Russell v S3@Raw Pty Ltd [2023] FCA 305

Russell v S3@Raw Pty Ltd [2023] FCA 305

Although the applicant established that service should be deemed on the third respondent and that there was a serious question to be tried, the interlocutory injunctions were refused because the Main Post had been taken down, there was no suggestion of further publication by the first respondent, the alleged defamation by the third respondent was merely arguably defamatory, the publications were not of the exceptional kind warranting prior restraint, and the importance of free speech weighed against granting interlocutory injunctive relief.

Jurisdiction
Australia
Judgment Date
05 April 2023
Procedural Posture
Interlocutory Application for Injunctions in a Proceeding Seeking Damages for Australian Consumer Law Contraventions, Breach of Contract and Defamation / Interlocutory Application Heard on 23 March 2023 and Determined on 5 April 2023
Outcome
The interlocutory application is dismissed; deemed service and leave to file the amended interlocutory application were granted; costs are reserved.
Legal Topics
['interlocutory Injunction' 'social Media Publications' 'take Down Order' 'pre Publication Restraint' 'service Under Rule 10.23 of the Federal Court Rules 2011 (cth)' 'serious Question to Be Tried' 'balance of Convenience' 'freedom of Speech']
['practice and Procedure' 'defamation' 'consumer Law' 'contract Law'] ['interlocutory Injunction' 'social Media Publications' 'take Down Order' 'pre Publication Restraint' 'service Under Rule 10.23 of the Federal Court Rules 2011 (cth)' 'serious Question to Be Tried' 'balance of Convenience' 'freedom of Speech']

Case Brief

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Procedural Posture

Interlocutory Application for Injunctions in a Proceeding Seeking Damages for Australian Consumer Law Contraventions, Breach of Contract and Defamation / Interlocutory Application Heard on 23 March 2023 and Determined on 5 April 2023

Legal Issues

  1. 1 ['Whether the interlocutory application and supporting affidavits should be taken to have been served on the third respondent under rule 10.23 of the Federal Court Rules 2011 (Cth).' 'Whether there was a serious question to be tried that the Instagram posts were defamatory of the applicant.' 'Whether damages would be an adequate remedy and whether the balance of convenience favoured interlocutory injunctive relief.' 'Whether the caution applicable to interlocutory restraints on allegedly defamatory publications, including the public interest in free speech, meant that the Take Down Order and Pre-Publication Order should be refused.']

Ratio Decidendi

Although the applicant established that service should be deemed on the third respondent and that there was a serious question to be tried, the interlocutory injunctions were refused because the Main Post had been taken down, there was no suggestion of further publication by the first respondent, the alleged defamation by the third respondent was merely arguably defamatory, the publications were not of the exceptional kind warranting prior restraint, and the importance of free speech weighed against granting interlocutory injunctive relief.

Court Disposition

The interlocutory application is dismissed; deemed service and leave to file the amended interlocutory application were granted; costs are reserved.

Orders

  • ['The interlocutory application is dismissed.' 'The applicant is granted leave to file their amended interlocutory application dated 23 March 2023.' 'Pursuant to rule 10.23 of the Federal Court Rules 2011 (Cth), the interlocutory application filed on 27 February 2023, the affidavit of Gregory John Litster filed on 6...