Daimleigh Pty Ltd v Brandi [2002] VSC 327

Supreme Court of Victoria|2002-08-09|Before: Nettle J

EQUITY - Injunction - Interim injunction to restrain publication of without prejudice communications and confidential information.

Application is made by Daimleigh Pty Ltd, ex parte but on notice, in anticipation of the institution of a proceeding, for interim injunctions to restrain publication of three documents, two of which are said to be without-prejudice communications between Daimleigh Pty Ltd and David Brandi, and one of which is said to be a Pentridge Village list and sale prices document recording both the list price and sale price of homes or units in the Pentridge Village development.

The facts of the matter are deposed to briefly in an affidavit sworn by Leigh Adrian Chiavaroli on behalf of Daimleigh Pty Ltd. What is there said, taken together with what has been submitted to me by Mr Houghton QC, who appears with Ms Schoff on behalf of Daimleigh, satisfies me that there is at least an arguable case for the proposition that the two letters are communications sent without prejudice, and are thus privileged, and that the Pentridge Village list and sale prices document may be a document containing price-sensitive confidential information which was disclosed in circumstances of confidence to Mr Brandi (for purposes associated with the interests of Daimleigh Pty Ltd). Mr Brandi has threatened to send all three documents to the press and radio stations for publication.

The first document, a letter dated 17 May 2002, from Peter Chiavaroli to David Brandi, contains an admission that moneys are owing to Mr Brandi and suggests that negotiations be entered into to reach some form of compromise. The second document, a letter dated 10 July 2002, from Messrs Herbert Geer & Rundle to David Brandi, also proposes that some form of settlement be entered into. Thus, I consider that they may amount to without-prejudice communications: see Field v Commissioner for Railways NSW [1]; cf. Village Nine Network v Mercantile Mutual[2].

The third document, which contains the list and sale prices, I am told by Mr Houghton was handed by or by interests associated with Daimleigh Pty Ltd to Brandi to provide him with information that would assist Brandi in the task of selling homes or units on behalf of a joint venture of which Daimleigh Pty Ltd is the sales representative. Thus it appears arguable that it was disclosed in circumstances of confidence: cf. Langley v The Age Co Ltd[3]. It is also deposed, at paragraph 6 of Mr Chiavaroli's affidavit, that publication of the document would provide developers with details of prices offered by and on behalf of Pentridge Village Pty Ltd, and I have been told by Mr Houghton that so to do could prejudice the commercial interests of Daimleigh Pty Ltd and the joint venture which it represents.

I am told that notice of the application has been given by telephone and that there has been a response to the effect that notice should be given in writing. That seems to make it plain that the message was received and understood, but there is no appearance before me by David Brandi.

In the circumstances I am prepared to make orders restraining publication of the three documents until 4.15 pm next Tuesday, 13 August.

Mr Houghton has on behalf of his client offered the usual undertaking as to damages and also an undertaking to issue a writ and summons and to serve the same by no later than 4 pm that day. I think, however, that some variation of those undertakings may be required.

Mr Houghton, obviously the undertaking as to damages is in appropriate form. Can one have any confidence that Daimleigh would be good for the money if the undertaking were enforced?

MR HOUGHTON: As far as I know, yes, Your Honour. It is a real estate agent, it is licensed, and it carries on a business.

HIS HONOUR: Upon the undertaking to issue the writ and to serve the same by 12 pm Monday 12 August, I suppose that is satisfactory. I suspect you should also serve, should you not, a copy of the affidavit, the exhibits and this order.

HIS HONOUR: After "relief", if I insert "the affidavit of Leigh Chiavaroli sworn 9 August and the exhibits thereto together with a copy of this order". "To issue the writ and summons seeking interlocutory relief by 12 pm Monday 12 August 2002 and serving the same and the affidavit of Leigh Chiavaroli sworn 9 August and exhibits together with a copy of this order by no later than 4 pm that day." Upon those undertakings being given, Mr Houghton, I will make the orders in terms of Minutes 1, 2 and 3. Can you conveniently get that amendment made?

MR HOUGHTON: Yes, we can have that re-engrossed and to your associate I think very shortly, Your Honour, if that is convenient.

[2] [2001] 1 Qd R 275, esp. at [12] to [14].

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