Omaya Investments Pty Ltd v Nationwide News Pty Ltd (Form of Orders)
[2019] FCA 1653
•4 October 2019
FEDERAL COURT OF AUSTRALIA
Omaya Investments Pty Ltd v Nationwide News Pty Ltd (Form of Orders) [2019] FCA 1653
File number: NSD 1598 of 2019 Judge: PERRAM J Date of judgment: 4 October 2019 Date of publication of reasons: 8 October 2019 Catchwords: PRACTICE AND PROCEDURE – where interlocutory application for injunction to edit existing publication previously granted – where parties unable to agree on form of order Cases cited: Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186
Omaya Investments Pty Ltd v Nationwide News Pty Ltd (Injunction Application) [2019] FCA 1652
Radio 2UE Sydney v Chesterton [2009] HCA 16; 238 CLR 460
Date of hearing: 4 October 2019 Registry: New South Wales Division: General Division National Practice Area: Other Federal Jurisdiction Category: Catchwords Number of paragraphs: 9 Counsel for the Applicants: Mr K Smark Solicitor for the Applicants: Blackstone Waterhouse Lawyers Counsel for the Respondent: Mr D Sibtain Solicitor for the Respondent: Ashurst Australia ORDERS
NSD 1598 of 2019 BETWEEN: OMAYA INVESTMENTS PTY LTD ACN 099 507 927
First Applicant
BSM HOLDINGS PTY LTD ACN 631 209 348
Second Applicant
ANTOINE BECHARA
Third Applicant
AND: NATIONWIDE NEWS PTY LTD
Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
4 OCTOBER 2019
UPON:
A.The Applicants by their counsel undertaking to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; and to pay the compensation referred to the person there referred to.
THE COURT ORDERS THAT:
1.Until further order, the Respondent be restrained, by itself or its servants or agents from publishing after 5.30 pm on 4 October 2019 in the online version of the article appearing under the headline ‘Developer Antoine Bechara sold three properties to himself as he tries to stop Burwood tower’, a copy of which is Exhibit 1 in the interlocutory application, the following words:
‘Developer Antoine Bechara sold three properties to himself as he tries to stop Burwod tower
A rival developer has sold three of his own properties to himself for nothing on the eve of a court case as he tries to halt a $40 million tower development in Burwood.
A rival developer has sold three of his own properties to himself for nothing on the eve of a court case as he tries to halt a $40 million tower development in Burwood.’
2.Order 1 be discharged from further operation.
3.Until further order, the Respondent be restrained, by itself or its servants or agents from publishing after 12.00 pm on 5 October 2019 in the online version of the article appearing under the headline ‘Developer Antoine Bechara changed trustee while trying to stop Burwood tower’, a copy of which is Annexure A to these Orders, the following words:
‘Developer Antoine Bechara changed trustee while trying to stop Burwood tower
A rival developer has changed trustee for three properties on the eve of a court case as he tries to halt a $40 million tower development in Burwood.
A rival developer has changed trustee for three properties on the eve of a court case as he tries to halt a $40 million tower development in Burwood.’
4.Costs be reserved.
5.The matter be stood over for case management on 16 October 2019 at 9.30 am.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Annexure A
REASONS FOR JUDGMENT
PERRAM J:
Yesterday I granted an interlocutory injunction requiring the respondent within 24 hours to remove a particular set of headlines in a story published in the online version of The Daily Telegraph. The parties indicated that they would attempt to give effect to that conclusion by formulating an order. Those attempts have been in part unsuccessful. They were initially able to agree on the form of an injunction to take down the offending words in yesterday’s article. However, overnight events had moved on, and the headline has now been changed. It is necessary to read these reasons in tandem with the reasons I delivered yesterday: Omaya Investments Pty Ltd v Nationwide News Pty Ltd (Injunction Application) [2019] FCA 1652.
The online article has now been changed so that it has the following headline and two following paragraphs, which are also laid out at Annexure A to the orders:
Developer Antoine Bechara changed trustee while trying to stop Burwood tower
A rival developer has changed trustee for three properties on the eve of a court case as he tries to halt a $40 million tower development in Burwood.
A rival developer has changed trustee for three properties on the eve of a court case as he tries to halt a $40 million tower development in Burwood.
The applicants applied for a fresh injunction to restrain the publication of those three paragraphs. It was true that the headline now accurately stated that there had been a change of trustee, but it was not true that the change of trustee had occurred either whilst Mr Bechara was trying to stop the Burwood tower, or, in terms of the second paragraph, ‘on the eve of a court case.’ The chronology showed that the change of trustee had occurred in May, and that the court case had not been commenced until July, and was not heard until August.
In addition to that literal falsity, Mr Smark for the applicants also submitted that the headline by its juxtaposition of the change of trustee with the court case implied a connection or perhaps causality between the two topics. Putting it in a roundabout way, it carried with it some not entirely articulated suggestion that the change of trustee had something to do with the court case, perhaps a rearrangement of assets to avoid the consequences of an adverse costs order. That such a reading of the headline may be available seems to me to be a reasonable proposition. In Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186 a similar juxtaposition between the destruction of a development site and a fire was said to imply a connection.
The chronology of the change of trustee indicates that the original planned trustee can be traced back to at least February 2019, and probably a little bit before, and was effectuated by an instrument in May. The real property conveyances themselves, which were to bring the properties over from the old trustee to the new trustee, appear to have happened in September.
Mr Sibtain for the respondent submitted that it was not correct to say that the statement ‘while trying to stop Burwood tower’ or the words ‘on the eve of a court case’ were incorrect. The origins of the court case could be traced back to events in May when the parties were in correspondence with each other about the bulk excavation issue. He also submitted that in the context of a trust which had been in place since 2002, a period of a few months could legitimately be seen as being described as being on the eve, or possibly while trying to stop. In my opinion, there is a sufficiently arguable case that the implication to which the applicants point can be extracted from the three paragraphs in question.
Mr Sibtain also submitted that the tort of injurious falsehood was not the tort of defamation, and did not protect reputation, per se, but was rather about protecting the business or goods from damage. No doubt these are distinct concepts, but that does not mean they cannot overlap, with the primary concern of injurious falsehood being the business or goods, and the primary concern of defamation being the reputation (business or otherwise): Radio 2UE Sydney v Chesterton [2009] HCA 16; 238 CLR 460 at 468-469.
Mr Smark submitted that if the implication for which he contended could be extracted from the headline, then it suggested that Mr Bechara was a person who could not be trusted in business affairs, and that in the building industry, that would damage his business reputation and consequently damage his business. I accept that submission. Consequently, I accept that there is a reasonably arguable case that the applicants, certainly Mr Bechara, may succeed at trial, and I am satisfied that the balance of convenience also warrants a grant of an injunction.
For that reason, I will make the following orders upon the applicants giving the usual undertaking as to damages:
(1)Until further order, the Respondent be restrained, by itself or its servants or agents from publishing after 5.30 pm on 4 October 2019 in the online version of the article appearing under the headline ‘Developer Antoine Bechara sold three properties to himself as he tries to stop Burwood tower’, a copy of which is Exhibit 1 in the interlocutory application, the following words:
‘Developer Antoine Bechara sold three properties to himself as he tries to stop Burwod tower
A rival developer has sold three of his own properties to himself for nothing on the eve of a court case as he tries to halt a $40 million tower development in Burwood.
A rival developer has sold three of his own properties to himself for nothing on the eve of a court case as he tries to halt a $40 million tower development in Burwood.’(2)Order 1 be discharged from further operation.
(3)Until further order, the Respondent be restrained, by itself or its servants or agents from publishing after 12.00 pm on 5 October 2019 in the online version of the article appearing under the headline ‘Developer Antoine Bechara changed trustee while trying to stop Burwood tower’, a copy of which is Annexure A to these Orders, the following words:
‘Developer Antoine Bechara changed trustee while trying to stop Burwood tower
A rival developer has changed trustee for three properties on the eve of a court case as he tries to halt a $40 million tower development in Burwood.
A rival developer has changed trustee for three properties on the eve of a court case as he tries to halt a $40 million tower development in Burwood.’(4)Costs be reserved.
(5)The matter be stood over for case management on 16 October 2019 at 9.30 am.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 8 October 2019
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