Gair v Greenwood (No. 2) [2019] NSWDC 741

District Court New South Wales

Medium Neutral Citation: Gair v Greenwood (No. 2) [2019] NSWDC 741 Hearing dates: 11 December 2019 Date of orders: 11 December 2019 Decision date: 11 December 2019 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Subject to any successful application by the defendant pursuant to r 36.16 Uniform Civil Procedure Rules 2005 (NSW) for Gibson DCJ's orders of 3 December 2019 to be set aside, these proceedings are set down for hearing as an assessment of damages only on Tuesday 5 May 2020 (estimate ½ to 1 day). (2) Pursuant to r 36.16(3A) and (3B) Uniform Civil Procedure Rules 2005 (NSW) extend time for compliance from the date of making the orders for judgment on 28 November 2019 to the date of the judgment provided to the parties, namely 3 December 2019. (3) Evidence for the assessment is to be by way of affidavit from the plaintiff s, such affidavits to be filed by 13 March 2020. (4) Any request for cross-examination and/or evidence in reply by 27 March 2020. (5) Pursuant to s 46(1) District Court Act 1973 (NSW) and until further order, make orders as follows: 1) The defendant be restrained by himself, his servants or agents, from publishing or causing to be published the matter complained of, namely the video "The Strife and Crimes of Duncan Gair", or matters substantially to the same effect as such matter on the world wide web (including YouTube) or otherwise. 2) The defendant is restrained from publishing on the world wide web or otherwise any matter of and concerning the plaintiffs to the same effect as the imputations contained in the Amended Statement of Claim and set out below: (a) The first plaintiff as the Mayor of the Wingecarribee Shire Council ("Council") was corrupt in that he misused his office as Mayor by dishonestly influencing the outcome of development applications for his friends. (b) The first plaintiff as the Mayor of the Council was corrupt in that he received money from developers in return for dishonestly influencing the outcome of development applications. (c) The first plaintiff is a racketeer. (d) The second plaintiff is a crook. (e) The second plaintiff as an elected Councillor of the Council was corrupt in that he misused his position as an elected Councillor by dishonestly influencing the outcome of development applications. (f) The second plaintiff dishonestly used his position as elected Councillor of the Council to be able to influence the outcome of development applications in which he had an interest. (g) The second plaintiff bribed the Mayor in order to obtain favourable outcomes for development applications. (h) The second plaintiff engaged in a conflict of interest through his position as an elected Councillor by being able to influence development applications in which he had an interest. 3) The defendant take all reasonable steps to remove forthwith from the world wide web (including Facebook.com, southernhighlandsnsw.org and YouTube.com), all matter that he has published, posted or uploaded concerning the plaintiffs to the same effect as the imputations set out in order 2(a) to 2(h) above including but not limited to, the publications referred to at paragraphs 6, 17, 20, 22, 23, 24 and 26-32 of the affidavit of Malcolm John Murray sworn on 2 December 2019. (6) Defendant's application for Mr Malcolm John Murray to cease acting for the plaintiffs is refused. (7) Noting the defendant is present in court when these orders are made, service of these orders will be taken to have effect immediately upon provision later today of a copy of the orders placed on JusticeLink by Gibson DCJ's Associate being forwarded to the parties. (8) Reserve the issue of costs to the trial judge, noting the solicitors for the plaintiffs will serve the documentation relied upon for a gross sum costs order pursuant to s 98(4)(c) Civil Procedure Act 2005 (NSW). Catchwords: INJUNCTIONS – application by the plaintiffs pursuant to s 46 District Court Act 1973 (NSW), s 149 Civil Procedure Act 2005 (NSW) and paragraph 9 of the District Court Civil Practice Note 6 (Defamation List) for final or alternatively interim injunctive relief – judgment already entered in favour of the plaintiffs after a long history of non-compliance by the defendant – defendant advises the plaintiffs' solicitors and the court that he intends to continue to publish material containing the same or similar imputations – fresh publications on social media, YouTube and in emails – balance of convenience favours the making of interlocutory injunctions Legislation Cited: Civil Procedure Act 2005 (NSW), s 149 District Court Act 1973 (NSW), s 46 Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 28.2 and 36.16 Cases Cited: Al Muderis v Duncan [2016] NSWSC 1363 Al Muderis v Duncan [2016] NSWSC 1726 Al Muderis v Duncan (No 3) [2017] NSWSC 726 Al Muderis v Duncan (No 4) [2018] NSWSC 925 Al Muderis v Duncan (No 5) [2019] NSWSC 461 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Bennette v Cohen [2009] NSWCA 60 Craven v Globe Valley Pty Ltd [2018] QDC 155 Gair v Greenwood [2017] NSWSC 1652; Gair v Greenwood (No 2) [2018] NSWSC 947 Gair v Greenwood [2019] NSWDC 725 Huang v Zhi [2018] VSC 529 Inserve Pty Ltd v Kinane [2018] QCA 116 Kallinicos v Hunt [2005] NSWSC 1181 Munsie v Dowling (No 10) [2018] NSWSC 709 Prothonotary of the Supreme Court of NSW v Dowling (No 3) [2018] NSWSC 784 Rothe v Scott [2015] NSWDC 105 Rothe v Scott (No. 2) [2015] NSWDC 143 Rothe v Scott (No. 3) [2016] NSWDC 151 Rothe v Scott (No. 4) [2016] NSWDC 160 Rothe v Scott (No. 5) [2016] NSWDC 225 Sheffield Wednesday Football Club Ltd & Ors v Hargreaves [2007] EWHC 2375 (QB) Szymczak v Balijepalli [2019] FCA 203 Szymczak v Balijepalli (No 2) [2019] FCA 1093 Westpac Banking Corporation v Newey [2013] NSWSC 533 Category: Procedural and other rulings Parties: First Plaintiff: Thomas Duncan Gair Second Plaintiff: Garry Maurice Turland Defendant: Adam Haig Greenwood Representation: Counsel: Plaintiffs: Ms D Woods Defendant: In person