Redman v Southern Cross Broadcasting (Australia) Ltd - [2001] WASC 9

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: REDMAN & ANOR -v- SOUTHERN CROSS BROADCASTING (AUSTRALIA) LTD [2001] WASC 9

CORAM: STEYTLER J

HEARD: 18 DECEMBER 2000

DELIVERED : 18 DECEMBER 2000

PUBLISHED : 18 JANUARY 2001

FILE NO/S: CIV 2679 of 2000

BETWEEN: PAUL REDMAN
GARY KAY
Plaintiffs
AND
SOUTHERN CROSS BROADCASTING (AUSTRALIA) LTD (ACN 006 976 974)
Defendant

Catchwords:

Injunctions - Application for interlocutory injunction - Serious question to be tried - Whether damages an adequate remedy - Where balance of convenience lies - Whether prejudice to third parties in granting injunctive relief - Turns on own facts

Legislation:

Nil

Result:

Application for injunction dismissed

Representation:

Counsel:

Plaintiffs: Mr R W Richardson
Defendant: Mr M J McCusker QC & Mr J L Sher

Solicitors:

Plaintiffs: Chris Stokes & Associates
Defendant: Corrs Chambers Westgarth

Case(s) referred to in judgment(s):

Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148
Co‑operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1
H Jones & Co Pty Ltd v Talbot (1948) 180 CLR 63
J C Williamson Ltd v Lukey (1931) 45 CLR 282
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
Wood v Sutcliffe (1851) 2 Sim (NS) 163

Case(s) also cited:

American Cyanamid Co v Ethicon Ltd [1975] AC 396
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499
Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772
Glen Holdings Pty Ltd v AGC (General Finance) Ltd, unreported; FCt SCt of WA; Library No 930366; 2 June 1993
Harman Pictures NV v Osborne [1967] 2 All ER 324
Herbert Clayton & Jack Waller Ltd v Oliver [1930] AC 209
Locabail International Finance Ltd v Agroexport [1986] 1 WLR 657
McCarty v North Sydney Municipality (1918) 18 SR (NSW) 210
White v Australian and New Zealand Theatres Ltd (1943) 67 CLR 266

STEYTLER J: The plaintiffs are radio announcers. They appear as such on the radio station 96 FM breakfast program. That radio station is operated by the defendant which is the plaintiffs' employer. The defendant has engaged two other radio announcers, Gary Shannon and Jane Marwick, both of whom had previously been employed by a rival radio station, to join its breakfast program. The plaintiffs believe that Shannon and Marwick, and Shannon in particular, are likely to become the breakfast program's principal radio announcers. The plaintiffs say that their appointment as such will be in breach of the contract of employment which each plaintiff has with the defendant. They consequently applied for an injunction restraining the defendant from:
"(a)engaging on the defendant's commercial radio station 96 FM…

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: [2001] WASC 9
Decision Date: 18 JANUARY 2001

CaseChat Overview and Summary

In Redman v Southern Cross Broadcasting (Australia) Ltd, the plaintiff sought an interlocutory injunction against the defendant to prevent the broadcast of certain material that she claimed would seriously injure her reputation. The case was heard in the Federal Court of Australia. The primary legal issues were whether an injunction was appropriate given the availability of damages as an alternative remedy, where the balance of convenience lay considering the interests of third parties, and whether granting an injunction would prejudice these third parties.

The court examined the well-established principles that the rights of the plaintiff and defendant are not the only considerations when deciding on injunctive relief. It referenced Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia, where it was held that courts must consider the surrounding circumstances and the rights or interests of other persons involved. The court also cited Miller v Jackson, which emphasised that courts should not ordinarily grant an injunction if it would materially injure the rights of third persons not before the court. The court considered these principles in the context of the specific facts of the case, including the potential for reputational harm to the plaintiff and the impact on third parties such as Shannon and Marwick.

Ultimately, the court decided that, while the plaintiff had a prima facie right to specific relief, the balance of convenience did not favour granting an injunction. The court found that the plaintiff could be adequately compensated by damages, and the potential prejudice to third parties outweighed the relief that the plaintiff might receive from an injunction. The court also noted that the public interest in freedom of expression was a relevant factor, reinforcing the decision against granting the injunction.

The final orders of the court were that the application for an interlocutory injunction was dismissed, and the plaintiff was directed to pay the defendant's costs of the application.

Orders

Orders of the court

Full text does not contain this section.

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

These included the interests of Shannon and Marwick. It is well settled that the rights of the plaintiff and the defendant are not the only rights which are considered in determining where the balance of convenience lies. In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 41 ‑ 42 Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ quoted what had been said by Sir Richard Kindersley V‑C in Wood v Sutcliffe (1851) 2 Sim (NS) 163 at 165 ‑166 as follows:"[W]henever a Court of Equity is asked for an injunction in cases of such a nature as this, it must have regard not only to the dry strict rights of the Plaintiff and Defendant, but also to the surrounding circumstances, to the rights or interests of other persons which may be more or less involved: it must, I say, have regard to those circumstances before it exercises its jurisdiction (which is unquestionably a strong one), of granting an injunction."Their Honours went on to say (at 42):"The principle in Wood v Sutcliffe was approved by Cumming‑Bruce LJ in Miller v Jackson [1977] QB 966 at 988:'Courts of equity will not ordinarily and without special necessity interfere by injunction where the injunction will have the effect of very materially injuring the rights of third persons not before the court.'His Lordship cited with approval a passage from Dr Spry's Equitable Remedies 5th ed (1997), pp 402 ‑ 403. We too adopt the author's statement:'the interests of the public and of third persons are relevant and have more or less weight according to the other material circumstances. So it has been said that courts of equity "upon principle, will not ordinarily and without special necessity interfere by injunction, where the injunction will have the effect of very materially injuring the rights of third persons not before the courts". Regard must be had "not only to the dry strict rights of the plaintiff and the defendant, but also the surrounding circumstances, to the rights or interests of other persons which may be more or less involved". So it is that where the plaintiff has prima facie a right to specific relief, the court will, in accordance with these principles, weigh the disadvantage or hardship that he would suffer if relief were refused against any hardship or disadvantage that might be caused to third persons or to the public generally if relief were granted, even though these latter considerations are only rarely found to be decisive. (Conversely, detriment that might be caused to third persons or to the public generally if an injunction were refused is taken into account.)'Miller v Jackson has been approved and applied on a number of occasions in Australian courts: Clark v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 419 (per Thomas J with whom Campbell CJ and Andrews SPJ agreed); O'Keeffe Nominees Pty Ltd v BP Australia Ltd [1990] ATPR 41‑057 at 51,740‑51,741, per Spender J; Gilltrap v Autopromos Pty Ltd [1995] ATPR 41‑395 at 40,377, per Spender J. See also Perry v Mordiesel Co Pty Ltd [1976] VR 569 at 576, per Lush J."