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Judgment - ex tempore 1HER HONOUR: These are proceedings for defamation commenced by statement of claim last Tuesday 7 August 2012. The proceedings were brought before me as duty judge on an urgent basis to hear the plaintiffs' application for an interlocutory injunction to restrain the defendants from publishing any statement at all concerning the plaintiffs, with specified purposive exceptions. 2At the hearing of the application last Friday, Mr Smark, who appeared for the plaintiffs, acknowledged that the relief sought was unduly broad. Mr Smark provided a form of proposed order that would restrain the defendants from publishing any statement at all concerning the plaintiffs substantially to the effect of the imputations pleaded in the statement of claim. The application proceeded on that basis. 3The context in which the application is brought is that the second plaintiff and the first defendant compete with each other in the provision of training and seminars for migration agents, who are subject to continuing professional development requirements. These are not the first defamation proceedings generated by that competition. The first plaintiff commenced proceedings last year against the first defendant and its chief executive officer in respect of an article published in the first defendant's newsletter and those proceedings remain on foot. 4The present claim arises out of statements allegedly made by the second defendant, who is the independent chairperson of the first defendant, to Ms Alison Wood, described in the evidence as the acting head of Sydney TAFE. Before going to the substance of the claim I should record some further detail as to the context in which the publications are alleged to have been made. 5The second plaintiff, Legal Training Australia ('LTA'), has a commercial arrangement with TAFE. It appears that the entity through which LTA conducts those arrangements is referred to as the Migration Alliance ('MA'). The terms of the arrangement were not put in evidence by the plaintiffs. They were available in a confidential affidavit but, having regard to the complications of confidentiality, it was not ultimately considered necessary to rely upon them. The defendants' evidence addressed the arrangement to a limited extent. The affidavit of the second defendant set out a conversation between her and Ms Alison Taylor of TAFE in which Ms Taylor said: TAFE Sydney Institute takes its role as an education institution very seriously. We have a memorandum of understanding with the MA which states that all communication must be vetted and approved by the Institute which has not occurred in this case. We do not condone this and are looking into it and do not endorse their conduct. 6Mr Smark was careful to inform the Court that the application should not proceed on the premise that an arrangement in such terms (allowing TAFE to vet communications by the second plaintiff) did not exist. I pause in that context to record my gratitude for the way in which the application was conducted by both counsel. It is difficult to imagine a better illustration of the proper fulfilment of the duties of counsel and the possibility of achieving that end with both courtesy and efficiency. 7Returning to the context in which the publications were made, evidently pursuant to that arrangement with TAFE, the second plaintiff advertised on 6 July 2012 an event under the banner "Christmas in September - Free Migration CPD Event". The event was advertised as having been organised in partnership with TAFE and was scheduled for 14 and 15 September. The advertising email stated: Legal Training Australia in partnership with TAFE NSW Sydney Institute is conducting a lucky draw to celebrate the success of Migration Alliance. Ninety lucky migration agents will get to attend a free two day ten point migration CPD blitz on 14 and 15 September 2012. All agents are welcome to enter the draw irrespective of MA membership or being a LTA customer. 8The dates of that event clash with the first defendant's annual conference, advertising for which commenced in March of this year, well before the plaintiffs' event. The evidence established that it is not the first time an event that has been organised by an entity associated with the first plaintiff, Ms Allan, has clashed with an event organised by the first defendant. The evidence further established that the first plaintiff probably receives the first defendant's newsletter (which contained advertising for the first defendant's event). That is the context in which the publications were made. 9The first matter complained of is pleaded in the following terms: LTA has a free event scheduled for the second year in a row to clash with the MIA conference. MIA is surprised and displeased with Sydney Institute for its involvement. It may not be good ethical practice or good business practice for LTA to hold its event on the same day. 10The evidence on the application before me neither admitted nor denied the terms of that publication. 11The second matter complained of is an email sent by the second defendant to Ms Wood at TAFE which relevantly includes the following passage: The MIA is concerned that the actions by Migration Alliance/Legal Training may be anti-competitive under the Competition and Consumer Act 2010 (Cth). It may be akin to predatory (or in this case non-existent pricing.) 12The principles to be applied in determining an application for an interlocutory injunction to restrain the publication of allegedly defamatory matter were considered by the High Court in ABC v O'Neill [2006] HCA 46; (2006) 227 CLR 57. Mr Smark offered a helpful summary of the principles that apply following that decision. 