Cleary v Kocatekin
[2012] NSWSC 364
•18 April 2012
Supreme Court
New South Wales
Medium Neutral Citation: Cleary v Kocatekin [2012] NSWSC 364 Hearing dates: 17 April 2012 Decision date: 18 April 2012 Jurisdiction: Common Law Before: Davies J Decision: 1. Upon the Plaintiff giving the usual undertaking as to damages, I order that the Second Defendant be restrained from televising, streaming, transmitting or otherwise publishing, whether by the television program known as 'Today Tonight' or any other television program, via the internet or otherwise, any material dealing with the subject matter of the dispute in proceedings number HB 11/55779 in the Consumer, Trader and Tenancy Tribunal, or otherwise dealing with the building contract between the Plaintiff and the First Defendant, or the costs of or the nature and quality of the building works performed to the First Defendant and/or others by the Plaintiff.
2. Costs to be costs in the cause.
Catchwords: EQUITY - injunctions - auxiliary jurisdiction - to restrain party assisting in breach of contract - settlement of proceedings by confidential deed - breach by one party to deed - intention of television station to broadcast material in breach of deed - whether broadcast would amount to further breach - whether serious question to be tried. Legislation Cited: Home Building Act 1989 Cases Cited: Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570
Film Financial Consultants Ltd v Becker Group Ltd [2006] NSWSC 319
Hitchcock v TCN Channel Nine [2000] NSWSC 198
Johnss v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408
Short v City Bank of Sydney (1912) 15 CLR 148Category: Interlocutory applications Parties: John Cleary (Plaintiff)
Kate Kocatekin (First Defendant)
Seven Network (Operations) Ltd (Second Defendant)Representation: Counsel:
M Lawson (Plaintiff)
No Appearance (First Defendant)
D R Sibtain (Second Defendant)
Solicitors:
Watkins Tapsell (Plaintiff)
No Appearance (First Defendant)
Addissons (Second Defendant)
File Number(s): 2012/119933
Judgment
The Plaintiff seeks an interlocutory injunction against the Second Defendant (Channel Seven) seeking to prevent it showing a segment in its Today Tonight program concerning the Plaintiff and the First Defendant.
Background
The Plaintiff is a builder who entered into a residential building contract with the First Defendant on 22 December 2009. Disputes arose between the parties to the contract in relation to the building work and what was due to the builder.
Proceedings were commenced in the Consumer, Trader and Tenancy Tribunal. Those proceedings were ultimately settled by a Deed of Release entered into between the parties on 19 January 2012. The Deed by its terms was intended to be a final settlement of all matters between the parties and there were mutual releases except in relation to statutory warranties under the Home Building Act 1989.
Two clauses in the Deed are of significance. They are as follows:
8.CONFIDENTIALITY
The terms of this Deed shall not be disclosed directly or indirectly by either of the parties in whole or part, except for the purposes of enforcement or as required by law.
9.NON DISPARAGEMENT
Each party agrees not to disparage or otherwise bring into disrepute or otherwise cause any injury or potential injury or damage to the good name and standing of the other, either orally or in writing.
On 5 April 2012 the Plaintiff received a telephone call from a person from Channel Seven's Today Tonight program. The Plaintiff said that the person was Brian Seymour but other evidence suggested it might have been Darren Ally, a producer at Channel Seven. The identity of the person does not matter.
The person from Channel Seven said that he was following up a lead for a story about a house that the Plaintiff had built for the First Defendant. He asked if the Plaintiff wanted to make a comment. The Plaintiff said he would not comment at that stage, and was told that Today Tonight would be doing a story so he should "look out for the cameras".
The Plaintiff said that he was then at a soccer game at Coledale on 13 April 2012 when Mr Seymour approached him and introduced himself. Mr Seymour said he wanted to have a chat. A cameraman was present. The Plaintiff said that the conversation went in this way:
9. At one stage he said: I have seen a letter you wrote to the bank stating that you could build the house for $530,000 dollars.
I said: That's not true.
