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Supreme Court of Victoria |
Last Updated: 13 April 2021
AT MELBOURNE
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Second Plaintiff
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DOC ADAM PTY LTD (ACN 636 853 177)
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Second Defendant
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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PRACTICE AND PROCEDURE – Interlocutory injunction – Defamation and misleading and deceptive conduct contrary to Australian Consumer Law alleged – Where publications are videos uploaded to the internet – Application to take down publications and restrain defendants from future publication – Where publications relate to debate of efficacy of traditional/natural medicines – Balance of convenience – Whether public interest in allowing debate to continue unrestrained favours declining injunctive relief.
STATUTORY INTERPRETATION – Australian Consumer Law – Misleading and deceptive conduct – Whether defendants carrying on a business – Whether conduct is ‘in trade or commerce’ – Whether publications for educational purpose or have a commercial flavour.
TORTS – Defamation – Interlocutory injunction – Where other causes of action advanced – Whether particular caution in granting interlocutory relief in defamation cases applicable to other causes of action – Application of rule in Bonnard v Perryman [1891] UKLawRpCh 69; [1891] 2 Ch 269.
WORDS AND PHRASES – ‘in trade or commerce’.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiffs
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Armstrong Legal
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For the Defendants
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Mills Oakley
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1 On 24 December 2020, the plaintiffs by writ sought damages, a permanent injunction restraining the defendants from publishing certain material, and a mandatory injunction for the removal of certain publications from the internet that they allege is defamatory. The second plaintiff also seeks damages pursuant to s 236 of the Australian Consumer Law (‘ACL’),[1] contending that the defendants had engaged in misleading or deceptive conduct in contravention of s 18 of the ACL.
2 On 23 February 2021, the plaintiffs applied for an interlocutory injunction restraining the defendants from publishing or causing to be published in any form, or maintaining online for download, or uploading so as to make available for publication online:
(a) 15 specific videos;(b) hyperlinks to a Facebook group described by the plaintiffs as the ‘Dr Farrah Hate Page’;
(c) certain Facebook and Instagram posts;
(d) the imputations and representations set out in nominated paragraphs of the plaintiffs’ statement of claim; and
(e) any matter of and concerning the plaintiffs to the same purport or effect as any of the publications referred to.
The application was amended to limit the relief sought to seven defined videos and to remove the references to certain Facebook and Instagram posts.
3 A central issue raised on the application is the rule in Bonnard v Perryman.[2] Can claimants who, in this case, are an individual and a small trading company resident and operating in the USA, obtain an interlocutory injunction to take down and restrain further instances of allegedly defamatory publications published on internet platforms by an individual/small trading company resident and operating in Australia, which are directed predominately at an audience who are resident in the Philippines? The publications concerned (and responded to) the plaintiffs’ publications on matters of public health, particularly the longstanding debate about the merits of western medicine versus traditional/natural medicine.
4 The first plaintiff (‘Dr Farrah’) lives in Texas. She qualified as a doctor of medicine in the Philippines and was licensed as a physician in 2005. She relocated to the United States of America with her husband at the end of 2018. The second plaintiff (‘DRF’) was then incorporated in the State of Oklahoma. DRF sells natural products online and through distributors throughout the world. For present purposes, I accept that there is a serious question for trial that DRF is an excluded corporation for the purposes of s 9 of the Defamation Act 2005 (Vic).
5 The first defendant (‘Dr Smith’) is a medical practitioner in general practice in Werribee. He has travelled to the Philippines a number of times, and can speak some Tagalog. The second defendant (‘Doc Adam’) is a company whose sole director is Dr Smith’s partner. That company derives substantially all of its revenue from payments made to it by Facebook and YouTube for advertisements added to videos uploaded to those platforms. It has generated revenue of approximately $60,000 from those platforms to date. The majority of Doc Adam’s earnings are from videos other than those about the plaintiffs. It is primarily these circumstances that ground the court’s jurisdiction to entertain claims by US residents in respect of activities and transactions occurring in the Philippines.
6 The plaintiffs apply for this relief on the basis of three substantial affidavits sworn by Dr Farrah. The defendants relied on five affidavits sworn by Dr Smith and affidavits sworn by Mr Nicholas Allen (a solicitor for the defendants) and Ms Sheryn Mae Calso. No objection was taken to any part of any affidavit and no deponent was cross‑examined.
7 The following matters are either uncontested or, in respect of the pleaded allegations, there is a serious question for trial.
8 Dr Farrah is a certified naturopath practitioner, who developed a high profile in the Philippines as an advocate of Philippines’ traditional and alternative indigenous medicine. In 2015, she established the ‘Dr Farrah Natural Medical Centre’, a large medical centre in the Philippines (‘Medical Centre’). It marketed itself online as ‘specializing in the treatment of cancer, precancerous and chronic diseases’, using natural medicines and remedies. It did not prescribe synthetic medicines or offer conventional therapies such as radiation, chemotherapy or major surgery. The Medical Centre did not charge patients for doctor visits, examinations, ultrasounds or minor surgical procedures. It did not have diagnostic equipment. Dr Farrah stated that many Filipino people attended the Medical Centre because they could not otherwise afford access to healthcare and conventional treatments and therapies.
9 On 17 August 2018, the Filipino National Police raided the Medical Centre —apparently at the order of the then-Director of the Food and Drug Administration in the Philippines (‘FDA’) — and it was closed. At the time of the raid and closure, the plaintiffs’ products were not approved for sale by the FDA.
10 Dr Farrah then relocated to the United States of America and established DRF, which operates an online business selling natural products from the website at doctorfarrah.com (‘Dr Farrah Website’). DRF manufactures the products it sells at a facility registered with the United States Food and Drug Administration. Products are sold online or through overseas distributors. DRF has a commercial presence in Sydney via a distributer and draws Australia customers through the Dr Farrah Website and on social media.
13 The products presently available on the Dr Farrah Website include:
(a) Doctor Farrah’s Diabeatease’;(b) ‘Doctor Farrah’s Doctor’s Shake’;
(c) ‘Doctor Farrah’s Memorease’;
(d) ‘Doctor Farrah’s Snow White’;
(e) ‘Dr. Farrah’s Book of Natural Home Remedies’;
(f) ‘Dr. Farrah’s Boston C Concentrate’;
(g) ‘Dr. Farrah’s Pixie Dust - Magnesium Citrate’;
14 As at 28 February 2021, the FDA had issued public health warnings against the purchase and consumption of several of DRF’s products including the ‘Boston Concentrate’, ‘Pixie Dust’, ‘Lightning in a Bottle’, ‘Doctor’s Shake’ and ‘Mega-Dose Vitamin C’ dietary supplements.
15 Dr Smith also has a social media presence with Facebook, YouTube, Twitter, and Instagram. Dr Smith promotes Doc Adam’s business through his social media accounts.
16 Dr Smith has travelled to the Philippines on about 10 occasions and has performed charitable work donating his medical skills. His experience, which was not challenged, is that people in the Philippines generally have a limited level of education about matters relating to healthcare and often turn to the internet to seek answers for health issues that they are experiencing. In doing so, they will commonly receive treatment and advice that is either wrong or contrary to established medical practice. It is his honestly held belief that the people of the Philippines are especially vulnerable to improper claims regarding healthcare.
17 Dr Smith originally set up a YouTube channel to provide general health tips, in part because of his concerns regarding the advice been given in the Philippines by natural healers . Dr Smith stated:
I do not make videos about Dr Farrah for the purpose of earning money. I make videos about her because I believe that the advice which she provides is dangerous and wrong.
18 Dr Smith’s evidence that Dr Farrah’s social media networks are approximately twice the size (in terms of followers) as his was not challenged.
19 Dr Smith intends to establish at trial that Dr Farrah provides dangerous medical advice which is both wrong, not medically accepted as appropriate treatment and, if followed, may cause harm or significantly increase the risk of, or otherwise cause, death. Substantial parts of the material filed on this application and a significant part of submissions addressed the opposing submissions of the parties on this issue. Ultimately, these are questions for trial. For present purposes, I am satisfied that Dr Smith is seriously motivated by these beliefs.
20 On 21 August 2018, the website for the Medical Centre stated (in prominent bold font):
No other cancer clinic, of any kind, has such a highly documented success rate.
21 It further said of the Medical Centre’s purpose:
The purpose of this dissertation is to acquaint you with the Dr. Farrah Agustin-Bunch Natural Medical Center and our method of treating cancer, in terms the average layman can understand without unnecessary scientific, medical terminology. We will not make flowery misleading statements, nor do we claim a cure-all for cancer or any other diseases. We simply feel that we have the most successful and efficient methods of treating cancer anywhere in the world today.[3]
22 The website disclosed that the ‘Dr. Farrah Method of treating cancer’ was developed by Dr Farrah and her late father.
23 On her primary Facebook page, which is followed by more than 3.7 million people, Dr Farrah describes herself as a public figure who promotes natural medicine and has treated over 150,000 patients for cancer and numerous other illnesses throughout her career. Dr Smith provided evidence of posts made to that Facebook page where Dr Farrah shared articles published to the Dr Farrah Website expressing her opinion on the role of chilli peppers and heart health, nutritional supplements, and garlic. These publications were examples of many that could be drawn from Dr Farrah’s social media networks.
24 On 12 September 2020, Dr Smith posted a video about Dr Farrah to his YouTube[4] and Facebook[5] profiles titled ‘The worst doctor’s advice in the Philippines’ (‘first video’).
25 It is clear from the context of the first video and later videos that Dr Smith is responding to statements made by or attributable to Dr Farrah that had earlier been posted on the internet. These statements attributed to Dr Farrah include statements to the following effect:
(a) Bird’s eye chilli will save your life, even if you are having a heart attack.(b) Using a cabbage compress will relieve inflammation.
(c) I am a Harvard Medical School trained doctor.
(d) I give Pixie Dust to people who are diabetic, hypertensive or have anxiety, insomnia, duodenal or gastric ulcers or just plain gastritis.
(e) Garlic is one of the best herbal medication that was ever created by the lord. If you have a toothache, a headache, high blood pressure, hypertension, a migraine or cancer, the best thing for you is garlic.
(f) I use Mega Dose Vitamin C for lymphoma. This and Boston C is one of the mainstays of my treatment.
(g) For breast mass, Boston C and other minerals can help. Iodine is good. You have to eat a lot of seaweed.
(h) You should use a potato compress for goitre.
(i) Asparagus is one of the best recipes for lung detoxification and urinary tract detoxification. You just give it to your relative, to your patient who is suffering from lung cancer, or just for any respiratory tract infection.
(j) If you’re suffering from a mild to serious skin disease you might want to try white vinegar as a home remedy.
(k) For fibroids, the best that you can use is maria weed. Drink maria weed. Polycystic kidney, ovarian syndrome can be helped by maria weed. Artemesia vulgaris or maria weed is the best for polycystic ovary syndrome.
