Federal Court of Australia

Lanzer v Australian Broadcasting Corporation [2021] FCA 1283

ORDERS

THE COURT ORDERS THAT:

1.    The applicants’ application for interlocutory relief be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NICHOLAS J:

1    Before me is an application for an interlocutory injunction brought by the first applicant (Dr Lanzer) and the second applicant (DCSS) which is a company controlled by Dr Lanzer and his wife. The Australian Broadcasting Corporation (“the ABC”), the first respondent, is proposing to broadcast an episode of its Four Corners television program about Dr Lanzer and DCSS which Dr Lanzer fears will cast him in an unfavourable light.

2    Dr Lanzer is a dermatologist who undertakes cosmetic and dermatological surgery and procedures. He describes himself as a cosmetic surgeon. DCSS is a business through which he carries on his practice. He says that his clinic performs hundreds of procedures each year, many of which involve liposuction. The surgical methods employed by Dr Lanzer are said by him to be completely different to those employed by plastic surgeons. Dr Lanzer is not a plastic surgeon.

3    The second respondent (Mr Nixon) and the third respondent (Ms Hewish) are former employees of DCSS and are said to have provided information to the ABC about Dr Lanzer and DCSS including the applicants’ confidential information or who have made, or are threatening to make, disparaging remarks which may impair or reduce Dr Lanzer’s reputation.

4    The applicants seek an interlocutory injunction restraining the ABC from broadcasting or otherwise publishing any information received, directly or indirectly, from Mr Nixon or Ms Hewish or any other current or former employee of Dr Lanzer or DCSS which is confidential or which may impair or reduce the reputation of Dr Lanzer in the eyes of the public or the applicants’ customers.

5    No interlocutory relief is sought against Mr Nixon or Ms Hewish and neither of them appeared at the hearing of the present application. Why the applicants have not sought to obtain any interlocutory relief against them is not apparent from the evidence. Presumably the applicants think that any damaging disclosures which may have been made by Mr Nixon or Ms Hewish to the ABC have already occurred. In any event, as I have said, no interlocutory relief is sought against Mr Nixon or Ms Hewish whether for any breach or threatened breach of contract or any breach or threatened breach of any relevant statutory duty or obligation.

6    The final relief sought by the applicants against the ABC includes an order restraining it from (inter alia) being in any way, directly or indirectly, knowingly concerned in or party to any contravention by Mr Nixon or Ms Hewish of s 182 or s 183 of the Corporations Act 2001 (Cth) (“the Act”) by broadcasting or otherwise publishing any information obtained by either of them because they were employees of the applicants.

7    The final relief sought against the ABC also includes declaratory relief to the effect that the ABC has participated in breaches of contract by Mr Nixon and Ms Hewish of their contracts of employment. It is difficult to know what to make of that claim or what common law liability the ABC could have arising from its participation in any breach of contract unless it was established that the ABC had procured or induced such a breach or otherwise unlawfully interfered in the applicants’ contractual relations. The originating application does not include any claim for injunctive relief or damages based on that cause of action. Nor is it a cause of action relied upon by the applicants in the written submissions they were ordered to file prior to the hearing of the interlocutory application.

8    In any event, as I will explain, I do not think that any arguable case for injunctive relief based on unlawful interference with the applicants’ contractual relations is apparent on the evidence. Moreover, if any final injunctive relief were to be granted in respect of that tort it would need to be in a form that properly reflected the elements of the relevant cause of action (eg. restraining the ABC from procuring or inducing a breach of the relevant contract) rather than an injunction directed to the ABC’s use of the relevant information. The applicants have not made any claim against the ABC for breach of any equitable obligation of confidence.

9    It is not entirely clear from the written employment contracts that are in evidence whether Mr Nixon or Ms Hewish were employed by Dr Lanzer or DCSS or both of them. For the purposes of the present application I will proceed on the basis that they were employed by the applicants.

