Jakudo P/L v SA Telecasters Ltd No. Scgrg-97-952 Judgment No. S6260

JAKUDO PTY LTD v SA TELECASTERS LTD

Injunction
Lander J
This is an application by the plaintiff for an interlocutory injunction restraining the defendant from advertising, transmitting or otherwise publishing the program or material held by the defendant for its proposed program for Today Tonight, concerning the plaintiff and its operation of the Lewis Nursing Home.
Since 1 July 1996 the plaintiff has been the proprietor of the Lewis Nursing Home at Portrush Road, Beulah Park. During that time it is the plaintiff's evidence that it has spent a substantial sum of money in the refurbishment of the kitchen, and upgrade of various rooms within the nursing home. At the present time the proprietor is in the process of installing a new ducted air conditioning system throughout the original part of the premises.
The directors and shareholders of the plaintiff are Graham John Bennett and Marlene Mary Bennett. They are also the directors of another entity which operates the Valley View Nursing Home. They have operated, nursing homes through corporate entities, for more than 25 years.
The Lewis Nursing Home is a registered private nursing home specialising in geriatric care. It has a 40 bed capacity. The proprietor's evidence is that it employs five registered nurses, 27 carers, 4 kitchen staff and a chef, 2 laundry staff, contract cleaners, a contract gardener and a specialist advisor to provide instruction and assistance for the personal carers. The company employs 3 activity staff who organise activity and entertainment for the residents. The plaintiff says that a physiotherapist and a podiatrist call once a week. So also does a contract maintenance person. A hairdresser visits two days a week.
Mrs Filomina Polito is a resident of the home. Her daughter is Rosemarie Polito. Mr Reg Clements was formerly a resident and was in residence from 13 February 1997 to 12 June 1997. Ms Lorraine Taylor is his daughter. Mrs Lorna Brown is also a resident.
On Friday, 4 July 1997 persons either employed by or contracted to the television station of which the defendant is a proprietor, Channel 7, entered the nursing home unannounced and began filming. Mr Bennett, the Chief Executive Officer of the nursing home, said in an affidavit sworn on 7 July:
"On Friday 4 July, Mr Frank Pangallo and a camera crew from Channel 7 entered Lewis through the rear door and began filming within Lewis. I requested that they turn their camera off so as not to disturb or upset the residents. That request was ignored. I then asked Mr Pangallo if he would come out into the garden at the rear of Lewis to discuss the matter. He then proceeded to interview me on camera. He put various allegations to me. I now cannot remember precisely what I said, but the type of allegations he put to me were as follows:

Residents did not receive enough food;
Residents remained unwashed for several days;
That staff turned the heaters off at night;
That some residents were emaciated;
That food was locked away and denied to the residents.
I denied those allegations, save and except that the kitchen is locked at night. I explained to Mr Pangallo that the residents receive their main meal in the middle of the day; that they can have as much food as they like, that they can have a choice of food and that we accommodate any special dietary requests. I explained that the kitchen was locked at night because kitchen staff were not on duty throughout the night. After the visit from staff from Channel 7 I sought advice from O'Loughlins."
On Saturday, 5 July 1997 Mr Bennett was watching Channel 7 when he said he saw a promotional bulletin for their Today Tonight program for Monday, 7 July.
Ms Bennett, the director of nursing at the Lewis Nursing Home, deposed in her affidavit sworn on the same day:
"During the course of the weekend, I saw on Channel 7 a segment promoting their Today Tonight program for Monday 7 July 1997 at 6 p.m. involving Lewis... One of the persons filmed on the promotional bulletin is a person known to me as Lorraine Bailey. Bailey is the daughter of Mr Reg Clements, a former resident of Lewis. I also believe that one of the commentators is Rosemarie Polito whose mother, Mrs Filomina Polito, is a current resident. As far as I have been able to record, the narration on the promotional bulletin is as follows."
Before I go to that, I should mention that the woman she refers to as Lorraine Bailey is in fact Lorraine Taylor.
"Voiceover: On Monday, a Today Tonight report that will shock every family.
Lorraine Taylor: You know how I would describe it? The nursing home from hell.
Lorna Brown: … must be done.
Voiceover: We uncover serious neglect. The frail forced to sleep in icy cold rooms.
Lorraine Taylor: Cold, it was freezing.
Ms Polito: Bed sores and skin problems from socks left on for days. They removed her socks and the skin came away with it.
Voiceover: The aged left to go hungry.
Lorraine Taylor: He was starving to death.
Voiceover: Insiders blow the whistle. That's Monday night on 7.
During the course of the narration there is film depicting an internal corridor of Lewis and the following residents in order: Grace Daniels, Filomina Polito, Ada Megram, Joyce Chapman, Lorna Brown, Grace Daniels, Joan Hill, which includes film of sores on her feet.
All of the residents depicted in the promotional bulletin are extensive care residents. They are all suffering dementia, with the exception of Lorna Brown, as well as other physical and mental health illnesses. The level of independence allowed to residents depends on their physical and mental state. While the nursing care provided to each resident will vary depending on each resident's needs, a general summary of care and service provided to each resident is…"
Then Ms Bennett set out the general summary of care and service which she said was provided by the Lewis Nursing Home.
Messrs. O'Loughlins, solicitors for the plaintiff, wrote to Channel 7 on 4 July 1997. After making a complaint about Mr Pangallo's behaviour at the nursing home and drawing the attention of the television station to the fact that it was alleged that Mr Pangallo had confidential records of the plaintiff, Messrs. O'Loughlins wrote as follows:
"You are on notice that if you proceed to run to air a report on our client which is any way defamatory, false or misleading, we will institute proceedings against you seeking damages. Ms Rosemarie Polito will be joined in those proceedings.
We would also request that you allow us to view the proposed report before it proceeds to air. We would be happy to make recommendations in respect of the report to avoid any prospect of any further legal action. Please provide us with your response as a matter of priority."
On 7 July, 3 days later, Messrs Finlaysons, solicitors for the defendant wrote as follows:
"We act for South Australian Telecasters Ltd, the operators of Channel 7 Adelaide.
Our client has provided us with a copy of your letter dated 4 July 1997.
Representatives of our client, including Mr Frank Pangallo attended at your client's premises at the invitation of one of the residents. Interviewing Mr Bennett was not the sole purpose of the attendance. Our client would be surprised if it were the case that your client is suggesting that residents of its nursing home had no right to receive visitors.
Representatives of our client are continuing to edit a story about your client's nursing home. They are also continuing to gather material for inclusion in that story. They are unlikely to be in a position to show you the story in sufficient time before it is broadcast to enable them to give effect to any recommendations you may make."
I must say that I am surprised by the terms of that letter which I must suppose was written on the instructions of the defendant. The letter displays a calculated indifference on the part of the defendant to the rights, if any, of the plaintiff.
The letter requires the plaintiff to come to this court to protect its rights but in circumstances where the plaintiff could not be aware of the article which was proposed to be published about it. There is no doubt that the promotion is a serious defamation of and concerning the plaintiff. It may also be a defamation of a number of other people including the directors of the plaintiff, perhaps the senior executives, the Director of Nursing and some of the nursing and caring staff employed by the plaintiff. The article may also be defamatory of persons who have had the responsibility of placing relatives as residents of the nursing home. Moreover because the promotion claims a lack of medical attention and that residents have been left to starve to death, the promotion may also be defamatory of some medical practitioners who visit the nursing home from day to day and week to week.
Lastly it may also be defamatory of those who were charged with the responsibility of licensing nursing homes and the particular person who is carrying out an enquiry into the nursing home apparently at the instigation of Mrs Polito.
I do not need to decide, however, whether the article is defamatory of anyone apart from the plaintiff, but I set out the class of persons to whom the promotion may be defamatory in considering the letter from Channel 7’s solicitors.
It is not only the plaintiff's rights which are important in this matter but there are the rights of a number of other persons. The promotion which was shown depicted a number of residents at the nursing home. The promotion says that the nursing home is "The nursing home from hell" and that the television station has uncovered serious neglect as a result of a major investigation into that nursing home.
In those circumstances I believe, having regard to the class of persons who may be affected by the story, that the response of the television station might be thought to be inappropriate.
On the first occasion the matter came before me I asked Mr Harris, who appeared for the defendant, whether the residents or persons who could speak on behalf of the residents had consented to being depicted on television. Mr Harris obtained instructions in the courtroom from Mr Graham Archer and advised me that all the residents who were depicted either consented themselves or gave a consent through a person who was entitled to speak for them. I was concerned to have that assurance because otherwise the particular residents might suffer the indignity of being portrayed on television in circumstances where perhaps their debility would be apparent. In due course the assurance given to me turned out to be illusory. Three of the persons displayed in the promotion had given no such permission themselves or through a relative. It was at least disappointing that the defendant in this matter was so ready to give an assurance which was in part wrong.
Mr Archer, the producer of the programme which was to televise the article, subsequently swore an affidavit in which he deposed that at the time he gave instructions to Mr Harris he believed those instructions to be accurate. It was only later that he became aware that certain people depicted in the promotion had not consented to their being televised to the public.
I pointed out to Mr Harris that the explanation was not sufficient having regard to the assurance his client had given to the Court.
The defendant sought the adjournment of the matter in order that it might put before the Court an affidavit of the journalist who had given the information to Mr Archer which gave rise to his instructions to Mr Harris and his client's assurance to this Court.
