Supreme Court New South Wales

• Medium Neutral Citation: Khalid v Channel Seven Sydney Pty Ltd [2014] NSWSC 9
• Hearing dates: 20 January 2014
• Decision date: 20 January 2014
• Jurisdiction: Common Law
• Before: Beech-Jones J

Decision

(1) Upon the plaintiffs by their counsel giving the usual undertaking as to damages, the defendants be restrained up to and including 6:00pm on Thursday 23 January 2014 from broadcasting or publishing the recorded images or spoken words of the plaintiffs obtained during any interview of them by the second or third defendants.

(2) I stand the proceedings over to 10am on Thursday, 23 January 2014, before McDougall J.

(3) I direct the defendants to serve any affidavits they propose to rely on by 10:00am on Wednesday 22 January 2014.

(4) I direct the plaintiffs to use their best endeavours to serve any affidavits in reply by 5:00pm on Wednesday 22 January 2014.

(5) I grant liberty to apply.

(6) Costs reserved.

• Catchwords: INTERLOCUTORY RELIEF - application for injunction in respect of television broadcast - breach of contract - whether contract provided plaintiffs with editorial control.
• Category: Interlocutory applications
• Parties: Sulyman Khalid (aka Abu Bakr) (First Plaintiff); Khadijah Alexander (Second Plaintiff); Channel Seven Sydney Pty Ltd (First Defendant); Vanda Carson (Second Defendant); David Eccleston (Third Defendant)
• Representation: Counsel: R.K.M. Rasmussen (Plaintiffs); Ms L.E. Barnett (Defendants); Solicitors: Auscorp Solicitors & Conveyancers (Plaintiffs); Addisons (Defendants)
• File Number(s): 2014/019230
• Publication restriction: Nil

EX TEMPORE Judgment

1 This is an urgent application for injunctive relief, brought after Court hours, in respect of a television broadcast due to occur at 6.30 this evening. It should be understood that the following references to factual material are based upon affidavit evidence provided by the plaintiffs in circumstances where the defendants have not yet had, but will have, a proper opportunity to respond.

2 The first named plaintiff, Sulyman Khalid, also known as Abu Bakr, is an Australian citizen who has had his passport cancelled on security grounds. The second named plaintiff, Khadijah Alexander, is the sister of Delil Alexander who is an Australian citizen currently in Turkey. He has also had his passport cancelled on security grounds. Their solicitor, Zali Burrows, has received instructions to challenge the cancellations in the Administrative Appeals Tribunal (the "AAT").

3 The first defendant is Channel Seven Sydney Pty Ltd ("Channel 7"), which is said to be responsible for the broadcast of the television programme Today Tonight. The second defendant, Ms Vanda Carson, is a producer on that programme. The third defendant, Mr David Eccleston, is said to be a journalist presumably employed by Channel 7, who works on the Today Tonight programme.

4 The plaintiffs apprehend that this evening Today Tonight will broadcast a programme which will, or at least might, depict them as having been recruited by extremists to fight in the nightmare which is the ongoing conflict in Syria. The plaintiffs allege that Channel 7 will broadcast the programme in breach of a "contract" they claim to have with Channel 7 relating to the circumstances in which they agreed to be interviewed for Today Tonight.

5 Ms Burrows has provided an affidavit setting out her account of her discussions with Ms Carson as well as annexing various emails. The gravamen of the affidavit is that she agreed, on behalf of her clients, that they would be interviewed for the purpose of a story which it was thought would depict the unfairness of the process that led to the cancellation of her clients' passports, but instead they say Channel 7 will now use the interview material to portray the plaintiffs as either extremists or dupes of extremists.

6 The emails attached to Ms Burrow's affidavit suggest that at least one of the topics of the story was to be the process by which the passports were cancelled, although it is debatable whether the emails precluded any other topic being the subject of the broadcast.

7 However, what is of particular significance is not so much the topic of the broadcast but what Ms Burrows claims were the terms upon which she agreed on behalf of her clients that they would be interviewed. Thus in paragraph 3 of her affidavit Ms Burrows recounts a conversation with Ms Carson in which she asserts that Ms Carson said, inter alia, "You will have final say before [the program] airs". In paragraph 5 of her affidavit, Ms Burrows attributes to Ms Carson a statement to the following effect, "You have final say and I assure you that they will be happy [with the] story. It will be a nice story and I am not interested in portraying them otherwise or doing a tabloid piece. As said, you have editorial control and ... I am keen to follow this story up once proceedings are under way".

8 At this point I note three matters about these conversations. First, as I have indicated, Ms Carson has not yet had the opportunity to put on an affidavit setting out her version of these conversations. Second, from the plaintiffs' perspective and for reasons I will explain, the critical aspect is so much of that conversation which appears to suggest that the plaintiffs were promised editorial control over the story, that is, the opportunity in advance to approve what was to be broadcast.

