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[2005] TASSC 82

CITATION:Australian Broadcasting Corporation v O'Neill[2005]TASSC82

PARTIES:AUSTRALIAN BROADCASTING CORPORATION

v

O'NEILL, James Ryan

TITLE OF COURT:SUPREME COURT OF TASMANIA (FULL COURT)

JURISDICTION:APPELLATE

FILE NO/S:FCA 27/2005

DELIVERED ON:29 August 2005

DELIVERED AT:Hobart

HEARING DATE:9 June 2005

JUDGMENT OF:Slicer, Evans and Blow JJ

CATCHWORDS:

Defamation - Injunctions - Interlocutory injunctions - Restraint of publication- Appeal - Principles governing appellate court- Matters of public interest orconcern - Freedom of speech and individual interest - Balance of conveniencetest.

Aust Dig Defamation [105]

Defamation - Statements amounting to defamation - Criminal - Statement thatperson suspected of committing crime - Imputation ofconduct warrantingsuspicion - Statements and allegations that convicted murderer involved inother murders - Status of appellant.

Aust Dig Defamation [10]

Chappell v TCN Channel Nine Pty Ltd (1988)14 NSWLR 153;Church ofScientology v Readers Digest[1980] 1 NSWLR 344;Jakudo Pty Ltd v SouthAustralian Telecasters Ltd[1997] SASC 6370;(1997) 69 SASR 440, considered.

Defamation - Fair comment - Onus of proof - Distinction between comment andstatement of fact - Television broadcast.

Aust Dig Defamation [52]

REPRESENTATION:

Counsel:

Appellant:R J Whitington SC and A T S Dawson

Respondent:J E Green

Solicitors:

Appellant:Murdoch Clarke

Respondent:Hobart Community Legal Service

Judgment Number:[2005] TASSC 82

Number of paragraphs:83

Serial No 82/2005

File No FCA 27/2005

REASONS FOR JUDGMENTFULL COURT

SLICER J (Dissenting)

EVANS J

BLOW J

29 August 2005

Order of the Court

Appeal dismissed.

Serial No 82/2005

File No FCA 27/2005

REASONS FOR JUDGMENTFULL COURT

SLICER J

29 August 2005

1The appellant seeks review of an order restraining it, until judgment, frompublishing:

"... to the general public any part of the documentary known as 'The Fisherman'that imputes or implies that the Plaintiff was responsiblefor or is suspectedof being responsible for the disappearance or murder of the children commonlyreferred to as the Beaumont childrenor that the Plaintiff is a multiple killer[sic] of children."

2The respondent is serving a life sentence of imprisonment following hisconviction in November 1975 for the murder of a child. The appellant intendedto broadcast a documentary which included material containing statements andallegations that the respondenthad been involved in the murder of otherchildren. In May 2005, the respondent commenced proceedings in defamationagainst the appellant,the producer of the documentary and the corporationresponsible for its production. These proceedings follow the making of aninterlocutoryorder in the terms stated above. At the time of the hearing ofthe application and this appeal, the respondent, through oversight,had notobtained leave required of a convict to commence his action as required by thePrisoners (Removal of Civil Disabilities) Act1991. The appellantexpressly disavowed any reliance on the procedural bar at the hearing of theappeal.

3The respondent's statement of claim relevantly alleged:

"5The First, Second and Thirdnamed Defendants published or caused to bepublished the said documentary to the public at the HobartSummer Film Festivalduring the first week of January 2005.

6The said documentary contained words, images and gestures which in theirnatural and ordinary meaning meant and were intendedto mean:-

(a)that the Plaintiff was responsible for or is suspected of being responsiblefor the disappearance of the Beaumont children;

(b)that the Plaintiff was responsible for or is suspected of being responsiblefor the murder of the Beaumont children;

(c)that the Plaintiff was and is a multiple killer of children.

7The Beaumont children are three children from the same family (Jane 9, Arnna7 and Grant 4) who disappeared in South Australiaon Australia Day 1966.

8The publication of the said documentary is likely to induce people to shun,avoid, ridicule or despise the Plaintiff.

9The Firstnamed Defendant intends to transmit for general television receptionthe said documentary.

10Unless restrained by this Honourable Court the Defendants will continue topublish or cause or permit to be published the saiddocumentary."

4The appellant intends to defend the action with the pleas of truth andpublic benefit. The imputations that the respondent wasinvolved in thedisappearance of the Beaumont children are said to be ones of suspicion held byothers and their reasons for suspicion,and of a nature afforded defence by theprovisions of theDefamation Act1987 ("the Act"). The appellant gavean undertaking that it would pay any damages which might be sustained by reasonof the order.

5The appellant has filed a notice of appeal comprising 14 grounds. Someassume that there had, or ought to have been, a fullhearing on the merits ofthe defamation case and that the learned primary judge had made positive ornegative findings on those merits. Two examples illustrate the approach.Grounds 4 and 5 of the notice claim error in that:

"4The learned primary judge erred in granting the interlocutory injunction incircumstances where he declined to hold that thedefences raised by theAppellant were not arguable.

5In the alternative, to the extent that the learned primary judge may haveheld that those defences or any of them were/was unarguable,he erred in sofinding".

6The former is contradicted by the appellant's written submissions providedat the hearing of the appeal which relevantly state:

"It was not contended, nor was it found by the primary judge, that any of thedefences foreshadowed by the Appellant, were unarguable."

The latter was not a finding, by omission or otherwise, made by the learnedprimary judge.

7Others seek to elevate observations to statements of principle. Grounds 12and 13 state:

"12The learned primary judge erred in finding at [35] that the second andthird defendants below were motivated by profit, andin regarding a finding asto the conduct of parties other than the Appellant as relevant in anapplication for an injunction to restrainthe Appellant from publishing theimputations.

13The learned primary judge erred in finding at [35] that the Respondent wasmotivated by a wish to 'improve its ratings', andin taking that finding intoaccount in an application for an injunction to restrain the Appellant frompublishing the imputations."

8In relation to those matters, the learned primary judge stated, at par35:

"I infer that it is likely that in part, at least, the film has been producedby Mr Davie and the second defendant with a motivefor commercial profit,and that in part at least, the ABC wishes to broadcast it to improve itsratings. Such considerations favourthe granting of the injunction for theprotection of an individual."

and in concluding his reasons for order, observed, at par36:

"Much was said at the hearing by counsel for the defendants about the need touphold and protect the freedom of the press. Butlike all freedoms, it is notan absolute one. The protection of individuals from the power and influence ofthe media is also important."

9Those matters were relevant to the disposition of an interlocutoryapplication. The status of the appellant was relevant todisposition andlikewise its purpose. Commercial gain and the use of "sensationalism" at theexpense of an individual, especiallyone bereft of resources and who mightsuffer irredeemable harm are relevant considerations. Freedom of speech is notabsolute requiringan instrument of State to ignore individual interest.

10The claim advanced by ground 3 that there could be no defamation because ofthe respondent's lack of reputation is a matterwhich ought be determined attrial.

11Grounds 3, 4, 5, 12 and 13 have no merit and ought be dismissed.

General background

12The respondent had been convicted in 1975 of the crime of the murder of achild. Concurrently he had been charged with themurder of a second child, therespective events occurring in February and April 1975. The State, followingthe conviction and sentencefor the February killing, decided not to proceedwith a trial of the April occurrence. Despite the denial of the respondent, itwas open, on the evidence placed before the primary judge, to conclude that theappellant had a high likelihood of being able toprove the latter homicide.The respondent has never sought to be resentenced on his crime and remainssubject to a sentence of lifeimprisonment. At the hearing of theinterlocutory proceedings, an issue was raised that publication generally mightimpact on anyprospects the respondent might have for proper consideration ofeventual parole. Certainly his status had, before hearing, becomea matter ofpolitical interest and comment. It was suggested that "public outcry" raisedby publication of the Beaumont event andthat of being a "multiple killer"raised by the April homicide, might impact on any parole decision. In thatregard the learnedprimary judge considered that the contention had [par20]:

"... little merit, having regard to the extensive and earlier publicity theMercury has already given to similar, and other, imputationsconcerning him andthe integrity that he is entitled to expect from the individual members of theBoard."

13Whilst in prison the respondent had become involved in a worm farm and thebreeding of insects and had developed expertise inthose areas. Anotherdefendant to the defamation action, a documentary film maker, Mr Gordon Davie,professed interest in the activitiesof the respondent and, through the prisonauthority, gained access to him in September 1999. With the consent of therespondent,Mr Davie was able to conduct interviews and film some of therespondent's activities. In August 2001, the respondent entered intoanagreement with a company associated with Mr Davie which acknowledged therelationship and permitted the transmission of any completeddocumentary.There was ongoing contact between the respondent and Mr Davie. In October 2002a film company, the second defendantto the action for defamation, contractedwith the appellant for the production of the film. The film, by then entitled"The Fisherman"was shown at a film festival in Hobart in January 2005. Itcontained material which was the subject of the injunction. In a pre-screeningnewspaper article, published on 3 January 2005, some of the allegations wererepeated. The showing of the film and/or the newspaperarticle generatedpublic response as evidenced by letters to the editor or articles published inthe Mercury newspaper between Januaryand April 2005, which included statementsof opinion or belief by public persona, including the Commissioner of Police,who had participatedin the original interviews of the respondent concerningthe February and April 1975 homicides. Predictably, politicians becameinvolvedin the discourse.

14Previously there had been tension between Davie and the respondentconcerning the contents of the documentary. In March 2003,the respondent hadwritten to Davie accusing him of breach of faith, concluding his letterwith:

"With the almost infallible benefit of hindsight, it is now clear that you, inconcert with others, have engineered these entireproceedings for the purposeof producing a documentary of a highly volatile and controversial nature, andof course, therefore highlysaleable.

It is something that I have not, and never would agree to. That is why it wasapproached with a great deal of patience and stealthover a long period oftime. It is why I find myself in the present position of either complying withwhat you want, or risking youusing whatever you wish for whatever purpose youwish; a proposition which could only reasonably be described as coercion. Itplacedme in the position whereby I must take all measures at my disposal toprotect my family and myself.

Therefore, unless the full and unabridged content of the documentary isdisclosed to me, and I am afforded reasonable exerciseof the 'understandings'delineated above, and on which contingencies I agreed to participate in thedocumentary, I will apply tohave the documentary excluded from air pending anapplication to the Supreme Court for remedy."

15Following the publication of the newspaper report of 3 January 2005, thereappears to have been some further attempts of contactsince, as the learnedprimary judge recounted in his reasons for judgment, at par17:

"It was reported in the Mercury on 8 February 2005 that the plaintiff wasprepared to meet a reporter to establish pre-interviewguidelines and to havean article based on an acceptable level for him, but the Director of Prisonsprohibited the meeting."

16As of the date of the interlocutory application, it can fairly be said:

(1)The respondent's status was that of a public persona. His conduct as aprisoner could be said to be of general interest andhis past a matter whichwas in the public domain.

(2)The fate of the Beaumont children had been and remained of communityinterest.

(3)Issues concerning the release of prisoners have always been concerns of thecommunity.

(4)The statements, allegations or innuendoes presented in the documentary hadpreviously been published to the community.

(5)The ambit of the documentary was far wider than that portraying theactivities of the respondent whilst in prison, and thatthe respondent believedhimself to have been betrayed.

(6)Notwithstanding the belief of betrayal, the respondent had previouslyagreed to participate in the documentary process, albeiton a differingassumption. The allegations were, on their face, defamatory although theaction was subject to statutory defencesor justifications.

(7)The respondent had an arguable basis for an action in defamation.

Delay

17As to what might be regarded as a preliminary point or, at least, one whichought influence an exercise of discretion, the appellantcontended that therespondent had unduly delayed the bringing of his application. The notice ofappeal relevantly claims:

"6The learned primary judge erred in holding that there was no evidence ofrelevant delay on the part of the Respondent in bringingthe application and infailing to take into account the Respondent's delay in bringing the proceedings(judgment at [32])."

18In relation to delay, the learned primary judge stated, at par32:

"The defendants submitted that delay by the plaintiff in taking proceedingsshould count against him. As I understand it, the periodof the delay uponwhich they seek to rely is from an unknown date in January last until thecommencement of the action on the 15thof this month. There is no evidenceestablishing when the plaintiff first knew of the intention of the defendantsto publish theimputations that have been raised here. Counsel for the ABCreferred to the contents of an article in the Mercury newspaper on 3Januarylast, but there is no evidence that the plaintiff was aware of it prior to theday upon which he commenced the action. Iconclude that there is no evidence ofrelevant delay. Further, there is no evidence that the defendants have in someway suffereda detriment because of any delay on his part. The complaint ofdelay is unimpressive."

19The respondent had long been aware that Davie and a film company weremaking a documentary which featured him as a prisonerengaged in interestingand useful activity. He could expect that the "human interest" component wouldrefer to his conviction formurder and the charge which did not result intrial. When he became aware, at least in January 2005, that the documentarywas toinclude, and probably concentrate on, matters involving other abductionsand murders, he showed concern. It would appear that inFebruary he attemptedto meet with the producer but was prevented from so doing by the Director ofPrisons. The appellant had itselfpostponed the date of the scheduled programin October 2004 and had advised the Director of Prisons that:

"... the new date has not been released yet. Apparently we will be informed 6- 8 weeks prior."

As the learned primary judge observed, at par10:

"On the face of the material presented by the plaintiff, he was badly misledand deliberately told untrue representations by MrDavie concerning theproposed content of the documentary. But that is largely a background fact andhas little relevance to the questionwhether I should exercise my discretion togrant an interlocutory injunction against the defendants."

20The respondent would have been aware of the details of the contents of thedocumentary at about the time of its screening atthe film festival in January2005. The appellant intended to transmit the program on 28 April 2005. Thewrit was filed on 15 April2005. The respondent was in custody and unlikely topossess the resources of a corporation such as the appellant. It is an affrontto common sense and human experience and reality which belies an arrogance ofpower, to claim on this appeal a bar of delay.

21Ground 6 ought be dismissed.

Public benefit and interest

22The terms are often regarded as synonymous. Counsel for the appellant atthe hearing of the application averred that the termswere but "two ways ofsaying the same thing" and that so far as the terms were used in regard to thetort of defamation, there wasno difference in their import between Australianjurisdictions.

23The Act uses the terms "public interest" (ss13, 16(1)(h)), "public concern"(ss13(1)(c), 13(3), 20(b)) and "public benefit"(s15(b)) apparentlyinterchangeably. The learned primary judge was not convinced that the wordswere interchangeable when he observed,at par27:

"I do not consider by nodding, Mr Green conceded that it was not an issue thatthe publication of the imputations would be forthe public benefit. By agreeingthat matters of crime are matters of public interest is a far cry fromconceding that the publicdissemination by the media of all matters relating tocrime, or matters concerning crimes allegedly committed by the plaintiff, willbe for the public benefit."

24The exchange with counsel occurred in the context of discussion concerningdefences open to the appellant at the hearing ofthe action (seeAllworth vJohn Fairfax Group Pty Ltd; John Alexander and Others(1993) 113 FLR 254).His Honour carried forward the terminology in his consideration of whether aninterlocutory injunction shouldbe granted. He stated, at pars28 and 29:

"My view is that, in general, it is not for the public benefit that the mediashould publicly allege that a person has committedcrimes of which he or shehas not been convicted, whether or not there are currently proceedings afootwith respect to the crimes.It is instead in the public interest that suchallegations should usually be made to the public only as a result of chargesand subsequentconviction. That the media on occasions makes such allegationsis often referred to as 'trial by media', of which it appears theplaintiffcomplained to the Mercury. However, so far as concerns the imputation that theaccused is a multiple killer of children,a more appropriate description inthis case would be 'conviction by media'. No suggestion of a trial, as weunderstand that word,will be involved here. Similarly, I can see no aspect ofpublic benefit in the making public of allegations that the plaintiff wasresponsible for the disappearance and murder of the Beaumont children or thathe is suspected of being responsible. The responsibilityowed to the publicwith regard to the investigation of crime is entrusted by our society to thepolice and other public investigatorsand prosecutors. If there is evidenceavailable that might assist the authorities to investigate the disappearance ofthe childrenin question, it should be made available to them. I havedifficulty accepting that it is in the public interest that instead, suchinformation be bandied about in public. There will, of course, be cases when inthe light of prior public statements by the personwho is being defamed, or thepublic conduct of that person, it will be for the public benefit to publishallegations of that kindto the general public, but I have difficulty seeingthat this is such a case. It is sufficient to say that the claim of thedefendantsto 'public benefit' may well be unsuccessful.

It follows from what I have been saying that I am unpersuaded that thegranting of an interlocutory injunction restraining thedefendants frompublishing the imputations will 'restrain the discussion in the media ofmatters of public interest', as that expressionwas used by Hunt J inChappell's case at 164, applying, of course, the law's use of the term'public interest'."

25Irrespective of the import of the language when used in consideration ofthe tort of defamation, I do not accept, with due respectto the learnedprimary judge, that any synonymity, if such be the case, transfers into theprinciple of injunctive restraint of publication. The existence of a defenceis a relevant factor, but prohibition of publication is governed by differentlegal principle. Benefitand interest involve differing judgments of values.Many things, prurient or otherwise, are of interest to the public. In adifferentcontext, the interest of the public or the interest of the Statecontains a different set of value judgments. In a defamation triala jury orjudge is required to consider whether the publication was one "for the publicbenefit" which, despite the provisions ofthe Act, s5(4), remains a question offact (s5(3)).

26The grant of an interlocutory injunction in defamation cases ought beexercised with great caution and only in very clear cases(Church ofScientology v Readers Digest[1980] 1 NSWLR 344).

27The grounds of appeal relevant to this issue state:

"9The learned primary judge erred in taking into account the view he expressedat [28] that it is not for the public benefit thatthe media make allegationsof a criminal nature outside reports of charges, trials and convictions.

10The learned primary judge erred in apparently finding at [34] that damagesare not an adequate remedy in the present proceedings.

11The learned primary judge erred in taking into account at [34] that theavailability of any final injunction was a matter whichwas relevant to thegrant of an interlocutory injunction.

12The learned primary judge erred in finding at [35] that the second and thirddefendants below were motivated by profit, and inregarding a finding as to theconduct of parties other than the Appellant as relevant in an application foran injunction to restrainthe Appellant from publishing the imputations.

13The learned primary judge erred in finding at [35] that the Respondent wasmotivated by a wish to 'improve its ratings', andin taking that finding intoaccount in an application for an injunction to restrain the Appellant frompublishing the imputations.

14The learned primary judge erred in treating his consideration of whether itwas arguable for the purposes of section 15 of theAct that the publication ofthe imputations would be for the public benefit, as determinative of the moregeneral question of publicinterest for the purposes of the grant of aninterlocutory injunction restraining the publication of defamatory matter."

28In theChurch of Scientologycase Hunt J considered a line ofauthorities which includedBeecham Group v Bristol Laboratories[1968] HCA 1;(1968)118 CLR 618;Bonnard v Perryman[1891] 2 Ch 269;Liverpool HouseholdStores Association v Smith(1887) 37 Ch D 170;Hubbard v Vosper[1972] 2 QB 84 (cfGabriel v Lobban[1976] VicRp 74;[1976] VR 689) and treateddefamation "as forming a special exception to the general rule" (at 350, par17)of balance of convenience in cases involvinginterlocutory injunctive relief.There, as here, the remedy of damages remained. In formulating principlesgoverning interlocutoryrelief, Hunt J included, at 345:

"(d)There is an independent and overriding principle that an injunction willnot go which will have the effect of restrainingthe discussion in the press(or in books or magazines) of matters of public interest or concern.

Quartz Hill Consolidated Gold Mining Co v Beall(1882) 20 Ch D 501, atpp 508, 509, 511;Liverpool Household Stores Association v Smith(1887)37 Ch D 170, at p 183;Bonnard v Perryman[1891] 2 Ch 269, at pp 284,285;Stocker v McElhinney (No 2)(1961) 79 WN (NSW) 541, at pp 543, 544;Shapowoloff v John Fairfax & Sons Ltd(1965)[1980] 1 NSWLR 359 (n),at pp 360, 361 andEdelsten v John Fairfax & Sons Ltd(1976)[1978]1 NSWLR 685, followed.

...

(g)Nor will an injunction be granted in other cases where its effect would bethe same as an injunction which would not have beengranted had the claim beenmade in defamation.

Fraser v Evans[1969] 1 QB 349, at p 362;Hubbard v Vosper[1972] 2 QB 84, at p 97 andWoodward v Hutchins[1977] 1 WLR 760, atp 764;[1977] 2 All ER 751, at p 755, followed.

(h)It is otherwise where the cause of action, other than defamation, does notinvolve any concept of free speech and discussion,or the so-called liberty ofthe press.

Swimsure (Laboratories) Pty Ltd v McDonald[1979] 2 NSWLR 796, at p801, followed."

29His Honour had reason to return to the issue of "overriding publicinterest" inChappell v TCN Channel Nine Pty Ltd(1988) 14 NSWLR 153.In that case a sporting identity successfully sought restraint of a publicationof a claimed adulterous affair said to be of publicinterest because of theprofile of the applicant and his membership of an ethics committee associatedwith his sport. In his reasonsfor judgment, his Honour repeated his earlierstatements made inChurch of Scientology(supra), but declined to regardthe principles as "inflexible". He did so because while he accepted theapplicant to be a publicfigure, the intended publication intruded into hisprivate life. He outlined his approach in the following terms:

"The first of the defendant's submissions was based upon the undoubted factthat the plaintiff is a public figure, in a generalsense, in that he has ahigh public profile as both a player and an administrator in cricket, and asomewhat lesser public profileas a businessman who seeks to procure from thepublic investment of money in his companies and to administer that money onbehalfof his investors. (I leave to one side for the moment the separatesubmission based upon the plaintiff's appointment as the AustralianCricketBoard's Commissioner to hear appeals from decisions relating to breaches byplayers of the Board's Code of Behaviour.)

The public, the defendant submitted, expects high standards of behaviour bycricketers and such businessmen in private (includingin their bedrooms), sothat there is a legitimate public interest in the misconduct in private of suchpublic figures. Public figureslike the plaintiff, the defendant asserted, donot have a private life. In relation to this more general argument, so thesubmissionran, it does not matter whether the private misbehaviour of a publicfigure does or does not have any bearing upon his capacity toperform hispublic activities.

The mischief which was sought to be remedied by the statutory requirement thatthe imputation relate to a matter of public interestwas the gratuitousdestruction of reputation permitted by the defence of truth alone which isavailable at common law ((1971) LRC11, par 64 at 103).The defendant'ssubmission is in my view an open invitation to such a gratuitous destruction ofthe reputation of any person in publiclife in relation to such entirelyunrelated matters. This country does not have the 'public figure' defenceafforded by the FirstAmendment in the United States(New York Times Co vSullivan[1964] USSC 40;376 US 254 (1964)), which might perhaps have permitted this sortof argument. We have neither the constitutional background nor the publicaccessibilityto the media which is said to justify the existence of such adefence in the United States.

I could see no real ground for supposing that the defendant might succeed inrelation to this submission. In my view, unless thepublic figure makes hisprivate activity a matter of public interest himself (a proposition which Idiscuss later), that privateactivity can be a matter of public interest onlyif it has some bearing upon his capacity to perform his public activities:Seymour v Butterworth[1862] EngR 201;(1862) 3 F & F 372 at 382;[1862] EngR 201;176 ER 166 at171; Lyle-Samuel v Odhams Ltd[1920] 1 KB 135 at 146andMutchv Sleeman(1928) 29 SR (NSW) 125 at 137;46 WN (NSW) 52."

30I do not regard the differing conclusions reached by Hunt J in the abovecases as contradictory. While Australia has not developeda jurisprudenceequivalent to that evidenced by the decision inNew York Times(supra)except as an adjunct to political discourseLange v Australian BroadcastingCorporation[1997] HCA 25;(1997) 189 CLR 520;Theophanous v Herald & Weekly Times[1994] HCA 46;(1994) 182 CLR 104, a distinction can be made between matters internal orpersonal to the life of a citizen and those which are, by reason of publiclife, within the public domain, in the consideration of public interest orconcern. In that context the terms "public benefit" and"public interest" havedifferent connotations to those used in a defence at trial.