(l) For forgetfulness take virgin coconut oil and Pixie Dust. Pixie Dust can help you with having strong memories.
26 In the first video, Dr Smith also responded to many testimonials posted by Dr Farrah in which customers claimed positive outcomes following a diagnosis of cancer or other serious/chronic disease. He observed that Dr Farrah has many testimonials that she uses to sell her products, when what is needed are facts, evidence and research.
27 In their statement of claim, the plaintiffs contended that the following defamatory imputations were carried by the first video:
(a) Dr Farrah falsely passes herself off as a real doctor;(b) Dr Farrah falsely states that her products are the cure for cancer;
(c) Dr Farrah is not to be taken seriously as a doctor because she recommends that patients do not need a proper physical examination by a physician, they just need cabbage;
(d) Dr Farrah advocates treatment for patients that create the risk of death;
(e) Dr Farrah falsely claims that she graduated from Harvard University;
(f) Dr Farrah advocates that patients should be treated with a joke product, known as ‘Pixie Dust’;
(g) DRF sells a joke product, known as ‘Pixie Dust’;
(h) Dr Farrah and DRF rip off their customers;
(i) Dr Farrah falsely claims that her medical centre in the Philippines was unjustly closed by the Philippine authorities;
(j) Dr Farrah exploits people in the Philippines with limited health education;
(k) Dr Farrah and DRF make money from exploiting people in the Philippines with limited health education;
(l) Dr Farrah made wild and outlandish therapeutic product claims on the bostoncherbs.com website; and
(m) Dr Farrah gives people false hope and the wrong medicine.
28 The plaintiffs also alleged that by publishing the first video, the defendants made false and misleading representations in trade or commerce.
29 The plaintiffs contended that as at 28 February 2021, the first video had been viewed 853,889 times on YouTube and 10,600,000 times on Facebook.
30 On 18 December 2020, Dr Smith received a cease and desist letter from a lawyer apparently in the Philippines. A concerns notice (‘Notice’) served under s 14(2) of the Defamation Act from Armstrong Legal, the plaintiffs’ current solicitors, followed by email on 7 October 2020.
31 The Notice stated that Dr Farrah became aware of the first video on or about 13 September 2020 and contended that the video contained highly defamatory statements that had been ‘extremally [sic] damaging to our client’s reputation and various business interests’. The Notice further contended that the video indicated that unsubstantiated comments about Dr Farrah would continue in a malicious and threatening manner.
32 The Notice asserted that Dr Farrah had suffered commercial losses in excess of US$100,000. Further, it foreshadowed a possible complaint about Dr Smith’s professional conduct to the Australian Medical Association and/or the Australian Health Practitioner Regulation Agency (‘AHPRA’). Dr Farrah requested an apology and retraction, the removal of all versions of the publication and/or any other material concerning Dr Farrah (including current and historical versions), payment of legal costs, and an undertaking to refrain from publishing any further material concerning Dr Farrah in the future. The Notice concluded that a failure to comply with those demands would see defamation proceedings commenced against Dr Smith to ‘pursue the full amount of financial and non-financial losses’.
33 The following day, Dr Smith was personally served with a copy of the Notice as he alighted from his car outside his Werribee Medical Clinic. The process server video-recorded the act of service.
34 Around the same time, Dr Farrah began interacting directly with Dr Smith’s posts. On 18 September 2020, she posted a statement on Facebook that appears to directly respond the first video. Dr Farrah challenged her critics not only to a debate on the efficacy of natural medicine, but also to a ‘duel’. She stated:
Give me whatever ailment even stage 4 and I do the same to you. Let’s see whose patient gets better or significantly improves first. I will do my protocol and you give them your blender, chia seeds, almond seeds and foot massager. Lets [sic] see what you can do in clinics. If you are just going to talk trash, threaten to make more videos and bully a 9 month pregnant woman then you are a coward and I have no time for cowards.You took videos of mine and made a narrative so you can tell your lies. You made fun of me walking and talking which makes you a bully. You took videos of my children which makes you a very low class human being.
I will see you in Australian Court! *wink emoji*
The defendants claimed that statements such as this were seen by a substantially larger audience than that which saw his videos.
35 On 14 October 2020, Dr Smith posted a second video relating to the service of the Notice upon him, entitled ‘Goodbye Facebook’, to his YouTube[6] and Facebook[7] profiles (‘second video’).
36 The plaintiffs’ allegations in respect of the second video follow the same template as for the first video. The following imputations/false and misleading representations are alleged to be carried by, or to be the conduct impugned in, the second video:
(a) Dr Farrah was responsible for a lawyer embarrassing Dr Smith, by serving documents on him at his medical clinic, in front of his patients and in front of his manager;(b) Dr Farrah was responsible for shaming Dr Smith in front of his patients;
(c) Dr Farrah threatened Dr Smith;
(d) Dr Farrah is responsible for creating a dangerous health trend online; and
37 The plaintiffs contended that as at 28 February 2021, the second video had been viewed 2,304,590 times on YouTube and 4,900,000 times on Facebook.
38 On the same day as the second video was published, a DRF brand distributer in the Philippines, Ms Jennifer Hernandez, ‘severed her business ties’ with Dr Farrah. Dr Farrah asserted a loss of revenue as a result of Ms Hernandez’s decision.
39 Two days later, on 16 October 2020, the process server’s video was uploaded to the ‘Boston C Philippines’ Facebook page, which appears to be operated or administered by interests associated with Dr Farrah.
40 On 8 November 2020, Dr Smith published a further video on his YouTube[8] and Facebook[9] profiles entitled ‘Ang TOTOO tungkol kay Doctor Cabbage’ (‘third video’). In the video, he stated that most information for the video came from three different Facebook pages, YouTube pages and several websites, although it could not be assumed that Dr Farrah wrote all the messages.
41 The plaintiffs’ alleged the following imputations/false and misleading representations are carried by, or to be the conduct impugned in, the third video:
(a) Dr Farrah tried to silence Dr Smith through intimidation;(b) Dr Farrah lies persistently to exploit others;
(d) Dr Farrah lied when she told people that she graduated from Harvard University;
(e) Dr Farrah provides advice that causes death;
(f) Dr Farrah rips off her customers;
(g) Dr Farrah sells products that are not based on science or evidence;
(h) Dr Farrah uses intimidation and dishonesty to violate the rights of others;
(i) Dr Farrah did many things that were intended to intimidate and scare Dr Smith;
(j) Dr Farrah is preoccupied with fantasies of unlimited success, power and brilliance;
(k) Dr Farrah exploits others to enrich herself;
(l) Dr Farrah has a strong sense of entitlement;
(m) Dr Farrah sold illegal products when she was in the Philippines;
42 The plaintiffs contended that as at 28 February 2021, the third video had been viewed 754,521 times on YouTube and 1,900,000 times on Facebook. When reposted to Facebook on 29 January 2021, the video was viewed a further 14,600 times.
43 On 9 November 2020, Dr Farrah made a complaint to the Fair Trade Enforcement Bureau in the Philippines against Doc Adam that was supported by a statement from Ms Tara Bunch, her sister-in-law.
44 On 25 November 2020, the FDA published a number of public health warnings, each titled ‘FDA Advisory’, addressed to ‘all health care professionals and the general public’. These advisories warned that the ‘Dr. Farrah’s Boston C Concentrate’, ‘Dr. Farrah’s Pixie Dust - Magnesium Citrate’, ‘Lightning in a Bottle’, ‘Doctor Farrah’s Doctor’s Shake’ and ‘Mega-Dose Vitamin C – Ascorbic Acid’ dietary supplement products were unregistered food supplement products and should not be purchased and consumed. The advisories noted that the importation, distribution, sale or offer for sale of such products was prohibited.
45 On 29 November 2020, Dr Smith posted a fourth video to his YouTube[10] and Facebook[11] profiles entitled ‘Goodbye Dr Farrah’ (‘fourth video’).
46 The following imputations/false and misleading representations are alleged to be carried by, or to be the conduct impugned in, the fourth video:
(a) Dr Farrah tried to intimidate Dr Smith;(b) Dr Farrah is a contemptible person;
(c) Dr Farrah and DRF sell products that are illegal;
(d) Dr Farrah and DRF make false medical claims;
(e) Dr Farrah provides incorrect medical information;
(f) the business of DRF is in an extremely bad situation;
(g) Dr Farrah and DRF sell illegal products whereby their distributors ought to be reported to local government authorities; and
47 The plaintiffs contended that as at 28 February 2021, the fourth video had been viewed 829,721 times on YouTube and 1,500,000 times on Facebook. When later reposted to Facebook on 30 January 2021, it attracted a further 13,800 views.
48 On the same day, Dr Smith posted a further video on his Facebook[12] profile entitled ‘Real Doctor debunks Dr Farrah medical advice’ (‘fifth video’).
49 The following imputations/false and misleading representations are alleged to be carried by, or to be the conduct impugned in, the fifth video:
(a) Dr Farrah is not a real medical doctor;(b) Dr Farrah is a contemptible person because she lied about studying at Harvard university;
(c) Dr Farrah is ridiculous because she created her own hashtag claiming that others supported her;
(d) Dr Farrah is ridiculous because she advocates that a treatment for lung cancer is asparagus;
(e) Dr Farrah is ridiculous because she advocates that one thing is good for all conditions;
(f) Dr Farrah provides advice that causes death; and
(g) Dr Farrah is ridiculous because she says that garlic can cure cancer.
50 As of 28 February 2021, the plaintiffs asserted that the fifth video had attracted 180,000 views.
51 On 30 November 2020, Dr Smith published a video on his YouTube[13] and Facebook[14] profiles entitled ‘My Response to Miss Glenda’ (‘sixth video’).
52 The following imputations/false and misleading representations are alleged to be carried by, or to be the conduct impugned in, the sixth video:
(a) Dr Farrah should not be trusted and is comparable to a doctor who murdered two hundred people;(b) Dr Farrah and DRF’s products are comparable to faeces;
(c) Dr Farrah and DRF products have no scientific basis and make fake medical claims;
(d) Dr Farrah gives wrong medical advice;
(e) Dr Farrah’s wrong medical advice has harmed many people;
(f) Dr Farrah is very dangerous because she is treating patients in the Philippines while she lives in a different country; and
(g) Dr Farrah and DRF products damage society and damage people.
53 The plaintiffs contended that as at 28 February 2021, this video had been viewed 520,229 times on YouTube and 590,000 times on Facebook.
54 On 30 November 2020, Dr Smith posted a video to his YouTube[15] profile (‘seventh video’). In this video Dr Smith converses with Mr Ranny Libayan, an attorney, about the FDA laws in the Philippines.
55 The following imputations/false and misleading representations are alleged to be carried by, or to be the conduct impugned in, the seventh video:
(a) Dr Farrah should not be trusted and she is comparable to a Nazi doctor who conducted human guinea pig tests on Jews in concentration camps in World War 2;(b) Dr Farrah makes fake medical claims that her products are good for pregnant women;
(d) Dr Farrah makes false claims while selling the DRF products and may be imprisoned as a result.
