Murphy v Barfield[2016] QDC 231

DISTRICT COURT OF QUEENSLAND

Introduction and factual context

1. [1]
   Mr Geoffrey Murphy seeks an interlocutory injunction to restrain Mr Michael Barfield from continuing to display large signs on his truck and trailer which contain statements which Mr Murphy says are defamatory of him.
2. [2]
   Mr Murphy is the sole director (since 2000) of a company called Collhart Investments Pty Ltd (in liquidation), which was, prior to 17 June 2016, known as J M Kelly (Project Builders) Pty Ltd (JMK Project Builders).  JMK Project Builders is one of a group of privately owned companies, which also includes another company called JM Kelly Builders Pty Ltd (JMK Builders), both of which have been involved in various large scale building projects.  
3. [3]
   Mr Michael Barfield is the sole director and shareholder of Mackay Labour Hire Pty Ltd, which asserts that it is a creditor of JMK Project Builders (but whose claim has been disputed by the company).
4. [4]
   In August 2013 Mackay Labour Hire brought proceedings in this court against JMK Project Builders, seeking to recover almost $290,000, being money it claimed was due under various contracts.   The proceedings were defended on a number of bases, and a counter-claim was also brought, seeking recovery of money JMK Project Builders had already paid Mackay Labour Hire.   A trial of that proceeding took place on 13 and 14 June 2016.  But it was never determined one way or the other, because JMK Project Builders went into voluntary liquidation on 20 June 2016.
5. [5]
   On 9 August 2016, by order made by consent, JMK Project Builders’ counterclaim was dismissed, and it was ordered to pay Mackay Labour Hire’s costs of the counterclaim.  Mackay Labour Hire has also brought an application in those proceedings, seeking an order for payment of the costs by Mr Murphy, as the director of JMK Project Builders.  That application was heard on 9 August 2016, and the decision is reserved.
6. [6]
   The circumstances in which the decision was made to appoint liquidators to JMK Project Builders is described by Mr Murphy in his affidavit filed 8 September 2016 at [20].  He refers to JMK Project Builders also, at that time, being involved in another piece of litigation, concerning a one-off project at Burleigh Heads, which began with JMK Project Builders suing the developer of the project for $30 million.  The litigation was being funded with assistance from other companies in the group, and although Mr Murphy says he had hoped he could settle the proceedings, by the end of May it was apparent to him that might not be possible.  The financial position of JMK Project Builders was such that, without ongoing support from other companies in the group, it would not be able to continue trading.  Once it became apparent to him that ongoing funding would not be available, he made the decision, during 17 to 20 June, to place the company into an insolvency administration by the appointment of liquidators.  He says he considered he was under a statutory duty to prevent JMK Project Builders from continuing to trade in circumstances where insolvency was actual or imminent, so as to prevent further debts from being incurred.^[1]
7. [7]
   Mr Barfield is clearly frustrated by the fact that JMK Project Builders has gone into liquidation; that his company’s proceedings in this Court have been unable to be determined; and that his company has not been paid what he considers it is owed by JMK Project Builders.   In order to demonstrate his frustration, Mr Barfield has put large signs on a truck and trailer he owns^[2] which make various statements about “JM Kelly Builders”, “JM Kelly (Project) Builders” and Geoff Murphy, which he has parked or driven around various places, referred to below.    He has also participated in interviews with the Morning Bulletin (a paper circulating in and around the Rockhampton area), about these matters, which include photographs of him standing beside his truck bearing these signs.  No complaint is made about these interviews/articles, in this proceeding.
8. [8]
   There are four signs complained of:^[3]

   1. (a)
      Sign 1 (which originally appeared on Mr Barfield’s truck) and sign 2 (which later appeared on Mr Barfield’s truck), are substantially the same, except that in sign 1 the figure is $300,000 and in sign 2 the figure is $600,000:

“I just want to be paid my [$300,000/$600,000] JM Kelly (Project) Builders Pty Ltd

I’VE WAITED 3 YRS, BEEN TO COURT & NOW YOU WANT TO LIQUIDATE RATHER THAN PAY PEOPLE LIKE ME…

SHAME ON YOU GEOFF MURPHY! WHO IS THE REAL SNAKE GEOFF?

2. (b)
   Sign 3, which appears on one side of the trailer:

“Geoff, you said my claim is rubbish

THEN WHY DO I HAVE EMAILS PROMISING PAYMENT?

GEOFF, YOU SIGNED DECLARATIONS TO SAY YOU HAVE PAID EVERYONE.  YOU HAVEN’T PAID EVERYONE GEOFF!

YOU HAVE BEEN PAID FOR WORK THAT WE DID GEOFF MURPHY!

GEOFF, YOU SAID YOU WILL PAY ALL YOUR CREDITORS!

YOU HAVE GONE INTO RECEIVERSHIP, YOU DON’T HAVE CONTROL!

HOW CAN YOU TRUST J M KELLY BUILDERS.  THEY ARE THE SAME PEOPLE AS J M KELLY (PROJECT) BUILDERS PTY LTD.”

3. (c)
   Sign 4, which appears on the other side of the trailer:

“WHY DOES THE GOVERNMENT STILL USE J M KELLY BUILDERS FOR PUBLIC BUILDING PROJECTS WHEN THEY DON’T PAY THEIR CONTRACTORS?

YOU OWE MILLIONS IN SUBCONTRACTORS DESTROYING THEIR LIVES, YET YOU ENJOY A LIFE OF LUXURY!

QBCC ORDERED YOU TO FIX YOUR WORK!

YOU USED OUR LABOUR TO FIX IT THEN DIDN’T PAY US!

How many millions do you really owe?

TELL THE TRUTH NOW GEOFF!

How can you trust J M Kelly Builders.  They are the same people as J M Kelly (Project) Builders Pty Ltd.”

9. [9]
   The evidence relied on by Mr Murphy is to the effect that this truck/trailer was seen parked at various places, from 1 July 2016, namely:

   1. (a)
      on 1 July 2016 the truck was parked outside the Mater Hospital in Mackay (where J M Kelly Builders Pty Ltd were undertaking building work), with sign 1 on it;^[4]
   2. (b)
      on 8 July 2016 the truck was seen driving from Yeppoon to Emu Park, with sign 2 on it;^[5]
   3. (c)
      on various dates (6, 8, 11 August, 5 and 6 September) the truck and trailer was seen parked at various locations around Rockhampton, with sign 1 or sign 2 on the truck and signs 3 and 4 on the trailer.^[6]
10. [10]
    By originating application filed on 7 September 2016 Mr Murphy seeks an interlocutory injunction restraining Mr Barfield “from displaying on any vehicle that is owned or used by him, or that is under his effective control, any signage that makes references to [Mr Murphy] or any iteration of the expression of ‘J M Kelly Builders’”.  He also seeks final relief, in the form of a final injunction and damages, but it has been made clear that in so far as the further progress of this proceeding is concerned, it is to proceed as if started by claim, and a draft statement of claim has been provided.^[7]
11. [11]
    In the “concerns notice”,^[8] and the draft statement of claim, the defamatory imputations which Mr Murphy alleges are conveyed by the signs are that Mr Murphy:

    1. (a)
       is dishonest, devious or duplicitous;
    2. (b)
       is of poor character;
    3. (c)
       is of low moral character;
    4. (d)
       is selfish and greedy;
    5. (e)
       is a businessman who does not pay his creditors;
    6. (f)
       is untruthful;
    7. (g)
       cannot be trusted in business, either by himself or in conjunction with any company controlled by him or with which he is involved;
    8. (h)
       has deprived, or caused Mr Barfield and/or Mackay Labour Hire to be deprived, by improper means the sum of:

       1. (i)
          $300,000; and/or alternatively
       2. (ii)
          $600,000;
    9. (i)
       caused, contributed to or participated in J M Kelly (Projects) Builders Pty Ltd being placed into liquidation for the express purpose of:

       1. (i)
          defeating or avoiding a decision of the courts in favour of Mr Barfield or Mackay Labour Hire;
       2. (ii)
          defeating or avoiding payment to Mr Barfield or Mackay Labour Hire of $300,000, or alternatively $600,000;
    10. (j)
        has exploited the legal system to avoid paying amounts which he otherwise was obliged to make;
    11. (k)
        is responsible for destroying people’s lives;
    12. (l)
        owes millions of dollars to creditors; and
    13. (m)
        has done something for which he ought to be ashamed.
12. [12]
    Mr Barfield says all the statements of fact in the signs are true, and in so far as the signs contain comments or opinions, they are truly held by him, based on information available to him, and relate to matters of public interest, namely a dispute litigated before this Court between Mackay Labour Hire and JMK Project Builders, as well as the insolvency and liquidation of JMK Project Builders.   He opposes the interlocutory relief sought.

Jurisdiction

13. [13]
    At the outset it was contended on behalf of Mr Barfield that this Court did not have jurisdiction to entertain Mr Murphy’s application for an interlocutory injunction.  This argument was advanced on the basis that the Court’s jurisdiction in relation to injunctive relief is limited by s 68(1)(b)(xii) of the District Court of Queensland Act 1967 (which is a specific provision conferring jurisdiction on the court in an action “to restrain, whether by injunction or otherwise, any actual, threatened or apprehended trespass or nuisance to land, where the value of that land does not exceed the monetary limit”).
14. [14]
    But Mr Murphy’s claim is, more broadly, one which seeks damages for defamation.  Although commenced by originating application,^[9] it is intended to proceed as if started by claim, with a draft statement of claim having been provided in advance of this application.^[10]   It is a claim plainly within the jurisdiction of this Court, under s 68(1)(a) of the District Court of Queensland Act, as a personal action, where the damages sought to be recovered do not exceed the monetary limit of the Court’s jurisdiction.   For the purposes of exercising the jurisdiction conferred by s 68, the Court has all the powers and authorities of the Supreme Court (s 69(1)), including the power to grant relief by way of injunction, whether interim, interlocutory or final (s 69(2)(b)).    I am satisfied this Court has jurisdiction to deal with Mr Murphy’s application.

Legal principles

15. [15]
    There was also dispute between the parties as to the legal principles which govern the grant of an interlocutory injunction to restrain the further publication of allegedly defamatory material.
16. [16]
    Counsel for Mr Murphy submitted that the two part test affirmed by the majority of the High Court in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 (whether the plaintiff has made out a prima face case and, if so, where the balance of convenience lies) applies.  It was submitted that the Court in O'Neill “did seem also to reject the so-called ‘rigid approach’ adopted in England, which is generally to reject any interlocutory relief” [in the context of a defamation action].^[11]  It was accepted that, in the context of a defamation case, there are particular considerations which dictate caution (as identified in the reasons of Gleeson CJ and Crennan J at [19] of O'Neill, set out below).
17. [17]
    Counsel for Mr Barfield submitted that the principles are as set out in the decision of the Full Court of the Supreme Court of Queensland in Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199 at 204-205, where Moynihan J observed that the law is as stated by Walsh J in Stocker v McElhinney (No 2) (1961) 79 WN (NSW) 541 at 543-544, where his Honour said:

“I consider the following propositions to be in accordance with the authorities:

1. (1)
   Although it was one time suggested that there was no power in the Court, under the provisions similar to those contained in the Common Law Procedure Act, ss 176 to 179, to grant an interlocutory injunction, in cases of defamation, it is settled that the power exists in such cases.

2. (2)
   In such cases, the power is exercised with great caution, and only in very clear cases.

3. (3)
   If there is any real room for debate as to whether the statements complained of are defamatory, the injunction will be refused.  Indeed, it is only where on this point, the position is so clear that, in the judges’ view a subsequent finding by a jury to the contrary would be set aside as unreasonable, that the injunction will go.

4. (4)
   If, on the evidence before the judge, there is any real ground for supposing that the defendant may succeed upon any such ground as privilege, or of truth and public benefit, or even that the plaintiff, if successful, will recover nominal damages only, the injunction will be refused.”^[12]

18. [18]
    On behalf of Mr Murphy, it was submitted that Shiel was representative of the “rigid” approach to applications of this kind, which appears to have been rejected by the High Court in O'Neill. 
19. [19]
    On my analysis, the position is essentially as submitted by counsel for Mr Murphy, but with Shiel being seen to have continuing relevance.
20. [20]
    In terms of the “organising principles to be applied” generally, where interlocutory injunctive relief is sought, the majority of the Court in O'Neill (Gleeson CJ and Crennan J, in their joint reasons at [19], agreeing with Gummow and Hayne JJ, in their joint reasons at [65]-[72], particularly at [65]) confirmed that the principles are as established in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618.  Relevantly, the court addresses itself to two main inquiries:

“The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief….  The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.”

21. [21]
    In order to make out a prima facie case, a plaintiff does not need to show that it is more probable than not that at trial they will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.  But how strong the probability needs to be depends upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the order he seeks.^[13]
22. [22]
    It is clear from O'Neill that these organising principles apply equally in a defamation context as in any other context.  But it was also affirmed, by the majority in O'Neill, that the application of those principles, in the context of a defamation case, requires a particularly cautious approach.
23. [23]
    Gleeson CJ and Crennan J said, at [19], that:

“In the context of a defamation case, the application of those organising principles will require particular attention to the considerations which courts have identified as dictating caution.  Foremost among those considerations is the public interest in free speech.  A further consideration is that, in the defamation context, the outcome of a trial is especially likely to turn upon issues that are, by hypothesis, unresolved.  Where one such issue is justification, it is commonly an issue for jury decision.  In addition, the plaintiff’s general character may be found to be such that, even if the publication is defamatory, only nominal damages will be awarded.”^[14]

24. [24]
    It is apparent from their Honours’ earlier discussion, at [16]-[18], that they adopted with approval the observations of Lord Coleridge CJ in Bonnard v Perryman [1891] 2 Ch 269 at 283-285 (as to “why ‘the subject matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong’ and why, when there is a plea of justification, it is generally wiser, in all but exceptional cases, to abstain from interference until the trial and determination of the plea of justification”) (O'Neill at [16]); and the statement of principle by Walsh J in Stocker v McElhinney (No. 2) (relied upon by Moynihan J in Shiel, above) (O'Neill at [18]).
25. [25]
    Gleeson CJ and Crennan J emphasised that the form of expression used, for example, by Lord Coleridge (that it is wiser, in all but exceptional cases, to abstain from interference until the trial) does not deny the existence of a discretion (at [18]); and whilst cautioning against statements of principle which could be misunderstood as appearing to impose a rigid, inflexible approach, nevertheless endorsed with approval, as I have said, the particularly cautious approach previous authorities have espoused.
26. [26]
    As Gleeson CJ and Crennan further explained, at [32] of O'Neill:

“It is one thing for the law to impose consequences, civil or criminal, in the case of an abuse of the right of free speech.  It is another matter for a court to interfere with the right of free speech by prior restraint.  In working out the consequences of abuse of such freedom, the law strikes a balance between competing interests, which include an individual’s interest in his or her reputation.  When, however, a court is asked to intervene in advance of publication wider considerations are involved.  This is the main reason for the ‘exceptional caution’ with which the power to grant an interlocutory injunction in a case of defamation is approached.”^[15]

27. [27]
    Gummow and Hayne JJ, similarly, are critical of any approach which suggests the principles are to be rigidly applied, inconsistently with the exercise of the court’s equitable jurisdiction.   But their Honours are also critical of an approach (sometimes described as “flexible”, in contrast to the “rigid” approach) which gives insufficient weight to the “range of significant rights asserted on applications to restrain quia timet defamatory publications”^[16] and proceeds on the basis that all that is involved is the exercise of an unbounded discretion.^[17]   It is apparent from this, and from the following passage, that Gummow and Hayne JJ also confirmed the appropriateness of adopting a cautious approach, in matters of this kind, in the context of applying the general principles:

“[The issue] was whether, having regard to the nature of the rights asserted, including the special considerations, well rooted in Australian law, which caution equitable intervention to impose a prior restraint upon publication, and other relevant matters including the apparent weakness or strength of the proposed defence under s 15 of the 1957 Act, the plaintiff’s case appeared sufficiently strong to pass on to the second inquiry, respecting the balance of convenience.  The pursuit of these two inquiries by a court of equity in the circumstances of the particular case is hindered, not advanced by the taking of the apparent refuge offered by such terms as “rigid” and “flexible”.”^[18]

28. [28]
    Although counsel for Mr Murphy submitted that when Gummow and Hayne JJ said, at [87], that “[w]ith respect to interlocutory restraint by injunction, attention must be paid to the case law as analysed in these reasons”, the “case law” referred to is Beecham Group Ltd v Bristol Laboratories, as discussed at [65]-[72]; in my view, having regard to the discussion from [73]-[85], in relation to interlocutory injunctions in the defamation context, and what their Honours said at [85], it is apparent that the “case law” referred to includes those authorities cautioning equitable intervention in cases of this kind.
29. [29]
    I proceed on the basis that the ordinary principles applicable to grant of an interlocutory injunction are to be applied, but that in doing so, I must adopt a particularly cautious approach.^[19]
30. [30]
    I regard the following passage from the reasons of Doyle CJ in Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440 at 442-443 as helpful, and as reflecting the approach endorsed in O'Neill:^[20]

[After noting that the grant of an interlocutory injunction to restrain publication of allegedly defamatory material involves the application of the same principles as in other cases] 

“The reason why interlocutory injunctions are rarely granted in respect of defamatory material is … that the courts have recognised the substantial public interest in the free discussion of matters of public or general interest.  That means that when the balance of convenience comes to be weighed, the public interest in free discussion of matters of public or general interest weighs heavily against the grant of an injunction.  Particularly will this be so if the defendant puts forward material which shows that there are reasonable grounds to think that a defence of justification may succeed.  In that respect I accept what was said by Walsh J in his frequently cited judgment in Stocker v McElhinney (No 2) (1961) 79 WN (NSW) 541.  When the real issue is not whether the words are defamatory, but that of justification, the plaintiff will have shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief.  But, if there are reasonable grounds to suppose that a defence of justification may succeed that, coupled with the substantial interest in the free discussion of matters of public and general interest, will usually mean that the balance of convenience is in favour of the refusal of a grant of an injunction.  Of course, that assures that damages will be an adequate remedy.”

