Supreme Court New South Wales Medium Neutral Citation: Missingham v Shamin [2011] NSWSC 1208 Hearing dates: Wednesday, 28 September 2011 Decision date: 28 September 2011 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: Defendant by itself and its servants and agents restrained from disclosing terms of settlement except in specified circumstances. Catchwords: INTERLOCUTORY INJUNCTIONS - Plaintiff contends defendant in breach of confidentiality clause of deed entered into in settlement of defamation proceedings - strongly arguable defendant in breach by making of posts on internet forum - defendant contends relief should be refused as plaintiff lacks clean hands - not established court would decline final relief on this basis - assertion publication complained about in public domain as a result of pronouncements in Court proceedings - in public domain to limited extent entailing that confidentiality not lost - plaintiff has arguable case for final relief - balance of convenience favours grant of injunction as obligation of confidence would be completely defeated if injunction refused - no evidence of prejudice to be suffered by defendant - injunctory relief granted. Category: Procedural and other rulings Parties: Walter Patrick Missingham (plaintiff) Alex Shamin (defendant) Representation: Counsel: Mr D Roche (plaintiff) Mr B Goldsmith (solicitor, defendant) Solicitors: Yeldham Price O'Brien Lusk (plaintiff) Goldsmiths Lawyers (defendant) File Number(s): 2011/305541 Judgment (ex tempore) 1HIS HONOUR: By summons filed on 22 September 2011 the plaintiff Walter Patrick Missingham sues the defendant Alex Shamin for an injunction restraining the defendant from publishing any matter concerning the terms of settlement of earlier proceedings in this Court, or the contents of a deed of settlement entered into in connection with those proceedings, other than as provided for in that deed. 2On 22 September 2011 Rein J, sitting as Duty Judge, granted an interim ex parte injunction in the following terms: ... 3. Upon the usual undertaking of the Plaintiff as to damages, the Defendant, by himself, his servants and agents, be restrained from posting or publishing or further posting or publishing any matter concerning: 3.1 the terms of the settlement of NSW Supreme Court Proceedings 2010/00397452; or 3.2 the contents of the Deed of Settlement, dated 7 September 2011, other than as provided for in clause 8.2 of the Deed, until further order. ... COURT DIRECTS THAT 6. The Defendant is to remove the posting currently appearing under the entry "Re: Walt Missingham by alexshamin Sat Sep 17, 2011 3:14am" on the website www.blitzmag.net by 6:00pm on 22 September 2011. 3The summons was adjourned to the duty list today. Although the order was expressed to be "until further order", and although at the outset the matter may have been contemplated by counsel as an application by the defendant to discharge the ex parte injunction, I have treated it, being the first return of an ex parte injunction, as an application by the plaintiff to continue that injunction. 4There were proceedings in the Common Law Division of the Court for defamation, in which the present plaintiff claimed that he had been defamed by a person to whom the present defendant is married. A mediation took place, in which the present defendant participated, in which the defamation proceedings were resolved and as a result of which, the parties entered into the deed of settlement of 7 September 2011. That deed provided, relevantly, as follows: ... XX XXXXXXXXXXXXXX XX XXXXXXXXXXX XXXX XXX XXXXXXXXX XXXX XXXXXXXXXXX XXX XXXXXXXXXXX XXXX XX XXXXX XX XX XXXXX, XXXX XXX XXXXXXXX XXXXX XXXXXX XXXXX XXXXXXX. XX X XXXXXXX XXXX XX XXX XXXXXX XXX XXXXXXX XXX XXXXXXXXX XXXXXXXXX XX XXXXXXX XXX XXX XXXXXXXXXXX XX XX XXXXXXXXXXXX XX XXXXXXX XXXX XX XXXXX XX XX XXXXX XX XXX XXXXXXXXXX XXXXXXX XXXXXX XX XXXXXXXXXX XXXXXXX XXXXXXXXXX XXXX. X XXXX XXXX XX XXXXXXX XX XXX XXXXXXXXX XXX XXX XXXXX XXXXX XXXX XXXX XXX XXXXXXXXX XXXXXXXXXXXX XX XXXX XXXX XXXXXXXXXXX XXX XXXXXXX XXX XXX XXXXXXXX XXXX XXX XXXXXXXX/XXXXX XXXX XXX XXXXXX XX XXXXX XX XXX XXXXXXXXX XX XXXX XXXX. XXX X XXXXXXXXX XXX XXX XXXXX XXXXX XXXX XXX, XXXXXXXX XX XXXXXXXXXX, XXXXXXX XX XXXXX XX XX XXXXXXXXX XX XXXXXXXXX XXX XXXXXXXX XX XXX XXXXXXX XXX XXXX XXX XXXXXXXXXX XXXXXXXXXX XX XXXXXXX XXX XXXXX XXXXXX XXXXXXXXXX XXX XXXXXXXX XX XXX XXXXXXX. ... 8. CONFIDENTIALITY 8.1. Subject to clause 8.2, the Parties agree that the terms of this Deed are confidential and that a Party must not disclose or permit to be disclosed either directly or indirectly the terms of this Deed except: (a) with the express written consent of each other Party on each and every occasion; (b) on a confidential basis to their insurers (if any), legal and accounting advisers; (c) to the extent required to comply with a law or order of a Court; or (d) to enforce the terms of this Deed. 8.2 The Parties may make the following statement following the execution of this Deed: "In 2010, Mr Walt Missingham, President of the AKWF, brought defamation proceedings against a former member, Dr Larissa Koroleva, in relation to material she had published in the course of an internal process within AKWF. The proceedings have now been settled on terms agreed between Mr Missingham and Dr Koroleva. The settlement is confidential. In addition, Dr Koroleva and her husband, Mr Alex Shamin, have agreed to remove the website www.awhip.net from the internet." ... 5On 12 September 2011, the defamation proceedings were mentioned in the Common Law Division. Counsel appeared on behalf of Mr Missingham and a solicitor appeared on behalf of the present defendant's spouse. The Court was informed, in open Court, that the proceedings had settled at mediation; a notice of discontinuance was handed up, and the Court was informed about the arrangements in respect of costs orders. The judge granted leave to the plaintiff to file its notice of discontinuance, and made an order about previous costs orders. 6On 12 September at 4.02 pm, a post was made on a website called 'BLITZ Australasian Martial Arts Magazine', by a forum user named "ffsguy" as follows: All I am able to say is... Google AWHIP and all will be clear 7In subsequent posts the following day "ffsguy" said, in effect, that he had made that post at the request of Mr Missingham. On 17 September at 3.14 am, a post was made by Alex Shamin, presumably the present defendant, which post included a full copy of the notice of discontinuance, and a copy of a letter from Goldsmiths Lawyers addressed to him, dated 13 September 2011, in the following terms: XXXX XXXX XXXXX XXXXXXX XXXXXXX XX XXXXXXXXXX XX XXXXXXX XXXX XX XXXXXXXXXX XXXXXXXXXXXX XXX XXXXXXXXXXX XXXXXXX XXXXXXX XXXXXXX XXXXXXX XX XXX XXXXXXX XX, XXX XXXXXXX, XXX XXXXXXXX XX XX XXXXXXX. XXXXXXXXXXX, XX XXXXXXXXXXXX XXX XXXXXXXXXXX XXXX XX XXXXX XX XX XXXXX, XXXX XXXX XX XXX XX XXX XXX XXX XXXXXXX XXXXX XXX XXXXXXXX. XX XXXX XXXX XX XXXX XXXXXXXXX XX XXX X XXXXXX XXXX XX XXX XXXXXX XX XXXXXXXXXXXXXX XXXXX XX XXXXX. XXXXX XXX XXX XXXX XXXXXXXXXXXX. 8It was as a result of that post that the plaintiff made the application to the Duty Judge on 22 September. 9In considering whether to grant the interlocutory relief sought in the summons, it is necessary to consider whether the plaintiff has a seriously arguable case for final relief, and whether the balance of convenience favours the grant or withholding of interlocutory relief. 10The defendant contends that clause 8 does not cover the notice of discontinuance, either because it is not within the terms of clause 8 expressly, or because in any event the notice of discontinuance is in the public domain having been referred to in open Court. In my view, it is at the very least seriously, if not strongly, arguable that the purpose of clause 8 was to ensure that the terms upon which the parties had settled their dispute were kept confidential, and that the provision relating to a notice of discontinuance was part of those terms and was within what was contemplated by clause 8.1. This is indicated by the inclusion of clause 8.2, which provided what the parties were authorised to say about the settlement; it is improbably that they intended anything more to be said. In my view there is at the very least a seriously arguable case that the defendant's post on 17 September 2011 was a breach of clause 8 of the deed. One way of testing this is to ask what else could it have been imagined the parties were endeavouring to achieve by clause 8. The idea that it was to be open to the defendant to make an announcement to the effect contained in the Goldsmiths Lawyers' letter of 13 September 2011, but not to the plaintiff to refer to any aspect of the deed that favoured the plaintiff, is a rather extraordinary one. 11The defendant, however, argued that there were other reasons on account of which the injunction should not be continued. One was that there was no claim for interlocutory relief in the summons. There is no merit in that point: there is a claim for final relief, and it was clear that the matter was before the Court today for the purpose of dealing with the dissolution of the ex parte relief. 12The second ground advanced was that the plaintiff did not come to Court with clean hands. This depends on the proposition that it is to be inferred from the postings on the BLITZ website that the initial post was made with the consent, if not on the instructions, of the plaintiff. There is certainly an inference to that effect available from the posts on the website. On the other hand, the plaintiff filed an affidavit of his solicitor Mr Peter Horvath in support of the application, who deposes (in paragraph 10): The posting by Mr Shamin appears to be part of a letter sent by email from Goldsmiths Lawyers to Mr Shamin (who represent Dr Koroleva and Mr Shamin) reporting on the making of orders on 12 September 2011 by McCallum J. The email appears to be the same font and type set as other emails and letters we have received in correspondence from Goldsmiths in the course of the defamation proceedings relating to Dr Koroleva. Annexed hereto and marked with the letters "PH5" is a copy of the string on the Blitz forum, including the posting by Alex Shamin. I am informed by Mr Missingham and verily believe that he did not ask any person to make any of the postings which appear in PH2, and has not, other than as permitted by clause 8.2 of the Deed, disclosed anything about the Deed or the terms of settlement contained in the Deed. 13Further evidence and cross-examination, either at any further interlocutory hearing or at a final hearing, may demonstrate otherwise, but in the present state of the evidence - given, on the one hand, the hearsay nature of the evidence of Mr Missingham via Mr Horvath, and on the other, what inferences are available to be drawn from some other posts on the website - there is at least a serious question to be tried that Mr Missingham is not implicated in the posts on the BLITZ website. Accordingly, it is not established that the court would decline final relief on the basis of a want of clean hands; there remains a serious question to be tried for final relief. 14Thirdly, it is put that the relevant legal principles militate against the grant of an interlocutory injunction. Essentially, it is said that the injunction sought is too wide. I am inclined to accept that it may be too wide, given the terms of the deed: but that does not mean that no interlocutory relief is appropriate. As to irreparable injury, it is complained that no evidence has been filed on behalf of the plaintiff to show that he would suffer irreparable injury for which damages would not be an adequate compensation. But in a case in which the primary obligation of the parties is to adhere to their contractual promises and preserve confidentiality, at least at this stage of the proceedings absence of proof of irremediable injury is a matter of almost no significance. 15Finally, it is put that parts of the publication complained about are already in the public domain as a result of the announcements in Court when the defamation matter was finalised. That may be so, but being in the public domain to that limited extent does not mean that the purpose of the confidentiality obligations of the parties is totally defeated. It may reduce their effect to some extent, but part of the purpose of those obligations is to prevent the parties using the terms of settlement each against the other and, in my view, that purpose can still be achieved. The subject matter is not so much in the public domain that the utility of confidentiality is lost. 16On the balance of convenience, it is plain that if an injunction is not granted, the contractual obligation of confidence will be totally defeated. On the other hand, there is no evidence that anyone will suffer the slightest practical detriment from the grant of an injunction. 17It follows that, in my view, interlocutory relief should be continued, but I will modify its terms somewhat. If it were seriously desired to have a more substantial interlocutory hearing, in which the question of clean hands were to be tested, I would give consideration to making provision for that, but in the overall scope of this case it seems to me far preferable that further costs not be expended on that course and any contest take place at a final hearing. 18My orders are as follows: 1. Upon the plaintiff by his counsel giving to the Court the usual undertaking as to damages, order that until the hearing of the proceedings or further order the defendant be restrained by himself, his servants or agents from disclosing or permitting to be disclosed, directly or indirectly, the terms of the deed of settlement and release between the plaintiff, Larissa Karoleva and the defendant dated 7 September 2011, except: (a) with the express written consent of the other parties to the deed on each and every occasion; (b) on a confidential basis to their insurers (if any), legal and accounting advisors; (c) to the extent required to comply with a law or order of a Court; or (d) to enforce the terms of this deed. 2. The defendant is also restrained by himself, his servants or agents from publishing any statement of or pertaining to the settlement of proceedings 2010/397452 in this Court, other than as permitted by clause 8.2 of the Deed. 3. Order that costs of the interlocutory application be plaintiff's costs in the proceedings. 4. Direct that these orders be entered forthwith. 5. Adjourn the proceedings to the Registrar's list on 6 October 2011 at 9:00am. ********** Amendments 19 March 2012 - Content redacted Amended paragraphs: 4, 7 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. Decision last updated: 19 March 2012