CD v FG

1. [1]

   This case raises the vexed question of the role of the Court in intervening with rights of freedom of speech where the plaintiff, here CD, claims that the defendant, FG, plans to abuse those rights by publishing defamatory statements about him which are untrue.

2. [2]

   The participants in this dispute are two adults who willingly embarked on a sexual relationship with each other in about March 2014 which ended at a time that is a matter of some debate, but was probably early 2016, although the last physical contact was October 2015.

3. [3]

   CD was at the time, and as I understand it, still was at the time of the trial, a married man who normally lives in the [redacted] but travelled internationally for work. FG lives in Australia, was not married and was interested in perhaps transitioning into the area in which CD worked, namely [redacted].

4. [4]

   After the relationship broke up, and there was email and phone contact by FG with CD and CD’s wife, CD sought an AVO in the Local Court in Sydney. These AVO proceedings were terminated with consent orders that included a most unfortunate and breathtakingly wide “gag” order that the “name of CD not be published or broadcast publicly”. These consent orders were imposed by the Local Court in [redacted]. The orders were complied with by FG.

5. [5]

   In [redacted], FG sought a variation of the “gag” order because its width was oppressive and, as she interpreted it, prevented her from speaking at all about her experience, including to her health care professionals. That application and the affidavit filed in support of it, prepared, I suspect, without legal assistance, prompted these proceedings being commenced in October 2018 by Summons.

6. [6]

   First, an interlocutory injunction was sought and, on legal advice, agreed to - also in rather wide terms but as I understand it was done pragmatically to preserve the status quo - and then, eight months later, the hearing before me seeking a final and enforceable ban on FG writing certain defamatory things about CD and their relationship. Both parties were cross-examined and oral and written submissions were made.

7. [7]

   As a jury had not been requested, I had to perform the role of judge and jury in determining, on its merits, the matters raised in the Amended Statement of Claim and Defence and whether the final orders sought should be made.

8. [8]

   After reserving, the decision of Rush v Nationwide News Pty Ltd (No 9) [2019] FCA 1383 dealing with the question of final injunctions was published and I sought submissions from the parties about that decision and the discussion of the authorities within it, which were provided in November and December 2020.

9. [9]

   For the reasons that follow, I have determined that a final injunction should be granted, but given my findings, the terms of the injunction will need some adjustment to ensure that FG is not prevented from discussing, writing and if she so desires, publishing truthful things about CD, including naming him as the person with whom she had an extra-marital (for him) affair.

The wide-ranging relief sought by CD

1. [10]

   On 20 October 2018, CD filed a Summons which sought interlocutory orders that:

   1. (1)

      The defendant by herself, servants and agents be restrained from publishing the following imputations or words conveying such imputations to the same effect:

2. [11]

   The order specifically excluded from its effect FG discussing matters with her treating medical practitioner, her lawyers or the police.

3. [12]

   Part of the interlocutory relief sought included a very wide-ranging suppression order that provided another level of restraint preventing FG from making any reference to CD.

4. [13]

   The order sought pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) was prohibition by publication or otherwise throughout the Commonwealth of:

5. [14]

   On 13 November 2018, Adamson J made the restraining order by consent and the interim suppression order sought pursuant to s 8(1)(a) of the Court Suppression and Non-publication Orders Act until further order of the Court.

6. [15]

   A Statement of Claim was filed on 20 November 2018 seeking a permanent suppression order in the same form and a permanent restraining order preventing FG from publishing any of the imputations, or any imputation to substantially the same effect or words conveying any such imputation or any imputation to substantially the same effect that:

7. [16]

   An Amended Statement of Claim filed on 5 June 2019 modified sub-par (d) to read “The plaintiff filmed the defendant having sex without her consent” and pleaded associated imputations and sought relief to restrain publication of that matter on the basis that it comprised defamation and injurious falsehood.

8. [17]

   The Defence to the Amended Statement of Claim filed on 13 June 2019 pleaded the facts of the alleged sexual assault on [redacted] January 2015, denied that the filming by CD of their sexual intercourse on 11 June 2015 in [redacted] was with FG’s consent, denied the relationship ended in November 2015 - stating it ended in May 2016, denied that the imputations pleaded arise, denied the imputations are defamatory and listed a series of tasks, - mainly emails and phone calls - that FG claims she did at the request of CD that amounted to “employment” of her by him and/or his company.

9. [18]

   Specifically, FG pleaded in par 19:

10. [19]

    Par 28 of the Amended Statement of Claim states:

11. [20]

    Par 19 of the Amended Statement of Claim pleaded the particulars of the imputations, although particular 19(a)(iii) was in effect removed in closing submissions. [1]

12. [21]

    FG denied CD is entitled to the relief claimed and denied that the injurious falsehood claim is made out.

13. [22]

    In terms of statutory defences to the alleged defamation, FG pleaded that the imputations set out in par 19(a)(ii)-(iv) of the Amended Statement of Claim are substantially true, and if defamatory, qualified privilege applies under s 30 of the Defamation Act 2005 (NSW) on the basis that sexual abuse is an important matter of public interest and there is public interest in the discussion of this subject matter.

14. [23]

    A Cross-Claim was filed by FG on 18 June 2019 seeking an order restraining CD from displaying, sending or disclosing a record of he and FG having sexual intercourse (the recording in [redacted] in June 2015) and that it was a breach of confidence to make the recording as that recording was made without her consent. The cross-claim asserted CD showed the recording to his wife in July 2015. On this basis FG also claims equitable compensation, interest and costs.

15. [24]

    In his Defence to the cross-claim, CD denied the recording was without consent and said his wife found the footage in a “deleted items” folder and so denies any breach of confidence.

Background Facts

1. [25]

   In his affidavit of [redacted], CD described himself as a [redacted] year old [redacted] who lives in [redacted] with his wife and their [redacted] children who were at that time aged [redacted] and [redacted].

2. [26]

   He described himself as a [redacted] of “[redacted]”, a company which [redacted]. He has one [redacted] and the company does not have an office in Australia.

3. [27]

   The company presented [redacted] in [redacted] and [redacted] in 2018. Australia is an important market for the company.

4. [28]

   CD stated that he will not [redacted] in Australia because he anticipated that FG “may cause him harm” if he did.

5. [29]

   CD met FG online in October 2013. She was single and he was married. In April 2014 they met in person and they commenced a sexual relationship.

6. [30]

   Over the following years, FG met CD whilst he was on [redacted], “at his personal expense”, at [redacted] 28 April to 5 May 2014, in [redacted] for a two-day business stopover in mid-June 2014, in [redacted] in mid to late September 2014, in [redacted] in January 2015, in early June 2015 in [redacted] and then in [redacted] in early October 2015. Consensual sexual activity continued throughout. His intimate relationship with FG lasted about 18 months and he says ended in around October 2015.

7. [31]

   I interpolate here that in July 2015, CD’s wife found a recording on CD’s phone of CD and FG having sex. This was not mentioned in CD’s initial affidavit but has arisen as an issue as a result of the cross-claim FG filed seeking an order preventing CD from disseminating that recording.

