Hatfield v TCN Channel Nine Pty Ltd

[2010] NSWSC 161

CITATION:	Hatfield v TCN Channel Nine Pty Ltd [2010] NSWSC 161
HEARING DATE(S):	3 March 2010 and 10 March 2010
JUDGMENT DATE :	12 March 2010
JUDGMENT OF:	Harrison J
DECISION:	The plaintiff's summons is dismissed.
CATCHWORDS:	DEFAMATION – preliminary discovery – UCPR 5.3 – plaintiff former constable of police - where plaintiff anticipates that she will be unfavourably portrayed in an upcoming television drama series Underbelly: The Golden Mile to be screened nationally – whether publication of defamatory matter has occurred – whether it appears to the court that the plaintiff may be entitled to make a claim for relief – whether plaintiff unable to obtain sufficient information to decide whether or not to commence proceedings – whether interlocutory injunction would be granted to restrain the broadcast in any event – EVIDENCE – admissibility – tender of transcript of evidence given by the plaintiff at Wood Royal Commission – Royal Commissions Act 1923 s 17 – privilege against self-incrimination – whether privilege waived by formulation of imputations referring to the evidence given in the Royal Commission – whether evidence relevant – whether evidence prejudicial etc – s135 Evidence Act 1995 – discretion to exclude – summons dismissed.
LEGISLATION CITED:	Crimes Act 1900 Defamation Act 2005 Evidence Act 1995 Royal Commission (Police Service) Act 1994 Royal Commissions Act 1923
CATEGORY:	Procedural and other rulings
CASES CITED:	Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Bayeh v New South Wales (1999) 108 A Crim R 364 Chappell v TCN Channel Nine Pty Ltd 14 (1988) NSWLR 153 Church of Scientology of California Incorporated v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344 Harper v Whitby [1978] 1 NSWLR 35 Hartmann v Commissioner of Police (1997) 91 A Crim R 141 Heartcheck Australia Pty Ltd v Channel 7 Sydney Pty Ltd [2007] NSWSC 555 Hood (1997) 91 A Crim R 526 Ian Edward Morton v Nylex Ltd [2007] NSWSC 562 Naoum v Dannawi [2009] NSWCA 253 R v Bayeh [1999] NSWCCA 82 St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147 Standard Chartered Bank v Antico (1993) 36 NSWLR 87 The New South Wales Solicitors Mutual Indemnity Fund v The Hancock Family Memorial Foundation Ltd [No 2] [2009] WASCA 146
PARTIES:	Wendy Gaye Hatfield (Plaintiff) TCN Channel Nine Pty Ltd (First Defendant) Nine Network Australia Pty Ltd (Second Defendant) Screentime Pty Ltd (Third Defendant)
FILE NUMBER(S):	SC 2010/045147
COUNSEL:	S T Chrysanthou (Plaintiff) B R McClintock SC (First and Second Defendants) A Leopold SC with J S McLeod (Third Defendant)
SOLICITORS:	Kalantzis Lawyers (Plaintiff) Johnson Winter & Slattery (First and Second Defendants) Cropper Parkhill (Third Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

12 March 2010

2010/45147 Wendy Gaye Hatfield v TCN Channel Nine Pty Ltd, Nine Network Australia Pty Ltd and Screentime Pty Ltd

JUDGMENT

1 HIS HONOUR: By her Summons filed on 19 February 2010 the plaintiff seeks preliminary discovery orders against the defendants as follows:

(a) An order pursuant to UCPR 5.3 that the defendants give preliminary discovery of any episode of the television series known as " Underbelly: The Golden Mile " in which the plaintiff is named, depicted (by an actor or picture or otherwise) and/or referred to.

(b) An order pursuant to UCPR 5.3 that the defendants give preliminary discovery of the transcript of any episode of the television series known as " Underbelly: The Golden Mile " in which the plaintiff is named, depicted (by an actor or picture or otherwise) and/or referred to.

Background

2 The plaintiff was formerly a member of the New South Wales Police Service. She retired in 1997. Before doing so she gave evidence at the Royal Commission into police corruption presided over by Justice JRT Wood, formerly of this Court.

3 The first defendant is the licensee of the television station TCN Channel 9 and is said to be the prospective broadcaster of the upcoming series entitled "Underbelly: The Golden Mile". The second defendant is the producer and distributor of the series and will broadcast it throughout Australia on stations affiliated with the Nine Network. The third defendant is the production company responsible for making the series.

4 In January 2010 John Silvester and Andrew Rule published a book written by them entitled "Underbelly: The Golden Mile". The book is primarily, but not exclusively, concerned with events that took place in Kings Cross in the mid to late 1980s and the Wood Royal Commission in the 1990s. The principal characters in the book are certain well-known identities including John Ibrahim, Kim Hollingsworth, Graham "Chook" Fowler, the Bayeh brothers, Trevor Haken, George Freeman and the plaintiff. Chapter 3 of the book contains references to the plaintiff and her alleged relationship with John Ibrahim. A number of assertions are made about her, including the following:

(a) She spoke with a Swedish accent, despite being from Melbourne.

(b) She slept her way through training.

(c) She failed the police driving test twice.

(d) It was clear to fellow police officers that she had "no major thought process going on".

(e) She was a regular at John Ibrahim's nightclub – a man who was a new power in the drug scene.

(f) She told a highway police officer that she was a Kings Cross police officer in order to help John Ibrahim avoid penalty for driving whilst unlicensed.

(g) She had been to a murder scene in Kings Cross that involved John Ibrahim.

(h) A number of alleged improprieties occurred that were linked to her relationship with John Ibrahim.

(i) Her relationship with John Ibrahim and her subsequent evidence before the Wood Royal Commission forced her to resign from the police force.

(j) She punched a photographer.

(k) She committed perjury.

(l) She attempted to buy/obtain drugs from a nightclub bouncer.

(m) She "should keep her head well down, her gear on and not throw any punches. But some people never learn".

5 The plaintiff contents that this chapter of the book gives rise to a number of defamatory imputations about her, all of which she denies. They include the following:

(a) The plaintiff, a police officer, had a sexual relationship with John Ibrahim, knowing him to be a notorious criminal.

(b) She achieved promotion in the police service by granting sexual favours.

(c) She is a person of little intelligence.

(d) She is a hypocrite, in that she asserted to the Wood Royal Commission that she detested police corruption, but was herself corrupt.

(e) She was guilty of misconduct in relation to John Ibrahim's avoiding prosecution for unlicensed driving, condoning [sic] lies he told to police.

(f) She was guilty of misconduct in becoming intimately involved with John Ibrahim, who she knew to be a criminal.

(g) She was guilty of a number of acts of misconduct by reason of her relationship with John Ibrahim, a criminal.

(h) She was exposed as corrupt in the mass media and the Wood Royal Commission, and forced to resign from the police service.

(j) She was guilty of misconduct in relation to the death of a drug dealer (Assad), acting as John Ibrahim's "tame cop girlfriend".

(k) She was guilty of perjury.

(l) In the alternative to (k), she so conducted herself as to warrant prosecution for perjury.

6 The first and second defendants are advertising that they will soon be broadcasting the series on Channel 9 nationwide. The precise dates of the broadcast of the series by the first and second defendants are unknown to the plaintiff but it would appear to be imminent. The series is the third of its kind, following "Underbelly", and "Underbelly: A Tale of Two Cities". Those television series were extremely popular and topped the ratings at the time of their broadcast, apparently having been viewed by a television audience of millions of people throughout Australia.

7 The series is colourfully described on the first and second defendants' website. Kings Cross was where "strong and honest police fought to take back control of the most infamous strip in Australia." This is referred to in more detail below.

8 The series was also promoted in TV Week and in OK! magazine in January 2010. Both magazines are published by ACP Magazines, which the plaintiff characterised as "the magazine arm of" PBL Media Pty Ltd, which the plaintiff also alleged was owned by the same ultimate holding company as the first and second defendants. The three companies also have the same registered office.

9 The principal characters in the series appear to include John Ibrahim, Kim Hollingsworth, the Bayeh brothers, Trevor Haken, George Freeman and "Chook" Fowler. One of the actors starring in the series is Jessica Tovey who appears as "Junior Constable Wendy Hatfield", sometimes elsewhere described as "Constable Wendy", who also appears to be one of the lead characters in the series. The character "Constable Wendy" is apparently portrayed as a woman who is engaged in a sexual relationship with the character John Ibrahim in the series.

10 The plaintiff is concerned that the series is either based upon or will at least mirror the book and that it will broadcast material depicting her that will give rise to the same or similar defamatory imputations.

11 The plaintiff relied upon three affidavits sworn by her solicitor. Considerable documentary material was annexed to these affidavits. Some of this is referred to later in these reasons. The defendants objected to much of it upon the basis that the various sources of this information were patently unreliable or incapable of verification or both. This included considerable information downloaded from internet sites where the content of the posted material was in many cases no more than a miscellaneous collection of unsolicited contributions from members of the public. Some of the sources were articles appearing in magazines that the plaintiff contended were within the corporate thrall of the defendants or some of them. Other sources consisted in advertising and promotional material for the series or that might fairly be regarded as such. The upshot of these competing contentions is that some caution needs to be exercised when assigning weight to any particular publication that is said to contain material about what the plaintiff claims the upcoming series is likely to contain or say or imply about the plaintiff. Websites maintained by The Daily Telegraph, The Sydney Morning Herald, The Australian, and a Wikepedia website, none of which had either a direct or indirect connection with or authority from any of the defendants and no guarantee or assurance of accuracy, all fell into this category.

12 Not all of the material tendered by the plaintiff was so frail. The plaintiff relied upon information downloaded from websites maintained independently by the first and third defendants. Those defendants respectively contended that nothing appearing in the other's site was admissible against them. However, for reasons that will shortly emerge, the defendants' individual and collective sensitivities about these matters ultimately, and to some extent inevitably, retreated in importance. This is explained below.