He said: How can that be, I've seen the letter.
I said: It's more complicated than that.
He said: Can you explain yourself.
I said: I can't because I've signed a deed of release, part of that means I can't talk about what's involved.
10. He continued to push and ask from different angles. I repeatedly replied: I can't talk about it. I'd love to be able to explain myself to you but unfortunately I can't.
11. At one stage I apologised for being nervous, I'm not used to having camera shoved in my face.
12. He said: We have an independent valuation that says it shouldn't have even cost $500K to do the work that has been done.
I said: I disagree with that valuation.
He said: How can you get it so far wrong.
I said: I can and have accounted for every cent but obviously I can't talk about these things with you.
13.Many times he said the house is barely liveable. He mentioned some defects on the house.
He said: One defect is splitting on some beams that are not fit for purpose.
I said: That's the first I've heard of that. My understanding is that the beams are suitable I would confirm that with my supplier.
He said: There's some large splits on the beams.
I repeated: That is the first I've heard of this problem. I have been at the house just a couple of weeks ago.
He said: Do you realise there's some bamboo floor that's lifting.
I said: I am aware of that and I have already agreed to fix it.
He said: Oh really, that's good. He asked: Why did you blackmail Kate and keep her out of the house for over a year.
I said: Excuse me! Blackmail is a very strong word.
He said: I withdraw that statement. Why did you keep Kate out of the house for over a year.
I said: Because she didn't pay her bills.
He said: How much did she owe you.
I said: I can't talk about that.
He said: Do you realise the financial hardship you've put this family through.
I said: It's not one-sided. What about the hardship to my family, I'm selling my house over this.
He said: How can that be. How can something like this go so wrong.
I said: Again I can't talk about this. I'm not 100% sure what I can and can't talk about. If I'm not sure I'll say nothing.
14. At one stage he said: Do you think the bank has some responsibility in all this?
I said: Possibly - you would love that wouldn't you.
He said: You have some support in the community, three architects and some past clients, who all vouch for the quality of your work. How could this place go so horribly wrong.
I said: The house is not completed.
15. At one point he said: You signed a Cost Plus contract with Kate, is that correct.
I said: Yes.
He said: Do you realise that Cost Plus contracts are illegal in Queensland.
I said: We don't live in Queensland.
He said: Is that common for you to do Cost Plus contracts.
I said: Yes, the majority of my work is done that way.
He said: If I sent you an email, could you provide some more information.
I said: Once I have spoken to my solicitor, if I have some information for you, I could email it through
I asked: Can I have your business card.
He said: I don't have one with me - I'll get one from the car.
16. While he was going to the car, the camera man asked me some questions such as:
(a) Do you surf? Is real estate expensive here?
(b) I replied: Yes it is expensive.
17. I don't know whether they were still recording while Bryan was at the car.
18. When Bryan returned from the car I assumed the interview was over, but he continued it for several more minutes.
19. At one stage Bryan said to the cameraman: Whatever you do, don't film any kids.
20. At one stage Bryan said: I am not trying to shaft you, I want to do a fair story about what has happened.
He said: Do you realise that Alice (Kate's daughter) has a disease, and could die within the next two to 6 months.
I said: I realise she's sick. It's a terrible thing.
He said: I know I couldn't cope with a sick child.
I said: No, it's a terrible thing.
He said: Henry (Kate's son) is a good kid.
I agreed.
Subsequently the Plaintiff sent an email from Mr Seymour setting out some questions which Mr Seymour said he hoped the Plaintiff would answer by way of written response. Those questions were as follows:
- How much money do you claim Catherine Kocatekin owes you?
- Mrs Kocatekin claims the work you did was valued by a valuer employed by the bank and that you were paid what they thought the work was worth - can you tell me how this
worked?
- I have seen a letter in which you quoted the cost of the entire build at $530,000. Can you explain why it has, so far, cost far more than that? Can you confirm how much you spent on the build?
-Why is the house in such terrible state?
- Why is the main bathroom completely non-functioning, without plumbing or any amenities?
- How do you explain the serious faults in construction - including the support beams for the balcony and the corrugated metal eaves over the balcony?
- Why is the house in such an unsafe condition - including exposed electrics, unfinished walls and floors?
- The Independent Building inspector who assessed the property for us told us the work was not worth the money paid for it and that the entire, completed project should cost no more than around $500,000... can you explain this?
- Will you complete the work on this house within the limits of the quote you issued, or the money already spent?
- When will you fix the raised flooring in the common room you told me you were going to fix?
- Why did you prefer a "costs plus" contract with Mrs Kocatekin?
- Mrs Kocatekin's lawyer wrote to your lawyer in April of 2011 (see letter attached) asserting: "Alarmingly, the total invoiced costs of the building works to date have blown out to $666,382. A substantial number of items of work remain to be completed, and after completion of those items, the total costs are likely to exceed $720,000. It is impossible to imagine how any qualified builder could be so wrong in their estimates of the costs of constructing a simple two storey residential dwelling." Can you explain both the blow out in costs and how your estimate was so inaccurate?
- What variations did you carry out and did you have Mrs Kocatekin's consent for this work?
- Why did you not turn over the keys to property to Mrs Kocatekin and her two children until earlier this year?
The email concluded by saying that Mr Seymour expected to broadcast that story sometime that week.
As a result the Plaintiff made urgent application to Gzell J as the Equity Duty Judge seeking an injunction to restrain Channel Seven from publishing and/or transmitting the program on Today Tonight which contained material that was defamatory and related to legal proceedings between the Plaintiff and the First Defendant. The matter then came before me for an interlocutory hearing on 17 April 2012.
The Plaintiff's case
No doubt, due to the customary reluctance of courts to grant injunctions against threatened defamations, the Plaintiff put his case on the basis of breaches of the Deed of Release and what was said to be Channel Seven's involvement in those breaches.
Although my attention was drawn to clause 8 of the Deed, reliance on that clause was ultimately abandoned. Certainly, there was no evidence that there had been a breach of that clause because the only prohibition in that clause concerned disclosure of the terms of the Deed directly or indirectly.
Instead, the injunction was sought on the basis that Channel Seven aided, abetted or assisted a breach of clause 9. Mr Lawson of counsel, who appeared for the Plaintiff, said that there were three requirements contained in clause 9. They were not to disparage, not otherwise to bring into disrepute, or not otherwise to cause any injury or potential injury, to the good name and standing of the Plaintiff.
The first enquiry is whether there is a serious question to be tried in relation to whether the provisions of the Deed were breached and whether, and to what extent, Channel Seven had or might have aided, abetted or assisted in any breach.
Serious question to be tried
It may reasonably be inferred for present purposes that the First Defendant discussed the dispute between the Plaintiff and herself in a way that gave rise to Channel Seven's approach to the Plaintiff. Indeed, an affidavit read on behalf of Channel Seven by the solicitor acting for Channel Seven, disclosed (on information and belief) that Mr Seymour met and interviewed the First Defendant on 10 April 2012 after receiving notification through the "feedback" section on Today Tonight's website of a potential story involving the First Defendant and the building dispute.
I also infer from the terms of conversation between Mr Seymour and the Plaintiff on 14 April together with the questions asked of him in the email of 16 April that there is an arguable case that the First Defendant, by what she has said to Mr Seymour, has caused injury or potential injury to the good name and standing of the Plaintiff. Some of the matters asked of the Plaintiff by Mr Seymour might suggest that the First Defendant has disparaged the Plaintiff, but it is not necessary to conclude that there is an arguable case in that regard.
Certainly, the disclosure of so much of the dispute by the First Defendant which led to some of the questions asked (concerning the price of the job, the defects and the keeping of the First Defendant out of the house for a year) was arguably behaviour that caused injury or potential injury or damage to the Plaintiff's good name and standing. Accordingly, the First Defendant appears to have breached the agreement in the Deed of Release by 10 April 2012.
The evidence, which was not challenged on the application, from Channel Seven's solicitor was that the first time Mr Seymour knew about the Deed of Release and the confidentiality agreement was when the Plaintiff informed Mr Seymour about it in a conversation at the soccer match on 14 April 2012. By that time Mr Seymour had already met with and interviewed the First Defendant on 10 April 2012. It must be inferred, therefore, that the First Defendant said nothing to Mr Seymour about such an agreement.
As Channel Seven had no knowledge about the Agreement at that stage it cannot be said that it induced her to breach the contract nor to have aided, abetted or assisted her in doing so.
The Plaintiff put its case on the basis that, by broadcasting the material imparted to it by the First Defendant, Channel Seven would be aiding, abetting and assisting the breach by the First Defendant. Further, it was submitted that because the First Defendant gave the interview knowing the likelihood that the matters would be broadcast to the world at large, there would be a further breach by her as a result of the broadcast when it was aired.
Channel Seven argued that the breach by the First Defendant had taken place before it became aware of the contract or its breach by the First Defendant. Accordingly, it could not be guilty of inducing the breach, or aiding, abetting or assisting any breach by broadcasting information that it came by innocently.
Channel Seven argued further that the Plaintiff did not identify any legal or equitable right which the injunction would protect. That was principally because Channel Seven said that it was not guilty of any tort such as assisting a breach of contract, nor guilty of any equitable wrong such as involvement in a breach of a confidence. It points to what Rothman J said in Film Financial Consultants Ltd v Becker Group Ltd [2006] NSWSC 319 at [60] -[68], and to the statement of Isaacs J in Short v City Bank of Sydney (1912) 15 CLR 148 at 160 that:
A bona fide belief reasonably entertained that it was not a breach of contract would be fatal to the claim. If the defendant did not know of the existence of the contract, he could not induce its breach.
The Plaintiff relied heavily on the decision of Austin J in Hitchcock v TCN Channel Nine [2000] NSWSC 198. In that matter, the plaintiff had a contract between herself and a former nanny employed by her which contained a confidentiality clause. It seems likely, although it is not clear, that the contract came about as a result of the settlement of certain legal proceedings between the plaintiff and the nanny.
Approximately a fortnight after that contract was made, the plaintiff received a telephone call from a journalist informing her that Channel Nine would be running an article in it's A Current Affair program about the court case between the plaintiff and the nanny. She asked for the plaintiff's side of the story.
The plaintiff obtained legal advice which resulted in the plaintiff's solicitors writing to the television station that afternoon drawing attention to the contract, asserting that the proposed broadcast would constitute an inducement of a breach of that contract and requiring an undertaking not to broadcast the program or anything similar. When the undertaking was not forthcoming, an ex parte injunction was granted by the Duty Judge preventing the program going to air. The following day, there was argument over whether the injunction ought to be continued. Austin J's judgment was given in respect of that interlocutory hearing.
The plaintiff contended that she was entitled to the continuation of the injunction on two grounds, being the inducement of breach of contract and breach of confidence. During the course of submissions, the plaintiff indicated that she also wished to base the continuation of the injunction on a threatened defamation. That application was disallowed because it was raised at such a late stage.
Austin J rejected the claim based on a breach of confidence, saying that there was not even an arguable case to be made.
His Honour's conclusion that the plaintiff was entitled to an interlocutory injunction restraining Channel Nine from televising a small part of the program in issue on the basis of an inducement of a breach of contract is to be found at [15], but his Honour's reasons appear at [74]-[75] as follows:
[74] The defendant has reminded the Court that it is not a contracting party, and its conduct should not be constrained unless it can be shown to possess an element of 'scienter'. As far as the tort of inducing a breach of contract is concerned, the tortious conduct may well involve an element of knowledge that the tortfeasor's conduct would induce or encourage or assist the contract party to breach the contract. As far as breach of confidence is concerned, the third party's position is described in Attorney-General v Guardian Newspapers Limited (No 2) [1988] 2 WLR 805, at 868. The defendant was aware of the terms of the contract of 3 March 2000, and was aware that Ms Page was employed as the plaintiff's nanny.
