SHARI-LEA HITCHCOCK v TCN CHANNEL NINE PTY LTD (No 2) [2000] NSWCA 82

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 2) [2000] NSWCA 82 FILE NUMBER(S) : CA 40173/00 HEARING DATE(S) : 24 March 2000 JUDGMENT DATE : 24 March 2000

PARTIES : Shari-Lea Hitchcock TCN Channel Nine Pty Ltd JUDGMENT OF : Spigelman CJ at 1,22,35; Mason P at 32; Heydon JA at 2

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) CATCHWORDS : EQUITY - duty of confidence - serious question to be tried Attorney-General v Guardian Newspapers Ltd [No 2] [1990] 1 AC 109 Coco v AN Clark (Engineers) Ltd [1969] RPC 41 CASES CITED: Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 Malone v Metropolitan Police Commissioner [1979] Ch 344 Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] (1984) 156 CLR 414 Smith Klein & French Laboratories (Australia) Ltd v Department of Community Services and Health (1990) 22 FCR 73 DECISION : The Respondent pay the Appellant's costs of the application for leave and of the appeal itself.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40173 of 2000 ED 1773 of 2000

SPIGELMAN CJ MASON P HEYDON JA

Friday, 24 March 2000 SHARI-LEA HITCHCOCK v TCN CHANNEL NINE PTY LTD (No 2)

Austin J granted a limited ex parte injunction to prevent the Respondent broadcasting a television interview with a Ms J Page. The interview concerned the Appellant and her child and their relationship with a third party, Mr R Pratt. Ms Page was the child's "nanny" though this classification of her role was disputed. The Appellant appealed from the Orders of Austin J. However, at the commencement of proceedings before the Court of Appeal, the Respondent offered an undertaking in the same terms as the injunction which the Plaintiff had sought before Austin J. The only issue before the Court of Appeal was the question of costs. The Respondent submitted that it should not be ordered to pay costs because its conduct in defending the proceedings had been reasonable.