O'Shane v Channel Seven Sydney Pty Ltd [2005] NSWSC 1358

New South Wales Supreme Court

CITATION : O'Shane v Channel Seven Sydney Pty Ltd [2005] NSWSC 1358

HEARING DATE(S) : 8 December 2005

JUDGMENT DATE : 9 December 2005

JURISDICTION : Common Law

JUDGMENT OF : Michael Grove J at 1

DECISION : Contempt proved; apology accepted, costs ordered

CATCHWORDS : CONTEMPT - BREACH OF INTERLOCUTORY RESTRAINING ORDER - LARGE MEDIA ORGANIZATION - PUBLICATION IN BREACH OF ORDER BY FUNCTIONARIES UNAWARE OF IT - PROMPT ACTION TO REMEDY PROCEDURAL GUIDELINES TO AVOID REPETITION - IMMEDIATE APOLOGY AND ACKNOWLEDGEMENT OF BREACH - ACCEPTANCE OF APOLOGY AND PAYMENT OF COSTS ADEQUATE SANCTION

CASES CITED : Commissioner for Fair Trading v Youngdown Pty Limited [2003] NSWSC 646

PARTIES : Dr Patricia O'Shane v Channel Seven Sydney Pty Limited

FILE NUMBER(S) : SC 14836/05

B. McClintock SC and R. Weaver (Plaintiff) COUNSEL : T. Blackburn SC and A. Dawson (Defendant)

Aitken McLachlan Thorpe (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

9 December 2005

14836/2005 DR PATRICIA O'SHANE v CHANNEL SEVEN SYDNEY PTY LTD

JUDGMENT

1 HIS HONOUR: On 17 October 2005 the plaintiff in the exercise of her office as a magistrate in the Local Court dismissed the charge of offensive behaviour against a man alleged to have said to police "Youse are fucked" and ordered the prosecutor to pay the defendant's costs in the sum of $2,600. In the course of giving her reasons for decision Magistrate O'Shane is reported to have observed, inter alia, that she was not sure that there is such a thing as community standards any more (about such language). 2 The decision was apparently thought to be of newsworthy interest. The defendant is the holder of a television broadcast licence (Channel 7). On 18 October, what is described as a news crew visited the plaintiff's residence. Her description of events thereafter is contained in an affidavit affirmed on that day and filed in support of injunctive relief, the grant of which is foundational to the motion now before the Court. By Statement of Claim the plaintiff has sought damages for trespass to her land. In the course of the alleged commission of trespass by a member or members of the news crew, television film footage of the plaintiff and her residence was taken. This relevant film will be referred to as "the vision". 3 What has been recorded by the camera is transferred to a large computer hard drive called the central news server. The recorded product of the camera is downloaded, without editing, onto this server. The content may be accessed by authorised personnel within the defendant's organisation. I would assume that they are equipped with necessary passwords or codes to enable such access. In routine procedure the vision was downloaded on to the central server. 4 The defendant has staff involved in what I would describe as conventional news broadcasting and other staff engaged in public affairs programmes, significantly in this instance, one titled "Today Tonight". 5 During 18 October there were communications between junior counsel for the plaintiff and Mr Willis, head of news at Channel 7 in Sydney. Mr Willis determined not to use the vision in the news broadcast, the first of which was scheduled to commence that night at 6 pm. He did not inform counsel that he had made this decision. 6 Mr Willis was aware of the possibility that the plaintiff would approach the Court and he did advise producers of the news programme that this may happen. 7 At about 4 pm he learned that the plaintiff was going to approach the Court. At approximately 5.10 pm the duty judge ordered restraint against the defendant from broadcasting the vision or any part of it. I need not pause to recite the whole of the terms of the formal order. Mr Angus, a partner in the firm of solicitors acting for the defendant, attended the hearing of the application by the plaintiff to the duty judge. 8 At 5.15 pm Mr Angus informed Mr Willis of the grant of the injunction. Steps were taken, including the physical attendance of lawyers to the newsroom to ensure that the news broadcast would not breach it. No part of the vision was broadcast in the news but in an item it was mentioned that the plaintiff had obtained the injunction. As I have said, the news was put to air commencing at 6 pm. 9 The "Today Tonight" programme was scheduled to and went to air at 6.30 pm immediately after the news was concluded. In an item concerning the decision in the Local Court the previous day, the vision was broadcast. 