Network Ten Pty Ltd v Rowe [2006] NSWCA 4 (4 January 2006)

CITATION: Network Ten Pty Ltd v Rowe [2006] NSWCA 4

FILE NUMBER(S):

40001/06

HEARING DATE(S): 3 January 2006

DECISION DATE: 04/01/2006

PARTIES:

NETWORK TEN PTY LIMITED (Claimant/Appellant)

Jessica ROWE (Opponent/Respondent)

JUDGMENT OF: Santow JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

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

LOWER COURT JUDICIAL OFFICER: Simpson J

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)

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.

LEGISLATION CITED:

DECISION:

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

JUDGMENT:

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.

DISPOSITION

10 The principles governing the grant of interlocutory injunctions to preserve the status quo pending an appeal are uncontroversial. Those principles apply to an appeal even from dismissal of a suit seeking a final injunction. Those principles were enunciated by the Court of Appeal in Jesasu Pty Limited v Minister for Mineral Resources (1987) 11 NSWLR 110. They are conveniently distilled in Meagher Gummow and Lehane's "Equity - Doctrines and Remedies" 4th Edition by R Meagher, D Heydon, M Leeming, at [21-34A] at p 776:

"...where:

(i) There is a right of appeal which has been exercised;

(ii) On appeal no greater right is asserted than is necessary to preserve the status quo pending the outcome of the appeal;

(iii) The appeal seems to raise an arguable point;

(iv) No special prejudice to the respondent is alleged;

(v) The court can dispose of the appeal promptly; and

(vi) Failure to grant relief may involve serious damage to the applicant, an interlocutory injunction should be granted to preserve the utility of the appeal..."

11 However, in so summarising the leading judgment of Kirby P (at 117) the last element (vi) understates the hurdle to be passed before interlocutory relief based on balance of convenience should be granted. What is required is that "the failure to give relief may involve serious and arguably irreversible damage to the appellant and loss of valuable rights”. Serious damage without more may be adequately compensable by damages, depending on the circumstances including, in particular, the plaintiff’s capacity to establish causation for all the adverse consequences of a wrongful act. The appellant contends that it does lack such capacity to recover damages in full, an issue to which I will return.

12 Those principles in Jesasu (supra) as invoked by an unsuccessful plaintiff are consonant with the jurisdiction of the court as invoked by an unsuccessful defendant when seeking a stay of execution of a judgment pending an appeal against that judgment. Though not precisely equivalent, they have a common basis expressed in the following well-settled propositions:

(i) There is no automatic right to either a stay of execution or (by parity of reasoning) such an interim injunction, as prima facie the judgment appealed from is correct and the court should not deprive a party of the fruits of victory, but,

(ii) The exercise of the jurisdiction to grant such interim relief is incidental to the right of appeal and derives from the inherent power of the court where necessary to prevent injustice in relation to the proceedings in the court, and so that

(iii) The exercise of the jurisdiction will be particularly appropriate where it is necessary to maintain the status quo in order to preserve the subject matter of the proceedings or, in other words, to avoid the appeal being rendered nugatory; see in particular Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd (No 2) [1988] HCA 53; 165 CLR 452.

13 At the outset, Mr D P Robinson SC for Channel Ten properly conceded that this was not a case where, absent an injunction to maintain the status quo, any appeal may be rendered nugatory. Channel Ten, as he acknowledged, continued to maintain a claim for damages. That said, Channel Ten still claims serious damage, emphasising that the parties had acknowledged in their contract (clause 11) that damages would not be an adequate remedy for the loss of the services Miss Rowe provided. These were described as being of "a special, unique and extraordinary character" and as having "a peculiar value".

14 That may well be so as a general proposition. But viewing the matter in terms of the short time-frame that can reasonably be anticipated for a decision on Channel Ten's appeal the following provides a more accurate perspective. First, Channel Ten would not be deprived of Miss Rowe's active services given that she was already on long service leave until the expiry of 16 January 2006; by that time or shortly thereafter a decision on the appeal could reasonably be anticipated. Second, her moving to Channel 9 is and has been for some time public knowledge, so also her future role as co-host of the Today Show. Moreover her on-air role is not, according to Miss Rowe's evidence, scheduled until 30 January 2006.

15 It is true that, absent injunction, Miss Rowe's promotional activities for her role in the Today Show would continue unimpeded, including on-air appearances (AB 62, affidavit of Miss Rowe at para 35). That would, I agree, reinforce the public awareness to which I have earlier referred above of her joining Channel 9 to co-host its Today Show, but it would only do so for the short time until an appeal judgment could be reasonably anticipated and which would then govern the outcome, being either favourable to Channel Ten or otherwise.

16 Moreover even after 16 January 2006 Channel Ten, based on the evidence of Mr Blackley, Chief Executive Officer of Channel Ten, had not decided what precise role Miss Rowe would perform at Channel Ten thereafter, that is until her "notice" period expired on 19 June 2006. It was said that she would be a "news presenter" though not necessarily on her prime position on First at Five being the 5pm news slot (AB 156-7). Furthermore it had been earlier offered to Miss Rowe (before any alleged breach) that she move to the Melbourne morning program of Channel Ten from the Sydney 5pm news. As Miss Rowe says in her affidavit "The difficulty in finding a suitable replacement for me in the city nightly news was never raised with me as a concern whilst Ten was considering moving me to a role with the Melbourne morning program" (AB 64 affidavit of Miss Rowe para 48).

