Australian Broadcasting Corporation v O'Neill - [2005] TASSC 82

[2005] TASSC 82

CITATION: Australian Broadcasting Corporation v O'Neill [2005] TASSC 82

PARTIES:  AUSTRALIAN BROADCASTING CORPORATION
  v
  O'NEILL, James Ryan

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 27/2005
DELIVERED ON:  29 August 2005
DELIVERED AT:  Hobart
HEARING DATE:  9 June 2005
JUDGMENT OF:  Slicer, Evans and Blow JJ
CATCHWORDS:

Defamation – Injunctions – Interlocutory injunctions – Restraint of publication – Appeal – Principles governing appellate court – Matters of public interest or concern – Freedom of speech and individual interest – Balance of convenience test.

Aust Dig Defamation [105]

Defamation – Statements amounting to defamation – Criminal – Statement that person suspected of committing crime – Imputation of conduct warranting suspicion – Statements and allegations that convicted murderer involved in other murders – Status of appellant.

Aust Dig Defamation [10]
Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153; Church of Scientology v Readers Digest [1980] 1 NSWLR 344; Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440, considered.

Defamation – Fair comment – Onus of proof – Distinction between comment and statement of fact – Television broadcast.

Aust Dig Defamation [52]

REPRESENTATION:

Counsel:
             Appellant:  R J Whitington SC and A T S Dawson
             Respondent:  J E Green
Solicitors:
             Appellant:  Murdoch Clarke
             Respondent:  Hobart Community Legal Service

Judgment Number: [2005] TASSC 82
Number of paragraphs: 83

Serial No 82/2005
File No FCA 27/2005

AUSTRALIAN BROADCASTING CORPORATION
v JAMES RYAN O'NEILL

REASONS FOR JUDGMENT FULL COURT

SLICER J (Dissenting)
EVANS J
BLOW J
29 August 2005

Order of the Court

Appeal dismissed.

Serial No 82/2005
File No FCA 27/2005

AUSTRALIAN BROADCASTING CORPORATION
v JAMES RYAN O'NEILL

REASONS FOR JUDGMENT FULL COURT

SLICER J
29 August 2005

The appellant seeks review of an order restraining it, until judgment, from publishing:

"… to the general public any part of the documentary known as 'The Fisherman' that imputes or implies that the Plaintiff was responsible for or is suspected of being responsible for the disappearance or murder of the children commonly referred to as the Beaumont children or that the Plaintiff is a multiple killer [sic] of children."

The respondent is serving a life sentence of imprisonment following his conviction in November 1975 for the murder of a child. The appellant intended to broadcast a documentary which included material containing statements and allegations that the respondent had been involved in the murder of other children. In May 2005, the respondent commenced proceedings in defamation against the appellant, the producer of the documentary and the corporation responsible for its production. These proceedings follow the making of an interlocutory order in the terms stated above. At the time of the hearing of the application and this appeal, the respondent, through oversight, had not obtained leave required of a convict to commence his action as required by the Prisoners (Removal of Civil Disabilities) Act 1991. The appellant expressly disavowed any reliance on the procedural bar at the hearing of the appeal.

The respondent's statement of claim relevantly alleged:

"5 The First, Second and Thirdnamed Defendants published or caused to be published the said documentary to the public at the Hobart Summer Film Festival during the first week of January 2005.
6 The said documentary contained words, images and gestures which in their natural and ordinary meaning meant and were intended to mean:-
(a)that the Plaintiff was responsible for or is suspected of being responsible for the disappearance of the Beaumont children;
(b)that the Plaintiff was responsible for or is suspected of being responsible for the murder of the Beaumont children;
(c)that the Plaintiff was and is a multiple killer of children.

7    The Beaumont children are three children from the same family (Jane 9, Arnna 7 and Grant 4) who disappeared in South Australia on Australia Day 1966.
8    The publication of the said documentary is likely to induce people to shun, avoid, ridicule or despise the Plaintiff.
9    The Firstnamed Defendant intends to transmit for general television reception the said documentary.
10 Unless restrained by this Honourable Court the Defendants will continue to publish or cause or permit to be published the said documentary."

The appellant intends to defend the action with the pleas of truth and public benefit. The imputations that the respondent was involved in the disappearance of the Beaumont children are said to be ones of suspicion held by others and their reasons for suspicion, and of a nature afforded defence by the provisions of the Defamation Act 1987 ("the Act"). The appellant gave an undertaking that it would pay any damages which might be sustained by reason of the order.

The appellant has filed a notice of appeal comprising 14 grounds. Some assume that there had, or ought to have been, a full hearing on the merits of the defamation case and that the learned primary judge had made positive or negative findings on those merits. Two examples illustrate the approach. Grounds 4 and 5 of the notice claim error in that:

"4The learned primary judge erred in granting the interlocutory injunction in circumstances where he declined to hold that the defences raised by the Appellant were not arguable.
5In the alternative, to the extent that the learned primary judge may have held that those defences or any of them were/was unarguable, he erred in so finding".

The former is contradicted by the appellant's written submissions provided at the hearing of the appeal which relevantly state:

"It was not contended, nor was it found by the primary judge, that any of the defences foreshadowed by the Appellant, were unarguable."

The latter was not a finding, by omission or otherwise, made by the learned primary judge.

Others seek to elevate observations to statements of principle. Grounds 12 and 13 state:

"12The learned primary judge erred in finding at [35] that the second and third defendants below were motivated by profit, and in regarding a finding as to the conduct of parties other than the Appellant as relevant in an application for an injunction to restrain the Appellant from publishing the imputations.
13The learned primary judge erred in finding at [35] that the Respondent was motivated by a wish to 'improve its ratings', and in taking that finding into account in an application for an injunction to restrain the Appellant from publishing the imputations."

In relation to those matters, the learned primary judge stated, at par35:

"I infer that it is likely that in part, at least, the film has been produced by Mr Davie and the second defendant with a motive for commercial profit, and that in part at least, the ABC wishes to broadcast it to improve its ratings. Such considerations favour the granting of the injunction for the protection of an individual."

and in concluding his reasons for order, observed, at par36:
"Much was said at the hearing by counsel for the defendants about the need to uphold and protect the freedom of the press. But like all freedoms, it is not an absolute one. The protection of individuals from the power and influence of the media is also important."

Those matters were relevant to the disposition of an interlocutory application. The status of the appellant was relevant to disposition and likewise its purpose. Commercial gain and the use of "sensationalism" at the expense of an individual, especially one bereft of resources and who might suffer irredeemable harm are relevant considerations. Freedom of speech is not absolute requiring an instrument of State to ignore individual interest.

The claim advanced by ground 3 that there could be no defamation because of the respondent's lack of reputation is a matter which ought be determined at trial.

Grounds 3, 4, 5, 12 and 13 have no merit and ought be dismissed.

General background

The respondent had been convicted in 1975 of the crime of the murder of a child. Concurrently he had been charged with the murder of a second child, the respective events occurring in February and April 1975. The State, following the conviction and sentence for the February killing, decided not to proceed with a trial of the April occurrence. Despite the denial of the respondent, it was open, on the evidence placed before the primary judge, to conclude that the appellant had a high likelihood of being able to prove the latter homicide. The respondent has never sought to be resentenced on his crime and remains subject to a sentence of life imprisonment. At the hearing of the interlocutory proceedings, an issue was raised that publication generally might impact on any prospects the respondent might have for proper consideration of eventual parole. Certainly his status had, before hearing, become a matter of political interest and comment. It was suggested that "public outcry" raised by publication of the Beaumont event and that of being a "multiple killer" raised by the April homicide, might impact on any parole decision. In that regard the learned primary judge considered that the contention had [par20]:

"… little merit, having regard to the extensive and earlier publicity the Mercury has already given to similar, and other, imputations concerning him and the integrity that he is entitled to expect from the individual members of the Board."

