Capilano Honey Ltd v Dowling (No 2)

1. [1]

   BEAZLEY P: I have had the advantage of reading in draft the reasons of Basten JA. I agree with his Honour’s reasons and proposed orders.

2. [2]

   McCOLL JA: I agree with Basten JA’s reasons and the orders his Honour proposes.

3. [3]

   BASTEN JA: On 8 June 2018 the Defamation List judge, McCallum J, vacated suppression orders, take-down orders and interlocutory injunctions made in October 2016 when the substantive proceedings were commenced. [1] The applicants, Capilano Honey Ltd (“Capilano”) and its Chief Executive Officer, Mr Ben McKee, foreshadowed an application for leave to appeal. McCallum J stayed the operation of her orders for a short period, the stay being extended by this Court until the determination of these proceedings. [2] The application for leave to appeal was heard on 19 July 2018.

4. [4]

   The issue can be identified briefly as follows. On 7 October 2016 the corporate applicant, Capilano, commenced proceedings against the respondent, Shane Dowling, alleging publication on the internet of injurious falsehoods against the company; the individual applicant, Mr McKee, commenced proceedings for defamation in relation to the same material and one further article referring specifically to certain comments he had made. Before commencing the proceedings the applicants sought and obtained ex parte interim orders falling into three categories, namely:

5. [5]

   In summary terms, the representations which the respondent was restrained from publishing were to the effect that Capilano “sells toxic and poisonous honey to consumers”, and puts the lives of Australians at risk “by knowingly selling honey that is full of antibiotics, toxins, irradiated pollen from China and alkaloids.”

Leave to appeal

1. [6]

   The substantive proceedings remain on foot but are unresolved; the question is whether the primary judge erred in vacating the non-publication orders, the take-down orders and the interlocutory injunctive relief preventing further publication of the offending material. The orders made by McCallum J were themselves interlocutory; accordingly, the applicants required leave to appeal.

2. [7]

   There are three reasons why a grant of leave is appropriate. First, the application of principles regarding interlocutory relief designed to remove allegedly offending material from the internet whilst substantive claims based on that material are agitated have not been fully worked through in the case law. Secondly, the present case provides a convenient vehicle to address several factors which can arise in such cases, namely, (a) the extent to which the injurious material was already in the public domain; (b) the significance of the refusal of the party the subject of the interlocutory orders to comply with them and (c) the apparent unwillingness of the party which obtained the orders to enforce them. Thirdly, the applicants’ case is more than merely arguable.

3. [8]

   Accordingly, there should be a grant of leave to appeal, but, for the reasons set out below, the appeal should be dismissed. The stay which was granted on 15 June 2018 until the determination of the appeal should be continued for a period 14 days after delivery of this judgment. If, within that period, Capilano or Mr McKee decides to seek special leave to appeal to the High Court, a further application may be made to a judge of this Court for an extension of the stay, in accordance with the practice explained by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1]. [3]

Factual background

1. [9]

   The corporate applicant produces and markets honey in Australia. Its principal brands are “Capilano”, “Allowrie”, “Smith’s” and “Wescobee”. The respondent has established a website with the inauspicious name Kangaroo Court of Australia. On 17 September 2016 the respondent posted an article on his website headed “Australia’s Capilano Honey admit selling toxic and poisonous honey to consumers”. Alongside the heading was a picture of the products as they appear on supermarket shelves headed “Capilano and Allowrie honey”, with a subheading in small print “filled with toxins, antibiotics and Chinese pollen”. Underneath in large capital letters was the word “poison”. The first paragraph of the article read as follows:

2. [10]

   On 6 October 2016 the respondent posted a further article on his website entitled “Sex tape featuring Capilano Honey CEO Ben McKee covered up by directors”. The article contained the following passage:

3. [11]

   The conversation apparently took place in a car whilst Mr McKee was driving. In what appears to have been a vigorous exchange, Mr Mulvany was suggesting that McKee name someone within Capilano with whom he could communicate, “preferably a fucking nice woman”, to which Mr McKee responded:

4. [12]

   Both articles were published on the respondent’s Facebook page with a link to his twitter address. A number of comments by third parties also appeared on the pages, generally expressing concern about the purity of Capilano honey.

5. [13]

   The application for interlocutory relief came before Hall J in the Common Law Division on Friday, 7 October 2016. The judge made an interim order under the Non-publication Orders Act suppressing publication of the hearing of the proceedings on 7 October, an order expressed to continue until the proceedings came back before the Court. In consequential orders, the applicants were directed to serve the respondent by email by 8pm on 7 October 2016 and advise the respondent of the time, place and date of the further hearing and the terms of the orders. The return of the summons was stood over until 10 October 2016 at 3pm.

6. [14]

   Order 2, which was said to be given upon the usual undertaking as to damages, required that “[u]ntil further order of the Court, the [respondent] immediately remove or cause to be removed from [the identified website]” the “Toxic Honey Article” and the “Car Conversation Article”. The articles were identified in an affidavit of the solicitor for the applicants, Richard Keegan, which was required to be served with the orders. The take-down orders extended to the respondent’s Facebook and twitter addresses. The respondent was also required not to publish (a) certain emails sent by him on or about 4 October 2016 to officers of Capilano, (b) the content of the car conversation, and (c) any “representations and imputations, or imputations and representations to similar effect” as those alleged to be made or conveyed by the toxic honey article and the car conversation article. Further suppression orders under the Non-publication Orders Act were made in respect of the pleadings, “any information that comprises evidence, or information about evidence, given in the proceedings” and “any orders of the Court made in these proceedings” (including the suppression order itself). Each of the orders, other than the interim suppression order with respect to the proceedings of 7 October, was described as operating “until further order of the Court”. In substance, the take-down orders operated immediately and with final effect, although the republication could have occurred at any time if the restraining orders had been removed. The purpose of the suppression orders was to prevent republication of the allegations under the guise of reporting the proceedings.

7. [15]

   Curiously, order 6, restraining the respondent from publishing the offending representations and imputations (of which 23 were identified) was in precisely the same terms as order 5, except that it was not expressed to operate “until further order of the Court”. It was therefore in the form of a final order. (More will be said about the form of the orders in due course.)

8. [16]

   On Sunday 9 October 2016, the respondent published a further article on his website, entitled “Capilano take out super-injunction to silence a 2nd journalist re: poisonous and toxic honey.” He also sent an email to the Court’s Registrar noting that he was self-represented and stating that he could not attend at 3pm on the Monday, because he would be at work. He decried the unreasonably short notice, stating that one of the articles complained of had been published on 17 September 2016.

9. [17]

   The matter came before Davies J on 10 October, at which stage the applicants were granted leave to file a notice of motion and supporting affidavit, seeking orders that the respondent remove the 9 October article and be restrained from republishing it. The judge extended the first order made by Hall J on 7 October to operate “until further order” (order 3 of 10 October). (No similar order was made with respect to the hearing on 10 October.) The applicants were given leave to file the motion and the judge made the orders sought with respect to the 9 October article “and any subsequent comments published by [the respondent] on that publication”. No order was made preventing publication of the proceedings on 10 October.

