New South Wales Supreme Court CITATION : Liristis v Malhotra [2009] NSWSC 1234 HEARING DATE(S) : 28 October 2009 JUDGMENT DATE : 28 October 2009 JURISDICTION : Equity JUDGMENT OF : White J EX TEMPORE JUDGMENT DATE : 28 October 2009 DECISION : Application dismissed. CATCHWORDS : DEFAMATION - injunctions - application for removal of defamatory statements from websites and restraining the making of future defamatory statements – application made ex parte – reluctance of courts of equity to restrain publication of defamatory statements – no serious question to be tried that at a final hearing the plaintiff would be entitled to injunctive relief as distinct from damages –application dismissed CASES CITED : Australian Broadcasting Commission v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Plaintiff: Tony Liristis PARTIES : 1st Defendant: Dhruv Malhotra 2nd Defendant: Alfred Health t/as Alfred Group of Hospitals FILE NUMBER(S) : SC 20551/09 COUNSEL : Plaintiff: in person Defendants: ex parte IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST WHITE J Wednesday, 28 October 2009 20551/09 Tony Liristis v Dhruv Malhotra & Anor JUDGMENT 1 HIS HONOUR: This is an application for an order that material on a website referring to the plaintiff be removed forthwith and that the defendants be restrained, (I assume until further order), from making any comments, defamatory statements or other type of record through the defendants' websites, defaming, insulting or causing any mental or emotional harm to the plaintiff. 2 The plaintiff has filed in court this afternoon a statement of claim which refers to "certain material" said to have been published on the internet by the defendants which the plaintiff alleges is "defamatory, untrue, misleading, deceiving, insulting, threatening and causing damage to [him]". 3 So far as I can ascertain from the pleading, the plaintiff's cause of action is in defamation. 4 This application is brought ex parte. 5 I understand that the plaintiff has only recently identified the facts by reason of which he contends that the defendants are responsible for the publication on the internet of the impugned statements. I am told that the statements have been published since about April this year. 6 I see no basis upon which it would be proper to make the orders sought on an ex parte basis without the defendants having the opportunity to be heard. In any event, to justify the grant of an interlocutory injunction it would be necessary for the plaintiff to demonstrate that there is a serious question to be tried that at a final hearing the plaintiff would be entitled to final injunctive relief, that the balance of convenience favours the granting of the injunction and that damages would not be an adequate remedy. 7 In Australian Broadcasting Commission v O'Neill [2006] HCA 46; (2006) 227 CLR 57, the High Court reaffirmed that courts of equity should be reluctant in restraining either by final or interlocutory orders the publication of defamatory statements. The reasons for that reluctance include the public interest in the right of free speech, the fact that defences to a claim of defamation, in particular defences of substantial truth or fair comment, are ordinarily a matter for decision by a jury, and that the general character of the plaintiff may be an important matter in the outcome of the trial and may produce an award of only nominal damages. 8 Thus Callinan J said (at 68): " In the context of a defamation case, the application of those organising principles will require particular attention to the considerations which courts have identified as dictating caution. Foremost among those considerations is the public interest in free speech. A further consideration is that, in the defamation context, the outcome of a trial is especially likely to turn upon issues that are, by hypothesis, unresolved. Where one such issue is justification, it is commonly an issue for jury decision. In addition, the plaintiff's general character may be found to be such that, even if the publication is defamatory, only nominal damages will be awarded. " (See also per Gummow and Hayne JJ at [73]-[83].) 9 I am not satisfied that there is a serious question to be tried that at a final hearing the plaintiff would be entitled to injunctive relief as distinct from damages, having regard to these principles. 10 For these reasons, I refuse the relief sought in the notice of motion. 11 The statement of claim has been filed in court. It has been filed in the Common Law Division and the rules provide for service of a defence after service. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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