Network Ten Pty Limited v van Onselen - [2023] NSWSC 829

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Network Ten Pty Limited v van Onselen [2023] NSWSC 829
Hearing dates: 29 June 2023
Date of orders: 14 July 2023
Decision date: 14 July 2023
Jurisdiction: Equity
Before: Hammerschlag CJ in Eq
Decision:
Declaration that the publication in The Australian Business Review section of The Australian newspaper on 29 May 2023 of the article headed “Paramount woes raise questions about the long term viability of Network 10” was a breach by the defendant of cl 7.1 of the Deed entered into by the plaintiff and the defendant on 3 March 2023

Catchwords:
CONTRACTS — construction — on the termination of the defendant’s employment with the plaintiff, the parties executed a Deed of Release (the Deed) containing a non-disparagement clause — the defendant, a journalist and academic, published a newspaper article (the Article) disparaging of the plaintiff — whether on the proper construction of the Deed, disparaging comments were captured only if they related to the defendant’s employment with the plaintiff or its termination — whether the Article was not disparaging because it was based on public information and concerned matters where the plaintiff’s reputation had already been tarnished — RESTRAINT OF TRADE — Restraints of Trade Act 1976 (NSW) ss 2(2), 4(1), 4(3) — whether the non-disparagement clause is a restraint of trade and, if so, whether it is against public policy — EQUITY — equitable defences — unclean hands — whether the plaintiff has approached the Court with unclean hands because of representations said to have been made by it to the defendant concerning the operation of the non-disparagement clause — REMEDIES — whether a declaration should be made and an injunction granted — HELD — on its proper construction, the defendant breached the non-disparagement clause — the non-disparagement clause is not a restraint of trade but, if it is, it is not against public policy — the alleged representation concerning operation of the non-disparagement clause was not made out and in any event, the plaintiff does not have unclean hands — declaration as to breach should be made but no injunction granted

Legislation Cited:
Restraints of Trade Act 1976 (NSW)

Cases Cited:
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36
Boddington v Lawton [1994] ICR 478
Electricity Generation Corporation Ltd v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd [1968] AC 269
Fermiscan Pty Ltd v James [2009] NSWCA 355; (2009) 261 ALR 408
Fermiscan v James [2009] NSWSC 546
McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; [2000] HCA 65
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35
Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126; [2001] HCA 45
Petrofina (Great Britain)…

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: [2023] NSWSC 829
Decision Date: 14 July 2023

CaseChat Overview and Summary

Network Ten Pty Limited, a media company, took legal action against Mr van Onselen, a former employee and journalist, for breaching a non-disparagement clause in their Deed of Release. After the termination of his employment, Mr van Onselen published an article that Network Ten claimed was disparaging. The case was heard in the Supreme Court of New South Wales.

The primary legal issues in the case were whether the non-disparagement clause in the Deed of Release was properly constructed to encompass disparaging comments only if they related to Mr van Onselen’s employment or its termination, and whether the article in question could be considered disparaging. Additionally, the court had to determine if the non-disparagement clause constituted a restraint of trade under the Restraints of Trade Act 1976 (NSW), and if so, whether it contravened public policy. The court also considered whether Network Ten had unclean hands due to alleged representations made to Mr van Onselen regarding the operation of the non-disparagement clause, and whether the equitable defences applied.

The court found that the non-disparagement clause was properly constructed to cover disparaging comments related to the employment or its termination, and that the article did indeed constitute a breach. It was determined that the non-disparagement clause did not amount to a restraint of trade, and if it did, it did not contravene public policy. The court found no evidence to support the claim that Network Ten had unclean hands, as the alleged representations were not substantiated. Consequently, the court granted a declaration of breach but did not grant an injunction.

The final orders of the court were that a declaration should be made that Mr van Onselen had breached the non-disparagement clause in the Deed of Release. However, an injunction was not granted. The court's decision provided clarity on the interpretation of non-disparagement clauses in employment termination agreements and their implications under Australian law.

Orders