Network Ten Pty Limited v van Onselen [2023] NSWSC 829

Supreme Court New South Wales

Medium Neutral Citation: Network Ten Pty Limited v van Onselen [2023] NSWSC 829 Hearing dates: 29 June 2023 Date of orders: 14 July 2023 Decision date: 14 July 2023 Jurisdiction: Equity Before: Hammerschlag CJ in Eq Decision: Declaration that the publication in The Australian Business Review section of The Australian newspaper on 29 May 2023 of the article headed "Paramount woes raise questions about the long term viability of Network 10" was a breach by the defendant of cl 7.1 of the Deed entered into by the plaintiff and the defendant on 3 March 2023 Catchwords: CONTRACTS — construction — on the termination of the defendant's employment with the plaintiff, the parties executed a Deed of Release (the Deed) containing a non-disparagement clause — the defendant, a journalist and academic, published a newspaper article (the Article) disparaging of the plaintiff — whether on the proper construction of the Deed, disparaging comments were captured only if they related to the defendant's employment with the plaintiff or its termination — whether the Article was not disparaging because it was based on public information and concerned matters where the plaintiff's reputation had already been tarnished — RESTRAINT OF TRADE — Restraints of Trade Act 1976 (NSW) ss 2(2), 4(1), 4(3) — whether the non-disparagement clause is a restraint of trade and, if so, whether it is against public policy — EQUITY — equitable defences — unclean hands — whether the plaintiff has approached the Court with unclean hands because of representations said to have been made by it to the defendant concerning the operation of the non-disparagement clause — REMEDIES — whether a declaration should be made and an injunction granted — HELD — on its proper construction, the defendant breached the non-disparagement clause — the non-disparagement clause is not a restraint of trade but, if it is, it is not against public policy — the alleged representation concerning operation of the non-disparagement clause was not made out and in any event, the plaintiff does not have unclean hands — declaration as to breach should be made but no injunction granted Legislation Cited: Restraints of Trade Act 1976 (NSW) Cases Cited: Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36 Boddington v Lawton [1994] ICR 478 Electricity Generation Corporation Ltd v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Esso Petroleum Co Ltd v Harper's Garage (Stourport) Ltd [1968] AC 269 Fermiscan Pty Ltd v James [2009] NSWCA 355; (2009) 261 ALR 408 Fermiscan v James [2009] NSWSC 546 McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; [2000] HCA 65 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126; [2001] HCA 45 Petrofina (Great Britain) Ltd v Martin [1966] Ch 146 Re New South Wales Bar Association [2014] NSWSC 1695; (2014) 315 ALR 146 Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; [2005] HCA 17 Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530; [2004] HCA 56 Category: Principal judgment Parties: Network Ten Pty Limited (ABN 91 052 515 250) (Plaintiff) Dr Peter van Onselen (Defendant) Representation: Counsel: A Moses SC and P Sharp (Plaintiff) S Chrysanthou SC and A B Gotting (Defendant)