Capilano Honey Ltd v Mulvany - [2018] VSC 672

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2018 02367

CAPILANO HONEY LIMITED	First Plaintiff
BEN MCKEE	Second Plaintiff
v
SIMON MULVANY	Defendant

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JUDGE:	JOHN DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 2018 (further written submissions on 26 October 2018)
DATE OF JUDGMENT:	9 November 2018
CASE MAY BE CITED AS:	Capilano Honey Ltd v Mulvany
MEDIUM NEUTRAL CITATION:	[2018] VSC 672

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DEFAMATION – Interlocutory injunctions – Restraints on publication of representations concerning plaintiffs – Variation of restraint sought – Whether recent media coverage a material change in circumstances – No material change in circumstances – Balance of convenience supports maintaining restraints – Application dismissed.

INJURIOUS FALSEHOOD – Interlocutory injunctions – Restraints on publication of representations concerning plaintiffs – Variation of restraint sought – Whether recent media coverage a material change in circumstances – No material change in circumstances – Balance of convenience supports maintaining restraints – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J P Wheelahan	Finch Lawyers (until 3 October 2018) AAV Legal (from 3 October 2018)
For the Defendant	Ms M J Marcus	Addisons Lawyers

HIS HONOUR:

The first plaintiff is a producer of honey and the second plaintiff is its CEO. The defendant operates, with others, a website called ‘Save the Bees’, amongst other social media platforms.

On 15 February 2016, the plaintiffs sued the defendant in the Supreme Court of New South Wales, the first plaintiff alleging injurious falsehood and the second plaintiff alleging defamation. These claims were based on what the plaintiffs described as a persistent and damaging campaign against them by the defendant in online publications and social media that began in about June 2015. The plaintiffs considered that the defendant’s campaign against them was designed to inflict commercial and reputational harm. The plaintiffs sought injunctions to restrain future conduct and did not seek damages.

On 25 May 2017, when the proceeding was called on for trial before Rothman J in the New South Wales Supreme Court, his Honour adjourned the trial and restrained the defendant from publishing certain representations and imputations regarding the plaintiffs (‘Rothman J’s orders’).

The proceeding was transferred to this court. It has not been allocated a trial date and the parties have recently amended their pleadings. By summons filed 21 September 2018 the defendant sought to vary the restraints imposed on him by Rothman J’s orders. For the reasons that follow, the defendant’s application is refused.

Procedural background

The background relevant to Rothman J’s orders was set out in an earlier ruling in the proceeding by McCallum J,[1] and I gratefully adopt her Honour’s summary:
[1]Capilano Honey Ltd v Mulvany (No.3) [2018] NSWSC 767.

The proceedings have taken what might be considered an unusual course. The action was commenced by summons filed in this Court on 15 February 2016. On that date, the plaintiffs made an ex parte application to the duty judge for an order under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] VSC 672
Decision Date: 9 November 2018

CaseChat Overview and Summary

Capilano Honey Limited brought an application against the Mulvany family, seeking to maintain and vary interlocutory injunctions that restrained the Mulvanys from publishing representations concerning the plaintiffs. The application was before the Federal Court of Australia. The plaintiffs, Capilano Honey Limited, sought to protect their reputation from defamatory and injurious falsehood claims that had arisen from a previous court decision. The Mulvanys contested the application, arguing that recent media coverage constituted a material change in circumstances, warranting a variation of the restraints.

The court was required to determine whether the recent media coverage constituted a material change in circumstances warranting a variation of the restraints. The court also needed to assess whether the balance of convenience supported maintaining the restraints. The plaintiffs contended that the recent media coverage did not constitute a material change in circumstances and that the balance of convenience supported maintaining the restraints. The Mulvanys argued that the recent media coverage was a material change in circumstances, and that the balance of convenience favoured varying the restraints.

The court held that there was no material change in circumstances, as the recent media coverage did not alter the underlying issues in the case. The court further found that the balance of convenience supported maintaining the restraints, as the plaintiffs' reputation remained at risk of further damage if the restraints were varied. The court noted that the plaintiffs had a strong case for defamation and injurious falsehood, and that the restraints were necessary to protect their reputation during the pendency of the proceedings. The application was dismissed, and the interlocutory injunctions were maintained in their original form.

The Federal Court dismissed the Mulvanys' application to vary the interlocutory injunctions. The court held that there was no material change in circumstances, and that the balance of convenience supported maintaining the restraints. The court emphasised the importance of protecting the plaintiffs' reputation during the pendency of the proceedings, and that the restraints were necessary to achieve this goal.

Orders