Hemmes v Seven Network Limited

[2000] NSWSC 246

CITATION:	Hemmes v Seven Network Limited [2000] NSWSC 246
FILE NUMBER(S):	SC 1879 of 2000
HEARING DATE(S):	29 March 2000
JUDGMENT DATE:	30 March 2000
PARTIES :	Plaintiff: John Hemmes Defendant: Seven Network Limited
JUDGMENT OF:	Hulme J at 1

COUNSEL :	Plaintiff: R Angyal, N Abadee Defendant: S Rares SC, N Beaumont
SOLICITORS:	Plaintiff: Landerer & Company Defendant: Mallesons Stephen Jaques
CATCHWORDS:	Defamation - Interlocutory injunction
CASES CITED:	Chappell v TCN Channel Nine Pty Limited (1988) 14 NSWLR 153 Loveday v Sun Newspapers Limited (1938) 59 CLR 503
DECISION:	Grant interlocutory injunction

- 11 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

NO: 1879 of 2000
Thursday 30 March 2000

HULME J

JOHN HEMMES v SEVEN NETWORK LIMITED

1    HIS HONOUR: On Monday evening of this week, I granted an ex parte injunction in this matter up until 4.00pm yesterday. When the matter came before me yesterday morning, the Defendant moved to dissolve that injunction and the Plaintiff sought a further injunction in somewhat more restricted terms.

2    After some debate the parties reached a degree of compromise in respect of the Defendant’s motion, it being agreed that the ex parte injunction should be dissolved, costs would be reserved and the Defendant gave an undertaking that it would not make the publication, to which the Plaintiff objected prior to 6.30pm on that day. At about 6pm on Wednesday 29 March 2000, the Defendant extended that undertaking up to 6 or 6.30pm today. The issue which is the subject of these Reasons is the Plaintiff’s application for a further interlocutory injunction seeking that the Defendant be restrained until further order from publishing words suggesting that:-

(i) The Plaintiff was a dishonourable man, in that he fled from New Zealand a week after a woman with whom he had been romantically involved there told him she was pregnant to him.
(ii) The Plaintiff was a dishonourable man in that for twenty years he repeatedly refused to acknowledge that Dale Young was his biological daughter, when in fact he knew that Dale Young was his biological daughter.
(iii) The Plaintiff was a coward in that he refused to acknowledge to John Young that he was his biological father, when in fact he knew that he was John Young’s biological father.
(iv) The Plaintiff was so lacking in integrity and common decency that he refused to accept any responsibility for two children that he knew were his.

3    The genesis of the Defendant’s interest in the Plaintiff and of the broadcast which, unless restrained, the Defendant proposes to make, lies in statements apparently made by a John Young and his mother Lola Kinsela to the effect that Mr Young and a deceased twin are the children of the Plaintiff in consequence of a relationship Miss Kinsela had with the Plaintiff in New Zealand in or about 1953. It is unnecessary that I repeat here all of the ancillary allegations by Mr Young and his mother.

4    The topic has been the subject of some newspaper reports including one in the Sun Herald of 2 January 2000, one in the Daily Telegraph on 27 March 2000 and, probably another in that newspaper on 11 February last.

5    The Plaintiff is a successful businessman and while he may have attracted some publicity in that connection is not a public figure as that expression is normally understood. He does not now and never has held any public office.

6    However, he has on at least one occasion granted an interview to a member of the press and on at least two occasions would seem to have responded to questioning by journalists concerning the matters raised by Mr Young. The Plaintiff’s statements in this regard are much relied on by the Defendant in this case and accordingly, it is necessary to address them in a little detail.

7    The interview was reported in a Sunday edition of the Sun Herald in November 1999 and was one of at least four comparing the lots of parents and their children. It encompassed a number of aspects of the Plaintiff’s life including time in a concentration camp during the war, his arrival in Australia, meeting his wife - which, despite some confusion in dates, seems clearly to have occurred after the Plaintiff was in New Zealand - and commencing in business. Among the parts of the interview particularly relied on by the Defendants was the following:-

Q Was it important to you to become a father?
A Very. Although when Bettina was born in 1963, Merivale was making hats until 1am that night. She went to bed and at 4am we had to go to hospital and she had the baby at 4.30am. Give days later, she was back at work! But now it’s a big episode.
Q Did you have a few girlfriends before you married?
A Yes. Love girls. I think Justin’s picked that up from his father.
Q Did you have sex before marriage?
A Yes but I only started when I was 19. It was harder (to be safe). Now it’s fairly easy.

