Gair v Greenwood (No. 2) - [2019] NSWDC 741

District Court

New South Wales

Medium Neutral Citation: Gair v Greenwood (No. 2) [2019] NSWDC 741
Hearing dates: 11 December 2019
Date of orders: 11 December 2019
Decision date: 11 December 2019
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Subject to any successful application by the defendant pursuant to r 36.16 Uniform Civil Procedure Rules 2005 (NSW) for Gibson DCJ’s orders of 3 December 2019 to be set aside, these proceedings are set down for hearing as an assessment of damages only on Tuesday 5 May 2020 (estimate ½ to 1 day).
(2) Pursuant to r 36.16(3A) and (3B) Uniform Civil Procedure Rules 2005 (NSW) extend time for compliance from the date of making the orders for judgment on 28 November 2019 to the date of the judgment provided to the parties, namely 3 December 2019.
(3) Evidence for the assessment is to be by way of affidavit from the plaintiff s, such affidavits to be filed by 13 March 2020.
(4) Any request for cross-examination and/or evidence in reply by 27 March 2020.
(5) Pursuant to s 46(1) District Court Act 1973 (NSW) and until further order, make orders as follows:
1) The defendant be restrained by himself, his servants or agents, from publishing or causing to be published the matter complained of, namely the video “The Strife and Crimes of Duncan Gair”, or matters substantially to the same effect as such matter on the world wide web (including YouTube) or otherwise.
2) The defendant is restrained from publishing on the world wide web or otherwise any matter of and concerning the plaintiffs to the same effect as the imputations contained in the Amended Statement of Claim and set out below:
(a) The first plaintiff as the Mayor of the Wingecarribee Shire Council (“Council”) was corrupt in that he misused his office as Mayor by dishonestly influencing the outcome of development applications for his friends.
(b) The first plaintiff as the Mayor of the Council was corrupt in that he received money from developers in return for dishonestly influencing the outcome of development applications.
(c) The first plaintiff is a racketeer.
(d) The second plaintiff is a crook.
(e) The second plaintiff as an elected Councillor of the Council was corrupt in that he misused his position as an elected Councillor by dishonestly influencing the outcome of development applications.
(f) The second plaintiff dishonestly used his position as elected Councillor of the Council to be able to influence the outcome of development applications in which he had an interest.
(g) The second plaintiff bribed the Mayor in order to obtain favourable outcomes for development applications.
(h) The second plaintiff engaged in a conflict of interest through his position as an elected Councillor by being able to influence development applications in which he had an interest.
3) The defendant take all reasonable steps to remove forthwith from the world wide web (including Facebook.com, southernhighlandsnsw.org and YouTube.com), all matter that he has published, posted or uploaded concerning the plaintiffs to the…

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: [2019] NSWDC 741
Decision Date: 11 December 2019

CaseChat Overview and Summary

Gair v Greenwood (No. 2) involved an application by the plaintiffs, Duncan Gair and Robert Gair, for final or interim injunctive relief against the defendant, Mr. Michael Greenwood. The plaintiffs sought relief pursuant to sections 46 and 149 of the District Court Act 1973 (NSW) and the Civil Procedure Act 2005 (NSW) and paragraph 9 of the District Court Civil Practice Note 6 (Defamation List). The dispute arose from ongoing defamatory publications by the defendant, despite a previous judgment in favour of the plaintiffs. The plaintiffs sought to restrain the defendant from continuing to publish material containing similar defamatory imputations. The legal issues the court had to decide included whether the balance of convenience favoured the making of interlocutory injunctions, given the defendant's history of non-compliance with court orders and his continued publication of defamatory material.

The court considered the plaintiffs' previous success in obtaining judgment against the defendant, who had not complied with the orders made by the court. The defendant had continued to publish defamatory material on social media, YouTube, and via email, despite being aware of the consequences of doing so. The court found that the balance of convenience favoured the making of interlocutory injunctions. The court was satisfied that the plaintiffs had established a prima facie case and that the defendant had failed to provide any justification for his continued publication of defamatory material. The court concluded that the defendant's actions were likely to cause significant harm to the plaintiffs' reputations and that the plaintiffs had a strong case for damages. The court also noted that the plaintiffs had taken reasonable steps to enforce the previous judgment and that the defendant's continued non-compliance justified the making of interlocutory injunctions.

In light of the above, the court made orders restraining the defendant from publishing or causing to be published the defamatory material. The court also ordered the defendant to take reasonable steps to remove the defamatory material from the internet. The court refused the defendant's application for the plaintiffs' solicitor to cease acting for the plaintiffs and reserved the issue of costs to the trial judge. The court also set the proceedings down for hearing as an assessment of damages only on a date to be determined. The orders were to take effect immediately upon service of a copy of the orders on the parties.

Orders

Orders of the court

(1) Subject to any successful application by the defendant pursuant to r 36.16 Uniform Civil Procedure Rules 2005 (NSW) for Gibson DCJ’s orders of 3 December 2019 to be set aside, these proceedings are set down for hearing as an assessment of damages only on Tuesday 5 May 2020 (estimate ½ to 1 day).

(2) Pursuant to r 36.16(3A) and (3B) Uniform Civil Procedure Rules 2005 (NSW) extend time for compliance from the date of making the orders for judgment on 28 November 2019 to the date of the judgment provided to the parties, namely 3 December 2019.

