Hoser Corruption book beats writ to ban it

Supreme Court of Victoria

1. This is an application by the plaintiff in the proceeding seeking an interlocutory injunction restraining the defendants from further sale and distribution of a book entitled "Victoria Police Corruption."
2. The plaintiff also seeks an order that the defendants retrieve the copies of the book and retain them. This would be a mandatory injunction.
3. The plaintiff, Anthony Adam Zoccoli is an accountant. On 7 December 1999 he issued a writ in the Major Torts List, seeking damages, including aggravated and exemplary damages for defamation resulting from the sale and distribution of the said book.
4. The first defendant, Raymond Hoser ("Author") is the author of the book. The second defendant Kotabi Pty Ltd ("the Publisher") is a company controlled by the author and the publisher of the book.
5. The defendants admit that they have sold approximately 4,500 copies of the book and in addition, according to the affidavit material from the author, there are some 300 compact disks containing the book or extracts of it, which have been sold.
6. By the defence, the defendants admit publication and that some of the pleaded imputations are contained in the words complained of. They otherwise put the plaintiff to his proof. They raise a number of positive defences, namely justification and qualifying privilege. As the plaintiff alleges that there was publication interstate, the defendants have also pleaded interstate defences.
7. This is an application for an interlocutory injunction. In support of the application, the plaintiff has sworn an affidavit, as has the Assistant Ombudsman, Brian Hardiman and also a Michael Hayman. In addition, a further affidavit was placed before the court this afternoon from a Mr Cosgriff.
8. The author has sworn an affidavit in opposition.
9. The court has indeed a wide jurisdiction to grant interlocutory injunctions. Since late in the 19th century, the courts have also granted interlocutory injunctions in defamation cases, but only in exceptional cases. The jurisdiction to grant an interlocutory injunction is now enshrined in the Supreme Court Act 1986 which provides that an injunction may be granted where it appears to the court to be "just and convenient to do so." See Section 37(1). It is a discretionary remedy and the courts have, over the years, laid down rules to guide them in determining whether the jurisdiction should be exercised.
10. The court considers the right claimed, the alleged breach of same, whether there is a serious question to be tried, the balance of convenience and the existence of any discretionary factors precluding the relief. But the law of defamation has developed a number of rules which apply to an application such as the present. They were considered in some detail in the case of National Mutual Life Association of Australasia v GTV Corporation Pty Ltd (1989) V.R. 747. The judgment of Ormiston J.A. goes into some detail as to the principles that should be applied and the Full Court upheld his decision.
11. In the Full Court judgment, Their Honours said at p.764:

"In our opinion the correct approach in Victoria to an application to restrain publication or re-publication of defamatory matter is, and always has been, to make the broad inquiries traditionally made by a court of equity, namely - whether there is a substantial question to be investigated at the trial with the balance of convenience, sometimes called the balance of justice, favours the granting of the injunction. In other words the principles applicable are those which are applicable to all applications for interlocutory injunctions and a recent statement of the general principles is to be found in Murphy v. Lush (1986) 60 ALJR 523 at p.524. In the case of an application to restrain a libel however, the very great importance which our society and our law have always accorded to what is called free speech, means equity exercises great care in granting injunctive relief and does so only where it is very clear that it should be granted. It has been said in high places and said on high authority from the Bench that it is by no means rarely a benefit to society that a hurtful truth be published. It has been felt we think that it is usually better that some plaintiff should suffer some untrue libel for which damages will be paid, than that members of the community generally, including the so-called news media, should suffer restraint of free speech. Judges over the centuries have also been well aware how easy it would be for a tyrant to stifle all opposition by deciding what was genuine free speech to be allowed on the one hand and what was an unjust or unfair or a dishonest taking advantage of free speech to be repressed on the other hand. When the court enjoins, it must be extremely clear that no unacceptable repression is taking place. It has thus been laid down and it is only in a clear case that the court will intervene by injunction."

12. The principles have also been recently considered by the Court of Appeal in England in the case of Holley v. Smythe at 1998 Q.B. 726. At p.743, Auld, L.J. had this to say after considering the authorities in relation to an injunction in a defamation case.

"In my judgment the authorities establish the following propositions. The court's power to grant interlocutory relief to restrain a libel is discretionary (see Spry Equitable Remedies, first edition 1971 pp.21-23) but it is a discretion that must be exercised with great caution. The discretion to grant such relief is guided by the statutory constraint in s.37(1) of the Supreme Court Act 1981 and should be exercised only where "it appears to the court to be just and convenient to do so." Where there is a defence of claim of justification, the discretion is further guided by the rule in Bonnard v. Perryman, that it is not normally just or convenient to grant relief unless the plaintiff has proved that the libel is plainly untrue. There is no jurisprudential basis in confining the Bonnard v. Perryman rule or its rigour to threaten publication by the media. The authorities to which I have referred show that it is not so confined, and as Hoffman, LJ observed in R v. Central Independent Television PLC (1994) Fam.192. The media's motivation for publication is rarely restricted to the altruistic one of informing the public of matters in which it, the public, has an interest. There is usually additional driving force of commercial self-interest, sometimes accompanied by obsessive vindictiveness and/or irresponsibility. Yet the authorities show that the presence of one or more of those factors does not deprive the media of the protection of the rule. Why then should those outside the media be subject to a more stringent control, because they may have a motive other than the pure one of disseminating the truth. There may be exceptions to the general rule but neither the would be libellous motive nor the manner in which he threatens publication, nor the potential damage to the plaintiff is normally a basis for making an exception. Motive is logically irrelevant to the defendant's entitlement to exercise his right to freedom of speech, if what he has to say is or may be true. In particular English jurisprudence has rejected as candidates for exception, motives of vindictiveness or pecuniary gain."

13. His Lordship later at p.745 said this:

"Finally there is the question of the potential damage to the plaintiffs if the relief is not continued. Despite Hoffman LJ's broad statement in R v. Central Independent Television that "outside the established exceptions" and any new statutory ones, freedom of speech "is a trump card which always wins," it seems to me that the ultimate equitable discretion of a court behind the rule in Bonnard v. Perryman, allows for the possibility of an exception being made for such a reason. However that possibility does not sit easily with the rationale of the rule, which require great caution before interfering with the individual's right to speak freely before there is a final determination on the matter as provided by the law."

14. The principles that I have just read from the judgment of Auld L.J., in my respectful opinion, are the principles that apply in this state and are to be found in the Full Court decision of the National Mutual Life case.
15. In determining whether an interlocutory injunction should be granted, the court should, if it can, make some assessment of the strength of the plaintiff's case. This is not an easy task, where there is disputed fact on untested affidavits. In the present proceeding, I have considered the plaintiff's case and in my opinion he should have little difficulty proving his case. The only possible contentious matter is whether the words complained of defame the plaintiff and in my view there is more than sufficient evidence to go to the tribunal of fact on that question. One would expect the tribunal of fact would have little difficulty in concluding the words or some of them are defamatory.
16. Damages are presumed and the only other matter the plaintiff would have to prove is his entitlement to aggravated and/or exemplary damages. However, these latter matters are of no concern on the present application.
17. The real issues in the case arise on the defence. The author has sworn an affidavit on what is known as the Bonnard v. Perryman form and I go to paragraphs 11 and following. In paragraph 11 he swears -

"11. When undertaking the research for any of my books, I take all reasonable steps to ensure the accuracy and truth of the statements made in my books and any material relied upon. 12. The sources of material used in the book were multiple. Now produced and shown (Exhibit) is a list of all the sources I relied on when writing the book "Victoria Police Corruption - 2" and "The Hoser files." 13. The sources of material in the words complained of by the plaintiff were also multiple, including numerous direct and over the telephone interviews corroborated by many newspaper articles. 14. I had conversations with the following individuals who other than Mr Gold, can be called as witnesses to prove the truth of the words complained of should these proceedings continue to trial.."

