Kidu v Fifer

[2016] NSWSC 488

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

1. 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, distributing or exhibiting parts of a documentary entitled “The Opposition”, which features film footage of the plaintiff taken between 2012 and 2014.

2. The documentary is complete and ready for exhibition. It is about 75 minutes in length. The parts the subject of the proposed restraint is of a total duration of about 20 minutes. The documentary follows the 2012 story of Joe Moses, a local community leader of the Paga Hill settlement in Port Moresby, in Papua New Guinea. Mr Moses tries to defend the families living in the settlement from being forcibly evicted to make way for development that includes an international five-star hotel and marina.

3. Dame Carol propounds her case in contract, in promissory estoppel and in alleged unconscionable conduct. She contends in substance that Ms Fifer represented to her that the documentary would only be used for Ms Fifer’s film school assignment work and would only be about Dame Carol’s career. Dame Carol says that contrary to these representations the defendants have expanded the documentary subject matter and now propose to screen the documentary at an international film festival, “Hot Docs” in Canada on 28 April 2016. Dame Carol seeks to restrain the showing of the documentary until the proceedings can be brought on for final hearing.

4. Dame Carol first pleaded her case in a Statement of Claim on 18 March 2016 followed by an Amended Statement of Claim filed on 1 April 2016. On 8 April 2016 the matter came before Justice Kunc, when His Honour granted leave for the plaintiff to file and serve by 12 April 2016 the current pleading, a Further Amended Statement of Claim joining Beacon Films Pty Ltd as a defendant. His Honour listed the hearing for hearing in the Equity Duty List on Thursday, 14 April 2016.

5. At the opening of the argument on 14 April the Court offered the parties an early final hearing on 26, 27 and 28 April 2016. But that would not have solved the parties’ present dilemma. The documentary is due to be screened at the “Hot Docs” film festival in Toronto, Canada on 28 April. A final hearing on 26-28 April may still not give sufficient time for a decision to be made before the documentary is due to be screened. So an interlocutory hearing was needed.

6. Mr B McClintock SC and Ms S Kaur-Bains, instructed by Kennedys, represented the plaintiff. Mr R Potter and Mr M Maconachie, instructed by Broadley Rees Hogan Lawyers, represented the first and second defendants, Ms Fifer and Media Stockade Pty Ltd respectively. The third defendant, Beacon Films Pty Ltd did not appear. The Court acknowledges the assistance of the lawyers on both sides. They carefully presented the competing evidence and legal argument in urgent circumstances.

7. The Court has power to grant an interlocutory injunction under Supreme Court Act 1970, s 66(4), on terms if necessary, in any case where “it appears to the Court to be just or convenient”. The Court must consider whether the plaintiff’s case presents a serious question to be tried on the pleadings and whether the balance of convenience, hardship and related factors warrant the grant of an interlocutory injunction. The applicable principles in relation to the grant of such relief are discussed later in these reasons.

8. This is an interlocutory hearing, not a final hearing. The Court will attempt to arrange the earliest possible final hearing for these parties. In the meantime, the Court’s task is not to undertake a preliminary trial and to give or withhold interlocutory relief upon some forecast as to the ultimate result of the factual dispute between the parties, although the relative strengths of the parties’ cases are not irrelevant to the exercise of the Court’s discretion.

9. The Court’s task on an interlocutory hearing such as this one was well expressed by the English Court of Appeal in Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892; [1984] 2 All ER 408; (1984) 81 LSG 2225; (1984) 128 SJ 484 when Sir John Donaldson MR said (at 894H – 895A):

“The defendants now appeal. It is of paramount importance that everyone should understand the exercise upon which the judge was, and we are, engaged. There is to be a speedy trial at which the rights of the parties will be determined. That has not yet happened. We are concerned, so far as we can, to preserve the rights of the parties meanwhile. It is not our function to decide questions of fact or law which will be in issue at the trial. If they are arguable, that is the time and the place when they should be argued.”

10. Later in the same judgment his Lordship further explained the Court’s duty in following terms (at 898E-898G):

“What then should we do? I stress, once again, that we are not at this stage concerned to determine the final rights of the parties. Our duty is to make such orders, if any, as are appropriate pending the trial of the action. It is sometimes said that this involves a weighing of the balance of convenience. This is an unfortunate expression. Our business is justice, not convenience. We can and must disregard fanciful claims by either party. Subject to that, we must contemplate the possibility that either party may succeed and must do our best to ensure that nothing occurs pending the trial which will prejudice his rights. Since the parties are usually asserting wholly inconsistent claims, this is difficult, but we have to do our best. In so doing, we are seeking a balance of justice, not of convenience.”

11. These reasons now set out a narrative of some relevant facts. They are not all the facts in the proceedings but only those of more relevance to the interlocutory issues. Except where the facts are uncontentious, the Court’s narrative of facts below should only be understood, and is mostly expressed, as a forecast of the kind of evidence that each party proposes to adduce at a final hearing.

The Plaintiff makes a Documentary

The Parties

12. Dame Carol Kidu was born in Australia. In 1980 she became a naturalised citizen of Papua New Guinea (PNG). In 1997 she was elected as the member for Port Moresby South in the PNG Parliament. She was re-elected to the PNG Parliament in 2002 and 2007. During this time, she was the only female member of the PNG Parliament. From 15 February 2012 she served as the Opposition Leader in the PNG Parliament until her retirement from politics in mid-2012.

13. Dame Carol is and has for a long time been a prominent figure in PNG politics and civil life. In 1969 she married the former Chief Justice of the National Supreme Court of PNG, the late Sir Buri Kidu. In January 2005, she was named a Dame Commander of the Order of the British Empire.

14. After retiring from politics in 2012, Dame Carol founded a business, CK Consultancy Ltd, which provides PNG domestic and international consulting services principally in the fields of community engagement, human rights advocacy, capacity building and policy development.

15. In 2012 Ms Fifer was studying for a Graduate Diploma in Documentary at the Australian Film Television and Radio School in Sydney (“AFTRS”). The third defendant, Beacon Films, now employs her in the role of director of the documentary in question in these proceedings, which is titled “The Opposition”. In November 2011 Ms Fifer, together with four other film makers, registered a film making collective, called “Fine.Ark”. As yet Fine.Ark has not operated as a business and was not involved in the making of the present documentary.

16. The second and third defendants are respectively Media Stockade Pty Ltd (“Media Stockdale”) and Beacon Films Pty Ltd (“Beacon Films”), which are both Australian motion picture and video production companies. Rebecca Anne Barry and Madeleine Hetherton, who feature in the narrative of relevant events below, are their directors and shareholders.

The Pitch – The Decision to Involve Dame Carol

17. Ms Fifer took the subject “Feature Documentary” at the AFTRS in 2012. To prepare the students for the commercial and artistic rigours of real life documentary creation, this subject required Ms Fifer to construct and present a professional “pitch” to a panel of funders, film makers and stand-in AFTRS staff. Ms Fifer’s AFTRS work became the subject of family discussion. Her mother, Dimity gave Ms Fifer an idea: she told her daughter of the political controversies in PNG that year and of Dame Carol’s recent assumption of the leadership of the PNG Opposition.

18. Dame Carol herself emphasises how controversial a year it was in PNG political history: she says it was a year in which PNG had two Prime Ministers, two Police Chiefs, two Defence Commanders and no Opposition. She was the only woman in Parliament and she volunteered to lead the Opposition. Ms Fifer began to take an interest in profiling the role of a female leader taking a decisive role in her country’s political crises.

19. Dimity Fifer decided to help her daughter. From about July 2002, Dame Carol had frequent contact with Dimity Fifer on a professional and personal basis, through Dimity Fifer’s role as the CEO of Australian Volunteers International. So in about March 2012, Dimity Fifer decided to telephone Dame Carol.

20. There will be a contest at the final hearing as to the nature of their first telephone conversation. But it appears to be accepted that Dimity Fifer initially telephoned Dame Carol to speak about the potential for her daughter to film a documentary about Dame Carol’s political life and work in Port Moresby, and in the process to capture the events of what was expected to be her final months in politics as the Leader of the Opposition.

21. Dame Carol contends that Dimity Fifer made clear to her in this first telephone conversation that the film footage taken would be used exclusively to satisfy Ms Fifer’s AFTRS assignment obligations. Dimity Fifer disputes this contention. This will be one of the central contests at a final hearing of these proceedings.

22. Dame Carol’s case is that her response to Dimity Fifer’s call and her later agreement to become involved with Ms Fifer’s documentary making were influenced by the debt that she felt she owed to Dimity Fifer for her support to Dame Carol over many years as CEO of Australian Volunteers International in PNG.

The March 2012 Sydney Shoot – Ms Fifer first interviews Dame Carol

23. Ms Fifer also already knew Dame Carol. Ms Fifer had met her in August 2008 when Ms Fifer travelled to PNG with the Global Poverty Project and Australian Volunteers International.

24. Following her mother’s encouragement, on 4 March 2012 at 3:39pm, Ms Fifer sent an SMS message to Dame Carol. Ms Fifer messaged that she was aware that her mother, Dimity, had already been in contact with Dame Carol. Ms Fifer said in the message that her mother “told me you’re interested in knowing more about this possibility of a documentary”. Ms Fifer asked whether Dame Carol might be able to speak further with her on the subject. Dame Carol responded two minutes later, “Yes that is fine”.

25. Between 4 and 6 March 2012 Ms Fifer met with Dame Carol in Sydney to discuss the possible documentary project. But Ms Fifer’s needs were pressing: she wanted some footage for use in a film trailer, one part of her pitch assignment. So on 7 March 2012, with Dame Carol’s consent, Ms Fifer recorded an interview with Dame Carol. This became known in the evidence as “Shoot #1”. Ms Fifer’s evidence at final hearing will be that on this occasion she mentioned “a much larger story” to Dame Carol and asked her whether she had “any reservations” about the project, to which Dame Carol replied in the negative. Dame Carol says that Ms Fifer said to her before this interview “I want to make a documentary about your time in politics and as Opposition leader for my school assignment”. In any event Dame Carol seems to have suggested that Ms Fifer should take the opportunity to come to Port Moresby soon, to film whilst the PNG Parliament was sitting near the end of March.

26. The PNG visit was soon arranged. On 14 March 2012 Dimity Fifer emailed Dame Carol’s personal assistant, Michelle Hau’ofa, informing her that Ms Fifer would be coming to Port Moresby the following week and was wishing to stay as close to Dame Carol as possible during the PNG Parliamentary week. Ms Hau’ofa responded to this email stating that she would “pick things up with Hollie”. Ms Fifer, who had been copied into this email traffic sent an email that same day, confirming her intent to undertake the visit. Preliminary arrangements were made for Ms Fifer to stay at Dame Carol’s son’s house when she was in Port Moresby. But Ms Fifer’s trip to PNG was a little delayed.

27. Back in Sydney Ms Fifer was pulling together her pitch. On 15 March 2012 she delivered the pitch including a trailer featuring the footage she had just taken of Dame Carol. Her pitch impressed the judges. A commissioning editor for the Australian Broadcasting Corporation, Mr Alan Erson, offered her a $3,000 research grant on behalf of the ABC. Ms Madeleine Hetherton, then a lecturer at AFTRS, contacted Ms Rebecca Barry, a film and documentary producer, to put Ms Barry in touch with Ms Fifer. By late March, Ms Barry had agreed to become the producer for Ms Fifer’s proposed documentary, which even then had the working title, “The Opposition”.

28. On 22 March 2012 Ms Fifer says that she telephoned Dame Carol and informed her of the funding that she had received from the ABC. But what was said between them will be a matter of strong contest at final hearing. Ms Fifer’s case is that this conversation did and should have clearly indicated to Dame Carol that Ms Fifer’s documentary had now passed beyond the status of a AFTRS student assignment for internal use and was now likely to be more widely broadcast.

29. Dame Carol’s case at final hearing will contest this conversation. She will agree that she did receive a later email, indicating that the producer of the documentary would be Rebecca Barry, “the driving force behind the funding confirmation”. But Dame Carol’s case is that this did not alert her to conclude that the documentary was now going to be produced for commercial purposes beyond Ms Fifer’s AFTRS assignment work.

30. But some legal issues emerged. On 12 April 2012, Ms Fifer told Dame Carol that she would need to sign a Participant Release form (“the Release”) before she became involved. There is no doubt that Ms Fifer gave the Release to Dame Carol for signature and Dame Carol signed it.

31. The release is a standard form document in which the “Participant”, Dame Carol in this case, committed to release not a person or an entity; but it releases a “production” with the working title “The Opposition”. There will clearly be a debate at final hearing as to whether this is a binding release of rights at all, as it says, “to record, produce, reproduce, transmit, exhibit, distribute and publicise any or all of the acts and appearances of the participant”. Mr McClintock SC says on behalf of Dame Carol that at final hearing the Release will arguably be construed according to what the plaintiff says was its limited context of a film school assignment and really does not take the defendant’s case any further.

32. Dame Carol will adduce evidence at final hearing disputing Ms Fifer’s version of the signing of the Release. Dame Carol will say: that she was unaware of and was not told what the Release was for; that she did not receive any legal advice prior to signing it; and, that she was not provided with a copy of the Release until 27 November 2014, and even then only after repeated requests for the document. Ms Fifer’s evidence at final hearing will be that she told Dame Carol that she would need to sign the Release before they could access the funds from the ABC grant.

33. Ms Fifer says that on 14 April 2012 she emailed Dame Carol mentioning a funding application that she was then making under the ABC Opening Shot Program with Screen Australia. Dame Carol will adduce evidence at final hearing disputing this. She will say that she was unaware of any proposed funding or grants from the ABC. On 1 May 2012 Ms Fifer emailed Dame Carol introducing Rebecca Barry and confirming her travel to PNG from 10 to 13 May 2012.

The First Port Moresby Shoot – The Demolition Footage from Paga Hill

34. Ms Fifer travelled to Port Moresby on a number of occasions to shoot footage of Dame Carol for “The Opposition”. On two of these visits, Ms Fifer stayed as Dame Carol’s guest at her home at Tutu Beach, Taurama Village. It is not in contest that Ms Fifer was given free board and was welcomed into Dame Carol’s household and provided with security like a member of her family. But the first time Ms Fifer was there, between 10-13 May something unexpected happened.

35. Paga Hill is located on the headland of Port Moresby. On 12 May 2012 Dame Carol received an urgent telephone call from a Mr Ratoos Gari, a family friend and one of the occupiers of an informal settlement at Paga Hill. Mr Gari told her that at that very moment PNG Police were destroying the settlers’ houses. Ms Fifer’s evidence will be that following this telephone call Dame Carol told her that the Police were bulldozing houses on Paga Hill, and that the house of the community leader, Joe Moses, had already been destroyed. Ms Fifer says Dame Carol asked her to go with her to see what was happening up on Paga Hill, but gave her early warning that for safety reasons she may need to stay in the car.

34. Dame Carol and Ms Fifer arrived at Paga Hill. There seems to be little contest that Mr Gari’s call was accurate. Police were directing the demolition of the local settlers’ homes. Apparently this was to make way for a new property development on the site by a developer, the Paga Hill Development Company (“Paga Hill Development”).

35. Dame Carol’s reaction to the demolition was instanteous. Ms Fifer captured it on film and much of this footage that became known in the evidence as Shoot #2 is edited into the first ten minutes of “The Opposition”. Some of it is on the internet. Ms Fifer’s evidence at final hearing will be that Dame Carol invited her to film so that Australians could see “what is happening in this country”. At the parties’ request the Court has viewed the documentary. It shows Dame Carol vehemently protesting the destruction of the Paga Hill settlement. She appears on film conveying her profound opposition to the clearing. The footage also shows the police firing warning shots, apparently with live ammunition, to deter the retreating residents of Paga Hill, reclaiming their land and Dame Carol being taken away by the police.

36. On the afternoon of 13 May 2012 Ms Fifer flew from Port Moresby to Cairns. It is not in contest that there she met Dame Carol’s daughter, Dobi Kidu. Ms Fifer’s evidence at final hearing will be that in her presence, Dobi Kidu uploaded about two minutes of Ms Fifer’s demolition footage to Ms Fifer’s Youtube account, accompanied by a synopsis of the events depicted on the uploaded footage that had been written by Dame Carol herself. On 14 May Dame Carol issued a press release about the Paga Hill settlement clearance reaffirming her opposition to it.

37. Uploading the video to Youtube had other consequences. On 23 May 2012 Ms Fifer emailed Dame Carol telling her that AFTRS was by then claiming copyright over her documentary footage. Ms Fifer’s 23 May email advocates taking down the demolition footage posted on her Youtube site. In this email Ms Fifer asks Dame Carol whether she felt the footage “had done its job”, and stated that she would lose the support of the University if she kept the footage online. Dame Carol responded the same day:

“I am amazed. All this talk about copyright is making me really nervous. How can you (sic) school claim copyright? It is not their film. By all means take it down but I will use the footage if I need to and tell them to deal directly with me. What was the problem? Too contentious?? How can the school claim copyright of one of their student’s work? I simply do not understand. Dobi actually uploaded it onto Youtube first.”

40. Ms Fifer replied to Dame Carol. She explained that she was in the process of having the copyright assigned to her from AFTRS.

41. Ms Fifer had another solution. In mid-2012 she changed the privacy settings of her Youtube account such that she was the only person who could access the demolition footage. But it is not in contest that at the time of the interlocutory hearing several versions of the footage remained available on a number of internet sites.

42. On 14 June 2012 AFTRS emailed Ms Fifer agreeing to assign its rights and interests in the documentary film to her.

Filming continues and Dame Carol Compromises with Paga Hill Development

43. From May 2012 through to July 2014 Ms Fifer and her crew continued to shoot footage for “The Opposition”. This included an interview with Dame Carol and Dr Kristian Lasslett of the International State Crimes Initiative on 25 June 2012. This became known as Shoot #3. Dame Carol allowed further footage to be taken during Shoot #3 of her opposing the property development at Paga Hill.

44. By 3 July 2012, Dame Carol had retired from politics. That day she emailed Ms Fifer saying to her that “many conversations that you heard were off the record and must not appear in any way in the documentary – forget about corruption etc. I have to find work after politics to support the many people that I support and thus I must be friends to all and enemies to none at this stage”.

45. Ms Fifer responded to these emails stating that she had no desire to uncover corruption, but rather, wanted to create a “call to action for anyone willing to be a leader themselves”.

46. Ms Fifer emailed Dame Carol again on 13 July 2012 to ask Dame Carol if she had any reservations about the film. Dame Carol raised no reservation. One of the contests at final hearing will be about the significance of a number of such exchanges. Ms Fifer will say that by then it must have been obvious that this documentary had moved well past an AFTRS assignment and that such exchanges indicate that Dame Carol was indicating her consent to the wider use of the documentary. Dame Carol will at final hearing that she had no reservations at this point because she thought that the documentary was still only for the limited use and subject matter she had agreed with Ms Fifer.

47. There is some evidence in both cases of a cooling off in relations between Dame Carol and Ms Fifer during this visit. The precise reason for this change is in contest. But differing views about the scope of the documentary is one possible explanation for the cooling.

48. Between 26 July and 5 August 2013 Ms Fifer returned to PNG. Her production program for this period in PNG included filming the Paga Hill Community for 10 days. Shoot #5 occurred during this period. During this period a meeting was also organised between Dame Carol and Joe Moses. Dame Carol was asked to give an affidavit for the court case that he was preparing against the Paga Hill Development Company. She agreed to do so. The defendants’ evidence to be adduced at final hearing is that Dame Carol queried why Ms Fifer was filming the meeting, but she allowed Ms Fifer to go ahead and film anyway. Dame Carol’s case appears to be that she was disquieted at this filming, a year after the earlier shoots.

49. On 1 October 2013 Ms Fifer wrote to the CEO of the Paga Hill company relevantly in the following terms, which contain elements that will assist both sides’ cases at final hearing:

“Hello Gummi,

Thank you for chatting with me on the phone earlier today.

To let you know a little a bit more about me – I’m a new graduate of the Australian Film Television and Radio School here in Sydney. I was with Dame Carol in PNG last year as I was making a documentary about the time in politics for my school work. Since that time I have met with the Paga Hill Settlement on three occasions and would like to make a documentary on the development plans for Paga Hilll.

I would like to interview you as well as George Hallit. As you mentioned on the phone you have a side of the story that hasn’t been told in the media and I would like the opportunity to capture this.”

50. The legal case concerning Paga Hill was heard in the PNG National Court of Justice in late 2013. Dame Carol’s evidence at final hearing will be that during the case the CEO of Paga Hill Development Company, Mr Gudmunder Fridriksson approached her to offer a relocation proposal for the further residents at Paga Hill. Dame Carol says that she expressed interest in the project from a policy perspective. But she says she declined to be involved until after the National Court of Justice case had been resolved.

51. On 29 January 2014 the PNG National Court of Justice handed down its decision in the case. The principal issue between Mr Moses and the other settlers in the Paga Hill community and the company, Paga Hill Development seems to have been whether the land being cleared was actually within the parcel of land to which the company had title. The Court’s decision recognized the title of Paga Hill Development to all the land it had cleared. But Mr Moses and others appealed to the PNG Supreme Court.

52. By early 2014 Dame Carol says that she was trying to deal with the consequences of the National Court case, which had made clear that Paga Hill Development’s clearance actions were in accordance with PNG law. On 1 March 2014 Dame Carol says she agreed to assist the company relocate settlers from Paga Hill. On 10 March 2014, Dame Carol’s company, CK Consulting agreed with Paga Hill Development to assist in making the relocation happen. She helped broker meetings with a number of different stakeholders, including a number who had already moved to the proposed resettlement site at a place known as Six Mile.

53. Around 16 March 2014 Dame Carol organised another meeting with Joe Moses and his Paga Hill resistance group. Dame Carol will say at final hearing that to her surprise Ms Fifer attended this interview with the apparent intention of recording it for the documentary. It is not in contest that Dame Carol asked her not to take any footage. Ms Fifer complied with the request.

Dame Carol contests the subject matter of the documentary

54. In or around 13 May 2014 Dame Carol will say at final hearing she became aware that “The Opposition” had been chosen to be featured at a film event called Good Pitch 2 Australia, and that the promotion for the film depicted Joe Moses in a David-Goliath battle trying to save himself and 3,000 other Paga Hill residents from being resettled at an industrial waste site.

55. On hearing this, on 14 May 2014 Dame Carol emailed Ms Fifer expressing her distress that the subject matter of the documentary had changed away from the original subject and from being a student assignment.

56. On 24 May 2014 Dame Carol met with Ms Fifer in Melbourne. On this occasion Dame Carol told Ms Fifer that she would have to get permission from Mr Fridriksson to speak to her. Upon contacting Mr Fridriksson, Ms Fifer was told that she was welcome to speak with Dame Carol but that Paga Hill Development Company would not be giving any interviews. Ms Fifer did interview Dame Carol on 24 July 2014 in Melbourne, in what became known as Shoot #8. The intervening shoot numbers are not of present relevance. By the time of this shoot the differences between Ms Fifer and Dame Carol about Ms Fifer’s task had fully surfaced.

57. On 20 October 2014 Dame Carol wrote to Ms Fifer formally retracting her consent for the use of any footage featuring herself. On 13 December 2014 she SMS messaged Dimity Fifer stating that Ms Fifer had “abused the release consent [she] signed in 2012”.

58. In late December, Dame Carol sent a number of emails withdrawing her consent to the use of the footage to Rebecca Barry and Dr Mitzi Goldman, the CEO of the Documentary Australia Foundation.

59. On 6 July 2015 Dame Carol attended the Rough Cut screening of “The Opposition” in Cairns, Queensland. On 31 August 2015 she attended the Final Cut screening of the film. She says that she was upset by both screenings, as she felt that the documentary presented an unbalanced and biased view of the Paga Hill resettlement. She expressed this opinion in a list of objections that was provided shortly thereafter to Ms Barry.