13First, the decision confirms the orthodox approach that interlocutory applications where the cause of action is defamation must be regarded as falling in a special context in which the court must take proper account of the significance of the value of free speech. Secondly, the principles to be applied are applied as a species of what Mr Smark described as the genus of interlocutory injunctions requiring, first, the establishment of a reasonably arguable case and, secondly, consideration as to where the balance of convenience falls. Separately, Mr Smark suggested that it is not clear where in that process one applies the special caution but that it is probably at the second phase. 14Turning to the present case, it may be accepted that both matters complained of probably convey some imputation defamatory of the plaintiffs although I accept, as submitted by Mr White, that there may be real issues as to the form of the imputations pleaded in the existing statement of claim. The matters each identify the second plaintiff. They do not identify the first plaintiff but a particular of identification is pleaded, namely, that Ms Wood knew the association between the first plaintiff and the second plaintiff. Accordingly, it is appropriate to proceed on the basis that the matters are arguably defamatory, subject to any defences. 15The defendants' submissions address only the defence of qualified privilege. Accordingly, although the defence of comment or honest opinion was addressed by Mr Smark, given that it was not raised on behalf of the defendants there would not appear to be any occasion for my considering that as a potential defence. 16The defendants' submissions also did not address the defence of justification, which distinguishes this case to some extent from the principles stated in ABC v O'Neill, where a significant factor in the Court's decision to overturn the decision of the Court of Appeal was the fact that the Court had not given proper account to the fact that an issue of justification is essentially one for jury decision. As noted by Mr White on behalf of the defendants, the question whether an occasion on which allegedly defamatory matter is published is a privileged occasion is a question of law for determination by the judge, not the jury. 17That takes me, however, to the principles stated by McLelland J in Kolback Securities v Epoch Mining NL (1987) 8 NSWLR 533 where his Honour said at 535: 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 v Hayden (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. 18I think it may be accepted that, if they are nothing else, issues as to the existence of an occasion of qualified privilege are generally difficult. 19The basis for the proposed defence in the present case is the interest of TAFE in having the information published on the strength of its commercial arrangement with the second plaintiff and the first defendant's interest in protecting its commercial interests by expressing its concerns to TAFE. Mr Smark conceded that, if the court were persuaded that there was a significant prospect of the defence being successfully raised, I ought not grant the injunction. I do not think it is possible on the strength of the limited evidence before me to form a conclusive opinion in those terms but it is enough to observe that there would appear to be a reasonable prospect that the defendants may, depending upon the evidence that unfolds at the trial, successfully defend the publications on the strength of the qualified privilege defence. 20Separately I must also consider whether there is any prospective threat of further publication. Mr White noted that the publications sued on relate to a complaint that has been made and is in that sense spent. I do not see in the evidence any real basis for apprehending that the defendants would continue to make like statements. The publications sued on in these proceedings and indeed in the earlier proceedings brought by the plaintiffs have, on each occasion, been reactive to the first plaintiff's business practices. 21Turning to the balance of convenience, the decision of the High Court in O'Neill reminds judges to recognise an application such as the present as being brought in a special context. As already stated, I must take proper account of the significance of the value of free speech before restraining publication. Mr Smark noted the history of fraught relations between the parties and the fact that they are commercial competitors. That is something of a double-edged sword in the present case. The court must, of course, be prepared to grant an injunction in an appropriate case but must also be vigilant not to be used as the instrument for gagging debate in a competitive market. As directed by the High Court, I must pay particular attention to the considerations that have been identified by courts as directing caution, foremost amongst which is the public interest in free speech. 22There is a real possibility, not excluded on the plaintiffs' evidence, that the publications were made in the context that for a second time at least the first plaintiff has deliberately organised a free event to clash with the first defendant's annual conference. Whilst such conduct does not, of course, give license to the defendants to defame the plaintiffs, that commercial context illustrates the importance of a cautious approach in my view. 23Balancing those considerations and having regard to the matters to which I have referred I am not satisfied that it is appropriate to grant the relief sought. The application on the notice of motion is dismissed. 24I order the plaintiffs to pay the defendants' costs of the application.