Nationwide Publishing Pty Ltd trading as the Centralian Advocate v Furber, Rosie Furber

[1984] FCA 94

Re: NATIONWIDE PUBLISHING PROPRIETARY LIMITED trading as THE CENTRALIAN
ADVOCATE
And: ROSIE FURBER; MICHAEL PAUL RICE; VERONICA MARY GOLDER; DAVIE HAYES; NANCY
ANNE LYNCH
No. NTG 34 of 1983
Appeal against interim injunction - Appeal - Defamation
3 FCR 19

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Toohey(1), McGregor(1) and Fitzgerald(1) JJ.

CATCHWORDS

Appeal against interim injunction restraining publication of alleged defamatory newspaper article - whether case for leave to appeal "for special reasons" - application of established principles to particular facts not alone justification for leave - possible defamatory view of article at least to readers with special knowledge - liability for republication of statements not dependent on adoption of statements as assertions of fact or expressions of opinion - potential readership of article properly considered - triable case - available defences - balance of convenience

Federal Court Rules 0.52 r.15

Appeal - Practice and procedure (Northern Territory) - Interlocutory orders and judgments - When leave granted - Existence of special reasons - Injunction to restrain press publication of allegedly defamatory material - Application of well-established principles - Alleged erroneous conclusion - Federal Court Rules 1979 (Cth), O. 52, r. 15.

Defamation - Interlocutory injunction - Restraint of publication in press - Application of well-established principles - Appeal - Existence of special reasons - Alleged erroneous conclusion - Power of appellate court.

HEADNOTE

Held: (1) In an appropriate case the grant of an interim or interlocutory injunction can be reviewed on appeal but there are well established principles which guide and control the appellate court.

A.P.M. Investments Pty Ltd v. Trade Practices Commission (1983) 49 ALR 475, applied.

(2) (Per Toohey and Fitzgerald JJ.) The Federal Court Rules 1979 (Cth), O. 52, r. 15 authorise leave to appeal at anytime "for special reasons" but the grant of an interlocutory injunction to restrain press publication of allegedly defamatory material involves the application of well-established principles to particular facts and does not justify leave being granted on the contention that the wrong conclusion was reached, especially since the decision is of temporary operation only.

HEARING

Darwin, 1984, April 5, 13. #DATE 13:4:1984

APPEAL.

Appeal from an order of Muirhead J. of the Supreme Court of the Northern Territory granting an interlocutory injunction.

M. Maurice Q.C. and M. Huntington, for the appellant.

D. Byrne Q.C. and D. Hore-Lacy, for the respondents.

Cur. adv. vult.

Solicitors for the appellant: Ward Keller.

ORDER

The appeal be dismissed.

The appellant pay the respondents' costs of the appeal.

Appeal dismissed with costs.

JUDGE1

This is an appeal from an order made in the Supreme Court of the Northern Territory at Alice Springs on 19 October 1983.

The appellant is the publisher of "The Centralian Advocate", a newspaper distributed in Alice Springs. On 22 April 1983, an article was published in the newspaper under the Heading "Lake Legal Action Plan". The article referred to a controversy concerning a proposal by the Northern Territory Government to construct a recreational lake in the area of the Old Telegraph Station at Alice Springs. Reference was made in the article to a claim by Aboriginals as traditional owners of the area that it included a sacred site known as Welatyetherre. It was stated in the article that the traditional owners had set up camp on the site and intended to stay there. One of the traditional owners was identified as Rosie Ferber (called Furber in the title of the appeal) a respondent to the appeal. The article included a photograph of some Aboriginal women and children with the accompanying caption:

"Pricilla Ferber and Phyllis Stephens hold the sacred objects. They are stone said to represent women's breasts. Traditional owner Rosie Ferber explains to the group of children the significance of the objects".

On the night of Saturday 15 October 1983, the infant son and the brother of Rosie Ferber were tragically killed in a tent fire at the site.

On 18 October 1983 it became known to the Central Australian Aboriginal Legal Aid Service Inc. that the appellant proposed to publish an article concerning the tent fire in the newspaper on 20 October 1983. On 19 October a legal practitioner employed by the Legal Aid Service and others were permitted to peruse the proposed article and to make notes. At their request, alterations were made to the proposed article. Initially it was indicated that no attempt would be made to restrain publication of the altered article. However, at about 2 pm that day, the appellant was informed that an injunction would be sought.

Late that afternoon, an application for an injunction was made to Muirhead J. in Chambers at Alice Springs. No writ had been issued. The application was made on the basis of an affidavit sworn by a legal practitioner employed by the Legal Aid Service. The affidavit named the appellant as defendant and Rosie Ferber Michael Paul Rice, Veronica Mary Golder, Nancy Anne Lynch, and Davie Hayes as plaintiffs. Those named as plaintiffs were said to be taking action on their own behalf and on behalf of "relations and traditional owners concerned with the matter of this application". Rosie Ferber and Michael Rise were stated to be residents at the site and the other persons named as plaintiffs were stated to be traditional owners.

A copy of a typescript of the proposed article was handed to Muirhead J. and referred to in argument although not marked as an exhibit. Copies of the typescript have also been made available to this Court and treated by all parties as part of the record. Paragraph 8 of the affidavit was in the following terms:

"8. That I have been informed by the applicant Davie Hayes who was born at Welatyetherre and is regarded as one of the most senior and knowledgeable Aboriginal men concerning the law pertaining to that area that the said comments are lies".

Paragraph 7 of the affidavit stated that the deponent had been informed and verily believed that, if the proposed article was published, it would "cause great distress in the Aboriginal community in general and in particular to the inhabitants of Welatyetherre and the traditional owners" on various bases asserted by reference to a view as to the meaning of the contents of the article. The source of the information was not deposed to.

The article, which was to be accompanied by a photograph with the caption "This was the scene at Welatye-Therre the tent fire on Saturday night", was in the following terms:

"MAN, CHILD DIE
IN TENT BLAZE

By Kim Irving
'Spiritual payback' claim

Two people killed in a tent fire may have died because of a 'spiritual payback', a woman claimed yesterday.

The woman, who did not want to be named, said the three-year-old son and 22-year-old brother of Welatye-Therre traditional owner, Rosie Ferber, may have died on Saturday night because the site was so badly desecrated.

The woman is closely related to the traditional owners who camped in the Todd behind the Telegraph Station to try to stop the construction of a prop recreation lake on the site.

She said that under traditional law, if a site was desecrated the family would be 'severely punished'.

'Has it been worth it?' she asked.

Michael Ferber, 3, and Acquinas John Rice Jambajimba, 21, died after a candle in their tent fell over, catching the tent alight.

According to police, several people were in the tent at the time.

They said the two who died were trapped in the back of the tent.

The woman said she had been fighting the desecration of the site since the campers moved out there, but only decided after the weekend to make it public.

The camp was a ceremonial spot where only women were allowed to go for short ceremonies and then they must leave, she said.

The site had been 'desecrated to the limit' by having men around, heavy drinking, showing and photographing sacred stones and the fact that young girls had been handling the stones, she said.

Only mature women were allowed to handle them, she said.

It would have been enough if the women had visited the site, performed ceremonies and left again.

Aboriginal people would have come from all over Australia to support the women if the Government had tried to build a lake there, she said.

She said she thought the campers had been 'sold' the idea of staying there by people who lacked understanding of the repercussions if the site was desecrated.

A spokeswoman for Welatye-Therre women's group supported these statements.

She said the fire could have been a 'spiritual payback'.

'Women are upset and depressed about what happened on the weekend.'

'They're not going to go back until probably next year. A new group of women will go.'

'Women only out there. No more men to live out there. Only women dance there.'

There are also unconfirmed reports that a delegation of women, including the Prime Minister's wife Hazel Hawke, several Labor women parliamentarians and journalists will be requested to cancel their visit to Alice Springs.

The women were due to arrive in a little more than a week to discuss with the traditional owners the significance of the site to all women in Australia.

A spokesman for the Minister for Aboriginal Affairs Clyde Holding said Mr Holding had not received a formal letter from the women requesting the delegation not to come. However, Mr Holding would abide by the wishes of the women, he said.

It is believed that alternative action to save the site is being planned by the Welatye-Therre women but details have not been finalised.

Police said there were no suspicious circumstances surrounding the fire."

The appellant and the respondents were each legally represented before Muirhead J. Both on that occasion and before this Court there was discussion concerning whether or not the application before his Honour was properly to be considered as ex parte notwithstanding the appellant's representative's attendance and participation in the proceedings: cf. Pickwick International Inc (GB) Ltd v. Multiple Sound Distributors Ltd (1972) 3 All E.R. 384. The answer to that question is of no significance for present purposes.

There was much scope for criticism of the affidavit filed on behalf of the respondents, both as to its form and its contents. Perhaps a partial explanation might be found in the urgency of the application. No comment was made by the appellant's solicitor by way of objection or criticism. It may be that if the appellant's solicitor had not been present, Muirhead J. would have expressed more concern than he did. If any question had been raised as to the state of the material, it might have been possible for the respondents to meet the problem by calling evidence. However, the proceedings were conducted on the basis of the affidavit. Perhaps it should be added that, in the course of their respective submissions, each of the lawyers made assertions of fact which were unsupported by evidence, including assertions with respect to matters going to the balance of convenience. It emerged that the newspaper containing the article had been printed and was en route to Alice Springs from Darwin and that it was expected to arrive at about 5.40 p.m. This was about the time of the hearing before Muirhead J.

Counsel for the respondents submitted to Muirhead J. that the article was defamatory and that it could "hardly be suggested that this is in any way a fair comment . . . ". The solicitor for the appellant stated that he had instructions to oppose the application, giving as his grounds that "such an injunction would impinge on freedom of speech and freedom of the press, and . . . there is nothing defamatory or illegal in what is proposed to be published". By way of elaboration of the second ground, he made submissions as to the meaning of the contents of the article.

Statements made by Muirhead J. reveal that he was aware of the inconvenience and probable loss which would be occasioned to the appellant and that he was aware of the need for the press to be able to publish "fair reports of such matters". But, in his Honour's view, the article contained a suggestion that the respondent Rosie Ferber (and perhaps others) were responsible for the two deaths, which he quite correctly regarded as a most serious defamation. He further considered that the consequences of such a defamation "would be (irremediable) insofar as damages are concerned".

Counsel for the respondents requested that the injunction be granted until further order rather than a fixed date, and discussion on that question ensued. That discussion must be seen in the context of two factors. Any injunction would have effectively prevented the particular publication proposed, that is in the newspaper to be published on the following day. In a sense then, once there was an injunction at all, there was little remaining urgency. Further, the Judge and lawyers involved would have been aware of the Supreme Court's other commitments and their personal availability. The result of the discussion was a decision to grant the injunction until further order and to fix a date about a fortnight away (31 October 1983) as a date upon which the appellant could request the dissolution of the injunction. The solicitor for the appellant described that arrangement as "suitable".

There was also discussion concerning whether or not a writ was required; the solicitor for the appellant did not participate. No mention was made by anyone of an undertaking as to damages. The order finally signed by Muirhead J., which accords with his statements during the hearing, enjoined the appellant "until further order from publishing and distributing the article in the form exhibited . . . or in a form which contains or may be reasonably interpreted to contain the same innuendos". It was an order expressed in very wide terms indeed but no criticism was made by the appellant on that score. The signed order also provided for the adjournment of the hearing of the respondents' application to 3 pm on Monday 31 October 1983.

Prior thereto, the appellant issued a motion returnable at the same time, seeking a discharge of the injunction and an order for "damages and costs". Both sides filed affidavits. The proceedings were adjourned on a number of occasions at the appellant's request and neither application has been heard. Any party may still bring the application on for hearing. Recently the respondents issued a writ and delivered a statement of claim; as well they have offered an undertaking as to damages, to be effective retrospectively to the date the injunction was granted. This offer was repeated before this Court. It should be made the subject of a formal undertaking in the Supreme Court without delay.

Instead of proceeding with its motion or otherwise contesting the continued existence of the injunction, or seeking to have the respondents required to give an undertaking as to damages, the appellant decided to appeal, even though the time for appeal had expired. It applied for an extension of time to appeal. No extension of time was granted but it was given leave to appeal. Although it acknowledged that the article had "lost its newsworthiness to a large measure", the appellant contended that important matters of principle were involved. On the hearing of the application to the Supreme Court for an extension of time to appeal, it was made clear by the appellant that its concern was not to contest on the merits whether at that time there should be an injunction in existence. Rather it wished to establish that, on the material before him, Muirhead J. had erred in what were asserted to be a number of important matters of principle concerning "the appropriateness of granting an injunction to restrain the publication of allegedly defamatory material".

Leave to appeal was granted and the appeal was instituted on 22 November 1983. Grounds of appeal were included with respect to alleged non-disclosure of material facts (which was abandoned as an appeal point at the hearing before this Court) and with respect to the absence of a writ and an undertaking as to damages. As already indicated, those matters were substantially resolved prior to the hearing of the appeal. No criticism was made of the form of the order except that it should have been for a fixed short period. That submission overlooked the manner in which the proceedings were conducted before Muirhead J. The ground which the Court permitted to be argued fully was the remaining ground which was that Muirhead J. had erred:

"(c) in granting injunctive relief without first satisfying himself:

(i) that the respondents had a triable case;

(ii) that damages would not be an adequate remedy to the respondents in the event the publication was defamatory;

(iii) that the appellant did not have a defence or defences to the respondents' allegations.

(d) in granting injunctive relief without first considering where in all the circumstances of the matter the balance of convenience lay".

We have set out the background in some detail. The matter can otherwise be disposed of quite briefly and we think it preferable to do so for it would be inappropriate for this Court to make unnecessary observations on the available material which may have an influence on the conduct or outcome of the trial. The much more extensive argument presented to this Court on behalf of the appellant concerning what are asserted to be important questions of principle persuade us that this was not a case for leave to appeal. Order 52 Rule 15 of the Federal Court Rules authorises leave to appeal at any time "for special reasons". A case which involves the application of established principles to particular facts does not for that reason alone justify leave to appeal even if it is wished to assert that the wrong conclusion was reached, particularly when the decision is of temporary operation only. Further, we find it difficult to imagine material less suitable for the determination of important questions of principle. However, it is unnecessary to consider whether the leave to appeal should be set aside. We are of the opinion that, in any event, the appeal should be dismissed.

It is a possible view of the statements of the unnamed woman "closely related to the traditional owners" and perhaps also the statements of the unnamed "spokeswoman for Welatye-Therre women's group" taken in the context of the whole article, that it was asserted that by their desecration of the site those camping there may have been responsible for the deaths which occurred in the tent fire. We find it unnecessary to consider what, if any other meanings, either or both the statements may have conveyed. Further, we find it unnecessary to consider possible problems in relation to the identification of the plaintiffs other than Rosie Ferber as persons defamed.

It is a possible view of the statements of one or both of the women referred to in the article that Rosie Ferber was or might have been a participant in desecration of the site which caused or might have caused a "spiritual pay back" resulting in the death of her son and brother. Even if that were not a meaning which might have been conveyed by the article itself to the public generally, it was a possible meaning of the statements to any reader with special knowledge of facts which would serve to identify Rosie Ferber, including perhaps the earlier article which the appellant had published in April. It was for Muirhead J. to assess the strength of the possibility or probability of a finding at the trial that the statements of one or both of the women referred to in the article conveyed the meaning to which we have referred. His Honour described the case as "strong".

