Dinh v Nine Network Australia Pty Ltd

[2018] VSC 464

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

S ECI 2018 00886

JASON DINH	Plaintiff
v
NINE NETWORK AUSTRALIA PTY LTD	Defendant

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JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2018
DATE OF RULING:	15 August 2018 (Ex tempore; revised 21 August 2018)
CASE MAY BE CITED AS:	Dinh v Nine Network Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 464

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INJUNCTIONS – interim injunction – imminent television broadcast – potentially defamatory publication – applicable principles – public interest – free speech – grounds for supposing that defendant may succeed upon the ground of truth – application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Truong	Thexton Lawyers
For the Defendant	Mr S Mukerjea	M & K Lawyers Group Pty Ltd

HIS HONOUR:

1. This is an urgent application for an interim injunction.  It is made by summons undertaken to be filed in relation to proceedings undertaken to be commenced by the plaintiff, known as Jason Dinh, against the Nine Network Australia Pty Ltd.  I have in front of me a proposed general endorsement of  claim, a proposed summons, an affidavit of Mr Dinh and some responding affidavit material from the defendant.  In particular, there is an affidavit of the solicitor for the defendant, exhibiting in turn an affidavit from the liquidator of a certain company, The Winning Post Officer Pty Ltd, with which the plaintiff has been associated.  The affidavit of the liquidator was prepared for the purposes of, and was filed in, certain proceedings in the RedCrest Corporations List.

1. The plaintiff is seeking to restrain the broadcast of an item on the Channel 9 program known as A Current Affair which is presently scheduled to be broadcast at 7.00 pm this evening.  He refers to a trailer for that item that was published on A Current Affair last evening and which apparently may be viewed on the Channel 9 website at the moment and has been there for some time during the day.  The title of the item is: ‘Dubious Dinh’.

1. It is apparently not disputed for present purposes by the defendant that the broadcast is likely to include content that would damage the reputation of the plaintiff or at least that there may be defamatory imputations that can be ascertained or discerned from the material before the Court that would be conveyed by the program as it is likely to be, judging by the trailer.

1. The main response of the defendant is to say that this case is not an exceptional case of the kind envisaged in the authorities relating to applications for interim or interlocutory injunctions to restrain publication, such as might justify the grant of such an injunction.[1]  The relevant principles, which I understand are common ground, are indeed a formidable obstacle for a person in the position of the plaintiff who seeks to achieve an injunction to restrain publication of a broadcast, and all the more so where the publication is proposed to be done by a mass media organisation in a situation where the principle of free speech is relied upon by that defendant.[2]

   [1]See Duthie v Nixon (2015) 47 VR 355 (Beach JA), 361-362 [18]-[21].

   [2]See Hawthorn v Seven Network Ltd [2013] VSC 352 (Elliott J), [12]-[15].

1. Here, as already mentioned, the defendant does not concentrate on whether or not the plaintiff has sufficiently shown that the material concerned would be detrimental to the plaintiff's reputation.  What the defendant says is that this is a case which comes within a particular principle referred to in Australian Broadcasting Corporation v O'Neill,[3] the leading High Court case, being a principle picked up in turn by Justice John Dixon recently in QBH Commercial Pty Ltd v Nine Network Australia Pty Ltd,[4] as follows:

If, on the evidence before the judge, there is any real ground for supposing that the defendant may succeed upon such ground as privilege, or of truth and public benefit, or even that the plaintiff, if successful, will recover nominal damages only, the injunction will be refused.

[3](2006) 227 CLR 57, 67-68 [18], citing Walsh J in Stocker v McElhinney (No 2) [1961] NSW 1043, 1048.

[4][2016] VSC 441, [37(4)]. See also, Duthie v Nixon (2015) 47 VR 355 (Beach JA), 361-362 [20].

1. I am entirely satisfied that there is real ground for supposing that the defendant may succeed upon the ground of truth.[5]  I am so satisfied by the affidavit of John-Paul Cashen affirmed 15 August 2018 and, in particular, by the abovementioned affidavit of the liquidator of The Winning Post Officer Pty Ltd, Mr Stephen John Michell, sworn 31 July 2018, which is Exhibit JPC3 to the affidavit of Mr Cashen.  It is clear from Mr Michell’s affidavit that Mr Dinh has had, and continues to have, a significant role in the management of The Winning Post Officer Pty Ltd, although his role is restricted now, of course, by the fact that the company is in liquidation.  Mr Dinh was at all relevant times a director of the company.  He was also associated with another company, RIC Consulting Group Pty Ltd, that was a shareholder in The Winning Post Officer Pty Ltd.  So he has had at least managerial links with The Winning Post Officer Pty Ltd.  That company is, for present purposes, the centrally relevant company in connection with the story that the defendant proposes to broadcast on A Current Affair this evening.

   [5]Of course, in Victoria a defendant need only demonstrate truth, as distinct from truth and public benefit.

1. In his affidavit, Mr Michell says, among other things, that his investigations into relevant matters commenced on about 16 May this year with his appointment as liquidator of The Winning Post Officer Pty Ltd.  As at 31 July, the investigations were ongoing.  In his affidavit, Mr Michell asserts, based on his investigations, that The Winning Post Officer Pty Ltd has entered into contracts to sell some 100 residential lots in the range of $275,000 to $390,000 each; that it only has underlying contracts to purchase 30 of those lots, leaving an unmatched deficit of about 70 lots; that it has collected a 10 per cent deposit in most cases from the buyers, totalling, in Mr Michell’s estimate, about $3,045,650; that the exact amount collected by the company is unclear because its records, particularly its financial records, are incomplete; that it has wrongfully dissipated all of those deposits apart from $82,400-odd (which remained in the company's bank account) and $187,940 (which is held in the trust account of certain lawyers who acted on behalf of the company); that there is no apparent legitimate explanation as to why the deposit moneys have been dissipated; that $1.6 million approximately of the moneys have been paid to an associated company, RIC Homes Pty Ltd; that, despite his demands and despite the directors of RIC Homes Pty Ltd promising to do so, RIC Homes Pty Ltd has not repaid the money paid to it; that the directors of The Winning Post Officer Pty Ltd have not been able or willing to give a clear explanation of what has become of the deposit moneys or to make good the loss of that money; and that the directors are associated with RIC Homes Pty Ltd and a range of other companies.

1. Mr Dinh is referred to personally from time to time in Mr Cashen’s affidavit and in the exhibits to that affidavit (including the affidavit of the liquidator), as is RIC Consulting Group Pty Ltd, another company with which Mr Dinh is associated and to which I have already referred.  Mr Dinh is also the secretary RIC Homes Pty Ltd to which the liquidator refers in his affidavit, as indicated above.

1. Mr Truong of counsel has said everything that could be said on behalf of the plaintiff.  He says that this case is exceptional because of the seriousness of the allegations that will apparently be made against Mr Dinh, including by way of the title of the segment (‘Dubious Dinh’).  He points out that, in the trailer, one of the alleged victims of the allegedly dubious land dealings calls Mr Dinh a ‘scumbag’.  However, I note that far more serious allegations (involving the alleged murder of several children) were made in the broadcast the subject of Australian Broadcasting Corporation v O'Neill,[6] but the High Court was not prepared to treat the facts of that case as exceptional.  Mr Truong also emphasises what he says is an undue singling out of Mr Dinh as compared with the other directors of The Winning Post Officer Pty Ltd, but I accept Mr Mukerjea’s response that that is really a distraction; that if Mr Dinh has been involved in conduct of the kind suggested in the material, it is really no answer to say that others have been involved as well; and that there is plenty of material to suggest that Mr Dinh, if this behaviour has indeed occurred, has been centrally involved.

   [6](2006) 227 CLR 57.

1. This is a case where the principle of free speech is particularly important.  The public interest, in the relevant sense of the media being at liberty to publish matters that may well be of considerable public interest, is to be respected and given considerable weight in the assessment of the balance of convenience in this matter.[7] 

   [7]See Hawthorn v Seven Network Ltd [2013] VSC 352 (Elliott J), [14]-[15].

1. In my opinion, this is a case in which the balance of convenience overwhelmingly favours the refusal of the application for an interim injunction and the application is refused.

1. [Discussion ensued as to costs.]

1. The application for an interim injunction will be dismissed.  The plaintiff, Jason Dinh, is to pay the defendant’s costs of today’s application on the standard basis.

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