CD v FG [2021] NSWSC 300

CD v FG [2021] NSWSC 300

The Court found that the imputations that CD sexually assaulted FG, filmed her having sex without her consent, and used a position as her employer to compel unwanted sexual relations were available, defamatory and untrue. FG was not employed by CD or his company; the sexual activity in January 2015 was not shown to be non-consensual; and FG knew of and consented to the recording. Given FG's evidence, her Local Court statement, her insistence on the employment allegation despite contrary evidence, her repeated objection to being suppressed, and her refusal to undertake not to publish the allegations, there was a real and present threat or risk of publication. The seriousness of the...

Jurisdiction
Australia
Judgment Date
26 March 2021
Procedural Posture
Defamation and Injurious Falsehood Proceeding Seeking Permanent Injunctive Relief, With Cross Claim for Breach of Confidence / Principal Judgment After Hearing on Whether Final Injunction and Suppression Orders Should Be Granted
Outcome
The plaintiff was held entitled to appropriate injunctive relief. The injurious falsehood basis was rejected, FG's cross-claim failed, and further submissions were required on the form of injunctive relief, suppression orders and costs.
Legal Topics
['permanent Injunction' 'quia Timet Injunction' 'prior Restraint' 'freedom of Speech' 'suppression and Non Publication Orders' 'substantial Truth' 'qualified Privilege' 'breach of Confidence']
['tort' 'defamation' 'injurious Falsehood' 'equity' 'civil Procedure'] ['permanent Injunction' 'quia Timet Injunction' 'prior Restraint' 'freedom of Speech' 'suppression and Non Publication Orders' 'substantial Truth' 'qualified Privilege' 'breach of Confidence']

Case Brief

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Procedural Posture

Defamation and Injurious Falsehood Proceeding Seeking Permanent Injunctive Relief, With Cross Claim for Breach of Confidence / Principal Judgment After Hearing on Whether Final Injunction and Suppression Orders Should Be Granted

Legal Issues

  1. 1 ['Whether the defendant threatened or was likely to publish defamatory imputations about the plaintiff.' 'Whether the imputations that the plaintiff sexually assaulted the defendant, filmed her having sex without consent, and used his position as her employer to compel unwanted sexual relations were available, defamatory and untrue.' 'Whether defences including substantial truth and qualified privilege were made out.' 'Whether a permanent injunction was reasonably necessary despite freedom of speech considerations.' 'Whether injurious falsehood was established.' "Whether the defendant's cross-claim concerning the recording of sexual intercourse should succeed." 'What form of suppression or non-publication orders should be made.']

Ratio Decidendi

The Court found that the imputations that CD sexually assaulted FG, filmed her having sex without her consent, and used a position as her employer to compel unwanted sexual relations were available, defamatory and untrue. FG was not employed by CD or his company; the sexual activity in January 2015 was not shown to be non-consensual; and FG knew of and consented to the recording. Given FG's evidence, her Local Court statement, her insistence on the employment allegation despite contrary evidence, her repeated objection to being suppressed, and her refusal to undertake not to publish the allegations, there was a real and present threat or risk of publication. The seriousness of the...

Court Disposition

The plaintiff was held entitled to appropriate injunctive relief. The injurious falsehood basis was rejected, FG's cross-claim failed, and further submissions were required on the form of injunctive relief, suppression orders and costs.

Orders

  • ['The plaintiff is entitled to appropriate orders by way of injunctive relief.' 'Submissions are to be made with respect to the form of the injunctive relief, suppression orders and on the question of costs.' 'The proceedings are listed at 2:30pm on Friday, 9 April 2021 to take submissions on those questions.' 'Any...