Moran v Schwartz Publishing Pty Ltd
[2014] WASC 334
•18 SEPTEMBER 2014
MORAN -v- SCHWARTZ PUBLISHING PTY LTD [2014] WASC 334
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 334 | |
| 18/09/2014 | |||
| Case No: | CIV:1894/2014 | 30 JUNE 2014 | |
| Coram: | KENNETH MARTIN J | 1/07/14 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Interlocutory injunction refused | ||
| A | |||
| PDF Version |
| Parties: | TOBIAS FRIEDRICH MORAN SCHWARTZ PUBLISHING PTY LTD VIRGINIA PETERS |
Catchwords: | Interlocutory injunctions Defamation Book Injunction to restrain publication Principles governing grant or refusal Public interest in free speech Application for injunction to restrain publication of a book about the murder of a former girlfriend Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11 Imputation of suspicion on reasonable grounds Balance of convenience |
Legislation: | Defamation Act 2005 (WA) |
Case References: | American Cyanamid Co v Ethicon Ltd [1975] AC 396; [1975] 1 All ER 504 Associated Newspapers Ltd v Dingle [1964] AC 371; [1962] 2 All ER 737 Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 Bonnard v Perryman [1891] 2 Ch 269; [1891-4] All ER Rep 965 Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 Fraser v Evans [1969] 1 QB 349; [1969] 1 All ER 8 Lewis v Daily Telegraph Ltd [1964] AC 234 Lovell v Lewandowski [1987] WAR 81 Maher v Nationwide News Pty Ltd [2013] WASC 254 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
SCHWARTZ PUBLISHING PTY LTD
First Defendant
VIRGINIA PETERS
Second Defendant
Catchwords:
Interlocutory injunctions - Defamation - Book - Injunction to restrain publication - Principles governing grant or refusal - Public interest in free speech - Application for injunction to restrain publication of a book about the murder of a former girlfriend - Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11 - Imputation of suspicion on reasonable grounds - Balance of convenience
Legislation:
Defamation Act 2005 (WA)
Result:
Interlocutory injunction refused
Category: A
Representation:
Counsel:
Plaintiff : Mr M L Bennett
First Defendant : Mr M C Goldblatt
Second Defendant : Mr M C Goldblatt
Solicitors:
Plaintiff : Bennett + Co
First Defendant : Carmel Galati
Second Defendant : Carmel Galati
Case(s) referred to in judgment(s):
American Cyanamid Co v Ethicon Ltd [1975] AC 396; [1975] 1 All ER 504
Associated Newspapers Ltd v Dingle [1964] AC 371; [1962] 2 All ER 737
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618
Bonnard v Perryman [1891] 2 Ch 269; [1891-4] All ER Rep 965
Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716
Fraser v Evans [1969] 1 QB 349; [1969] 1 All ER 8
Lewis v Daily Telegraph Ltd [1964] AC 234
Lovell v Lewandowski [1987] WAR 81
Maher v Nationwide News Pty Ltd [2013] WASC 254
- KENNETH MARTIN J:
(This judgment was delivered extemporaneously on 1 July 2014 and has been edited from the transcript.)
1 I am determining the application of the plaintiff for an urgent interlocutory injunction to restrain the forthcoming publication by the first defendant of a book, both in physical hard copy and in electronic format. The book is the work of the second defendant, Ms Virginia Peters. It is entitled Have You Seen Simone? (the Book).
2 The Book describes a private investigation made over time by the second defendant. The Book is described in accompanying publicity as a work of so-called creative non-fiction.
3 Ms Peters attended at a coronial inquest held in 2007 in respect of the 2005 death in Lismore, New South Wales, of a 25-year-old German backpacker, Simone Strobel.
4 The deceased's then German boyfriend was also in Australia in 2005 in the company of Simone. As a couple they had been travelling around the east coast of Australia. At a point they were joined by two more young tourists from Germany. That was just prior to the time of Simone's murder at Lismore in February 2005.
5 Simone's boyfriend in 2005 was the plaintiff, then known as Tobias Suckfuell. He is now known as Tobias Frederick Moran, after a change of name, following his marriage to an Australian woman sometime around 2012 (see folio 3, affidavit of plaintiff).
6 It appears that the plaintiff, in early 2005, and his then-girlfriend, the late Simone Strobel, as German citizens were taking a year off, on working visas in Australia, travelling around by camper van - particularly along the east coast - in Queensland and along northern parts of the New South Wales coast, including Byron Bay and Lismore. The plaintiff and Simone had been recently joined from Germany by the plaintiff's sister, Katrin, and another male friend from the same village in Germany, a Mr Jens Martin.
7 The present application comes on very urgently, with the writ being filed on Thursday afternoon, 26 June 2014, the plaintiff's supporting affidavit materials filed across the course of the following Friday, and with the matter then listed before me on Monday afternoon for an urgent inter partes hearing. I delivered oral reasons (then unrevised) on Tuesday morning at 9.00 am, refusing the interlocutory injunction sought.
8 For the purposes of the hearing, I had the benefit of looking at the published Book of Ms Peters in a number of formats. First was in electronic fashion, downloaded to a laptop, provided to me over the weekend courtesy of the plaintiff's solicitors.
9 I was later provided, over the course of the weekend, with a manuscript copy of the Book, which I identify as exhibit 1, that I also worked through.
10 On Monday afternoon, during the course of argument, Mr Goldblatt, counsel for the defendants, provided me with a copy of the actual Book which is now published and available for sale in parts of Australia. That final iteration I marked as exhibit 2.
11 There was no objection from either side to me having and reviewing this material for the purposes of the hearing.
Evidence relied upon at the interlocutory hearing
12 As indicated, I have the affidavit by the plaintiff, that is, Mr Tobias Moran, as sworn on Thursday, 26 June 2014.
13 Mr Moran, in his affidavit, does not provide a residential address. He identifies his address as care of the plaintiff's solicitors in Perth. Nor does he tell me that he is an Australia citizen. I infer he is presently residing in this country, based on other materials before me.
14 Mr Moran provides background plus an extract of the Book. This he asks to be kept confidential at par 16, and some other information. That is not appropriate, given the Book's publication.
15 Essentially, the plaintiff complains Ms Peters' Book seriously defames him. He submits the content of the Book goes beyond merely attributing suspicion to him over Simone's 2005 murder at Lismore. The plaintiff's defamation grievance is that an ordinary reader of the text of the Book would come to a conclusion that the words of the Book by their natural and ordinary meaning carry an imputation against him which goes beyond suggesting any level of reasonable suspicion. The argument rises to a level that the Book, he contends, carries a clear imputation that the plaintiff is guilty of the crime of murder in respect of the 2005 death of Simone Strobel at Lismore.
16 For the plaintiff's application, I was provided with three further affidavits sworn by Ms Tanya Onofaro, a solicitor for the plaintiff, and containing various materials. Ms Onofaro's first affidavit is of Thursday, 26 June, and I also have her second and third affidavits of 30 June. None of this material is objected to.
17 From the defendants, as well as the copy of the Book as published, I received two affidavits sworn by a local solicitor acting as agent for the New South Wales solicitors for both defendants. These are the two affidavits of Ms Carmelina Galati, each sworn on Sunday, 29 June 2014, with their attachments.
18 The attachments provide me with extracts from the transcript of the New South Wales coronial inquest into the death of Simone Strobel, as obtained by the second defendant (at page 29, attachment CG2). Also provided were the reasons of the Coroner as CG4 (at between pages 77 and 87).
19 The Coroner's formal finding (between pages 84 and 87) was that Simone Strobel died at Lismore on or about 12 February 2005. The Coroner was satisfied that the direct cause of Simone's death was more likely than not suffocation or smothering, asphyxia. The Coroner's conclusion was that Simone's death had been caused by the action of a person or persons unknown.
20 Ms Galati's first affidavit (attachment CG7) sets out an extract of a transcript of Ms Peters' meeting at Perth in February 2011 with the plaintiff. I was only provided with the extract from pages 104 to 107. This extract displays terms of a discussion between the plaintiff and Ms Peters over the signing of an agreement in respect of the permitted use of material to be provided in that interview. (But I note that no version of an executed document as between those parties was provided within the materials for this application.)
21 Ms Galati's affidavit also contains, and significantly, to my ultimate conclusion (as attachment CG10 at between pages 116 and 210) a large volume of material extracted from the internet canvassing the death of Simone and a suggested involvement of the plaintiff in her death. This media related material spans from 2005 up to 2014.
22 The murder of Simone Strobel at Lismore in 2005 looks to have been constantly reported about in the Australian electronic and other media on and off at various points since February 2005. In many of the media reports, if not most, the plaintiff is usually mentioned and named (mostly as Tobias Suckfuell). Generally, references to the plaintiff are in a context of his being at the time in February 2005, the boyfriend of Simone, and also in the context of him being at least suspected of being involved in her murder.
23 It was pointed out during argument, correctly, by Mr Goldblatt for the defendants that some of these media publications go demonstrably further than just suggesting suspicion, or suspicion on reasonable grounds about the plaintiff's involvement in the murder of Simone Strobel. They actually make an assertion of his outright guilt of that crime. The high water mark is a Yahoo! 7 extract at page 179. This is a transcript of a television programme, 'Sunday Night', that went to air nationally across Australia on the Seven Network on Sunday, 20 November 2011, under the by-line heading 'Australia's Prime Suspect'. The transcribed text of the broadcast is between pages 179 and 182. I was invited to watch the segment as broadcast, which is still publicly accessible over the internet. I did that, there being no objection raised.
24 Certainly, as one views the now online 2011 'Sunday Night' story it is unequivocally asserted that the plaintiff is guilty in respect of the murder of Simone Strobel.
25 Other materials before me on behalf of the defendants, as found in Ms Galati's second affidavit, also of 30 June 2014, concerned a proposal which she said had been sent to the plaintiff on 13 February 2011, in terms of the basis upon which Ms Peters would conduct her 2011 interview with him at Perth.
