Judgment

1. Dame Carol Kidu, the plaintiff in these proceedings was for a number of years a politician in Papua New Guinea (“PNG”). She retired from politics in 2012 and in her last seven months in the PNG Parliament she was the leader of the Opposition. At the time that Dame Carol Kidu became leader of the Opposition there was a significant degree of political turmoil in PNG. I shall refer to Dame Carol Kidu as “the Plaintiff.” The Plaintiff was born in Australia but went to PNG in her early twenties. The Plaintiff was made a Dame of the British Empire in 2002, and has had numerous awards bestowed upon her including Honorary Degrees from the University of Papua New Guinea, University of Queensland and Deacon University.

2. The first defendant, Ms Hollie Fifer (“Ms Fifer”) was, in 2012, a documentary film student in the Australian Film Television and Radio school (“AFTRS”). She graduated from AFTRS in November 2012. She was at that time already a graduate of Swinburne University in Melbourne in film and television studies.

3. These proceedings concern a documentary film entitled ‘The Opposition.’ Ms Fifer is credited as the director of the film. Ms Rebecca Barry (“Ms Barry”) and Ms Madeleine Hetherton (“Ms Hetherton”) are credited as the producers of the film and two companies Beacon Films Pty Ltd (“Beacon”) and Media Stockade Pty Ltd (“Media Stockade”) are the production companies behind the documentary. Ms Barry and Ms Hetherton are the directors of both Beacon and Media Stockade. Beacon and Media Stockade are the second and third defendants respectively. The documentary contains footage which was shot by, or at the direction of, Ms Fifer, and some of that footage was of the Plaintiff, mainly in PNG but also in Australia.

4. How the footage of the Plaintiff came to be taken is at the core of this litigation which commenced shortly before the documentary was to be submitted to a film festival in Toronto, Canada , known as the Hot Docs Festival, with hopes by the defendants for a commercial release in Australia, PNG and perhaps more widely.

5. Mr B. McClintock S.C, with Ms S. Kaur-Bains, appears for the Plaintiff and Mr R. Potter of Counsel appears with Mr M. Maconachie for Ms Fifer, Beacon and Media Stockade.

6. In March 2016 the Plaintiff commenced proceedings seeking to injunct the defendants from exhibiting the documentary and in a judgment dated 22 April 2016 Slattery J granted an interim injunction amended by orders on 29 April 2016. The injunction did not prevent the defendants from exhibiting the entirety of the documentary but rather the portions of it shot by Ms Fifer or a cameraman operating under Ms Fifer’s direction and in which the Plaintiff figured (described as Shoots #1, #2, #3, #4, #5, and #8 see Tab 9 of Exhibit A). Beacon and/or Media Stockade submitted to the Toronto Film Festival the documentary minus the portions to which the Plaintiff had objected and which Slattery J ruled, on an interim basis, could not be exhibited, and in its truncated form, it was shown on 3, 5 and 7 May 2016 at the Toronto festival.

7. It was a condition of the grant of the injunction that the Plaintiff pay into Court an amount of $250,000.00 as security for any damages payable to the defendants as a result of the Plaintiff obtaining the injunction, should it be found on a final hearing that the Plaintiff is not entitled to an injunction.

8. The Plaintiff now seeks a final injunction precluding the defendants from exhibiting the documentary with the footage to which the Plaintiff objects. The matter was expedited and heard on the 15, 16 and 17 June 2016.

9. The Plaintiff’s claim is brought on two alternate grounds:

1. She claims that there was a contract between herself and Ms Fifer that permitted Ms Fifer to shoot film of her and use that footage for the purpose of a student assignment documentary with the subject being the Plaintiff’s last six months in politics in PNG, it being an implied term that Ms Fifer would not use the footage for any other purpose.

2. If it is held that there was no contract the Plaintiff claims that Ms Fifer knew that the Plaintiff believed the footage would be taken for the purpose of a student assignment documentary, with the subject being the Plaintiff’s last six months in politics in PNG and that it would be unconscionable of Ms Fifer (and the other defendants) to use the material given the fact that the Plaintiff consented on a particular basis and Ms Fifer took advantage of that consent for another purpose. An assertion of “special disadvantage” is made in the Plaintiff’s Outline of Submissions, see paras 53-59.

10. Another basis contained in the Pleadings and Outline of Submissions, being s.20 of the Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) (“ACL”) was not really pressed in final submissions no doubt because s.20 incorporates the unwritten law of Australia which includes unconscionable conduct. It appeared to be accepted that if the Plaintiff fails to make out the claim under the general law she cannot succeed under s.20 and if successful under [9(2)] above she gains nothing further from s.20.

11. Another matter ventilated in the Outline of Submissions and in the Pleadings concerned the position of Beacon and Media Stockade. Mr Potter however conceded that if the Plaintiff were successful against Ms Fifer, Beacon and Media Stockade would also be unable to resist injunctive relief. It being agreed that the case against Beacon and Media Stockade rises or falls with the case against Ms Fifer I do not need to consider the position of the other defendants separately. Ms Barry was not cross- examined on her affidavit.

12. It is clear that the idea for the film commenced as a student project. Ms Fifer had an AFTRS assignment which required her to come up with an idea for a proposed documentary which she was to ‘pitch’ to potential investors. Ms Fifer thought that a documentary about the Plaintiff and her role in the politics of PNG would be a good topic and she gave consideration to including in that pitch a short interview with the Plaintiff. To that end she asked her mother if she could contact the Plaintiff and ascertain whether the Plaintiff would be willing to permit such an interview. Dimity Fifer (“Dimity”) contacted the Plaintiff and asked if she would take a call from Ms Fifer to which the Plaintiff indicated her assent although there is a dispute about the precise words used. Dimity and the Plaintiff had had a professional association through Dimity’s position as Chief Executive Officer of Australian Volunteers International and whilst not close friends (see T12.20 and T137.15-18) they had a good and amicable working relationship.

