FEDERAL COURT OF AUSTRALIA

Metcash Trading Limited v Bunn [2009] FCA 1468

METCASH TRADING LIMITED (ACN 000 031 569), IGA DISTRIBUTION PTY LTD (ACN 004 391 422) and AUSTRALIAN LIQUOR MARKETERS PTY LTD (ACN 002 885 645) v PETER CHADLEY BUNN

SAD 29 of 2006

LANDER J

7 DECEMBER 2009

ADELAIDE

THE COURT ORDERS THAT:

1.                  The first applicant’s application made today for an interlocutory injunction be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an application by the first applicant for an order restraining the respondent from publishing or republishing, whether by the internet or other means of communication, a document entitled “T.I.G.A. THE INDEPENDENT GROCERS ADVOCATE, EDITION: 12/2:2009” (T.I.G.A. 12/2:2009) or any substantially similar document.  The applicant, together with IGA Distribution Pty Ltd and Australian Liquor Marketers Pty Ltd, which are associated and related companies of the first applicant, brought a proceeding against the respondent in 2006 relating to publications the respondent had made which were critical of each of the applicants.

2                     On 9 March 2006 I made a number of orders in the nature of injunctions restraining the respondent from publishing various documents identified in the orders.  I also made an order that the respondent be restrained from publishing, whether on the internet or by any other means of communication to the public, any allegation to the effect that the applicants actively and deliberately operate in a manner calculated to prejudice, damage or destroy the business of independent retailers with whom they deal.

3                     The applicants have pursued Mr Bunn vigorously over the last three years.  They have brought a number of applications designed, of course, to protect their position in relation to communications which Mr Bunn would wish to make with anyone who reads his communications, which he publishes on the internet.  The injunctions which were made on 9 March 2006 have remained in place.

4                     Recently, the first applicant has made an offer to the shareholders of Mitre 10 to take 50.1% of the shareholding of Mitre 10 and its associated companies, and to have the right to take the further 49.9% over a period of three years.  That offer has received substantial press coverage.  In late November or early December, the respondent published a document entitled “T.I.G.A., THE INDEPENDENT GROCERS ADVOCATE, EDITION: 12/1-2009” (T.I.G.A. 12/1-2009).  That document was apparently, so I was told on an application for an interim injunction, published to about 80 shareholders of Mitre 10, which would be about 20% of the shareholders of that company.  That publication was critical of the CEO of the first applicant, Mr Reitzer, and suggested that Mr Reitzer and Metcash have a well-documented modus operandi, which had impacted on literally thousands of small business people in the grocery and liquor industries over the years.

5                     In that publication, the respondent said that should Metcash take over Mitre 10 a number of things which he identified in paragraphs numbered 1 to 8 might happen.  I will not identify those matters which he said might happen if the takeover occurred.  That publication prompted the first applicant to make an application to me on Saturday morning, 5 December 2009, for an injunction restraining Mr Bunn from further publishing or republishing the particular publication or any substantially similar document.  I heard that application on Saturday afternoon, 5 December 2009 and made an order in the nature of an interim injunction restraining Mr Bunn from publishing T.I.G.A. 12/1-2009 until Wednesday, 9 December 2009 at 2.15 pm.  I also made an order restraining him from publishing any allegation by any person that, should members of the Mitre 10 group accept a proposal by Metcash Limited to acquire a majority interest in the Mitre 10 group, those members will be subject to practices of the first applicant of the kind referred to in paragraphs numbered 1 to 8 of T.I.G.A. 12/1-2009.

6                     Those orders were made as interim injunctions to allow Mr Bunn and, if so advised, the applicant, to file further evidence in support of the application for interlocutory injunctions.  The orders were made upon an affidavit of Mr Peter Campbell, the applicant’s solicitors, which included hearsay evidence.  I make no criticism of Mr Campbell for including hearsay evidence.  In the time which was available I accept that no other evidence or first-hand evidence was available.

7                     In relation to the various matters which had been raised in T.I.G.A. 12/1-2009 relating to those matters which might happen should a takeover occur, Mr Campbell deposed that the first applicant generally had no present intentions of doing that which Mr Bunn said “might” happen.  So I was left, at the time that I made the orders, with an allegation by Mr Bunn that some things might happen and a response from the first applicant that it had no present intentions of doing that which Mr Bunn said might happen.

8                     On Sunday night, 6 December 2009, I am told the general counsel of the applicant became aware that Mr Bunn had published T.I.G.A. 12/2:2009, which recounted in some detail the matters which occurred before me on Saturday afternoon and recounted accurately the orders which I made.  The applicant has now moved the Court for the order to which I have referred, claiming that T.I.G.A. 12/2:2009 published on Sunday, 6 December 2009, had the effect of republishing the publication contained in T.I.G.A. 12/1-2009.  Alternatively, it was put that T.I.G.A. 12/2:2009 contravened s 52 of the Trade Practices Act 1974 (Cth), because a number of assertions in that publication relating to the hearing before me and what was said at the hearing were misleading and deceptive.