Whilst in prison the respondent had become involved in a worm farm and the breeding of insects and had developed expertise in those areas. Another defendant to the defamation action, a documentary film maker, Mr Gordon Davie, professed interest in the activities of the respondent and, through the prison authority, gained access to him in September 1999. With the consent of the respondent, Mr Davie was able to conduct interviews and film some of the respondent's activities. In August 2001, the respondent entered into an agreement with a company associated with Mr Davie which acknowledged the relationship and permitted the transmission of any completed documentary. There was ongoing contact between the respondent and Mr Davie. In October 2002 a film company, the second defendant to the action for defamation, contracted with the appellant for the production of the film. The film, by then entitled "The Fisherman" was shown at a film festival in Hobart in January 2005. It contained material which was the subject of the injunction. In a pre-screening newspaper article, published on 3 January 2005, some of the allegations were repeated. The showing of the film and/or the newspaper article generated public response as evidenced by letters to the editor or articles published in the Mercury newspaper between January and April 2005, which included statements of opinion or belief by public persona, including the Commissioner of Police, who had participated in the original interviews of the respondent concerning the February and April 1975 homicides. Predictably, politicians became involved in the discourse.

Previously there had been tension between Davie and the respondent concerning the contents of the documentary. In March 2003, the respondent had written to Davie accusing him of breach of faith, concluding his letter with:

"With the almost infallible benefit of hindsight, it is now clear that you, in concert with others, have engineered these entire proceedings for the purpose of producing a documentary of a highly volatile and controversial nature, and of course, therefore highly saleable.
It is something that I have not, and never would agree to. That is why it was approached with a great deal of patience and stealth over a long period of time. It is why I find myself in the present position of either complying with what you want, or risking you using whatever you wish for whatever purpose you wish; a proposition which could only reasonably be described as coercion. It placed me in the position whereby I must take all measures at my disposal to protect my family and myself.
Therefore, unless the full and unabridged content of the documentary is disclosed to me, and I am afforded reasonable exercise of the 'understandings' delineated above, and on which contingencies I agreed to participate in the documentary, I will apply to have the documentary excluded from air pending an application to the Supreme Court for remedy."

Following the publication of the newspaper report of 3 January 2005, there appears to have been some further attempts of contact since, as the learned primary judge recounted in his reasons for judgment, at par17:

"It was reported in the Mercury on 8 February 2005 that the plaintiff was prepared to meet a reporter to establish pre-interview guidelines and to have an article based on an acceptable level for him, but the Director of Prisons prohibited the meeting."

As of the date of the interlocutory application, it can fairly be said:

(1)The respondent's status was that of a public persona. His conduct as a prisoner could be said to be of general interest and his past a matter which was in the public domain.
(2)The fate of the Beaumont children had been and remained of community interest.
(3)Issues concerning the release of prisoners have always been concerns of the community.
(4)The statements, allegations or innuendoes presented in the documentary had previously been published to the community.
(5)The ambit of the documentary was far wider than that portraying the activities of the respondent whilst in prison, and that the respondent believed himself to have been betrayed.
(6)Notwithstanding the belief of betrayal, the respondent had previously agreed to participate in the documentary process, albeit on a differing assumption. The allegations were, on their face, defamatory although the action was subject to statutory defences or justifications.
(7)The respondent had an arguable basis for an action in defamation.

Delay

As to what might be regarded as a preliminary point or, at least, one which ought influence an exercise of discretion, the appellant contended that the respondent had unduly delayed the bringing of his application. The notice of appeal relevantly claims:

"6The learned primary judge erred in holding that there was no evidence of relevant delay on the part of the Respondent in bringing the application and in failing to take into account the Respondent's delay in bringing the proceedings (judgment at [32])."

In relation to delay, the learned primary judge stated, at par32:

"The defendants submitted that delay by the plaintiff in taking proceedings should count against him. As I understand it, the period of the delay upon which they seek to rely is from an unknown date in January last until the commencement of the action on the 15th of this month. There is no evidence establishing when the plaintiff first knew of the intention of the defendants to publish the imputations that have been raised here. Counsel for the ABC referred to the contents of an article in the Mercury newspaper on 3 January last, but there is no evidence that the plaintiff was aware of it prior to the day upon which he commenced the action. I conclude that there is no evidence of relevant delay. Further, there is no evidence that the defendants have in some way suffered a detriment because of any delay on his part. The complaint of delay is unimpressive."

The respondent had long been aware that Davie and a film company were making a documentary which featured him as a prisoner engaged in interesting and useful activity. He could expect that the "human interest" component would refer to his conviction for murder and the charge which did not result in trial. When he became aware, at least in January 2005, that the documentary was to include, and probably concentrate on, matters involving other abductions and murders, he showed concern. It would appear that in February he attempted to meet with the producer but was prevented from so doing by the Director of Prisons. The appellant had itself postponed the date of the scheduled program in October 2004 and had advised the Director of Prisons that:

"… the new date has not been released yet. Apparently we will be informed 6 – 8 weeks prior."

As the learned primary judge observed, at par10:
"On the face of the material presented by the plaintiff, he was badly misled and deliberately told untrue representations by Mr Davie concerning the proposed content of the documentary. But that is largely a background fact and has little relevance to the question whether I should exercise my discretion to grant an interlocutory injunction against the defendants."

The respondent would have been aware of the details of the contents of the documentary at about the time of its screening at the film festival in January 2005. The appellant intended to transmit the program on 28 April 2005. The writ was filed on 15 April 2005. The respondent was in custody and unlikely to possess the resources of a corporation such as the appellant. It is an affront to common sense and human experience and reality which belies an arrogance of power, to claim on this appeal a bar of delay.

Ground 6 ought be dismissed.

Public benefit and interest

The terms are often regarded as synonymous. Counsel for the appellant at the hearing of the application averred that the terms were but "two ways of saying the same thing" and that so far as the terms were used in regard to the tort of defamation, there was no difference in their import between Australian jurisdictions.

The Act uses the terms "public interest" (ss13, 16(1)(h)), "public concern" (ss13(1)(c), 13(3), 20(b)) and "public benefit" (s15(b)) apparently interchangeably. The learned primary judge was not convinced that the words were interchangeable when he observed, at par27:

"I do not consider by nodding, Mr Green conceded that it was not an issue that the publication of the imputations would be for the public benefit. By agreeing that matters of crime are matters of public interest is a far cry from conceding that the public dissemination by the media of all matters relating to crime, or matters concerning crimes allegedly committed by the plaintiff, will be for the public benefit."

The exchange with counsel occurred in the context of discussion concerning defences open to the appellant at the hearing of the action (see Allworth v John Fairfax Group Pty Ltd; John Alexander and Others (1993) 113 FLR 254). His Honour carried forward the terminology in his consideration of whether an interlocutory injunction should be granted. He stated, at pars28 and 29:

"My view is that, in general, it is not for the public benefit that the media should publicly allege that a person has committed crimes of which he or she has not been convicted, whether or not there are currently proceedings afoot with respect to the crimes. It is instead in the public interest that such allegations should usually be made to the public only as a result of charges and subsequent conviction. That the media on occasions makes such allegations is often referred to as 'trial by media', of which it appears the plaintiff complained to the Mercury. However, so far as concerns the imputation that the accused is a multiple killer of children, a more appropriate description in this case would be 'conviction by media'. No suggestion of a trial, as we understand that word, will be involved here. Similarly, I can see no aspect of public benefit in the making public of allegations that the plaintiff was responsible for the disappearance and murder of the Beaumont children or that he is suspected of being responsible. The responsibility owed to the public with regard to the investigation of crime is entrusted by our society to the police and other public investigators and prosecutors. If there is evidence available that might assist the authorities to investigate the disappearance of the children in question, it should be made available to them. I have difficulty accepting that it is in the public interest that instead, such information be bandied about in public. There will, of course, be cases when in the light of prior public statements by the person who is being defamed, or the public conduct of that person, it will be for the public benefit to publish allegations of that kind to the general public, but I have difficulty seeing that this is such a case. It is sufficient to say that the claim of the defendants to 'public benefit' may well be unsuccessful.

It follows from what I have been saying that I am unpersuaded that the granting of an interlocutory injunction restraining the defendants from publishing the imputations will 'restrain the discussion in the media of matters of public interest', as that expression was used by Hunt J in Chappell's case at 164, applying, of course, the law's use of the term 'public interest'."

Irrespective of the import of the language when used in consideration of the tort of defamation, I do not accept, with due respect to the learned primary judge, that any synonymity, if such be the case, transfers into the principle of injunctive restraint of publication. The existence of a defence is a relevant factor, but prohibition of publication is governed by different legal principle. Benefit and interest involve differing judgments of values. Many things, prurient or otherwise, are of interest to the public. In a different context, the interest of the public or the interest of the State contains a different set of value judgments. In a defamation trial a jury or judge is required to consider whether the publication was one "for the public benefit" which, despite the provisions of the Act, s5(4), remains a question of fact (s5(3)).

The grant of an interlocutory injunction in defamation cases ought be exercised with great caution and only in very clear cases (Church of Scientology v Readers Digest [1980] 1 NSWLR 344).

The grounds of appeal relevant to this issue state:

"9The learned primary judge erred in taking into account the view he expressed at [28] that it is not for the public benefit that the media make allegations of a criminal nature outside reports of charges, trials and convictions.
10The learned primary judge erred in apparently finding at [34] that damages are not an adequate remedy in the present proceedings.
11The learned primary judge erred in taking into account at [34] that the availability of any final injunction was a matter which was relevant to the grant of an interlocutory injunction.
12The learned primary judge erred in finding at [35] that the second and third defendants below were motivated by profit, and in regarding a finding as to the conduct of parties other than the Appellant as relevant in an application for an injunction to restrain the Appellant from publishing the imputations.
13The learned primary judge erred in finding at [35] that the Respondent was motivated by a wish to 'improve its ratings', and in taking that finding into account in an application for an injunction to restrain the Appellant from publishing the imputations.
14The learned primary judge erred in treating his consideration of whether it was arguable for the purposes of section 15 of the Act that the publication of the imputations would be for the public benefit, as determinative of the more general question of public interest for the purposes of the grant of an interlocutory injunction restraining the publication of defamatory matter."

In the Church of Scientology case Hunt J considered a line of authorities which included Beecham Group v Bristol Laboratories (1968) 118 CLR 618; Bonnard v Perryman [1891] 2 Ch 269; Liverpool Household Stores Association v Smith (1887) 37 Ch D 170; Hubbard v Vosper [1972] 2 QB 84 (cf Gabriel v Lobban [1976] VR 689) and treated defamation "as forming a special exception to the general rule" (at 350, par17) of balance of convenience in cases involving interlocutory injunctive relief. There, as here, the remedy of damages remained. In formulating principles governing interlocutory relief, Hunt J included, at 345:

"(d)   There is an independent and overriding principle that an injunction will not go which will have the effect of restraining the discussion in the press (or in books or magazines) of matters of public interest or concern.
Quartz Hill Consolidated Gold Mining Co v Beall (1882) 20 Ch D 501, at pp 508, 509, 511; Liverpool Household Stores Association v Smith (1887) 37 Ch D 170, at p 183; Bonnard v Perryman [1891] 2 Ch 269, at pp 284, 285; Stocker v McElhinney (No 2) (1961) 79 WN (NSW) 541, at pp 543, 544; Shapowoloff v John Fairfax & Sons Ltd (1965) [1980] 1 NSWLR 359 (n), at pp 360, 361 and Edelsten v John Fairfax & Sons Ltd (1976) [1978] 1 NSWLR 685, followed.
…
(g)     Nor will an injunction be granted in other cases where its effect would be the same as an injunction which would not have been granted had the claim been made in defamation.
Fraser v Evans [1969] 1 QB 349, at p 362; Hubbard v Vosper [1972] 2 QB 84, at p 97 and Woodward v Hutchins [1977] 1 WLR 760, at p 764; [1977] 2 All ER 751, at p 755, followed.
(h)     It is otherwise where the cause of action, other than defamation, does not involve any concept of free speech and discussion, or the so-called liberty of the press.
Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796, at p 801, followed."

His Honour had reason to return to the issue of "overriding public interest" in Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153. In that case a sporting identity successfully sought restraint of a publication of a claimed adulterous affair said to be of public interest because of the profile of the applicant and his membership of an ethics committee associated with his sport. In his reasons for judgment, his Honour repeated his earlier statements made in Church of Scientology (supra), but declined to regard the principles as "inflexible". He did so because while he accepted the applicant to be a public figure, the intended publication intruded into his private life. He outlined his approach in the following terms:

"The first of the defendant's submissions was based upon the undoubted fact that the plaintiff is a public figure, in a general sense, in that he has a high public profile as both a player and an administrator in cricket, and a somewhat lesser public profile as a businessman who seeks to procure from the public investment of money in his companies and to administer that money on behalf of his investors. (I leave to one side for the moment the separate submission based upon the plaintiff's appointment as the Australian Cricket Board's Commissioner to hear appeals from decisions relating to breaches by players of the Board's Code of Behaviour.)
The public, the defendant submitted, expects high standards of behaviour by cricketers and such businessmen in private (including in their bedrooms), so that there is a legitimate public interest in the misconduct in private of such public figures. Public figures like the plaintiff, the defendant asserted, do not have a private life. In relation to this more general argument, so the submission ran, it does not matter whether the private misbehaviour of a public figure does or does not have any bearing upon his capacity to perform his public activities.
The mischief which was sought to be remedied by the statutory requirement that the imputation relate to a matter of public interest was the gratuitous destruction of reputation permitted by the defence of truth alone which is available at common law ((1971) LRC 11, par 64 at 103). The defendant's submission is in my view an open invitation to such a gratuitous destruction of the reputation of any person in public life in relation to such entirely unrelated matters. This country does not have the 'public figure' defence afforded by the First Amendment in the United States (New York Times Co v Sullivan 376 US 254 (1964)), which might perhaps have permitted this sort of argument. We have neither the constitutional background nor the public accessibility to the media which is said to justify the existence of such a defence in the United States.
I could see no real ground for supposing that the defendant might succeed in relation to this submission. In my view, unless the public figure makes his private activity a matter of public interest himself (a proposition which I discuss later), that private activity can be a matter of public interest only if it has some bearing upon his capacity to perform his public activities: Seymour v Butterworth (1862) 3 F & F 372 at 382; 176 ER 166 at 171; Lyle-Samuel v Odhams Ltd [1920] 1 KB 135 at 146 and Mutch v Sleeman (1928) 29 SR (NSW) 125 at 137; 46 WN (NSW) 52."

I do not regard the differing conclusions reached by Hunt J in the above cases as contradictory. While Australia has not developed a jurisprudence equivalent to that evidenced by the decision in New York Times (supra) except as an adjunct to political discourse Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Theophanous v Herald & Weekly Times (1994) 182 CLR 104, a distinction can be made between matters internal or personal to the life of a citizen and those which are, by reason of public life, within the public domain, in the consideration of public interest or concern. In that context the terms "public benefit" and "public interest" have different connotations to those used in a defence at trial.

In Australian jurisprudence the term "public interest" extends to criticism of a particular individual and has no fixed or closed meaning (Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183) and the broader test of public interest adopted by Denning MR in London Artists Ltd v Littler [1969] 2 QB 375, namely that which affects people at large who may be legitimately concerned in what is going on, adopted by Brennan CJ in Bellino (supra) at 193 and Gaudron J at 240 respectively.

Insofar as the terms "public benefit" as used in the Defamation Act and "public interest" as being apposite in a grant of injunctive relief differ, I would adopt the wider import in my approach to this appeal. I agree with the approach taken by Doyle CJ in Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440 at 442 that an interlocutory injunction should not be lightly granted because:

"… 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 (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 public 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."

Whilst I do not necessarily agree that the criteria of free discussion of matters of public general interest simply substitute a test of balance of convenience in favour of the intended publisher, the reasoning that it operates against the person claiming pre-publication restraint accords with my approach.

Here it was for the respondent to show why an interlocutory injunction should issue. He was not entitled to succeed simply on the balance of convenience and had to show why an established principle associated with defamation should not be followed. His conviction for the murder of a child was a matter of public record as was the charge laid, but not proceeded with, of the murder of another. The meaning of the term "multiple killer", if the second homicide was established, remained a question for a jury or trial judge. The appellant had a cogent evidentiary basis for its plea of truth or justification. The allegation that he was suspected of the Beaumont abduction and homicides were not statements of fact. The respondent was not denied, by failure of injunctive relief, the remedy of damages. His reputation was already tainted by his conviction for murder. There had been prior publication of the material. His activities in prison in the field of entomology, together with the attendant change to his previous life and conduct were matters of public interest. His future prospects for release, rightly or wrongly, were matters likely to involve public discourse. The question of the degree to which a charged act, not proceeded with to trial, itself raises issues of community concerns. His past was in the public domain, irrespective of publication of the documentary.

Prior publication and injunction

The documentary had been shown in public in January 2005 and pre-screening publicity had outlined the allegations giving rise to the claim of published defamation. Subsequently those allegations were replicated in the media between January and April 2005 and became intertwined with the issues of parole, both general and specific to the respondent. The learned primary judge, conscious of prior publication, stated, at par11:

"Clearly, the imputations, if made with respect to the vast majority of members of the public, would be grossly defamatory, and if it was a publication for the first time, I would have no hesitation in granting an application such as the present one unless there were exceptional circumstances"

but concluded that he found, at par33:
"… unpersuasive the fact that the plaintiff may already have been defamed by the public viewing of the documentary at the film festival in January and by the publications of the Mercury newspaper on a number of dates this year. That he may have been defamed before cannot justify the continuation of defamatory statements, notwithstanding that his reputation may have suffered badly as a consequence of the earlier ones. He has demonstrated a prima facie case that the publication of the imputations will amount to actionable defamation and in the absence of any suggestion of inconvenience to the defendants, an interlocutory injunction will be granted. Ultimately, a court, constituted either by a judge alone or by a judge with a jury, may find against the plaintiff or award him only nominal damages, but those possibilities are not persuasive to me when resolving the appropriate outcome for the application."

Alone the conclusion reached by the learned primary judge might not warrant appellate intervention. But it was a cogent matter which favoured the appellant. The respondent had sought an award of damages and a permanent injunction as remedies for his claim. The Act contains no specific provisions for the grant of an injunction other than by way of Parliamentary certificate (s29). The scheme of the legislation is that of an award of damages (ss9(i), 22, 24(2)(a) and (b), 25 and 30), or offer of amends (ss17, 23(i)(b)). The power of the Court to injunct publication is afforded by the Supreme Court Civil Procedure Act 1932 and the Supreme Court Rules 2000. Whether a jury has power to grant a permanent injunction as a remedy in proceedings brought pursuant to the Act is not a matter which has been determined in this jurisdiction. Historically the remedy granted by a jury was an award in damages. Here the issues of prior publication and interlocutory or permanent injunctive relief are combined. Grounds relevant to both matters claim:

"7The learned primary judge erred in failing to give appropriate weight to the fact that the publication sought to be restrained by the Respondent had already been broadcast in Tasmania (judgment at [1]).
8The learned primary judge erred in failing to take into account that the substance of the imputations sought to be restrained had already been published widely in the print media (see judgment at [33]).
…
10The learned primary judge erred in apparently finding at [34] that damages are not an adequate remedy in the present proceedings.
11The learned primary judge erred in taking into account at [34] that the availability of any final injunction was a matter which was relevant to the grant of an interlocutory injunction."

The learned primary judge, having dealt with the question of prior publication, addressed that of injunctive remedy in the following terms, at par34:

"Nor do I find persuasive the argument that damages may be an appropriate remedy. Admittedly, if the plaintiff's case is sound, he has already been defamed to many members of the public and the publication intended by the defendants will merely add to that. Nevertheless, he is entitled to the law's protection and no suggestion was made by counsel for the defendants that if his action is successful, it is unlikely that the Court would be persuaded to restrain further publications of the imputations."

While "freedom of the press" as the learned primary judge observed is not absolute and the term often used to justify abuse of power, it is integral to the political, social and cultural processes. While it is not a trump card (Kirby J in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 211, footnote 413 at 285 citing R v Central Independent Television Plc [1994] Fam 192), it remains a compelling factor.

Loss of injunctive remedy did not deprive the respondent of his claim for damages.

This was not a case involving the grant of a suppression order intended to permit a future "fair" trial, especially one likely to be tainted by pre-disclosure of "identification evidence" (Channel Seven Adelaide Pty Ltd v Draper (2004) 90 SASR 160), nor the administration of justice generally (Scott v Scott [1913] AC 417).

The appellant sought to publish cognisant of the risk of an award of damages. It sought to publish on matters of wide import. Whilst the respondent's personal interests were not to be ignored, questions of rehabilitation, release and unsolved crimes are of wider import. The observations of Fitzgerald P and Lee J in J v L & A Services Pty Ltd & Ors, Court of Appeal Queensland, 15 February 1993, although used in a different context that:

"Finally, it is important to remember that what appears to be a more liberal approach involving the exercise of a discretionary power in the interests of an individual involves an erosion of fundamental rights and freedoms of the general public. The occasional misuse or abuse of these rights and freedoms or other disadvantages associated with public information and discussion, which is sometimes misinformed, together with the resultant harm are part of the cost of living in a free, democratic society. It is common for sensitive issues to be litigated and for information which is extremely personal or confidential to be disclosed. It is of obvious concern that such a paramount principle as the requirement of open justice should not be whittled away on a case by case basis according to individual judges' subjective views of the merits or demerits of the claims to privacy of individual litigants. It is also of concern that there should not be an expenditure of time, resources and costs on arguments that do not bear directly on the merits of disputes."