10    Ms Hewish was an employee from about 3 October 2019 until her resignation on or about 19 March 2021. Mr Nixon’s employment commenced on or about 12 November 2018 and continued until his resignation on or about 24 March 2019. Mr Nixon was later re-employed in or about early April 2019. He resigned again in about October 2020.

11    The applicants’ account of the factual background to their claims is set out in affidavits made by their solicitors, Mr Mark O’Brien and Mr Paul Svilans. Dr Lanzer did not make an affidavit, although a copy of a background information statement apparently written by Dr Lanzer which was provided to the ABC on 12 October 2021 is reproduced in an annexure to Mr O’Brien’s affidavit. Mr Svilans’ affidavit contains details of conversations which he has been informed of and believes to have occurred between Ms Hewish and two of the applicants’ current employees. The first of these employees is Ms Wilson, a nurse employed by the applicants, who is apparently a close friend of Ms Hewish.

12    According to Mr Svilans’ affidavit, Ms Hewish told Ms Wilson in or about July 2021 that Mr Nixon “… has been speaking with Four Corners about what Dr Lanzer has been doing” and that Ms Hewish said to Ms Wilson:

Justin has been speaking with Four Corners about what Dr Lanzer has been doing. It’s not safe. Something needs to be done about it because if no one steps in, he will do harm. He and Dr Aranov both don't take patients seriously and need to be stopped before harm is done. Justin is going to go full face on Four Corners. I’m also thinking about it.

13    In the same conversation Ms Hewish is claimed to have also said:

We need photos from MEGA [which is the Applicants’ cloud based photo and other records system] to go with unhappy and botched former patients … Can you also see if you can get the surgery schedule from when we were in lockdown, and can you also see if you can get timesheets, as Four Corners want to say that Dr Lanzer doesn’t pay his staff correctly or pay overtime. Four Corners are also going to discuss what Dr Lanzer does with Medicare, and that he charges incorrectly.

14    Dr Lanzer in the statement annexed to Mr O’Brien’s affidavit denies allegations of underpayment of wages and incorrect charging. He also seeks to give some context to allegations made by what are said to be unhappy patients who have had what they regard as poor surgical outcomes.

15    The second existing employee with whom Ms Hewish is said to have spoken is Ms Hurl who is a registered nurse employed by the applicants and is also a friend of Ms Hewish. According to Mr Svilans’ affidavit he was informed by Ms Hurl that a couple of days after Ms Hewish’s resignation in or about March 2021, Ms Hurl received a telephone call from Ms Hewish in which Ms Hewish said that she was not happy working with Dr Lanzer and that she had been speaking with Mr Nixon who had himself been speaking with current and former employees of the applicants. She also said that Mr Nixon had been in touch with a journalist from Four Corners which was going to do “an exposé on the clinic”. The journalist concerned appears to be Ms Adele Ferguson AM. In late June 2021, Ms Hurl had lunch with Ms Hewish who told her that former patients of the clinic would be telling their stories on Four Corners and that the ABC would be contacting Dr Lanzer for comment.

16    Apart from the one statement made by Ms Hewish to Ms Hurl about not being happy working with Dr Lanzer, there is no evidence at all as to the circumstances in which either Ms Hewish or Mr Nixon resigned their employment. In particular, there is no evidence to suggest that either of them is motivated by spite or ill will or that their dealings with Four Corners are motivated by anything more than an intention to expose what they consider to be unsafe or inappropriate practices and behaviour.

17    The written contracts of employment entered by the applicants with Mr Nixon and Ms Hewish contain provisions which the applicants say prohibit Mr Nixon and Ms Hewish from disclosing confidential information and from doing anything that may impair or reduce Dr Lanzer’s reputation.

18    Both contracts contain the following express term:

All Confidential Information will be protected and adhered to as per the Practice’s Policies and Procedures. Patient details are confidential. Any verbal or written information about any patient, employer or employee must be kept confidential. Failure to do so is a breach of contract. A confidentiality statement will be signed in addition to the contract.