13. The Plaintiff claims that Dimity said to her “my daughter is studying documentary film making. Would you allow her to come to Port Moresby to do a documentary for her student assignment on your final months in politics and as leader of the Opposition” para 15 Plaintiff’s first affidavit of 30/03/2016.

14. Dimity’s version of the conversation is that she asked the Plaintiff:

“would you take a call from Hollie to discuss her university work and a potential documentary about your work as a parliamentarian, one particularly involved with PNG social issues,”

and does not recall having said anything about a trip to Port Moresby.

15. I set out later the two competing versions of the first conversation between the Plaintiff and Ms Fifer that the Plaintiff says was in a phone call or in person on 7 March 2012 and which Ms Fifer says was in a phone call at some time between 4 and 6 March 2012 after Dimity had informed Ms Fifer that the Plaintiff was willing to receive Ms Fifer’s call but there is no doubt that the Plaintiff and Ms Fifer spoke and that it was agreed that the Plaintiff would meet with Ms Fifer in Sydney and that she could film a short interview.

16. Ms Fifer did interview the Plaintiff on 7 March 2012 and she recorded the interview.

17. Ms Fifer’s evidence is that at the end of the interview she had a conversation with the Plaintiff (para 15 Fifer first affidavit), Ms Fifer:

“This interview will be used for the AFTRS pitch assignment that I have next week but I do think your story about the political coup is a much larger story and I would like to come to Port Moresby to make this a longer documentary.”

(emphasis added)

The Plaintiff according to Ms Fifer said words to the effect of,

“Yes. That would be fine,”

and Ms Fifer then said to the Plaintiff words to the effect of,

“Do you have any reservations about this that we could speak about?”

The Plaintiff then said words to the effect of,

“No I don’t and you could come when parliament will be sitting at the end of March.”

18. Ms Fifer says that she had a conversation with her mother saying that she thought the story had potential to be “bigger than this AFTRS assignment” and that maybe she should even leave AFTRS. Dimity then sent an email of 14 March 2012 to the Plaintiff’s personal assistant Ms Michelle Hau’ofa, (“Michelle”) which was copied to Ms Fifer, and which the Plaintiff says she would have seen at the time it came through T23.211-32 but see T23.5-9. That email (Exhibit A p.3) referred to the Plaintiff and Ms Fifer having met “over the proposed feature film.” An email of Ms Fifer’s to Michelle of 14 March 2012 (Exhibit A p.5) confirmed the nature of Ms Fifer’s conversation with the Plaintiff as set out in [17] above.

19. On 14 March 2012 Ms Fifer emailed Michelle saying:

Hi Michelle, My name is Hollie Fifer, I believe Dimity has given you an introduction to the new documentary. I interviewed Dame Carol on Wednesday last week and talked to her about the possibility of a lengthy documentary of her role in the current political climate and her home life. She told me she has no reservations about the impact or suitability of the production. This is all very exciting! I’m hoping it will inspire other female leaders in PNG and wherever it is shown.

I am not sure if Dame Carol has told you about it so just in case, here’s what we discussed.

Dame Carol invited me to come to PNG for the last parliamentary sitting. I would love to hear about the permission needed for access into the chamber. Dame Carol said she would ask the Speaker of the House for this permission.

(emphasis added)

20. On 15 March 2012 Ms Fifer delivered her ‘pitch assignment’ at AFTRS. The pitch obviously impressed the adjudicators one of whom was from the ABC because following the pitch she was awarded a $3000.00 research grant from the ABC. Ms Fifer says that she rang the Plaintiff shortly after learning of the ABC research grant:

“I have pitched the documentary to the ABC who have given us a small research grant so that I can pay for a trip to PNG. This is for ‘research’ as the grant is small and we don’t have a full budget to make the film but it’s a start. The hard part is to make an observational documentary like this I need to have full access to you and follow you around while you work and while you’re at home. I’ll try my best not to intrusive.”

(emphasis added)

And on 22 March 2012 she sent an SMS to the Plaintiff (Exhibit A p.12) saying inter alia,

“funding from the ABC is nearly approved which is promising.”

(emphasis added)

21. The ABC, through a Mr Alan Erson, was keen for Ms Fifer to proceed to make a significant documentary and Ms Fifer was introduced to Ms Barry. Ms Fifer set up a company Fine Ark Pty Ltd (“Fine Ark”) but whilst she used that name on emails she sent, Fine Ark did not actually create or own any of the material in dispute in this case.

22. On 12 April 2012 the Plaintiff signed a Participant Consent Form see Exhibit A p.13. There is now no dispute that the Plaintiff signed it in Melbourne after it was handed to the Plaintiff by Dimity at the request of Ms Fifer. That form had the following content:

This agreement is between the PARTICIPANT (defined as the Plaintiff) in respect of the above-mentioned PRODUCTION (defined as “The Opposition- working title”)

Whereas:

The PARTICIPANT irrevocably grants the PRODUCTION with the working title of The Opposition the right to record produce, reproduce, transmit, exhibit distribute and publicise any and all of the acts and appearances of the PARTICIPANT (including name and likeness) for audio and visual reproduction in any media which may include other recordings and material for theatrical, broadcast and all distribution throughout the world in perpetuity.

(emphasis added).