While courts are afforded extensive injunctive powers as an adjunct to its equitable jurisdiction (eg, Supreme Court Civil Procedure Act, s10; see generally Lenah Game Meats Pty Ltd v Australian Broadcasting Corporation (1999) 9 Tas R 355), the use of those powers ought be more restricted in publication of material of matters in the public domain and which might involve the tort of defamation, or that in some way the material was obtained improperly (The Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39; Lincoln Hunt v Willesee (1986) 4 NSWLR 457, cf Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169), or subterfuge (Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199). Consideration of competing interests in the sense discussed by Kirby and Callinan JJ in their separate reasons for judgment in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (supra) is constrained by the availability of alternate remedy, the public persona of a party, the possibility of irreparable harm, whether the topic is one within the public domain, and the accepted utility of freedom of speech. It is for the grant of interlocutory injunctive relief.

As Ormiston J said in National Mutual Life v GTV [1989] VR 747 at 754:

"However, the real question on any application such as this, where the defamatory nature of the words is not disputed, is whether it is 'just and convenient' to grant relief, and this is to be determined in particular by what is the balance of convenience and hardship. It is at this point, in my opinion, that the courts have for 100 years determined that a balance is normally to be struck in favour of the free discussion of matters of public or general interest, particularly where damages are both a normal and sufficient remedy. If the authorities to which I have referred go further, then they should not be read as laying down more than prima facie tests, which must be adapted to the broad principles which have always governed the grant of equitable relief."

Balance of convenience

Ground 2 of the notice of appeal raises the question of whether the learned primary judge wrongly decided the application on the balance of convenience. The reference to the test is touched upon in the reasons for judgment at par33, when his Honour stated:

"He has demonstrated a prima facie case that the publication of the imputations will amount to actionable defamation and in the absence of any suggestion of inconvenience to the defendants, an interlocutory injunction will be granted."

It was for the respondent to show cause why the information should issue. The ground is subsumed into the others and is dealt with elsewhere in these reasons for judgment. However, a simple "balance of convenience test" is not ordinarily appropriate in a case of this nature. It may be that his Honour was considering the balance between irredeemable harm to the respondent and the granting of a permanent injunction, sought by the respondent, if publication was not restrained. If such be the case then the statement in the negative, ie, absence of suggestion of inconvenience, is apposite. The specific ground is subsumed into ground 1. It is not necessary to consider for the purpose of this judgment whether the balance of convenience test, but operating in favour of a plaintiff, is the appropriate one (see Jakudo v South Australian Telecasters Ltd (supra)),

Conclusion

Ground 1 is made out. The test of "balance of convenience" was not apposite because the subject matter of the cause of action was that of defamation and the "right" of free speech outweighed convenience. The respondent retained a remedy in relation to a matter previously published. The subject matter of the intended publication was a matter of public interest and the respondent already publicly known. The appellant is a reputable organisation cognisant of the risk it ran in publication. A test of "public benefit" as used in the Act does not automatically transfer to an identical approach in consideration of a grant of an interlocutory injunction restraining publication.

I would uphold the appeal and quash the order made.
File No FCA 27/2005

AUSTRALIAN BROADCASTING CORPORATION
v JAMES RYAN O'NEILL

REASONS FOR JUDGMENT FULL COURT

EVANS J
29 August 2005

I agree with the reasons of Blow J and would dismiss the appeal.
File No FCA 27/2005

AUSTRALIAN BROADCASTING CORPORATION
v JAMES RYAN O'NEILL

REASONS FOR JUDGMENT FULL COURT

BLOW J
29 August 2005

I have had the advantage of reading the reasons for judgment of Slicer J in draft form. I regret that I cannot agree with his conclusion as to the outcome of this appeal. The material facts are stated in his judgment, and I therefore need not repeat them.

An exercise of a discretion to grant an interlocutory injunction should not be interfered with by an appellate court unless a clear case has been made out that the primary judge acted on some wrong principle, or made an order which works a substantial injustice to one of the parties: Australian Postal Corporation v Gray (1989) 98 FLR 468 per Neasey J, with whom Nettlefold J agreed, at 474; De Mestre v A D Hunter Pty Ltd (1952) 77 WN (NSW) 143 at 146 – 147; Victorian Egg Marketing Board v Parkwood Eggs Pty Ltd (1978) 33 FLR 294 per Brennan J (as he then was) at 311 – 312.

I do not think it can be said that the interlocutory injunction in this case works a substantial injustice to the appellant. The appellant has paid for a documentary, but has been temporarily prohibited from televising it. If the action is brought to trial, it might be held that the documentary is defamatory of the respondent, and a permanent injunction might be granted. If not, the televising of the documentary will have been delayed, rather than prevented. If the appellant has paid for a documentary that should never go to air, the existing injunction works no injustice. If it has paid for a documentary which should be permitted to go to air, any injustice in delaying its transmission until this action has been determined would not be substantial, in a financial sense, in my view. I am inclined to think that, in a case like this, the question whether a party will suffer a substantial injustice does not depend entirely on financial considerations. One of the appellant's statutory functions under the Australian Broadcasting Corporation Act 1983 (Cth), s6(1)(a)(i), is to provide broadcasting programs that "inform and entertain" the Australian community. If it is unfairly and substantially handicapped in discharging that function, it will suffer a substantial injustice. However the injunction appealed against restrains the publication of material concerning the alleged or suspected criminal activities of one man; it concerns events prior to his incarceration in 1975; and it is of a temporary nature. Because of those circumstances I think that, even if the injunction does work some injustice to the appellant in a non-financial sense, any such injustice is not substantial.

It follows that this appeal should not succeed unless a clear case has been made out that the learned primary judge acted on some wrong principle. The appellant contends that he did. To evaluate its contentions, it is necessary to consider the authorities as to the criteria to be applied by courts in determining applications for interlocutory injunctions in defamation cases, and as to whether the approach to be taken in applying such criteria should be rigid or flexible.

Ever since the late 19th Century, English and Australian courts have been most reluctant to grant interlocutory injunctions in defamation cases, and special criteria have been applied in determining applications for such injunctions. The special practices adopted in such cases result from the need to protect freedom of speech and freedom of the press, and from the associated notion that a decision as to whether published material is or is not defamatory is properly a decision for a jury rather than a judge. There are two lines of authority as to how inflexible the relevant rules or practices are.

The "rules" developed by the courts were succinctly summarised by Walsh J in Stocker v McElhinney (No 2) (1962) 79 WN (NSW) 541 at 543 – 544, as follows:

"I consider the following propositions to be in accordance with the authorities:
(1)   Although it was one time suggested that there was no power in the court, under 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)   In such cases, the power is exercised with great caution, and only in very clear cases.
(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 judge's view a subsequent finding by a jury to the contrary would be set aside as unreasonable, that the injunction will go.
(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."

Another succinct statement of the "rules" in question was made by Hunt J in Church of Scientology of California Incorporated v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344 at 349 – 350, as follows:

"I accept as the settled law that the power to grant interlocutory injunctions in defamation cases must be exercised with great caution, and only in very clear cases. A plaintiff must establish that a subsequent finding by a jury that the matter complained of was not defamatory of him would be set aside as unreasonable; that there is no real ground for supposing that the defendant may succeed upon any defence of justification, privilege or comment, and that he, the plaintiff, is likely to recover more than nominal damages only. In particular, questions of privilege and malice are not normally appropriate to be decided upon an interlocutory application. Nor will an injunction go which will have the effect of restraining the discussion in the press of matters of public interest or concern."