19    The contracts do not contain any definition of “Confidential Information” but that term would certainly encompass confidential patient records. For present purposes I accept that it would also include the names and other personal details of patients to the extent such information was confidential. I also accept that it includes confidential business records relating to the applicants and their patients’ Medicare records. I think it would also extend to the applicants’ confidential business records more generally including employment contracts and timesheets.

20    Attached to each of the written contracts is a document signed by Mr Nixon and Ms Hewish respectively entitled “Confidentiality Statement”. It relevantly includes the following provisions:

I agree not to disclose any patient flies, medical reports and I agree to maintain the confidences of the confidential information and to prevent its unauthorised disclosure to or use by any other person, firm or company. I also agree to keep my employment arrangement, including salary details, confidential at an times.

…

Upon the termination of my employment for any cause or by any means whatsoever I shall not thereafter:

1.    Make public or divulge to any person the confidential information, any trade secrets including but not limited to any manuals, advertising, promotional data, advisory memoranda or any information concerning the business, finances, dealings, transactions or affairs of Dermatology and Cosmetic Surgery Services Pty Ltd.

2.    Advertise, publicise or permit the advertising of publicising of the former connection of Dermatology and Cosmetic Surgery Services Pty Ltd.

3.    Approach directly or indirectly any customer of Dermatology and Cosmetic Surgery Services P/L to influence it to cease carrying on business with Dermatology and Cosmetic Surgery Services P/L or otherwise to entice it away from Dermatology & Cosmetic Surgery Services P/L.

4.    Do any act or thing which may impair or reduce Dr Lanzer’s reputation standing in the eyes of the public or any of its customers.

5.    Disclose the contents of any correspondence received by Dermatology and Cosmetic Surgery Services P/L.

6.    In the course of and upon following termination of employment, I will not copy or retain any material belonging to or in the possession of Dermatology & Cosmetic Surgery Services P/L, or make use of any confidential information, without the written consent of Dr Lanzer, including:

a.    client/patient names and addresses,

b.    processes, methods, techniques or formulae developed by Dr Lanzer, including employees,

c.    and I declare that I will not use or permit any other person to use such material or make use of such intellectual property.

7.    Induce or attempt to induce any of the employees of Dermatology & Cosmetic Surgery Services P/L to terminate their Agreement or contract with Dermatology & Cosmetic Surgery Services P/L.

In my view, paragraphs 1, 4 and 6a are the most relevant for the purposes of the present application.

21    It was not suggested in either the evidence or the ABC’s submissions that any of the paragraphs of the Confidentiality Statement were or might be unenforceable as between the parties to the relevant employment contracts. In its submissions, however, the ABC drew attention to difficulties that would arise if some of the language used in those paragraphs was reproduced in any order made against them including in the form of injunctive relief sought by the applicants.

22    According to the applicants’ affidavit evidence, on 16 September 2021, a Four Corners camera crew arrived without notice to film Dr Lanzer and his wife from outside their residence. Dr Lanzer and his family were observing Yom Kippur at home at the time. Once the film crew had departed, Dr Lanzer spoke with some of his neighbours who had spoken to the crew. A neighbour of Dr Lanzer told him that the crew had told the neighbour that a Four Corners story about Dr Lanzer was going to be broadcast on 25 October 2021.

23    Since 20 September 2021, the solicitors for the applicants have been in correspondence with the solicitors for the ABC. On 11 October 2021, the solicitors for the applicants sought undertakings from the ABC, including an undertaking that, in substance, it would not broadcast anything conveyed to it by current or former employees of the applicants in breach of the confidentiality obligations under the relevant contracts of employment or that would impair or reduce Dr Lanzer’s reputation in the eyes of the public. The solicitors for the ABC replied on 13 October 2021 to the effect that any broadcast or publication of material concerning the applicants would not occur before 5pm on 20 October 2021. In a letter dated 14 October 2021, the ABC declined to give the undertakings sought.

24    The applicants filed their originating application and the evidence relied upon by them in support of their interlocutory application earlier this week. The matter was heard by me yesterday. The urgency arises out of the refusal of the ABC to either delay broadcast of the relevant Four Corners program or to delay beyond 4.15pm today broadcast of any promotional material relating to the program.

