Riske v Oxley Insurance Brokers Pty Limited
[2013] NSWSC 972
•15 July 2013
Supreme Court
New South Wales
Medium Neutral Citation: Riske v Oxley Insurance Brokers Pty Limited [2013] NSWSC 972 Hearing dates: 15/07/2013 Decision date: 15 July 2013 Jurisdiction: Common Law Before: Garling J Decision: (1) I note that the plaintiffs, by their counsel, give the usual undertaking as to damages.
(2) I note that the defendants do not oppose the orders which I am shortly to pronounce, but their non-opposition is in circumstances where they make it plain that they make no admissions as to the facts upon which such order may be based.
(3) I order that until further order of the Court, the defendants be, and hereby are, restrained from publishing or continuing to publish any representations regarding the circumstances of the termination of the first or second plaintiffs from their employment with the first defendant in October 2011.
(4) I note that it will not be a breach of this order for the defendants to publish or convey such representations to:
(a) any legal advisor retained for the purposes of this case;
(b) to any person, where such disclosure is made solely for the purpose of the preparation of the defence of these proceedings; and
(c) when required by law or by any appropriate government or statutory authority
(5) I order that the costs of this Notice of Motion be costs in the cause.
(6) I order the defendants to serve any objections and request for particulars of the plaintiff's Statement of Claim by 30 July 2013.
(7) I order the plaintiffs to answer such objections and requests for particulars by 13 August 2013.
(8) I order that the proceedings stand over to 9am on 27 August 2013 before the registrar for further directions.
(9) I grant liberty to apply on two days' notice
Catchwords: DEFAMATION - application for interlocutory injunction - no point of principle. Category: Interlocutory applications Parties: Lee Hendrick Riske (P1)
Stephen Edward Charles Cook (P2)
Oxley Insurance Brokers Pty Limited (D1)
Rodney Paul McLean (D2)Representation: Counsel:
C P O'Neill (P1 & P2)
D Caspersonn (D1 & D2)
Solicitors:
Priest McCarron (P1 & P2)
Lee & Lyons (D1)
File Number(s): 2013/184125
EX TEMPORE Judgment
Prior to October 2011, the plaintiffs, Mr Riske and Mr Cook were employed by the first defendant, Oxley Insurance Brokers Pty Ltd. The second defendant, Mr Rodney McLean, is the principal of Oxley Insurance Brokers.
On 5 October 2011, Oxley Insurance Brokers terminated the employment of the plaintiffs without notice. That same month the plaintiffs brought proceedings against Oxley Insurance Brokers for unfair dismissal. On 23 December 2011 the parties settled the unfair dismissal case by way of a Deed of Agreement.
The Deed recited the facts to which I have just drawn attention, and noted in particular the following:
"Riske, Cook and OIB have agreed to settle all matters arising out of Riske's employment, Cook's employment, the termination of Riske's employment, the termination of Cook's employment, Riske's post-employment obligations, Cook's post-employment obligations, Riske's unfair dismissal application, and Cook's unfair dismissal application without any admissions as to liability by any party on the terms and conditions set out in the deed."
The Deed was agreed between the parties to be confidential. Clause 8 of the Deed was to the following effect:
"The parties will keep confidential and will not disclose to any third parties other than to their legal and/or financial advisors as necessary: (a) circumstances surrounding the entering into of this deed; and (b) the terms of this deed except as may be required by law or any competent government or statutory authority."
Clause 9 of the Deed agreed that the Deed constituted the entire agreement between the parties and could only be amended by a further written deed or agreement.
Clause 10 noted that the parties had each acknowledged that they had had the opportunity to, and had received, independent legal advice prior to the entry into the Deed.
On 28 March 2013, the solicitors for the plaintiffs wrote to Oxley Insurance Brokers, drawing the attention of that company to three allegedly defamatory statements. The first was said to have been made on 19 December 2012, in a letter to a person who appears to be a former client of Oxley Insurance Brokers. The second was an oral statement allegedly made on 18 June 2012, and the third was said to have been made at an unidentified point in time, after December 2011, to an unidentified employee or officer of AXA Financial Group.
It is beyond question that a representation was made in December 2012, in a letter to a former client. The terms of that letter will speak for themselves. On 2 April 2013, Mr McLean, the second defendant, admitted that he had spoken in June 2012 to Ms Maun. This is the second allegedly defamatory statement. He accepted that he said to her, speaking about one of the plaintiffs: "Unfortunately, I had to terminate his employment, due to a serious and wilful misconduct issue." The publication to the officers of AXA Insurance, the third allegedly defamatory statement, is so far unparticularised, and is not admitted by Oxley Insurance Brokers.
In proceedings commenced in June 2013, it is pleaded that each of these three publications is defamatory of the plaintiffs. The Statement of Claim does not include any cause of action based upon any alleged breach of the Deed entered into in December 2011, nor for specific performance of the terms of that Deed, but rather simply claims damages because of the defamatory nature of the publications.
On 1 July 2013, a Notice of Motion was filed by the plaintiffs seeking an order to this effect:
"That pending further order of the court, the defendants be restrained from publishing or continuing to publish any representations regarding the circumstances of the termination of the first or and second plaintiffs from their employment of the first defendant."
The plaintiffs recognise that to secure such an order of the court, they are obliged to, and their Counsel does, offer the usual undertaking as to damages.
The defendants, without making any admission, consent to the order being made subject to two exceptions. The first is that there ought be no restriction on the defendants obtaining legal advice or in making proper preparations for the purpose of this case, to repeat the representations, if that is appropriate in obtaining advice or for the purposes of the case.
The second is that clause 8 of the Deed of Confidentiality released each of the parties from obligations of confidence where disclosure was required by reason of any obligation of law, or by any competent government or statutory authority. The defendants submit that a similar exception ought be made to the orders which the plaintiffs seek.
The plaintiffs press the Court to make the order without such restrictions, or, alternatively, to make it subject to a condition that the defendants disclose to the plaintiffs the names of the persons to whom the representations have been disclosed and at least, parenthetically, the purpose of such disclosure. The plaintiffs submit that the balance of convenience favours the making of the order in the terms in which it is made, because the past conduct about the publication of representations suggests that the defendants will continue to make defamatory statements of the kind already pleaded, unless they are restrained from so doing.
There is no evidence before me of any imminent publication of the substance of the allegedly defamatory representations, which have been made in the past. It is now, so far as can be told, six months or so since the last defamatory publication is alleged to have been made.
As well, so far as it appears, there is a limited audience to whom such publications have been made in the past, so that even if past conduct were taken to be an indicator of future conduct, there is no reason to think that the defendants would publish these representations to the world at large, but rather, publish them to limited and targeted groups. Neither of those groups include anybody who might be properly connected with the restrictions which the defendants propose.
It is unnecessary for me to resolve the issue of the likelihood of future publications, because I'm satisfied that even if I was to make an order based on past conduct, it would not be in the interests of justice to make that order any more broadly than the persons or groups or organisations or classes of persons, groups or organisations to which publication has been made in the past.
Approaching the matter in that way, I am satisfied that the defendants' approach in fact accepts a broader restriction on publication than that which I would have been otherwise minded to order and, even though the defendants will consent to the order without admission of liability or without admission as to their past conduct, it seems to me that the interests of justice are better served if I make the order as sought by the plaintiffs, noting the defendants do not make any admission and further noting that certain publications of the representations will not constitute a breach of the order.
Accordingly, I make the following orders:
(1) I note that the plaintiffs, by their counsel, give the usual undertaking as to damages.
(2) I note that the defendants do not oppose the orders, which I am shortly to pronounce, but their non-opposition is in circumstances where they make it plain that they make no admissions as to the facts upon which such order may be based.
(3) I order that until further order of the Court, the defendants be, and hereby are, restrained from publishing or continuing to publish any representations regarding the circumstances of the termination of the first or second plaintiffs from their employment with the first defendant in October 2011.
(4) I note that it will not be a breach of this order for the defendants to publish or convey such representations to:
(a) any legal advisor retained for the purposes of this case;
(b) to any person, where such disclosure is made solely for the purpose of the preparation of the defence of these proceedings; and
(c) when required by law or by any appropriate government or statutory authority
(5) I order that the costs of this Notice of Motion be costs in the cause.
(6) I order the defendants to serve any objections and request for particulars of the plaintiff's Statement of Claim by 30 July 2013.
(7) I order the plaintiffs to answer such objections and requests for particulars by 13 August 2013.
(8) I order that the proceedings stand over to 9am on 27 August 2013 before the registrar for further directions.
(9) I grant liberty to apply on two days' notice
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Decision last updated: 05 August 2013
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