If the statements of the women referred to in the article bore a meaning such as we have mentioned, we find it difficult to see how the statements could be defensible either as true statements of fact or as fair comment. No reference was made to such a possibility before Muirhead J. It was for him to assess the prospects of such an exercise being attempted and, if attempted, the prospects of its success. Having regard to what would be involved, it is not suprising that he did not refer to the issues likely to be raised by any defence.

Contrary to what seemed at times to be the argument of the appellant, the appellant's liability in defamation for the republication of the two statements in the article does not depend upon its adoption of the contents of the statements as assertions of fact or expressions of opinion which it itself made.

Finally, the submission that no reader of the article would attach any credence to the statements in the article struck us as without merit. Even if it may in some cases be correct to regard an allegation which is sufficiently outlandish as incapable of a defamatory meaning (cf Loukas v. Young (1968) 3 NSWR 549 witchcraft), the article which the appellant proposed to publish itself sought to establish the authority of the women whose statements were referred to and the credibility of their assertions by its description of them. The potential readership of the article was properly to be considered as encompassing both Aboriginals and non-Aboriginals. Comments of Muirhead J. plainly reveal that he was alert to this matter.

The principles with respect to the grant of interlocutory injunctions are well established. There is a most useful review of the authorities by Hunt J. in Church of Scientology of California Incorporated v. Reader's Digest Services Pty Ltd (1980) 1 NSWLR 344. See also Harakas v. Baltic Mercantile and Shipping Exchange Ltd (1982) 2 All E.R. 701. We see no reason to doubt that the decision to grant an injunction conformed to the principles to be derived from those authorities. We have not overlooked the question of the balance of convenience, nor did Muirhead J. His preference for the protection of Rosie Ferber from the consequences of a publication, which he was sufficiently satisfied contained an indefensible serious defamation, over the commercial interests of the appellant is not a decision with which we would quarrel.

In any event, that and other issues were matters for him and not for unrestricted redetermination by this Court. That is not to say that in an appropriate case the grant of an interim or interlocutory injunction cannot be reviewed on appeal. However, there are well established principles which guide and control the appellate Court: see APM Investments Pty Ltd v. Trade Practices Commission (1983) 49 A.L.R. 475.

There were aspects of the orders made which were unsatisfactory. Perhaps this is understandable when regard is had to the circumstances. We have given consideration to whether the Court should vary the injunction or even set it aside, leaving the plaintiffs to reapply for an interlocutory injunction if thought necessary. However, in view of the appellant's present attitude to the publication of the article, that would only occasion unnecessary expense. Most of the unsatisfactory aspects have already been attended to and others are either of no remaining practical consequence or are in the course of correction.

Accordingly, in our opinion, the appeal should be dismissed with costs.

JUDGE2

NATIONWIDE PUBLISHING PROPRIETARY LIMITED (trading as THE CENTRALIAN ADVOCATE (appellant) appeals against an order made by a learned Judge of the Supreme Court of the Northern Territory on 18 October 1983 at Alice Springs. The appeal was brought pursuant to leave granted on 22 November 1983.

The facts which gave rise to the order may be shortly summarised.

On 22 April 1983 "The Centralian Advocate", which the appellant owns and publishes in the Northern Territory, including Alice Springs, featured an article referring to a proposal by the Northern Territory Government to construct a recreational lake at or near the Old Telegraph Station (an area called Welatye-Therre by Aboriginal people whom the article described as traditional owners of the site). The article stated that traditional owners had set up a camp there and intended to stop the construction. It referred to ROSIE FURBER (first respondent) as a traditional owner. In evidence provided for the learned primary Judge VERONICA MARY GOLDER (third respondent) DAVID HAYES (fourth respondent) and NANCY ANNE LYNCH (fifth respondent) were said also to be traditional owners; and the first respondent and MICHAEL PAUL RICE (second respondent) to have been living at Welatye-Therre for about eight months. The action was said to have been taken on behalf of the respondents and relations and traditional owners "concerned with the matter" of the application before his Honour.