31In Australian jurisprudence the term "public interest" extends to criticismof a particular individual and has no fixed or closedmeaning (Bellino vAustralian Broadcasting Corporation[1996] HCA 47;(1996) 185 CLR 183) and the broadertest of public interest adopted by Denning MR inLondon Artists Ltd vLittler[1968] EWCA Civ 3;[1969] 2 QB 375, namely that which affects people at large who maybe legitimately concerned in what is going on, adopted by Brennan CJ inBellino (supra) at 193 and Gaudron J at 240 respectively.

32Insofar as the terms "public benefit" as used in theDefamation Actand "public interest" as being apposite in a grant of injunctive relief differ,I would adopt the wider import in my approach tothis appeal. I agree with theapproach taken by Doyle CJ inJakudo Pty Ltd v South Australian TelecastersLtd[1997] SASC 6370;(1997) 69 SASR 440 at 442 that an interlocutory injunction should notbe lightly granted because:

"... the courts have recognised the substantial public interest in the freediscussion of matters of public or general interest.That means that when thebalance of convenience comes to be weighed, the public interest in freediscussion of matters of publicor general interest weighs heavily against thegrant of an injunction. Particularly will this be so if the defendant putsforwardmaterial which shows that there are reasonable grounds to think that adefence of justification may succeed. In that respect I acceptwhat was said byWalsh J in his frequently cited judgment inStocker v McElhinney(1961)79 WN(NSW) 541. When the real issue is not whether the words are defamatory,but that of justification, the plaintiff will have shown that thereis aserious question to be tried as to the plaintiff's entitlement to relief. But,if there are reasonable grounds to suppose thata defence of justification maysucceed that, coupled with the substantial public interest in the freediscussion of matters of publicand general interest, will usually mean thatthe balance of convenience is in favour of the refusal of a grant of aninjunction.Of course, that assures that damages will be an adequateremedy."

33Whilst I do not necessarily agree that the criteria of free discussion ofmatters of public general interest simply substitutea test of balance ofconvenience in favour of the intended publisher, the reasoning that it operatesagainst the person claimingpre-publication restraint accords with myapproach.

34Here it was for the respondent to show why an interlocutory injunctionshould issue. He was not entitled to succeed simplyon the balance ofconvenience and had to show why an established principle associated withdefamation should not be followed. Hisconviction for the murder of a childwas a matter of public record as was the charge laid, but not proceeded with,of the murderof another. The meaning of the term "multiple killer", if thesecond homicide was established, remained a question for a jury ortrial judge.The appellant had a cogent evidentiary basis for its plea of truth orjustification. The allegation that he was suspectedof the Beaumont abductionand homicides were not statements of fact. The respondent was not denied, byfailure of injunctive relief,the remedy of damages. His reputation wasalready tainted by his conviction for murder. There had been prior publicationof thematerial. His activities in prison in the field of entomology, togetherwith the attendant change to his previous life and conductwere matters ofpublic interest. His future prospects for release, rightly or wrongly, werematters likely to involve public discourse. The question of the degree towhich a charged act, not proceeded with to trial, itself raises issues ofcommunity concerns. Hispast was in the public domain, irrespective ofpublication of the documentary.

Prior publication and injunction

35The documentary had been shown in public in January 2005 and pre-screeningpublicity had outlined the allegations giving riseto the claim of publisheddefamation. Subsequently those allegations were replicated in the mediabetween January and April 2005and became intertwined with the issues ofparole, both general and specific to the respondent. The learned primaryjudge, consciousof prior publication, stated, at par11:

"Clearly, the imputations, if made with respect to the vast majority ofmembers of the public, would be grossly defamatory, andif it was a publicationfor the first time, I would have no hesitation in granting an application suchas the present one unlessthere were exceptional circumstances"

but concluded that he found, at par33:

"... unpersuasive the fact that the plaintiff may already have been defamed bythe public viewing of the documentary at the filmfestival in January and bythe publications of the Mercury newspaper on a number of dates this year. Thathe may have been defamedbefore cannot justify the continuation of defamatorystatements, notwithstanding that his reputation may have suffered badly as aconsequence of the earlier ones. He has demonstrated aprima facie casethat the publication of the imputations will amount to actionable defamationand in the absence of any suggestion of inconvenienceto the defendants, aninterlocutory injunction will be granted. Ultimately, a court, constitutedeither by a judge alone or by ajudge with a jury, may find against theplaintiff or award him only nominal damages, but those possibilities are notpersuasive tome when resolving the appropriate outcome for theapplication."

36Alone the conclusion reached by the learned primary judge might not warrantappellate intervention. But it was a cogent matterwhich favoured theappellant. The respondent had sought an award of damages and a permanentinjunction as remedies for his claim. The Act contains no specific provisionsfor the grant of an injunction other than by way of Parliamentary certificate(s29). Thescheme of the legislation is that of an award of damages (ss9(i),22, 24(2)(a) and (b), 25 and 30), or offer of amends (ss17, 23(i)(b)). Thepower of the Court to injunct publication is afforded by theSupreme CourtCivil Procedure Act1932 and theSupreme Court Rules2000. Whethera jury has power to grant a permanent injunction as a remedy in proceedingsbrought pursuant to the Act is not a matterwhich has been determined in thisjurisdiction. Historically the remedy granted by a jury was an award indamages. Here the issuesof prior publication and interlocutory or permanentinjunctive relief are combined. Grounds relevant to both matters claim:

"7The learned primary judge erred in failing to give appropriate weight to thefact that the publication sought to be restrainedby the Respondent had alreadybeen broadcast in Tasmania (judgment at [1]).

8The learned primary judge erred in failing to take into account that thesubstance of the imputations sought to be restrainedhad already been publishedwidely in the print media (see judgment at [33]).

...

10The learned primary judge erred in apparently finding at [34] that damagesare not an adequate remedy in the present proceedings.

11The learned primary judge erred in taking into account at [34] that theavailability of any final injunction was a matter whichwas relevant to thegrant of an interlocutory injunction."

37The learned primary judge, having dealt with the question of priorpublication, addressed that of injunctive remedy in the followingterms, atpar34:

"Nor do I find persuasive the argument that damages may be an appropriateremedy. Admittedly, if the plaintiff's case is sound,he has already beendefamed to many members of the public and the publication intended by thedefendants will merely add to that.Nevertheless, he is entitled to the law'sprotection and no suggestion was made by counsel for the defendants that if hisactionis successful, it is unlikely that the Court would be persuaded torestrain further publications of the imputations."

38While "freedom of the press" as the learned primary judge observed is notabsolute and the term often used to justify abuseof power, it is integral tothe political, social and cultural processes. While it is not a trump card(Kirby J inAustralian Broadcasting Corporation v Lenah Game Meats Pty Ltd(2001) 208 CLR 199 at 211, footnote 413 at 285 citingR v CentralIndependent Television Plc[1994] Fam 192), it remains a compelling factor.

39Loss of injunctive remedy did not deprive the respondent of his claim fordamages.

40This was not a case involving the grant of a suppression order intended topermit a future "fair" trial, especially one likelyto be tainted bypre-disclosure of "identification evidence" (Channel Seven Adelaide Pty Ltdv Draper[2004] SASC 351;(2004) 90 SASR 160), nor the administration of justice generally(Scott v Scott[1913] AC 417).

41The appellant sought to publish cognisant of the risk of an award ofdamages. It sought to publish on matters of wide import. Whilst therespondent's personal interests were not to be ignored, questions ofrehabilitation, release and unsolved crimes areof wider import. Theobservations of Fitzgerald P and Lee J inJ v L & A Services Pty Ltd& Ors, Court of Appeal Queensland, 15 February 1993, although used in adifferent context that:

"Finally, it is important to remember that what appears to be a more liberalapproach involving the exercise of a discretionarypower in the interests of anindividual involves an erosion of fundamental rights and freedoms of thegeneral public. The occasionalmisuse or abuse of these rights and freedoms orother disadvantages associated with public information and discussion, which issometimesmisinformed, together with the resultant harm are part of the cost ofliving in a free, democratic society. It is common for sensitiveissues to belitigated and for information which is extremely personal or confidential to bedisclosed. It is of obvious concernthat such a paramount principle as therequirement of open justice should not be whittled away on a case by case basisaccordingto individual judges' subjective views of the merits or demerits ofthe claims to privacy of individual litigants. It is also ofconcern thatthere should not be an expenditure of time, resources and costs on argumentsthat do not bear directly on the meritsof disputes."