The propositions stated in those two judgments were derived from a series of English decisions that followed the fusion of law and equity: Quartz Hill Consolidated Gold Mining Company v Beall (1882) 20 Ch D 501; William Coulson & Sons v James Coulson & Co (1887) 3 TLR 846; Liverpool Household Stores Association v Smith (1887) 37 Ch D 170; Bonnard v Perryman [1891] 2 Ch 269; Monson v Tussauds Ltd [1894] 1 QB 671.

Dr I C F Spry QC has written the following commentary in relation to that line of authority in his work, Equitable Remedies, 6th ed, at 20 – 22 (I have omitted the learned author's footnotes):

"A further example of the manner in which judges trained in a common law rather than an equitable tradition may misunderstand the nature of equitable discretions, and hence attempt to describe them in terms of inflexible rules, is seen in a series of cases that are concerned with the right to obtain injunctions restraining the publication of libels. In such cases the right to obtain an interlocutory injunction ought, on general equitable principles, to depend simply on whether, in the special circumstances in question, the balance of justice inclines towards the grant or refusal of relief; and such matters should be taken into account as considerations of hardship in relation to the parties, any special considerations of unfairness that may arise, the undesirability that a defendant should be prevented from making statements the legality or illegality of which will only subsequently be established with certainty, the extent to which third persons or the public generally may be interested in the truth of those statements, the degree of probability that the alleged libel will be published and will be wrongful, the degree to which the plaintiff will be injured in the event of its publication, and any other material considerations. Probably the observations of Jessel MR in Quartz Hill Consolidated Gold Mining Co v Beall [at 508] were not intended to depart from these general principles. In the course of these observations, after giving an example of cases where an injunction would be granted, he went on to say, 'But on the other hand, where there is a case to try, and no immediate injury to be expected from the further publication of the libel; it would be very dangerous to restrain it by interlocutory injunction.' Properly understood, this statement was unexceptionable. Five years later, however, Lord Esher expressed an opinion that the jurisdiction to restrain a libel 'ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where if the jury did not so find the court would set aside the verdict as unreasonable' [William Coulson and Sons v James Coulson and Co, supra, at 846]. It is important to notice that in this statement Lord Esher apparently intended to lay down, as a definite condition of the grant of relief, rather than merely as a discretionary consideration, proof of a state of facts such that no jury could reasonably conclude otherwise than that the publication sought to be enjoined was libellous. At law, of course, a state of facts of this kind is a condition on which certain rights do indeed depend. It is not necessary here to do more than to note that, for example, in a trial of an action with a jury, various rights of the parties both before the entry of judgment and on appeal depend on whether a jury could reasonably reach the conclusion that it has in fact reached. In equity, however, different considerations apply. The fact that the absence of a libel could not reasonably be found may be relevant, and indeed may be of great weight. So if it appears that the only conclusion that may be reasonably reached is that the proposed publication will be libellous, exceptional circumstances must be shown in order to justify the view that it would be inequitable to grant an injunction. But on general equitable principles it may in some circumstances be unjust to deny interlocutory relief merely because this condition is not satisfied. So if, for example, the prospective injury to the plaintiff were overwhelming, the detriment to the defendant through any delay of publication small, and the probability of the wrongfulness of the proposed publication high, although not such as to be beyond the possibility that a jury might, especially in view of any fresh evidence that might subsequently be adduced, reasonably find in favour of the defendant, an interim or interlocutory injunction might well appear to be appropriate. Whilst equity lawyers tend thus to express principles in terms of general discretionary considerations, common lawyers tend to express themselves in terms of rules with specific and inflexible criteria. Hence it has been largely in the formulations of common law judges that the rule laid down by Lord Esher has received subsequent support, and, in the absence of a full analysis in the courts, there has come to be a risk that it will be regarded as orthodox, contrary as it may be to fundamental equitable principles. Similar comments may be made as to suggestions that an interlocutory injunction will not issue if the defendant proposes to rely upon justification or fair comment or some other such defence. Such considerations as an intention to plead justification, for example, are always of importance and are often decisive. But it is clearly contrary to principle that they should be treated as inflexible bars to relief, so that other countervailing considerations are not given due weight."

Dr Spry's comments, as published in the third edition of his work, were adopted with approval by Ormiston J in National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747 at 754. In that case his Honour refused an application for an interlocutory injunction to restrain the defendants from televising a segment of a current affairs programme concerning the plaintiff's sickness and disability policies and the manner in which they were sold to the public. His Honour said the following at 754:

"… the real question on any application such as this, where the defamatory nature of the words is not disputed, is whether it is 'just and convenient' to grant relief, and this is to be determined in particular by what is the balance of convenience and hardship. It is at this point, in my opinion, that the courts have for 100 years determined that a balance is normally to be struck in favour of the free discussion of matters of public or general interest, particularly where damages are both a normal and sufficient remedy. If the authorities to which I have referred go further, then they should not be read as laying down more than prima facie tests, which must be adapted to the broad principles which have always governed the grant of equitable relief.
In the context of the present case, therefore, I do not accept that it is necessarily sufficient for a defendant to assert that it proposes to plead justification and prove the truth of its allegations at the trial. The nature of the material which will be sufficient to deny a plaintiff interlocutory relief must vary according to the sources of the defendant's information and according to the form of discussion which the publication of the defamatory material will take and the extent to which it may be seen to be genuine, serious and in the public interest."

Within two months after that decision, Hunt J agreed that the "rules" in William Coulson & Sons v James Coulson & Co (supra) laid down "no more than prima facie tests which must be adapted to the broad principles which have always governed the grant of equitable relief": Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 161. In that case, his Honour granted an interlocutory injunction to restrain the licensee of a television station from broadcasting material concerning the alleged sexual activities of a prominent cricketer. At 158 he said:

"I do not believe that the well-known statements by Walsh J in Stocker v McElhinney (No 2) … should be treated as a statement of inflexible rules which prevent the application (at least to a limited extent) of a discretion on general equitable principles as to whether interlocutory relief should be granted in the particular case, even in defamation cases."

After commenting on the 19th Century English authorities and referring to some leading Australian authorities as to interlocutory injunctions (Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729; Magna Alloys & Research Pty Ltd v Coffey [1981] VR 23; Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148), he said, at 160:

"What is significant for present purposes to notice, however, is the increasing importance placed by the courts upon a flexibility of approach to the grant of interlocutory injunctions generally and upon the rejection of rigid formulae which had been laid down in some older cases as rules of practice in the grant of such relief."

He said the following at 163:

"In my view, the time has come in New South Wales to reject as rigid rules of practice those rules laid down by Lord Esher in William Coulson and Sons v James Coulson and Co. That I am free to do so as a matter of precedent has already been established. Those decisions of appellate courts elsewhere in Australia in which Lord Esher's rigid rules have been applied in defamation cases are, of course, entitled to due respect, but I do not find them to be persuasive because … there was no consideration given to following any other course. …
In the present case, therefore, I concluded that my inability to hold that a jury's verdict of no libel would be set aside as unreasonable did not require me to reject the plaintiff's application for an interlocutory injunction on that ground alone. In my view, when balanced against the prospect of enormous injury to the plaintiff in having these imputations telecast throughout Australia and against the absence of any real detriment to the defendant, if they were not, the prospect that a jury would not find those imputations to be defamatory of the plaintiff was so slight that it should not deny the grant of interlocutory relief in the exercise of my discretion if the plaintiff were otherwise entitled to it.
That is not to say that the considerations enshrined in the 'rules' laid down by Lord Esher should be ignored in an application for an interlocutory injunction in defamation cases. Far from it. Those considerations should in my view continue still to be relevant, but not in the absolute terms in which they were expressed over 100 years ago by Lord Esher."

