MB v SG [2017] NSWSC 1203

Supreme Court New South Wales

Medium Neutral Citation: MB v SG [2017] NSWSC 1203 Hearing dates: 15 June 2017 Decision date: 15 June 2017 Jurisdiction: Common Law Before: McCallum J Decision: Default judgment is entered for the plaintiff against the defendant; Order 2 made by Campbell J on 7 November 2016 continued on a final basis; order 1 made by Davies J on 25 November 2016 is continued on a final basis. Catchwords: DEFAMATION – where Court made interlocutory orders restraining publication of certain material – where defendant filed no defence and claimed no interest in repetition of the defamation – final injunctions granted Cases Cited: Goldsmith v Ghosh [2015] NSWSC 1758 Category: Procedural and other rulings Parties: MB (plaintiff) SG (defendant) Representation: Counsel: B McClintock SC (plaintiff) Defendant self-represented

Solicitors: Rule of Law (plaintiff) File Number(s): 2016/328245 Publication restriction: The names of the parties have been anonymised

Judgment 1. HER HONOUR: These are proceedings for defamation initially commenced by summons filed on 3 November 2016. On that date Harrison J as duty judge abridged the time for service of the summons. The proceedings then came before Campbell J as duty judge. His Honour granted interlocutory injunctions to restrain the publication of the material complained of. 2. The names of the parties have been anonymised. The reason that has occurred is to give effect to the prohibition under s 121 of the Family Law Act 1975 (Cth) against identifying children the subject of proceedings in the Family Court. The plaintiff is a male. The defendant is his ex-wife. The nature of the defamatory publications and the content of the interlocutory orders made by Campbell J need, for the same reasons, to be the subject of non-publication orders and indeed are presently the subject of such orders. The detail of that material is on the court file. 3. The plaintiff contends that, following the granting of the interlocutory injunctions by Campbell J, the defendant has continued to publish the material complained of. On 16 November 2016 the plaintiff filed two notices of motion, one seeking further restraining orders and one being a motion to have the defendant dealt with for contempt of court. There was filed together with the contempt motion a statement of the charge. 4. The contempt motion came before Davies J as duty judge on 23 November 2016. His Honour made further interlocutory orders restraining the publication of further material. There was filed in court that day an affidavit sworn by the defendant in which she acknowledged that she had breached the orders of Campbell J made 7 November 2016 and unreservedly apologised for that breach. She consented on that date to "take-down" orders. 5. The defamation proceedings and the contempt motion were stood into the defamation list to come before me earlier this year. An order was also made that the proceedings continue on pleadings. A statement of claim was filed on 29 November 2016. 6. On the date on which the proceedings were first due to come before me, the defendant was unwell. Orders were made in her absence requiring her to file a defence to the statement of claim within a certain date and the proceedings were stood over to the end of March. The plaintiff alleges that, in the meantime, the defendant published a further publication on Facebook which the plaintiff contends constituted a further breach of the orders of Campbell J. The plaintiff has served and filed a further statement of charge in respect of that allegation. 7. On the adjourned date at the end of March the defendant failed to appear. On that occasion, for abundance of caution, rather than seeking the entry of default judgment immediately, the plaintiff sought an extension of the time within which the defendant might file a defence together with a ruling that, if she failed to file a defence within the additional time allowed, she would be called upon to show cause why judgment should not be entered against her. No defence was filed. Accordingly, the proceedings come before me today for determination of the show cause requirement and to address the future of the defamation proceedings and the two contempt charges. 8. I have today heard from the defendant, who represents herself, as to her position in respect of the defamation proceedings and the failure to file a defence. Following a careful exchange with the defendant, I am satisfied that it is her clear and considered position that she does not seek to defend the defamation action. 9. Specifically, the defendant has informed me that she has no interest in further publishing the allegations addressed in the confidential annexure to this judgment. I have previously taken the view that that is a relevant factor in determining whether to restrain publication: see Goldsmith v Ghosh [2015] NSWSC 1758 at [13]. 10. In those circumstances, the defendant has indicated that she consents today to have each of the interlocutory orders made in the proceedings (that is, the orders of Campbell J of 7 November 2016 and the orders of Davies J of 23 November 2016) made final. Having regard to the highly defamatory nature of the material restrained and in circumstances where the defendant professes no interest in publishing that matter and does not seek to defend its prior publication, I am satisfied that it is appropriate to make orders on a final basis. 11. Mr McClintock SC, who appears for the plaintiff, further submits that, since the defendant does not seek to raise any substantive defence to the defamation action, default judgment should be entered today. I agree. That order will be made. 12. It remains to consider the fate of the contempt motions. The defendant has stated from the Bar Table that she is labouring under a number of difficulties at the moment and has sought to have the hearing of those charges, which she vigorously defends, stood over to early next year. 13. Having regard to the seriousness of the allegations and in particular the seriousness of the imputations the subject of the defamation action I do not think it is appropriate to allow the matter to rest that long. I propose to list the proceedings for hearing on 7 September 2017. 14. The defendant has stated she may not be ready to have the matter heard on that date. I have, however, made it plain that the matter is listed for hearing on that date and that if the defendant anticipates not being able to defend the charges on that date she must make an application either to me or to the list judge or the duty judge to have the fixture vacated. 15. For those reasons I make the following orders: 1. Default judgment is entered for the plaintiff against the defendant. 2. Order 2 made by Campbell J on 7 November 2016 continued on a final basis. 3. Order 1 made by Davies J on 23 November 2016 (attached) continued on a final basis. 4. I fix the contempt motion articulated in the two statements of charge dated 16 November 2016 and 1 May 2017 for hearing on 7 September 2017.