By Liam Mannix
The Federal Court has dismissed a bid by Australia’s largest medicinal cannabis company to force The Age to take down a story revealing allegations the company was operating a legally contentious cannabis referral system.
Justice John Snaden dismissed Montu’s application on Tuesday morning and ordered the company to pay The Age’s legal costs.
Australian medicinal cannabis company Montu sells the Circle brand of cannabis.Credit: Reddit
The core issue in the case was a restricted court document mistakenly released by the court to The Age.
Snaden found that the release of the document, while harmful to Montu, did not meet the test of being harmful to the proper administration of justice, and therefore the court would not move to restrict its publication.
“That mistake cannot be unmade. And the prejudice arising from it, to the court and by extension to the proper administration of justice, is irremediable,” the judge said.
“The court can no more require by order that prejudice end than it can require by order the tide not come in.”
His remarks were in reference to a “pithy” submission by Larina Alick, executive counsel for The Age, on Monday.
Alick said any order to take down an already-published story “would, in effect, be a King Canute order, trying to order the tide not come in.”
The Age editor Patrick Elligett said he was “pleased the court has seen through this farcical attempt from a powerful company to cover up the truth and attempt to expose confidential sources, without any legal basis”.
“While the result is promising, I’m disappointed we continually have to fight powerful organisations for the right to serve the public,” Elligett said.
Montu is Australia’s biggest medicinal cannabis company, and made almost $100 million in revenue in 2023.
An investigation by The Age and The Sydney Morning Herald, published earlier this month, revealed the company was also embroiled in legal controversy.
In April, the Therapeutic Goods Administration commenced Federal Court action against Montu, alleging the company had unlawfully advertised medicinal cannabis.
As part of that legal action, an affidavit said Montu might be operating an illegal referral program, by paying $50 to customers for sharing their story and a link with a friend. Such referral schemes are illegal, and Montu said it only trialled the idea.
The affidavit, which is a restricted court document, was accidentally released by the court to investigative journalist Clay Lucas.
“It’s clear the publishers … have used to their advantage information they ought not have received,” Snaden said on Tuesday.
However, he accepted the argument by Larina Alick, executive counsel for The Age, that much of that information was contained in other court documents that were freely accessible to the public.
And some of the information within the affidavit was taken from online forum Reddit, and remained online, Alick had told the court on Monday afternoon.
Montu’s lawyers had argued the publication of the material was likely to affect the judge’s decision-making in their ongoing legal action with the Therapeutic Goods Administration. Justice Snaden rejected that argument.
It was clear the reporting of the affidavit was “unambiguously prejudicial” to Montu’s interests, Snaden said.
However, that did not mean the reporting was prejudicial to the proper administration of justice in the litigation.
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