JUDGMENT
1 JOHNSON J: This is an urgent application to restrain the broadcast at 6.30 pm this evening of a segment scheduled to be aired on the Channel 9 programme, "A Current Affair". The segment concerns the Fairmont Resort at Leura. The Plaintiff, Brighten Pty Limited, is the registered proprietor of the property which comprises the Fairmont Resort. The First Defendant is Nine Network Australia Pty Limited. The Second Defendant is Ben Fordham, and the Third Defendant is Catherine Williams.
2 The present hearing commenced at 2.00 pm today and has proceeded without a break until the present, when I am delivering judgment at 5.05 pm.
3 The Plaintiff seeks an interlocutory injunction restraining the broadcast of the segment this evening. The hearing has proceeded this afternoon with affidavit evidence being proffered, and indeed, some cross-examination of the principal witness for the Plaintiff.
4 I have heard detailed submissions from counsel with respect to the application. I will seek to confine my remarks to the matters essential to the determination of the present application given the time at which this judgment is being delivered, and the scheduled time for the broadcast of the programme.
5 The Plaintiff foreshadows causes of action in trespass, misleading and deceptive conduct under s.52 Trade Practices Act 1974 (Cth) and in defamation.
6 The present interlocutory application is based solely upon the foreshadowed causes of action in trespass and under the Trade Practices Act 1974 (Cth). This approach has, no doubt, been adopted given the difficulties confronting an applicant for an interlocutory injunction to restrain publication of a programme said to be defamatory, having regard to the decision in Australian Broadcasting Corporation v O'Neill [2006] 227 CLR 57.
7 The evidence reveals that, within the last two weeks, persons who appear to have an association with "A Current Affair" have stayed at the Fairmont Resort. The affidavit of Tracy Helen James, and the documents which form part of exhibit THJ1, indicate that a person described as "Catherine" is said to have made complaints about a room at the Resort, and that a person by the name of Damian Murphy (whom I infer is an employee of the First Defendant), stayed at the Resort, and that on 17 April 2009, the Second Defendant, Ben Fordham, and a film crew presented themselves at the Resort. There is some issue, on the evidence, as to what precisely occurred at that time and what was said, but it seems that the best evidence is in the form of a contemporaneous file note of a David Whittaker, which recorded that some telephone contact had occurred with Ms James, and that Mr Fordham and the film crew then withdrew.
8 The evidence before the Court includes promotional clips broadcast on the evening of 17 April 2009, which indicated that the programme scheduled to be aired tonight would be critical of the Fairmont Resort. The promotional material drew an analogy to "Fawlty Towers", and referred to aspects of accommodation and facilities in a manner which clearly foreshadowed an adverse broadcast with respect to the Resort.
9 The evidence before the Court, including affidavits relied upon by the First Defendant, leads me to conclude, for the purpose of this interlocutory application, that the programme will include material produced by "A Current Affair" employees who have had some contact with the premises, together with material from guests who, it would seem, will speak in adverse terms about the Resort.
10 The programme itself is not in evidence. The Plaintiff relies upon a combination of the promotional material, and evidence which it has available to it concerning contact by employees of the First Defendant with the Resort for the purpose of the preparation of the story.
11 The submissions with respect to this application focused on the causes of action in trespass and under s.52 Trade Practices Act 1974 (Cth). I will not rehearse in detail the arguments which have been put with respect to the claim in trespass. The Plaintiff has referred to the decision of Young J (as his Honour then was) in Lincoln Hunt Australia Pty Limited v Willesee (1986) 4 NSWLR 457 and decisions of the Supreme Court of Queensland in Emcorp Pty Limited v Australian Broadcasting Corporation [1988] 2 Qd Reports 169 and Rinsale Pty Limited v Australian Broadcasting Corporation (1993) Aust Torts Reports 81-231. The decision of Young J provides authority for the proposition that an injunction may be granted in circumstances where trespass to land has occurred giving rise to film footage taken in circumstances of trespass, but that the Court will only intervene if the circumstances are such as to make publication unconscionable (page 463). Young J stated that the Court will grant an injunction if it can be seen that irreparable damage will be suffered by the Plaintiff if such an injunction is not given. Such may occur where damages are virtually impossible of quantification. It is not only that the Plaintiff must show that there is a strong prima facie case that the trespass is committed and that it is the sort of case where the Court may grant an injunction, it must also show that irreparable damage is likely to be suffered if an injunction is not granted and that the balance of convenience favours the grant of an injunction (at 464).
12 The parties have advanced submissions by reference to the decision of the High Court of Australia in Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] 208 CLR 199, and in particular at 229-230 (at [51] to [52]) and 245-247 (at [100] to [103]). It is fair to say that the High Court of Australia has viewed with some circumspection, the circumstances in which an injunction might be entertained where the cause of action is one in trespass. Indeed, the judgments of Gleeson CJ and Gummow and Hayne JJ to which I was taken in that decision, do not provide any particular support for the grant of relief as sought by the Plaintiff in the present case.
13 With respect to the claim under s.52 Trade Practices Act 1974 (Cth), counsel addressed by reference to the decision in TCN Channel Nine Pty Limited v Ilvariy Pty Limited (2008) 71 NSWLR 323.
14 Although the two causes of action which have been foreshadowed of trespass and misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) are discrete causes of action, I accept the submission of Mr Dawson, for the First Defendant, that they are in the context of this case, essentially variations on a theme.
15 I am conscious that this is a claim for interlocutory relief. I am not determining the question of whether the Plaintiff can establish the causes of action which have been foreshadowed. Nevertheless, it seems to me that I am entitled to consider such evidence as there is on the question of trespass to determine whether there is a prima facie case of trespass.
16 I am conscious that there are limitations arising from the evidence which is before the Court at present. It seems to me that the circumstances of the film crew accompanied by Mr Fordham arriving, and after a time departing on 17 April 2009, provides little assistance to the Plaintiff on this application. The images depicted on the promotional material include images of various persons, some of which at least were taken seemingly inside the Resort itself. There are some images of Mr Fordham and others.
17 It seems to me that this is a case far removed from the circumstances considered by Young J in Lincoln Hunt, and other cases where the Lincoln Hunt principle has been applied. On the face of it, journalists have, in a type of undercover activity, stayed at the premises. There may have been photographs taken in that context. There is, on the material before the Court, evidence that complaints have been made by other guests as well. It is not submitted by the Plaintiff, on the present application, that anything intended to be broadcast is untrue or incorrect with respect to complaints made about the state of the premises at the relevant times.
18 For present purposes, I pose the test applied by Young J in Lincoln Hunt of unconscionability. It does not seem to me that there is a prima facie case of trespass here, and in any event, even if I was wrong in that respect, I am not satisfied that the test of unconscionability is made out. Even if I was wrong in that respect, it seems to me that the availability of damages including, if the Plaintiff can make out a case for them, exemplary damages, would be an adequate remedy in this case.
19 I do not think that the additional features relating to the Trade Practices Act 1974 (Cth) claim advance the matter with respect to the application for interlocutory relief. It seems to me that the concept that a journalist who stays at a hotel, for the purpose of undertaking a review or report about the quality of services provided, would be at risk of being sued for false or misleading conduct concerning the review or report as a result of an omission to reveal his or her true identity and occupation as a journalist, would be a substantial step and, indeed, a far reach.
20 I emphasise again, that these observations have been made in the context of an urgent interlocutory application. It seems to me, however, that the Plaintiff encounters considerable difficulty with respect to the issues of serious question to be tried and balance of convenience. As Young J observed in Lincoln Hunt, the question is one of a prima facie case. As I have said, I am not persuaded that a prima facie case with respect to these causes of action has been demonstrated. Even if I was wrong in that respect, I am not satisfied that damages are not an adequate remedy to the Plaintiff.
21 In all the circumstances, I decline to grant the interlocutory injunction sought in paragraph 4 of the Summons filed today.
22 I note that in Lincoln Hunt, Young J observed (at page 465) that prima facie the ordinary rule in this sort of application would be that the costs of both parties on the application should be costs in the cause. It seems to me that that is the appropriate starting point, but I will hear the parties as to whether some other order as to costs is appropriate in the circumstances of the case.
[Counsel addressed on costs and further orders]
23 I direct that the Summons be listed for directions before the Registrar at 9.00 am on Monday, 11 May 2009. The costs of today's application are reserved. In the event that the parties wish to advance further submissions with respect to the question of costs, then the matter can be relisted before me, by arrangement, for that purpose.