42While courts are afforded extensive injunctive powers as an adjunct to itsequitable jurisdiction (eg,Supreme Court Civil Procedure Act,s10; seegenerallyLenah Game Meats Pty Ltd v Australian BroadcastingCorporation[1999] TASSC 114;(1999) 9 Tas R 355), the use of those powers ought be morerestricted in publication of material of matters in the public domain and whichmight involvethe tort of defamation, or that in some way the material wasobtained improperly (The Commonwealth of Australia v John Fairfax & SonsLtd[1980] HCA 44;(1980) 147 CLR 39;Lincoln Hunt v Willesee(1986) 4 NSWLR 457,cfEmcorp Pty Ltd v Australian Broadcasting Corporation[1988] 2 Qd R169), or subterfuge (Shiel v Transmedia Productions Pty Ltd[1987] 1 QdR 199). Consideration of competing interests in the sense discussed by Kirbyand Callinan JJ in their separate reasons for judgment inAustralianBroadcasting Corporation v Lenah Game Meats Pty Ltd (supra) is constrainedby the availability of alternate remedy, the public persona of a party, thepossibility of irreparable harm,whether the topic is one within the publicdomain, and the accepted utility of freedom of speech. It is for the grant ofinterlocutoryinjunctive relief.

43As Ormiston J said in National Mutual Life v GTV[1989] VicRp 66;[1989] VR 747 at754:

"However, the real question on any application such as this, where thedefamatory nature of the words is not disputed, is whetherit is 'just andconvenient' to grant relief, and this is to be determined in particular by whatis the balance of convenience andhardship. It is at this point, in myopinion, that the courts have for 100 years determined that a balance isnormally to be struckin favour of the free discussion of matters of public orgeneral interest, particularly where damages are both a normal and sufficientremedy. If the authorities to which I have referred go further, then theyshould not be read as laying down more than prima facietests, which must beadapted to the broad principles which have always governed the grant ofequitable relief."

Balance of convenience

44Ground 2 of the notice of appeal raises the question of whether the learnedprimary judge wrongly decided the application onthe balance of convenience.The reference to the test is touched upon in the reasons for judgment at par33,when his Honour stated:

"He has demonstrated aprima facie case that the publication of theimputations will amount to actionable defamation and in the absence of anysuggestion of inconvenienceto the defendants, an interlocutory injunction willbe granted."

45It was for the respondent to show cause why the information should issue.The ground is subsumed into the others and is dealtwith elsewhere in thesereasons for judgment. However, a simple "balance of convenience test" is notordinarily appropriate in acase of this nature. It may be that his Honour wasconsidering the balance between irredeemable harm to the respondent and thegrantingof a permanent injunction, sought by the respondent, if publicationwas not restrained. If such be the case then the statement inthe negative,ie, absence of suggestion of inconvenience, is apposite. The specific groundis subsumed into ground 1. It is notnecessary to consider for the purpose ofthis judgment whether the balance of convenience test, but operating in favourof a plaintiff,is the appropriate one (seeJakudo v South AustralianTelecasters Ltd(supra)),

Conclusion

46Ground 1 is made out. The test of "balance of convenience" was notapposite because the subject matter of the cause of actionwas that ofdefamation and the "right" of free speech outweighed convenience. Therespondent retained a remedy in relation to amatter previously published. Thesubject matter of the intended publication was a matter of public interest andthe respondent alreadypublicly known. The appellant is a reputableorganisation cognisant of the risk it ran in publication. A test of "publicbenefit"as used in the Act does not automatically transfer to an identicalapproach in consideration of a grant of an interlocutory injunctionrestrainingpublication.

47I would uphold the appeal and quash the order made.

File No FCA 27/2005

REASONS FOR JUDGMENTFULL COURT

EVANS J

29 August 2005

48I agree with the reasons of Blow J and would dismiss the appeal.

File No FCA 27/2005

REASONS FOR JUDGMENTFULL COURT

BLOW J

29 August 2005

49I have had the advantage of reading the reasons for judgment of Slicer J indraft form. I regret that I cannot agree with hisconclusion as to the outcomeof this appeal. The material facts are stated in his judgment, and I thereforeneed not repeat them.

50An exercise of a discretion to grant an interlocutory injunction should notbe interfered with by an appellate court unlessa clear case has been made outthat the primary judge acted on some wrong principle, or made an order whichworks a substantial injusticeto one of the parties:Australian PostalCorporation v Gray(1989) 98 FLR 468 per Neasey J, with whom Nettlefold Jagreed, at 474;De Mestre v A D Hunter Pty Ltd(1952) 77 WN (NSW) 143 at146 - 147;Victorian Egg Marketing Board v Parkwood Eggs Pty Ltd[1978] FCA 27;(1978)33 FLR 294 per Brennan J (as he then was) at 311 - 312.

51I do not think it can be said that the interlocutory injunction in thiscase works a substantial injustice to the appellant. The appellant has paidfor a documentary, but has been temporarily prohibited from televising it. Ifthe action is brought to trial,it might be held that the documentary isdefamatory of the respondent, and a permanent injunction might be granted. Ifnot, thetelevising of the documentary will have been delayed, rather thanprevented. If the appellant has paid for a documentary that shouldnever go toair, the existing injunction works no injustice. If it has paid for adocumentary which should be permitted to go toair, any injustice in delayingits transmission until this action has been determined would not besubstantial, in a financial sense,in my view. I am inclined to think that, ina case like this, the question whether a party will suffer a substantialinjustice doesnot depend entirely on financial considerations. One of theappellant's statutory functions under theAustralian BroadcastingCorporation Act1983 (Cth),s6(1)(a)(i), is to provide broadcastingprograms that "inform and entertain" the Australian community. If it isunfairly and substantially handicappedin discharging that function, it willsuffer a substantial injustice. However the injunction appealed againstrestrains the publicationof material concerning the alleged or suspectedcriminal activities of one man; it concerns events prior to his incarcerationin1975; and it is of a temporary nature. Because of those circumstances Ithink that, even if the injunction does work some injusticeto the appellant ina non-financial sense, any such injustice is not substantial.

52It follows that this appeal should not succeed unless a clear case has beenmade out that the learned primary judge acted onsome wrong principle. Theappellant contends that he did. To evaluate its contentions, it is necessaryto consider the authoritiesas to the criteria to be applied by courts indetermining applications for interlocutory injunctions in defamation cases, andasto whether the approach to be taken in applying such criteria should berigid or flexible.

53Ever since the late 19th Century, English and Australian courts have beenmost reluctant to grant interlocutory injunctionsin defamation cases, andspecial criteria have been applied in determining applications for suchinjunctions. The special practicesadopted in such cases result from the needto protect freedom of speech and freedom of the press, and from the associatednotionthat a decision as to whether published material is or is not defamatoryis properly a decision for a jury rather than a judge. There are two lines ofauthority as to how inflexible the relevant rules or practices are.

54The "rules" developed by the courts were succinctly summarised by Walsh JinStocker v McElhinney (No 2)(1962) 79 WN (NSW) 541 at 543 - 544, asfollows:

"I consider the following propositions to be in accordance with theauthorities:

(1)Although it was one time suggested that there was no power in the court,under provisions similar to those contained in theCommon Law ProcedureAct, ss 176 to 179, to grant an interlocutory injunction, in cases ofdefamation, it is settled that the power exists in such cases.

(2)In such cases, the power is exercised with great caution, and only in veryclear cases.

(3)If there is any real room for debate as to whether the statementscomplained of are defamatory, the injunction will be refused. Indeed, it isonly where on this point, the position is so clear that, in the judge's view asubsequent finding by a jury to thecontrary would be set aside asunreasonable, that the injunction will go.

(4)If, on the evidence before the judge, there is any real ground forsupposing that the defendant may succeed upon any such groundas privilege, orof truth and public benefit, or even that the plaintiff, if successful, willrecover nominal damages only, the injunctionwill be refused."

