AAMAC Warehousing & Transport Pty Limited & Ors v Fairfax Media Publications Pty Limited & Ors

CASES CITED : Alexander v Cambridge Credit Corporation [1985] 2 NSWLR 685

First Plaintiff: AAMAC Warehousing & Transport Pty Limited (ACN 100 947 091) Second Plaintiff: Peter Panayi Third Plaintiff: Bruce Clark PARTIES : First Defendant: Fairfax Media Publications Pty Limited (ACN 003 357 720) Second Defendant: Linton Besser Third Defendant: John Fairfax Limited (ACN 008 396 585) Fourth Defendant: Fairfax Media Limited (ACN 008 663 161)

COUNSEL : Plaintiffs: Mr P E King Defendants: Mr A T S Dawson

SOLICITORS : Plaintiffs: McKell's Solicitors Defendants: Johnson Winter & Slattery

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST

3397/09 AAMAC WAREHOUSING & TRANSPORT PTY LIMITED (ACN 100 947 091); PETER PANAYI & BRUCE CLARK v FAIRFAX MEDIA PUBLICATIONS PTY LIMITED (ACN 003 357 720); LINTON BESSER; JOHN FAIRFAX LIMITED (ACN 008 396 585) & FAIRFAX MEDIA LIMITED (ACN 008 663 161) JUDGMENT 1 HIS HONOUR: I gave judgment in this matter on Monday 21 September 2009 ("the principal judgment") in which I made the orders set out in the principal judgment, discharging the ex parte injunctions granted on 24 June 2009. Those orders included a grant of liberty to apply and a stay of the orders I made until 5pm today.

2 The principal judgment at [95] says the following: "The plaintiffs will need a brief opportunity to read my judgment and to take advice whether or not they wish to appeal. Discharge of these orders may prejudice the plaintiffs' right of appeal. It is appropriate for the Court to allow a brief period for the plaintiffs to assess their position in relation to a possible appeal until any submission to the contrary is made. I propose to stay the operation of this order until 5pm on Wednesday, 23 September 2009."

3 When the principal judgment was given, Mr King was present and made a submission to the Court that the stay should be extended for a further day. I acceded to that application. The stay was extended to 5pm today, Thursday 24 September 2009. On Monday afternoon when judgment was given, paragraph [95] clearly described the purpose of the stay.

4 The plaintiffs come to court today and submit the stay should be extended further. Their primary submission was that the stay should be extended to Tuesday 6 October 2009. In the alternative they submit it should be extended to Monday 28 September 2009. The plaintiffs say the reason for extending it to a Monday is the Court of Appeal's normal application list is on Mondays. He submits that it is appropriate for the stay to encompass the possibility that that matter will be dealt with in the Court of Appeal's normal application list either next Monday or directly after the long weekend.

5 In support of his application, Mr King read (without objection) an affidavit of Peter Brian McKell of 21 September 2009. This affidavit deposed to Mr McKell's instructions to seek a stay for 14 days and then apply to the Court of Appeal for a stay, pending determination of the appeal. This stay was to be applied for on the basis that the stay was required because the threatened publication would seriously damage the business of the first plaintiff, and the plaintiffs wished to have an opportunity to address the questions raised in the Court of Appeal.

6 I have been referred by both sides to applicable authority. Both sides have cited to me passages from Alexander v Cambridge Credit Corporation [1985] 2 NSWLR 685. In particular I was taken to the well travelled passages at 694 and 695.

7 Mr King emphasises from those passages in Alexander v Cambridge Credit Corporation the fact that this case is one where there is a risk of the appeal proving abortive if a stay is not granted. He points out that in that situation the Courts will normally exercise their discretion in favour of granting a stay. This is a case he says where, unless a stay is granted, the appeal will be rendered nugatory and that is a substantial factor in favour of the grant of a stay.

8 The general application of that principle is not in contest. That is why, when I gave judgment on Monday, I automatically gave a short period to the plaintiffs to read and absorb the principal judgment and then to decide upon the exercise of their rights of appeal in relation to it. A short period seemed appropriate for that to be done in the circumstances.

9 Mr King also pointed out that Alexander v Cambridge Credit Corporation makes clear that he does not have to establish that there are special circumstances that need to be proved for a stay to be granted. In response Mr Dawson pointed out, and it is the basis for the decision in Alexander v Cambridge Credit Corporation (at 694 line F): "It is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour." It is necessary to examine, therefore, whether or not the plaintiff has demonstrated a reason to warrant the exercise of the discretion in his favour. 10 The situation which the Court currently faces is a slightly curious one. The Court has already, in effect, granted an indulgence to the plaintiffs acknowledging the substance of the principle in Alexander v Cambridge Credit Corporation that the plaintiffs should be protected from having their rights of appeal rendered nugatory. The real question before the Court today is what further indulgence, if any, should be given to the plaintiffs in the same direction. In looking at that question, the Court can take into account what has been done with the indulgence that has already been granted. 11 In that respect one needs to examine the affidavit of Mr McKell. The affidavit lacks any explanation as to how the last three days have been used analysing the judgment, obtaining instructions and considering an appeal. That is not surprising because the affidavit was sworn on 21 September 2009 the day that judgment was handed down. Mr King tells me Mr McKell, who is a sole practitioner, had to go away on holidays that afternoon.

