Reported Decision: 75 NSWLR 216[2010] ALMD 6440[2010] ALMD 6364 New South Wales Court of Appeal CITATION: Naoum v Dannawi [2009] NSWCA 253 HEARING DATE(S): 14 August 2009 JUDGMENT DATE: 21 August 2009 JUDGMENT OF: Beazley JA at 1; McColl JA at 2; Macfarlan JA at 39 DECISION: Application for leave to appeal dismissed with costs CATCHWORDS: EQUITY – equitable remedies – injunctions – permanent injunction sought to restrain publication of allegedly defamatory matter – no hearing of substantive issues sought – necessity for final hearing before grant of permanent injunction LEGISLATION CITED: Defamation Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) CATEGORY: Principal judgment Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Bonnard v Perryman [1891] 2 Ch 269 Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 Church of Scientology v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344 CASES CITED: Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563 House v R [1936] HCA 40; (1936) 55 CLR 499 John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 Lewis v Daily Telegraph [1964] AC 234 Stocker v McElhinney (No 2) [1961] NSWR 1043 Y & Z v W [2007] NSWCA 329; (2007) 70 NSWLR 377 TEXTS CITED: R Meagher, J Heydon, M Leeming, Meagher, Gummow and Lehane's Equity Doctrines and Remedies, 4th ed, (2002), Butterworths Lexis Nexis P W Young, Declaratory Orders, 2nd ed (1984) Butterworths PARTIES: Robert Naoum – Applicant Nabil Zafer Dannawi - Respondent FILE NUMBER(S): CA 40284/09 COUNSEL: C A Evatt with S Milanovic - Applicant S Chrysanthou with P A Maddigan – Respondent SOLICITORS: Cadmus Lawyers – Applicant Mitry Lawyers - Respondent LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 20373/09 LOWER COURT JUDICIAL OFFICER: Harrison J LOWER COURT DATE OF DECISION: 12 August 2009 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40284/09 SC 20373/09 BEAZLEY JA McCOLL JA MACFARLAN JA Friday 21 August 2009 Robert Naoum v Nabil Zafer Dannawi Judgment 1 BEAZLEY JA: I agree with McColl JA. 2 McCOLL JA: Robert Naoum, the Consul General for Lebanon in Sydney, the applicant, moved in the Supreme Court for orders, among others, restraining Nabil Zafer Dannawi, the respondent, from further publishing allegedly defamatory material on his website and restraining him from causing that material to be posted or published on any other website or on the internet. 3 Pursuant to Practice Note SC CL 4(25) the application for an injunction, being an application against publication of defamatory matter, was made in the Common Law Division rather than the Equity Division. The proceedings came before Patten AJ on 5 August 2009 on which occasion both parties were represented, the applicant by Mr C Evatt and the respondent by Mr P H Maddigan. Although the application was opposed, his Honour made the following orders: "1. The defendant be restrained from publishing or causing to be published on the Internet (including web sites) material and/or words referring to, about or of and concerning the plaintiff until 5pm 12 August 2009. 2. An order restraining the defendant from further publishing, or causing to be further published on his [nominated] web site ... material and/or words referring to, about, or of and concerning the plaintiff until 5pm 12 August 2009." The applicant gave the usual undertaking as to damages to secure interlocutory relief, although the undertaking was not recorded in the orders as entered. It would have been prudent to do so. 4 The matter was then stood over to the list of the Common Law Duty Judge on 12 August 2009. It came before Harrison J that day for what his Honour said the parties were agreed "should be a final hearing". 5 Harrison J concluded that he should discharge the injunctions and ordered the applicant to pay the respondent's costs. 6 The matter then came before the Court of Appeal on 14 August 2009, as a matter of urgency, as an application for leave to appeal, which the parties agreed could be dealt with as a concurrent hearing as if on appeal. This means the application was conducted without the benefit of the transcript before the primary judge, but with a copy of his ex tempore judgment. No stay was sought pending the application for leave to appeal. The matter complained of 7 In addition to the prayers for relief seeking the restraining orders, the applicant's summons also sought a declaration that the respondent had published, and continued to publish, on his website material defamatory of the applicant and sought damages in respect of that claim. 8 It appears to have been common ground that the respondent published on his website in Arabic the material of which the applicant complained. An English translation was annexed to an affidavit on which the respondent relied before Harrison J. The applicant accepted that that could be taken as an accurate translation into English from the Arabic version. The material complained of appears to consist of an article the authorship of which is ascribed to the respondent, dated 22 July 2009, to which some "Feedback" and "Comments" apparently from third parties have been added, and another article dated 2 August 2009, the authorship of which is again ascribed to the respondent, with one third party comment appended. It is convenient to refer to this material compendiously as "the matter complained of". 9 Mr Elias is the applicant's solicitor. He swore an affidavit dated 4 August 2009 to which was annexed a copy of his letter to the respondent advising him of the initial application for an injunction and asserting the matter complained of conveyed 37 imputations. In this Court Mr Evatt had some difficulty indicating where in the matter complained of these imputations appeared as they were sourced to Mr Elias's translation of the material, whereas it was the respondent's translation which was relied upon below and on the application for leave. 10 At the Court's direction Mr Evatt cross-referenced the 37 imputations to a copy of the matter complained of with each paragraph numbered. Most of the imputations were said to arise from parts of the matter complained of attributed to the respondent, however imputations 21, 22, 33, 34 and 35 are said to be conveyed entirely, or to some extent, by parts of the matter complained of described as "comment". These parts, as I have said, appear to have been placed on the website by third parties. The primary judgment 11 The applicant argued before the primary judge that the injunction should be extended permanently on the basis that the material published of and concerning him amounted to vulgar abuse and threats which was susceptible to relief in the form of the injunctions sought and that, having regard to the respondent's asserted impecuniosity, damages were not an adequate remedy. 12 The primary judge did not regard it as practically convenient to restate the whole of the matter complained of in his judgment. He summarised the applicant's contentions and set out some representative portions: "6. The plaintiff contends that the material in substance and in summary is no more than a string of abuse containing or interspersed with threats of violence. It contains references to swords, bombs and biblical allusions such as revenge in the form of an 'eye for an eye' and a 'tooth for a tooth'. The articles contain references to words like 'stench', and a suggestion that the plaintiff is or should be likened to a Mafia leader. There are consistent references to him being a Zionist or a Zionist supporter, which the plaintiff contends is a significant offence having regard to the plaintiff's position as the Lebanese Consul and to the state of affairs as they presently subsist internationally between Lebanon and the State of Israel. 7. The publication contains statements such as: 'You have become accustomed to the banquets, flattery and aggrandisement, and here I am returning your lack of manners with bombs'. 8. The plaintiff relies upon that passage as a reference to violence or to the making of a threat of violence. Another statement in the same publication is in the following terms: 'I know you make from the community's Judas a media bulwark for you. Between you and me this Judas is more hated than you, even from people of his region. This Judas who got used to walking and climbing on the bodies of others, known for his conspiracies, being a slug and shagginess will not benefit you because simply I have already rubbed his ears, and if he doesn't learn his lesson, I own a very special file that will make him walk with his head down for the rest of his life'." 13 While acknowledging the excerpts he had extracted could not do justice to the entirety of the matter complained of, the primary judge noted (at [9]) that it included "what amounts to allegations by the defendant that the plaintiff is hypocritical, conceited, sick with narcissism, possibly a bully, lacking ethics and carrying out acts of intelligence rather than consular work presumably in the course of his present role." 14 Mr Evatt of counsel, who appeared for the applicant before the primary judge, indicated, in response to his Honour's inquiries, that the cause of action upon which the application was based was one "under the umbrella of defamation": primary judgment (at [12]). To that extent, as his Honour noted, Mr Evatt accepted the difficulties confronting a plaintiff seeking to enjoin the publication of allegedly defamatory material. 15 The primary judge characterised the matters complained of as follows: "14. It seems to me important for the purposes of the present application that I express an opinion about the publications and the matters complained of. Clearly enough, I am unfamiliar either with the plaintiff or the defendant personally. The material published by the defendant or apparently with his authority on an Internet site under his control strikes me, with respect to him, as a series of vaguely coherent and at times clearly incoherent ramblings. They are offensive and abusive and bespeak, for all I know, a history of enmity between the defendant and the plaintiff arising in circumstances that are unspecified and untouched by any of the evidence. Some of the material referred to as the earlier quotes will tend to suggest that the defendant is disgruntled at the way in which the plaintiff has conducted himself in his capacity as the representative of the Lebanese Government in this State and has perhaps sought or obtained confidential material and details about the defendant in an improper and inappropriate way. 15. On balance, however, most of the material complained of cannot be described in as logical a fashion. The historical, biblical and mythological references that appear to be contained in the material complained of do not give, at least an untrained reader, a real insight into the defendant's intention. " 16 His Honour noted (at [16]) that when the matter was before Patten AJ his Honour described the matters complained of "as largely consisting of a stream of abuse without making specific allegations containing defamatory imputations … [but] can be construed as veiled threats of violence." He recorded (at [17]) that the applicant founded the application for relief on a line of authority suggesting that an injunction lies to restrain or prevent an actual or threatened breach of the peace and, too, that an injunction should lie based on evidence which disclosed that the respondent was a former bankrupt and that damages would be an inadequate remedy. His Honour did not dispose of the matter on the basis of any such line of authority. No argument concerning an actual or threatened breach of the peace was relied upon in this Court. 17 The primary judge noted (at [18]) that because this was an application for a permanent injunction, questions of balance of convenience were less significant, if significant at all, than they would be at an interlocutory stage so that the financial position of the respondent was not significant. He expressed doubt (at [18]) as to whether the applicant had demonstrated a cause of action capable of protection by injunction. 18 His Honour then referred to that line of authority concerning the caution with which the courts approach applications for interlocutory injunctions in defamation cases. He observed (at [19]) that "[h]aving regard to the form and content of the matters complained of I would not have formed the view that any damage to the plaintiff's reputation is likely to have been caused by it". He also referred to the importance of the free discussion of matters of public interest and concern necessarily to be taken into account in considering whether to grant an injunction in matters of defamation. He also observed that it would be difficult to characterise the publications as containing, or referring to, matters of public interest or concern, nor was he satisfied on the limited material available that the applicant had established an entitlement to anything more than nominal damages. 19 His Honour concluded (at [20]) that despite the extreme language in the matter complained of he doubted that any of it necessarily carried defamatory imputations but, rather, would appear to the ordinary and reasonable reader to be a series of "vaguely incoherent ramblings, acknowledged collectively as invective" which, while "offensive and possibly even troublesome to the plaintiff" was "likely to be treated by the objective reader as no more and no less than a series of unstructured and irrelevant rantings." 20 Accordingly, as I have said, his Honour discharged the injunctions and ordered the applicant to pay the respondent's costs. Submissions 21 Mr Evatt accepted that the applicant sought to assert a cause of action in defamation alone to which he argued injunctive relief should go. He contended that, contrary to the primary judge's findings, the matter complained of conveyed the defamatory imputations referred to in Mr Elias's letter. He submitted that the primary judge had erred in not applying the correct test for whether the matter complained of was defamatory and, too, in concluding that the matter complained of would not injure the applicant's reputation and would sound in only nominal damages. 22 Mr Evatt also complained that the primary judge erred in not placing any, or any adequate weight, on the fact that the respondent was a former bankrupt apparently without assets. He contended that in light of the respondent's financial position the applicant had no redress except to obtain an injunction, contending that there was no point in bringing a defamation action because of the costs involved and the fact that the respondent would not be able to pay costs or damages. 23 Ms S Chrysanthou, who appeared on the application for the respondent with Mr P Maddigan, submitted that the primary judge had not erred. She contended his Honour had properly applied the principle that courts are cautious about interfering with the right of free speech by the grant of injunctive relief to restrain the publication of allegedly defamatory material, especially taking into account his conclusion that the applicant would only recover nominal damages even if successful: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 (at [32] – [34]) per Gleeson CJ and Crennan J. She argued that the exercise in which the primary judge engaged in determining whether the matter complained of was defamatory was of an evaluative nature with which this Court would only intervene if a House v R [1936] HCA 40; (1936) 55 CLR 499 error was identified. 24 Ms Chrysanthou drew the Court's attention to the affidavit the respondent had sworn which was read before the primary judge in which he asserted the matter complained of was true and represented his "honest opinion". I assume his Honour did not refer to these proposed defences because of his conclusion that the applicant had no colour of a legal right to be protected by injunction. Notice of appeal 25 If the application for leave to appeal is successful and the appeal is allowed, the applicant asks the Court to grant an injunction: " … restraining the respondent from publishing or causing to be published on the internet material defamatory of the appellant or in the alternative abusing or threatening him." Consideration 26 Where an interlocutory injunction is sought, it is necessary to identify the legal (including statutory) or equitable rights which are to be determined at the trial and in respect of which final relief is sought: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199; O'Neill (at [54]) per Gummow and Hayne JJ. 27 Although not referred to in the primary judgment, it was common ground on the application for leave to appeal, that before the primary judge the applicant abandoned that part of his summons in which he sought damages for defamation. This was made clear in Mr Evatt's summary of argument in this Court, which asserted that there was "no point in bringing a defamation action because of the costs involved and the fact that the Respondent would not be in a position to pay costs or damages". The point concerning the respondent's financial position was, I emphasise, an assertion which has not been the subject of adjudication. 