Supreme Court New South Wales Medium Neutral Citation: Miller v Overseas Newspaper (No 2) [2018] NSWSC 113 Hearing dates: 2 February 2018 Decision date: 02 February 2018 Jurisdiction: Common Law Before: McCallum J Decision: Orders 1, 2, 3 and 4 made 19 September 2017 revoked; proceedings stood over to 2 March 2018 to afford the plaintiff an opportunity to be heard as to the future of the proceedings. Catchwords: DEFAMATION – interim injunctions granted ex parte – plaintiff subsequently arrested and charged with matters the subject of the restrained publication – charges widely reported by other media outlets – occasion for revoking injunctions Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW), s 8(1)(e) Cases Cited: Miller v Overseas Newspaper [2017] NSWSC 1350 Category: Procedural and other rulings Parties: Gary Miller (a pseudonym) (plaintiff) Overseas Newspaper (a pseudonym) (first defendant) Mathias Loji (second defendant) Alfred Sasako (third defendant) Google Australia Pty Ltd (fourth defendant) Google Inc (fifth defendant) Representation: Counsel: M Richardson (plaintiff) Solicitors: Kalantzis Lawyers (plaintiff) File Number(s): 2017/284635 Publication restriction: Pseudonym orders made Judgment 1. HER HONOUR: These proceedings came before me on 19 September 2017 on the plaintiff's ex parte application for a number of orders including a non-publication order in respect of the plaintiff's identity pursuant to s 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) and injunctions restraining the publication of certain defamatory imputations. My reasons for making the orders sought on that occasion were published in my earlier judgment in Miller v Overseas Newspaper [2017] NSWSC 1350. 2. Importantly, as recorded in that judgment, factors which contributed to my being persuaded to make the orders sought were: 1. that the imputations published by the article sought to be restrained were very serious; 2. that the defendant publisher appeared to have no interest in continuing to publish the allegations, having withdrawn the article and (so it seemed) the newspaper's whole website in response to a concerns notice served by the plaintiff; and 3. the plaintiff's sworn evidence as to the falsity of the imputations. 1. The imputations as recorded in my judgment in short involved allegations of sexual impropriety on the plaintiff's part with young men in his care. 2. Since that application was determined, events have changed dramatically. The plaintiff has been arrested and charged with offences of sexual impropriety involving one man in his care; the solicitor acting for him has gone off the record; the plaintiff has not appeared today; and, following the plaintiff's arrest and the laying of charges against him, those allegations have been widely reported by other media organisations. In those circumstances, the entire premise for the orders I made on 19 September 2017 has disappeared and it is no longer appropriate for these proceedings to be the subject of orders of that kind, nor, indeed, for the injunctions made on an interlocutory basis to continue. For those reasons, I revoke orders 1, 2, 3 and 4 made on 19 September 2017. 3. It is not known whether the plaintiff is presently in custody or at liberty. The appropriate course is to stand the proceedings over for a short period to afford him an opportunity to be heard and, if he is in custody, for a section 77 order to be made to secure his attendance on the next occasion so as to enable him to indicate his intention in respect of the future conduct of the proceedings. I stand the proceedings over to 2 March 2018 before me for that purpose. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 May 2018