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

AAMAC Warehousing & Transport Pty Limited & Ors v Fairfax Media Publications Pty Limited & Ors - [2009] NSWSC 970 - NSWSC 2009 case summary — Zoe

[12]

4 On the afternoon of 24 June 2009, the Court gave leave to AAMAC, Mr Panayi and Mr Clark to file the summons commencing these proceedings. In a short hearing AAMAC read affidavits and adduced limited oral evidence. The plaintiffs' case on the ex parte hearing on 24 June and in the subsequent contested hearing was that if the defendants published certain material that was threatened to be published, that the plaintiffs would suffer irreparable harm. It is said that AAMAC's business which employs 80 people and has substantial financial commitments would be destroyed on the basis of information supplied to the defendants by envious competitors. The Court then granted orders for ex parte relief. The nature of the threatened publications is evident from the terms of the relief granted. The relief was that: "1. The defendants be restrained from publishing or causing or permitting to be published any material or information of or concerning the plaintiffs to the effect that the plaintiffs or one of them is knowingly involved in or knowingly has affiliation with gangland or criminal activities by or through the operation of the first plaintiff's business of clearing, handling and transportation of containers and goods from Sydney Wharves up to and including 5.00pm tomorrow 25 June 2009. 2. The defendants be restrained from publishing of causing or permitting to be published any material or information of or concerning the second and third plaintiffs to the effect that they are persons who are knowingly involved in or knowingly have affiliation with the conduct of pleasure cruises on the vessel "The South Pacific " during which the services of prostitutes are knowingly provided or made available by the plaintiffs or one of them, up to and including 5.00pm tomorrow 25 June 2009." 5 This judgment will describe the restrained publication in order 1 as the "criminal affiliation representation". The restrained publication in order 2 will be described as the "South Pacific representation". 6 The injunction granted on Wednesday 24 June 2009 was made returnable the following day. The defendants appeared for the first time on 25 June. The matter was then heard on parts of Thursday 25 June and Friday 26 June as time permitted in the course of the duty list. Further evidence was read and written submissions were spoken to on 29 and 30 June. The plaintiffs had liberty to file further written submissions in reply which they exercised on 1 July. Judgment was reserved. 7 The defendants sought the Court's determination of two issues. The defendants submitted that these orders should be dissolved on the basis that the plaintiffs had failed to make material disclosures in relation to both the South Pacific and the criminal affiliation representations when the ex parte orders were obtained. Alternately, the defendants submitted that there was no proper basis for the grant of the orders in the first place and that they should not be extended. This judgment deals with the issues in this order.

[82]

32 Matter (a) above was disclosed to the Court on the ex parte application. Matters (b) to (e) inclusive were not disclosed. The question is whether matters (b) to (e) are material. Their suggested materiality is as to the truth or falsity of the South Pacific representation. 33 The plaintiffs argue that the defendants have failed to prove the truth of the South Pacific representation, that there were prostitutes (as opposed to strippers) on board the South Pacific. The plaintiffs contend that mere proof that there were strippers on board is not material because it does not prove the truth of the South Pacific representation, which remains false. The plaintiffs say that therefore there is no basis to discharge the injunction. 34 The defendants submit in reply that the question on a discharge application is not whether the South Pacific representation is true but whether material matters were withheld on the ex parte application. The defendants say that: "a Court would on any view treat an application to restrain publication of the [ South Pacific ] representation differently if presented with a plaintiff who has only ever had waitresses on board his boat as opposed to a plaintiff who has attended several functions with strippers who performed a strip show on board." 35 I agree with this submission. On the application to dissolve the injunction restraining the South Pacific representation the defendants do not have to prove the truth of the South Pacific representation. They merely have to establish that the plaintiffs withheld information that was material in the sense described in Edison's case: "...party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application." 36 The falsity of the South Pacific representation is an element of both the causes of action for injurious falsehood and under s 44 Fair Trading Act 1987. The Court must at this interlocutory hearing assess that element in that cause of action, at least to determine whether there is a serious question to be tried at a final hearing on causes of action including that element. The plaintiffs have sought to support their claim there is a serious question to be tried by adducing evidence that to their knowledge no prostitution took place on board the South Pacific, or at least that if it did it was a single incident back in 1991. They make a positive case of the falsity of the South Pacific representation. It is difficult for the plaintiffs to deny the materiality of matters tending to show the truth of the South Pacific representation. Matters (b) to (e) in paragraph [31] above were material to the issue of the falsity of the South Pacific representation for the following reasons.

[93]

45 In conclusion on this first topic, there has been non disclosure of matters (b) to (e) inclusive in [31] above relating to the South Pacific representation at the ex parte hearing. These matters should have been disclosed. Their non disclosure misled the Court. These matters are material to the grant of relief against the publication of the South Pacific representation. The injunction restraining that representation should be dissolved unless there is a good discretionary reason not to do so. The exercise of discretion in relation to dissolution is dealt with later in this judgment with respect to all the non disclosures. (ii) Mr. Clark's Ecstasy Charge and his Association with Mr Field 46 The defendants alleged multiple non disclosures at the ex parte hearing with respect to the criminal affiliation representation. The first of these related to an ecstasy possession charge brought against Mr Clark. On this subject Mr Clark deposed in paragraph 5 of his affidavit to the following conversation with Mr Besser: "He [Mr Besser] then said, "what about your dealings when you were charged with possession of ecstasy?" I replied "I was innocent and its been proven." 47 In oral evidence he said: "Q. So far as you are aware, it is correct that the plaintiffs and you in particular, are knowingly involved or have affiliation with gangland or criminal activities by or through the operation of the first plaintiff's business of clearing and handling containers and goods from the Sydney wharves? A. That is false." 48 In a matter said to be related to the ecstasy charges Mr Clark also deposed in paragraph 11 of his affidavit to the following relationship with a Mr Malcolm Field. "He [Mr Besser] said "you were involved with his 21C Malcolm Field." I said, "His freight came through my depot. I had nothing to do with him." He murmured, "uh uh". 49 Paragraphs 5 and 11 of Mr Clark's affidavit were advanced as evidentiary support for a restraint against the defendants' publication of the criminal affiliation representation by providing evidence not only of the threat of publication of that representation but evidence of the falsity of that representation.

[98]

Q: …were thrown out, that's what it suggests? A: Well as far as I was concerned, yes." 54 In this exchange Mr Clark was not agreeing with what became the cross-examiner's closing submission, namely that these words suggest that the charges must have been thrown out as being unsupported by evidence. He was actually expressing quite the opposite view, namely that in his mind a correct description of what happened to him as a result of the bargain his lawyers made with the prosecution was that the charges against him were "thrown out". 55 The defendants' second point has more force. Read together paragraphs 5 and 11 of Mr Clark's affidavit in combination give the impression that Mr Clark had "nothing to do with…" Mr Field beyond handling Mr Field's freight as a customer. The unqualified nature of this statement implies that Mr Clark had nothing "to do with" Mr Field in respect of any of the matters described by Mr Clark in his affidavit. Contrary to that impression Mr Clark was a co-defendant with Mr Field on serious criminal charges and then had those charges dropped as a result of becoming a prosecution witness against Mr Field. This shows a depth of contact with Mr Field that is inconsistent with the bare statement that he, Mr Clark, had "nothing to do with…" Mr Field. The simple impression the Court was left with from the evidence at the ex parte application was that Mr Clark had never met Mr Field. Giving evidence against a person on oath in criminal prosecution about their dealings with one another, which dealings led to the conviction of one of them, is a long way from having "nothing to do with" the person. The Court was misled by this non disclosure. 56 The defendant's final point is also persuasive. The impression left with the Court on the evidence at the ex parte application was that Mr Field was someone who sent freight through a depot managed by Mr Clark but that Mr Clark otherwise had nothing to do with Mr Field through conventional means of contact such as meetings, telephone conversations or other dealings. As the findings above show, the facts were otherwise. He had phone calls, meetings and significant dealings with Mr Field. Although Mr Field was not, on the evidence, a convicted criminal at the time that these meetings took place, he was by the time Mr Clark's affidavit was sworn. It was a fact relevant to the criminal affiliation representation. The separate evidence in relation to the payment of the $10,000 for turning a "blind eye" in relation to certain customs duty is not conclusive and cannot be used to make a non disclosure case against the plaintiffs. 57 The restraint in existence is against the publication of a falsehood to the effect that the company, Mr Clark and Mr Panayi "are knowingly involved in or knowingly have affiliation with gangland or criminal activities…" This evidence does not itself show even in 2001 that Mr Clark was "knowingly involved in or knowingly had affiliation with criminal activities". However the evidence does show a closer relationship with persons who became criminals because of the very engagements Mr Clark had with them, than any of the ex parte evidence led the Court to believe. The association with Mr Field is relevant to the truth or falsity of the criminal affiliation representation. It is a shorter step to infer that a person who has close dealings with someone else who becomes a convicted criminal as a result of those very dealings is a person who is more likely to be involved in criminal activity than someone who had no such dealings. It can be presumed that this is an argument the defendants would have wished to deploy in their defence had they been present at the ex parte hearing to influence the Court as to the arguable truth of the criminal affiliation representation and that the difference between the truth and what was sought to be restrained was far less than what the Court had been led to believe. 58 The plaintiffs argue that the evidence does not establish that Mr Clark was in a joint criminal enterprise with Mr Field so the criminal affiliation representation remains false. This submission makes the same error the plaintiffs made in respect to the South Pacific representation. It wrongly argues that the defendants must prove the truth of the criminal affiliation representation. Their onus is only to prove the non disclosure of material relevant to the truth of that representation or any other matter that would be material to the grant of interlocutory relief.