It was signed by the Plaintiff next to “The Participant’s Signature,” and dated 12 April 2012.

23. On 14 April 2012 Ms Fifer sent the Plaintiff an email in which she said, inter alia,

“I just wanted to touch base with you so that I can write the funding proposal for the documentary which I’ll be submitting on the 20th of April,”

(emphasis added)

 and also,

I have a cameraman Simon Smith and a producer Rebecca Barry who are both very lovely, professional, and extremely experienced. As for the logistics of when Simon and I (rebecca won’t be coming) will be able to come I have to wait to ABC to approve of the $80,000 funding.

I’m confident we will make an outstanding documentary if two things happen;

1.we get the funding needed

2. we are allowed to film the turning points in the next 6 months/one year. Our access to you, your home, your work, the emerging leaders, their homes and their work will be the difference between news story and our human portrait documentary.

We’re working on securing a deal with the ABC for their parliamentary footage and coverage so far. That way we won’t miss a beat.

(emphasis added)

24. Between 10 and 13 May 2012 Ms Fifer travelled to PNG and stayed with the Plaintiff at her family home. On 12 May the Plaintiff received a call following which she said to Ms Fifer (para 39 Fifer first affidavit),

“The police mobile squad are bulldozing houses in Paga Hill ….. the house of Joe Moses, a Paga Hill community leader and resident is already destroyed. Do you want to come with me? You may need to stay in the car,”

and the Plaintiff, accompanied by Ms Fifer, went to Paga Hill.

25. Paga Hill is a suburb of Port Moresby. At that time there was at Paga Hill a community of people living in what effectively was a small shanty town at, or close to, the seashore. Paga Hill was part of the Plaintiff’s electorate of South Port Moresby.

26. At Paga Hill Ms Fifer shot nine or so minutes of footage which included dramatic scenes of houses being bulldozed, Police action and shots being fired by Police. The footage included a confrontation between the Plaintiff and the Police and what appeared to be the Plaintiff being led away by Police (although the Plaintiff says, and I accept, that she was not arrested, charged or even placed in a police car after that incident).

27. Captured in the footage are the comments made by the Plaintiff to both Ms Fifer and the Police. This included the Plaintiff saying to Police and the camera:

“This is not an eviction, this is a demolition,”

“Where are these people going to sleep tonight?”

“Stop the demolition.”

“Just ask them to leave and let them take their houses down.”

“Why should some fucking foreign company get our hill?”

“This is a national park for the future generations of Papua New Guinea.”

“This is not a development, tell me how the people are going to benefit? They say there’s going to be a marina cruise liner wharf. That’s the big people -right?”

28. Just prior to filming, the Plaintiff, according to Ms Fifer, said to Ms Fifer:

“I want Australians to know what is happening in this country.”

(emphasis added)

The Plaintiff did not dispute that conversation in her affidavit in reply of 31 May 2016.

29. Ms Fifer claims that the Plaintiff later that evening asked her if she could have the footage shot that day at Paga Hill. Ms Fifer edited the footage creating a two minute edit which she says at the Plaintiff’s request was uploaded on the Plaintiff’s computer to YouTube. The Plaintiff does not admit that this occurred in this way but does not dispute that the two minute edited version was uploaded with her knowledge to YouTube. The two minute edited version is contained on a USB stick and is Exhibit C. The Plaintiff does not seek to restrain the exhibition of that edited version.

30. On Sunday 13 May 2012 Ms Fifer accompanied the Plaintiff to Ela Beach in Port Moresby, and filmed a meeting between the Plaintiff, Mr Joe Moses (“Joe”), Mr Gari Ratoos (“Ratoos”) and other Paga Hill community leaders or residents.

31. Ms Fifer claims (para 49 Fifer first affidavit) that the Paga Hill leaders asked the Plaintiff for help with their Court case and that the Plaintiff said:

“Yes I can help…. Tell your people thank you for protecting her (pointing at me). When it became too dangerous I said ‘get out of here’. It’s lucky that she was there with her camera. She has the footage and perhaps it would be useful for your case.”

(emphasis added)

The Plaintiff did not refer to this conversation in her affidavit in reply.

32. On 14 May 2012 the Plaintiff published a press release see Exhibit A p.34-38, in which the Plaintiff made accusations concerning the Paga Hill Development Corporation “PHDC” (which had obtained a lease of land at Paga Hill and was seeking to develop the site for commercial purposes) and in which the Plaintiff made clear her opposition to the PHDC development plan. The Plaintiff asserted that PHDC was foreign owned, that the evictions carried out were illegal, referred to a fraudulent issue of title, and the fundamentally flawed earlier grant of title to Paga Hill Holdings Pty Ltd which she alleged was a previous incarnation of PHDC (Exhibit A p.34). The Plaintiff also asserted that a portion of the land was occupied by a “community who was given permission to live there by the customary owners of the land during colonial times” and that they were not given the right to be heard when the 2009 title was issued to PHDC.

33. On 23 May 2012 Ms Fifer wrote to the Plaintiff (Exhibit A p.42) concerning the YouTube clip saying:

“My university saw it and I’ve been in meetings for the last few days because apparently my school is claiming copyright of the footage until I sign all the paperwork to assign the copyright over to my producer Rebecca. So they’ve requested I take down the YouTube clip. I wanted to check with you first. Has it done its job? You have a copy on your computer which I still believe, you, your family, activists, lawyers and everyone should be able to use. It’s just having it up on YouTube means that my University are threatening to withdraw their donation of equipment, staff and support if it stays up. What do you think?

