KW v SR

[2021] NSWSC 847

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

KW v SR [2021] NSWSC 847

Hearing dates:

2 July 2021

Date of orders:

2 July 2021

Decision date:

02 July 2021

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The Court made the following orders:

(1) Until the hearing of the matter or until further order, an interim injunction pursuant to s 66 of the Supreme Court Act 1970 (NSW) restraining the defendant from publishing or causing to be published any of the following representations (or representations to substantially the same effect):

(a) the plaintiff has made false and illegal claims in Family Court proceedings;

(b) the plaintiff has engaged in dishonest and illegal conduct;

(c) the plaintiff has engaged in criminal conduct;

(d) the plaintiff has engaged in conduct warranting her incarceration.

(2) Pursuant to s 10 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), an interim order that the identity of the parties to these proceedings, the affidavit of Rebekah Giles sworn on 2 July 2021 and the submissions dated 2 July 2021 be suppressed until further order on the ground that it is necessary to prevent prejudice to the proper administration of justice.

(3) The time for service of the Summons and Affidavit of Rebekah Giles sworn 2 July 2021 be abridged to 8pm today.

(4) Personal service of the Summons and Affidavit of Rebekah Giles be dispensed with and substituted service on the Defendant be effected by:

(a) Email to email address [redacted]; and

(b) LinkedIn message at [redacted].

(5) The parties have liberty to relist the matter before the Court on 24 hours’ notice.

(6) The matter to be listed for further interlocutory hearing on 7 July 2021 before the Duty Judge.

(7) The plaintiff to serve these Orders and the submissions dated 2 July 2021 on the defendant by 8 pm today by:

(a) Email to email address [redacted]; and

(b) LinkedIn message at [redacted].

(8) Costs reserved.

Catchwords:

TORTS – injurious falsehood – false statement concerning trade, goods or business – publication to third party – publication of false allegations – allegations of dishonesty and fraud – lack of personal knowledge – employment relationship – injury to employee – malice – intimidation – improper motive – lack of good faith – reputational damage

INTERIM RELIEF – serious question to be tried – balance of convenience – lack of prejudice

SUPPRESSION ORDER – interim order – family law proceedings – prevent prejudice – proper administrative of justice – sufficient basis interim relief

Legislation Cited:

Supreme Court Act 1970 (NSW)

Courts Suppression and Non-publication Orders Act 2010 (NSW)

Family Law Act 1975 (Cth)

Cases Cited:

AMI Australia Holding Pty Ltd v Fairfax Media Publications [2010] NSWSC 1395

Bonnard v Perryman [1891] 2 Ch 269

Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 247

Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388

Category:

Procedural rulings

Parties:

KW (Plaintiff)
SR (Defendant)

Representation:

Counsel:
S Chrysanthou (Plaintiff)

Solicitors:
Company Giles (Plaintiff)

File Number(s):

2021/190283

Publication restriction:

Interim suppression order made by Walton J on 2 July 2021.

ex tempore Judgment

1. HIS HONOUR: Late this afternoon there was filed in the Court's Duty List a summons by the plaintiff, KW. By that summons the plaintiff sought interlocutory relief and final relief against the defendant, SR. Upon the matter being reached the matter proceeded ex parte with senior counsel for the plaintiff, Ms Chrysanthou, confining the relief sought to interim relief. In particular, senior counsel made an application for an interim inunction, akin to the relief sought on an interlocutory basis in prayer for relief 1 of the summons. Rather than pursuing the suppression orders in prayer for relief 3 of the summons, the plaintiff sought a suppression order on an interim basis under s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW).

2. I note for completeness that prayer for relief 2 of the summons was not pressed in the interim relief proceedings. The plaintiff also sought ancillary relief reflected otherwise in the prayers for relief in the summons. Overall, the interim relief sought was reflected in short minutes of order filed in the proceedings.

3. The plaintiff moved upon the affidavit of Ms Rebekah Ruth Giles sworn on 2 July 2021, which affidavit had annexed to it various documents, numbered “RRG-1” to “RRG-9”, respectively, each of them having a bearing upon the disposition of the application for an interim injunction this afternoon.

