Danwer v Nine Network Australia Pty Ltd

This matter came before me as Duty Judge as an urgent application for an interlocutory injunction to restrain a broadcast of a well-known current affairs program. The hearing commenced shortly after 5 PM with regard to a transmission that I at first believed was to occur at 6.30 PM, but I was thereafter told that would be at 7 PM. I stood the matter in the list until 5.40 PM so that my Associate could make enquiries about the attendance of the opponent, Nine Network. At the latter time, there was no appearance, and I felt it imperative to commence hearing the matter ex parte. At about 6 PM counsel for the defendant kindly attended at extremely short notice. I informed him of what had passed between the solicitor for the plaintiff and me, and he was provided with copies of documents that had been informally provided to me by the solicitor for the plaintiff at the commencement of the matter.

At the end of the hearing, at about 6.25 PM, I dismissed the application, and ordered that the plaintiff must pay the costs of the defendant. On the assurance of the solicitor for the plaintiff that there was no urgency about the provision of my orders, I indicated that I would provide them today.

The application proceeded by way of a handwritten summons seeking an injunction, and a handwritten notice of motion seeking that the matter be heard urgently and ex parte. I was also provided with a letter of 17 February 2016 from the solicitor for the plaintiff to the defendant asking that the transmission be delayed until a criminal appeal could be heard, and threatening an injunction if an urgent reply were not received. No affidavits were read or oral evidence called in support of the application; by necessity, the application proceeded based upon the letter, and things I was told from the Bar table.

The solicitor for the plaintiff explained that his client was previously a prison officer, and is currently employed as a homeopath. On 27 January 2016, he was convicted in the Local Court of New South Wales of committing an act of indecency against an adult. I was told that he is to be sentenced on 11 March 2016, and that he has already filed an appeal against conviction only to the District Court of New South Wales that is listed to be heard on 24 March 2016.

I was also told that the plaintiff has a previous conviction for a prior act of indecency committed against an adult. He was fined for that offence in 2010. I was told that the offence arose in the circumstances of a police undercover operation, whereby the victim in the matter was a police officer dressed as a schoolgirl.

The solicitor for the plaintiff informed me that he had seen the promotion for the TV program, and it featured cameras placed very close to the face of the plaintiff whilst he was asked questions by a reporter. Those questions were on the general topic of why the plaintiff had offended in the ways that he had. It was said that that questioning took place outside the place of employment of the plaintiff.

It was said that the plaintiff was a member of a small ethnic and cultural community within the suburbs of Sydney; that one can infer that the program will be adverse to the plaintiff; and that it will lead people to change their views of him adversely. It was also said that the community is a close one, and the plaintiff has a young daughter who is approaching high school. It was said that the broadcast will very likely have a deleterious effect on her that cannot be compensated by monetary damages.

As well, it was said that his homeopathy practice will be damaged. Furthermore, if the plaintiff is imprisoned on 11 March 2016, in light of his work as a prison officer in the past, his safety will be in danger, and that danger will be exacerbated by publicity.

With regard to the balance of convenience, the solicitor for the plaintiff submitted that it would not be overly detrimental to the defendant if the program were not broadcast, but it would be very beneficial to the plaintiff.

Finally, it was said that the broadcast could prejudice the District Court judge who will, in six weeks or so, hear the appeal against conviction. It was said that the judge may either watch the TV program or hear about its contents, and there is a possibility that the judge, even unconsciously, will become prejudiced against the plaintiff in his criminal appeal.

The following are the reasons why I rejected the application.

First, I did not accept the submission about the possible adverse effect on the mind of a District Court judge. Counsel for the defendant took me to Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 at 549, and the proposition of Kirby P that, in almost all circumstances, one proceeds on the presupposition that “a judge will not be affected, or adversely influenced, by pre-trial publicity”.

To my mind, the criminal justice system operates on the assumption that magistrates and judges are capable of putting material that is not admitted in the hearing from their minds. To give but one of many examples: magistrates (and judges in judge-alone trials) are not disqualified after they have ruled on the voir dire that material highly adverse to the defendant or the accused is inadmissible.

Secondly, as counsel for the defendant pointed out, the leading authority of the High Court of Australia with respect to interlocutory injunctions emphasises that an interlocutory injunction against an alleged impending defamation will only be granted in the clearest of cases: see Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at [18]-[19]. There the High Court said:

I was not satisfied that this was the clearest of cases.

Thirdly, I accepted that in all likelihood the program will be adverse to the plaintiff. But, as counsel for the defendant submitted, that is not the end of the matter in terms of an actionable defamation leading to an award of damages. That is because, in light of the entry of two convictions for sexual offences in open court, one can expect that the defendant would rely upon, at least, the defences of justification and of fair report of proceedings of public concern.

Fourthly, I accepted that one can infer that the program will have adverse consequences for the plaintiff and perhaps his family. But there was nothing to suggest that damages would not be an appropriate remedy if such consequences were to occur in a way for which the defendant is liable.

Fifthly, I did not accept the submission of the solicitor for the plaintiff, that to prohibit the broadcast would have no or little adverse effect upon the defendant. To the contrary, I took the view that to restrain the transmission half an hour or so before its scheduled time would have been very disadvantageous, not least financially, to the defendant.

Finally, the fact that I received no sworn evidence whatsoever led me to approach the instructions that had been provided to the solicitor for the plaintiff, and conveyed by him to me, with a degree of circumspection.

In short, I was satisfied neither that this was a pellucid case of an impending defamation; nor that damages would be an inadequate remedy; nor that the balance of convenience favoured restraining the defendant.

It was for all of those reasons that on 17 February 2016 I made the following orders: