Network Ten Pty Limited v van Onselen

) S Chrysanthou SC and A B Gotting (Defendant)

Solicitors: Baker McKenzie (Plaintiff) Laxon Lex Lawyers (Defendant) File Number(s): 2023/00177027

Index INTRODUCTION BACKGROUND Events leading up to the Deed The Deed Events after the Deed including publication of the Article The proceedings THE PARTIES' POSITIONS Ten's position Dr van Onselen's position Ten's response DISPOSITION Credit Operation of cl 7.1 and was it breached? Restraint of trade Clean hands RELIEF CONCLUSION

INTRODUCTION

1. The plaintiff (Ten or the Company) is an Australian commercial television network. Since 2017, it has been part of the Paramount Global group which has its headquarters in the United States.
2. The defendant (Dr van Onselen or the Employee) is an academic, a journalist, an author and a commentator. He holds, amongst others, a doctorate in political science. Since 2011, he has been the Foundation Chair of Journalism at the University of Western Australia and, since 2018, a Professor of Politics and Public Policy at Griffith University, Queensland.
3. On 10 December 2018, Ten employed Dr van Onselen.
4. On 3 March 2023, they parted company on terms embodied in a written Deed of Release (the Deed).
5. The Deed contained (in cl 7) what the parties have described as a non-disparagement clause. Under it, both sides agreed not to disparage the other or make any statement or publication or authorise any other person to disparage or make any statement or publication which may, or which does in fact bring the other into disrepute or ridicule, or which may otherwise adversely affect their respective reputations.
6. On 29 May 2023, there was, published in The Australian Business Review section of The Australian newspaper, an article (the Article) written by Dr van Onselen. Ten contends that the Article, in breach of the Deed, disparages it.
7. Ten seeks a declaration that Dr van Onselen has breached cl 7.1 of the Deed and a permanent injunction restraining him from further breaching it. The Summons makes no claim for damages.

Events leading up to the Deed

1. From 2010, Dr van Onselen regularly appeared on television as a political commentator and host. When he was with Ten, he co-hosted television programs called The Project and The Sunday Project. He might, in the circumstances, be described as 'high profile'.
2. On 10 December 2018, Ten employed Dr van Onselen as Network Political Editor.
3. On 31 January 2022, one Tegan George - who had, at one time, been employed by Ten - initiated proceedings against Ten in the Fair Work Division of the Federal Court of Australia in which she makes a series of workplace complaints, including complaints directed at alleged conduct on the part of Dr van Onselen (the Proceedings).
4. In early 2023, Ten requested Dr van Onselen to relocate to Canberra in order to retain his role. He was not prepared to do so. This resulted in Ten making his position redundant.
5. Ten and Dr van Onselen then negotiated the terms of his departure.
6. Dr van Onselen retained a solicitor, Mr Chris Gianatti (Gianatti), to advise him and engage in communications with Ten with respect to those terms.
7. In the negotiations, Ten was represented primarily by Mr Anthony John McDonald (McDonald), Vice President Human Resources Australia and New Zealand for Paramount Australia & New Zealand.
8. McDonald gave affidavit evidence of a telephone conversation in which Dr van Onselen said that he was concerned that Ten was going to "hang me out to dry on the Tegan George matter. But if I can negotiate something on that I'll take the redundancy".
9. On 22 February 2023, McDonald sent Dr van Onselen redundancy calculations, a draft Deed of Release and a draft announcement that would "position" Dr van Onselen's "exit as a resignation".
10. The draft made provision for the payment to Dr van Onselen of $165,491.03, made up of a payment in lieu of $58,145.50, a redundancy payment of $35,781.85 and an ex gratia payment of $71,563.68.
11. Dr van Onselen sent the proposed Deed to Gianatti. It contained a non-disparagement clause.
12. Dr van Onselen says that after receiving the document, he had a conversation with McDonald to the following effect: Dr van Onselen: I assume the deed doesn't shut down my right to comment forever about the network. I mean, I'm not suggesting this obviously, and it's deliberately extreme, but if the CEO fucked a goat and everyone was piling on Ten for not sacking them, surely I can pile it on too? McDonald: Of course mate, that sounds fair. Dr van Onselen: This deed is all about everyone just putting their guns down and walking away, so that with the distance of time you're not silenced forever. I mean I'm still going to be a commentator and I teach media. I can still, within reason, say whatever I want, yes? McDonald: Of course, but hopefully you don't ever want to anyway. Dr van Onselen: How is it at Ten with all the shit going on? McDonald: Yeah, it's tough but hopefully we can get through it and come out the other side stronger.