25    There was at the commencement of the hearing argument concerning the form of a notice to produce served by the applicants on the ABC. An order was made by me requiring the ABC to produce to the applicants the following documents:

(1)    One copy of all documents comprising information regarding the activities and practices of the Applicants obtained directly or indirectly from Justin Nixon or Lauren Hewish limited to:

(a)    manuals, advertising, promotional data, advisory memoranda and information concerning the business, finances, dealings, transactions and affairs of the Applicants;

(b)    personal details of clients/patients of the Applicants including patient files, medical reports and photographs;

(c)    processes, methods, techniques or formulae developed by the First Applicant, and employees of the Second Applicant;

(d)    in-house videos and /or footage of staff and /or patients.

(2)    One copy of all documents comprising communications concerning the Applicants or any patient or employee of the Second Applicant as between the First Respondent and Justin Nixon or Lauren Hewish.

26    The documents produced in response to the order were marked as Exhibit A. Some of the documents were produced by the ABC on the basis that it was uncertain as to the source of the relevant documents. That matter was later clarified in an affidavit filed by the ABC (now Exhibit B) in response to a further order made by me.

27    The documents produced by the ABC include what appears to be a photograph of a patient and, in particular, an area of his or her body on which liposuction was performed resulting in a poor outcome for the patient. They also include a video recording of what I was informed are images of Dr Lanzer explaining to Mr Nixon how to modify Google reviews.

28    The ABC has given to the Court an undertaking (“the Exhibit A undertaking”) that it will not publish the photograph or the video included in Exhibit A other than to its officers, employees and its legal advisers.

29    The documents produced by the ABC pursuant to the order for production also include copies of the employment contracts made between the applicants and Mr Nixon and Ms Hewish (including copies of the Confidentiality Statements) together with an email from Mr Nixon to Ms Adele Ferguson dated 12 October 2021 apparently attaching a copy of Mr Nixon’s contract and a number of other documents.

30    There is no dispute between the parties as to the principles to be applied in deciding whether to grant the interlocutory relief sought by the applicants. They were considered by the High Court in Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57. In that case, Gummow and Hayne JJ said at [65]:

[65]    The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [(1968) 118 CLR 618; [1968] ALR 469]. This court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued [(1968) 118 CLR 618 at 622–623; [1968] ALR 469 at 470–1]:

    “The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.”

    By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument [(1968) 118 CLR 618 at 620; [1968] ALR 469 at 468]. With reference to the first inquiry, the court continued, in a statement of central importance for this appeal [(1968) 118 CLR 618 at 622; [1968] ALR 469 at 470]:

    “How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.”

See also Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at [52]-[67] and Warner-Lambert Co LLC v Apotex Pty Ltd (2014) 311 ALR 632 at [68]-[72]. As the judgments in those cases also emphasised, the apparent strength of an applicant’s case may be an important consideration in determining whether the balance of convenience favours granting interlocutory relief.

31    Sections 182 and 183 of the Act relevantly provide:

182    Use of position—civil obligations

Use of position—directors, other officers and employees

(1)    A director, secretary, other officer or employee of a corporation must not improperly use their position to:

(a)    gain an advantage for themselves or someone else; or

(b)    cause detriment to the corporation.

Note:    This subsection is a civil penalty provision (see section 1317E).

(2)    A person who is involved in a contravention of subsection (1) contravenes this subsection.

Note 1:    Section 79 defines involved.

Note 2:    This subsection is a civil penalty provision (see section 1317E).

183    Use of information—civil obligations

Use of information—directors, other officers and employees

(1)    A person who obtains information because they are, or have been, a director or other officer or employee of a corporation must not improperly use the information to:

(a)    gain an advantage for themselves or someone else; or

(b)    cause detriment to the corporation.

Note 1:    This duty continues after the person stops being an officer or employee of the corporation.

Note 2:    This subsection is a civil penalty provision (see section 1317E).

(2)    A person who is involved in a contravention of subsection (1) contravenes this subsection.

