Australian Broadcasting Corporation v O’Neill

Reference: [2006] HCA 46

Court: High Court of Australia

Judge: Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ

Date of judgment: 28 Sep 2006

Summary: Defamation – Injunctive relief – Plea of justification – Restraint on publication

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Instructing Solicitors: ABC Legal Services for the appellant; Hobart Community Legal Service for the respondent


The respondent was convicted in 1975 for the murder of a young child and was sentenced to life imprisonment. A film which included material about other abductions and murders of young children he was alleged to have committed was made and shown at a film festival in January 2005. ABC intended to broadcast the film on national television in April 2005. The respondent was granted an interlocutory injunction to prevent this broadcast on the grounds that he had demonstrated a prima facie case that the publication of the imputations would amount to actionable defamation without any suggestion of inconvenience to ABC. The Court of Appeal dismissed ABC’s appeal, finding that the primary judge had taken into account the correct principles relating to the freedom of the press, considering the prospects of a successful defence based upon truth and public benefit, and exercised his discretion in accordance with the appropriate principles.


The principles governing applications for interlocutory injunctions to restrain the publication of defamatory matter.


By a 4-2 majority, the interlocutory injunction against ABC was removed and the appeal allowed on the grounds that the judge had failed to take proper account of the significance of the value of free speech in considering the question of prior restraint of publication of allegedly defamatory material; that the “exceptional caution” with which the power to grant an interlocutory injunction in a defamation action should be exercised had not been accurately applied; further, the majority found that the judge had failed to take proper account of the possibility that, if publication occurred and was found to involve actionable defamation, only nominal damages might be awarded; the judge, in taking into consideration the issue of whether the respondent would have been subject to a “trial by media” had broadcast been permitted, had failed to understand the nature of the legal test.


While the High Court of Australia upheld the traditional cautionary approach in granting interlocutory injunctions in defamation cases Heydon J’s dissenting judgment contained a surprisingly strong attack on the conservatism of the majority view.