MERITON APARTMENTS Pty Ltd v SBS CORPORATION

G O'L Reynolds SC (Plaintiff) COUNSEL : K Smark (Defendant) SOLICITORS : Phillips Fox (Plaintiff) CATCHWORDS : Application for interlocutory injunction LEGISLATION CITED : Defamation Act 1974 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 76 ALJR 1 Chapell v TCN Channel 9 Pty Limited (1998) 14 NSWLR 153 Hemes v Seven Network Limited [2000] NSWSC 246 CASES CITED : John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Macquarie Bank v Berg & Anor [1999] NSWSC 526 Marsden v Amalgamated Television Services Pty Limited, NSWCA, unreported, 2 May 1996, Priestley, Handley and Cole JJA National Mutual Life Association of Australasia Ltd v G.T.V Corporation Pty Ltd [1989] VR 747 Rural and General Insurance Ltd v Australian Broadcasting Corporation, NSWSC, unreported, 15 June 1995, Bryson J DECISION : See paragraph 27

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

12538 OF 2002 MERITON APARTMENTS Pty Ltd (Plaintiff)

JUDGMENT (Application for interlocutory injunction) 1 Leave was granted to the plaintiff this afternoon to file a notice of motion and summons for relief by way of an interim injunction in the following terms: "That the respondent be restrained until further order from publishing of and concerning the plaintiff any suggestion that it is responsible for life threatening or potentially life threatening building defects in the Regis Towers located at 303-312 Castlereagh Street, Sydney, or any suggestion of substantially the same effect".

2 The evidence before me is constituted by an affidavit of Richard de Carvalho sworn 12 September 2002. Exhibit A is a videotape that runs for approximately eight to nine minutes, being an interview, in what I would describe as raw footage form, with one Professor Marosszeki. Exhibit 1 is an order under the Environmental Planning and Assessment Act 1979 dated 24 April 2001, apparently issued by the Council of the City of Sydney to certain registered proprietors of two strata plans in relation to premises identified in the order at 414-418 Pitt Street, Sydney. Exhibit 2 is a document admitted on a limited basis as evidence of a document in the possession of the defendant, which is entitled "Settlement Deed", which is a photocopy, undated and unexecuted.

