HER HONOUR: Capilano Honey Limited is a public listed company that sells local and imported honey under a variety of brands. Simon Mulvany is a Victorian bee-keeper and the founder of a campaign known as "Save the Bees".
Mr Mulvany is a vocal campaigner against imported honey. There is at least a prima facie basis for contending that, during the course of his campaign, Mr Mulvany has made incorrect and damaging statements about Capilano- branded honey. Capilano brings these proceedings to remove and restrain the publication of such statements.
The proceedings at the suit of Capilano are based on the tort of injurious falsehood. The second plaintiff in the proceedings is Mr McKee, the Chief Executive Officer of Capilano. He brings an action in defamation based on substantially the same publications.
The proceedings were due for hearing before Rothman J on 26 May 2017, but that date was vacated on the morning of the hearing on the application of Mr Mulvany. Upon vacating the hearing date, Rothman J granted interlocutory injunctions restraining Mr Mulvany from publishing certain representations and imputations. His Honour granted liberty to the parties to apply in respect of any interlocutory matter, including variation of those injunctions.
By notice of motion filed 14 June 2017, Mr Mulvany seeks variation of those orders by the deletion of a single aspect of the restraint, to which I will come shortly. The notice of motion also sought an order permitting the publication of a press release in the form attached as a schedule to the notice of motion. That aspect of the application was plainly inappropriate and was not pressed at the hearing of the application. This judgment determines the application for variation of the injunction (prayer 1 in the notice of motion).
Some explanation is required as to the circumstances in which the application is brought.
The proceedings appear first to have come before Campbell J as duty judge on an application by Capilano for interlocutory injunctions. On 23 February 2016, presumably in resolution of that application, his Honour noted undertakings to the Court proffered without admission by Mr Mulvany. Those undertakings had the effect of take-down orders in respect of identified publications. Separately, Mr Mulvany proffered an undertaking not to publish identified representations and imputations. All of the representations and imputations the subject of the undertaking given to the court on that date related specifically to honey marketed and sold by Capilano and to Capilano's conduct towards consumers in its marketing of honey.
The reason the hearing of the proceedings scheduled for May of this year before Rothman J did not proceed was that, on the evening before the hearing, Mr Mulvany terminated the services of legal representatives who had agreed to act for him on a pro bono basis. Mr Mulvany sought an adjournment rather than attempting to conduct the hearing as a self-represented litigant.
The effect of the orders made by Rothman J was to convert the undertakings to the Court given when the matter came before Campbell J into orders restraining the publication of certain representations and imputations. On the application of Capilano, his Honour also made an order restraining Mr Mulvany from publishing certain further representations and imputations, as follows:
"(a) That honey marketed and sold by the first plaintiff, whether under the Capilano, Allowrie, Smith's or Wescobee or any other brand is dangerous or contaminated;
(b) That the first plaintiff or any of its officers are corrupt;
(c) That the first plaintiff or any of its officers are bullies;
(d) That the first plaintiff or any of its officers are dishonest;
(e) That the first plaintiff illegally imports and sells honey."
Mr Mulvany's application relates to order 2(c), the order restraining him from publishing a representation or imputation that the first plaintiff or any of its officers are bullies. I will refer to that as the "bully" imputation.
The day after making those orders, Rothman J varied the orders under the slip rule so as to correct the date by which the previous orders of Campbell J had been referred to. His Honour published reasons in chambers which relate not only to the correction under the slip rule but also to the substantive orders made.
As already noted, his Honour's orders made upon the vacation of the hearing date specifically reserved liberty to the parties to apply in relation to any interlocutory issue, including a variation to the orders issued that day.
In the judgment published in chambers the following day, regarding that issue, his Honour said at [5]:
While the defendant addressed the Court on the nature of the orders and whether there had been deliberate or reckless or careless breaches of previous undertakings, the lack of opportunity for the defendant to prepare properly for the application for interlocutory orders and/or the hearing is such that these interlocutory orders ought properly to be treated as if they were made ex parte.
The orders were expressed to continue "until further order", notwithstanding his Honour's characterisation of them as being in the nature of "ex parte orders". It is necessary in that context to consider both aspects of the determination (the judgment and the form of the orders made) together.
When Mr Mulvany's present application first came before me for argument in the Defamation List there was some debate as to whether the onus was on him to establish a basis for discharging part of the orders or whether, rather, the onus was on Capilano to establish that the orders should be continued. I endeavoured to circumvent that debate, which itself was occupying a deal of court time in a busy list, by requesting counsel for the plaintiff, Mr Dawson SC, to move directly to the substantive issue in contest, whether Mr Mulvany should be restrained in the expanded terms ordered by Rothman J.
Mr Mulvany's short point at that stage, as articulated by his solicitor, Mr Morehead, was that the restraint against publication of the "bully" imputation entailed a measure of overreach for the simple reason that the statement of claim filed by Capilano up to that point pleaded no representation or imputation in that form.
Mr Dawson SC, who appears for Capilano, submitted that, leaving aside the question of onus, the orders made by Rothman J on the first day of the hearing had been made as the "price of the adjournment". It is not clear to me what juridical significance that may have; the parties addressed Rothman J and the orders were made in the circumstances in which they were made. I do not think it follows that those circumstances can properly inform or constrain the liberty expressly granted by his Honour to both parties to move the court for a variation of the orders made.
In the submissions before me on the hearing of the present application, there was a hint of dissatisfaction on Capilano's part with my approach in suggesting that it was for Capilano to justify the continuation of the orders. In my view, what Rothman J said in par [5] of the judgment set out above is clear. Further, having regard to the circumstances in which orders were made in those terms, including the fact that no such representation or imputation had then been pleaded by Capilano, I remain of the view that the approach I suggested was the correct one. But in any event the argument ultimately proceeded on the basis that, as foreshadowed at the hearing before Rothman J, Capilano would amend its statement of claim so as to cure the defect. The application was adjourned (on Capilano's application) to allow that to occur.