[99]

59 The plaintiffs also argue that the restraint in respect of the criminal affiliation representation operates in respect of the plaintiff's current activity through the operation of AAMAC's business. AAMAC did not commence business until 2002. The trial of Mr Field took place in 2001. AAMAC says that events involving Mr Clark preceding the creation of AAMAC cannot be material for present purposes. I do not agree. 60 It is artificial to say as the plaintiffs do that Mr Clark's conduct prior to 2002 cannot be material to the Court's judgment about the truth or falsity of the criminal affiliation representation or to whether there is a serious question to be tried in relation to causes of action of which that representation is an element. The criminal affiliation representation is one of current activity. It is that "the plaintiffs are knowingly involved in or knowingly have affiliation with gangland or criminal activities by or through the operation of [AAMAC's] business…" However past conduct, even conduct that occurred before AAMAC was founded is material to the truth or falsity of that representation provided that conduct is of sufficient seriousness or closeness to criminal activity that it might be a basis to infer an enduring criminal habit. Such matters could be material to a judgment of the truth or falsity of the criminal affiliation representation. (iii) Mr Clark's Criminal Record 61 The defendants' next topic of non disclosure in relation to the criminal affiliation representation is that it is said Mr Clark seriously understated his criminal record in material ways. The starting point is paragraph 6 of Mr Clark's affidavit of 24 June 2009 which was relevantly to the following effect: "6. Lyndon [Linton] Besser then said, "what about the tax frauds?" I replied, "yes, I did make two mistakes but I've never been involved with drugs or gangs from the waterfront." 62 The defendants' submission is that this disclosure trivialised as "two mistakes" two criminal offences in relation to tax fraud which involved depriving the revenue authorities of excise duty. The defendants' case is that the non disclosure on this subject has three parts: first, the plaintiffs did not disclose that he was involved in tax fraud; second, the plaintiffs understated the number of "mistakes" that Mr Clark made - there were more than "two" mistakes; and third, the plaintiffs did not disclose that the frauds related to the avoidance of customs duties. . 63 Mr Clark's cross examination on this subject on 25 June 2009 established the following additional material that was not available to the Court on 24 June 2009:

[104]

