New South Wales Supreme Court CITATION : Nationwide News Pty Ltd v Australian Broadcasting Corporation & Anor [2005] NSWSC 945 HEARING DATE(S) : 15 September 2005 JUDGMENT DATE : 15 September 2005 JURISDICTION : Equity Division JUDGMENT OF : Palmer J DECISION : Injunction previously granted later dissolved. CATCHWORDS : MEDIA - INJUNCTION - CONFIDENTIAL INFORMATION - Urgent application to restrain broadcast of allegedly confidential material - alleged breach of confidential information - alleged interference with contractual relations - plaintiff proved to have published previously most of alleged confidential information. Nationwide News Pty Ltd - Plaintiff PARTIES : Australian Broadcasting Corporation - First Defendant Zupreda's Other Films Pty Ltd - Second Defendant FILE NUMBER(S) : SC 5127/05 T.D. Blackburn SC - Plaintiff COUNSEL : A.T.S. Dawson - Defendant J. Summerhayes - Plaintiff SOLICITORS : S. Collins, General Counsel, ABC - Defendant LOWER COURT JURISDICTION : Ex tempore On application for injunction to stop Enough Rope interview with Mark Latham going to air at 8.30pm, and a further interview on Lateline at 10.30pm on Thursday, 15 September 2005 1 It is now 8pm. In view of the time, I will announce the result of the decision. I will grant the injunction as sought up to 4pm on Monday 19 September 2005. In order to give Mr Collins time to communicate the order to the ABC and the producers of the programme, I will simply say that the terms of the order will be as in paragraph 1 of the Summons, with the insertion of the word "4pm" before "Monday". I will give some short reasons. 2 This is an application by Nationwide News Pty Limited ("the Plaintiff"), a subsidiary of News Limited, to restrain the broadcast of two programmes to be broadcast this evening on ABC Television. The Defendants are the Australian Broadcasting Corporation ("ABC") and the producer of the programme, Zupreda's Other Films Pty Limited ("Zupreda's"). I give leave to join Zupreda's as Second Defendant in the Summons. 3 The application has been brought on with extreme urgency. The Court was first notified that an application would be made at about 6.30 this evening and the hearing did not commence, I think, until some time just before 7pm. 4 Mr Blackburn SC appears for the Plaintiff. Mr A.T.S. Dawson of Counsel and Mr Collins were able to appear at very short notice on behalf of the ABC. The application has been hampered by the fact that the Plaintiff had been able to gather very little evidence to support its claim in the very limited time in which it had to bring this application. On the other hand, the Defendants have had even less time and, so I gather from Mr Dawson in the course of submissions, he arrived in court with Mr Collins with vestigial knowledge of what this application was all about. 5 I will advert to the difficulties with the state of evidence in the course of these reasons. However, I should say that at the conclusion of submissions I had come to the view that an injunction ought to issue to restrain broadcast of the programmes tonight and, bearing in mind that the first of them was to be broadcast at 8.30pm, I have granted an interim injunction in terms to which I will come, and Mr Collins, the ABC's solicitor, has very helpfully communicated those instructions to the ABC. 6 The facts, so far as they are presently known, are as follows. 7 Mr Mark Latham, former leader of the Australian Labor Party, has entered into a publishing contract with Melbourne University Publishing ("MUP") for the publication of a book entitled "The Latham Diaries", in which Mr Latham recounts his experiences. The topic is of obvious immediate public interest. 8 The Plaintiff, which, I gather, is in some way either responsible for, or is the publisher of, The Australian newspaper and the Weekend Australian magazine, says that it has entered into a contract with MUP whereby the Plaintiff has exclusive right to publish extracts from Mr Latham's book prior to its publication. It also says that it is a term of the contract that it has the right to publish an exclusive interview between one of its journalists and Mr Latham. The contract entitles the publication of that exclusive material this weekend. The Plaintiff says that it is a term of its contract with MUP that Mr Latham will not give any interviews disclosing in substance the effect of the exclusive material which the Plaintiff is to publish this weekend in such a way as to deprive the content to be published by the Plaintiff of its exclusivity. 9 The Plaintiff says that Mr Latham has given an interview to Mr Andrew Denton for the Enough Rope programme which contains material which is to be published by The Australian newspapers this weekend on an exclusive basis. The Denton interview, if broadcast tonight, so the Plaintiff says, would infringe the Plaintiff's rights in two respects. First, it would constitute the tort of knowing interference in the contractual relationship between the Plaintiff and MUP for exclusivity rights in this material over the weekend. 10 Second, it says that the broadcast of the interview with Mr Denton and another interview to be broadcast on Lateline tonight, will breach the Plaintiff's rights of confidentiality in the extracted material for which it has obtained exclusive rights under the contract with MUP. It therefore seeks to restrain the broadcast of the Denton programme and the Lateline programme and has sought an injunction up to and including next Monday. 11 Mr Dawson for the ABC says, firstly, that there is no serious question to be tried, secondly, that the balance of convenience favours the refusal of the injunction and, thirdly, that damages should be an adequate remedy. 12 As to the first submission, Mr Dawson says that it is totally unclear what, if any, are the terms of any agreement between the Plaintiff and MUP as to exclusivity. Indeed, he says it is unclear whether any binding contract at all has been entered into between those parties. 13 Mr Blackburn concedes that there is no agreement in writing in final form between the Plaintiff and MUP but he says that there is sufficient evidence in an exchange of e-mails to evidence such an oral agreement, and he says that a substantial sum of money has been paid by the Plaintiff pursuant to that agreement. 14 Secondly, Mr Dawson says that there is no evidence to show that the terms of any agreement between the Plaintiff and MUP have relevantly been brought to the attention of the ABC and Zupreda's. 15 If this were a fully contested interlocutory application with adequate notice having been given to both sides prior to the hearing so that they could prepare their cases there would be a great deal of force indeed in what Mr Dawson says. However, I have to take into account the fact that the application has, of necessity, been brought on in a situation of extreme urgency. I have been presented with – and I mean this in no disrespectful way – bare assertions, denials and affirmations from the Bar Table on instructions. 16 It is impossible for me on the state of the evidence and in the time available to form any clear view of the issue as to the existence and terms of an agreement between the Plaintiff and MUP other than that there is sufficient substance in the material to describe the issue as one which is deserving of investigation, to say the least, and constituting a serious question to be tried. 17 As to whether the terms of a binding agreement have been sufficiently brought to the attention of the ABC and Zupreda's, again, the evidence is very equivocal. It is quite clear that the ABC has been made aware that there is an agreement between the Plaintiff and MUP and that there are some terms of that agreement which relate to exclusivity of information. 18 There is some support in this assertion from e-mails passing between somebody associated with the Denton programme and News Limited. The e-mails demonstrate that the producers of the Denton programme have been acutely aware of the need to keep the content of that programme confidential and that the confidentiality of the programme is to do with protecting News Limited or The Australian newspaper publication rights in addition to any rights of exclusivity or confidentiality that the ABC might itself have in the programme. Again, in the face of bald assertion and counter-assertion, which is all that is available at this stage, I can only conclude that there is a serious question to be tried as to the extent to which the ABC has been made aware of the contractual terms upon which the Plaintiff now relies. 19 Finally upon this point, I think there is substance in what Mr Blackburn says, namely, that if the ABC did not know of the alleged terms with which it is said to be interfering before this application was brought, it has been made aware of them during the course of the application and does not proffer any undertaking that it will not do anything to bring about interference with those terms. 20 As to whether there is a serious question to be tried that the publication of the Denton programme and the Lateline programme will constitute a breach of confidential information or material, Mr Dawson asserts that, on his instructions, some 85% of the material to be published in the ABC programmes has already been published in News Limited publications. Mr Blackburn strenuously denies that assertion. 21 I have nothing more than assertion and denial on both sides. Even if the publication of certain material in newspapers was proved – and I can see that, even as I speak, some newspapers are being brought into Court – that is of very limited assistance because I do not know, and it does not seem that I am able to be informed of, the confidential material said to be contained in the relevant ABC programmes, so that I cannot make any determination as to whether what is said to have been published already is a publication of what is alleged to be confidential material in the ABC programmes. 22 As I say, it seems to me from the exchange of e-mails that have passed between the ABC, or the producers of the programme, and the Plaintiff, that the ABC is conscious that confidentiality in the material to be used in the Denton programme is regarded by the Plaintiff as highly confidential and that the ABC has some obligation to protect that confidentiality. That evidence seems to me to support sufficiently a conclusion that there is at least a serious question to be tried as to whether the material which the Plaintiff seeks to protect is truly confidential and is worthy of protection. 23 The issues can be dealt with at this stage only in the most unsatisfactory and sketchy way and what I am saying now is quite possibly entirely wrong, but that is the result of the fact that I have very little to go on other than assertion and counter-assertion with some slight colour of evidence in support of the Plaintiff's case. 24 I think that the essential considerations will, therefore, turn on the balance of convenience and whether damages are an adequate remedy if it be found that the publication of the material on the Denton programme and the Lateline programme constitute a tort or the breach of confidence of which the Plaintiff complains. 25 As to the balance of convenience, Mr Dawson says that the Denton programme and the Lateline programme are now very close to broadcast and that it would be manifestly inconvenient for those broadcasts to be frustrated. 26 It seems to me that the interruption of programmes by reason of injunctions at the last moment is a matter with which broadcasters on radio and television have to contend as part of their ordinary activities. Such injunctions are by no means unheard of or rare. 27 On the other hand, if the broadcasts go ahead and it transpires that the material does breach confidentiality and does bring about a breach of contractual relations between the Plaintiff and MUP, there is a high risk that the Plaintiff will suffer damage which of its nature will be extremely difficult, if not impossible, to calculate in money terms. The value of exclusive material of a high political content and of great interest to the public is very difficult to measure, particularly where one is looking at sales of newspapers and similar economic interests. 28 It seems to me that the balance of convenience, bearing in mind particularly the inadequacy of damages, is in favour of granting the injunction. 29 I have not overlooked the argument which Mr Dawson advanced, that there has to be a final right in issue in the proceedings and that proceedings are not sustainable simply to obtain an interlocutory injunction and nothing further. However, I take into account the fact that the contractual right of the Plaintiff, if it exists in the terms for which the Plaintiff contends, is exercisable once and for all, as it were, over this coming weekend. If that right is devalued entirely, then the benefit of the Plaintiff's contract will be lost once and for all. If the Plaintiff were left to its remedy in damages rather than having an injunction, then the Plaintiff would have to prove what damages it suffered by reason of publication over this weekend and would have to prove those damages on a final basis. The right in question in the proceedings is a right which would be exercised either over this weekend or not at all. Correspondingly, it is either protected over this weekend or it is lost once and for all. In those circumstances, it seems to me that what is in issue here is the protection of rights which may properly be the subject of final orders and, therefore, of interlocutory orders. 30 For those reasons I have determined that the injunction should be granted. 31 Upon the Plaintiff, by its Counsel, giving the usual undertaking as to damages, I order that the Australian Broadcasting Corporation and Zupreda's Other Films Pty Limited and each of them be restrained until 4pm on Monday, 19 September 2005, from broadcasting or causing to be broadcast the programmes Enough Rope and Lateline featuring an interview with Mark Latham or from broadcasting or causing to be broadcast any extract from the said interviews with Mr Latham in either of those programmes. On application to dissolve the injunction granted to restrain the broadcast of Enough Rope interview with Mark Latham going to air on Thursday 15 September 2005 32 What has happened over the last two hours illustrates the truism that one story is good until the other side is told. 33 An hour ago I granted an injunction restraining the ABC from broadcasting the Denton programme in which the interview with Mr Latham was featured. The essential reasons for granting that injunction were that, through scarcity of evidence, both the terms of the contract alleged between the Plaintiff and MUP and content of the alleged confidential material about to be published by the ABC were very problematic. Having regard to the fact that the decision essentially turned upon the balance of convenience, it seemed to me that the benefit of the doubt should be given to the Plaintiff. 34 As soon as I had granted the injunction, Mr Dawson made an application to dissolve it on the basis of evidence which he had just had brought into Court and on the basis of evidence which his instructing solicitor, Mr Collins was able to give. 35 The documentary evidence comprised a number of newspapers which were published by the Plaintiff or its associated companies: two editions of The Australian and one edition of The Daily Telegraph. Those papers had been published over the last two days and they contained exclusive articles about what Mr Latham had said in his book which is about to be published. 36 Mr Collins saw the Denton programme being recorded and by reference to his own recollection as well as to the newspapers he was able to say with some considerable precision what topics had been discussed by Mr Latham in the Denton interview and whether those topics had been covered in the newspaper articles. The substantial accuracy of Mr Collins' recollection has not been challenged and I accept his evidence. 37 I am satisfied that a large majority of the subject matter discussed by Mr Latham in the Denton programme has already been published in newspapers by the Plaintiff or its associated companies and published in radio items broadcast over the last two days. 38 The commercial value to the Plaintiff of material contained in the Denton interview has, it seems to me, largely been utilised already by the Plaintiff in these newspaper articles. There will be no element of novelty to the public in a great deal of the material in the Denton interview which has already been covered in the publications of the Plaintiff. 39 I have no doubt that there will be some matters revealed in the Denton interview that are not contained in the material which has already been published. I have no doubt that the actual words used by Mr Latham to Mr Denton on certain topics will be different from the words he used to describe the same topics to the Plaintiff's journalists and which he used in the extracts of the book to be published. However, confidential information by its very nature lies in the substance of the information and not in nuances of the words used to describe the information. 40 It seems to me, therefore, that the commercial value of the material which the Plaintiff seeks to prevent being published in the Denton interview has already been utilised by the Plaintiff, and has been very much diminished, by the publications in the Plaintiff's papers. 41 There is still the difficulty of determining the strength of the Plaintiff's case as to whether there is a serious question to be tried that the publication of the Denton interview would interfere with contractual rights of the Plaintiff. There is still the difficulty as to the extent to which the ABC knows of those contractual rights. 42 However, it seems to me that the commercial damage which the Plaintiff may suffer by reason of publication of the Denton interview will be very much less than I was led to believe would be the case prior to seeing the publication of the material in the Plaintiff's own newspapers. Because those publications disclose a great deal of the material in the Denton interview, the balance of convenience has dramatically shifted since I granted the injunction an hour ago, so that it now seems to me that greater hardship is occasioned to the ABC by the prevention of the broadcast of the Denton interview than is caused to the Plaintiff by the publication of material which must have little remaining novelty to the reading public. 43 On the balance of convenience in the light of the publication of material which has occurred, I think that the injunction which I have granted should now be dissolved. That is the order which I now make. 44 I should make it clear that the application by Mr Dawson for a dissolution of the injunction was entirely confined to the Denton programme and not the Lateline programme. On application to dissolve the injunction granted to restrain the broadcast of the Lateline interview with Mark Latham going to air on Thursday 15 September 2005 45 I intend to dissolve the injunction granted to restrain the broadcast of the Lateline programme, essentially for the same reasons as I gave in dissolving the injunction restraining broadcast of the Denton programme. It seems to me that the commercial value of the material remaining to be published by the Plaintiff which may also be covered in the Lateline programme, has already been substantially devalued, if not dissipated, by what has already been published by The Australian and in various associated newspapers. There is, in my view, no critical distinction in this case by reason of the fact that the subject of protection is the exclusivity of an interview with The Australian. 46 It seems to me that there is a very strong inference that the commercial or confidential value of this particular information is in its novelty rather than whether one person rather than another has that information by right of an exclusive interview. In other words, the fact that the "cat is out of the bag", to use a colloquial phrase, destroys in large part the value of the material still remaining to be published by the Plaintiff despite the fact that it is said to be given pursuant to an exclusive interview right. 47 I do not think that the decision in this case has any precedent for any other threatened invasion of confidential or contractual rights in the arena of public broadcasting, or in the media generally. This case has its own peculiar facts which set no precedent in any other case. It is rare and somewhat strange that a plaintiff comes to restrain the publication of material said to be confidential when it has itself previously put into the public domain so much of that very same material. 48 I do not need to repeat in any more detail the reasons which I have given in relation to the application in respect of the Denton programme in the context of this present application. 49 Accordingly, the injunction granted in relation to the broadcast of the Lateline programme is now dissolved. – oOo – 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.