Hot Docs

60. “The Opposition” has been accepted for and is now scheduled to screen at the Hot Docs documentary film festival in Toronto, Canada on 28 April 2016. Hot Docs is a well-established International film festival for documentaries. Entry to the festival is highly competitive. It would be excellent exposure for the documentary to be showcased in this arena.

61. The defendants argue that Dame Carol’s role in the documentary is integral to the documentary story line, and if the film footage of her cannot be used, there is no more time and no more funding, to delete the footage containing her image and rework the documentary.

62. Ms Barry’s evidence is that Media Stockade and Beacon Films and their financial partners have collectively contributed $375,000 to the production costs of making the Opposition. A further sum of about $95,000 has been granted by philanthropic partners to support the delivery and release costs of distributing the film.

63. Ms Barry estimates the projected earnings from future distribution of the film at about $150,000 to $250,000 on the basis that the film is screened at Hot Docs. This is based on the earnings of other contemporary documentaries. She says that if the film does not screen at Hot Docs she believes that it will be difficult to earn even $150,000. She says the production team has forgone very substantial income in order to make the film on a very low production budget and that the producer and director of the film have significantly discounted their fees by an estimated 70 per cent below industry standards. She says the unclaimed fees of the producers and the director of the film are of the order of $320,000.

64. The parties invited the Court to view the documentary. Its content was relevant both to the issues of a serious question to be tried and the balance of convenience. The documentary appears, to the lay observer at least, to contain a compelling human narrative, to be well finished and to be a fine example of the documentary maker’s craft.

65. With this background the Court considers the applicable principles and the arguments of both parties under the two general headings: a serious question to be tried and the balance of convenience.

Consideration

Applicable Legal Principles

66. In deciding whether or not to grant an interlocutory injunction the Court must consider whether there is a serious question to be tried and then whether the balance of convenience and questions of hardship and related factors warrant the grant of an interlocutory injunction. First, the plaintiff must prove a serious, not a speculative, case which has a real possibility of ultimate success and that property or other interests might be jeopardised if no interlocutory relief is granted: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths) at [21–350] (“Equity Doctrines and Remedies”), discussing the requirements of the Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618 prima facie case test. Put another way, the plaintiff must show a sufficient likelihood of success to justify the preservation of the status quo pending the trial: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [70] – [71].

67. Then, it becomes a matter of analysing if in all the circumstances of the case, considering the balance of convenience and issues of hardship the Court should nonetheless exercise its discretion by declining to issue an interlocutory injunction: Equity Doctrines and Remedies at [21–350]; and see also Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 and Beese v Woodhouse [1970] 1 WLR 586. Other factors to which the Court will have regard include the adequacy of damages, the possibilities of alternative remedies, whether there has been any laches or delay, the strength of the grounds of defence suggested by the defendant, what, if any, undertakings the defendant is prepared to give, but hardship and balance of convenience are very important: Equity Doctrines and Remedies [21 – 375]. If any infringement of a plaintiff’s right between writ and hearing would be properly compensated in damages, that fact alone can, but not must, be a ground for declining an injunction: McCarty v Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210.

68. In Kolback Securities Ltd v Epoch Mining (1987) 8 NSWLR 533 McLelland J (as His Honour then was) when considering what must be established to obtain an interlocutory injunction, including when the restraint in question may have implications for the disposition of the proceedings at final hearing, said:

"As I see it, the position is as follows. Where a plaintiff's entitlement to ultimate relief is uncertain, the Court, in deciding to grant or refuse an interlocutory injunction, must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which the plaintiff may ultimately be held not to be entitled, and the consequences to the plaintiff of the refusal of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled: see, eg, Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208 at 216; A v Hayden (No 1) (1984) 59 ALJR 1 at 4-5; 56 ALR 73 at 79. Where the uncertainty depends in whole or in part on a contested question of fact it is not appropriate for the Court to decide that question on the interlocutory application. Where the uncertainty depends in whole or in part on a contested question of law, it may or may not be appropriate for the Court to decide that question on the interlocutory application, depending on circumstances, eg, whether the question is novel or difficult, or is susceptible of resolution on the present state of the evidence, or whether the urgency of the matter renders it impracticable to give proper consideration to the question: see, eg, A v Hayden (No 1) (at 4; 78); Cohen v Peko-Wallsend (1986) 61 ALJR 57 at 59;68 ALR 394 at 397. If the Court does decide the question of law the uncertainty is to that extent removed.

Unless the plaintiff shows that there is at least a serious question to be tried which if resolved in its favour would entitle it to final relief, then the requirements of justice as between the parties will dictate that an interlocutory injunction should be refused: Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425; 46 ALR 398; Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283; 52 ALR 651; A v Hayden (No 1); Castlemaine-Tooheys Ltd v South Australia (1986) 60 ALJR 679; 67 ALR 553 and Cohen v Peko-Wallsend Ltd.

Apart from this, although normally the Court "does not undertake a preliminary trial, and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case" (Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622), there are some kinds of case in which for the purpose of seeing where lies the balance of convenience (or more specifically "the balance of the risk of doing an injustice" - see per May LJ in Cayne v Global Natural Resources plc [1984] 1 All ER 225 at 237, cf per Brennan J in Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1983) 57 ALJR 288 at 292; 46 ALR 279 at 285), it is desirable for the Court to evaluate the strength of the plaintiff's case for final relief: see, eg, Brayson Motors Pty Ltd v Federal Commissioner of Taxation (at 292; 285); Castlemaine-Tooheys Ltd v South Australia at 682; 559. One class of case to which this applies is where the decision to grant or refuse an interlocutory injunction will in a practical sense determine the substance of the matter in issue: see, eg, NWL Ltd v Woods [1979] 1 WLR 1294 at 1306-1307; [1979] 3 All ER 614 at 625-626 per Lord Diplock; Cayne v Global Natural Resources plc. The present is such a case. The substantial matter in issue is whether Epoch should be permitted to proceed with the issue of non-renounceable rights in accordance with the announcement of 13 March 1987. That will be irrevocably determined in a practical sense by the grant or refusal of an interlocutory injunction."

69. The application of these principles shows what should be done at this interlocutory hearing.

Is there a serious question to be tried?

70. Dame Carol contends there is a serious question to be tried in the pleaded case on her pleaded case in contract, in promissory estoppel and for unconscionable conduct.

71. Dame Carol’s contract case is that an oral contract was made between her and Ms Fifer on 7 March 2012 in which it was agreed that in consideration for Dame Carol allowing Ms Fifer to accompany her in her personal and public life that Ms Fifer would be permitted to have the benefit of the visual and audio recordings thereby taken to make a documentary for Ms Fifer’s film school work and for no other purpose. Dame Carol contends there was an express or alternative implied term of that oral agreement that Ms Fifer would not use the recordings for topics beyond her political career and time in politics or for a documentary other than for her film school assignment.

70. Dame Carol alleges that the public use of the documentary that is now threatened is a breach of that contract. She contends that the second and third defendants, Media Stockade and Beacon Films, who are involved in the present production, have long been aware of Dame Carol’s contention that the documentary goes beyond what had been agreed with Ms Fifer. Dame Carol alleges that Ms Fifer is in breach of a negative stipulation in this contract (either express or implied) not to use the film footage obtained from Dame Carol other than for the limited purposes agreed: Doherty v Allman (1873) 3 App Cas 709, at 719 – 720.

71. If the relevant contract is ultimately established at final hearing there is only a limited discretion to refuse injunctive relief for a breach of a negative covenant: Otis Elevator Company Ltd v Nolan [2007] NSWSC 593. But the defendants contend that there can be no contract here. They say this was a purely domestic arrangement between family friends and it is not a situation in which the law will find an intention to enter into legal relations: Ermogenous v Greek Orthodox Community of South Australia Inc (2002) 209 CLR 95, [2002] HCA 8

72. The defendants contend that Dame Carol has failed to show a sufficient likelihood of success on this and the other causes of action to justify the preservation of the status quo pending trial. They point to inconsistencies between Dame Carol’s evidence and a number of their witnesses, to the Release, to the objective evidence that this documentary looked like much more than a school assignment, to the early involvement of the ABC and to Dame Carol’s apparent acquiescence in events inconsistent with her case.

73. But in my view this does not mean that there is not a serious question to be tried. There are strong differences between the versions of both sides in this case. Underlying this is the immense ambiguity that the narrative above reveals of a relationship arguably arising out of a mutual friendship then evolving into what at least one of them claims involves wider commercial relationships. Cases such as this are usually only evaluated and then resolved once the strengths and weaknesses of claim and defence can be tested step-by-step against the stances taken by each party as the events in question unfolded. This is not a case where the Court could dismiss Dame Carol’s case as unworthy of justifying the preservation of the status quo pending trial.

74. Dame Carol’s estoppel and unconscionable conduct cases rely upon the same representations as are said to found the case in contract. Even if the defendant were to succeed at final hearing in showing that this was not a case in which the parties agreed to enter contractual relations, the plaintiffs promissory estoppel and unconscionable conduct cases are still maintainable. An injunction lies for breach of a non-contractual promise of the Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 type. The plaintiff’s unconscionable conduct case is pleaded under the Australian consumer law and under general law, both of which appear at least on the evidence to be maintainable claims for relief: Competition and Consumer Act 2010 (Cth), s 5(1).

75. In my view the defendants’ strong submissions about weaknesses in the plaintiff’s case are apt to be deployed at final hearing. But they do not show that there is not a serious question to be tried. Beyond this, it is unwise for the Court on an interlocutory hearing to make comments about the strengths and weaknesses of either party’s case.

