2015, the First Respondent is reported to have deceived a trusting grandmother and defrauded her of substantial funds. He is reported as having had a long history of deceptive offending dating back 15 years. His offending is reported to have included duping Port Adelaide Star Kane Cornes into being interviewed under the guise of his being a Sky News reporter. His lawyer is reported to have submitted to the Court that his client had a “Walter Mitty perception of the world”.

23 To similar effect, in BCJ12 a Hobart Mercury article dated 6 September 2019 reports that the First Respondent had been sentenced to 12 weeks in custody after having scammed a Sister’s Beach woman out of $5,000.00 by pretending to work for Channel 7. Magistrate Cure is reported to have read out the First Respondent’s numerous prior offences in South Australia, Victoria and Tasmania over the past 20 years: most of which she is reported to have said had “dishonesty attached”. She is also reported to have described the First Respondent as having a “really loose relationship with the truth”.

24 While nothing appears to prohibit a person with a reputation for dishonesty also being an “information provider” within the meaning of s 19 of the ACL, the fact that the First Respondent appears to have at least twice misrepresented himself to be a journalist in the course of defrauding a victim may suggest that the Court should hesitate to take the proposition that he is such a person at face value.

25 There are also references in the articles Mr Cassidy has exhibited to the First Respondent having quite recently made applications for adjournments of criminal proceedings brought against him on the basis that he needed time to secure funds as would permit him to engage a lawyer. Mr Gunson submits that against that circumstance the Court might reasonably be sceptical that an award of damages would be met as would adequately vindicate the Applicant’s rights. I agree that such an inference is plausibly open.

26 I am accordingly prepared to proceed on the basis that the Applicant has established that exceptional circumstances exist as entitle him, on appropriate terms, to orders restraining the First Respondent from further publishing the identified defamatory material: at least until a contested hearing of the Applicant’s interlocutory application can be listed. At such a hearing (or even prior to that on the First Respondent’s application) the Court may be satisfied that no basis for continuation of such a restraint exists. If however the First Respondent yields to the premise that the publication is simply another “Walter Mitty” invention, without such restraint the potential damage to the Applicant’s present good reputation by reason of the repetition of gravely serious allegations is self-evident.

27 However, I decline to make orders mirroring those that the Applicant has proposed. I reject that I should permit these proceedings to continue otherwise than in the Applicant’s name. I permitted the Applicant’s interim application to be listed using a pseudonym. However, having had the opportunity to review the authorities I doubt that I was correct to have done so. In any event I am satisfied that I should not further contemplate the prospect that the Applicant might be able prosecute his case (should it be required to proceed) protected by such anonymisation. Litigation is ordinarily to be conducted consistently with the principles of open justice, and any orders in tension with that principle must be the minimum required.

28 In my view it is sufficient to achieve the Applicant’s interests as he has satisfied the Court require protection that I order, but only until further order, that the file in this proceeding is not to be inspected by any person who is not a party to the proceeding without leave of a Judge of the Court.

29 The orders that I am to make must be the minimum required. I decline for that reason to make an order pursuant to s 37AI of the Federal Court Act prohibiting the publication or other disclosure of any information tending to reveal the identity of the Applicant as a party to these proceedings or any information or allegations contained in the videos. It is uncontentious that there has already been prior publication. While the Applicant understandably would wish to prohibit (as junior counsel submitted on his behalf such an order might be limited to) media organisations from further reporting such allegations, such an order would unduly affect third parties and there is in my opinion no warrant for its making. To do so would trench on the principles that Lange requires be respected.

30 Rather than setting a specific date upon which my interim orders will expire, in my view it is appropriate to identify the short period during which they will operate as being the 7 days commencing upon the First Respondent having been served with notice of them. I will provide for both the First Respondent and the Applicant to have liberty on short notice to apply for any variation.

31 I will accordingly make orders in the following terms: