Reported Decision : (2000) Aust Torts Reports 81-551 (2000) Aust Contract Reports 90-108 New South Wales Supreme Court CITATION : Hitchcock v TCN Channel Nine Pty Limited [2000] NSWSC 224 CURRENT JURISDICTION: Common Law Division Defamation List FILE NUMBER(S) : SC 20104/2000 HEARING DATE(S) : 21-23 March 2000 JUDGMENT DATE : 23 March 2000 PARTIES : Shari-Lea Hitchcock (Plaintiff) TCN Channel Nine Pty Limited (Defendant) JUDGMENT OF : Dunford J COUNSEL : Mr T Hughes QC with Mr B Connell (Plaintiff) Mr McClintock SC with Mr Sleight (Defendant) SOLICITORS : Clayton Utz (Plaintiff) Gilbert & Tobin (Defendant) CATCHWORDS : DEFAMATION - practice - injunction to restrain publication - other related proceedings in Equity Division - Practice Note No. 85. PRACTICE & PROCEDURE - Abuse of power - related proceedings in separate Divisions. Delta Landscaping Pty limited v Bell Dies Pty Limited (1990) 20 NSWLR 508 at 509; Brimaud v Honeysett Instant Printing Pty Limited (unreported - McLelland CJ in Eq - 19 September 1998); CASES CITED : Collier v Howard (unreported - McLelland CJ in Eq - 23 April 1996); DA Christie Pty Limited v Baker [1996] 2 VR 582; Amalgamated Television Services v Marsden [1999] NSWCA 313. DECISION : See para 14. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST DUNFORD J THURSDAY, 23 MARCH 2000 20104/2000 - Shari-Lea HITCHCOCK v TCN Channel Nine Pty Limited JUDGMENT 1 HIS HONOUR: The plaintiff has applied for an interlocutory injunction to restrain the broadcasting of certain allegedly defamatory imputations which are alleged to be conveyed in a pre-recorded interview, the transcript of which is annexed to the statement of claim and the notice of motion, between the presenter of the defendant's programme, A Current Affair, and the plaintiff's former nanny, a Miss Page. The interview deals with a number of matters apart from the allegedly defamatory imputations relating to the relationship between the plaintiff and Mr Robert Pratt, a prominent Melbourne businessman, their child, the plaintiff's lifestyle and similar matters. 2 On Thursday, 16 March, shortly after 6 pm the plaintiff's counsel successfully applied to Austin J, who was Duty Judge in the Equity Division, for an ex parte injunction to restrain the broadcast and, having served short notice of the summons, a contested hearing for continuation of the injunction was commenced before his Honour on Friday, 17 March. That application was to restrain the publication of the whole of the interview, and was based on two grounds: (1) inducement of breach of contract; (2) breach of confidence. 3 The interlocutory injunction originally granted ex parte was continued during the course of the hearing until judgment was delivered shortly after 2 pm on Tuesday, 21 March, when his Honour found that the plaintiff was entitled to an injunction to restrain the broadcast of that part of the interview which would involve a breach by Miss Page of a clause in a Deed and Release between her and the plaintiff dated 3 March 2000, and that part was later identified when his Honour made formal orders as lines 118 to 123 of the transcript of such interview. He later continued the original injunction on the whole interview until 2 pm yesterday to enable the Court of Appeal to consider an application for leave to appeal, and I have been informed this morning that the Court of Appeal has now extended the wider injunction until 4 pm tomorrow, Friday, 24 March 2000, and that the court will hear the appeal from Austin J's judgment tomorrow commencing at 10 am. 4 Shortly after judgment was handed down in the Equity proceedings, namely at about 3.30 pm on Tuesday, 21 March, an application was made to me as Common Law Duty Judge (the Defamation List Judge, Levine J being unavailable) for an injunction to restrain the broadcast being of any of the defamatory imputations alleged in the statement of claim or any imputations to like effect and, by para 2(ii) of the notice of motion, the whole of the interview. 5 Because of the holding injunction in respect of the whole broadcast granted by Austin J to permit the application to the Court of Appeal, I adjourned the matter to yesterday, 22 March, and I heard evidence on the application, at the conclusion of which, on the balance of convenience, I granted a temporary injunction restraining publication of that part of the interview which I considered could give rise to the imputations alleged and which I defined by reference to numbered lines in the transcript, but I refused any temporary wider injunction to restrain the broadcast of the balance of the interview. That temporary injunction was later extended to 5 pm today and because of the pending appeal in the Court of Appeal I have now extended it until 4 pm on Tuesday, 28 March 2000. I have yet to hear submissions on or decide whether that limited injunction should be extended beyond that date or whether an injunction in any other form should be put in place. The second passage specified in that temporary injunction granted by me yesterday is essentially the same paragraph as is the subject of Austin J's injunction. 6 In the meantime Mr B McClintock SC has taken a preliminary point that before dealing with the merits I should dismiss the present application as an abuse of process in that this application should have been brought as an additional ground of the application before Austin J and not as a separate application only after that application had failed to achieve its primary objective of preventing the broadcast of the whole of the interview. 7 The circumstances of how the defamation issue was raised and dealt with before Austin J are set out in his Honour's judgment at paras [8], [9] and [10], and a number of other relevant facts were established by evidence or agreed before me. At the time the plaintiff commenced proceedings before Austin J she was not aware of the contents of the proposed programme except what had appeared on promotional tapes televised on 6 March, which did not contain the material alleged to convey the defamatory imputations, and the full text of the programme first became known to her or to her legal advisers when a video tape of the proposed broadcast was shown in closed court on the afternoon of Friday, 17 March 2000. The plaintiff was then recalled to the witness box and denied on oath that the part referable to the first alleged imputation was true. The next thing that happened was that the plaintiff's senior counsel received a transcript of the proposed broadcast on Monday morning, 20 March 2000, at court. 8 Mr McClintock SC has submitted that it is an abuse of process to make two or more interlocutory applications for the same or substantially similar relief or to set aside, to vary or discharge such an order unless there has been a change of circumstances or additional evidence becomes available which it was not reasonably practical to have available at the first hearing, and he referred me to Delta Landscaping Pty limited v Bell Dies Pty Limited (1990) 20 NSWLR 508 at 509; Brimaud v Honeysett Instant Printing Pty Limited (unreported - McLelland CJ in Eq - 19 September 1998); Collier v Howard (unreported - McLelland CJ in Eq - 23 April 1996); DA Christie Pty Limited v Baker [1996] 2 VR 582 and Amalgamated Television Services v Marsden [1999] NSWCA 313 at para [38] where Brimaud v Honeysett Instant Printing Pty Limited (supra) was approved. In accordance with these authorities he submitted in seeking to restrain the whole of the intended broadcast, or alternatively parts of it, the plaintiff is seeking the same relief as was sought before Austin J, that no new circumstances have arisen and there is no evidence now available which could not reasonably have been obtained for the Equity hearing. He further submitted that the plaintiff and her advisers must have known the broadcast would be defamatory because in an affidavit sworn in the Equity proceedings on 16 March the plaintiff said that if it were to be broadcast she feared she would suffer irreparable damage to her reputation in a manner which she specified and he said this could only be consistent with a claim for defamation. He also referred to what he described as the waste of court time and the costs involved in making two separate applications and the extra time bought by the plaintiff by the making of the two separate applications. 9 There is substance in these submissions although, whilst the plaintiff might have guessed the broadcast would probably be defamatory in some way, she had no way of knowing in what way, and as at Thursday, 16 March 2000, could not have formulated a defamation claim. The reference in the affidavit to damage to her reputation was put forward it seems as the irreparable damage she claims she would suffer and for which damages would not be an adequate remedy if there was a breach of what she claimed were the confidential provisions of the Deed and Release of 3 March 2000 or of the breach of confidence. I am satisfied the plaintiff could not be criticised for not commencing proceedings for defamation at that stage and, accordingly, that Practice Note No. 85 did not apply. That Practice Note provides that applications for injunctions to restrain publication of defamatory matter should be made to the Defamation List Judge or of he is unavailable, to the Common Law Duty Judge, rather than in the Equity Division. 10 This position continued until the video was shown in court on Friday afternoon, 17 March 2000. Once it was shown to the plaintiff and her legal advisers they knew it was defamatory. Indeed, the reaction of the plaintiff to the part alleged to go to the first imputation, which I regard as the most important for present purposes, was that she thought it was so particularly "awful and damaging" that she left the courtroom. She also swore that it was untrue. The plaintiff's legal advisers did not then have a transcript but from the single viewing of the video they could have formulated an imputation in general terms to substantially the same effect as now alleged, even though it might have required amendment at a later stage. 11 Therefore, at the latest on Tuesday morning, the plaintiff should have applied to amend the proceedings before Austin J to include a claim to restrain the threatened defamation. She did not do so. That morning her legal advisers received a transcript and could have formulated precise imputations. Practice Note 85 did not prevent the Equity proceedings being amended to include a claim to restrain the defamation. Practice Notes are only that; they are not carved in stone; they do not override well-established principles and can with leave be departed from in particular circumstances. If any other view was taken by the plaintiff's legal advisers, it was erroneous and I am satisfied that at least no later than the morning of Monday, 23 March, an application should have been made to include the alleged threatened defamation in the claim for relief before Austin J. If leave had been granted, the defendant could also have obtained leave to lead any further evidence which it considered relevant to the issues. It is not necessary to consider what should have been done if leave to amend had been refused, because leave was never sought. 12 What happened during final submissions is set out in Austin J's judgment. In effect, after indicating an intention to rely on the threatened defamation as an additional ground and some discussion, the plaintiff abandoned that ground though purporting to reserve the right to seek relief in this Division. I am of the view that the plaintiff's senior counsel was not entitled to take that course, but should even then have pressed Austin J for leave to amend so as to include the defamation claim. The result has been separate proceedings, waste of court time and waste of costs, and the effect, whether intended or not, has been to further delay the showing of those parts of the broadcast not the subject of injunctions so far by either Austin J or myself, which delay, I assume, has been prejudicial to the defendant because stale news is no news, although whether the "extravagant and/or bizarre" lifestyles (so described) of the plaintiff and her lover are news in any true sense of the word may be a matter of some debate. 13 I would, therefore, have held that the second set of proceedings were an abuse of process and dismissed them on that ground, had it not been for one factor, and that is that when plaintiff's counsel foreshadowed an intention to rely on the threatened defamation before Austin J, the defendant's counsel, to quote his Honour, "objected strenuously", and I consider it ill-behoves the defendant's senior counsel to now claim the proceedings are an abuse of process when he was the one who objected to them being in effect incorporated into the earlier proceedings. He said it was only raised late in proceedings during the final addresses and it deprived him of the opportunity whether to consider calling further evidence, but he did not apparently seek an adjournment to consider his position after the additional grounds were allowed, but opposed it being raised at all; and I note that he has not sought to call any evidence on the substantive application before me. In opposing the additional ground and now seeking to prevent it being considered at all, he has been seeking to both have his cake and eat it. If his case is, in effect, that his objection should have been overruled his objection can hardly be regarded as bona fide, but as some play in an elaborate game designed to prevent the substantial merits of the issue being examined at all. 14 For these reasons I refuse the application to dismiss the proceedings as an abuse of process and to reserve the question of the costs arising out of the argument on that issue. -------------------- Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.