8. [32]

   CD’s wife finding the recording led to a series of WhatsApp messages between CD and FG, including this extract from the many exchanges on 9 July 2015, between 11:49am and 11:56am:

9. [33]

   The affair continued, with CD and FG meeting in [redacted] in October 2015.

10. [34]

    On 18 March 2016, a cheque was drawn on [redacted] for USD$6,000 and sent to FG by CD, to cover airfares and expenses only.

11. [35]

    At the beginning of 2016 CD says that he politely asked FG not to contact him again but she disregarded this request. He took steps to block her calls and emails but she “began using another email address” and set her number to private so she could contact him.

12. [36]

    Between early June 2016 and February 2017, CD says that FG harassed him by continually contacting him as well as contacting his wife and his [redacted]. An email to CD’s [redacted] in January 2017 gave details of their affair and suggested a right to “ask for a public apology… both verbally and in writing” and proposing [redacted] donate [redacted] to various children’s charities for [redacted]. FG also referred to having not been “compensated for the harassment, character assassinations or any of the work” she did “supporting CD throughout this time” but that “he did reimburse me for three of my flights though, thank you. It was a [redacted] cheque, and rightly so”.

13. [37]

    This was followed by an email to CD on 8 February 2017 that also requested a formal public apology and described how she felt about being used by him for sex, that he is a “disgrace to [redacted]” and that he “used his [redacted] to use women for sex and favours”. The email closed with:

14. [38]

    I note there is no accusation of sexual assault and no assertion that FG was actually employed by CD or [redacted] in either of these emails.

15. [39]

    On [redacted], CD filed an application for an AVO in Sydney, supported by a written statement which detailed the contact made by FG between June 2016 and February 2017. The statement deposed to a belief that after announcing [redacted] would [redacted] in Australia in 2017, the harassment by FG “picked up dramatically” and that various emails and public posts intimated that she would expose their affair and that there were other messages that he interpreted as an oblique threat and/or demanding a formal public apology and threatening to “publicly shame him” and that he felt the harassment was escalating and was causing him “fear that she will show up at a [redacted]” and that he felt intimidated and it was causing him mental harm and harm to his relationship with his wife.

16. [40]

    I note the emails and correspondence no doubt formed a reasonable basis for an application for an AVO but would not form a valid basis for a claim in defamation as the material in the emails, on the evidence before me, is substantially true. I should add that some of the emails sent by FG earlier on - July 2015 were in reply to a particularly humiliating, ugly and vicious piece of correspondence from CD’s wife in July 2015 which is also in evidence.

17. [41]

    A final AVO was made in the Local Court of NSW at Sydney by consent and without admissions. The consent orders were signed by the solicitors acting for CD and FG. They contained the following orders:

18. [42]

    In the “Final Order” executed by the Local Court, order 6 of the consent orders became order 11(b). That order should never have been drafted in such wide terms. It should not have been agreed to, it should not have been made and I doubt it was enforceable however it is common ground that FG complied with all of these orders.

19. [43]

    On [redacted] FG filed an application to vary the AVO by the deletion of order 11(b) on the grounds that it is in the interests of justice to do so. The application was served on CD’s solicitors together with a statement which relevantly said the following under the heading “Application to Vary AVO”:

20. [44]

    Appended to the statement was a three-page extract from a website WIFT, Women in Film and Television NSW headed “Advocacy”, stating that the group’s advocacy centres around “the five most important barriers to women’s equality as defined by the Committee for economic development of Australia” and includes workplace culture, lack of female leaders, gender stereotypes, lack of flexible work practices and affordability and accessibility of childcare. The pamphlet goes on to state the “aims and objectives to combat these” as to promote diverse and positive representation of women in screen-based media, to enhance women’s professional development, to ensure equal employment opportunities for women, to promote women’s achievements, to maintain a communications network for women, to raise women’s issues, to speak on behalf of our members and lobby for improvement in the related industries.

21. [45]

    Having read FG’s affidavit in the proceedings, CD “denied wholeheartedly” that he forced her to perform fellatio without her consent while they were in a bath in the [redacted] Hotel on or around [redacted] January 2015.

22. [46]

    He stated that the relationship continued for approximately nine months after that and during that period FG went to [redacted] and [redacted] in June and October respectively, to spend time with him.

23. [47]

    I presume because of the positioning of this assertion in CD’s affidavit that this is somehow said to be relevant to the question of whether CD did or did not force FG to perform fellatio upon him against her will in January 2015 and that I should infer from those circumstances that the allegation is untrue. I do not draw any such inference, but there is other material that will be discussed later in this judgment that leads me to that conclusion.

24. [48]

    Both CD and FG sent many hundreds of WhatsApp messages to each other during the relationship and some of these are appended to CD’s affidavit. He said that this does not contain all the messages sent and received between them, and that around [redacted] January 2015 there was “small talk” between them and “other communications reflecting a consensual relationship”. CD also stated that FG never complained to him that she did not consent to any act of sexual intimacy at any stage during the relationship, until she prepared the statement in support of her application to vary the AVO condition 11(b).

25. [49]

    CD stated that he was “alarmed” that FG claimed that she worked for him when that was not the position. She simply accompanied him [redacted] as “his guest, as someone involved in a consensual relationship neither in any employment capacity nor as a hired independent contractor”. CD said that anything FG did to comment on any work that he was doing or to help promote his work, was done out of friendship and that the first time she alleged that she worked for him was in her [redacted] statement.

26. [50]

    CD stated that FG told him she was employed by the [redacted] in a position related to social media marketing and technical assistance. FG told him that she aspired to be in the film and modelling industry, which is not his industry which is the [redacted] industry and that to his perception, she was “never in any industry that I was involved in or over which I had any influence”.

27. [51]

    CD concluded his affidavit by expressing concern that FG “wants to damage my reputation based on an allegation of sexual assault and that I used my power as her employer to force her to engage in unwanted sexual relations. The allegations that I sexually assaulted her and that she was my employee are entirely false”.

28. [52]

    CD prepared a second affidavit dated [redacted] in which he dealt with some matters raised in FG’s affidavit filed in these proceedings on [redacted].

29. [53]

    CD confirmed that a cheque was drawn on [redacted] in an attempt to shield the transaction from his wife and that he reimbursed the flights out of fear that FG would tell his wife the full extent of the relationship. Reference was made to two emails that FG sent - one to CD’s wife on 17 July 2016 which stated, amongst other things:

30. [54]

    CD denied that he filmed himself and FG having sexual intercourse without obtaining her consent to that filming. He said that during the trip to [redacted] in June 2015, FG proposed that they film themselves having sex and he agreed. He said that during that same trip, they watched the video together as a method of foreplay before engaging in sexual intercourse on at least two occasions. He said that this had also occurred in May 2014 when they were in [redacted], although he did not recall the conversation in which they decided to film themselves but his understanding was that they agreed to do so on that occasion as well.

