It is now 5.30pm. The Court is sitting after hours to deal with a further urgent application in these proceedings. The Court made orders this morning granting a restraint against the defendants in a form similar to the undertaking which was recorded in the Court's first judgment in these proceedings: Kidu v Fifer & Ors [2016] NSWSC 488. But since then and in conformity with the discussion that took place before the Court this morning, the defendants supplied a copy of the DVD of the re-edited documentary to the plaintiff's solicitors, upon an undertaking that the plaintiff's solicitors would not publish it.
After receiving the DVD at lunch time today the plaintiffs took the opportunity to examine whether it complied with the existing restraint, that has so far applied through the undertakings given to the Court.
The plaintiffs applied this afternoon commencing at about 3.30pm for supplementary orders. The plaintiffs contend that the version of the documentary which has now been supplied to the Hot Docs Festival in Canada for exhibition contains some material which could only be derived from or is descriptive of the material that is subject to the undertakings and now the injunctions, and is not otherwise publicly available.
In the time available there has not been sufficient opportunity for the plaintiffs or the Court to examine the full final version of the documentary in the form that it was sent to Canada. But it is not in dispute that certain introductory text is published in blacked out portions of the documentary that are the subject of the injunction. This introductory text contains the following matter:
"This film is the subject of a legal case, which is currently awaiting trial at the Supreme Court of New South Wales, Australia. As a consequence sections of this film have been injuncted, which requires the filmmakers to remove portions of the film. We have replaced these sections with text cards and narration to indicate the injuncted footage and recreate the lost moments according to the account of the filmmaker and documents read in open court on behalf of Dame Carol Kidu and in the injunction proceedings and on behalf of the filmmakers."
That text clearly intimates that the material which appears in place of the injuncted footage is designed to recreate a representation of what is enjoined but in a different form, so as to reveal at least a shadow of what was enjoined.
The plaintiff has then taken the Court to parts of Exhibit E, the running sheet of the documentary film. The Court is satisfied from this short analysis that on at least one occasion there is an example in the documentary of the inclusion of audio recordings the content of which is likely only to have been derived from the enjoined footage. This content is unlikely to have been obtained or derived from archival or other public footage or public information about the events depicted or from other evidence in these proceedings.
The plaintiff has asked the Court for supplementary orders in these circumstances. She seeks to add to the current form of restraint, words which would prevent the publication of "any summary representation or description of the enjoined material which has the effect of revealing the content or any part thereof of the recordings sought to be restrained."
In my view on the material provided at this urgent hearing there is a proper and sufficient basis for the extension of the injunction in the manner sought. The issue of serious question to be tried has already been determined in the Court's first judgment. Those conclusions apply equally now. On the issue of the balance of convenience. The same considerations apply to summaries, representations or descriptions of what would otherwise be enjoined, as would apply to the material enjoined. Quite simply, if a summary or representation which has the effect of revealing the content of the recordings sought to be restrained is able to be published, then to the extent it is published, the injunction would be neutralized. The Court made the orders in order for them to be effective to maintain the status quo to the extent needed before trial. Unrestrained the defendants' conduct may well render the Court's orders less effective.
Other supplementary orders were sought. These will be granted to require the defendants to identify the persons to whom the current version of the documentary has been distributed, so that they can be notified of the making of these orders. And the defendants will be required to take reasonable steps to prevent those persons from publishing the current version of the documentary inconsistently with this restraint.
Accordingly, the Court makes the following orders and notations:
1. Upon the Plaintiff by her counsel giving to the Court the usual undertaking as to damages, and upon the payment into Court by the Plaintiff of security in the sum of $250,000, until the final hearing of this matter or further order of the Court, the First Defendant, the Second Defendant and the Third Defendant, by themselves, their servants and agents be restrained from:
1. publishing, distributing or exhibiting (except to their legal representatives and the legal representatives of the Plaintiff and to the Court for the purpose of these proceedings) the visual or audio recordings, or any part of the recordings sought to be restrained by the Plaintiff as specified in Exhibit E in this proceeding, or any summary, representation or description thereof which has the effect of revealing the content, or any part thereof, of the recordings sought to be restrained but excluding archival material specified in the Schedule hereto.
2. disposing of, assigning, licensing or otherwise transferring or giving to any other person (except to their legal representatives and the legal representatives of the Plaintiff and to the Court for the purpose of these proceedings) the visual or audio recordings, or any part of the recordings sought to be restrained by the Plaintiff as specified in Exhibit E in this proceeding or any summary, representation or description which has the effect of revealing the content on any part thereof of the recordings sought to be restrained excluding archival material specified in the Schedule hereto.
1. The restraint in Order 1 will not apply to any material that has already been published at any time on the internet as appearing on the USB stick marked Exhibit 2 in this proceeding.
2. Costs of the injunction application be costs in the cause, save the issue of whether the plaintiff should pay the costs thrown away, if any, by the defendants in respect of the amendments to the statement of claim will be reserved to the trial judge.
3. Direct that the DVD of the current re-edited version of the documentary provided by the solicitors for the defendant to the solicitors for the plaintiff at approximately 1.00pm today ("the current version of the documentary") may remain with the solicitors for the plaintiff until further order.
4. Order that if the defendants distribute any further version of the documentary for the purposes of exhibition which changes the current version of the documentary, then within 12 hours of such distribution they will provide a means to the solicitors for the plaintiffs to view such further version.
5. Order that the defendants provide to the solicitors for the plaintiffs by 8pm this evening the names of all persons who the defendants reasonably believe are now in a position to exhibit the current version of the documentary at or through the Hot Docs Festival in Canada.
6. Order the defendants take all reasonable steps to prevent any person or persons, who the defendants are aware are in possession of the current version of the documentary, from exhibiting it inconsistently with Orders 1 and 2 hereof.
7. The Plaintiff be given leave to file and serve a second further amended statement of claim to amend the relief claimed by the Plaintiff by 4 May 2016.
8. The Defendants file and serve any notice of motion for security for costs pursuant to Rule 42.21 of the Uniform Civil Procedure Rules 2005 (NSW), any evidence in support and any submissions by 3 May 2016.
9. The Plaintiff to file and serve any evidence and submissions in relation to the Defendants' security for costs application by 12:00 pm on 5 May 2016.
10. The Defendants file and serve their Defence by 13 May 2016.
11. The Plaintiff file and serve any Reply by 20 May 2015.
12. The Defendants to serve any further evidence in reply by 13 May 2016.
13. The Plaintiff file and serve any evidence in reply by 27 May 2016.
14. Direct that these orders be entered forthwith.
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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: 03 May 2016