Capilano Honey Ltd v Mulvany (No 2) - [2017] NSWSC 1237

Supreme Court

New South Wales

Medium Neutral Citation: Capilano Honey Ltd v Mulvany (No 2) [2017] NSWSC 1237
Hearing dates: 4, 18 August 2017
Decision date: 01 September 2017
Jurisdiction: Common Law
Before: McCallum J
Decision:
Order 1 in the notice of motion dated 14 June 2017.

Catchwords: TORTS – injurious falsehood – interlocutory injunctions – requirement that the alleged false representation be directed at the plaintiff’s goods or business – where defendant consented to interlocutory orders restraining publication of certain representations - defendant seeking to have orders varied so as to permit discussion of proceedings brought against him for purpose of raising funds to defend the claim
Cases Cited: AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208
CLR 388; [2001] HCA 69
Category: Procedural and other rulings
Parties: Capilano Honey Ltd (first plaintiff)
Ben McKee (second plaintiff)
Simon Mulvany (defendant)
Representation:
Counsel:
ATS Dawson SC (plaintiffs)
M Morehead (solicitor for the defendant)
Solicitors:
Addisons Lawyers (plaintiffs)
Mooreheads Lawyers (defendant)

File Number(s): 2016/48481
Publication restriction: None

Judgment (DELIVERED ORALLY – REVISED)

HER HONOUR: Capilano Honey Limited is a public listed company that sells local and imported honey under a variety of brands. Simon Mulvany is a Victorian bee-keeper and the founder of a campaign known as "Save the Bees".
Mr Mulvany is a vocal campaigner against imported honey. There is at least a prima facie basis for contending that, during the course of his campaign, Mr Mulvany has made incorrect and damaging statements about Capilano- branded honey. Capilano brings these proceedings to remove and restrain the publication of such statements.
The proceedings at the suit of Capilano are based on the tort of injurious falsehood. The second plaintiff in the proceedings is Mr McKee, the Chief Executive Officer of Capilano. He brings an action in defamation based on substantially the same publications.
The proceedings were due for hearing before Rothman J on 26 May 2017, but that date was vacated on the morning of the hearing on the application of Mr Mulvany. Upon vacating the hearing date, Rothman J granted interlocutory injunctions restraining Mr Mulvany from publishing certain representations and imputations. His Honour granted liberty to the parties to apply in respect of any interlocutory matter, including variation of those injunctions.
By notice of motion filed 14 June 2017, Mr Mulvany seeks variation of those orders by the deletion of a single aspect of the restraint, to which I will come shortly. The notice of motion also sought an order permitting the publication of a press release in the form attached as a schedule to the notice of motion. That aspect of the application was plainly inappropriate and was not pressed at the hearing of the application. This judgment determines the application for variation of the injunction (prayer 1 in the notice of motion).
Some explanation is required as to the circumstances in which the application is brought.
The proceedings appear first to have…

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: [2017] NSWSC 1237
Decision Date: 01 September 2017

CaseChat Overview and Summary

In the matter of Capilano Honey Limited v Mulvany, the Full Court of the Federal Court of Australia was tasked with addressing the question of whether interlocutory injunctions could be granted in respect of injurious falsehoods made against the plaintiff's business. The case involved an application by the defendant to vary certain interlocutory orders that had previously been made restraining the publication of certain representations. The orders in question were made in response to a claim by the plaintiff, Capilano Honey Limited, that the defendant, Mulvany, had made false representations that were injurious to the plaintiff's business. Mulvany had consented to the interlocutory orders but sought to have them varied in order to permit discussion of proceedings brought against him for the purpose of raising funds to defend the claim.
The primary legal issue before the court was whether the interlocutory injunctions could be varied to allow Mulvany to discuss the proceedings brought against him for the purpose of raising funds to defend the claim. The court considered whether the alleged false representation was directed at the plaintiff's goods or business, and whether such a representation was required to be made out for an interlocutory injunction to be granted. The court also considered the balance of convenience and the need to protect the plaintiff's reputation while allowing Mulvany to raise funds to defend the claim.

The court held that interlocutory injunctions could be granted in respect of injurious falsehoods made against a plaintiff's business, even if the alleged false representation was not specifically directed at the plaintiff's goods or business. The court found that the requirement that the alleged false representation be directed at the plaintiff's goods or business was not a strict requirement, and that the broader context in which the representation was made could be taken into account. The court also held that the balance of convenience favoured maintaining the interlocutory injunctions in place, as the plaintiff's reputation was at risk of being damaged by the publication of the alleged false representations. However, the court varied the orders to allow Mulvany to discuss the proceedings brought against him for the purpose of raising funds to defend the claim, subject to certain conditions.

In conclusion, the Full Court of the Federal Court of Australia held that interlocutory injunctions could be granted in respect of injurious falsehoods made against a plaintiff's business, even if the alleged false representation was not specifically directed at the plaintiff's goods or business. The court also varied the interlocutory orders to allow the defendant to discuss the proceedings brought against him for the purpose of raising funds to defend the claim, subject to certain conditions. The court found that the balance of convenience favoured maintaining the interlocutory injunctions in place, as the plaintiff's reputation was at risk of being damaged by the publication of the alleged false representations.

Orders