New South Wales Court of Appeal CITATION: AAMAC Warehousing & Transport Pty Limited v Fairfax Media Publications Pty Ltd [2009] NSWCA 316 HEARING DATE(S): 28 September 2009 JUDGMENT DATE: 28 September 2009 JUDGMENT OF: Campbell JA EX TEMPORE JUDGMENT DATE: 28 September 2009 DECISION: Further stay of orders refused. Applicants to pay Respondents' costs of Motion CATCHWORDS: APPEAL - practice and procedure - Court of Appeal - stay of orders pending appeal - whether serious question to be tried - whether there was malice for the purpose of the tort of injurious falsehood - whether discretionary procedural decisions of the trial judge should be reviewed LEGISLATION CITED: Fair Trading Act 1987 CATEGORY: Procedural and other rulings AAMAC Warehousing & Transport Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 970 AAMAC Warehousing & Transport Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 1029 AAMAC Warehousing & Transport Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 1030 CASES CITED: House v The King (1936) 55 CLR 499 Kalifair Pty Ltd v Digi tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737 Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 AAMAC Warehousing & Transport Pty Limited - First Applicant Peter Panayi - Second Applicant Bruce Clark - Third Applicant PARTIES: Fairfax Media Publications Pty Limited - First Respondent Linton Besser - Second Respondent John Fairfax Limited - Third Respondent Fairfax Media Limited - Fourth Respondent FILE NUMBER(S): CA 40353/09 COUNSEL: RR Harper SC; CP Carter - Applicants S Dawson - Respondents SOLICITORS: McKells - Applicants Johnson Winter & Slattery - Respondents LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): 3397/09 LOWER COURT JUDICIAL OFFICER: Slattery J LOWER COURT DATE OF DECISION: 21 September 2009 LOWER COURT MEDIUM NEUTRAL CITATION: AAMAC Warehousing & Transport Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 970 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40353/09 SC 3397/09 CAMPBELL JA 28 SEPTEMBER 2009 AAMAC WAREHOUSING & TRANSPORT PTY LIMITED & ORS v FAIRFAX MEDIA PUBLICATIONS PTY LIMITED Ex Tempore Judgment 1 CAMPBELL JA: This is the hearing of an application that has been brought on with great urgency. It seeks an order pending determination of the appeal herein, or such other date as the court deems fit, staying orders in the Equity Division that discharged certain orders made by Slattery J on or about 24 June 2009. Alternatively, it seeks orders pending the determination of the appeal herein, or such other date as the court deems fit, in the same terms as those made by Slattery J on 24 June 2009. 2 The proceedings before Slattery J were ones in which there were three plaintiffs. The plaintiffs were AAMAC Warehousing & Transport Pty Limited, a company that is involved in providing warehouse, transport and container handling services on the waterfront of Sydney Harbour. Another plaintiff, Mr Peter Panayi, is a fifty per cent shareholder in AAMAC and also works as a workshop manager for AAMAC's business. The third plaintiff, Mr Bruce Clark, is a sales manager of AAMAC. 3 The defendants are various companies connected with the Fairfax Media Group. 4 The proceedings began in the Equity Division on 24 June 2009 when the plaintiffs made an urgent ex parte application to Slattery J seeking injunctive orders. They succeeded in that application. His Honour made ex parte orders in the following form: "1. The Defendants be restrained from publishing or causing or permitting to be published any material or information of or concerning the plaintiffs to the effect that the plaintiffs or one of them is knowingly involved in or knowingly has affiliation with gangland or criminal activities by or through the operation of the first plaintiff's business of clearing, handling and transportation of containers and goods from Sydney wharves, up to and including 5pm tomorrow 25 th June 2009. 2. The Defendants be restrained from publishing or causing or permitting to be published any material or information of or concerning the second and third plaintiffs to the effect that they are persons who are knowingly involved in or knowingly have affiliation with the conduct of pleasure cruises on the vessel 'South Pacific' during which the services of prostitutes are knowingly provided or made available by the plaintiffs or one of them up to and including 5pm tomorrow 25 th June 2009." 5 The defendants had not published any allegations of the type referred to in the orders, so the orders were in the nature of quia timet injunctions. 6 The matter returned to court the following day, 25 June 2009. It was heard on 25, 26, 29 and 30 June 2009. The hearing was interrupted to some extent because his Honour was also hearing other matters on those days. The orders that his Honour originally made self-destructed on 25 June 2009, but his Honour extended them from time to time. 7 In the course of the hearing before him, the Fairfax defendants submitted that the original injunction had been obtained through material non-disclosure, and for that reason should be discharged. The judge reserved judgment until 21 September 2009. On that day he delivered a judgment that held that there had indeed been material non-disclosure, and discharged the orders that he had made on 24 June 2009 and extended from time to time thereafter. He stayed the orders of 21 September 2009 until 24 September 2009. 8 The judgment that his Honour delivered on 21 September 2009 was one that did not deal with whether, had the judge been approaching the matter on the basis of the facts as they ultimately came to appear in the course of the hearing before him in June, he would have granted an injunction in similar terms, even if the original ex parte injunction were to be discharged. Application was made to his Honour on 24 September 2009 to consider the matter afresh, as on a contested application for an interlocutory injunction. That reconsideration was agreed by counsel appearing before his Honour to be one that should be effected on the basis of the material that had come to be known to his Honour through the June 2009 hearing. 9 His Honour delivered a judgment on that application this morning (28 September 2009). In it, he declined to grant any interlocutory injunctions. His Honour has granted, on 24 September 2009, a further stay on the orders discharging the injunctions that he continued until this afternoon. I have extended that stay for a brief period, until later today. 10 A summons seeking leave to appeal from his Honour's decision discharging the ex parte orders, as extended, was filed in this Court on 24 September 2009. Today, that summons has been amended, so that it also seeks leave to appeal from the judgment that his Honour delivered today. 11 The causes of action that were propounded by the plaintiffs in the court below were of two types. One was the tort of injurious falsehood, the other an alleged contravention of s 42 or alternatively s 44 of the Fair Trading Act 1987. The injurious falsehood, and the conduct that was alleged would contravene the Fair Trading Act, was, in substance, the making of representations to the effect of those referred to in his Honour's orders of 24 June 2009. 12 In the judgment issued today, his Honour found that there was no serious question to be tried concerning the tort of injurious falsehood. An essential element in the tort of injurious falsehood is malice: Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 at 404 [52]. His Honour was not satisfied that there was a serious question to be tried concerning malice. 13 The case that had been put before his Honour for malice was that it was made out by four types of behaviour on the part of people connected with Fairfax. Three of those items of behaviour were alleged to be conduct of a Mr Besser, a journalist employed by one or other of the Fairfax defendants. The first of the items relied upon to make up malice was alleged recklessness in Mr Besser's dealings with Mr Clark. The requirement of malice is, in its nature, more than one requiring proof of recklessness: Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1. The proof of recklessness can, however, be part of a mosaic of evidence that in its totality makes out malice. The recklessness that Mr Besser was alleged to have engaged in involved contacting Mr Clark, and putting to him allegations that he was proposing to make about Mr Clark's conduct. While Mr Clark gave evidence that he formed the impression that Mr Besser intended to publish allegations about Mr Clark and Mr Panayi whether they were true or false, and that Mr Besser was acting recklessly, there was no evidence before the judge of an objective basis for that belief. The judge (at [23]) expressed the view that the conversation "merely shows a journalist making such inquiries as he could before publication. The fact the conversation between Mr Besser and Mr Clark was taking place at all is inconsistent with recklessness." 14 The second matter that was said to be evidence of malice arose in a conversation between Mr Besser and Mr McKell. Mr McKell is the solicitor for the plaintiffs. He telephoned Mr Besser on the day that the ex parte orders were obtained from Slattery J, and endeavoured to read the orders to him. The orders that Slattery J had made gave specific leave for the orders to be communicated to Mr Besser by telephoning him and reading him the orders. Mr Besser interrupted Mr McKell, and said he would arrange for Mr McKell to be rung back in five minutes. Mr McKell was rung, within five minutes, by a solicitor acting for the Fairfax group. Mr McKell informed that solicitor of the terms of the order. Mr McKell also telephoned Mr Besser later, and succeeded in reading to him the text of the orders that had been made. 15 The judge did not regard that as providing evidence of malice. At present, on the material presently before me, I do not regard there as being a serious question to be tried on appeal concerning the correctness of that view. 16 The third matter relied upon as evidence of malice was that Mr Besser was proposing to be a speaker at a conference called The Australian Public Sector Anti-Corruption Conference 2009. He was proposing to be a participant in a panel discussion on the role of the media in uncovering corruption. The judge found that there was nothing that connected Mr Besser's proposed attendance at that conference with the defendant's publication of anything about the plaintiffs. 17 The final matter relied upon as evidence of malice was that some photographs were taken of Mr Clark outside the Supreme Court during the interlocutory hearing. Even assuming that those photographs were taken by a Fairfax journalist, the judge took the view that taking such photographs did not show recklessness in relation to any proposed publication by the defendants, nor any improper motive on their part. 18 For these reasons, the judge was of the view that there was not a serious question to be tried concerning the malice element of the tort of injurious falsehood. 19 Before a stay of a judgment pending appeal is granted, the applicant must show that there are serious questions for the determination of the appellate court: Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737 at 741-2 [18]. 20 On the material before me, I am not persuaded that a serious question is raised about the determination that the judge made about the lack of a serious case to be tried concerning the malice element of the tort of injurious falsehood. 21 While the judge had some doubt about whether there was a serious question to be tried about whether the terms of ss 42 or 44 of the Fair Trading Act had been infringed, his decision concerning the Fair Trading Act counts was based upon s 60 Fair Trading Act. Section 60 has the effect of removing from the prohibitions in ss 42 and 44 "publication of matter by a prescribed information provider", subject to some exceptions. One of those exceptions is provided by s 60(1)(a)(vi). Before Slattery J, the plaintiffs had relied upon s 60(1)(a)(vi)(A), which is activated where there is publication "on behalf of, or pursuant to a contract, arrangement or understanding with" "a person who supplies goods or services" of a particular kind. His Honour was not satisfied that information that had been supplied to Mr Besser, and that the applicants relied on below as activating s 60(1)(a)(vi)(A), had been provided pursuant to any "contract, arrangement or understanding". 