Charlwood Industries Pty limited v Nick Brent [2001] NSWSC 333

New South Wales Supreme Court

CITATION : Charlwood Industries Pty limited v Nick Brent [2001] NSWSC 333 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 13192/00 HEARING DATE(S) : 11 April 2001 JUDGMENT DATE : 11 April 2001

PARTIES : Charlwood Industries Pty Limited - Plaintiff Nick Brent -Defendant JUDGMENT OF : Simpson J

COUNSEL : Mr C Barry QC - Plaintiff Defendant in person SOLICITORS : Schrader & Associates CASES CITED : Chappell v TCN Channel Nine Pty Ltd (1998) 14 NSWLR 153 Church of Scientology of California & Anor Inc v Readers's Digest Services Pty Ltd (1980) 1 NSWLR 344 DECISION : Application for injunction refused.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J

11 April 2001

13192/00 CHARLWOOD INDUSTRIES PTY LIMITED v Nick BRENT Judgment

HER HONOUR : 1 In this matter the plaintiffs, Charlwood Home Improvements Pty Limited and Charlwood Industries Pty Limited, seek injunctions restraining the defendant, Mr Nick Brent, from publishing material carrying certain imputations identified in the amended summons. 2 It seems that in the past material allegedly capable of conveying such imputations have been published by Mr Brent on a web site created by him. The material relates to a dispute between Mr Brent and one or more of the Charlwood companies, which I take to be related companies, arising out of some home renovations or extensions that were performed by one of the Charlwood companies for Mr Brent and his wife and which, according to Mr Brent, were unsatisfactory. The principles relating to the grant of injunctions to restrain allegedly defamatory publications are well-known. Where there is a reasonable prospect that the publication of defamatory imputations may be defensible, particularly by establishing the truth of the imputations, injunctive relief will not ordinarily be granted. The plaintiff's remedy lies in an award of damages: Chappell v TCN Channel Nine Pty Ltd (1998) 14 NSWLR 153; Church of Scientology of California & Anor Inc v Reader's Digest Services Pty Ltd (1980) 1 NSWLR 344. A defence of justification requires not only establishing the substantial truth of the imputation but also either that they were published on an occasion of qualified privilege, or related to a matter of public interest. 3 Two points were raised on behalf of the plaintiff companies. The first is, in my view, a technical matter relating to the identity of the company with whom Mr Brent is said to have contracted, that being Charlwood Industries Pty Limited. The material taken from the web site refers generally speaking to Charlwood Homes but as far as I can see does not refer to any corporate entity but rather uses the generic term, Charlwood Homes. There is one reference at least to "the Charlwood Homes". The point of their argument, as I perceive it, is that Mr Brent would not be in a position to establish the substantial truth of any imputations against Charlwood Homes Pty Ltd, because he did not contract with that company. 4 There was also at least one document emanating from the Charlwood companies which refers to Charlwood Home Improvements although it again does not refer to the correct or complete corporate name. I do not think this technical point affects the principles to be applied in relation to the granting of an injunction to restrain publication. 5 The second point made involved an assertion that the material published relates to a private dispute and therefore would not admit of a defence of justification which, for relevant purposes, I might assume would be the defence that the publication was substantially true and related to a matter of public interest. The contention was that the publication could not be shown to relate to a matter of public interest. It is plain from Mr Brent's affidavit that if proceedings in defamation are brought against him, (and a statement of claim has been filed in Court today) he would defend that statement of claim on that basis. 6 The affidavit evidence filed in support of the plaintiff companies disclosed that the Charlwood Group is a substantial builder in the home renovations industry. An argument that a publication concerned with the competence or ethical behaviour of any of the companies in the group did not relate to a matter of public interest would be difficult to sustain. Given that, in order to obtain interlocutory injunctive relief, the plaintiff would need to establish more, that is that such a publication could not relate to a matter of public interest, the plaintiffs' argument must be rejected. 7 In my opinion the submissions made on behalf of the plaintiff must fail. All I have to consider is whether a defence would be open to Mr Brent and I am satisfied on the evidence before me that a defence of truth and public interest would be arguable. I am not satisfied that he would fail in relation to the question of whether the matter was published as a matter of public interest. That being so the ordinary principles apply and I refuse the application for injunction.

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Last Modified: 05/02/2001 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.