Hawthorn v Seven Network Ltd
[2013] VSC 352
•10 July 2013
| 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 |
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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 | |
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INJUNCTIONS – interlocutory injunction – imminent television broadcast – potentially defamatory publication – applicable principles – public interest – insufficient information about defamatory nature of broadcast – application dismissed.
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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 page.
I was informed that Seven Network had removed the caption from the web site, but did not intend to make any change to the intended program this evening.
C. Relevant Principles
When considering whether or not to grant the discretionary relief of an injunction, the court must be satisfied that:
(1)There is a serious question to be tried, in the sense that the plaintiff must show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending trial.
(2)If there was no injunction, but the plaintiff’s claim was ultimately vindicated, the plaintiff will have suffered irreparable harm from which damages will not be an adequate remedy.
(3)The balance of convenience must favour the grant of an injunction.[1]
[1]See, for example, Perfection Fresh Australia v Melbourne Market Authority [2013] VSC 287, [43] and the authorities referred to.
Further, there is a relationship between “a serious question to be tried” and “balance of convenience”. If the claim of a plaintiff is very weak, then the balance of convenience must be more strongly in favour of the plaintiff before the court grants injunctive relief so that there is a lesser risk in the granting of any injunction.[2]
[2]Bradto Pty Ltd v State of Victoria (2006) 15 VR 65, 82 [84]. See also Samsung Electronics Co Ltd v Apple Inc (2012) 286 ALR 257, 272–273 [51].
Furthermore, before a plaintiff is entitled to an injunction, it is necessary for the plaintiff to identify the legal or equitable rights which are to be determined at trial and in respect of which there is sought final relief.[3]
[3]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 241 [91].
Finally, Warren CJ made observations in Crisp v Fairfax Media Ltd,[4] which are particularly relevant to the circumstances of this case. Her Honour said[5]:
Mr Crisp needs to establish a prima facie case of defamation, that damages would be an inadequate remedy and that the balance of convenience favours the granting of the injunction. Furthermore, in defamation law, exceptional caution is exercised before injunctive relief restraining publication is granted …(Citations omitted.)
[4][2012] VSC 615.
[5]At [12].
Her Honour referred to Australian Broadcasting Commission v O’Neill,[6] and continued:[7]
In essence, Gleeson CJ and Crennan J reached the position on the basis of four factors: first, the public interest in free speech; secondly, the legal uncertainty that prevails until the defence of justification is resolved; thirdly, a defence of justification is ordinarily a matter for the jury rather than a judge; and fourthly, the general character of a plaintiff may be important at trial. Significantly for present purposes Gleeson CJ and Crennan J held:
It is one thing for the law to impose consequences, civil or criminal, in the case of an abuse of the right of free speech. It is another matter for a court to interfere with the right of free speech by prior restraint. In working out the consequences of abuse of such freedom, the law strikes a balance between competing interests, which include an individual's interest in his or her reputation. When, however, a court is asked to intervene in advance of publication wider considerations are involved. This is the main reason for the ‘exceptional caution’ with which the power to grant an interlocutory injunction in a case of defamation is approached.[8]
[6](2006) 227 CLR 57, 73 [32], 73–74 [34] and 84–87 [73]–[83].
[7]At [12].
[8]Referring to Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57 at 73 [32].
Her Honour also referred to the judgment of Heydon J in Australian Broadcasting Commission v O’Neill,[9] where his Honour said:[10]
In truth, only one proposition of any importance flows from the appeal. That is that as a practical matter no plaintiff is ever likely to succeed in an application against a mass media defendant for an interlocutory injunction to restrain publication of defamatory material on a matter of public interest, however strong that plaintiff's case, however feeble the defences, and however damaging the defamation.
[9]At [13].
[10]At 115 [170].
As may be seen from the passages referred to, the threshold that needs to be met in relation to obtaining an injunction to prevent a publication in a television broadcast is, generally speaking, a very substantial one.
D. Application of the principles to the facts
Because there is no evidence before the Court as to what is to be broadcast tonight, I cannot be satisfied that there is a serious question to be tried. What is to be published may or may not be defamatory. The Court has simply no way of ascertaining in any meaningful way whether or not the Plaintiffs are likely to be successful at trial.
The one indication as to what might be published is the caption referred to in paragraph 6 above. Whilst that suggests it is likely that the broadcast will be critical of the Plaintiffs, or at least Hawthorn, it also suggests the subject matter may be one of public interest.
Further, the balance of convenience must be considered in light of the subject matter of this case. As was stated by the High Court in Australian Broadcasting Commission v O’Neill,[11] and referred to by Warren CJ, there are considerations concerning freedom of speech which make it inherently difficult for the Plaintiffs to satisfy the Court that the balance of convenience favours their position. This must be particularly so in circumstances where actual evidence of the intended broadcast is not available.
[11](2006) 227 CLR 57.
Finally, if Seven Network were to defame the Plaintiffs, or either of them, by reason of this evening’s intended broadcast, I cannot be satisfied that damages are not likely to be an adequate remedy.
Accordingly, the application must be refused with costs.
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