28 As a result, the only "legal right" the applicant seeks to protect by way of permanent injunction is that identified in the first paragraph of the summons, namely: "A declaration the Defendant has published and continues to publish on his website ( www.alankabout.cor ) material defamatory of the Plaintiff as referred to in the affidavit of George Elias." It has been said to be "surprising to contemplate that there may be a declaration made that the plaintiff has been defamed by the defendant": P W Young, Declaratory Orders , 2nd ed (1984) Butterworths (at [1712]). This matter was not argued but I would observe that the applicant's case does not appear to fall within the rather exceptional categories to which the learned author refers. 29 I would agree with Mr Evatt that the primary judge does not appear to have determined the question whether the matter complained of was capable, as a matter of law, of being defamatory of the applicant by reference to the objective standard of the ordinary reasonable reader: Lewis v Daily Telegraph [1964] AC 234; John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 (at [18]) per McHugh J. His Honour did not err, however, in considering for the purposes of determining whether injunctive relief should be continued, that even if the respondent's publication was an actionable defamation, only nominal damages might be awarded: Stocker v McElhinney (No 2) [1961] NSWR 1043 (at 1048) per Walsh J; O'Neill (at [18] – [19]) per Gleeson CJ and Crennan J; (at [89]) per Gummow and Hayne JJ. 30 However, for the reasons which follow, it is unnecessary to explore these aspects of the application. 31 The purpose of an interlocutory injunction such as that Patten AJ granted on 5 August 2009 is to preserve the status quo until final hearing: Lenah (at [62]) per Gaudron J; (at [64]) per Gummow and Hayne JJ; (at [159(4)] per Kirby J; see also (at [6]) per Gleeson CJ; R Meagher, J Heydon, M Leeming, Meagher, Gummow and Lehane's Equity Doctrines and Remedies, 4th ed (2002), Butterworths Lexis Nexis (at [21-340]). 32 The application as it proceeded before the primary judge and in this Court, was fundamentally misconceived. The applicant sought final injunctive relief without, apparently, adverting to the necessity that before such relief could be granted (and leaving to one side for present purposes the exceptionally cautious approach courts adopt to granting injunctive relief in the defamation context where the right of free speech is emphasised), he would have to establish an actionable defamation at a final hearing. In other words he had to establish the publication by the respondent of defamatory matter (s 7(2), Defamation Act 2005 (NSW)) to which the respondent had no defence: Bonnard v Perryman [1891] 2 Ch 269 (at 284) per Lord Coleridge CJ, (Lord Esher MR and Lindley, Bowen and Lopes LJJ agreeing); Church of Scientology v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344 (at 351) per Hunt J; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 (at 158 – 159, 163 – 164) per Hunt J; O'Neill (at [19]) per Gleeson CJ and Crennan J; (at [80] – [82]) per Gummow and Hayne JJ; (at [107]) per Kirby J. 33 The applicant had not complied with the rules concerning pleading a statement of claim for defamation (Uniform Civil Procedure Rules 2005 (NSW) r 15.1), let alone discharged the burden of excluding any possible defences: O'Neill (at [208]) per Heydon J. The applicant did not put on any evidence from himself concerning the veracity or otherwise of the matter complained of. His solicitor did state in his first affidavit that the applicant denied "all the defamatory imputations made by the defendant against him in his article and subsequent commentary published by the Defendant's website". However that assertion was hearsay and was not admissible at a final hearing as evidence of the fact. 34 In any event, as I have said, the respondent had filed an affidavit asserting his belief in the truth of the matters complained of and asserting that they were his honest opinion. That was a sufficient flagging of his intention to raise those defences to resist a grant of final injunctive relief: see Church of Scientology (at 354) per Hunt J; O'Neill (at [208]) per Heydon J. 35 It was not, accordingly, open to the applicant to move for final relief absent a hearing on the merits of his cause of action in defamation. Form of injunctions 36 Reference should also be made to the form of interlocutory relief granted by Patten AJ. As will be apparent from the orders set out (at [3]) above, the injunction his Honour granted did not relate in any specific way to the material attached to the applicant's solicitor's affidavit of 4 August 2009. Nor did the injunction foreshadowed in the draft notice of appeal descend to any greater particularity. An injunction which is granted in aid of legal or equitable rights should bear upon the case alleged and to be proved against the defendant and should indicate the conduct which is enjoined or commanded to be performed, so that the defendant knows what is expected of him or her as a matter of fact. Where an injunction is in the form of an interlocutory order, it is undesirable to frame it in such a way as to leave the issues in the case open for determination on a contempt proceeding, rather than at the final hearing: Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563 (at 574 – 575) per Gummow, Foster and Hill JJ; see also Y & Z v W [2007] NSWCA 329; (2007) 70 NSWLR 377 (at [69], [72] – [76]) per Ipp JA (Spigelman CJ and Giles JA relevantly agreeing). Conclusion 37 The application for a final injunction before the primary judge having proceeded on a fundamentally misconceived basis, it would not be appropriate for this Court to grant leave to appeal. 38 In my view the application for leave to appeal should be dismissed with costs. 39 MACFARLAN JA: I agree with McColl JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.