Seven Network (Operations) Ltd v Australian Broadcasting Corporation & 2 Ors

[2007] NSWSC 1289

CITATION:	Seven Network (Operations) Ltd v Australian Broadcasting Corporation & 2 Ors [2007] NSWSC 1289
HEARING DATE(S):	13/11/07
JUDGMENT DATE :	13 November 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Barrett J
EX TEMPORE JUDGMENT DATE:	13 November 2007
DECISION:	Interim injunction granted
CATCHWORDS:	EQUITY - injunctions - interlocutory injunction - whether serious case to be tried of breach of confidentiality through trespass - short restraint proposed in first instance - where balance of convenience lies
CASES CITED:	Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 208 CLR 199 Douglas v Hello Ltd [2007] UKHL 21
PARTIES:	Seven Network (Operations) Ltd - Plaintiff Australian Broadcasting Corporation - First Defendant Chaser Publishing Pty Ltd - Second Defendant Chaser Broadcasting Pty Ltd - Third Defendant
FILE NUMBER(S):	SC 5518/07
COUNSEL:	Mr D.R. Sibtain - Plaintiff Ms E. Raper - Defendants
SOLICITORS:	Mallesons Stephen Jaques - Plaintiff ABC Legal Department - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

TUESDAY 13 NOVEMBER 2007

5518/07 SEVEN NETWORK (OPERATIONS) LTD V AUSTRALIAN BROADCASTING CORPORATION, CHASER PUBLISHING PTY LTD & CHASER BROADCASTING PTY LTD

JUDGMENT

1 Counsel for the plaintiff, Seven Network (Operations) Ltd (which I shall call “Channel 7”), has approached the court urgently this evening in consequence of what it says was unauthorised and uninvited entry upon its premises in Martin Place earlier today by persons apparently connected with the defendants’ satirical program "The Chaser’s War on Everything". Those persons included performers or presenters as well as camera crew. They filmed certain activities in the working area of Channel 7's premises being the area related to the production of the Channel 7 programme "Today Tonight".

2 The defendants are Australian Broadcasting Corporation, Chaser Publishing Pty Ltd and Chaser Broadcasting Pty Ltd. They have also appeared by counsel.

3 The position the defendants take is that the persons from the Chaser were invited into the Channel 7 premises by Ms Coren, an employee or representative of Channel 7; that with her cooperation they "did a stunt" which involved filming the Chaser performers together with Ms Coren inside the Channel 7 premises; and that the filming ceased once the stunt had been completed. Thereafter, on the defendants’ version of matters, a Channel 7 journalist asked to interview the Chaser people and, with their concurrence, did so on camera after which the Chaser team left the premises.

4 These versions are not yet on affidavit and I have received them mainly in the form of statements made by counsel on both sides on instructions – but, importantly, supplemented by a viewing of part of the footage taken by the defendants' camera crew at the time and some brief oral evidence from Mr Keegan, the plaintiff's solicitor, about the layout of the Channel 7 premises and things he has observed on visits there, and from Mr Patterson of the ABC Legal Department, who gave evidence about a promotion for a program about the incident apparently proposed to be transmitted by Channel 7. I shall return to that.

5 Channel 7 considers itself to have certain substantive causes of action arising from the entry the Chaser team on to the Channel 7 premises and their activities there. As an interim measure to preserve the status quo, Channel 7 seeks an order enjoining communication or publication of the footage taken by the Chaser team at the Channel 7 premises.

6 It seems to me that, if the evidence in its final form bears out the respective versions given briefly by counsel this evening, it is likely that the court will find that there is a serious question to be tried on several matters.

7 The first is whether the defendants, or one or more of them, are vicariously liable for trespass by the members the Chaser team on the Channel 7 premises. That inquiry will include consideration of the question whether the initial entry was unlawful and, if it was, whether it later became lawful by reason of some form of licence to remain given by Ms Coren when she invited the Chaser team into her office, which might retrospectively constitute a licence to enter. As I say, it seems to me that there is going to be a serious question to be tried on the trespass issue.

8 Second, there is likely to be a serious question to be tried as to whether the defendants, through the particular individuals, breached an equitable obligation of confidence of the kind recognised at various parts of the judgments in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 208 CLR 199 and also more recently by a majority of the House of Lords in Douglas v Hello Ltd [2007] UKHL 21. Confidences go to a number of matters, the peripheral aspects of which are probably the means of access to the premises, while the central aspects are matters to do with the production and content of the Channel 7 program “Today Tonight”, including matters such as the layout of the production premises (described by the Chaser team on the film as "the temple of mediocrity") and the planning of the "Today Tonight" program displayed on boards on the wall of the work area.

