Missingham v Shamin - [2011] NSWSC 1208

This decision has been amended. Please see the end of the decision for a list of the amendments.

Supreme Court

New South Wales

Case Title: Missingham v Shamin

Medium Neutral Citation: [2011] NSWSC 1208

Hearing Date(s): Wednesday, 28 September 2011

Decision Date: 28 September 2011

Jurisdiction: Equity Division - Duty List

Before:
Brereton J

Decision:
Defendant by itself and its servants and agents restrained from disclosing terms of settlement except in specified circumstances.

Catchwords:
INTERLOCUTORY INJUNCTIONS - Plaintiff contends defendant in breach of confidentiality clause of deed entered into in settlement of defamation proceedings - strongly arguable defendant in breach by making of posts on internet forum - defendant contends relief should be refused as plaintiff lacks clean hands - not established court would decline final relief on this basis - assertion publication complained about in public domain as a result of pronouncements in Court proceedings - in public domain to limited extent entailing that confidentiality not lost - plaintiff has arguable case for final relief - balance of convenience favours grant of injunction as obligation of confidence would be completely defeated if injunction refused - no evidence of prejudice to be suffered by defendant - injunctory relief granted.

Legislation Cited:

Cases Cited:

Texts Cited:

Category: Procedural and other rulings

Parties:
Walter Patrick Missingham (plaintiff)
Alex Shamin (defendant)

Representation

- Counsel:
Counsel:
Mr D Roche (plaintiff)
Mr B Goldsmith (solicitor, defendant)

- Solicitors:
Solicitors:
Yeldham Price O'Brien Lusk (plaintiff)
Goldsmiths Lawyers (defendant)

File number(s): 2011/305541

Publication Restriction:

JUDGMENT (EX TEMPORE)

HIS HONOUR: By summons filed on 22 September 2011 the plaintiff Walter Patrick Missingham sues the defendant Alex Shamin for an injunction restraining the defendant from publishing any matter concerning the terms of settlement of earlier proceedings in this Court, or the contents of a deed of settlement entered into in connection with those proceedings, other than as provided for in that deed.
On 22 September 2011 Rein J, sitting as Duty Judge, granted an interim ex parte injunction in the following terms:
...
3. Upon the usual undertaking of the Plaintiff as to damages, the Defendant, by himself, his servants and agents, be restrained from posting or publishing or further posting or publishing any matter concerning:
3.1 the terms of the settlement of NSW Supreme Court Proceedings 2010/00397452; or
3.2 the contents of the Deed of Settlement, dated 7 September 2011, other than as provided for in clause 8.2 of the Deed, until further order.
...
COURT DIRECTS THAT
6. The Defendant is to remove the posting currently appearing under the entry "Re: Walt Missingham by alexshamin Sat Sep 17, 2011 3:14am" on the website by 6:00pm on 22 September 2011.
The summons was adjourned to the duty list today. Although the order was expressed to be "until further order", and although at the outset the matter may have been contemplated by counsel as an application by the defendant to discharge the ex parte injunction, I have treated it, being the first return of an ex parte injunction, as…

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 Missingham v Shamin

Details

AGLC: Missingham v Shamin [2011] NSWSC 1208
Case: [2011] NSWSC 1208
Decision Date: 28 September 2011

CaseChat Overview and Summary

In the matter of Missingham v Shamin, the plaintiff, Missingham, sought an interlocutory injunction against the defendant, Shamin, alleging that Shamin had breached a confidentiality clause contained in a deed that settled prior defamation proceedings between the parties. The court was required to determine whether Shamin had indeed breached the confidentiality clause by making certain posts on an internet forum and whether Missingham had a strong case for relief at the interlocutory stage. Furthermore, the court had to consider Shamin's contention that Missingham lacked clean hands, which might entitle Shamin to refuse relief, and whether the balance of convenience favoured granting the injunction.

The court found that while some of the content complained of was already in the public domain due to pronouncements made during the court proceedings, this did not entirely negate the confidentiality obligation. The court was satisfied that Missingham had a strongly arguable case for relief at the interlocutory stage. Regarding the clean hands doctrine, the court noted that it was not established that the court would decline final relief on this basis. The balance of convenience clearly favoured granting the injunction, as refusing it would completely defeat the obligation of confidence. There was no evidence suggesting that Shamin would suffer prejudice if the injunction were granted.

The court granted the interlocutory injunction, restraining Shamin from making any further posts on the internet forum that might breach the confidentiality clause. The court's decision was based on the arguable case presented by Missingham, the limited extent to which the information was already in the public domain, and the balance of convenience favouring the grant of the injunction.

Orders