Federal Court of Australia

Campbell v McIntyre (No 2) [2026] FCA 1279

ORDERS

THE COURT ORDERS THAT:

1.    The orders in paragraphs 1 and 2 of the Orders of Justice Derrington dated 21 May 2026 are discharged.

2.    The order in paragraph 1 of the Orders of Justice Derrington dated 30 June 2026 is discharged.

3.    The application for relief sought in paragraphs 2 and 3 of the interlocutory application filed by the respondent on 14 July 2026 (Application) is refused.

4.    The applicant shall pay 80% of the respondent’s costs of and incidental to the Application on the indemnity basis.

5.    The respondent has leave to tax such costs immediately.

6.    The matter be listed for a case management hearing at 10:00 am AEST on 4 September 2026.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This is an interlocutory application by the respondent to these proceedings, Mr Jamie McIntyre, to discharge an interim injunction granted in favour of the applicant, Mr Adrian Campbell, on 21 May 2026. In summary, Mr McIntyre claims that Mr Campbell failed to disclose material particulars during the ex parte application for the injunctive relief, and as such, it should be discharged. Other orders are also sought, namely, to set aside service of the originating application, and to stay the proceedings on the basis that Australia is a clearly inappropriate forum in which to resolve the dispute.

2    For the reasons which follow, though the interim injunction should be discharged, the other relief sought by the application should be dismissed.

Background

3    Mr Campbell and Mr McIntyre formerly operated a joint enterprise which was concerned with the developing and selling of land on the island of Lombok, Indonesia. It appears that the aim of their business was to market the developed land to investors in Australia. However, the pair have since parted ways, apparently by reason of a dispute having arisen between them as to their respective entitlements to shares in a company. Litigation has been commenced in Indonesia in relation to that dispute.

4    The present proceedings appear to be somewhat of a continuation of that existing dispute. In particular, they concern an allegation that Mr McIntyre published defamatory material about Mr Campbell online. The same material is also said to be misleading or deceptive, in contravention of s 18 of the Australian Consumer Law (ACL).

5    Mr Campbell commenced these proceedings by filing an originating application on 8 May 2026. Therein, he sought the following urgent injunctive relief:

1.    Interim and interlocutory injunctions pursuant to s 234 of the Australian Consumer Law, and s 23 of the Federal Court of Australia Act 1976 (Cth):

(a)    requiring the Respondent to remove, take down, and procure the removal and taking down of, the video publication titled “Investor Update for effecting Kinnara clients from Marina Bay City buyout” (Video) from each of the websites truthtube.video and marinabay.city, from any other websites on which the Video is published and from the WhatsApp group “LUX Buy Out of Marina Bay City – The Facts”;

(b)     requiring the Respondent to remove, take down, and procure the removal and taking down of each of the articles listed in Schedule A (Articles) from the websites marinabay.city and businessreviewasia.news and from any other websites on which any of the Articles are published and from the WhatsApp group “LUX Buy Out of Marina Bay City – The Facts”;

(c)     restraining the Respondent, whether by himself, his servants, agents, employees, or any other person acting on his behalf or at his direction, from republishing, including uploading, posting, sharing, transmitting, distributing, making available online, or causing or permitting to remain available online, the Video or any of the Articles or any part of the Video or Articles;

(d)     restraining the Respondent, whether by himself, his servants, agents, employees, or any other person acting on his behalf or at his direction, from publishing, including uploading, posting, sharing, transmitting, distributing, making available online, or causing or permitting to remain available online, any material that conveys, in substance, any of the representations in Schedule B;

6    The application for the urgent injunctive relief was heard ex parte on 21 May 2026. Mr Campbell provided reasons for the urgency of the hearing, which will be considered below.

7    At the hearing, the essence of Mr Campbell’s complaint was that Mr McIntyre had engaged in a disinformation campaign against him following their falling out. It was alleged, and does not appear to be disputed, that Mr McIntyre published several videos and articles containing allegations against Mr Campbell which are, prima facie, very serious. They included allegations of fraud and misconduct, misappropriation of money and other criminal behaviour, and that Mr Campbell was unable to return to Australia due to fear of arrest.

8    Mr Campbell denied those allegations and said that they were defamatory and misleading or deceptive. He submitted further that they were directed at appropriating his customer base and that thereby caused him substantial harm, being a loss of approximately $25,000,000 in contract sales, which was said to be disproportionate to any interest the respondent had in continued publication.

9    In those circumstances, a short-term interim injunction, until 26 June 2026, was granted at the conclusion of the hearing, following the delivery of reasons ex tempore. Those reasons were published on 5 June 2026: Campbell v McIntyre [2026] FCA 708 (Interim Injunction Decision).

10    The interim injunction required Mr McIntyre to remove what Mr Campbell had identified to be the offending publications, and to not re-upload those publications online. Orders were also made that Mr McIntyre be served with the originating application and the orders via email.

11    On 30 June 2026, following a case management hearing at which both parties were present, the operation of the interim injunction was extended to 20 August 2026.

Should the injunction be set aside?

Material non-disclosures

12    The first order sought by Mr McIntyre on this application is that the interim injunction be set aside. He seeks such an order on the basis that Mr Campbell failed to disclose several material matters at the 21 May 2026 hearing.

13    The first matter said not to have been properly disclosed is Mr Campbell’s residence. At the hearing, it was suggested that he is an Australian resident engaged in business in Indonesia. However, it is now apparent that neither Mr McIntyre nor Mr Campbell resides in Australia. The former resides in Indonesia, and the latter in Thailand. That is not insignificant, as the Court was led to believe, wrongly, that it was dealing with a dispute between two Australian residents in relation to overseas business interests.

14    The second matter concerns the question of damage. As mentioned, it was put in the written submissions at the 21 May 2026 hearing that Mr Campbell had lost approximately $25,000,000 in contract sales. However, that is not correct. It is now apparent that those losses have not been incurred by Mr Campbell personally, but rather by companies which he controls or in which he holds an interest. Importantly, those companies are not parties to these proceedings. His failure to disclose to the Court the proper nature of the losses suffered, and his positive submission that they were incurred by him, constituted a significant non-disclosure.

15    The third matter concerns the extent of Mr Campbell’s criminal history. That is in issue in these proceedings to the extent that some of the impugned representations made by Mr McIntyre concern allegations that Mr Campbell had previously been convicted of several offences. At the 21 May 2026 hearing, the extent of Mr Campbell’s criminal history was substantially downplayed. In particular, in his affidavit filed on 11 May 2026, he deposed that:

(a)     I have never been the subject of any criminal prosecution in Australia, for business practices or anything else.

(b)    I have never been convicted for any criminal offence, or “evicted” for offences.

(c)    I was not involved in any case in 2018 or any other time and ordered to pay fines and compensation for $500,000 or any amount of money.

(d)    I am not aware of any “dossier” or complaint having been submitted to the Queensland Office of Fair Trading about me. I am informed by my Australian solicitors at Marino Law, and verily believe, that on their inquiry no such dossier had been received by the Queensland Office of Fair Trading.

16    However, in a subsequent affidavit, filed on 10 August 2026, Mr Campbell corrected that statement. He revealed that, on 17 July 2015, he was convicted in the Southport Magistrates Court of five charges under the ACL, for accepting payment and failing to supply goods or services, in relation to the conduct of his business, “International Solar Solutions”. He was fined $10,000 and ordered to pay restitution in the sum of $18,355.00. He also revealed that, on 12 March 2018, he pleaded guilty to eleven charges under s 151(1)(h) of the ACL of making false or misleading representations, for which he was fined $85,000 and ordered to pay $102,200 in compensation. A conviction was also recorded for those offences. The affidavit further acknowledged that he was convicted for fraud offences in 2012.

17    The non-disclosure of those matters is significant. They were relevant not only to the nature and extent of the harm that might have been suffered by the continued publication of the impugned representations, but also to whether the representations were or were likely to be misleading as to Mr Campbell’s character.

18    The three non-disclosures just described are significant and sufficient to warrant setting aside the interim injunction.

Residual discretion in cases of material non-disclosure?

19    As Counsel for the respondent identified, there is, among the intermediate appellate courts of Australia, a difference of opinion as to whether a failure by an applicant for an interim injunction on an ex parte application to disclose relevant material facts should necessarily lead to the discharge of the injunction so obtained, or whether the court retains a discretion not to disturb the injunction.

20    For present purposes, this Court is bound by the decision of Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd (1988) 20 FCR 540 at 543 (Town & Country). There, the Full Court held that the failure by an applicant to discharge their duty to disclose all relevant matters to the Court in an ex parte application necessitates the discharge of the injunction so granted. In doing so, it invoked the observations of Isaacs J in Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 681 – 682, to the effect that unless the applicant brings forward all facts material to the application, “the implied condition upon which the Court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall”.