31. [55]

    In cross-examination CD was adamant that he had never employed FG. He said that he “interacted with her like I would any of my colleagues. If that’s to say I was courteous and professional then sure but it was never a professional employment relationship, ever”.

32. [56]

    He denied that he had ever introduced her to anyone overseas as employed by [redacted]. When asked how he introduced FG to certain people in [redacted], CD said:

33. [57]

    Somewhat confusingly when asked the question of how he introduced FG to [redacted] in [redacted], CD answered: “as a friend and as a colleague, as she was with multiple other people that she encountered on the various trips that we spent together”.

34. [58]

    CD conceded that he did not remember the exact terms he used when he introduced FG to [redacted] in [redacted], but insisted that he had never introduced her as somebody “in his official employment”. CD said that in [redacted] on two occasions FG introduced herself as “working with [redacted] on PR and digital marketing” but that was not correct - she had never worked for him or his company.

35. [59]

    CD described FG as a “fixer” meaning a person who fixes, changes or makes suggestions - “things like that”. He said that at times she would come up with suggestions that he thought were reasonable ideas and other times he didn’t agree with them. He said that he understood that FG had some expertise with the [redacted] but that any work or tasks she did for him were undertaken by her unbidden and that they were simply “suggestions and things that were done to assist in the way to treat someone that you’re in a relationship with, nothing more”. He emphasised more than once that all these tasks were unsolicited.

36. [60]

    The cheque for USD$6,000 sent in March 2016 was explained to be drawn on the [redacted] account to “shield that transaction from my wife” and that it was “for flights and expenses after repeated threats from FG that if I did not do that, she would tell my wife the extent of our affair”. CD said that he reimbursed that money personally to the [redacted]’s business account and that it was drawn on that account because that was the only bank account he had access to that his wife could not access.

37. [61]

    CD was cross-examined regarding the allegation of sexual assault in the form of coerced fellatio at the [redacted] Hotel in late January 2015. He repeatedly denied that he had ever coerced FG into any sexual act, stating that all sex was consensual. He claimed to have a clear memory of the sexual acts he and FG performed on that particular day at the [redacted] Hotel, and that he recalls a circumstance where FG instigated oral sex whilst they were having intercourse in the bath. He denied that he requested oral sex or that he was demanding or used the term “suck me off” or referred to his wife not being a willing participant in oral sex. He disputed FG’s account that the oral intercourse was forced or that she said anything to indicate unwillingness to engage in oral intercourse at that particular point in time.

38. [62]

    In respect of the recording of the sexual intercourse in [redacted], CD said that what the recording shows is FG positioning herself in a chair so that the recording can be taken and that she “chuckled” at the end of the intercourse when CD approached the camera to turn it off. CD’s recollection is that they then took the recording to bed and used it as part of their foreplay.

39. [63]

    Because it was put to CD by counsel for FG that the three-minute recording did not show what CD stated it did in his evidence, both counsel were of the view I needed to review the footage and I did so. I am unable to conclude that the video records any particular physical positioning or attitude that indicates FG was aware that she and CD were being recorded, nor did I hear anything that sounded like a “chuckle” at the end as CD reached towards the phone to switch it off, nor can I see in the film anything that shows that FG must have seen CD reach for the phone and switch it off. This does not mean however, that I can conclude that the filming was done without FG’s consent and I reach no such conclusion.

40. [64]

    FG worked as a [redacted] for the [redacted] full-time for nine years. She took leave from that position when travelling to meet with CD.

41. [65]

    In her affidavit of [redacted], FG refers to the fact that she had, “for many years”, a personal, and what she describes as “professionally (sic) interest and involvement”, in film production. She references her CV in support of that and states that she was involved in a short film as Creative Producer and that she had attended to “creative projects” for [redacted] and other organisations, the specifics of which were not stated. Perhaps relevantly to these assertions, FG describes having completed a “screen producers Australia business essentials” course as well as an Adobe creative suite video editing and post-production course. FG also refers to “numerous acting and film courses from 2004 in London and Sydney” but does not specify what was involved in those courses or who or what organisations conducted any of these courses.

42. [66]

    FG described the relationship with CD as commencing around 30 March 2014 and that she saw it as a “loving and respectful relationship”. She was aware CD was married and stated that he claimed to her that he was unhappily married.

43. [67]

    FG described “running errands” for CD when she was with him, preparing his food and his [redacted], organising food and providing him with massages when he was stiff from [redacted]. FG also said that CD would introduce her as someone employed by [redacted] or employed by CD.

44. [68]

    Under the heading “Employment by the Plaintiff” are listed number of limited instances or events with no substantive description of the tasks or alleged “business activities” or “work” purportedly completed that would or could comprise “employment”:

45. [69]

    Relevantly the affidavit refers to forced sexual activity on or around [redacted] January 2015 which FG described, consistently with what is set out in the statement in [redacted] in support of the application to vary the AVO, as being coerced to perform oral sex when she was kneeling in the bath, that he spoke roughly to her and that she said she did not want to participate and tried to, but was unable to get up, because of the force exerted by CD on her arm. After a few minutes of oral sex, her jaw was sore and so she masturbated CD to orgasm. FG described feeling de-humanised and humiliated by this experience, and that she did not consent to the force that CD exerted on her nor did she consent to performing oral sex on him, nor the act of masturbation (although it is hard to visualise non-consensual manual masturbation). FG also stated that she recalled some bruising on her left upper arm.

46. [70]

    FG said that she returned to the room and that she recalled “not speaking to CD” but that she was afraid to leave or say that she was leaving in view of the aggression CD had demonstrated.

47. [71]

    I have significant reservations in accepting the evidence that FG was “afraid to leave” and I do not accept that forced oral and manual intercourse occurred for reasons that I will explain later in this judgment. I do accept that on reflection much later, and probably after the relationship broke up, FG was upset and felt humiliated by the roughness of CD on this occasion, but I do not accept that she indicated that she did not consent to the oral intercourse or that she was unwilling to complete the intercourse by using her hand(s) to masturbate him to orgasm.

48. [72]

    FG spent the night with CD in his hotel room and the next day did not go back to the hotel in the evening saying, “I’m sorry CD I can’t, I’m tired, I don’t want to see you” and that when he pressed her to visit, she hung up.

49. [73]

    On [redacted] January 2015, FG met with CD and others and took them on a sightseeing tour around Sydney which she said she “felt that …was professionally required” of her. I read that as an acknowledgment of the agreement she made to do this but I do not accept that it was in fact, “professionally required of her”.

50. [74]

    FG said that when asked by CD out of earshot of the others in the group “Why didn’t you come back to the hotel when I asked you to”, she said “Because I didn’t appreciate what happened in the hotel. You can’t treat me like that”. I am unable to conclude that this is true or that this was in fact said.

51. [75]

    FG subsequently spent the Friday and Saturday night following this with CD in his room.