56 The plaintiffs contended that as of 28 February 2021, the seventh video attracted 37,690 views.
57 There is a further website, a group on Facebook described by the plaintiffs as the ‘Dr Farrah Hate Page’.[16] That descriptor is pejorative nomenclature. It is self-described as the ‘Dr Farrah Experiences and Stories Page’. The plaintiffs alleged that the defendants are a publisher of this page, although it appears not to be in dispute that it is primarily maintained by a third party who is a friend of Dr Smith. I propose to refer to this publication by the non-pejorative term ‘Facebook Group Page’.
58 The plaintiffs alleged that the Facebook Group Page was set up to encourage internet visitors to that page to comment on the plaintiffs and was promoted by Dr Smith. Third party comments published on this page are alleged to carry the following imputations defamatory of the plaintiffs:
(a) Dr Farrah is evil because she is a witch;(b) Dr Farrah is a person not to be taken seriously as a doctor because she poses on the internet in her underwear;
(c) Dr Farrah is a fake doctor;
(d) Dr Farrah is a contemptible person because she appears in online porn;
(e) Dr Farrah is one of the most evil creatures in the universe, alongside Satan, Kim-Jong Un and Adolf Hitler;
(f) Dr Farrah is a contemptible person who deserves to be killed;
(g) Dr Farrah is an evil whore;
(j) Dr Farrah deceives people;
(k) Dr Farrah is a shameful person;
(l) Dr Farrah is cancerous to society;
(m) Dr Farrah kills her patients and takes their money;
(o) Dr Farrah is a contemptible person who should kill herself;
(p) Dr Farrah lied because she claimed that she graduated from Harvard University;
(q) Dr Farrah has caused numerous deaths;
(r) Dr Farrah’s products cause serious adverse effects or death;
(t) Dr Farrah has killed patients and irrationally believes that she is somehow not at fault;
(v) Dr Farrah caused a person to die by advising that person not to eat and receive medication, but just take herbal drink;
(w) Dr Farrah is very good at deceiving;
(x) Dr Farrah is a contemptible person as she is an illegitimate doctor;
(y) Dr Farrah has used her power to censor other doctors, including Smith;
(z) Dr Farrah is giving bad advice;
(aa) Dr Farrah has poor character;
(bb) Dr Farrah is an expert in poisons, magic and sorcery;
(cc) Dr Farrah’s soul belongs to the devil;
(dd) Dr Farrah is despicable as she enriches herself by taking advantage of the poor condition of desperately ill people;
(ee) Dr Farrah’s disgraceful actions will haunt and curse her children and grandchildren forever.
59 Stepping away from the chronology for a moment, Dr Smith stated that upon becoming aware of the nature of some of the comments being posted by third parties on the Facebook Group Page, he invited the page administrator to remove all hateful, violent or otherwise offensive comment directed at Dr Farrah. There was a factual dispute about the extent to which this had occurred, but it was submitted that access to the page has now been restricted to members only and now includes the statement:
[T]his is not a hate page nor meme’s page, please let us not spread any hatred, the page was created primarily so that they “victims” may have the platform, so that they may have the “voice” and to be heard.
60 On 3 December 2020, AHPRA informed Dr Smith that two complaints had been made against him. Dr Smith realised from those complaints that he had been under surveillance (somebody had been following and taking photos of him in public places), a matter that he reported to the police. AHPRA informed Dr Smith on 4 January 2021 that no action would be taken in relation to the complaints.
61 On 28 December 2020, Dr Smith was served with the writ and statement of claim in this proceeding.
62 Between the date the first video was published (12 September 2020) and 5 February 2021, the plaintiffs contended that Dr Smith has created and published a total of 15 separate videos with alleged defamatory content. The parties placed evidence before the court about the number of times various videos and pages had been viewed, liked, shared or attracted comment, which I have noted above, but it is not necessary for present purposes to analyse this evidence. The plaintiffs submitted that the sheer number of these publications, particularly since the service of the Notice and the writ provides a reasonable basis to believe that the defendants will not remove any of them from the internet, or to stop publishing further material, unless restrained by the court. There is no evidence of any further publication (excluding comments by third parties) by Dr Smith since this application was made.
63 Approximately 22 weeks after the first video was posted on YouTube, the plaintiffs sought injunctive relief in the terms set out above.
64 In her affidavits, Dr Farrah contended that Dr Smith has published a further eight videos — not referenced in her statement of claim — that convey defamatory imputations and constitute further instances of misleading or deceptive conduct. When the issue arose on the application that the plaintiffs sought injunctive relief in respect of publications about which no complaint was made in the statement of claim, the plaintiffs stated that they would only press for the relief sought in their summons to the publications identified in the statement of claim. It is notable that in the case of many of the further videos, it seems clear that Dr Smith was responding to further publications by Dr Farrah.
65 Dr Farrah identified the following further videos:
(a) ‘Apology ni Miss Glenda’ on YouTube[17] and Facebook[18] on 8 December 2020 (‘eighth video’);(b) ‘The True Dr Farrah Experience’ on YouTube[19] on 12 December 2020 and on Facebook[20] on 18 December 2020, and then reposted on ‘Doc Adam Videos’ Facebook page[21] on 31 January 2021 at (‘ninth video’);
(c) ‘I received a Complaint’ on YouTube[22] and Facebook[23] 17 December 2020 (‘tenth video’);
(d) ‘The Dr Kwak Kwak Awards’ on YouTube[24] and Facebook[25] on 22 December 2020 (‘eleventh video’);
(e) ‘The 2020 Most Butthurt Awards’ on Facebook[26] on 30 December 2020 (‘twelfth video’);
(f) ‘Exposing Filipino Healing Water Scam’ on YouTube[27] at and on Facebook[28] on 1 January 2021 (‘thirteenth video’);
(g) ‘Goodbye Glutalipo’ on YouTube[29] on 14 January 2021 and on Facebook[30] on 15 January 2021 (‘fourteenth video’); and
(h) ‘My response to Healing Galing’ on YouTube[31] on 31 January 2021 (‘fifteenth video’).
66 Dr Farrah identified in her affidavits a number of images that have been posted by Dr Smith to his Facebook page that she says mock her. The plaintiffs no longer seek relief in this application in respect of these further publications, which will remain online should I grant, in full, the relief that they seek.
67 In part, this public debate concerning natural medicine, particularly the treatment of cancer and other chronic conditions, involved the use of many testimonials, some of which were seen by the court in submissions on the application. There were factual disputes in respect of them that cannot appropriately be resolved on this application. What is clear from these testimonials, however, is that the public debate in which the parties are participating is both highly emotive and of great importance, because it involves issues about the proper response to life threatening diseases and conditions. I do not doubt that the parties will be able to marshal source materials (that may or may not be properly described as expert opinion) or reliable research concerning treatment of such diseases and conditions, and the viability of those recommended treatments or processes.
68 As I will further explain, it is clear that information derived from testimonials, whether presented as fact or opinion, raises matters for legitimate public debate and it is clear that there is very substantial public debate on the internet about the relative merits of both medical/scientific and traditional/naturopathic treatments and procedures.
If an application is made under s 232, the court may, if it considers it is desirable to do so, grant an interim injunction under this sub section pending the determination of the application.
82 DRF contended that Dr Smith and/or Doc Adam made all of the representations alleged to have been conveyed in the seven videos to realise a commercial benefit for themselves, whether through the sale of products, promotion of Dr Smith’s YouTube channel, or the sale of Dr Smith’s ‘YouTube training course’ (an online course apparently directed at teaching aspiring content creators how to grow their audience on YouTube). DRF alleged that representations were made against it, a business engaged in trade or commerce, with the intention of discouraging people from buying its products.
83 The plaintiffs claim damages, special damages and aggravated damages by their claim in defamation, as well as a claim by DRF for damages pursuant to s 236 of the ACL. They gave some particulars of the alleged loss and damage sought.
84 Dr Farrah asserts a loss of revenue of US$189,000 as a result of Ms Jennifer Hernandez, a DRF brand distributer in the Philippines, ‘sever[ing] her business ties’ (her words) with Dr Farrah.
85 Another distributor in the Philippines, Ms Glenda Dela Cruz, aged 23, apparently ‘betrayed’ Dr Farrah and ‘sided’ with Dr Smith by appearing in the eighth video, which ‘led to the termination of our distributor agreement’. A loss of revenue in excess of US$600,000 is asserted in respect of that agreement.
86 Dr Farrah’s affidavits reveal that Ms Dela Cruz was apparently obliged to, but had not, applied for FDA registration in the Philippines of the DRF products that she distributed and sold. This lack of registration is significant because of the FDA-issued ‘advisories’ to not purchase and consume DRF products, as noted earlier. Although Dr Farrah contended that the FDA’s conduct was caused by Dr Smith’s publications, the antecedent difficulty that DRF’s products were not able to be lawfully sold in the Philippines is an issue that I will return to later in these reasons.
87 Dr Farrah asserted that sales from the Dr Farrah Website for the period of 44 days following the first video’s publication on 13 September 2020, when compared to the period of 44 days preceding that date, shows a decline of more than 30%, representing a loss of revenue of US$49,799.36 for that later period.
88 Dr Farrah further contended that ’30 day snapshots’ of gross sales from the Dr Farrah Website supported an estimation of a loss of revenue of US$50,000 per month ‘if [Dr] Smith continues to publish defamatory, false and misleading posts about me’.
89 Finally, Dr Farrah submitted that as a ‘direct consequence of [Dr] Smith’s publications’, a book deal agreed to on 7 April 2020 for publication in November 2020 of a work titled ‘Dr. Farrah’s Book of Natural Home Remedies’ was terminated on 14 January 2021.
91 In general terms, Dr Farrah deposed that in the first to seventh videos, Dr Smith paints a false narrative about her and then proceeds to shame her for it. Her evidence was that the publications collectively have had a profound and devastating effect upon her, her family and DRF. She asserted that her reputation has been severely damaged and that her mental health has suffered. Dr Farrah claims that she and her family have been subject to death threats, hate, bullying, harassment, trolling, and hundreds of thousands of further defamatory publications have been posted about her by third parties.
(a) she has a high profile in the Philippines as an advocate of Philippines’ traditional and alternative indigenous medicine;(b) DRF sells products through a distributor in Sydney;
(c) her publications have been watched and understood by at least 500 people in Australia; and
(d) she has 24,000 followers from Australia on one of her Facebook pages.
98 The plaintiffs’ offered an undertaking as to damages through counsel that was not supported by any evidence that it was of any worth, particularly having regard to the status of the plaintiffs respectively as a foreign national and a foreign corporation with no apparent assets within the jurisdiction.
99 The defendants accepted that there are serious questions for trial. They contended that the application should be refused, as damages were an adequate remedy, and the balance of convenience weighed against the grant of an interlocutory injunction.
100 On the former issue, the defendants submitted that neither plaintiff enjoyed a reputation of any substance in the jurisdiction, and any award of damages would be very modest, if not nominal. Further, the special losses identified — principally the damages claimed by DRF under s 236 of the ACL — had either not been suffered by the plaintiffs, or, if suffered, were not materially contributed to by any conduct of the defendants. Alternatively, damages could be readily assessed and would be modest.
101 The principal consideration on the issue of balance of convenience was the application of the rule in Bonnard v Perryman. The exchange of publications on the internet between the parties was plainly an instance where the importance of unfettered free speech on an issue of public health outweighed the importance of protection of individual reputation.
102 The defendants contended that an injunction will not be granted in cases other than defamation where that injunction would have the same effect on free speech as if the claim had been made in defamation.[37] A plaintiff cannot persuade a court to decline to exercise the particular caution applicable in defamation proceedings merely by reframing their case in injurious falsehood or some other cause of action. In the circumstances of this application, this principle extended conceptually to DRF’s ACL claim. The defendants submitted that the proceeding was, in essence, a defamation action, because the factual matrix was intertwined. DRF was the alter ego of Dr Farrah and the conduct complained of as being misleading and deceptive exactly replicated the allegedly defamatory imputations said to be carried by the first to seventh videos.
103 The defendants contended that there is no public interest in restraining Dr Smith by preventing him from being able to respond to material posted online by Dr Farrah, particularly where it would not be shown until trial whether the defendants’ publications were justified or otherwise defensible. Those who view Dr Smith’s publications have a real and immediate interest, arising from their basic health and well-being needs, to receive that information. Dr Farrah could (and did) respond to Dr Smith in debate, reaching a far greater audience than the videos now complained about, and she responded with personal attacks, examples being the video about the service of the Notice and by challenging Dr Smith to a ‘duel’.[38]
104 Dr Smith has deactivated the comments function on any video referring to Dr Farrah, her advice or her treatments on his YouTube channel, and had encouraged the owner of the Facebook Group Page to remove offensive and defamatory comments posted by others. What remains is not in the category of what counsel described as ‘the sort of vile anonymous tripe that's often published on the internet for no legitimate reason’. To the contrary, Dr Smith was encouraging legitimate medical public interest debate for the public good.
105 The disclaimers relied on by the plaintiffs were largely obscurely when presented on websites and pages, and it is a question for trial whether the allegedly false and misleading nature of Dr Farrah’s messages is affected by such disclaimers. The real vice in Dr Farrah’s communications and use of testimonials is encouraging those with serious medical conditions to entertain false hope, where a genuine choice for a better outcome could be, and was, communicated by Dr Smith.
106 Statements like ‘You have cancer ... The best thing for you is garlic’[39] are positively dangerous and misleading to a lesser educated audience. It could be strongly contended that it was in the public interest that Dr Smith have the capacity, not just to comment upon such claims, but to educate people who view his videos about their choices for their life-threatening condition.
107 Further, the defendants contended that the plaintiffs’ defamation claims were weak. Many imputations simply did not arise from the publications complained about, and other imputations were not of a defamatory character. The plaintiffs barely have a reputation in Australia. There was a very substantial public interest in the discussion of public health considerations, and that the defences at trial — particularly truth, honest opinion and contextual truth, as well as statutory qualified privilege — have sound prospects of success in the proceeding, and cannot be presently be evaluated.
108 Similarly, DRF’s claim under the ACL did not, on preliminary assessment, appear to be strong. Firstly, the representations contended for may not be misleading and deceptive, particularly in the context of the issues foreshadowed to be raised by the defendants in their defences to the defamation claim. Secondly, the conduct is not in trade or commerce, as s 18 of the ACL requires, because they are not activities or transactions which of their nature bear a trading or commercial character.[40] The defendants’ essential contention was that the statements, properly characterised, were public advocacy, and not statements made in trade or commerce. The defendants’ videos do not, except in the most minor and peripheral way, relate to the sale of any product. The plaintiffs’ submission to the contrary — to be evaluated at trial — was not particularly compelling. The tribunal of fact may well conclude that what Dr Smith was doing was publicly discussing claims made by Dr Farrah, from the United States, in marketing goods manufactured in the United States and sold in the Philippines.
109 The applicable principles on this application were identified by the High Court in Australian Broadcasting Corporation v O’Neill (‘O’Neill’).[41] To summarise:
(a) A plaintiff must demonstrate a prima facie case. This requirement is to be understood as whether there is a serious question to be tried as to the plaintiff’s entitlement to relief, not whether it is more probably than not that the plaintiff will succeed at trial. The sense in which the test is understood is that the plaintiff must prove, prima facie, a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending trial. In context, it must show that it has a putative legal or equitable right, in respect of which final relief is sought, which will justify the interlocutory restraint contended for. The requisite strength of the probability of ultimate success depends on the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.(b) The injury which a plaintiff is likely to suffer, should interim relief not be granted, must be one for which damages will not provide an adequate remedy.
(c) The balance of convenience must favour the granting of an injunction. The balance of convenience requires the consideration of the relevant matters favouring or militating against the granting of an injunction, which will necessarily involve a consideration of the strength of a plaintiff’s claim, assuming that a serious issue has been identified.
(d) There may be other discretionary considerations which militate against the grant of an injunction.
110 These principles can be read with the decision of the Court of Appeal in Bradto.[42] The court should, in determining whether to grant an interlocutory injunction:
take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’, in the sense of granting an injunction to a party who fails to establish his right at trial, or in failing to grant an injunction to a party who succeeds at trial.[43]
111 In O’Neill, the High Court commented on the particular caution to be exercised in respect of restraint prior to trial in defamation cases, tracing back to Bonnard v Perryman.[44] Gleeson CJ and Crennan J, while emphasising the discretion that is reserved to the court, noted Lord Coleridge CJ’s conclusion was that:
it is wiser in this case, as it generally and in all but exceptional cases must be, to abstain from interference until the trial...[45]
112 Their Honours cited Walsh J in Stocker v McElhinney (No 2),[46] and the Full Court of this court in National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd (‘National Mutual’) that followed it.[47] Their Honours concluded:
In the context of a defamation case, the application of those organising principles will require particular attention to the considerations which courts have identified as dictating caution. Foremost among those considerations is the public interest in free speech. A further consideration is that, in the defamation context, the outcome of a trial is especially likely to turn upon issues that are, by hypothesis, unresolved. Where one such issue is justification, it is commonly an issue for jury decision. In addition, the plaintiff's general character may be found to be such that, even if the publication is defamatory, only nominal damages will be awarded.[48]
113 Gummow and Hayne JJ identified in the cases the development of both ‘rigid’[49] and ‘flexible’[50] rules of practice in the application of the organising principles for interlocutory injunctions in cases of defamation. Their Honours noted two difficulties with the flexible approach and identified the significant retention of the right to trial by jury in defamation claims under the current legislation. With respect to tortious liability to be determined at trial, the balance between competing interests —protection of reputation and right of free speech — was struck by statute, and the prospect of an award of no more than nominal damages is a powerful factor when considering whether the balance of convenience favours denying interlocutory relief.
114 The recognition of the need for caution in exercising this jurisdiction — or, put another way, the need for exceptional circumstances before the right of free speech is constrained in anticipation of a verdict to be reached at a later trial, in what I have referred to as the rule in Bonnard v Perryman — are matters adequately encompassed in the organising principles for interlocutory injunctions identified in O’Neill. They are applied having regard to the nature and circumstances of the case.
115 As was earlier said by the Full Court of this court in National Mutual:
In the case of an application to restrain a libel ... the very great importance which our society and our law have always accorded to what is called free speech, means that equity exercises great care in granting injunctive relief and does so only where it is very clear that it should be granted. It has been said in high places, and said on high authority from the Bench, that it is by no means rarely a benefit to society that a hurtful truth be published. It has been felt, we think, that it is usually better that some plaintiffs should suffer some untrue libels for which damages will be paid than that members of the community generally, including the so-called news media, should suffer restraint of free speech. The judges over the centuries have also been well aware how easy it would be for a tyrant to stifle all opposition by deciding what was ‘genuine’ free speech, to be allowed, on the one hand and what was an unjust or unfair or dishonest taking advantage of free speech, to be repressed, on the other hand. When the court enjoins, it must be extremely clear that no unacceptable repression is taking place. It has thus been laid down that it is only in a clear case that the court will intervene by injunction.[51]
116 The plaintiffs submitted that this application could be guided by the recent Federal Court decisions in Webster v Brewer (‘Webster’).[52] On the initial application for an interim injunction, Wheelahan J identified two considerations that tipped the balance in favour of the applicant, notwithstanding the law’s reluctance to restrain free speech. First, his Honour could not find a defence with any apparent prospects of success, and second , the ‘vile nature’ of the publications and the imputations apparently carried by them (which his Honour declined to articulate and which had already been extensively published) suggested the case was exceptional, in the sense identified in the authorities. When granting an interlocutory injunction in the same proceeding, Gleeson J also saw no good purpose in reproducing the publications in her reasons for judgment. Her Honour also saw good reason to be concerned that significant reputational damage might yet be done by further publications. There are many points of distinction between the present application and Webster.
117 The jurisdiction of this court to entertain this action is not in doubt. However, relevant to the balance of convenience is the principle that a claim for damage to reputation will warrant an award of substantial damages only if the plaintiff has a reputation in the place where the publication is made.[53]
118 DRF has also pleaded a claim for breach of s 18 of the ACL. Some aspects of the applicable principles where a statutory injunction jurisdiction is enlivened[54] can be noted:
(a) The jurisdiction which the court exercises is a statutory jurisdiction, not the Court’s traditional equity jurisdiction.(b) Parliament has made it clear that the court, in exercising its statutory jurisdiction under s 232, is not to be confined by the considerations which would be applicable if it were exercising its traditional equity jurisdiction.
(c) Among the considerations which the court must take into account in an application for an injunction under s 232 are wider issues discernible from the terms of the section. They may be gathered under the broad question whether the injunction would have some utility or would serve some purpose within the contemplation of the ACL. These broad considerations are to be taken into account regardless of whether the application is for a permanent injunction under s 232 or for an interim injunction under s 234.
(d) The court is more likely to give greater weight to the broad question of whether the injunction would serve a purpose within the contemplation of the ACL where an application under s 232 is made by the applicable regulator, rather than a private litigant.
(e) Where there is an appreciable — that is, not fanciful — risk of particular future contraventions of the ACL by a defendant, it would serve a purpose within the contemplation of the ACL that the court grant, in an appropriate case, an interim or interlocutory injunction restraining such conduct.
