Channel Seven Adelaide Pty Ltd v Draper No. Scciv-04-540

[2004] SASC 144

CHANNEL SEVEN ADELAIDE PTY LTD v DRAPER
[2004] SASC 144

Civil

1. PERRY J.  (ex tempore)    This is an appeal from an interlocutory injunction pronounced by a judge of the District Court following a hearing on Sunday 16 May 2004.

2. The order with injunction was in the following terms, directed against the defendant which is Channel Seven Adelaide Pty Ltd (“Channel Seven”):

   ‘That until further order the defendant (whether by its agents or employees) be restrained from:

   1.1The ongoing broadcast of promotional advertisements featuring the plaintiff in the defendant’s program ‘Today Tonight’.

   1.2Broadcasting a ‘Today Tonight’ program referring to the plaintiff in the context of parliamentary travel allowance and/or association with Mr Sands.”

3. A further hearing took place in the District Court on 19 May 2004 when an application by the defendant was heard to discharge the order made on 16 May 2004.

4. Following the hearing on 19 May 2004, the judge of the District Court ordered that the application to discharge the injunction be dismissed.

5. At the same time, he varied the order with injunction so as to delete the reference to Mr Sands and to substitute the words “her companion of August 2000”.

6. At the time of the hearing of 19 May 2004 the District Court judge made suppression orders pursuant to s 69(A) of the Evidence Act 1929 to prevent publication of any report of the hearing which took place on 19 May 2004, and further, to prevent publication of any reference to Derrick John Sands being a murder suspect.

7. The notice of appeal filed in this Court was filed pursuant to a certificate given by the District Court judge pursuant to r 96A.02(1) of the Supreme Court Rules. The notice targets both the injunction and the suppression order.

8. However, on the hearing of the appeal, Mr Whitington QC of counsel for Channel Seven did not pursue the appeal as to the s 69A orders, which was abandoned.

9. The appeal proceeded before me with respect to the injunction only.

10. The reason Mr Whitington QC took that course, was that an appeal from orders made under s 69A of the Evidence Act could not be heard by a single judge. They must of necessity be heard by the Full Court. A separate appeal may be brought to the Full Court as to that aspect of the matter.

11. Apart from Mr Whitington QC of counsel for Channel 7, I have heard counsel for the respondent Patricia Draper, and I granted leave to intervene at the request of counsel for The Advertiser Newspaper Pty Ltd, and for Mr Derrick Sands.

12. I have approached the question of the propriety of the orders under appeal bearing in mind the principles which find expression in the decision of the Full Court of this Court in Jakudo Pty Ltd v South Australian Telecasters Ltd.[1]

    [1] (1997) 69 SASR 440.

13. Applying those principles to the circumstances of this case, in my view, there were no proper grounds upon which the injunction should have been granted.

14. I found my decision principally on the footing that the balance of convenience overwhelmingly favours publication. As was pointed out by Doyle CJ in Jakudo, with whose judgment the other members of the court concurred, there is a substantial public interest in free discussion of matters of public or general interest.

15. Furthermore, in this case there are reasonable grounds to suppose that a defence of justification may succeed.

16. The order is that:

    1.The appeal be allowed.

    2.The amended order with injunction be quashed.

    [AFTER HEARING THE PARTIES AS TO COSTS]

    3.Costs reserved to the trial judge.

17. After the publication of the above reasons, Mr Heywood-Smith applied for a suppression order relating to the hearing before me. He supported that case by the argument that to fail to do so would jeopardise the efficacy of the suppression orders made by the District Court judge, more particularly Order 3 made on 19 May 2004.

18. In my opinion, there are serious technical issues arising as to the legitimacy of both of the suppression orders made by the District Court judge, as well as quite serious arguments as to whether or not they were justified on the merits.

19. In any event, I am firmly of the view that suppression orders should be made very rarely and only when the clearest and most pressing of grounds are sustained with respect to any application to that end.

20. There are no proper grounds upon which it would be right of me to suppress publication of the proceedings which have just concluded before me.

21. The application for a suppression order is dismissed.

    JUDGMENT CITATION

    1. (1997) 69 SASR 440.