Azbuild Pty Limited v Fairfax Media Publications [2010] NSWSC 1080

New South Wales Supreme Court

CITATION : Azbuild Pty Limited v Fairfax Media Publications [2010] NSWSC 1080

HEARING DATE(S) : 10/09/10 JUDGMENT OF : Slattery J at 1

EX TEMPORE JUDGMENT DATE : 10 September 2010

DECISION : Injunction refused.

CATCHWORDS : EQUITY - Injunctions - Interlouctory Injunctions - ex parte application to restrain a threatened libel - late application - indications of non disclosure - in evidence - balance of convenience does not favour grant - injunction refused.

CATEGORY : Procedural and other rulings

Stocker v McElhinney (No. 2) [1961] NSWLR 1043 CASES CITED : Swimsure (Laboratories) Pty Ltd v McDonald (1979) 2 NSWLR 796 T.A. Ellison Ltd v Bullock (1912) 15 CLR 679 Texaco Ltd v Mulberry Filling Station Ltd (1972) 1 All ER 513

PARTIES : Plaintiff- Azbuild Pty Limited Defendant- Fairfax Media Publications

COUNSEL : Plaintiff- T. Boyd Defendan- n/a

SOLICITORS : Plaintiff- Defendant-n/a

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST

SLATTERY J

FRIDAY, 10 SEPTEMBER 2010

(new matter) AZBUILD PTY LIMITED & ANOR v FAIRFAX MEDIA PUBLICATIONS EX TEMPORE JUDGMENT 1 HIS HONOUR: The plaintiffs Azbuild Pty Limited and Mr Kevin Azzopardi seek an interlocutory injunction restraining the publication of certain material which is threatened to be published in the Sun Herald on Sunday, 12 September. The substance of the material said to be published is defined in the summons. This material essentially is that Mr Adam Azzopardi and his company AJ Azzopardi Industries Pty Limited undertake work on behalf of Azbuild, when Azbuild is contracting for RailCorp. New South Wales Government railway infrastructure is maintained through Railcorp, which lets out much of its maintenance and construction work to private contractors. 2 The relevance of this is Mr Adam Azzopardi has had adverse findings made against him by the Independent Commission Against Corruption for work being done for RailCorp. Mr Adam Azzopardi is the brother of Mr Kevin Azzopardi. Mr Kevin Azzopardi fears that if this publication occurs that the business of Azbuild will be destroyed. There is evidence before the Court that substantial damage might be done to Azbuild's business as a result of the publication. The plaintiffs point as an example to what happened to Adam Azzopardi's own business as a result of a similar publication in Daily Telegraph in November 2007 before the ICAC inquiry was heard. 3 Because of another late matter being dealt with in this duty list, I am sitting at the unusual hour of just after 8.30 on Friday night, 10 September. This matter was drawn to the Duty Judge's attention for the first time at about 5pm today and was first mentioned after 6.30pm. It was only able to be mentioned because I was dealing with another matter at that hour. 4 There are three obstacles to the plaintiffs seeking the relief that they seek. The first is the law's traditional reluctance to grant injunctions in proceedings for pure defamation. There was obviously no pleading before me. I would not have expected it at this stage. But Mr Boyd, of counsel, has indicated to me, when asked, that the action is essentially one for defamation. 5 The principles that govern the Court's exercise of discretion against restraining the tort of defamation are well known, and it is only a most unusual case where an injunction may be granted to restrain a threatened libel: Stocker v McElhinney (No 2) (1961) 79 WN (NSW) 541 and Swimsure (Laboratories) Pty Ltd v McDonald (1979) 2 NSWLR 796. Whatever the availability of tort to this corporate entity (see Defamation Act 2005, s9), Mr Kevin Azzopardi himself is the second plaintiff, and an action is certainly open to him. That issue can be left to one side. 6 If I may say so, Mr Boyd has put everything that really can be put to the Court in this situation in the circumstances in which the application was made. But he faces two difficulties. 7 First, there is the problem of the time at which this application was made. It is evident from the correspondence that an undertaking was sought last Saturday, 4 September, to prevent publication of the same material in the edition of the Sun Herald due to be published last Sunday, 5 September. That undertaking was given. But it is quite clear on the correspondence from the journalist concerned that the undertaking only applied to last weekend. 8 The first time this week that any attempt seems to have been made to seek injunctive relief of the same character to the request last weekend was on Thursday morning of this week, 9 September. A deadline for 4pm was given for a response. There was no response by 4pm yesterday. The matter was not brought before the Court this morning but only this afternoon. 9 The nature of contests on applications to restrain publications makes timely applications for relief a priority. Mr Boyd has very frankly indicated to the Court that there is, really no explanation as to why there was no attempt to seek an undertaking earlier or why this matter did not come before the Court earlier this week. The absence of explanation for that delay is a powerful discretionary factor against the grant of relief. If reasonable notice is given in such applications it is possible for the defendant to appear the following day and, for argument to take place and for material to be put before the Court to show what evidence is presently available to the defendant to justify the publication. That is often an important consideration in the Court's exercise of discretion and on general balance of convenience issues. 10 Second, there is also a matter of disclosure, which arises from the affidavit of Adam Azzopardi, who says in paragraph 13 of his affidavit: "I acknowledge that I was dealt with by ICAC and adverse findings made against me." I would regard it as highly relevant to the grant of an injunction to know just what these adverse findings were. This is because the nature of the threatened publication involves an alleged association between Adam Azzopardi and his brother Kevin in this new business. It is not difficult to imagine findings made by ICAC which do bear upon the probability of Adam Azzopardi using other corporate entities to carry out his business or in ways that might impact upon the probability or otherwise of the matter complained of being true. I do not know that non-disclosure has occurred. The absence of the ICAC findings is a troubling matter and one that causes me concern in exercising any discretion in favour of the plaintiffs. This is a matter that could have been cured if a timely application had been made. Were I to have made this point on Monday of this week that I am now making to Mr Boyd at half past 8 on Friday night, he would have had time to react and produce an ICAC report to the Court. He cannot do that now at this hour. 11 I can see on evidence before me that Mr Weller, the plaintiffs' solicitor, has made very strenuous efforts in the last 24 hours to try and get in touch with the defendants but they have declined to appear. On one view, I am not entirely surprised, given the lateness of the application. 12 In my view the application for injunctive relief should be dismissed. I direct that the proceedings be listed before the Registrar on Tuesday 14 September 2010 at 9am. I direct the plaintiffs serve the defendants with the summons, the motion and the affidavits by 10am on Monday 13 September 2010. **********