The law regarding interlocutory imputations and defamation
26 For the law concerning interlocutory injunctions before a trial, the leading authority in Australia, of course, is the decision of the High Court of Australia in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57.
27 Six Justices of the High Court delivered reasons in that case. The majority comprised Gleeson CJ, who delivered a joint judgment with Crennan J and, as well, the joint reasons of Gummow J and Hayne J, reaching the same conclusions. Two judges of that six-person court dissented (Kirby J and Heydon J). I mention aspects of their dissenting reasons in a moment.
28 In ABC v O'Neill the views of the majority justices as to the correct test for an interlocutory injunction were expressed in slightly different terms. Gummow and Hayne JJ at [65], by reference to the earlier decision of the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618, prefer a formulation for the need for a plaintiff to show a prima facie case as a first level enquiry, and with the next and related enquiry as to the balance of convenience or, as they expressed it, from Beecham v Bristol Laboratories:
Whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.
29 The joint reasons of Gleeson CJ and Crennan J display slightly different terminology, see [19] for their Honours' formulation. However, they basically accept the organising principles of Gummow and Hayne JJ. The joint reasons of Gleeson CJ and Crennan J at [19] use the terminology of a 'serious question to be tried'. But their Honours go on to explain what they mean by that expression, so it is clear that their formulation did not differ materially from the approach of Gummow and Hayne JJ.
30 Those majority reasons on this issue may be contrasted with the approach of Kirby J. His Honour said he preferred the serious question to be tried test and his Honour addressed that issue at [138] by reference to the approval of Lord Diplock's test in American Cyanamid Co v Ethicon Ltd [1975] AC 396; [1975] 1 All ER 504.
31 It needs to be said immediately that at present I am not at all deciding the plaintiff's defamation case at this time in terms of its ultimate merit. Rather, I am only looking at whether he has shown a prima facie case - in terms of showing a defamation against him as regards showing an asserted imputation of his guilt as the murderer of Simone Strobel at Lismore in 2005 by the defendants in respect of the book Have You Seen Simone? as the impugned publication. Even if he has, I must still weigh the balance of convenience.
32 I am weighing the plaintiff's defamation arguments against the foreshadowed defences of the defendant, chiefly justification, but a lesser level justification and with something of a twist. The defendants make it plain at this time that the defamatory imputation they will seek to justify at a trial is not that the plaintiff is guilty of the crime of murdering Simone Strobel. Rather, the justification defence, as presently foreshadowed, is only at the level that the defendants say that it is true that there are reasonable grounds to suspect that the plaintiff was the perpetrator of that 2005 crime (a justification level stance sometimes referred to as a Chase level 2 imputation, by reference to the case of Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11, and explained in Mullis A and Parkes R, Gatley On Libel And Slander (12th ed, 2013) [11.13].
33 What makes the present injunction application somewhat unique is that there is an established body of case law in defamation concerning situations where a blanket justification defence is foreshadowed by defendants at a future trial, in resisting a plaintiff's application for an interlocutory injunction. However, here, where the imputation complained of by the plaintiff is that he has been defamed by an imputation in a forthcoming Book that he is guilty of the crime of murdering Simone Strobel, the level of the foreshadowed justification of the defendants' Polly Peckdefence is merely a foreshadowed position at a future trial of the defendants showing 'reasonable grounds to suspect' the plaintiff as regards perpetrating the crime of Simone Strobel's 2005 murder.
34 There now appears to be a position of some conceptual difference as between Australia and England about the law upon an issue of interlocutory injunctions sought against publications complained of as being defamatory.
35 For England the position has been stated by Gatley to be fairly rigid, to the effect that if a defendant indicates a defence of justification, at trial, or of qualified privilege or fair comment or another defence of that kind, such an indication is largely conclusive towards negating the prospect of a plaintiff obtaining an interlocutory injunction. Gatley explains this at [25.6] and [25.7]. At [25.6], Gatley refers to a general rule for England, stated as:
[W]here the defendant contends that the words complained of are true, and asserts that he will plead and seek at trial to prove the defence of justification, the court will not grant an interim injunction unless, exceptionally, the court is satisfied that such a defence is one that cannot succeed.
36 That is grounded upon Bonnard v Perryman [1891] 2 Ch 269; [1891-4] All ER Rep 965 and observations therein of Lord Coleridge at 284.
37 The learned authors of Gatley contrast the English position to other jurisdictions, at [25.7]. They observe that for Australia the High Court of Australia recently scrutinised the rule in ABC v O'Neill and say:
The court undertook an extensive review of both English and Australian case law, demonstrating how the latter had absorbed in large measure the reasoning behind the ruling in Bonnard v Perryman, that freedom of speech was paramount without converting it into a rigid and inflexible maxim. However, Heydon J, in a powerful and polemical dissenting judgment, argued for the abandonment of the rule as being wholly inappropriate in the modern world.