[75] However, it follows from my findings that knowledge of the contract did not put the defendant in the position of a tortfeasor except to the extent that paragraph (d) would be breached by Ms Page's disclosure in the interview. To that extent, an injunction lies against the defendant, but since the contract does not impose any other relevant constraint there is no justification for restraining the defendant in any other way.
The Plaintiff submitted that Hitchcock was indistinguishable from the present position. The Defendant submitted, however, that Hitchcock was not a case such as the present where the Defendant only became aware of the contract containing the confidentiality clause after the wrongdoer had breached the contract.
There is some difficulty in ascertaining from the terms of the Hitchcock judgment when it was that Channel Nine became aware of the contract. I have concluded, however, that it was not aware of the terms of the contract and the confidentiality clause when it first obtained the confidential information from the nanny. The following passages suggest that this is so:
[4] The plaintiff quickly sought legal advice, having regard to a contract between her and Ms Page dated 3 March 2000, which contained a confidentiality clause. The plaintiff's solicitors wrote to the defendant that afternoon, drawing attention to the contract, asserting that the proposed broadcast would constitute an inducement of breach of that contract, and demanding by 5:15pm a written undertaking not to broadcast the segment or any material of a like nature. At 5:25pm an officer of the defendant contacted the plaintiff's solicitors and informed them that the defendant was not prepared to give the undertaking.
...
[14] In the present case Ms Page made a promise of confidentiality which is enforceable against the defendant. But the promise was poorly drafted. It does not cover the ground that the plaintiff now says she intended to be covered. Properly construed, it was not a promise to keep all of the plaintiff's domestic arrangements private. And as far as the evidence before me goes, Ms Page was not engaged, or treated during her employment, in such a manner as to become subject to an equitable obligation of confidentiality which would prevent her from saying most of what she says in Exhibit PX4.
...
[18] The contract also prevents Ms Page from disclosing information relating to the matters referred to in the complaint in the local court proceedings. The injunction which I propose will prevent the defendant from assisting Ms Page to breach this part of her contract. I reject the defendant's submission that the information is sufficiently in the public arena, through the publication of many newspaper articles, and that the injunction would be futile.
...
[55] In the present case there has been an enormous amount of newspaper publicity, and some other media publicity of the 'affair' which includes the Complaint. But the Court may take judicial notice of the fact that publication of Ms Page's interview in prime-time free-to-air television would communicate information about the matters referred to in the Complaint to a different and probably much wider audience than has been reached by publication so far. Additionally, viewers of the television program who have read the newspapers would have their recollection revived in a way that may be detrimental or prejudicial to the interests of the plaintiff. In my view, therefore, to the extent that Exhibit PX 4 contains disclosure of matters referred to in the Complaint contrary to paragraph (d), an injunction would not be futile.
...
[81] The plaintiff is entitled to an injunction to restrain the defendant from televising, or permitting to be televised on any other television station, that part of Exhibit PX 4 that would involve breach by Ms Page of paragraph (d) of the contract of 3 March 2000, with respect to matters referred to in the Complaint. In my opinion, the plaintiff has failed to make a case for any wider relief.
[82] I have considered whether I should make an order restraining the defendant from inducing any further or other breach of the contract of 3 March 2000. I have concluded that such an order is unnecessary. It appears from the slim evidence before me that the defendant, being well aware of the terms of the contract, took legal advice as to its scope. I cannot on the evidence infer that the defendant has followed all the legal advice that it has received. But the facts are that the text of the contract was faxed by the plaintiff's solicitor to the defendant on the afternoon 16 March 2000 and by 6pm that evening, when the plaintiff moved for ex parte relief, the defendant's present legal advisers attended my Chambers as observers. The next day they strenuously contended (not implausibly and partially successfully) that their client's proposed conduct would not involve any tort or breach of duty. Given the nature of the legal advice which the defendant has had, it will be well aware of the consequences of inducing any further breach of the contract. I do not regard repetition of the tort as at all likely on the evidence before me.