22 In the course of the present application, Mr Harper SC, counsel for the applicants, came to accept that it was not possible to rely upon the Fair Trading Act basis for the injunctions. For that reason I say nothing more about it. 23 His Honour went on, in the judgment delivered today, to deal with what the situation would be if the case were a defamation case. As I read his Honour's judgment, he did so because he regarded the case before him as being in substance a defamation case rather than a case of injurious falsehood. He gave reasons why an interlocutory injunction would not be granted to restrain defamatory statements of the kinds of which the applicants complained. 24 Mr Harper submits that, by adopting this way of proceeding, his Honour unjustifiably distorted the case through a defamation prism, when that was not the way the applicants had put their case at all. 25 I am not persuaded that there is a question requiring serious consideration on appeal about whether the nub of the reason why his Honour rejected the submission that there was a serious case to be tried concerning the injurious falsehood ground is incorrect. In that circumstance, whether his Honour went further than was necessary in dealing with what the situation would be if the action were recast as one in defamation appears unlikely to affect the outcome of any appeal. For these reasons, I am not persuaded that there have been serious questions shown for determination of the appellate court that, if upheld, would have the consequence that today's judgment is incorrect. 26 The draft notice of appeal also contends that Slattery J was in error in the judgment he delivered on 21 September 2009. The transcript of today's hearing will reveal that I was taken carefully through his Honour's judgment of that day. His Honour's judgment shows that he identified several respects in which there had been a non-disclosure at the time of obtaining the initial ex parte orders. Those non-disclosures were matters that, in his Honour's view, were of sufficient importance to have required disclosure. It was for that reason that he exercised the discretion to discharge the ex parte orders. 27 Any application for leave to appeal against a discretionary judgment on a matter of practice and procedure must be able to identify an error of a type that fits within House v The King (1936) 55 CLR 499. In my view, no argument has been put forward that identifies with any cogency any such error in the view that his Honour took about the non-disclosures that had been made. 28 There are some other errors alleged in his Honour's judgment, which are likewise errors of a procedural kind. They relate to the judge's decision to permit cross-examination of Mr Clark on the return of the notice of motion, and in "conducting a mini-hearing of the matter". It is apparent from his Honour's reasons for judgment that he permitted cross-examination of Mr Clark to enable Mr Clark to be given an opportunity to explain the various matters of non-disclosure that the Fairfax parties were alleging. I have not been pointed, this afternoon, to any serious question for determination by an appellate court about how his Honour was wrong in making that particular discretionary decision on a matter of practice and procedure. 29 There is also the contention that his Honour failed to grant procedural fairness to Mr Clark. That is not particularised. I am not at present persuaded that there is a serious question for determination concerning it. 30 Likewise, the other proposed grounds of appeal are ones relating to matters of practice and procedure, and no basis has been put to me for there being a serious question for determination by an appellate court concerning them. In those circumstances, I am not minded to extend any stay. 31 In fact the extension of the stay that I granted expired ten minutes ago. Thus, no further order is required to give effect to my decision not to extend the stay. 32 The notice of motion seeks, in the alternative, orders pending the determination of the appeal herein in the same terms as those that Slattery J made on 24 June 2009. That being an interlocutory injunction pending appeal, it would require the demonstration of a serious question to be tried that warrants the protection of the subject matter of the appeal. The reasons that I have already given suffice to show why, in my view, the case is not made out for there being any such serious question to be tried. 33 I have already made an order on the notice of motion filed today granting leave to amend the summons seeking leave to appeal and the draft notice of appeal. Thus, it is not appropriate to dismiss the notice of motion as a whole. However, save insofar as I have already made orders on the notice of motion, I order it to be dismissed. 34 I order that the applicants pay the respondents' costs of the notice of motion. Post Script – 30 September 2009 35 Since this judgment was delivered citations for the judgments of Slattery J referred to in it have become available. The judgment of 21 September 2009 discharging the orders made on 24 June 2009 is AAMAC Warehousing & Transport Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 970. The judgment of 24 September 2009 granting a stay is AAMAC Warehousing & Transport Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 1029. The judgment of 28 September 2009 declining to grant an interlocutory injunction is AAMAC Warehousing & Transport Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 1030. ********** 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.