Norman South Pty Ltd & Anor v da Silva
[2012] VSC 477
•18 October 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. S CI 2012 4456
| NORMAN SOUTH PTY LTD (ACN 121 411 014) GEOFFREY EDELSTEN | Plaintiffs |
| v | |
| STACY da SILVA | Defendant |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10-12 October 2012 | |
DATE OF JUDGMENT: | 18 October 2012 | |
CASE MAY BE CITED AS: | Norman South Pty Ltd & Anor v da Silva | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 477 | |
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CONTRACT – Agreement – Formation – Confidentiality clause – Construction – Breach – Remedies - Injunction.
CONFIDENTIAL INFORMATION – Whether information has the necessary quality of confidence – Whether information was imparted in circumstances importing an obligation of confidence – Information used without the authority of the plaintiffs and to their detriment.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Ms G.L. Schoff SC with Mr S. Mukerjea | Webb Korfiatis |
| For the Defendant | Mr J.G. Korman | Lloyds & Barclay Lawyers |
HIS HONOUR:
Introduction
A little over 23 years ago, Brooking J commenced a judgment with the statement “Titus Oates was the greatest perjurer that ever lived”.[1] Self-evidently, his Honour was not the trial judge in the present proceeding.
[1]Korin & Anor v McInnes & Ors [1990] VR 723.
Dr Geoffrey Edelsten, the second plaintiff, lives in Victoria. Ms Stacey da Silva, the defendant, lives in New Jersey, USA. In February this year, they met on an internet site, Thereafter, they communicated with each other by telephone and email for some months. On a weekend in March, they met in Hollywood, Florida. At the time, Dr Edelsten was on a business trip.
In May, Dr Edelsten, through his company, Norman South Pty Ltd, the first plaintiff, transferred $US5,000 to the defendant. The plaintiffs claim this money was transferred pursuant to a loan agreement entered into between Norman South and Ms da Silva. Further, they contend that the loan agreement contained two special conditions. Special condition (1) of the loan agreement is alleged to be in the following terms:
“CONFIDENTIALITY
The contents of this Agreement and any dealings including emails, texts or any other form of communication between Ms da Silva and Norman South Pty Ltd, and/or Geoffrey Edelsten, will remain confidential and shall not be divulged unless Norman South Pty Ltd and Geoffrey Edelsten waives this right by provision of a dispensation in writing.”
While the defendant admits receiving the sum of $US5,000, initially she denied that the money was sent to her pursuant to any loan agreement. Her case was that the money was a gift. However, after she was cross-examined, and in final addresses, her counsel conceded the existence of a loan agreement. The issue in final addresses (so far as the existence of the loan agreement was concerned) became whether in fact the loan agreement contained the confidentiality clause alleged by the plaintiffs. Having regard to the evidence which had been called, counsel for the defendant could not reasonably have taken any other approach.
In this proceeding, the plaintiffs make complaint that “the defendant has divulged, has threatened to divulge, and unless restrained will continue to divulge, to third persons, the contents of the loan agreement and the fact and substance of her dealings and communications with the plaintiffs”. A cause of action in contract is pleaded, as well as a breach of confidence claim.[2] The plaintiffs seek an injunction, restraining the defendant from disclosing the information they contend is confidential; damages; and the sum of $US5,000 as a debt and interest thereon, pursuant to the loan agreement, at the rate of 9%.[3] The plaintiffs also seek a non-publication order in respect of the dealings between the second plaintiff and the defendant, pursuant to s 18(1)(c) of the Supreme Court Act 1986.
[2]See generally, Coco v AN Clark (Engineers) Limited [1969] RPC 41; Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37; Moorgate Tobacco Co Limited v Phillip Morris Limited (No 2) (1984) 156 CLR 414; and Australian Medicare Co Limited v Hamilton Pharmaceutical Pty Ltd (2009) 261 ALR 501, 638-640 [629]-[637].
[3]While the plaintiffs originally sought an account of profits and all necessary accounts and inquiries as to damages and profits, this relief was not pursued in final address.
The defendant denies that any of the information the subject of this proceeding is confidential, and that the plaintiffs are entitled to the relief they seek. However, in her defence, she admits “divulging and threatening to divulge an account of her dealings with the second plaintiff”.[4]
[4]Defendant’s defence, paragraphs 7 and 11.
The principal relief sought by the plaintiffs is for an injunction, restraining the defendant from disclosing her dealings, including emails, text messages and other communications, with the plaintiffs. The plaintiffs seek such an injunction pursuant to the confidentiality clause; alternatively, the plaintiffs contend they are entitled to such an injunction because of the defendant’s breach of confidence (and threatened continuing breach of confidence).
In opening, Senior Counsel for the plaintiffs accepted that whatever information might be protected by the plaintiffs establishing a breach of confidence claim, such information was a sub-set of the information the subject of the confidentiality clause.[5] In the circumstances, it is convenient to go first to the plaintiffs’ case concerning the confidentiality clause. However, in doing so it is necessary to examine the competing cases as to the existence of the loan agreement before counsel for the defendant made his concession (which, as I have said, was rightly made on the evidence).
[5]T22.23 - .27. See also the plaintiffs’ final address at T247.29 - .30.
Both the second plaintiff and the defendant gave evidence as to whether or not there was a loan agreement entered into by the parties. Additionally, each relied upon a number of emails and messages in support of their competing positions. However, in its early stages, one of the problems with this proceeding was that in respect of a significant number of the emails, each side had different versions of the relevant email. Each side accused the other of fraud. Specifically, each party made accusations that various emails passing between them had been fraudulently altered.
The evidence
The second plaintiff gave evidence in support of the plaintiffs’ claims. In addition, the plaintiffs called Ms Kaye Whitaker and Mr Mark Liddle. Ms Whitaker is the second plaintiff’s personal assistant. She gave evidence about various relevant emails that she sent to, and received from, the defendant. Mr Liddle was called as an expert in various aspects of the operation of computer systems – and specifically to express an expert opinion as to which of the competing documents, alleged to be printouts of competing emails, were authentic copies of emails as originally sent.
The only witness to give evidence in the defendant’s case was the defendant. Despite the fact that her solicitors also retained an expert to look at the emails, and despite the fact that the defendant’s expert was present in Court for much of the trial (and all of Mr Liddle’s evidence), the defendant did not call her expert.
The two non-party witness (Ms Whitaker and Mr Liddle) gave their evidence in a straightforward and forthright manner. I was impressed by both of them. Neither of them made any attempt to mislead me. Both of them appeared to be doing their best to give an objective account of what they knew. Neither was seriously challenged in cross-examination. In the end, counsel for the defendant did not advance any reason why I might not accept any of their evidence.
The position is different with respect to Dr Edelsten and Ms da Silva. I will deal first with Ms da Silva.
The substance of Mr Liddle’s evidence was that the printouts of critical emails relied upon by Ms da Silva had been falsified in what amounted to “a clumsy and at best amateurish attempt”. Mr Liddle explained in some detail the method by which Ms da Silva attempted to falsify the emails. One of the methods used involved taking an email that had already been sent and then forwarding that email. After hitting the “forward” button, the text of the original email became available for alteration. Ms da Silva then altered the email and then hit the “send” button. After that, it was a simple matter of cutting and pasting text to make the email (as altered) appear to be the email that was originally sent. Mr Liddle’s evidence established beyond doubt that where there was a difference between emails, it was Ms da Silva’s versions of the relevant emails that had been falsified.
Notwithstanding the evidence of Mr Liddle and the fact that the defendant neither challenged his opinion in cross-examination nor called her own expert, the defendant gave evidence maintaining that her versions of the emails were correct. Thus, most of the evidence given by the defendant was demonstrably false and could not be believed.[6]
[6]For a discussion about lies generally in civil proceedings, see Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1548, 1588 {119]-[120] (Kirby J).
However, Dr Edelsten was no more an impressive witness than Ms da Silva. The evidence disclosed that in his dealings with Ms da Silva he lied to her on a number of occasions.[7] Further, much of Dr Edelsten’s evidence was simply unbelievable when one had regard to the whole of the evidence. Specifically, Dr Edelsten’s evidence as to being largely (if not wholly) motivated by altruism or charity in his dealings with the second defendant must be rejected.[8] Additionally, much of Dr Edelsten’s evidence (and particularly the evidence I have referred to in this paragraph) is inherently unlikely when one looks at the written record of the communications passing between him and the defendant.
[7]See for example emails of 4 March at 2.00pm, 10 March at 7.44am, 20 April at 11.50pm and 21 April at 9.33 pm. See further, T139.1 - .9, and in particular Dr Edelsten’s evidence at T146.27 – T147.2.
[8]As must his evidence given at T37.13 - .14, T42.16 – .25, T68.29 – T69.1, T73.22 - .23 (as it related to underlying motive), T77.13 - .14, T86.9 - .13, T87.8 - .21, T96.1 – T97.8 (and in particular, the answer at T97.2 - .4), T108.25 - .26, T120.27 – T122.5, T144.25 - .30 and T145.7 - .11. See further, Dr Edelsten’s evidence at T147.5 - .6 (although I was unable to assess whether this answer was a prevarication or merely an attempt to be accurate).
While, in some circumstances, and depending upon the demeanour of the particular witness (or other relevant matters), inherently unlikely evidence might nevertheless be accepted, nothing about Dr Edelsten’s appearance in the witness box or any of the evidence in this case led me to conclude that I should accept the evidence given by him (and to which I have referred) in the face of the more likely true position as disclosed in the emails tendered on his behalf. Specifically, the way in which Dr Edelsten gave evidence was unsatisfactory. On a number of occasions, there were inappropriately long pauses before an answer was given to a straightforward question that should have been capable of a ready answer. From time to time, Dr Edelsten appeared to be contemplating which of a selection of answers might prove least embarrassing or least destructive to his case. Further, Dr Edelsten’s willingness to deny seeing the contents of some attachments to a particular email from the defendant did not assist his credibility.[9] Finally, in respect of too many matters in cross-examination, Dr Edelsten was content, all too readily, to say that he could not recall the matter inquired of, before having to, somewhat grudgingly, acknowledge its existence when taken to a specific email.
[9]T40.22 – T41.6.
In summary, I found both Dr Edelsten and Ms da Silva to be unsatisfactory witnesses. Both were prepared to mislead me in respect of any matter that they thought they could get away with. Each was prepared to be truthful only if it did not otherwise embarrass them or harm their case. The one piece of evidence that could confidently be accepted from each of them is when each of them said that, in respect of certain matters, the other was being untruthful. That said, there was the occasional vignette of truth.[10] Further, in fairness to Dr Edelsten and in the context of this case, it might be said that it was at least to his credit that he did not falsify any of the relevant documents.
[10]For example, T37.9 - .10 and T103.31 – T104.4.
The loan agreement
As I have said above, the second defendant conducted her case right up to the commencement of final addresses on the basis that there was no loan agreement: the $US5,000 was merely a gift. However, in final address, the defendant’s counsel conceded the existence of the loan agreement – but raised the new point that the loan agreement did not contain the confidentiality clause. This being a new point, it goes without saying that it was not put to Dr Edelsten in cross-examination. Indeed, the plaintiffs’ counsel made complaint that the point was not pleaded and no leave was given to the defendant to raise it after the closing of both cases.
The defendant accepted the plaintiffs’ offer of a loan of $US5,000 by emailing to the plaintiffs the execution page of the loan agreement, upon which either she (or someone at her end) typed, “i stacey da silva agree to the agreement” and “im amanda mcgee witness of stacey agreeing to the terms of the loan”.[11] As was pointed out by the defendant’s counsel in final address, the emails with this additional typing on them appeared to show that the last clause in the loan agreement was clause 14(11) (a governing law and submission to jurisdiction clause), rather than the two special conditions. That is, it appeared that the email that the plaintiff altered to record her agreement to the loan agreement (and to record the existence of a witness to her agreement) had been altered again so as to delete the confidentiality clause.[12]
[11]I have set out what was typed, as it was in the defendant’s original emails.
[12]And, although not relevant for present purposes, Special Condition (2).
This case was fought on the issue of whether or not there was a loan agreement and whether or not the defendant had agreed to it. There was no debate prior to final addresses as to its terms. When one looks at all of the emails that have been established to be genuine copies of what was originally sent, it is tolerably clear that the loan agreement always contained the confidentiality clause. Nothing in the material suggests any debate between the parties as to there being a loan agreement, but without a confidentiality clause. Indeed, the defendant’s email of 10 May 2012 at 11.18pm[13] shows that the defendant was well aware that the loan agreement contained the confidentiality clause. Whether the defendant deleted the confidentiality clause in the email she manipulated for the purpose of showing her agreement and the existence of a witness, as a second line of defence in this case cannot now be known. It is sufficient to say that not only have the plaintiffs established the existence of the loan agreement, they have also established that it contained the confidentiality clause to which I have already referred.
