[2020] NSWSC 379

ORKO Fertilizers Pty Ltd v McClymont

(1) Order that the time for service of the Summons, Commercial List Statement, and the unsworn affidavit of Andrew Christopher be abridged to 12.00 noon on 9 April 2020. (2) Order that service of the Summons, Commercial List Statement and Mr Christopher’s affidavit be effected: (a) electronically, by email: (i) to the first defendant for and on behalf of himself and as director of the second defendant at xxxxxx@gmail.com; (ii) copied to David Reid at david.reid@dwf.law; and (b) in hard copy, sent by post within 2 business days after the date of this order and addressed to “Frank McClymont, xxxx QLD xxxx”. (3) Direct that the Summons be made returnable at 10.00 am on Wednesday, 15 April 2020 before the Commercial List Duty Judge. (4) Upon the plaintiffs giving the usual undertaking as to damages, order that until 5.00 pm on Wednesday, 15 April 2020, or further order of the Court, and subject to order (5), the defendants be restrained, whether by themselves or their servants and agents, from: (a) directly or indirectly communicating with any person in relation to the business, operations, management or trading activities of the first plaintiff; (b) engaging in any oral, written or electronic communication with the plaintiffs and their employees including without limitation the following individuals (i) John Kinghorn; (ii) Tom Boss; (iii) Marty Kim; (iv) Melissa Boyd; (v) Nigel Phelan; (vi) Kira Ang; and (vii) Greg Jones; (c) directly or indirectly, expressly or impliedly, disparaging, denigrating, criticising or permitting or authorising the disparagement of the plaintiffs and any of their employees or otherwise making, permitting or authorising the making of any statement in any way relating to or connected with the subject matter of the Deed of Settlement and Release dated 20 December 2019 and made between the plaintiffs and the defendants which is calculated or is reasonably likely to cause damage to any of the plaintiffs or their employees. (5) Order (4) does not apply in respect of any communications or statements which the defendants may choose to make or be asked to make: (a) to their legal advisers; (b) as required by law; or (c) to the police or any government authority (including without limitation any workplace safety authority in Queensland or elsewhere in Australia). (6) Direct that the plaintiffs at the time they serve the Summons, serve on the defendants a copy of their submissions dated 8 April 2020 together with a copy of this judgment.

Catchwords

INTERLOCUTORY INJUNCTION - Where defendants in breach of Deed of Settlement and Release -Where defendants agreed not to disparage or communicate with plaintiffs or persons connected to them - No issues of principle.

Legislation cited

Corporations Act 2001 (Cth)

Judgment

[1]
By a Summons filed on 7 April 2020, the plaintiffs relevantly seek an ex parte interlocutory injunction restraining the defendants from engaging in conduct said to be in breach of a Deed of Settlement and Release dated 20 December 2019 (the Deed) between the parties.
[2]
The Deed was entered into in relation to certain communications that the first defendant, Mr McClymont, had sent to customers of the first plaintiff, ORKO Fertilizers Pty Ltd (referred to in the Deed as “QLD Organics”) and to other persons. It contains a number of provisions by which the defendants agree not to disparage or communicate with the plaintiffs and persons connected to them. In particular:
[3]
In January 2020, the first defendant sent a number of offensive and harassing communications to and about the plaintiffs and their staff (including at least some of the specific people identified in cl 8.3 of the Deed), including communications which are derogatory in relation to matters of race, same-sex attraction and the suffering of cancer. The first defendant has also sent communications which imply that physical violence is an appropriate means of addressing wrongs that the first defendant apparently claims have been done to him. It is not necessary to set out the contents of the relevant communications in this judgment.
[4]
It appears that the plaintiffs attempted to arrange a without prejudice meeting in late January 2020 with the first defendant to try to resolve his grievances to no avail and in early March 2020 the first defendant sent another series of derogatory communications to and about the plaintiffs.
[5]
On 16 March 2020, the plaintiffs’ solicitor, Mr Christopher, wrote to the defendants alleging breaches of the Deed and sought a written undertaking by 19 March 2020 that the defendants would abide by the Deed and stated that, in the absence of an undertaking, the plaintiffs would commence court proceedings.
[6]
That letter provoked a further flurry of correspondence from the first defendant. The response to Mr Christopher’s letter is illustrative. In it, the first defendant said, among other things:
[7]
In my opinion, the plaintiffs have a good arguable case that the first defendant has breached the Deed in sending the communications he has. In my opinion, the balance of convenience also favours granting an ex parte interlocutory injunction. As I have said, it appears that the plaintiffs have a strong case that the first defendant is in breach of the Deed. It is apparent from his correspondence in response to Mr Christopher’s letter dated 16 March 2020 that, unless restrained, the first defendant is likely to continue the conduct he has engaged in. There is no apparent reason why the plaintiffs should not be entitled to a final injunction to give effect to express negative covenants in the Deed. It seems plain that damages would not be an adequate remedy.
[8]
The form of the injunction sought in the Summons is, in some respects, too broad. It largely mirrors the obligations in the Deed. However, it is not apparent how the defendants could comply with some of those obligations. For example, it is not apparent how the defendants would know who were prospective customers of the plaintiffs. The orders that I propose to make take account of those considerations.
[9]
The plaintiffs accept that the injunction that they seek cannot restrain the defendants from communicating with their lawyers or the police or other governmental authorities responsible for administering the law and workplace safety legislation in particular. The orders that I propose to make also take account of that concession.
[10]
The orders of the Court therefore are:
1. (1)
  Order that the time for service of the Summons, Commercial List Statement, and the unsworn affidavit of Andrew Christopher be abridged to 12.00 noon on 9 April 2020.
2. (2)
  Order that service of the Summons, Commercial List Statement and Mr Christopher’s affidavit be effected: (a) electronically, by email: (i) to the first defendant for and on behalf of himself and as director of the second defendant at xxxxxx@gmail.com; (ii) copied to David Reid at david.reid@dwf.law; and (b) in hard copy, sent by post within 2 business days after the date of this order and addressed to “Frank McClymont, xxxxxx QLD xxxxxx”.
3. (3)
  Direct that the Summons be made returnable at 10.00 am on Wednesday, 15 April 2020 before the Commercial List Duty Judge.
4. (4)
  Upon the plaintiffs giving the usual undertaking as to damages, order that until 5.00 pm on Wednesday, 15 April 2020, or further order of the Court, and subject to order (5), the defendants be restrained, whether by themselves or their servants and agents, from:
5. (5)
  Order (4) does not apply in respect of any communications or statements which the defendants may choose to make or be asked to make: (a) to their legal advisers; (b) as required by law; or (c) to the police or any government authority (including without limitation any workplace safety authority in Queensland or elsewhere in Australia).
6. (6)
  Direct that the plaintiffs at the time they serve the Summons, serve on the defendants a copy of their submissions dated 8 April 2020 together with a copy of this judgment.
7. (7)
  Direct that these orders may be taken out forthwith.