52. [76]

    In respect of the recording made on 11 June 2015 in [redacted] on the phone, FG said that she was shown this by CD and that she said “That’s horrible. Get rid of it” and then on 8 July 2015, when she was contacted by CD and told that CD’s wife had found the video, that she “felt physically sick, felt disgusted and violated as she was unaware she was being videoed” and that she “began to cry and felt deprived of her dignity” and when CD called her back a few minutes later, she berated him including saying “I never allowed you to video me. How could you do this to me?” and that CD responded “she has access to my computer. If I contact you, I will start every message with the letters AAA. Do not respond to any message that starts without that”.

53. [77]

    I interpolate here that the rather prudish tone of FG’s evidence about the recording is very different to the worldly, highly sexualised and knowing tone displayed by her in the hundreds of the WhatsApp exchanges about this and other sexual exploits, I do not accept FG’s evidence that she was “humiliated and disgusted”. I accept that she was concerned about what CD’s wife might do in response to seeing her having sex with her husband.

54. [78]

    FG denied that when she and CD had intercourse at a particular flat in [redacted] in June 2015 on a chair, that she observed a camera or mobile phone anywhere and does not recall CD ever saying that he had videoed them having intercourse together, prior to the discussion on 8 July 2015 about his wife having found the phone. I am simply unable to make a positive finding that FG did not know and did not consent to the filming of this sex act.

55. [79]

    In terms of the AVO proceedings and the consent orders that terminated those proceedings, FG said that she decided to consent to the orders (without admitting the allegations), as she “did not have the financial means to contest the matter”.

56. [80]

    In terms of the application to vary the AVO, FG emphasised that she felt that during what she described as a “three-year relationship with CD”, she was “engaged to undertake both personal assistance duties and other duties including promoting his [redacted] within my network, general networking and assisting and website design and improvements”.

57. [81]

    The evidence simply does not support anything like this level of “engagement”. It is so exaggerated that it is simply untrue. In my view the tasks done were not treated by either FG or CD as employment tasks at all, but were done as part of the affair, done largely, if not entirely, unbidden and were completed in ways and at times that did not involve a great deal of time or effort. Certainly there is no evidence that it interfered with FG’s full time employment at the [redacted], and it seems she took leave for the short intermittent periods she spent with CD overseas.

58. [82]

    FG said that she was always introduced by CD professionally as “someone with whom he was working”, and I accept that occurred at least once, and may have occurred other times and was part of the ruse CD wanted her to adopt to keep his extra-marital affair secret from business contacts and, no doubt, his wife.

59. [83]

    FG described working with CD as “exciting and a great professional opportunity for me, given my interest and experience in the entertainment industry”. She described this as “an experience I would like to talk about to other women within the industry” and that she would like to talk openly to other women who might be tempted into relationships with powerful figures about the possible dangers and compromises they might have to handle”. Again this is over statement and manipulation of the truth of the “employment” relationship. FG added that she did not wish to “speak openly about the relationship with CD other than for that sort of purpose” and “if I am approached and asked questions by people about myself or my life I wish to be able to respond honestly.”

60. [84]

    In response to matters raised in CD’s affidavits FG emphasised that she did communicate that she was not consenting to the oral sex in the bath at the [redacted] Hotel on or around [redacted] January 2015 and that she said “No (CD), why are you speaking to me this way”, “No (CD). Not tonight, not like this”, “What is this”, “Let go of me (CD)” and “I don’t like this”.

61. [85]

    In terms of evidentiary material appended to the affidavit, in addition to FG’s two-page CV is an email from CD dated 17 May 2014 which states “FG thanks so much for all of this, finally had a chance to look over your PDF, much appreciated. Send some thoughts when I have more time, about to leave for [redacted]. I engaged a local photographer for [redacted], he’s good. Yes, please invite [redacted] to [redacted], I think it would be good for him to see it.…”. Also attached are some downloads about “[redacted]” which appear to be extracts from advertising and/or a website design.

62. [86]

    In addition to the material is a statement of a [redacted] who is a founding board member of WIFT Australia. She described the organisation as advocating for the rights of all female-identifying screen industry practitioners through education, lobbying and promotion. She sets out the objectives and states that “following the onset of the “#metoo” movement, countless women have come forth and have narrated their experiences of abuse and sought justice. [Redacted] goes on to say:

63. [87]

    Also appended to FG’s affidavit is a report of a Consultant Psychologist, [redacted], dated 11 October 2018 where he describes that FG’s instructions to him included that the relationship was “physical and allegedly rife with sexual abuse and manipulation” and that the relationship was with a “high-profile personality” and that the “sexual abuse and manipulation culminated ultimately in an alleged sexual assault on or about [redacted] January 2015.” He gives an account of the abuse consistent with what is in the affidavit of FG. He says FG saw the orders made on [redacted] as preventing her from mentioning the individual’s name and this was an impediment to attending a psychologist for treatment because she cannot name the individual, even in the therapeutic context.

64. [88]

    [Redacted] described FG’s symptoms as “escalating”, and that this was compounded by the restrictions that made her unable to engage in therapy and that the order prevents her from discussing particular aspects of the relationship that may lead to the identification of the person, describing this as a “continuation of the exploitation and abuse that she suffered during the course of the relationship”. [Redacted] concluded that he supported the variation of the order that FG was seeking, which would enable her to disclose what happened and by whom and that that will restore some sense of empowerment against a current background of her feeling entirely hopeless regarding her future.

65. [89]

    A further affidavit of FG of 13 June 2019 deposed to conversations FG says that she had with CD about the cheque that was sent to her in March 2016, a response to the account of CD as to what occurred when the two of them had sex in a chair in [redacted] in June 2015, and an explanation of the series of communications in the WhatsApp exchanges on 9 July 2015.

66. [90]

    In relation to the first matter, FG said that she recalled a conversation with CD on or about 3 March 2016 where he said “I’m going to give you a cheque for the work that you have done for me as well as to cover all of the flights and expenses” and that she replied “Thank you that is appreciated” and then he said “you should receive it for your birthday”. On 23 March 2016 FG received a package from CD containing a red baseball cap, assorted confectionery, a birthday card and a cheque for USD$,6000.

67. [91]

    I reject the assertion that CD said the cheque (or any of it) was to cover “work”. I consider it to be overwhelmingly likely that CD made sure he never said any such thing to FG. Her emails in January 2017 to CD’s [redacted] and to CD in February 2017 state the true position: FG did things for CD and felt used by him. Her “employment” or “working with” him was nothing but a lie he wanted told to hide his affair with her and to explain why she, an Australian, turned up at various overseas destinations.

68. [92]

    In respect of CD’s account that he reimbursed the flights out of fear that FG would tell his wife the full extent of the relationship, FG said that she does not recall CD ever saying words to that effect to her.

69. [93]

    I conclude that it does not matter if CD said that to her or not. The fact is that he paid that money to FG as reimbursement for the air fares and expenses and nothing more, and her emails in January and February 2017 to CD and his [redacted], and in July 2016 to CD’s wife where FG refers to that “reimbursement”, are consistent with that being the fact.

