Malcolm Bruce Duncan v Allen and Unwin

[2004] NSWSC 1069

CITATION:	Malcolm Bruce Duncan v Allen & Unwin & Ors [2004] NSWSC 1069 revised - 15/11/2004
HEARING DATE(S):	9 November 2004
JUDGMENT DATE:	9 November 2004
JURISDICTION:	Equity Duty List
JUDGMENT OF:	Bergin J
DECISION:	Application refused with costs
CATCHWORDS:	[DEFAMATION] - [INJUNCTION] - Application for injunction to restrain the further publication of a book that has been on sale for about 2 months - subject matter of public interest and concern - plaintiff in political arena
CASES CITED:	Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 Church of Scientology of California Incorporated and Another v Reader's Digest Services Pty Ltd (1980) 1 NSWLR 344
PARTIES :	Malcolm Bruce Duncan (Plaintiff) Allen & Unwin (First Defendant) Ingrid Van Beek (Second Defendant) Paola Totaro (Third Defendant)
FILE NUMBER(S):	SC 5986/04
COUNSEL:	M.B. Duncan (in person) M.G. Lynch (defendants)
SOLICITORS:	M.B. Duncan (in person) Corrs Solicitors (first and second defendants) Mark Polden (third defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

Bergin J

9 November 2004

5986/04 MALCOLM BRUCE DUNCAN v ALLEN & UNWIN & ORS

JUDGMENT

1 This is an application by Malcolm Bruce Duncan, the plaintiff, a member of the New South Wales bar, appearing in person today, seeking to injunct the defendants from publishing, distributing or offering for sale any copy of a publication titled "In the Eye of the Needle” (the book). The first defendant is the publisher of the book. The second defendant, Ingrid Van Beek, is the author of the book and the third defendant, Paola Totaro, is, I understand, a journalist who has written an article reviewing the book.

2 The plaintiff has for some time been an advocate against the establishment of the injecting centre in Kings Cross. His advocacy has been in his capacity as the head of the Chamber of Commerce in Kings Cross prior to its winding up in recent times. It is also the case that the plaintiff entered further into the political arena as an independent, seeking election in the most recent State election. The book makes a number of references to the plaintiff, about which the plaintiff apparently intends to complain by bringing proceedings in the Defamation List of this Court or other appropriate court.

3 The areas of the book upon which plaintiff relies as conveying imputations, allegedly defamatory of him, are contained in a schedule to his affidavit sworn on 9 November 2004. I do not need to comment upon each of those alleged imputations in detail. However, Mr Duncan relies particularly on two of them to propound an entitlement to this injunction. The first is said to be conveyed by what appears at page 218 of the book (within the Postscript) in the following terms:

In February 2004 the Supreme Court [Equity Division] issued an order for the winding up of the Kings Cross Chamber of Commerce and Tourism after it discontinued payments to reimburse Uniting Cares ' outstanding legal costs, a result of the Chamber's case challenging Uniting Cares ' legal status to hold the licence to operate the MSIC. A liquidator was appointed who subsequently reported that there were no assets or records. The file was closed and the chamber no longer exists as a legal entity.

4 The plaintiff claims that the imputation that is conveyed by that paragraph is that he is "a public officer who conducts a public body's affairs improperly and without due diligence”. That may be an imputation that is conveyed having regard to the statement that there were no assets or records, but it will be a matter in respect of which, even if conveyed and even if defamatory, there needs to be a full hearing . The report of the Court proceedings may be a relevant matter in respect of which the defendants to the defamation proceedings may rely upon.

5 The second area is at page 219 of the book, heavily emphasised by the plaintiff as the one that would be persuasive in the Court granting an injunction. It is in the following terms:

In August 2004 Paul Haege, from the former Chamber of Commerce, rang to ask me if his 16 year old daughter and three of her Year 10 classmates could drop into the centre to discuss MSIC. He said that they were doing a project on the MSIC and that while his daughter had heard his views, he thought it only fair that she heard about it from our perspective too.

6 The plaintiff alleges that the imputation that is conveyed is that the plaintiff is a person who is not objective. In argument I indicated to the plaintiff that prima facie such an imputation did not seem to arise, to which the plaintiff responded that it was contextual.

7 In a busy duty list it is difficult to ascertain the whole of the context, but certainly there is a claim that the whole of the publication conveys the imputation that the plaintiff is "an uncaring, morally bankrupt, lying political candidate, unsympathetic to the plight of injecting drug users and opposed to the general precepts of the right thinking majority". If that is an imputation that is conveyed, it is a most serious one indeed at a prima facie level.

8 The problem the plaintiff faces is that this book was published about two months ago. It has been distributed and it is apparent from a comment from the bar table that the books available for sale, at least in the plaintiff's local area, have all been purchased.

9 In reliance upon Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153, the plaintiff submitted that his private character has been the subject of attack, and that this is an important factor that the Court would take into account in deciding whether to grant an injunction. The plaintiff relied upon the following part of the headnote to that case, which states:

The private behaviour or character of a public figure can only become a matter of public interest relevant to that issue under s12 of the Defamation Act in one of two ways: (a) because it has some bearing upon his capacity to perform his public duties and (b) because he makes it such a matter himself.

10 The statements upon which the plaintiff relies in the schedule to his affidavit continuously link him to his role in local politics within the former Chamber of Commerce. There is, so far, no reference to him in his so called private capacity, that being a citizen and a professional barrister.

11 On the assumption that there will be a serious issue to be tried when defamation proceedings are commenced, I am not satisfied that the balance of convenience favours the granting of an injunction. There is no defamation case as yet mounted, although I accept unreservedly that the plaintiff intends to take advice to settle any imputations that are conveyed in the book and, subject to that advice, more probably than not will commence defamation proceedings in which the appropriate remedy of damages will be sought.

12 Mr Lynch, who appears for the defendant, relied upon Hunt J's decision in the Church of Scientology of California Incorporated and Another v Readers’ Digest Services Pty Ltd (1980) 1 NSWLR 344. In particular, Mr Lynch relied upon the overriding and independent principle that an injunction will not go which will have the effect of restraining discussion in the press or in books or in magazines of matters of public interest or concern.

13 This is an exquisite example of a matter of public interest or concern. I am not satisfied in all the circumstances that I should grant the injunction restraining the defendants in the terms sought.

14 The plaintiff is to pay the defendants' costs up to 11am today.

15 By consent this matter is transferred to the Common Law Division and entered in the Defamation List. It is listed before the Defamation List Judge on 22 November 2004.

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Last Modified: 11/17/2004