Victoria Finance First Pty Ltd v Channel 7 Melbourne
[2002] VSC 323
•6 August 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 6680 of 2002
| VICTORIA FINANCE FIRST PTY LTD | Plaintiff |
| v | |
| CHANNEL 7 MELBOURNE | Defendant |
---
JUDGE: | Nettle J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 August 2002 | |
DATE OF JUDGMENT: | 6 August 2002 | |
CASE MAY BE CITED AS: | Victoria Finance First Pty Ltd v Channel 7 Melbourne | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 323 | |
---
Equity – Injunction – Interim injunction to restrain publication of threatened libel – necessity for very strong case or exceptional circumstances.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S.K. Wilson QC with Mr H.A. Aizen | Peter A. Kelly |
| For the Defendant | No appearance |
HIS HONOUR:
This is an application for urgent injunctive relief, to restrain one or more of the companies that comprise the Channel 7 network from broadcasting this evening at 6.30 pm a Current Affair program in which it is feared that there will be screened footage that in some way connects Victoria Finance First Pty Ltd or one of its Directors, Mr Reon Witherdon, with a man called Dudley Quinliven.
No proceeding has yet been issued, because of the urgency of the matter, and there is no affidavit material before me. I have been told, however, by Mr Simon Wilson, QC, who appears with Mr Henry Aizen for the proposed plaintiff, Victoria Finance First Pty Ltd, that the facts of the matter are substantially as follows.
Until approximately 12 months ago, Mr Witherdon was an employee of a company in Queensland, with which Dudley Quinliven was associated and which carried on a business of providing mortgage secured finance. Approximately 12 months ago, Mr Witherdon ceased to have any connection with Quinliven and came to Victoria, whereupon he set up his own company, Victoria Finance First Pty Ltd. Since then, that company has carried on a business in Victoria, similar to the business carried on by the Queensland company, of providing mortgage secured finance.
This afternoon, 6 August 2002, at approximately 3 pm cameramen and other people apparently associated with the Channel 7 network came to offices at Level 2, 468 St Kilda Road at which the business of Victoria Finance First Pty Ltd is carried on. Mr Witherdon was absent attending to other matters but the office was staffed by a female receptionist.
Mr Wilson has told me that, according to the receptionist, the cameramen and other people apparently associated with Channel 7 pushed straight past her without permission and into internal private offices. When challenged, they said something to the effect that they were looking for Dudley Quinliven or something to connect the premises with Dudley Quinliven.
Upon Mr Witherdon's return to the premises, he gained the impression from what was said by the receptionist that something had been said or implied by the Channel 7 personnel to the effect that a program would be broadcast this evening which suggested a connection between Mr Witherdon and Quinliven, and thus between the company Victoria Finance First Pty Ltd and activities of Quinliven, and that Quinliven’s activities were to be represented as disreputable.
As soon as Mr Witherdon learned of these matters, he consulted his solicitor Mr Peter A. Kelly of Suite 4, 454 St Kilda Road, Melbourne and at approximately 3.30 pm this afternoon Mr Kelly, on behalf of the proposed plaintiff, faxed to “the Manager of Channel 7” and to “the Manager of the Today/Tonight program”, a letter complaining about what had occurred; requesting that access be made available to the program proposed to be broadcast; and demanding that nothing be broadcast which casts any imputations upon the reputation of the plaintiff. There was no response to that fax and thus it was re-transmitted at approximately 4.10 pm, but again there was no response.
In this State the principles which govern the grant of interim and interlocutory injunctions to restrain the proposed publication of a libel are as set out in the decision of the Full Court in National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd[1]. The Court will be hesitant to grant interlocutory relief.
[1][1989] VR at 747, especially at 763.
Mr Wilson accepts that the Court is ordinarily hesitant to grant relief of the kind which he seeks but he submits nonetheless that injunction should go in this case for the following reasons.
First, he contends that there is by reason of what was said or implied by the Channel 7 personnel, a strong prima facie case that the content of the program which it is feared will be broadcast, will be defamatory. So much indeed, he says, tends to be borne out by the failure of Channel 7 to respond to the two faxed transmissions to which I have referred.
Next, Mr Wilson contends that although traditionally the law views damages as being the appropriate remedy in the case of defamation, here, because of recent developments in the law which he says restrict the entitlement of a corporation to recover damages for defamation, it would be difficult, if not impossible to prove recoverable damage. He does not suggest that no damage would be suffered, but simply that it would be difficult, if not impossible to demonstrate the effect of defamation on the business of the plaintiff.
Thirdly, Mr Wilson contends that because of the way in which the personnel pushed past the receptionist, there can be little doubt that their activities amounted to a trespass and thus were unlawful, and he submits that adds a further discretionary consideration in favour of the grant of the injunction; at least on an interim basis.
Fourthly, although sensitive to the view of the law that it is a big thing to restrain publication of programs concerned with public comment about matters of public interest, he submits that the nature of the Current Affair program is notoriously so low brow that there would be no real chance of damage being done if the broadcast were restrained for a short time.
Last, Mr Wilson submits that, whether or not his client would suffer damage which is irreparable, it is appropriate to approach the matter on the basis of the sorts of tests which were dealt with by his Honour Mr Justice Kaye in State Transport Authority & Co Ltd v Apex Quarries Ltd[2] and earlier in England in Evans, Marshall & Co Ltd v Bertolo S.A.[3] and to ask whether in all the circumstances it is just that injunction should go.
[2][1988] VR 187.
[3][1973] 1 WLR 349.
In National Mutual Life v GTV[4], the Full Court said that in a case of an application to restrain a libel, the very great importance which our society and our law have always accorded to what is called free speech, means that equity exercises great care in granting injunctive relief and does so only where it is very clear that it should be granted. When the court enjoins, it must be extremely clear that no unacceptable repression is taking place. It has thus been laid down that it is only in a clear case that the court will interfere by injunction.