Note 1:    Section 79 defines involved.

Note 2:    This subsection is a civil penalty provision (see section 1317E).

32    Section 79 provides:

79    Involvement in contraventions

    A person is involved in a contravention if, and only if, the person:

(a)    has aided, abetted, counselled or procured the contravention; or

(b)    has induced, whether by threats or promises or otherwise, the contravention; or

(c)    has been in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention; or

(d)    has conspired with others to effect the contravention.

33    Section 1324 of the Act provides that the Court may grant an injunction restraining conduct that constitutes, or would constitute, a contravention of the Act on the application of, relevantly, a person whose interests have been, or would be, affected by the conduct.

34    There are three observations to make in relation to the potential application of ss 182, 183 and 79 of the Act in the circumstances of this case.

35    First, it is in my view doubtful whether s 182 can apply in circumstances where the alleged improper use of information occurs after the employee’s employment by the corporation has ceased. Mr McClintock SC, who appeared for the applicants, submitted that the section could have some work to do in that situation. However, he also said he put his case for an interlocutory injunction primarily on the basis of s 183 of the Act which, by its terms, would clearly apply to improper use of information by a former employee. In the circumstances of this case, where the subject matter sought to be protected by the applicants is information, there does not appear to be any utility in considering the scope of s 182 in any greater detail.

36    Secondly, it is clear that, for the applicants to establish a contravention of s 183(1), they must show not only that the former employee has improperly used information acquired by him or her because they were an employee of the corporation, but that the improper use has occurred for the purpose of either gaining an advantage for the former employee or someone else or causing detriment to the corporation: Chew v The Queen (1992) 173 CLR 626 at 630-632 and Metal Manufacturers Limited v Johnston (2020) 3 QR 456 at [37]-[38].

37    Thirdly, in seeking relief against the ABC in respect of what are said to be the other respondents’ contraventions of s 183 of the Act, the applicants must do so in accordance with the principles stated by the High Court in Yorke v Lucas (1985) 158 CLR 661. It follows that at the final hearing of this proceeding, in order to succeed in the claim based on s 79 of the Act, it is necessary for the applicants to show that the ABC knew of the essential matters that make up the contraventions of s 183 which the applicants allege against Mr Nixon and Ms Hewish. This would entail showing not only that Mr Nixon and Ms Hewish had improperly used information obtained by them because they were employees of DCSS but that they also did so for the purpose of gaining an advantage for themselves or someone else or causing detriment to DCSS.

38    The evidence indicates that Mr Nixon and Ms Hewish have been in contact with the ABC in relation to a Four Corners program since in or about July 2021 and that they may have provided information to the ABC in breach of their contractual obligations.

39    Mr Nixon forwarded a copy of his employment contract to Ms Ferguson on 12 October 2021. Although the ABC has produced an email showing how Mr Nixon’s contract came into its possession, there is no evidence to show how or when it came into possession of Ms Hewish’s contract. I do not see any basis for inferring (even at a prima facie level) that it would have been given to the ABC before 12 October 2021. To the extent that the provision of documents to Ms Ferguson on 12 October 2021 involved a breach of Mr Nixon’s or Ms Hewish’s contractual obligations, it could be fairly described as a technical breach only. I say that because in Mr Nixon’s case it was obviously provided a day or so after the ABC had received correspondence from Mr O’Brien drawing attention to various confidentiality provisions in the employment contracts.

40    I did not understand the applicants to submit that the disclosure that occurred by the email to Ms Ferguson on 12 October 2021 provided any basis for the grant of interlocutory relief. In any event, if the provision of employment contracts by Mr Nixon or Ms Hewish to the ABC constituted a breach of any relevant confidentiality obligation, I am satisfied that damages would provide the applicants with an adequate remedy.

41    The only document produced by the ABC which appears to me to be what may fairly be described as a patient record is the photograph which is now the subject of the Exhibit A undertaking. This appears to be the very kind of photograph that Ms Hewish sought from Ms Wilson. It was provided by Mr Nixon to Ms Ferguson and forwarded by her to the ABC on 30 August 2021.

