Carol Anne Kidu v Hollie Fifer

Supreme Court of NSW|2016-06-17|Before: Rein J

nt) Beacon Films Pty Ltd (3rd Defendant) Representation: Counsel:

B. McClintock SC, S. Kaur-Bains (Plaintiff) R. Potter, M. Maconachie (Defendants)

Kennedys Law (Plaintiff) Broadley Rees Hogan (Defendants) File Number(s): 2016/85991 Publication restriction: Nil

The Plaintiff's Credibility

There are a number of factors which lead me to have real concerns about the Plaintiff's credibility: 1. In giving her evidence the Plaintiff frequently gave unresponsive answers to questions asked or sought to add material that was not in answer to the question for example: T.12.42-49, T20.25-36, T30.42-31.4, T35.40-50, T53.35-41, T55.40-46, T88.49-89.5 and even in re-examination T116.26-29, T121.1-23. 2. The Plaintiff in her first affidavit gave a version of a conversation with Ms Fifer at the time that the Plaintiff signed the consent form in Melbourne: see paras 34-37 of the Plaitiff's first affadavit. There was no such conversation because Ms Fifer was not in Melbourne on that occasion, and it is clear that it was not Ms Fifer who handed the form to the Plaintiff but Dimity, at Ms Fifer's request. 3. When faced with emails and SMS messages sent by Ms Fifer to the Plaintiff which contained material destructive of the Plaintiff's contention that she thought Ms Fifer was only ever involved in a student assignment the Plaintiff sought to assert that she had not properly read, or appreciated, the content of those emails. See: 1. T30.43-35.50 2. T36.1-43 3. T59.34-60.38 4. T78.14-78.22 Although I should note that on a number of occasions the Plaintiff accepted that looking at the particular document now it would have made her aware see: T32.7-T33.44 and T35.45-50 for example. 1. When conversations which were inconsistent with the Plaintiff's case that she did not know that Ms Fifer was engaged in making a documentary and not simply making a student assignment were drawn to her attention the Plaintiff asserted she said that she did not recall them, see for example: 1. T15.9-26 2. T26.41-27.6 3. T35.10-24 4. T74.30-75.4 1. The attempt to explain her ignorance of the true position included the Plaintiff even asserting that she may not have read an email (Exhibit A p.48) which was answering concerns she herself had raised a very brief period before (Exhibit A p.47): see T60.40-44 and then saying that she may not have read that responsive email (which contained material inconsistent with the Plaintiff's case) out of "stupidity," see T60.42-61.23. 2. The Plaintiff accused Ms Fifer of having solicited funds from investors using footage of the Plaintiff from an interview conducted in Australia in July 2014, and asserted it was obtained on a false basis. Ms Fifer responded to the Plaintiff that she had not used the footage for any purpose at that time. The Plaintiff continued to make that allegation against Ms Fifer on the basis of an assumption which she now recognises is false: T101.50-103.21. 3. The allegation about soliciting funding is one of a number of allegations made by the Plaintiff about and to Ms Fifer -"deceitful," "disgusting," "hoodwinked by," "lacking in cultural sensitivity" and "ignorant about PNG culture" that seem to be generated by an anger concerning the documentary. 4. One thing the Plaintiff says she was not angry about so far as the film was concerned was that it was not about her: T88.30. Whilst I am inclined to think that statement is true it does not sit comfortably with her claims in this case. 5. The Plaintiff was not prepared to admit in cross-examination that she had taken a completely different position in relation to Paga Hill by 2014 from which she had taken in 2012: T91.10-20. This is asserted even when on the Plaintiff's own evidence she had written to PHDC: "expressing my regret that my involvement in 2012 has caused them and their families such distress and admitted that my earlier judgment was not fully informed" T91.30-T92.45, and the Plaintiff says that she has been described as deserting the Paga Hill residents by taking up the consultancy offered to her by PHDC and retracting her previous criticisms of PHDC: T83.46-84.30. 1. The Plaintiff sought to attribute to Dimity a statement in response to the Plaintiff's complaints about Ms Fifer's conduct to the effect that Dimity had said "I know it's not what we agreed" but there was an exchange of SMS messages and no SMS to that effect sent by Dimity has been put in evidence. The Plaintiff agreed her affidavit on the topic was probably misleading: T107.20. I am not persuaded that any such SMS was ever sent: see T106-107. 2. The Plaintiff asserted in correspondence that she had never given written consent (see Exhibit A p.136 para 10) even though she had signed such a document (see Exhibit A p.13) and had in July 2012 been reminded by Ms Fifer that she had: see [39] above.

