Acp Publishing Pty Ltd v Pacific Publications Pty Ltd [1999] NSWSC 167 (4 March 1999)

Last Updated: 9 March 1999

NEW SOUTH WALES SUPREME COURT

CITATION: ACP Publishing Pty Ltd v Pacific Publications Pty Ltd [1999] NSWSC 167

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 1560/99

HEARING DATE{S): 04/03/99

JUDGMENT DATE: 04/03/1999

PARTIES:

ACP Publishing Pty Ltd (Plaintiff)

Pacific Publications Pty Ltd (Defendant)

JUDGMENT OF: Young J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Plaintiff: S D Rares SC and N Perram

Defendant: C A Evatt, M Fraser and G Lucarelli

SOLICITORS:

Plaintiff: Gilbert & Tobin

Defendant: Bush Burke & Co

CATCHWORDS:

Equity [338]

Injunctions

Interlocutory injunctions

Balance of convenience

Application to restrain defendant saying that interview reported in plaintiff's magazine did not take place

Trial fixed for following week

No injunction in meantime

Principles of free speech and restraining defamatory words considered

ACTS CITED:

DECISION:

Interim relief declined

Directions made

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

YOUNG, J

THURSDAY 4 MARCH 1999

1560/99 - ACP PUBLISHING PTY LTD V PACIFIC PUBLICATIONS PTY LTD

JUDGMENT

1 HIS HONOUR : This is an unusual application for an interlocutory injunction by the proprietor of one women's interest magazine against the proprietor of another.

2 The plaintiff has published in its magazine what it says is an interview between a Mr Golden and a Ms Lewinsky. The defendant has published on radio station 3AW that in its view that interview never took place and the plaintiff has just published the result of a hoax.

3 The plaintiff says that such a statement injures it in its reputation, and may very well, merely because it may lead people who would ordinarily buy its magazine not to buy it, cause irreparable damage to the standing of its magazine as a competitor to the defendant's magazine.

4 Especially in cases where there is likely to be a good deal of publicity, courts must be very careful before granting interlocutory injunctions. A reason for this is that it is so easy for the public to misunderstand what the court's task is on these applications. The court merely sees whether the plaintiff has shown that there is a serious question to be tried and how the status quo can be held pending the time the court can deal with the case.

5 A major factor in whether to make an order is the length of time that it will take for the case to come on for hearing. If it is only a matter of a short time, then one is dealing with a different scenario than if it is going to be some months before a case can come on before the court.

6 After a little negotiation, it would seem that as a result of a case settling in my list next week we can try this case finally on Wednesday, 10 March 1999, with the aid of video link evidence from London and New York. Accordingly, I am only dealing with a time gap of about five days.

7 I should mention that the plaintiff applied to the Chief Judge ex parte on Tuesday and obtained an order preventing the defendant representing to the public, or to other publishers or broadcasters, that the relevant interview was a hoax or otherwise fictitious. The plaintiff seeks to extend that order up until the hearing. It says that there is a justifiable fear of repetition and that such repetition may very well cause irreparable damage to the standing of the magazine.

8 However, there are a large number of factors which tell against doing that. The first is that to an extent the cat is already out of the bag, in that there has been publication on a Victorian radio station of the defendant's allegation.

9 Secondly, there is great difficulty in framing an injunction which does not allow the defendant to escape by the various alternative methods of getting its message across. One has only got to remember how the relevant media were able to publish the transcript of the Lady Chatterley's Lover case to see that this is so.

10 Thirdly, there is a general reluctance in this Court to grant any injunction which will prevent free speech, which is the right of every Australian, and injunctions are usually granted only in the special sort of cases that are mentioned in Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153.

11 Fourthly, I am not convinced of the correctness of the statement that the plaintiff is likely to suffer damage even if the statement was repeated. There is no allegation that the plaintiff has acted otherwise than in good faith and if a hoax has been perpetrated on it, the Australian readership is just as likely to shrug it off as to say that they consider that the standing of the magazine has been damaged.

12 Finally, there are only five days before a full hearing, the message has already got out, and I cannot see such damage as would justify the making of a further restraint.

13 Accordingly, I decline to give interim relief. If it appears that, for a reason other than problems on the plaintiff's side of the record, the case cannot be heard next Wednesday, perhaps it may have to be revisited.

14 I have not heretofore mentioned the question of a prima facie case or serious question to be tried. If the plaintiff's evidence is believed then, with one exception, the plaintiff would seem to have shown that there is a serious question to be tried that there actually was an interview between Andrew Golden and Monica Lewinsky. The exception is that the affidavit of Mr O'Brien, a solicitor acting for the plaintiff, does not indicate anything more than that Mr Golden was actually sitting at a table whilst other people were talking. Mr Golden's own affidavit says in paras 16 and 17 that he put questions to Ms Lewinsky and she answered them. There is, of course, quite a difference between a meeting and an interview, and a difference between an interview and being present and overhearing what other people said; see Australasian Meat Industry Employees Union v Thomas Borthwick & Sons (Pacific) Ltd (1991) 32 FCR 28, 33.

15 It may be that the plaintiff will feel that it should supplement this material and that is why I point out this particular problem.

16 In view of what has been said by counsel on both sides, it is necessary that the issues be defined by pleadings.

17 Accordingly I direct that:

1. The plaintiff is to file and serve a duly verified statement of claim no later than 4pm on Friday 5 March 1999.

2. The defendant is to file and serve a duly verified defence no later than 4pm on 8 March 1999.

3. I note that apart from the question as to whether there was an interview, no further evidence is intended at this stage to be filed by the plaintiff.

4. The defendant's affidavits are to be served no later than 6pm on 8 March 1999.

5. I will provisionally fix the hearing before me at 10am on Wednesday, 10 March 1999; and

6. In the circumstances I will reserve the costs of today until the hearing.

7. Upon the plaintiff by its counsel giving to the court the usual undertaking as to damages, I extend the Chief Judge's order until 6pm tonight so that the plaintiff can consider its avenues as to appeal.

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LAST UPDATED: 08/03/1999