31. [31]
    It can be seen from this, and also from Gleeson CJ and Crennan J’s reasons, that the approach outlined by Walsh J, which was applied by Moynihan J in Shiel, remains relevant; although in so far as the wording suggests an imperative, it must be tempered by the reminder, in O'Neill, that the grant of relief remains within the discretion of the court.

Has Mr Murphy shown a prima facie case?

Are the statements in the signs defamatory of Mr Murphy?

32. [32]
    In considering whether the content of the signs is defamatory, the general test is whether the material is likely to lead any ordinary reasonable person to think less of the plaintiff.^[21]  In Queensland Newspapers Pty Ltd v Palmer [2012] Qd R 139 at [19]-[20], Boddice J, with whom McMurdo P and Muir JA agreed, said, in relation to the test of whether words are capable of being defamatory:

“… In deciding whether a particular imputation is capable of being conveyed in the natural ordinary meaning of the words complained of, the question is whether it is reasonably so capable to the ordinary reasonable reader.  The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is inferred from it.  However, any strained, or forced, or utterly unreasonable interpretation must be rejected.

The ordinary reasonable reader is a person of fair, average intelligence who is neither perverse nor morbid nor suspicious of mind nor avid of scandal.  However, that person does not live in an ivory tower but can, and does, read between the lines in light of that person’s general knowledge and the experience of worldly affairs.  The ordinary reasonable reader considers the publication as a whole, and tends to strike a balance between the most extreme meaning that the publication could have and the most innocent meaning.  That person has regard to the content of the publication…”

33. [33]
    For Mr Murphy it is submitted it is clear on the face of the wording of the signs that a reader is invited to think less of Mr Murphy; “there is no other reasonable interpretation of the wording”.
34. [34]
    Mr Barfield says that “[m]ost of the content on the signs does not even relate to [Mr Murphy] but rather relates to his failed building company” JMK Project Builders.^[22]
35. [35]
    In my view, it is more than merely arguable that the content of the signs is defamatory of Mr Murphy, in the sense that the material is capable of conveying to the ordinary, reasonable reader many of the defamatory imputations about Geoff Murphy which are set out in the draft statement of claim (perhaps particularly those set out in paragraphs (a), (e), (f), (h), (i), (k), (l) and (m)).   Those things would be likely to lead an ordinary reasonable person to think less of Mr Murphy.
36. [36]
    The signs are readily interpreted as referring to Geoff Murphy personally.  For example:

    1. (a)
       Signs 1 and 2 begin with a statement that “I just want to be paid my [$300,000 (sign 1) / $600,000 (sign 2)] J M Kelly (Project) Builders Pty Ltd”, which is unobjectionable in itself, but that is followed by “I’ve waited 3 yrs, been to court & now you want to liquidate rather than pay people like me… Shame on you Geoff Murphy! Who is the real snake Geoff?”  In my view, this could well convey to the ordinary reasonable reader that it is Geoff Murphy who “want(s) to liquidate [the company] rather than pay people like me”; and it is Geoff Murphy who should be ashamed of this conduct; and it is Geoff Murphy who is being described as a “snake”.
    2. (b)
       Sign 3 is almost entirely concerned with statements about “Geoff”, and in circumstances where the sign is on a trailer, being towed by a truck with the signs referring to “Geoff Murphy”, it is reasonable for a person looking at the sign to form the view that it is the same person being referred to.
    3. (c)
       Sign 4 has 3 sections to it.^[23] The first section, on the left hand side, has the words “why does the government still use J M Kelly Builders for public building projects when they don’t pay their contractors?”.  The next section, in the middle of the trailer, has the words “you owe millions in subcontractors destroying their lives, yet you enjoy a life of luxury”.  The third section, on the right hand side, has the words “QBCC ordered you to fix your work! You used our labour to fix it then didn’t pay us! How many millions do you really owe?  Tell the truth now Geoff!”.  Again, looking at the sign overall, and keeping in mind the trailer is attached to the truck which has the reference to Geoff Murphy, the ordinary reasonable reader could well understand the middle section to refer to the individual, Geoff Murphy (enjoying a life of luxury, whilst owing millions to subcontractors, and destroying their lives); and understand the right hand section as similarly referring to the individual, Geoff Murphy.
37. [37]
    I accept the submission, on behalf of Mr Murphy, that the references in the signs to “you” are apt to convey, to the ordinary reasonable reader, that the person being referred to is Geoff Murphy; and the references to “they” are apt to refer to one of the JM Kelly companies.
38. [38]
    In considering whether Mr Murphy has made out a prima facie case, it is also necessary to address the defences under the Defamation Act 2005 which Mr Barfield has flagged an intention to rely on.  These include truth (s 25), contextual truth (s 26), honest opinion (s 31) and triviality (s 33). 

Justification on the basis the statements are substantially true

39. [39]
    Acknowledging that on the present application the assessment I am able to carry out is necessarily preliminary and incomplete, on the material presently before the Court, it seems to me that Mr Barfield is unlikely to make out a defence on the basis of substantial truth.
40. [40]
    In this regard, it is important to distinguish between JMK Project Builders, the corporate entity, and Mr Murphy, the individual.  When applied to Mr Murphy, the individual, it is apparent that some of the statements made cannot be true (for example, “you owe millions in subcontractors destroying their lives, yet you enjoy a life of luxury” and “how many millions do you really owe? Tell the truth now Geoff” in sign 4).
41. [41]
    Among other things, Mr Barfield refers to the timing of the appointment of liquidators to JMK Project Builders, by reference to the trial of the proceedings in this Court, as demonstrating the truth, for example, of what is said in signs 1 and 2 (that “you want to liquidate rather than pay people like me”).   That is countered by Mr Murphy’s evidence, as to the circumstances in which the decision was made (set out at paragraph [6] above).  Mr Barfield also annexes to his affidavit a number of media articles, from which he says the truth of the statements in his signs is also demonstrated.  For example:

    1. (a)
       An article published in the Morning Bulletin, on 20 June 2016, with the headline “Murphy cuts off ‘snake’s head’ after losing $45.5 million” (annexure MTB1), which Mr Barfield contends is what the reference on signs 1 and 2 to “Who is the real Snake Geoff” would be understood to be.  There was considerable conjecture, by counsel for each party, about what the “snake” in this article might be (the litigation, or one of the companies), but what does emerge from this article is that “the boss of JM Kelly”, Geoff Murphy, “advised staff in a statement he was liquidating three companies including JM Kelly Project Builders as a result of ‘an isolated, long-standing and complicated court action’ involving a Gold Coast construction project”, being a “legal dispute [that] stemmed from a client’s refusal to pay for a project worth $30 million”.

It is difficult to see how this could demonstrate the “truth” of an imputation that Geoff Murphy would liquidate one of those companies rather than pay a person like Mr Barfield; nor the “truth” of an imputation that Geoff Murphy is a “snake”, in the sense of being dishonest, deceitful, etc; or, even assuming the ordinary reasonable reader would make the connection between the signs, and this article, how that assists in terms of demonstrating the truth of the imputations.

2. (b)
   Another article published in The Morning Bulletin, on 14 July (annexure MTB5) in which it is reported that “JM Kelly boss Geoff Murphy has assured creditors all valid debt claims will be paid in coming months” and that “Mr Murphy this week said any creditors with genuine claims judged by the liquidators to be valid would be paid.  ‘I said they would all get paid’, he said.  ‘We’ve taken over responsibility for them, they just have to bear with us, we’re working it through and they will all get paid.’  ‘It’s going to take two to three months to work it through.”

This is said to demonstrate the truth of that part of sign 3 which states “Geoff, you said you will pay all your creditors!  You have gone into receivership, you don’t have control!”.    It also seemed to be relied upon as justification of another part of sign 3, which states “Geoff, you signed declarations to say you have paid everyone.  You haven’t paid everyone Geoff!” – but there is no references in the article to any declarations being signed (cf [12] of Mr Barfield’s affidavit, which seems to refer to declarations being signed by an employee of JMK Project Builders).    In so far as sign 3 is capable of conveying, to the ordinary reasonable reader, that Mr Geoff Murphy is dishonest, untrustworthy, a businessman who does not pay his creditors, the “truth” of that is not demonstrated by the newspaper article referred to. 

42. [42]
    It was not apparent to me, from submissions on behalf of Mr Barfield, that the defence of contextual truth would have any greater prospect of being successful.  

