Inserve Australia Ltd & Ors v Kinane

In this recent interesting decision, the applicants sought to leave to appeal from a decision refusing an application for contempt of court. The respondent had published defamatory material on his Facebook account, but by the time of the hearing the account had been deactivated. An order was made prohibiting the respondent from publishing certain matters “to the general public”. Prior to being served with the order, the Facebook account was re-activated and some, but not all, of the impugned posts were removed. After being served, the respondent sent a LinkedIn communication to a potential client of the applicants. In refusing the application for leave to appeal, the court upheld the primary judge’s finding that there had been no publication to the “general public”.

Fraser, Gotterson, and Philippides JJA

8 June 2018

The applicants in this matter were the officers and shareholders of Inserve Australia Ltd. [3]. The respondent was an employee, unit holder, and shareholder of Inserve until he was declared not to be an eligible shareholder due to unsatisfactory conduct. [3].

The background to this matter concerned the respondent’s acts in publishing defamatory material on his public Facebook account concerning the applicants. [5]–[6]. The applicants made an ex parte application for a prohibitory injunction to restrain the respondent from publishing defamatory material and a mandatory injunction requiring the respondent to remove the published defamatory material. [8]. During the hearing in the District Court, the Court was informed by the applicants’ counsel that that the respondent had deactivated his Facebook account. [9]. In the circumstances, the primary judge made only a prohibitory order prohibiting the respondent from making certain publications “to the general public”.

After the prohibitory order was made, but prior to being served with it, the respondent had reactivated his Facebook account and deleted some – but not all – of the posts in respect of which the applicants had complained. [12]. Further, after the prohibitory order had been served the respondent sent a LinkedIn message to a potential client of the applicants in which he alleged (as he had done before) that Inserve used hidden multipliers in its invoicing software. [11]. 

The applicants sought an order that the respondent be charged with contempt of court for (i) not removing the remaining defamatory Facebook posts, and (ii) his conduct in sending the LinkedIn message. [13], [16]. The primary judge dismissed that application, against which the applicants sought leave to appeal.

In relation to the Facebook posts, the applicants argued inter alia that the primary judge erred in finding that: (i) publication to only one person was not sufficient to support an order for contempt; (ii) there was no publication made to the general public by the respondent. [22]. Further, in relation to the LinkedIn message, the applicants argued that the primary judge erred in finding that it was not published to the general public. [22].

Philippides JA (with whom Fraser and Gotterson JJA agreed) rejected the applicants’ arguments. Her Honour explained that “[c]ontempt requires a deliberate act intentionally contravening an order”. [46]. Here, the deliberate act was leaving the posts on the account, as the “respondent’s conduct in reactivating his Facebook account before notice was given of the Order clearly could not constitute a contempt”. [46].

As for whether the publication had been made to the public, her Honour held that the primary judge’s use of the meaning of publication in defamation law was appropriate, given the order had been made in a defamation action. [48]. In the context of publication on the internet, that meaning required evidence that the material had been downloaded. [48]. Further, the primary judge was entitled to conclude that there was no evidence that the material had been downloaded by anyone other than a law clerk in the employ of the applicants’ solicitors, and also that the downloading and viewing of that material by the law clerk did not constitute a publication to “the general public”. [50]–[51].

As for the LinkedIn message, the communication had been sent to a potential client. Philippides JA concluded that while the potential client could be said to be a member of the public, the “LinkedIn communication to [him] was not a publication to ‘the general public’.” [58]. Rather, “[i]t was a publication to an individual”. [58].

The application for leave to appeal was refused. [59].

J English