Case: Metcash Trading Limited v Bunn [2006] FCA 322
Outcome: cited
On 24 February 2006, the applicant companies (which I will describe collectively as "the Metcash companies") commenced proceedings against Mr Bunn. Interlocutory relief was sought to restrain publications by Mr Bunn relating to companies and their businesses which they claimed were objectionable. At a contested interlocutory hearing on 9 March 2006 at which Mr Bunn appeared without legal representation, Lander J of this Court was satisfied that there were serious questions to be tried in relation to alleged breaches of the companies' trademarks, inducements to third parties to breach their contracts with the Metcash companies and contraventions of s 52 and s 53 of the Trade Practices Act 1974 (Cth): Metcash Trading Limited v Bunn [2006] FCA 322. Being satisfied that the balance of convenience favoured the applicants, his Honour made interlocutory orders which included the following: 3.2 Until further order, the Respondent, his servants or agents be restrained from publishing or republishing the allegations contained in the "Open Letter" dated 17 December 2005 being exhibit "PAC 11" to the affidavit of Peter Andrew Campbell sworn 23 February 2006. ... 3.5 Until further order, the Respondent, his servants or agents be restrained from publishing, whether on the internet or by any other means of communication to the public, any allegation to the effect that: a. the Respondent or the Respondent's former company, Chadmar Enterprises Pty Ltd (In Liquidation) is currently pursuing recovery proceedings against any of the Applicants or their related entities; b. the Applicants actively and deliberately operated in a manner calculated to destroy the Respondent's business; c. the Applicants actively and deliberately operate in a manner calculated to prejudice, damage or destroy the business of independent retailers with whom they deal ; d. the Applicants have deliberately and improperly concealed the existence of substantial actions commenced by suppliers and customers and thereby caused Metcash Limited to breach its disclosure requirements'. (Emphasis added.) 3 Though the contempt charged relates only to instances of disobedience to Order 3.5(c), the other orders above are of some significance, as will later become apparent. 4 The first version of the applicants' Statement of Claim post-dated the 9 March 2006 orders. It was filed on 26 May 2006 and, in addition to the causes of action identified by Lander J, it contained as well claims for threatened disclosure of confidential information, defamation and injurious falsehood. I simply note in passing that the allegations pleaded in the current version of the statement of claim in relation to defamation, injurious falsehood and contravention of s 52 and s 53(d) of the Trade Practices Act reflect that referred to in Order 3.5(c): see Second Amended Statement of Claim paras 46.1.5, 47, 52, 57 and 61. 5 At a later interlocutory hearing before Lander J on 28 February 2007, the scope and meaning of aspects of the above orders was raised in discussion between Lander J and Mr Bunn. The genesis of this discussion related in part to Mr Bunn's claimed inability to work out what it was in his 17 December 2005 "Open Letter" to which the Metcash companies objected. The contents of that letter are described below. The following exchanges extended across seven pages of the Transcript: see pp 51-57. MR BUNN: I first of all started off trying to work out exactly what they were referring to in my open letter of 17 December. ... MR BUNN: The order against me was I was restrained from publishing and republishing the allegations contained in the open letter of 17 December. See, from my perspective, I am not seeing allegations. I know them to be facts so that is where all my confusion comes in. So I actually went and I broke down that open letter of 17 December into numbered paragraphs and sub-numbered sentences, asking them: please tell me which is which? All I got was - - - HIS HONOUR: Sorry, what do you ask? MR BUNN: In the letter I asked them: could they please identify by paragraph and sentence number the allegations to which you are claiming in regard to the injunction that was placed on it. HIS HONOUR: Where do you write that? MR BUNN: The third-last paragraph. HIS HONOUR: Of what? MR BUNN: The 5 October letter, which is 130 PCV130. HIS HONOUR: Yes. MR BUNN: Asked the name so that we can actually deal in words. Maybe I was wrong in doing that, I don't know. The only reply I got was annexure 131 from Mr Mauritz, who basically said: we have clearly identified the issues in dispute, and he names the statement of claim and the categories of documents. He does state prior to that: we are not your legal advisers, a fact that you have identified. Once again, another twist of what has been said before, but I understand that they are not, that they are bringing the claim against me and I just wanted to know, what were the allegations in that 17 December letter. After getting that reply I then wrote to them on 9 October. This time I went to the great time and effort to list, or enclose all open letters which were referred to in this Court into numbered paragraphs and sub-sentences I am pretty proud of my job, if I may say so, it took a long time once again, to identify which allegations or what they are calling an allegation including the page of the Metcash Info site. HIS HONOUR: Mr Bunn, in that letter you wrote sending the open letter, to which - - - MR BUNN: Is that the 17th, or all of the open letters, your Honour? HIS HONOUR: Well, as the order presently stands you are not entitled to publish any of the allegations which are assertions of fact contained in the open letter of 17 December. MR BUNN: But what are they calling an allegation in that letter? HIS HONOUR: An assertion of fact. MR BUNN: An assertion of fact is something that is not backed by evidence, is it not? HIS HONOUR: No, no. At this stage anything assertion of fact which is made is an allegation. MR BUNN: Even if it has got factual evidence? HIS HONOUR: Yes. Until such time as it is established to be a fact by the Court. MR BUNN: Okay. All right, my understanding. I didn't think I was being stopped talking about truth and fact. HIS HONOUR: There might be something to be said to varying the order because it is probably too wide. MR BUNN: I read the order all the time and I didn't understand it as saying, I couldn't even talk about fact. It says: Any allegation to the effect that. HIS HONOUR: Yes. MR BUNN: An allegation is unbased with evidence, is it not? HIS HONOUR: Well, yes. MR BUNN: Have I got it upside down? HIS HONOUR: I think you have. I think the intent of the order is to prevent you making the claims previously published in that letter. Whether the order ought to continue to stand is another thing. ... MR BUNN: This is where I get tripped up. A lot of what is in that 17 December letter is fact. Some of the stuff they haven't even raised in it. Some of the stuff they have raised but it has got blaring evidence that even they have produced to this Court ... HIS HONOUR: Can I answer some of your questions that you raised rhetorically, I think and this is not to sound critically of you you have got an ongoing campaign directed against Metcash. MR BUNN: It is not a campaign, your Honour. It is not directed at Metcash. Can I explain? HIS HONOUR: Yes. MR BUNN: I had six supermarkets turning over a substantial amount of money and I had operated in the industry for 18 years and I had a lot all my life, everything invested in it. Under a contract that was what I believed was what I could base that business on. The contract was either not honoured or was manipulated by the applicants and of course the company got into trouble, and since then I have lost the company, I have lost everything in life, I have gone into bankruptcy. It has all been a 5 big joke to Metcash. But my greatest fear is, above everything else that has happened to me, is that what I have gone through doesn't happen to anyone else, and it doesn't happen to anyone else through them knowing what and how it occurred, what is occurring and what is going on. Now, I have at all times, if you go through these open letters, I have said to Metcash: you place in the public forum the evidence to prove me wrong and I will not only withdraw what I have said, I will make a public apology and I mean that I have no malice towards anybody in particular at Metcash and I have said in numerous open letters: yes, I want them to review their conduct in regard to Chadmar and its supply agreement. I am not in the position as Franklins are to take them to the Supreme Court and run through there for three and a half years but, yes, I do so it is not an agenda to pull down Metcash. HIS HONOUR: I didn't say that. MR BUNN: But, I tell you what, it is in to make sure that no other independent wholesaler falls into the hole that I fell into. HIS HONOUR: Yes. I think - - - MR BUNN: And, this is all based on fact and truth. I mean, it is not - - - HIS HONOUR: That may be so. I don t think anything you have said actually causes me to alter what I said. I think you are running a campaign, and this is not said critically, you are a constant critic of Metcash, and it is directed against Metcash and the ALM. Now, whilst you do that, you can assume that Metcash will react because - - - MR BUNN: Certainly. ... MR BUNN: ... In regard to the affidavit of Peter Andrew Campbell, 5 February, under contempt, and I understand that contempt is now off the table, and has taken another format. But, still, he quotes that the orders at number 38, he quotes the orders: The applicants actively and deliberately operate in a manner calculated prejudice, damage, or destroy the business of the independent retailer. Without going through every sentence, and every paragraph I understand what that says in that order. I'm very aware of what it says in that order but in nothing that they have brought before this Court have I said that they actively do it, or deliberately do it. What I have always said and I have said right from the start is that their actions create a problem. Their actions are having these impacts. Whether it be naively or anything else, I have never made a judgment on it. What I have made a judgment on has been the resulting effect of what Metcash do and what Metcash say. So I have never said they don t have the - - - HIS HONOUR: That is a different thing. The order doesn't address motive; the order addresses actions. It might be that they have done it for the right motives or for the wrong motives, but the question is: if you write something in which you say that Metcash has intentionally done something, in a manner calculated to produce damage or destroy the business of a retailer, then you will breach the order. MR BUNN: But I haven t said that they have actively or deliberately done it; calculated it to do such. HIS HONOUR: You don't have to use the words of the order to breach it. You can breach the order if what you write is contrary to the terms of the order. I'm not saying you have - - - MR BUNN: With all due respect, your Honour and this is no criticism of the Court, because I understand; you explained it to me in March when the injunction was put on me the reasons why the Court had to but the basis on their applications and the issues ordered would really, if you allow their interpretations to rest on everything that has been written and, mind you, there is a mile of other stuff that has been printed that I have made no issue with but if you take what they have brought up to this Court and having issue with on their interpretation of my words, well then I would get sunk on every sentence in every paragraph of every media release and every open letter. HIS HONOUR: Maybe, but that is not the issue today. As I said, if you want to apply to discharge or vary the order, make your application and I will hear it as soon as I can. 6 I refer to this exchange despite its length, as it bears directly both on the way in which the Metcash companies seek to characterise the contempt alleged and on Mr Bunn's defence of the charges against him. What I would presently emphasise is that, while the first two passages I have emphasised clearly relate to Order 3.2, the latter two equally clearly relate to Order 3.5(c). The two orders, as his Honour indicated, were quite different in the restraints they respectively imposed. 7 By notice of motion of 27 March 2007, Mr Bunn sought, amongst other things, the deletion of Order 3.5(c). Argument on that motion was heard on 17 December 2007. Mr Bunn indicated then that he no longer wished to prosecute the Order 3.5(c) part of his motion, having been advised against it by pro-bono solicitors appointed by this Court to advise him in relation to that and other motions. 8 The first of the three publications said to constitute the contempt was published in July 2007. 16 In the exchange between Lander J and Mr Bunn quoted above, reference was made both to Mr Bunn's claimed loss of his business at Metcash's hands and to what his Honour described as Mr Bunn's "campaign" against the Metcash companies. While neither of these matters were the subject of direct evidence in this proceeding, they were subjects to which reference was made. They clearly inform a proper understanding of this matter. As to the "campaign", sufficient instances of publications and "open letters" have been put in evidence to substantiate that characterisation of Mr Bunn's conduct vis-&agrave;-vis the Metcash companies. 17 The circumstances alleged to have given rise to Mr Bunn's business, Chadmar Enterprises Pty Ltd, going into liquidation and Mr Bunn's allegations against Metcash in relation to, and arising out of, the liquidation are the principal topics of the 17 December 2005 "open letter" referred to earlier in these reasons. The allegations contained in that letter were the subject of Order 3.2 quoted above. I emphasise the focus on Chadmar and its failure in the open letter because it bears upon the construction Mr Bunn has placed upon Order 3.5(c). 18 When both the first and second of the three contempt publications were made, the Metcash companies lawyers wrote to Mr Bunn indicating their and their clients' view that the allegations made breached Order 3.5(c). 25 I preface what I have to say, first, by referring to the acknowledgment by Lander J that Order 3.2 and possibly Order 3.5(c) may be too wide. Nonetheless, neither order was later varied at Mr Bunn's behest. Secondly, one potential difficulty in construing Order 3.5(c) has been dissolved by a concession by the Metcash companies for the purposes of the present motion. That concession, as I will note below, is advantageous to Mr Bunn. 26 To reiterate, Orders 3.2 and 3.5(c) provide, insofar as presently relevant: 3.2 Until further order, the Respondent, his servants or agents be restrained from publishing or republishing the allegations contained in the "Open Letter" dated 17 December 2005 ... 3.5 Until further order, the Respondent, his servants or agents be restrained from publishing, whether on the internet or by any other means of communication to the public, any allegation to the effect that: ... c. the Applicants actively and deliberately operate in a manner calculated to prejudice, damage or destroy the business of independent retailers with whom they deal. 27 I would note that, while Order 3.2 relates to the publishing or republishing of allegations contained in a designated document (ie the proscribed allegations are those made in that document), Order 3.5(c) is not circumscribed in the same way. The publishing of allegations is proscribed by that order, not because they are contained in a designated document, but because they have a particular character (ie the allegations are to the effect that "the Applicants actively and deliberately etc"). So much is quite clear on the face of the orders themselves and this in turn is reflected in the explanation of the orders given by Lander J to Mr Bunn on 28 February 2007: see [5] above. 28 Mr Bunn appears not to have perceived this obvious difference between the two orders, or to have understood Lander J's explanation of them in this respect. In consequence, as seems to emerge from his cross-examination, he took the view that Order 3.5 was simply an itemisation of Order 3.2 having the same 17 December temporal limitation, hence the following exchange (Transcript 29): Can you refresh your memory about the terms of paragraph 3.2?---I have. That was restraining you from publishing, or re-publishing the allegations in the letter of 17 December, wasn't it?---Yes. Paragraph 3.5 was not limited to that, was it?