14 February 2017

Defamation and Media Law Journal 7: Injunctive Relief

Mark Jones
Mark Jones

An injunction is a discretionary remedy where, in certain limited circumstances, a court may make an order that a party refrain from an intended course of action or prohibit a party from undertaking the certain activity.  For example, an injunction may in some circumstances be ordered by a court to restrain the publication of a defamatory newspaper article or television broadcast.

Failure to comply with an injunction renders those in breach liable to be punished for contempt of court.

Such orders can be made on a temporary basis until such time as the court has had an opportunity to fully consider the circumstances of the matter or in some circumstances, such orders will have a permanent effect.

Generally speaking however, when considering an application for such an order, courts are often reluctant to intervene to interfere with rights of freedom of speech except where it can be satisfied that the right of freedom of expression is likely to be abused.  In the decision of Church of Scientology Inc –v- Reader’s Digest Services Pty Ltd the court held that ‘the power to grant interlocutory injunctions in defamation cases must be exercised with great caution, and only in very clear cases’.

When considering applications of this nature, courts often take the view that no order for an injunction should be made if ultimately, an award of damages in favour of the applicant would constitute an adequate remedy.

In the leading decision of Australian Broadcasting Corporation and O’Neill, the High Court of Australia examined the legal principles concerning the granting of an interlocutory injunction and in doing so Justice Gleeson CJ and Justice Crennan made the following statement:

“In his widely quoted judgement in Bonnard v Perryman, in which Lord Esher MR and Lindley, Bowen and Lopes LJJ concurred, Lord Coleridge CJ explained why “the subject matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong” and why, when there is a plea of justification, it is generally wiser, in all but exceptional cases, to abstain from interference until the trial and determination of the plea of justification.  First, there is the public interest in the right of free speech.  Secondly, until the defence of justification is resolved, it is not known whether publication of the matter would invade a legal right of the plaintiff.  Thirdly, a defence of justification is ordinarily a matter for decision by a jury, not a judge sitting alone as in an application for an injunction.  Fourthly, the general character of the plaintiff may be an important matter in the outcome of a trial; it may produce an award of only nominal damages.”

This decision underlines the fact that it is only in exceptional circumstances that a court will exercise its power to grant an interlocutory injunction in defamation cases.

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