(f) Although the questions of whether there is a serious question to be tried and where the balance of convenience lies will not circumscribe the court’s consideration in an application for an interim injunction under s 232, the interests of justice will always require that those questions be examined carefully when restrictions are sought to be imposed before the case has been properly examined by the Court, even where the protection of the public is said to be involved.[55]
119 The plaintiffs’ application will be refused for the following reasons.
120 I am not persuaded that damages — the usual remedy in both defamation proceedings and actions under s 18 of the ACL — will be inadequate, for reasons that I will set out in due course.
121 The plaintiffs must establish a risk of ongoing reputational damage in circumstances where, in the context of a serious public interest debate about health issues, Dr Smith is predominantly likely to publish further material on social media as a result of the plaintiffs continuing to make contestable claims about Dr Farrah’s methodology and DRF’s products. It may be accepted, as Dr Smith indeed makes clear in his videos, that he intends to continue responding to material uploaded onto the internet by Dr Farrah.
122 According to the material, Dr Smith’s last post on social media regarding Dr Farrah was on 17 February 2021. He submitted that he does not intend to publish any further videos unless it becomes necessary to respond to a further publication made by the plaintiffs. The parties were unable to agree on any form of mutual interlocutory restraint. As is explained later in these reasons, Dr Farrah is presently constrained by legal issues, because her products cannot be sold in the Philippines. There is not then a significant risk that the public debate that has unfolded over the last six months will continue either at all or with the same intensity.
123 Perhaps more significantly, any form of interlocutory relief is likely to be futile. Even if the conduct associated with the first to seventh videos be construed as conduct continuing to breach s 18 of the ACL while those videos remain accessible, because the plaintiff seeks no relief in respect of the eighth to fifteenth videos, publications containing allegedly defamatory statements/misleading or deceptive representations will remain accessible.
124 Dr Farrah said of those videos:
[The eighth to fifteenth] videos publish many defamatory statements and misleading or deceptive representations about myself and DRF, some of which are new and others which are repeated, including the following:(a) I make a lot of false medical claims;
(b) I am crazy because I gave false assurances to a patient by saying that her colon cancer was at an early stage and “very easy to cure”;
(c) I am ridiculous because I claimed to diagnose a patient with stage 4 breast cancer by simply feeling the lump;
(d) I caused a patient to die from starvation due to my “crazy diet advice”;
(e) My products can cure cancer;
(f) I had sued Smith to scare him;
(g) I am a quack who gives makes up bullshit products, advice or prescriptions that don’t work;
(h) I give false advice to people that is dangerous;
(i) I am evil and very cruel because I lied to a patient to sell my medicine and gave the patient false hope and expectations;
(j) I use religion to sell products that don’t work or are dangerous to people;
(k) I use religion to give false advice to people;
(l) I am a scammer;
(m) I lied about graduating from Harvard University.
125 The plaintiffs took no steps in a period of 22 weeks from publication of the first video until the summons on this application to seek interim or interlocutory relief. The consequences, as I have noted, are that the material that they seek to impugn has already been distributed and accessed, apparently very widely, across the internet. Dr Farrah has, on her own account, already suffered catastrophic consequences, but there is no reasonable basis now disclosed to anticipate ongoing fresh injury. The plaintiffs submitted that the seven videos had collectively been viewed somewhere between 24 to 25 million times.
Defamation and the public interest debate
126 The evidence on this application also clearly established that Dr Farrah, particularly through Facebook, has posted material directed at Dr Smith and responding to his videos, and that she commands a significantly greater audience on the internet for her publications via her social media networks than he does.
128 In response to the claim for injunctive relief in defamation, the rule in Bonnard v Perryman is a powerful consideration in favour of concluding that the balance of convenience favours the refusal or the relief sought.
The ACL claim and the public interest debate
129 The plaintiffs submitted that there were similarities between the ACL claim and the tort of injurious falsehood because each protects proprietary and commercial interests, rather than personal interests. This submission, albeit superficially attractive, requires careful analysis. The genesis for this contention may lie in the historical setting of Bonnard v Perryman. When that case was decided, courts were still working through the implications of the Common Law Procedure Act 1854 (UK) that conferred the power on courts exercising common law jurisdiction to grant injunctions and, later, the reforms by the Judicature Acts. Courts of equity, able to grant injunctions, did not hear defamation actions, but could do so where publication affected proprietary interests. Such cases — trade libels — developed into the present day causes of action in injurious falsehood, breach of confidence and passing off. The submission also draws on the reasoning of Kay LJ (in dissent) in Bonnard v Perryman, who noted a concern that to merely raise an intention to justify a publication at trial would too readily defeat an application for injunctive relief, a minority approach in the cases for over a century.[56]
130 The plaintiffs contended that notwithstanding that the conduct said to be in contravention of s 18 of the ACL was publication of the same material that founded the claims in defamation, the inhibition on the use of an injunction to restrain further publication of defamatory material relating to the public interest or freedom of speech is not an applicable consideration, on the balance of convenience, in the context of the ACL cause of action. That was so because the ACL cause of action is relevantly analogous with slander of goods, a subspecies of the tort of malicious falsehood. An injunction limited to restrain the disparagement of the plaintiffs’ goods is conceptually different to an injunction that the court may decline to grant in defamation.[57]
131 In O’Neill, Gummow and Hayne JJ recognised that the requirements of the tort of injurious falsehood — specifically malice and special damage — may result, as a logical consequence, in an injunction being granted in respect of an injurious falsehood claim when a defamation claim might be, or was, also advanced.[58] Their Honours drew on the authority of the established exceptions for trade libel, but their reasoning should not be stretched to unintended consequences.
132 I am not able to accept the plaintiffs’ submissions in this regard. I am not persuaded that, in the present circumstances, the defendants’ publications can be likened to disparagement of the plaintiffs’ goods or to injurious falsehood. What is required is a careful assessment of all of the relevant circumstances. The modern formulation of the rule by the High Court in O’Neill rejected the notion of defamation as an exception to general equitable principle. O’Neill requires that the organising principles for interlocutory injunctive relief be applied, and that the balance of convenience be determined in the context of the causes of action that have been pleaded.
133 For the reasons that follow, in all of the circumstances of the present case, I am satisfied that the consequence that an injunction can inhibit or constrain freedom of speech in legitimate debate about public health (or in respect of that topic), of which there is public interest in another country, is relevant to the balance of convenience on this application in the context of the ACL claim.
134 I start with the cases. In Swimsure (Laboratories) Pty Ltd v MacDonald (‘Swimsure’),[59] where a plaintiff alleged both defamation and slander of goods, Hunt J noted that the key issue was not whether the defendant, in disparaging the plaintiff’s goods, had a right or privilege to do so, but rather whether he has done so maliciously and whether, in doing so, he has caused actual damage to the plaintiff. In that case, Hunt J was not satisfied that the plaintiff had framed its action as one for slander of goods in order to avoid the rule in Bonnard v Perryman). Hunt J concluded that an injunction limited to the disparagement of the plaintiff’s goods would not have the effect of an injunction that was sought by the plaintiff, but refused by the court, in respect of its defamation claim.
135 The circumstances in this case require a different conclusion to that reached by Hunt J for at least two reasons. First, unlike that case, the nature of both the impugned publications and the interlocutory relief sought by DRF in respect of its ACL claim — the removal of the first to seventh videos from the internet — mean that questions of free speech and discussion of matters of significant public interest do arise in this proceeding. The identical relief is sought in each cause of action. Second, the critical element of malice is neither an element of the cause of action under the ACL nor an issue raised in the proceeding.
136 In Kaplan v Go Daddy Group,[60] the defendant posted on the internet allegedly false statements about the plaintiff in connection with servicing of a motor vehicle. In those circumstances, no matter of public interest or concern was identified, and White J concluded that the rule in Bonnard v Perryman was inapplicable.
137 The issue arose again in Palmer Bruyn & Parker Pty Ltd v Parsons,[61] where Gummow J recognised that a rationale for the distinction between injurious falsehood and defamation was said to be that the former tort protects proprietary and commercial, rather than personal, interests.[62]
138 In Australand Holdings Ltd v Transparency & Accountability Council Incorporated,[63] a final injunction restraining a threatened publication disparaging of a building company was granted. As defamation was not alleged, the injunction was granted without reference to the rule in Bonnard v Perryman.
139 This case does not assist greatly. For one, McCallum J (as her Honour then was) rejected the defendant’s contention that publication was in the public interest, an issue in this proceeding that remains for determination at trial. Second, although the causes of action relied on by the plaintiff were injurious falsehood and breach of s 42 of the Fair Trading Act 1987 (NSW), and the plaintiff succeeded at trial in obtaining final injunctive relief, it did so on its cause of action for injurious falsehood; its cause of action under the Fair Trading Act was dismissed.
140 In Beechwood Homes (NSW) Pty Ltd v Camenzuli,[64] the defendant was restrained until trial from publishing statements or allegations about the plaintiff that allegedly breached of s 42 of the Fair Trading Act 1987 (NSW) or constituted the tort of injurious falsehood. Statements published by the defendant centred around the competence and integrity of the plaintiff, a company that built residential homes. The plaintiff contended that the publications had no wide ramifications of public interest of the type that would attract the rule in Bonnard v Perryman. Harrison J, citing the passage from O’Neill that I earlier referred to,[65] was satisfied that the proceeding was not one in which the plaintiff illegitimately formulated its case by avoiding a cause of action in defamation, so as to avoid what would otherwise be a fatal impediment to success in its application for interlocutory relief. Accordingly, and similarly to the outcome in Swimsure discussed earlier, his Honour found that the rule in Bonnard v Perryman was inapplicable.
141 Turning to the present circumstances, the plaintiffs do not distinctly allege that Dr Smith acted maliciously: malice is not pleaded, and no claim based on the tort of injurious falsehood is made or foreshadowed. Instead, the plaintiffs contended that there was a campaign of harassment against them, and that Dr Smith invoked a mocking and belittling tone in his videos. The plaintiffs submitted in argument that the videos were sensationalist; mocking the plaintiffs without any factual foundation, and doing so in a very demeaning, unbalanced and biased way, aimed at humiliating her and destroying the business of DRF. They asserted that the defendants’ conduct was very close to (if not actual) harassment of the plaintiffs over a long period of time.
142 Bearing in mind that the tribunal of fact is not invited to find malice, how such submissions might be received and assessed must await the trial. In any event, such a contention may well need to be weighed with the context of Dr Farrah’s own publications, which to me did not appear to be free of the like criticism. On this application, the tone and intent of the publications of both parties cannot be fairly assessed and should await trial. The lack of protection at common law for the malicious exercise of the right of free speech is not a consideration enlivened on this application.
