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.