On the morning of 18 October 1983 it came to be known that the same newspaper proposed to run an article covering the deaths of two Aboriginal people in a tent fire which had occurred at Welatye-Therre on the night of 15 October 1983. The Solicitor for the first, second, third, fourth and fifth respondents (collectively referred to as the respondents) viewed the article. Following this the respondents through their Solicitor sought an order that the appellant be restrained permanently or until further order from publishing and distributing the said article or similar articles. It was alleged that publication of the proposed article would cause great distress to the Aboriginal community as it printed and discussed matters of Aboriginal tribal law in breach of that law; in the circumstances it constituted a gross libel on the inhabitants of Welatye-Therre and the traditional owners inasmuch as it suggested the respondents and others may have been responsible for the deaths of two people; and it constituted a gross libel on the first respondent in that it suggested she may have caused the deaths of her son and her brother by desecrating, or being party to the desecration of, a sacred site and by breaking Aboriginal tribal law in handling sacred objects and permitting them to be handled by her daughters.

The appellant had been notified of the intention to seek the injunction and was represented at the application for an injunction, as were the respondents.

At the hearing his Honour expressed the opinion that even allowing for the hearsay nature of the evidence a strong case had been made out for an interim injunction. He granted an interim injunction restraining the appellant from publishing or distributing for sale or dissemination the said article. The order he made was formally drawn up and is dated 19 October 1983. The restraint was expressed to be "until further order". The further hearing of the application was adjourned to 31 October 1983. The appeal book does not disclose what happened at the adjourned hearing.

The grounds of this appeal are that the learned trial Judge erred in the following respects -

"(a) in failing to require the issue of a Writ of Summons by the respondents or, alternatively, an undertaking by the respondents to issue a Writ of Summons prior to the granting of the injunction.

(b) in failing to require the respondents to give an undertaking as to damages prior to the granting of the injunction.

(c) in granting injunctive relief without first satisfying himself: -

(i) that the respondents had a triable case;

(ii) that damages would not be an adequate remedy to the respondents in the event the publication was defamatory;

(iii) that the appellant did not have a defence or defences to the respondents' allegations.

(d) in granting injunctive relief without first considering where in all the circumstances of the matter the balance of convenience lay."

The learned primary Judge did not accept the submission of Counsel who appeared for the appellant on 18 October 1983 that there was nothing defamatory in what was proposed to be published. Apart from arguing that the article merely reported statements of belief rather than made assertions of fact, Counsel for the appellant did not repeat this submission in terms before us. Rather, he suggested that the appellant was and is in a position fully to justify the intended publication. He agreed in argument that the appellant's complaint was that because the claim was to be in defamation, no interim injunction should have been granted. He also argued that a large majority of the readers would not have believed what was said in the article as to supernatural forces; that no ordinary reasonable reader would interpret the article as saying that the acts of desecration caused the deaths; that the article was saying no more than that in the eyes of some people supernatural forces might be involved.

Senior Counsel for the respondents submitted the Order appealed was a discretionary Order as to practice and procedure; that therefore the appellant must show that there had been an error of fact or law. He referred to Mcllarg v. Universal Stock Exchange (1895) 2 Q.B. 81; Adam P. Brown Male Fashions Pty. Ltd. v. Philip Morris Ltd. (1981) 35 ALR 625; House v. The King (1936) 55 C.L.R. 499. Further, he argued that the appellant must show an error in principle and/or substantial injustice; that even if satisfied the primary Judge was wrong this Court had a discretion. He submitted that the order made was not ex parte; that the learned primary Judge was apparently satisfied the proceedings would be regularised. He pointed out that no undertaking as to damages was sought, nor was an application to dissolve the injunction pressed on that basis. A Writ was issued on 22 March 1984. He submitted that an undertaking as to damages was the usual but not invariable practice. He referred to Ansett Transport Industries (Operations) Pty. Ltd. v. Halton, Interstate Parcel Express Co. (Aust.) Pty. Ltd. and Air Express Ltd. (1979) 25 ALR 639; Graham v. Campbell (1877) 7 Ch.D. 490; Kerridge v. Foley (1968) 1 N.S.W.R. 628; Dein & Dein v. Bealey (1960) N.S.W.R. 385; alternatively, the undertaking was implied or waived by the appellant; one had been proffered on 19 March 1984; the learned primary Judge had satisfied himself as to various matters including publication of an earlier article, the reference to respondents and defamatory meaning; he had adverted to the question of damages. Counsel referred to the arguments put to the learned primary Judge by Counsel then appearing for the appellant. He submitted the Court could refuse an interlocutory order where there was a "triable defence"; that no defence had been asserted or verified. The learned primary Judge considered, he said, the balance of convenience.

I have not attempted fully to recapture Counsels' submissions.

The following comments on the grounds of appeal as filed seem to me to be warranted. The letters preceding each of the four succeeding paragraphs correspond to those used to distinguish the grounds of appeal.

(a) Order 2 of the Rules of the Supreme Court of the Northern Territory of Australia provides for the commencement of proceedings by e.g. issue of a Writ of Summons. Strict compliance with this Order perhaps may not be insisted upon in some circumstances e.g. where a matter is of extreme urgency. Other things apart, this may well have seemed such a matter to the learned primary Judge at the time and in the circumstances in which it came to him. Nor was there any complaint by Counsel for the appellant to his Honour at the hearing on 18 October of this defect. Before the hearing of this appeal a Writ was filed.

(b) The second ground of appeal complained of the failure of the learned primary Judge to extract an undertaking as to damages from the respondents. Again it is noted there was no suggestion or submission on 18 October from the appellant's then Counsel that such an undertaking should be given. As a matter of practice, such undertakings are usually sought by a defendant and ordinarily required by the Court as a condition of its granting an injunction. I do not accept that as no such application was made the learned primary Judge was in error in not himself requiring the undertaking. During argument we were told that such an undertaking has since been offered.

(c) It is apparent from the transcript that the learned primary Judge was satisfied that the respondents had a "triable" case. His Honour was clearly troubled by the suggestion that he found in the article that because of the first respondent's actions, persons close to her had died. It was said that the "publishing" could not be compensated by damages. Moreover, his Honour, in dealing with this application as a matter of urgency, did not attempt to make a final decision as to either the possible strength of the applicants' case when fully presented or available defences. He said -

"I believe it is a proper case for me to grant an interim injunction giving the parties the opportunity of fully arguing it. I know from your (addressing respondents' Counsel) client's point of view the damage is probably done to a large extent by the interim injunction."

(d) I do not agree that his Honour failed to consider where the balance of convenience lay. He was exercising a discretion. It is apparent that he weighed up competing issues, and that he decided the implications in the article were such that to grant the injunction was proper in the circumstances. With respect, I consider his decision in this regard as justifiable. If the appellant considered that the article would lose topicality as a result of delay in its publication, it would have been open to it to apply in the ensuing days to his Honour or another Judge to have the injunction dissolved. If that had been done, topicality perhaps would have been preserved. In aid of this submission the appellant, if it had seen fit, could have offered, in addition to any other arguments, an undertaking to justify the publication of what might have been considered, prima facie, to be defamatory matter. This could have been material for the learned primary Judge to consider in deciding whether or not to dissolve the injunction.

It was clearly arguable that two newspaper articles, when considered together, did, at least, suggest that the first respondent had by some behaviour, sacrilegious, so it is said, in terms of Aboriginal beliefs, attracted something in the nature of a spiritual pay-back whereby two persons related to her died. In that sense a reasonable reader might infer that the first respondent was in some way responsible, or partly responsible, for the deaths. There was also, as his Honour found, a suggestion that the first respondent had been party to or responsible for desecration of a sacred site or sites and had broken Aboriginal tribal law by handling sacred objects.