18. The deponent went on to list the names of some four persons and also he has indicated that there are various others whose specific details were not recorded who can corroborate the truth of the position of the book referring to the Plaintiff.
19. He also referred in paragraph 15 to newspaper articles which he says corroborates some of the information that he obtained and used. This is an interlocutory application and no doubt he can, by referring to those articles, rely on them to support his case but I would query whether they would be admissible on the trial.
20. He then goes on to swear in paragraph 21.

"Based on the results of all my investigations and as corroborated by all the sources relied upon, I believe and still believe that the words complained of are true and that there is evidence in support of them. This belief has been further reinforced by the contents of the plaintiff's affidavit, sworn 27 March 2000 and in particular I note that the contents of a judgment of His Honour Judge Barnett appeared to directly contradict many sections of the plaintiff's affidavit. In particularly I refer to paragraph 17b and paragraph 18."

21. Miss Schoff of counsel who appears on behalf of the plaintiff submitted that the affidavit of the defendant does not go far enough. However I did point out and I do underline that this is an interlocutory matter and it is not a question of the defendant revealing his brief. Miss Schoff, in her submission submitted that he should have revealed more to show that when he asserts that he can prove the truth of the fact, that that is a matter that should be accepted.
22. She drew my attention to some observations of Ormiston J.A. in the National Mutual Life Association case in which His Honour pointed out that in certain circumstances, it may be necessary for a defendant to go further than just assert the Bonnard v. Perryman formula. I agree that in certain circumstances one would have to go beyond just an assertion in an affidavit that at trial evidence will be called to prove the fact.
23. However, I am satisfied that there is sufficient evidence in Mr Hoser's affidavit to provide some support for his assertion that he can prove the truth of the fact in the proceeding.
24. Miss Schoff also made great moment of the fact that in the works complained of, the author has stated that the plaintiff, Mr Zoccoli, was also known as Stuart Gill. The plaintiff has adduced in affidavit material, evidence to the effect that he was never known as Stuart Gill and this is supported by other deponents.
25. That may be so, but if one looks at the article, it is clear that the reader of the article could be in no doubt that the words complained of are referring to the plaintiff. The first few pages of the book complained of refer to Mr Zoccoli by name and then from p.153 on he is referred to as Mr Gill. The reasonable reader would have no difficulty in identifying the plaintiff where the name Stuart Gill appears.
26. There is nothing in the statement of claim pleading a true innuendo that to call Mr Zoccoli "Mr Gill" defames him, so in the end the issue at the trial will come down to whether or not the defendants can prove the truth of the defamatory allegations made against Mr Zoccoli and Mr Gill because it is quite clear that the author is talking about one and the same person. So even though he may have made an error, and I say no more than may, the fact is that it is irrelevant in my view to the question of whether the words are defamatory of the plaintiff and the defence of justification. The words do refer to the plaintiff, there can be no doubt about that. The words complained of, in my view, are prima facie defamatory of the plaintiff and the defence of truth will have to be established by the defendants in respect to all the defamatory imputations..
27. So I am faced with an application in which the plaintiff asserts that the words are untrue. I will rephrase that. He has carefully stated in his affidavit that he denies the allegations. The court cannot say that he denied the truth of these imputations in the sense of asserting that they are untrue and wrong I am faced on the other side with a fairly detailed affidavit from the author in which he says that by reference to certain sources, he can prove that the words complained of are true. So in the end that will be the issue that will be before the court and in my view, that is a sufficient basis for refusing the injunction in the circumstances of this case.
28. I do accept that the Bonnard v. Perryman formula is not a knock-out blow. I accept what Ormiston J.A. said, that each case must be considered in its own light, but where a defendant does swear on oath that he can prove the truth of the allegations made against the plaintiff, and refers to sources which will support him, in most cases, that is a complete answer to any application for an interlocutory injunction. The plaintiff by the application is not entitled to look into the brief of the defendant. The court must be careful not to require of a defendant that he must disclose all.
29. However I think there are other reasons why I would refuse this injunction.
30. The first concerns the question of whether damages would be an adequate remedy at trial. This is not like a lot of cases where a plaintiff comes to court to restrain a defendant who is about to publish alleged defamatory material. This is a case where in fact "the horse has already bolted." The books were put out into the public arena in August last year and it appears some four and a half thousand have been sold. I think there are some hundreds still available to be sold. What is being sought is a restraining order that the balance not be sold and also an order that the defendants do their best to retrieve the others. On any view much of the damage has already been done.
31. No claim has been made in the statement of claim for a permanent injunction and the probabilities are high that no injunction would be granted at trial. In most defamation cases where there is a claim for damages in respect of a publication that took place some considerable time before, it is highly unlikely that any injunction would be granted. Damages would be an appropriate and adequate remedy. I have little doubt in this case that damages would be an adequate remedy. That is another good reason why an interlocutory injunction should not be granted.
32. Finally, there is the question of the discretionary factors which must be taken into account when considering an application such as the present one. And one of those is the question of delay. The relevant dates are that the books were available for sale in August 1999. The plaintiff ascertained in November 1999 that the books were in the public domain and they defamed him and he issued his writ at the beginning of December last year. I would not be critical of any delay on his part in actually issuing his writ, because the contents of the book only came to his notice in November. However, what I am looking at is the period between the issue of the writ and the issue of this application for an interlocutory injunction. This summons was issued in late March, so some four months went by before the plaintiff decided to bring this application. In the meantime the proceeding had been the subject of orders at the directions hearings and no suggestion was made of this application. At a late stage the plaintiff decides to move. In the meantime more books were sold and prejudice would be suffered by the author if he and the publisher were restrained now. They would suffer substantial pecuniary loss and as the plaintiff is bankrupt any undertaking from him would be worthless. The undertaking proffered by a friend of the plaintiff lacks detail.
33. In the circumstances of this case, namely being a defamation case where damages, in my view, appears to be the appropriate remedy, this delay is unforgivable and unjustified and is a basis for also refusing the injunction.
34. The other part of the application by the plaintiff is for a mandatory injunction and in my view it must follow that that must fail if I refuse the interlocutory injunction restraining publication. However, if I am wrong in my decision and that a mandatory injunction should be considered requiring the defendants to go out into the public to attempt to recover these books, in my view, the plaintiff has not established to that high degree of assurance that his claim for a mandatory injunction would succeed at trial.
35. More importantly and I think this is the real answer to that contention is that it would be nearly impossible in the circumstances for the court to police any mandatory injunction in those terms, because of the enormous difficulties that would be faced by the defendants of tracking down the books and retrieving them Rights of third parties would also intervene.
36. Also there is some evidence in relation to the restraining injunction that the books are now outside the control of the defendants and being in the control of Mr Bourke.
37. Finally, if I was wrong on all these matters and should have granted an injunction, I am faced with the position that the plaintiff is a bankrupt and there would be the difficult question of an undertaking from him. In fact this has been anticipated by the plaintiff because he has sworn in paragraph 19 of his affidavit that a Miss Teresa Nicolyn Sofra could give an undertaking in his place. He then swears this:

"Miss Sofra is the sole registered owner of an unencumbered freehold title."

38. That latter statement is insufficient to persuade the court that any undertaking that might be given, would be of any substance. The court has to be very careful about undertakings being given by somebody other than a party because of difficulties involved in enforcing any such undertaking.
39. Based upon what has been offered to the court, if it came down to this, I would not be prepared to grant the injunction because the court could not be satisfied that the undertaking was appropriate and of substance.
40. So for all those reasons I am of the view, primarily because of what the author has sworn in his affidavit, that this is an inappropriate case for the granting of an interlocutory injunction and I dismiss the application.

http://www.smuggled.com/Zoc1.htm

Media release 25 March 2000.

Media release - 18 April, 2000 - Writ to ban book fails.

Zoccoli's side in contempt of court - unlawfully leans on book distributors.

Details of Defamation writ issued December 1999.

Relevant Text from the book Victoria Police Corruption.

Media sources of information used for Zoccoli material published.

Non-media sources/corroboration of Zoccoli material published.

Sentencing of Zoccoli in 1993 - he pled guilty to serious charges - transcript.

DPP information about Zoccoli's criminal history.