10. [18]

    No reasons were published for the orders made on 7 October, but reasons were given for the orders made on 10 October 2016. [4]

11. [19]

    Davies J stated:

12. [20]

    Although the proceedings on 10 October were not adjourned and proceeded ex parte, the parties were given liberty to apply on two days’ notice. The judge said that the respondent appeared to be “guilty of contempt of court in failing to take down the articles and by the further publication” and referred the matter to the Registrar. [5]

13. [21]

    There are some curious aspects of the proceedings described above. First, and somewhat unfortunately, there was no reasoned judgment available to this Court explaining why the orders were made on 7 October, or why they took the form that they did. For reasons which will be discussed further below, the courts approach the issue of interlocutory injunctions in defamation proceedings with caution. Although Capilano submitted in this Court that the proceedings it brought were for injurious falsehood, rather than defamation, a similar concern arises with respect to the intrusion upon freedom of speech with respect to a matter of potential public interest. (While the car conversation article appears to be a matter of no interest, the same cannot be said of the toxic honey article.)

14. [22]

    Whether Hall J gave reasons is unclear. The transcript of the hearing on 7 October 2016 contains a notation, towards the end of the hearing, in a standard form, namely “For His Honour’s judgment see separate transcript.” [6] The notation appears shortly after the judge had noted the time as being “just after 5pm”. [7] A copy of the Associate’s record of the proceedings gave no further assistance; there was no affidavit from the solicitor for the applicant which took the matter any further. It seems likely that reasons were given, but are no longer available.

15. [23]

    The second curiosity arose from the form of the orders. It is apparent from the transcript that the judge was acutely conscious of the distinction between an interim suppression order and an interlocutory injunction. He was also conscious of the principles governing interlocutory injunctions in defamation proceedings, as appears from an earlier judgment involving the respondent in other proceedings. [8] The form of the orders in fact made (including order 6 in final terms) was almost certainly a product of the haste with which the matter was prepared, presented and determined. As just noted, the proceeding was not completed until after 5pm on Friday afternoon and must have commenced late in the afternoon. Counsel did not have a copy of the summons on which he sought to rely when submissions commenced; [9] it appears that the judge was first taken to the summons halfway through the hearing. [10] Later the judge inquired as to whether counsel had short minutes and was told, “[t]hey are also on their way.” [11] Draft orders were eventually supplied. [12] Nothing said thereafter adverted to the fact that, with the exception of order 1 which had been made, the orders were in the form of interlocutory injunctive relief, or final relief. The Associate’s record stated: “interlocutory relief contained in paragraphs (2) - (6) of the summons granted”. It may be inferred from this record and the transcript that little attention was given to the drafting of the orders, or indeed to the assumed urgency.

16. [24]

    The third curiosity is that, despite the parties being given liberty to apply by Davies J, the respondent made no attempt to have the matter relisted until five months later (March 2017) when he was appearing before McCallum J in other proceedings. On 12 May 2017 McCallum J gave directions with respect to what was then a foreshadowed application by the respondent to strike out the proceedings for want of prosecution. In accordance with those directions, the respondent gave an outline of his submissions to the applicants, on 8 June 2017. The strike out application may have been effectively thwarted by the applicants filing a statement of claim on 15 May 2017, which was served on the respondent two days later.

17. [25]

    On 15 June 2017 the parties agreed to exchange submissions in relation to the strike out application and directions were given in that regard. Submissions were filed and exchanged in accordance with the directions, the final submissions being provided on 6 August 2017. The respondent raised the question of a discharge of the interlocutory orders, but the applicants declined to engage on the basis that no directions had been given in relation to any such application. The matter was then treated as reserved on the respondent’s strike out application. Somewhat belatedly, in February 2018, the judge sought to fix the matter for hearing; there were further delays while the judge dealt with a recusal application.

18. [26]

    On 8 June 2018 McCallum J made the orders now under appeal revoking the interim and interlocutory orders made by Hall J and Davies J. Reasons were delivered on 12 June 2018.

19. [27]

    The respondent did not comply with any of the take-down orders before they were revoked by McCallum J.

Issues on Capilano’s appeal

1. [28]

   A draft amended notice of appeal (contained in the white folder filed on 6 July 2018) identified 18 grounds of challenge to the judgment below. The draft grounds did not distinguish between those relevant to the corporate applicant and those relevant to the individual applicant, although the primary judge had addressed the issues separately. In the applicants’ written submissions, half the grounds were not specifically addressed and other grounds were addressed in an order which differed from the draft notice of appeal. Accordingly, rather than list the grounds, it is convenient to deal with them in an orderly manner, as they naturally arise.

2. [29]

   The applicants sought to characterise the respondent’s application to discharge the interlocutory orders as an impermissible attempt to relitigate a ruling, albeit an interlocutory ruling, which had been unsuccessfully resisted on an earlier occasion. Such re-agitation, the submission continued, is only permissible where there has been a change in circumstances; far from there being any relevant change in circumstances which could be relied upon by the respondent, he had simply failed to comply with aspects of the interlocutory orders. The applicants sought to derive support for that position from the reasoning of McLelland J in Brimaud v Honeysett Instant Print Pty Ltd [13] and of this Court in Liu v The Age Company Ltd. [14] The applicants asserted that the primary judge had misunderstood and misapplied this Court’s decision in Liu (ground (k)).

3. [30]

   This submission ran into an immediate difficulty in that the respondent had not had an opportunity to resist the ex parte orders made on October 7 and, further, asserted that he had not had a reasonable opportunity to attend the further hearing before the duty judge on October 10. Even if he had had such an opportunity, it is one thing to mount an unsuccessful resistance, it is quite another to miss an opportunity to do so. In one case there is a contested hearing; in the other there is not. Further, it was arguable that the discharge application before McCallum J was no more than an exercise of the liberty to apply reserved by Davies J on 10 October 2016. It was therefore tolerably clear that nothing said in Brimaud, or indeed in Liu, provided any answer to the discharge application.

4. [31]

   In so far as the principles discussed in those cases had operation, the applicants’ submissions ran into further difficulties. First, the statement of principle by McLelland J did not rule out a second application, but rather rejected the proposition that there was “no limit” to relitigating an interlocutory application or order at will. [15] Further, he acknowledged that the overriding principle is that “the court should do whatever the interests of justice require in the particular circumstances of the case.” Precisely the same point was made in Liu. [16]

5. [32]

   Secondly, McLelland J stated: [17]

6. [33]

   The primary judge stated, in a passage with which the applicants took issue:

7. [34]

   This finding was said to be erroneous: ground (l). The challenge should not be accepted for two reasons. First, while Davies J expressed some surprise as to the form of the orders and wondered whether interlocutory relief had been intended, he made no order varying the form of the relief, or directing its continuation. Indeed, had he thought such a step necessary, he would have needed to consider an adjournment to allow the respondent to be heard in opposition. Secondly, the erroneous form of the orders simply reflected the language in the summons (and apparently the short minutes) handed up at the hearing before Hall J.

