Zacharia v Channel Seven Sydney [2006] NSWSC 663

New South Wales Supreme Court

CITATION : Zacharia v Channel Seven Sydney [2006] NSWSC 663 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 26 June 2006

JUDGMENT DATE : 26 June 2006

JURISDICTION : Equity

JUDGMENT OF : Campbell J

EX TEMPORE JUDGMENT DATE : 06/26/2006

DECISION : Interlocutory injunction refused. Plaintiff to pay defendant's costs.

CATCHWORDS : DEFAMATION – interlocutory injunction to restrain – INJUNCTIONS – interlocutory – to restrain alleged defamation – PRACTICE – costs – defendant attending court, before being served with any process, but after having been informed an injunction would be sought against it – injunction then refused

Bonnard v Perryman [1891] 2 Ch 269 CASES CITED : Chappell v TCN Channel 9 (1988) 14 NSWLR 153 Church of Scientology of California Incorporated v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344 National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Limited [1989] VR 747

Dr Michael Zacharia - Plaintiff PARTIES : Channel Seven Sydney Pty Limited - First Defendant Vivian Valvano - Second Defendant

FILE NUMBER(S) : SC 13061/06

COUNSEL : B R McClintock SC - Plaintiff T D Blackburn SC - First Defendant

Ebsworth & Ebsworth - Plaintiff SOLICITORS : Mallesons Stephen Jaques - First Defendant No Appearance - Second Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST

CAMPBELL J

MONDAY 26 JUNE 2006

13061/06 DR MICHAEL ZACHARIA v CHANNEL SEVEN SYDNEY PTY LIMITED & ANOR JUDGMENT – Ex Tempore 1 HIS HONOUR: This is an application brought on at great urgency for an injunction to restrain publication of a television program which is due to go to air in half an hour. 2 The plaintiff is a surgeon. He has been in practice for nearly twenty years now. He is a member of the Royal Australasian College of Surgeons and is engaged in a specialty which involves an area which is, broadly, ear, nose and throat surgery, and head and neck plastic surgery. 3 On Friday of last week, he was confronted in Darwin by a television crew consisting of two camera men, a reporter who identified herself as from Today Tonight and three other women. Two of those women were former patients of the plaintiff. In his presence, at least two of the women made comments about the medical attention that they had received. One the three women made clear that she had a complaint related to medical procedures which were carried out at a Wollongong clinic by a doctor other than the plaintiff. 4 The plaintiff spoke to the reporter for something of the order of half an hour. There is before the Court on today's application only a few fragments of the conversation that transpired between them. 5 Over the weekend the plaintiff saw on television some promotional material, relating to an issue on Today Tonight which is due to be screened this evening. It related to a topic which the promotional material described as "exposing Australia's cosmetic surgery cowboys". It included some video footage which had been taken in Darwin on Friday with voice-over saying "This woman went in for a nose job and he broke both her jawbones and now she can hardly talk". 6 Mr Blackburn of Senior Counsel has appeared today at short notice for Channel 7, the first defendant. While the matter is not run as a full scale interlocutory hearing, Mr Blackburn has been able to put some material before me, and has had the opportunity to make submissions. He accepts that his client is proposing to screen a program which will suggest that some medical treatment given by the plaintiff is in some respect inadequate. 7 Mr McClintock of Senior Counsel seeks an injunction which will delay the screening of the program for just a day or two, so that it is possible to obtain a copy of the program which is proposed to be screened, and consider further the strength of an application for injunction. Insofar as it relates to the television programme itself (rather than the publicity which has proceeded it) it is a quia timet injunction. 8 The law as to the granting of injunctions in defamation cases is now recognised as not being as cut and dried as it was thought to be in the 19th century: Bonnard v Perryman [1891] 2 Ch 269. In Church of Scientology of California Incorporated v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344 at 349-50 Hunt J said: "… the power to grant interlocutory injunctions in defamation cases must be exercised with great caution, and only in very clear cases. A plaintiff must establish that a subsequent finding by a jury that the matter complained of was not defamatory of him would be set aside as unreasonable; that there is no real ground for supposing that the defendant may succeed upon any defence of justification, privilege or comment, and that he, the plaintiff, is likely to recover more than nominal damages only. In particular, questions of privilege and malice are not normally appropriate to be decided upon an interlocutory application. Nor will an injunction go which will have the effect of restraining the discussion in the press of matters of public interest or concern." 9 As the Full Court of the Supreme Court of Victoria held in National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Limited [1989] VR 747 at 772: "We reject any hard and fast rule that an injunction to restrain an undoubted libel must be refused in every conceivable case." 10 Hunt J later held in Chappel v TCN Channel 9 (1988) 14 NSWLR 153 that, while there was always a discretion to grant an interlocutory injunction in an appropriate case, and the principles he himself had referred to in Church of Scientology v Reader's Digest (quoted earlier) should not be regarded as being even rigid rules of practice, the considerations referred to in Church of Scientology v Reader's Digest are still relevant. Still, as his Honour said in Chappell at 163: "… the power to grant interlocutory injunctions will … continue to be exercised with great caution and only in very clear cases." 11 Accepting as I do that there are cases when it can be appropriate to grant an interlocutory injunction to restrain a defamation, I am not satisfied that the present is one of them. As Hunt J pointed out in Chappell v TCN Channel 9 at 163-4 there is a special principle which is involved in the granting of interlocutory injunctions concerning defamation, which takes into account the importance of there being free discussion of matters of public interest and concern. I accept Mr Blackburn's submission that it is a matter of public interest or concern if a person who continues to practise medicine is someone who has rendered services inadequately. 12 I would accept that, on the very limited material there is before me, it is likely that the program will contain imputations defamatory of the plaintiff. At any trial, the substantial contest is likely to be about a defence. Mr Blackburn informs me that the first defendant proposes to defend the program, if sued, on the ground of truth. He tenders some medical reports relating to one of the women concerned, which provides a basis for arguing that she has sustained an injury to her jaw. On the material before me, it is not possible to say that it is unlikely that any such defence would succeed. It is important that, if one applies the prima facie test stated by Hunt J, it is usually for the plaintiff to establish the absence of a ground of defence. 13 I accept that it is a relevant factor to the balance of convenience that if defamatory imputations are made about the plaintiff, which are not able to be justified, then it is unlikely that damages would provide a complete remedy. That is a most important factor in both the question of whether there is a serious question to be tried concerning the prospect of a final injunction being granted to restrain the airing of the program, and also concerning the balance of convenience on the present application. However, the practical guidelines which Hunt J mentioned in Church of Scientology v Readers Digest express the importance, in assessing balance of convenience of the community being able to discuss matters of public interest and concern. I am not persuaded that the balance of convenience favours the grant of an injunction in the present case. 14 On the undertaking of Trish Hobson, solicitor, to pay any fees that might be payable I grant leave to file in Court a Summons in the form which I initial and date today's date together with an affidavit of Michael Zacharia sworn today. 15 I dispense with any further service of the Summons and affidavit. I stand the summons over for further directions on 17 July 2006 before his Honour, Justice Nicholas. * * * * * * * * * *