Integrated Computer Solutions (Aust) Pty Ltd v Lehmann

[1994] QCA 456

[1994] QCA 456

KELVIN LEHMANN	Respondent (Defendant)
BRISBANE ..DATE 22/08/94

COURT OF APPEAL

DAVIES JA

INTEGRATED COMPUTER SOLUTIONS

(AUSTRALIA) PTY LTD ACN 060 685 050	Appellant (Plaintiff)
and

JUDGMENT the Court of Appeal from an interlocutory order made in the District Court on 19 August last. In that order the learned District Court Judge declared that publication, without undue prominence in the appropriate section of a publication which he described as "the relevant publication", of an advertisement in terms which were set out in an annexure to an earlier order of another District Court Judge did not infringe an injunction granted by him on 7 July this year, that is the District Court Judge from whom this application is brought.

His Honour treated the application before him, which was made by the defendant, as one invoking the liberty to apply provision which the learned trial Judge had made when he granted the injunction on 7 July. It is unnecessary for me to go into the history of this matter. The important question of law which Mr Griffin QC, who argued this matter on behalf of the applicant, said arose in this case was whether the defendant was enabled to place an advertisement in the press inviting persons to join him in a class action pending the hearing of the action the subject of this application.

The action the subject of this application I was told, was an action for defamation and for other matters against the defendant/respondent. The proposed class action was, I was

told, a proposed action to be brought against the question which I have stated involves a further question of whether an injunction should be granted which in turn depends upon whether the action is appropriately one for defamation or whether it is one based on malicious statement.

applicant/plaintiff in respect of a betting system which the
applicant/plaintiff had sold.
In truth the application before the learned District Court
Judge, it seems to me, raised a very much narrower question.

The question, as I said, arose by invoking liberty to apply and it concerned, as the learned District Court Judge said, the question in effect of the proper construction of the injunction which His Honour had granted on that earlier occasion.

His Honour said, "This is not a convenient occasion on which to construe the injunction, but I'm prepared to declare that the publication without undue prominence in the appropriate

section of the relevant publication of an advertisement in terms of the third paragraph of annexure A to the order of His Honour Judge McLaughlan on 19 July 1994 does not

infringe the injunction granted by me on 7 July 1994". It
appears from that paragraph which is the central part of His
Honour's decision, that His Honour construed the application
- and I must accept His Honour's view of the application, as
one in effect to determine the effect of the order which His

Honour made on 7 July 1994.

His Honour then indicated in the following paragraph that

JUDGMENT however that question was determined, the defendant, in further publication, might be at risk because of the principle stated in Radcliffe v. Evans (1892) 2 QB 524 to which he referred, and to which Mr Griffin referred before me. For those reasons it seems to me that the question of law to which Mr Griffin refers does not arise in the proceeding before Judge Robin QC and consequently there is no important question of law arising which justifies a grant of leave to appeal to the Court of Appeal.

I would therefore refuse the application.

MR DERRINGTON: We ask for an order for costs, that the applicant pay the respondent's costs of and incidental to the application and of the appeal, that would be appropriate, because the application fell in two parts, the notice of motion fell in two parts. There was a notice of motion fell in two parts. There was a notice of appeal.

DAVIES JA: Well I don't know that there'd be any costs of the appeal at this stage are there? There has been no notice of appeal filed. It cannot be filed until leave is granted.

MR DERRINGTON: We have been served with one. Perhaps it is just-----

DAVIES JA: I think it is just a copy of it.

MR DERRINGTON: Yes.

DAVIES JA: I think that would only be costs of the application, Mr Derrington.

MR DERRINGTON: May it please you.
DAVIES JA: Can you resist that Mr Griffin?

MR GRIFFIN: No Your Honour.

DAVIES JA: No. With costs.

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JUDGMENT