Supreme Court New South Wales Medium Neutral Citation: Candy v Bauer Media Limited [2013] NSWSC 979 Hearing dates: 20 July 2013 Decision date: 20 July 2013 Jurisdiction: Equity Division - Duty List Before: Pembroke J Decision: See paragraph [23] Catchwords: INTERLOCUTORY INJUNCTION - futility - lack of utility Category: Interlocutory applications Parties: Holly Rachel Candy - plaintiff Bauer Media Limited - defendant Representation: Counsel: A T S Dawson with W R Potter for the plaintiff T D Blackburn SC - for the defendant Solicitors: Kennedys - for the plaintiff Johnson Winter Slattery - for the defendant File Number(s): 2013/222590 Judgment 1The plaintiff is an actress. She is an Australian citizen now resident in the United Kingdom. She lives there with her husband. 2She has made an application today, Saturday afternoon, for an injunction to restrain the defendant from publishing, communicating or referring to certain photographs that were taken of her on a yacht off the Italian coast showing her in an advanced state of pregnancy. I was told that she is five months pregnant. Undertaking as to Damages 3She supports her application with an unusually informal approach to the provision of an undertaking as to damages. There is no evidence about her financial position. I was expected to assume that she was wealthy because of her notoriety and expected to assume that an undertaking could be given by her husband, although he is not a party to the proceedings and not a resident of New South Wales, or a citizen of this country. I was expected to assume he is also wealthy and that, in effect, I could not possibly think otherwise. I know nothing of his financial position and I am not prepared to act on that basis. That, however, is only a minor matter compared to the other difficulties which the application faces. Sequence of Events 4The sequence of events commenced in this way. On the evening of 15 July the plaintiff was informed by her public relations representative that he had been contacted by a source, whose identify has not been revealed, who informed him that photographs of the plaintiff were being circulated. 5On 16 July, a licence in respect of the photographs was granted by Snapper Media Pty Limited to the defendant. On 18 July, following correspondence between the plaintiff's London solicitors, an entity called Xposure Ltd and the solicitors for Snapper Media Pty Limited, the solicitor for Snapper Media wrote to the editor of the defendant informing her that its client's licence in respect of the photographs had been withdrawn and that it no longer authorised publication of the images by the defendant. 6On 19 July, the solicitors for Snapper Media wrote to the London solicitors for the plaintiff and informed them that the defendant was no longer authorised by Snapper Media Pty Limited to publish the photographs of the plaintiff. The defendant took the position that the magazine had already gone to print and that it was not possible to have the photographs removed at that late stage. 7The Sydney solicitor for the plaintiff was instructed at about 6.30pm on Friday night, 19 July. He advised the plaintiff's counsel a little later that evening that he intended to make an application to this Court. Utility & Prejudice 8At a final hearing, the plaintiff may, in due course, be entitled to recover substantial damages for breach of confidence. The issue for me is whether, assuming that there is a serious question to be tried, there is any utility in granting the injunction sought by the plaintiff in the circumstances that have transpired. Those circumstances persuade me that it is now too late to issue the injunction which the plaintiff seeks. 9It may well be that the defendant has acted hastily, possibly even flagrantly, knowing of its potential liability to the plaintiff for breach of confidence. I need not decide that. But the practical reality is that no reasonable means of preventing the widespread distribution and publication of the Woman's Day magazine containing the offending photographs was revealed to me. 10Indeed, the submissions as to what should be done bordered from time to time on the surreal. Woman's Day has approximately 27,870 subscribers who receive the issue by post. The defendant uses a third party mail house to bag, label and lodge subscription copies with Australia Post. The postal subscription copies were received by the mail house at approximately 9am on 19 July and were lodged with Australia Post at approximately 2.30pm on that day. Those postal subscription copies are in the course of distribution and there is no practical means by which the defendant can retrieve them from Australia Post. 11A variety of speculative submissions was put to me as to what might be done to endeavour to prevent the distribution to subscribers of 27,870 copies of the magazine. I cannot see how that can be achieved and I cannot see how I can make any sensible, practical or useful order that might assist that objective. 12In addition to the postal subscription process, the Woman's Day magazine is distributed to approximately 5,000 retail outlets across Australia. After copies of the magazine are bound, they are transported by contractors by road to distribution centres in each state to ensure the magazine is available for sale by retailers on Monday morning. Except for New South Wales and Victoria, each distribution centre throughout Australia is operated by an independent contractor and is not controlled by the defendant. At the distribution centres copies of the magazine are packed and labelled for further distribution to individual retailers according to the quantity required by those retailers. Some of those bundles only contain copies of the Woman's Day magazine, but many of them contain a number of different magazines published by various publishers. Furthermore, to make any attempt to stop the process even more difficult, distribution to retailers is carried out by a range of different contractors and sub-contractors, none of whom was able to be identified in the evidence. 13The process of distribution has occurred in all States at different rates of progress. In Queensland country areas, copies of the magazine were dispatched to the Queensland distribution centre at approximately 5pm on 19 July. Packing of the magazine into retailer bundles commenced at 11am this morning and the magazine has commenced to be transported from the distribution centre to individual retailers throughout Queensland including in mixed bundles. Naturally, it was not possible to identify the retailers to whom the retailer bundles have been transported. Nor was it possible to identify the contractors and sub-contractors engaged in that process of transportation. 14In South Australia and the Northern Territory, copies of the magazine were dispatched to the South Australian distribution centre at approximately 10am on 19 July. Packing of the magazine into retailer bundles commenced at midday and the magazine has commenced to be transported from the distribution centre to retailers throughout South Australia and the Northern Territory including in mixed bundles. 15In Tasmania, copies of the magazine were dispatched to the Tasmanian distribution centres at approximately 6pm on 19 July. Packing of the magazine into retailer bundles commenced at 1pm this afternoon and commenced to be transported from distribution centres to retailers throughout Tasmania including in mixed bundles. 16Just taking those states into account, at this point in time 85,229 copies of the magazine have commenced to be packed into the individual retailer bundles including mixed bundles and distributed to retailers. 17In south-east Queensland, copies for distribution were dispatched to the distribution centre at 1.30pm today. In the New South Wales country areas copies were dispatched to the distribution centre at 1pm today. Copies for distribution in Victorian metropolitan areas were dispatched to the distribution centre at 4pm today and for New South Wales metropolitan areas at 6.30am today. There is no evidence about the state of distribution in Western Australia. 18The plaintiff says that it is not appropriate for the defendant to rely upon the advanced state of distribution of the magazine throughout Australia as a reason for resisting the grant of an injunction because the sequence of events indicates that it commenced that process having been aware since the morning of 18 July of the plaintiff's complaint of breach of confidence. The Defendant's Conduct 19I make it quite clear that the conduct of the defendant is disdainful. It clearly puts a premium on its own commercial advantage ahead of the privacy of the plaintiff. I have no doubt that not all publishers would have acted in the same way. This is particularly so given that the licensor to the defendant notified it that it had chosen to withdraw its licence. The licensor assumed wrongly, it now turns out, that the publication of the photographs by the defendant would not subsequently occur. Pragmatic Considerations 20The question which reluctantly causes me to refuse the application is a pragmatic one. There is a fundamental principle under which this Court operates. That principle is that orders should only be made where they can be enforceable; where they can reasonably achieve the objective which is intended. If orders are made which lack utility, the effect will be to reduce the respect of the public for orders of the Court. There is simply no point making orders which are futile in the circumstances. 21I do not accept the argument that in some way it is a ground for granting the injunction, that by making orders the Court may at least reduce the number of copies of the magazine containing the photographs which are distributed to the public. On the evidence before me this afternoon, over 100,000 copies of the magazine will be distributed. It is impossible to see how any of them could be prevented from being read and disseminated. If the objective of the plaintiff is to protect her own opportunity to reveal the fact of her pregnancy at a time of her choosing, then that opportunity has been lost by the events which have occurred. There is no point in restraining the defendant from further distributing copies that remain as part of the print run for this issue. 22I make it clear that I am abundantly satisfied there is a serious question to be tried as to the plaintiff's underlying cause of action. She will, however, have to address that cause of action in a claim for damages. The conduct of the defendant, having had notice since 18 July of her claim, may well be regarded as exacerbating the situation. It may well enhance her claim for damages. That will be a matter for the judge at a final hearing. Orders 23For those reasons I dismiss the application for injunctive relief. It is appropriate in the circumstances that the costs of the application be reserved to the final hearing particularly having regard to some of the comments that I felt compelled to make about the defendant's conduct. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 July 2013