Interlocutory injunction – defamation claim – freedom of speech…

…practice and procedure

In Russell v S3@Raw Pty Ltd [2023] FCA 305 (5 April 2023), the applicant sought an interlocutory injunction requiring the third respondent to remove various Instagram posts and restraining the first and third respondents from republishing various posts, or posts to the same effect.

The social media posts occurred in circumstances where the applicant and respondents had been negotiating the sale of a business. 

Meagher J summarised the applicable principles governing the Federal Court’s power to grant interlocutory relief (at [28]-[33]).

The applicant must satisfy the court that the organising principles for considering whether to grant an injunction have been met. That is, there is a serious question to be tried, the applicant is likely to suffer injury for which damages will not be an adequate remedy, and the balance of convenience favours the granting of an injunction.

As regards the balance of convenience, this will necessarily involve consideration of the strength of the plaintiff’s claim (at [30]). Meagher J noted, in particular, the approach to be taken in exercising the power to enjoin publication. This power is only to be exercised with great caution and only in very clear cases (at [28]), taking proper account of the public interest in free communication (at [29]).

In the context of defamation cases, as set out by Dixon J in Stocker v McElhinney (No 2) [1961] NSWR 1043, the power to grant an interlocutory injunction will be refused if the publication is ‘merely arguably defamatory’, in recognition of the importance of free speech.

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There may be exceptional circumstances such that injunctive relief may nonetheless be appropriate, including:

• where a defendant’s repeated defamatory publications have “the flavour of a vendetta” (at [32(a)])
• where it is likely a defendant will publish similar allegations in future despite a court’s findings they are unwarranted (at [32(b)])
• where a defendant has demonstrated that it may not respect the findings of the court (at [32(c)])
• where the vehemence of the language indicates the defendant will continue to defame the plaintiff unless restrained (at [32(d)]), or
• where publication causes harassment (at [32]).

Meagher J considered the applicant had demonstrated there is a serious question to be tried, and that the balance of convenience weighs in favour of the applicant (at [34]-[35]).

However, there was no evidence that the first respondent would engage in further publication and her Honour considered the alleged defamation by the third respondent was “merely arguably defamatory” (at [36]). Recognising the importance of free speech, her Honour was not satisfied that the alleged defamation warranted the granting of an interlocutory injunction.

The application was dismissed.

Shanta Martin is a barrister at the Victorian Bar, ph 03 9225 7222 or email shanta.martin@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.