Subsequently, the decision of Ormiston J was upheld by the Full Court of the Supreme Court of Victoria (Fullagar, Hampel and McDonald JJ): National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd (supra) at 761 – 772. At 764, their Honours said the following:

"In our opinion, the correct approach in Victoria to an application to restrain publication or republication of defamatory matter is, and always has been, to make the broad enquiries traditionally made by a court of equity, viz - whether there is a substantial question to be investigated at the trial, and whether the balance of convenience, sometimes called the balance of justice, favours the grant of an injunction. In other words, the principles applicable are those which are applicable to all applications for interlocutory injunctions …".

At 765, their Honours went on to agree with Ormiston J, and with Hunt J in Chappell, that Lord Esher's "rules" laid down "no more than prima facie tests which must be adapted to the broad principles which have always governed the grant of equitable relief."

The flexible view expounded by Hunt J in Chappell was considered by the New South Wales Court of Appeal in Marsden v Amalgamated Television Services Pty Ltd (unreported 2 May 1996). In that case an interlocutory injunction was refused both at first instance and on appeal, since Mr Marsden's private life had already become a matter of public discussion. However Priestly, Handley and Cole JJA commented at 14 that they were inclined to think that the "more flexible view of Hunt J" was "the proper one to follow".

The flexible approach found favour with the Full Court of the Supreme Court of South Australia in Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440. At 442, Doyle CJ agreed with and adopted what was said by Ormiston J and the Full Court in National Mutual, and by Hunt J in Chappell. At 448 Williams J, with whom Bleby J agreed, referred with approval to National Mutual.

The two approaches were considered by the Full Court of the Supreme Court of Western Australia in Lovell v Lewandowski [1987] WAR 81. Kennedy J, at 90 – 92, quoted at length from the comments of Dr Spry (Equitable Remedies, 3rd ed); concluded that he should nevertheless accept the conclusions stated by Hunt J in Church of Scientology in the passage I have quoted above; and commented that if, notwithstanding the view he had expressed, an interlocutory injunction may still issue in exceptional circumstances, none existed in that case. At 93 – 94, Olney J took the law to be as stated in William Coulson & Sons v James Coulson & Co (supra) and Bonnard v Perryman (supra). Wallace J dissented, taking the view that an interlocutory injunction had been properly granted. However, he did so on the basis that the defendant's plea of justification amounted, in the unusual circumstances of that case, to an abuse of process, and that it should have been struck out. His reasoning was grounded in the 19th Century English authorities, and provides no support for a flexible approach. That case was, of course, decided before National Mutual and Chappell.

The rigid approach continues to prevail in England and Queensland: Gatley on Libel and Slander, 10th ed, pars25.1 to 25.11; Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199 (Full Court); Australian Broadcasting Corporation v Hanson (unreported, Court of Appeal of Queensland, 28 September 1998 at 6). The New Zealand Court of Appeal acknowledged the two lines of authority, without finding it necessary to choose between them, in New Zealand Mortgage Guarantee Co Ltd v Wellington Newspapers Ltd [1989] 1 NZLR 4 and Rob West Motors Ltd v Broadcasting Corporation of New Zealand (No 2) [1989] 3 NZLR 520. However its subsequent decisions are consistent with the English approach, and it has never adopted or approved of the flexible approach: Auckland Area Health Board v Television New Zealand Ltd [1992] 3 NZLR 406 at 407; TV3 Network Services Ltd v Fahey [1999] 2 NZLR 129 at 133; Hosking v Runting [2005] 1 NZLR 1 at 39. The English authorities were followed by the Divisional Court of the High Court of Justice of Ontario in Canada Metal Co Ltd v Canadian Broadcasting Corporation (1975) 55 DLR (3d) 42.

The question of whether the flexible approach is to be preferred to the rigid one has not been determined by the High Court. My review of the Australian authorities suggests that the flexible approach has greater support in other Australian jurisdictions than the rigid approach. I think it accords with fundamental equitable principles, and that the rigid approach does not, for the reasons stated by Dr Spry. I therefore think that this Court should follow National Mutual, Chappell, and Jakudo.

Counsel for the appellant did not contend that the rigid approach should be preferred to the flexible one. In fact Mr Whitington SC submitted that there was no error in the following paragraph of the reasons of the learned primary judge:

"23 Counsel for the defendants referred to Church of Scientology of California Inc v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344, Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 and a number of English cases in support of the proposition that the power to grant an interlocutory injunction to restrain an allegedly defamatory publication should be exercised with great caution, only in very clear cases and usually not in cases where the defendant asserts that it has good defences. But as was made very clear by Hunt J in Chappell, there are no rigid rules relating to the question. I have an unfettered discretion."

However, whilst acknowledging that some flexibility of approach is sometimes appropriate, the submissions of the appellant were largely consistent with the rigid principles that emerge from the English authorities. For example, it was submitted that the learned primary judge had not held that any of the defences said to be relied on by the appellant was not arguable; that an interlocutory injunction should not be granted in a defamation case unless the statutory defences relied upon are not arguable; and that the learned primary judge therefore erred in granting the injunction. Those contentions were the subject of two grounds of appeal, grounds 4 and 5.

The fourth proposition stated by Walsh J in Stocker v McElhinney (supra) requires that an injunction be refused if "there is any real ground for supposing that the defendant may succeed upon any such ground as privilege, or of truth and public benefit". In my view that proposition is based upon a premise that would now be regarded as false. Its origins can be traced back to William Coulson & Sons v James Coulson & Co (supra), in which Lord Esher MR was reported as having said, at 846:

"To justify the Court in granting an interim injunction it must come to a decision upon the question of libel or no libel, before the jury decided whether it was a libel or not."

That proposition was expressly approved of and adopted by the majority in Bonnard v Perryman (supra) (Lord Coleridge CJ, Lord Esher MR, Lindley, Bowen and Lopes LJJ) at 284. However it is now well recognised that, in determining an application for an interim injunction, a court is required to assess the strengths of the parties' cases, rather than to prejudge them. The High Court held in Beecham Group Ltd v Bristol Laboratories Pty Ltd (supra), at 622, that the appropriate enquiry 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". On the same page, the High Court commented that "the Court does not undertake a preliminary trial, and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case."

The learned primary judge considered the defences that counsel told him were to be pleaded and, rather than considering whether there was no real ground for supposing that any of those defences would succeed, considered whether the respondent had established a prima facie case. In my view he did not thereby apply a wrong principle. Grounds 4 and 5 must fail. I will deal with the other grounds in numerical order.

Ground 1 asserts that the learned primary judge "erred in applying the principles governing applications for interlocutory injunctions to restrain the publication of defamatory matter". In the paragraph that I quoted above from the reasons of the learned primary judge, he referred to the judgments of Hunt J in Church of Scientology and in Chappell, and went on to state briefly the most fundamental principles applicable to the determination of applications for interlocutory injunctions. He then went on to consider the question whether an injunction would restrain the discussion in the media of matters of public interest to all concerned, the merits of the statutory defences that counsel said would be pleaded, the defendants' contentions as to delay, the fact that the respondent had already been defamed by the public screening of the documentary in January and by publications in the Mercury newspaper, the possibility of the action failing or the plaintiff recovering only nominal damages, the argument that damages would be an appropriate remedy, the likely motives of the defendants, and the freedom of the press. In my view he considered the relevant factors weighing for and against the granting of an injunction. In my view he did not thereby apply a wrong principle.

