Network Ten Pty Ltd v Rowe [2006] NSWCA 4

Reported Decision : 149 IR 273

New South Wales Court of Appeal

CITATION: Network Ten Pty Ltd v Rowe [2006] NSWCA 4 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 3 January 2006

JUDGMENT DATE: 4 January 2006

JUDGMENT OF: Santow JA at 1

DECISION: Notice of Motion dated 3 January 2006 dismissed and costs of the motion are costs in the appeal.

CATCHWORDS: PRACTICE AND PROCEDURE – Equity – Interlocutory injunction – Principles upon which unsuccessful plaintiff may apply for interlocutory injunction pending resolution of appeal – Balance of convenience issues – Interlocutory relief not allowed – Relevance of early appeal hearing.

CASES CITED: Jesasu Pty Limited v Minister for Mineral Resources (1987) 11 NSWLR 110

PARTIES: NETWORK TEN PTY LIMITED (Claimant/Appellant) Jessica ROWE (Opponent/Respondent)

FILE NUMBER(S): CA 40001/06

COUNSEL: D P Robinson, SC (Claimant/Appellant) R M Goot, AM, SC/ P Braham (Opponent/Respondent)

SOLICITORS: Black Dawson Waldron (Claimant/Appellant) Harmers Workplace Lawyers (Opponent/Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 50187/05

LOWER COURT JUDICIAL OFFICER: Simpson J

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40001/06

SANTOW JA

4 JANUARY 2006 NETWORK TEN PTY LTD v Jessica ROWE Judgment 1 SANTOW JA: INTRODUCTION: This is an application for interlocutory relief by way of interim injunction pending the determination of an appeal brought by Network Ten Pty Limited ("Channel Ten"). If granted the defendant and now respondent, Jessica Rowe ("Miss Rowe"), who successfully resisted earlier final injunction and related proceedings brought on an urgent basis by Channel Ten before Simpson J would, during the pendency of that injunction, be denied the fruits of her victory, in particular she would be prevented from performing her contract as a presenter, journalist, and/or program host with rival Nine Network Australia Pty Limited ("Channel 9"). Channel 9 is not a party to any of these proceedings. 2 The existence of that contract with Channel 9 is now known to the public from publicity so far (see in particular Application Book ("AB") 32 containing the Channel 9 press release of 18 December 2005. Likewise publicly known is the joint intention of Channel 9, and Miss Rowe, that Miss Rowe will initially be the presenter and co-host of Channel 9's Today Show (see, for example, AB 41). According to Miss Rowe's unchallenged evidence, that contract requires her "to go on air" prior to the beginnings of the rating season of 30 January 2006 as the Today Show co-host (AB 62 affidavit of Miss Rowe paras 34 and 36). 3 What is at issue is Miss Rowe's capacity now to promote her role with Channel 9 and, in particular, to have the preparation time to allow her to perform on air from 30 January 2006 on the Today Show; that is to say during the relatively short period it would take from now to dispose of an appeal set down for urgent hearing on 10 January 2006 by my earlier orders. It follows that, expedition having been granted for such appeal in accordance with the wishes of both parties, it is reasonable to assume that judgment should follow shortly thereafter, in the absence of unforeseen circumstances. 4 That relatively short time-frame of just over a week, and the fact that Miss Rowe is on long service leave from Channel Ten until 16 January 2006 (by which time any appeal judgment may well have been delivered) are significant amongst the factors bearing on any prejudice to the parties. In particular, they allow a comparison of the degree of that prejudice for each party in granting or refraining from granting the interlocutory relief sought. This interim relief is, according to Channel Ten (but disputed by Miss Rowe) directed at preserving the status quo. I shall return to that issue later. 5 The primary judge, Simpson J, declined to grant any interlocutory relief on 30 December 2005 giving brief reasons, which included the possibility of recourse to a single judge of this Court. This followed her judgment denying final relief delivered earlier that day under conditions of urgency. It was preceded by undertakings from 23 December 2005 which had preserved the status quo though only to 31 December 2005. The latter was the date which the primary judge determined on Miss Rowe's submission was the expiry date of that contract, a matter contested then and on appeal by Channel Ten. 6 In earlier concluding against Channel Ten in its application for final injunctive relief Simpson J did so primarily on the basis of the construction she had reached of Miss Rowe's employment contract. She relied in particular on a combination of clause 3 (entire agreement as to "entitlements") and clause 4 (setting out remuneration entitlements for two years only from 1 January 2004 to 31 December 2005). That contract, dated 10 December 2003, was the last in a series of six contracts, in varying form, though with some common elements dating back to 1995. The primary judge construed that contract, not as pressed by Channel Ten as an evergreen contract subject only to termination upon 26 weeks' written notice pursuant to clause 9 thereof, but as having expired on its own terms on 31 December 2005, it not having been renewed or replaced. 7 Channel Ten's grounds of appeal and orders sought are now contained in a notice of appeal as follows: GROUNDS: 1. The trial judge erred in her construction of the contract of employment between the parties in that she found that the contract came to an end on 31 December 2005 by effluxion of time. 2. The trial judge should have found as a matter of construction that the contract was of indefinite duration but could be determined, relevantly, by either party giving at any time 26 weeks written notice. ORDERS SOUGHT: 1. A declaration that the contract of employment dated 10 December 2003 between the Appellant and the Respondent (the 'Employment Contract') is in full force and effect. 2. A declaration that the Respondent is required under the employment contract to give the Appellant 26 weeks notice in writing of the termination of her employment. 3. A declaration that the Respondent has not given valid notice of her employment with the Appellant in accordance with the terms of the Employment Contract. 4. An order that the Respondent be restrained until 19 June 2006 from engaging in or being concerned directly or indirectly with, any business carried on by the Nine Network. For the purpose of this order, the 'Nine Network' includes: Nine Network Australia Pty Ltd and any of its related bodies corporate (within the meaning of the Corporations Act 2001) engaged in the business of commercial television broadcasting. In particular, (without limiting the generality of the foregoing) that the Respondent must not: (a) Perform any services for or be employed directly or indirectly in relation to any business carried on by Nine Network: (b) Produce, appear in or lend her name to, or perform any service in relation to any advertisement or other promotional activity whatsoever; or (c) Write any articles, give any interviews, or render any assistance in relation to the writing of any story for any newspaper or magazine or for any other form of media concerning the provision of her services to the Appellant, or the affairs of the Appellant other than with the written consent of the Appellant. 5. Damages. 6. Interest pursuant to section 100 of the Civil Procedure Act 2005 (NSW). 7. Such further or other orders as to the Court seem fit. 8. Costs. 8 I note that no notice of contention has been foreshadowed by the respondent. 9 The proper construction of a contract is to be characterised as a question of law, or conceivably mixed law and fact in so far as the latter may embrace extrinsic evidence directed to resolving any ambiguity. Here I should note that the primary judge found no necessity to resort to such evidence while finding that it pointed to the same conclusion (judgment [42]). Thus, while no error of legal principle is advanced by the appellant, its appeal in substance is that the construction reached by the primary judge was legally erroneous, being clearly a question of law.