Ms Fifer's Credibility

Ms Fifer overall appeared to me to be an honest witness who was, in the main, willing to directly answer the questions asked of her. She made admissions even when they did not cast her in a favourable light. She was careful to ensure she understood the questions being asked. Ms Fifer admitted (as she had to do) that the visa on which she had gained entry into PNG precluded her from working (see Exhibit F) and that she had disregarded that requirement by working on the documentary in PNG: T183.10-24.
There are some aspects of Ms Fifer's evidence in cross-examination which seemed to found an implicit attack on her credibility (although only (1)(b) and (3) below were raised in final submissions): 1. Her failure to correct the Plaintiff when she described Ms Fifer as a student: 1. to the Police at Paga Hill and, 2. to Ms Martens (on the Plaintiff and Ms Marten's evidence), 1. her description of herself as a 'student' to Mr Gudmunder Fridriksson in circumstances I shall describe, 2. her failure to specifically respond to the Plaintiff's accusations that she had 'betrayed' the Plaintiff and had taken a completely different direction for her own purposes: T197.44-200.28 and T202.42. 3. her use of a different synopsis when seeking to obtain funds on the one hand to the one used when seeking to obtain Mr Fridriksson's agreement to give an interview, 4. her failure to specifically advise the Plaintiff that the theme of the documentary she was working on had changed, 5. her description of herself in a synopsis as 'a protégé' of the Plaintiff.
I will deal with each of these points below but I note that the cross-examination of Ms Fifer was not really directed to undermining any of Ms Fifer's evidence concerning the conversations which she had with the Plaintiff and her other dealings with the Plaintiff through emails and SMS messages prior to May 2014. Much of Ms Fifer's evidence about specific conversations, SMS messages and emails went unanswered by the Plaintiff, and the Plaintiff said she could recall none of the telephone conversations with Ms Fifer: see T26.41-27.6 and could not recall a number of other conversations for example T49.52, T57.13-20, T57.44-58.29.
Dealing with each of the numbered points above : 1. (a) The Plaintiff told Police at Paga Hill that Ms Fifer was a student and not a journalist. Literally both descriptions were true at the time and it is clear that the Plaintiff said those words to avoid confiscation of Ms Fifer's camera by the Police. I do not see the point as weakening Ms Fifer's credibility. (b) The Plaintiff says she told Ms Martens, the wife of Australia's former High Commissioner in PNG in the presence of Ms Fifer, that Ms Fifer was "following me around doing a student assignment" (para 17 Plaintiff's second affidavit). Ms Martens corroborates that version. Ms Fifer denies that those words were used in her presence. Ms Martens was not called on to recall her conversation with the Plaintiff and Ms Fifer until April this year and she offered, without being asked she says, to make a statement after having a conversation with the Plaintiff in which the Plaintiff told her about the case. Ms Fifer gave a credible explanation as to why she was not with the Plaintiff at the time of the Plaintiff's greeting of Ms Martens and I was left in doubt as to whose recollection was more accurate. Even accepting that the Plaintiff did tell Ms Martens in July 2012 that Ms Fifer was a student and that she was working on a student assignment I am not persuaded that this occurred in the presence of Ms Fifer. I might add that even if the words attributed to the Plaintiff were said in the presence of Ms Fifer in order to avoid the need for any formal permission being obtained for filming in the High Commission, the impact of their having been said is very limited in the context of the abundant material to which I have already referred. 1. Ms Fifer did, in an email to Mr Fridriksson of 1 October 2013 Exhibit A p.90 say: "I was with Dame Carol in PNG last year as I was making a documentary about her time in politics for my school work." At T160.25 Ms Fifer admitted that her statement was not true. Later she asserted that the email was just badly written (see T167.24) but I am not persuaded by that. I think her evidence that she wanted Mr Fridriksson to see her as a new graduate in her early 20's who was "no-one to be afraid of" (T161.35) explains why she told him an untruth. 