Omaya Investments Pty Ltd v Nationwide News Pty Ltd (Injunction Application) [2019] FCA 1652

FEDERAL COURT OF AUSTRALIA

Omaya Investments Pty Ltd v Nationwide News Pty Ltd (Injunction Application) [2019] FCA 1652 File number: NSD 1598 of 2019

Judge: PERRAM J

Date of judgment: 3 October 2019

Date of publication of reasons: 8 October 2019

Catchwords: PRACTICE AND PROCEDURE – interlocutory application for injunction to restrain publication and to edit or remove existing publication – where respondent indicated intention to edit existing publication at interlocutory hearing – where evidence of falsity of publication

Date of hearing: 3 October 2019

Registry: New South Wales

Division: General Division

National Practice Area: Other Federal Jurisdiction

Category: Catchwords

Number of paragraphs: 13

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: 3 OCTOBER 2019

THE COURT ORDERS THAT:

1. The matter be listed 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.

REASONS FOR JUDGMENT

PERRAM J: 1 This is an application for an interlocutory mandatory injunction which would require the respondent to alter what is presently an online publication, and the application also extends to restraining the respondent from certain future publications. 2 The matter arises in this way: the applicants have been involved in proceedings before the Land and Environment Court which attracted some attention in the press. The dispute in that court is a dispute between developers. The respondent on 1 October 2019 published a story in its online paper, The Daily Telegraph, in which it suggested that one of the applicants had sold three properties to himself in the course of the proceedings. That publication became Exhibit 1 before me. 3 Yesterday, 2 October 2019, proceedings were commenced in this Court seeking to restrain that publication and also seeking to restrain an apprehended future publication. The first three paragraphs of Exhibit 1 are: Developer Antoine Bechara sold three properties to himself as he tries to stop Burwood 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. 4 Later in the article, there appeared the following paragraph: Records show that meanwhile, Omaya Investments sold all three of the George Street properties to another of Mr Bechara's companies, BSM Holdings, on September 10 for nothing. Omaya paid $1,250,000 each for numbers 8 and 12 George Street in 2013 and $780,000 for number 10 in 2004. 5 Read in its full context, it will be apparent that the headline is not accurate. The first applicant, Mr Bechara, did not sell himself anything. What appears to have happened is, at least on the face of the article, that the title was transferred in three properties from one entity associated with Mr Bechara to another entity also associated with Mr Bechara. 6 After the article was published, there was correspondence and discussion between the journalist at the respondent, Ms Fife-Yeomans, and the solicitors for the present applicants. During the course of those conversations the solicitors indicated to Ms Fife-Yeomans that all that had actually happened was an antecedent transaction whereby there had been a change in trustee to family trusts associated with Mr Bechara and that this was an entirely innocuous transaction in light of that fact. 7 The interlocutory application first came before me yesterday afternoon. At that time, the respondent agreed that the matter could be stood over to today and in the meantime it would only report the fact of the injunction application having taken place. The matter returned before me at 4.00 pm today. At that time there were read two affidavits by the applicants' solicitors. These affidavits explained in detail the transaction which had taken place. Shortly, the trustee of one of the family trusts was, indeed, changed to a new trustee and representations were made several months ago to Revenue NSW that because the transactions only involved a change in trustee only nominal duties should be imposed upon the transaction. 8 Ultimately, in September, that is a view to which Revenue NSW acceded and a nominal duty of $50 was imposed. It will be apparent from that description that the suggestion that the transaction is in some way irregular may be difficult to maintain. I am certainly satisfied at a sufficient level for the purpose of the present application that knowing what has now been disclosed in these two affidavits at the very least renders the first three paragraphs of the article which is Exhibit 1 not true. I do not need to determine that it is actually not true but I am satisfied at a reasonably high level that that is the case. 9 There was some debate between the parties as to whether the conveying of that information to Ms Fife-Yeomans yesterday by means of the discussions which took place between the respondent and the applicants' solicitors was sufficient at that time to render any further publication untrue or false. At that time, Ms Fife-Yeomans invited the solicitors to make the statements on the record, an invitation which they declined on the basis that they were not willing to comment on proceedings in which they were acting. I can understand why Ms Fife-Yeomans may not have been totally satisfied with that response at that time. 10 In any event, however, events had moved on from there and we now all have the benefit of the affidavits of the applicants' solicitors. Being satisfied that the publication which is presently Exhibit 1 is false and there must be a strong case at this point that it must be now known to be false, it seems to me that in principle I should grant an injunction at least in relation to the first three paragraphs of Exhibit 1. I do not need to spend any time on the balance of convenience. In that regard those considerations will be obvious. I indicated this opinion to counsel for the respondents in the course of argument and suggested that might be my conclusion. 11 I then adjourned and when I returned counsel for the respondent, Mr Sibtain, informed me that it was the intention of the respondent to take down within 24 hours the first three paragraphs of Exhibit 1 and to replace them with something more anodyne – that being my word, and not his. That does not remove the fact that the publication is presently there and I do not think that it provides a reason for not granting an injunction in relation to those three paragraphs. So I will indicate that I will grant relief about that. The broader aspect of the applicants' contention yesterday related to whether there would be a further publication of another story. 12 I am not satisfied in light of the events which have taken place that the respondent is likely to publish a story in which a message along the lines of the first three paragraphs of Exhibit 1 is again conveyed. I reached that conclusion for a number of reasons: first, by the offer or the indication which Mr Sibtain gave to the court today it is apparent that the respondent does not intend to repeat that story. Secondly, now that the materials are all available, it seems to me unlikely, and I have nothing from which I may safely infer that the respondent would embark upon a publication of a story along the lines of what appears in the first three paragraphs of Exhibit 1. I therefore refuse to grant an injunction of that kind. 13 It will be necessary to formulate the orders which I have in mind and there may be some debate about costs. The only order I will make now is that I will stand the matter over for a case management hearing on 16 October 2019 at 9.30 am. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.