Lucille McLauchlan and Deborah Parry v Muriel LOIs Gilford and Frank Graham Gilford No. Scgrg-97-1171 Judgment No. 6311 Number of Pages 6 Equity (1997) 69 Sasr 269

[1997] SASC 6311

IN THE SUPREME COURT OF SOUTH AUSTRALIA

KING J

Equity - equitable remedies - injunctions - mandatory injunctions - plaintiffs in custody in Saudi Arabia on charges of murder - defendants are the mother and brother of the murdered woman - alleged that statements were made to the Saudi Arabian Court through lawyers instructed by the second defendant that it is the unanimous view of the heirs of the deceased that the death penalty should apply if the plaintiffs are found guilty - alleged that the statement is false in that the first defendant, the mother, lacks the mental competence to make such a decision - alleged that the result is and will continue to be actual damage to the plaintiffs.

Application by plaintiffs for interlocutory relief by way of injunctions against the second defendant restraining him from making the statement that it is the unanimous view of the heirs that the death penalty should apply and directing him to advise the Saudi Arabian Court of these proceedings in which the mental competence of the first defendant is in issue - it is now well established that there are no limits to the jurisdiction of the Court to grant declatory relief other than the Court's own discretion and the limits of the judicial power - discussion as to the issue of jurisdiction - whether alleged offence committed by the defendants in Saudi Arabia would be actionable in South Australia - no abuse of process of this Court - whether there is a serious issue to be tried - whether on the balance of convenience the injunction should be granted - no detriment to defendants in refrainig from making further statements or from neutralising any statements already made pending the proper determination of the question of the mental competence of the first defendant - injunctions granted - discovery ordered.

ADELAIDE, 8 August 1997 (hearing and decision)

#DATE 8:8:1997

Plaintiffs :

Counsel: Mr R J Whitington QC with him Mr M R Burnett

Solicitors: Minter Ellison

Defendants :

Counsel: Mr M T Boylan

Solicitors: Boylan & Co

Order: application granted.

KING AJ

The application before me is for interlocutory relief in this action. The principal interlocutory relief sought is by way of injunction. The purpose of interlocutory relief is to preserve the position so far as possible, pending the final disposition of the issues in the case by trial. Interlocutory relief of course is not a final order in the matter and it is merely a temporary provision to hold the position until the issues in the case can be decided.

The action in which this interlocutory relief is sought has been brought in this court by the two plaintiffs, who are in custody in Saudi Arabia on charges of murder. The defendants are respectively the mother and the brother of the murdered woman. The statement of claim in the action alleges that according to the law of Saudi Arabia the plaintiffs would be liable to imprisonment for five years if found guilty of the crime, but that if the heirs of the deceased demand, the penalty is death by way of beheading. The statement of claim alleges that statements have been made to the Saudi Arabian court through lawyers instructed by the second defendant that it is the unanimous view of the heirs of the deceased that the death penalty should apply if the plaintiffs are found guilty of the crime. The heirs, according to the law of Saudi Arabia are alleged to be the two defendants, the mother and the brother of the deceased. The statement of claim alleges that the statement is false in that the first defendant, the mother, lacks the mental competence to make a decision as to her view of the penalty to apply and therefore to join in the request for the death penalty to be applied. The statement of claim alleges that the false statement has been made intentionally and that the result is and will continue to be actual damage to the plaintiffs.

The application before me seeks certain injunctions against the second defendant, restraining him from making the statement that it is the unanimous view of the heirs that the death penalty should apply and directing him to advise the Saudi Arabian court of these proceedings in which the mental competence of the first defendant is in issue.

The matter is one of great urgency because it is said that the Saudi Arabian court will reconvene on 10 August, on Sunday next, and it is not known to what stage the proceedings will then be taken. There is an apprehension that the Saudi Arabian court might on Sunday proceed to verdict and sentence. The urgency of the matter creates obvious problems for this court. Mr Boylan who appears for the defendants before me applied for an adjournment of these proceedings on the ground that the defendants were served only in the last two days and that it has not been possible to obtain proper instructions or to prepare a proper argument. I am very sympathetic to the dilemma in which the legal representatives of the defendants find themselves in that situation. The problem however is that if a decision on this application were adjourned, decisions might be taken in Saudi Arabia on Sunday which would be irreversible in their consequences. I have therefore felt it necessary to proceed with this hearing. Another consequence of the urgency is that it is necessary to reach a decision on this interlocutory application on materials which would not be regarded as adequate by the court under ordinary circumstances. For example, the law of Saudi Arabia is put before me by way of an affidavit which speaks of information received from an English solicitor who is working with the lawyers in Saudi Arabia. In the normal course of things a court would require the law of Saudi Arabia to be proved by direct evidence from an expert in the law of Saudi Arabia. But it is necessary in view of the urgency of the matter for me to rely on the materials which are before me. Many of the relevant facts are also put before me by way of information and belief rather than direct evidence.

Mr Boylan has objected to the jurisdiction of this court to grant the relief sought and to entertain the actions instituted by the plaintiffs. This court undoubtedly has jurisdiction over the person of the defendants, they have been served within the jurisdiction and indeed, have entered an appearance. Mr Boylan having produced the memorandum of appearance this morning and undertaken that it would be filed.

As to the declaratory relief sought, that is to say the declaration sought in the action that the first defendant is mentally incompetent to form and express an opinion as to the penalty to be imposed upon the plaintiffs, it is well established now that there are no limits to the jurisdiction of the court to grant declaratory relief other than the court's own discretion and the limits of the judicial power.

The evidence before me indicates that statements have been made in Saudi Arabia purporting to be made on behalf of both defendants and there can be no doubt that those statements may operate to serious detriment of the plaintiffs. If it is the fact that the first defendant is mentally incompetent then the plaintiffs have an obvious and vital interest in obtaining a declaration from this court to that effect. The first defendant is within the jurisdiction of this court. The truth of her mental state is more readily ascertainable in proceedings in this court than they would be either in Saudi Arabia or elsewhere. I think that the obvious interest of the plaintiffs and the obvious detriment to their interests and rights if statements are made on behalf of a person who in the event turns out to be mentally incompetent are such that there is clear jurisdiction in this court to grant declaratory relief at the instance of these plaintiffs.

The other substantial cause of action alleged in the statement of claim is for malicious or injurious falsehood. To make out that cause of action it is necessary for the plaintiffs to prove that statements have been made and that they were false, that the false statements were intentionally made and that they have resulted or will result in actual damage to the plaintiffs.

Mr Whitington QC who appeared for the plaintiffs before me has argued that the jurisdiction of this court is founded upon the fact that the statements were made by the second defendant in South Australia to his solicitors with the intention that they be repeated in Saudi Arabia by being conveyed to the court there. That is an arguable proposition but it seems to me that it is not necessary to sustain it in order to found the jurisdiction of this court. If the civil wrong or tort of malicious or injurious falsehood has been committed by the defendants in Saudi Arabia it would be actionable in this court, the defendants having been served within the jurisdiction, if it is not justifiable according to the law of Saudi Arabia. There is no affirmative evidence on the point but I think it is reasonable to assume that a false statement to a court in Saudi Arabia would not be justifiable according to the law of that country.

I think therefore that there is jurisdiction in this court to entertain the cause of action for malicious or injurious falsehood.

Mr Boylan has argued however that this court should decline jurisdiction because the present proceedings are an abuse of the process of the court. He has argued that this action invokes the jurisdiction of this court not for the purpose of obtaining any genuine remedy in this court but rather as a means of interfering, to use his word, with the proceedings in the court in Saudi Arabia.

It seems to me that the plaintiffs in this action have resorted to the court in South Australia because the defendants reside here and because the critical question of the mental competence of the first defendant can best be ascertained in South Australia and established one way or the other in this jurisdiction. It is true that the primary purpose of bringing the action is to avert damage in Saudi Arabia which might result from the alleged wrongful acts. The fact that that damage may result from the course of legal proceedings in Saudi Arabia does not appear to me to produce an abuse of the process of this court. It seems to me to be quite legitimate to invoke the jurisdiction of this court in order to obtain relief here which will avert damage to the plaintiffs elsewhere.

I can conceive of circumstances in which the invocation of the jurisdiction of this court for the purpose of influencing proceedings elsewhere might amount to an abuse of its process but I do not think that in the circumstances of this case these proceedings can be so characterised.

In considering whether the interlocutory injunctions sought should be granted I have first to consider whether there is a serious issue to be tried in relation to the cause of action on which the application for them is founded and if that is so whether on the balance of convenience injunctive orders should be made against the second defendant. I deal with the question as to whether there is a serious issue to be tried.

There is clear evidence of the making of the statement to the Saudi Arabian court that it is the unanimous view of the heirs that the death penalty should be applied. Although as I have said the evidence as to the law of Saudi Arabia falls far short of what the court would require in a trial of an action I think that on an urgent application of this kind it is sufficient to enable the court to act upon it and to accept that an unanimous demand of the heirs will or may result in the death penalty if the plaintiffs are convicted.

The key issue to be tried ultimately is the mental competence of the first defendant. The evidence before me is that she is 84 years of age and that she is an inmate of a nursing home. The manager of the nursing home indicated to the process server that she is suffering from Alzheimer's disease and that her condition varies from day to day. There is no direct evidence at this stage of her mental competence. The plaintiff is seeking by means of discovery to obtain the materials upon which such evidence might be obtained.

