Carol Anne Kidu v Hollie Fifer [2016] NSWSC 982

Supreme Court New South Wales

Medium Neutral Citation: Carol Anne Kidu v Hollie Fifer [2016] NSWSC 982 Hearing dates: 15 - 17 June 2016 Date of orders: 08 July 2016 Decision date: 08 July 2016 Jurisdiction: Equity Before: Rein J Decision: See [83] Catchwords: EQUITY- Injunction- Plaintiff seeks permanent injunction to stop the defendants from exhibiting in public, as part of a documentary, film footage taken of the plaintiff with her knowledge and agreement

CONTRACT: Plaintiff asserts a binding contract made prior to the first filmed interview and an implied term of that contract that the first defendant will not use the footage obtained for any purpose other than as a student assignment documentary- HELD: The arrangement made shortly before 7 March 2012 in relation to the interview by the first defendant of the plaintiff and its filming did not give rise to a legally enforceable agreement

EQUITY: Unconscionable Conduct- Plaintiff asserts that the first defendant obtained the footage on the basis it was for a student assignment documentary and that the defendants' use of the footage for a documentary for public release on a topic different to that which was originally contemplated amounts to unconscionable conduct on the part of the first defendant (and hence all defendants)- special disadvantage asserted- HELD: the first defendant made the plaintiff aware on 7 March 2012 and onwards by conversations, SMS messages and emails that she wished to make a documentary for public release and informed the plaintiff of the change in focus of the documentary as events transpired often with the encouragement of, or as a result of the actions of the plaintiff- the plaintiff was not vulnerable or under a disadvantage viz a viz the first defendant, and the first defendant did not therefore take advantage of the plaintiff or act in any way unconscionably towards the plaintiff. Legislation Cited: Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) Cases Cited: Ashton v Pratt [2015] NSWCA 12; (2015) 88 NSWLR 281 Attorney-General (NSW) v World Best Holdings Ltd World (2005) 63 NSWLR 557 Australian Competition and Consumer Commission (ACCC) v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51 Australian Competition and Consumer Commission (ACCC) v Samton Holdings Pty Ltd (2002) 117 FCR 301 Australian Competition and Consumer Commission (ACCC) v Zanok Technology Pty Ltd [2009] FCA 1124 Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362 Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 Mitchell's Case 17 Cox's Criminal Cases 503 Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 Qantas Airways Ltd v Cameron (1996) 66 FCR 246 Thatcher v Charles (1961) 104 CLR 57 Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389 Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 Weidemann v Walpole [1891] 2 QB 534 Texts Cited: Heydon (ed) Cross on Evidence (2014, 10th edition, Lexis Nexis) Heydon's Trade Practices Law Competition & Consumer Law (Thomas Reuters Service) Category: Principal judgment Parties: Carol Anne Kidu (Plaintiff) Hollie Fifer (1st Defendant) Media Stockade Pty Ltd (2nd Defendant) Beacon Films Pty Ltd (3rd Defendant) Representation: Counsel: