D v. H - [2008] QSC 35

SUPREME COURT OF QUEENSLAND

CITATION:

D v H & Ors [2008] QSC 35

PARTIES:
D
(applicant)
v
H
(respondent)
CHANNEL SEVEN BRISBANE PTY LTD

(non-party)

FILE NO/S:

BS 3514 of 2007

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

4 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

3 March 2008

JUDGE:

de Jersey CJ

ORDER:

That the application be dismissed, with costs to be assessed on the standard basis.

CATCHWORDS:

REAL PROPERTY – GENERAL PRINCIPLES – INCIDENTS OF ESTATES AND INTERESTS IN LAND – Where statutory limitation on publication of account of a de factor property proceeding – where one party gave information to media outlet – whether any publication based on that information would breach statute – whether media outlet should be required to seek court approval of any proposed publication – whether court should intervene where in any event media outlet affirmed its intent to honour the statutory restraint – whether the party who gave information to media should be required to depose to what was communicated – role of court in the establishment of any contravention.

Family Law Act 1975 (Cth), s121
Property Law Act 1974 (Qld), s268, s342, s343, s344

Hinchcliffe v Commissioner of Australian Federal Police (2001) 118 FCR 308
In the Marriage of Gibb (1978) FLC 90
In the Marriage of Schwarzkopff; Fitzgibbon v Barker (1992) 16 Fam LR 539

COUNSEL:

P Hacket for the applicant
A Cooper for the respondent

P Applegarth SC for the non-party

SOLICITORS:

Evans and Co. for the applicant
Barry and Nilsson for the respondent

Freehills for the non-party

de Jersey CJ: The applicant D and the respondent H are parties to a proceeding in this Court for a property adjustment order pursuant to Part 19 of the Property Law Act 1974. It is consequent upon the breakdown of their de facto relationship.

In an affidavit filed in that proceeding, H refers to a deed into which she and the applicant entered in June 1993. The deed provided for a division of property should the de facto relationship come to an end. H also referred in that affidavit to a house built by the applicant which was said to encroach onto forestry land, rendering it liable to a demolition order.

The applicant’s solicitor, Mr Evans, deposes to a conversation with H last Friday, 29 February, in which H informed him that she had contacted Today Tonight (a program aired on Channel 7) and provided them with information ‘about the applicant and the issues in the proceedings’, adding: ‘Why would it affect the proceedings, it is just the truth?’

The solicitor made that contact with H following upon events on Thursday, 28 February. The solicitor deposes to then being informed by the applicant of an attempt to interview him on 28 February at a building site. He was approached by a cameraman, a person holding a recording device and another male person. One of the men ‘started to confrontationally interview him and made reference to “H” (being H, the respondent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading D v. H

Details

AGLC: D v H [2008] QSC 35
Case: [2008] QSC 35
Decision Date: 4 March 2008

CaseChat Overview and Summary

The case of D v H involved a dispute relating to property, where the court was asked to determine whether a statutory restriction on the publication of certain information had been breached. The parties were D, who had given information to a media outlet, and H, who was concerned that any publication by the media outlet would contravene the statutory limitation. The dispute was heard in the Supreme Court of New South Wales.

The court was tasked with determining whether the media outlet should be required to seek court approval before publishing any information that may be in breach of the statutory limitation. Additionally, the court had to consider whether the court should intervene to require the media outlet to seek approval, even though the media outlet had affirmed its intent to adhere to the statutory restriction. The court also had to consider whether the party who had given information to the media outlet should be required to depose to what was communicated, and the role of the court in establishing whether any contravention had occurred.

The court found that the media outlet had affirmed its intention to adhere to the statutory restriction and that there was no evidence that it intended to breach the restriction. The court also found that there was no evidence that the party who had given information to the media outlet had breached any confidentiality obligations. The court held that it should not intervene to require the media outlet to seek court approval, as there was no evidence of any actual or threatened contravention of the statutory limitation. The court dismissed the application, with costs to be assessed on the standard basis.

The court held that it should not require the party who had given information to the media outlet to depose to what was communicated, as there was no evidence of any contravention of the statutory limitation. The court held that its role was to establish whether any contravention had occurred, not to investigate the content of any communication between the parties. The court held that it should only intervene where there was evidence of an actual or threatened contravention of the statutory limitation.

Orders

Orders of the court

That the application be dismissed, with costs to be assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	D v H & Ors [2008] QSC 35
PARTIES:	D (applicant) v H (respondent) CHANNEL SEVEN BRISBANE PTY LTD (non-party)
FILE NO/S:	BS 3514 of 2007
DIVISION:	Trial Division
PROCEEDING:	Originating Application
DELIVERED ON:	4 March 2008
DELIVERED AT:	Brisbane
HEARING DATE:	3 March 2008
JUDGE:	de Jersey CJ
ORDER:	That the application be dismissed, with costs to be assessed on the standard basis.
CATCHWORDS:	REAL PROPERTY – GENERAL PRINCIPLES – INCIDENTS OF ESTATES AND INTERESTS IN LAND – Where statutory limitation on publication of account of a de factor property proceeding – where one party gave information to media outlet – whether any publication based on that information would breach statute – whether media outlet should be required to seek court approval of any proposed publication – whether court should intervene where in any event media outlet affirmed its intent to honour the statutory restraint – whether the party who gave information to media should be required to depose to what was communicated – role of court in the establishment of any contravention. Family Law Act 1975 (Cth), s121 Property Law Act 1974 (Qld), s268, s342, s343, s344 Hinchcliffe v Commissioner of Australian Federal Police (2001) 118 FCR 308 In the Marriage of Gibb (1978) FLC 90 In the Marriage of Schwarzkopff; Fitzgibbon v Barker (1992) 16 Fam LR 539
COUNSEL:	P Hacket for the applicant A Cooper for the respondent P Applegarth SC for the non-party
SOLICITORS:	Evans and Co. for the applicant Barry and Nilsson for the respondent Freehills for the non-party