But in the absence of evidence from the defendants establishing her mental competence, I think that there is sufficient material before me to enable me to say that there is a serious issue to be tried as to that question.

The question whether the statements made by the second defendant as to the unanimity of the view of the heirs was made intentionally and with knowledge that it was not accurate is a matter of inference. I wish to make it quite clear that I make no finding on that point. It is an issue that would have to be decided after a proper trial at which evidence would be heard from the relevant witnesses. It is sufficient for my purpose on this application to find that there is a serious issue to be tried on that question and I think that the materials before me are sufficient for me to say that it would be open to a court to draw that inference.

The materials as to the actual damage which might result to the plaintiffs from the making of the statements are necessarily imprecise at this stage. But I think it is reasonable for the court on this interlocutory application to act upon the view that the consequences to the plaintiffs of these statements may be so dire that actual damage of the kind contemplated by the law as an element of the civil wrong or tort of malicious or injurious falsehood is likely to be proved.

It seems to me therefore that there is a serious issue to be tried in relation to the claims that are made in the action. The question then arises as to whether, on the balance of convenience, the injunction should be granted in an effort to preserve the position until there can be a trial of these issues.

The injunctions which are sought are that the defendants should be restrained from making any further statements to the effect that it is the unanimous view of the heirs that the death penalty should apply and that the second defendant should communicate to the Saudi Arabian Court either personally or through his lawyers that these proceedings in this court to determine the mental competence of the first defendant are in existence.

I cannot see that there is any detriment to the defendants in refraining from making further statements of that kind or from in effect neutralising any statements that already have been made, pending the proper determination of the question of the mental competence of the first defendant, and I think that there is a clear need to preserve the status quo by preventing the making of further statements.

I have considered whether a mandatory injunction requiring the second defendant to communicate the existence of these proceedings to the court in Saudi Arabia is required, bearing in mind that the plaintiffs are legally represented in that country and could convey that information to the court. But on consideration I think that it might be unsafe to rely upon that. The evidence is that the second defendant has purported to convey to the court in Saudi Arabia the unanimous view of the heirs, or in other words that, in effect, he has the authority of his mother to speak for her as well as himself on that question and it may be that in those circumstances the Saudi Arabian Court would be influenced only by a statement by the second defendant himself, who made the original statement, indicating to the court that that question was now under consideration by the court in South Australia.

The consequences of a mistake in this area could be so dire that I think that it would be unsafe to rely simply upon the ability of the plaintiffs and their legal representatives to convey that information to the court. I have reached the conclusion, notwithstanding that courts are reluctant in interlocutory proceedings to grant mandatory injunctions, that in this instance a mandatory injunction as sought is necessary in order to ensure that nothing untoward occurs until this court can resolve the issues in the action.

I therefore make the following orders:

1.That until further order the defendants be restrained and an injunction is granted restraining them whether by themselves, their solicitors, agents or otherwise from advising or further advising the Saudi Arabian Court that it is the unanimous view of the heirs of Yvonne Gilford, deceased, that the death penalty should be inflicted on the plaintiffs in the event that they are found guilty of the intentional murder of Yvonne Gilford.

2.That an injunction is hereby granted requiring that the second defendant or the second defendant by his solicitors or agents forthwith advise the Saudi Arabian Court of these proceedings and that the issue of the mental competence of the first named defendant, Muriel Lois Gilford, is to be determined by this honourable court in these proceedings.

3.That the defendants discover and produce to the plaintiffs within five days all the documents described in paras.22 and 24 of the affidavit of Michael Robert Burnett, sworn 5 August 1997.

4.That Eldercare Incorporated of 19 Godfrey Terrace, Leabrook, in the State of South Australia, discover and produce to the plaintiffs forthwith all the documents described in para.27 of the affidavit of Michael Robert Burnett.

5.That in respect of any documents produced to the plaintiffs or the plaintiffs' solicitors pursuant to this order the plaintiffs be released from an undertaking to keep the same confidential to the extent that the plaintiffs and/or the plaintiffs' solicitors be at liberty to produce the documents or copies thereof for Saudi Arabian courts or to the plaintiffs' Saudi Arabian solicitors.

6.That a legally qualified medical practitioner be permitted to inspect any documents produced by the defendants or Eldercare Incorporated pursuant to this order and to provide to the plaintiffs' solicitors a medical report on the contents thereof.

7.That the plaintiffs and the plaintiffs' solicitors be at liberty to provide such a report to the Saudi Arabian court and to the plaintiffs' Saudia Arabian solicitors.

8.That the question of costs be reserved. There will be liberty to either party to apply further on this application on 24 hours' notice.

There will be an order that the documents produced by Eldercare Limited to the plaintiffs' solicitors pursuant to this order be made available for inspection and copying by the solicitors for the defendant.