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Kidu v Fifer

Kidu v Fifer

Case [2016] NSWSC 488 22 April 2016

Unconscionable Conduct

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Kidu v Fifer & Ors [2016] NSWSC 488
Hearing dates: 14 April 2016
Date of orders: 22 April 2016
Decision date: 22 April 2016
Jurisdiction: Equity
Before: Slattery J
Decision:
Injunction granted on terms that the plaintiff provide satisfactory security in the sum of $250,000.

Catchwords:
EQUITY – unconscionable conduct and promissory estoppel – first defendant makes documentary including film of the plaintiff – plaintiff alleges that the first defendant represented to her that the film footage taken would only be used for the plaintiff’s film school course – documentary completed and proposed to be shown at an international documentary film festival – rights to the documentary assigned to the second and then the third defendants – whether there is a serious question to be tried that the documentary was filmed in circumstances in which the plaintiff was assured that its use would be limited; and whether the first defendant has unconscionably resiled from their assurance to the plaintiff.
INJUNCTION – interlocutory injunction – whether an interlocutory injunction should be granted - whether the plaintiff has established a serious question to be tried – whether the balance of convenience, questions of hardship and other relevant factors favour the grant of an interlocutory injunction in the circumstances - on what terms should any injunction be granted.
Legislation Cited: Civil Procedure Act 2005
Competition and Consumer Act 2010 (Cth), s 5(1).
Supreme Court Act 1970
Cases Cited: Australian Broadcasting Company v O’Neill (2006) 227 CLR 57
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618
Beese v Woodhouse [1970] 1 WLR 586
Doherty v Allman (1873) 3 App Cas 709
Edelsten v Australian Broadcasting Corporation (1984) Aust Torts Reports 80 – 672
Ermogenous v Greek Orthodox Community of South Australia Inc (2002) 209 CLR 95, [2002] HCA 8
Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892
Kolback Securities Ltd v Epoch Mining (1987) 8 NSWLR 533
McCarty v Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210
Otis Elevator Company Ltd v Nolan [2007] NSWSC 593
Stocker v McElhinney (No. 2) [1961] NSWR 1043
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Texts Cited: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths)
Category: Procedural and other rulings
Parties: Plaintiff: Carol Anne Kidu
First Defendant: Hollie Fifer
Second Defendant: Media Stockdale Pty Ltd
Representation:
Counsel:

Plaintiff: B. McClintock SC; S. Kaur-Bains
First & Second Defendants: R. Potter; M. Maconachie
Third Defendant: n/a
Solicitors:
Plaintiff: Rebekah Ruth Giles, Kennedys Law
First and Second Defendants: Peter Bolam, Broadley Rees Hogan
Third Defendant: n/a

File Number(s): 2016/85991
Publication restriction: No

Judgment

The plaintiff, Dame Carol Kidu applies for an interlocutory injunction to restrain the three defendants, Ms Hollie Fifer, Media Stockade Pty Ltd and Beacon Films Pty Ltd, from publishing,…

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.

Continue reading Kidu v Fifer

Details

AGLC: Kidu v Fifer [2016] NSWSC 488
Case: [2016] NSWSC 488
Decision Date: 22 April 2016

CaseChat Overview and Summary

The case of Kidu v Fifer involved a dispute between the plaintiff, Kidu, and the defendants, Fifer, regarding the use of film footage taken by the first defendant. Kidu alleged that she was assured by the first defendant that the footage would only be used for her film school course. The documentary was completed and was to be shown at an international documentary film festival. The rights to the documentary were subsequently assigned to the second and then the third defendants. The plaintiff sought an interlocutory injunction to prevent the screening of the documentary, alleging that the defendants were aware of her assurances and had unconscionably resiled from them.

The court was required to determine whether there was a serious question to be tried regarding the assurances made to the plaintiff and whether the first defendant had unconscionably resiled from them. Additionally, the court needed to assess whether an interlocutory injunction should be granted based on the balance of convenience, questions of hardship and other relevant factors.

In delivering the judgment, the court found that there was a serious question to be tried regarding the assurances made to the plaintiff and whether the first defendant had unconscionably resiled from them. The court held that the balance of convenience, questions of hardship and other relevant factors favoured the grant of an interlocutory injunction. The court ordered that an interlocutory injunction be granted to the plaintiff, restraining the defendants from screening the documentary. The court further directed that the terms of any injunction be on the usual terms, including security for costs.

Orders