The Defendant relied in particular on what appears after the first sentence in paragraph [82] to suggest that Channel Nine was aware of the terms of the contract before the nanny disclosed the confidential information and thereafter Channel Nine took legal advice as to the scope of the terms of the contract. Especially in the light of what appears at paragraph [4], I do not think that is a correct reading of paragraph [82]. The legal advice taken by Channel Nine appears to have been obtained after the plaintiff's solicitors wrote on 16 March drawing attention to the contract.
This is not a final hearing. What I am determining is whether there is a serious question to be tried. This aspect of the determination concerns whether it can be said Channel Seven has engaged in such behaviour that the Plaintiff may be able to demonstrate a breach of a legal or equitable right which it has. The judgment in Hitchcock suggests that there is a serious question to be tried in this regard. My conclusion is that Hitchcock was a case where the defendant there only became aware of the contractual agreement after the party to the contract had wrongly breached its terms. I am not bound by Hitchcock but I would not depart from its conclusion unless I considered it was clearly wrong. I do not consider that the decision is wrong.
Hitchcock obtains some additional support from what was said by Gaudron J in Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408 at 459-460. I accept that Gaudron J was dealing with the issue of confidential information, but because the basis for the grant of equitable relief lies in an obligation of conscience (as Gaudron J makes clear at 459) there is no reason to distinguish that from the present case, albeit that it involves assisting in a breach of contract and/or the tort of interference with contractual relations. Gaudron J said at 460:
It has been held, both in Australia and in the United Kingdom, that a third person who comes by information innocently may be restrained from making use of it once he or she learns that it was obtained in circumstances involving a breach of confidence ((78) See, for example, Fraser v. Evans (1969) 1 QB 349, at p.361; Butler v. Board of Trade (1971) Ch 680, at p.690; Foster v. Mountford and Rigby Ltd. (1976) 14 ALR 71, at p.75; G. v. Day (1982) 1 NSWLR 24, at p.35; Wheatley v. Bell (1982) 2 NSWLR 544, at p.550.). And it was conceded by counsel for the 6th and 7th respondents that the law in this regard is as stated by Lord Denning MR in Fraser v. Evans ((79) (1969) 1 QB, at p.361.), namely, that "(e)ven if (a recipient of information) comes by it innocently, nevertheless once he gets to know that it was originally given in confidence, he can be restrained from breaking that confidence." The law of confidence has not developed to the point of identifying in a definitive or comprehensive way the matters which determine whether a duty of confidence has devolved onto third parties ((80) See Meagher, Gummow and Lehane, Equity: Doctrines and Remedies, 3rd ed. (1992), par.4122.). However, the question whether there is or should be a duty on third parties must depend, at least in part, on the extent to which the information in question is generally known or available.
There is some further support for the view that the use by the Defendant of material innocently obtained, but known to be in breach of contract by the time it was intended to be used, in Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570. In that case police had legitimately videoed the execution of a search warrant. The video was later obtained, in undisclosed circumstances, by a television station who intended to show it. Hodgson CJ in Eq (as his Honour then was) restrained the showing of the video on the television station and said (at 572):
In this case, even accepting that the taking of the video on private premises, to which access had been obtained in exercise by the police of powers under the warrant and/or of arrest, was reasonably incidental to the exercise of those powers if done for the purposes for which the powers were conferred, the use of that video for purposes other than the investigation or prosecution was
outside those powers and would involve an abuse of those powers. Use of the video by the defendant, knowing all these things, would also be such an abuse. (emphasis added)
That suggests that the relevant time of knowledge of the wrongdoing is at the time it is intended to broadcast the information. The principle in Short (see paragraph 22 above) must hence be applied at that time. Hitchcock, Donnelly and Johns demonstrate that the Plaintiff shows that there is a serious question to be tried on the issue of whether Channel Seven would be aiding, abetting or assisting the breach of contract by the First Defendant by disclosing information concerning the dispute which might injure the good standing or repute of the Plaintiff.
