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

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.
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.
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.
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…

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.

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Details

Case: [1999] WASC 57
Decision Date: 10 JUNE 1999

CaseChat Overview and Summary

In this case, the plaintiff, Eastcott-Layton, sought an interlocutory injunction against Fast Bucks in the Supreme Court of New South Wales. The plaintiff's application was made ex parte, in the context of a defamation action. The plaintiff sought to prevent Fast Bucks from publishing content that was alleged to be defamatory, with the injunction being sought on the basis of exceptional circumstances. The court was required to decide whether the plaintiff had met the threshold for obtaining an interlocutory injunction and whether exceptional circumstances existed to justify an ex parte application.

The court considered the criteria for granting an interlocutory injunction, focusing on the balance of convenience and the irreparable harm test. The plaintiff argued that the alleged defamatory content would cause significant harm to their reputation if published. The court examined whether the plaintiff had established a serious issue to be tried and whether there were exceptional circumstances warranting an ex parte application. The court weighed the potential harm to the plaintiff against the public interest in free speech and the right of the defendant to respond to the allegations before any final determination.

After thorough consideration, the court found that the plaintiff had demonstrated a serious issue to be tried, and there were exceptional circumstances justifying the ex parte application. The potential harm to the plaintiff's reputation, coupled with the immediacy of the threat posed by the publication, warranted the grant of the interlocutory injunction. The court concluded that the balance of convenience favoured the plaintiff and that irreparable harm would result if the injunction were not granted. The court ordered that Fast Bucks be restrained from publishing the alleged defamatory content until further order of the court.

Orders