The explanation for televising the images of people who had not consented to being televised was in a nutshell that the journalist, Mr Pangello, mistakenly believed that two persons depicted were other persons who had consented. He had not advised Mr Archer that he had made that mistake until after the assurance was given to the Court. I have also seen evidence that two of the persons who did consent to being shown in the promotion did not give that consent until after I had raised the matter with Mr Harris and his client had given the assurance to which I have referred.
It may be inferred from both the admission made by Mr Pangello in his affidavit and the other evidence to which I have referred that two, perhaps four persons had not given their consent at the time that Channel 7 advised me that all of the persons depicted had consented to their being televised.
In the end it is not a matter which I need to decide. It is enough for me to observe that in interlocutory applications a Court is often obliged to act upon assurances given from the bar table. This defendant is no stranger to litigation. The very nature of its business brings it into Court on applications of this kind. Moreover, its business includes enquiring into Court proceedings generally.
It would know better than most parties that assurances given from the bar table are acted upon by the Courts in determining other persons rights. An assurance wrongly given may give rise to irrevocable and irremediable harm to another party. In the end, however, I do not think that the assurance wrongly given ought to impact upon the decision which I am obliged to make in this case.
The plaintiff is of course a corporation but is entitled to bring action to protect its reputation in relation to its business and its trading reputation. South Hetton Coal Co. v North Eastern News Association (1894) 1QB 133.
The promotion, of course, is deemed to be a publication in the permanent form and if it is defamatory of any party a libel of that party: Broadcasting Act (1942) s120.
The promotion in my opinion is calculated to bring the plaintiff into hatred, contempt or ridicule. It is calculated to damage the plaintiff in its business or trading reputation.
The promotion is in my opinion defamatory of the plaintiff because the following imputations necessarily arise.
The proprietor of the nursing home is guilty of serious neglect of its residents.
The residents are left to freeze. They are forced to sleep in icy cold rooms.
It is of the worst kind of nursing home.
The residents are inappropriately treated.
The residents are not given medical treatment.
The residents are left to suffer bed sores and skin problems.
Mr Reg Clements has been starved.
The proprietor allows the residents to go hungry.
The proprietor allows the residents to starve.
There are probably no more serious allegations which can be made of the plaintiff in its business or trading reputation, save I suppose that the neglect had caused the death of a resident. Subject to that, I think that the imputations arising are as serious as they could be.
The nursing home is not identified in the promotion. However, as I have mentioned a number of the residents are depicted in the promotion and there would therefore be a class of persons, being those persons who know the residents, who would be aware of the identity of the plaintiff. To that extent the defamation is of and concerning the plaintiff.
If the defamation was untrue or no other defence was available to the defendants, in my opinion the plaintiff might recover a substantial amount by way of damages. The amount of those damages might be difficult to quantify because in part they would include damages arising out of the financial loss suffered by reason of the publication.
The plaintiff, however, seeks at this stage to prevent the defendant from enlarging on the defamation by the publication of a further article on the Today Tonight show. That is the article referred to in the promotion.
I have dealt with the promotion at length because I think it is relevant to an understanding of the proposed article. A person who heard and saw both the promotion and the article would understand the article having regard to the promotion. It is the article which is promised in the promotion as being a major investigation into an Adelaide nursing home during which Channel 7 has uncovered serious neglect as a result of which the nursing home could be described as "The nursing home from hell". The promotion promises that the neglect includes requiring the frail to sleep in icy cold rooms. It also promises evidence that the aged are left to go hungry and that a resident was starving to death.
When the matter first came before me on Monday afternoon I pointed out to Mr Andrew Harris, that whilst an assessment could be made of the defamation already published, the difficulty confronting the plaintiff and indeed the court, was that it was impossible to know the extent of the further defamation which was to be broadcast.
Assuming the promotion to be correct and no other assumption could be made, it was possible to assume that it would have involved a very serious defamation of and concerning the plaintiff. However I could not know, without seeing the article, whether the publication would be to a wider class of people. It was not known whether the article would name the Lewis Nursing Home or whether the major investigation into the Adelaide nursing home would not mention the name of the proprietor of the nursing home which had been guilty of such serious neglect.
However, I could suppose that the publication would be wider because of Mr Bennett's affidavit in which he deposed that he was interviewed in connection with the article. If his face was broadcast then in those circumstances anyone who knew Mr Bennett would become aware of the proprietor of the nursing home and to that extent at least the class of persons to whom the publication would be made would be wider.
After some argument Mr Harris proffered undertakings by his client that it would not publish the article on Monday evening but would make the article available to me on Tuesday prior to the resumption of the argument on Tuesday afternoon.
The undertakings contained a reservation that the promotion deposed to in Mr Bennett's affidavit would continue to be published until 6.30 p.m. on Monday evening, notwithstanding that the article would not be shown at 6.30. The reservation was necessary because the promotion had been included within the computer and could not be removed in the time available. Mr Besanko QC who appeared for the plaintiff, indicated that his client would be satisfied with those undertakings provided that his client could obtain a copy of the article at the same time as one was supplied to the Court. In those circumstances I accepted the undertakings given by the defendant.
As promised the article was provided to the court and to the plaintiff on Tuesday, but not in sufficient time for the plaintiff to obtain instructions in relation to the contents of the article. Mr Besanko therefore sought a further adjournment of the hearing of the matter so that he could take instructions in relation to the article and provide the court with a transcript of the matters mentioned in the article. That application was not opposed and the matter was adjourned until Wednesday with the same undertakings given by the defendant in relation to the programming on Tuesday night.
I have now viewed the article. It contains very serious allegations about the plaintiff all of which would be defamatory of the plaintiff in its business and trading reputation. It also clearly identifies the nursing home and thus is undoubtedly a serious defamation of and concerning the plaintiff.
The article which was proposed to be televised was tendered. The transcript appears as an exhibit to an affidavit of Mr Michael Bennett sworn on 9 July 1997. The defendant now intends to publish the article, if permitted, in a modified form. I will deal with those proposed changes in due course. I do not intend in these reasons to set out the article.
Again, the article may be defamatory of a number of persons apart from the plaintiff, including the directors of the plaintiff and other senior executives of the plaintiff. The same class of persons to which I earlier referred may also be defamed in the story. However I need only address any defamation which is of and concerning the plaintiff.
Mr Besanko claimed that the imputations to which I have referred would arise again in respect of this article. Mr Harris did not contest the submissions made by Mr Besanko in relation to the imputations which might arise but pointed out that the imputations as put were general in form and could be justified by evidence of particular acts. Mr Besanko also claimed that further imputations were raised. He said that the article gave rise to the imputations that the proprietors were:

Incompetent and unprofessional.
Callous and cruel.
Guilty of physical abuse and a form of emotional abuse.
Would put their interests above the interests of the residents.
Conducted their nursing home in a way that leaves the residents of the nursing home to wish that they were dead rather than remain resident at the nursing home.
During argument he said further imputations arose to the effect that the proprietors were starving the residents and in particular Mr Clements and the proprietors were treating the residents so badly that Mrs Brown became so badly ill that she had to attend hospital.
There are two imputations which can be more precisely stated. The first is that Mr Clements has been starved by the proprietors of the nursing home. The second is that as a result of failing to provide any sufficient heating and not withstanding her complaints of being freezing for a week, to which complaints the proprietors did not respond, Mrs Lorna Brown developed pneumonia for which she had to be treated in hospital. In the changed version of the article the imputation was the same as I have mentioned save that she needed to be removed by ambulance to the Royal Adelaide Hospital where she was treated for infective bronchitis.
I have not attempted, nor did counsel attempt to identify all of the imputations which might arise. However the two particular imputations to which I have referred, need to be addressed. The first is, as I say, that the proprietors have starved Mr Clements. The second, in a shorthand way of expression, is that they have so badly treated Mrs Brown that she has developed infective bronchitis for which she needed to be hospitalised.
The expression ‘starve’ means to have too little food to sustain life or health and to die a lingering death as from hunger.
In my opinion the article as framed does give rise to the imputation that the nursing home has so treated Mr Clements that he was dying a lingering death by reason of that maltreatment. In respect of Mrs Brown the imputation is that they so badly treated her that she contracted a disease which required her to be rushed to hospital by ambulance.
The jurisdiction to grant injunctions arises from s.29 of the Supreme Court Act. That provides that the court may grant an injunction in all cases in which it appears to the court to be just or convenient so to do. It can make any order either unconditionally or upon such terms and conditions as the court thinks just.
The jurisdiction to grant interlocutory judgment arises from that section and also from rule 68.02.
On an application for an interlocutory judgment a court is obliged to have regard to whether or not there is a serious question to be tried and the balance of convenience between the parties.
In Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148 at 153 Mason ACJ (as he then was) said:
"The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff will be entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted and (3) that the balance of convenience favours the granting of an injunction."
However a number of decisions have suggested that there is a special rule relating to interlocutory injunctions to restrain the publication or repetition of a libel. In Lennox v Krantz (1978) 19 SASR 272 at 276 Zelling J said:
"The locus classicus for Australia in this matter (referring then to interlocutory injunctions) has usually been considered to be the judgment of Walsh J (then of the Supreme Court of New South Wales) in Stocker v McElhinney (No.2) (1961) 79 WN (NSW) 538 where his Honour said:
"I consider the following propositions to be in accordance with the authorities:
Although it was at one time suggested that there was no power in the court under provisions similar to those contained in the Common Law Procedure Act, ss.176 to 179, to grant an interlocutory injunction, in case of defamation, it is settled that the power exists in such cases.
In such cases, the power is exercised with great caution and only in very clear cases.
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.
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."
More recently in Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 Hunt J considered the jurisdiction to grant interlocutory injunctions in cases involving a threatened libel.
His Honour commenced his very careful consideration of the authorities and the principles relating to the grant of interlocutory injunctions in cases of libel by referring to the judgment of Walsh J in Stocker v McElhinney to which I have referred.
He then referred to the leading case of Coulson v Coulson (1887) 3TLR 846. In that case Lord Esher MR said:
"It could not be denied that the court has jurisdiction to grant an interim injunction before the trial. It was, however, a most delicate jurisdiction to exercise, because, though Fox’s Act only applied to indictments and informations for libel, the practice under that Act had been followed in civil actions for libel, that the question of libel or no libel, was for the jury. It was for the jury and not for the court to construe the document and to say whether it was a libel or not. To justify the court in granting an interim injunction it must come to a decision upon the question of libel or no libel before the jury decided whether it was a libel or not. Therefore the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where if the jury did not so find the Court would set aside the verdict as unreasonable. The Court must also be satisfied that in all probability the alleged libel was untrue, and if written on a privileged occasion that there was malice on the part of the defendant. It followed from those three rules that the Court could only on the rarest occasions exercise the jurisdiction."
Three matters needed to be satisfied if the plaintiff was to succeed in the grant of an interlocutory injunction. The first was that a jury would say that a matter was libellous and that if a jury did not so find a court would say the verdict was unreasonable. The matter complained of had to be clearly and unequivocally a libel.
Moreover, the plaintiff had to establish that in all probability the alleged libel was untrue and if written on a privileged occasion, that it was actuated by malice.
Hunt J determined that the principal stated by Lord Esher MR in Coulson v Coulson (supra) and approved by the Court of Appeal in Bonnard v Perryman [1891] 2 Ch 269 that an interlocutory injunction would not go unless a jury's verdict of no libel would be set aside as unreasonable is one of practice only. In other words, he was not prepared to treat the first of the three rules to which Lord Esher MR referred as being any more than a rule of practice.
Hunt J as well specifically agreed with the decision of Ormiston J in National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747.
In that case the plaintiff sought to restrain a Victorian television station from publishing a program which contained defamatory imputations of and concerning the plaintiff. The defendant on the interlocutory application claimed that it would allege and prove the truth of the imputation at trial.
The defendant relied on Bonnard v Perryman (supra) and argued that interlocutory relief ought to be granted only in the rarest circumstances and only if a jury's finding of justification would be set aside as perverse.
In that respect Ormiston J was dealing with the second of the three rules to which Lord Esher had referred in Coulson v Coulson. His Honour said at p.753:
"Counsel for the television defendants took me to certain passages in the authorities which suggested that interlocutory relief should be granted in the rarest of circumstances, and that had been limited to cases where it could be seen that, if a jury accepted a plea such as justification, its verdict would be set aside as perverse. I cannot accept that the power of this Court to grant interlocutory relief can be so restricted, and I would adopt, without here repeating them, the perceptive comments of Dr Spry in his work, Equitable Remedies cited with approval by Kennedy J in Lovell v Lewandowski.
Although it was suggested that the apparent rules laid down in Bonnard v Perryman and succeeding cases depended in some way on the probabilities test of a prima facie case derived from Beecham Group v Bristol Laboratories, in truth the relevant test was for many years, both before and after 1891, and is yet again, whether there is a substantial question to be investigated at trial.
However the real question on any application such as this, where the defamatory nature of the words is not disputed, is whether it is "just and convenient" to grant relief, and this is to be determined in particular by what is the balance of convenience and hardship. It is at this point, in my opinion, that the courts have for 100 years determined that a balance is normally to be struck in favour of the free discussion of matters of public or general interest, particularly where damages are both a normal and sufficient remedy. If the authorities to which I have referred go further, then they should not be read as laying down more than prima facie tests, which must be adapted to the broad principles which have always governed the grant of equitable relief.
In the context of the present case, therefore, I do not accept that it is necessarily sufficient for a defendant to assert that it proposes to plead justification and prove the truth of its allegations at the trial. The nature of the material which will be sufficient to deny a plaintiff interlocutory relief must vary according to the sources of the defendant's information and according to the form of discussion which the publication of the defamatory material will take and the extent to which it may be seen to be genuine, serious and in the public interest. That is why strict compliance with the form of O.38 r3 (the present r43.03(2)) has not always been insisted upon, for the information repeated in the impugned publication may be such as to suggest in itself that the balance of convenience must tilt in favour of continued public discussion, leaving the plaintiff to its remedy in damages."
