Assembly of God Paradise INC. v STREET PREACHERS INC. - [2012] SADC 86

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Interlocutory Application)
ASSEMBLY OF GOD PARADISE INC. -V- STREET PREACHERS INC. & ORS
[2012] SADC 86
Judgment of His Honour Judge Brebner
27 June 2012
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS
TORTS - NUISANCE - REMEDIES - INJUNCTION
The plaintiff applied to join a number of persons who were said to be involved with the defendants in the continuing subject matter of the action - application for injunction restraining the proposed defendants in similar terms to injunction restraining the current defendants.
Held: Both applications granted.
Le Mercier v Farrow Morgage Services Pty Ltd (1996) 185 LSJS 410; Elliott v Seymour No 3 [2011] 116 FCR 100; Lange V Australian Broadcasting Corporation (1997) 189 CLR 520; Corporation of the City of Adelaide v Corneloup and Ors (2011) 110 SASR 333; Australian Broadcasting Corporation v Lenah Games Meats Pty Ltd (2001) 208 CLR 119, discussed.

ASSEMBLY OF GOD PARADISE INC. -V- STREET PREACHERS INC. & ORS
[2012] SADC 86

The plaintiff, Assembly of God Paradise, is an incorporated association. A relevant association extract records its principal activity as that of a religious organisation. It conducts religious services at a number of locations throughout metropolitan Adelaide.
The plaintiff has instituted proceedings seeking permanent injunctions and other relief. Essentially, the action is in nuisance. It has been ordered to file its statement of claim by Friday 29 June 2012. It has been granted injunctive relief against the current defendants to the proceedings.
The plaintiff seeks to join a number of additional defendants to the proceedings and, if their application is successful, an interlocutory injunction to restrain the additional defendant in terms which are similar, but very slightly less restrictive, than the injunction which at the moment restrains the current defendants.
In essence, the plaintiff asserts that the proposed defendants have assisted the current defendants in disrupting religious services conducted by the plaintiff and that if they are joined as additional defendants they will continue to do so unless restrained.
The applications are based upon affidavit evidence. Ordinarily, affidavit evidence will be accepted at the interlocutory stage unless the deponent is plainly incapable of belief or unless the facts deposed to are plainly incredible or unreliable. The affidavits relied upon by the plaintiff do not suffer from any of these defects.
Upon reading the affidavits of Steven Kilcoyne, Stephanie Conolle and Brendan Amos, and after hearing submissions, I am satisfied that there is evidence which has the capacity prima facie to establish that each of the proposed defendants were parties to a common purpose along with at least some of the current defendants to disrupt the plaintiff’s religious services.
In these circumstances an action in nuisance could also properly be instituted as against the proposed defendants.
It thus follows that the proposed defendants should be joined as additional defendants in order to determine a dispute which has arisen between the plaintiffs and the proposed defendants which is intimately interrelated to the dispute between the plaintiff and the current defendants. Joining the proposed defendants will thus avoid a multiplicity of proceedings.
The application to join the proposed defendants specified in the draft minutes of order will be granted.
As far as the application for an interlocutory injunction is concerned, the test laid down by the High Court in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 requires the plaintiff to establish three things.
First, that there is a serious issue to be tried in the sense that the plaintiff must establish that there is a sufficient likelihood that he or she will succeed in obtaining the relief sought at trial however, the plaintiff does not have to go so far as to show that there is a real prospect of success at trial.
Secondly, that the inconvenience or injury which the plaintiff would be likely to suffer if injunctive relief were to be refused outweighs the inconvenience or injury which the defendant would be likely to suffer if it were to be granted. This limb of the test is ordinarily referred to as “the balance of convenience”.
Thirdly, that damages would not be an adequate remedy.
Upon reading the affidavits and after hearing submissions, I am satisfied that, and subject to a matter to which I will turn in due course, the plaintiff’s prospects of success are far from remote and that there is a real possibility that they will succeed in obtaining the ultimate relief they seek.
As far as the balance of convenience is concerned, it must be remembered that the plaintiff’s prospects of success are a factor which must be taken into account: Le Mercier v Farrow Mortgage Services Pty Ltd (1996) 185 LSJS 410 and that the difficulties which might be involved in supervising compliance is a factor which militate against the grant of injunctive relief: Elliott v Seymour No.3 [2011] 116 FCR 100.
This summary of principle is gratefully adapted from Judge Lunn’s commentary.
In this instance the plaintiffs will suffer considerable inconvenience if their services continue to be disrupted in the manner described in the affidavits.
In essence, it is submitted against the grant of injunctive relief that granting the relief sought will restrict the defendants’ freedom of political communication which is implied in the Constitution: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, Corporation of the City of Adelaide v Corneloup and Ors (2011) 110 SASR 333 at [153-164] in the reasons of Kourakis J, as he then was.
In this regard, it must be stressed that the communications in question must be political in nature before the implied freedom of communication is engaged. In this regard Kirby J said in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 119 at 196:
In Stephens v West Australian Newspapers Ltd a majority of this Court held that because of the integration of politics within the Commonwealth, the implied Constitutional freedom of communication as there expressed protected political discussion in relation to all levels of government including State government. Whether that approach is compatible with the constitutional principle expounded in Lange has yet to be decided. It is not communication at large nor communication relevant to politics generally that is protected by the implication upheld in Lange. To be inconsistent, the law must conflict impermissibly with the postulated operation of the Constitution.
The various utterances and writings of the defendants in the form of the statements, placards and leaflets which are deposed to in the affidavits, or which are exhibited to the affidavits, amount to assertions on the part of at least some of the defendants that the plaintiff has engaged in illegal, immoral, criminal or otherwise inappropriate activity through some of its hierarchy or its parishioners.
The plaintiff is not a government instrumentality or a political party. On its face, what the defendants seem to want to communicate is not, in my view, political in nature.
It was submitted that as crimes were said to have been committed and that as other inappropriate activities were said to be taking place, the overall situation was, in reality, a matter of political importance about which the defendants enjoy freedom of communication.
In my view, that is simply drawing too long a bow and that by no process of reasoning can the message which the defendants apparently want to bring home be properly characterised as political in nature in the sense that what they apparently want to do cannot be properly characterised as political discussion.
In any event, granting the injunctive relief sought will not interfere with the right of the defendants to speak as freely as they like in other places, or in other ways, in the sense that their right to speak freely would remain unrestricted even though they might not be able to do so in certain areas, or as loudly as they might wish.
It follows that freedom of political communication could not defeat the plaintiff’s claim at trial.
As things stand, I can see no difficulty in enforcing compliance with any injunction because the proposed terms are clear and because the identity of the defendants is now well known to at least some of the plaintiff’s parishioners and as damages could never repair destructions for the plaintiff’s services, they would never be an adequate remedy.
In my view the injunctive relief proposed in the draft minutes of order strikes a reasonable balance between the competing considerations which have been mentioned in the affidavits or in submissions or which are self-evident.
There will be orders in terms of the draft minutes as settled and signed by me. Less there be any confusion, I will read the orders and then provide a copy of them to each of the defendants.