Smith v TCN Channel Nine Sydney Pty Ltd [2006] NSWSC 935

New South Wales Supreme Court

CITATION : Smith v TCN Channel Nine Sydney Pty Ltd [2006] NSWSC 935

HEARING DATE(S) : 21 August 2006, 24 August 2006

JUDGMENT DATE : 12 September 2006

JURISDICTION : Common Law

JUDGMENT OF : Rothman J at 1

EX TEMPORE JUDGMENT DATE : 08/21/2006

DECISION : Order that each party pay his or its own costs of and incidental to the proceedings.

CATCHWORDS : Common Law - defamation - urgent injunction - current affairs television program - undertaking by Counsel - whether defendant explained program - whether reasonable and understandable to bring proceedings - costs - whether costs must favour party who successfully resists orders

LEGISLATION CITED : Civil Procedure Act 2005 Uniform Civil Procedure Rules

PARTIES : A - Anthony C Smith R - TCN Channel Nine Sydney Pty Ltd

FILE NUMBER(S) : SC 14117/2006

COUNSEL : A - Mr R K Weaver R - Mr B McClintock SC

SOLICITORS : A - Ms Annette Wilson R - Mr Kiah Hamilton Wood, Mr M O'Brian

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

Rothman J

12 September 2006

ANTHONY C SMITH v TCN CHANNEL NINE SYDNEY PTY LTD 14117/2006

JUDGMENT 1 HIS HONOUR: On the evening of 21 August 2006, the Court was approached for urgent interlocutory orders seeking to prevent the broadcast of a story on A Current Affair which was to deal with the plaintiff. 2 The plaintiff had been the subject of a story in the Sunday Telegraph on 20 August 2006, in relation to conduct said to have been done by someone who was alleged to have the name and the occupation of the plaintiff in these proceedings. The plaintiff alleges a number of imputations arise from the Telegraph article. 3 During the course of 21 August 2006, the plaintiff became aware that A Current Affair was seeking to do a story related to the article in the Sunday Telegraph. Contact was made between Mr Weaver, of Counsel, and a Mr Darren Wicks, the Executive Producer of the program. Mr Weaver's instructing solicitor, Ms Annette Wilson war party to that conversation. The terms of that conversation, The terms of that conversation are before the Court in an affidavit of Ms Wilson. I do not repeat the terms of that conversation. It is sufficient, for my purposes, to indicate that Mr Wicks confirmed that a story was being done "based on the Sunday Telegraph article" and that he, Mr Wicks, had spoken to the plaintiff and invited him onto the program to give his denial. 4 I indicated, in the judgment issued on 21 August 2006, that, on the material before me, I was not convinced that there was a serious question to be tried or, perhaps more accurately, that there was a reasonably based fear that a defamation would occur, given that which had been the subject of submissions before the Court. 5 I had also made it clear that if the material to be broadcast was in or to the effect of that which had been published in the Sunday Telegraph article (referred to during the proceedings as the Daily Telegraph) I would have had little hesitation in granting the injunction. 6 That which was the subject of submissions before the Court on Monday evening needs to be explained. During the course of the submissions and on account of that which had been initially put to me by Mr McClintock SC for the defendant, I suggested that the parties seem to be "ships passing in the night" and adjourned the proceedings for a very brief time in order for the parties to confer. Prior to that Mr McClintock SC had said: "Your Honour, it would be a very grave mistake to think that Channel Nine would go into bat for the Telegraph. In fact, the theme of our program is going to be the Telegraph got it wrong. It wasn't Mr Smith, that is we're not going to say it was actually him in the chat room, we're going to say he was the victim of a hoax, on my instructions." 7 Ultimately, agreement could not be reached between the parties. Mr McClintock SC gave a formal undertaking (the previous statement was not an undertaking) that the story would include these words or words to this effect: "This Tony Smith emphatically denies he is the Tony Smith involved and claims he too is a victim and has been set up." 8 Tendered in the later proceedings on costs was the broadcast on Channel Nine Sydney Pty Ltd; being the story to which these proceedings relate. It is inappropriate for me to make any comment on the nature of that broadcast. Further, even the fact that I make no comment ought not be read as, itself, a comment or criticism of the broadcast or of either party. Nor is it appropriate for me to comment on whether the submissions put to me by Mr McClintock, on instructions, namely, that the direction of the story was to the effect that the plaintiff was "the victim of a hoax", was the overall impression given by the story. 9 Nevertheless, that which is clear is that the defendant was given the opportunity of explaining to the plaintiff, before proceedings were commenced, all that was put by Mr McClintock SC during the Court proceedings. They chose not to do that. The conduct of the plaintiff in seeking the interlocutory relief was both reasonable and understandable in circumstances where the plaintiff was on notice that a broadcast would be based upon the Sunday Telegraph article. The fundamental basis upon which the injunction was refused was the statement made to the Court by Mr McClintock, on behalf of his client, which, in the circumstances, was an acknowledgement which could have been made to the plaintiff during the first phone call. 10 The jurisdiction of the Court to grant costs originally emanates from its status as a superior court of record. The current legislative provisions are contained within s.98 of the Civil Procedure Act 2005, which provide that costs are in the discretion of the Court and that the Court has full power to determine by whom, to whom and to what extent costs are to be paid. That power is made subject to the rules of the Court, which does not limit the discretion. However, such a discretion must be exercised judicially. No statutory discretion is totally unfettered and all such discretions must be exercised on a basis that is not extraneous to the objects and purpose of the Act and statutory provision. The ordinary principle, which should be departed from only for very good reason, is that costs generally follow the event (see Rule 42.1 of the UCP Rules). In those circumstances, a successful party should not be deprived of their costs without good reason. 11 In this matter, as I made clear on 21 August, absent the statements from the defendant, through its Counsel, there was a real likelihood that orders of the kind sought by the plaintiff would have been made. As a result of the statements made on behalf of the defendant, I was not prepared to hold, even to the extent of finding that there was a serious question to be tried, that whatever was broadcast by the defendant would be defamatory. 12 In those circumstances, the submission by the defendant, including the undertaking, as to the gist of the broadcast, replaced formal undertakings and/or orders of the Court. The defendant could have, but did not, inform the plaintiff of all of these facts in the telephone conversations between the parties during the course of 21 August 2006. "Following the event" does not necessarily mean an order for costs must correlate with the obtaining of orders or the failure to obtain orders. 13 In all of the circumstances, I exercise my discretion not to award costs and each party will bear their own costs of and incidental to the summons and interlocutory proceedings before me on 21 August 2006. **********