Kelly v. Graham & Hobson - [2007] QSC 172

[2007] QSC 172

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ATKINSON J

No 123 of 2007

PETER KELLY

Applicant

and

MALCOLM WILLIAM GRAHAM

and

CHRISTINE ANNE HOBSON

First Respondent

Second Respondent

BRISBANE

..DATE 18/05/2007

JUDGMENT

HER HONOUR: This is an application for an interlocutory injunction made orally in a situation of some urgency. The urgency, I have been told orally, is that negotiations are presently under way for a development proposed to take place in Newcastle, in New South Wales worth some millions of dollars. I was told $220 million. There are currently negotiations taking place with potential equity partners.

The application has been brought ex parte. It follows information received today by solicitors for Peter Kelly that an architect in Newcastle, who is involved in this project known as the Steel River Project, received a facsimile transmission apparently from the eighth respondent, Christine Anne Hobson.

The solicitor for the applicant who appeared on this application has told me that he has been present at a meeting at which the seventh and eighth respondents, who are partners, (in the personal sense) were present and he is satisfied that the facsimile has come from them.

The facsimile says;

"I noticed on the internet that Jackson Thiess Architects are involved in the Steel River Project in Newcastle and that PAV are the developers. We have had previous dealings with Mr Peter Kelly and Mr Jacobs who are directors of PAV and for your information I attach two newspaper articles outlining these dealings.
We will be making businesses around Newcastle and in particular, the Steel River Project, aware of the dissatisfaction we have had in our dealings with PAV and Mr Kelly.
Yours faithfully, Christine Hobson.
PS. The last line in the "Newcastle Herald" article is not true. The only word we have had from their solicitor is how much would it cost to keep us quiet!!!!"

Attached to the facsimile was an article which was published, I am informed, in the "Daily News" in Murwillumbah on the 13th of March 2007. No proceedings have been started in respect of that article.

The solicitor appearing for the applicant said he did not rely on the other attached article which is an internet copy of an article apparently published in the "Newcastle Herald".

The application was brought against eight respondents. There is no reliable suggestion that the first to the six respondents have any intention of publishing matters defamatory of any person, and so there are no grounds at all for giving any relief against them on an interim basis.

Further, when I pointed out that the applicant was a corporation which is not apparently an exempt corporation as defined in the Defamation Act, and therefore unable to sue in defamation, the solicitor applied to substitute as the applicant, Peter Kelly, on of its directors.

The law, as it applies to the issuing of interlocutory injunctions in defamation proceedings has been set out in the Australian Broadcasting Corporation v O'Neill [2006] HCA 46. Unfortunately,…

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: [2007] QSC 172
Decision Date: 18 May 2007

CaseChat Overview and Summary

In the matter of Kelly v. Graham & Hobson, the applicant, Peter Kelly, sought an interlocutory injunction to prevent the respondents, including Christine Anne Hobson, from disseminating defamatory statements regarding him in relation to a proposed development project in Newcastle, New South Wales. The application was brought on an ex parte basis, citing an urgent need to halt the dissemination of potentially defamatory material, which was alleged to have been sent via a fax transmission by Christine Hobson. The urgency stemmed from ongoing negotiations for the Steel River Project, a significant development project worth approximately $220 million, in which Kelly was involved. The application was made without notice to the respondents, and the court was required to determine whether an interlocutory injunction should be granted to prevent further dissemination of the allegedly defamatory material.

The court examined the criteria for granting interlocutory injunctions in defamation cases, particularly focusing on the requirement that the statement must be unarguably defamatory, there must be no grounds for concluding that the statements are true, there should be no defence that might succeed, and there must be an intention to publish or repeat the defamation. Atkinson J noted that the fax transmission from Christine Hobson did not contain any unarguably defamatory statements but rather expressed dissatisfaction with past dealings with Kelly. The court further noted that the newspaper article attached to the fax was already publicly available and not the subject of any ongoing defamation proceedings. Therefore, the court found that there was no basis for concluding that there was no defence that might succeed to the republication of the article. As a result, Atkinson J refused to grant the interlocutory injunction sought by Kelly.

The court's reasoning was grounded in the principles of freedom of speech and the need for great caution before exercising jurisdiction to prevent future publications. Atkinson J highlighted the importance of balancing the protection of free speech with the need to prevent potential harm from defamatory statements. The court's refusal to grant the injunction was based on the lack of unarguably defamatory content in the fax transmission and the availability of the newspaper article in the public domain. The court also noted that Kelly, as a corporation, was not an exempt corporation under the Defamation Act and therefore not able to sue in defamation without being substituted as an individual applicant. Atkinson J concluded that the application did not meet the stringent criteria for an interlocutory injunction in defamation cases and therefore denied the relief sought.

Orders