The Deed

1. The final version of the Deed was executed on 3 March 2023.
2. The Preamble records that the Company had employed the Employee since 10 December 2018; that on 22 February 2023, the parties agreed that on the Termination Date (which the Deed defines to be 3 March 2023) the Employee's position would become redundant and the employment of the Employee will terminate; and that the parties had agreed to formalise their separation on the terms set out in the Deed.
3. The Deed provides for the Company to pay the Employee amounts set out in Schedule 1.
4. The presently relevant clauses of the Deed are set out or described below: 1. Definitions and Interpretation … 1.5. Proceedings means any proceedings brought by Tegan George against the Company including Federal Court of Australia proceedings Number NSD49/2022 (including any appeal, cross-claim or related proceedings that are brought in any court or tribunal relating to such proceedings). … 1.8. Related Bodies Corporate has the meaning given to that term in section 50 of the Corporations Act 2001 (Cth). … 5. Release 5.1. In consideration for the Company's agreement under clause 3.2 to pay the Employee a redundancy payment of an amount that exceeds the statutory entitlement, the Employee hereby releases and discharges the Company, its Related Bodies Corporate and their respective officers and employees (the Releasees) from all Claims against any of them and acknowledges that the company holds the benefit of this release on behalf of the Releasees. 5.2. In consideration for the Employee's promises in this deed, the Company hereby on behalf of itself and on behalf of its Related Bodies Corporate releases and discharges the Employee from all Claims (excluding Claims of the nature described in clause 5.3) against him. … 7. Non-Disparagement 7.1. Subject to clause 7.3, the Employee agrees not to disparage the Company or any of the Releasees or make any statement or publication, or authorize any other person to disparage or make any statement or publication, whether oral or in writing, which may or which does in fact bring the Company or any Releasees into disrepute or ridicule or which may otherwise adversely affect their respective reputations. 7.2. Subject to clause 7.3, the Company agrees not to disparage the Employee or make any statement or publication, or authorize any other person (including the Releasees) to disparage or make any statement or publication, whether oral or in writing, which may or which does in fact bring the Employee into disrepute or ridicule or which may otherwise adversely affect the Employee's reputation. 7.3. For the avoidance of doubt, clauses 7.1 and 7.2 do not limit or restrict the truthful statements made by each party respectively in relation to the Proceedings.

Events after the Deed including publication of the Article

1. In an exchange of correspondence on 22 March 2023 between Dr van Onselen and Bronwyn Fardon, Ten's Head of Corporate Communications, Dr van Onselen foreshadowed that he proposed to write an article which would include comments about Ten's financial performance. He wrote that he was doing "relative decline across free to air as well as where the good and bad points are for all three commercials" (meaning commercial television networks).
2. On 29 May 2023, The Australian Business Review section of The Australian newspaper published the Article which was (except for the title) written by Dr van Onselen. It reads: Paramount woes raise questions about the long term viability of Network 10 PETER VAN ONSELEN Follow @vanOnselenP ______________________________________________________________ By PETER VAN ONSELEN CONTRIBUTING EDITOR Follow .@vanOnselenP 7:53AM MAY 29, 2023 Even though Channel 10 has long been the minnow of Australian commercial television - out gunned and out rated by 7 and 9 now more than ever - when CBS (now Paramount) took the little Aussie battler over a few years back I assumed its future was bright. Supported by a massive US media player - now rebranded Paramount - was a distinct advantage the other Aussie networks don't have. It was one of the reasons I accepted the job as 10's Political Editor, a role I walked away from earlier this year. Paramount also has a streaming platform with international credentials, again an advantage domestic competitors don't have. Another reason to have thought the network's future was bright. But the latest news coming out of the US is reason to doubt its long term viability. Paramount's share price has plummeted more than 30 per cent in the past month, down more than 50 per cent in just a year. At its zenith just a few years ago the share price was above $97. Today it's below $15. And the latest announcement from its American headquarters was an 80 per cent cut to its dividend followed by a hiring freeze to save some coin. Understandable given the more than a billion dollar first quarter loss posted this year, with more losses forecast. You could choose to be a little more upbeat about Paramount (and Network 10's) future if the streaming part of the business was firing, but it's not. That's actually where the losses are centred, but it's also where the hope for growth has long been too. Subscription growth hasn't been strong enough to make streaming profitable yet, and while Paramount+ is big by Australian standards, and growing, it is dwarfed by others in the US, playing catch-up since entering the streaming business later than its major competitors. A missed opportunity to be an early adopter by management. The likes of Netflix, Disney and Warner are much bigger and better established operators, doing better than Paramount. It's so concerning that Paramount's biggest shareholder, Warren Buffett who owns 15 per cent of the business, has intimated that he doesn't think streaming is the future for Paramount, unless scale can be brought to bear and quickly. That's simply not going to happen, which begs the obvious question what does one of the world's most acclaimed investors choose to do with his stake in Paramount? If he dumps it the share price will tank even more than it already has. Buffett exiting a business is a certain way to cause panic, and Paramount is already in panic mode. It would be a disaster for current management. Irrespective of what Buffett does or doesn't do (his shares have already halved in value and Buffet has shown a willingness to realise losses before when he loses faith in management) analysts have by and large put a sell order on Paramount shares, seeing far more downside risks than upside opportunities with the stock. So what does all of this mean for Network 10? It could be fine, limping along with little attention paid to it by its big overseas owner (or its domestic competitors to be frank). It's such a small part of Paramount that losses or gains at 10 matter little to its American owners. But even big companies that are struggling tend to cut their losses, dumping unprofitable parts of their businesses. There certainly won't be the sort of investments in the brand once thought likely when the CBS takeover was announced. Since that time the network's ratings have slowly ebbed lower and lower, elongating the divide between it and its more successful commercial rivals in Australia. In Sydney just this month 10's news share dropped to a meagre 6 per cent, a new low that one rival news executive told me he'd "never seen in 30 years in the business". That's despite Australia's number one female news anchor, Sandra Sully, hosting. A sure sign the problem is the brand and management, not the host. Back in the US, Paramount executives are trying to remain upbeat, claiming that a return to profitability isn't too far away. Maybe they are right. But you'd be brave to bank on such predictions given that those same executives didn't predict the failures of the present. If they had, the failures could have been minimised and not spooked the market resulting in a collapse of the share price. Whatever happens one thing is certain: Warren will be watching. Peter van Onselen is a professor of politics and public policy in the business faculties at the University of Western Australia and Griffith University. PETER VAN ONSELEN, CONTRIBUTING EDITOR Dr Peter van Onselen has been the Contributing Editor at The Australian since 2009. He is also a professor of politics and public policy at the University of Western Australia and was appointed its foundation chair.

