Network Ten Pty Ltd v Rowe

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.