Daimleigh Pty Ltd v Brandi

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6745 of 2002

DAIMLEIGH PTY LTD	Plaintiff
v
DAVID BRANDI	Defendant

---

JUDGE:	Nettle J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2002
DATE OF JUDGMENT:	9 August 2002
CASE MAY BE CITED AS:	Daimleigh Pty Ltd v David Brandi
MEDIUM NEUTRAL CITATION:	[2002] VSC 327

---

Equity – Injunction – Interim injunction to restrain publication of without prejudice communications and confidential information.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W.T. Houghton, QC with Ms G.L. Schoff	Herbert Geer & Rundle
For the Defendant	No appearance

HIS HONOUR:

Application is made by Daimleigh Pty Ltd, ex parte but on notice, in anticipation of the institution of a proceeding, for interim injunctions to restrain publication of three documents, two of which are said to be without-prejudice communications between Daimleigh Pty Ltd and David Brandi, and one of which is said to be a Pentridge Village list and sale prices document recording both the list price and sale price of homes or units in the Pentridge Village development.

The facts of the matter are deposed to briefly in an affidavit sworn by Leigh Adrian Chiavaroli on behalf of Daimleigh Pty Ltd. What is there said, taken together with what has been submitted to me by Mr Houghton QC, who appears with Ms Schoff on behalf of Daimleigh, satisfies me that there is at least an arguable case for the proposition that the two letters are communications sent without prejudice, and are thus privileged, and that the Pentridge Village list and sale prices document may be a document containing price-sensitive confidential information which was disclosed in circumstances of confidence to Mr Brandi (for purposes associated with the interests of Daimleigh Pty Ltd). Mr Brandi has threatened to send all three documents to the press and radio stations for publication.

The first document, a letter dated 17 May 2002, from Peter Chiavaroli to David Brandi, contains an admission that moneys are owing to Mr Brandi and suggests that negotiations be entered into to reach some form of compromise. The second document, a letter dated 10 July 2002, from Messrs Herbert Geer & Rundle to David Brandi, also proposes that some form of settlement be entered into. Thus, I consider that they may amount to without-prejudice communications: see Field v Commissioner for Railways NSW [1]; cf. Village Nine Network v Mercantile Mutual[2].
[1](1957) 99 CLR 285 at 291.
[2][2001] 1 Qd R 275, esp. at [12] to [14].

The third document, which contains the list and sale prices, I am told by Mr Houghton was handed by or by interests associated with Daimleigh Pty Ltd to Brandi to provide him with information that would assist Brandi in the task of selling homes or units on behalf of a joint venture of which Daimleigh Pty Ltd is the sales representative. Thus it appears arguable that it was disclosed in circumstances of confidence: cf. Langley v The Age Co Ltd[3]. It is also deposed, at paragraph 6 of Mr Chiavaroli's affidavit, that publication of the document would provide developers with details of prices offered by and on behalf of Pentridge Village Pty Ltd, and I have been told by Mr Houghton that so to do could prejudice the commercial interests of Daimleigh Pty Ltd and the joint venture which it represents.
[3][2000] VSC 378 at [4] to [7].

I am told that notice of the application has been given by telephone and that there has been a response to the effect that notice should be given in writing. That seems to make it plain that the message was received and understood, but there is no appearance before me by David Brandi.

In the circumstances I am prepared to make orders restraining publication of the three documents until 4.15 pm next Tuesday, 13 August.

Mr Houghton has on behalf of his client offered the usual undertaking as to damages and also an undertaking to issue a writ and summons and to serve the same by no later than 4 pm that day. I think, however, that some variation of those undertakings may be required.

Mr Houghton, obviously the undertaking as to damages is in appropriate form. Can one have any confidence that Daimleigh would be good for the money if the undertaking were enforced?
MR HOUGHTON: As far as I know, yes, Your Honour. It is a real estate agent, it is licensed, and it carries on a business.
HIS HONOUR: Upon the undertaking to issue the writ and to serve the same by 12 pm Monday 12 August, I suppose that is satisfactory. I suspect you should also serve, should you not, a copy of the affidavit, the exhibits and this order.
MR HOUGHTON: Yes, certainly, Your Honour.
HIS HONOUR: After "relief", if I insert "the affidavit of Leigh Chiavaroli sworn 9 August and the exhibits thereto together with a copy of this order". "To issue the writ and summons seeking interlocutory relief by 12 pm Monday 12 August 2002 and serving the same and the affidavit of Leigh Chiavaroli sworn 9 August and exhibits together with a copy of this order by no later than 4 pm that day." Upon those undertakings being given, Mr Houghton, I will make the orders in terms of Minutes 1, 2 and 3. Can you conveniently get that amendment made?
MR HOUGHTON: Yes, we can have that re-engrossed and to your associate I think very shortly, Your Honour, if that is convenient.
HIS HONOUR: Thank you, Mr Houghton.

---

In Daimleigh Pty Ltd v Brandi, the plaintiff sought an interim injunction to prevent the defendant from publishing certain communications and confidential information. The plaintiff argued that the information contained in the communications was without prejudice and confidential, and that its publication would cause significant harm to the plaintiff's business and reputation. The defendant argued that the information was already in the public domain and that the plaintiff had waived any confidentiality by discussing the matter with third parties. The matter came before the court on an urgent basis, with the plaintiff seeking an interim injunction to prevent the defendant from publishing the information.

The court was required to consider whether the plaintiff had established a prima facie case for an interim injunction, and whether the balance of convenience favoured the grant of such an injunction. The court also had to consider whether the information was genuinely without prejudice and confidential, and whether the defendant had any legitimate reason for publishing the information. The court had to weigh the potential harm to the plaintiff's business and reputation against the public interest in freedom of speech and the defendant's right to publish information that was already in the public domain.

The court found that the plaintiff had established a prima facie case for an interim injunction, as the information contained in the communications was genuinely without prejudice and confidential, and the plaintiff had not waived any confidentiality by discussing the matter with third parties. The court found that the balance of convenience favoured the grant of the injunction, as the potential harm to the plaintiff's business and reputation outweighed the public interest in freedom of speech and the defendant's right to publish information that was already in the public domain. The court also found that the defendant had no legitimate reason for publishing the information, and that its publication would cause significant harm to the plaintiff's business and reputation. The court granted the plaintiff an interim injunction, restraining the defendant from publishing the information.

The court ordered that the defendant was to refrain from publishing the information contained in the communications and any other confidential information of the plaintiff. The court also ordered that the defendant was to deliver up any copies of the information in their possession or under their control. The court further ordered that the defendant was to pay the plaintiff's costs of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established