He went on to say at p.755:
"Applying these tests to the present case, I do not accept that it is sufficient for the television defendants to rely on a Bonnard v Perryman affidavit and merely assert that they propose to prove the truth of the statements made. On the facts of this case there is sufficient doubt as to the reliability of some of the statements used, and there is sufficient evidence of a real risk of loss of goodwill by the plaintiff, to require the defendants to go further. On the other hand, I do not accept that it is necessary for those defendants to place on affidavit with precise identification the sources of the information and belief upon which their proposed plea of justification is founded. Where a television programme depends upon live interviews for the source of the allegations made against a plaintiff, then, in the absence of bad faith, the basis for their plea is apparent, where the deponent asserts belief in their truth, as does Mr Mooney in this case."
With respect I agree with the decision and the reasons of Ormiston J.
Although it is not necessary to decide the matter here there is no reason to think that His Honour's reasons are not apposite to the third of Lord Esher's rules as well.
Both Hunt J and Ormiston J approached the question of interlocutory injunctions upon the ordinary principles applicable to interlocutory injunctions. Both Judges however, recognised the power to grant interlocutory injunctions in defamation cases would continue to be exercised with great caution and would only be granted in very clear cases.
That is so because an interlocutory injunction restraining the publication of matter necessarily interferes with the important right of a person to exercise a right of free speech. Where there is an interference with a person's right of free speech there is also a concomitant interference with a right of the community to discuss matters of public interest in public. In those circumstances the court will be slow to interfere with a publisher's right to publish information particularly so when it involves matters of public interest. It seems to me that a plaintiff, if it is to establish an entitlement to an interlocutory injunction to restrain the repetition of a libel or a publication for the first time of a libel, must satisfy the court of the three matters to which Mason ACJ referred in Castlemaine v Toohey. Moreover the plaintiff will have to establish, when weighing the balance of convenience, that it would be appropriate to weigh the balance in the plaintiff's favour notwithstanding that the grant of injunction would interfere with the defendant's right to exercise its right of free speech and the community's right to discuss in public matters of public interest. It is necessarily more difficult, because of the need to satisfy that further matter, for a plaintiff to obtain an interlocutory injunction to restrain a libel.
In a consideration of an application for an interlocutory injunction to restrain a defamation, it is first necessary to determine the defamatory imputations which arise of and concerning the plaintiff. That is obviously necessary because unless the defamatory imputations can be recognised, there can be no serious question to be tried. Moreover, the imputations must be articulated so that the potential defence of justification can be considered in its appropriate setting.
Having determined that imputations defamatory of the plaintiff arise, it is then necessary if the defendant asserts at the interlocutory stage that it will justify the imputations, or that they are fair comment on a matter of public interest, or that they were published on an occasion of qualified privilege, to have regard to the assertions and the quality of the assertions made by the defendant.
In some cases, it will be more readily apparent that a plea of justification is likely to succeed. However the simple claim by a defendant and a proposed publisher that it will justify the defamation, is not necessarily sufficient to defeat an application for an interlocutory injunction.
A court must have regard to the defendant's claim that it will be in a position to justify all of the imputations arising out of the defamation. When a defendant claims that it will be able to justify a defamation, then it will be somewhat more difficult for the plaintiff to obtain an interlocutory injunction. That is because there would be material at least by way of a claim before the court, that the court was being asked to interfere with the right of free speech which in due course, the defendant would be entitled to exercise because, although the article is defamatory of the plaintiff, it is not actionable.
At the end of the day after considering the proposed article and the evidence brought forward to support the defence, the court needs to be satisfied that there is a serious question to be tried.
The defendant claims in an affidavit of Mr Graham Archer, the Executive Producer of the program, that it will be able to justify the article in due course. The defendant also claims that to the extent necessary, that any matters of comment will be the subject of a defence of fair comment.
The defendant has gone further than simply asserting that it will be able to justify the article, and that it will make out a defence of fair comment. It has tendered a number of affidavits from former employees and relatives of residents of the nursing home. Those affidavits contain an admixture of direct evidence and hearsay. Hearsay, of course, is admissible, provided the source of the information is given: Rule 83.04(1).
The plaintiff objected to a number of the paragraphs of each of the affidavits filed by the defendant, complaining in some cases that the allegation contained in the affidavit was so wide as to be unable to be answered. On other occasions, it complained that the affidavits did not disclose the source of hearsay evidence. Complaint was also made in relation to some aspects of the affidavits on the ground of relevance.