The proceedings

1. On 2 June 2023, Ten sued out of this Court, a Summons seeking both interlocutory and final relief. Ten seeks final relief in the form of a declaration and an injunction in the following terms: Final Relief 7 A declaration that the defendant has breached clause 7.1 of the Deed of Release. 8 An order that the defendant be restrained, by himself, his servants or agents, from disparaging or making any statement or publication, or authorising any other person to disparage or make any statement or publication, whether oral or in writing, which may or which does in fact bring into disrepute or ridicule, or which may otherwise adversely affect the respective reputations of: a. the plaintiff; b. Related Bodies Corporate of the plaintiff (as that term is defined in section 50 of the Corporations Act 2001 (Cth)); and c. each of their respective officers and employees.
2. On 3 June 2023, Dr van Onselen's present solicitors wrote to Ten's solicitors making the following offer: Without admission: 1. The defendant undertakes to the plaintiff to comply with clause 7.1 of the Deed of Release. 2. Each party pay its and his own costs of the proceedings. 3. An order in the form sought in paragraph 9 of the Summons. 4. The proceedings otherwise be dismissed. Our client will delete all his social media posts referring to the Australian article. However, to be clear, it is not within his power to cause Nationwide News to remove the Australian Article from its website.
3. The offer was not really meaningful because Dr van Onselen was arguing that cl 7.1 did not capture the statements made in the Article.
4. Pending the hearing, however, the parties reached an interim arrangement. On 5 June 2023, I fixed the hearing to commence on 29 June 2023. The hearing was completed in one day.
5. The Court had the benefit of written submissions from both sides.
6. McDonald and Dr van Onselen gave evidence and were cross-examined. Dr van Onselen gave evidence remotely from Europe.

Ten's position

1. Ten argues that the Article breaches cl 7.1 by disparaging Ten's financial position, the viability of its US parent, its Australian brand and its management.
2. It argues that the Article conveys that: 1. Ten is weak, commercially unviable and/or worthless; 2. its Sydney news rating performance is embarrassingly poor; 3. Ten's management is directionless, lacks competence and is to blame for its poor ratings; 4. Ten's US management lacks skill, competence and foresight; and 5. Ten's US parent company is commercially unviable.
3. In its written submissions, Ten described the Article as containing "colour, gloss and sting".
4. Ten argues that cl 7.1 is an enforceable negative stipulation, the breach of which provides a prima facie basis for the grant of an injunction. It argues that there are no good reasons why an injunction should not be granted.

Dr van Onselen's position

1. First, Dr van Onselen argues (based on a combination of the written and oral submissions made on his behalf) that the Article does not disparage Ten or any of its related bodies corporate, officers or employees within the meaning of cl 7.1 because: 1. on a business-like construction, against the background of the fact that Dr van Onselen's occupation was known, the clause is not to be construed as capturing statements made by him in good faith that "in the most generalised of senses" discredit or lower the estimation of Ten or its holding company, but captures only statements in bad faith that go beyond fair comment; 2. the true purpose of the Deed was to stop negative commentary by Dr van Onselen about his employment, or commentary about Ten as an employer or the circumstances in which his employment was terminated, or about the Proceedings; [1] 3. the Article merely restates information which is already publicly available; and 4. Ten's (and for that matter, presumably its holding company's) reputation had already been tarnished or exposed by the "very widely discussed exposition of the same facts" before the Article, [2] so that its reputation could not be tarnished by the re-exposition of those matters in the Article.
2. Second, he argues that cl 7.1 is a restraint of trade within the meaning of s 2(2) of the Restraints of Trade Act 1976 (NSW) (the Act) and is invalid under s 4(1) of the Act because it is against public policy. Section 4(1) of the Act provides: 4 Extent to which restraint of trade valid (1) A restraint of trade is valid to the extent to which it is not against public policy, whether it is in severable terms or not.
3. The thrust of this argument appears to be that: 1. Ten (and its US holding company) constitute a sizeable corporate organisation which "cannot protect its reputation as far as the tort of defamation is concerned"; [3] 2. the interest sought to be protected by cl 7.1 cannot be protected because any other journalist could have written the Article; 3. cl 7.1 impinges on Dr van Onselen's right of free speech and therefore prevents him from exercising his professional occupation; and 4. consequently, the clause is against public policy.
4. Third, he argues that relief should be refused because Ten comes to Court with unclean hands by reason of its representations to Dr van Onselen on the operation of the non-disparagement clause. I take this submission to entail the proposition that Ten is seeking to enforce cl 7.1 inconsistently with how McDonald represented it would operate. For this submission, Dr van Onselen obviously relies on his version of the Conversation.

Ten's response

1. With respect to the restraint of trade submissions, Ten argues that cl 7.1 is not a restraint of trade within the meaning of s 4 of the Act because it does not limit Dr van Onselen's ability to work and earn income as a political commentator (and presumably as an academic). Ten argues that a non-disparagement clause is a category of agreements which should not be considered restraints of trade. It also argues the restriction cl 7.1 imposes is de minimis and is insufficient to make cl 7.1 a restraint of trade.
2. Additionally, Ten argues that, if cl 7.1 is a restraint of trade, it is not against public policy, but a legitimate means for the protection of Ten's goodwill and reputation.

Credit

1. Each side attacked the credit of the other's witness in relation to the Conversation.
2. I believe McDonald and not Dr van Onselen.
3. There are a number of factors standing in the way of accepting Dr van Onselen's evidence.
4. Dr van Onselen's position is that McDonald agreed that, within reason, Dr van Onselen could say whatever he wanted (that is, even if it was disparaging of Ten or subjected it to ridicule), a significant and plain departure from the operation of the terms of the provision to which he later put his signature.
5. Yet, even though he says McDonald agreed to it, he took no step to ensure that the written agreement reflected what he says was the common position (in respect of which he could have expected to encounter no resistance from McDonald if the conversation he recounts actually occurred). His evidence was that, if McDonald had not agreed, he would have insisted on an express carve out. It is difficult to understand why he did not, in light of what he says McDonald said, do so. Draft terms of the Deed were exchanged with tracked changes and then finalised via the parties' respective lawyers, including the terms that do not reflect what Dr van Onselen says was his understanding of how the Deed would work in an important respect. On his version, he let Gianatti go ahead in ignorance of the important Conversation.
6. Moreover, if the reach of the non-disparagement clause was, as Dr van Onselen would have it, of significant concern to him, to the extent even of being important to his living as a journalist, one would have expected his first port of call to have been his own lawyer to make sure the provision he was agreeing to, operated in the way he says he understood it would. Yet, he did not discuss this important issue with him.
7. At the end of Dr van Onselen's cross-examination, the following exchange took place with the Court which revealed, in my view, that he did not have the acute concern about the operation of the non-disparagement clause which he earlier said he did. I think it also calls into question his evidence that, if McDonald had not agreed and there had not been a carve out, he would not have entered into the Deed. HIS HONOUR Q: In the two minutes and 40 seconds which are left of this cross-examination, I just want to ask a few of my own questions. A: Yes, your Honour. Q: This is in relation to the conversation that you had with Mr McDonald on or around 22 February, which is in paragraph 29 of your affidavit. Just the first thing: who is Anthony Murdoch? A: He was my line manager at Network Ten for my employment. Q: In this conversation, the way I read this - just tell me if I'm right - was you were concerned about the reach or the potential reach of the non-disparagement clause? A: I was concerned about it, but I just - I - rightly or wrongly, I wasn't overly concerned. I just wanted to check it because I couldn't believe that something could apply that way. Q: Mr McDonald, you say, gave you what you considered to be an assurance that it wouldn't operate that way? A: Yes, your Honour. Q: Would I be right in thinking you must have been concerned that on one view, it could have operated that way, otherwise you wouldn't have asked him? A: That's true, but I was - I wasn't - clearly, in hindsight, I should've been more concerned because we're here, but I just was seeking to - almost in a relaxed way, just double-check that that can't be right, because for my, you know, sort of future life, I guess. Q: I understand, but then the question which perhaps might be thought to arise on this is, if you had a concern and Mr McDonald was apparently amenable to the deed operating in the way that you conveyed via use of your colourful language it wouldn't operate, why didn't you ask Ten or their lawyer through your lawyer to make sure the deed read the way you say it intended to operate? A: Your Honour, it just seemed - it seemed - getting the reassurance of Mr McDonald was nice to get but it just - even if I hadn't got it, I just couldn't believe that that's the way that it could apply, in a way that would sort of shut me down forever. So, I was just looking to get there and get the deed signed and, you know, move on. [emphasis added]

Operation of cl 7.1 and was it breached?

1. The Deed, including cl 7, is a commercial contract which is to be given a business-like interpretation. Interpreting it requires attention to the language used by the parties, the commercial circumstances which it addresses, and the objects which it is intended it secures. The meaning of the words chosen is determined objectively by reference to its text, context, and purpose, the question being what a reasonable businessperson would have understood them to mean. Preference is given to a construction supplying a congruent operation to the various components of the whole, so as to avoid commercial inconvenience. Where language is open to more than one construction, the Court will prefer a construction which avoids consequences which are capricious, unreasonable, inconvenient or unjust. See Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36; McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; [2000] HCA 65 at [22]; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 at [22]; Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530; [2004] HCA 56 at [82]; Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; [2005] HCA 17 at [15]; Electricity Generation Corporation Ltd v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [47]-[51].
2. The non-disparagement clause ultimately agreed upon, on its plain wording, makes no exception for disparagement which may be fair comment or for the party bound by it to say whatever he or it wanted, even if disparaging, provided it was within reason (whatever that may be considered to mean).
3. Dr van Onselen's submissions do not identify any constructional choice to be made. He accepts that disparaging includes lowering the estimation of, treating slightingly or belittling and that bringing into disrepute includes discrediting, ridiculing or deriding. It is not suggested that any ambiguity or lack of clarity is involved in construing the provision. There is no warrant to read it down.
4. Good faith and Dr van Onselen's known occupation do not intrude into the question of whether the Article meets the contractual description of disparaging or bringing Ten or the Releasees (as defined in cl 5.1) into disrepute or ridicule or adversely or possibly adversely affecting their reputation.

Restraint of trade

1. The first issue is whether cl 7.1 is, on its proper characterisation, a restraint of trade within the meaning of the Act.
2. In Petrofina (Great Britain) Ltd v Martin [1966] Ch 146 ("Petrofina") at 180, Diplock LJ said: A contract in restraint of trade is one in which a party (the covenantor) agrees with any other party (the covenantee) to restrict his or her liberty in the future to carry on trade with other persons not parties to the contract in such a manner as he or she chooses.
3. In Boddington v Lawton [1994] ICR 478 at 485, Sir Donald Nicholls VC said: In the instant case the relevant underlying principle, stated shortly, is that a contract, here a rule, is in restraint of trade if its effect is to bind or coerce a worker not to work when otherwise he might wish to do so. Plainly, coercion by imposing a financial or other sanction can be just as effective in deterring a person from breaking ranks as an express rule to that effect.
4. In Esso Petroleum Co Ltd v Harper's Garage (Stourport) Ltd [1968] AC 269 ("Esso") at 333ff, Lord Wilberforce spoke of established instances of types of transactions where the restraint of trade doctrine has been understood to have had no application. Lord Wilberforce's speech made no reference to non-disparagement provisions, whether in the context of employment or otherwise.
5. Neither counsel referred me to any case in which a non-disparagement provision has been considered to be a restraint of trade. Ten submitted that such clauses are common in redundancy deeds and in settlement agreements to ensure that disputes are not exposed to the risk of being reopened. It was put that any determination that a non-disparagement clause may amount to a restraint of trade may run counter to the legitimate expectations of employers and commercial parties generally.
6. Whether cl 7.1 is or is not in restraint of trade is to be determined having regard to the practical working of the alleged restraint rather than to its legal form: see Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126 at 134 [14]; [2001] HCA 45.
7. There is no conceptual reason why, depending on its field of operation, a non-disparagement provision could not be in restraint of trade.
8. However, when it comes to cl 7.1, I do not consider that the practical work it has to do, makes it in restraint of trade.

Clean hands

1. Dr van Onselen's unclean hands defence relies on the Court finding that the Conversation, as he alleges, took place. He has failed to persuade the Court that he should be believed.
2. It is difficult to see how the defence could have succeeded anyway because, after the Conversation, Dr van Onselen executed the Deed in its present form with the inclusion of cls 10 and 12.1.
3. The clean hands defence fails.

RELIEF

1. I have found that Ten's construction of the Deed is the correct one and that Dr van Onselen's construction is unsustainable. Dr van Onselen's breach of cl 7.1 is not trivial in fashion. In the circumstances, it is appropriate for the Court to make a declaration as to his breach.
2. There is no scope to make an award of nominal damages because the Summons does not claim one.
3. Clause 7.1 is an enforceable negative stipulation. Ordinarily, such a stipulation will be enforced by injunction unless there is some good reason not to do so.
4. In the particular circumstances of this case, I have concluded that an injunction should not be ordered.
5. I do not consider that there would be any uncertainty attendant upon an appropriately framed injunction (although I consider that the injunction as framed in the Summons is somewhat wide). I also do not consider that an appropriately framed injunction would be oppressive.
6. But I have, however, concluded that there is no realistic risk or possibility that Dr van Onselen will, in the light of my findings, breach cl 7.1 again.
7. I have come to this conclusion, despite the somewhat intemperate tone of Dr Van Onselen's 31 May 2023 email and the fact that I have not accepted his evidence in a material respect. This is because I consider it appropriate to give weight to the following submissions of Senior Counsel for Dr van Onselen, which I infer were put on express instructions: CHRYSANTHOU: Yes, your Honour. Relevant to whether the injunction should be ordered and the discretion are those issues of restraint and certainty and estoppel, but also the fact that there's no - as we sit here - any threat of breach. [6] … CHRYSANTHOU: Yes, your Honour, but there's no threat that if your Honour resolves the question of construction differently to how he understood it when he wrote his initial response to the letter of demand that he will not comply with the terms of the deed insofar as your Honour says it should be construed, again making injunctions unnecessary. One of the arguments we have in relation to injunctions is the impossibility of my clients to comply with such an order, having regard to the number of employees. [7] … CHRYSANTHOU: Well yes, your Honour, but there's no risk that my client is going to criticise no demonstrated risk. [8] … CHRYSANTHOU: We would say that the breach that your Honour has been faced with and the evidence about risk of future publication wouldn't warrant and injunction to that effect either. When it comes to the terms of the injunction, because there's just no demonstrable risk that has been demonstrated that my client is likely to do that. [9] … CHRYSANTHOU: There's no risk of repetition. [10] … CHRYSANTHOU: But there's a difference between what I'm submitting, your Honour, as a matter of law and what the evidence is as to the risk that my client poses apparently to Network Ten and Paramount and its thousands and thousands of employees. There's none but my friend made a submission which ignores the timing of the situation. Yes, he believed at the time he signed the deed that it meant a certain thing. If your Honour informs him differently there's no reason to think that he wouldn't adhere to what your Honour has found. [11]

CONCLUSION

1. The Court makes the following orders: 1. The Court declares that the publication in The Australian Business Review section of The Australian newspaper on 29 May 2023 of the Article headed "Paramount woes raise questions about the long term viability of Network 10" was a breach by the defendant of cl 7.1 of the Deed entered into by the plaintiff and the defendant on 3 March 2023. 2. The Summons is otherwise dismissed.
2. By 4:00pm on 21 July 2023, the parties are to exchange brief written submissions and forward them to my Associate with respect to costs, which will be dealt with on the papers.
3. In those submissions, the parties are to draw to my attention to any issue (apart from costs) which remains to be dealt with.
4. The exhibits are to be returned.

Endnotes

1. Tcpt, 29 June 2023, p 17(17-22). He asserted something similar in his 31 May 2023 email.
2. Tcpt, 29 June 2023, p 78(3-6).
3. Tcpt, 29 June 2023, p 81(7-9).
4. Tcpt, 29 June 2023, p 89(1-9).
5. Tcpt, 29 June 2023, p 88(1-16).
6. Tcpt, 29 June 2023, 14(39-42).
7. Tcpt, 29 June 2023, 22(38-44).
8. Tcpt, 29 June 2023, 82(20-21).
9. Tcpt, 29 June 2023, 84(7-11).
10. Tcpt, 29 June 2023, 87(23).
11. Tcpt, 29 June 2023, 88(3-10). 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: 14 July 2023