---Oh, I thought it was directly in relation to it. Well, tell me where?---Because it talks about at paragraph 8: The respondent, or the respondents former company, Chadmar Enterprises, currently pursuing recovery proceedings. And it went through and listed, and itemised that letter of 17 December. Where does it refer to the letter of 17 December?---Well, they were the allegations contained in the 17 December. Where does the order refer to - - -?---Well, the order doesn't. No?---I'm just telling you that was my understanding. And, notwithstanding that there was an order in paragraph 3.2 that specifically prohibited you from publishing the allegations in the letter of 17 December?---Well, it followed on in my mind when it went from when it goes down to 3.5,A and B, and C, and D is that that's what it was doing. It was expanding on what was in 3.2. That's how I understood it to be. 29 Consistent with this view Mr Bunn claims that the orders as he understood them only prohibited him from publishing or republishing allegations made in the 17 December letter that gave rise to the orders. Those allegations, which had not as yet been substantiated in the principal proceedings, could not be published. New allegations (which were not in issue in that proceedings) could be published. In his evidence he described the procedure he used to check whether material to be published was caught by the orders as he understood them. He explained how he used a legal dictionary's definition of "allegation" to assist his understanding of the 9 March orders. He took from that definition (not from the terms of the order) that he was stopped from publishing any still to be proved assertion made by a party to the principal proceeding. This in turn he took to mean that he could publish the assertions of retailers , seemingly because they were not parties. In his affidavit of 25 February he appears to use this explanation to indicate that such assertions were not "allegations" for the purposes of the orders. In cross-examination he did accept, though, that in publishing such retailer assertions he was himself making an assertion about what retailers were saying. Mr Bunn's misunderstandings in all of this if misunderstandings they be were stark. They took him far from the obvious meaning and intent of Order 3.5(c). 30 Necessarily I have to return to the question of Mr Bunn's veracity below. All I wish to emphasise here is that such understanding as he says he entertained of the proper construction of Order 3.5(c) was not the true construction of that order. 36 Secondly, they rely upon Lander J's 28 February 2007 explanation to Mr Bunn of the meaning and intent of Orders 3.2 and 3.5(c) which has been set out in part at [5] above. 37 Thirdly, they point to the attitude demonstrated by Mr Bunn in media releases and "open letters" he published from time to time. By way of illustration, I note the statement relied upon in the open letter of 10 May 2008 that: One would assume that given you have been unable to silence, and stop my publications after 28 months in the Federal Court, that you would have realised that the legal system does not stop free speech, truth and fact from being spoken, and published ... 38 Finally, reliance is placed upon the pattern of conduct of repeated publishing of allegations after the making of the orders. The contempt publications, it is said, are merely representative of that conduct. 43 Mr Bunn has, for practical purposes, represented himself on this motion and, as I understand it, in much of the principal proceedings. This in turn has had its adverse effects in this matter. He appears to have lacked effective assistance in understanding the real burden of orders or for that matter legal threats made against him. It is quite obvious both from his oral evidence and conduct at the hearings before me, and from the transcripts of the hearings before Lander J, that he does not grapple easily with concepts and he is not quick to understand what is put to him. For this reason I am not prepared to attribute great significance to the actual explanation of the orders given to him by Lander J, while accepting that he ought reasonably to have had greater regard to what was said to him by his Honour. I will return to that matter below. 44 It is equally clear, as his campaign against the applicants attests, that he is tenacious in adhering to a view once entertained. I am not prepared to conclude that he was wilfully blind in the view of the orders he took, but he nonetheless seems to have viewed them uncritically from a perspective that was least disfavouring of his cause against the Metcash companies as, for example, in his seeing Order 3.5 as simply an itemisation of order 3.2 or in accepting apparently that he could without breach of the orders recount the comments of other retailers as these were not relevantly "allegations". 45 Whatever may have been the intellectual processes that lead him to the conviction that the orders had the meaning he ascribed to them I am not prepared to find he was knowingly dishonest in that regard I cannot find beyond reasonable doubt that he did not genuinely hold the views he has espoused. I equally consider it most unlikely that his views would be shaken in any way by contrary assertions made by the applicants' lawyers. Both of these matters had some reflection in his tenacious adherence to his views despite protracted and hostile cross-examination. In saying this, I am not suggesting he so rendered his views the more plausible but rather that, despite what was put to him to the contrary, he would not readily yield.