21    However, it is worth noting that the Court may, notwithstanding what was said in Town & Country, retain a discretion not to set aside the interim injunction, even in the face of non-disclosure. That was discussed by Stewart J in Element Zero Pty Ltd v Fortescue Ltd [2025] FCA 206 at [14] – [16], and it may be that his Honour is correct in identifying that such a discretion may exist.

22    Nonetheless, in this case, even if the Court retains any discretion, it is not one which would be appropriately exercised, due to the several significant non-disclosures which occurred.

23    Perhaps the most significant non-disclosure was the identity of the entity that suffered the relevant loss, because it went directly to the balance of convenience. Like many interim and interlocutory injunctions, the interim injunction here was granted in order to prevent the continuation of damage said to have been suffered by Mr Campbell: Interim Injunction Decision [18]. That Mr Campbell had, in fact, not personally suffered any relevant loss is a significant matter which would have affected the Court’s assessment of the necessity of the relief sought. Indeed, were the interim injunction to be sought on the basis of the material now before the Court, the analysis would be decidedly different to that which the Court undertook in granting the relief on 21 May 2026.

24    It follows that this is not a case where a discretion, if it exists, would be exercised, because to do so would be to effectively grant a fresh injunction on a different basis. In that respect, it is open to the applicant to apply for such relief. That is not to say there are any grounds for doing so, but if there were, any injunction granted would be wholly different to the one presently in effect and, for that reason, an exercise of discretion in favour of the applicant would be inappropriate.

25    As such, for the foregoing reasons, it is appropriate to discharge the interim injunction previously granted.

Should service be set aside?

26    The second order sought by this application is to set aside service of the originating application on the respondent. That is sought on the basis that service should have been effected in accordance with the domestic law of Indonesia.

27    On the basis of the material before the Court on 21 May 2026, the Court was satisfied that the circumstances of the matter were sufficiently urgent so as to justify service by email of the originating application and the orders made. It was found that the delay involved in effecting proper service in Indonesia would have made service impracticable in the circumstances: Interim Injunction Decision [20]; see also Fisher v Isuzu Motors Ltd [2024] FCA 1109. Though it appears, with the benefit of more fulsome information, that such an order ought not have been made, it nonetheless resulted in Mr McIntyre becoming aware of the proceedings and appointing Australian solicitors to act for him.

28    At a previous case management hearing, Mr Russell, Mr McIntyre’s solicitor, sought leave to appear conditionally for the purposes of contesting jurisdiction and service. That leave was granted in the absence of opposition. However, by this application, Mr McIntyre has gone beyond the constraints of his conditional appearance, by seeking to set aside the interim injunction and thereby contesting the merits of the claim.

29    It is a well-known principle that where a party takes an action inconsistent with its objection to jurisdiction, they are taken to have submitted to the Court’s jurisdiction and are unable to maintain any objection. That is, of course, considered objectively and in context, but ordinarily, where a defendant or respondent seeks relief that is wider than simply setting aside service and orders ancillary to that relief, he, she or it will have waived any jurisdictional objection: City of Swan v McGraw-Hill Companies Inc (2014) 223 FCR 295, 326 [117], citing Laurie v Carroll (1958) 98 CLR 310, 335 – 336. It follows that, in this case, by seeking orders discharging the interim injunction, Mr McIntyre is taken to have waived his objection to the jurisdiction of this Court.

30    It is, therefore, not appropriate to set aside service of the originating application.

Should the proceedings be stayed?

31    The third order sought by this application is that the proceedings be stayed on the basis that this Court is a clearly inappropriate forum.

32    As identified by Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247 – 248, and approved by Mason CJ, Deane, Dawson and Gaudron JJ in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564 – 565, the Court’s power to stay proceedings on inappropriate forum grounds is discretionary and involves a:

…subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression.

33    Importantly, the question for consideration is not whether the Australian forum is an inappropriate forum. Rather, it must be established that the Australian forum is clearly inappropriate. Necessarily, that threshold is rather high, and a party must show good reason as to why the matter should not continue. In that regard, in Henry v Henry (1996) 185 CLR 571 at 587, Dawson, Gaudron, McHugh and Gummow JJ observed that:

In Voth, this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious, in the sense of “productive of serious and unjustified trouble and harassment”.

(Footnotes omitted).

34    In this case, there are a number of relevant factors which require consideration. The first is the fact that the controversy appears to involve people who no longer reside in Australia, and are now in Thailand and Indonesia, where they have been involved in somewhat related litigation. Notwithstanding that the proceedings in Indonesia have been discontinued, the mere fact of their commencement indicates that the wider dispute between the parties rests in Indonesia.

