Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69 (8 April 2010)

Last Updated: 9 April 2010

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69


FILE NUMBER(S):
2010/65548

HEARING DATE(S):
24 March 2010

JUDGMENT DATE:
8 April 2010

PARTIES:
Wendy Gaye Hatfield - Applicant
TCN Channel Nine Pty Ltd - First Respondent
Nine Network Australia Pty Ltd - Second Respondent
Screentime Pty Ltd - Third Respondent

JUDGMENT OF:
McColl JA Young JA Sackville AJA

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
SC 2010/00045147

LOWER COURT JUDICIAL OFFICER:
Harrison J

LOWER COURT DATE OF DECISION:
12 March 2010

LOWER COURT MEDIUM NEUTRAL CITATION:
[2010] NSWSC 161

COUNSEL:
K P Smark SC with S T Chrysanthou for the appellant
B McClintock SC with M Richardson for first and second respondents
A Leopold SC with J McLeod for the third respondent

SOLICITORS:
Kalantiz Lawyers for the appellant
Johnson Winter & Slattery for the first and second respondents
Cropper Parkhill for the third respondent


CATCHWORDS:
PROCEDURE – discovery – preliminary discovery – Uniform Civil Procedure Rules 2005 (NSW) r 5.3(1)(a) – whether appellant may have a claim for relief – asserted claims for interlocutory injunction and defamation – extent to which “fishing” allowed
PROCEDURE – discovery – preliminary discovery – Uniform Civil Procedure Rules 2005 (NSW) r 5.3(1)(a) – whether application for interlocutory injunction a “claim for relief”
PROCEDURE – discovery – preliminary discovery – relevance of likely prospects of success on application for interlocutory injunction on exercise of discretion to order preliminary discovery
INJUNCTIONS – defamation – interlocutory injunction to restrain publication – proposed justification defence – freedom of expression – prior publication of allegedly defamatory imputations
ROYAL COMMISSIONS – evidence – whether statutory prohibition on use of evidence given unwillingly can be waived – Royal Commissions Act 1923 (NSW) s 17(2)
WORDS AND PHRASES – “claim for relief”

LEGISLATION CITED:
Australian Human Rights Commission Act 1986
Civil Procedure Act 2005 (NSW)
Common Law Procedure Act 1854 (UK)
Defamation Act 2005 (NSW)
Evidence Act 1995 (NSW)
Interpretation Act 1987 (NSW)
New Zealand Bill of Rights Act 1990
Royal Commissions Act 1923 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Federal Court Rules
Supreme Court Rules 1970 (NSW)

CATEGORY:
Principal judgment

CASES CITED:
Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 1500
Auckland Area Health Board v Television New Zealand Ltd [1992] 3 NZLR 406
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Bayeh v New South Wales [1999] NSWSC 1070; 108 Crim R 364Black v Sumitomo Corp [2001] EWCA Civ 1819; [2002] 1 WLR 1562
Bonnard v Perryman [1891] 2 Ch 269
Clarke v Queensland Newspapers Pty Ltd [2000] 1 Qd R 233
Cook v Pasminco Ltd [2000] FCA 677; (2000) 99 FCR 548
Cook v Pasminco Ltd (No 2) [2000] FCA 1819; (2000) 107 FCR 44
Crampton v Nugawela (1996)41 NSWLR 176
David Syme & Co v Canavan [1918] HCA 50; (1918) 25 CLR 234
Evans Marshall & Co v Bertola SA [1973] 1 WLR 349
Geoffrey W Hill & Associates v King (1992) 27
NSWLR 228
Grubb v Bristol United Press Ltd [1963] 1 QB 309
Harper v Whitby [1978] 1 NSWLR 35
Hatfield v TCN Channel Nine Pty Ltd [2010] NSWSC 161
Hornsby Shire Council v Valuer General of NSW [2008] NSWSC 1179
Ian Edward Morton v Nylex Ltd [2007] NSWSC 562
International Finance Trust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291; (2008) 232 FLR 37
John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54; (1988) 165 CLR 346
John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484
John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679
Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273
Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632
Naoum v Dannawi [2009] NSWCA 253
Panasonic Australia Pty Ltd v Ngage Pty Ltd [2006] NSWSC 399; (2006) 69 IPR 595
Papaconstuntinos v Holmes a Court [2006] NSWSC 945
Paxus Services Ltd v People Bank Pty Ltd [1990] FCA 500; (1990) 99 ALR 728
Payne v Parker [1976] 1 NSWLR 191
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460
Reg v Bayeh [1999] NSWCCA 82
Ron West Motors Ltd v Broadcasting Corporation of New Zealand [1989] 3 NZLR 433
Ron West Motors Ltd v Broadcasting Corporation of New Zealand (No 2) [1989] 3 NZLR 520
St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004)211 ALR 147
Steffen v ANZ Banking Group [2009] NSWSC 666
Telstra Corp Ltd v Minister for Broadband, Communications and the Digital Economy [2008] FCAFC 7; (2008) 166 FCR 64
Universal Communication Network Inc trading as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd and Chan [2008] NSWCA 1; (2008) Aust Torts Reports 81-932
XX and YY v Pan Macmillan Australia Pty Ltd (Supreme Court of Victoria, Beach J, 16 March 1995, unreported)

TEXTS CITED:
ICF Spry, Equitable Remedies, 3rd ed (1984) Sweet and Maxwell
International Covenant on Civil and Political Rights
Adrian Zuckerman, Civil Procedure (2003) LexisNexis UK
W Gummow, “The Injunction in aid of legal rights – An Australian Perspective” (1993) 56 Law & Contemporary Problems 83

DECISION:
1. Leave to appeal granted. 2. Draft notice of appeal in the White Book to stand as the notice of appeal in the proceedings. 3. Appeal dismissed with costs.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2010/65548

McColl JA

Young JA

Sackville AJA

Thursday 8 April 2010

Hatfield v TCN Channel 9

Judgment

1 McCOLL JA: This is an application for leave to appeal and an appeal from a decision of Harrison J in which his Honour refused an application for orders pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) 5.3. The applicant sought orders that the respondents give preliminary discovery of any episode of, and the transcript of any episode of, the television series known as "Underbelly: The Golden Mile" (the “series”) in which the applicant is named, depicted (by an actor or picture or otherwise) and/or referred to: Hatfield v TCN Channel Nine Pty Ltd [2010] NSWSC 161. The applicant sought those orders to determine whether she had a claim in defamation against any of the respondents, and whether she might be entitled to urgent injunctive relief enjoining the first and second respondents from broadcasting such parts of the series which she considered might defame her: primary judgment (at [84]). I am of the view that leave to appeal should be granted and will refer to the applicant as the appellant henceforth.

2 The application was made on an urgent basis in circumstances where the respondents refused the appellant’s request that, subject to a confidentiality agreement, she be provided with a DVD and/or the screenplay of the series to enable her to respond to any allegations of fact the series might make about her and also refused to undertake that the appellant was not depicted, directly or indirectly, in the series.

3 The appellant is a former member of the New South Wales Police Force. She retired in 1997. Before doing so she gave evidence at the Royal Commission into the NSW Police Force presided over by Justice JRT Wood (the “Wood Royal Commission”).

4 The first respondent is the licensee of the television station TCN Channel 9, which the appellant asserts is to broadcast the series. The second respondent is the producer and distributor of the series and will broadcast it throughout Australia on stations affiliated with the Nine Network. There was no suggestion that the roles of the first and second respondents differed in any respect for the purposes of the present application and I shall refer to them as “Nine”. The third respondent (“Screentime”) is the production company which is making, or has made, the series.

5 The application for leave proceeded as a hearing conducted concurrently with the appeal with a view to deciding the whole controversy in one hearing.

Legislative framework

6 UCPR 5.3 relevantly provides:

“5.3 Discovery of documents from prospective defendant

(cf Federal Court Rules, Order 15A, rules 6, 7 and 9)

(1) If it appears to the court that:

(a) the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and

(b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and

(c) inspection of such a document would assist the applicant to make the decision concerned,

the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person’s possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.

...

(3) Unless the court orders otherwise, an application for an order under this rule:

(a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought...”

7 “Claim for relief” is defined in s 3 of the Civil Procedure Act 2005 (NSW) to include, relevantly:

“(c) a claim for the recovery of damages or other money, and

...

(e) a claim for the determination of any question or matter that may be determined by the court, and

(f) any other claim (whether legal, equitable or otherwise) that is justiciable in the court.”

That definition applies to UCPR 5.3 by virtue of s 11 of the Interpretation Act 1987 (NSW).

Statement of the case

8 The appellant advanced her application for preliminary discovery on two bases. Both turned on her submission that while she may be entitled to make a defamation claim against both Nine and Screentime, and an application for an interlocutory injunction to restrain publication of the allegedly defamatory broadcast, it was necessary that she obtain access to either the film and/or the screenplay of the series in order to make a decision about whether she should commence any such proceedings. She contended that the series had been published, albeit on a limited basis, in anticipation of its ultimate broadcast and that the potential nature of the material to be broadcast in the series was such that she may be able to surmount the high hurdle confronting those seeking to restrain the publication of allegedly defamatory material.

9 The background can conveniently be taken from the primary judgment:

“4 In January 2010 John Silvester and Andrew Rule published a book written by them entitled ‘Underbelly: The Golden Mile’. The book is primarily, but not exclusively, concerned with events that took place in Kings Cross in the mid to late 1980s and the Wood Royal Commission in the 1990s. The principal characters in the book are certain well-known identities including John Ibrahim, Kim Hollingsworth, Graham ‘Chook’ Fowler, the Bayeh brothers, Trevor Haken, George Freeman and the plaintiff. Chapter 3 of the book contains references to the plaintiff and her alleged relationship with John Ibrahim. A number of assertions are made about her, including the following:

(a) She spoke with a Swedish accent, despite being from Melbourne.

(b) She slept her way through training.

(c) She failed the police driving test twice.

(d) It was clear to fellow police officers that she had ‘no major thought process going on’.

(e) She was a regular at John Ibrahim's nightclub – a man who was a new power in the drug scene.

(f) She told a highway police officer that she was a Kings Cross police officer in order to help John Ibrahim avoid penalty for driving whilst unlicensed.

(g) She had been to a murder scene in Kings Cross that involved John Ibrahim.

(h) A number of alleged improprieties occurred that were linked to her relationship with John Ibrahim.

(i) Her relationship with John Ibrahim and her subsequent evidence before the Wood Royal Commission forced her to resign from the police force.

(j) She punched a photographer.

(k) She committed perjury.

(l) She attempted to buy/obtain drugs from a nightclub bouncer.

(m) She ‘should keep her head well down, her gear on and not throw any punches. But some people never learn’.

5 The plaintiff contents that this chapter of the book gives rise to a number of defamatory imputations about her, all of which she denies. They include the following:

(a) The plaintiff, a police officer, had a sexual relationship with John Ibrahim, knowing him to be a notorious criminal.

(b) She achieved promotion in the police service by granting sexual favours.

(c) She is a person of little intelligence.

(d) She is a hypocrite, in that she asserted to the Wood Royal Commission that she detested police corruption, but was herself corrupt.

(e) She was guilty of misconduct in relation to John Ibrahim's avoiding prosecution for unlicensed driving, condoning [sic] lies he told to police.

(f) She was guilty of misconduct in becoming intimately involved with John Ibrahim, who she knew to be a criminal.

(g) She was guilty of a number of acts of misconduct by reason of her relationship with John Ibrahim, a criminal.

(h) She was exposed as corrupt in the mass media and the Wood Royal Commission, and forced to resign from the police service.

(j) She was guilty of misconduct in relation to the death of a drug dealer (Assad), acting as John Ibrahim's ‘tame cop girlfriend’.

(k) She was guilty of perjury.

(l) In the alternative to (k), she so conducted herself as to warrant prosecution for perjury.

6 The first and second defendants are advertising that they will soon be broadcasting the series on Channel 9 nationwide. The precise dates of the broadcast of the series by the first and second defendants are unknown to the plaintiff but it would appear to be imminent. The series is the third of its kind, following ‘Underbelly’, and ‘Underbelly: A Tale of Two Cities’. Those television series were extremely popular and topped the ratings at the time of their broadcast, apparently having been viewed by a television audience of millions of people throughout Australia.

7 The series is colourfully described on the first and second defendants' website. Kings Cross was where ‘strong and honest police fought to take back control of the most infamous strip in Australia.’ This is referred to in more detail below.

8 The series was also promoted in TV Week and in OK! magazine in January 2010. Both magazines are published by ACP Magazines, which the plaintiff characterised as ‘the magazine arm of’ PBL Media Pty Ltd, which the plaintiff also alleged was owned by the same ultimate holding company as the first and second defendants. The three companies also have the same registered office.

9 The principal characters in the series appear to include John Ibrahim, Kim Hollingsworth, the Bayeh brothers, Trevor Haken, George Freeman and ‘Chook’ Fowler. One of the actors starring in the series is Jessica Tovey who appears as ‘Junior Constable Wendy Hatfield’, sometimes elsewhere described as ‘Constable Wendy’, who also appears to be one of the lead characters in the series. The character ‘Constable Wendy’ is apparently portrayed as a woman who is engaged in a sexual relationship with the character John Ibrahim in the series.

10 The plaintiff is concerned that the series is either based upon or will at least mirror the book and that it will broadcast material depicting her that will give rise to the same or similar defamatory imputations.”

10 Senior counsel for Nine informed the Court that no program in the series would be broadcast before 11 April 2010.

11 One of the bases of the application advanced before the primary judge was the appellant’s concern that the series was either based upon, or would mirror, the book of the same name by John Silvester and Andrew Rule (“the book”) and, accordingly, would broadcast material depicting her which would give rise to the same or similar defamatory imputations as those said to be conveyed by the book: primary judgment (at [10]). The book was admitted without objection and became exhibit A in the application.

12 The appellant also sought to persuade the primary judge that she may be able to establish a case for seeking an interlocutory injunction by relying on advertisements promoting the series, as well as what may be described as advertorial material, that is to say, articles appearing in magazines she contended were published by a company within the same “stable” as the first respondent, promoting the series. His Honour summarised much of this material (at [18] – [30]).

13 In short, the appellant said this material revealed (primary judgment (at [85] – [91])):

“85 ... that the third [respondent] has already published the series to the other two [respondents] or one of them. This is said to arise from what is to be found on the third [respondent’s] website. The [appellant] contended that it was plain that the first and second [respondents] or one of them had published the series to others in preparation for its broadcast. This would include, presumably, television reviewers and promotional organisations producing trailers and advertisements. The [appellant] argued that the third [respondent’s] website listed promotional material or articles about the series indicating that it had been submitted for critical reviews. It would appear that the series has also been reviewed by TV Week magazine.

86 The [appellant] also contended that the book itself is evidence of the overlap with the series. For example:

(a) The book and the series have the same title.

(b) The book refers to the series on its cover as ‘The events that inspired the Screentime Series for the Nine Network’.

(c) The cast of the series is listed at the back of the book.

(d) The lead actor in the series is pictured on the back cover of the book.

(e) The logo for the word Underbelly as it appears on the front of the book is identical to the logo used for the series as follows:

[<img src="/scjudgments/2010nswca.nsf/files/2010NSWCA69.jpg/$file/2010NSWCA69.jpg" alt="Logo">]

(f) Series 1 of Underbelly was also based on a book by the same authors.

87 The [appellant] submitted that despite the evidence from the third [respondent’s] solicitor to the effect that the scriptwriters did not rely on the book, chapter 3 of the book, or parts of it, may be reproduced in the series or may be based on the series or vice versa. The [appellant] emphasises that there is no assertion by any [respondent] to the effect that the authors of the book did not use the series or its scripts in writing the book.

88 The [appellant] submitted that in any event it is clear that the plaintiff is portrayed in five episodes of the series, including a depiction of her having sexual relations with John Ibrahim. That is an allegation that is also to be found in the book and which the [appellant] denies. Interestingly, the character said to represent the [appellant] in the series is not listed along with other members of the cast that is to be found at the back of the book.

89 The [appellant] relies on the interview with Jessica Tovey apparently given to OK! magazine, extracted above, in which she says in effect that in researching the character of Constable Wendy she was not bound to historical facts. The [appellant] says that this is an admission by the [respondents] that they have made a decision to depict the [appellant] so that she is historically identifiable but unrestricted by truth.

90 The [appellant] submitted that in these circumstances she may be entitled to make a claim in defamation against the [respondents].

91 Moreover, the [appellant] submitted that she had good reason to fear that the defamatory allegations published about her in the book to a relatively small audience will be broadcast to an audience of millions. Depending upon what allegations are made about her in the series, she contended that she may be entitled to an injunction preventing the broadcast of those parts of the series.”

14 The appellant said she did not have “sufficient information” to make a claim because (primary judgment (at [93], [95] – [96])):

“93 ...[S]he is unsure of the extent to which she is portrayed or referred to in the series ... The fact that she does not know what is said about her means that she is ‘lacking something reasonably necessary to make a decision whether to institute proceedings’ in the sense discussed by White J in Ian Edward Morton v Nylex Ltd. The [appellant] needs to know what the defamatory ‘matter’ is before she can sue on it: see s 4 and s 7 of the Defamation Act 2005.

...

95 The [appellant] will also be required to file and serve with a statement of claim seeking relief in relation to the publication of defamatory matter a typescript, with numbered lines, of the text of the original publication: r 15.19(2)(b) and (3). The [appellant] submitted that despite being aware that she is depicted in five episodes of the series, she does not have enough information to determine which of those episodes, if any, carry imputations about her. Having regard as well to the requirement that regard must be had to what the ordinary reasonable viewer would see, which in this case means the entire program or relevant episodes, the [appellant] says that she is not in a position to formulate the imputations upon which she will rely until she sees them.

96 Finally, the [appellant] submitted that without the entire ‘matter’, she is unable to obtain advice on the strength of potential defences such as contextual truth (s 26) and honest opinion (s 31) which require consideration of the ‘matter’ as a whole and in context.”

15 Insofar as her foreshadowed application for an interlocutory injunction was concerned, the appellant “accepted that the power to grant interlocutory injunctions in defamation cases will be exercised with great caution, and only in very clear cases” (primary judgment (at [97])), but contended (primary judgment (at [98])):

“98 ... that the content of the series would be unlikely to fall within the category of ‘public interest’ and that the allegations that the [respondents] intend to publish are certain to be sensationalist and serious in nature. Accordingly, the [appellant] ‘may be entitled to make a claim for relief’ or, in other words, such a claim against one or more of the [respondents] is ‘conceivable’.”

16 Nine resisted the application, in part because it asserted that should the appellant commence defamation proceedings and plead imputations of the nature of those his Honour set out (primary judgment (at [5])), it would plead truth: Defamation Act 2005 (NSW), s 25. It sought to establish that there was a basis for such a defence by tendering what it contended was a transcript of evidence given to the Wood Royal Commission on 25 September 1996 by the appellant. The appellant objected to the tender on a number of bases (see primary judgment (at [32])), all of which his Honour rejected, marking the transcript as exhibit 1. Of the number of bases debated before his Honour, the only one which the appellant seeks to agitate in this Court is the primary judge’s rejection of her submission that the transcript was inadmissible in any civil proceedings against her by virtue of s 17 of the Royal Commissions Act 1923 (NSW). In short, his Honour held the appellant had waived the entitlement that section confers on an “unwilling” witness (which his Honour concluded the appellant had been (at [50])) to object to the admissibility of “[a]n answer made, or document or other thing produced [before the commission] ... in any civil or criminal proceedings.” The waiver arose from the fact that her solicitor had sworn an affidavit denying the truth of the imputations the appellant asserted she was concerned might be published in the series: see primary judgment (at [55] - [62]). Despite the extensive consideration given to the admissibility of this document, it did not ultimately play any part in the rejection of the application.

17 Finally, all parties relied on correspondence before his Honour (set out at [73] – [79]), which his Honour described as “instructive” (at [72]), although it does not ultimately appear to have played a determinative role in his dismissal of the application. However Screentime sought to rely on some of that correspondence in this Court.

18 Screentime’s solicitor swore an affidavit directed toward proving that the series was not based on the book. His Honour extracted a passage (at [80]), a fair summary of which in my view is that the solicitor asserted on information and belief that none of the three writers of the screenplays for the series had read the book before they wrote the screenplays and none of them had received any information from the authors of the book at any relevant time.

19 The affidavit also annexed a copy of an agreement, dated 15 July 2009, between Screentime and two other companies, described as "the owners", although, as the primary judge said (at [81]) what they are supposed to own was not specified. The agreement (the “Book Tie-In Agreement”) recited, among other things, that the third defendant has agreed that Mr Silvester and Mr Rule, referred to as "the authors", may write what is referred to as "a tie in book" in relation to the “UBIII series”, referred to as the “UBIII book”. Although the words “commercial in confidence” were written on the agreement, Screentime did not apparently make any submission at trial that the agreement should be the subject of any confidentiality order and his Honour reproduced cl 2.1 and cl 2.2 of the agreement, which provided (primary judgment (at [82])):

"2. TIE IN EDITION OF THE UBIII SERIES

2.1 Screentime agrees that the Authors may write a tie in edition of an Underbelly book in relation to the UBIII Series. For the avoidance of doubt, the Authors shall undertake their own research in writing the UBIII Book and Screentime shall not provide them with any research notes and/or scripts. The Authors agree that they will make it clear to anyone from whom they are obtaining information that their UBIII Book is unrelated to the UBIII Series and that they are not obtaining information for/on behalf of Screentime. The Authors shall be solely responsible for the content of their UBIII Book.