1. It was put by Mr McClintock that the failure of Ms Fifer to correct what the Plaintiff said in her emails from 14 May 2014 onwards was a factor to take into account in assessing the veracity of Ms Fifer's denials. Mr McClintock made reference to Thatcher v Charles (1961) 104 CLR 57, Mitchell's Case 17 Cox's Criminal Cases at 503, and Cross on Evidence (edited by J. D. Heydon) para 15055. In [15055] of Cross on Evidence the learned author refers to the words of Lord Esher in Weidemann v Walpole [1891] 2 QB 534 at 538 in respect of accusations made in a letter: "[M]ust it be taken, according to the ordinary practice of mankind, that if a man does not answer he admits the truth of the charge made against him? If it were so, life would be unbearable." And summarised the law as: "the effect of a failure to reply to an accusation in a letter depends on the answer to the question whether it would be reasonable to infer an admission of truth of its contents from this fact," and "the question whether silence is to be held to have this effect must depend for its answer on the facts of the particular case." I do not think it is reasonable to infer an admission of truth on the facts here because: 1. Ms Fifer was concerned that a direct response would inflame the situation. 2. She was keen not to close the door on co-operation from the Plaintiff. 3. The allegations were being made by a senior PNG political figure to a young person. 4. The Plaintiff did not make the basis of her allegations clear. 5. Ms Fifer was told by a more senior person, Ms Barry, that it was best to leave future correspondence with the Plaintiff to Ms Barry which is the course Ms Fifer adopted. I think that Ms Barry's view corroborated Ms Fifer's approach of not responding to the broader and more antagonistic comments of the Plaintiff. Whether that was a good idea or not is not the point. 6. Further if the accusations by the Plaintiff are to be read as based on the change from a student assignment or a change from a documentary about the Plaintiff to a documentary about Paga Hill (and they are the only relevant accusations) then the wealth of material to which I have already referred must be taken into account. For example if the Plaintiff was accusing Ms Fifer of not informing her that the footage was to be used in a documentary rather than a film school assignment the evidence to which I have already referred cannot be overcome by a tacit admission that she had not informed the Plaintiff of that fact. That may just be another way of saying that any evidentiary effect of an admission, even if one could be inferred, is slight compared to the historical evidence that in fact Ms Fifer had informed the Plaintiff. 1. There was an extensive cross-examination about the various synopsises prepared by Ms Fifer for different purposes. The one sent to Mr Fridriksson and the covering email to which I have already referred could described as crafty and dissembling (although Mr Fridriksson did not, it transpired, agree to give an interview). I accept Ms Fifer's evidence that the other synopsises were prepared for people who would understand that the synopsis was intended to be a summary of the film that the director wanted to make: see T163-164 and T196.4-16. 2. A number of questions were put to Ms Fifer about the topic of the change in the orientation of the documentary. I do not think her answers diminished her credibility- there is no doubt that her intentions changed after the Paga Hill incident on 12 May and were in the process of evolution as developments occurred: I refer to what is said in [74] below and the email at Exhibit A p.52-53 is also relevant. 3. In one synopsis Ms Fifer included the words "the action unfolds from the perspective of her protégé, friend and film maker Hollie Fifer," (see Exhibit H). Ms Fifer was taxed over her use of the word "protégé," at T188-189 it being put to her that she had only met the Plaintiff three times by that date (1 June 2012), once as a teenager when visiting PNG with her mother (which the Plaintiff could not remember), once in Sydney on 7 March 2012 and in May 2012. Ms Fifer explained that she wanted to become the Plaintiff's protégé, she hoped they were friends and she "certainly thought of her as a mentor figure." She said she thought the Plaintiff was someone "quite remarkable" T192.1-5. She was not challenged on the accuracy of her evidence in any of these respects and I am inclined to think that as at June 2012 she did respect and look up to the Plaintiff and saw herself as able to film the activities of someone who she believed would be inspiring to young people especially young women. Whilst the use of the word 'protégé' might involve hyperbole Ms Fifer had already explained the purpose and style of synopsises presented to potential investors and I do not regard her use of an exaggeration in the context of a synopsis as reflecting adversely on her credit.
Overall, whilst I was not entirely convinced that the documentary as finalised did not represent Ms Fifer's opinions about Paga Hill (which in her evidence she said had appeared to her in 2012 as a case of human rights abuse) and whilst her approach to Mr Fridriksson to try to have him give an interview may well have amounted to dissemblance, I found Ms Fifer's evidence concerning her interaction with the Plaintiff entirely credible and unshaken by cross-examination. I accept her evidence whenever it is in conflict with the Plaintiff's evidence.

Ms Dimity Fifer and Ms Martens' Credibility

I thought Dimity was an entirely credible witness. I have doubts as to the accuracy of Ms Marten's recollection for the reason I have explained, and also by reason of the fact that she testified not only to what the Plaintiff said to her but also as to Ms Fifer being present within earshot at that very moment- a matter she was not asked to recall until four years after the event, and this in contrast with the very vague recollection of a conversation with the Plaintiff which she had had less than three months earlier: T129.5.
None of the other deponents, Mr Buri Kudu, Ms Wendy Kidu, Mr Basil Kidu, Ms Dobi Kidu, Ms Barry, and Mr William Blundell (dealing with the history of the matter from April 2016) were cross-examined and nothing was said about their evidence in final submissions. I should note that Mr Buri Kidu asserted that Ms Fifer had said to him on 10 May 2012 that she was in PNG on a student assignment and Ms Fifer denied that she had said those words to him and she, like Mr Kidu, was not cross-examined on this conversation. In view of the material to which I have already referred it is most unlikely that Ms Fifer told Mr Buri Kidu that she was there on a student assignment and once again what was in fact said by the Plaintiff or Ms Fifer or to others is of little significance in the light of what Ms Fifer wrote and said to the Plaintiff. Ms Barry was not cross-examined on her affidavit and nothing was said about her evidence in the Plaintiff's submissions, I assume, because of the concession made in relation to the second defendant and third defendants at T67.41-42 and T6.16-29. The various letters and emails of complaint sent by the Plaintiff to the defendants from May 2014 onwards (one of which I have set out at part [47]) and the conversations between the Plaintiff and Ms Barry concerning the documentary and the pre-release screenings of the documentary at various stages of its development in 2014 and 2015 and the accommodation by Ms Barry of some of the Plaintiff's requests for correction of content do not, in my view, have any bearing on the questions which I have to decide, save as discussed at [56] (3).

Findings of Fact

I make the following findings of fact: 1. Ms Fifer in her first conversation with the Plaintiff between 4 and 6 March 2012 told the Plaintiff that she, Ms Fifer, wanted to interview and film the Plaintiff for an assignment at the AFTRS which was to create a 'pitch' for a potential documentary, and the Plaintiff agreed to meet with Ms Fifer in Sydney for that purpose. 2. At the end of the filmed interview on 7 March 2012 Ms Fifer said to the Plaintiff: "This interview will be used for the AFTRS pitch assignment that I have next week but I do think your story about the political coup is a much larger story and I would like to come to Port Moresby to make this a longer documentary." The Plaintiff said words to the effect of: "Yes. That would be fine." Ms Fifer then said words to the effect of: "Do you have any reservations about this that we could speak about?" The Plaintiff then said words to the effect of: "No I don't and you could come when parliament will be sitting at the end of March." 1. That as at and from 7 March 2012 the Plaintiff was aware that Ms Fifer was hoping to make a lengthy documentary about the Plaintiff's involvement in the PNG political crisis and about her home life, and that filming by Ms Fifer on and after 7 March would or could be used in a documentary that Ms Fifer was hoping to make for public release. That this was Ms Fifer's intention was made known to the Plaintiff by the emails and SMS messages sent by Ms Fifer to the Plaintiff to which I have earlier referred and the relevant parts of which have been marked in bold. 2. That in April 2012 in Melbourne the Plaintiff was handed a release form (Exhibit A p.13) by Dimity, and that the Plaintiff read that form and signed it. I find nothing was said by Dimity to the Plaintiff other than "here's the form that I understand you have spoken to Hollie about." Ms Fifer had rung the Plaintiff telling her she needed a consent form to obtain ABC funding: para 31 Fifer first affidavit. 3. That on 12 May 2012 the Plaintiff encouraged Ms Fifer to film the events at Paga Hill on that day. 4. That on 12 May 2012 the Plaintiff requested footage of what had been filmed by Ms Fifer and asked for her assistance in uploading the footage to YouTube, (giving Ms Fifer a name used by the Plaintiff's late husband to ensure anonymity). Ms Fifer did assist in the upload and it was successfully loaded at the Plaintiff's home although it is possible that the Plaintiff was unsure if that had been successful and thought that one of her children had uploaded it. 5. That to avoid possible confiscation of Ms Fifer's camera by PNG Police the Plaintiff told Police in the presence of Ms Fifer that Ms Fifer was only a student and not a journalist. 6. That on a visit to the home of the Australian High Commissioner the Plaintiff informed the wife of the High Commissioner that Ms Fifer was a student. That information led Ms Martens to permit filming to take place without seeking the approval of her husband. 7. That from 7 March 2012 the Plaintiff was fully aware that Ms Fifer would be taking footage for a documentary that Ms Fifer hoped she could broadcast to the public and that the Plaintiff was positive about that idea at least until July 2012 and as far as Ms Fifer knew until at least late 2013. 8. That in July 2012 the Plaintiff decided that she did not any longer want to give free access to Ms Fifer and did not want to be the focus of the documentary that Ms Fifer had been originally hoping to make. 9. That the Plaintiff did say the words ascribed to her by Ms Fifer and set out in [39] above and that those words point to a clear acknowledgment by the Plaintiff that she was aware Ms Fifer was making a documentary. The failure of the Plaintiff to respond to the reference to ABC is consistent with her having been previously made aware (as she undoubtedly was by emails and SMS messages) that Ms Fifer was looking for, and then had obtained, funding. 10. That by July 2012 Ms Fifer had decided that the Paga Hill story was an important part of the documentary she wished to make, although she still wanted the Plaintiff's life in politics to figure in the documentary as well: see Exhibit A p.52. 11. That by July 2013 the Plaintiff was concerned about the comments she had been recorded as making concerning Paga Hill and the PHDC. 12. That by December 2013 the Plaintiff had in contemplation entering into a contract with PHDC using a company controlled by her and that in March 2014 her company entered into a contract with PHDC, by which it was to receive the equivalent of approximately $A178,000.00 (from which her company would need to make payments to subcontractors.) 13. That the first time the Plaintiff complained to anyone that she had always understood the filming to be for a student assignment was in a letter to Documentary Australia of 24 October 2014. I do not accept that the email of 14 May 2014 to Ms Fifer contains or could be understood to contain such an assertion. 14. That the Plaintiff invited Ms Fifer to film at Six Mile and told her that PHDC would pay for that filming and that she offered to organise a UN Media award for Ms Fifer.
I should note that even accepting the Plaintiff's answers as honest they nevertheless lead to the conclusion that whether the Plaintiff realised it or not Ms Fifer had taken steps to adequately inform the Plaintiff of the matters contained in the emails, SMS messages and conversations. The contention that the contents of the email sent were ignored, or did not click in the Plaintiff's mind (see for example T25.36 ) does not lead to the conclusion that Ms Fifer did not by any objective standard make clear to the Plaintiff from a very early time that the film she was making was a documentary intended for wide dissemination if funding could be obtained, later that funding had been obtained, that a professional experienced director in the form of Ms Barry and an experienced cameraman and producer were involved and that Ms Fifer had hopes to make a documentary that would have an impact in Australia and PNG.
I have referred to the Plaintiff's attack on Ms Fifer both in correspondence and in the Court. There are several indications that the Plaintiff is angry with the documentary for reasons that have nothing to do with the basis on which she rests her case in these proceedings, namely: 1. That she contends that the documentary is biased because it presents PHDC in a bad light. 2. That she thinks that the documentary is factually incorrect and damaging to the reputation of PNG. 3. That the documentary presents Joe in a favourable manner. 4. That she feels that some people will, or do, think that she has "sold out" her former constituents at Paga Hill by joining forces with PHDC and receiving payment for her service, although she says she is not ashamed working with PHDC T113.4. She believes Ms Fifer is one of those who sees matters that way, and it may be that that perception cuts deep since there is no doubt that the Plaintiff welcomed Ms Fifer into her home and gave her an opportunity to film her. What may have seemed to the Plaintiff to be a nice way to finish her career in politics in PNG has turned sour for the Plaintiff because her words and actions were recorded in circumstances where they probably would not have been recorded had she not been willing to allow Ms Fifer to film her.
This case, I should emphasise, is not about whether the documentary is or is not biased, defamatory of the Plaintiff or anyone else, factually correct or overly favourable to Joe and unfavourable, or unfairly unfavourable to PHDC.
When one views the extreme weaknesses of the Plaintiff's claim that she did not know on and from 7 March 2012 that Ms Fifer was hoping to make a documentary for public exhibition rather than a student assignment (whatever its topic) the impression gained is that the Plaintiff is prepared, for her own benefit and that of PHDC, to say anything to stop the footage taken of her by Ms Fifer being broadcast. I should note however that Ms Fifer took a more charitable view of the Plaintiff's conduct accepting at T228.27 that the Plaintiff believed when she wrote her emails of complaint to Ms Fifer that she had not agreed to the footage being used. It is perhaps possible to reconcile the two views by regarding the Plaintiff as having convinced herself that she had not been told of matters of which she clearly was informed, just as she had in July 2012, it seems, forgotten that she had already signed a consent form: see [39] above.

The Claim in Contract

The conversation which the Plaintiff relies on I have found took place between 4-6 March 2012 but was in the terms deposed to by Ms Fifer (para 10 Fifer first affidavit) and set out at [50] above.
The Plaintiff's case on contract is limited to that first conversation which was prior to the filming on 7 March. That was in the context of the student assignment and Ms Fifer asked the Plaintiff if she could film a short interview with the Plaintiff for the assignment. The Plaintiff agreed.
In Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 the High Court said (per Gaudron, McHugh, Kirby, Hayne and Callinan JJ): [24] "It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty." (46) To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet "[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts" (47). [25] Because the inquiry about this last aspect may take account of the subject matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances (48), not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the "intention to create contractual relations" requires an objective assessment of the state of affairs between the parties (49) (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word "intention" is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened(50) It is not a search for the uncommunicated subjective motives or intentions of the parties."
See also for a recent application of these principles Ashton v Pratt [2015] NSWCA 12; (2015) 88 NSWLR 281, [69]-[91] per Bathurst CJ with whom McColl JA and Meagher JA agreed, a case dealing with very different circumstances I accept.
I am unable to accept that the parties, as a consequence of the first telephone conversation, objectively could be understood as having entered into a legally enforceable contract. If the Plaintiff had rung to withdraw her agreement for the interview on 7 March it cannot be suggested that Ms Fifer would have had any redress. The lack of enforceability, the lack of documentation, the absence of anything being said that conveyed to the other that what was promised was legally enforceable and the absence of any expression of the consideration passing between them are relevant matters: see [85], [89], [225] and [228] of Ashton as is the subject matter of the agreement, in contrast to Ermogenous where the contract was one, in effect, of employment. In my view the circumstances show that the parties did not intend, and cannot be regarded as having intended to enter into a legally enforceable contract.
If contrary to the view that I have reached there was a legally enforceable agreement made on that occasion it was that Ms Fifer could only use the footage obtained on 7 March for the purposes of a student assignment. It would only be what was filmed on 7 March that could contractually be precluded from use. Whether that should be precluded by an injunction would need to be considered in the light of the conversation which occurred on 7 March after filming (and on which the Plaintiff does not rely on to assert a contract) in which Ms Fifer said that she would like to make this "a much longer documentary" to which the Plaintiff expressed her consent and said she had no reservations and the execution by the Plaintiff of the consent form on 12 April 2012. That leads into the second question which is whether Ms Fifer has engaged in unconscionable conduct that would support injunctive relief.