9 Third, counsel for Channel 7 submitted that the conversations set out in Ms Burrows' affidavit were explicable as a reference to Ms Burrows having control over her depiction in the story and not that of her clients. The difficulty with that contention is that, in the opening email in the exchanges between Ms Carson and Ms Burrows, Ms Carson acknowledged that Ms Burrows was the solicitor acting on behalf of the plaintiffs. In context the relevant statement appears to be a reference to Ms Burrows having "final say" in her capacity as the agent for her clients and not in her own right. That said, and as I have already indicated, Ms Carson's version of these conversations has not yet been heard.

10 The plaintiffs contend that the effect of these conversations is such that it was a term of the "contract" between them and Channel 7 that, in exchange for their agreeing to be interviewed by Channel 7, they would have the opportunity to review and approve any story about them, or at least any story using the material derived from the interviews before it was shown on Channel 7. They fear, based on some promotional material for the story, that Channel 7 will broadcast a story of the kind that I have referred to earlier. It seems to be common ground that Channel 7 will not grant them the editorial control that they assert is their legal right.

11 At the outset it is important to appreciate that this application is not framed as an injunction to restrain a defamatory publication. Instead, it is framed as being one to restrain a threatened breach of contract, the critical term of which provides that the plaintiffs are contractually entitled to an advance showing of, and in effect a veto over, any story using footage of them from their interviews.

12 The test for an interlocutory injunction is well known. It suffices to state that the Court has to ask itself whether there is a serious question to be tried as to whether the plaintiffs are entitled to relief, whether it has been shown that the plaintiffs are likely to suffer injury for which damages would not be an adequate remedy, and otherwise whether it is shown that the balance of convenience favours the granting of an injunction.

13 On the limited and, as I have said, one-sided material before me, I am satisfied that there is a serious question to be tried as to whether the plaintiffs have an entitlement to contractual relief. I acknowledge there is an obvious question about whether these arrangements, if proven, amount to some enforceable agreement or contract. However, considering the relatively low threshold that is involved at an interlocutory injunction stage, there is clearly, at least, a reasonably arguable case that, if Ms Burrows' version of events is accepted, then an agreement came into existence.

14 Otherwise, the factual material that I have described is sufficient for me to conclude that there is, at least, a reasonably arguable case that they had an agreement to the effect that they would have "final say" over any story that was broadcast, at least so far as it used material derived from their interviews.

15 Insofar as the balance of convenience and questions of adequacy of damages are concerned, one matter that was raised on behalf of the plaintiffs was the potential damage to their applications for review by the AAT in the event this material was broadcast. I do not give that much weight. In conducting a review, I expect that the AAT would give little weight to how Channel 7 might characterise the plaintiffs' conduct but instead will have regard to the underlying material placed before it. Nevertheless, the potential harm to the plaintiffs' reputation from the possible depiction of them as extremists or dupes of extremists is reasonably significant.

16 One matter raised on behalf of Channel 7 was whether the free speech considerations that dominate the discussion in the cases as to whether an interlocutory injunction is available in respect of a defamatory publication are equally applicable to a breach of contract claim. In this case the answer lies in identifying the precise contractual rights which the plaintiffs allege they are entitled to exercise and which they say are breached. The plaintiffs say that they had a contractual entitlement to have "final say" over this story. If that claim is made out, then by its very nature that legal interest is one which is difficult to reconcile with broader notions of free speech which the discussion in the area of defamation is directed towards. In effect, if Channel 7 has agreed to such a term, a matter which I certainly cannot resolve at this point, then it has contractually precluded itself from promoting free speech and similar interests.

17 In these circumstances, at this early point I am persuaded that the balance of convenience lies in favour of the grant of an injunction for a limited period sufficient to enable the parties to consider the matter further and for Channel 7 to have the opportunity to put on further evidence.

18 In relation to the form of relief, I propose, subject to hearing from the parties, to make an order in the following terms, namely, that upon the plaintiffs giving the usual undertaking as to damages, the defendants be restrained from broadcasting or publishing the recorded images or spoken words of the plaintiffs obtained during any interview of them by the defendants.

[The parties addressed as to the form of orders and the Court ordered]:

(1) Upon the plaintiffs by their counsel giving the usual undertaking as to damages, the defendants be restrained up to and including 6:00pm on Thursday 23 January 2014 from broadcasting or publishing the recorded images or spoken words of the plaintiffs obtained during any interview of them by the second or third defendants.

(2) I stand the proceedings over to 10am on Thursday, 23 January 2014, before McDougall J.

(3) I direct the defendants to serve any affidavits they propose to rely on by 10:00am on Wednesday 22 January 2014.

(4) I direct the plaintiffs to use their best endeavours to serve any affidavits in reply by 5:00pm on Wednesday 22 January 2014.

(5) I grant liberty to apply.

(6) Costs reserved.

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Decision last updated: 22 January 2014