(e) Mr Clark engaged in the same scheme in relation to perfume, namely an excise duty scam in which flour was swapped for perfume but he was only charged with respect to the schemes involving the whisky and the cigarettes. Mr Clark was unsure whether the perfume had any duty upon it and the perfume was never made the subject of a charge but Mr Clark received about $1,000 for engaging in that perfume arrangement. 64 The defendants' first argument is that Mr Clark was convicted of criminal offences involving tax fraud is disclosed in the affidavit. In response to Mr Besser's question, "what about the tax frauds?" Mr Clark replies, "yes I did make two mistakes...". By this answer Mr Clark is accepting that he was convicted of tax fraud. The reference to "two mistakes" is an obvious colloquial euphemism signalling his acceptance that he was convicted of tax fraud as put to him. He just prefers to call these tax frauds "mistakes". 65 The defendants secondly argue that Mr Clark did not disclose that he made three mistakes "in relation to tax fraud", rather than just two. The first two involved the whisky and cigarette substitutions with flour. The third involved the perfume substitution with flour. Fairfax relies on the following question and answer for this submission. "Q. You would accept, wouldn't you, that you've made - putting charges aside - you've made more than two mistakes in relation to tax fraud, haven't you? A. Yes." 66 Although this is technically an admission of a third and undisclosed mistake it is not a matter that establishes material non disclosure. Mr Clark did not agree, nor is there any other evidence to support the inference that the particular perfume the subject of the substitution was dutiable, that any duty was evaded, or that the matter proceeded to criminal charge or conviction. He only admitted to receiving a sum of "probably a thousand" for something that it is not established was criminal conduct. There is no reason to conclude that anything in relation to the third mistake about perfume should have been disclosed to the Court. 67 There is more force in the defendants' third argument however that the use of the word "mistakes" tends to underplay the nature and seriousness of the frauds. There is nothing in paragraph 6 of the affidavit that reveals either the size of the frauds or that they were related to customs and excise duties. Paragraph 6 of the affidavit would without more have supported, for example the supposition that Mr Clark had perhaps understated his income or overstated his expenses in his personal income tax return on more than one occasion. Indeed this impression was reinforced when counsel for the plaintiff adduced evidence from Mr Clark on 24 June about that paragraph by saying "Looking at paragraph 6…You were agreeing that you had made some error in your tax?" to which the witness replied "That was in 1999". 68 Instead, it emerged that the two frauds for which he was convicted related to customs and excise duty. One of them was on a $450,000 shipment of whisky. Both of them involved the active concealment of dutiable goods from revenue authorities by a scheme involving the substitution of less valuable goods in the place of dutiable goods. The non disclosed evidence involves at least four factors relevant to the assessment of the truth or falsity of the criminal affiliation representation. The undisclosed material about these fraud convictions demonstrate that Mr Clark's relevant dishonest conduct involved:

[111]

(c) Mr Clark corrected the impression gained from his evidence at the trial of Mr Field about his relationship with Mr Mara by summarising the position in this way "I didn't train with Les Mara at Joel's Gym, but Les Mara was always there at Joel's Gym." 72 There is no other evidence before the Court to suggest that Mr Clark's clarification in these proceedings of what he said at the trial of Mr Field is incorrect. 73 The defendants have not established that the statement in Mr Clark's affidavit "I used to train at Joel's Gym but I didn't train with him" was false or even subject to doubt or debate. There is insufficient evidence of any relationship between Mr Clark and Mr Mara, at training or otherwise, to infer material non disclosure in relation to this subject matter. (v) Previous Publications about AAMAC and Mr Clark 74 There was no mention in Mr Clark's affidavit or in his oral evidence on the ex parte application of any prior publication by Fairfax of his or the company's or Mr Panayi's involvement in criminal conduct. The defendants contend that there were prior publications of that kind which should have been brought to the Court's attention on the ex parte application. The failure to do so is said to be another non disclosure. This is said to be relevant to the criminal affiliation representation and to the Court's assessment of whether AAMAC would suffer irreparable damage from the publication. 75 In support of this submission the defendants tendered an article in the weekend edition of the Sydney Morning Herald published on 16 and 17 September 2006: (exhibit 1). This article provided detailed information about Mr Panayi's alleged activities in relation to an importation of ecstasy in a container landing at Port Botany and said: "The Australian Crime Commission charged Panayi in connection to the importation, but the charge was withdrawn on the advice of the Department of Public Prosecutions. In secret recordings of Panayi ringing Lambley as the wharfies searched for the container - which were played to the Court - he asks Lambley: "it wouldn't have went walkabouts already?"

[112]

During a later call, Lambley says "alright, the other bloke's still hanging in. Nothing real suss to you as far as you're concerned? ... you know, if anything's suss just ring me back in half an hour." 76 The plaintiffs' submission about this article was that almost two years had elapsed since it was published; its subject matter is different from that of the current proceedings; and, it did not mention either Mr Clark or AAMAC. It only stated that Mr Panayi was the subject of a charge that was withdrawn on the advice of the DPP. The plaintiffs submit there was a contrast between the relatively benign comments in the 2006 article and the extreme falsehoods proposed in the criminal affiliation representation which make the grant of an injunction here even more necessary. It was further submitted that there was no evidence that any of the plaintiffs saw the article or were even aware of it. 77 The defendants accepted that there was no direct evidence that any of the plaintiffs knew of the existence of exhibit 1. However, the defendants contend that it is most unlikely that Mr Panayi would not know of the article given its terms. There is internal evidence in exhibit 1 of Mr Panayi's denial, to the journalist involved with the article, of the allegations being made in relation to the container the subject of the charges against Mr Nikolic. 78 Mr Panayi was present when the ex parte injunctions were obtained on 24 June 2009. He was not present in Court on 25 June 2009 or on any of the subsequent days of the hearing. He was not cross examined about these matters. His absence from the court room occasioned a degree of controversy between the parties during submissions in the subsequent days of the hearing. Be that as it may, he did not give evidence and none of his evidence relevant to non disclosure was able to be tested. The defendants have not established that he was aware of this article. The internal evidence of the article, even if it is taken as showing that Mr Panayi was interviewed for it, is not itself a sufficient basis to infer that he was aware of its subsequent publication. There is nothing to suggest that AAMAC or Mr Clark was aware of its publication. A party only has an obligation of candour in respect of things of which he was aware. No inference of non disclosure can be drawn against the plaintiffs in respect of the contents of exhibit 1.

[121]

Non Disclosure, Parties and Restraining Orders 87 Any one of these non disclosures is sufficient to lead to the discharge of the injunction to which it relates. I have found separate non disclosures in respect of each as the two restraining orders made on 24 June 2009. Both restraints will therefore be dissolved. 88 If non disclosures had been found with respect to only one of the restraints it may have been necessary to decide whether that non disclosure affected the other restraint to which it did not directly relate. It is not necessary to decide that question. 89 It is not possible to separate out the non disclosures that have occurred and attribute them to fewer than all of the plaintiffs. The plaintiffs were represented by the same counsel and solicitors. They relied upon the same evidence and legal submissions. When ex parte relief was sought the position of individual plaintiffs was not differentiated. This is reflected in the form of the orders that were made on 24 June 2009. Each plaintiff relied on the non disclosures. The defendants submitted that there is no way of quarantining one or other of the plaintiffs from the effect of the non disclosures that have occurred. The plaintiffs did not provide any satisfactory way of isolating one or other of the plaintiffs from the effect of the non disclosure. I doubt that there is a way to do this. The non disclosures I have found therefore will result in the discharge of the injunctions obtained by each of the plaintiffs. The Extension Application 90 If the defendants' application to discharge the injunction for non disclosure were to fail, the plaintiffs sought to extend the operation of the injunction so as to convert it into an interlocutory regime pending final hearing. I have found that the defendants' application to discharge the injunction on grounds of non disclosure succeeds, resulting in the discharge of all ex parte orders. It is not necessary therefore to decide whether the injunction should be extended. Indeed once a finding of a deliberate non disclosure is made, as it has been here, extension of the injunction will not be permitted. In the circumstances there seems little utility in the Court now offering conclusions as to what the fate of the extension application would have been were it necessary to decide it on this application. If that question still has to be decided it will be decided in different circumstances from those presented to me on this application. Those difference circumstances will include, for example, the findings made in this judgment. If a further application is made the matter will need to be looked at afresh on the basis of new evidence.