Ground 2 asserts that the learned primary judge erred in holding "that because the Respondent had established a prima facie case and because of the absence of any inconvenience to the Appellant and the other defendants, an interlocutory injunction should be granted." This is really a complaint that the learned primary judge applied the ordinary tests for the granting of interlocutory injunctive relief, consistently with Beecham Group Ltd v Bristol Laboratories Pty Ltd, rather than following the rigid approach based on the English defamation cases that I have referred to. In my view he did not thereby act on any wrong principle.

Ground 3 asserts that the learned primary judge "erred in rejecting the Appellant's submission that, by virtue of the plaintiff's existing lack of favourable reputation, the imputations, if published, would not defame the Respondent within the meaning of section 5(1)(a) or (c) of the Defamation Act 1958 [sic]." Under the Defamation Act 1957, s5(1)(a), an imputation concerning a person is defamatory if that person's reputation is likely to be injured. Under s5(1)(c), an imputation concerning a person is defamatory if other persons are likely to be induced to shun, avoid, ridicule or despise him. The respondent's reputation is already a bad one since it is well known that he is serving a life sentence for the murder of a child, and the Mercury has published material suggesting that he is suspected of involvement in the disappearance of the Beaumont children. The appellant contended that the reputation of the respondent could therefore not be further injured, and that no further adverse publicity could increase the extent to which he would be shunned, avoided, ridiculed or despised. But it was open on the evidence for the learned primary judge to conclude that the televising of the documentary in question might spread the respondent's bad reputation more widely, and that members of the public might receive information injurious to his reputation that they had not received before. He made findings to that effect. In my view he did not err in doing so, and certainly did not act on a wrong principle.

Ground 6 relates to delay. I agree with Slicer J that it should fail, for the reasons stated by him. This ground alleges an error of fact, rather than the application of a wrong principle. Grounds 7 and 8 in substance again assert that the learned primary judge erred in failing to give sufficient weight to the fact that the documentary had been screened at a film festival and the fact that the imputations in question had been published in the print media. Those grounds do not assert the application of a wrong principle.

Ground 9 asserts that the learned primary judge "erred in taking into account the view … that it is not for the public benefit that the media make allegations of a criminal nature outside reports of charges, trials and convictions." In fact the learned primary judge did not express such a view in absolute terms, but used the adverb "usually". The learned primary judge was entitled to take into account the way our system of justice operates, the nature of the documentary in question, and the nature and extent of any benefit to the public that might result from the televising of the documentary prior to the trial of the action. He was entitled to form and express views in relation to those matters. The view that he expressed was reasonably open to him. He did not apply a wrong principle in taking that view into account.

Ground 10 asserts that the learned primary judge "erred in apparently finding … that damages are not an adequate remedy in the present proceedings". In my view this is an excellent example of a case in which damages, if the plaintiff succeeds and is entitled to more than nominal damages, will not be an adequate remedy. Prevention is better than cure. This ground did raise a question of principle. One of the rigid "rules" applied as a result of the English authorities was that damages would ordinarily be regarded as an adequate remedy. However the learned primary judge reached a conclusion as to the adequacy of damages on the basis of the flexible approach. He did not thereby act on a wrong principle, in my view.

Ground 11 asserts that the learned primary judge "erred in taking into account … that the availability of any final injunction was a matter which was relevant to the grant of an interlocutory injunction." This ground relates to a comment by his Honour that "… no suggestion was made by counsel for the defendants that if his [the respondent's] action is successful, it is unlikely that the Court would be persuaded to restrain further publications of the imputations." Plainly his Honour was entitled to take into account the fact that a permanent injunction was sought in the action, and the fact that no suggestion had been made that a permanent injunction should not be granted if the respondent were to succeed and recover more than nominal damages. In doing so, he did not act on a wrong principle.

Grounds 12 and 13 relate to comments by the learned primary judge as to the motives of the appellant and of two other defendants. Ground 12 complains that the learned primary judge erred in finding that those other defendants were motivated by profit. That finding was obviously open and appropriate, since there was evidence that those defendants were responsible for the production of the documentary, and that they entered into commercial arrangements with the appellant in relation to it. Ground 13 challenges a finding that the appellant, in part at least, wished to broadcast the documentary "to improve its ratings". It was open to the learned primary judge to infer that in part the appellant wished to broadcast the documentary in order to discharge its statutory function of entertaining the Australian community. It may be that there was insufficient evidence as to the appellant's ratings, and its desires in relation to them, to warrant the precise finding that was made. However the learned primary judge cannot be said to have acted on any wrong principle in making the findings that he did in relation to motives.

Ground 14 relates to the question of public interest. Under the Defamation Act, s15, it is lawful to publish defamatory matter if the matter is true, and if it is "for the public benefit" that the publication should be made. If an injunction, in the words of Hunt J in Church of Scientology, "will have the effect of restraining the discussion in the press of matters of public interest or concern", that will be a factor weighing against the granting of an injunction. The learned primary judge needed to consider whether it was arguable for the purposes of s15 that the publication of the relevant imputations would be for the public benefit, and needed also to consider whether the effect of an injunction would be to restrain the discussion of matters of public interest or concern. Those are two separate questions. Ground 14 asserts that the learned primary judge erred by treating the question of public benefit in relation to s15 as determinative of the more general question.

The learned primary judge referred to the proposition that an interlocutory injunction will not usually be granted "where such an injunction would restrain the discussion in the media of matters of public interest or concern"; then proceeded to consider the strength of a s15 defence based on truth and public benefit, paying particular attention to the question of public benefit; expressed the view that, in general, it was not for the public benefit that the media should publicly allege that a person has committed crimes of which he or she has not been convicted, but that such allegations should usually be made to the public only as a result of charges and subsequent conviction; and concluded that a claim of "public benefit" may well be unsuccessful. He then returned to the more general question. He said it followed from what he had been saying that he was unpersuaded that an interlocutory injunction would "restrain the discussion in the media of matters of public interest". He said that he applied "the law's use of term 'public interest'". He had earlier referred to a submission made by counsel for the appellant to the effect that the term "public interest" in defamation statutes in other jurisdictions meant the same as "public benefit" in the Defamation Act, s15.

Counsel for the appellant submitted on the basis of the English authorities, particularly Liverpool Household Stores Association v Smith (supra) that the public interest factor in interlocutory injunction cases should be decisive, in all but exceptional cases. But in my view, consistently with the authorities favouring a flexible approach in cases like this, his Honour was not obliged to treat that factor as decisive. He took into account the correct principles relating to the freedom of the press, took into account separately the prospects of a successful defence based upon truth and public benefit, and exercised his discretion in accordance with the appropriate principles. He did not apply a wrong principle.

I would dismiss the appeal.

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Citations

Australian Broadcasting Corporation v O'Neill [2005] TASSC 82

Most Recent Citation

Bennett v Indoor Holdings Pty Ltd [2006] WASCA 265

Cases Citing This Decision

2

Australian Broadcasting Corporation v O'Neill [2006] HCA 46

Bennett v Indoor Holdings Pty Ltd [2006] WASCA 265

Cases Cited

14

Statutory Material Cited

0

Stuart Rendell v Federal Capital Press of Australia Pty Ltd [2003] ACTSC 100

Australian Broadcasting Corporation v O'Neill [2006] HCA 46