Reported Decision : (2000) Aust Torts Reports 81-552 New South Wales Court of Appeal CITATION : SHARI-LEA HITCHCOCK v TCN CHANNEL NINE PTY LTD (No 1) [2000] NSWCA 76 FILE NUMBER(S) : CA 40173/00 HEARING DATE(S) : 22 March 2000 JUDGMENT DATE : 22 March 2000 PARTIES : Shari- Lea Hitchcock TCN Channel Nine Pty Ltd JUDGMENT OF : Spigelman CJ at 1,12,18,20,22; Mason P at 10,14,16; Heydon JA at 11 LOWER COURT JURISDICTION : Supreme Court LOWER COURT ED 1773/00 FILE NUMBER(S) : LOWER COURT Austin J JUDICIAL OFFICER : COUNSEL : T F Hughes QC / B Connell (Appellant) B McClintock SC / J Sleight (Respondent) SOLICITORS : Clayton Utz (Appellant) Gilbert & Tobin (Respondent) DECISION : Leave to appeal granted. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40173/00 ED 1773/00 SPIGELMAN CJ MASON P HEYDON JA Wednesday 22 March 2000 SHARI-LEA HITCHCOCK v TCN CHANNEL NINE PTY LTD (No 1) JUDGMENT 1 SPIGELMAN CJ: This is an application for leave to appeal from the judgment of Justice Austin delivered on 21 March 2000. In my opinion, the matter raised warrants the grant of leave. It is not the custom of the Court to give reasons for the grant of leave. 2 The issue arises from an appeal from an interlocutory judgment of the Court in which the relevant test is whether there is a substantial question to be tried together with the issue of balance of convenience. In my opinion there is an arguable case as to whether or not there is a substantial question to be tried, and on that basis leave should be granted. 3 The matter then arises as to what the Court should do to preserve its own jurisdiction with respect to the appeal which the applicant proposes to file in the Court. It is plain that if the publication of the broadcast occurs, the substance of the appeal would be lost. In the exercise of the Court's inherent jurisdiction and to preserve its own jurisdiction, it should grant an injunction in sufficient terms to preserve the subject matter of the dispute. 4 The orders that have been made, originally on an ex parte basis below, covered a broader range than the matters which the applicant has agitated before this Court on the application for leave. Although the notice of appeal will travel beyond the grounds on which leave was sought, in my opinion the injunction should be restricted to the proposition put to the Court for the grant of leave. 5 Mr Hughes QC, who appeared for the Applicant, put the proposition in these terms: the substantial point in issue was whether or not Ms Page by reason of her employment as a domestic employee working in the residence as a nanny came under an equitable duty of confidence not to reveal to the public any information concerning the private life of the plaintiff as she observed it during her employment. 6 In terms of an injunction, I would fashion an injunction in slightly different terms to include the word, "heard", as well as the word, "observed", but also to restrict the terms of the injunction to knowledge of a category described arising out of, and in the course of, her employment. 7 The Court is able, probably, subject to contingencies, to offer the parties a hearing on Friday of the appeal. That does depend on present expectations as to other matters already listed before the Court, falling out as now contemplated. What I propose is that an injunction be extended until 4 o'clock on Friday, that also there be a direction that the parties file written submissions by 4 o'clock tomorrow in the Court. 8 Before I actually make the injunction, I will read it out and if any party wishes to be heard on the precise terms they will be given an opportunity to do so. 9 Upon the applicant giving the usual undertaking as to damages, the opponent is restrained until 4 o'clock on 24 March 2000 from publishing any information concerning the private life of the plaintiff as it was observed or heard by Ms Julie Page arising out of and in the course of her employment by the plaintiff. 10 MASON P: I agree with the Chief Justice. 11 HEYDON JA: I too agree with the Chief Justice. 12 SPIGELMAN CJ: Is there any comments on the terminology? 13 MCCLINTOCK: Yes your Honour. With great respect your Honour, that injunction will cause very serious difficulties to my client. The first, and I say this with respect, is the words "private life". This is an injunction, the breach of which as your Honours know, has penal consequences for my client. The words "private life" are not words of precise denotation. They could mean many, many things. Second, and this is the more significant point, is that it seeks to make my client liable for matters that we cannot know. We do not know whether objectively any particular piece of information was observed by Ms Page in the course of her employment. We cannot know. Some things might be and they might not have been. It would have to be, we would suggest, restricted in some way to matters of which my client is aware. The difficulty we have is - take for example, as I put to your Honours earlier, there are matters in there that might have come in the course of the employment, but they might not have. If it is objectively there, it forces my client to make a judgment and obtains for the plaintiff considerably greater relief than she is in fact entitled on any view of the matter because my client would almost certainly take the course of doing, but publishing nothing which is obviously not your Honour's intention. It should be in some way limited to matters of which my client is in some way either on notice or aware. I hope I haven't sounded overly passionate, and if so I hope I haven't sounded offensive, because I didn't intend to be. 14 MASON P: Why shouldn't we say, "and without prejudice to the generality of the foregoing, not to publish the proposed broadcast"? 15 MCCLINTOCK: Well your Honour as I understood the intention of the order as enunciated by the Chief Justice was that my client would remain free to publish material other than that which concerned the private life of the plaintiff and was obtained in the circumstances there. The consequences of what your Honour the learned President suggested is that that freedom would be taken away from us and that was not what I understood to have been intended. 16 MASON P: I thought you wanted some certainty. 17 MCCLINTOCK: I want certainty and I want freedom. 18 SPIGELMAN CJ: The Court will make the injunction in the terms that I outlined a few minutes ago. 19 HUGHES: Would the Court grant leave for us to take out the order forthwith? 20 SPIGELMAN CJ: Yes. 21 HUGHES: And to serve by facsimile transmission? 22 SPIGELMAN CJ: It is our belief that the registrar is still here, but you have that leave if you need it. And you shall be directed to file the appeal first thing in the morning. I do give a direction for written submissions by 4 o'clock. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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