Prime Life Corporation Ltd v Andrejic
[2000] VSC 250
•2 June 2000
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 2018 of 2000
| PRIME LIFE CORPORATION LTD. | Plaintiff |
| v. | |
| ZLATKO ANDREJIC AND OTHERS | Defendants |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 JUNE 2000 | |
DATE OF JUDGMENT: | 2 JUNE 2000 | |
CASE MAY BE CITED AS: | PRIME LIFE v. ANDREJIC & ORS. | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 250 | |
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CATCHWORDS: Interlocutory injunction to prevent publication of false and malicious material.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. H. Jolson Q.C. with Mr. M. Bevan-John | Russell Kennedy |
| For the First Defendant | In Person |
HIS HONOUR:
The plaintiff in this proceeding, Prime Life Corporation Ltd, first applied to the court for injunctive relief against the defendants, Zlatko Andrejic, Zams Investments Pty Ltd, Zams Aged Care Limited and ZL Investments Pty Ltd on 29 February 2000. I should have added that the defendant companies are controlled by the first named defendant.
Its complaint at that time concerned the use the defendants were making of material which the plaintiff alleges was its material and which had been removed from its possession by the first named defendant who had been one of its employees. It also complained at that time concerning the publication by the defendants of a letter dated 27 February 2000, about the operations of the plaintiff; a letter which, the plaintiff contends, contains a number of malicious and false statements concerning the plaintiff and the operations carried on by it.
Being satisfied that it was appropriate to do so, on 29 February I made, amongst other things, the following orders against the defendants:
"1.That each of the defendants, whether by themselves, their servants or agents or howsoever otherwise, be restrained until 4.15 p.m. On Friday 3 March 2000 or further order from using in any way or from copying or otherwise using materials which are the subject of the plaintiff's copyright or deceptively similar in any way to the material, format or content of Exhibit "SP-6" to the affidavit sworn herein 29 February 2000 by Sandra Joy Porter.
2.That each of the defendants, whether by themselves, their servants or agents or howsoever otherwise, be restrained until 4.15 p.m. On Friday 3 March 2000 or further order from uttering, broadcasting or otherwise publishing false or misleading information about the plaintiff.
3.That the defendant deliver up on oath any originals or copies of the plaintiff's copyright materials, whether in print, tape or disc based or other format."
In due course the matter returned before me on 3 March. At that time the defendants were represented by counsel. Following discussion between counsel for the parties, the dispute between them that day was resolved upon the parties giving various undertakings to the court.
The undertakings set out in my order of 3 March read:
"UPON THE DEFENDANTS, by their counsel, undertaking to the Court until judgment or further order in this proceeding that (except for the purposes of this or any other proceeding) they will not, by themselves or any employee or agent -
(a)copy or use any document in the form of exhibit "SP-6" to the affidavit sworn on 29 February 2000 by Sandra Joy Porter, or any part thereof;
(b)utter, broadcast or otherwise publish to any person any information about the Plaintiff known by the Defendants to be false or misleading, or with reckless disregard to the truth or falsity of such information;
AND UPON the further undertaking of the Defendants to deliver up to the Plaintiff's solicitors herein by 4 p.m. On 10 March 2000 any original or copy document, or document in computer readable form, now in their possession custody or control, in the form of or similar to exhibit "SP-12" to the affidavit of Sandra Joy Porter sworn on 2 March 2000;
AND UPON the further undertaking of the first Defendant to swear and to serve on the solicitor for the Plaintiff herein by 5 p.m. Today, 3 March 2000 a confidential affidavit, for use only by the Plaintiff's legal advisers, as to each person or entity to whom he published or caused to be published the letter exhibited as "SP-9" to the affidavit of Sandra Joy Porter sworn on 29 February 2000, and the date of the posting or transmission of such publication;
AND UPON the undertaking of Robert Ewing on behalf of Russell Kennedy that they will use such confidential affidavit only for the purpose of enabling a letter to be sent to each such person or entity described in such affidavit responding to such letter, and to provide a copy of such response within 7 days of delivery to the solicitors for the Defendants, AND UPON HIS UNDERTAKING THAT they will not disclose the contents of such affidavit to the Plaintiff."
I then ordered that the interim injunctions granted on 29 February 2000 be discharged.
