Kelly v. Graham & Hobson

[2007] QSC 172

[2007] QSC 172

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ATKINSON J

No 123 of 2007

PETER KELLY

Applicant

and

MALCOLM WILLIAM GRAHAM

and

CHRISTINE ANNE HOBSON

First Respondent

Second Respondent

BRISBANE

..DATE 18/05/2007

JUDGMENT

HER HONOUR:  This is an application for an interlocutory injunction made orally in a situation of some urgency.  The urgency, I have been told orally, is that negotiations are presently under way for a development proposed to take place in Newcastle, in New South Wales worth some millions of dollars.  I was told $220 million.  There are currently negotiations taking place with potential equity partners.

The application has been brought ex parte.  It follows information received today by solicitors for Peter Kelly that an architect in Newcastle, who is involved in this project known as the Steel River Project, received a facsimile transmission apparently from the eighth respondent, Christine Anne Hobson.

The solicitor for the applicant who appeared on this application has told me that he has been present at a meeting at which the seventh and eighth respondents, who are partners, (in the personal sense) were present and he is satisfied that the facsimile has come from them.

The facsimile says; 

"I noticed on the internet that Jackson Thiess Architects are involved in the Steel River Project in Newcastle and that PAV are the developers.  We have had previous dealings with Mr Peter Kelly and Mr Jacobs who are directors of PAV and for your information I attach two newspaper articles outlining these dealings. 
We will be making businesses around Newcastle and in particular, the Steel River Project, aware of the dissatisfaction we have had in our dealings with PAV and Mr Kelly. 
Yours faithfully, Christine Hobson. 
PS.  The last line in the "Newcastle Herald" article is not true.  The only word we have had from their solicitor is how much would it cost to keep us quiet!!!!"

Attached to the facsimile was an article which was published, I am informed, in the "Daily News" in Murwillumbah on the 13th of March 2007.  No proceedings have been started in respect of that article.

The solicitor appearing for the applicant said he did not rely on the other attached article which is an internet copy of an article apparently published in the "Newcastle Herald".

The application was brought against eight respondents.  There is no reliable suggestion that the first to the six respondents have any intention of publishing matters defamatory of any person, and so there are no grounds at all for giving any relief against them on an interim basis.

Further, when I pointed out that the applicant was a corporation which is not apparently an exempt corporation as defined in the Defamation Act, and therefore unable to sue in defamation, the solicitor applied to substitute as the applicant, Peter Kelly, on of its directors.

The law, as it applies to the issuing of interlocutory injunctions in defamation proceedings has been set out in the Australian Broadcasting Corporation v O'Neill [2006] HCA 46. Unfortunately, I was not assisted by any submissions on behalf of the applicant as to what is the applicable law in this area which must be explicable by the urgency of the application.

It is clear from that case that great caution must be exercised by a Court before it exercises its jurisdiction to prevent future publications.  This is because of the protection given by the common law to freedom of speech, when one considers the question of prior restraint of publication.

The test which I have adopted is that, conveniently set out in Gatley on "Libel and Slander", 9th edition, at Chapter 25 on interlocutory injunctions, that is:

1.that the statement which is sought to be restrained must be unarguably defamatory;

2.there must be no grounds for concluding that the statements are true; 

3.there is no defence which might succeed; and

4.that there is an intention to publish or repeat the defamation in the defamatory material.

As I have said, there is nothing in the facsimile which is defamatory let alone unarguably defamatory.  It merely expresses the dissatisfaction that the sender of the facsimile had in dealing with Mr Kelly.

What, in truth, the solicitor acting for Mr Kelly complains of is the newspaper article which is attached to that facsimile transmission.  It would be difficult to see that there would are grounds for concluding that there is no defence that might succeed to republication of that newspaper article.  After all, it is already publicly available to any person who reads that newspaper, and is not presently the subject of any action in defamation against the publisher of the article.

In those circumstances, I could not be satisfied that publication to persons who have dealings with Mr Kelly could be said to be ones to which there is no defence which might succeed.

In those circumstances, I refuse the relief sought.
...

HER HONOUR:  Your undertaking is to file an application by 4 p.m. on the 25th of May 2007, and then I will place the draft order that you handed up, and also the facsimile, and the two newspaper articles that you handed up, with that file.

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