As a defamation lawyer in Western Australia, I often receive inquiries about the possibility of obtaining interlocutory injunctions in defamation cases.

This article provides a general overview of the principles governing the Federal Court's power to grant interlocutory relief in defamation cases, as discussed in the recent decision of Russell v S3@Raw Pty Ltd [2023] FCA 305.

Interlocutory injunctions are temporary orders granted by a court to restrain certain actions, such as the publication of defamatory material, until the final determination of a case.

The Federal Court has the statutory power to grant such relief under section 23 of the Federal Court of Australia Act 1976 (Cth). However, as a matter of discretion, this power is exercised with great caution and only in very clear cases (Australian Broadcasting Corporation v O'Neill [2006] HCA 46).

There are three key factors that a court will consider when deciding whether to grant an interlocutory injunction in a defamation case:

Whether there is a serious question to be tried as to the plaintiff's entitlement to relief;
Whether the plaintiff is likely to suffer injury for which damages will not be an adequate remedy; and
Whether the balance of convenience favours the granting of an injunction (O'Neill [2006] HCA 46).

The importance of freedom of speech is a key factor when considering these principles. Courts must take proper account of the public interest in free communication of opinion and information (O'Neill [2006] HCA 46 at [30]).

The balance of convenience requires the consideration of various factors favouring or militating against the granting of an injunction, including the strength of the plaintiff's claim (School for Excellence Pty Ltd v Trendy Rhino Pty Ltd [2018] VSC 514 at [34]). Dixon J in Trendy Rhino also noted that interlocutory injunctions in defamation cases will be refused if the publication is merely arguably defamatory, in recognition of the importance of free speech (at [37]).

There are, however, exceptional circumstances in which injunctive relief may be granted, such as when defendants display a vendetta-like behaviour or show a disinclination to conform to anticipated findings of the court (Trendy Rhino at [52]–[53]). In Webster v Brewer [2020] FCA 622, interlocutory relief was granted in relation to "vile" publications, and in Tribe v Simons [2021] FCA 930, relief was granted for "very serious" allegations with evidence of repeated publication after the commencement of the proceeding.

In Russell v S3@Raw Pty Ltd [2023] FCA 305, the court ultimately dismissed the interlocutory application, finding that the defamation complained of did not warrant the granting of an interlocutory injunction. The case demonstrates the delicate balance that must be struck between the protection of an individual's reputation and the importance of freedom of speech.

Cases referred to in this blog post:

Russell v S3@Raw Pty Ltd [2023] FCA 305
Webster v Brewer [2020] FCA 622
Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46
School for Excellence Pty Ltd v Trendy Rhino Pty Ltd [2018] VSC 514
Tribe v Simons [2021] FCA 930