Thank you so much for your support and trust in the documentary. I appreciate all you’ve done to realise the potential of it I’m trying now to organise a proposal in order to get more funding for the next stage of the production”

(emphasis added)

To which the Plaintiff replied:

“I am amazed. All this talk about copyright is making me really nervous. How can your school claim copyright? It is not their film. By all means, take it down, but I will use the footage if I need to and tell them to deal directly with me. What was the problem? Too contentious? How can the school claim copyright of one of their student’s work? I simply do not understand. Dobi actually loaded it on YouTube first.”

(emphasis added)

34. At a meeting on 25 June 2012 in PNG with Dr Kristian Lasslett of the International State Crimes Initiative and Ms Fifer (according to para 59 Fifer first affidavit to which the Plaintiff did not respond in her affidavit in reply), the Plaintiff said:

“The more we can through people like yourselves expose these things internationally it might start holding us as a nation accountable.”

And:

“We have got to make it public and that’s why the whole thing, the absolute incredible coincidence that Hollie was there at the time during the eviction…. What a coincidence… I think that’s very critical that for the people there to know, hey, the outside world cares.”

(emphasis added)

Also Dr Lasslett asked the Plaintiff if he could record the meeting with an audio device to which the Plaintiff agreed.

35. There were numerous emails, SMS messages and conversations between Ms Fifer and the Plaintiff which Ms Fifer relies on to refute the claim of the Plaintiff that she was not aware that the original purpose of Ms Fifer’s meeting with the Plaintiff in Sydney on 7 March (the first shoot) had altered: see Exhibit A p.5, 24, 27, 33, 42, 48, 50, 51, 52, 54, 55, 58, 59, 70. Ms Fifer also claims that the emails and SMS messages made clear to the Plaintiff that Ms Fifer had become interested in the Paga Hill story, that is the eviction and relocation to a location known as Six Mile of the residents of the shanty town, as a story in its own right. Ms Fifer believed, it is clear until at least mid 2013, that the Plaintiff was keen to have the Paga Hill resident's grievances aired and that the Plaintiff believed that the Paga Hill residents had been unfairly dealt with.

36. As Ms Fifer’s interest in the Paga Hill story and its role in the documentary increased, the Plaintiff’s interest in being involved in the documentary seemed to wane. The very first hint of a cooling in enthusiasm for Ms Fifer’s presence in PNG and filming of events was in July 2012 when the Plaintiff informed Ms Fifer:

“Please remember that many of the conversations that you heard were off the record and must not appear in any way in the documentary- forget about corruption etc. I have to find work after politics to support the many people that I support and thus I must be friends to all and enemies to none at this stage.”

She told Ms Fifer that a stay of three or four nights at her home was “fine by me” but beyond that “feels intrusive into my personal life” see Exhibit A p.47-50.

37. Ms Fifer was astute enough to appreciate a possible diminution in enthusiasm because she asked the Plaintiff in an email of 13 July 2012:

“I just wanted to check with you about the documentary. My enthusiasm for the story and hope of inspiring young leaders as I’ve written previously is still all I can think about. Are there any reservations that we haven’t already spoken about regarding the film’s continuation. I want to remain 100% honest and respectful so this will need to be a continual discussion.

I’m just thinking about what you said about splitting up this trip to spend time between Serena and yourself. This will make it a bit easier getting the young emerging female story angle. I would also love to meet the other women….”

(emphasis added)

38. Whilst Ms Fifer was, as arranged, staying at the Plaintiff’s home in July 2012 the Plaintiff told Ms Fifer that she would have to leave because the Plaintiff’s family found her presence there too intrusive. This was a further sign of the cooling of enthusiasm on the part of the Plaintiff for Ms Fifer’s documentary.

39. Ms Fifer says (see para 67 from Fifer first affidavit) that between 25 July 2012 whilst they were travelling in the back seat of the car the Plaintiff said to her:

“When I sign a release form of this documentary I’m going to ask for the final say”

To which Ms Fifer replied:

“You have already signed a release form in Melbourne remember?”

To which the Plaintiff then said:

“No I don’t remember”

To which Ms Fifer replied

“Yeah you did….”

(emphasis added)

The Plaintiff said that she did not remember the conversation: T74.37-41.

40. Ms Fifer thought that the conversation set out above was what led to the Plaintiff’s request on 27 July 2012 that she leave Plaintiff’s home the following day which the Plaintiff denies see T75.45. The Plaintiff did not address Ms Fifer’s evidence of the conversation in the car in her affidavit in reply.

41. Ms Fifer contends that by saying to Ms Fifer the words I have set out at [39] above the Plaintiff was clearly conscious that Ms Fifer’s documentary was going to be broadcast because otherwise she would have had no concern of the type expressed. The Plaintiff said at T59.47 that she was concerned about confidentiality and that she was:

“starting to get uncomfortable that I opened up my total life to a young girl that I didn’t really know very well and no disrespect to her I was getting nervous about that.”

42. Ms Fifer visited PNG between 26 July and 5 August 2013. Ms Fifer rang the Plaintiff to ask if Joe and the other Paga Hill leaders could meet with her and there followed an exchange of SMS messages: see Exhibit A p.70-73. In one of those messages Ms Fifer informed the Plaintiff that she had been filming at Paga Hill and Joe and Ratoos wanted to seek the Plaintiff’s advice. Arrangements were made for them and Ms Fifer to attend at the Plaintiff’s house and Ms Fifer filmed for a total of approximately one hour. Approximately 12 minutes into the shooting the Plaintiff and Ms Fifer had the following conversation (see para 77 of Fifer first affidavit):

Plaintiff: And what’s all this videoing for?

Ms Fifer : So um.... (Inaudible)

Ms Fifer: It comes out of an obligation for me as an Australian for what I saw and I thought that if my skills can be used then but I don’t want to compromise anything.

Plaintiff: But what I mean, you gotta be wary also. Yeah I mean this is something I don’t want to say on camera. Haha I mean he (Joe) is very identifiable) He could easy pheeft a raskol attack hit him and disappear so, I mean this is off the record. You know, I mean, that’s a fact, that’s a fact. Don’t kid yourself (the Plaintiff mumbles off about a situation where that has happened and Joe Moses and the Plaintiff resume their conversation.”

(emphasis added)

43. On 17 March 2014 Ms Fifer on her evidence had a conversation with the Plaintiff in which words to the following effect were said (para 80 Fifer first affidavit):

The Plaintiff: I don’t want the meeting filmed. I could arrange for you to have access to the Paga Hill Development Company if you leave now and don’t film the meeting. I am now a consultant for Paga Hill Development Company and my contract is for a lot of money. I can get Paga Hill Development Company to pay you to film the Six Mile relocation solution and the whole issue from their side of the story.

Ms Fifer: I do want to get access but I couldn’t take any money because I need to remain independent and neutral.

The Plaintiff: The company doesn’t have to pay you money; they could pay for your flights and accommodation instead.

Ms Fifer: I decline for the same reason

The Plaintiff: Perhaps a ‘credit’ or ‘a UN media award’

Ms Fifer: I decline.

44. The Plaintiff’s version of the conversation is that she said to Ms Fifer:

“Leave the meeting as the meeting has nothing to do with my political career and is not relevant for filming The Opposition documentary.”

And that she subsequently said to Ms Fifer:

“Why don’t you come and see what I’m doing and what we are trying to do and your airfare could be paid,”

to which Ms Fifer responded making it clear that she could not accept payment. According to the Plaintiff by her body language Ms Fifer “intimated to me that I’d been bought off already:” see T86.35. The Plaintiff denies that she said that she could get PHDC to pay Ms Fifer to film or that she offered a ‘credit’ or a UN Media Award.

45. In December 2013 the Plaintiff was approached by Mr Gudmundur Fridriksson of PHDC with a request that she become involved in the Paga Hill resettlement on behalf of PHDC. In March 2014 the Plaintiff, through her company CK Consultancy Ltd entered into a Consultancy Agreement with PHDC: see Exhibit A p.94-98. It was agreed by Counsel that the total of payments due to the Plaintiff under the Consultancy Agreement amount to $178,000.00. PHDC also has agreed to indemnify the Plaintiff in respect of her costs of these proceedings (Exhibit A p.334) and also has paid the $250,000.00 that was required to be paid into Court by the orders made by Slattery J: (T114.43-50). CK Consultancy had also entered into an agreement with Curtain Brothers which was the construction company engaged in work at Paga Hill see T97.29-39.

46. I note that in the evidence (see Exhibit J) are the reasons for the judgment of the National Court of Justice and the Supreme Court of Justice of PNG. The National Court of Justice held that PHDC was entitled to enforce its judgment for possession of land. The Supreme Court of Justice to whom Joe and Ratoos and another person appealed held that a portion of land described as reclaimed land was not part of PHDC’s title, but did not otherwise overturn the National Court’s judgment.

47. On 14 May 2014 the Plaintiff wrote to Ms Fifer saying, inter alia (Exhibit A p.112):

“I am disgusted that you have chosen to release a documentary clip on Paga Hill, including me in it, making Joe Moses a champion. It is an unfinished story and you could end up being denounced if you are not careful for incomplete reporting. But I guess journalists often do this in their pitch.

I am particularly hurt because you came into PNG under my auspices and have taken a completely different direction for your own purposes.

Joe Moses is not a champion. In fact I am increasingly disgusted by his behaviour. Whatever happens in the court cases is not my business but the fact is that whatever the outcome - the people there will have to leave - it is not their land”

and

“I have not been "bought off” and am earning every cent that my company is being paid by PHDC and my focus is to try to help the people of Paga who want help and also to model a strategy by which government can partner with customary land owners to develop housing communities in the city. My interest is in policies and procedure and not in people who are demanding multi -millions of kina for something that does not belong to them and collecting lots of money from people for endless legal fees.

You do not understand Papua New Guinea and should be very careful how you do your stories about PNG. Go and interview the people who lived in the bunkers on Paga who have been intimidated by Joe Moses and his faction. He is certainly not their champion.

If I feature in your video clip (and I have been told that I do) then I will make a formal complaint to the organisers. When I went into Paga I went in on a human rights at the time issue - not a land issue. When an eviction occurs again (as it will because NCDC is building the road at the base) -I will not be there to defend them and nor will Lasslett.

An incomplete story serves no purpose except your own purpose.”

48. It will be observed that the Plaintiff does not assert in the 14 May 2014 email that she was led to believe that the filming was for the purposes of a student assignment. I accept that the reference to “a completely different direction for your own purposes” could have been meant to include a claim that the film was originally to be about the Plaintiff and that it no longer is but that is by no means clear.

49. The Plaintiff’s case both in contract and estoppel is based on the first conversation of early March 2012 between the Plaintiff and Ms Fifer and in respect of the estoppel a denial of receiving or appreciating the significance of the material upon which Ms Fifer relies. The Plaintiff’s version of the first conversation in March 2012 which she had with Ms Fifer is found at paras 23-25 of the Plaintiff’s first affidavit:

23. On 7 March 2012, I spoke to Hollie on the telephone or in person while Hollie and I were in Australia.

24. On 7 March 2012, after the exchange of greetings, Hollie said to me words to the effect of:

“I want to make a documentary about your time in politics and as opposition leader for my school assignment.”

