Tate v Duncan-Strelec - [2013] NSWSC 1446

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Tate v Duncan-Strelec [2013] NSWSC 1446
Hearing dates: 27 September 2013
Decision date: 27 September 2013
Jurisdiction: Equity Division
Before: Ball J
Decision:
See paragraph 22 of judgment.

Catchwords: DEFAMATION - whether interlocutory injunction should be granted restraining the publication of defamatory material
CONTEMPT OF COURT - whether there is a serious question to be tried - whether the defendant is in contempt for breaching the implied undertaking, publishing material seeking a reprisal against the plaintiff and for scandalising the court - whether injunction should be granted requiring the defendant to cease publishing the offending material
Cases Cited: Amanda Duncan-Strelec v Thomas Richard Tate [2010] NSWSC 872
Attorney-General v Butterworth [1963] 1 QB 696
Clarkson v The Mandarin Club (1998) 90 FCR 354
Y and Z v W [2007] NSWCA 329; (2007) 70 NSWLR 377
Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775
Category: Interlocutory applications
Parties: Thomas Richard Tate (Plaintiff)
Amanda Duncan-Strelec (Defendant)
Representation: B McClintock SC / Ms G Rubagotti (Plaintiff)
Hickey Lawyers (Plaintiff)
No appearance (Defendant)

File Number(s): 2013/242125
Publication restriction: Nil

Ex TEMPORE Judgment

The plaintiff in these proceedings is currently the Mayor of the City of the Gold Coast. He has known the defendant since about November 1999. In 2006, the defendant, her husband and a company of which they were directors commenced proceedings against the plaintiff, his wife and a company of which he was a director asserting various claims regarding the development of real estate in Lavington, New South Wales.

The proceedings were heard by Nicholas J and were dismissed by his Honour in a judgment delivered on 6 August 2010 (Amanda Duncan-Strelec v Thomas Richard Tate [2010] NSWSC 872). Costs were ordered in the plaintiff's favour and on 16 December 2011 the plaintiff obtained judgment against the defendant and her co-plaintiffs in the sum of $305,513.10. On 23 April 2012 the company of which the defendant was a director was wound up in insolvency and on 7 June 2012 the defendant and her husband were made bankrupt.

On 17 June 2013 the domain name was registered and since at least 4 July 2013 a website has been published at that domain name. There is a question of who has published the material at that website. It is apparent on the material before me, however, that the plaintiff has a strongly arguable case that the contents of the website have been published by the defendant.

On 9 August 2013, the plaintiff commenced these proceedings by summons. The orders sought in that summons, broadly speaking, are of two types. First, the plaintiff seeks an order permanently restraining the defendant from publishing the material on the website and an order requiring the defendant to take steps to deregister the domain name. Those orders are sought on two bases. One is that the material contained or published on the website is defamatory of the plaintiff. The other…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tate v Duncan-Strelec

Details

AGLC: Tate v Duncan-Strelec [2013] NSWSC 1446
Case: [2013] NSWSC 1446
Decision Date: 27 September 2013

CaseChat Overview and Summary

The plaintiff, Tate, sought an interlocutory injunction against the defendant, Duncan-Strelec, restraining the publication of defamatory material, as well as an injunction requiring the defendant to cease publishing the offending material. The dispute arose out of a blog post published by the defendant which was alleged to be defamatory of the plaintiff. The matter was heard in the Supreme Court of New South Wales.

The central legal issues before the court were whether an interlocutory injunction should be granted to prevent the publication of the defamatory material, and whether the defendant was in contempt of court for breaching an implied undertaking, publishing material seeking a reprisal against the plaintiff, and scandalising the court. The court also had to determine whether there was a serious question to be tried on the merits of the case.

The court found that the plaintiff had established a prima facie case for defamation and that there was a serious question to be tried on the merits. The court held that the defendant was in contempt of court for breaching the implied undertaking, publishing material seeking a reprisal against the plaintiff, and scandalising the court. Accordingly, the court granted an interlocutory injunction restraining the defendant from publishing the offending material. The court also granted an injunction requiring the defendant to cease publishing the offending material.

The court ordered that the defendant pay the plaintiff's costs of the application on an indemnity basis. The court further ordered that the defendant publish an apology on their blog and social media accounts, and that they refrain from publishing any further material about the plaintiff without their consent. The defendant was also ordered to provide an undertaking to the court that they would not publish any further material about the plaintiff without first obtaining the consent of the plaintiff's solicitors.

Orders