8. [35]

   Perhaps noting that Davies J had given liberty to apply on short notice, the applicants “relied on the fact that the respondent, having declined to appear on 10 October 2016, took no step to relist the proceedings shortly thereafter to seek a contest hearing.” [18] Because the written submissions did not expressly address ground 2(l), it is unclear whether that proposition was merely a statement of a submission made before McCallum J, or whether it was relied on in this Court. If relied upon in this Court, it took the matter no further. The respondent was not required to exercise the liberty to apply within a specified time frame; nor did the applicants rely on his disobedience of the ex parte orders as in some way revoking his right to challenge them.

9. [36]

   It follows that there was no error in the primary judge approaching the matter as a first contested hearing of the question whether the interlocutory orders should have been made.

10. [37]

    The amended draft notice of appeal raised two additional grounds which may be considered together. The first concerned an allegation of procedural unfairness (ground (o)), the second the inadequacy of reasons: ground (p). The claim of procedural unfairness appeared to be related to a separate ground challenging the admission into evidence of two Today Tonight segments, said to have been broadcast on Channel 7 in 2007 and 2011: ground (f). These segments contained reported allegations of impurities and toxins in honey marketed by Capilano.

11. [38]

    There was a debate about the admissibility of that material. There was a dispute as to the dates on which they went to air, and as to whether they were still available on the Channel 7 website. The respondent stated (without evidence) that they were first aired in 2007 and 2011 respectively and remained available on the Channel 7 website. The applicants accepted that one of them went to air in 2007 but claimed that the other went to air in 2003, on instructions, but again without evidence. [19] Counsel for the applicants accepted that the 2007 video was available at the date of the hearing, but was not in a position to test the availability of the earlier video. [20] It appears that this was the element of unfairness of which the applicants complained.

12. [39]

    The judge pressed counsel to identify whether he maintained an objection, if the videos were publicly available. Counsel submitted they were not relevant: [21]

13. [40]

    To the extent that the procedural unfairness submission related to the lack of opportunity for the applicants to establish the provenance of the video clips from Today Tonight, the complaint must be judged by reference to the currently available material. On an appeal by way of rehearing an appellant should be in a position to demonstrate that any potential unfairness was in fact realised. Since the hearing before McCallum J the applicants have had ample opportunity to present evidence to demonstrate that the situation in fact differed from that accepted by her on the basis of the limited challenge to the material. No evidence was presented to that end.

14. [41]

    The same reasoning applies with respect to the complaint that McCallum J provided inadequate reasons for her decision. If the reasons provided addressed an issue, it is open to the unsuccessful party to challenge the reasoning on appeal. If they did not address an issue, it is open to the unsuccessful party to contend that the matter was not considered by the trial judge and, if materiality is established, the omission demonstrates error on that basis. The reasons given are the judge’s actual reasons for deciding a point. Usually the appeal court can address the substance of the matter and will not remit because the reasons were “inadequate”. (In any event, no submissions were directed to the ground alleging inadequate reasons.)

15. [42]

    The relevance of the Today Tonight video clips will be considered below. On the challenges based on procedural unfairness and inadmissibility, subject to the question of relevance, grounds (f), (o) and (p) are rejected.

16. [43]

    The power of the court to grant interlocutory injunctive relief in appropriate circumstances is not in doubt. It may, sufficiently for present purposes, be found in s 66 of the Supreme Court Act 1970 (NSW), which empowers the court to “restrain any threatened or apprehended breach of contract or other injury.” That language is apt to cover loss or injury suffered as a result of a further or continuing breach of a right protected by law, including a statutory or equitable right. The criterion to be applied, identified in s 66(4), is merely that the grant of relief would be “just or convenient”. In any event, the question in the present case did not turn upon power, but on the proper exercise of the Court’s discretion. The relevant grounds were as follows:

17. [44]

    Given that what was in issue was the formation of an evaluative judgment in relation to a discretionary power, it is unhelpful to state a supposed error in such vague terms. First, it is necessary to identify what may properly be taken into account, then to consider the factual basis for such concerns and, finally, the way in which they should be addressed in balancing the respective interests of the competing parties.

18. [45]

    Dealing first with ground (e), the offending paragraph in the judgment below, namely [57], was not concerned with defamatory statements, but only with the injunction sought to protect Capilano with respect to the alleged injurious falsehoods. The complaint in that respect is, it would appear, the same as that identified in ground (d)(i), namely taking into account considerations of free speech in respect of the claim in injurious falsehood.

19. [46]

    The written submissions identified the debate about trade regulation and health and safety regulation as an irrelevant consideration, as was the freedom of the respondent to participate in discussion of the related Mulvany proceedings. The consideration was irrelevant, it may be inferred, in the sense that it could not properly have played any part in the determination of whether or not to grant an injunction. That was said to be for two reasons, namely “because it (a) did not address any of the elements of the tort of injurious falsehood … and (b) it overlooked High Court authority which recognises that the restraint exercised in the grant of injunctive relief in defamation cases does not apply in cases of injurious falsehood. Considerations of free speech or other special considerations are irrelevant to a determination of injunctive relief in relation to a claim for injurious falsehood.” [23]

20. [47]

    The authority relied upon for the last two propositions was a passage in the reasoning of Brereton J in AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd. [24] However, it is not necessary to deal with those paragraphs; Brereton J, discussing the elements of the tort of injurious falsehood, extracted passages from two judgments in the High Court without adding further exposition of present relevance.

21. [48]

    The first reference was to a passage in the judgment of Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons. [25] In distinguishing injurious falsehood from defamation, Gummow J stated:

22. [49]

    The “rationale” may be an historical explanation, rather than a justification. As noted in a leading text, injunctions were available in equity to protect a legal right of a proprietary nature. Although that constraint has been removed by statute, it was “the undoubted basis or, more accurately, one of the bases of, inter alia, the rule that a court of equity will not grant an injunction to restrain a libel, other than a trade libel.” [26]

23. [50]

    The second passage relied upon (indirectly) by the applicants was to be found in the judgment of Gummow and Hayne JJ in ABC v O’Neill, in the following terms:

24. [51]

    That passage occurs in a discussion of the statutory jurisdiction of the Supreme Court and was addressing the question whether, following the Common Law Procedure Act 1854 (UK) (the terms of which are now reflected in s 66 of the Supreme Court Act), statute conferred power to grant injunctive relief to restrain the publication of defamatory matter. The jurisdiction in equity extended to injunctive relief with respect to the publication of words, not on the basis that they were potentially libellous, but because they would involve the disclosure of confidential information. Gummow and Hayne JJ concluded that the jurisdiction to restrain publication of defamatory matter must be taken as settled. [30]

25. [52]

    While it is correct to say that the elements of injurious falsehood and defamation differ, and that they protect different interests, it is also self-evident that the same publication may found both causes of action. An example may be seen in John Fairfax Publications Pty Ltd v Gacic, [31] a case involving a defamatory review of a restaurant. Gleeson CJ and Crennan J described the case as concerning, “that form of defamation which involves injury to business reputation, that is, the publication of imputations that have a tendency to injure a person in his or her business, trade or profession.” [32]

26. [53]

    On the basis that considerations of freedom of speech and expression of opinion were relevant in relation to interlocutory injunctive relief in proceedings in defamation, there is no good basis for concluding that they are irrelevant, in the sense that the judge would err in taking them into account, upon an application for an interlocutory injunction to restrain an injurious falsehood. The applicants identified no authority requiring this Court to take that view. Ground (d)(i) is untenable.

