Raymont, Warwick Deane & Ors v Friends United International Pty Ltd & Ors [1998] FCA 298

FEDERAL COURT OF AUSTRALIA Trade Practices - misleading and deceptive conduct - statements made by third parties recorded by television broadcaster for purpose of broadcast - applicant alleges statements false - whether interlocutory injunction to restrain broadcast warranted Trade Practices Act 1974 (Cth) ss.6(3), 52, 65A, 82, 87 Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1, applied Jakudo v SA Telecasters (No 2) (1997) 192 LSJS 425, applied Matter No: SG 40 of 1998 WARWICK DEANE RAYMONT & ORS v FRIENDS UNITED INTERNATIONAL PTY LTD & ORS VON DOUSSA J ADELAIDE 23 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY NO. SG 40 of 1998

BETWEEN: WARWICK DEANE RAYMONT

First Applicant

STOLAIR PTY LTD

Second Applicant

PHARMALLIANCE PTY LTD

Third Applicant

AND: FRIENDS UNITED INTERNATIONAL PTY LTD

First Respondent

BETTY JOAN ALLEN

Second Respondent

S.A. TELECASTERS PTY LTD

Third Respondent

JUDGE: VON DOUSSA j

DATE OF ORDER: 23 march 1998

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application for interlocutory injunction dismissed with costs.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY NO. SG 40 of 1998

