True Value Solar (SA) P/L v Seven Network Ltd; Solar Installers Australia P/L v Channel Seven Adelaide P/L - [2011] SASC 91

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
TRUE VALUE SOLAR (SA) P/L & ORS v SEVEN NETWORK LTD; SOLAR INSTALLERS AUSTRALIA P/L v CHANNEL SEVEN ADELAIDE P/L
[2011] SASC 91
Reasons for Decision of The Honourable Justice David
18 May 2011
DEFAMATION - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - RELEVANT CONSIDERATIONS
Application for injunction to prevent defendants from broadcasting a segment on “Today Tonight” – program is allegedly defamatory and amounts to injurious falsehood – defendants claim that defence of justification applies and that publication would not be malicious – whether serious issue to be tried – whether damages an adequate remedy – whether balance of convenience favours publication.
Held: application refused – although defendant may be able to justify imputations, there is a serious issue to be tried – damages would be an adequate remedy – when considering the balance of convenience in defamation cases the public interest in free discussion of matters of general interest weighs heavily against granting an injunction – balance of convenience favours publication.
Supreme Court Civil Rules 2006 (SA) r 162, referred to.
Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440; Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, applied.

TRUE VALUE SOLAR (SA) P/L & ORS v SEVEN NETWORK LTD; SOLAR INSTALLERS AUSTRALIA P/L v CHANNEL SEVEN ADELAIDE P/L
[2011] SASC 91
Civil: Application

DAVID J: This is an interlocutory application for an interim injunction brought by a number of plaintiffs to stop the defendants from broadcasting a segment on the well known current affairs program “Today Tonight”.
Having received a number of affidavits from all parties and having heard argument I refused the application on 18 May 2011. I indicated that I would provide reasons as soon as possible. These are my reasons.
There are two sets of plaintiffs applying for the interim injunction pursuant to two applications. In the first application there are two corporate plaintiffs, namely, True Value Solar (SA) Pty Ltd (“TVS”) and True Value Solar Holdings Pty Ltd. There are three individual plaintiffs who are the directors of those two companies. I will refer to those five plaintiffs in relation to that first application as the “first plaintiffs”.
The first plaintiffs carry on the business of the retail sale of grid connected solar panel systems in South Australia with residential and commercial customers.
In an identical application there is one corporate plaintiff, namely Solar Installers Australia Pty Ltd (“SIA”), and one individual plaintiff who is the sole director of SIA. That company carries on the business of providing installation services for solar panels on residential premises and conducts its business as a contractor to the first plaintiffs who retail solar panels. I will refer to that group of plaintiffs as the “second plaintiffs”.
The defendant to the application brought by the first plaintiffs is Seven Network Ltd. The defendant to the application brought by the second plaintiffs is Channel Seven Adelaide Pty Ltd. Although they are distinct corporate entities, the defendants were treated before me as, in essence, one and the same party. Mr Doyle, counsel for both defendants, said that if the injunction was granted, no point would be taken about the entity. I will refer to the defendants singularly as “the defendant”.
The defendant is a well known broadcaster which operates a widely viewed television channel in Adelaide. In particular one of its programs, which is broadcast on weeknights, is a current affairs program known as “Today Tonight”.
It is to be noted that there is a relationship between the first plaintiffs and the second plaintiffs. They operate out of the same premises and market their businesses together. In other words, it is at least arguable that they are presented to the customer as a package.
The application
Both sets of plaintiffs applied for an interim injunction to prevent a segment that was to be shown on Today Tonight concerning both companies. The segment sought to be put to air was not shown during this application, nor have any of the plaintiffs seen it. However, they have a clear indication of what it will contain from two promotions, the first of which was aired on Channel 7 on 13 May 2011 at the end of that edition of Today Tonight. Both sets of plaintiffs argue that those promotions were defamatory of the individual plaintiffs and amounted to injurious falsehood in relation to the corporate plaintiffs. They also indicate that they intend bringing the appropriate actions which they argue would inevitably succeed. They argue that if the full program, which will obviously be an elaboration of the two promotions, is shown then the inevitable award of damages would not be compensation for the harm caused.