[4]Supra at p. 764.
Notwithstanding the able and helpful submissions of Mr Wilson, I have reached the conclusion that, as matters stand, this is not a sufficiently clear case to order the injunction which is sought.
First, I do not know, nor do I have any confidence as to what the content of the program will be. Despite what has been contended about the inference to be drawn from what was said by the Channel 7 personnel, it is not clear to me that anything which is contained in the program will necessarily refer to any connection between Mr Witherdon or Victoria Finance First Pty Ltd and Quinliven.
Moreover, and even if there is to be such a connection implied in the program, I do not know on the basis of the material before me whether the connection to be represented will be inaccurate. For indeed, as Mr Wilson has said, there was a connection between Mr Witherdon and Quinliven in respect of a company, of which the business was the provision of mortgage backed finance.
Secondly, whilst I accept the force of what Mr Wilson has to say about the difficulties faced by a corporation in proving that it has suffered damage to reputation, it appears to me that those are difficulties which are faced in this Court everyday by corporations and that they are surmounted by recourse to forensic accountants and other means. It would be possible, for example, to show by reference to trade figures before and after publication.
Thirdly, whilst I accept that the entry of Channel 7 personnel on the premises may have constituted a trespass, I am not sufficiently clear as to what occurred to say that it did constitute a trespass. Moreover, and perhaps more importantly, the fact that the footage was obtained as a result of trespass would not necessarily add greatly to the strength of the case for injunctive relief.
Fourthly, although some people may think that what is contained in the Current Affair program is not of great public importance, and thus a delay in its broadcast may not cause any harm, I take the observations which were made by the Full Court in National Mutual Life v GTV[5] to apply as much to what one man might regard as trash, as to what another might regard as quality journalism.
[5]At p.764.
Finally, on the question of balance of convenience, I accept that in a case of this kind, where it is difficult to demonstrate precisely the amount of financial loss that could be suffered, it may be appropriate to have regard to tests of what is just in all the circumstances. But so to do is to do no more than equity ordinarily does, of asking whether it is appropriate in all the circumstances, that injunction should go.
In a matter of this kind, where what is feared is the publication of a libel, I regard the principles laid down in National Mutual Life v GTV as so well-established as to mean that it requires a very strong case indeed, or some other exceptional circumstances, before equity ought intervene to restrain the publication.
In this case, on the material before me, that has not been made out.
Accordingly I reject the application for ex-parte interim injunction.
MR WILSON: If Your Honour pleases.
HIS HONOUR: Now Mr Wilson, what is to be done with the proceeding from this point?
MR WILSON: Well in fact, Your Honour, now we have I suppose one might say the luxury of watching the program tonight or tomorrow night if it wasn't shown tonight. Simply proceeding with a writ, if the matter is defamatory and if legal advice is that it ought to be sued on, we then have, of course, the transcript of the full program.
HIS HONOUR: Should I make directions now for you, for the institution of the proceeding. I think that I should, that is to say direct that you now - - -
MR WILSON: No, with respect, I think Your Honour shouldn't, because the position is that we've presented to Your Honour on the best material available at the moment, the circumstance seeking to prohibit the publication. So far that has not involved, as it were, any formal notice, other than the letter that Your Honour has seen to the other side. The other side are now in a sense on the usual tenet of public and be damned and the position is if they publish tonight, we are then entitled to make a decision as to whether or not we will sue or not.
HIS HONOUR: I think not. You invoked the court's process on the basis that you anticipate that there will be a proceeding on foot. I think that warrants that it is now brought into existence, even if it is only to be disposed of by discontinuance.
MR WILSON: Well yes I accept what Your Honour says. If that is so, then what we ought to do is to issue the writ, but I would respectfully request that we not be required to issue it until after - say until five o'clock tomorrow, then dependent on what transpires, we can either have that - I hear what Your Honour says, we can either have that stayed. My concern Your Honour is this, that if the secretary or whoever it was, was mistaken, the footage has been gathered and it is certainly going to be the subject of a program which may well turn out to be defamatory, the position is that it may not be tomorrow night, it may not be the next night, but it might be the night after that, and I'm just concerned that we don't then waste - find out that they haven't broadcast tomorrow night, come back and have the matter discontinued with Your Honour's leave or whatever appropriate order there is, and then find out, having spent the money, issuing the writ and then they broadcast - - -
HIS HONOUR: I am not going to require service otherwise than in accordance with the rules, which will give you the time you need, but what I am going to direct is that the proposed plaintiff, Victoria Finance First Pty Ltd - is Mr Witherdon also to be a plaintiff?
MR WILSON: At this stage, it is not anticipated that he would be, because Your Honour will recall, he wasn't there, and therefore we have absolutely no information one way or the other as to whether they propose to name him in the program.
HIS HONOUR: Well in any event, you are only appearing in seeking this relief no behalf of Victoria Finance First Pty Ltd. What I will direct is that it file the writ for the initiation of the proceeding in anticipation in which it has made this application for interim injunction by 4.15 pm on 7 August 2001, and I think that is all I need to order. No other orders are sought?
MR WILSON: No, Your Honour.
HIS HONOUR: Then accordingly, on the application for interim injunction, the orders will be that the application for interim injunction is refused. Secondly, it is directed that the proposed plaintiff, Victoria Finance First Pty Ltd file the writ for institution of the proceeding in anticipation of which the application was made by 4.15 pm on 7 August 2002.
MR WILSON: If Your Honour pleases. Now again, can I Thank you, for being prepared to come to court today.
---
0
0