Gair v Greenwood

Solicitors: Plaintiffs: Malcolm Murray & Associates Defendant: In person File Number(s): 2016/369778 Publication restriction: None

The background to this application

1. The plaintiffs commenced these proceedings for defamation in the Supreme Court of New South Wales on 9 December 2016. They were transferred to the District Court on 9 April 2019. Since that time, these proceedings have been at a standstill due to the defendant's failure to comply with orders including a self-executing order for answers to interrogatories which had been administered in early 2018.
2. This resulted in an application for summary judgment, which I granted on 28 November 2019: Gair v Greenwood [2019] NSWDC 725, noting the defendant's history of delay and failure to comply both in the Supreme Court and in this court (at [6]-[34]). The question now is how to case manage the outstanding applications by both parties, including the plaintiffs' foreshadowed applications for injunctions.
3. The orders I made on 28 November 2019 were as follows: 1. The defence filed on 15 August 2017 is struck out. 2. Verdict and judgment for the plaintiffs, with damages (including any aggravated damages) to be assessed. 3. These orders to be entered forthwith. The court notes the plaintiffs seek an injunction against the defendant restraining him from publishing or causing to be published the matter complained of or matters substantially to the same effect as such matter pursuant to s 46 of the District Court Act 1973 (NSW) and paragraph 3 of the relief sought in the statement of claim. In respect of that application, the court further orders that: 1. The matter be fixed for hearing of the plaintiffs' application on Wednesday 11 December 2019 at 9:30am. 2. The plaintiffs by 2 December 2019, serve the defendant by email the form of injunction sought, their evidence and submissions in support of the injunction. 3. The defendant serve on the plaintiff any evidence and submissions on which he intends to rely in relation to the injunction sought by 9 December 2019. 4. The parties to provide the Associate to her Honour Judge Gibson with a copy of their evidence and submissions by 4.00pm 9 December 2019. 5. The plaintiffs to notify the defendant of these orders by 5.00pm today and have an affidavit of service available at the hearing on 11 December 2019 confirming notice has been given to the defendant of these orders and notations.
4. The defendant chose not to attend court on 28 November 2019. In my judgment, which was handed down and sent to the parties on 3 December 2019, I drew the defendant's attention to his entitlement to seek orders under r 36.16 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") setting aside those orders. The time for him to seek such orders has not yet expired. He has not yet made such an application, although he seeks other orders from the court today, which are set out below.

The orders sought by the parties

1. The plaintiffs seek orders as follows: 1. The defendant be permanently restrained by himself, his servants or agents, from publishing or causing to be published the matter complained of, namely the video "The Strife and Crimes of Duncan Gair", or matters substantially to the same effect as such matter on the world wide web (including YouTube) or otherwise. 2. The defendant is permanently restrained from publishing on the world wide web or otherwise any matter of and concerning the plaintiffs to the same effect as the imputations contained in the Amended Statement of Claim and set out below: 1. The first plaintiff as the Mayor of the Wingecarribee Shire Council ("Council") was corrupt in that he misused his office as Mayor by dishonestly influencing the outcome of development applications for his friends. 2. The first plaintiff as the Mayor of the Council was corrupt in that he received money from developers in return for dishonestly influencing the outcome of development applications. 3. The first plaintiff is a racketeer. 4. The second plaintiff is a crook. 5. The second plaintiff as an elected Councillor of the Council was corrupt in that he misused his position as an elected Councillor by dishonestly influencing the outcome of development applications. 6. The second plaintiff dishonestly used his position as elected Councillor of the Council to be able to influence the outcome of development applications in which he had an interest. 7. The second plaintiff bribed the Mayor in order to obtain favourable outcomes for development applications. 8. The second plaintiff engaged in a conflict of interest through his position as an elected Councillor by being able to influence development applications in which he had an interest. 1. The defendant take all reasonable steps to remove forthwith from the world wide web (including Facebook.com, southernhighlandsnsw.org and YouTube.com), all matter that he has published, posted or uploaded concerning the plaintiffs to the same effect as the imputations set out in order 2(a) to 2(h) above including but not limited to, the publications referred to at paragraphs 6, 17, 20, 22, 23, 24 and 26-32 of the affidavit of Malcolm John Murray sworn on 2 December 2019. 2. The defendant to pay the plaintiffs' costs of the proceedings.
2. The orders the defendant seeks are not easy to determine, but appear to be: 1. An order that the plaintiffs' solicitor, Mr Murray, be restrained from appearing for the plaintiffs. 2. An order permitting him to be let back in to defend the case, on the understanding that he will provide discovery and interrogatories in accordance with timetables for these.
3. I will consider the defendant's applications first.

The defendant's application concerning Mr Murray

1. According to the defendant's email of 9 December 2019, Mr Murray has a conflict of interest because he himself is "guilty of political malfeasance" arising from his correspondence with the council about a witness, Mr Johns, in 2006.
2. The jurisdiction to restrain a solicitor acting for his or her client is exceptional and must be exercised with caution: Kallinicos v Hunt [2005] NSWSC 1181 at [76]. Applications of this kind would only be entertained in the clearest of cases.
3. In the present case, I am not provided with evidence in the generally recognised sense but instead, to use the description given by Slattery J in Westpac Banking Corporation v Newey [2013] NSWSC 533, "speculation on speculation" (at [17]) by the defendant about Mr Murray's role in the council election in 2006. This largely relates to the asserted relationship between Mr Murray and a Mr Johns (described by the defendant as "a witness in the statement of claim"). The defendant claims that these 2006 events show a conflict of interest due to improper conduct by Mr Johns in relation to a council election, which means Mr Murray must be restrained from acting for the plaintiffs.
4. Mr Johns' role in this defamation action is peripheral at best; he is named as one of the persons who downloaded the matters complained of.
5. While a longer answer going to the lack of merit of these meritless allegations could be made, the short answer to the defendant's complaint is that, as judgment has been entered, there is no issue in the case (in terms of identification or justification) to which Mr Johns' evidence will go. There will be evidence from reputation witnesses and the plaintiffs about assessment issues, not from Mr Johns, whose evidence went to publication. Any asserted association between Mr Murray and Mr Johns is thus irrelevant.
6. I would add that the defendant has certainly taken his time to raise these allegations, which he claims to have known from the time the proceedings were commenced in 2016. The defendant was represented in the Supreme Court by very experienced practitioners until late 2018. He did not raise these matters then, for which he blames his former legal advisers. He was similarly critical of his treatment in the Supreme Court; however, the generous adjournments and other assistance with which he was provided while in that court speak for themselves.
7. The application to restrain Mr Murray from acting for the plaintiffs was accordingly refused.

Application for extension of time to give discovery and serve interrogatories

1. I set out in some detail, in my judgment of 3 December 2019, the defendant's entitlements under UCPR r 36.16 to seek the setting aside of my orders if he could put persuasive evidence before the court as to why this should occur.
2. The defendant told the court that he had only read parts of my judgment and that he had not made any such application, although he was aware he had to do so within 14 days. He added that, if he was given another extension of time, he was sure that he would provide discovery and proper answers to interrogatories. He explained his failure to do so to date, or to bring an application under UCPR r 36.16, or even to read my judgment of 3 December 2019, as being due to mental health issues, particularly over the past year, which had led to his becoming homeless and unable to concentrate or think properly. When I asked why no medical certificate to this effect had ever been provided to this court (or, so far as I can see, to the Supreme Court), he said that the "proof" of his insanity was that he was so insane he had not realised he needed medical assistance and he had not actually seen a doctor.
3. In the absence of medical evidence, I do not accept the defendant's explanations for delay of over 18 months.
4. It was for these reasons that I refused the defendant's application for leave to continue to defend these proceedings. It was not clear to me that this application was an oral application under UCPR r 36.16 or merely a generalised complaint. As the defendant will have difficulty succeeding in such an application without evidence to put before the court (such a medical evidence), the fairer course is to treat the defendant's observations as a confirmation that he proposes to make a formal application under UCPR r 36.16 and to allow for this in the orders I have made today.
5. The defendant may still bring such an application if he does so within time. With the permission of the List Judge, these proceedings have been given a hearing date of 5 May 2020 and this is expressed to be subject to any successful application by the defendant to set aside my orders of 28 November 2019. In addition, since reasons for the 28 November 2019 orders were only given on 3 December 2019, I have extended the time for compliance under UCPR r 36.16(3B).

The plaintiffs' application for injunctive relief

1. In light of the defendant making good, over the past few weeks in particular, his foreshadowed threats to publish his allegations to the public, the plaintiffs seek injunctive relief.
2. In her written submissions, Ms Wood has set out the relevant principles for such relief, as explained in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, so I will merely summarise them. Firstly, before granting an interlocutory injunction, the Court must be satisfied the plaintiff in question has made out a prima facie case. That is not an issue here as judgment has been entered. Second, while general equitable principles apply to the grant of injunctive relief in defamation cases, the circumstances in which such orders would be made in defamation dictates that significant caution should be exercised.

The relevant statutory provisions

1. Section 149 of the Civil Procedure Act 2005 (NSW) provides: "149 Jurisdiction of lower court The lower court has, and may exercise, all of the jurisdiction of the higher court in relation to any proceedings to which a transfer order relates, including jurisdiction to determine any question arising in any such proceedings."
2. The plaintiffs in these proceedings are more fortunate than those plaintiffs who have commenced defamation proceedings in this court. As these proceedings were transferred from the Supreme Court, s 149 gives the District Court the same jurisdiction and power as the Supreme Court, namely as provided by the Supreme Court Act 1970 (NSW). (It is to be hoped that remedial legislation to correct this anomaly, which is increasingly an issue in relation to proceedings concerning online publication, can be considered at some stage in the future).
3. In addition, on an interlocutory basis, the District Court has power to grant ancillary equitable relief pursuant to s 46(1) of the District Court Act 1973 (NSW). Section 46(1) provides: "(1) Without affecting the generality of Division 8, the Court shall, in any action, have power to grant any injunction (whether interlocutory or otherwise) which the Supreme Court might have granted if the action were proceedings in the Supreme Court."
4. The questions for determination are whether such orders are called for and, if so, whether they should be made on an interlocutory or a permanent basis.
5. The evidence for such orders to be made is compelling. The plaintiffs draw attention to the following: 1. The defendant's repeated and persistent publication of allegations including material struck out from the particulars of justification by McCallum J (Gair v Greenwood [2017] NSWSC 1652; Gair v Greenwood (No 2) [2018] NSWSC 947). 2. The defendant's email to the court stating that "I intend to release all the evidence I have of the plaintiffs' corruption in the public domain". 3. The defendant's conduct of this litigation as a campaign against the plaintiffs and their legal representatives, which strongly suggests that he will continue to repeat such conduct unless restrained. 4. The defendant has not given any express assurance or undertaking that he will not republish the imputations; to the contrary, he boast that he will continue. 5. The defendant had the opportunity today to tell the court that he would take down these publications. Instead, he told the court that the publications were not defamatory and/or did not identify the plaintiffs and/or that these publications had been published by others and/or that there was a conspiracy to silence him and to keep everything about these defamation proceedings a secret from the general public.
6. The plaintiffs point to the following publications: 1. Facebook posts published by the defendant in the last two weeks. 2. Videos uploaded by the defendant onto YouTube, including one promoted by way of an email to undisclosed recipients and a Facebook post. 3. Three examples of numerous posts published on a community online forum called "Southern Highlands News". 4. Recent emails to the Supreme Court and District Court. 5. References in the above to threatened (or actual) repetition of the defamatory allegations to other agencies such as the Council, Office of Local Government, ICAC, NSW Police and the Law Society of NSW.
7. These documents cover the more recent period of time than these proceedings have been case-managed in this court, namely from June 2019 up until now. Common to many of them is the generalised smear of corruption which has been a feature of all of the defendant's publications.
8. Some judges have commented that internet blog sites and social media publications are so full of offensive and defamatory material that they are little better than "saloon bar moanings" (Sheffield Wednesday Football Club Ltd & Ors v Hargreaves [2007] EWHC 2375 (QB), per Justice Parkes QC at [17]) and should be treated as being trivial. However, recent judgments demonstrate the damage that can be done by scurrilous publications to responsible members of the community, whether they are well-known, such a prominent and respected surgeon (Al Muderis v Duncan [2016] NSWSC 1363; Al Muderis v Duncan [2016] NSWSC 1726; Al Muderis v Duncan (No 3) [2017] NSWSC 726; Al Muderis v Duncan (No 4) [2018] NSWSC 925; Al Muderis v Duncan (No 5) [2019] NSWSC 461), or an ordinary member of the community, such as a retired country school headmaster (Rothe v Scott [2015] NSWDC 105; Rothe v Scott (No. 2) [2015] NSWDC 143; Rothe v Scott (No. 3) [2016] NSWDC 151; Rothe v Scott (No. 4) [2016] NSWDC 160; Rothe v Scott (No. 5) [2016] NSWDC 225).
9. A campaign of attacks of the kind being embarked upon by the defendant in these proceedings should not be dismissed as trivial. While some of the publications are of the "saloon bar moanings" kind, others are not. In particular, one of the YouTube broadcasts (dated 23 July 2019), entitled "Wanted - Legal Support" paints the defendant as a responsible member of the community who is suffering from a serious injustice. He is filmed sitting at a desk in front of three very large piles of documents and asking for "support" from members of the legal profession in the conduct of his case where he has been unjustly sued by the crooked plaintiffs to silence his whistleblowing and who want to stop him telling the truth in court. He gesticulates at the documents piled in front of him and describes the state of the proceedings as follows: "The plaintiffs in my case are calling for discovery and I will be more than happy to hand over the thousands of documents I have in front of me."
10. The ordinary reasonable viewer would be shocked by the allegations made about the plaintiffs and how they are misconducting this litigation. In fact, the defendant acknowledged he had never provided a single document by way of discovery despite repeated orders. His explanation for making these statements to the contrary was, firstly, that these remarks were not capable of being defamatory as they were aimed at getting support (cf Bennette v Cohen [2009] NSWCA 60) and, secondly, that his mental health was disordered at the time and remains so today. He also blamed his former legal advisers for their asserted bad advice and neglect, and expressed anger that this court had not provided him with the pro bono lawyers he was entitled to have; he said that he felt "let down" by the legal profession as a result of these bad experiences.
11. In terms of what the court should do in such circumstances, I first note that the ease of online publication has resulted in an increasing number of litigants in actions before this court expressing similar expectations that they can say what they want online, and expecting that courts will be indulgent in the face of repeated non-compliance as well as provide pro bono assistance. This is not going to happen. What is more, losing the case is only the beginning. Defendants who fail to comply with court orders in the manner that has occurred here may find themselves, if enforcement is necessary, facing significant penalties, such as fines (Huang v Zhi [2018] VSC 529; Al Muderis v Duncan (No 5)) and, in the most extreme case, the subject of a warrant for arrest (Szymczak v Balijepalli [2019] FCA 203; Szymczak v Balijepalli (No 2) [2019] FCA 1093), or even imprisonment (Prothonotary of the Supreme Court of NSW v Dowling (No 3) [2018] NSWSC 784; Munsie v Dowling (No 10) [2018] NSWSC 709). I set these out now to warn the defendant of the consequences of failure to comply with the orders I propose to make.
12. There are no easy solutions to this increasing socio-legal problem. I should add, however, that plaintiffs are not much better served by the current out-of-date legislation, in that enforcement proceedings can be expensive and may be difficult to prove (Inserve Pty Ltd v Kinane [2018] QCA 116; Craven v Globe Valley Pty Ltd [2018] QDC 155 - applications refused). In the case of the District Court, given the restriction of this court's powers to ancillary orders under s 46 except where proceedings are sent down from the Supreme Court, plaintiffs are particularly vulnerable.
13. As to the present case, the defendant's boasts of his intentions to "go public" in his correspondence to the court and the defamatory nature of these publications (the "Wanted - Legal Support" is the least inflammatory) are sufficient to warrant the making of orders under s 46 pending the final hearing of these proceedings.
14. Ms Woods initially asked for final, rather than interlocutory, orders. However, as the plaintiffs propose to proceed to a hearing on damages, the appropriate step to take is to put interlocutory orders in place until the hearing, so that the trial judge may determine both the damages and the injunctive relief orders at the same time.
15. The undesirability of hearing issues (such as final injunctions) being dealt with other than at the final hearing is self-evident. Other than in circumstances where separate trial orders are sought under UCPR r 28.2, all final orders disposing of the issues between the parties should be dealt with at the same time.

Orders 1. Subject to any successful application by the defendant pursuant to r 36.16 Uniform Civil Procedure Rules 2005 (NSW) for Gibson DCJ's orders of 3 December 2019 to be set aside, these proceedings are set down for hearing as an assessment of damages only on Tuesday 5 May 2020 (estimate ½ to 1 day). 2. Pursuant to r 36.16(3A) and (3B) Uniform Civil Procedure Rules 2005 (NSW) extend time for compliance from the date of making the orders for judgment on 28 November 2019 to the date of the judgment provided to the parties, namely 3 December 2019. 3. Evidence for the assessment is to be by way of affidavit from the plaintiff s, such affidavits to be filed by 13 March 2020. 4. Any request for cross-examination and/or evidence in reply by 27 March 2020. 5. Pursuant to s 46(1) District Court Act 1973 (NSW) and until further order, make orders as follows: 1) The defendant be restrained by himself, his servants or agents, from publishing or causing to be published the matter complained of, namely the video "The Strife and Crimes of Duncan Gair", or matters substantially to the same effect as such matter on the world wide web (including YouTube) or otherwise. 2) The defendant is restrained from publishing on the world wide web or otherwise any matter of and concerning the plaintiffs to the same effect as the imputations contained in the Amended Statement of Claim and set out below: (a) The first plaintiff as the Mayor of the Wingecarribee Shire Council ("Council") was corrupt in that he misused his office as Mayor by dishonestly influencing the outcome of development applications for his friends. (b) The first plaintiff as the Mayor of the Council was corrupt in that he received money from developers in return for dishonestly influencing the outcome of development applications. (c) The first plaintiff is a racketeer. (d) The second plaintiff is a crook. (e) The second plaintiff as an elected Councillor of the Council was corrupt in that he misused his position as an elected Councillor by dishonestly influencing the outcome of development applications. (f) The second plaintiff dishonestly used his position as elected Councillor of the Council to be able to influence the outcome of development applications in which he had an interest. (g) The second plaintiff bribed the Mayor in order to obtain favourable outcomes for development applications. (h) The second plaintiff engaged in a conflict of interest through his position as an elected Councillor by being able to influence development applications in which he had an interest. 3) The defendant take all reasonable steps to remove forthwith from the world wide web (including Facebook.com, southernhighlandsnsw.org and YouTube.com), all matter that he has published, posted or uploaded concerning the plaintiffs to the same effect as the imputations set out in order 2(a) to 2(h) above including but not limited to, the publications referred to at paragraphs 6, 17, 20, 22, 23, 24 and 26-32 of the affidavit of Malcolm John Murray sworn on 2 December 2019. 1. Defendant's application for Mr Malcolm John Murray to cease acting for the plaintiffs is refused. 2. Noting the defendant is present in court when these orders are made, service of these orders will be taken to have effect immediately upon provision later today of a copy of the orders placed on JusticeLink by Gibson DCJ's Associate being forwarded to the parties. 3. Reserve the issue of costs to the trial judge, noting the solicitors for the plaintiffs will serve the documentation relied upon for a gross sum costs order pursuant to s 98(4)(c) Civil Procedure Act 2005 (NSW).

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 December 2019