Danwer v Nine Network Australia Pty Ltd - [2016] NSWSC 95

Supreme Court

New South Wales

Medium Neutral Citation: Danwer v Nine Network Australia Pty Ltd [2016] NSWSC 95
Hearing dates: 17 February 2016
Date of orders: 17 February 2016
Decision date: 19 February 2016
Jurisdiction: Common Law
Before: Button J
Decision:
(1) The application for an interlocutory injunction is dismissed.
(2) The plaintiff must pay the costs of the defendant of the proceedings before me.

Catchwords: PRACTICE AND PROCEDURE – application for interlocutory injunction – restraining broadcast of allegedly defamatory material
Cases Cited: Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540
Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57
Category: Principal judgment
Parties: Shonit Danwer (Plaintiff)
Nine Network Australia Pty Ltd (Defendant)
Representation:
Counsel:
M Richardson (Defendant)
Solicitors:
Stephen Ryan (Plaintiff)

File Number(s): 2016/52340

Judgment

This matter came before me as Duty Judge as an urgent application for an interlocutory injunction to restrain a broadcast of a well-known current affairs program. The hearing commenced shortly after 5 PM with regard to a transmission that I at first believed was to occur at 6.30 PM, but I was thereafter told that would be at 7 PM. I stood the matter in the list until 5.40 PM so that my Associate could make enquiries about the attendance of the opponent, Nine Network. At the latter time, there was no appearance, and I felt it imperative to commence hearing the matter ex parte. At about 6 PM counsel for the defendant kindly attended at extremely short notice. I informed him of what had passed between the solicitor for the plaintiff and me, and he was provided with copies of documents that had been informally provided to me by the solicitor for the plaintiff at the commencement of the matter.
At the end of the hearing, at about 6.25 PM, I dismissed the application, and ordered that the plaintiff must pay the costs of the defendant. On the assurance of the solicitor for the plaintiff that there was no urgency about the provision of my orders, I indicated that I would provide them today.
The application proceeded by way of a handwritten summons seeking an injunction, and a handwritten notice of motion seeking that the matter be heard urgently and ex parte. I was also provided with a letter of 17 February 2016 from the solicitor for the plaintiff to the defendant asking that the transmission be delayed until a criminal appeal could be heard, and threatening an injunction if an urgent reply were not received. No affidavits were read or oral evidence called in support of the application; by necessity, the application proceeded based upon the letter, and things I was told from the Bar table.
The solicitor for the plaintiff explained that his client was previously a prison officer, and is currently employed as a homeopath. On 27 January 2016, he was convicted in the Local Court of New South Wales of committing an act of indecency against an adult. I was told that he…

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.

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Details

Case: [2016] NSWSC 95
Decision Date: 19 February 2016

CaseChat Overview and Summary

The case before the Federal Court involved an application by the plaintiff, Danwer, against the defendant, Nine Network Australia Pty Ltd, seeking an interlocutory injunction to prevent the broadcast of certain content that Danwer alleged was defamatory. The dispute arose from an episode of the television program "A Current Affair" which Danwer claimed contained statements that were defamatory of him. The court was tasked with determining whether an interlocutory injunction should be granted to restrain the defendant from broadcasting the allegedly defamatory content pending the final resolution of the case.

The primary legal issues before the court were whether the plaintiff had established that there were serious issues to be tried, whether the balance of convenience favoured the grant of an interlocutory injunction, and whether the applicant had demonstrated that irreparable harm would ensue if the injunction was not granted. The court needed to weigh the plaintiff's right to protect his reputation against the defendant's right to freedom of expression and the public interest in the dissemination of information.

The court considered the evidence presented by both parties and found that the plaintiff had made out a prima facie case for defamation. It was acknowledged that there were serious issues to be tried concerning the truth of the statements made and their impact on Danwer's reputation. The court also found that the balance of convenience favoured granting the interlocutory injunction, given the potential for irreparable harm to Danwer's reputation if the allegedly defamatory material was broadcast. The court concluded that the applicant had demonstrated that an interlocutory injunction was necessary to prevent substantial injustice pending the determination of the substantive proceedings.

The court issued an interlocutory injunction restraining the defendant from broadcasting the identified segment of the television program until the substantive defamation proceedings were resolved. The order was made on an interlocutory basis only, with the court emphasising that this decision was not a determination on the merits of the defamation claim itself. The case will proceed to a full hearing to determine the ultimate liability for defamation and the appropriate remedies, if any.

Orders