The Supreme Court considered an urgent application for an interlucotury injunction in a privacy related matter in Candy v Bauer Media Limited [2013] NSWSC 979. The urgent application was made on 20 July 2013 with the decision made and reasons published that same day.

FACTS

The plaintif, Holly Rachel Candy, is better known in Australia by her Maiden Name, Holly Valance.  Sometime Soapie star who later developed a musical, and occasional movie, career.  Now a celebrity in the UK married to a wealthy businessman.  For those consumers of gossip magazines and celebrity websites this is almost trite.  Nevertheless it is not knowledge that would be regarded as notorious and it does not seem to have made its way into the affidavit material with his Honour stating:

1. The plaintiff is an actress. She is an Australian citizen now resident in the United Kingdom. She lives there with her husband.

………….

3. She supports her application with an unusually informal approach to the provision of an undertaking as to damages. There is no evidence about her financial position. I was expected to assume that she was wealthy because of her notoriety and expected to assume that an undertaking could be given by her husband, although he is not a party to the proceedings and not a resident of New South Wales, or a citizen of this country. I was expected to assume he is also wealthy and that, in effect, I could not possibly think otherwise. I know nothing of his financial position and I am not prepared to act on that basis. That, however, is only a minor matter compared to the other difficulties which the application faces.

Not the best way to start an application.

On the evening of 15 July 2013 the plaintiff’s  public relations representative told her that photographs of her were being circulated [4].  On 16 July, a licence in respect of the photographs was granted by Snapper Media Pty Limited to the defendant. However on 18 July, following correspondence between the plaintiff’s London solicitors, an entity called Xposure Ltd and the solicitors for Snapper Media Pty Limited, the solicitor for Snapper Media informed the Defendant the licence  had been withdrawn and that it no longer authorised publication of the images[5]. On 19 July, the solicitors for Snapper Media wrote to the London solicitors for the plaintiff and informed them that the defendant was no longer authorised by Snapper Media Pty Limited to publish the photographs. The defendant took the position that the magazine had already gone to print and that it was not possible to have the photographs removed at that late stage [6]. The Sydney solicitor for the plaintiff was instructed at about 6.30pm on Friday night, 19 July. He advised the plaintiff’s counsel a little later that evening that he intended to make an application to this Court [7]. The magazine publishing the photographs was the Womans Day.

The evidence was that:

• the Woman’s Day has approximately 27,870 subscribers who receive the issue by post. which were lodged with Australia Post at approximately 2.30pm on 19 July 2013 (the day before this application was heard). Those postal subscription copies were in the course of distribution and there was no practical means by which the defendant can retrieve them from Australia Post [10].
• the  magazine is distributed to approximately 5,000 retail outlets across Australia.  Except for New South Wales and Victoria, each distribution centre throughout Australia is operated by an independent contractor and is not controlled by the defendant [12].
• The process of distribution has occurred in all States at different rates of progress. In Queensland country areas, copies of the magazine were dispatched to the Queensland distribution centre at approximately 5pm on 19 July [13].  In South Australia and the Northern Territory, copies of the magazine were dispatched to the South Australian distribution centre at approximately 10am on 19 July [14]. In Tasmania, copies of the magazine were dispatched to the Tasmanian distribution centres at approximately 6pm on 19 July [15].  In south-east Queensland, copies for distribution were dispatched to the distribution centre at 1.30pm, for New South Wales country areas  at 1pm, for distribution in Victorian metropolitan areas at 4pm and for New South Wales metropolitan areas at 6.30am on 20 July 2013 [17].
• As at the hearing of the application  85,229 copies of the magazine have commenced to be packed into the individual retailer bundles including mixed bundles and distributed to retailers [16]

The plaintiff submitted that it is not appropriate for the defendant to rely upon the advanced state of distribution of the magazine throughout Australia as a reason for resisting the grant of an injunction because the sequence of events indicates that it commenced that process having been aware since the morning of 18 July 2013 of the plaintiff’s complaint of breach of confidence [18].

DECISION

The court was not impressed by the Defendant’s conduct stating, at [19], that:

I make it quite clear that the conduct of the defendant is disdainful. It clearly puts a premium on its own commercial advantage ahead of the privacy of the plaintiff. I have no doubt that not all publishers would have acted in the same way. This is particularly so given that the licensor to the defendant notified it that it had chosen to withdraw its licence. The licensor assumed wrongly, it now turns out, that the publication of the photographs by the defendant would not subsequently occur.

The court also made it clear there is a serious question to be tried [22] but the issue regarding remedywas damages.  The conduct of the Defendant may tell against it on that issue.

The Court refused the grant of injunction on the grounds of futility stating, at [20] – [21]:

20. The question which reluctantly causes me to refuse the application is a pragmatic one. There is a fundamental principle under which this Court operates. That principle is that orders should only be made where they can be enforceable; where they can reasonably achieve the objective which is intended. If orders are made which lack utility, the effect will be to reduce the respect of the public for orders of the Court. There is simply no point making orders which are futile in the circumstances.

21. I do not accept the argument that in some way it is a ground for granting the injunction, that by making orders the Court may at least reduce the number of copies of the magazine containing the photographs which are distributed to the public. On the evidence before me this afternoon, over 100,000 copies of the magazine will be distributed. It is impossible to see how any of them could be prevented from being read and disseminated. If the objective of the plaintiff is to protect her own opportunity to reveal the fact of her pregnancy at a time of her choosing, then that opportunity has been lost by the events which have occurred. There is no point in restraining the defendant from further distributing copies that remain as part of the print run for this issue.

(Emphasis added)

ISSUE

This claims contains the classic elemetns of an equitable claim of misuse of private information/privacy claim with a possible complication of licences being granted then withdrawn.  It is an area of law that is not traversed as commonly in Australia than the UK where the law is more settled and the practice more streamlined in seeking injunctive relief.

It is clear that his Honour thought the application could have been better prepared.  A salient lesson for all practitioners.  Even urgent applications need the maximum information to assist the court.  That said the complaint of his Honour about the state of the Plaintiff’s material was not determinative.