25. I said words to the effect of:

“Your mother has spoken to me. I agree to you making the documentary as part of your student assignment on my time in politics and as Opposition leader. Perhaps you should come to the last parliamentary sitting.”

50. Ms Fifer denies the Plaintiff’s version. Her version of that conversation (para 10 Fifer first affidavit) is that it was by telephone (on or after 4 March and before 7 March 2012) and that relevantly she said:

“I am calling to ask permission to use your recent involvement in the political coup for a documentary assignment at the Australian Film and Television School where I will pitch it as the story for a feature documentary,”

And that the Plaintiff said that would be:

“alright,”

and that she would soon be in Sydney, to which Ms Fifer said:

“Can I film an interview with you to make a short video for use as part of the pitch assignment,”

to which the Plaintiff agreed.

51. Ms Fifer was not required by the AFTRS to make a documentary for her assignment. The assignment was a sales pitch about a documentary idea. The Plaintiff was also confused about the timing and sequence of events. For reasons which I will detail below I think that Ms Fifer was a far more reliable witness than the Plaintiff. It is possible, having regard to the evidence of Dimity, that the Plaintiff conflated her conversation with Dimity and that with Ms Fifer and thought prior to Ms Fifer’s call that the assignment that Ms Fifer was embarking on was to make a documentary rather than just a ‘pitch.’ Ms Fifer’s SMS of 4 March 2012 see Exhibit A p.1 may have contributed to that (although it should be noted that the SMS said nothing about a student assignment). The conversation between Ms Fifer and the Plaintiff as deposed to by Ms Fifer shortly after the conversation with Dimity, at least objectively, made it clear at that stage what the position was, and in any event it is not the Plaintiff’s version of events that Dimity told her one thing and Ms Fifer told her something different, nor is it the Plaintiff’s evidence that the ‘pitch’ was mentioned at all.

52. Given the Plaintiff’s assertion that she had no recollection of the details of any conversation with Ms Fifer and the Plaintiff’s admissions that she received and read (at least to some degree) the SMS messages and emails sent by Ms Fifer to the Plaintiff and the Plaintiff’s personal assistant, the scope of conflict of evidence was much reduced. Although the question of whether Ms Fifer acted unconscionably as the Plaintiff contends is not dependent on whether the Plaintiff did or did not read those communications properly or pay sufficient attention to them, I nevertheless need to assess the credibility of the witnesses.

The Plaintiff’s Credibility

53. There are a number of factors which lead me to have real concerns about the Plaintiff’s credibility:

1. In giving her evidence the Plaintiff frequently gave unresponsive answers to questions asked or sought to add material that was not in answer to the question for example: T.12.42-49, T20.25-36, T30.42-31.4, T35.40-50, T53.35-41, T55.40-46, T88.49-89.5 and even in re-examination T116.26-29, T121.1-23.

2. The Plaintiff in her first affidavit gave a version of a conversation with Ms Fifer at the time that the Plaintiff signed the consent form in Melbourne: see paras 34-37 of the Plaitiff's first affadavit. There was no such conversation because Ms Fifer was not in Melbourne on that occasion, and it is clear that it was not Ms Fifer who handed the form to the Plaintiff but Dimity, at Ms Fifer’s request.

3. When faced with emails and SMS messages sent by Ms Fifer to the Plaintiff which contained material destructive of the Plaintiff’s contention that she thought Ms Fifer was only ever involved in a student assignment the Plaintiff sought to assert that she had not properly read, or appreciated, the content of those emails. See:

1. T30.43-35.50

2. T36.1-43

3. T59.34-60.38

4. T78.14-78.22

Although I should note that on a number of occasions the Plaintiff accepted that looking at the particular document now it would have made her aware see: T32.7-T33.44 and T35.45-50 for example.

4. When conversations which were inconsistent with the Plaintiff’s case that she did not know that Ms Fifer was engaged in making a documentary and not simply making a student assignment were drawn to her attention the Plaintiff asserted she said that she did not recall them, see for example:

1. T15.9-26

2. T26.41-27.6

3. T35.10-24

4. T74.30-75.4

5. The attempt to explain her ignorance of the true position included the Plaintiff even asserting that she may not have read an email (Exhibit A p.48) which was answering concerns she herself had raised a very brief period before (Exhibit A p.47): see T60.40-44 and then saying that she may not have read that responsive email (which contained material inconsistent with the Plaintiff’s case) out of “stupidity,” see T60.42-61.23.

6. The Plaintiff accused Ms Fifer of having solicited funds from investors using footage of the Plaintiff from an interview conducted in Australia in July 2014, and asserted it was obtained on a false basis. Ms Fifer responded to the Plaintiff that she had not used the footage for any purpose at that time. The Plaintiff continued to make that allegation against Ms Fifer on the basis of an assumption which she now recognises is false: T101.50-103.21.

7. The allegation about soliciting funding is one of a number of allegations made by the Plaintiff about and to Ms Fifer –“deceitful,” “disgusting,” “hoodwinked by,” “lacking in cultural sensitivity” and “ignorant about PNG culture” that seem to be generated by an anger concerning the documentary.

8. One thing the Plaintiff says she was not angry about so far as the film was concerned was that it was not about her: T88.30. Whilst I am inclined to think that statement is true it does not sit comfortably with her claims in this case.