38 The learned authors then quote from the dissenting reasons of Heydon J in ABC v O'Neill. It was suggested that in modern times there should no longer be constraints, either from Bonnard v Perryman, or even under a more flexible application of that rule as explained by the majority Justices in ABC v O'Neill.
Australian Broadcasting Corporation v O'Neill: its defamation context
39 The facts underlying ABC v O'Neill bear some broad parallels to facts of the present application. Hence, I shall spend a little time relating them.
40 In ABC v O'Neill there was a proposed television broadcast in respect of a convicted murderer then serving a life sentence in Tasmania. O'Neill had been convicted in 1975 for the murder of a young boy. He also confessed to killing another young boy. As O'Neill was to serve a life sentence for the first murder, he was not further prosecuted by Tasmanian authorities over the second killing which he had admitted.
41 Whilst serving his life sentence, O'Neill learned of a forthcoming ABC television programme which was about to suggest that, not only had O'Neill committed two earlier mentioned murders, but that he had also committed other murders, including involvement in a notorious disappearance of the three Beaumont children in South Australia in 1966.
42 A judge of the Tasmanian Supreme Court restrained the broadcast of the forthcoming television programme upon O'Neill's application. There followed an urgent appeal, but the interlocutory decision was upheld by two (Evans and Blow JJ) of the three Justices of the Full Court of the Supreme Court of Tasmania (Slicer J dissenting).
43 The matter was then taken further by an urgent application for special leave and appeal to the High Court of Australia. By four to two, the High Court reversed the Tasmanian decision and discharged the interlocutory injunction. The majority Justices were those I have indicated; namely, Gleeson CJ and Crennan, Gummow and Hayne JJ.
44 Nevertheless, for the present application, it is helpful to begin with the observations of Kirby J who, albeit dissenting in the overall result, uncontroversially explained the relevant defamation law in comprehensive fashion.
45 Kirby J explained Australia's position in terms of a so-called flexible test. His Honour contrasted the Australian position with England, as indicated by cases such as Fraser v Evans [1969] 1 QB 349; [1969] 1 All ER 8. Lord Denning MR had observed that if a defendant contended they proposed to raise the defences of justification or fair comment at trial, there was virtually no prospect of getting an interlocutory injunction. For Australia, in contrast, Kirby J observed at [142]:
However, in Australia, appellate courts in most States have accepted a more flexible rule. They have acknowledged that the competing considerations of free speech and free press, as well as reputation and privacy, can be accommodated adequately by the application of the normal principles for the grant for interlocutory injunctions. Thus the 'flexible rule' has been adopted in New South Wales, Victoria, South Australia, and more recently in Western Australia. Some authority in Australia favours the 'rigid approach'. (footnotes omitted)
46 His Honour's reference to Western Australian cases mentioned the Full Court's decision, Lovell v Lewandowski [1987] WAR 81 (see ABC v O'Neill fn 213).
47 In ABC v O'Neill, a convicted murderer was serving a life sentence. He had as well confessed to another murder. Hence, even if O'Neill succeeded in his defamation action against the ABC at a trial, the prospect of his demonstrable bad character loomed large, this being clearly established by his murder conviction and confession to a further murder. In such circumstances, from a defamation cause of action perspective, there manifested a realistic prospect of O'Neill receiving, even if successful in his action against the ABC, only a nominal damages award. That possible negative damages outcome was a significant consideration to the four majority Judges. Gleeson CJ and Crennan J dealt with that consideration at [16] of their reasons.
48 But in ABC v O'Neill an even more significant consideration, acknowledged as deriving as far back as Blackstone's Commentaries and recognised as incorporated in the observations of Lord Coleridge in Bonnard v Perryman, was the importance in free societies of the public interest in freedom of speech. In the present application that factor also presents as a significant consideration.
49 In ABC v O'Neill Gleeson CJ and Crennan J observed at [26]:
First, it is not the fact that allegations of serious criminal conduct usually become known to the public only as a result of charges and subsequent conviction. On the contrary, the process often works in reverse: charges and subsequent conviction often result from the publication of allegations of serious criminal conduct. Subject to the law of contempt (and, of course, the law of defamation) media outlets are free to make, and frequently make, allegations which are directed towards, or which have the effect of, promoting action by the authorities. Condemnations of trial by media sometimes have a sound basis, but they cannot be allowed to obscure the reality that criminal charges are sometimes laid as a response to media exposure of alleged misconduct. The idea that the investigation and exposure of wrongdoing is, or would be, the exclusive province of the police and the criminal justice system, bears little relation to reality in Australia, or any other free society. There are heavily governed societies in which the police and other public authorities have the exclusive capacity to make, and pursue, allegations of misconduct; but not in ours. Indeed, in our society allegations of misconduct are sometimes made against the police and public officials.
50 Gleeson CJ and Crennan J made further observations as to the policy importance of a promotion of free speech at [31].
51 Their Honours' observations concerning reputation and nominal damages followed at [33].
52 Those observations were expressly agreed in by Gummow and Hayne JJ, constituting the ABC v O'Neill majority, see [87] and [89] of their Honours' reasons.