I admitted all of the affidavits in the main, indicating that I would give appropriate weight to the contents of the affidavits, and give little weight to assertions which were expressed so generally, as to be incapable of answer and little weight to assertions of hearsay evidence, where the source of the hearsay evidence was not disclosed.
The affidavit evidence tendered by the defendant consisted of a number of affidavits sworn by former employees of the plaintiff. Those former employees included registered nurses, nurses assistants and other employees. There is no doubt that the affidavits call into question the abilities of the Director of Nursing, Ms Bennett, and her competence in the exercise of her duties. They also indicate that the defendant will prove in due course, that her predecessor Ms Bartsch was also incompetent in the performance of her duties.
The affidavits of the nurses show evidence of inadequate nursing care. I pointed out to Mr Harris that his case was that the nurses who he relied upon to prove inadequate nursing care were the nurses who were called upon to give that care. As it was his case that all but one of the nurses had resigned and were supporting the defendant's case, in effect they were complaining of the competency of each other.
Apart from the evidence of inadequate nursing care, the nurses deposed to matters of cost cutting and deposed to insufficient food being available for residents. They also deposed to a general lack of care and concern for the morale of the residents. Evidence to the like effect has been tendered by the defendant through relatives of the residents.
The affidavits disclosed sufficient evidence whereby it could be said that the defendant may be able, in due course, to justify those imputations which consist of defamatory imputations relating to the standard of nursing care, the cleanliness of the hospital, the availability of food for residents, the comfort of residents and in that respect, the heating of the hospital, and the care and consideration of the residents' morale.
The defendant has also brought forward a body of evidence from the various persons to whom I have referred raising a number of inconsequential matters. There is evidence, for example, from some relatives, that residents are no longer given birthday cakes on the occasion of their birthday. There is a complaint that residents now are given powdered milk rather than ordinary milk. A person previously employed in the kitchen has said that the quality of vegetables has declined. She said:
"In particular, the potatoes which I was given to prepare for residents meals were bruised, cracked and a little bit brown. That had not been the case before the Bennetts took over."
Another former employee said that the quality of washing powder supplied to the laundry declined.
Another former employee said that on one occasion, a resident became unconscious and began secreting from her mouth. She said both of the resident's daughters were at her bedside, and it appeared to be an unpleasant experience for them. She said she was aware that the resident required a suction apparatus as a matter of urgency, and this was organised.
I did not allow that last mentioned piece of evidence to be tendered. I cannot understand what the purport of the evidence is. Of course residents of nursing homes will become unconscious. Some may secrete from their mouth as a result of that. Of course, it would also be an unpleasant experience for the relatives of the residents. I cannot understand however, how any of the matters impact upon the matters which I am considering. The proprietors of this nursing home as in any other nursing home, could not be responsible for matters of that kind.
The effect of the evidence which has been put before me is to indicate a number of matters of dissatisfaction on the part of some relatives and some former employees. The plaintiff has answered those matters where a specific matter is raised by evidence, denying those matters, and where the allegations are general by a general denial.
In some cases, the plaintiff has been able to point to the fact that the period to which the defendant's witnesses are referring was a period earlier than when the plaintiff was a proprietor of the business. In some other cases, the plaintiff has pointed to the fact that the persons of whom the story complains were not then in charge at the time the particular event occurred. The plaintiff's evidence discloses, if accepted, that a number of the defendant's allegations and in particular, those made by the nurses are simply wrong. They are wrong in time and in many cases, wrong in detail.
It is not for me at this stage of the proceedings to reach a conclusion one way or the other about the various matters to which the defendant's witnesses have deposed, and the plaintiff has replied. For the reasons which I shall mention, I do not need to conclude whether the defendant can make out that this is "The nursing home from hell", or that the proprietors of this nursing home have been cruel and callous. However I can say that allegations of reduced quality of washing power and the unavailability of birthday cakes, fall short of making out those allegations.
However in respect of the general matters I have already noticed the defendant has brought forward evidence by which it might be supposed that the defendant could succeed on a defence of justification.
The affidavits however, do not contain any evidence or indeed any assertion, that the defendant will justify the imputation that the plaintiff starved Mr Clements, or that the plaintiff so badly treated Mrs Brown, that she was removed to hospital. In relation to the first matter there is evidence that Mr Clements’ weight dropped over a period of time but that does not go anywhere near proving that the nursing home was guilty of starving him. That imputation connotes, as I have said, behaviour which has given rise to a person dying a lingering death by reason of being deprived of food. I think that arises clearly enough from the article itself. It certainly arises if one has, as well, seen and heard the promotion. It must be remembered that in the promotion it was said:
"The aged left to go hungry. He was starving to death."
The imputation necessarily arising is that the plaintiff left Mr Clements to go hungry and he was starving to death. As I have said, there is no evidence upon which that imputation can be said to be capable of being justified.