42    The conversation between Ms Hewish and Ms Wilson occurred in July 2021 which was some months after Ms Hewish had resigned her employment with the applicants. There is no evidence to indicate whether Ms Wilson supplied the photograph to Ms Hewish and the applicants do not suggest that she did so. But the conversation between Ms Hewish and Ms Wilson is significant because it shows that, as of July 2021, Ms Hewish was in contact with at least one current employee of the applicants seeking her assistance in obtaining photographs and other records relevant to the Four Corners program. The conversation, at least as reported in Mr Svilans’ affidavit, suggests that Ms Hewish was seeking a range of documents including patient records, surgery schedules, timesheets and Medicare records, and that she may have been doing so on behalf of both herself and Mr Nixon.

43    It may well be that the applicants have a case against Mr Nixon and Ms Hewish for inducing or procuring a breach of contract. That would involve demonstrating, at trial, that there had in fact been some breach of a relevant confidentiality obligation by a current employee who they had persuaded to provide them with confidential information. However, as mentioned earlier in these reasons, no interlocutory relief has been sought by the applicants against Mr Nixon or Ms Hewish.

44    Against that background, it is necessary to consider the question of whether the applicants have demonstrated a prima facie case against the ABC. In doing so it is necessary to bear in mind that the applicants have not alleged or sought to prove a prima facie case of equitable breach of confidence. The case is confined to one based on the statutory cause of action to which I have referred and what really amounts to a foreshadowed claim against the ABC for unlawful interference in the applicants’ contractual relations with its existing or former employees.

45    Turning first to the statutory cause of action, I am not satisfied that the applicants have established a prima facie case against the ABC based on s 79 of the Act. In order for that case to succeed I would need to be satisfied that there was an arguable case that Mr Nixon and Ms Hewish had contravened s 183 of the Act. There are two principle difficulties that the applicants face in showing a prima facie case in relation to s 183(2).

46    First, so far as the evidence is concerned, there is nothing to indicate that Mr Nixon or Ms Hewish have improperly used information they obtained because they had been employees of DCSS. In particular, there is no evidence that suggests that Mr Nixon obtained the photograph while he was still an employee of the applicants. The circumstances in which he obtained it are simply not addressed in the applicants’ evidence. It may well have been provided to him after he was no longer employed by the applicants by an unhappy patient. I do not see any reason to infer, even at a prima facie level, that Mr Nixon, or Ms Hewish, obtained that photograph because they were, or had been, employees of DCSS.

47    The second difficulty for the applicants in relation to a claim against the ABC based on s 183(2) of the Act concerns the need for the applicants to show that the relevant conduct was engaged in for a prohibited purpose. In his submissions Mr McClintock SC submitted that it should be inferred that Mr Nixon and Ms Hewish improperly used information in order to cause detriment to DCSS. However, I do not think the evidence supports that submission even at a prima facie level. The conversation between Ms Hewish and Ms Wilson casts some light on Mr Nixon’s and Ms Hewish’s motivation and it seems to have been centred, as I have previously mentioned, on exposing what they consider to be unsafe or inappropriate practices and behaviour. Such exposure may cause detriment to DCSS but that does not appear to be what motivates either of them.

48    In order for the applicants to succeed against the ABC under s 183(2) of the Act they would also need to show at the trial that the ABC knew that Mr Nixon and Ms Hewish were motivated by a prohibited purpose. There is no evidence before me from which I would infer at a prima facie level that the ABC knew that either Mr Nixon or Ms Hewish were motivated by a prohibited purpose.

49    This brings me to what I have referred to as the foreshadowed claim against the ABC for unlawful interference in the applicants’ contractual relations. As developed in Mr McClintock SC’s oral submissions, the applicants allege that the ABC has procured or induced, or threatens to procure or induce, breaches of contract by the applicants’ former employees including, most relevantly, Mr Nixon and Ms Hewish. But in order to succeed at trial in relation to such a claim it would be necessary for the applicants to show, amongst other things, that the ABC intended to induce or procure Mr Nixon and Ms Hewish to breach their employment contracts.

50    Mr McClintock SC placed particular emphasis on the obligation in the Confidentiality Statement requiring the employee not to “[d]o any act or thing which may impair or reduce Dr Lanzer’s reputation standing [sic] in the eyes of the public or any of its customers …”. Assuming that either Mr Nixon or Ms Hewish will appear in the Four Corners program and make statements that might reasonably be considered to be in breach of that provision, it would still be necessary for the applicants to establish that they had been procured or induced to make such statements by the ABC. The fact that the ABC may be providing a means with which they can make public statements that may have the potential to diminish Dr Lanzer’s reputation does not amount to procuring or inducing them to do so. As Street J said Short v City Bank of Sydney (1912) 12 SR (NSW) 186 at 202-203:

The words “induce” and “procure” in their ordinary significance, I think, convey the idea of persuasion or contrivance, and I think that a person complaining of a breach of contractual relations brought about by these means must show that the person whose actions are complained of did something in the nature of effectually persuading or prevailing upon the other party to the contract to violate his obligations under it. The persuasion may take the form of advice or friendly solicitation, or it may take the form of intimidation or molestation, but in every case I think that it must be shown that the defendant deliberately intervened between the contracting parties, either with the express design of depriving the plaintiff of the benefit of his contract, or under such circumstances that he must have known that the effect of his intervention would be to deprive the plaintiff of that benefit.

51    That passage in the judgment of Street J was cited with approval by Lindgren J in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26 and more recently by Beach J in State Street Global Advisors Trust Company v Maurice Blackburn Pty Ltd (No 2) [2021] FCA 137. As Beach J observed in that case at [422]:

The element of inducement or procurement represents a high bar. It is not enough for the alleged wrongdoer to know that a breach may well happen or is the natural and probable consequence of the alleged wrongdoer’s activities; he must take some step which manifests an intention to induce the breach. What must be shown is some persuasion, encouragement, assistance or pressure that is aimed at the contract such that there is a clear causal link between the respondent’s conduct and the breach.

52    For those reasons I am not persuaded that the applicants have demonstrated a prima facie case for the relief sought against the ABC.

53    Even if I was to accept that the applicants have made out a prima facie case for the final injunctive relief they seek against the ABC, it does not follow that I would grant them either the interlocutory relief they have sought in their originating application or any narrower injunctive relief. There are three reasons for this.

54    First, I am not persuaded that damages would not be an adequate remedy in relation to any of the causes of action upon which the applicants rely. So far as the case based on s 183(2) is concerned, that is a case that can only be maintained by DCSS. It appears to be a trading corporation. There is no evidence before me as to its reputation. All of the evidence relied upon by the applicants is directed to Dr Lanzer’s reputation. If DCSS succeeds in its claim under s 183(2) of the Act, then it is only loss or damage suffered by DCSS that is recoverable. Any losses suffered by that company as a result of a contravention by the ABC of s 183(2) could be compensated by an award of damages for any economic loss it may suffer. Damage caused to Dr Lanzer’s reputation would not be recoverable.

55    Secondly, so far as any claim by Dr Lanzer against the ABC for procuring or inducing breach of contract is concerned, it seems to me that, if the ABC is found to have engaged in any such unlawful conduct, then damages would also be an adequate remedy. An award of damages is the usual remedy in cases where there has been an actionable defamation. While Dr Lanzer does not bring any action in respect of any actual or threatened defamation, and the usual rules governing the availability of injunctive relief in defamation cases do not apply, it is relevant to observe that the courts are routinely required to assess damages in such cases for injury to an individual’s reputation.

56    Finally, I am also mindful that the ABC has proffered the Exhibit A undertaking in relation to the photograph and the video included in Exhibit A.

57    In the result, the application for interlocutory relief will be dismissed. My provisional view is that the applicants should pay the ABC’s costs of and incidental to the interlocutory application. However, I will give the parties an opportunity to be heard on that question.

Associate:

Dated:    21 October 2021