55Another succinct statement of the "rules" in question was made by Hunt J inChurch of Scientology of California Incorporated v Reader's Digest ServicesPty Ltd[1980] 1 NSWLR 344 at 349 - 350, as follows:

"I accept as the settled law that the power to grant interlocutory injunctionsin defamation cases must be exercised with greatcaution, and only in veryclear cases. A plaintiff must establish that a subsequent finding by a jurythat the matter complainedof was not defamatory of him would be set aside asunreasonable; that there is no real ground for supposing that the defendant maysucceed upon any defence of justification, privilege or comment, and that he,the plaintiff, is likely to recover more than nominaldamages only. Inparticular, questions of privilege and malice are not normally appropriate tobe decided upon an interlocutoryapplication. Nor will an injunction go whichwill have the effect of restraining the discussion in the press of matters ofpublicinterest or concern."

56The propositions stated in those two judgments were derived from a seriesof English decisions that followed the fusion of lawand equity:Quartz HillConsolidated Gold Mining Company v Beall(1882) 20 Ch D 501;WilliamCoulson & Sons v James Coulson & Co(1887) 3 TLR 846;LiverpoolHousehold Stores Association v Smith(1887) 37 Ch D 170;Bonnard vPerryman [1891] 2 Ch 269;Monson v Tussauds Ltd[1894] 1 QB671.

57Dr I C F Spry QC has written the following commentary in relation to thatline of authority in his work,Equitable Remedies, 6th ed, at 20 - 22 (Ihave omitted the learned author's footnotes):

"A further example of the manner in which judges trained in a common lawrather than an equitable tradition may misunderstand thenature of equitablediscretions, and hence attempt to describe them in terms of inflexible rules,is seen in a series of cases thatare concerned with the right to obtaininjunctions restraining the publication of libels. In such cases the right toobtain an interlocutoryinjunction ought, on general equitable principles, todepend simply on whether, in the special circumstances in question, the balanceof justice inclines towards the grant or refusal of relief; and such mattersshould be taken into account as considerations of hardshipin relation to theparties, any special considerations of unfairness that may arise, theundesirability that a defendant should beprevented from making statements thelegality or illegality of which will only subsequently be established withcertainty, the extentto which third persons or the public generally may beinterested in the truth of those statements, the degree of probability thatthealleged libel will be published and will be wrongful, the degree to which theplaintiff will be injured in the event of its publication,and any othermaterial considerations. Probably the observations of Jessel MR inQuartzHill Consolidated Gold Mining Co v Beall [at 508] were not intended todepart from these general principles. In the course of these observations,after giving an exampleof cases where an injunction would be granted, he wenton to say, 'But on the other hand, where there is a case to try, and noimmediateinjury to be expected from the further publication of the libel; itwould be very dangerous to restrain it by interlocutory injunction.'Properlyunderstood, this statement was unexceptionable. Five years later, however, LordEsher expressed an opinion that the jurisdictionto restrain a libel 'oughtonly to be exercised in the clearest cases, where any jury would say that thematter complained of waslibellous, and where if the jury did not so find thecourt would set aside the verdict as unreasonable' [William Coulson and Sonsv James Coulson and Co, supra, at 846]. It is important to notice that inthis statement Lord Esher apparently intended to lay down, as a definiteconditionof the grant of relief, rather than merely as a discretionaryconsideration, proof of a state of facts such that no jury could reasonablyconclude otherwise than that the publication sought to be enjoined waslibellous. At law, of course, a state of facts of this kindis a condition onwhich certain rights do indeed depend. It is not necessary here to do more thanto note that, for example, in atrial of an action with a jury, various rightsof the parties both before the entry of judgment and on appeal depend onwhether ajury could reasonably reach the conclusion that it has in factreached. In equity, however, different considerations apply. The factthat theabsence of a libel could not reasonably be found may be relevant, and indeedmay be of great weight. So if it appears thatthe only conclusion that may bereasonably reached is that the proposed publication will be libellous,exceptional circumstancesmust be shown in order to justify the view that itwould be inequitable to grant an injunction. But on general equitableprinciplesit may in some circumstances be unjust to deny interlocutory reliefmerely because this condition is not satisfied. So if, for example,theprospective injury to the plaintiff were overwhelming, the detriment to thedefendant through any delay of publication small,and the probability of thewrongfulness of the proposed publication high, although not such as to bebeyond the possibility thata jury might, especially in view of any freshevidence that might subsequently be adduced, reasonably find in favour of thedefendant,an interim or interlocutory injunction might well appear to beappropriate. Whilst equity lawyers tend thus to express principlesin terms ofgeneral discretionary considerations, common lawyers tend to express themselvesin terms of rules with specific and inflexiblecriteria. Hence it has beenlargely in the formulations of common law judges that the rule laid down byLord Esher has received subsequentsupport, and, in the absence of a fullanalysis in the courts, there has come to be a risk that it will be regarded asorthodox,contrary as it may be to fundamental equitable principles. Similarcomments may be made as to suggestions that an interlocutory injunctionwillnot issue if the defendant proposes to rely upon justification or fair commentor some other such defence. Such considerationsas an intention to pleadjustification, for example, are always of importance and are often decisive.But it is clearly contraryto principle that they should be treated asinflexible bars to relief, so that other countervailing considerations are notgivendue weight."

58Dr Spry's comments, as published in the third edition of his work, wereadopted with approval by Ormiston J inNational Mutual Life Association ofAustralasia Ltd v GTV Corporation Pty Ltd[1989] VicRp 66;[1989] VR 747 at 754. In thatcase his Honour refused an application for an interlocutory injunction torestrain the defendants from televisinga segment of a current affairsprogramme concerning the plaintiff's sickness and disability policies and themanner in which theywere sold to the public. His Honour said the following at754:

"... the real question on any application such as this, where the defamatorynature of the words is not disputed, is whether itis 'just and convenient' togrant relief, and this is to be determined in particular by what is the balanceof convenience and hardship.It is at this point, in my opinion, that thecourts have for 100 years determined that a balance is normally to be struck infavourof the free discussion of matters of public or general interest,particularly where damages are both a normal and sufficient remedy.If theauthorities to which I have referred go further, then they should not be readas laying down more than prima facie tests,which must be adapted to the broadprinciples which have always governed the grant of equitable relief.

In the context of the present case, therefore, I do not accept that it isnecessarily sufficient for a defendant to assert thatit proposes to pleadjustification and prove the truth of its allegations at the trial. The natureof the material which will besufficient to deny a plaintiff interlocutoryrelief must vary according to the sources of the defendant's information andaccordingto the form of discussion which the publication of the defamatorymaterial will take and the extent to which it may be seen to begenuine,serious and in the public interest."

59Within two months after that decision, Hunt J agreed that the "rules" inWilliam Coulson & Sons v James Coulson & Co (supra) laid down"no more than prima facie tests which must be adapted to the broad principleswhich have always governed the grantof equitable relief":Chappell v TCNChannel Nine Pty Ltd(1988) 14 NSWLR 153 at 161. In that case, his Honourgranted an interlocutory injunction to restrain the licensee of a televisionstation from broadcastingmaterial concerning the alleged sexual activities ofa prominent cricketer. At 158 he said:

"I do not believe that the well-known statements by Walsh J inStocker vMcElhinney (No 2) ... should be treated as a statement of inflexible ruleswhich prevent the application (at least to a limited extent) of a discretionongeneral equitable principles as to whether interlocutory relief should begranted in the particular case, even in defamation cases."

60After commenting on the 19th Century English authorities and referring tosome leading Australian authorities as to interlocutoryinjunctions (BeechamGroup Ltd v Bristol Laboratories Pty Ltd[1968] HCA 1;(1968) 118 CLR 618;Shercliff vEngadine Acceptance Corporation Pty Ltd[1978] 1 NSWLR 729;Magna Alloys& Research Pty Ltd v Coffey[1981] VicRp 3;[1981] VR 23;Castlemaine Tooheys Ltd vSouth Australia[1986] HCA 58;(1986) 161 CLR 148), he said, at 160:

"What is significant for present purposes to notice, however, is theincreasing importance placed by the courts upon a flexibilityof approach tothe grant of interlocutory injunctions generally and upon the rejection ofrigid formulae which had been laid downin some older cases as rules ofpractice in the grant of such relief."

61He said the following at 163:

"In my view, the time has come in New South Wales to reject asrigid rulesof practice those rules laid down by Lord Esher inWilliam Coulson andSons v James Coulson and Co. That I am free to do so as a matter ofprecedent has already been established. Those decisions of appellate courtselsewhere inAustralia in which Lord Esher's rigid rules have been applied indefamation cases are, of course, entitled to due respect, but Ido not findthem to be persuasive because ... there was no consideration given to followingany other course. ...

In the present case, therefore, I concluded that my inability to hold that ajury's verdict of no libel would be set aside as unreasonabledid not requireme to reject the plaintiff's application for an interlocutory injunction onthat ground alone. In my view, when balancedagainst the prospect of enormousinjury to the plaintiff in having these imputations telecast throughoutAustralia and against theabsence of any real detriment to the defendant, ifthey were not, the prospect that a jury would not find those imputations to bedefamatory of the plaintiff was so slight that it should not deny the grant ofinterlocutory relief in the exercise of my discretionif the plaintiff wereotherwise entitled to it.

That is not to say that the considerations enshrined in the 'rules' laid downby Lord Esher should be ignored in an applicationfor an interlocutoryinjunction in defamation cases. Far from it. Those considerations should in myview continue still to be relevant,but not in the absolute terms in which theywere expressed over 100 years ago by Lord Esher."

62Subsequently, the decision of Ormiston J was upheld by the Full Court ofthe Supreme Court of Victoria (Fullagar, Hampel andMcDonald JJ):NationalMutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd(supra) at 761 - 772. At 764, their Honours said the following:

"In our opinion, the correct approach in Victoria to an application to restrainpublication or republication of defamatory matteris, and always has been, tomake the broad enquiries traditionally made by a court of equity, viz - whetherthere is a substantialquestion to be investigated at the trial, and whetherthe balance of convenience, sometimes called the balance of justice, favoursthe grant of an injunction. In other words, the principles applicable are thosewhich are applicable to all applications for interlocutoryinjunctions ...".

At 765, their Honours went on to agree with Ormiston J, and with Hunt J inChappell, that Lord Esher's "rules" laid down "no more than prima facietests which must be adapted to the broad principles which have alwaysgovernedthe grant of equitable relief."

63The flexible view expounded by Hunt J inChappell was considered bythe New South Wales Court of Appeal inMarsden v Amalgamated TelevisionServices Pty Ltd (unreported 2 May 1996). In that case an interlocutoryinjunction was refused both at first instance and on appeal, sinceMr Marsden'sprivate life had already become a matter of publicdiscussion. However Priestly, Handley and Cole JJA commented at 14 that theywere inclined to think that the "more flexible view of Hunt J" was "the properone to follow".

64The flexible approach found favour with the Full Court of the Supreme Courtof South Australia inJakudo Pty Ltd v South Australian Telecasters Ltd[1997] SASC 6370;(1997) 69 SASR 440. At 442, Doyle CJ agreed with and adopted what was said byOrmiston J and the Full Court inNational Mutual, and by Hunt J inChappell. At 448 Williams J, with whom Bleby J agreed, referred withapproval toNational Mutual.

65The two approaches were considered by the Full Court of the Supreme Courtof Western Australia inLovell v Lewandowski[1987] WAR 81. Kennedy J,at 90 - 92, quoted at length from the comments of Dr Spry (EquitableRemedies, 3rd ed); concluded that he should nevertheless accept theconclusions stated by Hunt J inChurch of Scientology in the passage Ihave quoted above; and commented that if, notwithstanding the view he hadexpressed, an interlocutory injunctionmay still issue in exceptionalcircumstances, none existed in that case. At 93 - 94, Olney J took the law tobe as stated inWilliam Coulson & Sons v James Coulson & Co(supra) andBonnard v Perryman (supra). Wallace J dissented, taking theview that an interlocutory injunction had been properly granted. However, hedid so onthe basis that the defendant's plea of justification amounted, in theunusual circumstances of that case, to an abuse of process,and that it shouldhave been struck out. His reasoning was grounded in the 19th Century Englishauthorities, and provides no supportfor a flexible approach. That case was,of course, decided beforeNational Mutual andChappell.

66The rigid approach continues to prevail in England and Queensland:Gatley on Libel and Slander, 10th ed, pars25.1 to 25.11;Shiel vTransmedia Productions Pty Ltd[1987] 1 Qd R 199 (Full Court);Australian Broadcasting Corporation v Hanson (unreported, Court ofAppeal of Queensland, 28 September 1998 at 6). The New Zealand Court of Appealacknowledged the two linesof authority, without finding it necessary to choosebetween them, inNew Zealand Mortgage Guarantee Co Ltd v WellingtonNewspapers Ltd[1988] NZCA 103;[1989] 1 NZLR 4 andRob West Motors Ltd v BroadcastingCorporation of New Zealand (No 2)[1988] NZCA 163;[1989] 3 NZLR 520. However itssubsequent decisions are consistent with the English approach, and it has neveradopted or approved of the flexibleapproach:Auckland Area Health Board vTelevision New Zealand Ltd[1992] 3 NZLR 406 at 407;TV3 NetworkServices Ltd v Fahey[1999] 2 NZLR 129 at 133;Hosking v Runting[2004] NZCA 34;[2005] 1 NZLR 1 at 39. The English authorities were followed by the DivisionalCourt of the High Court of Justice of Ontario inCanada Metal Co Ltd vCanadian Broadcasting Corporation(1975) 55 DLR (3d) 42.

67The question of whether the flexible approach is to be preferred to therigid one has not been determined by the High Court. My review of theAustralian authorities suggests that the flexible approach has greater supportin other Australian jurisdictionsthan the rigid approach. I think it accordswith fundamental equitable principles, and that the rigid approach does not,for thereasons stated by Dr Spry. I therefore think that this Court shouldfollowNational Mutual,Chappell, andJakudo.

68Counsel for the appellant did not contend that the rigid approach should bepreferred to the flexible one. In fact Mr WhitingtonSC submitted that therewas no error in the following paragraph of the reasons of the learned primaryjudge:

"23Counsel for the defendants referred toChurch of Scientology ofCalifornia Inc v Reader's Digest Services Pty Ltd[1980] 1 NSWLR 344,Chappell v TCN Channel Nine Pty Ltd(1988) 14 NSWLR 153 and a number ofEnglish cases in support of the proposition that the power to grant aninterlocutory injunction to restrain an allegedlydefamatory publication shouldbe exercised with great caution, only in very clear cases and usually not incases where the defendantasserts that it has good defences. But as was madevery clear by Hunt J in Chappell, there are no rigid rules relating to thequestion.I have an unfettered discretion."

69However, whilst acknowledging that some flexibility of approach issometimes appropriate, the submissions of the appellant werelargely consistentwith the rigid principles that emerge from the English authorities. Forexample, it was submitted that the learnedprimary judge had not held that anyof the defences said to be relied on by the appellant was not arguable; that aninterlocutoryinjunction should not be granted in a defamation case unless thestatutory defences relied upon are not arguable; and that the learnedprimaryjudge therefore erred in granting the injunction. Those contentions were thesubject of two grounds of appeal, grounds 4and 5.

70The fourth proposition stated by Walsh J inStocker v McElhinney(supra) requires that an injunction be refused if "there is any real groundfor supposing that the defendant may succeed upon anysuch ground as privilege,or of truth and public benefit". In my view that proposition is based upon apremise that would now beregarded as false. Its origins can be traced back toWilliam Coulson & Sons v James Coulson & Co (supra), in whichLord Esher MR was reported as having said, at 846:

"To justify the Court in granting an interim injunction it must come to adecision upon the question of libel or no libel, beforethe jury decidedwhether it was a libel or not."

That proposition was expressly approved of and adopted by the majority inBonnard v Perryman (supra) (Lord Coleridge CJ, Lord Esher MR, Lindley,Bowen and Lopes LJJ) at 284. However it is now well recognised that, indeterminingan application for an interim injunction, a court is required toassess the strengths of the parties' cases, rather than to prejudgethem. TheHigh Court held inBeecham Group Ltd v Bristol Laboratories Pty Ltd(supra), at 622, that the appropriate enquiry is "whether the plaintiff hasmade out aprima facie case, in the sense that if the evidence remainsas it is there is a probability that at the trial of the action the plaintiffwillbe held entitled to relief". On the same page, the High Court commentedthat "the Court does not undertake a preliminary trial,and give or withholdinterlocutory relief upon a forecast as to the ultimate result of the case."