12 There is no admissible evidence before me kind about, for example, a lack of resources available to the plaintiffs which have hampered them in the normal preparation for a possible appeal in these proceedings. 13 No appeal proceedings have been commenced. They could have been commenced before today, if an appeal was going to be brought. There is no evidence before me even of a draft Notice of Appeal.

14 When the lack of a draft Notice of Appeal was discussed between the Bench and both counsel in the course of submissions this morning, Mr King articulated four possible grounds of appeal. He indicated to the Court that the matter of an appeal was being discussed with senior counsel, but, that in substance, a decision to appeal had not yet been taken. The four possible grounds that were articulated by Mr King included the following: 1. That there was a denial of procedural fairness in relation to the findings that were made against Mr Clark.

2. That there was no finding that the material non disclosure would have made a difference to the exercise of discretion that was made on 24 June 2009 and it is said there should have been such a finding.

3. That the Court erred in conducting any hearing on 25, 26, 29 and 30 June 2009, rather than referring the matter to the Expedition List.

4. That the Court erred in not considering AAMAC's position separately from that of the other individual plaintiffs when deciding to discharge the injunction granted on 24 June 2009.

15 I will not embark upon the invidious task as the trial Judge of trying to evaluate the merits of those possible grounds of appeal from my judgment. However it can perhaps be said at this point: that some grounds have now been articulated; and that although those grounds of appeal may, in places, have real difficulties, it cannot be said that they are unarguable. A great problem from the plaintiffs' point of view is that these grounds of appeal have not been adequately reduced to proper process in the Court of Appeal before this.

16 Mr Dawson first contends on behalf of the defendants that the stay that was granted on Monday should be discharged immediately, particularly in light of the fact nothing has really occurred since the time of the principal judgment. I am now giving this judgment at midday on Thursday 24 September. The stay runs out in five hours time. Mr Dawson says, in the alternative, that the stay should remain in place, not be extended any further, and be allowed to run out at 5.00pm today.

17 There are a series of competing considerations to be balanced here. There has been a stay in place from 24 June 2009 up to today, which is now exactly three calendar months since the injunction was obtained. This has already benefited the plaintiffs, in circumstances where I have found that the injunction should not have been granted because of deliberate non disclosure by one of the witnesses who gave evidence for the plaintiffs on the ex parte injunction application.

18 The authorities referred to in my Principal Judgment at paragraphs [15], [16] and [17] indicate the importance of the discharge of interlocutory injunctions obtained through misleading conduct upon it becoming evident that that misleading conduct has occurred, so that the Court record can be set right. Much of the time that has passed, as my judgment indicated, has been caused by the preparation of those reasons and other urgent matters, but the time has gone by to the advantage of the plaintiffs. Mr Dawson submits that no further period should be given in which the plaintiffs can take advantage of their non disclosure.

19 Balanced against that matter are two other factors. The first is the need for fairness to be afforded to the plaintiffs in circumstances where they may have misunderstood that an appeal needed to be lodged within four days after the judgment was given. The second is that the argument remains that this is a situation where, if a stay is not continued, an appeal would be rendered nugatory.

20 It comes down to a balancing of factors that depend in effect, on whether or not these plaintiffs are seriously seeking to lodge an appeal or not. There has been no evidence of that seriousness demonstrated between Monday afternoon and today. Really, what the plaintiffs are saying to the Court is that they wish to have one last opportunity to demonstrate the seriousness with which they wish to pursue an appeal, if that is what they are to do. I am not inclined to allow any lengthy extension of the stay. Should the stay be extended at all? I would be inclined to extend it for no more than 24 hours from 5 o'clock today. I am minded to do that however only in circumstances where an application for leave to appeal against my judgment is lodged by 5pm today.

21 The stay will not be altered unless the plaintiffs file and serve an Application for Leave to Appeal in the Court of Appeal by 5pm today. The balance of convenience makes this the desirable course, avoiding as it does the impact of avoidable urgent application on the Court of Appeal's lists. If an application for leave to appeal is filed and served by 5.00pm today the stay will be extended to 5pm tomorrow. I am not prepared to extend the stay any further.

22 Both sides have also said to me now all they wish to say in relation to questions of costs. I order the plaintiffs to pay the defendant's costs of the application for the interlocutory injunction and the associated contested hearing including the costs of today.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.