FEDERAL COURT OF AUSTRALIA

CTC Productions Pty Ltd v Royal NSW Canine Council Ltd [1999] FCA 1866

CTC PRODUCTIONS PTY LIMITED AND ANOR v

ROYAL NEW SOUTH WALES CANINE COUNCIL LIMITED AND ANOR

N 994 OF 1999

HILL J

15 DECEMBER 1999

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicants pay the respondents’ costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EX TEMPORE REASONS FOR JUDGMENT

1                     Before the Court is an application by CTC Productions Proprietary Limited and Mr Donald Burke under Order 15A Rule 6 of the Federal Court Rules for preliminary discovery in the form of delivery up of various documents. 

2                     Mr Burke is a well known television personality who, together with CTC Productions Proprietary Limited, produces the television program, "Burke's Back Yard".  From evidence before me, it would appear that in the course of one or more of Mr Burke's programs which have extensive audience reach, Mr Burke had made comments which, at least to some persons, were regarded as derogatory of pure bred animals.

3                     The question of these comments and what to do about them, it would seem, came before the public relations and promotions committee of the Royal New South Wales Canine Council Limited at a meeting held on 25 November 1998.  The Royal New South Wales Canine Council Limited is a company incorporated under the Corporations Law in the State of New South Wales, the principal objects of which are:

“To promote and raise the standards of breeding of purebred dogs;

To promote and encourage the breeding of purebred dogs;

To educate the members of RNSWCC and the general public in relation to all aspects of purebred dogs;

To promote and assist and to make contributions to canine veterinary research and to create and endow scholarships and fellowships.”

Its income and property may be applied only to the promotion of its objects. 

4                     Nothing is known as to what happened directly at the meeting on 25 November 1998 to which reference has been made.  However, a further meeting of the same public relations and promotions committee was held on 23 December 1998.  It noted that the minutes of the meeting of 25 November had been approved at a board of directors meeting on 9 December, subject to an item which has no material relevance to the present case and under the heading of  “Confirmation of Previous Minutes”, it was noted as follows:

“2.1     The Minutes of the previous meeting having been duly circulated were confirmed as a true and accurate record of proceedings.

Standing Orders were suspended to allow discussion over the Burke’s Backyard program.

The Chairman addressed the meeting the advised that to really oppose Mr Don Burke would cost at least $10,000 each month.

A copy of the proposed initiative by the Committee is attached and forms part of these Minutes as Annexure A.”

5                     The initiative to which reference is made in those minutes is a document which on its face was prepared by the second respondent, Macro Communication Proprietary Limited.  It recommends a strategy aimed at friends of Mr Burke and his production team to change attitudes with a secondary campaign to confront mis-statements.  In particular it says the following:

“Simultaneously, a major campaign should be launched through the newspaper columnists to discredit the program and its statements without any attribution to the Canine Council or people associated with it. 

Finally, a ‘whisper campaign’ could be undertaken to further discredit the program among its key target audiences.  Details of this campaign can be provided verbally if required.

Time Frame

It is envisaged that the campaign should be conducted over a period of three to six months.”

6                     The initiative noted that undertaking the campaign would cost something in the order of $30,000 per month for a three month period. 

7                     It would seem that that minute got into the hands of Mr Burke or his associates.  Nothing is known directly as to what happened when the minute of that meeting went to the Board of Directors, as it had to, if the proposal was to be implemented.  I say directly because, as will be seen, it is easy to infer ultimately the board decided not to adopt the proposal.  However I will return to that in a minute.

Solicitors become involved

8                     A letter of 1 March 1999 was written by Mr Burke's solicitors to the chairman of the first respondent which enclosed copies of the minutes to which I have made reference and sought assurances that the Council would not participate in a conspiracy, full details of steps undertaken to date, and threatened proceedings in the absence of an appropriate response.  I shall pass by intermediate correspondence to a letter from Messrs Minter Ellison, addressed to Mr Burke's solicitors of 12 March 1999.  That letter stated that the initiative document had not been adopted by the Council.  It said that the Council wished to establish and maintain a good relationship with Mr Burke and suggested Mr Burke meet with Mr Wes Stacey, who I assume has a high position in the Council.  For whatever reason, Mr Burke did not act on the invitation.  He persisted with legal proceedings. 

9                     On 15 April 1999 Messrs Minter Ellison again wrote to Mr Burke's solicitors reiterating there was no campaign by the Council against Mr Burke.  Minter Ellison noted that at a board meeting held on 14 April 1999 it had been resolved:

“This meeting records the fact that to the knowledge of the Board of Directors there does not exist, nor has there ever existed, a campaign against Mr Don Burke and/or CTC Productions.”

It referred to the letters of 5 and 12 March which had passed between the solicitors and said that the Council would not be party to any conspiracy or campaign to denigrate Mr Don Burke.  The letter noted that it would be relied upon in the event of a costs application being made.

10                  No doubt to avoid costs, the second respondent has complied with the request made by the applicants to list the documents in its possession.  The only issue between the applicants and the second respondent is the issue of costs.

11                  The first respondent, the Council, opposes the application for preliminary discovery on the grounds that the applicants have not made out a case which would fall within Order 15A, Rule 6.  They seek, of course, costs, if they are successful.  Likewise, costs are sought against them if they are unsuccessful. 

12                  The foundation for the relief, which is said to be the ultimate purpose of the discovery, is said by counsel for the applicants to be that it was possible that the initiative had been, or would be, adopted and that in the course of it statements might be made, or perhaps were made that would bring about the result that the Council or Macro Communications Proprietary Limited would be in breach of s 52 of the Trade Practices Act 1974.  I should perhaps say there may be a real issue between the parties as to whether the Royal New South Wales Canine Council Limited would be acting in trade or commerce if it pursued the initiative to which reference has been made.

13                  Of course, there is no difficulty as far as the second respondent is concerned.  It is a public relations organisation clearly in all ways acting in trade or commerce.  Order 15A Rule 6 provides:

“Where –

(a)       there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained;

(b)       after making all reasonable inquiries, the applicant has not sufficient information to enable the decision to be made whether to commence the proceeding in the Court to obtain that relief; and

(c)               there is reason to believe that that person has, or is likely to have possession of any document relating to the question whether the applicant has the right to obtain the relief ...

the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c).” 

14                  It is, I think, now the case that it is not, as such, necessary for an applicant to make out a prima facie case as such, to obtain preliminary discovery under Order 15A Rule 9.  On the other hand, it is obviously not enough merely for an applicant to state a belief that a case exists.  Essentially, the test to be adopted is best formulated by reference to the statutory rule making terms in which Order 15A Rule 6 is cast.  That is to say, what is required is that an applicant demonstrate to the Court reasonable cause to believe that the applicant either has, or may have, the right to obtain relief.  The test is an objective one, or at least partly objective, and whether it is satisfied depends upon the materials which have been put before the Court.

15                  The highest point of the applicant's case is, of course, the public relations initiative and the minute which refers to it.  That is undoubtedly the origin of the dispute between the parties.  Counsel for the applicants really concede that there is no evidence after that date that suggests that the Council proposes to adopt the initiative.  It is true there is a letter of 19 April from the Council to Mr Nicholas of Macro Communications, the second respondent, asking for certain information as a result of a complaint to the judicial panel of the Royal New South Wales Canine Council.  That hardly suggests that the initiative was to proceed.  To the contrary, all the correspondence from the solicitors for the Council was directed at saying that it was not to proceed. 

16                  That has been reinforced this afternoon by tender of a letter from the President of the Council, Mr Stacey, addressed to members of the organisation, dated 24 March 1999, which deals with what it says to be a serious crisis involving the misunderstanding with Mr Burke.  Mr Stacey says he is endeavouring to work towards a resolution of the issue and that he had tried to establish a relationship with Mr Burke without success.  The letter makes it plain enough, as the letters from the solicitors had already done, that the initiative had not been authorised to proceed. 

17                  In my view, there is not reasonable cause to believe that the initiative has, in the light of the material, been proceeded with, or is likely to be proceeded with, with the result that statements may or may not be made in trade or commerce which are misleading and deceptive or likely to mislead or deceive within the language of s 52 of the Trade Practices Act.  In consequence it seems to me that the application for preliminary discovery must fail.

18                  That leads me to the question of costs.  In my view the application, which was commenced in this Court on 7 September was by then wholly misconceived.  There was no evidence upon which it could be brought.  It follows in my view that the costs of both respondents should be borne by the applicants and I so order.  The orders I will make are that the application is dismissed and the applicants pay the respondents’ costs of it.

Associate:

Dated:              15 December 1999