| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2015 05967
| KIMBERLEY LOUISE DUTHIE | Plaintiff |
| v | |
| RICKY LEE NIXON and TOOT TOOT PRODUCTIONS PTY LTD | Defendants |
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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…
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- AGLC
- Duthie v Nixon [2015] VSC 672
- Case
- [2015] VSC 672
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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