Carlovers Carwash Limited & 5 Ors v Sahathevan [2000] NSWSC 947 | Case summary

(2) Nothing in this Part shall be taken as limiting by implication the generality of subsection (1)". 7 And s 60: "(1) Nothing in section 42, 44, 45, 49, 50 or 54 applies to a prescribed publication of matter by a prescribed information provider, other than: (a) a publication of matter in connection with: (i) the supply or possible supply of goods or services, (ii) the sale or grant, or possible sale or grant, of interests in land, (iii) the promotion by any means of the supply or use of goods or services, or (iv) the promotion by any means of the sale or grant of interests in land, where: (v) the goods or services were relevant goods or services, or the interests in land were relevant interests in land, as the case may be, in relation to the prescribed information provider, or (vi) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with: (A) a person who supplies goods or services of that kind, or who sells or grants interests in land, being interests of that kind, or (B) a body corporate that is related to a body corporate that supplies goods or services of that kind, or that sells or grants interests in land, being interests of that kind, or (b) a publication of an advertisement. (2) For the purposes of this section, a publication by a prescribed information provider is a prescribed publication if: (a) in any case - the publication was made by the prescribed information provider in the course of carrying on a business of providing information, or (b) in the case of a person who is a prescribed information provider by virtue of paragraph (a), (b) or (c) of the definition of prescribed information provider in subsection (3) (whether or not the person is also a prescribed information provider by virtue of another operation of that definition) - the publication was by way of a radio or television broadcast by the prescribed information provider…" 8 The proceedings have been instituted by six plaintiffs and paragraphs 1 to 10 of the Amended Statement of Claim are in the following terms: "1. The first plaintiff is a corporation duly incorporated for the purposes of the Corporations Law and is able to sue in its corporate name. 2. At all material times the second plaintiff was a director of the first plaintiff. 3. At all material times the third plaintiff was a director of the first plaintiff. 4. At all material times the fourth plaintiff was a director of the first plaintiff. 5. At all material times the fifth plaintiff was a director of the first plaintiff. 6. At all material times the sixth plaintiff was a director of the first plaintiff. 7. The defendant is and was at all material times engaged in trade or commerce as a journalist. 8. Berjaya Group Berhad is a publicly listed company on the Kuala Lumpur Stock Exchange. 9. Berjaya Group (Cayman) Limited is a wholly owned subsidiary of Berjaya Group Berhad. 10. The Berjaya Group (Cayman) Limited is the majority shareholder in the first plaintiff holding 72.65% of the listed shares of the first plaintiff as at 30 September 1999". 9 The allegation at paragraph 7 is not without significance in the current proceedings. 10 The communications containing the representations, the publication of which anywhere in the world which has been enjoined by the order of 17 February 2000, are the two emails. 11 The first is described as "14 November email" in respect of which paragraph 15 and 16 of the Amended Statement of Claim plead as follows: "15. On or about 14 November 1999 the defendant sent an electronic mail message ('14 November Email') to pillai@mgg.pc.my and mhan@berjaya.com.my. The defendant circulated a copy of the 14 November Email to bksidhu@thestar.com.my; leslie.lopez@mail.aswj.com; joanne@ntv7.com.my; tpatrick@ap.org; mmellish@mail.fairfax.com.au; and cryan@mail.fairfax.com.au. 16. The electronic mail address mhan@berjaya.com.my is the address of Ms Magdalene Han ("Ms Han"). Ms Han is the executive assistant to the second plaintiff". 12 The second email is "11 January 2000" email in respect of which paragraphs 18 and 19 of the Amended Statement of Claim plead the following: "18. On or about the 11 January 2000 the defendant sent an electronic mail message ('11 January Email') to pillai@mgg.pc.my; dchin@berjaya.com.my; and mhan@berjaya.com.my. The defendant circulated a copy of the 11 January email to bksidhu@thestar.com.my leslie.lopez@news.awsj.com; and tsykes@afr.com.au. 19. The electronic mail address of the dchin@berjaya.com.my is the address of Mr Derek Chin ('Mr Chin'). Mr Chin is the Senior General Manager (Group Legal) of Berjaya Group Berhad". 13 As I understand it the addressees include a newspaper known as The Star, The Asian Wallstreet Journal, MTV7, Associated Press and Fairfax. 14 The evidence in support of the defendant/applicant's Motion to dissolve the injunction is made up of an affidavit of Lachlan Riches sworn 7 August 2000. Mr Riches is the defendant's solicitor who was consulted on 3 March 2000, that is after the interlocutory injunctive order was made by consent. 