27. [54]

    The second limb to this challenge was the assertion that a constraint on the respondent’s ability to publish “false statements” was wrongly equated with “a complete denial” of his ability to express opinions on a matter of public importance.

28. [55]

    This ground encountered two difficulties. First, the phrase “a complete denial” was a rhetorical flourish and did not reflect the reasoning of the primary judge in the passage referred to in ground (e). No doubt there are questions of degree as to the extent to which the respondent is able, in the light of the constraints imposed by the court orders, to engage in public debate regarding the safety of Capilano honey and the truth of the representations made about it. In part that depends upon how one identifies the topic under consideration. Assuming that the topic involves, as the primary judge expressed it, “complex questions of trade regulation and health [and] safety regulation” in relation to food products, including honey, it was open to the judge to accept that the present orders impose very significant restraints on the respondent’s ability to express opinions.

29. [56]

    The second difficulty arises from the phrase “false statements”. In pursuing a claim in injurious falsehood, the burden will be upon Capilano to prove that the allegations were false, were made maliciously and caused damage to the company. The applicants submitted that McCallum J had made a finding, on a prima facie basis, that the allegations were false. They relied on a passage in her reasons stating that the evidence presented by Capilano “establishes a prima facie case that the … concerns over toxic honey circulated by Mr Mulvany and Mr Dowling are misplaced.” [33] She also described Mr Dowling’s views as “wrongheaded”. That finding (based on evidence of falsity which ground (a) alleged the judge “disregarded”) was relied on for the purpose of ground (e) as support for the view that the allegations were “false”. However, the finding did not go so far, nor would one expect it to do so on an interlocutory application. Further, falsity is but one element of the tort of injurious falsehood; there is no legal basis for injuncting publication of false statements as such. To the extent that Capilano must prove malice to establish its cause of action, the reference to the respondent’s views as “wrongheaded” does not provide support with respect to that aspect of the cause of action.

30. [57]

    The submissions in this regard did not, in any event, accurately reflect the terms of ground (e). Ground (e), somewhat ambiguously, stated that the judge had identified an issue of “broad public concern”, “without evidence”. The submissions repeated that language without explaining the nature of the error. The complaint provided one illustration of the internally inconsistent approaches adopted by Capilano on the appeal. Ground (c) alleged that the primary judge had disregarded “the evidence as to the damage caused and likely to be caused by the restrained publications”. Why any damage would arise if there were no public concern about health and safety issues regarding honey was not explained. In any event, assuming that the judge needed evidence to make such a finding (which is implausible) the evidence was to be found in the corporate applicant’s own case and in the comments by third parties on the articles which themselves were the subject of the restraining orders.

31. [58]

    Ground (e) should be rejected.

32. [59]

    The applicants submitted that the primary judge erred in taking into account orders made by the Court in separate proceedings they had brought against Mr Mulvany. According to the applicants Mr Mulvany was the source of the information the respondent relied upon in his on-line statements about the conduct of Capilano and deficiencies in its products. Mr Mulvany was party to the conversation in the car with the second applicant, Mr McKee.

33. [60]

    The trial judge’s reasons dealt separately with the respondent’s motion to have the proceedings dismissed for want of prosecution. (The motion was dismissed, the dismissal not being the subject of challenge in this Court.) The connection between the Mulvany proceedings and the present proceedings was described by McCallum J in disposing of the motion for want of prosecution. That primacy of Mr Mulvany as the source of the misinformation had been relied on by Capilano’s solicitor, Mr Keegan, as the reason for the delay in pursuing proceedings against the respondent.

34. [61]

    Mr Keegan inferred the relationship between Mr Mulvany and the respondent by noting quotations from Mr Mulvany on the respondent’s website and links given to the respondent’s website on Mr Mulvany’s “Save the Bees” Instagram account. Mr Keegan stated: “[t]here is no material published by Mr Dowling about the [applicants] that cannot be sourced back to Mr Mulvany.” [34] Mr Keegan explained that he therefore focused his efforts and the applicants’ resources “in the period following the granting of the injunction on 7 October 2016 until shortly prior to the time allocated for the hearing in the Mulvany proceedings, [on] pursuing Mr Mulvany and his claims, given they were and continue to be the original and only source of Mr Dowling’s publications.” [35]

35. [62]

    The proceedings against Mr Mulvany had been commenced in February 2016. McCallum J stated that “there is no suppression or non-publication order in those proceedings”, [36] a statement which was not challenged. However, as senior counsel for the applicants stated in the course of oral submissions, “the interlocutory application for relief came before the court in February of 2016, but never occurred because Mr Mulvany gave undertakings in the form of the relief that was sought.” The undertakings involved the immediate removal of identified posts from (a) a Facebook address, (b) an Instagram address and (c) a Twitter address, each address being controlled by Mr Mulvany. He further gave undertakings not to publish representations and imputations to the effect that Capilano brand honey was partly or wholly imported; that honey sold under a range of brands was toxic, poisonous, contaminated by antibiotics or pollution; and that the company or its CEO Mr McKee had deliberately misled consumers.

36. [63]

    Because there was no non-publication order in relation to those proceedings, McCallum J further stated, “[a]ny person other than Mr Dowling is free to report those proceedings.” That statement was, Capilano submitted, only partly true. The constraints imposed on the respondent in these proceedings may not have prevented him publishing an account of the allegations, evidence and submissions in the Mulvany proceedings, although, as a practical matter, it would not have been easy to steer around the breadth of the restraints. The interlocutory injunction restrained the respondent from publishing “representations and imputations, or imputations and reputations to similar effect that … Capilano Honey sells toxic and poisonous honey to consumers …”. There is little doubt that the injunction was intended to cover representations made by other persons, which would include Mr Mulvany. There was no qualification with respect to the Mulvany proceedings.

37. [64]

    The thrust of the applicants’ challenge was, however, to McCallum J’s statement that “the principal basis for the application for interlocutory injunctions in these proceedings is to preserve the efficacy of the relief sought against Mr Mulvany.” In setting out the history of the proceedings, the primary judge had said:

38. [65]

    The statements under challenge were made in explanation of the applicants’ inactivity in pursuing the proceedings against the respondent. Read in context, it is tolerably clear that the primary judge was referring to two propositions expressly relied on by the applicants in the proceedings before her, namely that (a) Mr Mulvany was the sole source of the information being published by the respondent and (b) for that reason, the applicants had focused their time and resources on pursuing the proceedings against Mr Mulvany.