On 14 August 2017, Capilano filed an amended statement of claim pleading the "bully" imputation, both in general terms and in specific terms as follows:
(q) That the first plaintiff, or any of its officers, are bullies.
(r) That the first plaintiff, or any of its officers, are bullies in that the first plaintiff is using court proceedings to silence the defendant and prevent him from exposing its deceptive practices.
(s) In the alternative, that the first plaintiff, or any of its officers, is using court proceedings to silence the defendant and prevent him from exposing its deceptive practices.
(t) That the first plaintiff, or any of its officers, are bullies in that the first plaintiff is using court proceedings to silence the defendant and prevent him from exposing its immoral behaviour.
(u) In the alternative, that the first plaintiff, or any of its officers, is using court proceedings to silence the defendant and prevent him from exposing its immoral behaviour.
(v) That the first plaintiff, or any of its officers, are bullies in that the first plaintiff is using court proceedings to silence the defendant and prevent him from exposing its illegal sale of honey.
(w) In the alternative, that the first plaintiff, or any of its officers, is using court proceedings to silence the defendant and prevent him from exposing its illegal sale of honey.
(x) That the first plaintiff, or any of its officers, are bullies in that the first plaintiff and Kerry Stokes used their lawyers and the defendant's lawyers to act corruptly by getting him to sign a Deed settling proceedings they have brought against him which would gag him from saying nearly anything about the first plaintiff and force him to abandon his beliefs about the honey industry.
(y) In the alternative, that the first plaintiff, or any of its officers, and Kerry Stokes used their lawyers and the defendant's lawyers to act corruptly by getting him to sign a Deed settling proceedings they have brought against him which would gag him from saying nearly anything about the first plaintiff and force him to abandon his beliefs about the honey industry.
The hearing then resumed before me on 18 August 2017. On that date, Capilano produced a large volume of material directed primarily to substantiating the basis for continuing the interlocutory injunctions in respect of the substantive imputations that had always been pleaded concerning Capilano's honey. The reason for approaching the application on that basis, so it was submitted, was that the "bully" imputation could not be uncoupled from the underlying representations, as to which Mr Mulvany has filed no defence and which he does not seek to be allowed to publish in the period before the hearing. In particular, it was submitted that any suggestion by Mr Mulvany that Capilano is bullying him by prosecuting the present action necessarily asserts that the representations concerning Capilano honey which Mr Mulvany is currently restrained from publishing are true.
The elements of the tort of injurious falsehood were stated by the High Court in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 as follows (recorded in the judgment of Brereton J in AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at par [29]):
The elements of the tort of malicious falsehood comprise (1) a false statement of or pertaining to the plaintiff's goods or business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant; and (4) actual damage as a consequence [Ratcliffe v Evans [1892] 2 QB 524, 527-8; Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388, 404 [52] (Gummow J), 425 [114] (Kirby J)].
The first element is that there be a false statement of or pertaining to the plaintiff's goods or business.
Contrary to the premise of Capilano's argument in the present application, I do not think the "bully" imputations, whether in the general expression or in the particular, amount to statements pertaining to Capilano's goods or business. They are, rather, imputations directed at Capilano's conduct of these proceedings. For that reason, I do not think a prima facie case is established for satisfying the first element of the cause of action.
That analysis reveals a larger hurdle for Capilano, which is a matter of fundamental principle. The proposition that the "bully" representations go to the conduct of this litigation rather than to Capilano's core business was expanded more particularly by Mr Morehead in the following way in his brief written submissions.
In short, Mr Morehead submitted that Mr Mulvany, an individual, finds himself facing complex and expensive litigation at the suit of a well-funded, public-listed company. The litigation has been brought in the State of New South Wales, a jurisdiction with which, so far as Mr Morehead is able to ascertain, neither party has any connection. Certainly for the defendant, who resides in Victoria, the fact of the proceedings being conducted in this State poses practical difficulties and expenses. Mr Morehead submitted that, in those circumstances, an application to restrain Mr Mulvany from publishing the "bully" imputations has the resonance of a constraint that limits his access to justice. Mr Mulvany seeks to be released from any constraint that might preclude him from commenting on those aspects of the litigation on his "GoFundMe" page, by which he seeks to raise funds to defend the action.
As already noted, Capilano's response was that the "bully" imputations could not be uncoupled from the substantive underlying imputations, publication of which is currently restrained. I do not accept the uncoupling argument; juridically and conceptually they can be separated from each other.
As a practical matter, it may be difficult to frame a persuasive statement such as to encourage social funding for the litigation without repeating the statements Mr Mulvany is currently restrained from making. If Mr Mulvany does make any statement in such terms, he will have breached the remaining orders to which there is no challenge. To the extent that Mr Mulvany misstates any aspect of the plaintiff's conduct of this litigation or otherwise makes statements calculated to occasion prejudice to the processes of the court, the sanction lies in contempt. But in my view, it is inappropriate for this Court, in a proceeding before the Court, to seek to control, by restraining the speech of a litigant, the manner in which the litigant may conduct the proceedings. That is, in substance, the effect of the orders sought here.
For those reasons, whoever bears the onus on the present application, I am satisfied that I should make "Order 1" in the notice of motion dated 14 June 2017:
1. Vary the interim orders made on 25 May 2017 so as to delete the restraint in order 2(c).
[2]
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Decision last updated: 19 September 2017