Unconscionable Conduct

There was agreement between Mr McClintock and Mr Potter that the judgment of Brennan J (as his Honour then was) in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 authoritatively sets out the matters which need to be established by a plaintiff asserting unconscionable conduct by a defendant p.428-429 namely that: (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant's property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff's reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs. Reference should also be made to what his Honour said at p.420-423 and in particular (at p.423) "The unconscionable conduct which it is the object of equity to prevent is the failure of a party, who has induced the adoption of the assumption or expectation and who knew or intended that it would be relied on, to fulfil the assumption or expectation or otherwise to avoid the detriment which that failure would occasion" Further regard should be had to what was said by Mason CJ and Wilson J at p.406 "The foregoing review of the doctrine of promissory estoppel indicates that the doctrine extends to the enforcement of voluntary promises on the footing that a departure from the basic assumptions underlying the transaction between the parties must be unconscionable. As failure to fulfil a promise does not of itself amount to unconscionable conduct, mere reliance on an executory promise to do something, resulting in the promisee changing his position or suffering detriment does not bring promissory estoppel into play. Something more would be required. Humphreys Estate suggests, that this may be found, if at all, in the creation or encouragement by the party estopped in the other party of an assumption that a contract, will come into existence or a promise will be performed and that the other party relied on that assumption to his detriment to the knowledge of the first party. Humphreys Estate referred in terms to an assumption that the plaintiff would not exercise an existing legal right or liberty, the right or liberty to withdraw from the negotiations, but as a matter of substance such an assumption is indistinguishable from an assumption that a binding contract would eventuate. On the other hand the United States experience, distilled in the Restatement (2d, s90), suggests that the principle is to be expressed in terms of a reasonable expectation on the part of the promisor that his promise will induce action or forbearance by the promisee, the promise inducing such action or forbearance in circumstances where injustice arising from unconscionable conduct can only be avoided by holding the promisor to his promise." And also to what Deane J said at p.450 "Thus, even if the doctrines of estoppel by conduct are accepted as applying to representations or assumptions about future action or inaction in the same way as they apply to representations or assumptions of existing fact, a representation or assumption which is confined to the existence of a present intention and does not exclude the possibility of future change of mind will ordinarily be inadequate to found an effective estoppel. The reason why that is so is that, even if such a representation or assumption about existing intention were false at the time when it was made, an estoppel denying departure from it would have nothing to say in relation to future conduct since an estoppel precluding departure from the representation or assumption would not preclude any future change of mind. In such a case, the mistaken party would need to rely on causes of action (e.g., fraud or negligence) in which an estoppel precluding assertion of the falsity of the relevant representation or assumption would be a hindrance rather than an aid."
In my view the Plaintiff's assertion that she was not informed by Ms Fifer of her wish and intention to make a documentary quite unconnected with the student assignment for which Ms Fifer originally contacted the Plaintiff and for which she obtained her permission to record on 7 March 2012 is without any foundation whatsoever. The evidence that the Plaintiff was put on notice of Ms Fifer's intention and was made aware of it in conversations, emails and SMS messages, is entirely inconsistent with such an assertion.
I accept that both the Plaintiff and Ms Fifer originally thought that the Plaintiff would be the principal focus of the documentary even if the political turmoil in PNG was part of the documentary as well. There were however a number of reasons why the focus of the documentary which Ms Fifer was originally proposing to make did not ultimately remain on the Plaintiff and even the political turmoil in PNG and the Plaintiff was herself responsible in part at least, for that change in focus: 1. The Plaintiff encouraged Ms Fifer to accompany her to Paga Hill. 2. The Plaintiff encouraged Ms Fifer to film and tell Australia about the incidents on 12 May 2012. 3. The Plaintiff actively sought to use the footage obtained by Ms Fifer on 12 May 2012 for broad dissemination and encouraged Ms Fifer to believe that the Plaintiff wanted as much exposure of Paga Hill issues as possible. 4. The Plaintiff permitted Ms Fifer to film her meeting with Paga Hill leaders and with Dr Kristian Lasslett, and in Ms Fifer's presence permitted Dr Lasslett, to audio record the interview as well. 5. The Plaintiff subsequently sought to restrict Ms Fifer's access to the Plaintiff and then asked her to leave her house and did not cooperate with Ms Fifer in providing further footage of the Plaintiff except on occasions connected with Paga Hill and even then with restrictions. 6. The Plaintiff encouraged Ms Fifer to contact other PNG female politicians. 7. The Plaintiff later sought to have Ms Fifer film Six Mile and was upset when Ms Fifer declined the Plaintiff's offer to have PHDC fund either the filming (on Ms Fifer's evidence) or Ms Fifer's plane trip to PNG (on the Plaintiff's evidence) for that purpose.