71The learned primary judge considered the defences that counsel told himwere to be pleaded and, rather than considering whetherthere was no realground for supposing that any of those defences would succeed, consideredwhether the respondent had establishedaprima facie case. In my viewhe did not thereby apply a wrong principle. Grounds 4 and 5 must fail. I willdeal with the other grounds innumerical order.

72Ground 1 asserts that the learned primary judge "erred in applying theprinciples governing applications for interlocutory injunctionsto restrain thepublication of defamatory matter". In the paragraph that I quoted above fromthe reasons of the learned primaryjudge, he referred to the judgments of HuntJ inChurch of Scientology and inChappell, and went on to statebriefly the most fundamental principles applicable to the determination ofapplications for interlocutory injunctions. He then went on to consider thequestion whether an injunction would restrain the discussion in the media ofmatters of public interestto all concerned, the merits of the statutorydefences that counsel said would be pleaded, the defendants' contentions as todelay,the fact that the respondent had already been defamed by the publicscreening of the documentary in January and by publications intheMercury newspaper, the possibility of the action failing or theplaintiff recovering only nominal damages, the argument that damages wouldbean appropriate remedy, the likely motives of the defendants, and the freedom ofthe press. In my view he considered the relevantfactors weighing for andagainst the granting of an injunction. In my view he did not thereby apply awrong principle.

73Ground 2 asserts that the learned primary judge erred in holding "thatbecause the Respondent had established a prima faciecase and because of theabsence of any inconvenience to the Appellant and the other defendants, aninterlocutory injunction shouldbe granted." This is really a complaint thatthe learned primary judge applied the ordinary tests for the granting ofinterlocutoryinjunctive relief, consistently withBeecham Group Ltd vBristol Laboratories Pty Ltd, rather than following the rigid approachbased on the English defamation cases that I have referred to. In my view hedid not therebyact on any wrong principle.

74Ground 3 asserts that the learned primary judge "erred in rejecting theAppellant's submission that, by virtue of the plaintiff'sexisting lack offavourable reputation, the imputations, if published, would not defame theRespondent within the meaning of section5(1)(a) or (c) of theDefamationAct 1958[sic]." Under theDefamation Act1957, s5(1)(a), animputation concerning a person is defamatory if that person's reputation islikely to be injured. Under s5(1)(c),an imputation concerning a person isdefamatory if other persons are likely to be induced to shun, avoid, ridiculeor despise him. The respondent's reputation is already a bad one since it iswell known that he is serving a life sentence for the murder of a child,andtheMercury has published material suggesting that he is suspected ofinvolvement in the disappearance of the Beaumont children. The appellantcontended that the reputation of the respondent could therefore not be furtherinjured, and that no further adverse publicity couldincrease the extent towhich he would be shunned, avoided, ridiculed or despised. But it was open onthe evidence for the learnedprimary judge to conclude that the televising ofthe documentary in question might spread the respondent's bad reputation morewidely,and that members of the public might receive information injurious tohis reputation that they had not received before. He madefindings to thateffect. In my view he did not err in doing so, and certainly did not act on awrong principle.

75Ground 6 relates to delay. I agree with Slicer J that it should fail, forthe reasons stated by him. This ground alleges anerror of fact, rather thanthe application of a wrong principle. Grounds 7 and 8 in substance againassert that the learned primaryjudge erred in failing to give sufficientweight to the fact that the documentary had been screened at a film festivaland the factthat the imputations in question had been published in the printmedia. Those grounds do not assert the application of a wrong principle.

76Ground 9 asserts that the learned primary judge "erred in taking intoaccount the view ... that it is not for the public benefitthat the media makeallegations of a criminal nature outside reports of charges, trials andconvictions." In fact the learned primaryjudge did not express such a view inabsolute terms, but used the adverb "usually". The learned primary judge wasentitled to takeinto account the way our system of justice operates, thenature of the documentary in question, and the nature and extent of anybenefitto the public that might result from the televising of the documentary prior tothe trial of the action. He was entitledto form and express views in relationto those matters. The view that he expressed was reasonably open to him. Hedid not applya wrong principle in taking that view into account.

77Ground 10 asserts that the learned primary judge "erred in apparentlyfinding ... that damages are not an adequate remedy inthe presentproceedings". In my view this is an excellent example of a case in whichdamages, if the plaintiff succeeds and is entitledto more than nominaldamages, will not be an adequate remedy. Prevention is better than cure. Thisground did raise a questionof principle. One of the rigid "rules" applied asa result of the English authorities was that damages would ordinarily beregardedas an adequate remedy. However the learned primary judge reached aconclusion as to the adequacy of damages on the basis of theflexible approach.He did not thereby act on a wrong principle, in my view.

78Ground 11 asserts that the learned primary judge "erred in taking intoaccount ... that the availability of any final injunctionwas a matter whichwas relevant to the grant of an interlocutory injunction." This ground relatesto a comment by his Honour that"... no suggestion was made by counsel for thedefendants that if his [the respondent's] action is successful, it is unlikelythatthe Court would be persuaded to restrain further publications of theimputations." Plainly his Honour was entitled to take intoaccount the factthat a permanent injunction was sought in the action, and the fact that nosuggestion had been made that a permanentinjunction should not be granted ifthe respondent were to succeed and recover more than nominal damages. In doingso, he did notact on a wrong principle.

79Grounds 12 and 13 relate to comments by the learned primary judge as to themotives of the appellant and of two other defendants. Ground 12 complains thatthe learned primary judge erred in finding that those other defendants weremotivated by profit. Thatfinding was obviously open and appropriate, sincethere was evidence that those defendants were responsible for the production ofthe documentary, and that they entered into commercial arrangements with theappellant in relation to it. Ground 13 challenges afinding that theappellant, in part at least, wished to broadcast the documentary "to improveits ratings". It was open to the learnedprimary judge to infer that in partthe appellant wished to broadcast the documentary in order to discharge itsstatutory functionof entertaining the Australian community. It may be thatthere was insufficient evidence as to the appellant's ratings, and itsdesiresin relation to them, to warrant the precise finding that was made. However thelearned primary judge cannot be said to haveacted on any wrong principle inmaking the findings that he did in relation to motives.

80Ground 14 relates to the question of public interest. Under theDefamation Act, s15, it is lawful to publish defamatory matter if thematter is true, and if it is "for the public benefit" that the publicationshould be made. If an injunction, in the words of Hunt J inChurch ofScientology, "will have the effect of restraining the discussion in thepress of matters of public interest or concern", that will be a factorweighingagainst the granting of an injunction. The learned primary judge needed toconsider whether it was arguable for the purposesof s15 that the publicationof the relevant imputations would be for the public benefit, and needed also toconsider whether theeffect of an injunction would be to restrain thediscussion of matters of public interest or concern. Those are two separatequestions. Ground 14 asserts that the learned primary judge erred by treatingthe question of public benefit in relation to s15 as determinativeof the moregeneral question.

81The learned primary judge referred to the proposition that an interlocutoryinjunction will not usually be granted "where suchan injunction would restrainthe discussion in the media of matters of public interest or concern"; thenproceeded to consider thestrength of a s15 defence based on truth and publicbenefit, paying particular attention to the question of public benefit;expressedthe view that, in general, it was not for the public benefit that themedia should publicly allege that a person has committed crimesof which he orshe has not been convicted, but that such allegations should usually be made tothe public only as a result of chargesand subsequent conviction; and concludedthat a claim of "public benefit" may well be unsuccessful. He then returned tothe moregeneral question. He said it followed from what he had been sayingthat he was unpersuaded that an interlocutory injunction would"restrain thediscussion in the media of matters of public interest". He said that heapplied "the law's use of term 'public interest'". He had earlier referred toa submission made by counsel for the appellant to the effect that the term"public interest" in defamationstatutes in other jurisdictions meant the sameas "public benefit" in theDefamation Act, s15.

82Counsel for the appellant submitted on the basis of the Englishauthorities, particularlyLiverpool Household Stores Association v Smith(supra) that the public interest factor in interlocutory injunction casesshould be decisive, in all but exceptional cases. But inmy view, consistentlywith the authorities favouring a flexible approach in cases like this, hisHonour was not obliged to treatthat factor as decisive. He took into accountthe correct principles relating to the freedom of the press, took into accountseparatelythe prospects of a successful defence based upon truth and publicbenefit, and exercised his discretion in accordance with the appropriateprinciples. He did not apply a wrong principle.

83I would dismiss the appeal.