Day v Woolworths Limited

Case [2018] QSC 82

SUPREME COURT OF QUEENSLAND

CITATION:

Day v Woolworths Limited & Ors [2018] QSC 82

PARTIES:

OLGA DAY

(plaintiff)

v
WOOLWORTHS LIMITED (ACN 000 014 675)
(first defendant)
CPM AUSTRALIA PTY LTD (ACN 063 244 824)
(second defendant)
RETAIL ACTIVATION PTY LTD (ACN 111 852 129)

(third defendant)

FILE NO/S:

BS No 6016 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 April 2018

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2017 with further written submissions on 1 and 4 December 2017

JUDGE:

Douglas J

ORDER:

1.    Order that Mrs Day be restrained from:

(a)    contacting or communicating with Zurich Australian Insurance Limited ACN 000 296 640, Zurich Financial Services Australia Limited ACN 008 423 372, Zurich Australia Ltd ACN 000 010 195 or Zurich Insurance Group Ltd (hereinafter jointly and severally referred to as ‘Zurich’) or any director, officer, employee or agent of Zurich, other than Mills Oakley Lawyers, Zurich’s solicitors, in relation to this proceeding, or any matter connected with this proceeding, by any means whatsoever; and/or

(b)    allowing, causing, encouraging, permitting or suffering any person on her behalf to contact or communicate with Zurich or any director, officer, employee or agent of Zurich, other than Mills Oakley Lawyers, Zurich’s solicitors, in relation to this proceeding, or any matter connected with this proceeding, by any means whatsoever,

until the conclusion of these proceedings or further order.

2.    Order that costs be reserved.

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INJUNCTIONS FOR PARTICULAR PURPOSES – OTHER CASES – where plaintiff sent emails about these proceedings to second and third defendants’ insurers – where second and third defendants characterised those emails as menacing, intimidating or harassing – where second and third defendants sought injunction to restrain plaintiff from contacting or communicating with their insurer or their insurer’s directors, officers, employees or agents about these proceedings other than through their solicitors – whether injunction should be granted

Australian Solicitors Conduct Rules 2012, r 33
Defamation Act 2005 (Qld), s 9

Attorney-General v Times Newspapers Ltd [1974] AC 273, applied
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46, applied
Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153, cited
Legal Services Commission v Bradshaw [2008] LPT 9, considered
Perfection Fresh Australia Pty Ltd v Melbourne Market Authority (No 2) [2013] VSC 342, followed
R v Dunn [2015] 2 Qd R 407; [2014] QCA 254, followed
Thunder Studios Inc (California) v Kazal [2016] FCA 1598, cited
Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716, considered
Y & Z v W (2007) 70 NSWLR 377; [2007] NSWCA 329, followed

GE Dal Pont, Lawyers’ Professional Responsibility, (Law Book Co, 6th ed, 2017)
Young, Croft and Smith, On Equity, (Law Book Co, 2009)

COUNSEL:

Olga Day in person

R C Morton for the second and third defendants

SOLICITORS:

Olga Day in person

Mills Oakley for the second and third…

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Details
AGLC
Day v Woolworths Limited [2018] QSC 82
Case
[2018] QSC 82
Decision Date

CaseChat Overview and Summary

The case of Day v Woolworths Limited involves Mrs Olga Day, who commenced proceedings against Woolworths Limited, CPM Australia Pty Ltd, and Retail Activation Pty Ltd seeking damages for personal injuries she claims to have suffered in an accident at premises operated by Woolworths. CPM Australia Pty Ltd and Retail Activation Pty Ltd, the second and third defendants, sought an interlocutory injunction to restrain Mrs Day from contacting or communicating with their insurer, Zurich Australia Insurance Limited, and three other associated Zurich companies about the proceeding except through their solicitors. The second and third defendants alleged that Mrs Day had sent menacing, intimidating, and harassing emails to their insurer and its associated companies, accusing them of unethical conduct and seeking to report them to various authorities.

The legal issues the court had to decide involved whether an interlocutory injunction should be granted to restrain Mrs Day from contacting Zurich and its associated companies, except through their solicitors. The court examined the nature of the communications made by Mrs Day and whether they amounted to defamation, harassment, or contempt of court. The court also had to consider the interests of the parties involved, including the potential for defamation, the necessity of protecting Zurich and the second and third defendants from harassment, and Mrs Day's interest in bringing the alleged misconduct to the attention of Zurich's directors and General Counsel.

The court concluded that an interlocutory injunction should be granted to restrain Mrs Day from contacting or communicating with Zurich and its associated companies, except through their solicitors, until the conclusion of the proceedings or further order. The court found that the communications made by Mrs Day were of a menacing, intimidating, and harassing nature, which could potentially amount to contempt of court. The court also found that the second and third defendants had a legitimate interest in being protected from such communications, and that Mrs Day's interest in bringing the alleged misconduct to the attention of Zurich's directors and General Counsel could be achieved through their solicitors.

The final orders of the court were that Mrs Day be restrained from contacting or communicating with Zurich or any director, officer, employee, or agent of Zurich, other than Mills Oakley Lawyers, Zurich’s solicitors, in relation to the proceeding or any matter connected with the proceeding, by any means whatsoever, until the conclusion of these proceedings or further order. The court also ordered that costs be reserved.

Orders

Orders of the court

1. Order that Mrs Day be restrained from:

(a) contacting or communicating with Zurich Australian Insurance Limited ACN 000 296 640, Zurich Financial Services Australia Limited ACN 008 423 372, Zurich Australia Ltd ACN 000 010 195 or Zurich Insurance Group Ltd (hereinafter jointly and severally referred to as ‘Zurich’) or any director, officer, employee or agent of Zurich, other than Mills Oakley Lawyers, Zurich’s solicitors, in relation to this proceeding, or any matter connected with this proceeding, by any means whatsoever; and/or

(b) allowing, causing, encouraging, permitting or suffering any person on her behalf to contact or communicate with Zurich or any director, officer, employee or agent of Zurich, other than Mills Oakley Lawyers, Zurich’s solicitors, in relation to this proceeding, or any matter connected with this proceeding, by any means whatsoever,

until the conclusion of these proceedings or further order.

2. Order that costs be reserved.

Background

Background to the litigation

This is an unusual application for an interlocutory injunction. The second and third defendants, CPM Australia Pty Ltd and Retail Activation Pty Ltd, seek to restrain the plaintiff, Mrs Olga Day, from contacting or communicating with their insurer, Zurich Australia Insurance Limited and three other associated Zurich companies (“Zurich”), about this proceeding except through their solicitors, Mills Oakley. Mrs Day commenced proceedings against those defendants seeking damages for personal injuries she claims to have suffered in an accident at premises operated by the first defendant, Woolworths Limited. The solicitors and counsel engaged on behalf of the second and third defendants also hold instructions to appear for the four Zurich companies to support the application. Background The conduct complained of by Mrs Day was supported by a significant body of evidence. It was summarised, it seemed to me accurately, in the applicant’s submissions to the following effect:(a)The plaintiff’s husband, on her behalf, has threatened to report employees of Zurich to the Legal Services Commission in Queensland and the corresponding body in New South Wales, the Office of Fair Trading in Queensland and the corresponding body in New South Wales and has threatened the directors of the defendants with personal liability.(b)The plaintiff communicated to Zurich, including its directors, allegations of unethical and improper conduct by the solicitors for the second and third defendants.(c)The plaintiff’s husband, on her behalf, has accused the directors of Zurich of misusing shareholders’ funds by encouraging the solicitors for the second and third defendants to drag her claim through the courts. Those accusations were also communicated to Zurich’s auditors. The communication also included allegations of breach of the Corporations Act 2001 (Cth) by Zurich’s directors.(d)The plaintiff and her husband have in correspondence to Zurich’s Australian General Counsel and Secretary, who happens to be a lawyer, also copied to Zurich’s Chief Executive Officer and directors, accused Zurich’s General Counsel “or your other officers” of using the court process for improper purposes, professional misconduct and breach of the Corporations Act. In that correspondence, the plaintiff and her husband also threatened to go to the media to disclose “your appalling practices”, accused two solicitors from the firm acting for the second and third defendants of corrupt conduct in breach of the Crime and Corruption Act 2011, threatened to report Zurich’s General Counsel to “the relevant authorities” and sought information, said to be potentially privileged, as to the name of the person employed by Zurich providing instructions to the second and third defendants’ solicitors, the identification of the person or persons authorising the funding of legal costs in the matter and the amount of money spent by Zurich in defending the matter.(e)The plaintiff and her husband accused Zurich’s General Counsel of authorising or instructing criminal conduct in fraudulently forging and uttering a certificate of readiness by the second and third defendants’ solicitors. They also asked for her confirmation that she engaged in such conduct and threatened to refer the matter to the Law Society of New South Wales and/or the Legal Services Commission in New South Wales in the event of an “unsatisfactory response”. (f)On 15 November 2017, after the plaintiff had been served with the application to restrain her from communicating with Zurich, the plaintiff’s husband, on her behalf, again wrote to Zurich’s General Counsel and Secretary and to Zurich’s directors complaining about the conduct of the solicitors, among other things, in acting to support Woolworths. He also asked for advice as to whether the second and third defendants had notified the incident complained of by the plaintiff at Woolworths on 18 December 2014 pursuant to the Work Health and Safety Act 2011 (Qld), which the second and third defendants assert they were not obliged to do. She is also said to have again threatened that some form of personal responsibility would attach to the recipients of the correspondence.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

By analogy with the cases illustrating that it is only in exceptional circumstances that a court would exercise its power to grant an interlocutory injunction in defamation cases, Mrs Day argued that I should not grant the injunction sought. She submitted that she had realistic prospects of success in establishing the allegations she made of professional misconduct, breach of directors’ duties and of corrupt conduct. She said that she was simply trying to bring to the attention of the directors and the General Counsel of Zurich information about the conduct of the solicitors acting for the parties insured by them. Consideration The interlocutory injunctions proposed seek to restrain Mrs Day from communicating with Zurich or its directors, officers, employees or agents in relation to this proceeding except through their solicitors. The analogy with the use of injunctions to restrain defamatory publications is not completely appropriate. As Spigelman CJ said in Y & Z v W:[3] “There is a significant line of authority which applies the restrictive approach to interlocutory injunctions in the case of defamatory publications identified in Bonnard v Perryman [1891] 2 Ch 269, to restraints upon publication based on other causes of action. (See, for example, Australian Broadcasting Corporation v O’Neill (at 132 [210]), per Heydon J.) However, that approach is not appropriate in the case of a contempt of court, at least where the person to be restrained can identify neither a public interest nor a private interest in any publication (cf Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554 at 558-562; 566; Attorney-General v News Group Newspapers Ltd [1987] QB 1 at 7-8, 12-16, 19-20; Attorney-General v Newspaper Publishing plc [1988] Ch 333 at 371). In this context matters of this character will fall to be considered with reference to the Bread Manufacturers defence. (See Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242; 54 WN (NSW) 98.)”[3] (2007) 70 NSWLR 377, 384, 379 at [5]. One of the issues, therefore, is to identify the interest that the defendants and Zurich seek to protect and any countervailing interest in Mrs Day. Mrs Day’s concern was to bring to the attention of the directors and the General Counsel of Zurich information about the conduct of the solicitors acting for the parties insured by them. She has done that in a way that raises contentious issues about how to characterise their behaviour. So far I am not persuaded that what she says they have done deserves the criticism she levels at them but that is not a matter to resolve at this stage of the proceedings. The lawyers, Zurich’s General Counsel and its directors and officers who have been attacked may well have an interest in being protected against defamation but they are not applicants and are not likely to be able to obtain injunctive relief against any defamation in the absence of exceptional circumstances. The second and third defendant companies may not be excluded corporations for the purposes of s 9 of the Defamation Act 2005 and so have no cause of action for defamation in relation to the publication of defamatory matter about them. There was no evidence about their status in that respect. In any event the publications complained of have, generally speaking, been made to Zurich rather than to the outside world and do not seem likely to have affected their reputation with Zurich to a significant extent so far. Nor do those defendants have an obvious proprietary or personal right not to be bombarded with aggressive letters or other communications of the type complained of.[4] They would also appear unlikely to be entitled to injunctive relief for any such defamation of them to Zurich in the absence of exceptional circumstances. [4] As to the need to show some such interest to justify the grant of an injunction see Young, Croft and Smith, On Equity, (Law Book Co, 2009) at pp 1026-7, [16.140].