39. [66]

    No doubt, in so far as they saw Messrs Mulvany and Dowling as working co-operatively against them, it was true that they sought to silence both. However, the primary judge plainly understood that to be the case and was not casting doubt upon it by identifying the “principal” basis of the application as relating to the proceedings against Mr Mulvany. The challenge amounts to little more than a semantic point of no significance and should be dismissed.

40. [67]

    The most powerful justification for the granting and continuation of the interlocutory relief depended upon evidence of the potential harm to the applicants if the respondent were not silenced. Grounds of appeal alleged that the primary judge erred in “misconceiving and otherwise disregarding the evidence”, (a) as to the falsity of the imputations and representations, (b) as to the respondent’s malice and (c) as to the damage likely to be caused by the publications.

41. [68]

    The Uniform Civil Procedure Rules require grounds of appeal to be stated “briefly, but specifically”. [37] These grounds gave little assistance in identifying any error. They did not engage with the content of the judgment. Early in her reasons McCallum J stated:

42. [69]

    McCallum J noted further that, before her, the plaintiffs had submitted that “if the idea of ‘toxicity’ gains any currency, the commercial risk to Capilano is potentially enormous.” [38] In discussing the injunctions to protect Capilano’s business, McCallum J stated: [39]

43. [70]

    With respect to the falsity of the allegations (ground (a)) and the damage likely to be caused by the publications (ground (c)) the proposition that the primary judge disregarded the applicants’ evidence is untenable. So far as the falsity of the allegations was concerned, she accepted it at a prima facie level. Subject to one matter, ground (a) must be rejected. The qualification relates to the evidence from Mr McKee (transmitted by Mr Keegan) that “[a]ll ‘Capilano’ branded honey sold in Australia is 100% pure Australian honey”. In the course of the appeal, it appeared that the respondent accepted as “quite possibly true” that honey sold under the Capilano brand was 100% Australian honey. [41] If the respondent accepts that honey sold under the Capilano brand is “pure Australian honey” in the sense that it contains no imported honey, it would be open for the applicants to seek an undertaking, or injunctive relief that a representation to the contrary will not be made. However, that has not been done; this Court is concerned only with the challenge to the comprehensive injunctive relief put in place two years ago, being the subject of the discharge order made by McCallum J.

44. [71]

    Turning to the question of likely damage, the affidavit of Mr Keegan of 13 April 2018 referred to statements in his earlier affidavits and alleged that Mr McKee had informed him “on numerous occasions” that “the material published by the defendant in breach of the orders made against him, together with other material the subject of the plaintiffs’ statement of claim, has caused and continues to cause damage to the plaintiffs, Capilano staff and Capilano’s individual honey suppliers.” [42]

45. [72]

    The affidavit then annexed copies of material originally annexed to an affidavit prepared in October 2016 containing extracts from The Brunei Times of 21 September 2016, the Malaysian Star Online dated 24 and 26 September 2016, and a website called Free Malaysia Today dated 26 September 2016. The Star Online reports said that the Health Ministry was investigating allegations (the source not being identified) that a honey product (the brand not identified) from Australia contained toxins and poisonous ingredients; they also noted “social media rumours that Australian honey of the Calpilano [sic] brand is toxic”. Free Malaysia Today appeared to contain the same story, together with a reassuring press release from the Director General of Health Malaysia. This appears to have been the material before Hall J which McCallum J reasonably described as “sparse”.

46. [73]

    In his 13 April 2018 affidavit Mr Keegan stated: [43]

47. [74]

    Mr Keegan then stated that he had spoken to “an employee of Capilano about the publications of Mr Dowling and Mr Mulvany about Capilano’s honey.” [44] The employee told him that he or she had received “many communications” from “suppliers who have been personally affected” by the publications and “third parties which consist of abuse.” An attempt to publish “correct information” on the respondent’s Facebook page had failed because it had been removed.

48. [75]

    The primary judge did not find that the respondent’s publications had done no damage to the applicants; rather, she found the evidence of damage or likely damage to be “scant.” That was true, although, no doubt, in a fully reserved judgment a more detailed analysis of the evidence might have been provided. For example, although the applicants relied upon the need to respond to the investigation in Malaysia, there was no evidence that the publicity had damaged sales. As the incident occurred in September 2016, such evidence, if available, could have been provided by April 2018. Similarly, the applicants made no attempt to assess any financial loss, or likely loss, in Australia.

49. [76]

    Finally, there was no attempt to quantify the effect of the respondent’s publication of material, where there was evidence that Today Tonight had published similar concerns on television and Mr Mulvany, a bee keeper who might have greater credibility than the respondent, had published similar allegations. The reference to the attempt to publish a response on the respondent’s website suggests that the applicants have taken steps to counter what they see as misinformation, although evidence of those steps was not presented to the Court.

50. [77]

    In these circumstances, it cannot be said that the judge either misconceived or disregarded the evidence before her. It is true that she did not refer to the second-hand hearsay evidence of a conversation with a manager at a supermarket chain, but there is little that can be said about it. The content was vague, there was no indication of when the statement was made or in what context and the statement contained no particular reference to the source of the concern.

51. [78]

    Before turning to the next matter raised on the appeal, it should be noted that there was an element of possible confusion lurking under the applicants’ submissions. To obtain interlocutory injunctive relief, the applicants had to take two separate steps. First, they needed to establish a prima facie case with respect to each element of the respective causes of action. As to the corporate applicant’s claim for injurious falsehood, that meant establishing that the allegations relied on were false, that the publisher was malicious and that the statements caused damage. It may be accepted that the primary judge was satisfied with respect to each of those elements of the cause of action, on a prima facie basis. However, establishing some damage or likely damage, for the purposes of the third element of the cause of action, was not the same thing as establishing a level of damage which warranted interlocutory injunctive relief of the kind sought. That was the second step: it required more than a prima facie case of some damage or likely damage sufficient to satisfy an element of the cause of action.

52. [79]

    There remains the question of malice, raised by ground (b). The finding in that regard was directed (and, as it appears, only directed) to the second relevant element of the cause of action. While it is true that the judge did not address “malice” in terms, beyond noting that it was an element of the cause of action in injurious falsehood, and describing the respondent’s views as “wrongheaded”, it is not clear what evidence was disregarded or misconceived.

53. [80]

    Although little was said about this ground, or ground (d)(iii) regarding the respondent’s failure “to articulate any defence to or to adduce any relevant evidence in relation to the appellants’ claims”, the grounds appear to be related. Thus the written submissions (which dealt briefly with the question of the respondent’s malice) noted that the respondent had provided no evidence to support the truth of his statements, from which omission it could be inferred, the submission proceeded, that he is “recklessly indifferent to whether or not [they are] true because of an ulterior motive”. [45]

54. [81]

    It is correct to say that submissions were made to the primary judge on the question of the respondent’s malice, because it was necessary to establish a prima facie case of malice as an essential element of the tort of injurious falsehood. It did not follow that there was any error on the part of the trial judge in failing to deal with that element, unless it could be inferred that the judgment depended upon a failure to establish that element. Capilano accepted that it bore the onus of establishing that element of the cause of action on which it relied.