[122]

91 The plaintiffs submitted that the injunction should be extended in a case such as this where the entitlement to ultimate relief is uncertain and where the consequences of not continuing injunctive relief will be grave for he plaintiffs. Mr King urged upon the Court the classic passage of McLelland J in Kolback Securities Limited v Epoch Mining N L (1987) 8 NSWLR 533 describing the approach that the Court should take in considering the grant of extension of an interlocutory injunction: "As I see it, the position is as follows. Where a plaintiff's entitlement to ultimate relief is uncertain, the Court, in deciding to grant or refuse an interlocutory injunction, must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which the plaintiff may ultimately be held not to be entitled, and the consequences to the plaintiff of the refusal of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled: see, eg, Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208 at 216; A v Hayden (No 1) (1984) 59 ALJR 1 at 4-5; 56 ALR 73 at 79. Where the uncertainty depends in whole or in part on a contested question of fact it is not appropriate for the Court to decide that question on the interlocutory application. Where the uncertainty depends in whole or in part on a contested question of law, it may or may not be appropriate for the Court to decide that question on the interlocutory application, depending on circumstances, eg, whether the question is novel or difficult, or is susceptible of resolution on the present state of the evidence, or whether the urgency of the matter renders it impracticable to give proper consideration to the question: see, eg, A vHayden (No 1) (at 4; 78); Cohen v Peko-Wallsend (1986) 61 ALJR 57 at 59; 68 ALR 394 at 397. If the Court does decide the question of law the uncertainty is to that extent removed. Unless the plaintiff shows that there is at least a serious question to be tried which if resolved in its favour would entitle it to final relief, then the requirements of justice as between the parties will dictate that an interlocutory injunction should be refused: Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425; 46 ALR 398; Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283; 52 ALR 651; A v Hayden (No 1) ; Castlemaine-Tooheys Ltd v South Australia (1986) 60 ALJR 679; 67 ALR 553 and Cohen v Peko-Wallsend Ltd . Apart from this, although normally the Court "does not undertake a preliminary trial, and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case" ( Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622), there are some kinds of case in which for the purpose of seeing where lies the balance of convenience (or more specifically" the balance of the risk of doing an injustice" - see per May LJ in Cayne v Global Natural Resources plc [1984] 1 All ER 225 at 237, cf per Brennan J in Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1983) 57 ALJR 288 at 292; 46 ALR 279 at 285), it is desirable for the Court to evaluate the strength of the plaintiff's case for final relief: see, eg, Brayson Motors Pty Ltd v Federal Commissioner of Taxation (at 292; 285); Castlemaine-Tooheys Ltd v South Australia at 682; 559. One class of case to which this applies is where the decision to grant or refuse an interlocutory injunction will in a practical sense determine the substance of the matter in issue: see, eg, NWL Ltd v Woods [1979] 1 WLR 1294 at 1306-1307; [1979] 3 All ER 614 at 625-626 per Lord Diplock; Cayne v Global Natural Resources plc . The present is such a case. The substantial matter in issue is whether Epoch should be permitted to proceed with the issue of non-renounceable rights in accordance with the announcement of 13 March 1987. That will be irrevocably determined in a practical sense by the grant or refusal of an interlocutory injunction." 92 Mr King drew upon this passage and submitted that the present case is one where the grant or refusal of interlocutory injunctive relief will destroy the plaintiffs' business. He emphasised that there are contested matters of fact in issue that should be decided at a trial and that there are contested questions of law that cannot be resolved on the current state of the evidence. He submitted that the balance of convenience in the circumstances is that the injunction be continued. 93 The discharge of the injunction for non disclosure reveals the difficulty with the plaintiffs' submission. If the ex parte injunction should be discharged by reason of the plaintiffs' non disclosure, then that occurs in order to remove the effect of the non-disclosure. That result will follow even if it means there is consequential prejudice to the plaintiffs. The misuse of the Court's processes by deliberate non-disclosure requires the injunction to be dissolved in the interests of justice. If the threatened publications occur the plaintiffs are not without any remedy as they have an action for damages which they would still be at liberty to pursue.

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