In due course the first named defendant swore the appropriate affidavit on behalf of the defendants. Up until that time it was thought that the only letter distributed by the defendants was the two paged letter being Exhibit 9 to Porter's affidavit of 29 February 2000. It has now transpired that that was not the case and that the material distributed by the defendants included a further covering letter and an addendum dated 28 February 2000. In that regard see Exhibits 13 and 14B to Porter's affidavit sworn 26 May 2000. But of more significance, it has now become apparent that the defendants have distributed the material in question to persons other than those disclosed in the affidavit of the first defendant sworn 3 March.
As a consequence of these more recent revelations the plaintiff now returns to the court seeking further injunctive relief in the proceeding.
On any view of the matter there are serious issues to be tried in the proceeding. Further, in the absence of any answering affidavits filed on behalf of the defendants, it is arguable that the defendants had, on the dates they published the material in question, no genuine belief in the truth of what are clearly defamatory words and published them and would continue to do so, if not restrained, reckless of their truth or falsehood, in order to damage the business of the plaintiff and promote their own business in opposition to that of the plaintiff.
In my opinion the balance of convenience in this case lies in stopping what will quite likely turn out to be malicious and injurious falsehoods.
During the course of the hearing the first defendant, who appeared in person before the court, handed me a 27 paragraph document headed "application". In my opinion the content of the document does not in any way alter my view as to the plaintiff's entitlement to injunctive relief.
If the defendants, or any one of them, consider that they have a valid counterclaim against the plaintiff, they can pursue that counterclaim in the appropriate fashion.
The first defendant contends that the defendants were authorized to publish the material in question by virtue of the provisions of s.108G of the Health Services Act 1988, and under s.56 of the Age Care Act 1997 (Commonwealth).
I simply say in response to that contention that in my opinion those Acts give no authority to any person to publish false and malicious statements concerning a competitor and the business operated by that competitor.
In addition to further injunctive relief in the matter, the plaintiff seeks that Mr Ewing be released from the undertaking he gave to the court on 3 March.
The affidavit material filed in the court on behalf of the plaintiff indicates now the impractibility of imposing such a restriction on Mr Ewing.
In my opinion, it cannot be suggested that the material contained in the first named defendant's affidavit of 3 March 2000 is commercially sensitive and I can see no basis now, particularly in the light of what has happened since those undertakings were given to the court, why Mr Ewing should not be entitled to discuss the content of that affidavit with officers of the plaintiff.
Mr Jolson, do you give the usual undertaking as to damages on behalf of the plaintiff?
MR JOLSON: Yes, Your Honour.
HIS HONOUR: Thank you.
That undertaking as to damages having been given, I make the following orders in the proceeding:
1.The plaintiff's solicitor, Robert Ewing, be released from his undertaking given to the Court on 3 March 2000 on behalf of himself and the firm of Russell Kennedy.
2.The first defendant, by himself, his servants or agents or howsoever otherwise, be enjoined until judgment in this proceeding or further order from publishing uttering or broadcasting by any means (whether at meetings of the plaintiff or otherwise) any of the allegations made in the letters which are exhibits "SP-9", "SP-13" and "SP-14B" to the affidavits sworn in this proceeding by Sandra Joy Porter or other versions of those letters (collectively, "the letters").
3.The first defendant file and serve on the solicitor for the plaintiff herein, by 4 p.m. On 13 June 2000, an affidavit disclosing each person or entity to whom he published or caused to be published the letters and which -
(a) exhibits each version of the letters which he sent;
(b)discloses which entities were sent which version or versions of the letters;
(c)discloses, if the entity to whom the letters were sent was not a natural person, to which person or officer or position (if any) they were addressed or otherwise directed;
(d)discloses, if the entity to whom the letters were sent was a natural person, that person's full name and any office;
(e)identifies all transmission details of the letters, including facsimile, postal or e-mail details;
(f)sets out the date and time (where possible) of each transmission of the letters;
(g)if the transmission of the letters took place after 29 February 2000, fully explains how that came to be; and
(h)explains why he did not disclose that he had sent other versions of the letter which is exhibit "SP-9".
4. The plaintiff file and serve its Statement of Claim by 4 p.m. On 13 June 2000.
5. I reserve the costs of this application.
6.I direct that that order be prepared by the solicitors for the plaintiff and brought to me for authentication.
(Discussion ensued)
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