15 It is clear from this affidavit that the defendant's solicitor made known to the solicitors for the plaintiff objections to be taken as to availability of the causes of action, the formality of the pleadings particularly in relation to the defamation claim and that in respect of the imputations or charges made that they would be defended, certainly in the context of the defamation action, on the basis of all available defences including truth. 16 There is annexed to this affidavit communications from the Press Council expressing concern at the ramifications of injunctive orders made pursuant to the Fair Trading Act. That evidence is merely noted but it is not determinative of the outcome of these proceedings. 17 One matter that is deposed to (paragraph 11) is that the publications referred to in the Statement of Claim are said to consist of an article drafted by the defendant for publication by one or more of the recipient newspapers and of copies of the proposed articles that were sent at the plaintiff's request to their legal advisers and parent company. This allegation is seriously in dispute. 18 The second affidavit is that of the same deponent sworn on 11 August to which is appended the respective matters complained of and what is described as the source material relied upon by the defendant in support of what the defendant wrote. There is attached schedules of journalistic output by the defendant and evidence as to his being paid, for example, by The Sunday Star Times of Auckland in 1998. 19 The affidavit of 16 August 2000 by Mr Riches again goes to the issue of the defendant being a journalist. Additionally, material is annexed to the affidavit in relation to Court proceedings in Malaysia for wrongful dismissal instituted by the defendant. 20 For the plaintiff the affidavit of 16 December 1999 by the financial controller of the first plaintiff, Melanie Speet, deposes to formal matters, responses to the subject emails and the proceedings in Malaysia. 21 In his affidavit of 9 February 2000 Mr Andrew Kok Leng Teh, the Managing Director of the first plaintiff, in effect, puts in issue the truth of various allegations and representations said to have been made in the subject emails and provides evidence as to corporate structures and the like. 22 A further affidavit of 14 August was sworn by Mr Jeffrey Thomas Fai, solicitors for the plaintiffs relating to the history of procedural aspects and places in issue the matter referred to in paragraph 11 of Mr Riches affidavit of 7 August 2000 to which I have referred. 23 The affidavit of 20 August of Mr Fai, (paragraph 4 was not read) seems to set out a body of emails emanating from the defendant (none of which is alleged to constitute a breach of the orders made on 17 February insofar as any post-date that order), upon which reliance is placed as indicative of an approach, motive or state of mind of the defendant that affects the entitlement of the defendant to have the order dissolved. 24 A further affidavit of Mr Fai was filed in Court on 7 September (it was sworn on 6 September) and relates to a conversation that took place between Mr Fai and a Mr Patrick of Dow Jones publications relating to receipt by that person of some emails from the defendant unsolicited. 25 An affidavit sworn 4 September 2000 by Mr Riches was read in reply and relates to the subject of "public interest" relating to what I would describe as the Malaysian component of this dispute, personalities involved, other defamation actions involving Mr Vincent Tan (the second plaintiff) and the like. 26 This summary of the evidence may be adjudged to be fairly cursory. In the end the proceedings before me on 7 September were remarkable in the sense of disclosing more matters not for consideration than matters for consideration. 27 No issue arose as to the appropriateness of or jurisdiction in the Court to entertain an application to dissolve the injunction made "by consent" (Adam Brown Male Fashions Pty Limited v Philip Morris Inc. (1981) 148 CLR 170 at 180; Wilkshire & Coffee v Commonwealth of Australia (1976) 9 ALR 325 at 330; Mullins v Howell (1879) 11 Ch. D 763). 28 Had there been any issue on this aspect it would have easily been resolved in favour of the defendant/applicant. The question of public interest and the right to free speech and any restraint upon it plays an important role in an examination of the continuance of an injunction "by consent"; secondly, though this in the whole scheme of things is not that important, is the conduct of the proceedings to date by the plaintiffs in the sense that there has been a failure adequately, properly or at all to answer complaints about particulars in relation to causes of action or otherwise to expedite the proceedings instituted; thirdly, and this is perhaps another aspect of the public interest component, is the addition by consent of the Minister for Fair Trading, who takes a position, through the submissions made by the Solicitor General, cognate with that of the defendant in support of the dissolving of the injunction. 