10 Exhibit A is a video tape containing both the news and "Today Tonight" content. The latter includes comments from persons concerning the decision on 17 October. A lot of these are unidentified people engaged in what is commonly referred to as "vox pop". There are also remarks by the lawyer who appeared for the defendant before the Local Court and a person skilled in social analysis and commentary. The segment broadcast in "Today Tonight" extends over a period of about 4 ½ minutes within which the vision occupies about 5 seconds. 11 By 6.40 pm the "Today Tonight" segment had been broadcast and the injunction breached by so doing. I accept that no one involved in that production or responsible for the broadcast had been aware of the injunction beforehand. However, news staff who were aware of the injunction, saw the broadcast and immediate steps were taken to avoid any further breach. Directions were given (and complied with) to remove the vision from scheduled re-broadcast of "Today Tonight" by associated stations in Adelaide and Perth and from the Sky News cable and satellite service. 12 The existence of the injunction and the apparent breach by the "Today Tonight" segment broadcast was communicated to organisations which I would infer are competitors with the defendant. Information was conveyed to Networks 9, 10 and the ABC as well as to News Limited. It was not suggested that there has been any further broadcast of the vision since the occasion shortly after the news on 18 October. 13 On 21 October a letter was despatched to the plaintiff care of her solicitors apologising to her on behalf of the defendant and signed by Mr Meakin, the head of news and public affairs. Mr Meakin's affidavit sets out precise detail of matters which I have sketched. It also describes the post breach activity. There is no purpose to be served in seeking to summarise the whole content of his affidavit. It was not challenged and I accept it. 14 By motion filed on 24 October the plaintiff sought a declaration that the defendant was in contempt of the restraining order made on 18 October. The motion was returned instanter and the defendant consented to the making of a declaration of its commission of contempt. 15 The issue now before the Court is the course which should be taken to punish or otherwise deal with that contempt. 16 In addition to the urgent activity on the evening of 18 October which I have described, Mr Meakin's affidavit details the review of procedures and consequential measures which have been undertaken to avoid any future like occurrence. 17 I consider that there is much force in the submission of Mr Blackburn SC for the defendant that the breach could be perceived to have come about because the defendant's procedures had not kept pace with advances in higher level technology, specifically the installation and use of the central news server. His statement that prior to the installation of it there would have been a need for specific request, for example if "Today Tonight" wanted to use vision acquired by the news function, was not challenged. Under that procedure the restriction would become known because the recipient of the request would be able to inform the requester and compliance would thereby take place. This physical request does not occur now with multiple functionaries having access to the server but I am satisfied that the defendant has made bone fide arrangements to the extent of conceivable practicality to prevent any repeat of what happened in the present instance. 18 I am satisfied that the contempt was neither wilful nor contumacious. What is at stake is the appropriate action for the Court to take in order to discipline the disobedience of one of its own orders. 19 On each occasion that the motion has been before the Court, the defendant has, through counsel, made public apology. I accept that those responsible for the breach are genuinely regretful for what has, I find unintentionally, happened. I consider that this is manifest particularly in the strenuous efforts to prevent recurrence both immediately after the breach and in the thorough review of procedures. 20 It is a further indication of good faith that the defendant expressly submits to an order that it pay the plaintiff's costs of the motion on an indemnity basis. 21 In an appropriate case, it suffices to declare a contempt proved, for the Court to accept a relevant apology and to indemnify the moving party as to costs incurred' see Commissioner for Fair Trading v Youngdown Pty Ltd [2003] NSWSC 646. 22 To formally deal with the prayers in the motion: