Annabel v Seven Network (Operations) Ltd [2005] ACTSC 54 (30 June 2005)

Last Updated: 26 July 2005

ANNABEL v SEVEN NETWORK (OPERATIONS) LTD [2005] ACTSC 54 (30 June 2005)

EX TEMPORE RULING

Trade Practices Act 1974 (Cth)

Church of Scientology v Readers Digest [1980] 1 NSWLR 344

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 1999

No. SC 351 of 2005

Judge: Higgins CJ

Supreme Court of the ACT

Date: 30 June 2005

IN THE SUPREME COURT OF THE )

) No. SC 351 of 2005

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MISTY ANNABEL

Applicant

AND: SEVEN NETWORK (OPERATIONS) LIMITED

Respondent

ORDER

Judge: Higgins CJ

Date: 30 June 2005

Place: Canberra

THE COURT ORDERS THAT:

1. The interim injunction be dissolved.

2. There be no order as to costs.

1. It seems to me that in this case that where there is an application to restrain publication of matter which is said to be defamatory of this plaintiff, in effect, by reason of defaming another person and then leaving a link to be supposed between the two of them, the applicable test is that which Hunt J summarised in the case of Church of Scientology v Readers Digest [1980] 1 NSWLR 344.

2. Indeed, it would be difficult to say anything to the contrary seeing as it has been recognised, implicitly at least, by the High Court in the Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 1999, which effectively says, in summary, that first, an interlocutory injunction may be granted, but only in a very clear case, and then after extreme caution has been exercised.

3. What that means is a number of things. First of all, that the case is so clear in relation to the defamation itself, that any finding that there was no defamatory imputation would be set aside as unreasonable. Although there may be an argument about whether Ms Annabel is actually defamed by this tape herself, I am prepared to assume that. I think it would be open to draw the link that it is feared might be drawn. It is certainly open on the tape as it is presently constituted.

4. The second ground is that there is no defence upon which the defendant could succeed. And whilst I think that on the information that I have so far, and it is only that, it would be drawing, what has been called a long bow, to make a link between the plaintiff and her mother in the sense in which the tape implies it, I cannot say that it would be impossible to do that. Indeed, the only way it would be able to be concluded is if the defendant eschewed any such defence as a matter of submission.

5. It does not do that. The fact is too, that the plaintiff is likely to recover damages in due course and those damages can and may include exemplary damages if it is found that the defendant has acted not only in breach of the plaintiff's rights, but deliberately in breach of those rights, well knowing what those rights were.

6. The grounds for exemplary damages do not need to be expanded upon but they do exist. They exist in this jurisdiction even if they do not in New South Wales. The question then is whether there is any other principle which would overcome that prima facie position.

7. It is urged that there would be irreparable injury. In a sense that is true, because you cannot put a person back in the position in which they were had the tort not been committed. On the other hand, the principle upon which the High Court has operated in ABC v Lenah Game Meats Pty Ltd is not that.

8. It is recognised that always it is better that a tort not be committed in the first place rather than patch up the damage later. But the question is whether the damage can be expressed in term of money, and even if it be thought of as a defendant buying its way out of the commission of a wrong, that is the law. The law is that if a party can pay damages, they can avoid, in many cases, an interlocutory injunction where a party who could not make that claim would not avoid it.

9. Does it make any difference that there might be other causes of action involved? Well, there were others which were alluded to in ABC v Lenah Game Meats Pty Ltd. There may be, in this case, additional causes of action that could be pleaded, like negligent misstatement, even perhaps conspiracy. I think that is a bit unlikely, but there would be, no doubt, other causes of action.

10. There might be an action under the Trade Practices Act 1974 (Cth). All of those causes of action could be attached to or called in aid of the primary cause of action, which seems to be expressed in terms of defamation. But whatever be the label under which the cause of action is expressed, it still necessarily involves a question of the freedom of speech interest, as opposed to the interest of a party in being protected from defamatory statements.

11. That balance is classically exercised, as ABC v Lenah Game Meats Pty Ltd acknowledges, in defamation cases by applying the principle which Hunt J referred to in Church of Scientology v Readers Digest. I did ask myself the question of whether a partial injunction should be granted. But I could only do that if the defendant made the concession, which it is not making, that there is no case that it could seek to mount to suggest that there was a link between Ms Sharp's involvement, as portrayed on the tape, and the conduct of the business by Ms Annabel.

12. In stating that, I am not saying that I think there is any reasonable prospect of that defence being made out; I do not know whether there is or not. All I can say is that I cannot say it is impossible. In those circumstances, I have to say with some reluctance, that I do dissolve the injunction, which I pronounced on an interim basis.

13. In terms of costs in a matter of this kind, accepting that in substance it is an interlocutory application and it can only be in support of a proposed cause of action, I recognise the uncertainty about the existence of that cause of action at the present time. This is because it does depend on there being an actual defamatory statement made.

14. Between now and the time this program is proposed, it may even be that the defendant revises what it is that it proposes to publish. And that which is then published might then not be complained of. That is a future uncertainty, which I take into account.

15. It seems to me you have got this rule in relation to interlocutory proceedings that costs in such proceedings are costs in the main cause, unless there is some special reason to do otherwise, which may be the unreasonableness of the application. In my opinion, the application made in this case was not an unreasonable one to make. It failed but it failed after a full argument, which has lasted quite a few hours now, and that indicates to me that the argument was a substantial one.

16. Mr Elmaraazey, counsel for the applicant, had good cause to think that he might get at least a partial injunction in respect of the matters pertaining to Ms Annabel and that is the way it struck me initially, I must say. But I am persuaded by Mr Smark, counsel for the respondent, that that would be inappropriate, given the circumstances to which he alluded, particularly the one I mentioned about the fact that he says it is not impossible to make out a defence to any action that Ms Annabel might bring.

17. That is not to say it would succeed or might succeed, but rather that it cannot be dismissed as ridiculous or absurd or without foundation. As I say, the usual rule is that costs be costs in the cause. In the light of the difficulty that exists in terms of uncertainty, I think there should be simply an order that there be no costs.

18. I make no order as to costs.

19. That concludes this interlocutory application.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: July 2005

Counsel for the applicant: Mr M Elmaraazey

Solicitor for the applicant: Mamdouh Elmaraazey

Counsel for the respondent: Mr K P Smark

Solicitor for the respondent: Mallesons Stephen Jaques

Dates of hearing: 10 and 30 June 2005

Date of judgment: 30 June 2005