9                     I asked the first applicant’s counsel, Mr Roberts, whether the first applicant would be bringing separate proceedings for the alternative claim that Mr Bunn’s account of the events before me were misleading and deceptive, but I was advised no such claim would be brought.  In those circumstances, the claimed contravention could not, in my opinion, support a claim for injunction.  The question which remains is whether T.I.G.A. 12/2:2009 does have the effect of republishing the contents of T.I.G.A. 12/1-2009.

10                  There is no evidence before me, and this is not a criticism of the first applicant, as to who received the publication on Sunday night.  I do know that it was apparently received by Mr Paul Kaplan of Momentum Corporate, which is an adviser to the first applicant in relation to the Mitre 10 takeover.  I also know from Mr Campbell’s previous affidavit, which supported the application made on Saturday, that Mr Kaplan had received T.I.G.A. 12/1-2009.  Apart from Mr Kaplan, who is, as I said, the first applicant’s adviser, I have no evidence that anyone who received T.I.G.A. 12/1-2009 also received T.I.G.A. 12/2:2009.  It may be they did, but there is no evidence of that.

11                  As I pointed out to Mr Roberts, the only people who would know if his construction of T.I.G.A. 12/2:2009 is right (that T.I.G.A. 12/2:2009 has the effect of republishing T.I.G.A. 12/1-2009) are those people who received T.I.G.A. 12/1-2009.  Apart from Mr Kaplan, there is no evidence that there is anyone in that class.  The second matter which needs to be observed arises out of the matters to which I have just referred, that is, that the only people who would, if the construction contended for by Mr Roberts were correct, know that this was a republication of T.I.G.A. 12/1-2009, are those who received that document.  This does not have the effect, even on Mr Roberts’ construction of the document, of publishing any of the matters in T.I.G.A. 12/1-2009 to any new audience.

12                  Mr Roberts contended however that that is enough to restrain Mr Bunn from any further publications.

13                  In T.I.G.A. 12/2:2009, Mr Bunn brings to the reader’s attention the fact that the first applicant’s lawyers worked throughout Friday night and Saturday for the purpose of inducing the Federal Court on Saturday afternoon “… in attempt to silence the matters discussed by T.I.G.A., 12/1-2009”.

14                  That, of course, is correct, in the sense that the application was brought for the purpose of attempting to prevent the further publication of the matters discussed in T.I.G.A., 12/1-2009.  He said in T.I.G.A. 12/2:2009:

Any reasonable person would address any concerns they had by publishing a denial with what they claimed to be the facts and support their denials/facts with clear and precise evidence, but, not Metcash, is it because they cannot?  Metcash (sic) they throw shareholders (sic) money at their attack poodles to try and persuade the Court to injunct the publication without putting forward hard evidence!!

15                  He also said, in the final paragraph of T.I.G.A. 12/2:2009, after discussing what had happened before me on Saturday and pointing out that further evidence needed to be adduced:

Of course, there are no orders as to the copies of the T.I.G.A. publication (12/1-2009) already in circulation.  We believe that when a person reads that publication, in conjunction with the above orders, that person will clearly see what it is that drives Metcash’s fears, and to which Metcash did not just put the evidence of their denial in the public forum, so that the stakeholders and Mitre 10 retailers could make up their own minds.

16                  Mr Roberts said that that paragraph and the last sentence which followed that paragraph, which was “FINAL THOUGHT: If you have fact and truth on your side, you don’t need attack poodles!”, amounted to a republication of T.I.G.A. 12/1-2009.  In my opinion, that is not so.  The imputation which arises out of the matters to which I have referred is that the first applicant had not brought into Court on Saturday, 5 December 2009, hard evidence to the effect that it would not do what Mr Bunn said the first applicant might do.  When one reads paragraph 29 of Mr Campbell’s affidavit of 5 December 2009, that construction is supportable.

17                  In my opinion, T.I.G.A. 12/2:2009 published on 6 December 2009 does not have the effect contended by the first applicant and for that reason, I would refuse the application.

18                  However, there are even more important matters which need to be considered on an application such as this.  This application would, if granted, have the effect of suppressing free speech.  Mr Bunn was brought into Court on a Saturday afternoon and was subjected to an order which impinged on his freedom to communicate with people who might have interests similar to his own.

19                  He is thereby entitled, in my opinion, and I would do nothing to stop him, criticising those who sought to restrict him in the freedom of speech, which he wishes to exercise, and the Court in making the order that it did.  It would not be appropriate, in my opinion, for this Court to do anything to restrict Mr Bunn’s freedom to criticise the litigant which has sought

to suppress his right to freedom of speech, and the Court which has made the order which it did.  For all of those reasons, in my opinion, the application must be refused.

Associate:

Dated:         11 December 2009