70. [94]

    In respect of the recording in [redacted], FG says that CD showed her the recording saying “Have a look at this” and she said “That’s horrible, get rid of it. Why would you do that? Delete it”. She said that she then observed CD press a button on the phone and the video disappeared from the screen and so she believed the video had been deleted.

71. [95]

    I accept that CD did “delete” the recording but his wife found it on or around 9 July 2015 in the “deleted items” file on his phone. I entirely accept CD’s account of this circumstance.

72. [96]

    FG said that she recalled having intercourse with CD on a chair in the flat in [redacted] which was at the invitation of CD, and that at no time during that act did CD say he was recording it and she did not consent to any recording. FG said that when she was told that CD’s wife had possession of the recording when he spoke to her on or around 8 July 2015, she felt “immense panic” and remembered feeling nauseous and felt pressured by CD to attempt to help CD in fear that CD’s wife would distribute the video further.

73. [97]

    FG said that where she said in the WhatsApp exchange “It was a one off” and “my idea to film” and “blame it on me”, she thought that if CD’s wife thought she had produced the video, she would be more forgiving to CD but if she did not, and had the idea that it was his idea to film it, that she would distribute the video further in spite or retribution.

74. [98]

    I have great difficulty accepting any of this evidence from FG. It is inconsistent with the WhatsApp chat between her and CD and inconsistent with common sense. Even if it was not her idea to film, I do not accept that FG did not know about the recording. I accept that she knew about it, but thought it had been successfully deleted, but this proved to be not the case.

75. [99]

    FG says that she received multiple telephone calls from 8 July 2015 for a period of about three months from CD’s wife, and I accept that this is true and that there were nasty and upsetting exchanges between FG and CD’s wife, including an email from CD’s wife dated 12 July 2015 of breathtaking meanness.

76. [100]

    FG said that CD would view pornographic videos on his laptop prior to and during sexual intercourse and that he would ask her to watch the videos with him, but she does not recall ever observing a video of she and CD having intercourse. On one occasion in May 2014 when he attempted to video them, she snatched the phone back from CD.

77. [101]

    I do not need to conclude whether those statements are true or not but I can and I do conclude that the relationship was highly sexually charged and that the exchange of sexually explicit messages was an almost daily feature of the hundreds of WhatsApp messages that are in evidence.

78. [102]

    FG was subjected to a fair but rigorous cross-examination and a number of answers FG gave about significant matters were unsatisfactory, argumentative and deflective.

79. [103]

    The first challenge to her credibility was directed to sworn statements contained in the [redacted] document filed in support of her application for variation of the AVO in which she stated, without qualification, that she had “been employed for three years by (CD)”. When it was put to her that this was patently untrue, FG responded that preparing the document was “an overwhelming process” and the reference to three years was a typographical error and she meant to say “two years”. I found these responses difficult to accept when it was she who had commenced the process of revising the terms of the AVO and she must have understood the importance of accurately stating the length of her “employment”.

80. [104]

    I do accept however that the imposition of the AVO in [redacted] was a difficult process for her, and one in which she seems to have been badly advised in respect of the impossibly wide “gag” order imposed as part of resolution of that matter, and she felt and continued to feel very aggrieved by that “gag” order.

81. [105]

    Whilst FG agreed that she was not paid a salary, she claimed that she had paid tax on the money that was paid to her by CD and that it was included in her 2016 tax return. Once that tax return was produced in response to a call and cross-examination upon it ensued, it became evident that this statement was not borne out by anything in the tax return.

82. [106]

    The answers given on this subject were evasive [2] , and ultimately, in my assessment, demonstrated that her assertion that the “payment” by CD featured in her 2016 tax return was untruthful.

83. [107]

    The evidence FG gave about how she defined the word “employment” appeared to me to be wilfully manipulative and evasive:

84. [108]

    FG agreed that she initially had paid for the airfares for herself to travel to [redacted] and [redacted] in 2014 and [redacted] in October 2015. She said that the trip to [redacted] in 2015 was paid for using frequent flyer points belonging to CD. Despite this outline of airfare expenses, FG insisted that there was still an element in the USD$6000 that was payment for work she did for CD.

85. [109]

    When pressed that things said in the document filed in support of the application for variation of the AVO were not true, FG resorted to stating that she was “terribly sorry” and that she was “very upset at the time” and “very emotional”, rather than answering the content of the questions put to her.

86. [110]

    In terms of her intention to publish and whether what FG said in the emails she had sent to CD and his wife in July 2016 and February 2017 indicated a threat to “make private matters public”, the following exchange occurred:

87. [111]

    It seems to me that the final answer does not amount to any promise or indication that FG will not publish the matters in issue at some point in the future; indeed the emphasis in the previous answer on the negative effect of “suppression” suggests to me that these things are her reality and she does not wish to be “supressed” from speaking about them publicly in whatever form that may take.

88. [112]

    FG was cross-examined about other matters referred to in the statement she filed in support of her application to vary the AVO. I should interpolate here that no objection was taken to the deployment of this document, filed as it was in proceedings in another court, in these proceedings. No Harman [6] objection was taken and no submission made that the document was privileged and could not be used to underpin the submission that this is evidence that FG holds an intention to publish certain defamatory matters that are untrue.

89. [113]

    Other answers given in cross-examination by FG about this document and her involvement of “journalists” are telling:

90. [114]

    These answers suggest to me that rather than indicating a fixed position that she would publish certain things about CD, FG was at that time at least, rather misguidedly, trying to muster a collection of persuasive arguments as to why the Court ought to vary the preposterously wide “gag” order that had been made in those Local Court proceedings. I am not suggesting this in any way excuses the exaggerations and untruths that are contained in that document, however it does provide context. Unfortunately it also indicates that FG is prepared to include untruths in a document put before a Court upon which reliance will be placed to make a legally binding decision.

91. [115]

    FG was cross-examined as to why the two affidavits that were sworn in the proceedings before this Court within a short space of time from each other included in the second account of her conversation with CD about the video she says was taken without her consent, that she also said to him: “Why would you do that? Delete it”.

92. [116]

    I have concluded that rather than it being a later recalled detail as FG suggested, it was an exaggeration of an account of a conversation that may well not have taken place. As was put to FG in cross-examination, there was an intense spate of WhatsApp messages on 9 July 2015 and following, that dealt with the fallout from CD’s wife discovering the recording of CD and FG having sex on a chair in [redacted]. Nowhere in that exchange is there any indication that FG did not know what video was being discussed and nothing that supports that she was “distressed” or “humiliated” about the content of the video. Her answers given in cross-examination regarding this series of events were unsatisfactory and/or unresponsive.

93. [117]

    There was cross-examination about the nature and content of many of the WhatsApp messages between CD and FG in which she discussed (and likely sent) nude photos of herself. The answers she gave regarding these matters [8] were unresponsive and deflecting and in my view, deliberately so. Purporting to feign “innocence”, or that she was perhaps drawing or making “art” and referencing the artist Brett Whiteley in this regard in relation to what was clearly a raunchy, sexually explicit exchange was unhelpful and unconvincing.