55. [82]

    However, there is no basis for thinking that the trial judge determined the interlocutory application on the basis that no prima facie case of malice had been established. To the extent that any complaint about failing to address evidence is relevant, there was no specific evidence relied on by the applicants demonstrating malice, but rather a series of inferences sought to be drawn from the respondent’s publications. An ulterior motive was alleged, namely that the respondent was “fixated on attacking Mr Kerry Stokes”, a part owner of Capilano. [46]

56. [83]

    In an affidavit filed in this Court on 18 July 2018 the applicants sought to support a case of malice by including a report published on the respondent’s website abusing the primary judge. This “evidence” took the matter no further. Grounds (b) and (d)(iii) lack merit and should be dismissed.

57. [84]

    The applicants challenged the manner in which the primary judge dealt with certain procedural steps. Thus it was alleged that she rejected “the appellants’ explanation for the delay in prosecuting these proceedings between October 2016 and April 2017”: ground (g). It was also said that she gave “undue weight to the delay in the prosecution of the proceedings, such that it was effectively determinative of the respondent’s discharge application”: ground (h).

58. [85]

    Before turning to the relevant passages in the judgment, a number of steps in the chronology need to be noted. The proceedings against the respondent were commenced on 7 October 2016. Following the ex parte hearing on that date and the further ex parte hearing before Davies J on 10 October 2016, nothing happened until 28 April 2017 when the proceedings were relisted at the respondent’s request (the request having been made in the course of other proceedings on 13 March 2017). On 11 May 2017 the respondent advised that he intended to apply for dismissal of the proceedings for want of prosecution. The parties agreed to a timetable for that application, but on 15 May 2017 the applicants filed a statement of claim, which was served on the respondent two days later. Accordingly, it may be said that the applicants took no substantive step in the proceedings between 10 October 2016 and 15 May 2017.

59. [86]

    The primary judge addressed the issue of delay primarily in the context of the respondent’s application to have the proceedings dismissed for want of prosecution. However, before addressing that question, the judge noted:

60. [87]

    It is convenient to set out the judge’s identification of the evidence before her as to the lack of progress:

61. [88]

    The judge rejected the applicants’ submissions:

62. [89]

    The judge then rejected the delay as warranting dismissal of the proceedings, but said that it was “a significant factor in the review of the suppression orders and the application to have the interlocutory injunctions dissolved.” [47]

63. [90]

    The judge then turned to the application for review of the suppression orders (at [40]-[45]), followed by the application to have the interlocutory injunctions discharged (at [46]-[54]). Against a general consideration of the issues raised in submissions, she addressed separately the injunctions to protect Capilano (at [55]-[58]) and those to protect Mr McKee (at [59]-[63]). With respect to Capilano, in the last sentence of the four paragraphs, the judge stated:

64. [91]

    To the extent that McCallum J rejected the explanation given by the appellants for the delay in prosecuting the proceedings, the premise underlying ground (g) may be accepted. However, it was patently wrong to say that she failed to take the explanation into account. The reason for rejecting the explanation was undoubtedly correct. There was no evidence that the applicants were unable to pursue separate proceedings which they had commenced against two individuals at once. Had there been such evidence, a large question might have arisen as to the propriety of commencing two separate proceedings without the resources to pursue them. That question does not presently arise. Ground (g) must be rejected.

65. [92]

    So far as ground (h) is concerned, the judge was well justified in giving “significant weight” to the failure of the applicants to pursue with a degree of expedition the substantive proceedings, having obtained orders with the purpose and effect of silencing their critic. However, to assert that this factor effectively determined the respondent’s discharge application was to ignore the express reasoning of the primary judge, at [55]-[63] in relation to each applicant. Ground (h) must be rejected.

66. [93]

    The applicants raised two issues concerning the conduct of the respondent. First, they said the primary judge erred in failing to take into account or give any weight to “the respondent’s failure to appear before Davies J on 10 October 2016 and his delay in bringing and prosecuting the [discharge application]”: ground (i). Secondly, they complained of the judge’s failure to take into account the respondent’s “failure to comply with and defiance of” the orders made by Hall J and Davies J: ground (m).

67. [94]

    Dealing with the first matter, the applicants’ written submissions did little more than restate the complaint, without explaining why it was a significant consideration in resisting the discharge application. No doubt limited weight should have been given to any reliance by the respondent on the lengthy period during which he had been subject to the injunctions and take-down orders, had they in fact caused prejudice. However, as the applicants separately noted, the orders had not been complied with and no submission was made in those terms by the respondent.

68. [95]

    While it was true that the respondent could have had the matter relisted at any time after 10 October 2016, it was not unreasonable for him to wait to see what steps would be taken by the applicants. As the judge noted, he had on two occasions asked the applicants to provide their statement of claim, invitations which had been rejected. Whether the respondent should have exercised his right to have the interlocutory orders discharged on an earlier occasion is not, in the circumstances of this case, significant with respect to the proper disposition of the application when made.

69. [96]

    Further, to suggest that the respondent was remiss in not appearing before Davies J on 10 October is both unjustified and beside the point. There was a reasonable argument that those proceedings should have been adjourned, though no doubt Davies J assumed that the grant of liberty to apply would cover the situation. The rejection of that opportunity was of little consequence, whether the period of notice was inadequate or not.

70. [97]

    As to the second matter, it is by no means clear what weight was intended to be placed by the applicants on the respondent’s failure to comply with the orders, which could appropriately be described as defiance of them. Before McCallum J, the applicants submitted that his clear breach of the orders should lead the court simply to decline to entertain his application. The issue was apparently raised by the applicants in relation to the motion to have the proceedings dismissed for want of prosecution. At least in that context, the judge dismissed the submission on the basis that “[t]he sanction for any breach of the orders lies in proceedings for contempt.” [49] That raised a separate issue from the question of the applicants’ obligations to proceed expeditiously. [50] It does not appear that the primary judge placed any further weight on the non-compliance with the orders in considering their discharge.

71. [98]

    The question of non-compliance placed the applicants on the horns of a dilemma. While there was clear merit in the proposition that the court would not take steps which would appear to condone deliberate breaches of its orders, the applicants had not taken steps to enforce them by way of proceedings for contempt. On one view, the orders had been fruitless, an issue which will be addressed further below. There was no clear explanation, either in written submissions or in oral argument, as to how the primary judge erred in dealing with this issue. Ground (m) must be dismissed.

