Reported Decision: 77 NSWLR 506
New South Wales
Court of Appeal
CITATION: Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69 HEARING DATE(S): 24 March 2010
JUDGMENT DATE:
8 April 2010JUDGMENT OF: McColl JA at 1; Young JA at 122; Sackville AJA at 161 DECISION: 1. Leave to appeal granted. 2. Draft notice of appeal in the White Book to stand as the notice of appeal in the proceedings. 3. Appeal dismissed with costs. CATCHWORDS: PROCEDURE – discovery – preliminary discovery – Uniform Civil Procedure Rules 2005 (NSW) r 5.3(1)(a) – whether appellant may have a claim for relief – asserted claims for interlocutory injunction and defamation – extent to which “fishing” allowed - PROCEDURE – discovery – preliminary discovery – Uniform Civil Procedure Rules 2005 (NSW) r 5.3(1)(a) – whether application for interlocutory injunction a “claim for relief” - PROCEDURE – discovery – preliminary discovery – relevance of likely prospects of success on application for interlocutory injunction on exercise of discretion to order preliminary discovery - INJUNCTIONS – defamation – interlocutory injunction to restrain publication – proposed justification defence – freedom of expression – prior publication of allegedly defamatory imputations - ROYAL COMMISSIONS – evidence – whether statutory prohibition on use of evidence given unwillingly can be waived – Royal Commissions Act 1923 (NSW) s 17(2) - WORDS AND PHRASES – “claim for relief” LEGISLATION CITED: Australian Human Rights Commission Act 1986
Civil Procedure Act 2005 (NSW)
Common Law Procedure Act 1854 (UK)
Defamation Act 2005 (NSW)
Evidence Act 1995 (NSW)
Interpretation Act 1987 (NSW)
New Zealand Bill of Rights Act 1990
Royal Commissions Act 1923 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Federal Court Rules
Supreme Court Rules 1970 (NSW)CATEGORY: Principal judgment CASES CITED: Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 1500
Auckland Area Health Board v Television New Zealand Ltd [1992] 3 NZLR 406
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Bayeh v New South Wales [1999] NSWSC 1070; 108 Crim R 364Black v Sumitomo Corp [2002] 1 WLR 1562
Bonnard v Perryman [1891] 2 Ch 269
Clarke v Queensland Newspapers Pty Ltd [2000] 1 Qd R 233
Cook v Pasminco Ltd [2000] FCA 677; (2000) 99 FCR 548
Cook v Pasminco Ltd (No 2) [2000] FCA 1819; (2000) 107 FCR 44
Crampton v Nugawela (1996)41 NSWLR 176
David Syme & Co v Canavan [1918] HCA 50; (1918) 25 CLR 234
Evans Marshall & Co v Bertola SA [1973] 1 WLR 349
Geoffrey W Hill & Associates v King (1992) 27
NSWLR 228
Grubb v Bristol United Press Ltd [1963] 1 QB 309
Harper v Whitby [1978] 1 NSWLR 35
Hatfield v TCN Channel Nine Pty Ltd [2010] NSWSC 161
Hornsby Shire Council v Valuer General of NSW [2008] NSWSC 1179
Ian Edward Morton v Nylex Ltd [2007] NSWSC 562
International Finance Trust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291; (2008) 232 FLR 37
Keep reading for free
Create a free CaseChat account to read Hatfield v TCN Channel Nine Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2010] NSWCA 69
- Decision Date
CaseChat Overview and Summary
The appellant, Hatfield, sought preliminary discovery from the respondent, TCN Channel Nine Pty Ltd, under rule 5.3(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW). Hatfield asserted that he might have claims for relief against TCN Channel Nine, specifically an interlocutory injunction to restrain publication and defamation. The primary dispute concerned whether Hatfield was entitled to obtain preliminary discovery to ascertain the identity of a person or persons who had allegedly made defamatory statements about him, which TCN Channel Nine had broadcast.
The court was required to determine several legal issues. Firstly, it had to consider whether an application for an interlocutory injunction constituted a "claim for relief" for the purposes of preliminary discovery. Secondly, the court needed to assess the extent to which "fishing" expeditions are permissible in the context of preliminary discovery applications. Thirdly, the court had to consider the relevance of the likely prospects of success of an application for an interlocutory injunction to the exercise of the discretion to order preliminary discovery. Finally, the court was asked to consider whether a statutory prohibition on the use of evidence given unwillingly to a Royal Commission, under section 17(2) of the Royal Commissions Act 1923 (NSW), could be waived.
McColl and Young JJA, and Sackville AJA, in dismissing the appeal, reasoned that while an application for an interlocutory injunction could be considered a claim for relief, the appellant had not demonstrated a sufficient basis to justify the grant of preliminary discovery. The court found that the appellant's application was largely a "fishing" expedition, seeking to uncover information without a sufficiently clear or arguable case. The prospects of success on an interlocutory injunction were also considered, and the court noted that the prior publication of the allegedly defamatory imputations and the potential for a justification defence, alongside freedom of expression considerations, weighed against the grant of such an injunction. The court also addressed the issue of waiver of the statutory prohibition under the Royal Commissions Act, finding it was not applicable in this context.
Leave to appeal was granted, and the draft notice of appeal was to stand as the notice of appeal. However, the appeal was ultimately dismissed with costs.
The court was required to determine several legal issues. Firstly, it had to consider whether an application for an interlocutory injunction constituted a "claim for relief" for the purposes of preliminary discovery. Secondly, the court needed to assess the extent to which "fishing" expeditions are permissible in the context of preliminary discovery applications. Thirdly, the court had to consider the relevance of the likely prospects of success of an application for an interlocutory injunction to the exercise of the discretion to order preliminary discovery. Finally, the court was asked to consider whether a statutory prohibition on the use of evidence given unwillingly to a Royal Commission, under section 17(2) of the Royal Commissions Act 1923 (NSW), could be waived.
McColl and Young JJA, and Sackville AJA, in dismissing the appeal, reasoned that while an application for an interlocutory injunction could be considered a claim for relief, the appellant had not demonstrated a sufficient basis to justify the grant of preliminary discovery. The court found that the appellant's application was largely a "fishing" expedition, seeking to uncover information without a sufficiently clear or arguable case. The prospects of success on an interlocutory injunction were also considered, and the court noted that the prior publication of the allegedly defamatory imputations and the potential for a justification defence, alongside freedom of expression considerations, weighed against the grant of such an injunction. The court also addressed the issue of waiver of the statutory prohibition under the Royal Commissions Act, finding it was not applicable in this context.
Leave to appeal was granted, and the draft notice of appeal was to stand as the notice of appeal. However, the appeal was ultimately dismissed with costs.
Orders
Orders of the court
1. Leave to appeal granted. 2. Draft notice of appeal in the White Book to stand as the notice of appeal in the proceedings. 3. Appeal dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.