This recent interesting decision considered whether an interlocutory injunction should be granted against a litigant in person plaintiff to restrain her from contacting or communicating with the defendant’s insurer and associated entities, save through their solicitors. The plaintiff had previously attempted to communicate with the insurer in a manner which the defendant sought to characterise as intended to “influence it in relation to the conduct of [the] litigation”. In those circumstances, and having regard to the principles relevant to injunctions to restrain threatened contempt of court, his Honour granted the injunction sought.
24 April 2018
In this “unusual application for an interlocutory injunction”, the second and third defendants sought to restrain the plaintiff, Mrs Day, from contacting or communicating with their insurer and three other associated Zurich companies in relation to the proceeding except through their solicitors. . The proceeding concerned damages sought by Mrs Day for injuries she alleged she sustained in an accident at premises operated by the first defendant. .
The conduct of Mrs Day involved communications in which she or her husband: (i) alleged improper conduct by the solicitors for the second and third defendants; (ii) threatened to report employees and officers of Zurich to various regulatory bodies and the media; and (iii) accused directors of Zurich of misusing shareholders’ funds by funding the litigation. .
The defendants sought to characterise these communications as “made in an attempt to menace, intimidate and harass Zurich and to influence it in relation to the conduct of [the] litigation”. . The defendants also sought to draw an analogy with the “no contact” rule contained in r 33 of the Australian Solicitors Conduct Rules 2012. . Although Mrs Day was a litigant in person, she was close to completing a law degree and had worked in the legal profession as well as having been involved in litigation on several occasions in the past. .
Douglas J noted that the analogy with the requirement of the professional conduct rules should not be taken too far because Mrs Day was not a lawyer. . His Honour explained that litigants have rights to communicate directly with each other, even though that right is not absolute. .
His Honour did note, however, that the defendants had likened Mrs Day’s conduct to behaviour intended to interfere with the administration of justice. . After referring to the principles relevant to injunctions to restrain threatened contempts of court, Douglas J said that there was a real issue whether “the communications complained of constitute an attempt to dissuade Zurich from supporting the second and third defendants in their defence of the proceedings by threats, by abuse, by misrepresentation of the nature of the proceedings or the circumstances out of which they arose”. .
His Honour noted that the defendants might suffer injury for which damages would not be an adequate remedy and that the balance of convenience went “all one way”. –. His Honour was not satisfied that there was a clear public or private interest in Mrs Day communicating with Zurich that was sufficient to override the defendants’ rights to an unimpeded defence of the personal injuries damages claim. .
His Honour made an order accordingly. .