[13]Sent from her email address containing the character string “sexybiotchinnj69”.
Did the defendant breach the terms of the loan agreement?
By her defence, the defendant “admits divulging and threatening to divulge an account of her dealings with the second plaintiff”. At trial, the defendant did not put in issue the question of whether her disclosures and threatened disclosures were contrary to the provisions of the confidentiality clause. It appeared to be accepted that if there was a confidentiality clause, then her discussions with a journalist (Fiona Byrne) were in breach of it. In any event, the evidence discloses that the defendant has disclosed (and threatens to continue to disclose) information and material that is protected by the confidentiality clause.
Relief in respect of the loan agreement
The defendant’s breach of the confidentiality clause constitutes a default within the meaning of clause 10(2)(b) of the loan agreement, which default is not capable of remedy. Accordingly, and by operation of clause 10(1), the amount of the loan “together with all interest accrued on the loan” is due and payable. Thus, the first plaintiff has established its entitlement to judgment in the sum of $US5,000 together with interest at the rate of 9% per annum. While evidence was led as to damage, Senior Counsel for the plaintiffs conceded in her final address that on the contractual claims, the second plaintiff was not entitled to damages (he not being a party to the loan agreement), and the first plaintiff could not point to any damage. Thus, counsel for the plaintiffs said, in relation to the contractual claims, that they would not be submitting there ought be any award of damages.[14]
[14]T248.5 - .13.
In his final address, counsel for the defendant submitted that even if the contractual claim was made out, no injunction should be granted because of what he described as “the doctrine of unclean hands”. Counsel for the defendant then sought to characterise Dr Edelsten’s activities in a number of ways which I do not propose to refer to – other than to identify by reference to the transcript.[15] Additionally, counsel for the defendant made submissions concerning what he said was a “vast power differential”.[16]
[15]T251.28 – T252.11.
[16]T253.8 - .16.
The first point that should be made in respect of these submissions is that the matters underlying them were not pleaded. The second point to be made is that neither in her pleadings, nor at trial, did the defendant seek to set aside the loan agreement – either on the basis of some “power differential” or otherwise. Additionally, having regard to the unsatisfactory nature of the evidence of both Ms da Silva and Dr Edelsten (and in particular that of Ms da Silva), I am not, in any event, satisfied as to the existence of the relevant allegations of fact necessary to support the defendant’s submissions.
Further, even if I was satisfied about the factual matters in respect of which counsel for the defendant made submissions, in the context of the present case, and in the context of the underlying facts that led to the completion of the loan agreement, I do not see any reason not to grant the first plaintiff the injunction it seeks in relation to the breach and threatened breach of the confidentiality clause. In this case there is no reason why the defendant should not be held to the bargain she struck with the first plaintiff.
Finally, on the question of whether an injunction should be granted with respect to the first plaintiff’s contractual claim, in addition to making arguments about unclean hands, counsel for the defendant contended that no injunction should be granted because damages were an adequate remedy. Coupled with this submission was the submission that the first plaintiff had not in fact suffered any damage. This second submission underscores why the first submission (damages are an adequate remedy) must be rejected.
The first plaintiff’s claim for injunctive relief must succeed.
The breach of confidence claim
Having found for the first plaintiff on the contractual claim, and noting Senior Counsel for the plaintiffs’ concession that any information that might be protected by the breach of confidence claim is a sub-set of that which would be protected by the confidentiality clause, as was conceded by Senior Counsel for the plaintiffs, the only relevance the breach of confidence claim now has is in respect of the second plaintiff’s claim for damages for distress and embarrassment.[17]
[17]Cf Giller v Procopets (2009) 24 VR 1, 14 [36] (Maxwell P), 32-33 [148]-[153] (Ashley JA) and 100 [424], 101 [428] (Neave JA).
At trial, the plaintiffs accepted that the elements of the cause of action for breach of confidence are, for present purposes:
“(i) the information in question must be confidential in character: it must have “the necessary quality of confidence about it”: Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 215;
(ii) it must have been imparted in circumstances importing an obligation of confidence: Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47; Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd[1967] VR 37 at 40; and
(iii) there must have been an actual or threatened unauthorised use or disclosure of that information: Smith Kline & French Laboratories (Aust) Ltd v Dept of Community Services and Health (1990) 22 FCR 73 at 87 and 111–112; Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222.”[18]
[18]See Australian Medic-Care Co Limited v Hamilton Pharmaceutical Pty Ltd (2009) 261 ALR, 638-9 [632]. But cf Gurry on Breach of Confidence (2nd Edition) at paragraphs 7.143 – 7.159.
In the course of her submissions, Senior Counsel for the plaintiffs referred me to a number of authorities wherein information and material has been held to be confidential in the relevant circumstances. For example, the plaintiffs relied upon the following passages in the judgment of Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Limited,[19] as follows:
“[39] If the activities filmed were private, then the law of breach of confidence is adequate to cover the case. I would regard images and sounds of private activities, recorded by the methods employed in the present case, as confidential. There would be an obligation of confidence upon the persons who obtained them, and upon those into whose possession they came, if they knew, or ought to have known, the manner in which they were obtained.
…
[42] There is no bright line which can be drawn between what is private and what is not. Use of the term ‘public’ is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.
…
[54] A film of a man in his underpants in his bedroom would ordinarily have the necessary quality of privacy to warrant the application of the law of breach of confidence. Indeed, the reference to the gratuitously humiliating nature of the film ties in with the first of the four categories of privacy adopted in United States law, and the requirement that the intrusion upon seclusion be highly offensive to a reasonable person.”
[19](2001) 208 CLR 199.
On the other hand, counsel for the defendant took me to different passages in different authorities where different conclusions were reached. For example, in Theakston v MGN Limited,[20] Ouseley J said:[21]
“[64] I can see no reason why the question of confidentiality should be judged solely from the point of view of one participant in the activities and in the relationship, if it can be so called. The prostitutes clearly took a different view of the confidentiality of that they had seen and done with the Claimant. If a well known man has sexual relations with a prostitute in a brothel, the desire on his part to keep their actions and ‘relationship’ confidential and the desire on the part of the other to exploit their actions and relationship commercially are irreconcilable. There was no express stipulation for confidentiality. If such a stipulation had been sought, it might have been agreed for a fee or refused because of the implicit admissions as to the potential for further profitable exploitation of the anticipated actions inherent in the request. It is not inherent in the nature of a brothel that all or anything that transpires within is confidential. The relationship between a prostitute in a brothel and the customer is not confidential of its nature and the fact that they participate in sexual activity does not in my judgment constitute a sufficient basis by itself for the attribution to the relationship, if such it be, of confidentiality. It is difficult to see why the protection of confidentiality should be imposed essentially for one party to a fleeting transaction for money when there is no reason to suppose that at the time the other party would have considered the relationship or the activity confidential for one moment.”
[20][2002] EWHC 137 (QB).
[21]Ibid, [64].
While I understand why each party took me to the various extracts in the authorities on which they relied, it must be said that I have not found these references to authority of any great assistance in the present case. The present case turns upon its own facts. Those facts are different from the facts referred to in the judgments each side relied upon. Further, there is no universal answer to be given in each case just because one side or the other can identify one fact out of a number of relevant facts in a particular case, which fact appears to be on all fours with a fact in the case for decision between the parties.
Having heard Dr Edelsten and Ms da Silva, and having read the genuine copies of the various emails that passed between them,[22] there is a real question of whether any information or material imparted by Dr Edelsten was imparted in circumstances importing an obligation of confidence. Without wishing to say anything which might cut across the effect of the injunction that I have said I will grant at the suit of the first plaintiff, it seems to me that both Dr Edelsten and Ms da Silva dealt with each other on the basis of what they could “get out of it” for themselves. Put bluntly, I am far from persuaded that their dealings imported an obligation of confidence which would keep secret all of their relevant communications and meetings.
[22]Or, at least, those that were tendered in this trial.
