Davies Brothers Ltd v The Examiner Newspaper Pty Ltd

[1989] FCA 564

JU.DGMENT No. .... 54!.$..%..!$%-

IN THE FEDERAL COURT OF AUSTRALIA )

)

TASMANIA DISTRICT REGISTRY	1	T. NO. G.15 of 1989
1
GENERAL	DIVISION	1
BETWEEN:

DAVIES BROTHERS LIMITED

Applicant

and

THE EXAMINER NEWSPAPER PTY. LIMITED

COURT:	NORTHROP J.
DATE :	5 SEPTEMBER 1989  l 3 SEP1989
PLACE:	TASMANIA  AUSTRALIA

EX-TEMPORE REASONS FOR JUDGfiENT

In this application there is a claim by Davies Brothers Ltd, as applicant, seeking injunctions to restrain the respondent, the Examiner Newspaper Pty Limited, from publishing certain comments in its newspapers distributed basrcally in the northern part and north-western part of Tasmanla. To some extent this applicatron illustrates the differences in view between the north and south of Tasmania. Davies Brothers Ltd. rs trying to break lnto the northern part of Tasmanra with a Sunday paper, called the Sunday

newspaper called the Sunday Examrner. Arising from this	Tasmanian, but the respondent publrshes in the same area the
activity which has been vigorous, a certain degree of competition has been engendered between the applicant and respondent, each trying to increase its circulat~on at the expense of the other.
The statement of claim contains a number of allegations that the contents of some material published by the respondent is false and wrong. Material supported by the affidavits filed on behalf of the respondent suggests that it is not necessarily wrong and thls may well be settled only after a full examination of many facts and much evidence as to lust what the circulation was, what did occur in the area of competition between the cwo newspapers and what has in fact happened, both as to the circulation, the giving of free newspapers and the publication of ~nformation in these newspapers.
This is the first return date of the application and the applicant is seeking interim orders that the respondent be restrained, in substance, from publishing or
Tasmania is 2800 copies, (b) that the circulation of the disseminating material which asserts or implies, (a) that the circulation of the Sunday Tasmanian in the north-west of
Sunday Tasmanian in the north-west of Tasmania as falling, (C) that the circulation of the Sunday Examiner in the north-west of Tasmania is 14,000 copies, fd) that the circulation of the Sunday Examiner in the north and north-west of Tasmania is approximately 25 times greater than that of the Sunday Tasmanian in that area, (e) that the Sunday Examiner 1s the only Sunday newspaper covering the north and north-west of Tasmania, (f) that the Sunday Examiner is the only Sunday newspaper that provides full and local news and sports coverage of the north and north-west of Tasmania.

In matters of this kind, the trad~tional approach

of the Court is to determine first of all whether there is a serious issue to be tried between the parties, and if there is, then consider the balance of convenience. It must be remembered these are interlocutory proceedings and it is lmposslble for the Court to form any final view as to the correctness or otherwise of any allegations of fact made. Here there appears to be a dispute between the parties as to the facts and in these crrcumstances it can be said that there is a serious issue to be trled, but again, interlocutory injunctions depend much more than on a serious issue to be tried.

The other aspect is a question of balance of partles, each of which publishes newspapers. To some extent

convenience. Here there is a trade war between the two

it may be said that all is fair in love and war - I presume that this is war in the normal sense between the north and the south - and that in those circumstances a certain degree of latltude is to be given. As against that, if a party does, by comparative advertising, compare its affalrs with another, it runs a rlsk if it is wrong. Such conduct may constitute a breach of the Trade Practices Act, in engaglng

in conduct which is deceptive or misleading or likely to deceive or mlslead. But at the same time, a certain degree of latitude must be allowed in a case of this kind. Here the evidence discloses that the items complained of occurred some months ago and there has been nothing since in relation to the publrcation of similar material. It is urged upon the Court by counsel for the applicant that letters of complaint were in fact written in July referring to what had occurred, and in one case seeklng, in effect, mandatory relief for the publication of a retraction to whac had occurred, and the other one, a more limited undertaking related to breaches in the future.

The unusual feature of thls case is that there is no cont~nulng conduct. There has been nothlng since July to indicate that there has been a continuation of conduct. The fact that no response was made to the letters cannot, by itself, suggest that the positive has been established and that there wlll be a continuation of the conduct. In these circumstances it is well to keep in mlnd what has been said

rn considering questions of this kind. The most useful	illustration of this appears in the case of Nagna Alloys and
Research Pty Limited v Coffey and Others [l9811 V.R. 23 in a jolnt judgment of the Full Court of the Supreme Court of Victoria, at page 28. This passage,,quoted and approved a passage by Lush J. ln an earlier case of Slater Walker Superannuation Pty Limited v Great Boulder Gold Mines Ltd [l9791 107 and particularly at page 110. This was given at a time a prima facie case had to be shown but now the first
questlon is whether there 1s a serlous issue to be tried. Subject to that, what is sald in this passage has equal application to the present case:

"The weight to be given to the various considerations shown by the authorities CO be relevant will vary from case to case. All the authorities say in one way or another that the plaintiff must show he has a chance of success before he will be granted an interlocutory injunction. The authorities refer to the use of the lnjunctlon for the purpose of maintaining the status quo or maintaining a state of affairs which is on the balance of convenience appropriate to be maintained until the trlal. They refer to avolding irreparable harm to che plalntiff. There wlll be situations in which the plaintiff cannot expect to be granted an in~unction unless he can show that he can prove positively the existence of his rrghts and the infrrngement of them. There will be other situations in whlch though the plaintiff's proof of his rights or the infringement of them is not strong, an injunction may be granted because to withhold it would do the plalntiff irreparable harm, while to grant it would not greatly injure the defendant. The posslble variety of situations is unlimited."

In the present case lt is impossible for the Court
to form any vlew as to the stength of the applicant's case.

There is a conflict of evidence and the Court cannot, at thls

stage of the proceed~ngs, go ~ n t o that matter at all.

Having regard to the fact that both parties are publishers of newspapers, that this is part of a newspaper war, a certain degree of latitude must be given. At the same time it must be understood that if either party goes too far and publishes materlal which is, in fact, wrong, it may well be in breach of the Trade Practices Act and liable for damages.

This is not a case where it can be said that the applicant will suffer irreparable harm or damage if the respondent does in fact publish something which is wrong. On the balance of convenience it seems to me that this is a case where the Court should not grant an interlocutory injunction. It is a case where damages are the appropriate remedy if, in due course, the applicant proves that the respondent has published false material. In the meantime it seems that on the balance of convenience the respondent should be free to publish what it desires to publish, and take the risk whether it is, in so dolng, engaging a conduct which is contrary to the provisions of the Trade Practices Act.

Accordingly, the application for interlocutory

relief is refused.