BETWEEN: WARWICK DEANE RAYMONT

First Applicant

STOLAIR PTY LTD

Second Applicant

PHARMALLIANCE PTY LTD

Third Applicant

AND: FRIENDS UNITED INTERNATIONAL PTY LTD

First Respondent

BETTY JOAN ALLEN

Second Respondent

S.A. TELECASTERS PTY LTD

Third Respondent

JUDGE: VON DOUSSA J

DATE: 23 march 1998

PLACE: ADELAIDE

REASONS FOR JUDGMENT This is an application for an interlocutory injunction to restrain SA Telecasters Pty Ltd from putting to air on Channel 7 at 6.30 pm tonight a program which has been described as an "expose" on Warwick Deane Raymont who is one of the applicants in the present proceedings. It is now less than an hour before the proposed programming schedule. I shall therefore give only brief reasons. I commence by saying that I think this application should be dismissed. The application was notified to the respondents in another action in this Court, number SG105 of 1996. That action is a very substantial one where complex applications and cross‑applications of an interlocutory nature have been on foot for quite some time. The dispute there is between Stolair Pty Ltd and Pharmalliance Pty Ltd as applicants and Friends United International Pty Ltd, Betty Joan Allen and Barry Jones as the three respondents. The material filed today in affidavits from Mr Mark Turner and Mr Raymont in support of an interlocutory injunction raise a number of facts which suggest that allegations will be made in the proposed program to the effect that Mr Raymont does not hold a number of tertiary and postgraduate qualifications that he claims and, in short, that he is a confidence man. If those allegations are made, and also related by the program to the businesses conducted by Stolair and Pharmalliance, being two companies in which Mr Raymont is a major shareholder and director, it is not improbable that the goodwill and businesses of those companies would suffer. Nevertheless, as the primary complaint concerns a threatened defamation of Mr Raymont, I considered that it was inappropriate that the application for an interlocutory injunction be brought in the existing proceedings number SG105 of 1996. When that view was put to counsel, my suggestion that there should be separate proceedings was taken up by the applicants. These proceedings were immediately issued. The interlocutory injunction is now sought in these proceedings wherein Mr Raymont, Stolair and Pharmalliance are applicants; and Friends United International Pty Ltd, Betty Joan Allen and SA Telecasters Pty Ltd are respondents. Against the first and second respondents injunctions of a permanent nature are claimed seeking to restrain the respondents from contravening section 52 by making misleading and deceptive statements to the third respondent and from defaming the applicants. The application against SA Telecasters Pty Ltd is brought under ss.6(3), 52, 75B, 82 and 87 of the Trade Practices Act 1974 (Cth). The case is formulated in accordance with principles discussed by French J in Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1. In that case remarks which were derogatory about the business of the applicant were made by one of the applicant's former customers. His Honour held that there was a serious question to be tried arising under those sections of the Trade Practices Act to the effect that if the particular complaints of the dissatisfied customer went to air, the television station could be liable under the accessorial liability provisions of the Act. On that footing his Honour held that there was a serious question to be tried. However, when his Honour then considered the other major question that must be determined on an application for an interlocutory injunction, he was not satisfied that the balance of convenience lay in favour of the applicant. In this case the facts indicate that Mr Pangallo, a reporter from Channel 7, informed Mr Raymont on 13 March 1998 that Channel 7 proposed to run an expose on Mr Raymont. On 18 March Mr Pangallo apparently burst in on a lecture that was being given by Mr Raymont and made a number of statements which, if true, were highly defamatory of Mr Raymont. They assert that he is without the qualifications that he says he holds and that he knows nothing of chemistry, that being an area in which Mr Raymont claims to possess expertise. It is further said that a television program, probably the same one, will be re-run in Queensland and a promotional preview in respect of that program indicates that not only will Mr Raymont be referred to as a "dodgy doctor" who does not hold the qualifications alleged by him but that he has conned a Queensland woman from her life savings. Apparently the picture of the woman displayed in the promotional preview was Mrs Allen. It has been alleged before me today that the primary motive of Mrs Allen in providing information to Channel 7 is to further frustrate the applicant's prosecution of proceedings SG105 of 1996 which have been on foot in this Court since 1996. The applicant's argue that if Channel 7 is not restrained the first and second respondents in these proceedings will be given a market advantage over the applicants in respect of products which both the applicants and the first and second respondents sell in that the publication would be likely to seriously damage the goodwill of the applicant companies. It should be said, however, that the promotional material already published by the broadcasters in SA and Queensland has not yet expressly linked Mr Raymont with either of the applicant companies. However, I am prepared to infer in favour of the applicants for the purposes of this application that such a link is likely to be made in the course of the proposed program. For reasons similar to those given by French J in Advanced Hair Studio v TVW Enterprises case I think there are serious questions to be tried as to the accessorial liability of SA Telecasters in the event that it publishes a defamatory programme of Mr Raymont. If defamatory remarks about Mr Raymont are also linked to the applicant companies there would be a serious question as to whether the program was defamatory of the business of the corporate applicants. Those matters I am prepared to assume in favour of the applicants. The important question in my view is where the balance of convenience lies. It is right, as counsel for the applicants point out, that SA Telecasters Pty Ltd is not likely to be greatly inconvenienced in the event that it is required to remove a program from its schedule for this evening. On the other hand there will be a substantial defamation of Mr Raymont if the information proposed to be published is not correct, and also a risk of harm to the applicant companies. Those are serious and weighty considerations. So too is the possibility that SA Telecasters have been given inaccurate information by the first and second respondents. On the other hand, the allegations that have been made against Mr Raymont have been in the public domain since a judgment was given by a special magistrate in this State on 22 October 1996. There has been a long time in which verified information could have been gathered by Mr Raymont to establish his credentials. There has been correspondence between solicitors for Mr Raymont and SA Telecasters where, in my view, an opportunity was extended to Mr Raymont to provide verification of his qualifications, if that was available, and that verification has not taken place. In answer to the present application, SA Telecasters' executive producer, Mr Archer, has sworn an affidavit today in which he deposes that in the event proceedings are commenced against SA Telecasters for defamation based on the inaccuracy of the allegations made against Mr Raymont, SA Telecasters intend to defend the proceedings relying on justification as a defence. It is plain, in the circumstances of this case, that if the allegations made against Mr Raymont are not correct a very serious defamation occurred on 18 March 1998 when Mr Pangallo made statements in the presence of people to whom Mr Raymont was giving a lecture. If in light of the events that have subsequently happened, footage of that incident and the allegations then made are broadcast to a very significant audience through the medium of television, the damages will be high. If the goodwill and business prospects of the two applicant companies are adversely affected, they too could become entitled to damages. Those are matters which have obviously been considered by Channel 7, and in the face of the threat of damages, I note Mr Archer's assertion that the defence of justification will be pleaded. I infer from that that Channel 7 has given serious consideration to whether the allegations that it proposes to make are correct, and is prepared to stand by them. In these circumstances it seems to me that there is an overriding public interest in the free flow of information, and a public interest in the television media making known to those who enjoy the goods and services provided by the applicants the facts which Channel 7 asserts to be the case. I have been referred to the principles set out by Doyle CJ in Jakudo v SA Telecasters (No 2) (1997) 192 LSJS 425, as well as those noted by French J in Advanced Hair Studios v TVW Enterprises. In my view, the decision that I have reached as to the importance of the public interest considerations in this case is in accordance with those principles. The present application for an interlocutory injunction will be dismissed with costs. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa J