JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2015
DATE OF JUDGMENT:	27 November 2015
CASE MAY BE CITED AS:	Duthie v Nixon
MEDIUM NEUTRAL CITATION:	[2015] VSC 672

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PRACTICE AND PROCEDURE – Injunction – Interlocutory injunction – Application to restrain publication of material about the plaintiff pending the hearing and determination of plaintiff’s proceeding – Serious question to be tried – Balance of convenience.

DEFAMATION – Interlocutory injunction – Principles for grant – Defendants proposing to justify – Freedom of speech.

CONFIDENTIAL INFORMATION – Whether information has the necessary quality of confidence – Whether information was imparted in circumstances importing an obligation of confidence – Identification of confidential information – Whether status quo should be preserved pending trial.

COURTS – Orders – Enforcement of orders – Whether defendant should be enjoined from breaching order previously made – Order made under Family Violence Protection Act 2008 – Family Violence Protection Act 2008.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W T Houghton QC with Mr O M Ciolek	Condello Lawyers
For the Defendants	Mr D P Gilbertson QC with Mr T Alexander	Lamplugh McIntosh

HIS HONOUR:

Introduction

The defendants, Mr Ricky Lee Nixon and Toot Toot Productions Pty Ltd, wish to publish a book entitled ‘My Side’ (‘the book’). The book is an autobiography written by the first defendant. The plaintiff, Ms Kimberley Louise Duthie, makes complaint about two chapters of the book, chapters 6 and 7, set out at pp 60–113 of the book (‘the chapters’). While the chapters do not contain the plaintiff’s name, the plaintiff contends (and it is not disputed) that the chapters purport to set out certain dealings alleged, by the defendants, to have occurred between the plaintiff and the first defendant.

On 17 November 2015, the plaintiff obtained interim ex parte injunctions against the defendants, restraining them, until noon on 24 November 2015 or further order:

(a) from publishing, on the internet, by email or other electronic communication, any material about the plaintiff; and

(b) from publishing or causing to be published (whether by electronic or by any other means) the book or any part thereof.

On the same day (17 November), the plaintiff gave the defendants notice of the orders that had been made against them. On 20 November, the plaintiff filed a generally endorsed writ against the defendants, seeking interlocutory and permanent injunctions in the same terms as the interim injunctions granted on 17 November. The parties have now filed affidavit material, and this is the return of the plaintiff’s application for the interlocutory injunctions which she seeks.

Background

The chapters describe events said by the defendants to have taken place between the plaintiff and the first defendant in 2010 and 2011, and when the plaintiff was 17 years of age. The evidence…

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.

Continue reading Duthie v Nixon

Details

AGLC: Duthie v Nixon [2015] VSC 672
Case: [2015] VSC 672
Decision Date: 27 November 2015

CaseChat Overview and Summary

In the case of Duthie v Nixon, the plaintiff sought an interlocutory injunction to restrain the defendants from publishing material about her pending the hearing and determination of her defamation proceeding. The case was heard in the Supreme Court of Queensland. The primary focus of the dispute was whether the plaintiff could be granted an interlocutory injunction to prevent the publication of the material, considering the defendants' intention to justify the publication and the principles surrounding freedom of speech. Additionally, the case explored the protection of confidential information and the preservation of the status quo pending the trial.

The court was tasked with determining if there was a serious question to be tried in the defamation proceeding and if the balance of convenience favoured granting the injunction. It had to weigh the plaintiff's right to protect her reputation against the defendants' right to freedom of speech. Furthermore, the court considered whether the information in question had the necessary quality of confidence, whether it was imparted under circumstances that imposed an obligation of confidence, and whether the status quo should be preserved until the trial.

The court concluded that there was a serious question to be tried and that the balance of convenience favoured granting the injunction. The court found that the information in question did have the necessary quality of confidence and that it was imparted under circumstances that imposed an obligation of confidence. Consequently, the plaintiff was granted an interlocutory injunction to restrain the defendants from publishing the material pending the hearing and determination of her defamation proceeding. The court also noted that the defendants should be enjoined from breaching the order previously made under the Family Violence Protection Act 2008.

The final orders included an interlocutory injunction restraining the defendants from publishing the material and an injunction against the defendants breaching the previously made order under the Family Violence Protection Act 2008. These orders were made to protect the plaintiff's reputation and to preserve the status quo pending the trial of the defamation proceeding.

Orders