143 Secondly, any commercial or proprietary interest of DRF that it seeks to protect by its application for an interlocutory injunction is inextricably linked to Dr Farrah’s own reputation. So much was acknowledged by Dr Farrah in her evidence. DRF (seemingly an acronym of the words ‘Dr Farrah’, as emphasised) sells product because Dr Farrah is a well-known advocate of natural remedies in the Philippines. It is in that context that Dr Farrah publishes, through her social media, testimonial statements and expressions of opinion on matters of significant public interest, namely the efficacy of traditional treatments and therapies in comparison with treatments and therapies recommended by Western medicine. As Dr Smith submitted, the public debate between the two categories of treatment is significant and important, because of the capacity for the commercial activities of the plaintiffs to directly affect the health, welfare and livelihoods of millions of Filipinos.
144 These assessments are not easy to make on an interlocutory application. A fact sensitive inquiry at trial is the safer course, particularly where, as here, there are other reasons for declining to grant the relief sought. Presently, taking account of all of the material before the court, there is no relevant distinction between the protection of DRF’s commercial or proprietary interest, and the protection of Dr Farrah’s reputational or personal interest. That commonality distinguishes this proceeding from those authorities that dismissed the rule in Bonnard v Perryman as inapplicable to the balance of convenience consideration when considering a secondary claim similar to DRF’s ACL action.
145 The sale of product by DRF is consequential on the opinions expressed by Dr Farrah about health matters, the methods of diagnosis and appropriate therapeutic responses. As a corollary, and most importantly, Dr Farrah’s communication of her opinions — if Dr Smith’s contentions are accepted at trial — significantly affects the wellbeing of others, by driving the sale of those products. Beyond the issue of therapeutic concern, Dr Smith does not criticise the products, except to draw attention to the law of the Philippines affecting their promotion and sale. Although the plaintiffs submitted that he described Dr Farrah’s ‘Pixie Dust’ supplement as a ‘joke product’, the context of that statement was about its therapeutic use rather than its composition. The interests of consumers in receiving choice and proper information for healthcare decisions are put directly into conflict by the plaintiffs’ entry into that public debate about matters of significant public interest. In doing so, Dr Farrah evidently utilises her reputation and her following for commercial advantage. It would be an unacceptable restriction on Dr Smith’s freedom to speak on such matters until it was established that the alleged defamatory imputations are untrue or otherwise indefensible, especially while Dr Farrah’s ability to communicate was unfettered.
My mother held onto Farrah's words and stubbornly refused to see a real doctor. She finally relented and we had an appointment on Monday. She died on Friday and in the worst way possible. I saw the exact moment life left her body as I drove against the traffic and tried to hold her up.She was pronounced dead on arrival.
As I was looking through her belongings, I found notebooks, one filled with cancer "cures" from google, some notebooks documenting her pain.
I had my first breakdown.
We fought for so long yet I couldn't get her to stop listening to Farrah. She was using cabbage to "treat" her pain and was secretly buying Farrah's products. But what she needed was a real doctor, a real diagnosis, real treatment.
Farrah is dangerous and should be stopped. Please save yourselves the heartache and keep your loved ones away from her. She loses all power and influence if we stop listening, stop following, stop buying and fight back with scientific, medical data...
(a) the proposition that Ms Chavez had not been treated by Dr Farrah appears unmaintainable, in light of the Facebook Messenger chatlog; and(b) it can be accepted that Dr Smith’s allegations that Dr Farrah’s advice and treatments are dangerous are extremely serious, but they are not answered by the absence of formal regulatory action in the Philippines.
159 The defendants further submitted that the public interest in communicating Dr Smith’s opinions and the facts upon which they are based was relevant to the question of balance of convenience in the ACL cause of action, because it was relevant to determining whether DRF had a strong claim that there had been misleading or deceptive conduct. In that respect, the defendants submitted that DRF’s claim was weak. Ultimately, this is a matter for trial and must be regarded as a neutral factor in the assessment of the balance of convenience, save that the defendants contended that an injunction by way of take down order and to restrain future publication should not be granted on an interlocutory basis, where DRF is unable to clearly demonstrate the misleading nature of the defendants’ conduct.[66]
I have great sympathy for Professor Grygiel’s position. It is, no doubt, extremely hurtful for an eminent professional otherwise recognised as a leader in his field to be the subject of such allegations which he hotly contests. On the other hand, I accept the force of the argument that a greater interest may possibly be involved and there can be no doubting the aspect of public interest not only in the general principle relating to freedom of the press but also in the particular story.One needs to bear in mind that, although these allegations are serious, the interests of the patients are also involved and if the allegations are even possibly true, although it would be harmful if those persons who were cancer survivors were unduly alarmed, at the same time it is appropriate that they receive information about the allegations.[69]
163 The relevance of the public interest to the balance of convenience in causes of action other than defamation is demonstrated by authority. In Animal Liberation (Vic) Inc v Gasser,[70] a proceeding in defamation and injurious falsehood was brought by a circus operator against animal liberation protestors who had distributed a pamphlet that stated they had proof of the operator’s cruelty toward animals. The Court of Appeal held that the trial judge fell into error by not giving appropriate weight to the right of the appellants to free speech, or to the importance of the community of exposing acts of animal cruelty.[71]
164 There is not a clear working test to identify when a concurrent cause of action not directly concerned with freedom of expression — such as the ACL claim in this proceeding — should be subject to the restrictions of the rule in Bonnard v Perryman. It is necessary to characterise the claimant’s interests in the proceeding broadly and their forensic decision to plead multiple causes of action. The inquiry is necessarily fact sensitive and, perhaps, no more than a matter of judicial impression.[72]
165 That noted, O’Neill incorporated the exceptional circumstances of defamation actions into the organising principles for injunctions, rather than decreeing defamation actions to stand outside those principles as a special rule. Consideration of the interests of third parties and the public interest have always been found by courts to be relevant to the balance of convenience.[73]
166 In GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare,[74] a patent infringement case, the court recognised a strong public interest in having available to consumers the option of being able to choose between the ‘Children’s Panadol 1-5 years’ product, which incorporated a safe dispensing system, and another paediatric analgesic, whose manufacturer alleged to have patented that dispensing system. In doing so, it recognised the important public health benefits to parents and children by facilitating a more accurate dosage of medicine to children, leading it to refuse the interlocutory application sought by the patent holder to prevent the other product from being sold.
167 On careful examination of the issues arising in the alternative ACL cause of action, there are many indicia of a very close alignment between the plaintiffs’ causes of action in defamation and DRF’s cause of action under the ACL. I am satisfied that, for the purposes of this application, the rule in Bonnard v Perryman should apply in the ACL claim.
168 Although that conclusion is sufficient to decide the balance of convenience in favour of the defendants, there are, as I have noted, a number of other factors that also weigh the balance in favour of refusing the relief sought by the plaintiffs. That is so principally because, absent reliance on Dr Farrah’s reputation, DRF would not sell any product. Further, since she left the Philippines to live in the United States, Dr Farrah appears to have has only practised natural medicine, at least on the material filed for this application, by marketing products for DRF. The debate between the parties as to whether the claims of the other are misleading or deceptive are inextricably intertwined.
172 I am not persuaded that the commercial activities, such as they are, of Doc Adam bear to any significant degree on the balance of convenience. The defendants contended that they are not commercial competitors with either of the plaintiffs and that Doc Adam did not sell any goods other than t-shirts. The plaintiffs’ references to other products are apparently sold by a company that is neither owned nor operated by either of the defendants.
173 Doc Adam also offers a ‘YouTube training course’, mostly given away for free, which has earned approximately $46.13. Doc Adam also received payment as a content creator for YouTube (and until recently Facebook) and was paid a proportion of advertising revenue derived by those platforms when an advertisement was played during one of his videos. After accounting for expenses, these commercial activities have generated a profit of approximately AU$12,000 via YouTube, and revenue of approximately US$10,000 via Facebook. The majority of the YouTube earnings are not derived from videos about the plaintiffs.
174 Returning to the issue of loss and damage, Dr Farrah admitted that her products, when dispensed from the Medical Centre, were not approved by the FDA, and stated that she was still waiting for this approval. She asserted that obtaining this approval was a contractual obligation of her distributor, Ms Dela Cruz.
175 An affidavit filed by the defendants’ solicitor expressing his belief based upon information provided by a Filipino attorney, Mr Ranny Randolf B. Libayan, set out the relevant sections of an Act of the Republic of the Philippines known as ‘Republic Act No. 9711’, signed on 18 August 2009 and known as the Food & Drug Administration (FDA) Act of 2009 (‘FDA Act’). Section 11 of the FDA Act prohibits the manufacture, importation, exportation, sale, offering for sale, distribution, transfer, non-consumer use, promotion, advertising or sponsorship of any health product that is adulterated, unregistered or misbranded. The consequences of a contravention are penal, and s 12 of the FDA Act provides for substantial penalties, including imprisonment.
176 Although it is not perfectly clear from the material, I am satisfied that Dr Farrah’s primary audience is average Filipino people. Accordingly, DRF’s customers are likely to be predominantly located in the Philippines and entitled to protection from unlawful or prohibited importation, offering for sale, promotion, advertising or sponsorship of its products, precisely as the FDA Act requires.
177 As noted earlier, DRF identified specific losses of US$189,000 and US$600,000 through the termination of distribution agreements with Ms Hernandez and Ms Dela Cruz respectively. Counsel submitted there was a clear causal link between the defendants’ videos and the loss of those distribution agreements. The strength of this argument is ultimately a matter for trial. The competing argument raised by the defendants in respect of Ms Dela Cruz — that the videos drew the FDA’s attention to the fact that the distributor was selling products in breach of Philippine penal law — might ultimately be found at trial to be a more compelling conclusion.
178 Disclosure of the true fact that the plaintiffs’ product cannot be lawfully sold in the Philippines may obviate any continuing loss. The plaintiffs should only benefit from a restraint against the defendants continuing to expose the fact that sales of DRF’s product in the Philippines was unlawful if that were misleading or untrue. On this question of actual loss, the intersection between freedom to speak the truth and protection from false and misleading statements in trade or commerce is stark. This is an example of how the defendants’ failure to establish the truth defence at trial is the other side of the same coin for the plaintiffs, specifically DRF, who must establish that false and misleading statements have been made.
179 The sequence of events is significant. The advisories issued by the FDA on 25 November 2020 identified that DRF’s products were being sold illegally. The fourth video, published on 29 November 2020, contained warnings about the impact of those advisories, including identifying that the continued distribution of the products by Ms Dela Cruz in the Philippines would be unlawful. Shortly after that video, Ms Dela Cruz posted a statement on Facebook in support of Dr Farrah. Dr Smith’s response to that statement came in the sixth and seventh videos, both published on 30 November 2020, including his interview with the Philippine lawyer who, has noted above, explained the effect of the law and the advisories.
180 The defendants contended that these circumstances were relevant both to loss and to understanding the submission concerning the public interest. On the latter, Dr Smith submitted that he was warning or advising people that the institution responsible in the Philippines for regulating DRF’s products, the FDA, was warning that Dr Farrah’s promotion of them was unlawful in the Philippines.
181 Dr Farrah responded that it was not illegal to consume amounts of these products not exceeding 500 grams for personal use. However, the issue for Ms Dela Cruz was that she was commercially importing the product and in far greater quantities. So much was evident from the account records tendered by the plaintiffs in support of the claimed loss, said to add up to a figure in excess of US$600,000 per annum. There were some questions around the proper interpretation of these documents that can await the trial. The significant question for present purposes is that there is a serious causation question that Ms Dela Cruz ceased distributing the products because she became aware that it was not lawful to do so.
182 DRF is not entitled to claim damages for loss of income that would have been earned by reason of an illegally conducted business.[75] The applicable principle is that damages are not recoverable in circumstances where the compensable losses claimed are in respect of profits that the plaintiffs made by operating a business illegally, or are in respect of future profits which would be made by conducting a business illegally.
183 The plaintiffs’ claim that, at trial, they will demonstrate in the ACL cause of action that they have suffered a material loss presently appears weak. There are only two heads of loss particularised that would not be so affected. The first is losses on distributions of product outside of the Philippines, the extent of which cannot be identified on the evidence as an amount of any significance. The second is the termination of the ‘Dr. Farrah’s Book of Natural Home Remedies’ book deal, noted earlier. However, the basis for that agreement coming to an end is unexplained, beyond an unsubstantiated assertion by Dr Farrah that it was due to the defendants’ conduct, and in argument the plaintiffs did not seek to press that issue on the application.
184 Further, should the plaintiffs be able to establish some residual loss at trial, the defendants contended that damages would be an adequate remedy and the inference was reasonably open that they could meet any damages award, a further factor suggesting that the balance of convenience on the application favours the defendants.
Misleading or deceptive conduct
185 A further issue in contest on this application was whether it was fanciful to claim that the misleading and deceptive conduct alleged against the defendants, or either of them, was part of the activity of carrying on a business, and, if so, whether publication of the first to seventh videos was conduct in trade or commerce.
186 The leading decision on these questions is Murphy v State of Victoria (‘Murphy’).[76] In Murphy, the primary issue was whether it was ‘just and convenient’ to order the determination of preliminary questions before trial,[77] including whether certain conduct was engaged in by the State of Victoria as part of it carrying on a business, and whether representations made by the State were made in trade or commerce. The Court of Appeal concluded that the question whether the impugned representations were made by the State in the course of carrying on a business (and further, in trade and commerce, within the meaning of the ACL) was a question of fact and degree.
187 The court did not disagree with the trial judge’s identification, after a thorough review of the authorities, of the following propositions,[78] which are relevant and helpful on this application:
(a) for activities to constitute ‘carrying on a business’, they must be undertaken in a commercial enterprise or as a going concern. The activities must constitute trade, or commercial transactions or engagements. A business activity is an activity which takes place in a business context and which, of itself, bears a business character;(b) the expression ‘carry on a business’ signifies a course of conduct involving the performance of a succession of acts with system and regularity, not the effecting of a solitary transaction. The less commercial the character and objectives of an organisation, the greater the degree of system and regularity required to establish that it carries on a business;
(c) on the other hand, mere repetitiveness is insufficient. It does not necessarily follow that one who engages in transactions of the same kind systematically or regularly is carrying on a business in those transactions (eg. regular deposits into a bank account). Absence of a system and regularity might deny that a business is being carried on, but their presence does not necessarily establish that it is;
(d) there is a distinction between those functions of a government which are purely governmental or regulatory and those functions which entail the carrying on of business. To carry on some part of ‘the business of government’ is something different from carrying on a business in the relevant sense;
(e) the carrying out of a function of government in the interests of the community, such as the performance of a statutory function (including one in respect of which fees may be charged), is not the carrying on of a business. That the purpose of the activities is the provision of governmental services will tend against a conclusion that they amount to the carrying on of a business; and
(f) there must be present some element of commerce or trade such as a private citizen or trader might undertake.
188 The Court of Appeal added several further observations. Firstly, the word ‘business’ is an ‘entomological chameleon’ which takes its meaning from the context in which it appears and from the purpose of the statute in which it is found.[79]
189 Secondly, they commented that:
although we agree with the judge that, in order to constitute the carrying on of a business, the activities in question must present some element of commerce or trade such as a private citizen or trader might undertake; and that, as is established by authority, there is a distinction between those functions of a government which are purely governmental or regulatory and those which may entail the carrying on of business, it is important to keep in mind that, in some cases, the two may co-exist.[80]
190 Thirdly, they noted that the trial judge had identified three important limitations inherent in s 18 of the ACL,[81] being that:
(a) the focus must be on the impugned conduct: the impugned conduct must be engaged in in the course of carrying on the business;(b) consequently, it is not sufficient that the impugned conduct be connected in some way with a business to be conducted by the State at some time in the future; and activities preparatory to the establishment of a business do not constitute the commencement of or the carrying on of a business; and
(c) the activity in the course of which the impugned conduct occurs must properly be characterized as carrying on a business.
The Court of Appeal did not disagree, but added that:
considerable care should be taken when drawing the line between what the judge described as activities preparatory to the establishment of a business and acts which may in fact be done early on in the carrying on of the business.[82]
191 Relevantly, in the present circumstances, two questions arise. The first is whether the publication of Dr Smith’s videos was intended to inform and engage communities of Filipinos in a public health campaign to educate them in relation to personal choices for diagnosis and treatment of serious medical condition and was, as such, devoid of any business or trade in its character. As the court noted in Murphy, in respect of the distinction between governmental activity and commercial activity, this question is fact sensitive. The same analogy can be applied to the conduct of Dr Smith and whether the publication of the videos is entirely for an educational purpose or is imbued with a commercial flavour, having regard to the nature of the business of Doc Adam.[83]
192 I accept the plaintiffs’ submission that whether the conduct amounted to carrying on of the business must ultimately be a question for trial, and I express no concluded opinion on that question. For the purposes of this application, on the evidence before me concerning the commercial activities of Doc Adam, and having regard to the content of the videos and the messages that they convey, the plaintiffs’ submission that the defendants were carrying on a business is not so strongly supported on the evidence that the balance the convenience could favour the interlocutory relief sought by the plaintiffs on this aspect of DRF’s ACL claim.
193 The next question is whether the conduct of the defendants was in trade or commerce, which was authoritatively considered by the High Court in Concrete Construction (NSW) Pty Ltd v Nelson.[84] The High Court’s reasons have been followed and explained in many cases, but it is unnecessary in the present circumstances to review all of the authorities. Some specific principles can be noted:
(a) even though the terms ‘trade’ and ‘commerce’ are not terms of art, they are ‘expressions of fact in terms of common knowledge of the widest import’, and the terms are prefaced by the preposition which restricts the operation of the provision;[85](b) in any particular case, there may be a temporal issue, as the impugned conduct must coincide with the conduct of trade or commerce;[86] and
(c) although the categories are not necessarily mutual exclusive, conduct that is education or a matter of public debate may often lack the necessary commercial character to constitute conduct in trade or commerce.
194 In determining whether the impugned conduct is an aspect or element of activities or transactions that, of their nature, bear a trading or commercial character, a distinction may be drawn between representations that are made ‘about’ trade or commerce and representations that are made ‘in’ trade or commerce, for example, where there is no trading or commercial relationship between the representor and the representee.
195 In Village Building Company Limited v Canberra International Airport Pty Limited (No 2),[87] Finn J considered whether representations in relation to noise forecasts on projected flight paths into the Canberra Airport were made in trade or commerce. His Honour concluded that s 52 of the Trade Practices Act 1974 (Cth) (the predecessor provision to s 18 of the ACL) had no role to play. The circumstances included that the representations in question were made in the context of a planning application having been made to re-zone the relevant area for development. By operation of statute, the Airport had a necessary and ongoing interest in aircraft noise and its incidence. The Airport opposed the planning application, which took place in the form of community consultation and representations for the purpose of informing and influencing public, political and governmental opinion. It sought to engage community interest, not only in the subject of noise exposure as a matter of public concern, but also in its specific opposition to the development, which was consistent with its own business interests.
In both respects it was engaging in what properly should be described as political activity, but especially so in relation to the latter. The rezoning application highlighted both conflicting private interests and conflicting public interests. Those conflicts could only be resolved by governmental action. In seeking, directly or indirectly, to contrive or influence outcomes by representations made in public debate, or in the processes of informing the public, CIA [the Airport] was engaging in activities of a political, not of a commercial or trading, character. And this was not the less so because its activities were informed by a degree of self-interest. Altruism is often a stranger to political action.[88]
197 A further example is Unilan Holdings Pty Ltd v Kerin,[89] in which the court concluded that a Commonwealth Minister giving a speech to an international wool conference was not an aspect or element of activities or transactions which, of their nature, bore a trading or commercial character. It was not enough that the speech concerned matters of trade or commerce, or could be said to be in relation to trade or commerce. The relevant conduct must actually be in trade or commerce.
198 It was principally upon these cases that the defendants relied in contending that the representations that Dr Smith made, being educational and informative for the exercise of choice about medical conditions in the public interest, were not statements in trade or commerce. In particular, and properly understood, references in the videos to products sold by Doc Adam (being t-shirts) were not properly construed as commercial transactions. Rather, they were an extension of the educational point that he was seeking to make.
199 On the other hand, the plaintiffs relied on Houghton v Arms, in which the High Court, after referring to Toohey J’s judgment in Concrete Constructions, stated:
while in most cases, the focus will be on the nature of the business of the party making the representations, s 52 [of the Trade Practices Act] was not so limited; in particular, the section does not, in terms, refer to the trade or commerce of any particular corporation. Accordingly, statements made by a person not himself or herself engaged in trade or commerce may answer the statutory description if, for example, they are designed to encourage others to invest, or continue investments, in a particular trading entity.[90]
200 The plaintiffs submitted that, in the present circumstances, Dr Smith’s statements were designed to discourage the purchase of DRF’s products and accordingly satisfied the statutory test, being conduct in trade or commerce, rather than conduct relating to trade or commerce.
201 While there is some force in this submission, the issue ought not be determined on an interlocutory application. In the whole of the circumstances, there are other relevant factors, particularly the statutory prohibition on the sale of DRF’s products in the Philippines, and the significance of the public interest debate that might be thought by a tribunal of fact to be the primary purpose of Dr Smith’s representation. Those matters also interrelate with the question of whether the conduct can properly be described as making false or misleading statements.
202 Taking all these matters into consideration, I have not been persuaded by the defendants that, for present purposes, I should find that the conduct did not occur in trade or commerce. That said, as with the question of whether the defendants were carrying on a business, I can only conclude on the present application that there is sufficient uncertainty surrounding the factual question. The plaintiffs have not persuaded me that the strength of the serious question for trial on this particular issue warrants interference with the status quo by granting the interlocutory relief that is sought.
