A V Jennings Homes Limited v John Fairfax Publications Ltd

[1999] VSC 426

SUPREME COURT OF VICTORIA
PRACTICE COURT	Do not Send for Reporting
Not Restricted

No. 7254 of 1999

A.V. JENNINGS HOMES LIMITED	Plaintiff
v.
JOHN FAIRFAX PUBLICATIONS PTY. LTD. & ANOTHER	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 OCTOBER 1999
DATE OF JUDGMENT:	26 OCTOBER 1999
CASE MAY BE CITED AS:	A.V. JENNINGS HOMES LTD. v. JOHN FAIRFAX PUBLICATIONS PTY. LTD. & ANOR.
MEDIA NEUTRAL CITATION:	[1999] VSC 426

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CATCHWORDS:      Interlocutory injunction – Publication of confidential information unlawfully obtained from plaintiff – Detriment to plaintiff.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. S. O'Bryan	Blake Dawson Waldron
For the Defendants	Mr. S. Kaye Q.C. and Mr. D. Gilbertson	Minter Ellison

HIS HONOUR:

1. On 15 October 1999, at the instance of the plaintiff A.V. Jennings Homes Limited, I granted, as a matter of some urgency, an interim injunction restraining the first-named defendant John Fairfax Publications Pty Ltd and one of its reporters the second-named defendant Katherine Howse from publishing certain documents which had come into the possession of the defendants and which were the property of the plaintiff or any of the information contained or derived from the documents.

1. The evidentiary material before me at that time was to the effect that the defendant Howse had telephoned the managing director of the plaintiff that afternoon and had told him that she had received a bundle of papers concerning the plaintiff that morning which included the following:

(1)certain board papers, including board papers relating to or arising from the meeting of the board of Directors of the Company held in Adelaide on Friday 8 October 1999;

(2)an internal memorandum concerning the financial performance of the contract housing business activities of the company;

(3)a letter of engagement under which the company engaged Contract Management Solutions to review costs associated with the contract housing business activities of the company;

(4)a letter of instructions from the company to Deacon Graham James concerning an executive of the company; and

(5)internal memoranda relating to the external audit performance of the company's auditor in reporting the financial affairs of the company.

Howse told the plaintiff's managing director that she was writing a story concerning the plaintiff which the first-named defendant proposed to publish the following day.

1. I now have an application by the plaintiff for an interlocutory injunction restraining the defendants from publishing the papers or any of the information contained in or derived from the papers until the trial of the proceeding or further order.

1. When the application for an interlocutory injunction came before me I was handed copies of certain documents which the plaintiff's managing director believes are copies of certain of the plaintiff's documents in the possession of the defendants.

1. I say "believes" because the defendants have declined to identify the documents in their possession, have declined to reveal how it is that they came into their possession, and, although their solicitor stated when the matter was before me on 15 October that he had a copy of the article the first-named defendant proposed to publish the following day, have declined to produce a copy of the article to the court.

1. The documents which the plaintiff's managing director believes are in the possession of the defendants include:

(1)an internal memorandum from the plaintiff's managing director to six senior executives of the plaintiff concerning the plaintiff's policy in relation to contract housing;

(2)an internal memorandum from the plaintiff's managing director to a senior executive of the plaintiff concerning the profitability of the plaintiff and expenditure control;

(3)an internal memorandum from the plaintiff's managing director to a senior executive of the plaintiff concerning certain financial results of the plaintiff;

(4)a lengthy letter from the plaintiff's secretary to its solicitors seeking advice in respect of a range of matters; and

(5)minutes of a recent meeting of the directors of the plaintiff.

1. Having read the documents it is my opinion that they contain highly sensitive material so far as the plaintiff is concerned and can properly be described as confidential.  In the absence of any explanation on the part of the defendants as to how the documents came into their possession, together with the fact that the defendants have declined to identify the documents in their possession and produce to the court the article they proposed to publish, I consider that the court is entitled to infer that the documents were handed to the defendants by some disgruntled employee of the plaintiff with a view to causing mischief and embarrassment to the plaintiff.

1. It is argued on behalf of the defendants that the plaintiff has failed to show that the documents in question are confidential and that it would suffer detriment if the content of the documents was made public.

1. In my opinion it is strongly arguable from the very nature of the content of the documents that they are confidential and that publication of their content would cause extreme embarrassment to the plaintiff and have a detrimental effect upon it financially.  At the least there are serious issues to be tried in the matter.

1. As to the balance of convenience, in my opinion it is overwhelmingly in favour of the plaintiff.  The defendants will suffer no financial detriment if they are precluded from publishing the material or information contained in it pending the trial of the proceeding.

1. Whilst one is mindful of the fact that the imposition of such a restriction on the defendants may be said to be an interference with the right of free speech and publication, in my opinion such a factor is outweighed by the fact that these documents are the property of the plaintiff, that whoever removed them from the possession of the plaintiff was unauthorised to do so and in all probability acted unlawfully in so doing, and that the plaintiff will be caused acute embarrassment and possible financial loss if the content of the documents is made public.

1. Counsel for the plaintiff having given the usual undertaking as to damages on behalf of the plaintiff, I make the following orders in the proceeding:

I order –

(1)that the defendants and each of them by their directors, employees or agents or howsoever otherwise be restrained until the trial and determination of this proceeding or further order from publishing or causing to be published or permitting to be published the bundle of documents described in paragraph 1 of the affidavit of John Francis Sartori sworn 15 October 1999, any extracts from the said bundle of papers and any information derived from the said bundle of papers;

(2)that within 7 days of this day each defendant deliver up to the Prothonotary of the court in a sealed and marked envelope all copies within their possession, power or control of any document described in paragraph 1 of the affidavit of John Francis Sartori sworn 15 October 1999 and that such documents are to be placed by the Prothonotary in the court file and remain in the custody of the court until further order;

(3)       that there be liberty to the parties to apply;

(4)       that the costs of the application be reserved;

(5)that this order be prepared by the solicitors for the plaintiff and be brought to me within 48 hours for authentication.

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