17 That said, it is the case that such a move to Melbourne in-house still with Channel Ten (had it taken place) would be very different in terms of effecting a smooth transition for Sydney's Channel Ten news at 5pm in Sydney to another presenter than the situation where Miss Rowe was instead in direct competition at Channel 9. Nonetheless, that competition though anticipated would only become manifest when the Channel 9 show went on air, scheduled for 30 January 2006. Until then her role would be preparatory and promotional, though on air. Accordingly its capacity to cause damage to Channel Ten, though real, is more limited and of short duration, being relevantly for the week or so to resolve the appeal.

18 But even if it be accepted that ten days or so of Miss Rowe's promotional activity could cause additional "serious damage" to Channel Ten over and above what has already occurred, and even if that be characterised as irreparable and irreversible damage, a proposition I find relatively implausible, one must compare, in terms of the decision in Jesasu "special prejudice to the respondent" (being Miss Rowe) from the granting of an injunction. On this, her evidence was clear and it appears unchallenged:

"34. My contract with Nine requires me to commence work on 1 January 2006. I've been informed that I will be required to go on air prior to the beginning of the ratings season on 30 January 2006 as the co-host of Nine's ‘Today’ show.

35. In the course of January 2006, I will be involved in promotional activities including recording promotional advertisements, giving interviews, rehearsing, attending meetings with senior executives at Nine, establishing personal relationships with other presenters, meeting with the executive producers of the "Today" show and preparing for the 2006 season.

36. That preparation time is essential to allow me to perform on air from 30 January 2006.

37. If I am unable to go on air from 30 January 2006, someone else will have to be found to fill my role on the Today show.

38. If that occurs, there may not be a role for me as presenter of the "Today" show when I become available.

39. As a longstanding and high profile media personality it is essential for me to maintain a daily presence in a high profile media role. Any period out of such a role can have a permanently damaging effect on my marketability, credibility and career."

Then at para 51 of her affidavit she says relevantly:

"...it would be personally and professionally extremely damaging to me to be required to perform a role at Ten other than the role I have performed for the last ten years on the First at Five news."

19 I am satisfied that, were an interlocutory injunction now to be granted, Miss Rowe would suffer special prejudice from being deprived of up to a third of the preparation time she says she needs to be able to perform on air for Channel 9 on 30 January 2006. This is apart from any prejudice from, potentially, being required to perform a role as news reader outside her role on First at Five, though the shortness of that exposure strikes me as involving rather less prejudice. Nonetheless, taking the prejudice she would suffer overall, were an interlocutory injunction granted, I consider it would be far more serious for her than any prejudice or damage to Channel Ten absent injunction. Nor would such prejudice be remedied easily by costs order or undertaking, if indeed so remediable at all.

20 It must also be remembered and taken into account that any injunction granted necessarily affects the contractual rights of Channel 9 who are not even a party to these proceedings.

21 The respondent further contends that in any event such an injunction, if granted, could not preserve the status quo ante, as Miss Rowe is no longer employed by Channel Ten, but by Channel 9. Thus at para 13 of the respondent's written submissions of 3 January 2000 it is said that:

"What Ten now seeks is not a preservation of the status quo ante the decision (as was the case in Jesasu) but an order from the Court of Appeal that seeks to revert to an earlier and now superseded position between the parties.”

22 I do not agree. Were Channel Ten able to succeed, she would still be an employee of Channel Ten. Channel Ten has not sought to terminate Ms Rowe’s contract for any alleged breach. Rather it seeks to maintain that contract and in particular its requirement (in cl 9) of twenty-six weeks’ notice of termination. It also seeks in the meantime to preserve the restraint in cl 16 upon her undertaking other employment, relevantly that with Channel 9.

23 Thus the balance of convenience is strongly against the interim relief sought, favouring as it does Miss Rowe rather than Channel Ten. As was said by Meagher, Gummow and Lehane (supra) at [21-345] at 775:

“Whilst the usual purpose of an interlocutory injunction is to preserve the status quo, sometimes the courts are not prepared to preserve them if there be thereby involved some countervailing disadvantages which more than equal the desirability of stability”.

In my judgment this is such a case.

24 As to the remaining requirements enunciated in Jesasu, I consider that relatively undemanding third requirement, that the appeal seems to raise an arguable point, is in my opinion satisfied. The argument put by the appellant is repeated in its outline of submissions of 3 January 2006. I need say no more on the merits of the appeal and will refrain from doing so given the appeal is to follow shortly. It is in any event unnecessary given the conclusion earlier reached. That conclusion is that Ms Rowe would suffer substantially greater prejudice were an interim injunction granted than would Channel Ten were it denied, more especially given the early availability of an appeal hearing.

OVERALL CONCLUSION

25 In all the circumstances I consider that the justice of the case requires that no injunction should be granted and that the utility of the appeal is sufficiently preserved without it. That of course presupposes that the earlier orders which I have made for the future conduct of the appeal are to be performed in the manner anticipated.

26 So far as costs of the motion are concerned I consider that those costs should be costs in the appeal.

27 Accordingly, the claimant’s notice of motion dated 3 January 2006 is dismissed and costs of the motion are costs in the appeal.

oOo

LAST UPDATED: 02/02/2006