Crisp v Fairfax Media Ltd - [2012] VSC 615

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

S CI 2012 06465

GLENN ANTHONY CRISP	Plaintiff
v
FAIRFAX MEDIA LTD (ACN 008 663 161), THE AGE COMPANY PTY LTD and ADELE FERGUSON	Defendants

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JUDGE:	WARREN CJ
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2012
DATE OF JUDGMENT:	19 December 2012
CASE MAY BE CITED AS:	Crisp v Fairfax Media Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2012] VSC 615 (1^st revision, 20 December 2012)

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DEFAMATION – Interlocutory injunction to restrain publication of allegations made in a statement of claim – Statement of claim leaked to The Age newspaper before service – Statement of claim publically available on County Court file – Application refused – Defamation Act 2005 ss 28, 30.

PRACTICE AND PROCEDURE – Application for discovery to identify defendant – Putative defendant alleged to heave leaked statement of claim to The Age newspaper – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr SK Wilson QC with Mr DP Gilbertson and Mr LP Wirth	Rothwell Lawyers
For the Defendants	Dr MJ Collins SC and Mr S Mukerjea	Minter Ellison Lawyers

HER HONOUR:

The plaintiff, Mr Crisp, is a chartered accountant and an official and registered liquidator under s 1282 of the Corporations Act 2001 (Cth). He was formally an equity partner of RSM Bird Cameron (‘Bird’). Mr Crisp retired from Bird on 16 August 2012 in a way he describes as ‘not amicable’. There was a confidential deed of settlement and terms of release between those parties. He is now a partner of another firm, Jirsch Sutherland, which he says is a ‘rival insolvency practice’ to Bird.

On 16 November 2012 Mr Crisp was alerted by one of his current partners that a writ may have been issued against him in the County Court by Bird. The writ was issued on 8 November 2012. A statement claim was filed on 16 November 2012. However, Mr Crisp alleges that the statement of claim was not physically available on the County Court file until 20 November 2012, when his lawyers obtained a copy. Earlier, on 24 October 2012, Mr Crisp’s lawyers informed the lawyers for Bird that they had instructions to accept service in the event of proceedings being issued.

The generally indorsed writ alleges that Mr Crisp breached his fiduciary duties to Bird by appropriating, for his personal use and benefit, liquidation fees properly owed to Bird under Mr Crisp’s partnership agreement. The misappropriated amount is alleged to be $514 313.00 (‘the sum’). The relevant liquidation commenced in August 2002 (before Mr Crisp joined Bird) and continued until September 2008. Bird seeks damages and other relief. The statement of claim expands on the allegations in the generally endorsed writ to allege that Mr Crisp paid the money into his personal bank account and used it to meet personal debts, fraudulently concealing the payments from Bird.

On 20 November 2012, at approximately 4.41pm, a journalist from The Age newspaper (owned by the…

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: [2012] VSC 615
Decision Date: 19 December 2012

CaseChat Overview and Summary

Crisp initiated proceedings against Fairfax Media Ltd in the County Court of Victoria, alleging defamation arising from a statement of claim leaked to The Age newspaper prior to service and subsequently made publicly available on the court file. The primary legal issue before the court was whether an interlocutory injunction should be granted to prevent the publication of the defamatory allegations contained in the leaked statement of claim. Additionally, the court had to determine whether an application for discovery to identify the putative defendant responsible for leaking the statement should be granted.

The court considered the relevant statutory provisions under the Defamation Act 2005, which provides for interlocutory injunctions to restrain the publication of defamatory matter. The court assessed the potential for significant harm to the plaintiff's reputation and the balance of convenience, noting that the statement of claim had already been leaked and made public. The court concluded that an interlocutory injunction was not warranted as the alleged harm had already occurred, and the balance of convenience favoured the defendant. Furthermore, the application for discovery to identify the putative defendant was refused on the basis that the plaintiff had not demonstrated sufficient evidence to justify such an order. Consequently, the application was dismissed.

No specific orders were made in this case as the application for an interlocutory injunction and the application for discovery were both refused. The court's decision underscores the importance of the balance of convenience and the potential for harm in determining whether to grant an interlocutory injunction in defamation cases where the alleged defamatory material has already been made public.

Orders