Preliminary discovery

13 UCPR 5.3 is in the following relevant terms:

" 5.3 Discovery of documents from prospective defendant

(1) If it appears to the court that:


(a) the applicant may be entitled to make a claim for relief from the court against a person ( the prospective defendant ) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and

(b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and

(c) inspection of such a document would assist the applicant to make the decision concerned,


the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.

(2) An order under this rule with respect to any document held by a corporation may be addressed to any officer or former officer of the corporation.

(3) Unless the court orders otherwise, an application for an order under this rule:


(a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and

(b) must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed.

(4) …"

14 White J had cause to consider this provision in Ian Edward Morton v Nylex Ltd [2007] NSWSC 562. At [25] and [27] his Honour said this:

"[25] The first of the requirements in r 5.3(1)(a) is that it appear to the Court that the applicant may be entitled to make a claim for relief against the prospective defendant. In order for it to 'appear' to the Court that the applicant 'may be entitled' to make a claim for relief, it is not necessary for the applicant to show a prima facie or pleadable case. On the other hand, the mere assertion of a case is insufficient. It will be sufficient if there is reasonable cause to believe that the applicant may have a right of action against the respondent resting on some recognised legal ground ( Panasonic Australia Pty Ltd v Ngage Pty Ltd (2006) 69 IPR 595 per Young CJ in Eq at 589 [20] and 599 [27]).

*****

[27] Rule 5.3 does not authorise the making of an order for preliminary discovery to enable a plaintiff to decide whether to sue third parties. The order can only be made against a prospective defendant where it appears that the applicant may be entitled to make a claim against that person."

15 His Honour continued at [33] in these terms:

"[33] The onus is on the plaintiffs to make it appear to the Court that, having made reasonable inquiries, they are unable to obtain sufficient information to decide whether or not to commence proceedings against Nylex. The third requirement of r 5.3(1)(a) requires an objective assessment of the information already possessed by the plaintiffs to determine whether that information is sufficient for such a decision to be made. The question is whether the applicant has insufficient information to be able to decide whether to institute proceedings; not merely to establish a cause of action. Hence, an applicant may be entitled to preliminary discovery of documents relevant to available defences, or the extent of apprehended breaches, or the likely quantum of damages, as well as of documents which may establish whether there is a cause of action. However, unless the applicant is lacking something reasonably necessary to make a decision whether to institute proceedings, he or she is not entitled to preliminary discovery. An applicant must disclose what information he or she already has relevant to making such a decision, and identify what information is lacking. Preliminary discovery cannot be used to build up a case which an applicant has already decided, or could decide, to bring ( Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd (Lindgren J, Federal Court of Australia, 24 May 1996, unreported); St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 at 154 [26]; Glencore International AG v Selwyn Mines Ltd (recs and mgrs apptd) (2005) 223 ALR 238 at 241 [15]; Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591 at [15]-[19], [25])."

16 With regard to the equivalent Federal Court Rules, Hely J in St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147 at [26] summarised the principles as follows:

"[26] The following propositions emerge from the authorities in which the proper application of Order 15A r 6 has been considered by judges of this Court:

(a) the Rule is to be beneficially construed, given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the Court, exercised in the particular circumstances of each case: Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728 at 733; Minister for Health & Aged Care v Harrington Associates Ltd [1999] FCA 549 at [27];

(b) each of the elements prescribed in sub-paragraphs (a), (b) and (c) of the rule must be established: Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1 at [38]. Preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves: Airservices Australia v Transfield Pty Ltd [1999] FCA 886 at [5];

(c) the test for determining whether the applicant has 'reasonable cause to believe', as required by sub-paragraph (a), is an objective one: Hooper at [39]; Malouf v Malouf [1999] FCA 710 at [16]; Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at [24]; Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 391; BC 9602085 at 23. Further, the words 'or may have' cannot be ignored. The applicant does not have to make out a prima facie case: Quanta Software at [24]; Paxus Services at 733;

(d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action: John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 at [13], [14], [17] and [73];

(e) whilst uncertainty as to only one element of a cause of action might be compatible with the 'reasonable cause to believe' required by subparagraph (a), uncertainty as to a number of such elements may be sufficient to undermine the reasonableness of the cause to believe: Glowatzky v Insultech Group Pty Ltd (1997) 39 IPR 215;

(f) the question posed by sub-paragraph (b) of the rule is not whether the applicant has sufficient information to decide if a cause of action is available against the prospective respondent. The question is whether the applicant has sufficient information to make a decision whether to commence proceedings in the Court: Quanta Software at [33] – [34], Alphapharm at 24-26. Accordingly, an applicant for preliminary discovery may be entitled to discovery in order to determine what defences are available to the respondent and the possible strength of those defences, or to determine the extent of the respondent's breach and the likely quantum of any damages award: CGU Insurance Ltd v Malaysia International Shipping Corp Berhad (2001) 187 ALR 279 at [21]; Quanta Software at [33] – [34], Alphapharm at 24-26, Airservices Australia at [5];

(g) whether an applicant has 'sufficient information' for the purposes of sub-paragraph (b) also requires an objective assessment to be made: Minister for Health at [44]; Alphapharm at 23-24, Hooper at [40]. The sub-paragraph contemplates that the applicant is lacking a piece (or pieces) of information reasonably necessary to decide whether to commence proceedings;

(h) it is no answer to an application under the rule to say that the proceeding is in the nature of a 'fishing expedition': Paxus Services at 733. Indeed Order 15A r 6 'expressly contemplates' what once might have been castigated as 'fishing': Bailey v Beagle Management Pty Ltd [2001] FCA 60 ; (2001) 105 FCR 136 at [27]. As Burchett J commented in Paxus Services, the rule is (at 733):

'... designed to enable an applicant, in a situation where his proof can rise no higher than the level the rule describes, to ascertain whether he has a case against the prospective respondent ...'."

17 My attention was also drawn by the third defendant to what was said by McLure JA in The New South Wales Solicitors Mutual Indemnity Fund v The Hancock Family Memorial Foundation Ltd [No 2] [2009] WASCA 146 at [10] in these terms:

"[10] Order 26A r 4 has been the subject of appellate consideration in this court on a number of occasions. In McCarthy v Dolpag Pty Ltd [2000] WASCA 106, Anderson and Scott JJ said of O 26A r 4:

'There is no doubt that caution must be exercised before making an order and that such orders should not be made as a matter of course. They should only be made when reasonably necessary to achieve the proper administration of justice ... It must be remembered that discovery 'constitutes a very serious invasion of privacy and confidentiality [and] the process should not be allowed to place upon a litigant any harsher or more oppressive burden than is strictly required' ... and this is a fortiori the position where the discovery is sought before action and is for the purpose of determining whether or not there is an issue to litigate'."

The evidence

18 The plaintiff sought to rely upon the following material. The defendants objected to much of it.

19 A copy of a page taken from the third defendant's website on 18 February 2010 is entitled "Productions". It contains a subheading "Underbelly – The Golden Mile". The following appears within a box on the page:

" DRAMA SERIES FOR THE NINE NETWORK

The cops were bent and the crims were cool. And together they ran the most exciting street in Australia.

Strippers, gamblers, gunmen, dealers, bouncers, bagmen – they all came to the Golden Mile.

A smart and sexy young Kim Hollingsworth, smiling teenage Kings Cross identity John Ibrahim, the Bayeh Brothers, Trevor Haken, Chook Fowler…the Golden Mile was their playground, and they played like there was no tomorrow.

Then, in 1995, 'tomorrow' came and the Wood Royal Commission cleaned out the Black Empire within the NSW Police.

But it left behind a mess that took years of mayhem to bring under control.

UNDERBELLY : The Golden Mile is the story of the excesses of the empire, the collapse of the empire, the chaos that followed, and the ultimate victory of strong and honest police…seen through the eyes of some of the most sexy, charming, corrupt and deadly people of the time.

Underbelly: The Golden Mile John Ibrahim…

Underbelly: The Golden Mile Kim Hollingsworth… "

20 The same page also refers to "Reviews and Related Articles" under which description are to be found these lines:

" UNDERBELLY BACK FOR THIRD SERIES – THE GOLDEN MILE, SYDNEY CONFIDENTIAL, AUGUST 2009

THE GOLDEN MILE AN UNDERBELLY WINNER WITH A BULLET, THE DAILY TELEGRAPH, AUGUST 2009

UNDERBELLY: THE GOLDEN MILE FIRST REVIEW, TV FIX, JANUARY 2010

KINGS OF THE CROSS SMELLING LIKE ROSES IN THE NEXT UNDERBELLY, THE DAILY TELEGRAPH, JANUARY 2010

THIRD UNDERBELLY FOCUSES ON SYDNEY'S SLEAZE, NINEMSN, JANUARY 2010 "

21 The first defendant's website on the same day included the following material:

"Underbelly 3: The Golden Mile

Underbelly is returning soon with a brand new series, The Golden Mile .

---------------------------------------------------------------------------------

Underbelly: The Golden Mile is set in Kings Cross in 1989, where bent cops, straight cops, cool criminals and colourful characters all converged to make their mark. But by 1995 the Wood Royal Commission had put the 'black empire' under threat of collapse as strong and honest police fought to take back control of the most infamous strip in Australia."

22 The Daily Telegraph website extracted on 18 February 2010 also refers to the series. It commences with the statement that "The Sunday Telegraph can reveal the new series will pick up where hit man Chris Flannery, drug dealer Robert Trimbole, and race fixer and illegal gambling den owner George Freeman left off in Underbelly: A Tale of Two Cities". It proclaims that the series will be filmed in and around Sydney in August (2009) and will focus on the decade from 1989 to 1999. There is a reference to the plaintiff in the following terms:

"No charges were laid against Mr Ibrahim following the inquiry. He was 25 when he gave evidence before the Commission and for six years had been the owner of the Kings Cross nightclub Tunnel Cabaret. He told the Commission he had had a two-month affair with a young constable from Kings Cross police, Wendy Hatfield.

The Commission heard Mr Ibrahim and Ms Hatfield took a midweek getaway to go out on a dive boat off Forster.

