Hafertepen v Network Ten Pty Limited

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FEDERAL COURT OF AUSTRALIA

Hafertepen v Network Ten Pty Limited [2020] FCA 1456

File number: NSD 1747 of 2019
Judgment of: KATZMANN J
Date of judgment: 12 October 2020
Catchwords:

HIGH COURT AND FEDERAL COURT — jurisdiction — whether contract to settle a proceeding within the jurisdiction of the Court and between the same parties to the original proceeding can be enforced in the Court — where proceeding dismissed in accordance with one of the terms of settlement, whether contract capable of enforcement in the original proceeding

CONTRACTS — action for defamation arising from a broadcast of a television program also uploaded to network’s website — proper interpretation of settlement agreement — where settlement agreement provided for private apology and public retractions including publication of a “clarification” on the website but did not stipulate where on the website the clarification should be placed, whether the network had failed to comply with the agreement by publishing it at the bottom of the Terms of Use page — whether the network acted in bad faith

EQUITY — specific performance of agreement to settle legal proceeding

COSTS — application for indemnity costs — whether  the network’s conduct in resisting requests for republication of the clarification in a place on the website where it was more likely to be seen was unreasonable — whether the network otherwise behaved unreasonably

Legislation:

Federal Court of Australia Act 1976 (Cth) ss 22, 37M(3), 37N, 43

Federal Court Rules 2011 (Cth) r 39.05(f)

Judiciary Act 1903 (Cth), s 39B(1A)(c)

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 9(3)
Cases cited:

Adaz Nominees Pty Ltd v Castleway Pty Ltd [2020] VSCA 201

Burger King Corporation v Hungry Jack’s Pty Ltd [2001] 69 NSWLR 558

Cirillo v Consolidated Press Property Ltd (formerly known as Citicorp Australia Ltd) (No 2) [2007] FCA 179

Commonwealth Bank of Australia v Barker (2014) 253 CLR 169

Crosby v Kelly (2012) 203 FCR 451

Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510

Dougan v Ley (1946) 71 CLR 142

Federated Engine-Drivers and Firemen’s Association of Australasia v The Broken Hill Proprietary Company Limited (1911) 12 CLR 398

Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603

Fuentes v Bondi Beachside Pty Ltd [2016] NSWSC 531; 18 BPR 35989

Gravern Holdings Pty Ltd v Yepp Rowing Pty Ltd [2014] FCA 41

Green v Sommerville (1979) 141 CLR 594

Hamod v New South Wales (2002) 188 ALR 659

Investments Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896

Jeppesons Road Pty Ltd v Di Domenico [2005] QCA 391

Lafone v Smith (1858) 3 H. & N. 735

LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575

Macteldir Pty Ltd v Dimovski (2003) 132 FCR 492

Macteldir Pty Ltd v Dimovski [2005] FCA 1528; 226 ALR 773

Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181

Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited (No 2) [2017] FCAFC 116

Mineralogy Pty…

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Details
Case
[2020] FCA 1456
Decision Date

CaseChat Overview and Summary

The case of Hafertepen v Network Ten Pty Limited involves a dispute between the plaintiff, Mr Hafertepen, and the defendant, Network Ten Pty Limited, concerning the enforcement of a settlement agreement reached in a defamation case. The agreement was intended to resolve the defamation claim arising from a broadcast segment that was uploaded to Network Ten's website. The High Court was tasked with determining whether the settlement agreement, which was between the same parties and within the jurisdiction of the Court, could be enforced. Specifically, the Court had to decide whether the agreement could be enforced after the defamation proceeding had been dismissed in accordance with one of the terms of the settlement.

The main legal issues before the Court included the proper interpretation of the settlement agreement, particularly regarding the obligations of Network Ten to publish a clarification on its website. The Court also had to determine whether Network Ten had failed to comply with the agreement by placing the clarification at the bottom of the Terms of Use page and whether it had acted in bad faith. Additionally, the Court considered the application for indemnity costs based on Network Ten's conduct in resisting the plaintiff's requests for republication of the clarification.

In its reasoning, the Court found that clause 7 of the Settlement and Release Agreement was valid and enforceable and should be specifically performed. The Court ruled that Network Ten must publish the clarification on a page of the 10play website relating to the program, The Project, starting with the URL https://10play.com.au/theproject/. The Court also ordered Network Ten to pay the plaintiff's costs on an indemnity basis, given its unreasonable conduct in resisting the requests for republication of the clarification. The Court granted liberty to either party to apply for further issues that might arise in relation to the enforcement of the agreement. The orders set aside the dismissal of the proceeding, reinstated it to the extent necessary, and mandated specific performance of the settlement agreement.

Orders

Orders of the court

1. The order made on 22 May 2020 dismissing the proceeding be set aside.

2. The proceeding be reinstated to the extent necessary to determine the applicant’s interlocutory application filed on 12 August 2020.

THE COURT DECLARES THAT:

3. Clause 7 of the Settlement and Release Agreement (Agreement) made by the parties on 24 April 2020 is valid and enforceable and should be specifically performed and carried into execution.

THE COURT FURTHER ORDERS THAT:

4. The respondent specifically perform clause 7 of the Agreement.

5. It will be sufficient compliance with order 4 if the respondent publishes the Clarification referred to in clause 7 of the Agreement, in the manner there described and for the period there referred to, on a page of the 10play website relating to the program, The Project¸ starting with the URL https://10play.com.au/theproject/.

6. The respondent pay the applicant’s costs on an indemnity basis.

7. Liberty be granted to either party to apply on two (2) days’ notice in relation to any issue that might arise in relation to the carrying into effect of order 4.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Ten opposed the application. It relied on an affidavit affirmed by Samantha de Bussey McGeoch, a solicitor then in the employ of Macpherson Kelley, which formerly acted for Ten, and evidence given by Myles Edwin Finlayson Farley, Senior Legal Counsel for Ten, who affirmed two affidavits. The background to the current dispute On 6 November 2018, on its television program The Project, Ten broadcast a segment entitled “Justice for Jack” and uploaded the segment to its website, (the 10play website). The sense and substance of “Justice for Jack” were republished by a number of media organisations around the world and copies of “Justice for Jack” were also posted on YouTube. The following year Mr Hafertepen launched a proceeding in this Court alleging that he was defamed in the segment, amongst other reasons because it conveyed the imputation that he had caused the death of “Jack” in order to inherit his estate which had been bequeathed to him in Jack’s will signed only three weeks before his death. In its defence, Ten admitted that the segment was available to users for streaming from the 10play website in Australia and that The Project Twitter account carried promotional tweets directing users to view the segment on the 10play website. But it denied that the segment defamed Mr Hafertepen in the manner alleged. In the alternative, it raised defences of justification, contextual truth, qualified privilege, and honest opinion. According to the defence, the segment remained on the 10play website for more than 10 months and was removed, without admission of liability, on the day Ten received Mr Hafertepen’s concerns notice. The defamation proceeding settled following a private mediation conducted in late February 2020. On 24 April 2020 the parties entered into a “Settlement and Release Agreement” (the Agreement) and on 22 May 2020 the Court made orders giving effect to cl 9(a), amongst other things, by dismissing the proceeding with no order as to costs and noting that the proceeding had settled on confidential terms. As part of the settlement, Ten agreed to send a letter apologising to Mr Hafertepen “for the hurt and harm caused to [him] by the broadcast of the story”. It also agreed to publish a “Clarification” in the following terms:On 6 November 2018, Network 10 aired a story about Australian man, Tank Hafertepen, formally known as Jack Chapman, who died in the United States after injecting himself with silicone.His former partner Dylan Hafertepen has brought defamation proceedings against Network 10 about the story.Network 10 did not intend to suggest and does not suggest that Mr Hafertepen had anything to do with that death. If anyone took it to mean that, then Network 10 unreservedly retracts any such suggestion.The origins and nature of the current dispute The current dispute concerns clauses 5 and 7 of the Agreement. Clause 5, which is entitled “Letters to Media Organisations”, reads:Within 28 days of the date of final execution of this Agreement, Ten shall:(a)cause the Letters to Media Organisations to be sent to the various media organisations identified in Annexure B; and(b)cause a letter to be sent to Google, as publisher of YouTube, demanding removal of the Broadcast on the ground of infringement of copyright.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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