Y & Z v W [2007] NSWCA 329

Reported Decision: 70 NSWLR 377

New South Wales Court of Appeal

CITATION: Y & Z v W [2007] NSWCA 329 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 25/10/07

JUDGMENT DATE: 12 November 2007

JUDGMENT OF: Spigelman CJ at 1; Giles JA at 13; Ipp JA at 24

DECISION: (1) The appeal is partially upheld. (2) Order 1.2 is set aside. (3) Order 1.3 is varied by the deletion of the words "and 1.2". (4) Otherwise the appeal is dismissed. (5) W is to pay the appellants' costs of the appeal. (6) The matter is remitted to the Equity Division for further hearing as to whether, having regard to the new evidence that has been filed, interlocutory restraining orders should continue to be of force and, if so, in what terms. (7) Orders (2) and (3) are suspended for 28 days from the delivery of this judgment to enable the hearing contemplated by order (6) to take place and appropriate orders to be made.

CATCHWORDS: CONTEMPT OF COURT – misuse of court's processes – whether the threatened filing in separate proceedings by the appellants of an affidavit containing irrelevant and scandalous material, thereby prejudicing the respondent, amounted to an abuse of the court's processes - CONTEMPT OF COURT – obstruction of the due administration of justice – whether, by bringing improper pressure to bear on the defendant in collateral proceedings so as to induce the settlement of such proceedings, the appellants obstructed the due administration of justice – whether the fact that such pressure was channelled through the respondent as a third party intermediary was material to the court's finding that the appellants were guilty of contempt of court – onus and standard of proof – whether the material in question had a real and definite tendency, as distinct from a mere possibility, to interfere with the due administration of justice as to entitle her to interlocutory relief – objective / subjective test - CONTEMPT OF COURT – orders of chambers judge – width of orders – whether particular orders made by chambers judge were unnecessary or too wide – whether the unchallenged orders were wide enough to afford the respondent the protection she required – whether potential publication of material calculated to expose the respondent to ridicule, hatred and contempt – considerations of freedom of speech – balance between public interest in freedom of speech against public interest in the administration of justice – whether the orders granting an injunction were so wide as to distort this balance – consideration of potential harm to third parties as a result of improper pressure - DEFAMATION – orders of chambers judge – width of orders – whether order on defamatory ground could be supported – whether respondent established with reasonable certainty the words of the threatened publication – difference between final and interlocutory injunctions – whether requirement of reasonable certainty alleviated in cases of interlocutory relief – whether, if the words were uncertain, such uncertainty leads to the conclusion that the chambers judge could not conclude that there was certainty of defamatory publication – consideration of public interest in free speech – whether balance of convenience favoured the granting of an interlocutory injunction - EQUITY – equitable remedies – injunctions – interlocutory injunctions – contempt of court – misuse of processes of court – threatened filing of affidavit containing irrelevant and scandalous material – width and particularity of orders - EQUITY – equitable remedies – injunctions – interlocutory injunctions – contempt of court – obstruction of the due administration of justice – improper pressure placed on party to collateral proceedings – width and particularity of orders - EQUITY – equitable remedies – injunctions – interlocutory injunctions – defamation – threat to publish material carrying defamatory imputations – width and particularity of orders. D