ACP Publishing Pty Limited v Pacific Publications Pty Ltd

[1999] NSWCA 46

CITATION:	ACP PUBLISHING PTY LIMITED v PACIFIC PUBLICATIONS PTY LTD [1999] NSWCA 46 revised - 11/03/99
FILE NUMBER(S):	CA 40128/99
HEARING DATE(S):	4 March 1999
JUDGMENT DATE:	4 March 1999
PARTIES :	ACP PUBLISHING PTY LIMITED v PACIFIC PUBLICATIONS PTY LIMITED
JUDGMENT OF:	Handley JA at 1

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	1560/99
LOWER COURT JUDICIAL OFFICER:	Young J

COUNSEL:	S D Rares SC/N Perram (Claimant) C A Evatt (Opponent)
SOLICITORS:	Gilbert & Tobin (Claimant) Bush Burke & Co (Opponent)
CATCHWORDS:	COURT OF APPEAL - INTERLOCUTORY INJUNCTION
ACTS CITED:	Trade Practices Act 1974 (Cth)
DECISION:	Injunction granted

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

40128/99
1560/99

HANDLEY JA

Thursday 4 March 1999

ACP PUBLISHING PTY LIMITED v PACIFIC PUBLICATIONS PTY LIMITED

JUDGMENT

1 HIS HONOUR: Mr Rares QC moves for an interlocutory injunction, which would have the effect of continuing an ex parte injunction granted by Hodgson CJ in Eq on Tuesday 2 March to restrain the defendant from repeating what are said to be injurious falsehoods, misleading and deceptive conduct and reverse passing off in relation to the genuineness or otherwise of the publication of a purported interview by Andrew Golden with Monica Lewinsky, which appeared in the issue of Woman's Day which was released on Monday, 1 March.
2 Young J gave judgment at 2 p.m. today refusing to continue that injunction and this has led to the present proceedings. A Full Court of this Court could not hear this matter earlier than Monday but the final hearing of the proceedings in the Equity Division has been fixed before Young J on Wednesday 10 March.
3 I am satisfied that the claimant has established that there are serious questions to be tried at the hearing of the proceedings on the substantive issues of injurious falsehood, a breach of s 52 of the TradePractices Act and reverse passing off.
4 The evidence is necessarily in a preliminary stage but the plaintiff's case is essentially supported by the sworn evidence of Mr Andrew Golden although, of course, there is contradictory evidence from Mr Richard Hofstetter, the attorney for Monica Lewinsky.
5 The real question in the present proceedings relates to the balance of convenience. The Woman's Day has only one issue which carries the interview with Andrew Golden which appeared last Monday. It has had the benefit of the injunction granted by Hodgson CJ in Eq until 6 p.m. this evening. The claimant's position has been protected since by an undertaking which Mr Evatt gave on behalf of the defendant in the terms of the earlier injunction which has continued since.
6 At some point the claimant's commercial interest in having sales of the relevant issue of Woman's Day proceed unaffected by the threatened alleged wrongful conduct of the opponent will cease because another issue of Woman's Day will appear next Monday and the issue raised by the present proceedings will become one of damages only: either damages in favour of the plaintiff/claimant for the wrongful conduct referred to, or damages in favour of the opponent pursuant to the undertaking as to damages made as a condition of obtaining the interlocutory injunction and the undertaking given to this Court.
7 Although the application is for an interlocutory injunction and although its legal status is to preserve the integrity of the application for leave to appeal from Young J which, as I said, cannot be heard until next Monday, the reality is that I am hearing an application for final relief so far as an injunction is concerned.
8 The claimant has no right to an injunction after Sunday midnight as its commercial interest in the relevant issue of the Woman's Day will have expired and in that respect the position is similar to that of a patentee whose patent is about to expire or the holder of a registered design in the same position. They are only entitled to be protected while their right continues. This has made my task more than usually difficult.
9 I have given careful attention to the balance of convenience and the question of whether the plaintiff's damages would be reasonably capable of assessment should I refuse the injunction and whether the defendant's damages would be capable of reasonable assessment were I to grant it and the claimant were to fail in the proceedings at the final hearing in the Equity Division. At one point, I considered that the claimant's damages might be capable of reasonable assessment based on a comparison between the sales pattern within the listening area of 3AW where the allegation that the Andrew Golden article was a hoax went to air early on Tuesday 2 March.