29 Another factor in entertaining the application of course is that the defendant was unrepresented at the time of the making of the consent order and action promptly was taken by his legal advisers to seek to rectify the position after the giving of instructions on 3 March 2000. 30 One very important matter of fact has, in my view, unquestionably been proved on the balance of probabilities by the defendant for the purposes of his application to dissolve the injunction and that is that he was a freelance journalist at all relevant and material times who carried on the business of providing information as such for the purposes of the definition in s 60. This finding is available from all the evidence to which I have referred; it can hardly be disputed in a wider sense in the light of the allegation made in paragraph 7 by the plaintiffs in the Amended Statement of Claim to which I have referred and a reading of the two emails (but subject to the contention of the plaintiffs) he speaks of the carrying on of the business and the provision of information in so doing by their author. 31 Further, as was made clear by counsel for the plaintiffs, subject to the finding of fact in relation to the content of the subject emails upon which reliance was placed for the plaintiffs, I am concerned not with a question of construction of s 42 and 60 of the Fair Trading Act but rather with the question of their application. 32 The publications which found the proposed causes of action are set with the Amended Statement of Claim. It can be accepted for present purposes that they were directed to the plaintiffs (in which event it would be questionable as to whether the tort of defamation or malicious falsehood had been committed at all and it would be questionable as to whether there had been any conduct that could be impugned under s 42 of the Fair Trading Act), to a company that is a majority shareholder in the first plaintiff and various journalists employed by media organisations one at least within New South Wales, the others abroad. 33 The principles that attend an application to restrain the publication of what is said to be defamatory matter are clear (Swimsure (Laboratories) Pty Limited v McDonald (1979) 2 NSWLR 796; Chappell v TCN Channel Nine Pty Limited (1988) 14 NSWLR 153). It is notorious, if I might say so, that the Courts are very reluctant to grant injunctive relief to restrain publication of alleged defamatory matter. 34 Had proceedings to restrain the publication of material of the kind set out in the two emails been instituted merely on the basis that they were defamatory, I would venture to suggest (but do not have to decide), that the chances of successfully obtaining interlocutory injunctive relief would have been minimal if not non-existent. 35 Here, it is argued for the plaintiffs that the defendant has failed to establish that he is an information provider (which I have ruled to the contrary) but have further asserted, to put it shortly, that that which the plaintiff did in the course of publishing the emails was not done in the course of his business as a freelance journalist but was rather actuated, motivated or impelled by self-interest, ill-will, if not malice, by reason of the termination of his employment arrangement with the plaintiffs which has resulted in litigation in Malaysia, evidenced so it is said by the emails annexed to the affidavit of Mr Fai of 30 August 2000. 36 For the defendant and by the Solicitor General the fundamental propositions were advanced to this effect. Section 60(1) excludes the operation of s 42 to publications by "a proscribed information provider". If it is found that the defendant falls within the definition of a "proscribed information provider" then, shortly stated, he should have the benefit of s 60. Where a freelance journalist (or even an irregular contributor) provides material to a media organisation with a view to publication (and payment for that publication) the freelance journalist or other contributor can be described as a "proscribed information provider" for the purposes of s 60 and the publication could also be described as one made "in the course of carrying on the business of providing information". 37 I have found that on the probabilities the defendant falls within the definition and accept these submissions. 38 I have found (subject to the plaintiffs' argument) that an evidentiary component leading to that finding is the content of the emails themselves. I have to be persuaded by the submission for the plaintiffs to the effect that, even if I have made a finding as I have as to the defendant being a proscribed information provider, the defendant was not performing that function in the dispatch of these emails. In the instant case that proposition seems to me to rest fundamentally upon a view, argued to be available, that that which he was doing was coloured by these other motives to an extent that a finding could be made that motive, bias or interest surrounding the otherwise "protected" publication deprives the publisher of that protection. 