Network Ten Pty Ltd v Rowe - [2006] NSWCA 4

Reported Decision: 149 IR 273

Court of Appeal

CITATION: Network Ten Pty Ltd v Rowe [2006] NSWCA 4
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 3 January 2006

JUDGMENT DATE:
4 January 2006

JUDGMENT OF: Santow JA at 1

DECISION: Notice of Motion dated 3 January 2006 dismissed and costs of the motion are costs in the appeal.

CATCHWORDS: PRACTICE AND PROCEDURE – Equity – Interlocutory injunction – Principles upon which unsuccessful plaintiff may apply for interlocutory injunction pending resolution of appeal – Balance of convenience issues – Interlocutory relief not allowed – Relevance of early appeal hearing.

CASES CITED: Jesasu Pty Limited v Minister for Mineral Resources (1987) 11 NSWLR 110

PARTIES: NETWORK TEN PTY LIMITED (Claimant/Appellant)
Jessica ROWE (Opponent/Respondent)

FILE NUMBER(S): CA 40001/06

COUNSEL: D P Robinson, SC (Claimant/Appellant)
R M Goot, AM, SC/ P Braham (Opponent/Respondent)

SOLICITORS: Black Dawson Waldron (Claimant/Appellant)
Harmers Workplace Lawyers (Opponent/Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 50187/05

LOWER COURT JUDICIAL OFFICER: Simpson J

CA 40001/06

SANTOW JA
4 JANUARY 2006

NETWORK TEN PTY LTD v Jessica ROWE

Judgment

1 SANTOW JA:

INTRODUCTION:

2 The existence of that contract with Channel 9 is now known to the public from publicity so far (see in particular Application Book ("AB") 32 containing the Channel 9 press release of 18 December 2005. Likewise publicly known is the joint intention of Channel 9, and Miss Rowe, that Miss Rowe will initially be the presenter and co-host of Channel 9's Today Show (see, for example, AB 41). According to Miss Rowe’s unchallenged evidence, that contract requires her "to go on air" prior to the beginnings of the rating season of 30 January 2006 as the Today Show co-host (AB 62 affidavit of Miss Rowe paras 34 and 36).

3 What is at issue is Miss Rowe’s capacity now to promote her role with Channel 9 and, in particular, to have the preparation time to allow her to perform on air from 30 January 2006 on the Today Show; that is to say during the relatively short period it would take from now to dispose of an appeal set down for urgent hearing on 10 January 2006 by my earlier orders. It follows that, expedition having been granted…

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.

Keep reading for free

Create a free CaseChat account to read Network Ten Pty Ltd v Rowe and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWCA 4
Decision Date: 4 January 2006

CaseChat Overview and Summary

Network Ten Pty Ltd sought interlocutory relief from the Court of Appeal of New South Wales to restrain the broadcast of certain material pending the resolution of its appeal against a decision of the primary judge. The dispute concerned the potential broadcast of material that Network Ten feared might be found to be defamatory, and the application was made after Network Ten had been unsuccessful in obtaining an interlocutory injunction at first instance.

The central legal issue before the Court of Appeal was the principles governing the grant of interlocutory injunctions to a party who has already failed to obtain such relief at trial, specifically in circumstances where that party is seeking to preserve the status quo pending the determination of an appeal. The court was required to consider the balance of convenience, including the relevance of the availability of an early hearing of the appeal itself.

Santow JA held that the principles for granting interlocutory relief to an unsuccessful plaintiff pending appeal are stringent. His Honour noted that while such relief is not impossible, it requires a strong case to be made out, particularly given the prior unsuccessful application. The court considered the potential harm to the respondent if the injunction were granted and the potential harm to the appellant if it were refused, weighing these against the prospects of success on appeal and the availability of an expedited appeal hearing. The court concluded that the balance of convenience did not favour the grant of the interlocutory injunction.

Consequently, the Notice of Motion dated 3 January 2006 was dismissed, with the costs of the motion to be costs in the appeal.

Orders

Orders of the court

Notice of Motion dated 3 January 2006 dismissed and costs of the motion are costs in the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Network Ten Pty Ltd v Rowe [2006] NSWCA 4 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	3 January 2006
JUDGMENT DATE:	4 January 2006
JUDGMENT OF:	Santow JA at 1
DECISION:	Notice of Motion dated 3 January 2006 dismissed and costs of the motion are costs in the appeal.
CATCHWORDS:	PRACTICE AND PROCEDURE – Equity – Interlocutory injunction – Principles upon which unsuccessful plaintiff may apply for interlocutory injunction pending resolution of appeal – Balance of convenience issues – Interlocutory relief not allowed – Relevance of early appeal hearing.
CASES CITED:	Jesasu Pty Limited v Minister for Mineral Resources (1987) 11 NSWLR 110
PARTIES:	NETWORK TEN PTY LIMITED (Claimant/Appellant) Jessica ROWE (Opponent/Respondent)
FILE NUMBER(S):	CA 40001/06
COUNSEL:	D P Robinson, SC (Claimant/Appellant) R M Goot, AM, SC/ P Braham (Opponent/Respondent)
SOLICITORS:	Black Dawson Waldron (Claimant/Appellant) Harmers Workplace Lawyers (Opponent/Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 50187/05
LOWER COURT JUDICIAL OFFICER:	Simpson J