Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 15 September 2018.
Sean has been engaged in Family Law litigation with his ex-wife, Justine.
Justine has made several posts on social media that have shocked and offended Sean.
Sean consults his solicitor and is advised that the posts on social media constitute “publication” under defamation law and that the posts contain “imputations” that Sean has committed acts of domestic violence and physical abuse.
Sean instructs his solicitor to commence proceedings in the District Court under the Defamation Act.
Justine pleads the defence of “justification” and “qualified privilege”.
Sean’s solicitor is concerned that if Sean is successful in obtaining an order for damages, Justine may not have the assets to satisfy the order.
Sean makes enquiries and discovers that although Justine owns her home and resides there with their two children, she has exchanged contracts for the sale of the property.
Sean is surprised because the sale the property is in breach of Family Law orders concerning the residence and the schooling of the children.
Justine’s solicitor is contacted and asked to provide an undertaking that the proceeds of the sale of the home will not be distributed until the defamation action has reached a conclusion. No such undertaking is provided and the solicitor’s response is generally evasive.
Sean’s solicitor advises him that he should seek a freezing order in the District Court relating to the proceeds of the sale of the home.
The District Court decides that Sean has a good, arguable case and in circumstances where the sale of Justine’s home could “frustrate the administration of justice” if she is ordered to pay damages, makes “interim” freezing orders preventing the sale the property until Sean’s case is ultimately decided.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