9. The Plaintiff was not prepared to admit in cross-examination that she had taken a completely different position in relation to Paga Hill by 2014 from which she had taken in 2012: T91.10-20. This is asserted even when on the Plaintiff’s own evidence she had written to PHDC:

“expressing my regret that my involvement in 2012 has caused them and their families such distress and admitted that my earlier judgment was not fully informed” T91.30-T92.45,

and the Plaintiff says that she has been described as deserting the Paga Hill residents by taking up the consultancy offered to her by PHDC and retracting her previous criticisms of PHDC: T83.46-84.30.

10. The Plaintiff sought to attribute to Dimity a statement in response to the Plaintiff’s complaints about Ms Fifer’s conduct to the effect that Dimity had said “I know it’s not what we agreed” but there was an exchange of SMS messages and no SMS to that effect sent by Dimity has been put in evidence. The Plaintiff agreed her affidavit on the topic was probably misleading: T107.20. I am not persuaded that any such SMS was ever sent: see T106-107.

11. The Plaintiff asserted in correspondence that she had never given written consent (see Exhibit A p.136 para 10) even though she had signed such a document (see Exhibit A p.13) and had in July 2012 been reminded by Ms Fifer that she had: see [39] above.

Ms Fifer’s Credibility

54. Ms Fifer overall appeared to me to be an honest witness who was, in the main, willing to directly answer the questions asked of her. She made admissions even when they did not cast her in a favourable light. She was careful to ensure she understood the questions being asked. Ms Fifer admitted (as she had to do) that the visa on which she had gained entry into PNG precluded her from working (see Exhibit F) and that she had disregarded that requirement by working on the documentary in PNG: T183.10-24.

55. There are some aspects of Ms Fifer’s evidence in cross-examination which seemed to found an implicit attack on her credibility (although only (1)(b) and (3) below were raised in final submissions):

1. Her failure to correct the Plaintiff when she described Ms Fifer as a student:

1. to the Police at Paga Hill and,

2. to Ms Martens (on the Plaintiff and Ms Marten’s evidence),

2. her description of herself as a ‘student’ to Mr Gudmunder Fridriksson in circumstances I shall describe,

3. her failure to specifically respond to the Plaintiff’s accusations that she had ‘betrayed’ the Plaintiff and had taken a completely different direction for her own purposes: T197.44-200.28 and T202.42.

4. her use of a different synopsis when seeking to obtain funds on the one hand to the one used when seeking to obtain Mr Fridriksson’s agreement to give an interview,

5. her failure to specifically advise the Plaintiff that the theme of the documentary she was working on had changed,

6. her description of herself in a synopsis as ‘a protégé’ of the Plaintiff.

56. I will deal with each of these points below but I note that the cross-examination of Ms Fifer was not really directed to undermining any of Ms Fifer’s evidence concerning the conversations which she had with the Plaintiff and her other dealings with the Plaintiff through emails and SMS messages prior to May 2014. Much of Ms Fifer’s evidence about specific conversations, SMS messages and emails went unanswered by the Plaintiff, and the Plaintiff said she could recall none of the telephone conversations with Ms Fifer: see T26.41-27.6 and could not recall a number of other conversations for example T49.52, T57.13-20, T57.44-58.29.

57. Dealing with each of the numbered points above :

1. (a) The Plaintiff told Police at Paga Hill that Ms Fifer was a student and not a journalist. Literally both descriptions were true at the time and it is clear that the Plaintiff said those words to avoid confiscation of Ms Fifer’s camera by the Police. I do not see the point as weakening Ms Fifer’s credibility.

(b) The Plaintiff says she told Ms Martens, the wife of Australia’s former High Commissioner in PNG in the presence of Ms Fifer, that Ms Fifer was “following me around doing a student assignment” (para 17 Plaintiff’s second affidavit). Ms Martens corroborates that version. Ms Fifer denies that those words were used in her presence. Ms Martens was not called on to recall her conversation with the Plaintiff and Ms Fifer until April this year and she offered, without being asked she says, to make a statement after having a conversation with the Plaintiff in which the Plaintiff told her about the case. Ms Fifer gave a credible explanation as to why she was not with the Plaintiff at the time of the Plaintiff’s greeting of Ms Martens and I was left in doubt as to whose recollection was more accurate. Even accepting that the Plaintiff did tell Ms Martens in July 2012 that Ms Fifer was a student and that she was working on a student assignment I am not persuaded that this occurred in the presence of Ms Fifer. I might add that even if the words attributed to the Plaintiff were said in the presence of Ms Fifer in order to avoid the need for any formal permission being obtained for filming in the High Commission, the impact of their having been said is very limited in the context of the abundant material to which I have already referred.

2. Ms Fifer did, in an email to Mr Fridriksson of 1 October 2013 Exhibit A p.90 say:

“I was with Dame Carol in PNG last year as I was making a documentary about her time in politics for my school work.”

At T160.25 Ms Fifer admitted that her statement was not true. Later she asserted that the email was just badly written (see T167.24) but I am not persuaded by that. I think her evidence that she wanted Mr Fridriksson to see her as a new graduate in her early 20’s who was “no-one to be afraid of” (T161.35) explains why she told him an untruth.

3. It was put by Mr McClintock that the failure of Ms Fifer to correct what the Plaintiff said in her emails from 14 May 2014 onwards was a factor to take into account in assessing the veracity of Ms Fifer’s denials. Mr McClintock made reference to Thatcher v Charles (1961) 104 CLR 57, Mitchell’s Case 17 Cox’s Criminal Cases at 503, and Cross on Evidence (edited by J. D. Heydon) para 15055. In [15055] of Cross on Evidence the learned author refers to the words of Lord Esher in Weidemann v Walpole [1891] 2 QB 534 at 538 in respect of accusations made in a letter:

“[M]ust it be taken, according to the ordinary practice of mankind, that if a man does not answer he admits the truth of the charge made against him? If it were so, life would be unbearable.”

