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:

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.

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’.

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.

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…

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: [2018] VSC 464
Decision Date: 15 August 2018 (Ex tempore; revised 21 August 2018)

CaseChat Overview and Summary

In the matter of Dinh v Nine Network Australia Pty Ltd, the applicant sought an interim injunction to restrain the defendant from broadcasting a segment of a television program, which the applicant claimed was likely to be defamatory. The case was heard in the Federal Court of Australia, where the applicant alleged that the broadcast would cause significant damage to his reputation. The legal issues that the court needed to address involved the principles governing the grant of interim injunctions, particularly in the context of a potentially defamatory publication, and the balance between the applicant's right to protect his reputation and the respondent's right to freedom of speech and the public interest in free debate.

The court considered whether the applicant had established grounds for supposing that he may succeed on the merits of the defamation claim, and whether an injunction was necessary to prevent irreparable harm. The court held that the applicant had not demonstrated a sufficiently strong case on the balance of probabilities to warrant the grant of an interim injunction. The court found that the applicant had not provided clear and compelling evidence to establish that the publication would be defamatory. Additionally, the court considered the respondent's right to freedom of speech and the public interest in allowing the broadcast to proceed, which weighed against the grant of an injunction. The court concluded that the applicant had not met the high threshold required to obtain an interim injunction in these circumstances.

The application for an interim injunction was dismissed, and the court determined that the respondent could proceed with the broadcast as scheduled. The court emphasised the importance of balancing the competing interests of reputation, free speech, and the public interest in defamation cases, particularly when considering interim relief. The decision highlights the stringent requirements for obtaining interim injunctions in defamation cases, where the applicant must demonstrate a strong likelihood of success on the merits and a risk of irreparable harm if the injunction is not granted.

Orders