8    The report in the Sun Herald of 2 February 2000 followed conversation between the Plaintiff and a journalist, a Mr Crittle. According to evidence from the Plaintiff which, for present purposes, I am disposed to accept, Mr Crittle asked for an interview but the Plaintiff refused to participate in one. However, in the course of their phone conversation, the Plaintiff apparently described paternity claims made or threatened by Mr Young as “madness” and made other statements to the effect of the following:-

“I was in New Zealand almost 50 years ago and I did have girlfriends - I am not a homosexual. But I can’t remember the names after all this time and know nothing of fathering children.”
“I have never heard anything more ridiculous in my life.”
“I don’t have anything to do with that (presumably the claims) and it sounds like a bit of blackmail coming out.”
“This is madness, I don’t know him (Mr Young) from Adam. It sounds like somebody put a joke and it’s a sick joke, it is madness, it is crazy.”
“Someone is putting you on. It seems all very strange to me…” There is something very funny going on. Are they asking for money? This is blackmail.”

9    In the course of a telephone conversation with one of the reporters responsible for the article of 11 February in the Daily Telegraph, the Plaintiff made statements to the effect of extracts from the article which I set out below:-

“I’m not looking for any strangers to try to knock on my door for money.”
“Hemmes said he lived in New Zealand for 2 years in 1951 and 1952 but did not remember a woman then known as Lola Kinsela, John Young’s mother.”
“On allegations he fathered the twins, Hemmes responded: “It’s all bullshit… and it’s really upsetting because I’m very happily married.”

The Plaintiff had also said that he recalled a conversation some 8 years previously with Mr Young’s twin but dismissed her claims as “a fairy story”.

10    Part of the inspiration for the television presentation which, unless restrained, the Defendant proposes to show, seems to have been the arrival of Mr Young in Australia, accompanied by a television crew from a New Zealand station. In what is now a not uncommon practice, a surprise meeting between Mr Young and the Plaintiff and which the film crew were prepared for and filmed was orchestrated in somewhat dramatic fashion. Indeed, so pleased with the drama apparent in that meeting is the Defendant that that segment figures some three or more times on the broadcast proposed to be shown. The broadcast also shows, inter alia, a journalist and film crew at the front of the Plaintiff’s residence and interviews with both Mr Young and his mother.

11    It was not argued by the Defendant that the imputations, the subject of the Plaintiff’s application were not defamatory. It was faintly argued that they did not arise on the face of the broadcast but when I suggested that in that situation a grant of the injunction would not cause any difficulty to the Defendant or preclude the broadcast from going ahead, the argument quickly faded. I am satisfied the imputations do arise.

12    The principal argument before me revolved around whether this was a case where, in accordance with the principles applying when an attempt is made to prevent the publication of defamatory material, an injunction should go. The leading authority on the topic is Chappell v TCN Channel Nine Pty Limited (1988) 14 NSWLR 153 and it is the law that is laid down in that decision which has principally guided me in this case. The stage in the action has not yet been reached when the Defendant has been required to plead but Counsel appearing for it argued that the publication was one where questions of truth, public interest and qualified privilege arose. It was submitted that I could not be sufficiently satisfied of the Plaintiff’s prospects of success in an action as to justify the grant of an injunction. I was also submitted the case was one where damages were an adequate remedy.

13    In his affidavit of 29 March 2000, the Plaintiff swore that each of the imputations sought to be restrained was false and, although the question of the Plaintiff’s paternity was explored, the full assertion was not the subject of challenge in cross examination. This provoked counsel for the Plaintiff to rely on the principal for which Brown v Dunn is generally cited. However, the statements made by Mr Young and his mother in the proposed broadcast and attributed to them in the articles to which I have referred do indicate there is a live issue as to whether the Plaintiff is in fact the father of Mr Young and whether the Plaintiff knew of that and had been informed by Miss Kinsela of her pregnancy at about the time it occurred. Given the terms of the Evidence Act, it seems to me that these statements are some evidence of the truth of the matters asserted in them. Furthermore, although I permitted cross examination by Mr Rares of the Plaintiff notwithstanding the nature of the proceedings, I did indicate that I was minded to limit cross examination to a reasonably short period. In the light of the nature of the proceedings, the statements to which I have referred and that intimation, it does not seem to me that it is appropriate to regard the Defendant as precluded from relying on the issue of truth.

14    Given the terms and circumstances of the various statements of or attributed to Mr Young and Miss Kinsela, the issue of truth itself is one on which the Defendant must be said to have at least reasonable prospects of success.

15    However, mere truth is not a defence. Pursuant to Section 15 of the Defamation Act, to have this result the imputation must also relate to a matter of public interest or be published under qualified privilege. So far as the first of these matters is concerned, it is to my mind clear beyond reasonable argument that but for the statements the Plaintiff may have made in recent years on the topic, the question of whether he had a relationship with Miss Kinsela and whether he fathered Mr Young and his sister over 45 years ago and how he responded to information concerning, or knowledge of, these matters, is not a matter of public interest. Any “interest” of the Channel 7 listeners would only be as a matter of gossip or curiosity or news not as a matter of substance - Gatley on Liable and Slander 9th Edition para 14.9. These matters did not become of public interest merely because Mr Young or Miss Kinsela “went public” on the topic and their remarks became of interest to, or were published by the media.

16    The Defendant’s argument on this issue was, as I have indicated, substantially founded on the statements which the Plaintiff had recently made on the topic. In this regard, emphasis was placed on the fact that the Plaintiff had not simply denied the allegations but had himself used words such as “madness”, “ridiculous”, “blackmail”, “fairy story”, “bullshit” and talked about strangers knocking on his door for money.

17    By these and the like recent statements, it is said that the Plaintiff has made a public attack on Mr Young and Miss Kinsela and by that means made the topic a matter of public interest. The situation was analagous, so it was submitted, to that dealt with by the High Court in Loveday v Sun Newspapers Limited (1938) 59 CLR 503. Furthermore, attention was directed to the terms of Section 15(2)(b) which required merely that the imputation “relate” to a matter of public interest.

18    In light of the Plaintiff’s refusal to be interviewed by Mr Crittle, it may be doubted whether it could be said that the Plaintiff made anything a matter of public interest. However, it is unnecessary for me to place reliance on that.

19    The reference to “bullshit” can be put aside. In context it could not be regarded as other than an emphatic denial. With slightly less confidence, but still a great deal, the same can be said of the references to “fairy story”, “madness” and “ridiculous”.

20    The Defendant’s arguments based on the other statements attributed to the Plaintiff fall into a different category but also, in my view, fail. The imputations, the making of which the Plaintiff seeks to restrain go much further than could be regarded as necessary or indeed as a reasonable response by the Defendant to any of the statements which the Plaintiff made and such is the difference that they cannot be said to relate to any matter of public interest created or inspired by the remarks attributed to the Plaintiff.

21    The Defendant also submitted that in the interview of November 1999 the Plaintiff had made his private behaviour a public issue as contemplated by Hunt J in Chappell v TCN Channel Nine Pty Limited at 167F. However, I do not agree. Firstly, it does not seem to me that the Plaintiff was making an issue of the matters referred to in that article and although there is reference to the importance to the Plaintiff of him becoming a father, it was in a context of marriage, quite different from the topic which has excited the interest of the Defendant and the subject of the proposed broadcast.

22    I turn then to the issue of qualified privilege. It was submitted on behalf of the Plaintiff that the only conclusion open was that two of the elements of this defence, at least in so far as it related to information, were not made out. These were the elements described in sub-paragraphs 1(a) and 1(c) of Section 22 of the Defamation Act viz.

“(a) The recipient has an interest or apparent interest in having information on some subject.
(c) The conduct of the publisher in publishing that matter is reasonable in the circumstances.”

23    It was submitted on behalf of the Plaintiff that the public or that portion of it as was likely to be watching Channel 7 could have no interest or apparent interest as that term is to be understood in the context of Section 22, in having information on the topic of whether the Plaintiff had fathered children 45 years ago or his subsequent treatment of persons claiming to be such or their mother. Although the alteration in language between Section 15(2)(b) and Section 22(a) must be recognised the remarks made above on the topic of public interest are of obvious relevance in the context of the latter provision. I accept the Plaintiff’s submission in this regard.

24    Again, the imputations the making of which the Plaintiff seeks to restrain go much further than could be regarded as necessary or indeed as a reasonable response by the Defendant to any of the statements which the Plaintiff made. That would probably be so even if made in the publications wherein the Plaintiff’s remarks were reported shortly after that reporting. The situation is a fortiori when that publication is made weeks afterwards, by a different branch of the media and, although I do not need to rely on this, when accompanied by the apparently dramatic activity in the course of the meeting orchestrated by Mr Young, television media or both.

25    Thus in my view there is no reasonable likelihood of the defence of qualified privilege succeeding either. The Defendant indicated also that the defences, the subject of Section 16 and Division 7 of Part 3 of the Act, also arose for consideration although directed no particular submissions in that regard. In my view these are more unlikely to succeed than the defences to which I have already referred.

26    I turn to the question of damages and the balance of convenience.

27    Although the common law has traditionally regarded itself as capable of assessing damages in matters of defamation, no large reflection on the topic is necessary to recognise the extent of imprecision in this exercise. Particularly is this so if somewhat similar defamatory statements, whether justifiable or not, are made by different sections of the media at different times.

28    There was no evidence and little by way of suggestion that the grant of an injunction would impose any appreciable, let alone significant, detriment on the Defendant and, having regard to the Plaintiff’s interests I am satisfied that the balance of convenience is heavily in favour of the grant of the injunction. Lest it be thought I have forgotten the matter, I am conscious of the restraint which I must exercise in that regard.

Last Modified: 09/25/2000