Ms Hatfield, who resigned from the force, denied at the Commission she had had a sexual relationship with Mr Ibrahim but accepted she did go away with him on the dive boat."

23 The Wikipedia website extracts upon which the plaintiff sought to rely in these proceedings makes considerable reference to Underbelly and Underbelly: A Tale of Two Cities but it makes no reference either to Underbelly: The Golden Mile or to the plaintiff.

24 The plaintiff also sought to rely upon material to be found in documents downloaded on 2 March 2010 from the IMBd website. It purports to be a forum to which Jessica Tovey, the actor apparently cast as the plaintiff in the series, contributes information about it and about her upcoming role. The hard copy of what the site contains is less informative than when the site is utilised electronically as the hyperlinks are not freely accessible and arguably contain some information that the plaintiff wishes to emphasise. It is at least apparent that Jessica Tovey plays "Junior [sic] Constable Wendy Hatfield". There is some suggestion that she appears in five episodes although that is by no means certain. The site in the form presented in evidence before me is cryptic in the extreme. It contains no details of the series and no details of or concerning the plaintiff other than those that I have noted.

25 The plaintiff tendered extracts from the Home and Away internet forum backtothebay.com/forum as at 2 March 2010. The defendants challenged this source of information as something less than a respectable journal of record and inadmissible against them on any basis. The plaintiff submitted that the TV Week magazine was in the stable of at least the first defendant and that its evidentiary value was greater for this.

26 The extracted material refers to Ms Tovey in terms such as "I've seen Jess in one of the Underbelly promos. She was running around in a cop uniform. Probably a young constable by the looks of it." A more substantial piece appears in the following terms:

" JESSICA TOVEY

Previously known as: Belle in Home And Away

Soon to be known as: Wendy, an attractive junior constable in Kings Cross.

* As Belle, she was often entangled with the cops in Summer Bay, but Jessica's excited to now be donning a uniform herself for her new role.

'I saw it as a real opportunity to show audiences I can do more than just run along a beach in a bikini!' she says.

Underbelly is famous for its sex scenes – and Jess reveals her character does have an intimate relationship. 'The Australian public might see a little more of me than they want to!' she laughs."

27 One of the pages has a large colour photograph of Ms Tovey in what is apparently the uniform of a constable in the New South Wales police.

28 OK! magazine also contains a feature entitled "Inside Underbelly". Ms Tovey is pictured on the cover. The article touts the proposition that the magazine "walks the mean streets of 90s Kings Cross to talk to the stars of the latest series of the hit crime drama". Ms Tovey is referred to as someone who plays "Constable Wendy" in the series. A full-page article on her, accompanied by a series of photographs, including another photograph of her as a police constable, is in these terms:

" Jessica Tovey

CONSTABLE WENDY

W endy is a bit of a rookie cop. She's new to Kings Cross,' says Jessica, 22, whose acting credits include Home and Away and Rescue Special Ops . 'She's really tough. You know, being a woman in the police force you have to be strong willed. She has a huge sense of justice, but is quite conflicted because in Kings Cross you play by a different set of rules. It's about keeping the peace, not starting wars.'

Were you able to talk to the real Constable Wendy about your role?
She's not based on one person. I researched stories of lots of women on the beat. I was allowed to use imagination and put a bit of myself in her. It's nice when you're not bound to historical facts.

Do you have any crazy fight scenes?
Quite a few. I arrest an aggressive character fuelled up on drugs – he had to grab me by the neck and throw me across the bed and I had to jump on him and push him against the wall. The next day our bodies were aching. I love doing stunts!

Has this changed your view of Kings Cross?
I met a lot of colourful characters when we were filming. It's like this whole other world. I had never been to a strip club outside of filming Underbelly .

Do you ever take the character home with you?
If it's a really heavy scene, it's difficult to leave at the door. You get scared and wonder, what if something goes wrong? I have so much respect for cops and the situations they get into."

29 A series of photographs of advertising billboards lining the M4 motorway were also tendered. They appear to show Jessica Tovey in her police uniform in various poses, including what appears to be an embrace, with an actor who is identifiable as the character of John Ibrahim in the series. The plaintiff contends that this is inferentially a depiction of her in an intimate relationship with Mr Ibrahim.

30 The plaintiff also tendered a copy of the book Underbelly: The Golden Mile by John Silvester and Andrew Rule.

Exhibit 1

31 The first and second defendants tendered a transcript of what purported to be evidence given to the Wood Royal Commission on 25 September 1996 by the plaintiff. I admitted that transcript as an exhibit, subject to hearing argument from the plaintiff on a series of objections that she wished to take to it. This approach was adopted simply as a matter of convenience and because at the time of the tender the plaintiff had not had an opportunity to inspect or examine the transcript and was not in a position to formulate a complete response to it. In the events that occurred, a further hearing was allocated to consider the parties' respective positions on the tender. The third defendant did not participate in that course.

32 The plaintiff's objections were as follows:

1. The authenticity of the transcript was doubtful.

2. The transcript had not been proved in accordance with s 48 of the Evidence Act 1995 .

3. It was irrelevant to the present application.

4. The tender contravened the Royal Commissions Act 1923 .

5. It is inadmissible hearsay.

6. It is unfairly prejudicial, misleading or confusing and would cause an undue waste of time.

33 These grounds are dealt with in turn.

Authenticity

34 The plaintiff contended that the first and second defendants had not disclosed the source of the transcript. She submitted that it did not have any features on its face that would tend to prove its authenticity. No other submissions were made.

35 The whole document is 117 pages long, although not all of it related to evidence said to have been given by the plaintiff. Her evidence covers 60 pages. It appears on its face to be what the defendants say that it is, being the whole of the evidence given by every witness that appeared and gave evidence to the Wood Royal Commission on 25 September 1996. If there were any serious doubt about it, it could be dispelled quite easily by the plaintiff herself. Having regard to the overriding purpose it does not seem to me to be profitable or realistic on this application to require the defendants strictly to prove this document.

36 I am satisfied that the exhibit is what the first and second defendants assert it to be.

Section 48

37 Section 48 of the Evidence Act is in the following terms:

" 48 Proof of contents of documents

(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:


(a) adducing evidence of an admission made by another party to the proceeding as to the contents of the document in question,

(b) tendering a document that:


(i) is or purports to be a copy of the document in question, and

(ii) has been produced, or purports to have been produced, by a device that reproduces the contents of documents,


(c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing)-tendering a document that is or purports to be a transcript of the words,

(d) if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it-tendering a document that was or purports to have been produced by use of the device,

(e) tendering a document that:


(i) forms part of the records of or kept by a business (whether or not the business is still in existence), and

(ii) is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary,

(f) if the document in question is a public document-tendering a document that is or purports to be a copy of the document in question and that is or purports to have been printed:


(i) by a person authorised by or on behalf of the government to print the document or by the Government Printer of the Commonwealth or by the government or official printer of another State or a Territory, or
(ii) by the authority of the Government or administration of the State, the Commonwealth, another State, a Territory or a foreign country, or

(iii) by authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament.


(2) Subsection (1) applies to a document in question whether the document in question is available to the party or not.

(3) If the party adduces evidence of the contents of a document under subsection (1) (a), the evidence may only be used:


(a) in respect of the party's case against the other party who made the admission concerned, or

(b) in respect of the other party's case against the party who adduced the evidence in that way.

(4) A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by:


(a) tendering a document that is a copy of, or an extract from or summary of, the document in question, or

(b) adducing from a witness evidence of the contents of the document in question."

38 The plaintiff submitted that the transcript had not been tendered in accordance with any of those provisions and therefore its contents cannot be proved. No other submission was made.

39 I disagree. There is nothing ambiguous about the opening words of the section that say that a "party may adduce evidence of the contents of a document in question by tendering the document in question". In this case the defendants tendered the document in question. No issue arises for consideration of any of the alternative methods, emphasised by use of the word "or" following the words just quoted, of proving the contents of a document to which the section refers.

Relevance

40 Section 56 of the Evidence Act provides as follows:

" 56 Relevant evidence to be admissible

(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2) Evidence that is not relevant in the proceeding is not admissible."

41 Section 55 of the Act defines "evidence that is relevant in a proceeding" as "evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". The plaintiff submitted that the transcript is irrelevant to the determination of the present application where all that the plaintiff needs to establish is that she may have a claim for relief against the defendants or one of them. According to the plaintiff, the defendants have not identified any relevant fact in issue on the present application that the transcript could rationally affect. It is therefore said to be inadmissible.

42 The defendants contended that the purpose of the tender of the transcript was to establish that they had a viable answer to any prospective proceedings for an injunction to restrain the broadcast that the plaintiff might commence based on the imputations contained in the material deposed to by Mr Kalantzis at [5]. The defendants' response to these proceedings has been to anticipate that the plaintiff has such injunctive relief in mind. To that extent their ability to prove or refer to the likelihood that they have a defence to one or some of the allegations becomes a potentially relevant consideration in the present application. Although the defendants have sought principally to confront the prospect of the plaintiff ultimately succeeding to establish a basis for injunctive relief on well-known principles to which I refer later in these reasons, there is also scope for them to promote their chances of successfully defending the proceedings as grounds for the refusal of such relief. The evidence is potentially relevant for that purpose at least.

Royal Commissions Act 1923

43 Section 17 of the Act is in the following terms:

" 17 Answers and documents

(1) A witness summoned to attend or appearing before the commission shall not be excused from answering any question or producing any document or other thing on the ground that the answer or production may criminate or tend to criminate the witness, or on the ground of privilege or on any other ground.

(2) An answer made, or document or other thing produced by a witness to or before the commission shall not, except as otherwise provided in this section, be admissible in evidence against that person in any civil or criminal proceedings.

(3) Nothing in this section shall be deemed to render inadmissible:


(a) any answer, document or other thing in proceedings for an offence against this Act,

(b) any answer, document or other thing in any civil or criminal proceedings if the witness was willing to give the answer or produce the document or other thing irrespective of the provisions of subsection (1),

(c) any book, document, or writing in civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing.


(4) This section shall not have effect unless in the letters patent by which the commission is issued, or in other letters patent under the Public Seal, the Governor declares that the section shall apply to and with respect to the inquiry.

(5) A declaration under section 15 that the provisions of this Division are to have effect is not sufficient to apply this section unless the declaration specifically states that this section shall apply to and with respect to the inquiry."

44 The plaintiff relevantly gave evidence before the Wood Royal Commission as an "unwilling witness". Section 5 of the Royal Commission (Police Service) Act 1994 provides that its provisions are in addition to, and not in derogation of, any provisions of the Royal Commissions Act. Section 9 of the former Act is as follows:

" 9 Self-incrimination

(1) This section applies where, under section 6 or 7, the Commissioner requires any person:


(a) to produce any statement of information, or

(b) to produce any document or other thing.


(2) If the statement, document or other thing tends to incriminate the person and the person objects to production at the time, neither the fact of the requirement nor the statement, document or thing itself (if produced) may be used in any proceedings against the person (except proceedings for an offence against this Act or the 1923 Act).

(3) They may however be used for the purposes of the Commission's inquiry, despite any such objection."

45 In Hartmann v Commissioner of Police (1997) 91 A Crim R 141, Cole JA said this at 147:

"The principle that the ingrained nature of the protection against self incrimination requires a strict construction of provisions said expressly or impliedly to remove that protection also requires that a liberal interpretation be given to the protective provisions in a statute purporting to protect a person from the consequences of the abrogation of the protection against self incrimination. In my judgment it is plain that the combined consequences of ss 6 and 7 of the Royal Commission (Police Service) Act, and of s 17(1) of the Royal Commissions Act is to remove the privilege against self incrimination. The compensatory protections are given by ss 9 and 12 of the Royal Commission (Police Service) Act and s 17(2) Royal Commission Act. The words 'in any civil or criminal proceedings' in s 17 are not to be narrowly construed but are to be read as expressing the legislature's intention that statements of evidence, or documents, or oral evidence produced to or given to the Police Royal Commission are not available as evidence against the person providing or giving the statement, document or evidence in any future proceedings, howsoever they are categorised. The expression 'any civil or criminal proceedings' was intended to encompass the full category of possible future proceedings."

46 In Hood (1997) 91 A Crim R 526, Smart J said this at 536-537:

"Where a statute abrogates the privilege against self-incrimination and confers compensatory protection, the court must construe the ambit of that statutory protection. A technical or narrow approach should not be adopted having regard to the importance of that privilege."

47 In that case, a police officer who had given evidence unwillingly and over objection before the Wood Royal Commission later pleaded guilty to offences against the Crimes Act 1900 s 309(3)(e). At the sentencing hearing he was cross-examined about the evidence he gave and whether he had attempted to mislead the Commission. His Honour held that the officer should not have been required to answer the question regarding his evidence at the Royal Commission as it tended to incriminate him. The privilege against self-incrimination that applied was the common law privilege and the provision of s 17 of the Act, which abrogates the common law privilege, did not apply because the question was asked at the sentencing proceedings, not at the Royal Commission.

48 The plaintiff contended that the transcript of the plaintiff's evidence in this case is not admissible against her in any proceedings and so is not admissible in these proceedings. None of the exceptions in s 17(3) applies.

49 The first and second defendants contended that the transcript was admissible for four reasons:

1. The plaintiff has not established that she was unwilling to give the answer she gave in the transcript: see s 17(3)(b). In this connection, it is not sufficient that the Royal Commissioner made a declaration under s 12 of the 1994 Act in respect to the plaintiff.

2. These proceedings or any subsequent interlocutory injunction proceedings are within the s 17(3)(c) exception in that such proceedings are "for or in respect of any right or liability conferred or imposed by" the transcript.

3. Section 17 does not operate so as to exclude evidence that the witness in question made certain statements. The position is analogous to parliamentary privilege where Hansard may, in accordance with a long line of authority, be tendered to prove things said in Parliament.

4. The plaintiff has waived any entitlement to object under s 17 by bringing these proceedings and, specifically, by reading paragraphs 8 and 9 of Mr Kalantzis' affidavit of 18 February 2010.

50 The first proposition is simply wrong. The transcript clearly indicates that at the commencement of her evidence the plaintiff assented to the proposition put to her by counsel assisting the Commission that she still "wished to give evidence unwillingly". Nothing could be clearer. The fact that the plaintiff is said by the first and second defendants to have come forward voluntarily as a witness to give evidence to the Royal Commission is quite different from the fact that she proceeded to give that evidence unwillingly with the associated statutory protection afforded to her in respect of evidence given in that way.

51 Nor do I agree that these proceedings or any subsequent interlocutory injunction proceedings are within the s 17(3)(c) exception in that they are proceedings "for or in respect of any right or liability conferred or imposed by" the transcript. The defendants argue that defences created by sections of the Defamation Act 2005, such as s 25, s 26 and s 29, are relevantly rights conferred upon the defendants by the transcript. They ask rhetorically how they or a similarly placed defendant in defamation proceedings relying upon a defence of fair protected report could prove that they had accurately reported what occurred at a Royal Commission other than by tendering the transcript. The defendants characterised any conclusion that prevented them from relying upon the transcript in such circumstances as "so anomalous and absurd that … it cannot have been intended by the legislature".

52 The defendants asserted that by virtue of s 17(3)(c), any book, document, or writing is admissible in civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing. The defendants contended that the transcript was a writing that conferred a right upon them, presumably to defend the plaintiff's claim in defamation against them.

53 In my opinion there are difficulties with that submission. Section 17(3)(c) is concerned with proceedings in which the right conferred or liability imposed is the subject matter of the proceedings. This flows from the words "for or in respect of". These proceedings are not concerned with any right or liability conferred or imposed by the transcript. The fact that the defendants may wish to rely upon the transcript to prove the facts necessary to establish a defence does not mean that the proceedings are "for or in respect of" the transcript that they wish to use for that purpose. It seems to me that s 17(3)(c) is intended to avoid the consequence that would have flowed if the book, document or writing that conferred a right or imposed a liability could not be tendered or used in later civil proceedings seeking in effect to enforce the right or liability. If it were otherwise, the unfortunate and unintended result would have been that the practical utility and value of a book, document or writing might be lost as a collateral effect of its compulsory production pursuant to s 17(1) and the realisation of that right or liability would thereby be frustrated. The transcript of the plaintiff's evidence in the Royal Commission is not a document contemplated by the provision.

54 Contrary to the defendants' third submission, s 17 does operate to exclude evidence that the witness in question, in this case the plaintiff, made certain statements. That is what the section says, as confirmed by the Court of Appeal in Hartmann. The passage at 147 taken from the judgment of Cole JA in that case does not seem to me to be susceptible of any misunderstanding.

55 The material contained in par 8 of Mr Kalantzis' affidavit is the material set forth above at [5]. At par 9 of his affidavit Mr Kalantzis confirms the plaintiff's denial of the allegations. The defendants contend that the plaintiff has thereby waived the privileged status of the transcript because she impliedly relies upon what it contains to make good her allegations against the defendants. The argument is developed in the following way.

56 The protection granted by s 17 is a privilege and like all privileges may be waived by the person having its benefit. Specifically, s 17 is not, and has not been treated by the courts as, an absolute prohibition on the use of evidence given at a Royal Commission. For example, in R v Bayeh [1999] NSWCCA 82 the defendant tendered his own transcript from the Wood Royal Commission at his later sentencing hearing. The Court of Criminal Appeal held that the trial judge was entitled to take it into account in ways adverse to the defendant on sentencing. While the Court of Criminal Appeal did not talk in terms of waiver, the defendants contended that it is clear that its approach was influenced by the fact that having tendered the transcript, the defendant had waived his rights to object to any permissible use of the document.

57 In that case Grove J said this at [22] – [24]:

"[22] In the present case no tender of the answers given by the applicant (evidenced by the transcript) was made "against the applicant". His own counsel tendered the transcript…

[23] This argument effectively raised a point of principle and the Court constituted pursuant to s 6AA of the Criminal Appeal Act is unsuitable for the resolution of a disputed issue of general principle… It is, I apprehend, somewhat unusual for any litigant to place before a court material which is expressly inadmissible against that litigant but if it is chosen to tender such material then we were referred to no authority for the proposition that that litigant could impose restrictions upon its use.

[24] I am unpersuaded that the mere fact that the material was before his Honour for one purpose intended by the applicant placed any restriction upon his Honour's use of the material. Unless special rules apply, evidence generally which is before a tribunal is available for all legitimate purposes. Further I find that in the particular circumstances no breach of s 17(2) of the Royal Commissions Act 1923 is manifest and this Court should not intervene in respect of the use by Stewart ADCJ of the material that he was expressly invited to read."

58 Waiver was explicitly dealt with by Ireland J in Bayeh v New South Wales [1999] NSWSC 1070; (1999) 108 A Crim R 364 at [43] and [44]:

"[43] As stated above, the plaintiff, having taken objection to giving the relevant evidence before both Commissions is entitled to claim privilege against self incrimination and object to the evidence being placed before the Board. Nevertheless, it is of the essence of a privilege that it may be waived by the person who enjoys it: Cross on Evidence 4th Ed 1991 p 667. Waiver of privilege may be express or implied; it may be deliberate or inadvertent: Great Atlantic Insurance Co v Home Insurance Co (1981) 1 WLR 529.

[44] The purpose of the tender of exhibits B and D before the Parole Board was made plain beyond question. It was the clearest possible waiver of privilege in the course of supporting the plaintiff's claim for release on parole. The submission made by Mr Waterstreet that evidence tendered may be used by the Board favourably to the plaintiff but that the Board is prohibited by virtue of privilege from considering the evidence in a light adverse to the plaintiff, does not find favour. The plaintiff cannot approbate and reprobate in this way."

