Wendy Hatfield has to wait and see

Soon, it seems, we will be treated to a third instalment of the Underbelly franchise on our televisions, should we choose to watch.

Former constable Wendy Hatfield would like to watch it now, because she has reason to believe that she has been depicted in the series as a person having a presumably corrupt relationship with the (then) young nightclub boss John Ibrahim.

A tie-in book has already been published which, according to Ms Hatfield’s lawyers as reported last week, includes allegations that, while a police officer, Ms Hatfield had a sexual relationship with Mr Ibrahim “a notorious criminal”, that Ms Hatfield had been promoted within NSW police ranks by giving sexual favours and that she was guilty of perjury.

The important thing to remember here is that, when bad things are said about a person, they are ipso facto defamatory. It is then up to the defendant, if sued, to justify them (ie, prove them to be true) or otherwise excuse their recounting of them as arising out of some kind of privilege (public interest, reports of parliament or court proceedings, etc). The tricky aspect here for the producers of Underbelly is that the programs are not entirely true, so privilege may be a difficult thing to invoke and establishing the truth of particular imputations may also be hard. What they probably have to do, if they are to be on the safe side, is to produce a fiction where the fictional parts are innocuous and do not worsten the bad but true things which are said about the real-life characters who resemble the often quite thinly fictional characters, and where any true characters who are total baddies are just so bad that there is no chance of their suing at all.

Ms Hatfield applied to the court for a legal procedure called “preliminary discovery.” If you don’t know whom or whether to sue, you can obtain an order for the production of documents or information which may assist you determine these things. Most commonly, in defamation matters, this occurs when you want to force the journalist to reveal their source. That is, you go to the court and say “the newspaper has reported that bad things have been said about me, I want to know who has been saying these bad things.”

In this case, although the book has been published, the TV series is yet to be broadcast. Ms Hatfield wanted to know what the bad things were which were going to be said about her when it was broadcast. Then she might be able to stop the broadcast or (to be a little more realistic here) extract some compensation upfront from Channel 9 when she had them over the barrel of a threatened injunction. That is certainly one inference which might be drawn from the statement made by Ms Chrysanthou, Ms Hatfield’s barrister, that “Channel Nine would be able to pay for any damages through the earnings of commercial breaks in a single episode of the hit show.”

The prevention of publication by an injunction is extremely exceptional. This is normally thought to be a matter of free speech implications, since otherwise the powerful could readily muzzle any criticism of themselves. Certainly, if there is a whiff of a defence, publication will not generally be enjoined. That doesn’t mean that a well-timed threat and the risk of upsetting advertising revenue might not have proved profitable to Ms Hatfield and, indeed, of more use than waiting for years after the event for compensation for the defamation which had long ago been streamed into the living rooms of millions.

The producers of “Underbelly” are of course awake to these risks. They like to back up the things they say about even semi-fictional people with the necessary extracts of court transcripts. In this case, they have had considerable recourse to the proceedings of the Wood Royal Commission into police corruption. That’s where I think Ms Hatfield’s lawyers had a good card to play. That is because Ms Hatfield was a compelled witness, and as a purported protection against the inquisitorial rigours of a royal commission, evidence given by a compelled witness cannot be used against that person. Everyone thinks that this is to do with criminal prosecution or other proceedings against you as a defendant, but why should it not extend to use of that material as evidence to justify the truth of statements made about you when you are the plaintiff in defamation proceedings?

As the SMH has reported, Ms Hatfield’s application for preliminary discovery was dismissed by Justice Harrison yesterday. Ironically, it’s all great publicity for channel 9 and the program makers – they’ve been supplying the photos of the actress and possibly also of Ms Hatfield for use to illustrate the newspaper stories.

The judgment is pretty complex, and having read it I find myself running out of patience to explain it. One thing which it reminds me of is the decidedly bare-knuckle manner of defamation litigation – all sorts of ridiculous points tend to be taken and argued on both sides in a way which is probably more familier to comon law and criminal lawyers than those like me who are more from the equitable side, and matters are commonly denied in pleadings which in commercial cases would be more likely to be not admitted at the highest.   

To cut a long story short, there are three main points in the judgment I want to comment on. On the first two, I think Justice Harrison’s decision is questionable. On the third, he probably got it right even though it seems a bit tough on Ms Hatfield.

  1. At [55] to [62] his Honour let the passages of Royal Commision transcript in by analogy to those cases where somebody waives an objection to legal professional privilege (ie, that they don’t have to say what their lawyer told them) because they have blurted out in the witness box “but my lawyer told me…” or words to that effect.  I’m not convinced that the analogy works and it has certainly gone beyond the facts of the Bayeh case cited where the party themselves used parts of the transcript.  At the same time, there is something satisfying in the way that the baroque elaboration of the imputations claimed by Ms Hatfield’s solicitors about being exposed as a corrupt and hypocrite by reason of her denials to the Royal Commission have ended up playing against her.
  2. At [100] to [106] his Honour found that there wasn’t at present evidence that Ms Hatfield had already been defamed.  The relevance of this was that, although what most people are interested in is whether she will be defamed big-time by the impending broadcast, she said, quite rightly in my view, that there must have been some publication already among and between the defendants and in preliminary publicity.  Of course, until she sees the program, she can’t say how.  His Honour’s decision seems to be based on the fact that she hasn’t proved that the program may have been watched by anyone at all.  I doubt if, under the relevant rule, she had to prove that it actually had been seen by anyone.  It defies common sense to fail to find that something which is likely to have been defamatory is likely to have seen by someone, which I think is all that is necessary.  For that matter, even the script was probably defamatory (subject to any justification or privilege, as I said at the outset).
  3. His Honour was probably right at law to find [107 – 116] that it was unlikely that Ms Hatfield would get an injunction restraining the broadcast and that therefore it wasn’t necessary that she see the program now in order to try to get one.  However, this still seems a bit rich and catch-22.  The program’s been made – at least, I don’t understand the defendants to have denied that it is.  Who knows how damaging to Ms H it will be or even how true or false?  It’s not really public interest broadcasting; it’s entertainment.  Of course, Channel 9 doesn’t want to be put over a barrel in this way, but it’s just a question of money for them.  Defame-now-pay-later suits them very well. Why shouldn’t Ms H see it now and chance her arm in an application for an injunction if she wants to? 

PS: A colleague who is more experienced in the defo field than I had a different opinion. He thought that Hatfield’s bid for preliminary discovery (which as I have hinted, may well have been as a means to gain leverage for a threatened injunction which would have had nuisance value even if ultimately without merit) was a big try-on which was absolutely correctly slapped down by Justice Harrison for the reasons he gave.

PPS On 8/4/10 an appeal to the Court of Appeal was dismissed. See subsequent brief post here (originally a mere post-postscript to this post).

One Response to “Wendy Hatfield has to wait and see”

  1. One law for the rich | Stumbling on melons Says:

    […] fare so well. She was refused orders for preliminary discovery concerning that series. The judge held (and the Court of Appeal upheld) that she had to wait and see and get damages afterwards if she was […]

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