MARSDEN v AMALGAMATED TELEVISION SERVICES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, HANDLEY and COLE JJA 29 and 30 April 1996, 2 May 1996 [1996] NSWCA 341 Application for interlocutory injunction to restrain television broadcast pending hearing of summons for leave to appeal against refusal of first instance judge to grant such injunction — proposed broadcast on matter of public interest also relevant to claimant's pending defamation proceedings — competing considerations — Application refused Priestley, Handley and Cole JJA INTRODUCTORY. The claimant in the application now before the Court of Appeal is Mr J Marsden, a solicitor, who may fairly be described as a public figure. The opponent is Amalgamated Television Services Pty Ltd, which runs the television station known as Channel 7. On 14 March 1995, the claimant began defamation proceedings against the opponent. The allegedly defamatory matter had been broadcast on Channel 7 the previous day. It seems clear that in his defamation proceedings the claimant will be able to prove that the opponent published a number of defamatory imputations about him to the general effect that he had engaged in homosexual activity with under-age boys. The opponent has defended the defamation proceedings on a number of grounds. One of these is that if any of the imputations relied on by the claimant is defamatory then the matter complained of conveyed stated contextual imputations each relating to a matter of public interest or published under qualified privilege and each a matter of substantial truth. The defence presently on file was in answer to a statement of claim alleging two imputations. On 23 March 1996 a further statement of claim was filed by the claimant in which five further imputations were added. The opponent had until 29 April 1996 to file a defence to this latest statement of claim. That was Monday of this week. The parties were engaged in court for virtually the whole of that and the following day. It has been common ground in the present proceedings that the opponent would file a further defence raising grounds of defence to the further imputations of the same kind as those raised against the previous two imputations. The term "justification" has been used as a shorthand description of some of these defences. The opponent was proposing to broadcast at 9.30 pm, 23 April 1996 a television programme titled The Dark Side, consisting of two parts. This court has seen this programme in the course of the proceedings, and also has a transcript of what is said in it. The general subject of both parts of the programme is the way by which homosexual males engaged, during a somewhat vaguely defined period, in sexual activity with under-age males and the serious effects this activity had upon those under-age males. 2 UNREPORTED JUDGMENTS The first part begins by setting the scene in the year 1974. A man says that at fourteen he prostituted himself in the Kings Cross area and tells of the effect it had on him. Another man says much the same. Then three more men speak in the same vein. The last of these makes an assertion of police corruption. Then the focus turns to the claimant. It is said that "his accusers" say he is "a paedophile". One male is shown who says that he had been paid by the claimant for sex when he was fifteen. Then the back of another male's head is shown and he makes similar allegations. Then the silhouette of a third male is shown and he makes similar, but hearsay, allegations. Finally a barman makes some confirmatory allegations. The last two persons do not assert any direct experience or eye-witness observation of the claimant having sex with under-age males. Interspersed with these scenes is some footage of the claimant himself, taken from a programme shown by ABC's Channel 2, in which the claimant at different points makes three statements: the first is, "I have never had sex with anyone under-age"; the second is "Gay people have saunas, gay people have places where they meet, you don't go around, I don't think heterosexuals go round and say, 'Please produce your birth certificate, etc, etc'"; and the third, "As far as I know I have never, ever slept with someone under-age". The barman is at one point identified as having been the barman at "Costellos", a club alleged to have been one of "three main centres of paedophile activity in the Kings Cross of the 70s and early 80s". The second part begins with an indication that the 70s and early 80s will be the period it is dealing with. This part is not directly concerned with the claimant and only mentions him once. It makes allegations against other persons of a kind similar to (and in some ways more serious than) those made in the first part against the claimant. The claimant learned of the opponent's intention to broadcast this programme and in the morning of the Tuesday, (23 April 1996) on the night of which it was going to be broadcast, applied ex parte to Levine J for an interlocutory injunction restraining the publication of the programme pending the determination of the defamation proceedings. In the course of this ex parte hearing (at which representatives of the opponent were present) the programme was shown in open court. Levine J granted ex parte injunctions until Friday, 26 April 1996. On that day he heard evidence and argument until late in the day at a contested hearing of the claimant's application that the ex parte interlocutory injunctions be continued, pending the determination of the defamation proceedings. Levine J delivered his decision orally on Monday, 29 April. At about noon he made orders dismissing the claimant's application, but continued the injunctions until 4.15 that afternoon to enable the claimant to approach the Court of Appeal. Proceedings commenced in the Court of Appeal shortly after 3 pm. At that time no transcript of Levine J's reasons for judgment was available. The court was told that the matter was urgent, because the opponent now intended to broadcast the programme on Tuesday, 30 April 1996. If the claimant were to obtain an injunction then it had to be before 9.30 pm the following day. The opponent wanted the proceedings dealt with so that if the claimant were unsuccessful in obtaining an injunction, it could show the programme the following night. Leave was granted to the claimant to file a summons in court seeking leave to appeal against the orders made earlier in the day by Levine J. The claimant did not there and then seek leave to appeal. The claimant instead moved the court for injunctions restraining the broadcasting of the programme pending hearing of his summons for leave to appeal. WAARSDEN v AMALGAMATED TELEVISION SERVICES PTY LTD (Priestley, Handley ana Cole JJA) Because of the speed with which matters had moved from the Common Law Division into the Court of Appeal the claimant was not on Monday afternoon in a position to put evidence before the court in any organised way. The court permitted the claimant's counsel, Mr Reynolds, to address the court on the reasons why the injunction should be granted and to refer to the materials that had been before Levine J, the arguments which he had put to Levine J and the judge's reasons for not accepting those arguments, without any insistence on the usual documentation being before the court. While this was going on, the court made efforts to obtain a transcript of Levine J's reasons for judgment. These attempts resulted in the information that a transcript would probably not be available until about midday on Tuesday, 30 April. Because of the urgency of the matter the court proposed that Mr Reynolds should finish his submissions in chief and Mr Nicholas QC for the opponent should outline his response to the claimant's submissions on the Monday afternoon, that the court then adjourn till the following day, complete the hearing of Mr Nicholas' submissions and then Mr Reynolds' reply, and that if the transcript of Levine J's reasons was still not then available, the court would reserve its decision and as soon as it obtained a transcript of the reasons, proceed to consider them in light of the completed submissions and thereafter deliver judgment as soon as possible. The court also indicated that when the proceedings resumed the following morning it would expect the evidentiary position to be put in order. On the morning of Tuesday, 30 April Mr Nicholas continued his submissions and made available to each member of the court a folder containing those parts of the evidence which had been before Levine J to which he wished to refer in his submissions. Mr Reynolds then added some matter to what Mr Nicholas had handed up. Both parties then declared themselves content that all the material was before the court which either wished to be before the court for the purposes of the application. Mr Nicholas then completed his submissions in opposition to the application, finishing shortly after noon. In reply Mr Reynolds began by saying that the absence of a transcript of Levine J's reasons was causing him some difficulty. However, shortly afterwards, an unrevised transcript of the reasons became available. Copies were lent to the parties, together with the caveat that Levine J had not given his final approval to the form of the transcript, and the court then adjourned for approximately an hour and a half, during which time both parties, as well as the members of the court, had the opportunity of reading the transcript of the trial judge's reasons. (A revised version has since been forwarded to the court, no different in substance from the unrevised version.) After the adjournment Mr Reynolds addressed the court for approximately two hours by way of reply. In the course of the hearing the court had continued the temporary injunctions granted by Levine J on the Monday morning until it disposed of the application. Following the conclusion of the submissions the court reserved its decision. THE CLAIMANT'S SUBMISSIONS. In supporting the present application counsel for the claimant stressed that the interlocutory injunction being sought was for a short time only, that is, until the hearing of the application for leave to appeal; the status quo which the injunction was intended to maintain would therefore itself only be of short duration; this 4 UNREPORTED JUDGMENTS made it a comparatively simple matter to show that the balance of convenience element which the court must take into account in exercising discretion whether or not to grant the injunction lay heavily in favour of the claimant. It was further submitted that on the other aspect the court must consider, namely whether the claimant succeeded in showing that there was a serious issue to be tried on the leave application, again the claimant had no difficulty in discharging his onus. In regard to this last point, it