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Darryl Arnett & Ors v Jenina Roper & Anor [1998] WASC 187 (12 June 1998)

Last Updated: 21 July 1999

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CORAM : TEMPLEMAN J

HEARD : 12 JUNE 1998

DELIVERED : 12 JUNE 1998

FILE NO/S : CIV 1544 of 1998

BETWEEN : DARRYL ARNETT

First Plaintiff

JOHN KELLY

Second Plaintiff

AND

JENINA ROPER

Defendant

Catchwords:

Defamation - Application for injunction to restrain publication of a libel - No grounds for concluding substance of defamatory statement to be true.

Representation:

Counsel:

First Plaintiff : Mr C Chenu

Second Plaintiff : Mr C Chenu

Defendant : In person

Solicitors:

First Plaintiff : Durack & Zilko

Second Plaintiff : Durack & Zilko

Defendant : In person

Case(s) referred to in judgment(s):

Case(s) also cited:

Nil

Library Number : 980347

TEMPLEMAN J:

This is an application for an injunction against Mrs Jenina Roper to restrain her from publishing certain words which are said to be defamatory of the plaintiff. The words appear on a sign outside the property at 31 The Avenue, Nedlands where Mrs Roper lives. The sign says, "Buyer beware of conspiracy to defraud widow by daughters and Darryl Arnett and John Kelly." The widow is Mrs Roper, and Mr Arnett and Mr Kelly are the plaintiffs.

The story is a long and complicated one and I have had some difficulty piecing it together.

I have attempted to understand the position by asking questions of Mrs Roper, who has responded rarely directly to the questions but generally by lengthy and complicated answers relating to various matters about which she complains concerning the conduct of Mr Arnett and Mr Kelly. As best as I can understand it, there was a Supreme Court order that the property be sold on the basis that Mrs Roper had a quarter share and her daughters a three-quarters share.

There then appears to have been a contract entered into between Mrs Roper and her daughters and the company with which Mr Arnett and Mr Kelly are associated. Mrs Roper says that she was tricked into signing that contract. Whether or not that is so seems to me nothing to do with the present application and I express no view about it. Mrs Roper says that when she discovered that she had been tricked, she made it plain that she would not go ahead with that contract, whereupon the purchasers agreed to withdraw on the basis that a further agreement was entered into some time in 1996.

This is a document described by Mrs Roper as "the secret agenda" because it contains a provision in cl 7 that Mrs Roper's daughters undertook to DA Investments Pty Ltd and Tremworth Holdings, which I understand to be companies associated with Mr Arnett and Mr Kelly, that they would keep confidential the terms of the document and all the negotiations and information concerning the preparation and completion of the document and would not disclose that information to any third party including Mrs Roper without consent. It does seem to me to be a quite extraordinary provision.

The effect of the document is that the property can be sold by auction on the basis that Mrs Roper would receive 25 per cent of the net sale proceeds after costs and expenses and so forth. At present, I do not see how that burden could be imposed on a person who is not a party to the agreement. The daughters would receive $185,000 and DA Investments and Tremworth Holdings would receive a balance of the proceeds. That, it seems, would result in a very substantial windfall to those companies, having regard to the substantial increase in value of the property since the first contract was entered into.

The reason for the secret agenda, as Mrs Roper calls it, being so favourable to those companies is, it seems, that it represents some form of compensation to them arising from the repudiation of the earlier agreement. Mrs Roper says that pressure was put on her daughters by Mr Arnett and Mr Kelly to induce them to sign the secret agenda, which is so unfavourable to Mrs Roper.

If Mrs Roper is right about that and, if she is right about the circumstances in which the first contract came to be entered into, that is the contract which she says was made following some trick or fraud practised on her, then Mrs Roper might well have cause to complain about Mr Arnett and Mr Kelly. I express no view about that in these proceedings. However, what the sign says, which is the subject of this application, is that there is a conspiracy between Mr Arnett and Mr Kelly and the daughters to defraud Mrs Roper. It seems to me that on no view could it be said that the daughters are a willing party to any conspiracy to defraud Mrs Roper when, as she herself says, they are being put under pressure by Mr Arnett and Mr Kelly to defeat her interests.

It may be a fine legal point, but that is how the law of conspiracy works. In those circumstances, it seems to me that on the evidence as it presently stands there are no grounds for thinking that there is in fact a conspiracy in the terms described by Mrs Roper. Since that is the substance of the defamatory statement, it seems to me that the plaintiffs are entitled at least to have the interlocutory injunction which they now seek.

I am concerned that the terms of the interlocutory injunction sought are far too wide. As Mr Chenu, who appears for the plaintiffs, concedes, it would prevent Mrs Roper even from stating the words complained of in some privileged circumstances. What I propose to do is to make an order in more limited terms restraining Mrs Roper from publishing or causing the offending words to be published in or about the property in question.

That will have the result that under a previous order made by I think Walsh J the plaintiff will be entitled to attend at the property and have the offending words painted over. When that has been done Mrs Roper will not be able to put them back again. Nor will she be able to request anybody to put the words back again on her behalf.