Balance of convenience
It is then necessary to determine where the balance of convenience lies.
Channel Seven argues that damages will be an adequate remedy for the Plaintiff if it is demonstrated that the disclosure of the information would be injurious to the Plaintiff whether because it is defamatory or for some other basis in law. Channel Seven also argues that there is no evidence to show that the material is defamatory apart from the Plaintiff's stated concern in his affidavit that what will be broadcast might be defamatory of him and his business.
It must be remembered also that the injunction is not sought to prevent a threatened defamation but to restrain the publication which it is said will be wrongly disclosed in breach of contract. However, the fact that the broadcast of the material is likely to result in defamation proceedings cannot be ignored. The position was the same in Hitchcock where Austin J expressly disallowed the application on the basis of a threatened defamation and granted relief based on involvement in tortious conduct and breach of contract. In that regard, I note what Austin J said as follows:
[77] The plaintiff submits that the balance of convenience tilts heavily in her favour. According to the plaintiff, the threatened publication does not relate to any matter in the public interest. For that position she relies on Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153. I agree that disclosure of the subject matter of Exhibit PX 4 is not obviously required in the public interest, but on the other hand one must be very careful about preventing by injunction the disclosure of information in which it appears that the public has a real interest, however motivated.
[78] Further, the defendant says that the threatened publication contains serious defamatory imputations of and concerning the plaintiff, which I should take into account on the balance of convenience, although the defamation has not been put forward in these proceedings as a substantive ground for relief. The difficulty with this submission, in my view, is that the plaintiff has not demonstrated that damages would be an inadequate remedy to compensate her for any defamation which may occur.
[79] The plaintiff says that an inference is open on the evidence that the Defendant, with knowledge of Ms Page's obligation of confidentiality, has paid her money to breach that obligation. It is said that this inference must go to the balance of convenience. This submission is relevant to the extent that I have found that the interview will involve a breach by Ms Page of paragraph (d) of the contract. But it does not enable the plaintiff to obtain any more extensive relief.
[80] My conclusion is that the balance of convenience favours the grant of an injunction limited to restraining the defendant from showing the parts of Exhibit PX 4 which relate to the matters referred to in the Complaint. If I had found that there is a serious question to be tried as to whether the televising of Exhibit PX 4 would involve a breach of an implied contractual term of the contract of employment or an equitable duty of confidence, I would have concluded that the balance of convenience would have favoured interlocutory relief. While I recognise the importance of free dissemination of information through the media, I would not hesitate to restrain any media entity from inducing disclosure of private matters in breach of contract or equitable duty. But that question does not arise.
It seems to me that a further matter of policy favours the balance of convenience being found for the Plaintiff. In circumstances where parties to litigation settle their disputes by reason of a confidential agreement whether by mediation or otherwise, the Court should be slow to allow one of those parties to breach the terms of a confidential arrangement, particularly by resort to the media. Although, as I have found, Channel Seven was not aware of the contractual arrangements between the parties when it interviewed the First Defendant, it was subsequently made aware of those arrangements. When it can point to no particular prejudice by being prevented from disclosing the matters the subject of the confidential agreement, the courts should be slow to facilitate or to further a breach of such an agreement by wider dissemination. In many cases there will be limited recourse available to the innocent party or a considerable difficulty in proving any actual damage absent defamatory material.
Conclusion
Accordingly, I make the following orders:
1. Upon the Plaintiff giving the usual undertaking as to damages, I order that the Second Defendant be restrained from televising, streaming, transmitting or otherwise publishing, whether by the television program known as 'Today Tonight' or any other television program, via the internet or otherwise, any material dealing with the subject matter of the dispute in proceedings number HB 11/55779 in the Consumer, Trader and Tenancy Tribunal, or otherwise dealing with the building contract between the Plaintiff and the First Defendant, or the costs of or the nature and quality of the building works performed to the First Defendant and/or others by the Plaintiff.
2.Costs to be costs in the cause.
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Decision last updated: 19 April 2012
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