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Court restrains Plaintiff from communicating with legally represented Insurer

Court restrains Plaintiff from communicating with legally represented Insurer

Case note: Day v Woolworths Ltd & Ors [2018] QSC 82

Two Defendants have been successful in obtaining an interlocutory injunction from the Supreme Court of Queensland to restrain a Plaintiff from communicating with their insurer, Zürich Australian Insurance Limited and associated companies.

Background

The Plaintiff commenced proceedings against CPM Australia Pty Ltd, Retail Activation Pty Ltd (Second and Third Defendants) and Woolworths Ltd. The Plaintiff seeks damages for personal injuries which she claims to have suffered in an accident at the premises operated by Woolworths Ltd.

Zurich Australian Insurance Ltd is the insurer of the Second and Third Defendants.

The Plaintiff’s conduct complained of by the Second and Third Defendants, is summarised as follows:

  • The Plaintiff’s husband, on her behalf, threatened to report employees of Zürich to various bodies.
  • The Plaintiff communicated to Zürich, including its directors, allegations of unethical and improper conduct by the solicitors for the Second and Third Defendants.
  • The Plaintiff’s husband, on her behalf, has accused the directors of Zürich of misusing shareholders’ funds by encouraging the solicitors for the Second and Third Defendants to continuing to defend their claim.
  • The Plaintiff and her husband in correspondence to Zürich’s Australian General Counsel and Secretary, who happens to be a lawyer, also copied to Zürich’s Chief Executive Officer and Directors, accused Zürich’s General Counsel “or your other officers” of using the court process for improper purposes, professional misconduct and breach of the Corporations Act. The Plaintiff and her husband also accused two solicitors from the firm acting for the Second and Third Defendants of corrupt conduct in breach of the Crime and Corruption Act 2011.
  • The Plaintiff and her husband accused Zürich’s General Counsel of authorising or instructing criminal conduct in fraudulently forging and uttering a certificate of readiness by the second and third defendant solicitors.

Although the Plaintiff is a litigant in person, she is close to completing a law degree, has worked in the legal profession for a firm of lawyers and has been involved in litigation on several occasions in the past.The Court was satisfied that the Plaintiff was aware of the fact that, if she were a lawyer, she would not be able to behave in this way.

Elements of an Interlocutory Injunction

In order to obtain an interlocutory injunction, a party must demonstrate to the Court that:

  • There is a serious question to be tried;
  • Damages are not an adequate remedy; and
  • The balance of convenience favours the granting of an injunction.

Decision

The Court ordered that the Plaintiff be restrained from:

(a) contacting or communicating with Zurich Australian Insurance Limited and three other associated Zurich companies, or any director, officer, employee or agent of Zurich, other than Mills Oakley Lawyers, Zurich’s solicitors, in relation to this proceeding, or any matter connected with this proceeding, by any means whatsoever; and/or

(b) allowing, causing, encouraging, permitting or suffering any person on her behalf to contact or communicate with Zurich or any director, officer, employee or agent of Zurich, other than Mills Oakley Lawyers, Zurich’s solicitors, in relation to this proceeding, or any matter connected with this proceeding, by any means whatsoever,

until the conclusion of these proceedings or further order.

The question of costs was reserved.The Plaintiff provided an undertaking in the terms of the first order at the conclusion of the oral hearing, however, the Court considered it appropriate to extend those undertakings by making orders in the same terms until the conclusion of the proceeding or further order.

Ratio

The Court noted that, even where parties are represented, ‘absent some form of improper or inappropriate behaviour on the part of a party or parties’, there was generally no reason why the parties should be prevented from communicating directly with each other.

However, a key consideration for the Court was whether conduct, like that which was complained of, might affect the ordinary and unimpeded course of proceedings.The Court had regard to commentary in R v Dunn on the role of the law of contempt in the administration of justice:-

that is, in the resolution of disputes, not by force or by private or public influence, but by independent adjudication in courts of law according to an objective code [such] that a case pending in a court ought to be tried in the ordinary course of justice…

In arriving at the decision, the Court determined:

  • There was a real issue of whether the conduct complained of constituted an attempt to dissuade Zurich from supporting the Second and Third Defendants in their defence of the proceedings by threats, abuse and misrepresentation of the nature of the proceedings or the circumstances out of which they arose;
  • The Defendants may suffer injury for which damages will not be an adequate remedy if they are impeded in defending the litigation by the need to deal further with communications of this nature or if they are persuaded to settle the proceedings to the disadvantage of the Second and Third Defendants;
  • The public or private interest the Plaintiff may have in continuing to communicate with Zurich was overridden by the second and Defendants’ rights to an unimpeded defence of the claim.

Considerations

It is not unusual for parties to become frustrated with litigation or the tactics of an opposing party. However, legitimate legal arguments and concerns about the way that a party has conducted a matter should be reserved for a party’s pleaded case, formal correspondence and proper Court processes. This decision may be of interest to those involved in litigation where one party is threatening to go to the media or in cases where one party may be having improper contact with another party.

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Kate Denning

Kate Denning is the Founder & Principal of Denning Insurance Law. Kate opened her own practice out of a desire to deliver high value, specialised legal services. Kate has been practising as a solicitor in Queensland for over 15 years. Her passion for delivering great results, approachable manner and breadth of experience, set her apart from her competitors.

Kate DenningCourt restrains Plaintiff from communicating with legally represented Insurer

InDefence covers legal and technical issues in a general way. Changes in circumstances or the law may affect the completeness or accuracy of the information published. InDefence is not designed to express opinions on specific cases, to provide legal advice or to establish a relationship of client and lawyer between Denning Insurance Law and the reader, or any third party. No person should act or refrain from acting solely on the basis of this publication. You should seek legal advice particular to your circumstances before taking action on any issue dealt with in this blog.