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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWSC 161
Decision Date: 12 March 2010

CaseChat Overview and Summary

Hatfield v TCN Channel Nine Pty Ltd was a case where former police constable Hatfield sought to prevent the broadcast of a television drama series, "Underbelly: The Golden Mile", by TCN Channel Nine Pty Ltd. Hatfield anticipated that she would be portrayed unfavourably in the series and sought preliminary discovery to determine if she could establish a defamation claim, and potentially an interlocutory injunction to prevent the broadcast. The legal issues in this case revolved around whether the publication of defamatory material had occurred, whether Hatfield appeared to have a potential claim for relief, and whether she was unable to obtain sufficient information to decide whether or not to commence proceedings. Additionally, the court needed to consider if an interlocutory injunction would be granted to restrain the broadcast, as well as the admissibility of evidence given by Hatfield during the Wood Royal Commission and whether the privilege against self-incrimination was waived.

The court considered whether the publication of defamatory matter had occurred and whether Hatfield could establish a claim for relief. The court found that Hatfield had not demonstrated that she was unable to obtain sufficient information to decide whether to commence proceedings. Regarding the interlocutory injunction, the court held that the plaintiff had not shown a strong case warranting an injunction, as the balance of convenience favoured the defendant. Furthermore, the court examined the admissibility of the transcript of evidence given by Hatfield during the Wood Royal Commission. The court found that the privilege against self-incrimination was not waived by the formulation of imputations referring to the evidence given in the Royal Commission. The court also considered the relevance and potential prejudice of the evidence under s135 of the Evidence Act 1995, ultimately finding that the evidence was not admissible.

As a result of the court's reasoning, the summons was dismissed. The court found that Hatfield had not demonstrated that she was unable to obtain sufficient information to decide whether to commence proceedings, and the balance of convenience favoured the defendant in relation to the interlocutory injunction. Furthermore, the court determined that the privilege against self-incrimination was not waived, and the evidence in question was not admissible under the Evidence Act 1995. No final orders were made in this case as the summons was dismissed.

Orders