It is not helpful to deal with this matter in the manner suggested by the appellant's Counsel, e.g. as a failure to observe the requirement that affidavits should be made on information and belief. The application was necessarily on short notice, nevertheless supported by some documentation. So far as it is relevant, there does not appear to have been an objection on 18 October 1983 to the affidavit of Pamela Mary Ditton. Injunctions in appropriate circumstances and in cases of urgency are sometimes granted even though ordinary procedural requirements have not been observed. Appellant's Counsel did concede, quite correctly I suggest, at one stage in his argument that if a situation were sufficiently urgent, "form" "would not count". Any deficiencies in form are usually corrected by the first date to which the hearing for interlocutory relief is adjourned; a defendant may then insist on stricter adherence to formalities. In this regard see Rules of the Supreme Court of the Northern Territory of Australia Order 4O r.3 and r.14. See also Order 67 r.1.

As to the progress of the matter, we were told by senior Counsel for the respondents that, in fact, a Notice of Motion apparently taken out on 26 October 1983 returnable on 31 October 1983 sought a discharge of the injunction. The matter was before the Court on 31 October (when Counsel then appearing for the appellant asked for it to be adjourned), 14 and 22 November 1983 and, even now, has not been disposed of. It is clear that there has been ample opportunity for the appellant to seek to have this injunction dissolved at a time proximate to when it was granted.

The paragraph in the affidavit of Pamela Mary Ditton referring to Davie Hayes described him as "one of the most senior and knowledgeable Aboriginal men concerning the law pertaining to that area" (Welatye-Therre). The statement attributed to him, as I understand it, in effect included a denial that there was or could be a relationship between the deaths and the alleged desecration. In my view, having regard to what preceded the paragraph, the learned primary Judge was entitled to regard this affidavit as evidence bearing upon what might be described as relevant Aboriginal lore. I am not prepared to accept the submission by appellant's Counsel that such opinion evidence should have been given by Aboriginal women rather than men.

We were referred to authorities which support that where a newspaper asserts at an interlocutory stage that it will justify the intended publication no injunction should be granted. Such cases afford little assistance here. It is not possible to read such an assertion into what was said on 18 October 1983 by Counsel who then appeared for the applicants. He said -

"Really, the only instructions I have, Your Honour, are to oppose the application, saying that we believe that such an injunction would impinge on freedom of speech and freedom of the press, and we allege that there is nothing defamatory or illegal in what is proposed to be published, and would suggest that the story does not suggest that Rosie Ferber or the other people named were not entitled to go to that area, or in fact that they caused the death of these 2 people; and that it would be taking the article too far to say that that implication does exist. And also, in relation to the photograph, that that of course is something that's entirely isolated. It's a long time ago, and that the printed words themselves wouldn't raise this implication.
. . . .
The other thing perhaps that I could point out, Your Honour, is that my instructions are that the article was went through by my learned friend and I think Ms Ditton, and certain parts were taken out at their objection, and that now, believing that it was all right with, particularly Aboriginal Legal Aid Service, the paper has been printed and is on the way down."

There was no occasion to refuse the injunction on the ground of intended or proposed justification; nor was his Honour ever asked to do so.

Following a grant of leave to appeal on 22 November 1983, an appeal was instituted forthwith. The ground of appeal, referring to non-disclosure of material facts, was abandoned as an appeal point before us. Procedural shortcomings have been corrected by, as I have said, the issue of a Writ and the undertaking as to damages. Nor is it of any consequence now to complain that the injunction was granted "until further order". That could have been discussed and resolved if appropriate on the adjourned hearing date.

In summary then, the learned primary Judge had before him an application regarding an impending publication of material prima facie defamatory or capable of defamatory meaning. He was entitled to form the view that the quite serious imputations in it would have done irremediable harm to the respondents' standing in their community or elsewhere and possibly even subjected them to some physical hurt. It is clear that his Honour weighed up factors which would operate against as well as in favour of granting the relief sought.

In my opinion the appeal which is against the order granting the interim injunction should be dismissed.

The appellant should pay the costs of this appeal.