Evaluation
53 First, I turn to the plaintiff's arguments seeking to establish a prima facie case. All the plaintiff need do at present is establish a respectable argument that from the materials before me, he can show at a trial that the Book conveys overall to a reasonable reader the imputation the plaintiff is the person responsible for the murder of his then girlfriend, Simone Strobel, at Lismore in 2005.
54 Certainly, my reading of one chapter in the Book dealing with Ms Peters' February 2011 visit to Perth and an interview that unfolded then with the plaintiff, is that the imputation of guilt is arguably capable of being made. But a book, particularly a book of some 300 pages, needs to be read as a whole with extracts assessed in the overall context of the text as a whole.
55 What is significant to me at this time in terms of evaluating a prima facie case or serious question for trial from the plaintiff, I think, are terms of an introduction found before the commencement of part 1 of the Book, then a similarly worded conclusion as is found at the end of the Book, at page 299.
56 I mention both. I assess them as highly relevant towards evaluating what is a unique case - in circumstances where this plaintiff complains of a high level (Chase level 1) imputation of outright guilt against him (see Gatley, [11.13]), but the defendants respond by foreshadowing only a defence contention that they will seek to justify at a future trial, the suspicion of the plaintiff on reasonable grounds of committing the crime of murder in respect of the death of his then girlfriend in 2005, that is, an intermediate or Chase level 2 imputation.
57 Page 3, found at the commencement of the text of the Book, displays the bordered words below:
Prior to this book's publication, the publisher received a letter from solicitors acting for one of the subjects in this book which raised a threat of defamation proceedings. For the avoidance of doubt, this book does not and cannot say who is guilty of murdering Simone Strobel. No one has ever been charged with any offence relating to Simone's death by the New South Wales police force. Readers must not read anything in this book as concluding, or even inferring, that any individual mentioned in this book is guilty of murder. This book presents facts taken from discussions with those who were present in the locality when Simone disappeared and were members of investigating authorities, and from evidence presented at, as well as the findings of, the coronial inquest into her death. The circumstantial evidence and facts set out in this book do, of course, mean that there is a suspicion (one shared by the New South Wales Police Force) about who may have murdered Simone, but neither the author nor the publisher say anything further than this.
58 These introductory bordered words at page 3 (before that chapter deals with the events of Monday, 14 February 2005) do not expressly identify the plaintiff. He is seen not mentioned there as being a possible subject of those generic qualifying remarks, cautioning the reader that the Book only raises suspicions, rather than saying who actually committed the crime of murder.
59 Similarly framed but more specific concluding words then appear at the end of the Book (at page 299). They do mention the plaintiff, albeit by his former name, Tobias Suckfuell. In slightly different terms, this bordered passage, found after the end of the text of the last chapter of the Book, relates:
Prior to this book's publication, the publisher received a letter from solicitors acting for Tobias Suckfuell which raised a threat of defamation proceedings. For the avoidance of any doubt, this book does not and cannot say that Tobias is guilty of murdering Simone Strobel. He has, of course, never been charged with any offence relating to Simone by the New South Wales Police Force. Readers must not read anything in this book as concluding, or even inferring, that he is guilty of murder. This book presents facts taken from discussions with those who were present in the locality when Simone disappeared and with members of investigating authorities, and from evidence presented at, as well as the findings of, the coronial inquest into her death. The circumstantial evidence and facts set out in this book do, of course, mean that there is a suspicion (one shared by the New South Wales Police Force) that he may have murdered Simone, but neither the author nor the publisher state anything further than this.
(my emphasis in bold)
61 The ordinary reasonable reader is a hypothetical creature. This is a person who does not read an article or a Book like a lawyer does. But the hypothesised reader would read everything, be literate in the English language and by definition be reasonable. The hypothetical reasonable reader can still make leaps of logic, be suspicious and inquisitive, but is not avid for scandal: see my reasons in Maher v Nationwide News Pty Ltd [2013] WASC 254 [18] - [21]. In Lewis v Daily Telegraph Ltd [1964] AC 234, perhaps the leading defamation decision from England of last century, Lord Devlin (at page 277) used an analogy of smoke and fire. Towards the aphorism 'Where there's smoke, there may be fire' Lord Devlin observed that a writer or speaker needed to be careful using their words - so that a writer/speaker did not overstep and so imply guilt - when talking about smoke, if really the impression created overall was of fire.
62 That observation was picked up by a plurality of the High Court of Australia in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 [11]. That case's circumstances concerned a barrister's house which had burnt down while he and his family were away on holiday in Europe. There followed published suggestions that a suspicious fire was a convenient event - as there had been an ongoing planning redevelopment dispute and a prior refusal of permission for redevelopment of the site by the local authority. In that case, the amount of smoke did arguably suggest something more sinister.
63 Here a jury or a trial judge sitting alone will ultimately have to decide, amongst other things, whether what is found at the start and end of this Book, read by the ordinary and reasonable reader, is enough to deliver a reasonable reader to a position that there may be suspicion, but ultimately no suggestion of anyone's guilt as regards the murder of Simone Strobel in 2005.
64 As a part of my present interlocutory examination of the strength of the plaintiff's defamation case, I need to record that there are certain facts before me indicating that the contention of the defendant, in terms of it showing reasonable grounds for suspicion as to the plaintiff being the perpetrator of the 2005 murder of Simone Strobel, is a respectable position.
65 I accept, of course, Mr Bennett's argument that more evidence from people who would only assert, 'I suspected X of the crime' is unhelpful and inadmissible towards showing reasonable grounds. Indeed, the very notion of showing a suspicion upon reasonable grounds must axiomatically require an identification of some reasonable grounds, that is, showing objective facts, upon which a reasonable suspicion could be grounded. Presently, however, in what is very much an interlocutory (pre-trial) context, some following facts emerge, such that even viewing the matter neutrally at an early point in the case, from the materials before me it emerges that:
(a) as of February 2005, the plaintiff and Simone Strobel had been boyfriend and girlfriend for some six and a half years;
(b) in 2005, they were both German citizens visiting Australia;
(c) in February 2005, the plaintiff and Simone were together travelling through Queensland and New South Wales in a campervan around the east coast of Australia in the company of two other persons, the plaintiff's sister, Katrin, and a Mr Jens Martin, on one year working visas;
(d) although they had had a longstanding romantic relationship, in the days before Simone disappeared, their relationship had deteriorated and they were arguing;
(e) personal diary entries made by both the plaintiff and Simone, and translated from German, confirm they had not been getting on well in the days before Simone disappeared;
(f) there had been some verbally aggressive behaviour from the plaintiff (by which he had been abusive towards Simone) on the evening she was last seen alive;
(g) Mr Jens Martin gave evidence at the 2007 Lismore coronial inquest;
(h) the plaintiff did not give evidence at the coronial inquest;
(i) on the evening before Simone disappeared the travelling party of four had been observed to be excessively consuming alcohol at a Lismore hotel;
(j) the party of four had later that evening been refused entry to another Lismore hotel and this event was captured on camera;
(k) there were suggestions the four had consumed further alcohol when they returned to their camping ground on the evening Simone disappeared and they had ingested some marijuana;
(l) there was evidence of an argument involving Simone and the plaintiff at the caravan park before she had walked off that evening;
(m) the remaining party of three, namely, the plaintiff, his sister Katrin and Mr Jens Martin were the last persons to see Simone alive before she disappeared that evening;
(n) Simone's body was found six days later;
(n) her body had been covered over by tree foliage, but had been found only some 90 metres or so from the camping site and covered over by palm branches;
(o) some lies were told to the Australian police by the three members of the touring party in reporting Simone's disappearance. The police were told of a harmonious relationship between Simone and the plaintiff, not mentioning there had been arguments and, indeed, some verbal abuse by the plaintiff in the days before Simone disappeared; and
(p) there was also an apparent attempt to mislead the Australian police in respect of the levels of consumption of alcohol on the night Simone left the camp site and a false denial over the ingestion of marijuana by the group before Simone died.
66 None of that factual material is of itself conclusive in terms of establishing the plaintiff's guilt. But if coupled particularly with the proximity of Simone's discovered body (within 90 metres of the Lismore caravan park), the plaintiff's lack of a solid alibi in terms of his overall movements on the evening before Simone left, some arguably odd behaviour by him in terms of him not searching for Simone the next morning (he denies that), and some delay in reporting Simone's disappearance to the Australian police, this all goes towards providing a basis for a reasonable suspicion about the plaintiff.
67 Furthermore, what was said in the evidence and by the New South Wales Coroner at the 2007 coronial inquest would be the subject of qualified privilege - in terms of any fair report of those proceedings in the Book.
68 The inquest material (noting again the non-participation by the plaintiff in the 2007 coronial inquest) coupled with the objective facts listed above does present at this time as a considerable body of evidence - providing a basis to suspect the plaintiff, as boyfriend and person most proximate to the deceased at the time, of being responsible for her 2005 murder. Indeed, those combined circumstances render it inevitable, as I would see it, that some level of suspicion must inevitably fall upon this plaintiff as regards this unsolved crime.
69 That is not to say that any of the circumstantial facts rise to a level of proving the plaintiff as Simone's killer. There is no forensic evidence at this point supporting a conclusion that the plaintiff was her murderer.
70 I have mentioned that circumstances of this unsolved murder have been the subject of regular public comment and reporting since 2005. A great body of that material is publicly available and accessible.
71 The present is not a case then of a defendant who publishes something highly defamatory but then when challenged only puts up by way of justification facts which are threadbare or marginal - as reasonable grounds to support a suspicion of very serious criminal conduct. Here there is a significant underlying body of credible factual material, publicly available and widely ventilated since 2007, which clearly does, at least assessed at the prima facie level, manifest some reasonable grounds for suspicion as regards this plaintiff in the 2005 crime.