2.2 Sreentime shall grant to the Owners/Authors the right to use the title of the UBIII Series in the form of logotype used in the credits of the UBIII Series for the purposes of publication in volume form and shall be given access to photographic and other promotional materials and the right to use such materials in the promotion of the UBIII Book and to consult with promoters and distributors of any such version to mutual advantage. For the avoidance of doubt, the Authors/Owners shall be responsible for organising any clearances necessary in relation to the Authors/Owners use of the photographic and promotional materials in relation to the UBIII Book and its promotion, and any costs involved in such clearances including without limitation any payments to any actors shall be the Authors/Owners sole responsibility. The Authors/Owners warrant to Screentime that they shall provide to Screentime an appropriate credit (in a place and form which has been pre-approved by Screentime in writing at the time) on the cover of the UBIII Book and shall ensure that this credit appears on the cover of each copy of the UBIII Book from first run. The Authors/Owners hereby indemnify an agree to keep indemnified Screentime from and against any breach of this warranty by the Authors/Owners."

20 Once again, ultimately nothing expressly appeared from his Honour’s reasons to turn on the agreement, although it might be inferred that he relied on it in concluding the appellant had not established above the level of speculation, that what appeared in the book might appear in the series.

Primary judgment

21 The primary judge first addressed the appellant’s claim in defamation. His Honour held (at [100]) that in order to establish she “may be entitled” to make a claim in defamation, the appellant had to establish that the defamatory material of which she complained had been published. He concluded (at [101] – [102]) that the evidence did not support an inference rising above speculation that there had been publication either between or among the respondents, or possibly by one or some of the respondents to third parties in anticipation of the series being broadcast.

22 Accordingly his Honour held (at [104]), that the appellant was doing no more than “asserting an entitlement to sue or that she has a case”: cf Ian Edward Morton v Nylex Ltd [2007] NSWSC 562 (at [25]) per White J. The primary judge said:

“104 ...She does this by reference to what she contends the series is going to say about her or to the way she anticipates it will portray or depict her, but in my view she does so in the absence of a reasonable cause to believe that she may have a right of action against the defendants for defamation resting on some recognised legal ground. That at the very least necessitates proof of publication of defamatory material. That does not appear to me to have occurred. The plaintiff is not in my view without sufficient information to decide whether or not to commence proceedings against the defendants. She is simply unable to determine, and therefore remains uncertain about, whether or not she really has a cause of action. I accept that the plaintiff is not required to establish, for the purposes of the rule, that she has a prima facie case.

105 It is hardly controversial that the plaintiff will be, or is at the very least likely to be, depicted or portrayed in the series as a constable of police played by the actor Jessica Tovey. Whether or not this depiction or portrayal is sympathetic or unsympathetic, or is or is not arguably defamatory of her, is not yet apparent. The plaintiff places some emphasis upon the suggestion that the actor who plays her said, when interviewed, that she was not bound to historical fact, or words to that effect. Without elaborating upon the proposition too specifically, such a statement is potentially as consistent with a favourable and unactionable depiction or portrayal of the plaintiff as it is with a defamatory one. Having regard to the fact that all of the relevant episodes and the series will have to be considered from the position of the ordinary reasonable viewer in context, no preliminary view can be formed about the potentially tortious nature of what is broadcast until that occurs.” (emphasis in original)

23 The primary judge then turned to the appellant’s case that she may be entitled to an interlocutory injunction to restrain publication. He observed (at [107]) that, in the context of UCPR 5.3(1)(a), the word “proceedings” in the phrase "is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant" was not a reference to the appellant’s prospective claim in damages against the respondents for defamation, but, rather “to her decision whether or not to commence proceedings against the [respondents] for an injunction to restrain the broadcast in the first place.” Accordingly it was necessary to “assess the strength or otherwise of such a case in order to determine whether or not the [appellant] ‘may be entitled to make a claim for relief’.” His Honour concluded:

“108 Other than in a hypothetical sense it does not appear to me that, having regard to the well-known authorities on this issue, the plaintiff may be entitled to an injunction to restrain the series' broadcast. First, for the reasons already discussed, the plaintiff has not yet established that she has an arguable case. That may change once the series goes to air but is incapable of determination at present.

109 Secondly, there is no evidence to suggest that damages would not be an adequate remedy. Counsel for the plaintiff submitted that the statutory limitation upon damages is such that the amount of monetary compensation that the plaintiff could recover would not be adequate to salve her hurt feelings or make up for the damage to her reputation that she anticipates the broadcast will cause. However, this is to misconceive the nature of the inquiry about the adequacy or otherwise of damages in this respect, which is directed to the availability of alternative relief, not to the sufficiency of an award of damages. The plaintiff was unable to point to any circumstance or event that would fall in following the anticipated broadcast that could not be accommodated by an award of damages, independently of whether or not the plaintiff felt satisfied with the amount of those damages.

110 Thirdly, there is no prejudice to her that the plaintiff can identify that outweighs the prejudice that may attend a restraint of the proposed broadcast in whole or in part. There is little evidence from the defendants about the prejudice that they may suffer if their series were to be taken off the air or if parts of it were enjoined from publication. However, experience in applications of this type, and the evident stage that has been reached by the defendants in preparation for the series to be screened, strongly suggests that considerable disruption will attend the need to reschedule or reprogramme it, if that were to be required. The balance of convenience clearly favours permitting the proposed broadcast to proceed.” (emphasis added)

24 His Honour referred to the statement in Naoum v Dannawi [2009] NSWCA 253 (at [32]) to the effect that on an application for a final injunction to restrain a defamation, it was necessary to establish “the publication by the respondent of defamatory matter (s 7(2), Defamation Act 2005 (NSW)) to which the respondent had no defence”, then said (at [112]) “assuming publication will occur, there is yet no evidence to establish an actionable defamation at a final hearing. The content of the alleged defamatory matter remains illusory.” His Honour (at [113]) adopted Maxwell J’s statement in Harper v Whitby [1978] 1 NSWLR 35 (at 37), as describing the Court’s position:

“I am left to speculate, and this is no criticism of the plaintiff or her legal advisers, as to the precise nature or format of the programme proposed to be telecast on the programme 'A Current Affair'. There is no evidence that the programme has been completed, or is in what I might call final form. I have no evidence as to whether it will be a balanced programme. By this I mean that I have no evidence to suggest either way that it will merely take the form of accusations made against the plaintiff with no counter views or statements by her or on her behalf. Nor is there any evidence as to when any such programme, if it is completed, will be telecast.” (emphasis added by the primary judge)

25 His Honour then set out (at [114] – [115]) passages from Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 concerning the granting of interlocutory injunctions in defamation cases.

26 The primary judge said (at [116]) that the case could not be characterised “as clear ... [or] as very clear.” There was “ ‘real room for debate as to whether the statements complained of are defamatory’, ... real room for debate about whether or not there are yet any statements to complain of at all.” In his Honour’s view, while the “actual form of the publication can be anticipated with some confidence ... its content is not so easily predicted.”

27 The primary judge concluded (at [116]) it would be:

“...an error in the exercise of discretion to enjoin a publication that is soon to occur when not only might minds differ concerning the defamatory content of the broadcast, but when no two minds could be reasonably satisfied that they were in fact engaged in considering the same subject matter, or that there was even some subject matter to consider. Respect for the role of the ultimate tribunal of fact should not be compromised or subverted by too ready an acceptance of allegedly urgent but not very clear or exceptional pleas for potentially disruptive injunctive relief.”

28 Accordingly the primary judge held (at [117]) that it did not appear that the appellant may be entitled either to make a claim for damages for defamation against any of the respondents or that she may be entitled to make a claim for interlocutory relief to enjoin them from publication of the series.

Issues

29 The issues the appellant advances to attract leave to appeal and on appeal are, in substance, that the primary judge erred:

(a) in finding that in order to obtain a preliminary discovery order she had to establish that publication had occurred, in finding that no publication had occurred and in omitting to refer to Screentime’s admission of publication;

(b) in finding that the appellant had to prove she had a presently arguable case for an interlocutory injunction, without reference to the possible or likely contents of the broadcasts;

(c) in failing to consider whether it appeared that the appellant may be entitled to make a claim for an interlocutory injunction against all or any of the respondents in failing to find that she may have had an entitlement such as satisfied UCPR 5.3(1)(a); and

(d) in admitting exhibit 1.

30 In the event leave to appeal was granted the respondents sought to rely upon notices of contention. Nine sought to contend his Honour’s decision ought be upheld on the basis that his Honour erred in refusing to admit an excerpt of the Final Report of the Wood Royal Commission.

31 Screentime contended the primary judge ought to have:

(a) rejected certain material annexed to an affidavit sworn by the appellant’s solicitor;

(b) held the appellant had failed to make reasonable inquiries insofar as she relied on the proposition that the book was based on the series;

(c) held an application for interlocutory relief is not a “claim for relief” of the kind contemplated by UCPR 5.3; and

(d) held that as there was no evidence of any threat by Screentime to publish the series, it could not be subjected to a preliminary discovery order whose only purpose could be to assist any claim for injunctive relief the appellant may have against the Nine.

Submissions

32 The appellant submitted that she adduced sufficient evidence before the primary judge to establish that the series was likely to depict a character bearing her name and police rank at the relevant time. That evidence included the promotional and advertorial evidence summarised by the primary judge, as well as the book. She argued the evidence suggested the book was based on the series as they concerned the same events and characters, and afforded an objective basis for the inference that the series might contain similar material.

33 She submitted the preliminary discovery order should be made because knowledge of the exact contents of the broadcasts, so far as they concerned her character, was relevant to her decision whether or not to commence proceedings against the respondents. In particular she argued such knowledge was necessary to enable her to determine the seriousness of the allegations which would be made against her, to assist her in demonstrating publication had already occurred by Screentime publishing the screenplay to Nine, and to enable her to assess the prospect of obtaining an interlocutory injunction pending a final hearing. She accepted that at a final hearing she would have to establish the broadcast was defamatory and that there was no arguable defence.

34 The appellant contended that the primary judge had correctly stated the principles relating to preliminary discovery, but had misapprehended the effect of the principle that it was not necessary for the applicant for such relief to show a prima facie or pleadable case, and that it was sufficient for the appellant to demonstrate there was reasonable cause to believe a right of action may exist.

35 Next the appellant submitted that the primary judge ought to have inferred that in preparing for the broadcast of the series, the screenplays and/or episodes of the series would have been published both by Screentime to Nine, and by Nine to advertising companies and other third parties for the purposes of critical review.

36 The appellant contended that in circumstances where there was a reasonable basis to conclude that the series would be highly defamatory of her and would be extensively broadcast, it was not open to the primary judge to conclude that there was no real prospect of an interlocutory injunction being issued. She argued that the primary judge’s conclusions about the availability of interlocutory relief were premature without a consideration of the broadcasts. She appeared to submit that the principles about the reluctance of courts to grant injunctions to restrain publication of allegedly defamatory material have less force when the publication in question is a fictional dramatisation of past events, is not a communication in the public interest or for the public benefit and where, she contended, the respondents adduced no evidence of any defences which might be available if the series published the imputations conveyed by the book.

