CTC Productions Pty Ltd v Royal NSW Canine Council Ltd [1999] FCA 1866

FEDERAL COURT OF AUSTRALIA

CTC Productions Pty Ltd v Royal NSW Canine Council Ltd [1999] FCA 1866

CTC PRODUCTIONS PTY LIMITED AND ANOR v ROYAL NEW SOUTH WALES CANINE COUNCIL LIMITED AND ANOR

N 994 OF 1999 HILL J 15 DECEMBER 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 994 OF 1999

BETWEEN: CTC PRODUCTIONS PTY LIMITED

(ACN 052 249 886)

FIRST APPLICANT

DONALD BURKE

SECOND APPLICANT

AND: ROYAL NEW SOUTH WALES CANINE COUNCIL LIMITED (ACN 062 986 118)

FIRST RESPONDENT

MACRO COMMUNICATION PTY LIMITED

(ACN 003 624 520)

SECOND RESPONDENT

JUDGE: HILL

DATE OF ORDER: 15 DECEMBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicants pay the respondents' costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 994 OF 1999

BETWEEN: CTC PRODUCTIONS PTY LIMITED

(ACN 052 249 886)

FIRST APPLICANT

DONALD BURKE

SECOND APPLICANT

AND: ROYAL NEW SOUTH WALES CANINE COUNCIL LIMITED (ACN 062 986 118)

FIRST RESPONDENT

MACRO COMMUNICATION PTY LIMITED

(ACN 003 624 520)

SECOND RESPONDENT

JUDGE: HILL

DATE: 15 DECEMBER 1999

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT 1 Before the Court is an application by CTC Productions Proprietary Limited and Mr Donald Burke under Order 15A Rule 6 of the Federal Court Rules for preliminary discovery in the form of delivery up of various documents. 2 Mr Burke is a well known television personality who, together with CTC Productions Proprietary Limited, produces the television program, "Burke's Back Yard". From evidence before me, it would appear that in the course of one or more of Mr Burke's programs which have extensive audience reach, Mr Burke had made comments which, at least to some persons, were regarded as derogatory of pure bred animals. 3 The question of these comments and what to do about them, it would seem, came before the public relations and promotions committee of the Royal New South Wales Canine Council Limited at a meeting held on 25 November 1998. The Royal New South Wales Canine Council Limited is a company incorporated under the Corporations Law in the State of New South Wales, the principal objects of which are: "To promote and raise the standards of breeding of purebred dogs; To promote and encourage the breeding of purebred dogs; To educate the members of RNSWCC and the general public in relation to all aspects of purebred dogs; To promote and assist and to make contributions to canine veterinary research and to create and endow scholarships and fellowships." Its income and property may be applied only to the promotion of its objects. 4 Nothing is known as to what happened directly at the meeting on 25 November 1998 to which reference has been made. However, a further meeting of the same public relations and promotions committee was held on 23 December 1998. It noted that the minutes of the meeting of 25 November had been approved at a board of directors meeting on 9 December, subject to an item which has no material relevance to the present case and under the heading of "Confirmation of Previous Minutes", it was noted as follows: "2.1 The Minutes of the previous meeting having been duly circulated were confirmed as a true and accurate record of proceedings. Standing Orders were suspended to allow discussion over the Burke's Backyard program. The Chairman addressed the meeting the advised that to really oppose Mr Don Burke would cost at least $10,000 each month. A copy of the proposed initiative by the Committee is attached and forms part of these Minutes as Annexure A." 5 The initiative to which reference is made in those minutes is a document which on its face was prepared by the second respondent, Macro Communication Proprietary Limited. It recommends a strategy aimed at friends of Mr Burke and his production team to change attitudes with a secondary campaign to confront mis-statements. In particular it says the following: "Simultaneously, a major campaign should be launched through the newspaper columnists to discredit the program and its statements without any attribution to the Canine Council or people associated with it. Finally, a 'whisper campaign' could be undertaken to further discredit the program among its key target audiences. Details of this campaign can be provided verbally if required. Time Frame It is envisaged that the campaign should be conducted over a period of three to six months." 6 The initiative noted that undertaking the campaign would cost something in the order of $30,000 per month for a three month period. 7 It would seem that that minute got into the hands of Mr Burke or his associates. Nothing is known directly as to what happened when the minute of that meeting went to the Board of Directors, as it had to, if the proposal was to be implemented. I say directly because, as will be seen, it is easy to infer ultimately the board decided not to adopt the proposal. However I will return to that in a minute.