4. Senior counsel for the plaintiff extracted relevant aspects of the factual background from the affidavit of Ms Giles. Noting that the affidavit was given on an information and belief basis, I consider the summary provided by senior counsel to be accurate and thereby forms the basis for that which follows:

1. The plaintiff married Dale W, who shall hereinafter be referred as Dale with no disrespect to him. Dale is the nephew of the defendant. The plaintiff and Dale have one child together.

2. The plaintiff and Dale separated on a final basis on 1 June 2020. The plaintiff and her son are protected from certain behaviour by Dale by the terms of a final apprehended violence order made by the Local Court on 1 June 2020.

3. The plaintiff and Dale are parties to ongoing proceedings in the Family Court of Australia in relation to parenting and property matters. That fact is relevant to the orders sought under the Court Suppression and Non-publication Act. I particularly refer, in that respect, to s 121 of the Family Law Act 1975 (Cth).

4. On 30 June 2021, the plaintiff received two messages from the defendant by message on LinkedIn demanding that she resolve her family law proceedings with Dale within one week and under certain conditions. If the plaintiff did not accede to this demand, it was suggested in the messages, the defendant would publish certain allegations to the plaintiff's employer. The defendant also threatened to engage lawyers to commence an investigation and prosecution into the plaintiff. The allegations made related to the honesty and integrity of the plaintiff's claims. The allegations made related to the honesty and integrity of the plaintiff’s claims and to suspicions that the plaintiff had engaged in criminality in relation to an unspecified offence or offences that would carry a custodial sentence if convicted.

5. A demand for an undertaking not to publish the threatened allegations was made by the plaintiff’s solicitors on 1 July 2021. Further telephone contact was made with the defendant's listed landline on the same day. On 2 July 2021, the plaintiff received another message from the defendant by LinkedIn message, acknowledging the plaintiff's demand for an undertaking and telephone contact. In that message the following was, inter alia, stated:

I got involved to help sort out a messy relationship breakdown. I consider that you were being grossly unfair. Since then I have become aware of much more serious issues. I have seen the evidence to support that I will present at an executive level meeting of CBA to discuss these.

The communication then refers to the potential for this Court to investigate all matters including criminality.

6. The LinkedIn messages from the defendant were reported to the police on 1 and 2 July 2021.

7. The allegations made by the defendant are denied by the plaintiff. Some aspects of the affidavit of the plaintiff’s solicitor also bear upon this issue. I will return to them below.

8. The plaintiff is a senior officer employed in the New South Wales public service. The publication of these allegations would damage her reputation and interfere with her employment, given the nature of her role.

9. Loss of employment would impact upon the plaintiff's ability to provide for her son.

5. I return momentarily and additionally to the matters alluded to in the affidavit of Ms Giles concerning the falseness of the allegations. She stated as follows:

1. Prior to receiving the first message and the second message neither the defendant or his brother had ever accused the plaintiff of wrongdoing in the time she had known them.

2. The references to false and illegal claims refer to her claims in the Family Court proceedings.

3. The plaintiff cannot be sure what criminal offence the allegations are referring to, however the reference in the third message of the defendant to the CBA being the Commonwealth Bank of Australia caused the plaintiff to believe that this was a reference to an allegation made by Dale against her during the course of their relationship after she removed Dale's authority for third-party access to a CBA account without giving him notice due to his excessive spending. Dale reported that matter to police but it was not pursued as a complaint by police.

4. Immediately prior to separation on 5 May 2020 Dale accused the plaintiff of committing fraud in relation to his access to her bank accounts and its impact on his legal entitlement to property owned by the plaintiff. On 20 May 2020 the plaintiff was contacted by New South Wales police again in relation to Dale's accusations. At this time the plaintiff ended her relationship with Dale. The police subsequently advised the plaintiff that they would not progress Dale's complaint.

5. The allegations made by Dale to police in relation to a CBA bank account were false and that she did not engage in any impropriety or illegal or criminal conduct in relation to those bank accounts.

6. Lastly, the defendant had no personal involvement or knowledge of the allegations and that anything he knows had been informed by Dale either directly or indirectly.

6. The foundation for the interim injunction sought today is the tort of injurious falsehood. For the purposes of these interim proceedings the plaintiff's senior counsel has correctly stated the elements of that cause of action being:

1. A false statement of or concerning the plaintiff's trade, goods or business;

2. Publication of that statement by the defendant to a third person;

3. Malice on the part of the defendant; and

4. Proof by the plaintiff of actual damage which may include general loss of business suffered as a result of the publication of the statement.

(See Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 (“Palmer”) at [52] (per Gummow J) and [114] (per Kirby J); AMI Australia Holding Pty Ltd v Fairfax Media Publications [2010] NSWSC 1395 (“AMI Australia Holdings”) at [29] (per Brereton J)).

7. In order to establish malice for the purposes of these proceedings the test is similar to malice in defamation. Again reference may be made to AMI Australia Holdings. There is a special, restrictive principle which applies to applications to restrain the apprehended publication of defamatory matter (see Bonnard v Perryman [1891] 2 Ch 269), but this principle does not apply where the relief is claimed on the basis of injurious falsehood: Palmer at [58] per Gummow J; AMI Australia Holdings at [39] per Brereton J; Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 247 at [21] per Davies J.

8. Before I return to the respective elements of the alleged tort it is well to mention the principles to be applied with respect to an application for interim relief, which may be stated as follows. The plaintiff must demonstrate:

1. that there is a serious question to be tried in the sense that the degree of likelihood of the plaintiff's ultimate success is sufficient in the circumstances of the case to warrant intervention; and

2. the inconvenience or injury which the plaintiff would suffer if the injunction were refused outweighs the convenience or injury which a defendant would suffer if granted.

9. I shall now discuss the elements of the tort in greater detail.

10. In terms of the first element, namely, that there is a false statement of or concerning the plaintiff's trade, goods or business, the evidence presently before the Court would readily lead to a conclusion that there is a serious question to be tried, namely, that the allegations which the defendant threatens to publish are false. The plaintiff’s solicitor states that by her information and belief the allegations are not true (noting that the denial is qualified by limitations in the plaintiff’s understanding of the allegations). He intends to accuse the plaintiff of the dishonesty and fraud, as the plaintiff submits it, without ever having identified in his threats what they may relate to.

11. Two further considerations arise with respect to the first element. First, it would appear from the affidavit of Ms Giles it is not apparent that the defendant has any personal knowledge of the matters or any new information that was not provided by Dale to the police.

12. The second consideration is whether the tort is actionable with respect to the employment of the plaintiff. The legal question that has exercised by my mind and that I have raised with senior counsel, is whether this tort is available in the context of an employment relationship or injury to an employee in the context of that relationship. There is an arguable case that the tort will extend to that class having regard to the species of tort here under consideration. I also note that the circumstances disclosed in the affidavit of Ms Giles may indicate that the plaintiff may rely upon other torts. I note the plaintiff alleges extortion.

13. Turning to the question of malice, it is contended that the inference to be drawn from the evidence is that the defendant threatened to publish damaging allegations about the plaintiff to her employer and bank in order to intimidate her into complying with his demand, that is that she settle the family law proceedings with her ex-husband Dale, the defendant's nephew. On the evidence presently before the Court that contention, for the purposes of the grant of interim relief, may be accepted. It was further contended, correctly in my view, that this improper motive and lack of good faith is plain from the content of the messages, namely, the nature of the demand made in the circumstances.

14. Turning to the last element, I have been concerned as to whether, for the purpose of interim relief, it may be demonstrated that there was a prospect of immediate damage to the plaintiff given the nature of her employment, being a senior executive in public sector employment. However, I accept the submission advanced by senior counsel that there is a reasonable probability that the plaintiff would suffer damage in the form of reputational damage at least with respect to her employer, arising out of the publication of the allegations to her employer. Whether that would result in immediate loss of a job or income is a matter that may be the subject of greater debate but nonetheless I accept that there is at least a prospect of the occurrence of the same.

15. Hence, there is a serious question to be tried.

16. I turn then to the question of balance of convenience. In my view, the plaintiff’s interim case in this respect is overwhelming. If the interim injunctions were not made the plaintiff would experience significant potential injury and inconvenience. There is a reasonable likelihood of, as I have found, reputational damage with potential inconvenience.

17. As to the counter point, there is little damage that could be demonstrated with respect to the defendant in the circumstances either by way of inconvenience or injury. He has no particular interest in making the threatened publications because the allegations do not concern him personally. He has indicated that he is aware of the subject matter of the proceedings and I agree with the submissions of senior counsel that it may also be inferred that the allegations concern events from some time ago. Thus, there is no reason why they need to be heard urgently now.

18. The balance of convenience favours the plaintiff.

19. Those considerations establish an ample basis, in my view, for the making of the first order sought in the short minutes of order, namely, an interim injunction. I will make that order in the terms proposed.

20. I can deal with the question of the relief sought under the Courts Suppression and Non-publication Orders Act shortly. There is an arguable case, in my view, that the provisions of s 8(1)(a) of that Act are attracted in the present circumstances given that the course of conduct by the defendant is potentially in contravention of s 121 of the Family Law Act. Hence, an order may be made to prevent prejudice to the proper administration of justice. However, I reach no final conclusion in that respect as the provisions of s 10 of that Act permit the making of an interim order of the kind proposed in order 2 to the short minutes of order before the Court. Section 10 provides that, if an application is made to this Court for a suppression order or a non-publication order, the Court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the Court, until the order is determined.

21. Section 10(2) provides that, if an order is made as an interim order, the Court must determine the application as a matter of urgency having regard to the future prospective listing of the matter on an interlocutory basis. I consider that those provisions are met in the circumstances having regard to the proposed orders as the Court proposes to have the matter returnable within a short period of time.

22. As I have indicated, the remaining orders sought in the short minutes of order appear to me to be appropriate in the circumstances, having regard to firstly the urgency of the matter, and secondly, the circumstances by which communication may be made with the defendant, both having regard to the nature of the evidence as to communications with him and further having regard to the present lockdown circumstances existing in this State in all the relevant areas.

23. It follows then that, by reference to the short minutes of order filed by the plaintiff in the proceedings, I make orders as follows:

1. Until the hearing of the matter or until further order, an interim injunction pursuant to s 66 of the Supreme Court Act 1970 (NSW) restraining the defendant from publishing or causing to be published any of the following representations (or representations to substantially the same effect):

1. the plaintiff has made false and illegal claims in Family Court proceedings;

2. the plaintiff has engaged in dishonest and illegal conduct;

3. the plaintiff has engaged in criminal conduct;

4. the plaintiff has engaged in conduct warranting her incarceration.

2. Pursuant to s 10 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), an interim order that the identity of the parties to these proceedings, the affidavit of Rebekah Giles sworn on 2 July 2021 and the submissions dated 2 July 2021 be suppressed until further order on the ground that it is necessary to prevent prejudice to the proper administration of justice.

3. The time for service of the Summons and Affidavit of Rebekah Giles sworn 2 July 2021 be abridged to 8pm today.

4. Personal service of the Summons and Affidavit of Rebekah Giles be dispensed with and substituted service on the Defendant be effected by:

1. Email to email address [redacted]; and

2. LinkedIn message at [redacted].

5. The parties have liberty to relist the matter before the Court on 24 hours’ notice.

6. The matter to be listed for further interlocutory hearing on 7 July 2021 before the Duty Judge.

7. The plaintiff to serve these Orders and the submissions dated 2 July 2021 on the defendant by 8pm today by:

1. Email to email address [redacted]; and

2. LinkedIn message at [redacted].

8. Costs reserved.

**********

Amendments

21 July 2021 - Information that could lead to the identification of the plaintiff removed.

Decision last updated: 21 July 2021