Eastcott-Layton v Fast Bucks

[1999] WASC 57

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   EASTCOTT-LAYTON & ANOR -v- FAST BUCKS [1999] WASC 57

CORAM:   MILLER J

HEARD:   29 APRIL 1999

DELIVERED          :   29 APRIL 1999

PUBLISHED           :  10 JUNE 1999

FILE NO/S:   CIV 1451 of 1999

BETWEEN:   MAXWELL THOMAS EASTCOTT-LAYTON

MANFRED BOLDY
Plaintiffs

AND

FAST BUCKS
Defendant

Catchwords:

Intelocutory injunction - Ex parte - Defamation action - Exceptional circumstances - Turns on own facts

Legislation:

Nil

Result:

Interim injunction granted

Representation:

Counsel:

Plaintiffs:     Mr E J Myers

Defendant:     No appearance

Solicitors:

Plaintiffs:     E J Myers

Defendant:     No appearance

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153; A Tort Rep 80-187

Lovell v Lewandowski (1987) WAR 81

1. MILLER J :  On 27 April 1999 the respondent published by way of a notice fixed to an A-frame on the top of a vehicle certain words relating to the applicants.  That motor vehicle was parked in Bussell Highway, the main street of Margaret River, and also in an adjacent street, Town View Terrace Road.  The words published alleged that the applicants had seriously misconducted themselves in the affairs of the Shire of Augusta‑Margaret River where the first applicant is chief executive officer and the second applicant the director of development services.

2. The words allege, amongst other things, criminal conduct on the part of the applicants, including receipt of bribes, or what I would term official corruption within the meaning of the Criminal Code, as well as general misconduct in influencing the affairs of the local authority in a way that is prejudicial to the interests of good local government.  The allegations are very serious and they constitute serious libels of the applicants if, as the first applicant swears on oath, they are untrue.

3. The applicants seek an interlocutory injunction in each case restraining the respondent from publishing further the words complained of, and the injunction is sought in terms of par 1.1 to par 1.10 inclusive of the notice of motion.  The application is accompanied by the applicants' undertaking as to damages in the appropriate form, but is signed only in the case of the first applicant, the second applicant being in Queensland and uncontactable.  In those circumstances, I have ruled that I will hear the application for an interim injunction from the first applicant only at this point of time.

4. No writ of summons has yet been filed in the proceedings.  An ex parte application can in an urgent case be made without the issue of a writ, but if the Court accedes to such an application an order will usually be made that there be an undertaking that the writ will be issued as soon as practicable claiming relief similar to that which is sought in the application.  The grant of an interlocutory injunction in a defamation action is exceptional, being affected by the importance and the public interest that the truth should out.  The jurisdiction to grant such an injunction should be exercised most cautiously and warily.  A clear case of defamation must be shown, and the applicants must show that there is no real ground for supposing that the respondent will or may succeed on any defence of justification, privilege or comment and that more than nominal damages would be recoverable.

5. Having considered the matter and having heard Mr Myers of counsel, I am satisfied that the tests are met in this case.  The words published are prima facie defamatory of the first applicant, and seriously so.  The first applicant swears to their untruth and it is presently difficult to see how they could be justified, privileged or the subject of fair comment.

6. I have received unsworn submissions of the respondent in which defences are raised, but primarily by reference to alleged actions of the first applicant in Byron Bay, New South Wales, it not being suggested that anything he has done in the Shire of Augusta-Margaret River where he is presently employed falls within the allegations which are made.  As Mr Myers has rightly pointed out, at its highest the respondent seems to be saying that he has an opinion from a firm of solicitors that the first applicant may have been guilty of gross misconduct in the course of his office at Byron Bay.

7. The damage which will be done to the first applicant's reputation by republication of the words is in my view such that he is unlikely to be able to be compensated in damages, there being evidence before me in the form of a sworn affidavit of the first applicant that the respondent has no capacity to meet any award that may be made.  This is disputed in the unsworn submission of the respondent in which he contends that he has means, but no details are given and the material is not sworn to.

8. If damages were awarded, it seems to me they would be much more than nominal damages, as publication occurred here in a busy street in a town where the applicants, and the first applicant in particular, hold office.  The libels, if they are proven to be libels, are certainly grave.  Accordingly, notwithstanding the need to be cautious and wary in the issue of injunctive relief in these circumstances, I am prepared to issue injunctive relief to the first applicant in a slightly modified form from that which is sought in the notice of motion.