The defendant argues that on the material presented there is a clear basis for a defence of justification in relation to the actions in defamation and the tort of injurious falsehood could not be made out because there is an arguable case that the allegations in the promotions are true or, at the very least, were not published maliciously.
I set out the two promotions which I viewed in court.
Promotion 1[1]
[1] Affidavit of Dusko Dobric dated 16 May 2011 at [28]-[31].
It is first to be noted that there is a True Value Solar logo behind the newsreader on the screen at the commencement of this promotion and the following comments are made concerning the installation of the solar panels:
1“Adelaide’s rooftop rogues”
2“Solar panel installation scam exposed”
3“Run by bankrupts”
4“Cutting corners”
5“Even forging signatures”
That was followed by criticisms of the way the work was done by a Monika Wolanin, who is a former employee of SIA.
Promotion 2[2]
[2] Affidavit of Dusko Dobric dated 16 May 2011 at [32]-[35].
The following comments were made by a voice over announcer, namely:
1“Adelaide’s rooftop rorts”
2“Solar panel installation scam exposed”
3“Run by bankrupts”
4“Cutting corners”
5“Even forging signatures”
6“Death traps left by their installers”
Both plaintiffs argue that the clear imputations are that all plaintiffs were involved in criminal activity and forgery, are not fit persons to operate a business, and have engaged in misleading and deceptive conduct.
The first plaintiffs (the suppliers) further argue that although their logo is displayed and their name is made clear from the promotions, nevertheless even if allegations of forgery and incompetence are made out that is the business of the second plaintiffs (the installers) and such comments are misdirected when being applied to the suppliers. As I have indicated, both of these companies are closely involved with each other and there is an arguable case that the above imputations may apply to the suppliers because of their arrangements and connection with the installers. In other words, I see no reason to differentiate in the making of my decision between the two sets of plaintiffs.
The defendant’s answer
I have been supplied with four affidavits on behalf of the defendant. The affidavits of Mr Frank Pangallo, who was the journalist driving the story (17 May 2011), Mr Peter Campbell, a solicitor for the defendant (17 May 2011), Mr Toby Paul Mortiz, a solicitor for the defendant (17 May 2011) and Ms Monika Wolanin, a former employee of SIA (17 May 2011).
I received the affidavit of Frank Pangallo under objection. I ruled that, even though much of the material is strictly speaking hearsay evidence, nevertheless for the purposes of this present application it could be received under r 162 of the Supreme Court Civil Rules 2006 (SA). If at the end of the day those assertions that would be strictly inadmissible at trial cannot be proved in the proper way then that is a risk that the defendant would have to bear. Mr Pangallo, in his affidavit, points out material which he says justifies the facts contained in the promotions and would be an answer to any action in either defamation or injurious falsehood. I set that material out briefly, but indicate that it is clearly set out in his affidavit.
In Promotion 1 there was reference to “Adelaide’s rooftop rogues” and “solar panel installation scam exposed”. Mr Pangallo, in his affidavit, refers to a number of customers who have made complaints which arguably on the defendant’s case could justify the above descriptions.[3] Further, he refers to a conversation with Monika Wolanin concerning complaints she received whilst in that employment. Ms Wolanin herself dealt with the same topic in her affidavit. Mr Pangallo also interviewed Kahlia Stevens, a former employee of the suppliers, who also talked about complaints made by customers and those are set out in Mr Pangallo’s affidavit.
[3] Affidavit of Mr Frank Pangallo dated 17 May 2011 at [8] and [10].
The promotion also refers to “run by bankrupts”. Mr Pangallo in his affidavit says that he has been informed by former employees, Kahlia Stevens and Monika Wolanin, that Peter Charitopoulos was the manager of SIA (the installers) and was regarded by the employees as the true owner and operator of that business. It is undisputed that Mr Charitopoulos is an undischarged bankrupt. In other words, the defendant argues that in effect the business of SIA (the installers) who are closely involved with TVS (the suppliers) is run by a bankrupt, justifying the comment made in Promotion 1.
The fifth reference in Promotion 1 references “even forging signatures”. The justification for that comment is set out in [11] to [14] of the affidavit of Mr Pangallo.
The defendant overall argues that the affidavit material indicated that they may be able to justify the imputations indicated and that if they cannot, then there is a clear remedy and substantial award of damages for the plaintiffs.
The law
I am guided by the principles set out in Jakudo Pty Ltd v South Australian Telecasters Ltd.[4] In that case Doyle CJ said:[5]
The grant of an interlocutory injunction, in my opinion, involves the application of equitable principles that are the same in all cases. The grant of interlocutory injunctions in respect of defamatory material is not the subject of principles unique to that area of the law. In all cases the ultimate issue is whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted, and has shown that the balance of convenience favours the granting of an injunction: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153, per Mason ACJ. These are the principles to be applied in the present case. In that respect I respectfully agree with and adopt what was said by Ormiston J and, on appeal, the Full Court of the Supreme Court of Victoria in National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747 and by Hunt J in Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153.
The reason why interlocutory injunctions are rarely granted in respect of defamatory material is, as Ormiston J pointed out in the case just cited, that the courts have recognised the substantial public interest in the free discussion of matters of public or general interest. That means that when the balance of convenience comes to be weighed, the public interest in free discussion of matters of public or general interest weighs heavily against the grant of an injunction. Particularly will this be so if the defendant puts forward material which shows that there are reasonable grounds to think that a defence of justification may succeed. In that respect I accept what was said by Walsh J in his frequently cited judgment in Stocker v McElhinney (No 2) (1961) 79 WN (NSW) 541. When the real issue is not whether the words are defamatory, but that of justification, the plaintiff will have shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief. But, if there are reasonable grounds to suppose that a defence of justification may succeed that, coupled with the substantial public interest in the free discussion of matters of public and general interest, will usually mean that the balance of convenience is in favour of the refusal of a grant of an injunction. Of course, that assures that damages will be an adequate remedy.
His Honour further added:[6]
Quite apart from that I consider that there was evidence upon which the judge below should have concluded that there was reason to think that the defendant might be able to prove truth in respect of these particular allegations.
(Emphasis added)
[4] (1997) 69 SASR 440.
[5] (1997) 69 SASR 440 at 442-443.
[6] (1997) 69 SASR 440 at 444.
The decision in Jakudo was approved by the High Court in Australian Broadcasting Corporation v O’Neill.[7] In the joint judgment of Gleeson CJ and Crennan J, their Honours said:[8]
The principles were discussed, for example, in Chappell v TCN Channel Nine Pty Ltd (a decision referred to by Crawford J in a passage quoted above), National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd, and Jakudo Pty Ltd v South Australian Telecasters Ltd. As Doyle CJ said in the last-mentioned case, in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be followed. In the context of a defamation case, the application of those organising principles will require particular attention to the considerations which courts have identified as dictating caution. Foremost among those considerations is the public interest in free speech.
(Footnotes omitted)
[7] (2006) 227 CLR 57.
[8] (2006) 227 CLR 57 at [19].
Conclusion
Applying those principles I find that, on the affidavit material before me at this stage, the defendant might be able to justify the imputations set out above. Nevertheless I am of the view that there is a serious question to be tried.
When considering whether the publication of the segment will cause the plaintiffs irreparable damage, I find that if a plaintiff’s claim is made out at trial there is no reason to suggest that an award of damages will not be an adequate compensation unless the injunction is granted.
Also, when considering the balance of convenience I bear in mind the principles of interim injunctions as they apply to defamation cases and especially in this case the public interest in free discussions of matters concerning the topic which was the subject of the promotions. With this in mind, I find that the balance of convenience in this case is weighed in favour of the defendant publishing the segment.
For those reasons I dismiss the interlocutory applications for injunctions of all plaintiffs.