72. [99]

    The applicants asserted error on the part of the trial judge in “[f]ailing to take into account the delay occasioned by the Court having reserved on the respondent’s application to have the proceedings dismissed for want of prosecution … for over six months”: ground (j). In written submissions, the applicants stated that the judge, in considering “delay” as a significant factor against the applicants, failed to consider “adequately or at all”, “the fact that from 6 August 2017 until 16 February 2018, the Capilano Dowling proceedings slowed down to a halt because her Honour was reserved on the want of prosecution application and had ‘overlooked’ the need to relist the matter if she sought to be addressed orally”. [51]

73. [100]

    This submission was untenable. As the applicants correctly identified in ground (g), the “delay” which was taken into account was the applicants’ delay between October 2016 and April 2017. There was no basis to suggest that the judge in some way took into account, against the applicants, the period from August 2017 to February 2018. Nor was there any attempt to base the submission in fact. Finally, to the extent that the restraining orders remained in place throughout that period, the sole beneficiaries were the applicants. Ground (j) was misconceived and must be rejected.

Interlocutory injunction and suppression order relating to Mr McKee’s claim

1. [101]

   The interlocutory orders sought and obtained ex parte did not purport to distinguish between the applicants seeking the orders. In short, both jointly sought orders applicable to each other. Nor were the orders themselves readily distinguishable on this basis.

2. [102]

   However, McCallum J did distinguish between the applicants, noting that Mr McKee’s cause of action was in defamation and accordingly, in relation to interlocutory injunctive relief, attracted the principles considered in ABC v O’Neill. [52] The judge had discussed the principles set out in ABC v O’Neill earlier in her judgment, referring also to the reasoning in this Court in Rinehart v Welker [53] with respect to non-publication orders. The passage relied upon in Rinehart related to the need for “exceptional circumstances” before a non-publication order should be made under s 8 of the Non-publication Orders Act. McCallum J noted that ABC v O’Neill was concerned with a pre-publication application, but stated that the same reasoning should apply in an application for a take-down order.

3. [103]

   The only ground of appeal which related specifically to the decision with respect to Mr McKee was ground (d), which alleged that the judge misstated and misapplied the principles explained in ABC v O’Neill by “finding that considerations of free speech were engaged in relation to the injunctions in respect of the claim in defamation”: ground (d)(ii). In written submissions, ground (d)(iii) (alleging a failure to have regard to the respondent’s failure to articulate any defence to or to adduce any relevant evidence in relation to “the appellants’ claims”) was specifically relied upon in relation to the injunctions obtained by Mr McKee.

4. [104]

   The applicants’ written submissions accepted that “in the context of enjoining an allegedly defamatory publication, caution must be exercised primarily because of the consideration of free speech.” [54] That proposition was, as the submission acknowledged, identified in both the joint reasons of Gleeson CJ and Crennan J and of Gummow and Hayne JJ in ABC v O’Neill. [55] The point relied upon in the applicants’ submissions was that:

5. [105]

   With respect to the approach adopted by the primary judge, it is not entirely clear why the principles with respect to pre-publication restraints apply equally to take-down orders. It is no doubt true that each case involves an interference with the liberty of free expression of opinion, but in relation to a pre-publication order, no harm has yet been done, whereas in the case of a take-down order, the alleged defamatory publication is already in the public arena. Of course, there will be further publications each time a member of the public obtains access to the relevant website, but, at least arguably, where it is likely that relevant damage has already been done, there will be greater reluctance to provide interlocutory relief in essentially the same form as final relief, absent some indication that only limited damage has been done and much more is likely to follow.

6. [106]

   While it is true that in some cases justification will be the primary defence relied upon by a respondent, that is not a condition of the exercise of extreme caution in granting interlocutory relief. Gummow and Hayne JJ referred to a statement of Walsh J in Stocker v McElhinney [No 2], [56] and a more recent judgment of Hunt J in Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd; [57] it is sufficient to set out the passage from the latter case:

7. [107]

   Clearly matters other than justification may be taken into account, but may not require proof or assessment on an interlocutory application. Indeed, as Gleeson CJ and Crennan J explained in ABC v O’Neill:

8. [108]

   There is no support for the view that the primary judge adopted an incorrect approach in considering the defamation claim brought by Mr McKee. There are three further factors which support that conclusion.

9. [109]

   First, the statements in the article purporting to comment on the conversation in the car, to the extent that they did not involve gratuitous abuse, supported an entirely conventional claim in defamation. The source of the remarks was correctly characterised by senior counsel for the applicants before the primary judge as “unedifying locker room banter”, [58] not to justify it but to deplore it. Secondly, a significant basis for the interlocutory injunction appears to have been that the recording was made in breach of the provisions of the Surveillance Devices Act 2007 (NSW). Whether that was so or not might well be disputed, as the third person in the car was described in some of the material as a film maker. The respondent was not in the car and was not suggested as being in any way responsible for the recording, whether legal or illegal.

10. [110]

    Thirdly, it is not entirely clear why a specific restraining order was made in relation to publication of “any part of the car conversation”. Publication of the conversation would, on one view, and presumably on Mr McKee’s case, remove any justification for the imputations derived from the respondent’s published comments. Subject to the importance of the Court not condoning a continuing contravention of court orders, it is difficult to see any personal or public benefit in continuing a restraint on publication of this material.

11. [111]

    Little was said with respect to the defamation proceedings brought by Mr McKee in the course of argument in this Court. If more careful attention had been paid by the applicants to distinguishing the orders sought solely on behalf of Mr McKee and those sought on behalf of the applicants jointly, it might have been possible to craft a form of order which would be capable of satisfying the stringent requirements of the law with respect to interlocutory injunctive relief in defamation. The applicants did not do this and it is not for the Court to do it on their behalf.

12. [112]

    The submissions did not explain why, in vacating the interlocutory relief granted with respect to Mr McKee, the judge either misunderstood or misapplied the principles in ABC v O’Neill. There is no reason to suppose that she did. Ground (d), in so far as it applies to Mr McKee’s proceedings, should be dismissed.

Other considerations

1. [113]

   The foregoing discussion is sufficient to dispose of the appeal. However, the case raises broader issues which need to be identified.

2. [114]

   Careful consideration must be given to any application which prevents the reporting of court proceedings and which effectively provides an applicant with the principal benefit it seeks to obtain by way of final relief, before a hearing inter partes to determine the validity of the claims. In particular, it has been said on many occasions that, where orders are sought ex parte, counsel seeking the orders is subject to a strict obligation of candour. That includes, where possible, ensuring that the court is given sufficient information and time to form a considered view as to the appropriateness of the orders sought and the appropriateness of them being made ex parte. In the present case, the orders were lengthy and complex. Although the applicants had moved quickly following the posting of a comment covering the recorded conversation in the car, there had been a period of almost three weeks since the substantive article concerning “toxic” honey had been published. Further, when counsel approached the Court, late on a Friday afternoon, he had no copy of a summons, no statement of claim and no short minutes of order. On the evidence before the Court, there was no reason why the matter had to be dealt with on the spot and a number of reasons why it should not have been.