was put that all the claimant needed to show in the present very limited application was that there was a serious issue whether the claimant could show on the leave application that there was a sufficiently arguable case to warrant the granting of leave. This last matter was the principal subject of the debate in this court. In regard to it, the same three heads of argument relied on before Levine J were again relied on. They were that the publication of the proposed programme would be: 1. a contempt of court in regard to the defamation proceedings the claimant has on foot against the opponent; 2. a contempt of the current Wood Royal Commission to make inquiry into the operations of the New South Wales Police Service; and, 3. a further defamation of the claimant which the court should restrain. CONTEMPT OF THE EXISTING PROCEEDINGS. In Attorney General for New South Wales v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368, this court stated the law relevant to the kind of contempt relevant to the present case as follows: ".. the general rule is that the publication of material in circumstances where the clear tendency of the publication is, as a matter of practical reality, to interfere with the due course of justice in a particular case, constitutes the crime of contempt of court. The reference to 'practical reality' is made because the nature and circumstances of the publication must be such that it could be plainly discerned that there is a real or definite possibility that it may prejudice the administration of justice: Hinch v Attorney-General for the State of Victoria (1987) 164 CLR 15 per Mason CJ (at 27) and Deane J (at 46-47). There is a qualification to that rule which requires to be considered in a case where it is argued that there is a competing public interest which outweighs the detriment of the possibility of prejudice to the administration of justice in the particular case in question: cf Hinch; Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd 37 SR (NSW) 242; 54 WN (NSW) 98 and Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650." (at 379-380) Thus for the claimant to show his asserted arguable case, that case would have to be that the proposed broadcast would create a real or definite possibility that it would prejudice the administration of justice. The parties' arguments before this court assumed that when the claimant's proceedings come on for hearing they will be tried before a judge and jury. It was common ground between the parties that the only function of the jury in the trial, since the enactment of s7A of the Defamation Act in 1994, will be to determine whether the matter complained of carries any of the alleged imputations and if so whether any such imputation is defamatory. It was also common ground that if the jury finds in favour of the claimant on these issues then it will be for the court and not the jury to determine whether any defence raised by the opponent has been established. In the circumstances of the present case there seems very little doubt that the claimant will be able to establish that the alleged imputations are defamatory; it would be verging on the perverse for a jury to find otherwise. WAARSDEN v AMALGAMATED TELEVISION SERVICES PTY LTD (Priestley, Handley an€ Cole JJA) We do not think any realistic case can be made out for saying that the showing of the opponent's programme might, even if it were the only matter extraneous to the evidence before them in the minds of the jurors, affect their conclusions on the only issues before them. The issues to which the proposed programme might arguably be relevant will be those which the parties are agreed the Defamation Act requires to be determined by the judge. We do not think it is at all realistic to suppose that the broadcasting of the proposed programme would create a real or definite possibility of prejudicing the mind of the judge who will preside at the hearing of the claimant's defamation proceedings. Counsel for the claimant, although not abandoning a submission contrary to what we have just said, recognised the difficulty for his argument created by the fact that the only real issues in the case would be decided by judge and not jury. He therefore spent some time on the submission that the proposed broadcast would involve the publication of statements by potential witnesses in the defamation proceedings and thus attracted the operation of what was submitted to be the binding rule stated by this court in Attorney-General v Mirror Newspapers Ltd (1980) 1 NSWLR 374: "\.. the publication of statements, by persons likely to be called as witnesses, about the matters in respect of which they will be likely to give evidence is, subject to the de minimis rule, undoubtedly contempt." (at 387) This rule is based on the danger created by the publication of the statements referred to that the fact of having given such statements may solidify or distort evidence subsequently given by the persons who made them or have an effect on other potential witnesses either of distortion of their evidence or deterrence from giving evidence. Counsel for the claimant pointed to the fact that particulars of justification supplied by the opponent in the principal defamation proceedings showed that the opponent would be seeking to prove at the trial that the claimant was a frequent visitor to an establishment known as Costellos allegedly at relevant times a gathering place for men seeking under-age males for sexual purposes. It was submitted that the claimant would be denying resort to Costellos and to support his denial intended to find witnesses who would be able to say that they had been present at Costellos on various occasions and had never seen the claimant there. It was submitted that the effect of the broadcast on such witnesses would be to deter them from giving evidence in the claimant's case. This would be because of the opprobrium that would attach to any person who publicly identified himself as having been a person who frequented Costellos at relevant times. If there was any significant chance of finding such witnesses, then application of the quoted passage from Mirror Newspapers Ltd, taken in isolation from the modern formulation of the law of contempt, could be of some assistance to the claimant. However, we do not think that either the factual or legal matter just mentioned, on the material available, assists the claimant. The statement from Mirror Newspapers Ltd set out above has recently been discussed in some detail in this court in Civil Aviation Authority v Australian Broadcasting Corporation (Kirby P, Handley and Sheller JJA, 29 June 1995, unreported). Both Kirby P (at 16-17 of his reasons) and Handley JA (at 9-10 of his reasons) made it clear that the statement in Mirror Newspapers Ltd was subject to what Handley JA referred to as "the basic test" (at 9) and that in every case the court must apply that basic test, namely whether the publication would 6 UNREPORTED JUDGMENTS have a clear tendency as a matter of practical reality to interfere with the due course of justice (see also Sheller JA at 7-8 and Victoria v BLF (1982) 152 CLR 25 per Mason J at 103 and Wilson J at 136). In the present case the submission for the claimant first assumes that there is some reasonable possibility that there are persons in existence who are locatable and who could give evidence that, now many years ago, they were at Costellos sufficiently often for statements by them that they had never seen the claimant there to be of some evidentiary significance on the issue whether he frequented that establishment, and that such persons would testify they had never seen the claimant there. Ignoring the difficulties involved in these assumptions and making them in the claimant's favour for the purposes of considering the present argument, the next step in the argument is that the proposed broadcast might have the effect of deterring such witnesses from making themselves available to be called in the claimant's case. In our view such witnesses, even in earlier times of less public concern, and even in the absence of publicity of the kind the proposed broadcast would create, would be reluctant to identify themselves as persons who regularly went to a place like Costellos is alleged to have been. At present, and in the foreseeable future, the searchlight that the Wood Commission is focussing on the activities at places like Costellos and the people who frequented such places, and the attendant publicity, general public concern and discussion, all mean that quite irrespective of the proposed broadcast the ordinary reluctance of persons to give evidence of the type the claimant would wish, can only be most markedly increased. We cannot see that the proposed broadcast would have any but the most marginal effect, if any at all, on the existing disposition for reluctance of such (assumed) witnesses. We would add that we see no reason for thinking that if the claimant was a stranger to Costellos that he has any significant chance of finding such witnesses in any event. A further argument relied on by the claimant on this aspect of the application was a claim that the proposed broadcast was a deliberate attempt by the opponent to interfere with the claimant's defamation proceedings against it. This was put in various ways. One was that it was intended to put pressure on the claimant himself to make him compromise or abandon his proceedings. Another was that the opponent had not supplied the identities of the witnesses it proposed to rely on to support its justification defences, and that the broadcast was intended to help it to dredge up further witnesses against the claimant. We do not think there is any foundation for these claims. The programme is concerned with a matter of genuine public importance and of very real public interest. It is not for the court to pronounce upon its style of presentation or its quality, about which there may be a wide range of different views. It is sufficient to say that it seems to be undeniably a contribution to public debate on the issues of general concern that it deals with. There is no mention in the programme of the defamation proceedings by the claimant against the opponent. We do not think that the matters upon which the claimant relies for making the assertions now being dealt with justify the conclusions, even arguably, that the claimant says are open to be drawn. Our conclusion is that the claimant has not made good any argument which arguably might persuade the court on an application for leave to appeal against Levine J's decision that as a matter of practical reality the proposed broadcast involves the real or definite possibility of prejudicing the fair trial of the claimant's defamation proceedings. WAARSDEN v AMALGAMATED TELEVISION SERVICES PTY LTD (Priestley, Handley and Cole JJA) CONTEMPT OF ROYAL COMMISSION. This head of argument arises because s18A of the Royal Commissions Act provides that a person is guilty of contempt of a Commission if the person does or omits to do anything which would, if the Commission were the Supreme Court, be contempt of that Court. The claimant's first argument under this head seems to us to be in substance much the same as that under the previous heading, namely the possible effect on witnesses of the broadcast. We cannot see that to broadcast the proposed programme would either deter witnesses from giving evidence or cause distortion of their evidence. If there were any such effect it could in our opinion only be very slight, and well within the Royal Commissioner's powers and competence to cope with. A further ground relied on under this head was based on a statement, in evidence before Levine J, made by Wood J as Royal Commissioner in connection with his term of reference which required him to inquire into the question whether any members of the Police Service protected paedophiles or pederasts from criminal investigation or prosecution. The Commissioner's statement was made publicly to explain what was being done and to avoid possible misunderstanding in regard to this particular term of reference. In one part of this statement he described the objects aimed at the conclusion of the inquiry into this term of reference, two of which were: "to identify significant offenders and any persons who have provided corrupt protection for those whose activities have broken the criminal law and to come up with appropriate recommendations for their prosecution." It was submitted that material which was before the court showed that the claimant was being investigated by the Commission in a way which indicated he might be regarded as a relevant offender. The argument then was that the proposed broadcast would arguably interfere with or prejudice the Commission's investigation of this issue. In terms of the test of contempt earlier mentioned this meant that the claimant was asserting that it was arguable that it would be arguable upon the hearing of his application for leave to appeal that the broadcast as a matter of practical reality would have a clear tendency to interfere with the due course of the Royal Commission. We do not think this submission can be sustained. The Commissioner is a professional lawyer with long judicial experience and we do not think this court would be justified in accepting as arguable the proposition that he might be influenced by the broadcast, if he happened to become a watcher of it, into any view of matters of fact or opinion different from that he would have arrived at were there no broadcast. Our conclusion on this head of argument is therefore that it provides no support for the claimant's application for an injunction. RESTRAINT OF THREATENED DEFAMATION. In Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153, Hunt J said: "The basis upon which courts have acted in granting interlocutory injunctions in defamation cases was stated by Walsh J in Stocker v McElhinney (No 2) (1961) 79 WN (NSW) 541 at 543-544; [1961] NSWR 1043 at 1048, and reproduced (with an important addition) in my judgment in Church of Scientology of California Inc v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 3v4 at 349-350 in these terms: 'I accept as the settled law that the power to grant interlocutory injunctions in defamation cases must be exercised with great caution, and only in very clear cases. A plaintiff must establish that a subsequent 8 UNREPORTED JUDGMENTS finding by a jury that the matter complained of was not defamatory of him would be set aside as unreasonable, that there is no real ground for supposing that the defendant may succeed upon any defence of justification, privilege or comment, and that he, the plaintiff, is likely to recover more than nominal damages only. In particular, questions of privilege and malice are not normally appropriate to be decided upon an interlocutory application. Nor will an injunction go which will have the effect of restraining the discussion in the press of matters of public interest or concern. The addition to what has been stated by Walsh J is the proposition contained in the last sentence of that passage." (at 157-158) In our opinion that is a correct statement of the legal position, subject to a possible qualification with which Hunt J dealt in the latter part of his reasons in Chappell. The possible qualification is that the position as stated by Hunt J in the quoted passage has less absolute effect than would appear from a literal reading. That is, it may be that it does not impose rigid rules on courts (although there is considerable earlier authority for this) but rather states powerful considerations which courts must take into account, in exercising their discretion in cases of the present kind, in granting interlocutory injunctions otherwise in the same way as interlocutory injunctions are generally dealt with. Hunt J favoured the latter view. If the older, more rigid view were correct then it would dispose at once of this head of the claimant's argument. If the more flexible view of Hunt J is the proper one to follow, as we are inclined to think it is, we would agree with the way he said it should be applied, which appears from what he said, when, after disagreeing with the rigid view, he continued: "That is not to say that the considerations enshrined in the 'rules' laid down by Lord Esher should be ignored in an application for an interlocutory injunction in defamation cases. Far from it. Those considerations should in my view continue still to be relevant, but not in the absolute terms in which they were expressed over 100 years ago by Lord Esher. It is not difficult to imagine a situation where the prospect of a verdict of no libel is so slight, where the prospect of injury to the defendant if publication is delayed (or prevented) is also so slight, and where the prospect of enormous or overwhelming injury to the plaintiff if publication is permitted is so great, that i1 would be both unjust and unreasonable to deny interlocutory relief merely because Lord Esher's rule has not been wholly satisfied. In my view, that was the present case, where that particular rule was almost, but not completely, satisfied. Just how far short of satisfaction the rule may be in the particular case - and still warrant the grant of interlocutory injunctive relief - will obviously depend upon the weight to be afforded in that case to the other elements in that equation. That is how any discretion must be applied. It is important to emphasise that the power to grant interlocutory injunctions in defamation cases will, even where such a discretion is applied, continue to be exercised with great caution and only in very clear cases: Bonnard v Perryman (at 285) and Stocker v McElhinney (No 2) (at 544; 1048). That is because in most cases the grant of such an injunction before the rights of the parties have been finally determined at a trial involves an interference with an important right of the defendant, that of his freedom of speech, which is necessarily interfered with if its exercise is delayed or prevented. In many cases, the grant of such an injunction before those rights have been fully determined involves an interference with an even more important right, the right of the community in general to discuss in public matters of public interest and concern WAARSDEN v AMALGAMATED TELEVISION SERVICES PTY LTD (Priestley, Handley an@ Cole JJA) and to be informed of the different views held by others. That is what I described as the independent and overriding principle, and which I discussed in some detail, in the Church of Scientology case (at 351-352). A free and general discussion of public matters is fundamental to a democratic society. " (at 163-164) The present case seems to us very clearly to be one in which the court should give considerable weight to the considerations referred to by Hunt J in the above passages. First, the example given by Hunt J of a case where discretion could be exercised in favour of granting an interlocutory injunction (of which both Chappell and Stocker v McElhinney (No 2) were themselves examples) was of a case where the prospect of a verdict of no libel was very slight, of injury to the defendant also slight if publication prevented, and of great injury to the plaintiff if publication permitted. Such a case has no resemblance to the present one. Amongst other differences, we do not think, on the material before us, there is a substantial prospect of significant further injury to the claimant if the proposed programme is broadcast. There are several reasons for this opinion. One is that we do not think the proposed programme, insofar as it concerns the claimant, takes things much further than the broadcast of 13 March 1995 which is the subject of the present defamation proceedings. Also, there were in evidence before Levine J and relied on in this court by Mr Nicholas QC a set of newspaper clippings and a video of an ABC Channel 2 programme in which the claimant seems to have voluntarily participated. One of the newspaper clippings was a very long account in the Sydney Morning Herald of 15 March 1995 of interviews by the writer with the claimant. The effect of both what the claimant said in the interviews and in the Channel 2 broadcast was, amongst other things, to make his sexual preferences and the way in which he satisfied them matters for public debate. The materials make it difficult to disentangle those parts of what would otherwise be the claimant's private life which he is prepared to discuss publicly from those which he would seek to keep private. Quite apart from the considerations just mentioned, and returning to the other discretionary considerations mentioned by Hunt J in Chappell, in our opinion the public interest in a free and general discussion of the subject matter of the proposed programme, taken together with the other matters touched on, in the course of these reasons, lead to the conclusion that it is a sound exercise of discretion to refuse to grant an interlocutory injunction under this third head. In our view, after giving full weight to the claimant's argument about the low threshold required for the granting of a temporary injunction for the short time sought in this application, nevertheless the discretionary considerations against the granting of such an injunction clearly outweigh those in its favour. In our opinion the application should be dismissed with costs, and we make orders accordingly. Counsel for the Appellant: G O'L Reynolds Solicitors for the Appellant: Phillips Fox Counsel for the Respondent: WH Nicholas QC / JS Wheelhouse Solicitors for the Respondent: Mallesons