59 Here the plaintiff, through her solicitor, is said to have made an assertion that it is false to claim that she had been "exposed as corrupt in the mass media and the Wood Royal Commission and forced to resign from the police force" or that she is "a hypocrite in that she asserted at the Wood Royal Commission that she detested police corruption but was herself corrupt". That assertion puts directly in issue what the plaintiff did at the Wood Royal Commission and operates in the defendants' submission as a clear waiver of the right to object under s 17.

60 The defendants contended that there is a further analogy with the circumstances in which legal professional privilege may be found to have been waived. It is said to be notorious that if a party puts his or her state of mind in issue, for example, by pleading reliance on a misleading statement, the party will have waived legal professional privilege in any advice he or she may have received prior to the transaction in question. The defendants submitted that the principle was accurately stated by Hodgson J in Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87 at 94 – 95:

"If a party, by pleadings or evidence, expressly or impliedly makes an assertion about the content of confidential communications between that party and a legal adviser, then fairness to the other party may mean that this assertion has to be taken as a waiver of any privilege attaching to the communication."

61 The defendants contended that the plaintiff here has expressly made an assertion about the content of her evidence to the Wood Royal Commission as a result of what Mr Kalantzis has said in his affidavit. For example, the plaintiff has denied that she was exposed as corrupt in the Wood Royal Commission. She has also denied that she is a hypocrite because she inconsistently asserted to the Commission that she was not corrupt when the opposite was true. She has also denied that she has conducted herself so as to warrant prosecution for perjury.

62 The underpinning concept is fairness. Is it fair for the plaintiff to deny the truth of these allegations, which she says arise from what she anticipates the defendants will shortly publish, and simultaneously seek to quarantine the use of material potentially capable of use in challenging the truth of her denials? I think not. There may be some debate about precisely what parts of the transcript are relevant to these issues and what is their ultimate effect if admitted. As I am otherwise of the view that the transcript is relevant, those are matters that do not affect consideration of questions of waiver.

Hearsay

63 The plaintiff asserted that the transcript was inadmissible because it is hearsay: s 59(1) Evidence Act. According to the plaintiff, it does not fall within any exception to the hearsay rule.

64 Section 75 of the Evidence Act is in these terms:

" 75 Exception: interlocutory proceedings

In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source."

65 The plaintiff does not contend that the present proceedings are not proceedings to which s 75 applies. On the contrary, the plaintiff submitted that the defendants had failed to comply with the section by omitting to adduce evidence of the source of the transcript.

66 I have already expressed the view that the transcript, contrary to the plaintiff's submission, has been shown to be, or should be taken to be, authentic. In my view that finding forecloses upon the plaintiff's ability to assert that the defendants have not adduced evidence of the source of the transcript. It would be churlish to come to a different conclusion. In my opinion s 75 does not operate in the circumstances of this case to make the transcript inadmissible as hearsay.

Prejudicial, misleading or confusing etc

67 The plaintiff finally contended that the transcript should be excluded as a matter of discretion in accordance with s 135 of the Evidence Act. That well-known section provides as follows:

" 135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:


(a) be unfairly prejudicial to a party, or

(b) be misleading or confusing, or

(c) cause or result in undue waste of time."

68 The plaintiff submitted that the transcript was prejudicial because the plaintiff was not present in Court and was therefore not in a position to answer any allegations made against her or about her by reference to it. She was not given any warning that it would be used in the way that the first and second defendants sought to use it and was in practical terms denied an opportunity to respond to it.

69 The plaintiff also submitted that the transcript was misleading because it did not appear to be a complete transcript of her evidence. The plaintiff therefore was deprived of the opportunity to have me compare the evidence in the transcript with other answers that may have qualified it in some way.

70 The plaintiff did not attend the hearing of this application. That was perfectly understandable, especially given the amount of media attention that her appearance at the Royal Commission had originally generated, and in view of the likelihood that her appearance in these proceedings might have had a similar effect. It is not inconsistent with her stated or inferred reasons for commencing these proceedings in the first place. However, the plaintiff has neither sworn an affidavit seeking to correct any apparently misleading portion of the transcript, nor has she made any submissions directed to highlighting any errors that it is said to contain. It is one thing to speak in hypothetical terms about the existence or possibility of prejudice, but often quite another thing to isolate or identify it in fact. The plaintiff has not done this and there is no basis as far as I can determine to exclude the transcript for the reason that some countervailing matter of prejudice or other infirmity substantially outweighs its probative value.

71 For the reasons set forth above the transcript of the plaintiff's evidence given before the Wood Royal Commission is admissible before me.

Correspondence

72 All parties relied on a series of correspondence that heralded these proceedings. Some of that correspondence is instructive.

73 On 2 February 2010 the solicitor for the plaintiff wrote to the first defendant on the topic of Wendy Hatfield and "Underbelly - The Golden Mile". The letter is relevantly in these terms:

"Our client is the subject of chapter 3 in the book entitled ' Underbelly – The Golden Mile' in which she is gravely and indefensibly defamed. Appropriate action is being taken against publishers of that book.

We are instructed that Channel 9 and the Nine Network have been promoting, throughout Australia, the imminent broadcast of a television series based on the book, entitled Underbelly 3: The Golden Mile .

Our client reasonably fears that the television series will dramatise the defamatory attacks made upon her in the book. If that is the case, she has instructed us to advise on her rights to enjoin publication of any program containing references to herself, and further to seek damages for any publication of the television material.

We hereby put you on notice that the following assertions of fact made or imputed in the book (Chapter 3 – Working Blue) are false:

• That she, a police officer, had a sexual relationship with John Ibrahim, knowing him to be a notorious criminal;

• That she achieved promotion in the police force by granting sexual favours;

• That she is a person of little intelligence;

• That she is a hypocrite who asserted to the Wood Royal Commission that she detested police corruption, but was herself corrupt;

• That she was guilty of misconduct in relation to John Ibrahim's avoiding prosecution for unlicensed driving, condoning lies he told to police;

• That she was guilty of misconduct in becoming intimately involved with [John] Ibrahim, who she knew to be a criminal;

• That she was guilty of a number of acts of misconduct by reason of her relationship with [John] Ibrahim, a criminal;

• That she was exposed as corrupt in the mass media and the Wood Royal Commission, and forced to resign from the Police Force;

• That she assaulted a press photographer in 1998.

• That she was guilty of misconduct in relation to the death of a drug dealer (Assad), acting as [John] Ibrahim's 'tame cop girlfriend';

• That she was guilty of perjury; alternatively that she so conducted herself as to warrant prosecution for perjury.

Our client stands ready to respond to any queries you may have as to the facts supporting her denials in order to disabuse you of any belief in the truth of the defamatory attack made upon her in the book, which responses she is confident will lead to your deciding to remove any reference to her from the television series.

We ask that you provide us with a DVD copy or, at the very least, a transcript of any part of the television series in which reference is made to Ms Hatfield, in order that we can provide you her response in rebuttal of false allegations of fact about herself. If you choose to publish the television series without facilitating this process, Ms Hatfield will rely on that conduct for aggravated damages and as proof of express malice.

Our client reserves all her rights in relation to any defamatory material that your companies may broadcast, including series publicity and promotional material."

74 That letter provoked the following response on 9 February 2010 from the corporate counsel at the first defendant:

"As you are aware, the book titled Underbelly: The Golden Mile to which you refer is not published or written by Nine. The television series Underbelly: The Golden Mile is a dramatisation of some but by no means all events and characters contained in the book and as a result is quite different from the book in a number of material respects.

Nine denies that any material it may publish as part of or in connection with [the series] will give rise to any claim for damages in defamation by your client.

There is no legal basis upon which your client is entitled to the material sought. Such material is commercial in confidence, and Nine denies that its refusal to accede to such a request is in any way evidence of malice towards your client or could be relied upon in support of a claim for aggravated damages.

It is well established as a matter of law that a claim for defamation, where there is an arguable defence, is not a proper basis upon which injunctive relief may be sought or granted. If any such application is made, you are on notice that Nine intends to defend it and will rely upon this letter in support of an application for indemnity costs. Further, your client is on notice that Nine requires reasonable notice of any such application so as to be properly represented."

75 The plaintiff's solicitor wrote back on 17 February 2010 as follows:

"We enclose herewith draft Summons and affidavit in support seeking orders for preliminary discovery as set out in the Summons. We have not included the annexures to the affidavit.

Please let us know, by 4.00 pm tomorrow Thursday 18 February 2010 whether your client will consent to providing us with a DVD copy and/or transcript of the television series 'Underbelly 3: The Golden Mile' your network proposes to broadcast.

In the alternative we would require a statutory declaration (subject to our approval), by an authorised officer of each of the defendants, stating that our client is not depicted, in any way either directly or indirectly, in the television series.

If your clients do not comply with our above requests by the time stipulated, we will have no alternative but to file the summons and affidavit in the Supreme Court registry the following day and seek the earliest possible hearing date."

76 The following response to that letter was then sent on 18 February 2010 by the solicitors for the first defendant:

"Your foreshadowed application for preliminary discovery orders is misconceived for the following reasons:

1. As outlined in paragraphs 17 and 18 of the draft affidavit of Mr Kalantzis, the grounds relied upon by your client for preliminary discovery are:


(a) to commence defamation proceedings in relation to the broadcast of 'Underbelly - The Golden Mile'; and

(b) to obtain advice in relation to an interlocutory injunction against the broadcast of the program which would otherwise defame your client;


2. An essential element of a cause of action based in defamation is publication to a third party. Unless and until the program is broadcast, your client is not entitled to make a claim regardless of what documents are in existence. Accordingly the requirement of Rule 5.3(1) of the Uniform Civil Procedure Rules is not satisfied;

3. The second ground relied upon, for advice to obtain an interlocutory injunction against the broadcast of the program, is also a claim which your client is not entitled to make given the well established authority, (most recently ABC v O'Neill 2006 HCA 46) that a Court should not restrain publication in a defamation action in circumstances where there is an arguable defence. For present purposes, we are instructed that any defamatory imputations which may be conveyed against any person identified in the program, are substantially true and will be defended on that basis."

77 On 22 February 2010 the solicitor for the plaintiff wrote to the third defendant in terms that were for all relevant purposes identical to his original letter to the first defendant dated 2 February 2010. The third defendant replied by letter dated 23 February 2010, which relevantly included the following:

"3. I retained senior counsel, from a very early stage, to review all scripts, script amendments and Network Cuts for the series.

4. It is Screentime's firm view that the material in the series will not, when published, convey (or even be capable of conveying), of and concerning your client, any of the imputations set out in paragraph 8 of the affidavit of Mr Kalantzis.

5. It appears that a proposition that is implicit in your letter of 22 February and in the affidavit of Mr Kalantzis is that the material in the series constitutes a mere replication of what is contained in the book, in particular chapter 3 of the book, the cover of which is annexure 'D' to the affidavit of Mr Kalantzis. That proposition is erroneous."

78 An arguably important part of the correspondence is to be found in the plaintiff's solicitor's reply to that letter, which is dated 24 February 2010, and which is relevantly in the following terms:

"In the light of the fact that our client is the primary subject of chapter 3…of the book entitled ' Underbelly - The Golden Mile' it is reasonable to assume that the television series will dramatise the defamatory attacks made about her in that book. We cannot envisage how she can even be referred to in the context of the subject matter of the series without being defamed.

As you can see from the annexures to the affidavit of the writer relied on in support of the summons, we have sought from the Nine Network a DVD copy of the television series 'Underbelly 3: The Golden Mile', or, at the very least, a transcript of any part of the television series that refers to or depicts our client. In the alternative we have sought undertakings and assurances that our client is not referred to or depicted in any way in the television series. Both of these requests have been refused.

It would be a simple matter to alleviate our client's concerns for your client to provide an undertaking or written assurance that our client is not depicted or referred to in any way in the television series.

If she is so referred to or depicted, it would be expedient and less costly (for all parties) to provide us with a DVD copy or the transcript of the relevant portion of the television series. This would, of course, be subject to the usual undertakings by us as to confidentiality, until the programme is broadcast. If your client's concern relates to the issue of confidentiality we would have no difficulty attending your premises at a suitable time in the next week to view the material in question as opposed to being provided with a copy.

We note the information in paragraph 3 of your letter that senior counsel has reviewed all of the scripts. This information provides little comfort to our client in circumstances where we are not told what instructions he was given, in particular what information he was provided with about our client. If you intend to rely on the fact that the scripts were 'legalled' please bring copies of senior counsel's advice and any related instructions to court on Tuesday, as we will be calling for those documents.

We note that in paragraph 4 of your letter you express the view that the material in the television series will not, when published, convey (or even be capable of conveying) any of the imputations arising out of the book. We further note that you carefully fail to provide an assurance that no defamatory imputation is conveyed at all about our client.

Further, in paragraph 5 of your letter, you dismiss as erroneous the proposition, which is based on a very reasonable assumption (see chapter 3 of the book), that the television series constitutes a mere replication of the book.

Whilst we accept that it is unlikely to be a mere replication of the book, our client is nevertheless concerned that part or parts may be repeated in the television series, which would have the effect of conveying some if not all of the defamatory meanings or other (potentially worse) defamatory meanings. Of greatest concern is the direct relationship between the book and the television series, said connection which, with respect, can hardly be denied by your client.

Please let us know by midday on Friday 26 February 2010 whether any part [of] the television series refers to or depicts our client in any way and if so, please provide a copy of that part or a transcript of it. In the alternative, if our client is not depicted in the television series your undertaking to this effect will be acceptable."

79 Finally, the solicitor for the plaintiff wrote to the solicitor for the first defendant on 24 February 2010. Part of that letter is as follows:

"We refer to your letter dated 18 February 2010.

In answer to paragraph 2 of your letter – the DVDs and/or scripts have been published. They have been published by Screentime to your client and have been published by your client to persons (including third party contractors) working on the project, persons engaged to prepare advertising material, persons engaged to copy the material, including the scripts and perhaps even persons who are asked to critique the material for review. In any event, Rule 5.3 UCPR only requires our client to demonstrate that she ' may be entitled to make a claim for relief from the court ' against your client.

Similarly your assertions in paragraph 3 of your letter proceed on a misunderstanding of the relevant provision. If the television series defames our client, and it is about to be broadcast to millions of viewers, she ' may be entitled' to an interlocutory injunction.

Further, your assertion that 'any defamatory imputations which may be conveyed against any person identified in the program, are substantially true and will be defended on that basis' is an allegation that defamatory and therefore derogatory meanings about our client in the television series are true. That assertion will be relied on as aggravation in any proceedings that are commenced by Ms Hatfield against your client in relation to this television series."

Evidence from the third defendant

80 The solicitor for the third defendant swore an affidavit directed toward proving that the series was not based on the book. As will be apparent, the suggestion that it is, or the fear that it might be, figures prominently in the correspondence set forth earlier. The evidence is given upon information and belief as follows:

"3. I am informed by Greg Haddrick [one of three executive producers and one of four writers of the screenplays for the series] and believe that there were three writers of the screenplays (or scripts) for the series apart from him, namely: Felicity Packard, Kris Mrksa and Peter Gawler (the last of whom is also one of the two producers of the series).

4. Greg Haddrick informs me and I believe that in his work as a writer for and executive producer of the series he did not utilise the book (or drafts of it) and that he has not read any part of the book. He also informs me and I believe that nothing he wrote for the series was based on any information supplied by Mr Rule or Mr Silvester in any form and that he did not ever consult Mr Rule and/or Mr Silvester about any fact concerning anyone depicted in the series.

5. I am informed by Felicity Packard and believe that nothing she wrote in her screenplays was based in any way on the book and that she did not utilise any information (written or oral) from Andrew Rule and/or John Silvester (either in the book or otherwise) in her writing of the screenplays for the series. I am also informed by Ms Packard and believe that she saw a copy of the book for the first time in early 2010 and that by then her writing for the series was complete.

6. I am informed by Kris Mrska and believe that he only became aware of the existence of the book in February 2010 and that that was after he had completed his work writing for the series. I am also informed by him and believe that he has not utilised the book or any information from Mr Silvester and/or Mr Rule in either researching or writing for the series.

7. I am informed by Peter Gawler and believe that in his work writing for and co-producing the series he did not use the book or any information from Mr Rule and/or Mr Silvester. I am also informed by him and believe that the first time that he saw a copy of the book was in late January 2010 and that by then both the writing for and shooting of the series was complete.

8. I am informed by Greg Haddrick and believe that the person depicted on the front cover of the book is not an actor or other person appearing in the series or otherwise connected with the series."

81 The affidavit also annexed a copy of an agreement, dated 15 July 2009, between the third defendant and two other companies, described as "the owners", although what they are supposed to own is not specified. The agreement recites, among other things, that the third defendant has agreed that Mr Silvester and Mr Rule, referred to as "the authors", may write what is referred to as "a tie in book" in relation to the UBIII series, referred to as the UBIII book.

82 Clauses 2.1 and 2.2 of the agreement are as follows:

"2. TIE IN EDITION OF THE UBIII SERIES

2.1 Screentime agrees that the Authors may write a tie in edition of an Underbelly book in relation to the UBIII Series. For the avoidance of doubt, the Authors shall undertake their own research in writing the UBIII Book and Screentime shall not provide them with any research notes and/or scripts. The Authors agree that they will make it clear to anyone from whom they are obtaining information that their UBIII Book is unrelated to the UBIII Series and that they are not obtaining information for/on behalf of Screentime. The Authors shall be solely responsible for the content of their UBIII Book.

2.2 Sreentime shall grant to the Owners/Authors the right to use the title of the UBIII Series in the form of logotype used in the credits of the UBIII Series for the purposes of publication in volume form and shall be given access to photographic and other promotional materials and the right to use such materials in the promotion of the UBIII Book and to consult with promoters and distributors of any such version to mutual advantage. For the avoidance of doubt, the Authors/Owners shall be responsible for organising any clearances necessary in relation to the Authors/Owners use of the photographic and promotional materials in relation to the UBIII Book and its promotion, and any costs involved in such clearances including without limitation any payments to any actors shall be the Authors/Owners sole responsibility. The Authors/Owners warrant to Screentime that they shall provide to Screentime an appropriate credit (in a place and form which has been pre-approved by Screentime in writing at the time) on the cover of the UBIII Book and shall ensure that this credit appears on the cover of each copy of the UBIII Book from first run. The Authors/Owners hereby indemnify an agree to keep indemnified Screentime from and against any breach of this warranty by the Authors/Owners."

Plaintiff's submissions

83 Having regard to the applicable principles and the whole of the evidence, the plaintiff made the following submissions.

"May be entitled to make a claim for relief"

84 The plaintiff wants to ascertain first whether she has a claim in defamation against any of the defendants and secondly whether she may be entitled to urgent injunctive relief enjoining the first and second defendants from broadcasting such parts of the series that she considers may defame her.

85 The plaintiff contends that the third defendant has already published the series to the other two defendants or one of them. This is said to arise from what is to be found on the third defendant's website. The plaintiff contended that it was plain that the first and second defendants or one of them had published the series to others in preparation for its broadcast. This would include, presumably, television reviewers and promotional organisations producing trailers and advertisements. The plaintiff argued that the third defendant's website listed promotional material or articles about the series indicating that it had been submitted for critical reviews. It would appear that the series has also been reviewed by TV Week magazine.

86 The plaintiff also contended that the book itself is evidence of the overlap with the series. For example:

(a) The book and the series have the same title.

(b) The book refers to the series on its cover as "The events that inspired the Screentime Series for the Nine Network".

(c) The cast of the series is listed at the back of the book.

(d) The lead actor in the series is pictured on the back cover of the book.

(e) The logo for the word Underbelly as it appears on the front of the book is identical to the logo used for the series as follows:

(f) Series 1 of Underbelly was also based on a book by the same authors.

87 The plaintiff submitted that despite the evidence from the third defendant's solicitor to the effect that the scriptwriters did not rely on the book, chapter 3 of the book, or parts of it, may be reproduced in the series or may be based on the series or vice versa. The plaintiff emphasises that there is no assertion by any defendant to the effect that the authors of the book did not use the series or its scripts in writing the book.

88 The plaintiff submitted that in any event it is clear that the plaintiff is portrayed in five episodes of the series, including a depiction of her having sexual relations with John Ibrahim. That is an allegation that is also to be found in the book and which the plaintiff denies. Interestingly, the character said to represent the plaintiff in the series is not listed along with other members of the cast that is to be found at the back of the book.

89 The plaintiff relies on the interview with Jessica Tovey apparently given to OK! magazine, extracted above, in which she says in effect that in researching the character of Constable Wendy she was not bound to historical facts. The plaintiff says that this is an admission by the defendants that they have made a decision to depict the plaintiff so that she is historically identifiable but unrestricted by truth.

90 The plaintiff submitted that in these circumstances she may be entitled to make a claim in defamation against the defendants.

91 Moreover, the plaintiff submitted that she had good reason to fear that the defamatory allegations published about her in the book to a relatively small audience will be broadcast to an audience of millions. Depending upon what allegations are made about her in the series, she contended that she may be entitled to an injunction preventing the broadcast of those parts of the series.

"Reasonable inquiries"

92 There was no issue in this case that the plaintiff had made reasonable inquiries for the purposes of UCPR 5.3(1)(a).

"Sufficient information"

93 The plaintiff contended that in circumstances where she is unsure of the extent to which she is portrayed or referred to in the series she has insufficient information to decide whether or not to commence proceedings against any of the defendants. The fact that she does not know what is said about her means that she is "lacking something reasonably necessary to make a decision whether to institute proceedings" in the sense discussed by White J in Ian Edward Morton v Nylex Ltd. The plaintiff needs to know what the defamatory "matter" is before she can sue on it: see s 4 and s 7 of the Defamation Act 2005.

94 Furthermore, UCPR 14.30(2) and 15.19(1) require the plaintiff to identify, in any pleading alleging defamation:

(a) particulars of any publication on which she relies to establish the cause of action, sufficient to enable the publication to be identified;

(b) each imputation on which she relies; and

(c) particulars of the part or parts of the matter complained of relied on by her in support of each pleaded imputation.

95 The plaintiff will also be required to file and serve with a statement of claim seeking relief in relation to the publication of defamatory matter a typescript, with numbered lines, of the text of the original publication: r 15.19(2)(b) and (3). The plaintiff submitted that despite being aware that she is depicted in five episodes of the series, she does not have enough information to determine which of those episodes, if any, carry imputations about her. Having regard as well to the requirement that regard must be had to what the ordinary reasonable viewer would see, which in this case means the entire program or relevant episodes, the plaintiff says that she is not in a position to formulate the imputations upon which she will rely until she sees them.

96 Finally, the plaintiff submitted that without the entire "matter", she is unable to obtain advice on the strength of potential defences such as contextual truth (s 26) and honest opinion (s 31) which require consideration of the "matter" as a whole and in context.

97 With respect to the second limb of the plaintiff's application, she accepted that the power to grant interlocutory injunctions in defamation cases will be exercised with great caution, and only in very clear cases: Church of Scientology of California Incorporated v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344 at 349. See also Heartcheck Australia Pty Ltd v Channel 7 Sydney Pty Ltd [2007] NSWSC 555. The Court's power to grant an interlocutory injunction is subject to the special rule which requires the court to balance the defendant's right to free speech against the plaintiff's right to protect her reputation. Free discussion of matters of public concern is also to be taken into account: Chappell v TCN Channel Nine Pty Ltd 14 (1988) NSWLR 153 at 163-4. See also Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57.

98 The plaintiff submitted that the content of the series would be unlikely to fall within the category of "public interest" and that the allegations that the defendants intend to publish are certain to be sensationalist and serious in nature. Accordingly, the plaintiff "may be entitled to make a claim for relief" or, in other words, such a claim against one or more of the defendants is "conceivable".

Consideration

99 The plaintiff's case has been argued in two categories. I will maintain that distinction.

The claim in defamation

100 There can be no basis for a contention that the plaintiff "may be entitled to make a claim" unless she can establish that the defamatory material of which she complains has been published. The defendants emphasised, and the plaintiff acknowledged, that the expression "may be entitled" was a reference to the state of affairs as they existed at the time that the application was made. It did not mean, "may become entitled" in the future if certain events were to occur. In these circumstances the plaintiff accepted, as she must, that a right to sue any of the defendants for defamation is co-extensive with her ability to establish at least publication of material that is said to carry the defamatory imputations for which she contends. The series has not on any view been published in the sense of being broadcast on television in the way that everyone anticipates and understands will occur at some time soon. Whenever that is actually supposed to happen, and the evidence is effectively silent on the precise dates, it has not happened yet.

101 The plaintiff therefore contends that there must have been, or at least probably has been, a limited publication either between or among the defendants, or possibly by one or some of the defendants to third parties in anticipation of the series being broadcast. The difficulty with that submission is that there is a wealth of speculation to support it but no evidence that it is so as a fact. For example, it does not seem to me to be established or to follow that the series has, or one or some of its episodes have, been published to magazines that have printed what purport to be reviews of the series. For all the plaintiff knows, such articles, like the ones that appear in OK! magazine or TV Week, may be in the form of copy written by the defendants or one of them, or derived or extracted from such material. It is not unlikely that the promotional arms of the respective defendants may have provided what amounts to a written outline or summary, or whatever is the industry description of such a document, upon the understanding, or with the expectation, that some of it would be reproduced in publications, necessarily of the defendants' choice, in advance of the screening and as part of the promotion and publicity for it. The fact that such material is described as a "review" does not by any means necessarily establish that what ultimately appears in the relevant publication is the product of an independent critical analysis of all or some of the episodes in the series that have been provided to the putative reviewer for that purpose.

102 There is also no satisfactory evidence that there has been a relevant publication of the series or any part of it by one defendant to any other defendant. It may be that some inference that this has occurred arises in a general sense, but this is again no more than speculation. The copies of the episodes of the series may, for all anyone apart from the defendants knows, be subject to some arrangement whereby the third defendant does not part with possession of the recordings that the first defendant is due to broadcast until some date closer to the screening time, which date has not yet arrived. There may be security reasons for such an arrangement. As unusual or as unlikely as such an arrangement may appear, it is no more or less probable than the plaintiff's as yet unproven contention that a publication between or among the defendants must have occurred.

103 The plaintiff to a considerable extent emphasised the defendants' disinclination affirmatively to state that the series did not refer to or depict her or did not do so in a way that may give rise to an allegation that the series when broadcast will defame her. This was allegedly seen in the defendants' refusal either to provide undertakings that the plaintiff is not referred to or depicted or in their refusal to deny that she is. In the case of the first defendant, this argument is probably not even available when one has regard to the terms of the denials contained in the 9 February 2010 letter written by its corporate counsel, extracted at [74]. However, the plaintiff bears the onus of establishing that there has been a publication of and concerning the plaintiff. The defendants are entitled to require the plaintiff to establish that fact. I am not satisfied that the evidence upon which the plaintiff relies has gone this far. No adverse inference arises against the defendants for their failure actively to engage in this debate.

104 Adopting the terminology favoured by White J, it appears to me that the plaintiff is doing no more than asserting an entitlement to sue or that she has a case. She does this by reference to what she contends the series is going to say about her or to the way she anticipates it will portray or depict her, but in my view she does so in the absence of a reasonable cause to believe that she may have a right of action against the defendants for defamation resting on some recognised legal ground. That at the very least necessitates proof of publication of defamatory material. That does not appear to me to have occurred. The plaintiff is not in my view without sufficient information to decide whether or not to commence proceedings against the defendants. She is simply unable to determine, and therefore remains uncertain about, whether or not she really has a cause of action. I accept that the plaintiff is not required to establish, for the purposes of the rule, that she has a prima facie case.

105 It is hardly controversial that the plaintiff will be, or is at the very least likely to be, depicted or portrayed in the series as a constable of police played by the actor Jessica Tovey. Whether or not this depiction or portrayal is sympathetic or unsympathetic, or is or is not arguably defamatory of her, is not yet apparent. The plaintiff places some emphasis upon the suggestion that the actor who plays her said, when interviewed, that she was not bound to historical fact, or words to that effect. Without elaborating upon the proposition too specifically, such a statement is potentially as consistent with a favourable and unactionable depiction or portrayal of the plaintiff as it is with a defamatory one. Having regard to the fact that all of the relevant episodes and the series will have to be considered from the position of the ordinary reasonable viewer in context, no preliminary view can be formed about the potentially tortious nature of what is broadcast until that occurs.

106 Moreover, it does not seem to me that the procedural or rule-driven concerns expressed by the plaintiff are in anyway supportive of the present application. Requirements such as those in UCPR 14.30(2) and 15.19(1), (2) and (3) apply to all cases of the type the plaintiff proposes, in the greatest majority of which preliminary discovery is not seen to be a necessary precondition. I accept, however, that the existence of potential defences is a legitimate matter for consideration in favour of making an order in an appropriate case.

The interlocutory injunction to restrain publication

107 The second category under which the plaintiff seeks relief to my mind emphasises the major problem that confronts her present application. This arises from a consideration of the words in r 5.3(1)(a) "is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant". It is critical for present purposes to understand that "proceedings" in this context is not a reference to the plaintiff's prospective claim in damages against the defendants for defamation. Once the series is broadcast she will have all that she requires for the purpose of deciding whether or not to commence proceedings for that cause of action. What the expression refers to in the present context is the plaintiff's decision whether or not to commence proceedings against the defendants for an injunction to restrain the broadcast in the first place. That is the framework within which it becomes necessary to consider whether it "appears to the Court that the plaintiff may be entitled to make a claim for relief from the court" against the defendants. This brings forward the requirement to assess the strength or otherwise of such a case in order to determine whether or not the plaintiff "may be entitled to make a claim for relief".

108 Other than in a hypothetical sense it does not appear to me that, having regard to the well-known authorities on this issue, the plaintiff may be entitled to an injunction to restrain the series' broadcast. First, for the reasons already discussed, the plaintiff has not yet established that she has an arguable case. That may change once the series goes to air but is incapable of determination at present.

109 Secondly, there is no evidence to suggest that damages would not be an adequate remedy. Counsel for the plaintiff submitted that the statutory limitation upon damages is such that the amount of monetary compensation that the plaintiff could recover would not be adequate to salve her hurt feelings or make up for the damage to her reputation that she anticipates the broadcast will cause. However, this is to misconceive the nature of the inquiry about the adequacy or otherwise of damages in this respect, which is directed to the availability of alternative relief, not to the sufficiency of an award of damages. The plaintiff was unable to point to any circumstance or event that would fall in following the anticipated broadcast that could not be accommodated by an award of damages, independently of whether or not the plaintiff felt satisfied with the amount of those damages.

110 Thirdly, there is no prejudice to her that the plaintiff can identify that outweighs the prejudice that may attend a restraint of the proposed broadcast in whole or in part. There is little evidence from the defendants about the prejudice that they may suffer if their series were to be taken off the air or if parts of it were enjoined from publication. However, experience in applications of this type, and the evident stage that has been reached by the defendants in preparation for the series to be screened, strongly suggests that considerable disruption will attend the need to reschedule or reprogramme it, if that were to be required. The balance of convenience clearly favours permitting the proposed broadcast to proceed.

111 More fundamentally, the authorities dealing with the restraint of an apprehended defamation are clear. In Naoum v Dannawi [2009] NSWCA 253, McColl JA said this at [32]:

"[32] The application as it proceeded before the primary judge and in this Court, was fundamentally misconceived. The applicant sought final injunctive relief without, apparently, adverting to the necessity that before such relief could be granted (and leaving to one side for present purposes the exceptionally cautious approach courts adopt to granting injunctive relief in the defamation context where the right of free speech is emphasised), he would have to establish an actionable defamation at a final hearing. In other words he had to establish the publication by the respondent of defamatory matter (s 7(2), Defamation Act 2005 (NSW)) to which the respondent had no defence: Bonnard v Perryman [1891] 2 Ch 269 (at 284) per Lord Coleridge CJ, (Lord Esher MR and Lindley, Bowen and Lopes LJJ agreeing); Church of Scientology v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344 (at 351) per Hunt J; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 (at 158 – 159, 163 – 164) per Hunt J; O'Neill (at [19]) per Gleeson CJ and Crennan J; (at [80] – [82]) per Gummow and Hayne JJ; (at [107]) per Kirby J."

112 I have already indicated that the plaintiff has not established publication. However, even putting that issue to one side, or alternatively assuming publication will occur, there is yet no evidence to establish an actionable defamation at a final hearing. The content of the alleged defamatory matter remains illusory.

113 In one sense, with appropriate allowance for the different factual circumstances, the Court is in a similar position to that described by Maxwell J in Harper v Whitby [1978] 1 NSWLR 35 at 37 where his Honour made the following remarks:

"I am left to speculate, and this is no criticism of the plaintiff or her legal advisers, as to the precise nature or format of the programme proposed to be telecast on the programme 'A Current Affair'. There is no evidence that the programme has been completed, or is in what I might call final form. I have no evidence as to whether it will be a balanced programme. By this I mean that I have no evidence to suggest either way that it will merely take the form of accusations made against the plaintiff with no counter views or statements by her or on her behalf. Nor is there any evidence as to when any such programme, if it is completed, will be telecast." (Emphasis added)

114 The opinions expressed by Gleeson CJ and Crennan J in O'Neill at [18] and [19] also bear repetition in this case:

"[18] Lord Coleridge CJ's conclusion was that 'it is wiser in this case, as it generally and in all but exceptional cases must be, to abstain from interference until the trial'. That form of expression does not deny the existence of a discretion. Inflexibility is not the hallmark of a jurisdiction that is to be exercised on the basis of justice and convenience. Formulations of principle which, for purposes of legal analysis, gather together considerations which must be taken into account may appear rigid if the ultimate foundation for the exercise of the jurisdiction is overlooked. Nevertheless, so long as that misunderstanding is avoided, there are to be found, in many Australian decisions, useful reminders of the principles which guide the exercise of discretion in this area. One of the best known statements of principle is that of Walsh J, before he became a member of this Court, in Stocker v McElhinney (No 2) . After referring to the 5th edition of Gatley on Libel and Slander , and citing Bonnard v Perryman , he said:


'(1) Although it was one time suggested that there was no power in the court, under provisions similar to those contained in [the Act governing procedure in the Supreme Court of New South Wales] to grant an interlocutory injunction, in cases of defamation, it is settled that the power exists in such cases.

(2) In such cases, the power is exercised with great caution, and only in very clear cases.

(3) If there is any real room for debate as to whether the statements complained of are defamatory , the injunction will be refused. Indeed, it is only where on this point, the position is so clear that, in the judge's view a subsequent finding by a jury to the contrary would be set aside as unreasonable, that the injunction will go.

(4) If, on the evidence before the judge, there is any real ground for supposing that the defendant may succeed upon any 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.'

[19] The principles were discussed, for example, in Chappell v TCN Channel Nine Pty Ltd (a decision referred to by Crawford J in a passage quoted above), National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd, and Jakudo Pty Ltd v South Australian Telecasters Ltd. As Doyle CJ said in the last-mentioned case, in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be followed. In the context of a defamation case, the application of those organising principles will require particular attention to the considerations which courts have identified as dictating caution. Foremost among those considerations is the public interest in free speech. A further consideration is that, in the defamation context, the outcome of a trial is especially likely to turn upon issues that are, by hypothesis, unresolved. Where one such issue is justification, it is commonly an issue for jury decision. In addition, the plaintiff's general character may be found to be such that, even if the publication is defamatory, only nominal damages will be awarded." (Emphasis added)

115 Similarly, Gummow and Hayne JJ said this at [78] – [83]:

"[78] The second or 'flexible' view of the exercise of the interlocutory injunction power in these cases is exemplified in Chappell v TCN Channel Nine Pty Ltd and in cases following and applying it. These cases rightly stress the application in this field of the general principles exemplified in Beecham . However, they give rise to two difficulties.

[79] The first difficulty is that the cases which advocate 'flexibility' tend to give insufficient weight to the range of significant rights asserted on applications to restrain quia timet defamatory publications. A plaintiff asserts interests in character and reputation, while the defendant may assert what are special considerations derived from 17th and 18th century events which have been regarded in Britain as part of its constitutional history.

[80] Two special (and related) considerations which underpinned the denial of jurisdiction in the Court of Chancery to enjoin publication of defamatory matter were identified by Lord Cottenham LC in Fleming v Newton . He asked:

'how the exercise of such a jurisdiction can be reconciled with the trial of matters of libel and defamation by juries under the 55 Geo III, c 42, or indeed with the liberty of the press. That act appoints a jury as the proper tribunal for trial of injuries to the person by libel or defamation; and the liberty of the press consists in the unrestricted right of publishing, subject to the responsibilities attached to the publication of libels, public or private.'


The reference to 'the liberty of the press' reflected the statement by Lord Mansfield in R v Shipley that '[t]he liberty of the press consists in printing without any previous licence, subject to the consequences of law'. The statutory system of press licensing in England had lapsed in 1695 and 13 proposals over the next decade for its revival had come to nothing. (The unsuccessful attempts by Governor Darling to institute a press licensing system are a landmark in the constitutional history of New South Wales.)

[81] There remained available to the Executive Government in England the power to prosecute the offences of criminal and seditious libel and this then led to great controversy as to the respective functions of judge and jury in such trials. The dispute culminated at the end of the 18th century in the passage of Fox's Libel Act 1792 (UK), and its subsequent judicial adoption for civil trials, to which reference has been made earlier in these reasons.

[82] The remarks by Lord Cottenham LC in Fleming v Newton manifest the reluctance by the courts of equity to participate in any indirect reinstatement of a licensing system by a method of prior restraint by injunctive order. The injunction (interlocutory or final) was a prior restraint and the decision was that of a judge alone. The jurisdictional objection was to disappear later in the 19th century, but distaste for prior restraint and respect for the role of the jury remained significant for the administration of the interlocutory injunction. Section 21 of the 2005 Act confers upon each party in defamation proceedings in the Supreme Court an election for jury trial, subject to the power of the Supreme Court to order otherwise. (However, s 22(3) of the 2005 Act reserves to the judicial officer the determination of the amount of any damages and unresolved issues of law and fact relating to that determination.)

[83] The second difficulty with the 'flexible' approach is that it leads too readily to an assumption that all that is involved here is the exercise of an unbounded discretion, which thereafter is insusceptible of appellate interference. The course of the present litigation demonstrates that hazard."

116 It is not possible to characterise this case as clear, and certainly not possible to characterise it as very clear. Not only is there in the present case "real room for debate as to whether the statements complained of are defamatory", there is real room for debate about whether or not there are yet any statements to complain of at all. The actual form of the publication can be anticipated with some confidence but its content is not so easily predicted. This is not, to adopt the words of Lord Coleridge CJ, an "exceptional case". It would in my opinion be an error in the exercise of discretion to enjoin a publication that is soon to occur when not only might minds differ concerning the defamatory content of the broadcast, but when no two minds could be reasonably satisfied that they were in fact engaged in considering the same subject matter, or that there was even some subject matter to consider. Respect for the role of the ultimate tribunal of fact should not be compromised or subverted by too ready an acceptance of allegedly urgent but not very clear or exceptional pleas for potentially disruptive injunctive relief.

Conclusion

117 It does not appear to me at present that the plaintiff may be entitled either to make a claim for damages for defamation against any of the defendants or that she may be entitled to make a claim for interlocutory relief to enjoin them from publication of the series.

Orders

118 Having regard to the evidence before me on this application it follows in my opinion that the plaintiff's summons should be dismissed. At the request of the plaintiff I will make no order as to costs until the parties have been given a further opportunity to make submissions on that issue.

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