3. [115]

   For example, there was little if any evidence of damage or likely damage resulting from what was, on its face, a website purveying scandal in inflammatory terms. Further, the judge was not told that the topics of the inflammatory statements had been the subject of prior publication by Mr Mulvany and by Channel 7. It is almost inconceivable that a company which is clearly jealous of its reputation, did not have that information available to it.

4. [116]

   It was necessary to take care in seeking take-down orders with respect to websites that the websites were amenable to the court’s jurisdiction and the respondent’s control. In addition, any order restraining publication of opinions and information must be formulated in clear terms.

5. [117]

   The interlocutory orders in the present case did not meet these standards. Although the Court had evidence sufficient to satisfy it that the respondent controlled the named website, referred to in order 2(a) made on 7 October 2016, it is very doubtful that it could meaningfully order the respondent to remove “from the website bearing the address ‘facebook.com’ any republication of [the offending material published by the respondent] on such a republication”. There were five orders in similar terms, which assumed that the respondent had control of some non-specific internet address. Such orders were not self-evidently enforceable. It was also unclear as to what was meant by “republication”.

6. [118]

   As already noted, there were four interlocutory injunctions granted ex parte, of which two were in apparently identical terms except that one was expressed as being “until further order of the Court”, whereas the other purported to be a final injunction. The latter was unjustifiable and could only have been made through inadvertence due to haste. Suppression orders were made in final form. The two general injunctions referred to “representations and imputations or imputations and representations to the same effect” as a list of 25 propositions. In ordinary parlance (and the order was to be understood by a person who was not known to have any legal training), one does not publish an imputation. One can publish a representation, although that language is better suited to describing a representation made by another person than a statement by the publisher. This may have been intentional, but the formulation is at best ambiguous.

7. [119]

   It was the applicants’ own case that different considerations applied with respect to the separate causes of action brought by the company and Mr McKee. Yet no attempt was made to distinguish between those causes of action in seeking the interlocutory injunctions, in circumstances where there was no doubt that the Court was required to apply great caution in suppressing information about defamation proceedings and in injuncting repetition of an allegedly defamatory publication, principles which the applicants contended did not apply in relation to injurious falsehood.

8. [120]

   In the course of the hearing, it was suggested to senior counsel for the applicants that they could have taken contempt proceedings but did not, preferring to shift the burden to take that step onto the court. Further, despite not having sought to enforce the existing orders, the applicants invited the court to keep the orders on foot, knowing that they had not been complied with. Counsel submitted that that was not correct for two reasons, namely: [59]

9. [121]

   The Court could not accept the factual premises of the last proposition without evidence. First, the suppression order could not be revealed without breach of itself: it expressly prohibited disclosure of itself by publication or otherwise. It is true that the prohibition on publication was mentioned by the respondent in a piece on his website, but the terms of the order were not set out and it is far from clear whether it was in terms which applied to anyone except the respondent. Even if the existence of the suppression order were accurately known, if there are “other publishers” (whatever that may mean) who would understand such an order had been made and that they were bound by it without service or official knowledge of it, their attitude would not be a matter of which the Court could take judicial notice. They might have servers outside Australia, or might be located outside Australia. In its terms, the suppression order does not apply outside Australia.

10. [122]

    The ex parte injunctions included prohibitions on representations that honey marketed and sold under the “Capilano” brand is made wholly or partially from honey that has been imported, but also with respect to representations that the honey is toxic or poisonous. The latter prohibition extended to any honey marketed and sold by the corporate applicant, whether under the four named brands, “or any other brand”. An order made ex parte cannot assume that the party to be bound by the order knows the identity of all the applicant’s brand names; the applicant knows them and, if it wishes to obtain an injunction in relation to them, should identify them. Otherwise the order could have an unjustifiable chilling effect on freedom of speech.

11. [123]

    Finally, the suppression order was said to be justified only on the ground that “the order is necessary to prevent prejudice to the proper administration of justice”. [60] No argument was put to this Court as to why the suppression order was justified on that ground. As McCallum J noted, the suppression order could only be made in support of the grant of injunctive relief. That is, it depended upon there being no available source of the allegations against the company other than those which might be revealed in the course of the proceedings, either by way of pleadings, evidence, submissions or orders. It must follow that the applicants, although they could not suppress the information or have it removed from the internet otherwise than in support of proceedings, nevertheless claim that any publication of the same information in the course of those proceedings must be prohibited or they would be effectively discouraged from bringing proceedings. That is a large proposition which requires justification. If the proceedings were brought to protect confidential information, no doubt a non-publication order may be obtained to prevent the disclosure of the very confidentiality which is sought to be protected. However, in this case the allegations are not unknown; the cause of action (injurious falsehood) depended upon them being known and having caused harm. Whether or not a non-publication order as to the existence of the proceedings could fall within the terms of s 8(1)(a) should have been explored before the order was made.

12. [124]

    There was an alternative ground upon which the order might have been based, namely that it was “otherwise necessary in the public interest for the order to be made”; but in that case the applicant would have had to establish that “that public interest significantly outweighs the public interest in open justice.” [61] It is not necessary to consider whether that ground could have been invoked because in fact it was not.

Orders

1. [125]

   Whether all of the grounds were intended to be pursued was unclear. Some were the subject of submissions, some were merely restated and others were not expressly addressed. Counsel appearing on an application for leave to appeal, especially in circumstances where the respondent is a litigant in person, is obliged to give careful consideration to the grounds which are to be pursued and to give notice, preferably in writing and before the hearing of the appeal, of any grounds which are not pursued. That did not happen. In the result, all the grounds have been considered and have been rejected.

2. [126]

   For the reasons explained above, there should be a grant of leave to appeal, but the appeal should be dismissed. In case the applicants, or either of them, propose to seek special leave to appeal from this decision, they should have 14 days within which to consider their positions. Accordingly, the stay of the orders made by McCallum J which was in place prior to the hearing of the appeal and continued to its determination should be continued for a period of 14 days from the date of delivery of judgment. So there may be no doubt about the intended effect, there will be a non-publication order on the contents of this judgment, as being necessary for the proper administration of justice, while the stay remains in force. [62] If no further step is taken within that period, the stay will then automatically expire. If the applicants, or either of them, decide to seek special leave to appeal to the High Court, they will have to approach a judge of this Court for an extension of the stay. Such an extension will only be considered on the basis of a draft special leave application indicating a reasonably arguable basis for appeal.

3. [127]

   The Court orders:

   1. (1)

      Grant the applicants leave to appeal from orders (2)-(4) made by McCallum J on 8 June 2018.

   2. (2)

      Dismiss the appeal.

   3. (3)

      Order that the applicants pay the respondent’s costs in this Court, assessed as a litigant in person.

   4. (4)

      Stay the operation of orders (2) and (3) for a period of 14 days from the delivery of this judgment.

   5. (5)

      Direct that there be no publication of the contents of this judgement, while the stay remains in force, except by a party to an Australian lawyer for the purpose of obtaining legal advice or to a judicial officer or court for purposes related to this proceeding.