94. [118]

    Important context was extracted from those hundreds of WhatApp messages. Counsel for CD put to FG that a series of WhatsApp messages on 19 July 2015 clearly were referencing the oral (and manual) intercourse that FG spoke of that occurred in January 2015 in the bath at the [redacted] Hotel. It was put to FG that what this exchange of messages demonstrated was that, “in effect, (she) participated with enthusiasm in the oral sex in the bath in Sydney at the [redacted] Hotel in January 2015.”

95. [119]

    It is necessary to recount the cross-examination, which includes the detail of what was in each of the WhatsApp messages and FG’s responses to the propositions put to her about them, as it is both the content of the messages and those responses that have contributed significantly to my conclusion that what occurred on that day was in fact consensual intercourse, and FG did not indicate to CD that she was not consenting:

96. [120]

    In my view, at some later date and upon reflection about her grievances about the relationship ending and/or the power dynamics of the relationship whilst still in it, FG revisited this instance of sexual contact and decided that it had made her physically and psychologically uncomfortable because of the dominating way CD had acted as the events of that particular sexual encounter unfolded. I accept CD’s account that it was consensual and that nothing was said to him to the contrary at that time or later, until September 2018.

97. [121]

    The passage of cross-examination that followed is also telling:

98. [122]

    There is nothing in that exchange, or any of the other evidence in the WhatsApp messages from 2015 that support the conclusion that FG was not a willing participant in the oral and manual intercourse that day at the [redacted] Hotel. I accept CD’s account as truthful and his account is borne out by the attitude and content of the WhatsApp messages of both of them about what was clearly that event. In particular, the last answer FG gave is agreement to the proposition that she did not raise with CD that she had not consented to oral sex. It is evidence that she consented and she “did what she was told”.

99. [123]

    In re-examination, the answer given by FG when she was asked to explain what she meant by “a life without suppression”, leads me to the view that there is a real risk of publication of the defamatory material:

100. [124]

     This answer was followed by an agreement to the propositions put to her by her counsel that she had “no intention” to speak to anybody about the sex tape and “no intention” of speaking to anyone about the allegation with respect to CD and the sexual abuse. However what FG said that I have quoted in par 123 and what she said earlier in her cross-examination about this [12] rather undercuts those answers. To conclude that FG “simply wanted to talk about dysfunctional relationships if asked, by a journalist” is I suspect an obfuscation of the full gamut of FG’s plans and intentions in terms of publication of matters involving CD.

101. [125]

     Significantly, FG was given the opportunity to undertake not to publish the assertions that “the plaintiff sexually assaulted the defendant” and “the plaintiff filmed the defendant having sex without her consent” but she refused to give such an undertaking. That position was committed to an open offer (MFI 1) left open until judgment, with each party pay its own costs.

102. [126]

     Whilst the position is a little complicated by the current constellation of interim orders made by Adamson J in 2018, the fact that FG would not undertake not to publish those assertions is a factor that informs my assessment of the current reality of a threat to publish.

103. [127]

     Other evidence given by FG bears on the question of her intention to publish matters about CD, even though the bases of the questions were emails send some years ago. The heading of the email dated 7 February 2017 to CD was “Read the email from your wife and why I will publicly share my story about the affair”. [13] FG was asked:

104. [128]

     FG was cross-examined as to whether she understood that accusing a man of sexual assault was an exceptionally serious allegation. FG responded: [14]

105. [129]

     In the context of being cross-examined as to the truthfulness of her assertion that CD forced her to have oral sex with him in Sydney in January 2015 at the [redacted] Hotel, FG would not accept that many of the WhatsApp messages and emails contained what could be considered to be abuse of CD stating: “I was simply trying to stand up for myself. That’s all”. FG agreed that none of those emails or messages ever accused CD of forcing her to have oral sex against her will and agreed that it was not mentioned in the email she sent to CD’s wife where FG stated: “Please for legal purposes please find and attached an outline document of the truth”. There was nothing in that document about the supposed act of forced oral intercourse. [15]

106. [130]

     In respect of the email in which FG stated “Please don’t return to Australia ignoring these issues. In Australia we publicly shame men like you” she was asked whether that was a threat, and responded:

Factual findings

1. [131]

   Based on the analyses of the evidence set out above I make the following findings.

2. [132]

   I have concluded that CD and/or his company never employed FG in any capacity and that any tasks that she carried out that could ever be considered to be in the nature of work were done of her own volition and as part of her love affair with CD.

3. [133]

   I specifically find that FG was never remunerated for any of those tasks and that the cheque forwarded to her in March 2016 was purely for the reimbursement of flights and her expenses incurred when she travelled overseas to spend time with CD in furtherance of their affair.

4. [134]

   I conclude that in June 2015 whilst in [redacted], a recording was made on CD’s phone of CD and FG having sex. I accept CD’s account that whether FG instigated it or not FG knew the recording was being done and that the recording was used for foreplay as part of their highly sexually charged relationship and sexual activities.

5. [135]

   I accept that CD requested FG to lie about working with or for him and/or [redacted] to cover up the fact that she was present at overseas locations at his invitation in furtherance of the (for him) extra-marital affair. I have concluded that it does not matter whether FG made those representations to people met overseas or whether CD did; the fact is it was a lie concocted for his convenience to cover up the affair as he was a married man and he did not want the affair disclosed.

6. [136]

   I conclude that in July 2015, CD’s wife accidentally found on his phone in the “deleted items” folder the recording of CD and FG having sex the month before in [redacted]. I consider CD’s account of how that came about as plausible and I do not accept that he at any time deliberately showed his wife that recording.

7. [137]

   I am of the view that in January and February 2017, correspondence sent by FG to CD, his [redacted] and CD’s wife indicated an intention to publicly reveal certain aspects of her relationship with CD and her perception of his treatment of her that he used her for sex and was a deceitful and despicable person but that she did not publish any such assertions beyond CD’s wife and [redacted].

8. [138]

   I accept at the time FG sent these emails she was emotionally triggered by the likely arrival of CD to [redacted] in Australia.

9. [139]

   I accept that FG felt embarrassed and disempowered by the AVO process and that the settlement of those proceedings included consent being given and formalised to an inappropriate overly wide “gag” order that should never have been drafted in those terms, should never have been agreed to by FG and may well have been unenforceable.

10. [140]

    I accept that FG complied with the AVO to the letter and I accept that she felt humiliated, disempowered and suppressed by that order - even recognising that she consented to it - and so she felt hampered in her ability to remedy her psychological health and this prompted her to make the application to vary the order in [redacted].

11. [141]

    I consider that the statement FG filed in support of the application had a number of manifest untruths in it, including that she was employed by the defendant and worked for his company for three years and that he sexually assaulted her as described in January 2015. Broader allegations describing the relationship as “abusive” when interpreted broadly as “emotionally abusive” may well be valid and truthful but to the extent that any of that assertion is connected to the allegation of the instance of alleged sexual assault in January 2015 in Sydney, that assertion I find to be untrue.

12. [142]

    I conclude generally that the relationship of CD and FG was an overtly sexual one and the many WhatsApp messages are replete with sexual comments, sexual innuendo and descriptions and reminiscences of sexual activity in which they had engaged. One of those reminiscences described the sexual activity in the bath at the [redacted] hotel in January 2015 and that when described by CD in a specific and pleasurable fashion, FG responded “He he” followed by other positive sexual comments. She did not raise any issue about consent or otherwise in respect of that sexual exchange until [redacted] when attempting to marshal as strong a case as possible to obtain a variation of the “gag” order that had been imposed upon her in the Local Court.

13. [143]

    I specifically do not find that FG has directed malice to CD. She was certainly distressed and a number of her answers in her evidence were telling that she wanted his attention; not to damage his reputation. I accept that this is still the fact. In those circumstances, a key finding that would underpin the alternative claim in injurious falsehood is not made out.

14. [144]

    Given these findings, it is self-evident that the basis for FG’s cross claim must fail and the necessary factual bases for consideration as to whether I should grant the injunctive relief based in defamation, are made out.

Principles

1. [145]

   Section 66 of the Supreme Court Act 1970 (NSW) provides:

2. [146]

   As was said in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at 73 per Gleeson CJ and Crennan J:

3. [147]

   I appreciate that what is before me is not an interlocutory injunction, but I am being asked to intervene to prevent publication in advance of publication of any of the defamatory assertions in question given that the statement in the Local Court in [redacted] and the affidavits in this Court are privileged and so have not been “published”.

4. [148]

   In Rush v Nationwide News Pty Limited (No 9) [2019] FCA 1383 at [7]-[30] Wigney J provided a useful and robust discussion of the authorities dealing with permanent injunctions and the requirement of an apprehension of, in that case, republication:

5. [149]

   His Honour went on to discuss the complexities introduced into the considerations by s 23 of the Defamation Act 2005 (NSW) which requires leave of the Court before further defamation proceedings for damages can be brought about the same subject matter. Those concerns do not apply here as this is not a “defamation proceedings” for damages.

6. [150]

   His Honour also discussed other discretionary considerations:

7. [151]

   I agree with his Honour’s discussion of the relevant principles and considerations I must apply. These comprise:

8. [152]

   Defamation is generally speaking, something said or written by one person about another which negatively affects the reputation of that other person, and that thing said or written is not true.

9. [153]

   Whilst there was some difference in positions between counsel for CD and counsel for FG as to the judicial task entailed in these current proceedings, the way I have approached the proceedings is to determine whether the matters sought to be published arise as imputations from the documents in question, whether they are defamatory and then considered my discretion to grant a (“quia timet”) permanent injunction, bearing in mind the fundamental right to free speech and the other matters and considerations I should bear in mind as set out in the discussion of principles in pars 146 to 151 of this judgment.

10. [154]

    Whilst generally actions commenced in defamation in NSW involve a publication that has already occurred, and proceedings are commenced for damages for defamation with perhaps an interim injunction to suspend the publication, followed by a hearing as to whether the material is in fact defamatory and whether any defences apply (often involving a jury although not always), followed by final orders that may, on occasion include a permanent injunction, in this case I was required to act as the jury, determine whether the imputations referred to were available, whether they were defamatory and whether any of the defences pleaded under the Defamation Act were made out, and then to consider whether there was a risk or threat that they would be published. In that latter context I am required to consider whether I should exercise my discretion under s 66 of the Supreme Court Act to permanently restrain FG from publishing those defamatory matters.

11. [155]

    On behalf of CD it was submitted that the imputations set out in pars 19 and 19A of the Amended Statement of Claim plainly arise from the proposed publications, they are untrue, and so a cause of action in terms of a threatened defamation is made out.

12. [156]

    FG submitted that the statutory defences of justification, qualified privilege and triviality apply and so for that reason, and others set out in the “submissions” part of this judgment, the orders sought should not be made. However, for the reasons above and that follow I have rejected all of those potential defences.

13. [157]

    CD pleaded in the alternative that I ought to restrain the threatened publication(s) on the basis of injurious falsehood. The four elements of that tort were set out by Gummow J in Palmer Bruyn & Parker Pty Limited v Parsons (2001) 208 CLR 388; [2001] HCA 69 at [52]. First, a false statement of or concerning the plaintiffs’ goods or business; second, publication of that statement by the defendant to a third person, third, malice on the part of the defendant; and fourth, proof by the plaintiff of actual damage which may include a general loss of business suffered as a result of the statement.

14. [158]

    The onus is on the plaintiff to prove each of the elements. The “malice” requirement has to be underpinned by the publication being shown to be motivated by an intention to cause harm to the plaintiff.

15. [159]

    I am not satisfied that the necessary elements for injurious falsehood have been established. I am not prepared to find that there was malice and I do not believe damage has been demonstrated. I decline therefore to find this potential tort is a basis upon which to grant the relief sought and so for the purposes of the decision-making, that cause of action can be put to one side.

16. [160]

    In respect of the permanent suppression orders sought, the Court Suppression and Non-publication Orders Act provides a regime and the machinery for orders of that type to be made, premised upon the primary objective of the administration of justice and to safeguard the public interest in open justice: s 6.

17. [161]

    Section 7 provides the power to make orders:

18. [162]

    Section 8 provides the grounds for making the order:

19. [163]

    Section 12 provides that the length of time the order is in place must be specified and should be confined as to duration:

Submissions

1. [164]

   Extensive written submissions were provided by both parties. They have been carefully considered and taken into account, and there is no need to re-state them but I will highlight some key points of each.

2. [165]

   Counsel for FG submitted that I should not assume that the refusal of FG to accept the offer set out in MFI 1 informs the issue of intention to publish, given that the offer still has within it leaving in place a very wide suppression order and restraining orders.

3. [166]

   It was submitted that I should take at face value FG’s statement that she does not want to publish anything about the filming by CD without her consent or the allegation that he sexually assaulted her.

4. [167]

   Third, I only need to decide whether the defence of truth is reasonably arguable when considering whether to grant the quia timet injunction.

5. [168]

   Fourth, there is a lack of precision regarding the asserted imputations because what is likely to be said and the risk that it will be said, has not been established on the evidence. The imputations relied on have not been properly pleaded and they are not concise, precise and material.

6. [169]

   Fifth, I do not need to make a finding that CD knew that FG was not consenting to intercourse in the bath in January 2015, I just have to find whether the defence of substantial truth is reasonable, and in the context of a sexual abuse allegation, the finding would need to be that there is no hope that the allegation would be found to be substantially true.

7. [170]

   Sixth, the defence of qualified privilege is available, particularly where we do not know the nature of the publication and the audience it may be directed to, and therefore the Court should not rule out that qualified privilege may well apply as a defence.

