Arthur Moses SC and Phillip Sharp recently appeared for the successful plaintiff, Network Ten Pty Ltd (Ten), in proceedings against Dr Peter van Onselen in the Supreme Court of New South Wales: Network Ten Pty Ltd v van Onselen [2023] NSWSC 829; [2023] NSWSC 863.
When Dr van Onselen’s position as Ten’s Network Political Editor was made redundant earlier this year, the parties entered into a Deed of Release containing a non-disparagement clause (cl 7). By cl 7.1 of the Deed, Dr van Onselen promised not to “disparage” Ten or related companies, or to make any statement which might “adversely affect” their reputations. But on 29 May 2023, The Australian published an article written by Dr van Onselen which purported to raise questions about the financial performance of Ten’s American parent company, Paramount, and the ratings of Ten’s domestic news programs.
Ten commenced proceedings on 2 June 2023, seeking a declaration that the article disparaged Ten and its parent company and an injunction restraining Dr van Onselen from making any further statements in contravention of the non-disparagement clause.
Dr van Onselen made a number of arguments against the relief sought by Ten, including that:
- cl 7.1 did not prohibit statements made in good faith which happened to affect Ten’s reputation, but only statements not able to be characterised as “fair comment”;
- cl 7.1 is a restraint of trade within the meaning of the Restraints of Trade Act 1976 (NSW), and is invalid because it is contrary to public policy; and
- Ten should be refused relief because an employee of Ten made representations to Dr van Onselen about the operation of cl 7.1 that were inconsistent it applying to the article in The Australian.
The Supreme Court rejected each of Dr van Onselen’s arguments. Hammerschlag CJ in Eq held that the non-disparagement clause was not ambiguous and could not be read down to be subject to an exception for fair comment. Although his Honour accepted that a non-disparagement clause could conceivably operate as a restraint of trade, he held that cl 7.1 was not a meaningful barrier to Dr van Onselen “exercising his profession or calling” and so was not a restraint of trade. Finally, his Honour rejected Dr van Onselen’s evidence of the representations about the restraint said to have been made by one of Ten’s employees.
Hammerschlag CJ in Eq made a declaration that Dr van Onselen had breached cl 7.1, and only declined an injunction because of submissions from Dr van Onselen’s counsel that he would adhere to the Court’s ruling on the validity and effect of cl 7.1. Because Ten’s position had been “fully vindicated”, Dr van Onselen was ordered to pay Ten’s legal costs.