Whatever the precise legal effect of the release form signed by the Plaintiff the fact that the Plaintiff read it, signed and handed it back to Dimity for transmission to Ms Fifer is yet another circumstance pertinent to Ms Fifer's understanding of what she was permitted to do with whatever footage she obtained.
There is viz a viz the Plaintiff no conduct of Ms Fifer identified which can be described as "showing no regard for conscience; irreconcilable with what was right and reasonable" see Qantas Airways Ltd v Cameron (1996) 66 FCR 246 at p 262, nor any conduct "specifically reprehensible and repellent characterizable as unfairness" per Henry J in Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 both cited in Heydon's Competition & Consumer Law Thomas Reuters at 170.140.
I am satisfied, on the balance of probabilities, that the Plaintiff knew that the focus of the documentary was, by May 2012, and then August 2012 changed from what had been envisaged originally and even more clearly by July 2013.
When regard is had to Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447, Australian Competition and Consumer Commission (ACCC) v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51, Attorney-General (NSW) v World Best Holdings Ltd World (2005) 63 NSWLR 557 and Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389 there is a need in a claim of unconscionable conduct to identify: A disability or circumstance seriously affecting the ability of the innocent party to make judgment in that person's own best interests: see Gleeson CJ at [5] and Gummow and Hayne JJ at [56] of Berbatis and see p.476-478 of Amadio per Deane J. That may be for example because of age, infirmity, inexperience, impaired faculties, financial need see Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362, 415 per Kitto J cited in Berbatis at p.64 per Gummow and Hayne JJ and p.115 per Callinan J. And to demonstrate in the defendant: A "high" or at least a significant or real "level of moral obloquy:" see World Best Holdings at [121] for "high" per Spigelman CJ, and Edmonds J in Australian Competition and Consumer Commission (ACCC) v Zanok Technology Pty Ltd [2009] FCA 1124 at [16] and Tonto [293] per Allsop P for "significant or real," involving at least knowing exploitation of the special disadvantage.
The Plaintiff was an experienced, forthright and well-connected politician who had achieved the status of leader of the Opposition. Ms Fifer was a 25 year old recent graduate who looked up to the Plaintiff and was inspired by her. Whilst I accept that the Plaintiff had a busy life and had to deal with many issues I am unable to accept that the Plaintiff was "vulnerable" in any respect or that there was any "situational" special disadvantage, of which Ms Fifer was or should have been aware or therefore that Ms Fifer took unfair advantage of an opportunity presented by reason of a disadvantage affecting the Plaintiff: see Australian Competition and Consumer Commission (ACCC) v Samton Holdings Pty Ltd (2002) 117 FCR 301 at p.321-32 and Zanok [16].
The Plaintiff has not made out the claim in the pleadings that she was under a special disadvantage, or that Ms Fifer acted unconscionably towards her by filming the Plaintiff and then using the film for a documentary which, as matters have transpired, the Plaintiff does not like.
As a separate point the final footage involving the Plaintiff (filmed on 24 July 2014) was shot at a time after the Plaintiff's email of 14 May 2014 to Ms Fifer when the Plaintiff even on her own evidence must have been completely cognisant of the nature of the documentary.
Even were I to accept that the Plaintiff had from early March 2012 a continuing belief or view about the documentary of the sort she now advances (which I do not) Ms Fifer did nothing to induce that belief or view and had no reason to believe that the Plaintiff held that incorrect belief or view. Ms Fifer has not acted against conscience by utilising the footage of the Plaintiff (filmed by Ms Fifer or at her direction) for the documentary 'The Opposition' and the Plaintiff is not entitled to any injunctive relief.

Conclusion

It follows that there should be judgment for the defendants on the Second Further Amended Statement of Claim I will hear the parties on the issue of costs and as to how the question of how any claim for damages by the defendants is to be dealt with.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 July 2016

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (19)