NSW Supreme Court Refuses Injunction to Restrain Threatened Criminal Conduct

The court refused to grant an injunction to prevent a party from communicating with employees or approaching specific individuals due to threats of violence, preferring the use of an apprehended personal violence order under the Crimes Act 1900.

New South Wales Supreme Court

CITATION : [NAME] v [COMPANY] [2002] NSWSC 658 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20465/00 HEARING DATE(S) : 23 July 2002 JUDGMENT DATE : 23 July 2002

PARTIES : [NAME] [COMPANY] JUDGMENT OF : Sperling J at 1

COUNSEL : [redacted] [NAME] for the Defendant SOLICITORS : [redacted] [NAME] for the Defendant CATCHWORDS : Injunction - to restrain threatened commission of a crime - refused in exercise of discretion in view of provision for an apprehended personal violence order LEGISLATION CITED : Crimes Act 1900, s562BB Defamation Act 1974, s7A [NAME] v Commonwealth of Australia (1980) 146 CLR 493 CASES CITED : Commonwealth of Australia v [COMPANY] (1980) 147 CLR 39 [NAME] v Attorney General (1978) AC 435

DECISION : Notice of motion in proceedings 20465/00 dismissed; Summons in the separate proceedings also dismissed; Application for interim order refused.

- 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Duty List

Sperling J

Tuesday, 23 July 2002

20465/00 [NAME] v [COMPANY]

Judgment 1 His Honour: In these proceedings, [NAME] sues [COMPANY] for defamation. A hearing pursuant to s 7A has been completed upholding certain of the asserted imputations. Those proceedings are accordingly on foot and uncompleted. 2 [NAME] appears before me today as duty judge in the Common Law Division of the Court to present a claim on behalf of [NAME] for injunctive relief. The application is made ex parte by notice of motion in the defamation proceedings. [NAME] also moves on a summons filed in court today by which similar relief is sought in separate proceedings. 3 The relief sought is to restrain [NAME] from communicating with employees of [NAME] or its solicitors otherwise than through his solicitors or where a communication is initiated by an employee of [NAME], and from approaching within a specified distance a particular employee of [NAME] in the case of the notice of motion, and another particular employee of [NAME] in the case of the summons. (The second employee to whom I have referred is a plaintiff in the summons proceedings, along with [COMPANY].) 4 It may be assumed for the purpose of these proceedings, without the need for me to make findings, that [NAME] has threatened to do violence to employees of [NAME], including the two persons to whom I have referred, in the event that [NAME] publishes material which [NAME] regards as being defamatory of himself, and that such threats have been made in circumstances where there will be or may be the publication of material by [NAME] which [NAME] would or may regard as being defamatory of himself, and accordingly that [NAME] and its employees - and, in particular, the two employees to whom I have referred - have reason to apprehend violence by [NAME] against one or more of [NAME]'s employees, including the two persons to whom I have referred. 5 It is submitted on behalf of [NAME] that conduct of the kind to which I have referred constitutes a contempt of the court or is sufficiently akin to a contempt of the court in relation to the defamation proceedings. It is submitted in that regard that the court would be satisfied that a motive on the part of [NAME] in making the alleged threats has been to interfere improperly with the conduct of the defamation proceedings by [NAME] by bringing improper pressure to bear upon that company and in order to influence the way in which the company conducts itself in relation to the proceedings. 6 I am not satisfied that there is any such nexus between the alleged conduct now relied upon and the defamation proceedings. It seems to me that the evidence rises no higher than evidence of a threat of violence in the event of the publication of further material, rather than a threat associated with what has already been published and is now the subject of the defamation proceedings, or otherwise associated with the proceedings. 7 Accordingly, I must approach the present applications on the basis that they are made independently of the defamation proceedings, for which purpose the summons is the appropriate vehicle. 8 It is established by authority that the court has the power to grant an injunction to restrain threatened criminal conduct. The line of authority which confirms that this is so is conveniently referred to in [NAME] v Union of Post Office Workers [1978] AC 435 at 492-3. There are also Australian cases which recognise that such relief may be granted in an appropriate case. 9 Two important qualifications have been adopted in the exercise of the court's discretion to grant such relief. They are, first, that the relief will be granted only in exceptional circumstances: Commonwealth of Australia v [COMPANY] (1980) 147 CLR 39 at 49-50. The second qualification is that the person or persons seeking such relief must have special standing in the sense of being specially affected by the threatened behaviour: [NAME] v Commonwealth of Australia (1980) 146 CLR 493 at 526. 10 I do not see any difficulty for the plaintiffs in the summons proceedings before me in relation to their standing to apply for the relief that is sought. There is evidence that the employee who is a plaintiff in the summons proceedings has been the subject of relevant threats, and [NAME] as the other plaintiff has a relevant interest in the welfare of its employees. 11 It is the other qualification to which I have referred which seems to me to stand in the way of a grant of relief in the present case. A threat of violence is unfortunately not exceptional in itself in this community, and there is no special need to invoke the jurisdiction of this court in such a case or in this particular case. That is because provision has been made in the Crimes Act 1900 for the making of apprehended personal violence orders including, pursuant to s 562BB, an interim order which may be made ex parte. 12 Once a relevant nexus between the asserted events and the defamation proceedings fails to be established, this case is no different from the ordinary case in which a threat of violence and apprehension of violence is asserted. Complaints of this kind should be dealt with in what I might call the ordinary way, pursuant to the provisions of the Crimes Act, rather than by application to this court. 13 For those reasons, the notice of motion in proceedings 20465/00 and the summons in the separate proceedings are dismissed. 14 Application is now made by [NAME] on behalf of the plaintiffs in the proceedings before me for an interim order to cover at least a period of time in which the plaintiffs would have the opportunity of to applying for an apprehended violence order. 15 As to that, I do not read the evidence as giving rise to a serious threat of violence otherwise than in the event of the further publication of material which [NAME] might regard as being defamatory of himself.

Accordingly, I am not satisfied that there is an element of emergency sufficient to warrant consideration of the present application. 16 I add the observation that I would be very concerned about creating a precedent for the grant of such interim relief, even in the case of an emergency, in view of a procedure being available under the Crimes Act for an ex parte application in a suitable case. 17 The application for such an interim order is refused. –oOo-

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