National Australia Bank Limited v Juric

[2001] VSC 51

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 4483 of 2001

NATIONAL AUSTRALIA BANK LIMITED	Plaintiff
v.
SIME JURIC	Defendant

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 FEBRUARY 2001
DATE OF JUDGMENT:	26 FEBRUARY 2001
CASE MAY BE CITED AS:	NATIONAL AUSTRALIA BANK LTD. v. JURIC
MEDIUM NEUTRAL CITATION:	[2001] VSC 51

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CATCHWORDS:      Interlocutory injunction restraining publication of defamatory material and commission of nuisance.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	G. Garde Q.C. with A. Schlicht	Russell Kennedy
For the Defendant	D. Perkins	Sue Owens

HIS HONOUR:

1. This is the return of a summons filed in the court by the plaintiff, the National Australia Bank Limited, whereby the plaintiff seeks to restrain the defendant, Sime Juric, from publishing defamatory material concerning it and its servants and agents, including in particular its solicitors, Russell Kennedy, and from committing nuisance by noise generated by a loud hailer used by the defendant outside the premises of the plaintiff.

1. The history of the long and hostile relationship which exists between the defendant and the plaintiff and its solicitors is set out in the affidavit of Michael Douglas Main sworn 16 February 2001.  It is unnecessary for me to recite that history in these reasons for the ruling I am about to make.  Suffice it to say that since October 2000 the defendant has been conducting protests outside the plaintiff's head office at 500 Bourke Street, Melbourne and other of its branches by carrying a banner alleging corruption and criminal conduct by the plaintiff.  The banner is on a stick the top of which is a plastic replica of a pig's head.  The banner reads as follows:

"               WANTED

PUBLIC SUPPORT AGAINST
MOST CORRUPT NATIONAL AUSTRALIA BANK

STOP DESTROYING FAMILIES
CORRUPTED CRIMINALS

STOP FRAUD & LIES
CORRUPTED CRIMINALS

STOP ROBBING PUBLIC &
GOVERNMENTS
CORRUPTED CRIMINALS

THIS IS A PUBLIC NOTICE

DON'T DO BUSINESS WITH
SUCH A CORRUPT CRIMINAL BANK"

- and then underneath are the letters "NAB".

1. The evidence demonstrates that the defendant has supplemented his protests against the bank by use of a loud hailer which it is said creates a very substantial volume of noise.

1. In the affidavit to which I earlier referred Mr Main swears that he has personally observed the defendant protesting in this manner on dozens of occasions, "having passed the scene of his protest outside 500 Bourke Street, Melbourne on virtually a daily basis whilst attending at the Metropolitan Ambulance Service Royal Commission where I am instructing counsel".  He has further deposed to the effect that the noise created by the defendant is having on employees of the plaintiff on the first floor of its premises at 500 Bourke Street, which, as he said, is very disconcerting and makes it very difficult for them to concentrate on work properly or at all.

1. The actions of the plaintiff have been recorded on video by an enquiry agent, Carl Vittorio Donadio.  The video, which has been shown in court this morning, was apparently taken on 27 November 2000 and is very vivid in its depiction of the behaviour engaged in by the defendant.  In his affidavit Mr Main has endeavoured to transcribe the majority of what the defendant is saying as recorded in the video.  That appears in paragraph 28 of the affidavit.  There is little purpose to be served by me re-stating it this morning.

1. In two affidavits he has sworn in opposition to the plaintiff's application the defendant has this to say about his behaviour.  I refer first of all to paragraph 7 of his affidavit sworn on 23 February 2001, which reads:

"7.The purpose of my protest is to better inform the public of the dangers of borrowing from the plaintiff bank and to warn of the bank's excesses in relation to interest rates and costs and charges, all of which matters are expressed on the television, radio and print media."

In paragraph 6 of his affidavit sworn 26 February 2001 the defendant has said this:

"6.I am neither engaged in nor intend on engaging in any illegal activity whatsoever.  I have neither committed nor intended any breach of the peace.  I am merely conducting a peaceful protest in relation to matters in which the public has a profound interest and has, I believe, a right to be informed."

1. What has been argued on his behalf by his counsel is that it is the right of every citizen to express his or her views about a public figure which are of interest to other members of the public, even when that public figure is a corporation.  It has also been argued on the defendant's behalf that it is permissible to make political comment about a public institution.  I simply observe it is one thing to make a political comment about a person or a public institution;  it is one thing to make comments on matters of public interest.  It is quite another thing, however, to make defamatory statements about another person or an institution and to make them in such a way as to commit a nuisance.

1. Having considered the material placed before me by the parties, it is clear that there are serious issues to be tried in the proceeding.  In my opinion it is strongly arguable that the behaviour of the defendant is defamatory, and not only defamatory, but that, in behaving as the video and affidavit material indicates he has been, he is creating a serious nuisance.

1. There is no denial by the defendant that he has behaved in the way depicted in the video, and it would be very surprising, in view of the video evidence, supported as it is by the testimony of the deponents of the affidavits filed by the plaintiff, if it was denied.

1. In my view the comments and the writing on the placard cannot be described as political comments, nor can they be described as views which are of interest to members of the public, nor that they are mere matters of fair comment.  I would have thought that they are better described as the irrational outpourings of an individual determined to cause as much damage and embarrassment to his former bankers and their solicitors as he can because of some wrong perceived by him to have been done to him in the past by those bankers and solicitors.

1. Having determined that there are serious issues to be tried in the proceeding as I have, it is necessary then to see where the balance of convenience lies.  In my opinion, in the circumstances of this case, it is all one way.  The defendant can suffer no damage by being restrained in the manner sought by the plaintiff.  On the other hand, the plaintiff and its solicitors may well suffer significant damage if the defendant is not restrained.

1. Accordingly I order that until the trial of this action or further order the defendant be restrained from publishing or causing to be published to or concerning the plaintiff or any servants or agents (including its solicitors, Russell Kennedy, or any partners, servants or agents thereof) any communications, whether oral or in writing, the content of which is likely to lower the reputation and standing of the plaintiff or any servant or agent thereof amongst ordinary members of the public.

1. The court further orders that until the trial of the action or further order the defendant be restrained from committing nuisance by noise generated by the defendant by loud hailer or otherwise so as to interfere with the normal operations of the plaintiff at any of its premises and specifically at the premises at 500 Bourke Street Melbourne;  271 Collins Street Melbourne;  271 William Street Melbourne;  and 469 La Trobe Street Melbourne.

1. I reserve the costs of this application.

1. I reserve to the parties liberty to apply.

1. I direct that this order be prepared by the solicitors for the plaintiff and brought to me for authentication.

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