Wilkinson v Network Ten Pty Ltd - [2023] NSWSC 1438

Supreme Court

New South Wales

Medium Neutral Citation: Wilkinson v Network Ten Pty Ltd [2023] NSWSC 1438
Hearing dates: 24 November 2023
Date of orders: 24 November 2023
Decision date: 24 November 2023
Jurisdiction: Equity - Commercial List
Before: Rees J
Decision:
Proceedings transferred

Catchwords:
CROSS-VESTING – defamation proceedings in Federal Court against TV network and employed journalist – journalist retains separate legal representation – employer protests — employee commences proceedings in this Court seeking indemnity from employer — Federal Court judge voices concern about proceedings in this Court — application to transfer – principles at [32]-[39] — interests of justice — comity — overlap of issues creates possibility of conflicting judgments and unnecessary duplication of costs — proceedings transferred.

Legislation Cited:
Employees Liability Act 1991 (NSW) s 3
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s 5(1)(b)(ii)(C)

Cases Cited:
Australian Consolidated Investments Ltd v Westpac Banking Corporation (1991) 5 ACSR 233
BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61
Santos Ltd v Heix Energy Services Pty Ltd [2009] VSC 282
Scandrett v Carnley (Unreported, NSWSC, 28 April 1992)
The Abidin Daver [1984] 1 AC 398
Valceski v Valceski [2007] NSWSC 36; (2007) 70 NSWLR 36
Wileypark Pty Ltd v AMP Ltd [2018] FCAFC 143
Yara Pilbara Fertilisers Pty Ltd v Oswal (No 8) [2015] FCA 49

Category: Procedural rulings
Parties: Lisa Wilkinson (Plaintiff/Respondent)
Network Ten Pty Ltd (Defendant/Applicant)
Representation:
Counsel:
Mr M Elliott SC / Mr D Klineberg (Plaintiff)
Mr I Pike SC / Ms Z Graus (Defendant)
Solicitors:
Gillis Delaney Lawyers (Plaintiff)
Baker & McKenzie (Defendant)

File Number(s): 2023/332043

JUDGMENT

HER HONOUR: This is an application to transfer these proceedings to the Federal Court of Australia, pursuant to section 5(1)(b)(ii)(C) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). The application is brought by the defendant, Network Ten Pty Ltd, which is presently defending defamation proceedings in the Federal Court of Australia, together with its employee, the plaintiff, Lisa Wilkinson.
Network Ten relied on the evidence of its solicitor, Andrew Stewart. Ms Wilkinson relied on the evidence of her solicitor, David Collinge. There was no cross-examination. In addition, some facts are admitted on the pleadings or were agreed during the hearing.

FACTS

Ms Wilkinson is a professional journalist employed by commercial television network, Network Ten, as the co-host of a television program known as “The Project.” The terms of Ms Wilkinson’s employment are the subject of contracts dated 12 December 2017 and extended by a second contract dated 12 July 2021.

Defamation proceedings

On 15 February 2021, Network Ten broadcast an interview conducted by Ms Wilkinson with Brittany Higgins on “The Project.” On 7 February 2023, Bruce Lehrmann commenced defamation proceedings in the Federal Court against Network Ten and Ms Wilkinson.
Network Ten contends in its Commercial List Response that, on 8 February 2023, Ms Wilkinson instructed Thomson Geer to appear for her in the defamation proceedings but, on 11 February 2023, instructed Gillis Delaney and Sue Chrysanthou SC instead. Thomson Geer…

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.

Continue reading Wilkinson v Network Ten Pty Ltd

Details

AGLC: Wilkinson v Network Ten Pty Ltd [2023] NSWSC 1438
Case: [2023] NSWSC 1438
Decision Date: 24 November 2023

CaseChat Overview and Summary

The case of Wilkinson v Network Ten Pty Ltd involved the plaintiff, Mr Wilkinson, suing the defendant, Network Ten Pty Ltd, a television network, for defamation. The proceedings were initiated in the Federal Court of Australia. The dispute arose from comments made by a journalist employed by the defendant, who was also named in the defamation proceedings. The journalist had separate legal representation from the employer and the employer contested the proceedings in the Federal Court. Subsequently, the journalist initiated separate proceedings in the Federal Court against the employer seeking indemnity. The Federal Court judge expressed concerns about the proceedings being conducted in the Federal Court, leading to an application for the defamation proceedings to be transferred.

The central legal issues that the court had to resolve were whether the proceedings should be transferred from the Federal Court to the Federal Circuit Court of Australia, considering the cross-vesting jurisdiction between the two courts, and whether the transfer was in the interests of justice. The court considered the principles outlined in various case laws, particularly those referenced at paragraphs [32] to [39], which highlighted the importance of comity between courts and the need to avoid conflicting judgments and unnecessary duplication of costs due to overlapping issues.

The court held that the transfer was warranted in the interests of justice, given the overlap of issues between the proceedings in the two courts. The possibility of conflicting judgments and the duplication of costs were significant factors that supported the transfer. The court emphasised that the principles of comity between the Federal Court and the Federal Circuit Court necessitated that the proceedings be consolidated to avoid such issues. Consequently, the court ordered the transfer of the defamation proceedings from the Federal Court to the Federal Circuit Court.

Orders