CD v FG [2021] NSWSC 300 (available on BAILII) arose against the background of earlier AVO proceedings in the Local Court of NSW, which were terminated with consent orders that included a most unfortunate and breathtakingly wide “gag” order that the “name of CD not be published or broadcast publicly”. ([4]).
FG later sought a variation of the “gag” order because its width was oppressive and, as she interpreted it, prevented her from speaking at all about her experience, including to her health care professionals.
That application for variation appears to have prompted commencement of proceedings by CD, seeking an interlocutory order – though the order sought by CD specifically excluded from its effect FG discussing matters with her treating medical practitioner, her lawyers or the police (10 – 11).
Whilst preserving the right of FG to seek medical advice, CD sought an interlocutory order that FG by herself, servants and agents be restrained from publishing the following imputations or words conveying such imputations to the same effect:
- The plaintiff took advantage of his position as the defendant’s employer to compel her to have unwanted sexual relations with him;
- The plaintiff sexually assaulted the defendant;
- The plaintiff sexually harassed the defendant and
- Tthat the plaintiff employed the defendant.
The interlocutory order was made by consent ([14]) and the present proceedings sought a permanent suppression order in the same form.
The trial judge decribed the action as raising the vexed question of the role of the Court in intervening with rights of freedom of speech where the plaintiff, here CD, claims that the defendant, FG, plans to abuse those rights by publishing defamatory statements about him which are untrue ([1]).
Given that the order sought by CD specifically excluded from its effect FG discussing matters with her treating medical practitioner, that issue was not further discussed in the judgment save that at [87] a report of a consultant psychologist described FG’s instructions to him. The psychologist said that FG saw the orders previously made as preventing her from mentioning the individual’s name and this was an impediment to attending a psychologist for treatment because she cannot name the individual, even in the therapeutic context.
The trial judge made a number of factual findings ([131] – [143]) and agreed to certain orders being made ([197]) but stated at [195]:
I do consider the public interest in the right to free speech to be a significant matter and I do consider that FG should be able to write about CD, including identifying him by name and discussing those parts of her experience of her relationship with him that she found to be upsetting and disempowering and to comment freely on the personal characteristics of CD that caused her pain and distress but she cannot, and there is no public interest in her being allowed to, publish things that have been determined by this Court to be untrue.