Mr Harris argued that the publication in relation to Mr Clements did not contain matters of fact which were defamatory of the plaintiff. He argued that the expressions used in the article where Mr Clements daughter said:
"I immediately went and saw the staff, wondering what was going on. I said my father is starving, he has lost so much weight he is literally starving. My father's last meal down there was a Vegemite sandwich."
are matters of comment.
Even if that was so, and I ought not to be taken as accepting the submission, I think when both the article and the promotion are read together, the imputation to which I have referred arises and would have to be justified if the defendant is to succeed in its defence.
In relation to Mrs Brown there is evidence that people were told that she had suffered pneumonia and that she was admitted to hospital for that condition. However, that is apparently not the case. There is an affidavit from Dr Menz who is Mrs Brown's medical practitioner. Apparently Mrs Brown was admitted to the Royal Adelaide Hospital not suffering from pneumonia but from infective exacerbation chronic obstructive airways disease (COAD). Dr Menz said in his affidavit:
"She has a long standing history of COAD and is therefore vulnerable to infection. An infection that would perhaps cause a common cold in an otherwise healthy person can lead to lower respiratory tract infection in a person suffering COAD such as Lorna."
Dr Menz has also deposed to the fact that on the occasions that he has visited Mrs Brown he has never experienced an occasion when the rooms housing the residents have been cold. However, that evidence is less important because there is a body of evidence to the contrary.
Dr Menz also said this:
"I'm aware that the proprietor of the Lewis changed in about the middle of 1996. It is my view that the past and current standard of care and facilities at Lewis is better than the average standard of like nursing homes. Lewis is one of the nursing homes that I recommend to my patients."
Again whilst that evidence will be important in the trial, because it is in stark contrast to the evidence of the nurses and relatives, whose affidavits have been tendered by the defendant, it cannot be decisive in an application for an interlocutory injunction.
In the case of Mrs Brown there is evidence that she was treated appropriately and admitted to hospital suffering from a chronic disease which was of long standing. There is, on the other hand, simply no evidence that she was so badly treated that she was removed by ambulance to hospital where she was treated for infective bronchitis.
I am not satisfied that the defendant would be able to justify the two imputations to which I have referred.
The court must also have regard to the extent of the damage which the plaintiff will suffer and the ability of the plaintiff to quantify that damage. In cases where the plaintiff suffers injury not only to feelings and reputation but also financial loss, then it may be more difficult to quantify the extent of the damage. In those circumstances it may be more appropriate to restrain the publication of the defamation so as to obviate the damage to the plaintiff and allow the court to rule after a trial on whether the article is defamatory and actionable, before its publication.
There is no doubt that the publication of this article which is sought to be restrained would inflict a very serious defamation on the plaintiff. The defamatory imputations consist at least of starvation of a resident and treating another resident so badly that she needed to be hospitalised. This serious libel would necessarily cause great damage to the plaintiff. It would cause significant damage to the company's business and trading reputation. I would expect it would cause the plaintiff significant financial hardship.
On the question of damages, the defendant would no doubt argue at the trial that the plaintiff's loss arose independently of the publication. That is because, the defendant would argue, some of the commentators in the article are associated with the residents. Some others are former employees. It would be argued that the plaintiff was bound to suffer loss in any event. The quantification of the plaintiff's loss will therefore be a difficult exercise. In those circumstances damages may not be an adequate remedy.
The question of the balance of convenience must be considered. The plaintiff claims a grant of the injunction will prevent it suffering great damage. The defendant, on the other hand, claims that the grant of the injunction will interfere with its right to raise in public a matter of public interest. I think this is a matter of public interest. In South Hetton Coal Company v North Eastern News Association (supra), it was held that the insanitary condition of a number of cottages owned by the plaintiff company was a matter of public interest. I think the treatment by a nursing home of 40 elderly residents suffering various degrees of debility is a matter of public interest. I think therefore that the defendant is entitled to say that the injunction would restrain it from raising in public a matter of public interest. To that extent, the injunction would interfere with the defendant's right to the exercise of free speech.
In the end it is a matter of judgment as to where the balance of convenience lies. I have reached the conclusion that the balance of convenience is with the plaintiff.
The plaintiff will suffer substantial loss by reason of publication of the article. It will be entitled to obtain damages unless the defendant is able to justify the program. There is no evidence presently that two imputations will be justified. The plaintiff will suffer irremediable harm if the article is published and the defendant is not able to justify those two imputations.
On the other hand, if the defendant is able to justify the article or to establish a defence of fair comment where appropriate, the defendant can in due course still publish the story. In saying that, I am not unaware that stale stories may not be worth publishing.
In my opinion the plaintiff is entitled to the interlocutory relief sought.

[1997] SASC 6260

14 July 1997