Heartcheck Australia Pty Limited v Channel 7 Sydney Pty Limited [2007] NSWSC 555

New South Wales Supreme Court

CITATION : Heartcheck Australia Pty Limited v Channel 7 Sydney Pty Limited [2007] NSWSC 555

HEARING DATE(S) : 28 May 2007

JUDGMENT DATE : 31 May 2007

JURISDICTION : Common Law

JUDGMENT OF : Michael Grove J at 1

DECISION : Injunctions dissolved

CATCHWORDS : DEFAMATION - INTERLOCUTORY INJUNCTION RESTRAINING INTENDED TELEVISION BROADCAST - SUBJECT MATTER OF CURRENT PUBLIC INTEREST AND CONCERN - WHETHER CORPORATE PLAINTIFF HAS CAPACITY TO SUE - COSTS

LEGISLATION CITED : Corporations Act 2001 Defamation Act 2005

Australian Broadcasting Corporation v O'Neill [2006] 80 ALJR 1672 Bonnard v Perryman 1891 2 Ch 269 CASES CITED : Church of Scientology of California Incorporated v Reader's Digest Services Pty Limited (1980) 1 NSWLR 344 Hemmes v Seven Network Ltd [2000] NSWSC 246 Lincoln Hunt (Aust) Pty Limited v Willessee (1986) 4 NSWLR 457 Redeemer Baptist School v Glossop [2006] NSWSC 1201

PARTIES : Heartcheck Australia Pty Limited v Channel 7 Sydney Pty Limited

FILE NUMBER(S) : SC 2007/12639

COUNSEL : D. Caspersonn (Plaintiff) T. Blackburn SC with R. Hardcastle (Defendant)

SOLICITORS : Paul Bard Lawyers (Plaintiff) Mallesons (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Thursday 31 May 2007

2007/12639 HEARTCHECK AUSTRALIA PTY LIMITED v CHANNEL 7 SYDNEY PTY LIMITED

JUDGMENT 1 HIS HONOUR: On Friday 25 May 2007 Heartcheck Australia Pty Limited (Heartcheck) obtained an order restraining Channel 7 Sydney Pty Limited (Channel 7) from broadcasting a segment of a proposed television programme entitled Today Tonight until noon on 28 May 2007. On that date the matter was returned before me as Duty Judge. Heartcheck's legal representatives were provided with a viewing of the segment in its then extant form. Consequently, an application was made to amend the originating process by adding a further plaintiff Jacov Vaisman (Vaisman) alleging that certain defamatory imputations concerning him were contained in the intended broadcast. The amendment was permitted. 2 At the conclusion of the hearing I ordered that the previously granted injunction be dissolved and declined to grant similar relief to either plaintiff and indicated that, although the matter was interlocutory, I would publish an outline of my reasons. These are they. 3 I adopt the approach articulated by Hunt J in Church of Scientology of California Incorporated v Reader's Digest Services Pty Limited (1980) 1 NSWLR 344 @ 349 viz: "I accept as settled law that 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." 4 Nothing in the subsequent majority judgments in Australian Broadcasting Corporation v O'Neill [2006] 80 ALJR 1672 detracts from the validity of that précis. 5 The action by Heartcheck faced an initial hurdle which in my view was not overcome. The Defamation Act 2005 applied and relevant conditions included: "9 Certain corporations do not have cause of action for defamation (1) A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the publication. (2) A corporation is an excluded corporation if: (a) the objects for which it is formed do not include obtaining financial gain for its members or corporators, or (b) it employs fewer than 10 persons and is not related to another corporation, …….. (4) In determining whether a corporation is related to another corporation for the purposes of subsection (2) (b), section 50 of the Corporations Act 2001 of the Commonwealth applies as if references to bodies corporate in that section were references to corporations within the meaning of this section." 6 The proviso in subsection (1) legislates an exception to a general rule and in accord with the ordinary canons of statutory interpretation, the onus of demonstrating that the exclusion applied would be on the party asserting it, in this case Heartcheck. 7 Heartcheck sought to rely on s 9 (2)(b). It was not suggested that s 9 (2)(a) could be applicable. On the interlocutory hearing evidence as to the nature of the engagement of persons in Heartcheck's operations was not presented but submissions were made on the basis, without concession on the part of Channel 7, that there were fewer than ten among the large number of medical practitioners and others who were "employed" in the sense of s 9 (2)(b). Were it necessary to express a conclusion, I would be of the same view as Nicholas J in Redeemer Baptist School v Glossop [2006] NSWSC 1201 that the relevant issue is whether or not, as a matter of fact, the number of persons whose services the corporation used in its business were fewer than ten. Section 9 (2) (b) has two requirements, the second being that Heartcheck was not "related to another corporation". 8 Subsection (4) directs attention to s 50 of the Corporations Act 2001 viz: " CORPORATIONS ACT 2001 – SECT 50 Related bodies corporate Where a body corporate is: