Hemmes v Seven Network Limited [2000] NSWSC 246

New South Wales Supreme Court

CITATION : Hemmes v Seven Network Limited [2000] NSWSC 246 FILE NUMBER(S) : SC 1879 of 2000 HEARING DATE(S) : 29 March 2000 JUDGMENT DATE : 30 March 2000

PARTIES : Plaintiff: John Hemmes Defendant: Seven Network Limited JUDGMENT OF : Hulme J at 1

COUNSEL : Plaintiff: R Angyal, N Abadee Defendant: S Rares SC, N Beaumont SOLICITORS : Plaintiff: Landerer & Company Defendant: Mallesons Stephen Jaques CATCHWORDS : Defamation - Interlocutory injunction CASES CITED : Chappell v TCN Channel Nine Pty Limited (1988) 14 NSWLR 153 Loveday v Sun Newspapers Limited (1938) 59 CLR 503 DECISION : Grant interlocutory injunction

- 11 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NO: 1879 of 2000 Thursday 30 March 2000

HULME J JOHN HEMMES v SEVEN NETWORK LIMITED

1 HIS HONOUR: On Monday evening of this week, I granted an ex parte injunction in this matter up until 4.00pm yesterday. When the matter came before me yesterday morning, the Defendant moved to dissolve that injunction and the Plaintiff sought a further injunction in somewhat more restricted terms. 2 After some debate the parties reached a degree of compromise in respect of the Defendant's motion, it being agreed that the ex parte injunction should be dissolved, costs would be reserved and the Defendant gave an undertaking that it would not make the publication, to which the Plaintiff objected prior to 6.30pm on that day. At about 6pm on Wednesday 29 March 2000, the Defendant extended that undertaking up to 6 or 6.30pm today. The issue which is the subject of these Reasons is the Plaintiff's application for a further interlocutory injunction seeking that the Defendant be restrained until further order from publishing words suggesting that:- (i) The Plaintiff was a dishonourable man, in that he fled from New Zealand a week after a woman with whom he had been romantically involved there told him she was pregnant to him. (ii) The Plaintiff was a dishonourable man in that for twenty years he repeatedly refused to acknowledge that Dale Young was his biological daughter, when in fact he knew that Dale Young was his biological daughter. (iii) The Plaintiff was a coward in that he refused to acknowledge to John Young that he was his biological father, when in fact he knew that he was John Young's biological father. (iv) The Plaintiff was so lacking in integrity and common decency that he refused to accept any responsibility for two children that he knew were his. 3 The genesis of the Defendant's interest in the Plaintiff and of the broadcast which, unless restrained, the Defendant proposes to make, lies in statements apparently made by a John Young and his mother Lola Kinsela to the effect that Mr Young and a deceased twin are the children of the Plaintiff in consequence of a relationship Miss Kinsela had with the Plaintiff in New Zealand in or about 1953. It is unnecessary that I repeat here all of the ancillary allegations by Mr Young and his mother. 4 The topic has been the subject of some newspaper reports including one in the Sun Herald of 2 January 2000, one in the Daily Telegraph on 27 March 2000 and, probably another in that newspaper on 11 February last. 5 The Plaintiff is a successful businessman and while he may have attracted some publicity in that connection is not a public figure as that expression is normally understood. He does not now and never has held any public office. 6 However, he has on at least one occasion granted an interview to a member of the press and on at least two occasions would seem to have responded to questioning by journalists concerning the matters raised by Mr Young. The Plaintiff's statements in this regard are much relied on by the Defendant in this case and accordingly, it is necessary to address them in a little detail. 7 The interview was reported in a Sunday edition of the Sun Herald in November 1999 and was one of at least four comparing the lots of parents and their children. It encompassed a number of aspects of the Plaintiff's life including time in a concentration camp during the war, his arrival in Australia, meeting his wife - which, despite some confusion in dates, seems clearly to have occurred after the Plaintiff was in New Zealand - and commencing in business. Among the parts of the interview particularly relied on by the Defendants was the following:- Q Was it important to you to become a father? A Very. Although when Bettina was born in 1963, Merivale was making hats until 1am that night. She went to bed and at 4am we had to go to hospital and she had the baby at 4.30am. Give days later, she was back at work! But now it's a big episode. Q Did you have a few girlfriends before you married? A Yes. Love girls. I think Justin's picked that up from his father. Q Did you have sex before marriage? A Yes but I only started when I was 19. It was harder (to be safe). Now it's fairly easy. 8 The report in the Sun Herald of 2 February 2000 followed conversation between the Plaintiff and a journalist, a Mr Crittle. According to evidence from the Plaintiff which, for present purposes, I am disposed to accept, Mr Crittle asked for an interview but the Plaintiff refused to participate in one. However, in the course of their phone conversation, the Plaintiff apparently described paternity claims made or threatened by Mr Young as "madness" and made other statements to the effect of the following:- "I was in New Zealand almost 50 years ago and I did have girlfriends - I am not a homosexual. But I can't remember the names after all this time and know nothing of fathering children." "I have never heard anything more ridiculous in my life." "I don't have anything to do with that (presumably the claims) and it sounds like a bit of blackmail coming out." "This is madness, I don't know him (Mr Young) from Adam. It sounds like somebody put a joke and it's a sick joke, it is madness, it is crazy." "Someone is putting you on. It seems all very strange to me…" There is something very funny going on. Are they asking for money? This is blackmail." 9 In the course of a telephone conversation with one of the reporters responsible for the article of 11 February in the Daily Telegraph, the Plaintiff made statements to the effect of extracts from the article which I set out below:- "I'm not looking for any strangers to try to knock on my door for money." "Hemmes said he lived in New Zealand for 2 years in 1951 and 1952 but did not remember a woman then known as Lola Kinsela, John Young's mother." "On allegations he fathered the twins, Hemmes responded: "It's all bullshit… and it's really upsetting because I'm very happily married."