Justification on the basis of honest opinion

43. [43]
    It may be accepted, for present purposes, that the signs contain expressions of the opinions held by Mr Barfield.   It may also be accepted that they relate to matters of public interest, namely the conduct of litigation in the court; the insolvency and liquidation of a company with seemingly significant involvement in large projects of interest to the community.
44. [44]
    For Mr Murphy it is submitted, however, that a personal attack on Mr Murphy is not a matter of public interest.  For present purposes, I proceed on the basis that the conduct of a director of a company, which is now in liquidation, in relation to its creditors, is a matter of public interest.
45. [45]
    The real issue is whether it can be said the opinions of Mr Murphy are “based on proper material”.  For the purposes of s 31, an opinion is based on proper material if it is based on material that, relevantly, is substantially true (s 31(5)), or at least might reasonably be based on such of the material as is proper material (even if some of it is not) (s 31(6)).
46. [46]
    For Mr Murphy it was submitted that Mr Barfield’s opinion is “not based on any proper material, but rather on a conflation of the obligations of a limited liability company and its director, noting that he is not a shareholder”.   Consistently with his submissions regarding the truth defence, for Mr Barfield it was submitted the opinions are based on proper material.
47. [47]
    Although I am inclined to the view that Mr Barfield may be similarly unlikely to succeed in making out this defence, adopting the cautious approach required, and recognising both the limitations of the assessment which can be appropriately undertaken on an application such as this, and the role of the tribunal of fact when these matters are ultimately determined, I am more circumspect about expressing a view about the weaknesses of this defence.
48. [48]
    The material relied on by Mr Barfield may be substantially true (or at least some of it).  Whether the “opinions” expressed by him, in the signs, are “based on” that material – or rather go much further than the material permits – will be an important question for the tribunal of fact. 

Only nominal damages?

49. [49]
    For Mr Barfield it was submitted that even if Mr Murphy was otherwise able to establish the signs contained defamatory material, at best he would be entitled only to nominal damages, a matter which it was submitted also militates against the grant of the relief sought.  But it seems to me that is not a matter that can readily be assumed.  It may be accepted that Mr Murphy is a man of otherwise good standing and reputation in the community, who may well be able to claim an award of more than nominal damages, if he is successful on his claim against Mr Barfield.  This is quite a different case from O'Neill, which concerned a convicted murderer, serving a life sentence, and who had confessed to another murder, of whom it was said he may not attract more than nominal damages, even if successful in respect of a proposed publication of imputations that he is suspected of murdering another 3 children.^[24]
50. [50]
    I note that this was also the basis on which Mr Barfield indicated an intention to rely on the defence of triviality under s 33 (that is, that Mr Murphy is unlikely to sustain any harm); but even in the context of this application, I do not accept that as reasonable, given the nature of the imputations pleaded as arising from the signs.

Conclusion – prima facie case

51. [51]
    Balancing all of the matters just addressed, and bearing in mind that Mr Murphy does not need to show that it is more probable than not that at trial he will succeed; in my view Mr Murphy has shown a prima facie case, in the sense that “if the evidence remains as it is there is a probability that at the trial of the action [he] will be held entitled to relief”.
52. [52]
    The interlocutory relief sought extends not only to restraining Mr Barfield from displaying signage that makes reference to Mr Murphy, but also “any iteration of the expression of ‘J M Kelly Builders’”.   There was no basis advanced on this application to conclude that it would be appropriate to extend any restraint to references to the company in these signs; neither company is an applicant; it was not said either company is an excluded corporation (cf s 9 Defamation Act 2005).  The conclusion as to a prima facie case is limited to Mr Murphy having demonstrated a prima facie case of an entitlement to relief, on the basis of publication of defamatory material about him.

Balance of convenience

53. [53]
    It is then necessary to consider whether the inconvenience or injury which Mr Murphy would be likely to suffer, if the injunction were refused, outweighs or is outweighed by the injury which Mr Barfield would suffer if an injunction were granted.
54. [54]
    The damage claimed by Mr Murphy is damage to his reputation, which is compensable by an award of monetary damages.
55. [55]
    In terms of the injury which Mr Barfield would suffer, as the analysis of the authorities above makes clear, the public interest in freedom of communication about matters of public or general interest is a very significant consideration in the assessment of the balance of convenience.  That interest weighs heavily against the grant of an interlocutory injunction in a case of this kind.
56. [56]
    I also weigh into the equation the comments I have made above, about the defence of justification based on honest opinion (which, although not leading me to the view that no prima facie case has been shown, are nonetheless relevant to a determination of where the balance of convenience lies).
57. [57]
    I accept that matters concerning a locally (by which I mean around Rockhampton, Yeppoon, Emu Park, and surrounding areas) known building company such as JMK Project Builders, involved in large scale building projects, and responsible for engaging a broad range of contractors; the involvement of that company in litigation with one of its contractors/creditors; and the insolvency and liquidation of that company, and its treatment of creditors, are matters of public or general interest.
58. [58]
    Counsel for Mr Murphy did not seek to contend otherwise.  But what counsel for Mr Murphy submits is that this is not what the signs are directed at – rather, they contain a personal attack on the character of Mr Geoff Murphy, which is not a matter of public or general interest.  But as I have already noted, the role of the (sole) director of such a company could well be said to be a matter of public interest.
59. [59]
    It is also relevant that this is not a case where the court is being asked to intervene in advance of a threatened publication.  Mr Barfield has been driving or parking his truck, bearing the signs complained of, at various places including Mackay, on the road from Yeppoon to Emu Park, and around Rockhampton, since 1 July 2016; with the most recent sighting referred to in the evidence being on 6 September.   Mr Murphy, by his solicitors, first complained about this conduct on 12 August,^[25] and brought this application on 7 September.    If not for the factors next referred to, as to the availability of early trial dates, and damages being an adequate remedy, this may have tipped the balance more in favour of granting the restraint.
60. [60]
    I note also that any restraint could only appropriately be directed to the displaying, on the signs, of references to Mr Murphy personally (not the company(ies)), which would lead to practical issues as to how to give effect to this, without impeding on Mr Barfield’s right to free speech concerning the company(ies), given the composition of the signs.  By itself, this would not be a determinative factor, but it is one of a number of relevant factors to take into account.
61. [61]
    The Court is able to give the parties hearing dates on 14 and 15 November, so about 2 months from now. 
62. [62]
    Each party submitted that the short time frame supported their argument, on the balance of convenience:  for Mr Barfield, on the basis that it is not long until the matters can be finally determined; and for Mr Murphy on the basis that it is not long for Mr Barfield to be prevented from making the statements, even if he is ultimately vindicated at trial.
63. [63]
    Having regard to the principles above, it seems to me Mr Murphy’s argument in this regard places the emphasis on the wrong side of the scale.  Rather than the court proceeding on the basis that it would be preferable to restrain Mr Barfield, on the basis that if he is ultimately vindicated, he will only have been prevented from exercising his right of free speech for 2 months; the Court is to give primacy to that right, by abstaining from interference until the trial, in all but the clearest cases.
64. [64]
    If Mr Murphy’s position is vindicated, following a trial, the further publication of the allegedly defamatory material by Mr Barfield from now until trial will sound in additional damages payable to Mr Murphy.  
65. [65]
    It was not submitted, for Mr Murphy, that damages would not be an adequate remedy.
66. [66]
    Bearing in mind the particularly cautious approach that the court is required to take to the application of the governing principles in a case of this kind, taking into account all of these matters, I have come to the view that the balance of convenience favours the refusal of the interlocutory injunction sought.

Orders

67. [67]
    In all the circumstances, the application for an interlocutory injunction will be refused, but I will make directions, with a view to the matter being heard and determined on its merits on 14 and 15 November, 2016.

Postscript

68. [68]
    Following the hearing of this application last Thursday, 15 September, I reserved my decision until 4.30pm on Monday, 19 September.  At that time, I pronounced the order referred to above, published my reasons, and asked to hear from the parties about the proposed directions.  I was then informed that, at about 1.30 pm on Monday Mr Barfield’s solicitor had emailed Mr Murphy’s solicitor, to say, among other things, that he did not think a hearing on 14 and 15 November could be achieved; that a far more generous time frame for directions was required; and he did not yet have instructions from Mr Barfield beyond the interlocutory application.
69. [69]
    That the proceeding could proceed in a timely and efficient manner to an early hearing was a significant factor in my determination that the balance of convenience favoured refusal of the injunction.  In light of the indication from Mr Barfield’s solicitor, I advised the parties that I would not publish my reasons, or make the order yet; that I would list the matter for mention on Wednesday, 21 September, to give the parties time to consider their position; but that if the ultimate position was that the trial was not likely to proceed for some considerable time, I may reconsider my decision.
70. [70]
    The parties were, the following day, able to reach agreement on directions which will see this matter heard on its merits on 14 and 15 November.  In those circumstances, the reasons are now published, in the form they were prepared on Monday, 19 September, and the agreed directions have been made.