Dupas v Channel Seven Melbourne Pty Ltd
[2012] VSC 516
•31 October 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
S CI 2012 5782
| Peter Dupas | Plaintiff |
| v | |
| Channel Seven Melbourne Pty Ltd | Defendant |
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JUDGE: | KYROU J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 October 2012 Written submissions on costs received on 26 and 29 October 2012 | |
DATE OF JUDGMENT: | 31 October 2012 | |
CASE MAY BE CITED AS: | Dupas v Channel Seven Melbourne Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 516 | |
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PRACTICE AND PROCECURE – Dismissal of application for an injunction to restrain the broadcast of two episodes of a television mini series – Decision on costs – Supreme Court Act 1986, s 24.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J F Desmond with R F Edney | Doogue & O’Brien |
| For the Defendant | R Merkel QC with R L Enbom | Corrs Chambers Westgarth |
HIS HONOUR:
On 19 October 2012, I made an order dismissing the plaintiff’s application for an injunction to restrain the defendant from broadcasting on free-to-air television episodes 9 and 10 of the mini series ‘Killing Time’. The defendant applied for costs and filed written submissions in support of its application. The plaintiff filed submissions opposing the application.
The background to the application for costs is set out in the reasons for my order of 19 October 2012, which should be read for a proper understanding of these reasons concerning the defendant’s costs application.[1]
[1]See Dupas v Channel Seven Melbourne Pty Ltd [2012] VSC 486 (19 October 2012).
The mini series comprises 10 weekly episodes which commenced on 7 October 2012. Episodes 9 and 10 portray the plaintiff’s character purporting to confess to the Andrew Fraser character that he murdered Mersina Halvagis on 1 November 1997. The plaintiff’s concern was that broadcast of these episodes would deprive him of a fair trial if the Court of Appeal quashed his conviction for the murder of Ms Halvagis and ordered a retrial. The Court of Appeal heard the plaintiff’s appeal on 26 March 2012 and reserved its decision.
The plaintiff’s solicitors first wrote to the defendant about the mini series on 28 August 2012. It appears that, at that time, the plaintiff did not know which episodes depicted the alleged confession and when they would be broadcast. The plaintiff’s solicitors sought copies of all the episodes that depicted the plaintiff and invited the defendant to contact the plaintiff’s solicitors. On 11 September 2012, the defendant’s solicitors responded with the brief statement that the defendant ‘takes its obligations to comply with the law very seriously and is well aware of [the plaintiff’s] appeal and the suppression orders currently on foot’.
The plaintiff’s solicitors wrote to the defendant’s solicitors on 1 October 2012 in response to advertisements that the mini series would commence on 7 October 2012. They sought copies of each episode and the proposed broadcasting schedule with a view to determining what action to take. They stated that the action being considered included an application for an injunction. The defendant’s solicitors did not respond.
On 12 October 2012, after the broadcast of the first episode, the plaintiff filed an originating motion seeking an injunction. The injunction application was listed for hearing in the Practice Court on 19 October 2012.
In the afternoon of 18 October 2012, the defendant filed and served an affidavit exhibiting DVDs containing episodes 1 to 8 of the mini series. In their covering letter, the defendant’s solicitors implicitly acknowledged that the alleged confession was depicted in episodes 9 and 10 and stated that those episodes were scheduled for broadcast on 2 and 9 December 2012, respectively. The letter invited the plaintiff to withdraw his application for an injunction and offered not to seek costs if the plaintiff did so that day. The basis for the offer was that the Court of Appeal might hand down its decision before 2 December 2012 and render the proceeding unnecessary if the plaintiff’s appeal against his conviction was unsuccessful. The covering letter stated that the defendant reserved its right to rely on the letter’s contents on the question of costs.
The defendant submitted that, as the application for an injunction was made in the civil jurisdiction of the Court, the normal rule that costs follow the event should apply.
The plaintiff submitted that, pursuant to the Court’s wide discretion in relation to costs under s 24 of the Supreme Court Act 1986, there should be no order as to costs. The matters upon which the plaintiff relies include the following:
(a) The proceeding was necessary because the defendant failed to respond to all reasonable enquiries of the plaintiff prior to the commencement of the proceeding.
(b) The defendant only confirmed that episodes 9 and 10 depicted the alleged confession on 18 October 2012, the day before the hearing of the injunction application. Those episodes were never provided to the plaintiff.
(c) In the event of a retrial, the question of whether the broadcast of episodes 9 and 10 would deprive the plaintiff of a fair trial would be matters for the Court to determine as part of the proper administration of justice.
(d) In the event of a retrial, the plaintiff’s position may be prejudiced if he did not attempt to restrain the broadcast of episodes 9 and 10.
(e) Although the plaintiff invoked the Court’s civil jurisdiction, his application for an injunction was in the context of his extant criminal appeal and in anticipation of an order for a new criminal trial. Therefore, his application should fall within the principle that, ordinarily, an accused person is not subject to a costs order.[2]
[2]Although s 24 of the Supreme Court Act 1986 confers on the Court ‘full power to determine by whom and to what extent … costs are to be paid’, it also provides that nothing in the section ‘alters the practice in any criminal proceeding’.
(f) An order for costs against the plaintiff would provide a disincentive for accused persons to seek non-publication orders to prevent their criminal trials from becoming unfair, to the prejudice of the administration of justice generally.
(g) As the plaintiff is a prisoner, it was difficult to obtain instructions from him in the afternoon prior to the hearing.
(h) The plaintiff is impecunious and an order for costs would be oppressive with no prospect of being met.
In my opinion, the matters set out in (a), (b), (c) and (e) above have merit. A non-publication order is made in the public interest to protect the administration of justice, rather than to vindicate a private right. However, even if it is accepted that there was a proper basis for the commencement of the proceeding, upon receipt of the defendant’s affidavit on 18 October 2012, it should have become obvious to the plaintiff’s lawyers that the application for an injunction was, at the very least, premature, and was bound to fail if it was heard on 19 October 2012 as scheduled. Properly advised, the plaintiff should have accepted the defendant’s offer to discontinue the proceeding without incurring any liability as to costs or to seek an adjournment until the end of November 2012. A discontinuance would not have prevented an application for an injunction in the future.
The alleged difficulties of the plaintiff’s solicitors in obtaining instructions from the plaintiff in the afternoon of 18 October 2012 was not the subject of any evidence. Nor was there any assertion that there were any such difficulties on 19 October 2012 prior to the commencement of the hearing. I note that the plaintiff observed the hearing by audio-visual link.
In my opinion, the plaintiff acted unreasonably in not accepting the defendant’s offer of 18 October 2012 on that day or, at the very latest, on the morning of 19 October 2012, prior to the hearing. In the light of the contents of the defendant’s affidavit of 18 October 2012, there was no public interest in the continuation of the hearing.
In all the circumstances, I will order that the plaintiff pay the costs incurred by the defendant for work performed on 19 October 2012 for the hearing on that day and that, otherwise, there be no order as to costs.
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