3 The circumstances of this application are usual in this sense: it is urgent in that it seeks to restrain a proposed telecast by the defendant at 8.30 p.m. this evening. 4 It is unusual in that it is fairly clear on the evidence that the application was provoked by the publication by the defendant on its web site of promotional material in relation to this evening's programme. That web site publication has been downloaded and is exhibit B to Mr de Carvalho's affidavit. That publication, arguably, by reference particularly to the penultimate and antepenultimate paragraphs, could be understood to be defamatory of the plaintiff company. 5 The second unusual feature is that the exchange of correspondence between the parties indicates that Professor Marosszecki, to whom I have referred and who appears on exhibit A, is purporting to resile from what could be understood to be his position as disclosed in exhibit A, in so far as he seeks to inform the defendant that his intention was otherwise than to be building specific in his remarks. Further, his position is that he was not an expert in the area of building standards concerned with fire safety. 6 That second unusual characteristic attending this application is linked with a third: exhibit A to my mind quite clearly has the Professor asserting in relation to the Regis Towers words of the substance contained in the order sought in the context of fire separation, human life and compromise of safety. 7 The fourth unusual feature is that, otherwise, what is to be published in the program as a whole is unknown and it cannot be the subject of inference and must be limited to two things: first, either the whole or part of exhibit A will be incorporated into the Insight programme and, second, the concession made by Mr Smark that the programme will publish matter adverse to the plaintiff. 8 The usual undertaking as to damages has been given on behalf of the plaintiff. 9 In so far as it should be understood that that which the defendant proposes to publish in its programme this evening will incorporate that component of the interview with the Professor to which I have referred, in terms of his references to fire separation and human life, it is unarguable on the material that I have seen that any such publication would be capable of carrying a meaning of the substance of that set out in the order sought. 10 Next, it is clear in the context of how this application evolved and the concessions made for the defendant (though not extending to that meaning being carried), that the disparagement of the plaintiff company in the proposed program could be viewed as being damaging to it. 11 Next, the defendant asserts the availability to it on an arguable basis of the defence of qualified privilege as provided by s22 of the Defamation Act 1974. As I understand the position of the defendant, it will rely upon the information given to it by the Professor as recorded in exhibit A and inter alia, or at least additionally, in exhibit 1. 12 One matter in response to that proposition advanced by the defendant I will interpolate with a view to disposing of it for the purposes of this application. It is this: it is submitted for the plaintiff that one must bear in mind what are said to be the consequences of the decision of the High Court in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503. Such consequences are said to include the availability in respect of publications in other States and Territories of the defences available under the defamation laws of those States and Territories. In the event, of course, of the defendant publishing interstate or nationally (exhibit B to the plaintiff's affidavit discloses that Insight is the "national" current affairs program), and in the event of the plaintiff choosing to sue in respect of interstate publications, then if the effect of Pfeiffer is as submitted, the defendant will be able to plead code defences, common law defences and any other interstate statutory defences. 13 As I am only concerned, for the purposes of an application for interlocutory relief, with the restraining of a publication emanating from SBS in Sydney, that (Pfeiffer) possibility is of little or no weight. Essentially I am concerned with the restraining of the publication of a defamatory imputation as provided by s9 of this State's Defamation Act. 14 The second response - I am putting it in my order - to the asserted defence under s22 is that the question of an arguable case on that issue can now be viewed as being diminished to the extent of being almost, if not totally, non-existent by reason of the statements made by the Professor in relation to his intentions at the time of the interview and in relation to his qualifications (or lack of the relevant ones). That element, as I have remarked above, is an interesting ingredient in all of the mix but is one, in my view, that is essentially for litigation of such a defence at trial. I am not persuaded by the intrusion of that unusual element that a defence under s22 can be said to be otherwise than arguable. 15 Next, the defendant says that a defence that would be available to it is the defence of comment of a stranger as provided by s 34 of the Defamation Act 1974. At present the identity of the stranger can be understood to be that of the Professor, though whatever else the program contains is unknown and it may well be that other strangers will be expressing opinions. 16 In response to the assertion of the arguable availability of that defence, various things are submitted for the plaintiff. The first pointed to is the nature and quality of whatever the material is upon which the stranger has purported to comment. By that I understand, at least, reference to be being made to a want of evidence as to the objective truth of such material in relation to the specific building and matters attending such things as fire separation and the like. 17 The second matter pointed to by the plaintiff is the unusual feature to which I have already referred: the communication of the present position of the stranger. That matter that could well be relevant to, and the plaintiff now asserts inarguably would establish, that the publication of any such comment was not in good faith for public information or the advancement of education (s34(2)). 18 In relation to the asserted availability of the defence of comment of a stranger, the view to which I have come in the circumstances is cognate with, but perhaps a little stronger, than that which I have indicated in relation to the asserted defence under s22. It is an arguable matter both in relation to the establishment of the defence substantively, and to the resistance to, and thus litigation of, the matters on which the plaintiff would bear the onus, namely, the matters in defeasance provided for in s 34(4). 19 The defence of comment of a servant or agent of the defendant (s32) is one the availability of which simply cannot be judged. Even exhibit B, the web site material, does not point to Sarah Ferguson being presently any such relevant servant or agent and thus the consideration of any arguable defence under s32 is academic. 20 Next, the defendant understandably reserves its position, as it were, as to the availability to it of a defence of justification on two bases. First, on what is described as the "ethical" basis in the sense of the usual prudence that attends the making of the decision to plead such a defence; that is perfectly understandable. The second is a more technically based position, namely, that in New South Wales that which the defendant justifies (on the assumption that it relates to a matter of public interest, which could hardly be in dispute I would think in this instance) is the cause of action made up of the imputation. 21 Mr Reynolds SC has strongly relied upon the fact that this application has not been attended by the tendering by the defendant of any objective evidence founding, as I have remarked, the substantial truth of any material for comment (which is presumed to be of a kind that calls for proof of the substantive truth) or otherwise independent material that would go to prove the substance of the imputation. In the circumstances of the conduct of this application, that submission is perfectly legitimate but the absence of evidence to the extent which the submission seems to require is perfectly understandable. I am not persuaded that SBS is "flapping its wings" (or arms) or making a gesture to avoid being enjoined by taking the position it has on the availability of the justification defence. 22 The terms of the order the plaintiff seeks are by no means general. Indeed, they are characterised by some precision referrable, no doubt, to the two paragraphs in exhibit B to Mr de Carvalho's affidavit (the web site matter) to which I have referred and the content of exhibit A. I draw attention to that consideration in the context of my turning to the relevant legal principles usually applied in applications of this kind. It goes without saying that at this stage the Court does not have the time, case by case, to review, principle by principle, the propositions usually relied upon in support of, or in opposition to, the grant of an injunction. 23 I was referred by Mr Reynolds to the decision of the Court of Appeal in Marsden v Amalgamated Television Services Pty Limited (unreported) 2 May 1996, being the judgment of the Court constituted by Priestley, Handley and Cole JJA and their Honours' extraction in that judgment of passages from the judgment of Hunt J (as he then was) in Chapell v TCN Channel 9 Pty Limited (1998) 14 NSWLR 153. The relevant passage from the Court of Appeal judgment is: "In Chappell Hunt J said: "The basis upon which courts have acted in granting interlocutory injunctions in defamation cases was stated by Walsh J in Stocker v McElhinney (No 2) (1961) 79 WN (NSW) 541 at 543-544; [1961] NSWR 1043 at 1048, and reproduced (with an important addition) in my judgment in Church of Scientology of California Inc v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 3v4 at 349-350 in these terms: 'I accept as the settled law that the power to grant interlocutory injunctions in defamation cases must be exercised with great caution, and only in very clear cases. A plaintiff must establish that a subsequent finding by a jury that the matter complained of was not defamatory of him would be set aside as unreasonable, that there is no real ground for supposing that the defendant may succeed upon any defence of justification, privilege or comment, and that he, the plaintiff, is likely to recover more than nominal damages only. In particular, questions of privilege and malice are not normally appropriate to be decided upon an interlocutory application. Nor will an injunction go which will have the effect of restraining the discussion in the press of matters of public interest or concern'. The addition to what has been stated by Walsh J is the proposition contained in the last sentence of that passage." In our opinion that is a correct statement of the legal position, subject to a possible qualification with which Hunt J dealt in the latter part of his reasons in Chappell . The possible qualification is that the position as stated by Hunt J in the quoted passage has less absolute effect than would appear from a literal reading. That is, it may be that it does not impose rigid rules on courts (although there is considerable earlier authority for this) but rather states powerful considerations which courts must take into account, in exercising their discretion in cases of the present kind, in granting interlocutory injunctions otherwise in the same way as interlocutory injunctions are generally dealt with. Hunt J favoured the latter view. If the older, more rigid view were correct then it would dispose at once of this head of the claimant's argument. If the more flexible view of Hunt J is the proper one to follow, as we are inclined to think it is, we would agree with the way he said it should be applied, which appears from what he said, when, after disagreeing with the rigid view, he continued:

"That is not to say that the considerations enshrined in the 'rules' laid down by Lord Esher should be ignored in an application for an interlocutory injunction in defamation cases. Far from it. Those considerations should in my view continue still to be relevant, but not in the absolute terms in which they were expressed over 100 years ago by Lord Esher. It is not difficult to imagine a situation where the prospect of a verdict of no libel is so slight, where the prospect of injury to the defendant if publication is delayed (or prevented) is also so slight, and where the prospect of enormous or overwhelming injury to the plaintiff if publication is permitted is so great, that it would be both unjust and unreasonable to deny interlocutory relief merely because Lord Esher's rule has not been wholly satisfied. In my view, that was the present case, where that particular rule was almost, but not completely, satisfied. Just how far short of satisfaction the rule may be in the particular case - and still warrant the grant of interlocutory injunctive relief - will obviously depend upon the weight to be afforded in that case to the other elements in that equation. That is how any discretion must be applied. It is important to emphasise that the power to grant interlocutory injunctions in defamation cases will, even where such a discretion is applied, continue to be exercised with great caution and only in very clear cases: Bonnard v Perryman and Stocker v McElhinney (No2) . That is because in most cases the grant of such an injunction before the rights of the parties have been finally determined at a trial involves an interference with an important right of the defendant, that of his freedom of speech, which is necessarily interfered with if its exercise is delayed or prevented. In many cases, the grant of such an injunction before those rights have been fully determined involves an interference with an even more important right, the right of the community in general to discuss in public matters of public interest and concern and to be informed of the different views held by others. That is what I described as the independent and overriding principle, and which I discussed in some detail, in the Church of Scientology case. A free and general discussion of public matters is fundamental to a democratic society"".

24 Above, I have reviewed this application to the point where the case that the publication seems to be defamatory seems to be unarguable; that it would be damaging would hardly seem to be a matter of dispute either. That there are arguable defences I have found on the information before me. This leads, in my view, inevitably to the application of what is described in all the authorities as the independent and over-riding principle in this area, namely, the freedom of public discussion of matters of public interest in instruments of mass and public communication. That principle was referred to in National Mutual Life Association of Australasia Ltd v G.T.V Corporation Pty Ltd [1989] VR 747. It has been one that has informed the consideration of the grant of an injunction for a considerable time. 25 In so far as Chappell's case gathered together the threads and pronounced the principles, it was, I interpolate, submitted that it may require review in the light of Pfeiffer, for example. If it does, this is not the occasion to do so. Examples of the application of the principles on the lines of Chappell itself and in Marsden are well-known: in the new environment of the internet in Macquarie Bank v Berg & Anor [1999] NSWSC 526; seven years ago in the Equity Division by Bryson J in Rural and General Insurance Ltd v Australian Broadcasting Corporation (unreported, 15 June 1995) and by Hulme J in Hemes v Seven Network Limited [2000] NSWSC 246. 26 My attention was drawn to the judgment of Callinan J in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 76 ALJR 1 wherein his Honour, in a radically liberal exposition, expounds upon matters not immediately in issue here, but which point to what his Honour perceived to be the need for a complete review of the law in terms of injunctive relief in relation to various areas of existing and potential wrongs, the outcome of which would be more favourable to plaintiffs than the present principles dictate. 27 Thus balancing those matters to which I have referred, I have been persuaded that the over-riding principle prevails and refuse the application. 28 I will direct, so that they are not lost, the return of exhibits 1 and 2 to the defendant on the understanding that they are retained as marked; exhibit A to the plaintiff that it be retained as marked. 29 I propose to reserve costs.

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