10 There is no evidence that there has been any publication of the hoax allegation elsewhere in Australia and presumably, therefore, the sales of this issue of Woman's Day outside the 3AW listening area would not be affected. The pattern of those sales could be compared with sales within the listening area to see if inferences could be drawn that the claimant suffered damage within the 3AW listening area as a result of what was put to air by 3AW.
11 At one stage, it seemed to me that this was sufficient reason for not granting an injunction or requiring the present undertaking to be continued. However, as against that there are matters which suggest that I should not act on that view. The opponent, while it was free of any restraint by injunction, only chose to publicise the assertion that the interview was a hoax to one radio station in Australia. That seems to me to suggest that it may not be totally serious in its assertion that it is going to suffer damage as a result of the publication in the Woman's Day.
12 I am also influenced by the fact that the Sunday Mirror in the United Kingdom published the Andrew Golden story on Sunday 28 February, the same time as it published a trailer for the Andrew Morton interview and the serialisation of his book "Monica's Story" which will start to appear in Britain this week. The book is also being released in Britain this week.
13 The case that the opponent will suffer serious damage as a result of the injunction being continued depends on the view expressed by Mr O'Mara in a letter dated 2 March to Robyn Forster of the London office of the opponent which says of the Golden article that "It is a classic spoiler - a fake interview which is used by a magazine or newspaper who failed to get the real thing".
14 Whether or not that is true, it apparently did not occur to the relevant staff at the London Sunday Mirror that the publication of the Golden article would damage the London Daily Mirror which was about to publish the Andrew Morton interview, if I understand the evidence correctly, and serialised extracts from the forthcoming book. This led me to devalue, to some extent, the assertions of damage on the part of the opponent.
15 Turning to the question of damage on the part of the claimant, Mr Rares submitted that extraneous events, including publications in London which might be reflected in the news media in this country, might affect the reliability of sales figures and comparisons of normal sales figures as evidence of the claimant's damages were I not to continue the injunction. I think there is substance in this submission, bearing in mind that I am granting what is in substance final relief.
16 It seems to me evident that there can be no question of continuing any injunction until the final hearing on Wednesday or, indeed, past midnight on Saturday at the very latest. Mr Rares stated from the bar table to Young J that 30 percent of the sales of New Idea occurred on Thursday, Friday and Saturday. Mr Evatt did not object to me being informed of this and acting on it, and there is no suggestion of any worthwhile sales on Sunday. It is a matter of speculation on the evidence what percentage of that 30 percent could be sold on Saturday and I have to draw inferences, as a juror would, from ordinary experience. I think I am entitled to infer that the sales on Saturday would be modest compared with those on Thursday and Friday. The interest of the opponent at this point of time is to be free to promote what it claims to be the only genuine interviews with Monica Lewinsky worthy of the name, namely, those with Andrew Morton and Andrew Denton which are scheduled for publication in the issues of New Idea appearing next Monday and the following Monday. This is or may be a legitimate commercial interest which I should accommodate as far as possible. I am also satisfied that it would be very difficult for the opponent to prove damage under the undertaking as to damage should it succeed in the proceedings which are to commence on Wednesday 10 March.
17 Endeavouring to balance the rights of both parties as best one can, it seems to me that I should continue the existing undertaking in the form of an injunction until 11.59 p.m. on Friday 5 March 1999 leaving the opponent free of injunctive restraint thereafter.
18 I therefore order that the opponent, by its servants and agents, be restrained from representing to the public or to other publishers or broadcasters that Andrew Golden's interview which Monica Lewinsky published in the Woman's Day bearing date 8 March 1999 is a hoax or otherwise fictitious until 11.59 p.m. on Friday 5 March 1999.
19 The costs of the proceedings before me are to be the costs in the proceedings in the Equity Division matter number 1580 of 1999.
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