Bhupinder Singh Takhar & Jaswindar Singh Takhar v South Australian Telecasters Ltd No. SCGRG 97/734 Judgment No. 6186 Number of Pages 2 Defamation

[1997] SASC 6186

IN THE SUPREME COURT OF SOUTH AUSTRALIA

PERRY, J

Defamation - injunction to restrain publication - application by egg producer for an injunction restraining a TV station from screening film obtained of the plaintiffs' chicken farm and egg producing plant - the plaintiffs alleged that the publication would reveal commercially sensitive aspects of the grading and packing operation and would be defamatory in that the proposed program would involve the assertion that the plaintiffs sold battery produced eggs as free range - consideration of the principles applicable to the grant of injunctive relief where the defendant intends to publish material bearing on an issue of public interest and concern - discussion of relevance of evidence pointing to the TV film crew having been guilty of a trespass - injunction refused.

ADELAIDE, 23 May 1997 (hearing), 26 May 1997 (decision)

#DATE 26:5:1997

#ADD 2:6:1997

Plaintiffs :

Counsel: Mr D Trim

Solicitors: Lawson Downs

Defendant :

Counsel: Mr A Harris

Solicitors: Finlaysons

Order: application refused.

PERRY J

1. This is an application to restrain the televising in the course of a program due to be screened by the defendant on Channel 7 tonight of footage depicting the plaintiff's chicken farm and egg producing plant.

2. The defendant asserts in the programme that the plaintiff's have been marketing eggs as free range when, in fact, they are battery produced.

3. I have had the benefit of viewing the whole of the footage taken by the defendant and a separate video of the programme itself, which is an edited compilation from that footage. I have also viewed a separate film taken from a helicopter the following day which displays the plaintiffs' farm and outbuildings as seen from the air.

4. As well I have had the benefit of most helpful arguments from counsel for both parties.

5. The Court leans against preventing discussion in the press of matters of public interest or concern. This is an important principle to which due regard must be paid in applications of this kind.

6. The assertion by the defendant that if sued in defamation it will plead justification and assert the truth of its allegations is also a weighty matter to be taken into account; although it is by no means determinative.

7. On the other hand, it should not be thought that the Court lightly condones the use of television footage by a news reporting agency following a trespass onto premises.

8. I am prepared to assume for the purposes of this application that it is likely that if the matter should proceed to trial, the plaintiffs will be able to prove on the balance of probabilities that the initial entry onto the premises, accompanied by filming which commenced more or less immediately, constituted a trespass. However, the evidence as to requests to leave thereafter and the responses to any such request is confusing, and no firm conclusion can be drawn as to that aspect of the matter.

9. I have been referred by counsel to a number of authorities. But as I pointed out during the course of argument, these are no more than illustrative of the application of well known principles to the circumstances of particular cases.

10. One of the matters relied upon by the plaintiffs in support of the application for an injunction is what is said to be the commercial sensitivity of some of their processing methods, which are, to a certain extent, revealed in the proposed publication. That is also a matter to be taken into account, although the uniqueness of those methods has been questioned by the defendant.

11. The gist of the allegation that the publication would be defamatory lies in the suggestion by the defendant, to which I have already referred, which comes through strongly in the proposed publication. As I have said, it is to the effect that the plaintiffs have been responsible for marketing eggs as free range when in fact they were battery produced.

12. Beyond a simple denial contained in a letter from their solicitors, until I took this aspect of the matter up with Mr Trim during the course of his address, there was surprisingly little material before the court brought in by the plaintiffs from which the court could conclude that there was at least available evidence to answer that allegation. When pressed by me during the course of argument to indicate what the plaintiffs had to say about the suggestion, I was informed by Mr Trim that the plaintiffs operate another plant some 50 kilometres away on which there are free range chickens. The plaintiffs say that free range eggs are transported by road from that plant to the plant now in question where they are sorted. Only those weighing 55 grams are packed and sold as free range.

13. I have carefully considered the affidavit material and the other matters put before me by counsel. The question of the grant of an injunction must be approached in accordance with the ordinary rules, bearing in mind, however, the manner in which those rules have been interpreted and applied by the courts in the course of applications which involve the publication of material which is part of a discussion in the media of a matter of public interest and concern.

14. The test which has been clearly established by high authority is that the grant of an injunction will only lie where there is a serious question to be tried and the balance of convenience favours the making of the order. Furthermore, an injunction will not usually be granted where damages would be an adequate remedy.

15. After carefully considering the material before me, I am willing to assume that there is a serious question to be tried. But even on that assumption, it appears to me that the balance of convenience favours the defendant. Furthermore, it seems to me that this is a case where it can properly be said that in the event of a defamation ultimately being established, damages would be an adequate remedy. The application is refused.

16. The plaintiff will pay the defendant's costs of and incidental to the application and the hearing before me.