9 The serious question to be tried is likely to arise in particular in relation to the issue canvassed by Gleeson CJ at paragraphs [51] and [52] of his judgment in the Lenah Game Meats case with emphasis on possible diminution of the goodwill of the "Today Tonight" program:

“[51] There is judicial support for the proposition that the trespassers, if caught in time, could have been restrained from publishing the film. In Lincoln Hunt Australia Pty Ltd v Willesee some representatives of a producer of material for television entered commercial premises, with cameras rolling, and harassed people on the premises. Their conduct amounted to trespass. Young J had to consider whether to restrain publication of the film. Because of the effrontery of the conduct of the defendants, he concluded this was a case for large exemplary damages, and that damages were an adequate remedy. On that ground, he declined an injunction. In accordance with settled practice, and principle, however, the first question he asked himself was as to the plaintiff's equity. Because of the ground on which he declined relief, he did not need to decide that question which, he said, took him ‘into very deep waters’. However, he expressed the following tentative opinion, which has been taken up in later cases:
‘In the instant case, on a prima facie basis I would have thought that there is a lot to be said in the Australian community where a film is taken by a trespasser, made in circumstances as the present, upon private premises in respect of which there is some evidence that publication of the film would affect goodwill, that the case is one where an injunction should seriously be considered.’
[52] If, in the present case, the appellant had been a party to the trespass, it would be necessary to reach a conclusion about the question which Young J thought should seriously be considered. I would give an affirmative answer to the question, based on breach of confidence, provided the activities filmed were private. I say nothing about copyright, because that was not argued. But the case was one against the trespassers. That was why exemplary damages were available, and constituted a sufficient remedy.”

10 It has been submitted on behalf of the defendants that damages would be an adequate remedy. I am not satisfied that it is as clear-cut as that. The apprehension of damage to goodwill would make that proposition problematic, I suspect.

11 With things in their current state, I immediately ask myself what hardship will be visited upon the respective parties if, on the one hand, a restraint of reasonably short duration is ordered pending the return of this matter to court in a more orderly way or, on the other, no such order is made.

12 From the Channel 7 perspective, if the interlocutory restraint is not imposed its confidentiality will arguably have been invaded and its goodwill will arguably have been diminished and may be incapable of being recaptured or restored. Just what the ramifications of that may be, I cannot at this stage tell, but they are potentially serious.

13 From the perspective of the defendants, if the interim restraining order is made they will not be able to show on "The Chaser’s War on Everything" due to go to air tomorrow what would be, I suspect, a few minutes of material. They will have to find something else to fill the gap. It was submitted on behalf of the defendants that the prejudice to them goes deeper than that. They raise the matter to which I have already made brief reference concerning a promotional telecast by Channel 7 about a program it apparently proposes to run. This is also a matter that goes, I think, to the exercise of the court's discretion in the circumstances.

14 It has been conceded by Channel 7 that there was a plan to put to air tomorrow a program about today's incident in which the Chaser team visited the Channel 7 premises. Channel 7 would, in that program, use footage taken by Channel 7 itself when the Chaser team were at the premises. I was concerned about that aspect and communicated that concern to counsel for Channel 7 who, during a short adjournment, obtained instructions to offer to court an undertaking by Channel 7, the plaintiff, to continue to take immediate steps to do what it can to withdraw the 15 second promotional broadcast for a story on the incident and also that, until determination of these proceedings, Channel 7 will not broadcast that story.

15 That, to my mind, satisfactorily addresses that aspect and the concern I expressed and leaves the position of the defendants, from the balance of convenience perspective, as I have described it, that is, that if the order sought is made, there will be a short time slot in tomorrow's Chaser program that has to be filled with something else.

16 On that footing and bearing in mind what I have said about ramifications for Channel 7 if the order is not made, I am of the opinion that the balance of convenience at this point favours the short restraint Channel 7 seeks.

17 There is an application for a second order for delivery up of the film in question by the defendants to the plaintiff. That has now been defused by a consent on the part of the defendants to an order that two copies of the film be provided to Channel 7, but on the basis that those copies are available only to the legal advisers to Channel 7 and on the further basis that no further copy will be made.

18 Upon the plaintiff by its counsel giving to the court the usual undertaking as to damages and an undertaking to continue to take immediate steps to do what it can to withdraw the 15 second promotional broadcast for a story on the incident the subject of these proceedings and that until determination of these proceedings it will not broadcast that story, I order that the defendants and each of them, whether by themselves, their servants or agents or otherwise, be restrained up to and including 15 November 2007 from making a copy of (except as permitted by these orders), communicating to the public or causing to be seen in public (a) the film or any part of it taken by the defendants or any of them or at the direction of any of them at the premises of the plaintiff at about 2.15 pm today and (b) any film which includes any part of that film.

19 I order by consent that the defendants furnish to the plaintiff two copies of the said film taken at about 2.15pm today which copies will be confined however to the legal advisers to the plaintiff and no further copies thereof will be made by the plaintiff or the legal advisers.

20 Direct that the plaintiff serve a form of summons and notice of motion by 2pm tomorrow and affidavits in support by 4pm tomorrow.

21 Direct that the summons and notice of motion be returnable before the Duty Judge in the Equity Division at 2pm on 15 November 2007.

22 Costs of today reserved.

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