39 I was in effect invited to come to a conclusion that this submission is sustainable if I found on the probabilities that, contrary to the assertion in paragraph 11 of Mr Riches affidavit of 7 August, the plaintiffs did not request that drafts be sent to their legal advisers and parent company. Pausing here I am unable to make a finding on the balance of probabilities that that which is asserted in that regard has been established. The scales remain evenly balanced. The absence, however, of any such finding does not derogate from the principal finding as to the defendant being an information provider. In the course of her submissions Ms Gibson for the defendant when dealing with the matter of "motive" said that it was based upon conjecture and the urban myth that "the journalist is ethically prevented from writing a story about anything in which he has a great interest," adding that that would come as a "shock to Mr Pilger". It could be added also that it would come as a shock to Mr Robert Hughes, Mr Phillip Adams, Mr Leo Schofield and Mr Piers Ackerman, for example. 40 The state of mind or motivation in a freelance journalist found in the course of his business as such to have provided information in the form of the subject emails in this case, cannot on any rational basis affect his right to do so, that is, to publish the information. That would be a perilous path for the law to embark upon; that is to determine whether there should be freedom to publish by reference to the motivation of the publisher. 41 It is clear that the defendant and the plaintiffs are in dispute: it is clear the defendant unquestionably has an interest to promote. Those factors however cannot outweigh the protection afforded him, in the light of my findings, by s 60 of the Fair Trading Act. For the purposes of the disposing of this application I am persuaded on the balance of probabilities that the purpose of the emails was to provide information. That purpose cannot be said not to exist by reason of a motive or an interest or a bias or a prejudice that might attend the provision of information. 42 I am not persuaded that it is appropriate even to characterise the defendant's conduct in providing the information in the relevant emails as evidencing him being "on the war path" or "abusing his position". These are matters that may well be the subject of consideration in a properly structured action for defamation. They are not matters available, when other circumstances protect the publisher, to silence the voice or to render mute the person who might well in fact have an axe to grind. 43 I am persuaded on the evidence that had there been a contested application based upon this evidence for an injunction to restrain publication it would have failed in the area of defamation; and it would have failed as an exercise to preserve an asserted interest to which s 42 of the Fair Trading Act is directed. 44 In Krahe v Freeman (1988) ATPR 40-871 at 49,430 Rogers J in dismissing an application for an interlocutory injunction to restrain the publication of a book and having made findings founding his dismissal of that application said this: "I should not part from this case without saying this: the Fair Trading Act was never meant to be a substitute for actions for defamation. The Parliament has made that clear by the enactment of s 60. In my respectful view, the Court, should be astute not to allow utilisation for a purpose for which it was never intended". I adopt with respect his Honour's remarks and agree with them. 45 In this litigation there are many issues still outstanding including "strike out" applications in respect of the causes of action pleaded under the Fair Trading Act, and applications in relation to the form of pleading and particularisation of the causes of action in defamation and injurious falsehood. These can be dealt with at another time. 46 In the instant application I have been concerned only with whether the defendant has made out a case for the dissolution of the order made by consent on 17 February 2000. I have found that he has made out that case; that at all material times he was and is a proscribed information provider, the relevant communications were made in the course of him conducting his business as such and he is therefore entitled to the protection of s 60 of the Fair Trading Act, a protection that should not, with ease, be removed merely by reference to questions of motive, bias or self-interest in the publisher. 47 The formal orders are:

Carlovers Carwash Limited & 5 Ors v Sahathevan

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