Nine Network Australia v Seven Network (Operations)
[2006] NSWSC 669
•27/06/2006
CITATION: Nine Network Australia v Seven Network (Operations) [2006] NSWSC 669 HEARING DATE(S): 27 June 2006
JUDGMENT DATE :
27 June 2006JURISDICTION: Equity JUDGMENT OF: Campbell J EX TEMPORE JUDGMENT DATE: 06/27/2006 DECISION: Application at this stage refused CATCHWORDS: PROCEDURE – application by non-party to be heard concerning whether ex parte orders should be extended – application by media proprietors to be heard concerning injunction restraining publication of contents of affidavit served for purposes of a court application, but not read – distinction between role of media on such an application and role of media concerning non-publication order concerning events in open court – need for evidence to establish interest CASES CITED: Harman v Secretary of State for the Home Department [1983] 1 AC 280 PARTIES: Nine Network Australia Pty Limited - Plaintiff
Seven Network (Operations) Limited - First Defendant
Mark Llewellyn - Second Defendant
Blimey Holdings Pty Ltd - Third Defendant
Glenn Dyer - Fourth Defendant
Nationwide News Pty Limited - First Applicant
John Fairfax Publications Pty Limited - Second Applicant
The Age Company Limited - Third ApplicantFILE NUMBER(S): SC 3425/06 COUNSEL: AJ Bannon SC; BJA Shields - Plaintiff
TEF Hughes QC; TDF Hughes - First Defendant
A Moses - Second Defendant
DL Cook - Third and Fourth Defendant
TD Blackburn SC; ATS Dawson - ApplicantsSOLICITORS: Deacons - Plaintiff
Mallesons Stephen Jaques First Defendant
Hillman Laxon Tobias - Second Defendant
Holding Redlich - Third and Fourth Defendant
Freehills - Applicants
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST
CAMPBELL J
TUESDAY 27 JUNE 2006
3425/06 NINE NETWORK AUSTRALIA PTY LIMITED v SEVEN NETWORK (OPERATIONS) LIMITED & ORS
JUDGMENT – Ex Tempore
1 HIS HONOUR: Mr Blackburn, of Senior Counsel, attends court today, instructed by Fairfax, News and the Age. He makes an application to be heard in connection with the present application before me. The application before me is one which relates to whether certain orders which were made yesterday evening, on an ex parte basis, and which restrain the publication of the contents of an affidavit which was prepared for the purpose of proceedings, but not used in those proceedings, should be extended.
2 Clearly, one of the bases upon which the plaintiff would rely for an extension, if it were to be argued, is the implied obligation to the Court that documents which are produced through compulsory process of the Court prior to a trial, only be used for the purpose for which they were produced, and only disclosed for the purpose of the proceedings. Mr Blackburn himself referred to Harman v Secretary of State for the Home Department [1983] 1 AC 280, the modern authority for that principle, in his submissions to me.
3 Yesterday, after the ex parte orders were granted, various media organisations, including Mr Blackburn’s clients, were sent a letter, which notified them of the terms of the orders. The letter concluded by saying:
- “Please be aware that we will monitor publications concerning the matters referred to in the above orders to ensure the above orders are complied with. To the extent the orders are not complied with our client reserves its rights to take further proceedings without further notice.”
4 Mr Blackburn claims that media interests are regularly accorded the opportunity to address the Court, if a court has made a non-publication order. I have no reason to doubt what he tells me about that. Further, he tells me that usually the Court is prepared to accept, without evidence, that the media has an interest in the publication of any matter which has been the subject of a non-publication order, concerning court proceedings. Likewise, I have no reason to doubt that.
5 The present case is one which, it seems to me, differs in one respect from the usual case in which a non-publication order is made. Usually, when a non-publication order is made, there have been proceedings in open court, and the Court has ordered that some aspect of those proceedings - the identity of a particular witness, or certain evidence which has been given - not be disclosed. One of the assumptions our society works on is that justice will be administered in the open, and that one role of the media is to report on what has happened in the open, in courts.
6 It seems to me that those fundamental assumptions provide a basis for the Court adopting the practice which Mr Blackburn tells me the Courts usually adopt concerning the interest of media in opposing the making or continuance of a non-publication order.
7 In the present case, precisely because the affidavit in question has not been read in court, the principle of open administration of justice does not come to operate. Rather, the principle in Harman v Secretary of State for the Home Department [1983] 1 AC 280; [1982] 1 All ER 532 is one which attaches during the pre-trial stage of the litigation. It is not apparent to me, when no evidence has been presented on the topic, that the media organisations which Mr Blackburn represents have an interest, of a type which the Court should respect, in anything to do with what has happened between the parties during the pre-trial stages of litigation.
8 Of course, there may well be facts which show that there is something about the facts of this particular case which confer an interest on Mr Blackburn’s clients, in contesting orders which aim to enforce the implied undertaking of confidentiality. I would not be prepared to assume, without evidence, however, that that is the case.
9 Thus, when there is no evidence to support the application, I do not accede to it today. In putting the matter that way, I am not seeking to foreclose the application being made again, on the basis of such evidence as might be thought fit. If there were to be a desire to make that application, in the ordinary course of things, it would be open to Mr Blackburn’s clients to seek short service of a Notice of Motion.
10 For those reasons, the application is, at this stage, not acceded to.
11 Alternatively, Mr Blackburn seeks that his clients become parties to the action. At present I can not see any basis upon which an application for party status materially differs from the application to be heard in the absence of evidence. The application for party status is also, at this stage, rejected.
12 In a draft order, which I initial and date today, I note, in the first three lines, who consents to which of the orders and who does not oppose which of the orders; I make orders 1 to 7 contained in that document; I note paragraphs 8, 9 and 10 of the document.
13 The first defendant applies for its costs of today. Mr Hughes QC, for the first defendant, said there is no letter before action or request for the statement of the position of the first defendant before the action is taken and that the Notice of Motion seeking an injunction has not been proceeded with against the first defendant.
14 I accept Mr Bannon’s submission that the first defendant was a necessary party to the proceedings. That is not, in itself, enough to decide the question because a party can be necessary if there is no order sought against that party but it is necessary for that party to be bound. There can, nevertheless, be a requirement to pay the costs of such a necessary party.
15 The first defendant, while it has made a carefully worded statement of having no present desire or intention to publish the material, clearly leaves open the possibility that in future it might change its mind. In all the circumstances I reserve the costs of the first defendant for today’s appearance.
16 I stand the matter down. In the event that the parties are not able to reach agreement about what should happen, then it may be restored at 3.45 pm.
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