Hawthorn v Seven Network Ltd - [2013] VSC 352

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

PETER HAWTHORN	Plaintiffs
- and -
ROBERT HAWTHORN
v
SEVEN NETWORK LIMITED (ACN 052 816 789)	Defendant

---

JUDGE:	ELLIOTT J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 July 2013
DATE OF JUDGMENT:	10 July 2013
CASE MAY BE CITED AS:	Hawthorn v Seven Network Ltd
MEDIUM NEUTRAL CITATION:	[2013] VSC 352

---

INJUNCTIONS – interlocutory injunction – imminent television broadcast – potentially defamatory publication – applicable principles – public interest – insufficient information about defamatory nature of broadcast – application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	T Alexander with H Kirimof	Telford Story and Associates
For the Defendant	J Castelan	Corrs Chambers Westgarth

HIS HONOUR:

A. Introduction

An application has been made after court hours seeking an injunction to prevent the defendant (“Seven Network”) from airing a program on its Today Tonight show at 6.30 pm. Peter and Robert Hawthorn (“the Plaintiffs”) say they have been defamed on previous occasions by Seven Network on the Today Tonight show. They fear they will be defamed again by reason of a program that is to be broadcast tonight.

The Plaintiffs do not know what is to be broadcast, but anticipate the nature of the broadcast based on previous programs. Seven Network is not willing to provide the Plaintiffs with a copy of the intended broadcast.

For reasons that follow, the application must be dismissed.

B. The facts

An affidavit sworn by Peter Hawthorn (“Hawthorn”) today indicates that he learned yesterday evening that Seven Network intended to broadcast a program which referred to him. Hawthorn and his son are in the meat industry. In the past, Seven Network has broadcast comments and footage the Plaintiffs’ conduct, which had been highly critical of Hawthorn and his son, Robert.

The Plaintiffs say that there is no doubt that they have been defamed by reason of a previous broadcast by the Seven Network. However, they have never before commenced a proceeding to seek to vindicate their rights. The Plaintiffs submitted that the fact that they have not sued for damages in relation to previous publications ought not preclude them from preventing further wrongful conduct.

Having learned of the intended broadcast, solicitors for the Plaintiffs contacted Seven Network and asked for a copy of the program. Seven Network has refused to provide it. The only evidence before me of what might be broadcast is a copy of a web page of the web site affiliated with Seven Network, which contains a photo of Hawthorn, together with the following caption:

How do businesses that rise from the ashes to cheat and steal get away with it?

It was submitted on behalf of the Plaintiffs that the court ought to infer it is highly likely that Seven Network will be highly critical of the Plaintiffs, or at least Hawthorn, in this evening’s broadcast. This inference, it was submitted, ought readily be drawn from the previous programs, together with the current web…

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.

Keep reading for free

Create a free CaseChat account to read Hawthorn v Seven Network Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] VSC 352
Decision Date: 10 July 2013

CaseChat Overview and Summary

The plaintiff, Hawthorn, sought an interlocutory injunction to prevent the defendant, Seven Network Ltd, from broadcasting a segment of a television program which it was alleged would be defamatory. The dispute was heard in the Federal Court of Australia. The primary legal issue before the court was whether an interlocutory injunction should be granted to prevent the imminent broadcast of a potentially defamatory television segment. The court had to consider the applicable principles for granting interlocutory injunctions, including the balance between the public interest in freedom of expression and the need to protect reputation.

The court examined the evidence presented by both parties and determined that there was insufficient information to establish the defamatory nature of the broadcast. The court emphasised the importance of a strong showing of the likelihood of the alleged defamation, and noted that the public interest in freedom of speech weighed heavily against granting the injunction at the interlocutory stage. The court concluded that the plaintiff had not provided enough evidence to satisfy the threshold for an interlocutory injunction, and therefore dismissed the application.

The Federal Court found that the plaintiff had not demonstrated a sufficient likelihood that the broadcast would be defamatory, nor had they shown that the balance of convenience favoured granting the injunction. The court highlighted the need for a robust evidentiary basis when seeking interlocutory relief in cases involving freedom of expression. The application for an interlocutory injunction was dismissed, and the court found that the matter should proceed to a full hearing to determine the merits of the defamation claim.

Orders