8. [171]

   Seventh, I should read the evidence of FG as indicating only a very confined intent to speak openly about her relationship with CD and the possible damage and compromises that may be caused to young women who enter into affairs with older, powerful men. There is no real intention to say anything about the video of the sexual intercourse between CD and FG and no intention to say anything about the non-consensual oral sex in January 2015.

9. [172]

   Eighth, I should bear in mind that there may potentially be a pleading back of some contextual truths regarding the matters raised and I should bear in mind that the defence of triviality is made out.

10. [173]

    Ninth, the publication will not be widespread such as would be the case of a media organisation. Any publication would be likely limited to Facebook or blogs. This is a matter that should be taken into account on the issue of the discretion as to whether to grant the final restraining orders.

11. [174]

    Tenth, damages would be an adequate remedy because one would really query what damage would be caused to CD, given the very limited extent of potential publicity, particularly given that CD is essentially “nobody” in Australia which is the only relevant place affected by the orders sought.

12. [175]

    Finally, the risk of publication is simply not real or imminent.

13. [176]

    In respect of the injurious falsehood claim, there is no loss and no malice shown and no proof of actual damage and therefore that cause of action must fail.

14. [177]

    In respect of the cross-claim, the video was taken without the knowledge of FG and therefore it was a breach of confidence and she is entitled to an equitable remedy in damages for the actions of CD.

15. [178]

    Counsel for CD submitted that the test for damage in terms of the injurious falsehood claim is simply “reasonable probability of actual damage” to CD. In the context of a quia timet injunction, it is evident that damage has not occurred yet because the publication has been prevented, but the Court can still consider whether the injunction should be granted to avoid that outcome.

16. [179]

    Second, FG has the onus to show that the imputations in question were true and she has not met that onus.

17. [180]

    It is part of the Court’s role in this hearing to adjudicate the defences. The truth defence fails and the defence of qualified privilege cannot arise because there is no subject matter to which the relevant considerations could be applied.

18. [181]

    Intent to publish has been established on the balance of probabilities. When the conduct of FG is examined, comprising the statement provided to a Court in [redacted], the matters raised in the Defence, the nature content and tenor of her evidence at this hearing and her refusal to undertake not to publish the imputations in issue, the Court should infer from those matters considered together that there is the requisite degree of threat or risk that she will publish the defamatory material, and the Court should find that it is reasonably necessary to make the orders sought to address that threat or risk.

19. [182]

    In respect of the injurious falsehood claim, there is enough evidence in the affidavit of CD to show that a sexual assault allegation would probably cause harm to his reputation and thus financial harm to his potential to come to Australia to [redacted] and the like and so there was a probability of financial loss if the falsehoods are published.

Decision

1. [183]

   I have no doubt that the three imputations in question that CD sexually assaulted FG, that CD filmed her having sex without her consent and that CD used his position as her employer to force her to have unwanted sexual relations with him are all imputations available on the statement FG provided to the Local Court in [redacted] and more recently, via the assertions in the Defence and Cross-Claim and her affidavits filed in these proceedings.

2. [184]

   For the reasons I have set out in detail above, I find that each of those assertions are untrue.

3. [185]

   I have no doubt that any of those assertions, if published, are likely to damage CD’s reputation irrevocably and in a way that will not necessarily be addressed by a claim for damages.

4. [186]

   I have carefully considered the important role of the right to free speech and the public interest in that right, as well as the current important public debate regarding the “#metoo” movement where abuse of power by male authority figures, particularly involving younger and or vulnerable female staff, is a matter of significant public concern and interest.

5. [187]

   The difficulty with that last consideration is that I do not consider the facts of what occurred between CD and FG to fall into that category. Indeed I consider the evidence to indicate a consensual, passionate, sexual relationship where FG was truly in love with CD and when the relationship broke down she was devastated and felt used and disempowered. She did not work for him and she was not employed in his industry.

6. [188]

   In my view there is no public interest in this circumstance, and there is certainly no public interest in enabling and/or failing to prevent the threat or risk of publication of defamatory material that I have been able to determine on the evidence presented before me to be untrue.

7. [189]

   Considering the six principles extracted in the analysis carried out by Wigney J in Rush (No 9) and informed by the additional and thoughtful observations of McCallum J in Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351 at [13]-[15], in my view there is a relevant and present threat and risk that FG will publish the defamatory material.

8. [190]

   I have formed that view from a combination of the tenor and content of her evidence at this trial, the document she submitted to the Local Court in [redacted], with the detailed and emotive narrative some of which was patently untrue, her insistence in her evidence that she was “employed” by CD and/or his company in the face of overwhelming evidence to the contrary, and her repeated mantra that she does not want to be “suppressed”.

9. [191]

   Given those matters and FG’s refusal to take the opportunity provided in open Court and on an ongoing basis by the open offer to undertake not to publish those things, I am satisfied that the order is reasonably necessary to address that threat or risk.

10. [192]

    I consider that there is no true hardship to FG in being restrained from publishing things that are untrue, but there is significant potential hardship to the plaintiff if he is required to resort to new proceedings if the defamatory material is published.

11. [193]

    I consider the nature of the defamatory material to be serious and of a type that would affect the reputation of CD, particularly in the public aspect of [redacted]. I acknowledge that he is not a “known personality” in Australia, but there is an appetite for news regarding “#metoo” type matters and this may be a most unfortunate and unfair and untrue basis upon which he may become known.

12. [194]

    It is undesirable to create potential for a multiplicity of actions by not making orders restraining FG from publishing the clearly defamatory material. If I lift the current suppression and injunctive orders, and what follows is that the risk or threat I consider to be present, becomes an actuality, then proceedings may well need to be brought again in this Court, seeking the same relief as well as damages for a published defamation.

13. [195]

    I do consider the public interest in the right to free speech to be a significant matter and I do consider that FG should be able to write about CD, including identifying him by name and discussing those parts of her experience of her relationship with him that she found to be upsetting and disempowering and to comment freely on the personal characteristics of CD that caused her pain and distress but she cannot, and there is no public interest in her being allowed to, publish things that have been determined by this Court to be untrue.

14. [196]

    In all the circumstances I have decided that CD is entitled to appropriate orders by way of injunctive relief.

Orders

1. [197]

   The shape and form of any final order needs to reflect these reasons and the form of the restraining orders. To that end I will order that the parties make submissions as to the appropriate form of injunctive relief and suppression orders, as well as on the question of costs. The parties should bear in mind that going forward there should be a clear path as to what FG can publish and that will include the name of CD and the nature and extent of their affair and her feelings about, it but she cannot say or suggest that:

2. [198]

   I make the following orders:

   1. (1)

      The plaintiff is entitled to appropriate orders by way of injunctive relief.

   2. (2)

      Submissions are to be made with respect to the form of the injunctive relief, suppression orders and the question of costs.

   3. (3)

      The proceedings are listed at 2:30pm on Friday, 9 April 2021 to take submissions on those questions.

   4. (4)

      Any affidavits in support of the form the final orders should take are to be filed and served by Friday, 2 April 2021.