JOHN BORRIE ALEXANDER v GARTH WARWICK ROUNTREE, LINDSAY VICTOR & ORS [2001] NZCA 22 (15 February 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 229/00

	between	JOHN BORRIE ALEXANDER
		Appellant

	and	garth warwick rountree, LINDSAY VICTOR NORTH, JAMES ROSS TURNER, GRAHAM DUNCAN ARMOUR McGARRY, david john renwick, stephen peter rennie, samuel bruce hetherington
		Respondents

Hearing:	15 February 2001
Coram:	Thomas J Blanchard J McGrath J
Appearances:	Mr Alexander in Person
	S R Maling for Respondents
Judgment:	15 February 2001

judgment of the court delivered by THOMAS j

[1] Mr Alexander has appealed against an interim order made by Panckhurst J on 4 October 2000 restraining him from publishing certain defamatory statements about a firm of solicitors, Rhodes & Co.His appeal is without merit and will be dismissed.
[2] Mr Alexander owned certain land.Westpac Banking Corporation undertook a mortgagee sale in respect of that land.Rhodes & Co were the solicitors who acted for Westpac.Proceedings were brought by Mr Alexander against Westpac in March and May last year in which he sought an interim injunction to restrain the bank from selling the land.Panckhurst J declined the application on 9 May 2000.Mr Alexander has obviously developed and harboured a grievance against Rhodes & Co arising out of the firm's handling of its instructions from Westpac.
[3] By letter dated 15 September 2000, Mr Alexander published a viciously worded letter to an unknown number of persons about Rhodes & Co.In the letter he charges that the partners of the firm or one or more of them had acted criminally and corruptly and were guilty of bribery, perjury, fraud, conspiracy and threats to kill; that they had unlawfully bribed court employees to seal forged court orders; concocted fictitious proceedings; committed perjury and bribed others to do so; bribed business and local authorities to provide confidential information; used bribery, perjury and conspiracy to effect unlawful mortgagee property sales; engaged others to threaten violence or death; and defrauded their clients.The solicitors commenced proceedings seeking damages for defamation and at the same time made an ex parte application seeking an injunction to restrain publication of the alleged defamatory statements pending a decision in the substantive hearing.
[4] In a tightly reasoned judgment, Panckhurst J made an order in the following terms on 4 October 2000:
1) That the defendant, whether by his servants, agents or otherwise be restrained until further order from publishing orally or in writing defamatory statements of and concerning the plaintiffs by repeating the statements complained of in paragraphs 3 and 4 of the statement of claim or any words to the like effect.
[5] We are unable to fault Panckhurst J's decision.It is well established that the courts have jurisdiction to restrain publication prior to trial, but that this jurisdiction is only exercisable for clear and compelling reasons. See TV Network Services Ltd v Fahey [1999] 2 NZLR 129 (CA).The Judge acknowledged the stringency of this test.He held the criterion suggested by Jessel MR in Quartz Hill Consolidated Gold Mining Ltd v Beall (1882) 20 Ch D 501, at 508, that jurisdiction to grant an interim injunction in the context of defamation exists where "an atrocious libel wholly unjustified and inflicting the most serious injury on the plaintiff" has been clearly met.The alleged libels in this case have been made against solicitors in relation to their professional services and clearly have the capacity to cause considerable harm.The Judge considered that the prospect of Mr Alexander justifying the libellous statements was remote if not non-existent.
[6] Mr Alexander does not appear to appreciate the nature of the interim order. It prevents him from publishing the allegedly defamatory material in his letter pending the substantive hearing of Rhodes & Co's claim.It does not prevent him from defending that claim.He may then, if he so decides, pursue the defence of justification and adduce evidence to support his defence.But we make no comment on the wisdom of that course.What Mr Alexander cannot do is publish the statements contained in paragraphs 3 and 4 of the statement of defence filed by the solicitors pending the trial.
[7] Nor need Mr Alexander be impeded in preparing for the trial.We consider that he can make proper inquiries in the conventional manner without repeating the defamatory statements.It is inherent in the order made that if Mr Alexander is disadvantaged in respect of any particular witness or matter, he could seek leave to approach the High Court for a specific exemption to the Order.We would regard the circumstances which would justify this course as being the exception rather than the rule.
[8] We consider that this is clearly an appropriate case for an interim order and we therefore dismiss the appeal.
[9] Costs are awarded against Mr Alexander in the sum of $1,000, together with disbursements, including counsel for the respondent's travelling expenses, which failing agreement are to be fixed by the Registrar.
Solicitors
Lane Neave, Christchurch for Respondents