203 For these reasons, in respect of the plaintiffs’ claims in defamation:
(a) as the plaintiffs have conceded that their reputations within the jurisdiction are modest, they have not persuaded me that damages will not be an adequate remedy;(b) I have not been persuaded that the balance of convenience favours granting the interlocutory relief that they seek. I am persuaded that the rule in Bonnard v Perryman remains applicable, and that the subject matter of the debate between the parties is genuinely a matter of significant public interest, such that preserving the individual’s right to free speech extends beyond the protection of the plaintiffs’ reputations, such as they might be. On these claims, the balance of convenience considerations that apply to the ACL claim also weigh in favour of refusing the relief sought; and
(c) it is not clear that the defences to the defamation claims lack merit. Rather, there is a sufficient basis to conclude that the defendants could succeed at trial in defending the publications.
204 I have not been persuaded that it is appropriate to grant interlocutory relief pursuant to the ACL claim for the following reasons:
(a) as the defendants submitted, on analysis at this stage, the anticipated quantum of any possible loss demonstrates that damages would be an adequate remedy;(b) there are serious questions to be tried on the question of liability but, ultimately, in circumstances where the plaintiffs have not established that they are presently able to export their products to the Philippines and market and sell them through any distributor, their activities are not lawful in the Philippines; and
(c) the balance of convenience does not favour interlocutory relief. I have not been persuaded that the significant public interest in proper information being distributed about options for the treatment of serious medical conditions should be suppressed or distorted by only removing from that debate the contributions made by Dr Smith. I cannot be persuaded that such selective action would give appropriate weight any policy objective of the ACL. Questions of whether the defendants should be ordered to take down the material and to be permanently restrained from engaging in this debate are best left to the trial.
205 Finally, it is pertinent to observe that it is a feature of social media platforms of the kind giving rise to this proceeding that they permit, even encourage, unqualified, ill‑considered and ignorant responses, by way of brief comment, that have the capacity to be distressing and harmful. The extent to which the defendants may be liable for such matters remains a legally unsettled issue, best resolved in the context of full findings of fact, made after all of the relevant evidence has been considered. As noted earlier, the defendants have disabled the ability for others to comment on his contribution to the debate, and have encouraged the administrators of the Facebook Group Page to do likewise. I also noted that the plaintiffs have not chosen to act against the primary publishers of that other website and it too remains active, such that further contributions will necessarily continue. These circumstances tells against the effectiveness of interlocutory relief.
206 The application is dismissed.
207 The usual rule when a plaintiff fails on an application for interlocutory relief is that costs follow the event, but there may be circumstances of which I am presently unaware that would displace the usual rule. I invite counsel to discuss whether the issue of costs can be agreed, and either submit a consent minute in respect of the appropriate costs order or, failing agreement, an outline of contentions identifying the precise costs order sought and why it should be made. I propose to resolve the issue of costs on the paper, unless persuaded by written submissions that I should permit the parties to address those submissions orally. Any consent minute, or exchange of submissions, should be submitted by 19 April 2021.
208 The formal order that I will make is:
1. The plaintiffs’ summons dated 18 February 2021 is dismissed.2. Liberty to apply in respect of costs is reserved.
[1] Competition and Consumer Act 2010 (Cth) sch 2.
[2] [1891] UKLawRpCh 69; [1891] 2 Ch 269 (‘Bonnard v Perryman’).
[3] Emphasis in original.
[4] https://youtu.be/meLf_hP8Kvk.
[5] https://fb.watch/1XC-z0akQs.
[6] https://youtu.be/ozNjh8isaRM.
[7] https://fb.watch/1Y57svHUVb.
[8] https://youtu.be/8K1jcyXAh8g.
[9] https://fb.watch/1YaHv0LWyR.
[10] https://youtu.be/3_cIlbI6opY.
[11] https://www.facebook.com/DocAdamSmith/videos/3803746126336507.
[12] https://www.facebook.com/107847174278430/videos/172057947977118.
[13] https://youtu.be/_IJ8ueiHwGY.
[14] https://www.facebook.com/DocAdamSmith/videos/3428492773913995.
[15] https://www.youtube.com/watch?v=yZVDBGL6uIo.
[16] https://www.facebook.com/groups/946636375845126.
[17] https://youtu.be/bpHX0oj4ZW4.
[18] https://www.facebook.com/DocAdamSmith/videos/1655907164581773.
[19] https://youtu.be/vOy6p6an8dU
[20] https://www.facebook.com/DocAdamSmith/videos/213311176946556.
[21] https://www.facebook.com/watch/?v=525828865055441.
[22] https://youtu.be/iGPfhVlP_28.
[23] https://www.facebook.com/DocAdamSmith/videos/422372998960267.
[24] https://youtu.be/_UET7weFxHk.
[25] https://www.facebook.com/DocAdamSmith/videos/243211600537596.
[26] https://www.facebook.com/DocAdamSmith/videos/706720066938722.
[27] https://youtu.be/RtkJ22_uUpE.
[28] https://www.facebook.com/DocAdamSmith/videos/471161293873882.
[29] https://youtu.be/2eA2NUyRjeo.
[30] https://www.facebook.com/DocAdamSmith/videos/526863531627362.
[31] https://youtu.be/6mG9fZhIE14.
[32] Defamation Act 2005 (Vic) ss 25, 26, 30, 31.
[33] [2006] VSCA 89; (2006) 15 VR 65, 68 (‘Bradto’).
[34] Citing Y v W [2007] NSWCA 329; (2007) 70 NSWLR 377, 381 [20]; RSPCA v Davies [2011] NSWSC 1445, [67]–[77]; Graham v Powell (No 4) [2014] NSWSC 1319, [45]; Higgins v Sinclair [2011] NSWSC 163, [246]; Fu Winstar Group Pty Ltd [2014] WASC 496; Munsie v Dowling [2014] NSWSC 598.
[35] Citing RSPCA v Davies [2011] NSWSC 1445, [67]–[77]; Graham v Powell (No 4) [2014] NSWSC 1319, [45].
[36] Citing Emeco International Pty Ltd v O’Shea [2012] WASC 282, [20]; Epichealth Pty Ltd v Yang [2015] VSC 516, [46].
[37] Woodward v Hutchins [1977] 2 All ER 751, 755; Fraser v Evans [1969] 1 QB 349, 362; Swimsure (Laboratories) v McDonald [1979] 2 NSWLR 796, 799 (‘Swimsure’); Neville Mahon v Mach 1 Financial Services Pty Ltd [2012] NSWSC 651; (2012) 96 IPR 547, 552 [32]; Cvek v Mihailescu [2019] VSC 679.
[38] Noted earlier at [34] above.
[39] A clip of this statement being made by Dr Farrah was included in the first video from timestamp 8 mins 25 secs.
[40] Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 (‘Concrete Constructions’); Templar v Watt (No 3) [2016] NSWSC 1230; Village Building v Canberra International Airport (No 2) [2004] FCA 133; (2004) 134 FCR 422 (‘Village Building’).
[41] [2006] HCA 46; (2006) 227 CLR 57, 68–9 [19], 81–7 [65]–[83] (‘O’Neill’). See also Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 216–18 [8]–[13]; Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd [2015] VSCA 98, [108].
[43] Ibid 73 [35]; Magna Alloys and Research Pty Ltd v Coffey [1981] VicRp 3; [1981] VR 23.
[44] Bonnard v Perryman, 283–5 (n 2).
[45] Ibid 285.
[46] [1961] NSWR 1043, 1048 (‘Stocker’).
[47] [1989] VicRp 66; [1989] VR 747 (‘National Mutual’).
[48] O’Neill, 68–9 [19] (n 41).
[49] Citing Stocker, 1048 (n 46); Church of Scientology of California Incorporated v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344, 349–50; Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199; TV3 Network Services Ltd v Fahey [1999] 2 NZLR 129, 133.
[50] Citing Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153; National Mutual (n 47); Jakudo Pty Ltd v South Australian Telecasters Ltd [1997] SASC 6370; (1997) 69 SASR 440.
[51] National Mutual, 764 (n 47).
[52] [2020] FCA 622 (interim injunction); [2020] FCA 727 (interlocutory injunction).
[53] Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575, 609 [53].
[54] ASIC v Mauer-Swisse Securities Ltd [2002] NSWSC 741; (2002) 42 ACSR 605, 613–14 [36].
[55] Liquorland (Aust) Pty Ltd v Anghie [2001] VSC 362; (2002) 20 ACLC 58.
[56] David Rolph, ‘Bonnard v Perryman (1891)’ in David Rolph (ed), Landmark Cases in Defamation Law (Hart Publishing, 2019) 27, an essay in which Professor David Rolph traces the history of the rule under discussion.
[61] (2001) 208 CLR 388, 406 [58].
[62] I pause to note that another rationale that usually does not need to be explicitly noted is that the common law’s careful protection of free speech does not extend to circumstances where the right to speak freely is exercised maliciously to inflict special damage: Holley v Smith [1998] QB 726, 737–8.
[66] Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238, 261 [67].
[68] Ibid [3].
[69] Ibid [16]–[17].
[70] [1991] VicRp 5; [1991] 1 VR 51.
[71] The defendants also cited National Mutual and Duthie v Nixon [2015] VSC 672; (2015) 47 VR 355, 365 [29].
[72] Service Corp International Plc v Channel Four Television Corp [1999] EMLR 83, 89-90, discussed by Professor Rolph at 51–2 (n 56).
[73] See, eg, Castlemaine Tooheys Limited v State of South Australia [1986] HCA 58; (1986) 161 CLR 148.
[74] GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare [2013] FCAFC 102; (2013) 305 ALR 363, 384–6 [80]–[84].
[75] Sami v Roads Corporation [2008] VSC 377, [142]–[146].
[76] [2014] VSCA 238; (2014) 45 VR 119.
[77] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 47.04.
[78] Ibid 131–2 [46] (citations omitted).
[79] Ibid 132 [47].
[80] Ibid 138 [58].
[81] Ibid 133 [49] (citations omitted).
[82] Ibid 133 [50].
[83] Ibid 138 [59].
[84] Concrete Constructions, 603–4 (n 40).
[85] Re Ku-ring-gai Co-operative Building Society (No 12) Ltd [1978] FCA 50; (1978) 36 FLR 134, 167; Concrete Constructions, 602–3 (n 40); W & A McArthur Ltd v State of Queensland [1920] HCA 77; (1920) 28 CLR 530, 546–7.
[86] Auswest Timbers Pty Ltd v Secretary to the Department of Sustainability and Environment [2010] VSC 389; (2010) 241 FLR 360, 434 [156]; Robin Pty Ltd v Canberra International Airport Pty Ltd [1999] FCA 1019; (1999) 179 ALR 449, 460 [49].
[88] Ibid 438–9 [61].
[89] [1992] FCA 211; (1992) 35 FCR 272.
[90] [2006] HCA 59; (2006) 225 CLR 553, 565 [34].
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