Additionally, I am far from persuaded that Dr Edelsten imparted any confidential material after various emails he sent in early March.[23] Those emails disclose matters which show that Dr Edelsten could not have believed that anything he communicated after that time would have been imparted in circumstances importing an obligation of confidence. Further, the same reasoning applies in respect of the alleged confidentiality of any dealings. While Dr Edelsten may have hoped that his dealings with Ms da Silva would remain confidential, the short point is that the evidence did not disclose circumstances importing an obligation of confidence in respect of his dealings with Ms da Silva.
[23]See for example 3 March at 4.41pm, 4 March at 7.57am, 4 March at 9.20am and 5 March at 4.58am. See also T38.30 – T39.9 (although noting that I do not accept that part of Dr Edelsten’s answer commencing at the end of T39.4 and going on to T39.5).
In any event, Dr Edelsten’s evidence in support of his breach of confidence claim was, to say the least, not believable. If, contrary to the conclusions I have reached, one was to accept his evidence as to his conduct and motivation, so far as his dealings with the defendant is concerned, it is difficult to see why he would want the relief he seeks in this proceeding.
For the reasons given, the breach of confidence claim must fail.[24]
[24]While the reasons for dismissing the breach of confidence claim are brief, the plaintiffs said that if the breach of confidence claim was dismissed, in circumstances where an injunction was to be granted in respect of the contractual claim, they would be content for the reasons for the dismissal to be given “in brief terms so as not to undermine the efficacy of any injunction that might be granted on the contractual claim” (see the email from junior counsel for the plaintiffs to the Court, sent 12 October at 17.26).
See further, David Syme & Co Ltd v General Motors Holdens Ltd [1984] 2 NSWLR 294, 300-301 (Street CJ) as to formulating reasons for judgment in breach of confidence cases in “such general terms as [will] … convey an adequate account of the litigation and the reasons underlying the orders” to be made.
The application for a non-publication order
It follows from what I have said above that the first plaintiff is entitled to a permanent injunction restraining the defendant from disclosing the content of the loan agreement and the fact and substance of her dealings with the plaintiffs to date. However, in the course of establishing that entitlement, material has been tendered and evidence given in this trial about those matters.
It would be a pointless exercise for a party to come to court and obtain an order protecting confidential information if, in the course of obtaining the order, the information was disclosed in circumstances where it could be re-published. It is for that reason that, in cases of this kind, non-publication orders, in as limited a form as necessary to protect the relevant information or material, are made.[25]
[25]Cf ss 18(1)(c) and 19(b) of the Supreme Court Act 1986. See also Scott v Scott [1913] AC 417, 445 and David Syme & Co Limited v General Motors Holdens Limited [1984] 2 NSWLR 294.
In my view, it is necessary, so as not to prejudice the administration of justice, to make a non-publication order prohibiting the publication of any part of this proceeding that would disclose or further disclose the substance of the dealings to date between the second plaintiff and the defendant, including any emails, text messages or any other form of communication passing between them.[26] However, I should say for the sake of completeness that such a non-publication order does not prevent the publication of this judgment.
[26]In her final address, senior counsel for the plaintiffs conceded that a non-publication order in relation to the details of the loan agreement was no longer appropriate; T247.13 - .16 (see also the document handed up during final addresses headed “Orders sought by the plaintiffs”).
Conclusion
There will be:
(a)a permanent injunction restraining the defendant by herself, her employees or agents or otherwise, from divulging, publishing or disclosing to any third party other than her legal advisers the content of the loan agreement and the fact and substance of any dealings, including emails, text messages or any other form of communication with the plaintiffs, without the express written authority of the plaintiffs;
(b)judgment for the first plaintiff against the defendant in the sum of $US5,000 together with interest at the rate of 9% per annum from the date the sum was advanced to the defendant;
(c)an order pursuant to s 18(1)(c) of the Supreme Court Act 1986 prohibiting publication by any means, including print, broadcast, digital or online, of any part of this proceeding or any information derived from the proceeding that would disclose or further disclose the substance of any dealings between the second plaintiff and the defendant to date, including any emails, text messages or any other form of communication passing between them.
I will hear the parties further on the precise form of orders and any question of costs.
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CERTIFICATE
I certify that this and the 13 preceding pages are a true copy of the reasons for Judgment of Justice Beach of the Supreme Court of Victoria delivered on 18 October 2012.
DATED this eighteenth day of October 2012.
Associate
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