37 Finally the appellant reaffirmed the submission made at trial, that she would agree to preliminary discovery being given subject to a confidentiality order which, in substance, would restrict access to any discovered materials to the appellant’s lawyers.

38 Nine submitted that the principle that an injunction will not be granted to restrain the publication of defamatory matter should apply to applications for preliminary discovery. Accordingly, it contended that such applications ought, practically speaking, never be granted prior to publication of allegedly defamatory material. Alternatively, it contended that the injunction to which the appellant argued she was entitled would be virtually impossible to obtain and, as such, the relief sought would be futile and Nine would be vexed for no purpose.

39 Next Nine contended that the primary judge was correct (at [117]) in interpreting the requirement in UCPR 5.3 that an applicant “may be entitled to make a claim for relief” as meaning the applicant must have an accrued cause of action at the time the preliminary discovery action application is made. It contended that the application had to fail because there was no evidence of publication of any material which was allegedly defamatory of the appellant and, even if there was a scintilla of such evidence, the claim was, in substance, contrived to bring the application within the rule. The latter submission was based on the proposition that insofar as the appellant sought to contend there must have been publication as between Nine and Screentime, any such publication would be protected by a defence of qualified privilege, as well as triviality, truth and honest opinion and that any damages awarded would be at best nominal.

40 Nine also submitted that the primary judge was correct in concluding that the appellant would be unable to obtain an interlocutory injunction. First, Nine contended that any imputations, should they arise from the series and be along the lines suggested by the appellant would be defended as true. Secondly, assuming the series in whole or in part reflected the events revealed by the Wood Royal Commission, those events had been in the public domain since at least 1995/1996 when the appellant gave evidence at the Commission. There would be little or no utility in an injunction being granted to prevent the publication of material which was notorious. Nine relied on these factors both as going to the substantive case against granting preliminary discovery, and also to the discretionary aspect of such an application.

41 Screentime asserted that the application was based on mere conjecture that the appellant might be defamed in the series. It also contended that as the primary judge’s decision was based on his Honour’s evaluation of whether it appeared that the appellant may have a claim for relief, this Court would be slow to substitute its view for his Honour’s.

42 Next Screentime argued that an application for an interlocutory injunction was not a “claim for relief” within the meaning of UCPR 5.3. Accordingly it contended that the question whether the appellant had made out a claim under that rule had to be assessed in the context of a substantive claim for relief.

43 Insofar as the appellant sought to assert some linkage between the book and the series, Screentime drew attention to the letter from Nine’s solicitors (primary judgment (at [74])) which asserted that the series was “quite different from the book in a number of material respects.” Next it pointed to the statement in its solicitor’s letter (primary judgment (at [77])) that the proposition that “the material in the series constitutes a mere replication of what is contained in the book, in particular chapter 3 of the book ... is erroneous." Finally it relied on the agreement between it and the authors of the book that they “may write a tie in edition of an Underbelly book in relation to the UBIII Series”, and contended that this left without foundation the proposition that there was any connection between the book and the series.

44 Insofar as the appellant sought to rely on material published on the internet, Screentime submitted none of that material established that the series might defame the appellant. In particular, it asserted that even if the series was to portray the appellant as having had a “sexual relationship with the character John Ibrahim”, that did not, without more, establish the series may convey any of the imputations the appellant contended it might.

Consideration

Preliminary discovery

45 All parties accepted the primary judge’s statement of the principles concerning an application for preliminary discovery pursuant to UCPR 5.3. However Nine also emphasised the discretionary nature of such relief, contending that it was material, in determining whether to make a preliminary discovery order, for the Court to decide whether the appellant might be successful in obtaining an interlocutory injunction to restrain an allegedly defamatory publication. No doubt Screentime did not address this aspect of UCPR 5.3 because the appellant did not foreshadow seeking an interlocutory injunction against it, having conducted the application on the presumption that Screentime had already published the series to employees and/or agents of Nine.

46 It is convenient to set out the key principles relevant to an application for preliminary discovery. To a large part these are taken from the primary judge’s exposition of the jurisprudence in this area which was accepted by all parties. Some of the principles are drawn from case law developed in relation to Federal Court Rules O 15A r 6. There are textual differences between the two provisions. No party suggested anything turned on those differences for the purposes of this case.

47 First, “[i]n order for it to 'appear' to the Court that the applicant 'may be entitled' to make a claim for relief, it is not necessary for the applicant to show a prima facie or pleadable case”: Morton v Nylex (at [25]).

48 Secondly, while “the mere assertion of a case is insufficient...[i]t will be sufficient if there is reasonable cause to believe that the applicant may have a right of action against the respondent resting on some recognised legal ground” : Morton v Nylex (at [25]).

49 Thirdly, “belief requires more than mere assertion and more than suspicion or conjecture. [It] is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action”: St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147 (at [26](d)) per Hely J, referring in turn to John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 (at [13], [14], [17] and [73]) per Emmett J. The use of the word “may” indicates the court does not have to reach “a firm view that there is a right to relief”: Telstra Corp Ltd v Minister for Broadband, Communications and the Digital Economy [2008] FCAFC 7; (2008) 166 FCR 64 (at [58]).

50 Fourthly, the requirement that the matters set out in UCPR 5.3 “appear[s]” to the court to establish an entitlement to an order under the rule may be wider than the requirement in the Federal Court Order 15A r 6 that there “is reasonable cause to believe”: see Panasonic Australia Pty Ltd v Ngage Pty Ltd [2006] NSWSC 399; (2006) 69 IPR 595 (at [22]) per Young CJ in Eq; Papaconstuntinos v Holmes à Court [2006] NSWSC 945 (at [17] per Simpson J; Hornsby Shire Council v Valuer General of NSW [2008] NSWSC 1179 (at [33]) per Adams J. Nevertheless Hely J’s statement in St George Bank Ltd (at [26](e)) remains apposite, namely that “whilst uncertainty as to only one element of a cause of action might be compatible with the ‘reasonable cause to believe’ required by subparagraph (a), uncertainty as to a number of such elements may be sufficient to undermine the reasonableness of the cause to believe”.

51 Fifthly, “the question posed by [UCPR 5.3(1)(a)] ... is not whether the applicant has sufficient information to decide if a cause of action is available against the prospective respondent [but]... whether the applicant has sufficient information to make a decision whether to commence proceedings in the Court. Accordingly, an applicant for preliminary discovery may be entitled to discovery in order to determine what defences are available to the respondent and the possible strength of those defences”: St George Bank Ltd (at [26](f)) (emphasis in original); see also Morton v Nylex (at [33]). Thus application of the rule will not be precluded by the fact that the applicant already has available evidence establishing a prima facie case for the granting of relief, as there might be matters of defence which could defeat a prima facie case: Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 1500 (at [41]) per Lindgren J; referred to with approval by the Full Federal Court (French, Weinberg and Greenwood JJ ) in Telstra Corp Ltd (at [60]).

52 Sixthly, as Hely J said in St George Bank Ltd (at [26](a)), “the Rule is to be beneficially construed, given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the Court, exercised in the particular circumstances of each case”.

Preliminary discovery and defamation

53 Nine emphasised the reluctance of courts to grant injunctions to restrain allegedly defamatory publications, because any such restraint would impose an undue restraint upon freedom of speech. It contended that reluctance should apply in preliminary discovery applications in circumstances where the putative defendant asserted it intended to plead justification.

54 Nine did not point to any authority supporting this submission. In my view it should be rejected. A submission to the effect that “the newspaper rule” should preclude preliminary discovery of a source, was unanimously rejected by the High Court (Mason CJ) Wilson, Deane, Toohey and Gaudron JJ) in John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54; (1988) 165 CLR 346 (at 356). That case concerned Part 3 r 1 of the Supreme Court Rules 1970 (NSW) which enabled the court to order preliminary discovery of the identity of a person for the purposes of commencing proceedings against that person. Their Honours described the newspaper rule (at 351 – 352) as having “its origin in the practice of the English common law courts in defamation actions of refusing to order production and inspection of documents or to force a defendant to disclose the source of his information in interlocutory proceedings, in the absence of special circumstances justifying the making of such an order”.

55 After observing that the “rule” was “no more than a rule of practice which guides or informs the exercise of the judicial discretion in interlocutory proceedings in defamation (and related) actions”, their Honours said (at 356 – 357):

“The newspaper rule is not capable of applying directly to proceedings under Pt 3, r.1. The respondent to an application under Pt 3, r.1 is not, as such, a defendant in a defamation action. Such an application is not an interlocutory proceeding in such an action. One very powerful reason for denying that the rule has a direct application to the present class of preliminary discovery is that the object of such an application is to ascertain the identity of an informant so that the applicant may sue him. The object of an interlocutory application in a defamation action is to obtain evidence, admissions or better particulars with respect to the issues for trial in the action. If the only object of such an application were to identify the defendant's source of information with a view to bringing an action against the informant, the purpose of the application would be foreign to the proceedings. Yet that purpose is the very object of an application for preliminary discovery.

On the other hand the policy considerations which underlie the existence of the rule are unquestionably factors to be taken into account in the exercise of the judicial discretion that Pt 3, r.1 confers. If it were otherwise, the making of orders for preliminary discovery would undermine the status and strength of the rule in its application to defamation actions at the interlocutory stage. However, to say that the policy considerations behind the newspaper rule are relevant in an application for preliminary discovery does not mean that an applicant will fail unless he makes out a case of special circumstances. What an applicant must show is that the order sought is necessary in the interests of justice; in other words, the making of the order is necessary to provide him with an effective remedy in respect of the actionable wrong of which he complains.” (emphasis added)

56 Consistently with Cojuangco, in my view, in considering whether to exercise the UCPR 5.3 discretion, policy considerations which underlie the reluctance of courts to restrain the publication of allegedly defamatory material are relevant, but not determinative, factors. However in taking such matters into account, the Court should also be guided by the fact that Lord Coleridge CJ’s statements in Bonnard v Perryman [1891] 2 Ch 269 (at 284) to the effect that “the subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong” (the “Bonnard principle”) should not be seen as denying the existence of a discretion, as Gleeson CJ and Crennan J emphasised in O'Neill [2006] (at [18]). Each case must clearly turn on its own facts: Auckland Area Health Board v Television New Zealand Ltd [1992] 3 NZLR 406 (at 40).

57 The same observation should be made in relation to Lord Coleridge CJ’s statement which Gleeson CJ and Crennan J interpreted in O'Neill (at [16]) as meaning that “when there is a plea of justification, it is generally wiser, in all but exceptional cases, to abstain from interference until the trial and determination of the plea of justification.” This is particularly the case where the defence of justification is dealt with by a jury pursuant to s 22 of the Defamation Act 2005 (NSW): O'Neill (at [19]).

58 There are cases in which a court has considered principles of freedom of speech in the context of an application for preliminary discovery in relation to mooted defamation proceedings.

59 In Ron West Motors Ltd v Broadcasting Corporation of New Zealand [1989] 3 NZLR 433 (at 446 – 447) Smellie J held that he should order production of the script of a programme about the activities of Ron West Motors Ltd, a dealer in used motor vehicles, as part of “Fair Go”, a television series devoted to entertainment by the exposure of iniquities in the supply of goods and services in aid of the plaintiff’s foreshadowed application for an injunction to restrain the broadcast. In his Honour’s view (at 439) “there was a real possibility that the presentation would contain inaccuracies and may well not be fair and balanced.” The defendant indicated it would plead justification to any defamation proceedings the plaintiff might commence and/or in resistance to any application for an injunction. Smellie J held (at 447) that the plaintiff's right to challenge the defence would be illusory if it was not to be allowed to demonstrate to the Court that the matter to be published is false.

60 In Auckland Area Health Board the New Zealand Court of Appeal (Cooke P, Richardson and Gault JJ), in what appears to have been an ex tempore judgment, considered an appeal from a trial judge’s dismissal of an application for orders that the script of a television programme be produced prior to the programme’s broadcast or to continue an interim injunction against the broadcasting of the programme. The programme, entitled "Wheel of Misfortune", was “to deal with the plight of paraplegics, quadriplegics and tetraplegics” who had apparently been treated, or were being treated, at the Otara Spinal Unit of the Auckland Area Health Board: per Cooke P (at 407). The Court approached the case on the basis of what was described (at 407) as “the principle of freedom of the media”, a principle said to be reinforced by s 14 of the New Zealand Bill of Rights Act 1990.

61 Cooke P (who delivered the judgment of the Court) referred with approval (at 407) to Smellie J’s decision in Ron West (although the citation given for that decision was to a later decision in the Ron West (Ron West Motors Ltd v Broadcasting Corporation of New Zealand (No 2) [1989] 3 NZLR 520) proceedings in which Smellie J discharged an interim injunction he had earlier granted to restrain the broadcast). In the earlier decision Smellie J held that there was “jurisdiction to order the production of a proposed script for the examination of the Court and the other party” but described the jurisdiction as “wholly exceptional...to be exercised only in cases where there is a well-grounded fear that the publication will be clearly unlawful.” The President added, “[t]he reason for this limitation is of course that it is not part of the function of the Court to act as a censor”. One of the reasons the Court of Appeal in Auckland Area Health Board concluded (at 408) the case did not fall within the “exceptional” class, was because it was apparent from affidavit material that the programme’s main criticisms and allegations had been put to the orthopaedic surgeon who was the consultant to the Area Health Board and his replies were to appear in the programme. The Court was also of the view (at 408), that if its conclusion in this respect was incorrect, “appropriate legal remedies will be available.”

62 In XX and YY v Pan Macmillan Australia Pty Ltd (Supreme Court of Victoria, Beach J, 16 March 1995, unreported) Beach J rejected an application for preliminary discovery of the book, “The First Stone” by Helen Garner. It was apparent that the book related, amongst other things, to criminal proceedings which were brought against a Dr Alan Gregory in the Magistrates' Court at Melbourne during the year 1992 following complaints made to the Victoria Police by the applicants "XX" and "YY" that Dr Gregory had indecently assaulted them whilst they were students at the University of Melbourne. As Beach J said, Dr Gregory was “cleared of the charges”. The applicants foreshadowed that if the application was granted and the book defamed them they intended to seek an injunction to prevent its publication. Beach J concluded the applicants’ apprehension that the book may contain material defamatory of them was no more than “a hunch or suspicion” which did not establish the requirement in the relevant Victorian rule that “they have ... reasonable cause to believe”.

63 However his Honour went on to consider the position if the applicants had satisfied the jurisdictional threshold. In those circumstances he concluded that the Bonnard principle as explained by Dr Spry (ICF Spry, Equitable Remedies, 3rd ed (1984) Sweet & Maxwell at pp 321-3) was a “more compelling reason for refusing the application” for it would have led to him refusing an application for an interlocutory injunction which would have had the effect of restraining the discussion of the public trial of Dr Gregory – “weighing up the right to freedom of speech on the one hand against the hurt which may be caused to the applicants if defamatory material is published of and concerning them on the other, in the circumstances of this case the scales come down heavily in favour of the preservation of freedom of speech.” Finally, his Honour was of the view that preliminary discovery ought also not be granted as the applicants had an effective remedy in damages should the book defame them.

64 Atkinson J applied the conclusion in Auckland Area Health Board that the jurisdiction to grant preliminary discovery in a defamation case was “wholly exceptional” in Clarke v Queensland Newspapers Pty Ltd [2000] 1 Qd R 233 (at [28]).

65 In my view, with respect, it is inapt to label the jurisdiction to grant preliminary discovery in defamation cases as “wholly exceptional” if that description is intended to reflect an inflexible rule. The expression was used by Lord Coleridge in Bonnard (at 284) in describing the approach to be taken to the grant of an injunction in defamation cases seen to be conferred by the Common Law Procedure Act 1854 (UK): see the discussion in O’Neill (at [54] ff) per Gummow and Hayne JJ. However so labelling the preliminary discovery jurisdiction risks distracting from the language of UCPR 5.3. A decision whether to grant a preliminary discovery must turn on whether the applicant has satisfied the criteria in the rule and then whether, in the exercise of the Court’s discretion, an order should be made. In the exercise of the discretion, factors which may go to the futility of making an order, such as whether or not an injunction might ultimately be granted are relevant, but not determinative. In considering that issue, the cautious approach the courts take in such cases will also be relevant. But the court should also be cautious about making a decision about whether or not a defendant may be able to mount a justification defence in the absence of material indicating the nature of the allegedly defamatory material.

Screentime’s notice of contention

66 It is convenient to deal at this stage with three of Screentime’s notice of contention propositions, each of which asserted that the appellant had failed to establish critical propositions. The first was whether she had established she was sufficiently identified in the material before the court in a manner that might entitle her to establish that the series might refer to her so as to enable her to make a claim for relief. I refer to this as the identification issue. The second went to whether she had satisfied the requirement in UCPR 5.3(1) that she had made reasonable inquiries. The third raised the issue whether an application for interlocutory relief was a “claim for relief” contemplated by UCPR 5.3.

Identification

67 The primary judge accepted (at [105]) that the evidence demonstrated the appellant would be, or was likely to be, depicted or portrayed in the series as a constable of police played by the actor Jessica Tovey. Nine did not dispute this proposition. It was also not dispute by Screentime in the correspondence the primary judge extracted (at [77]). Rather, its contention was that the series was not, nor would be, capable of conveying any defamatory imputation about the appellant as foreshadowed in her solicitor’s correspondence.

68 However Screentime argued in reliance on its notice of contention that his Honour could only have based it on material to which he referred (at [24]) as having been “downloaded on 2 March 2010 from the IMBd website.” Screentime contended his Honour ought not have admitted that material as evidence, as it was common ground at trial that the IMBd website as Screentime submitted was a user-generated site, “the content of which anonymous people can use without verification and attribution”. As such, Screentime argued the material was inadmissible hearsay which did not state the source, contrary to the requirement of s 75 of the Evidence Act 1995 (NSW).

69 The appellant accepted that material downloaded from the IMBd website could not be relied upon to identify her as a character in the series. However she contended that Screentime’s submissions overlooked other evidence before the primary judge from which his Honour was entitled to conclude that the actress, Jessica Tovey, would play her in the series.

70 In my view Screentime’s contention should be rejected.

71 It is an essential element in the cause of action in defamation that the matter complained of be published of and concerning, that is to say that it identify, the plaintiff. If a person is not named in a publication he or she may establish that it was published of and concerning him or herself by adducing evidence of facts which would enable a person who read, saw or heard the publication reasonably to understand it referred to him or her. The test of whether words that do not specifically name the plaintiff refer to the plaintiff or not is whether the words are “such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to”: David Syme & Co v Canavan [1918] HCA 50; (1918) 25 CLR 234 (at 238); quoted with approval in Universal Communication Network Inc trading as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd and Chan [2008] NSWCA 1; (2008) Aust Torts Reports ¶81-932 (at [42]) per McColl JA (Mason P and Young CJ in Eq agreeing); see also Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632.

72 Screentime’s submission fails to have regard to the body of evidence capable of supporting the proposition that the person identified as the character “Constable Wendy” could reasonably be understood to be a reference to the appellant.

73 The appellant adduced evidence of colour photographs of billboards advertising the series which evidence was described by the primary judge (at [29]) as:

“A series of photographs of advertising billboards lining the M4 motorway were also tendered. They appear to show Jessica Tovey in her police uniform in various poses, including what appears to be an embrace, with an actor who is identifiable as the character of John Ibrahim in the series. The plaintiff contends that this is inferentially a depiction of her in an intimate relationship with Mr Ibrahim.” (emphasis added)

[<img src="/scjudgments/2010nswca.nsf/files/2010NSWCA69.jpg/$file/2010NSWCA69.jpg" alt="Logo">]

The text on the billboards read:

THE GOLDEN MILE

[CHANNEL 9 LOGO]

The Cross. The King. The next true story.”

74 The appellant submitted that the last phrase this phrase indicated that the series will be presented as “dramatised” but “essentially true”.

75 The appellant submitted, without contradiction by Nine or Screentime, that the male figure depicted on the billboards is the same man depicted in the photograph on the back cover of the book. The caption on that photograph states, relevantly:

“The actor is playing ‘Teflon John’ Ibrahim.”

76 In the online version of the magazine TV Week (a publication by a parent company of Nine) to which the primary judge referred (at [26] – [27]), the following appeared:

“JESSICA TOVEY

Previously known as: Belle in Home And Away

Soon to be known as: Wendy, an attractive junior constable in Kings Cross.

...

Underbelly is famous for its sex scenes – and Jess reveals her character does have an intimate relationship. ‘The Australian public might see a little more of me than they want to!’ she laughs.”

77 The text was accompanied by a large colour photograph identified as Jessica Tovey wearing, as the primary judge accepted (at [27]), the uniform of a constable in the New South Wales police.

78 A break out box on the same page was headed “What’s it all about...”, and said:

“Underbelly: The Golden Mile begins in 1989 in Sydney’s Kings Cross, a street pumping with strippers, drug dealers, prostitutes, entrepreneurs, bagmen and bouncers. The smart and sexy Kim Hollingsworth is there, along with a teenage Johnny Ibrahim (Firass Dirani), brothers Bill...and Louis Bayeh, and notorious cops Trevor Haken and Chook Fowler...The crims and the corrupt cops run Kings Cross together... that is until the Wood Royal Commission into police corruption shakes up the street and all their lives are changed forever.”

79 The appellant submitted, again without contradiction, that Firass Dirani is the person depicted on the billboards.

80 An article entitled “Inside Underbelly” appeared in OK! magazine (referred to by the primary judge (at [28])). It depicted the actor Firass Dirani, the actress Jessica Tovey in street clothes and others. A break out box on the second page of the article stated, “The cops were bent and the crims were cool”, a statement extracted from the text of the article and attributed to Channel Nine. The text also refers to “Firass Dirani, who plays the handsome street-smart and business savvy John Ibrahim” and “Jessica Tovey, who plays rookie cop Constable Wendy, who has a romance with John...”.

81 Reference should also be made to the book. First, it should be noted that in addition to the title of the book (which, as I have said, is identical to the tile of the series), the cover bears the statement:

“The events that inspired the Screentime series for the Nine network”.

In addition the words “TRUE CRIME ON PRIME TIME” appear in a circle on as if stamped on the cover.

82 The following statements appear in chapter 3 in addition to those set out by the primary judge (at [4]):

“Wendy Hatfield had joined the then New South Wales Police Service in April 1992, and two months later was posted to Kings Cross as a constable, where she would serve until May 1995.” (p 42)

“Unfortunately for Hatfield, her involvement in the Royal Commission was not to end there. Just four months later she was outed as a regular at John Ibrahim's nightclub, The Tunnel, where she had formed a relationship with the man the Commission would tag as a new power in the drug scene.

The uncomfortable truth came out during a hearing of the Commission when the legendary criminal lawyer, Chris Murphy, representing a number of Kings Cross identities, was cross-examining Ibrahim.

The shrewd Murphy uncovered the story of how Hatfield had once told a highway patrolman that she was a Kings Cross police officer when she was in a car driven by Ibrahim pulled over for speeding.

Ibrahim, who at the time did not have a driver's licence, gave the officer his younger brother's name. 'She knew I was lying,' Ibrahim ungallantly told Murphy under examination.” (p 43).

[In the context of the issue being raised at the Wood Royal Commission about the appellant going on a diving trip with Mr Ibrahim:]

“Statutory declarations were produced from two people on the trip, the dive school operator and his divemaster. Both knew Hatfield but had never had the occasion to run into a genuine Kings Cross gangster type before, and took a keen interest in Ibrahim's battle wounds when he stripped down for a dive.

The dive school operator said of John: 'I took a closer look at this fellow and he had his shirt off which exposed what appeared to be stab wounds and bullet holes about his abdomen. This caused me to ask him how he received the wounds. He replied words to the effect, "occupational hazard", to which I replied, “Jeez, once is an accident, twice looks as though someone doesn't like you".'

The divemaster said: 'He stands out in my memory because when he was on the back of the boat at the wharf he stripped off his shirt to reveal what appeared to be stab scars on his body. I am an ex-Special Air Services member and the scars on this bloke's body appeared to be either from stab wounds or bullet fire.

'I then asked John if he had worked as an undercover cop. He laughed and said words to the effect, "No, I am on the other side, I'm a crook." I thought he was joking when he said that. He then told me that two of the scars were from 9mm bullets and the others were stab wounds.’

...

The divemaster, whose name was suppressed during the hearings, also noted that on a later dive - without Ibrahim - Hatfield told him that she had been first to a murder scene in Kings Cross and Ibrahim had been somehow involved.” (pp 43 – 44)

Ibrahim ...practically runs the [Cross].

Once, asked about the effect of the Wendy Hatfield episode, he quipped: 'You fuck one cop and the rest hate you for life.'” (pp 47 – 48)

It is not apparent that the last statement was made in evidence before the Wood Royal Commission.

83 As I have said, the book was admitted without objection and was capable of being used for all purposes. It is unnecessary, in my view, to decide whether the book is based on the series or vice versa. There was clearly a strong basis for inferring some connection, having regard to the title, the statements which appear on the front of the book and the photograph of the actor who portrays Mr Ibrahim in the series on the back. The Book Tie-In Agreement also supported the inference of some connection. Despite the two clauses the primary judge quoted, other clauses provided for Screentime to pay royalties to the books authors and for their names to appear in the series’ credits.

84 Even without the direct link for which the appellant contended, however, the book was material the appellant could use to support an inference that viewers of the series could reasonably understand that the character identified as “Constable Wendy” in the series was a portrayal of her. It was not necessary at the stage of preliminary discovery that the appellant adduce evidence which would be admissible on a final hearing to establish particular facts, in order to determine whether there is a serious issue to be tried as to those facts: Geoffrey W Hill & Associates v King (1992) 27 NSWLR 228 (at 230) per McLelland J (as his Honour then was); referred to with approval in International Finance Trust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291; (2008) 232 FLR 37 (at [13]) per Allsop P (with whom Beazley JA agreed).

Reasonable inquiries

85 Although the primary judge said (at [92]) there was no issue that the appellant had made reasonable inquiries for the purposes of UCPR 5.3(1)(a), Screentime contested that proposition. It contended that it had argued at trial, and submitted again on appeal, that the appellant had not made reasonable inquiries because she had not approached the authors of the book and asked them whether they had based the book on the television series. This submission appears to have been overlooked by the primary judge, but it should be rejected in this Court.

86 What constitutes “reasonable inquiries” is a question of fact, to be considered in all the circumstances of the particular case, which includes the relationship (if any) between the applicant and the prospective defendant (Steffen v ANZ Banking Group [2009] NSWSC 666 (at [15]) per McDougall J) and, I would add, the relationship (if any) between the prospective defendant and any source of information.

87 The authors of the book were clearly in the Screentime’s “camp”; the appellant could not be criticised for not approaching them, let alone not calling evidence from them: cf Payne v Parker [1976] 1 NSWLR 191.

A claim for relief

88 I have set out the Civil Procedure Act definition of “claim for relief”. There is force in Screentime’s contention that that expression means, in UCPR 5.3, a claim for final, rather than interlocutory, relief. However, assuming that to be so, that requirement was satisfied here, as the appellant submitted, because any application for an interlocutory injunction would be accompanied by a statement of claim pleading a case in defamation as a basis for final injunctive relief. Furthermore the submission did not go to that part of the appellant’s application which sought preliminary discovery to determine whether to commence defamation proceedings.

Whether the appellant has demonstrated error warranting appellate intervention

89 The primary judge concluded the appellant had done no more than assert an entitlement to sue or that she had a case both because he concluded she had not established the requirement of publication essential to a cause of action in defamation (at [100] – [104]) and because (at [105]): “[h]aving regard to the fact that all of the relevant episodes and the series will have to be considered from the position of the ordinary reasonable viewer in context, no preliminary view can be formed about the potentially tortious nature of what is broadcast until that occurs.” In my view the appellant has demonstrated error on his Honour’s part in both these respects.

Publication

90 According to the primary judge (at [19]), Screentime promoted the series on its website on 18 February 2010 under the heading “Productions” as a “DRAMA SERIES FOR THE NINE NETWORK”. Relevantly the promotion read:

“The cops were bent and the crims were cool. And together they ran the most exciting street in Australia.

...

Then, in 1995, 'tomorrow' came and the Wood Royal Commission cleaned out the Black Empire within the NSW Police.

...

UNDERBELLY: The Golden Mile is the story of the excesses of the empire, the collapse of the empire, the chaos that followed, and the ultimate victory of strong and honest police...seen through the eyes of some of the most sexy, charming, corrupt and deadly people of the time.

Underbelly: The Golden Mile John Ibrahim...”

91 The same website drew the reader’s attention under the heading “Reviews and Related Articles" to publications which clearly foreshadowed and/or were reviews of the upcoming series. Two were dated August 2009 (apparently when the series was being filmed: primary judgment (at [22])), and may best be described as “related articles”. However that which appeared on “TV FIX” was described as “UNDERBELLY: THE GOLDEN MILE FIRST REVIEW, TV FIX, JANUARY 2010”, while those in the Daily Telegraph (“KINGS OF THE CROSS SMELLING LIKE ROSES IN THE NEXT UNDERBELLY”) and on ninemsn (“THIRD UNDERBELLY FOCUSES ON SYDNEY'S SLEAZE”) were both dated January 2010.

92 According to the primary judge (at [21]), a person accessing the first respondent’s website on 18 February 2010 saw a promotion stating

“Underbelly 3: The Golden Mile - Underbelly is returning soon with a brand new series, The Golden Mile”

93 The promotion read:

“Underbelly: The Golden Mile is set in Kings Cross in 1989, where bent cops, straight cops, cool criminals and colourful characters all converged to make their mark. But by 1995 the Wood Royal Commission had put the 'black empire' under threat of collapse as strong and honest police fought to take back control of the most infamous strip in Australia.”

94 The appellant’s application for preliminary discovery necessarily depended on inviting the court to draw inferences from the best material she could access.

95 In my view the evidence the appellant adduced demonstrated that Screentime was promoting a series called “Underbelly: The Golden Mile”, which it said it have made for the “Nine Network”, a description the primary judge applied (at [3]) as a descriptor of Nine (and its affiliates), and on the same day Nine was promoting the imminent broadcast of the same series. Both were using substantially similar promotional material. In my view it was an available inference that Nine had viewed the series prior to agreeing to broadcast it – presumably pursuant to a commercial arrangement. It would defy commonsense to accept it would broadcast, or agree to purchase for broadcast, a series sight unseen, let alone promote it as extensively as the billboard photograph evidence revealed: primary judgment (at [29]).

96 The primary judge (at [102]) inferred that there may not have been publication between Nine and Screentime because there may be an “unusual or ... unlikely ... arrangement” between them “whereby [Screentime] does not part with possession of the recordings that [Nine] is due to broadcast until some date closer to the screening time, which date has not yet arrived.” The Court was not taken to any material which supported the existence of such an arrangement. If it existed it was within the respondents’ ability to prove it, just as Screentime sought to dispel the notion of collusion between the authors of the book and the series’ screenplays by producing the Book Tie-In Agreement. The fact they did not do so supports the inference no such arrangement existed. In my view the more available inference is that which I have drawn. Further any such conclusion was contrary to Mr Leopold’s frank statement to the primary judge in the course of submissions that Screentime “could hardly ... say we have not published to Channel 9” – a publication he sought to discount by adopting Nine’s submissions about the colourable nature of the appellant’s claim insofar as she sought to rely on inter-respondent publication: see trial transcript, 3 March 2010 at p 52.26.

97 Further the material which appeared on Screentime’s website to which the date January 2010 was attributed clearly supports the inference that the authors of the articles had had access to one or more episodes of the series for the purposes of review.

98 Finally, as it is apparent the series has been filmed and is ready for broadcast, it is apparent that the screenplays – which were part of the materials sought in the application for preliminary discovery – must at least have been published to the director and the actors who took part in the filming.

99 In my view the primary judge erred in concluding (at [102]) that there was “no satisfactory evidence that there has been a relevant publication of the series or any part of it by one defendant to any other defendant.” In my view the appellant also established that all, or part, of the series had been published to third party reviewers.

