Keydata Pty Ltd v Brown, S.R. - [1991] FCA 238

JUDGMENT No. 2 3% .?l ......

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY No. VG 81 of 1991

GENERAL DIVISION 1

KEYDATA PTY LIMITED h ORS

Applicant

13 MAY 1991 - and-

FEDERAL COURT OF

AUSTRALIA STEVEN ROBERT BROWN
PRINCIPAL

REQISlUY Respondent

JUDGE : Heerey J.
PLACE : Melbourne

DATE : 2 May 1991

EX TEMPORE REASONS FOR JUDGMENT

This application for an interlocutory injunction arises against a background of contentious commercial dealings involving the fourthnamed applicant, Titan Hills Australia Limited, and companies connected with the second and third applicants, Godfrey David Cullen and Maxwell Roger Latimer.

In essence, the Cullen interests which control the fifth applicant, Precision Data Holdings Limited and its subsidiary, Keydata Pty Limited, the first applicant, wish to procure the acquisition by Titan Hills of Precision Data. This matter has had a long and well publicised history of conflict, including litigation which took place in the Supreme Court last year.

Latimer. It is particularly noteworthy for a memorable and attack on the commercial credibility of Messrs Cullen and
wounding allegation relating to M r Latimer, viz that he had
been expelled from the Eastern Golf Club for cheating.
Mr Latimer has sworn an affidavit to the effect that not only
is that untrue but that he has never been a member of that golf club and has never been expelled from any golf club, whether for cheating or for any other reason. The fact that he has gone on oath to depose to a readily verifiable matter leads me to the conclusion that the charge made was totally groundless and likely to and designed to introduce a totally unjustified personal attack into this commercial setting.
I should refer to a number of general matters at the outset. First, the respondent's answer to this claim is that he had nothing whatever to do with the preparation or circulation of the letter. It follows that no defence has been raised as to the contents of the letter. It is plainly defamatory and on the evidence, which is uncontested in this respect, it is misleading and deceptive and also involves a breach of copyright, in that the logo of Keydata Pty Limited appears on the letter without permission.
Secondly, it would seem that if the applicants show that there is a serious question to be determined (see Mur~hv v Lush

is all the one way. It is not suggested that the harm to the (1986) 60 ALJR 523 at p.524), then the balance of convenience
respondent, if there is an interlocutory injunction but he succeeds at trial, would outweigh the corresponding harm to the applicants if no injunction is granted but they succeed at trial.
The third point I would make is that I should be careful not to take the superficially attractive course of saying that if the respondent has not in fact had anything to do with publishing the letter and has no intention of repeating publication, then there is no harm to him…

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.

Continue reading Keydata Pty Ltd v Brown, S.R.

Details

AGLC: Keydata Pty Ltd v Brown, S.R. [1991] FCA 238
Case: [1991] FCA 238
Decision Date: 2 May 1991

CaseChat Overview and Summary

Keydata Pty Ltd and others sought an interlocutory injunction against Steven Robert Brown, the principal of the Federal Court of Australia, in a case that revolved around contentious commercial dealings involving the companies controlled by Godfrey David Cullen and Maxwell Roger Latimer. The Cullen interests sought to procure the acquisition by Titan Hills of Precision Data, leading to a history of conflict, including litigation in the Supreme Court. The matter before the court involved the circulation of a defamatory and misleading letter, which was also a breach of copyright. The respondent denied any involvement in the publication of the letter.

The legal issues before the court were whether there was a serious question to be determined regarding the respondent's involvement in the publication of the letter, and if the balance of convenience favoured granting the interlocutory injunction. The court found that, while there was no direct evidence of the respondent's involvement, there was a serious question to be determined based on the circumstantial evidence, such as the destruction of credit references relating to Cullen, and the history of enmity between the respondent and Cullen.

The court granted the interlocutory injunction on the usual undertaking as to damages, emphasizing the need for a quick resolution of the matter. The court also made directions for the filing of defences, cross-claims, discovery, and inspection of documents, and set a date for the hearing.

The final orders included restraining the respondent from publishing, reproducing, or distributing the Keydata logo and the document in question, and set deadlines for the filing of defences, mutual discovery, and inspection of documents. The court reserved costs for the day.

Orders