(3) Evidence for the assessment is to be by way of affidavit from the plaintiff s, such affidavits to be filed by 13 March 2020.

(4) Any request for cross-examination and/or evidence in reply by 27 March 2020.

(5) Pursuant to s 46(1) District Court Act 1973 (NSW) and until further order, make orders as follows:

1) The defendant be restrained by himself, his servants or agents, from publishing or causing to be published the matter complained of, namely the video “The Strife and Crimes of Duncan Gair”, or matters substantially to the same effect as such matter on the world wide web (including YouTube) or otherwise.

2) The defendant is restrained from publishing on the world wide web or otherwise any matter of and concerning the plaintiffs to the same effect as the imputations contained in the Amended Statement of Claim and set out below:

(a) The first plaintiff as the Mayor of the Wingecarribee Shire Council (“Council”) was corrupt in that he misused his office as Mayor by dishonestly influencing the outcome of development applications for his friends.

(b) The first plaintiff as the Mayor of the Council was corrupt in that he received money from developers in return for dishonestly influencing the outcome of development applications.

(d) The second plaintiff is a crook.

(e) The second plaintiff as an elected Councillor of the Council was corrupt in that he misused his position as an elected Councillor by dishonestly influencing the outcome of development applications.

(f) The second plaintiff dishonestly used his position as elected Councillor of the Council to be able to influence the outcome of development applications in which he had an interest.

(g) The second plaintiff bribed the Mayor in order to obtain favourable outcomes for development applications.

(h) The second plaintiff engaged in a conflict of interest through his position as an elected Councillor by being able to influence development applications in which he had an interest.

3) The defendant take all reasonable steps to remove forthwith from the world wide web (including Facebook.com, southernhighlandsnsw.org and YouTube.com), all matter that he has published, posted or uploaded concerning the plaintiffs to the same effect as the imputations set out in order 2(a) to 2(h) above including but not limited to, the publications referred to at paragraphs 6, 17, 20, 22, 23, 24 and 26-32 of the affidavit of Malcolm John Murray sworn on 2 December 2019.

(6) Defendant’s application for Mr Malcolm John Murray to cease acting for the plaintiffs is refused.

(7) Noting the defendant is present in court when these orders are made, service of these orders will be taken to have effect immediately upon provision later today of a copy of the orders placed on JusticeLink by Gibson DCJ’s Associate being forwarded to the parties.

(8) Reserve the issue of costs to the trial judge, noting the solicitors for the plaintiffs will serve the documentation relied upon for a gross sum costs order pursuant to s 98(4)(c) Civil Procedure Act 2005 (NSW).

Background

Background to the litigation

Full text does not contain this section.

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

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Medium Neutral Citation:	Gair v Greenwood (No. 2) [2019] NSWDC 741
Hearing dates:	11 December 2019
Date of orders:	11 December 2019
Decision date:	11 December 2019
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Subject to any successful application by the defendant pursuant to r 36.16 Uniform Civil Procedure Rules 2005 (NSW) for Gibson DCJ’s orders of 3 December 2019 to be set aside, these proceedings are set down for hearing as an assessment of damages only on Tuesday 5 May 2020 (estimate ½ to 1 day). (2) Pursuant to r 36.16(3A) and (3B) Uniform Civil Procedure Rules 2005 (NSW) extend time for compliance from the date of making the orders for judgment on 28 November 2019 to the date of the judgment provided to the parties, namely 3 December 2019. (3) Evidence for the assessment is to be by way of affidavit from the plaintiff s, such affidavits to be filed by 13 March 2020. (4) Any request for cross-examination and/or evidence in reply by 27 March 2020. (5) Pursuant to s 46(1) District Court Act 1973 (NSW) and until further order, make orders as follows: 1) The defendant be restrained by himself, his servants or agents, from publishing or causing to be published the matter complained of, namely the video “The Strife and Crimes of Duncan Gair”, or matters substantially to the same effect as such matter on the world wide web (including YouTube) or otherwise. 2) The defendant is restrained from publishing on the world wide web or otherwise any matter of and concerning the plaintiffs to the same effect as the imputations contained in the Amended Statement of Claim and set out below: (a) The first plaintiff as the Mayor of the Wingecarribee Shire Council (“Council”) was corrupt in that he misused his office as Mayor by dishonestly influencing the outcome of development applications for his friends. (b) The first plaintiff as the Mayor of the Council was corrupt in that he received money from developers in return for dishonestly influencing the outcome of development applications. (c) The first plaintiff is a racketeer. (d) The second plaintiff is a crook. (e) The second plaintiff as an elected Councillor of the Council was corrupt in that he misused his position as an elected Councillor by dishonestly influencing the outcome of development applications. (f) The second plaintiff dishonestly used his position as elected Councillor of the Council to be able to influence the outcome of development applications in which he had an interest. (g) The second plaintiff bribed the Mayor in order to obtain favourable outcomes for development applications. (h) The second plaintiff engaged in a conflict of interest through his position as an elected Councillor by being able to influence development applications in which he had an interest. 3) The defendant take all reasonable steps to remove forthwith from the world wide web (including Facebook.com, southernhighlandsnsw.org and YouTube.com), all matter that he has published, posted or uploaded concerning the plaintiffs to the…