72 In applying the limbs of the interlocutory injunction test, namely the prima facie case and the balance of convenience, sometimes an overwhelming preponderance of potential merit for the arguable case on one side, under what are interdependent criteria, may still carry the day if the balance of convenience is less strong, and vice versa for that matter. Here, the plaintiff's arguable case regarding an imputation of his guilt of the crime of murder needs to be balanced with the qualifying statements seen on page 3 and page 299 of the Book. These statements at the start of and at the end of the Book explicitly say to the reasonable reader in express terms that only suspicion and not guilt is to be inferred as regards the discussed circumstances in the Book concerning Simone Strobel's 2005 murder. These cautionary words must be weighed. They cannot be brushed off as being of no consequence in the overall evaluation.
73 The real key here, however, is where does a balance of convenience rest at this point in time in circumstances where the plaintiff presents an arguable but, as I assess it now not strong, defamation case?
74 First, as to the balance of convenience, I note in terms of a local reputation, that this plaintiff is a German national. He is not an Australian citizen or even permanent resident, as I assess the present evidence. As I mentioned, he appears to have changed his name after a recent marriage, in 2012.
75 There is also nothing to suggest the plaintiff presently holds down any active employment within Australia. Nor does he provide a residential address in Western Australia - other than through his local solicitors.
76 I contrast that somewhat transient connection to Western Australia with somebody who is a more grounded member of a local jurisdiction, is well known, and who seeks to restrain looming damage to their reputation in a community where they have well established roots. This is not such a case and that presents as one convenience factor to be weighed.
77 Second, and perhaps for me the paramount factor, is the public interest in freedom of speech - which for Australian society will always be afforded a high weighting in terms of any evaluation about whether or not a court should intervene by way of interlocutory injunction against a publisher: see ABC v O'Neill. That combination goes against an intervention at this time.
78 Third is an issue that also influenced four of the judges in ABC v O'Neill, namely, the question of nominal damages. That is less of a factor here, as I see it. In ABC v O'Neill the plaintiff was a convicted murderer still in gaol, who had admitted to at least another serious crime. For the present case, I was taken to a large amount of material in relation to what has been an ongoing public canvassing of the events for a horrible unsolved crime in 2005, then a coronial inquest, and then much subsequent media discussion about it, including, as I mentioned, nationally over the Seven Network Sunday programme in November 2011.
79 Suggestions that this 2005 murder was committed by the plaintiff under prior media publications (apart from issues of republication, which I assess as being different) would not, as I see it, lock this plaintiff out of advancing a valid cause of action in respect of this particular Book, in respect of its electronic publication or in hard copy. This is dealt with particularly by Gatley at [33.30] - [33.31], considering the question of a bad reputation, which is another issue: see the passage by reference to Associated Newspapers Ltd v Dingle [1964] AC 371; [1962] 2 All ER 737 that is found at [33.36] under a heading 'Other Publications':
Other publications to the same effect as the words complained of or relating to the same incident as is referred to in the words are inadmissible, and this rule covers previous publications by the same defendant. Nor is it permissible to avoid this rule by alleging that such publications have already tarnished the claimant's reputation.
80 So the fact that, for instance, the 2011 Seven Network programme canvassed this 2005 murder incident extensively, strongly suggesting the plaintiff's guilt, would not, as I assess it, inhibit a distinct cause of action here as against the Book's publication - merely because the plaintiff looks to have done nothing about the Seven Network 2011 programme. But inaction on that overall front must remain relevant to my present assessment as to the convenienceof granting an interlocutory injunction at this time.
Conclusion
81 Regarding the balance of convenience, what is an extraordinary amount of published material found assembled in Ms Galati's first affidavit, has been mentioned. The 90 pages of material, in the end, I assess as overwhelmingly significant in relation to my weighing of the balance of convenience - in terms of whether the court should intervene or not at this point. The plaintiff, of course, still holds a cause of action to sue for defamation at a trial based on the asserted imputation of guilt. If he can sustain that at his trial, his remedy lies in damages.
82 But whether a court should intervene at this point needs to be evaluated in a context of the heavy public canvassing between 2005 and 2007 of the 2005 unsolved murder by the Australian media.
83 I also weigh what present as respectable defamation defences now indicated as likely being raised at the trial by the defendant.
84 Here, quite uniquely, the defendants indicate they will not seek to justify a Chase level 1 imputation of guilt but, effectively, only seek to justify at trial a Chase level 2 imputation of a suspicion on reasonable grounds. They also indicate they invoke other defences and relevantly, in that respect, as regards the coronial inquest, which was a matter of public record, there will be issues concerning aspects of the Book that actually relate what was said at the inquest and what would be a fair report of those public proceedings thereby protected by qualified privilege against defamation.
