Perdon Pty Ltd v Law Coast Mortgages Pty Ltd

[1999] FCA 478

FEDERAL COURT OF AUSTRALIA

Perdon Pty Ltd v Law Coast Mortgages Pty Ltd [1999] FCA 478

PERDON PTY LTD v LAW COAST MORTGAGES PTY LTD, KIM CHRISTIE, ALAN CHARLES PARRY, IAN CHARLES GRIFFITHS, CHRISTINE MATSINGER, MALCOLM DONALD McCOLM

Q 1 OF 1999

COOPER J
BRISBANE
12 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q1 OF 1999

BETWEEN:	PERDON PTY LTD Applicant
AND:	LAW COAST MORTGAGES PTY LTD, KIM CHRISTIE, ALAN CHARLES PARRY, IAN CHARLES GRIFFITHS, CHRISTINE MATSINGER, MALCOLM DONALD McCOLM Respondents
JUDGE:	COOPER J
DATE OF ORDER:	12 APRIL 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

Upon the applicants to the notice of motion giving the usual undertakings as to damages :

1.The applicant, Perdon Pty Ltd, by itself, its directors, its servants and agents and its authorised agent in these proceedings Gregory Eric Rogers and everyone of them be restrained and an injunction be granted restraining the Applicant, Perdon Pty Ltd, by itself, its directors, its servants and agents and its authorised agent in these proceedings Gregory Eric Rogers and everyone of them from publishing the words appearing in the document titled “The Default Business.  A report on White Collar Fraud Conceived and Operated by Solicitors Law Mortgages Australia Griffiths McColm & Parry Law Coast Mortgages P/L Law Mortgage Management P/L” a copy of which is exhibit “KC1” to the affidavit of Kim Christie, or publishing words to the effect that Law Mortgages Australia, Griffiths McColm & Parry or any of its partners or staff, Law Coast Mortgages Pty Ltd or Law Mortgage Management Pty Ltd have engaged in criminal, illegal or unethical behaviour in relation to the provision of mortgage loans until 4.00 pm on 21 April 1999 or until further earlier order.

2.The applicant, Perdon Pty Ltd, within four hours of service of this order upon it provide to the respondents a list of all persons other than the court staff to whom the applicant by itself or its authorised agent Gregory Eric Rogers, its directors, servants or agents had published the document titled “The Default Business.  A report on White Collar Fraud Conceived and Operated by Solicitors Law Mortgages Australia Griffiths McColm & Parry Law Coast Mortgages P/L Law Mortgage Management P/L” whether the said document was so published as an annexure to the affidavit of the said Gregory Eric Rogers filed or otherwise.

3.The affidavit of Gregory Eric Rogers filed 12 April 1999 exhibiting the document styled “The Default Business. A report on White Collar Fraud Conceived and Operated by Solicitors Law Mortgages Australia Griffiths McColm & Parry Law Coast Mortgages P/L Law Mortgage Management P/L” be placed in an envelope and sealed and marked “Not to be opened without the prior order of the court or a Judge of it.”

4.The costs of and incidental to this application be reserved.

5.Law Mortgages Management Pty Ltd, Peter Charles Drake, Mitchell Patrick Dwyer and Law Mortgages Australia (a firm) be granted leave to intervene as applicants on the within notice of motion.

6.Each party to the notice of motion have liberty to apply on one clear days’ notice.

7.The notice of motion be adjourned to 10.15 am on 21 April 1999 for further hearing before Spender J.

8.Service of this order be effected by sending a copy of the order to the respondent to the notice of motion by fax to (07)  3267 1992.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY		Q1 OF 1999
BETWEEN:	PERDON PTY LTD Applicant
AND:	LAW COAST MORTGAGES PTY LTD, KIM CHRISTIE, ALAN CHARLES PARRY, IAN CHARLES GRIFFITHS, CHRISTINE MATSINGER, MALCOLM DONALD McCOLM Respondent
JUDGE:	COOPER J
DATE:	12 APRIL 1999
PLACE:	BRISBANE

EX TEMPORE REASONS FOR JUDGMENT

1. I have looked at the material which has been exhibited to the affidavit of Gregory Eric Rogers filed in these proceedings.  In particular, I have had a look at a document which is Annexure 6 to that affidavit being also the document exhibited to the affidavit of Kim Christie as exhibit KC1.  The document is defamatory of the respondents to the principal action and to the parties represented on this notice of motion by Mr Bland of counsel. 

2. Having regard to the circumstances in which the document has been filed and the threat to disclose its contents to the press, I am satisfied that the document is primarily being filed in the proceedings as an abuse of process in order to attempt to cloak it with privilege, to protect the maker of the document in its threatened publication from a suit for defamation. 

3. In those circumstances, although the Court is loath to intervene to restrain the publication of defamatory material, I am satisfied that, on an interim basis at least, this is a proper case to intervene, and the balance of convenience as it appears to me at this stage is wholly in favour of the applicants on the notice of motion. 

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper .

Associate:
Dated:             12 April 1999

Counsel for the Respondent:	M K Conrick
Solicitor for the Respondent:	T F Wardrobe trading as Griffiths McColm Parry
Counsel for the Intervener:	R Bland
Solicitor for the Intervener:	Quinn & Co
Date of Hearing:	12 April 1999
Date of Judgment:	12 April 1999