35    On the other hand, Mr Campbell does not seek relief in relation to that contractual dispute in the present proceedings. Rather, relief is sought for defamation and for misleading or deceptive conduct pursuant to the ACL. In that respect, the law to be applied to the dispute is that of Australia, particularly for the ACL claim, as the nuances of those provisions will be unfamiliar to other courts.

36    The place in which the impugned conduct occurred is also a relevant factor. Though the impugned representations were made online, they are taken to have been made in the place in which they are received: Pulido v R S Distributions Pty Ltd (2003) 177 FLR 401, 407 [41]. That gives rise to some difficulties for Mr Campbell, because, as Mr Stewart KC for Mr McIntyre correctly identified, there is no direct evidence presently before the Court that any particular person in Australia downloaded or viewed the material in question. The only available evidence is that of Mr Campbell, which suggests that some Australian investors may have ceased dealing with his companies as a result of the representations, thereby creating losses for his companies. That aside, a question nonetheless arises as to the extent to which Mr Campbell will be able to establish that the representations were published in Australia. That is a significant factor.

37    On the other hand, that is a question which will ultimately be answered by the evidence. For present purposes, the claim made is that the impugned representations were published in Australia. Nonetheless, it is appropriate to take into account the fact that Mr Campbell did not adduce any further evidence as to the publication of the representations in Australia for the purposes of this application, notwithstanding that he was fully aware of it having been made and the orders which it sought.

38    A related factor is the location of witnesses. Mr Stewart KC rightly identified that, presently, there is no evidence of any witness in Australia. Certainly, Mr Campbell and Mr McIntyre are both located overseas, and there is no evidence of any person who viewed the representations in Australia. However, on the other hand, Australian law does not require that an impugned representation be read or seen by anyone, as s 18 of the ACL prohibits conduct which is likely to be misleading or deceptive. As is well known, an applicant in such a case is not required to establish that someone has in fact been misled.

39    Another factor concerns the documents in issue. Mr Stewart KC sought to rely upon the fact that the documents in question in the broader contractual dispute, as well as the impugned videos and articles, were all produced in Indonesia or South-East Asia. However, that is not relevant in the context of the ACL claim, which concerns the viewing of the videos and articles by persons in Australia, and the loss suffered by Mr Campbell as a result. Moreover, though true it is that both parties have lawyers in Indonesia who have been assisting them in the contractual dispute there, both parties also have lawyers in Australia.

40    In the circumstances just described, this case does not rise to the level of establishing that Australia is a clearly inappropriate forum. On the contrary, it is the more appropriate forum for the types of claims being made. Therefore, it is not appropriate to stay the proceedings.

Costs

41    Having regard to the foregoing, it is undoubted that Mr McIntyre has had substantial success on his application. He is entitled to an order in line with the general rule that costs follow the event.

42    Moreover, one might also add that the application was necessitated by the material non-disclosure which occurred in the ex parte hearing for interim injunctive relief. That, of itself, is serious, and warrants an order for indemnity costs in Mr McIntyre’s favour. For the reasons previously given in relation to the duty of full and frank disclosure in the presentation of an ex parte application, the failure to discharge that duty is exceptionally serious, and an order for indemnity costs in relation to an application to set aside the injunction so granted should not be in any way remarkable.

43    Notwithstanding, the application advanced by Mr McIntyre was not so limited. It sought other relief, including an order setting aside service of the originating application, and an order staying the proceedings. However, it is impossible, on this occasion, to identify in any precise way the costs attributable to each aspect of the relief sought. Ultimately, given that Mr Campbell was successful in relation to two of the three forms of relief sought (notwithstanding that Mr McIntyre succeeded on the principal issue in the application), it is appropriate to allow him a small deduction in the costs which he is to pay. Accordingly, the order will be that he pay 80% of Mr McIntyre’s costs of and incidental to this application on the indemnity basis.

44    The severity of the applicant’s conduct in this case also warrants the immediate taxation of costs. It is also unlikely that the issues canvassed on this application will be revisited. Accordingly, it is appropriate to order that the respondent has leave to tax the costs awarded in his favour immediately.

Note

45    These are the amended and revised reasons for judgment given on 20 August 2026. Whilst the reasons given above refine and develop those that were delivered ex tempore, the substance of what was said that day has not been changed nor has any other material change been made.

Associate:    

Dated:    31 August 2026