Kidu v Fifer (No. 2) - [2016] NSWSC 550

Supreme Court

New South Wales

Medium Neutral Citation: Kidu v Fifer & Ors (No. 2) [2016] NSWSC 550
Hearing dates: 29 April 2016
Date of orders: 29 April 2016
Decision date: 29 April 2016
Jurisdiction: Equity - Duty List
Before: Slattery J
Decision:
Injunction extended in scope.

Catchwords: EQUITY – application by plaintiff for supplementary orders to extend scope of injunction - defendants edited documentary removing enjoined footage and replacing with blackouts and text that is said to provide context to the footage not subject to injunction - defendants have published and distributed documentary to persons in Canada for Hot Docs film festival – documentary not yet exhibited - whether current version of documentary contains material that was derived from or is descriptive of material the subject of the injunction – whether supplementary orders should be made.
Cases Cited: Kidu v Fifer & Ors [2016] NSWSC 488
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

EX TEMPORE Judgment

It is now 5.30pm. The Court is sitting after hours to deal with a further urgent application in these proceedings. The Court made orders this morning granting a restraint against the defendants in a form similar to the undertaking which was recorded in the Court's first judgment in these proceedings: Kidu v Fifer & Ors [2016] NSWSC 488. But since then and in conformity with the discussion that took place before the Court this morning, the defendants supplied a copy of the DVD of the re-edited documentary to the plaintiff's solicitors, upon an undertaking that the plaintiff's solicitors would not publish it.
After receiving the DVD at lunch time today the plaintiffs took the opportunity to examine whether it complied with the existing restraint, that has so far applied through the undertakings given to the Court.
The plaintiffs applied this afternoon commencing at about 3.30pm for supplementary orders. The plaintiffs contend that the version of the documentary which has now been supplied to the Hot Docs Festival in Canada for exhibition contains some material which could only be derived from or is descriptive of the material that is subject to the undertakings and now the injunctions, and is not otherwise publicly available.
In the time available there has not been sufficient opportunity for the plaintiffs or the Court to examine the full final version of the documentary in the form that it was sent to Canada. But it is not in dispute that certain introductory text is published in blacked out portions of the documentary that are the subject of the injunction. This introductory text contains the following matter:

“This film is the subject of a legal case, which is currently awaiting trial at 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: [2016] NSWSC 550
Decision Date: 29 April 2016

CaseChat Overview and Summary

The case of Kidu v Fifer (No. 2) was before the Federal Court of Australia, where the plaintiff, Kidu, sought supplementary orders to extend the scope of an existing injunction. The defendants, Fifer, had edited a documentary in a manner that removed footage that was the subject of the injunction, replacing it with blackouts and text to provide context to the retained footage. Despite these edits, Kidu argued that the documentary still contained material that was derived from or descriptive of the enjoined content. The defendants had published and distributed the documentary to persons in Canada for the Hot Docs film festival, but it had not yet been exhibited. The court was tasked with determining whether the current version of the documentary contained material that fell within the scope of the injunction and whether supplementary orders should be made to prevent its distribution.

The central legal issue before the court was whether the edits made by the defendants to the documentary sufficiently severed any connection to the enjoined content, or whether the documentary still contained material that was derived from or descriptive of that content. This required an analysis of the extent to which the edits achieved the necessary severance and whether the remaining content still infringed on the plaintiff's rights. Additionally, the court had to consider the timing of the injunction's extension and whether it was appropriate to grant supplementary orders before the documentary had been exhibited.

The court found that the edits made by the defendants did not sufficiently sever the connection between the documentary and the enjoined content. The remaining material in the documentary was still derived from or descriptive of the enjoined content, thus falling within the scope of the injunction. Given the nature of the documentary and its distribution, the court concluded that it was necessary to grant supplementary orders to prevent the further publication and distribution of the documentary. The court emphasised the importance of protecting the plaintiff's rights and preventing any potential harm that might arise from the exhibition of the documentary in its current form. Consequently, the court made the supplementary orders sought by the plaintiff, extending the scope of the injunction to cover the current version of the documentary.

Orders