85 But, significantly here, as emerges from Ms Galati's substantive affidavit, 'the horse has already bolted out of the barn door' - in terms of an electronic publication of this Book and also the distributed hard copy prints of the Book, now in circulation across Australia. There has now been a wide electronic publication. There is demonstrably at this point a widespread capability to the public of accessing the Book electronically or physically. I have evidence about an extensive number of hard copies that have already reached bookstores across Australia, including Western Australia.
86 I am not satisfied it is possible at this point to mop up all reputational 'spilt milk' to, effectively, return it to the bottle and pretend nothing pejorative has been said about the plaintiff over his involvement in the 2005 murder of his then girlfriend. In my view, too much has now been publicly said and written on that topic across Australia. That is a significant weighing consideration in assessing the overall balance of convenience. The balance, as I see it, is now strongly against granting the interlocutory injunction, at this time.
87 I also am not satisfied an injunction directed at the first defendant requiring it to remove all electronic links to the electronic sellers of the Book would necessarily deliver the outcome, effectively, of preventing the various electronic booksellers, if independently approached, from selling the Book online.
88 As earlier discussed, I also hold a level of concern in terms of the lack of proximity of this plaintiff to the West Australian community at this time. He appears still to be a German national, albeit residing for lengthy periods of time (prior to his marriage) from 2005 out of Australia - either in South Africa or in Germany. He presents as having no identifiable local residential address or significant assets in Western Australia. He is also now known under a different surname.
89 That all bears upon the viability of the plaintiff's present undertaking as to damages, particularly bearing in mind what are no doubt significant sunken costs by the defendants for producing a hard copy print run for the Book, and the potential waste and loss arising from a grant of an interlocutory injunction against the sale of the Book. I have weighed the pragmatic viability of the plaintiff's undertaking as to damages if called on, notwithstanding some limited amount of funds have by agreement of the parties' solicitors been paid into trust to secure the costs for this application.
Some distractions
90 There were a number of further matters advanced during argument that I do not consider relevant to the evaluation.
91 First, there was a suggestion that presently granting an injunction against the sale of the Book might interfere with Ms Peters ultimately obtaining her doctorate from a United Kingdom university. The second defendant has not actually sworn an affidavit upon this application. The university where she has apparently transferred her doctoral studies to (having terminated an association with the University of Newcastle in Australia) is not identified. I would need to receive a far more fulsome explanation about all that to even think of giving it any weight as a consideration.
92 Second, I am not satisfied that the failure of the plaintiff to produce on this application a manuscript document he prepared and which was apparently referred to by him during his February 2011 interview with Ms Peters is of any significance in the present context. The point goes nowhere at this time. It is made clear by Gatley at [27.11] that the defendant's grounds of justification need to be in existence at the time of publication of a libel. Hence any materials subsequently obtained by a defendant cannot be used after the event to artificially shore up a defendant's grounds to support a defence of justification following the event of publication.
93 Third, it was suggested, bearing in mind an earlier history to these proceedings (an application to the Master for pre-action discovery), that the defendants, particularly the first defendant, had effectively rushed into electronic publication and then print with the Book to thwart a likely injunction - in circumstances where they had taken undue time to provide the plaintiff with a copy of the manuscript in accord with the Master's earlier pre-action discovery orders. I simply do not have enough material in front of me to resolve that assertion. However, I accept the submission by Mr Goldblatt for the defendants that it would be inappropriate to presently proceed on any such assumption. The issue might, however, in future, and I stress 'might', depending upon all the facts as emerged, generate a circumstance of potential aggravation, were this action to proceed to a trial. I dismiss the issue at present as I cannot safely draw that adverse inference, as is contended for by the plaintiff, on the state of the materials before me at this time.
94 Fourth, as an aside, I do express present concerns over both defendants being presently represented by Ms Peters' husband's New South Wales law firm and by his active participation. I understand the circumstances of urgency which presently prevail. They might, on one view, explain his firm's interim participation - on the involvement of another solicitor or partner from that firm. But the email material now provided in the affidavits shows the day-to-day and very active participation by Mr Peters as a legal adviser to both defendants. That involvement of the second defendant's husband, presents to me as a likely conflict of interest on his part - which should not continue. I understand that sometimes it is difficult in urgent circumstances to obtain independent legal representation in defamation actions. I render these observations at this point in terms of what should happen longer term - as regards what I perceive to be an obvious conflict of interest arising.
Conclusion
95 In all the circumstances, particularly by the weight of considerations going to the balance of convenience, my view is that the current balance favours this court's non-intervention, at this point. A public interest in freedom of speech in Australia as a policy consideration also presents as strong. So is the fact that from a practical perspective, by and large, as I indicated, significant reputational harm to the plaintiff has already happened by a subsisting widespread publication of many media items concerning the 2005 murder at Lismore of his then girlfriend. The plaintiff holds a reputational remedy to seek damages at a trial, if he pursues this action and succeeds. I am also satisfied that the first defendant would suffer a potentially non-recoupable economic loss if the court intervened at this time to inhibit a wider publication of the Book.
96 For those reasons, the plaintiff's application for an interlocutory injunction fails.
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