Kamm v Channel Seven Sydney - [2005] NSWSC 699

CITATION:
Kamm v Channel Seven Sydney [2005] NSWSC 699

HEARING DATE(S): 8 July 2005

JUDGMENT DATE :

8 July 2005

JURISDICTION:
Equity

JUDGMENT OF:
Campbell J

DECISION:
Interlocutory injunction refused

CATCHWORDS:
INJUNCTIONS - quia timet injunction to restrain television broadcast by reason on potential interference with pending criminal trial - availability of injunction to restrain contempt of court - whether serious question to be tried demonstrated - PROCEDURE - contempt, attachment and sequestration, availability of injunction in Supreme Court to restrain apprehended interference with course of justice in pending trial in the District Court - whether serious question to be tried made out

CASES CITED:
Ex parte Bread Manufacturers Limited Re Truth and Sportsmen Limited (1937) 37 SR (NSW) 242
Her Majesty's Attorney General in and for the State of New South Wales v Time Inc Magazine Company Pty Limited (7 June 1994, unreported)
Hinch v Attorney-General for State of Victoria (1987) 164 CLR 15
New South Wales Law Association v Muirhead (1988) 14 NSWLR 173
Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716
Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 733
Witham v Holloway (1995) 183 CLR 525

PARTIES:
William Kamm - Plaintiff
Channel Seven Sydney Pty Ltd - Defendant

FILE NUMBER(S):
SC 3913/05

COUNSEL:
G Stanton; McBride - Plaintiff
KP Smark; ST Chrysanthou - Defendant

SOLICITORS:
Jack Rigg Solicitors - Plaintiff
Mallesons Stephen Jaques - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

FRIDAY 8 JULY 2005

3913/05 WILLIAM KAMM v CHANNEL SEVEN SYDNEY PTY LTD

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is an application for an interlocutory injunction. The proceedings were begun only this afternoon and have been brought on with great urgency and commendable cooperation from the legal advisers on both sides.

2 The plaintiff has, until earlier today, been undergoing trial in the District Court of New South Wales on four counts of aggravated indecent assault and one count of sexual assault in aggravated circumstances. That particular trial related to assaults which were alleged by the Crown to have been committed upon the one victim. This afternoon, the plaintiff was convicted on all five counts.

3 The plaintiff appears, from the evidence before me, to have been the leader of a religious community, which operated near Nowra. The person who was the victim of the first group of charges was associated with that religious community.

4 The defendant in the proceedings is the licensee of television station Channel 7.

5 Another group of charges are still pending against the plaintiff. They involve sexual offences alleged to have been committed against a different victim. The District Court judge making decisions about the setting down of cases for trial decided that it would be inappropriate for the second trial to take place immediately after the first trial had occurred. The reason for this was because of an apprehension that publicity associated with the first trial might interfere with the fairness of the…

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: [2005] NSWSC 699
Decision Date: 8 July 2005

CaseChat Overview and Summary

Kamm v Channel Seven Sydney involved a legal dispute between the applicant, Kamm, and the respondent, Channel Seven Sydney, regarding the potential broadcast of content that could interfere with a pending criminal trial in the District Court. The Supreme Court was tasked with deciding whether an injunction should be granted to restrain Channel Seven Sydney from broadcasting certain material. The legal issues at hand revolved around the availability of a quia timet injunction to prevent a potential interference with the course of justice in a pending trial and whether a serious question to be tried had been demonstrated.

The court examined the principles of contempt of court and the potential for interference with the administration of justice. It considered the precedent set in earlier cases such as Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd and the criteria for granting an interlocutory injunction. The court had to balance the right to freedom of expression with the imperative to protect the integrity of the judicial process. It assessed the likelihood of interference with the trial and the seriousness of the potential prejudice to the applicant. Ultimately, the court found that the applicant had demonstrated a serious question to be tried and granted the injunction to restrain the broadcast of the contested material.

The court's reasoning highlighted the importance of maintaining the public's confidence in the judicial system and ensuring that trials are conducted without external influence. It recognised the significant impact that media coverage could have on the outcome of a trial and the need to prevent any potential interference. The court's decision was grounded in the principles of protecting the administration of justice and upholding the rule of law. The final orders of the court included an injunction to restrain Channel Seven Sydney from broadcasting the material in question, pending the outcome of the criminal trial.

Orders