The Balance of Convenience

78. The defendants argue that the plaintiff’s claim is really a defamation action dressed up in other clothes. They contend that the documentary has the capacity to convey from the plaintiff’s own words that she is a hypocrite by taking one position in relation to the Paga Hill clearance and then a different position later. The defendants point to the well-known caution expressed by the courts that the power to grant an interlocutory injunction should be exercised only in very clear cases and that foremost among the relevant considerations is the public interest in free speech: Australian Broadcasting Company v O’Neill (2006) 227 CLR 57; and Stocker v McElhinney (No 2) [1961] NSWR 1043.

79. But Mr McClintock SC’s submissions answer this point. In Edelsten v Australian Broadcasting Corporation (1984) Aust Torts Reports 80 – 672 (“Edelsten”), Hunt J was faced with the same issue. The plaintiff, Dr Edelesten, had sought to restrain the ABC from televising a Four Corners program on the basis that he had made an agreement with the ABC at the time of the ABC’s entrance into his medical premises to do the filming: an agreement that he would have a right of veto over what was published. Hunt J accepted that in defamation cases the law was clear that the law will not intervene to suppress freedom of speech and that this principle displaced the ordinary balance of convenience rule governing the granting of interlocutory injunctions. But in Edlesten Hunt J made clear that the special exception from the balance of convenience rule for freedom of speech, does not apply in relation to a more limited claim for an injunction based on breach of contract such as was relied upon by Dr Edelsten.

80. Hunt J granted the injunction limited solely to the material that Dr Edelsten asserted had been supplied to the defendant and not any other material in the program.

81. The plaintiff in this case, Dame Carol, acknowledges that the injunction should be so limited. I see no difference between the contract claim in Edlesten and the contract, promissory estoppel and unconscionable conduct claims here.

82. Freedom of speech is a matter of immense importance to the operation of an open society. And any injunction in this case will be limited so that there can be no suppression of discussion of the subject of public interest represented in this documentary. In an edited form, the documentary can still be shown before final hearing. The immediate problem though is that the defendants say they have neither the funds nor the time to do that before 28 April.

83. The defendants raise a number of other matters relevant to the balance of convenience. They point to the financial prejudice they will suffer from an injunction restraining publication, if the documentary is not able to be screened at Hot Docs. There is merit in this concern, especially where, as the defendants point out, the plaintiff is not resident in Australia. This matter can be adequately compensated for in damages. I will require as a condition of the injunction that the plaintiff provide acceptable security in the sum of $250,000, as well as the usual undertaking as to damages.

84. The defendants also rely upon the interview in Melbourne on 24 July 2014, Shoot #8, as evidence that the plaintiff wanted to “Set the record straight and outline my current views about the Paga Hill community resettlement exercise”. But this is really a submission that the plaintiff was well aware that the contract she alleges had been breached and did nothing about it; a matter which goes to the merits at final hearing and perhaps to the issue of laches. As to the first of these, the issue for final hearing, it should be recognised in the evolution of an arrangement that arose out of a friendship, and then became something commercial, that Dame Carol may indeed have a good explanation at final hearing for not seeking to initiate litigation against a person, who she regarded as an old friend to whom she was indebted.

85. But I do not accept that there would be no injury to the plaintiff if an injunction were not granted. If the promises Dame Carol alleges were to be proven, their breach would be very difficult to measure in damages

86. The defendants say that an injunction to prevent the Paga Hill demolition scene (Shoot #1) from display would be futile. I partly agree with this submission. Any injunction which is granted should carve out the material which is now already available on Youtube. This should not be the subject of restraint. The rest can be restrained. No other division of the restraint by reference to particular shoots seems practical. The parties have very carefully defined the extent and sources of that material in material supplied to the Court after the hearing which will be marked Exhibit E.

87. The defendants say the plaintiff has delayed in commencing proceedings. The narrative above shows that she expressed her displeasure about this documentary almost 2 years ago. But in my view the plaintiff acted reasonably promptly, when she was aware of the documentary actually being shown on Hot Docs. And before that she has a sound practical explanation for not initiating legal hostilities against an old friend. The Court can observe too that before contributors or investors put funds into this documentary after May 2014, it was equally open to them to seek declaratory relief, in light of Dame Carol’s expressed disquiet.

Conclusion and Orders

88. For the reasons stated the Court will grant an interlocutory injunction until the final hearing in substantially the form the plaintiff seeks. But any restraint will be limited to the material that the parties agreed was the subject of Ms Fifer’s film shoots with Dame Carol and will exclude from the restraint any material already published at any time on the internet. As a condition of the injunction the plaintiff will have to secure the sum of $250,000 to the satisfaction of the Court. Costs will be reserved.

89. The matter will be adjourned to 3.00pm to enable the parties to read the Court’s reasons and bring in appropriately crafted Short Minutes of Order including dealing with the question of security. The Court will have the chance to find dates for a final hearing.

90. There may yet be solutions to these parties’ differences before 28 April. This case will potentially be very costly for the losing party. If any party applies for a mediation order at 3.00pm under Civil Procedure Act 2005 the Court will consider making it.

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Decision last updated: 22 April 2016