Whether the evidence demonstrated the series may be defamatory of the appellant

100 In my view the material I have set out in relation to the issue of identification also supported the inference at the level necessary for an application for preliminary discovery (not requiring demonstration of a prima facie or even pleadable case) that the series may defame the appellant.

101 That material, as I have found, identified the appellant, as the person to be played by Jessica Tovey in the series, as having had a sexual relationship with Mr Ibrahim. The contents of the book established that there were extrinsic facts capable of supporting one or more true innuendos (Grubb v Bristol United Press Ltd [1963] 1 QB 309), including that Mr Ibrahim had been named in the Wood Royal Commission as “a new power in the drug scene”, that he was “a genuine Kings Cross gangster type” and that he had identified himself while on a dive trip with the appellant as a “crook” and that his body bore scars consistent with that self-description; and that the appellant had attended a murder scene with which Mr Ibrahim had somehow been involved.

102 The primary judge (at [105]), with respect, tested the question of whether the appellant had established the series was likely to depict her in an “arguably defamatory” manner at too high a level – requiring her, in effect, to know what was in the very publications she was seeking access to in order to determine whether she should commence proceedings. It was not incumbent upon her to establish that she had an “arguable” case, only that she “may be entitled to make a claim for relief”. In my view the primary judge erred in concluding that she was not so entitled. The objective evidence established at the requisite level both that the series may depict the appellant, that it had been published and that it may be defamatory of and concerning her. It was not necessary, as his Honour appears to have believed, that he be able to reach a “firm view that there [was] a right to relief”: Telstra Corp Ltd (at [58]).

103 A similar error, with respect, was made by the primary judge in dealing with whether the appellant may be entitled to make a claim for an interlocutory injunction. Critically, in rejecting this claim, his Honour adopted (at [108], [112] – [113]) the reasons he had given in rejecting the appellant’s case that she may have a claim in defamation. This meant, in a sense, that the other discretionary considerations his Honour considered had little, or no, significance; although some, as shall become apparent, are relevant to the issue of whether his Honour might in the ultimate exercise of his UCPR 5.3 discretion have granted the relief sought.

Exercise of the discretion

104 In my view the evidence before the primary judge satisfied subparagraphs (a), (b) and (c) of UCPR r 5.3. It rose above the level of mere assertion. It was reasonably capable of inclining the mind towards the fact that the appellant may have a claim for relief of the nature she foreshadowed against Nine and Screentime.

105 As I have said, the fact that Nine has indicated that it would resist any application for an interlocutory injunction on the basis of justification is a relevant, but not determinative, factor to be taken into account in considering the exercise of the UCPR 5.3 discretion. Accepting that the exercise of the discretion will be guided by whether an order is necessary in the interests of justice (Cojuangco), the Court should consider both the imputations the appellant contends might be conveyed based on the information substantially gleaned from the book, and, too, the extent to which Nine may be able to justify such imputations.

106 In my view, just as the book establishes that the series may defame the appellant, so, too, chapter 3 of the book makes it likely that any defamatory depiction of the appellant will be substantially based on events which came to light during the Wood Royal Commission or which were otherwise the subject of public discussion at about that time. That is apparent, too, from the promotional material. It can be inferred that Nine would be able to adduce evidence of the events and conversations referred to in chapter 3 of the book. That inference is as available, in my view, as the inference that the series may convey imputations of the nature of those the appellant alleged were conveyed by the book – a proposition the respondents did not dispute. Although, as I have said, the question of justification will ultimately have to be determined by a jury, there is, at the level of the material available for the purposes of the present application, sufficient information to conclude that it cannot be said a defence of justification is not available: cf Bonnard (at 284).

107 It would not be in the interests of justice to grant a preliminary discovery order to enable the appellant to consider whether she should commence proceedings for an interlocutory injunction in such circumstances.

108 I would also take into consideration in the exercise of the discretion the importance of leaving free speech unfettered: Bonnard (at 284).

109 The common law recognises that people have an interest in their reputation and that their reputation may be damaged by the publication of defamatory matter about them to others: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460 (at [1]) per French CJ, Gummow, Kiefel and Bell JJ. The common law also recognises that in considering whether to restrain an allegedly defamatory publication, the court should take into account the significance of the value of free speech: O’Neill.

110 Consistently with these two principles, the objects of the Defamation Act 2005 (NSW) (and corresponding legislation in all Australian States and Territories), include:

“3

...

(b) to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance, and

(c) to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter...”

111 Both objects may be seen to adopt the principles set out in Article 17 (“[n]o one shall be subjected ... to unlawful attacks on his honour and reputation”) and Article 19 (“[e]veryone shall have the right to freedom of expression”) in the International Covenant on Civil and Political Rights (“ICCPR”). Regard may be had to the ICCPR, and Article 19 in particular, to give content to the concept of “freedom of expression” in s 3(b) of the 2005 Act and to emphasise (if emphasis be necessary) that that concept is not confined to freedom of speech in the sense of the right of the media to report on and discuss matters of public interest (cf Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520; Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57) but extends to all kinds of information whether fact, fiction or “faction” (a literary genre where factual information is presented with some of the freedom for interpretation and intuitive insights that fiction allows: Macquarie Dictionary Online) as it appears the series may be: see Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 (at 287) per Mason CJ and Deane J; cited with approval in Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337 (at [97]) per Gummow and Hayne JJ.

112 The Wood Royal Commission dealt with matters fundamental to the administration of justice in this State: the integrity of the Police Service. The appellant was a police officer whose conduct, it is apparent, was rendered “infamous” (book, at p 48) by the evidence given during the Wood Royal Commission. That status emerged some fifteen or so years ago, at least when the evidence referred to in chapter 3 of the book was given. Her past is, accordingly, in the public domain: cf O’Neill (at 14]) referring with approval to Slicer J’s dissenting reasons for refusing the plaintiff injunctive relief in the Tasmanian Court of Appeal below).

113 In such circumstances, it can be said that the appellant has lost whatever right of privacy she might be entitled to in respect of that aspect of her reputation: see generally John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484.

114 It might be accepted that the series is “faction” and that to the extent Screentime has embellished the appellant’s character issues of freedom of expression in the sense often referred to in the authorities in this area do not arise. However, as I have said, one of the objects of defamation law in Australia is “to ensure that the law of defamation does not place unreasonable limits on freedom of expression”. The evidence did not support the proposition that the Court should accede to an application for preliminary discovery to ascertain whether whatever literary flourishes the authors of the screenplay have used, or whatever form of method acting Ms Tovey may have deployed to play her character, should be restrained prior to the series being broadcast.

Colourable claim

115 Finally I note that Nine asserted that the application, especially insofar as it was said to be based on publication between the respondents, was “colourable”, in the sense that the appellant did not have any genuine intention of suing for defamation in respect of any such limited publication and any such proceedings, in any event, was “obviously doomed to fail”: Cook v Pasminco Ltd [2000] FCA 677; (2000) 99 FCR 548 (at [14]) per Lindgren J. It contended that to that extent the application was “fabricated” to attract UCPR 5.3 jurisdiction: cf Cook v Pasminco Ltd (No 2) [2000] FCA 1819; (2000) 107 FCR 44 (at [55] – [60]) per Lindgren J. Screentime appeared to adopt that submission in the course of argument.

116 Nine did not advance this submission in its notice of contention and, assuming it was raised below, it was not dealt with by the primary judge. It is not clear how Nine (and Screentime) sought to bring it to bear in these proceedings, but, in any event, it can be dealt with briefly.

117 I would not draw the inference for which Nine contends. In my view the evidence demonstrated the appellant was determined to pursue her rights in respect of the publication even as between respondents and to those to whom they may have published the broadcasts. She would be entitled even in a limited publication case to rely on the “grapevine effect”: Crampton v Nugawela (1996) 41 NSWLR 176. The proposition that any such action was “obviously doomed to fail” depended on the submission that any such inter-respondent publication would attract a defence of qualified privilege. That conclusion does not appear to me to be inevitable absent a clear identification of the nature of any such publication and any arrangement pursuant to which it was made.

Exhibit 1

118 As I have said, the primary judge did not ultimately use exhibit 1 in reaching his conclusion. The appellant’s appeal in respect of his admission of that exhibit was made for more abundant caution, lest it put against her that she had acquiesced in an erroneous interpretation of s 17(2) of the Royal Commissions Act 1923 (NSW). I agree, however, with Young JA’s consideration of this issue.

Nine’s notice of contention

119 Nine sought to tender an extract from the Final Report of the Wood Royal Commission on the second day of the hearing when the parties’ cases had been closed and the matter merely adjourned for the purposes of the primary judge hearing further submissions of the admissibility of exhibit 1. His Honour, in short, refused Nine’s application to reopen. This was an exercise of his Honour’s discretion on a matter of practice and procedure. Nine did not identify any error on his Honour’s part in this respect which would attract appellate intervention.

Undertaking as to damages

120 In the course of argument the Court raised with the appellant whether her ability to give an undertaking as to damages was a relevant consideration. She contended it was not because, should the court accede to her application and should she be successful in obtaining an interlocutory injunction, Nine would suffer no loss because a presumably suitably edited series could be broadcast in the future. The respondents did not contest this proposition. I agree with Sackville AJA’s comments (at [167]).

Orders

121 I propose the following orders:

1. Leave to appeal granted.

2. Draft notice of appeal in the White Book to stand as the notice of appeal in the proceedings.

3. Appeal dismissed with costs.

122 YOUNG JA: I have read in draft the reasons of McColl JA. I agree with her Honour’s conclusions. However, I regret to say that I do not feel myself able to endorse some of her Honour’s reasoning or all her conclusions on incidental matters. Were it not for the fact that, practically speaking, the Court must give judgment today, I would deal with some of these at length. Because of time constraints, I will be brief.

123 In applications for preliminary discovery, there are jurisdictional questions and considerations of discretion.

124 When considering jurisdictional questions, the court approaches the subject by construing the rule beneficially so far as the words of the rule allow, St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147[26a]. As Hely J notes in that passage, the proper brake on any excessive use of the provision lies in the fact that the court has a discretion as to whether to make an order even if jurisdiction is established.

125 The basal matters as to jurisdiction to make an order for preliminary discovery under Part 5.3 of UPCR were more or less generally accepted.

126 However, as the reasons of McColl JA show, there were some vital differences in the approach to the element that the appellant had to establish namely as to what was covered by the words “the applicant may be entitled to make a claim for relief”.

127 The primary judge considered that it was necessary for the appellant to have established that there had been some prior publication of defamatory matter about her. I cannot agree with this, all the plaintiff had to establish was that it ‘may well’ be the case (Black v Sumitomo Corpn [2001] EWCA Civ 1819; [2002] 1 WLR 1562,1584 [71]) or that she has reasonable cause to believe that she has a right to claim, (Panasonic Australia Ltd v Ngage Pty Ltd [2006] NSWSC 399; (2006) 69 IPR 595,599 [22]).

128 In any event, the way in which the promotional material of those in the defendant’s camp was presented to the public would engender such a belief in the objective mind of an observer. The suggestions in submissions that this was not so and that it was all in the appellant’s imagination and that the show was not as she thought would lead to the view if one took those submissions at face value that the publicity was all misleading and that in reality the production was rather uninteresting. A judge does not put aside his or her common sense and accept such submissions.

129 Thus I agree with McColl JA [95], which I will paraphrase, that it would defy common sense to accept that a major television network would agree to broadcast a program of this nature and to spent money extensively advertising it sight unseen.

130 However, one point did seem to emerge from what was said and not said in submissions from the respondents’ camp. It would seem that the program makers did not feel sufficiently confident to portray the primary male figure as a gangster and criminal, but felt that it was open slather to cast dirt upon the relatively defenceless woman appellant, a retired member of the police service, because it thought it had a defence of truth because of what occurred at the Wood Royal Commission.

131 I will return to the admissibility of that material in due course.

132 I agree with McColl JA that the jurisdiction to make an order for preliminary discovery was established.

133 I now turn to the vital question, that of discretion.

134 Because of the view that the primary judge took of the case, he did not get to this part of the case.

135 The English judges have endeavoured to ensure by use of their discretionary powers that the provisions of what they call “Pre-action disclosure” are not used oppressively and particularly so that plaintiffs do not use it to go fishing to see if they actually have a claim, see eg Zuckerman, Civil Procedure 14.83 (LexisNexis UK 2003) 14.83.

136 The decisions of the Federal Court on more or less corresponding rules indicate that the English approach that the rule is not to be used to permit a fishing expedition as to whether a cause of action exists does not apply in Australia, see Paxus Services Ltd v People Bank Pty Ltd [1990] FCA 500; (1990) 99 ALR 728, 733 and the St George case at [26h].

137 The Court’s discretion exists to prevent the procedure being used oppressively and to ensure as much as possible that the procedure is used to fulfil its aim which is the attainment of justice eliminating barriers which would deny justice supplied in a cheap and quick resolution of disputes.

138 Because of this it is necessary to consider the apparent strength or weakness of the appellant’s case and to consider that, while some fishing is allowed, it is kept within reasonable bounds.

139 I myself would not wish to discuss as matters of jurisdiction whether “claim for relief” means “cause of action” or the remedy of injunction (whether final or interlocutory) or some combination. I would also not, when considering jurisdiction, meld in with the right created by the rule to obtain preliminary discovery the law and practice as to when a court might grant an injunction to prevent the publication or republication of defamatory matter.

140 However, this last-mentioned matter is a weighty matter to consider when deciding whether in the court’s discretion it should make an order.

141 I do not consider that there is any special barrier erected where the defendant is a media organisation that says it has a right of free expression. The respondents do have the problem in the present case in that they want to have the best of both worlds by both saying that their production is a work of fiction as well as being based on fact. The program is not in any sense of the word a statement of fact or opinion in the real sense. In any event, this is only a peripheral matter in my view to be considered in the exercise of discretion.

142 The respondent says that insofar as a common law action in defamation is concerned, damages are an adequate remedy. This may well be correct and is as stated in the authorities of the past. However, it must not be forgotten that the more modern way of asking the appropriate question is “Is it just in all the circumstances, that a plaintiff should be confined to his remedy in damages”, per Sachs LJ Evans Marshall & Co v Bertola SA [1973] 1 WLR 349, 379 and see ” Gummow J when writing extra-curially in (1993) 56(3) Law & Contemporary Problems 83 “The Injunction in aid of legal rights—An Australian Perspective”.

143 A problem for the court is that the respondents, insisting on their legal rights, have been so coy. They have put on most of their evidence by solicitor’s affidavit doubtless so that ‘real people’ cannot be cross- examined and they have said, “We’re not going to tell you what’s in the program, but we will say that it is not necessarily what’s in the tie in book.” There is then solicitor’s affidavit endeavouring to convince the court how it could not possibly be the case that there was any co-operation between the writers of the tie in book and the people working on the television program. I repeat my comment about judges’ common sense.

144 So far as injunctions are concerned, it is clear that the appellant would have an extremely difficult task in obtaining an injunction. Not only is the bulk of authority against her, but she would need to give an undertaking as to damages and the possible damages in preventing or causing the rescheduling of the showing as scheduled of a program on national television could be considerable.

145 On the other hand, it might be said that if everything was as innocent as the respondents claim, why not let the appellant’s advisors see the program in advance with undertakings as to confidentiality in place. Whilst there is no compulsion on the respondents to do this, their failure to do it would probably be a reason for mitigating any claim for damages caused by the grant of an injunction.

146 The respondents say that as the appellant’s misdeeds are in the public domain, she has lost any right to privacy even though that was over fifteen years ago. I am not presently convinced that that this is the situation in the present case, but have not had time to research the matter.

147 Then there is the allegation that if the appellant’s suspicions as to what is in the program are correct (which is not admitted) then they are true and under the authorities, no injunction would be granted, see eg Naoum v Dannawi [2009] NSWCA 253 [32].

148 However, it seems to me that this allegation of ‘truth’ is, for the purpose of this court exercising a discretion, merely one of the matters to take into account.

149 In an application for injunction or in a common law action for defamation, who has the onus of proving or disproving truth may be significant. If the onus is on the present respondents, one needs to consider how far the transcript before the Wood Royal Commission might be used against the appellant in any subsequent proceedings.

150 Section 17(2) of the Royal Commissions Act 1923 is as follows:-

“An answer made, or document or other thing produced by a witness to or before the commission shall not, except as otherwise provided in this section, be admissible in evidence against that person in any civil or criminal proceedings.”

151 The admissibility of the transcript was argued before the primary judge on four bases. Three of these the judge rejected, but found that the appellant had waived the privilege conferred on her by s 17(2).and allowed the tender of some of the transcript of the evidence of the appellant before the Wood Royal Commission.

152 To a degree, the primary judge relied on what Ireland J had said in Bayeh v New South Wales [1999] NSWSC 1070; 108 Crim R 364 [17] that the sub-section provided a privilege against self incrimination which could be waived.

153 It is always a chancy business to redefine a right in terms of a known category of rights and then apply the rules that relate to that category. In my view it is a false analogy to equate the statutory right conferred on a witness before a royal commission by s 17(2) with legal professional privilege.

154 In my view there is no room for any waiver of the statutory protection given by the Act. The statute plainly says that the evidence is not to be admissible against the witness. During argument, appellant’s counsel put that “against that person” meant in any way against that person’s interest. Although this was said in reply, it was based on Reg v Bayeh [1999] NSWCCA 82 and must be correct.

155 Of course, the witness may agree to the transcript being tendered or may tender it herself. If that occurs, the tender is not ‘against the witness’ see Bayeh in the Court of Criminal Appeal. However there is no room for the rules such as waiver by deploying other material in evidence which will allow tender ‘against’ a witness to stand in view of the plain words of the statute.

156 Thus, both in the instant proceedings and in any subsequent defamation action, the respondents would be prevented from tendering direct evidence of what the witness said before the Wood Royal Commission. Whether that material could be gotten into evidence in some other way is outside my consideration.

157 It is necessary for this court to put these threads together and ask itself whether the court should exercise its discretion in favour of making an order for preliminary discovery.

158 In my view, practically speaking, preliminary discovery is only useful insofar as the appellant may wish to seek an injunction to prevent publication or further publication of defamatory material. Thus the probable lack of the appellant’s ability to secure an interim injunction is perhaps the most significant factor in considering whether, in the Court’s discretion, the order the appellant seeks should be made.

159 As I find this vital factor against the appellant as well as the other matters I have noted , I agree with McColl JA that the court should not grant an order for preliminary discovery.

160 Accordingly I agree with the orders proposed by her Honour.

161 SACKVILLE JA: I agree with McColl JA that the evidence before the primary Judge should have led his Honour to conclude that sub- paragraphs (a), (b) and (c) of Uniform Civil Procedure Rules (“UCPR”), r 5.3 were satisfied. I agree generally with her Honour’s reasoning in this regard.

162 Like McColl JA, however, I would decline to exercise the discretion conferred by r 5.3 in favour of the applicant (to whom I shall refer as the “appellant”). As McColl JA has explained, the inference is available from the evidence that any application for an injunction, based on defamatory imputations of the kind identified by the appellant, is likely to be met with a defence of justification. At this stage, of course, it cannot be determined whether such a defence would be successful. Nonetheless, in these circumstances, the chances of the appellant obtaining injunctive relief must be regarded as extremely low, if not remote: Australian Broadcasting Commission v O’Neill [2006] HCA 46; [2006] 8 CA 46; 227 CLR 57, at 56-59 [16] - [19], per Gleeson CJ and Crennan J.

163 The appellant does not require an order for preliminary discovery to decide whether to institute proceedings claiming damages for any defamatory imputations that may be conveyed by the series. Whether the series in fact conveys defamatory imputations will be apparent once the broadcast takes place. It will then be a matter for the appellant to decide whether she wishes to institute proceedings claiming damages for defamation.

164 The forensic objective underlying the appellant’s application for preliminary discovery under UCPR, r 5.3 can only be to enable her to determine whether she should commence proceedings for relief including an injunction to restrain the first and second respondents from broadcasting those portions of the series that concern her. A final injunction would be of no practical value to the appellant unless she is able to obtain an interlocutory injunction pending a final hearing.

165 That the appellant’s chances of obtaining an interlocutory injunction are extremely low or remote is, in my opinion, a powerful consideration militating against exercise in her favour of the discretion conferred by r 5.3. There would be little point in ordering the respondents to give preliminary discovery of the material sought by the appellant if she stands little or no chance, in any event, of obtaining injunctive relief.

166 I prefer not to express a view as to whether the appellant has lost her right to privacy or whether the right of the media to comment on matters of public interest should provide an independent basis for declining to exercise the discretion in the appellant’s favour.

167 I do not think it is necessary to consider the significance of the appellant failing to give evidence of her ability and willingness to give an undertaking as to damages, should she institute proceedings claiming interim injunctive relief against the first and second respondents. However, I am inclined to think that it would be somewhat odd if a potential plaintiff could obtain preliminary discovery, for the purpose of deciding whether to claim injunctive relief in respect of a threatened defamation, without adducing evidence of his or her ability or willingness to give such an undertaking.

168 I should add that I agree with the observations of Young JA concerning the admissibility of the transcript of proceedings in the Royal Commission into the New South Wales Police Force. However, the admissibility of that transcript does not alter the conclusions I have reached. As McColl JA has pointed out (at [11]), the book entitled “Underbelly: The Golden Mile” was admitted into evidence without objection. The material in chapter 3 is adequate to demonstrate that the foreshadowed defence of justification cannot be dismissed as spurious or as necessarily lacking in foundation.

169 I agree with the orders proposed by McColl JA.

**********

LAST UPDATED:
8 April 2010