 And summarised the law as:

“the effect of a failure to reply to an accusation in a letter depends on the answer to the question whether it would be reasonable to infer an admission of truth of its contents from this fact,”

  and

“the question whether silence is to be held to have this effect must depend for its answer on the facts of the particular case.”

I do not think it is reasonable to infer an admission of truth on the facts here because:

1. Ms Fifer was concerned that a direct response would inflame the situation.

2. She was keen not to close the door on co-operation from the Plaintiff.

3. The allegations were being made by a senior PNG political figure to a young person.

4. The Plaintiff did not make the basis of her allegations clear.

5. Ms Fifer was told by a more senior person, Ms Barry, that it was best to leave future correspondence with the Plaintiff to Ms Barry which is the course Ms Fifer adopted. I think that Ms Barry’s view corroborated Ms Fifer’s approach of not responding to the broader and more antagonistic comments of the Plaintiff. Whether that was a good idea or not is not the point.

6. Further if the accusations by the Plaintiff are to be read as based on the change from a student assignment or a change from a documentary about the Plaintiff to a documentary about Paga Hill (and they are the only relevant accusations) then the wealth of material to which I have already referred must be taken into account. For example if the Plaintiff was accusing Ms Fifer of not informing her that the footage was to be used in a documentary rather than a film school assignment the evidence to which I have already referred cannot be overcome by a tacit admission that she had not informed the Plaintiff of that fact. That may just be another way of saying that any evidentiary effect of an admission, even if one could be inferred, is slight compared to the historical evidence that in fact Ms Fifer had informed the Plaintiff.

4. There was an extensive cross-examination about the various synopsises prepared by Ms Fifer for different purposes. The one sent to Mr Fridriksson and the covering email to which I have already referred could described as crafty and dissembling (although Mr Fridriksson did not, it transpired, agree to give an interview). I accept Ms Fifer’s evidence that the other synopsises were prepared for people who would understand that the synopsis was intended to be a summary of the film that the director wanted to make: see T163-164 and T196.4-16.

5. A number of questions were put to Ms Fifer about the topic of the change in the orientation of the documentary. I do not think her answers diminished her credibility- there is no doubt that her intentions changed after the Paga Hill incident on 12 May and were in the process of evolution as developments occurred: I refer to what is said in [74] below and the email at Exhibit A p.52-53 is also relevant.

6. In one synopsis Ms Fifer included the words “the action unfolds from the perspective of her protégé, friend and film maker Hollie Fifer,” (see Exhibit H). Ms Fifer was taxed over her use of the word “protégé,” at T188-189 it being put to her that she had only met the Plaintiff three times by that date (1 June 2012), once as a teenager when visiting PNG with her mother (which the Plaintiff could not remember), once in Sydney on 7 March 2012 and in May 2012. Ms Fifer explained that she wanted to become the Plaintiff’s protégé, she hoped they were friends and she “certainly thought of her as a mentor figure.” She said she thought the Plaintiff was someone “quite remarkable” T192.1-5. She was not challenged on the accuracy of her evidence in any of these respects and I am inclined to think that as at June 2012 she did respect and look up to the Plaintiff and saw herself as able to film the activities of someone who she believed would be inspiring to young people especially young women. Whilst the use of the word ‘protégé’ might involve hyperbole Ms Fifer had already explained the purpose and style of synopsises presented to potential investors and I do not regard her use of an exaggeration in the context of a synopsis as reflecting adversely on her credit.

58. Overall, whilst I was not entirely convinced that the documentary as finalised did not represent Ms Fifer’s opinions about Paga Hill (which in her evidence she said had appeared to her in 2012 as a case of human rights abuse) and whilst her approach to Mr Fridriksson to try to have him give an interview may well have amounted to dissemblance, I found Ms Fifer’s evidence concerning her interaction with the Plaintiff entirely credible and unshaken by cross-examination. I accept her evidence whenever it is in conflict with the Plaintiff’s evidence.

Ms Dimity Fifer and Ms Martens’ Credibility

59. I thought Dimity was an entirely credible witness. I have doubts as to the accuracy of Ms Marten’s recollection for the reason I have explained, and also by reason of the fact that she testified not only to what the Plaintiff said to her but also as to Ms Fifer being present within earshot at that very moment- a matter she was not asked to recall until four years after the event, and this in contrast with the very vague recollection of a conversation with the Plaintiff which she had had less than three months earlier: T129.5.

60. None of the other deponents, Mr Buri Kudu, Ms Wendy Kidu, Mr Basil Kidu, Ms Dobi Kidu, Ms Barry, and Mr William Blundell (dealing with the history of the matter from April 2016) were cross-examined and nothing was said about their evidence in final submissions. I should note that Mr Buri Kidu asserted that Ms Fifer had said to him on 10 May 2012 that she was in PNG on a student assignment and Ms Fifer denied that she had said those words to him and she, like Mr Kidu, was not cross-examined on this conversation. In view of the material to which I have already referred it is most unlikely that Ms Fifer told Mr Buri Kidu that she was there on a student assignment and once again what was in fact said by the Plaintiff or Ms Fifer or to others is of little significance in the light of what Ms Fifer wrote and said to the Plaintiff. Ms Barry was not cross-examined on her affidavit and nothing was said about her evidence in the Plaintiff’s submissions, I assume, because of the concession made in relation to the second defendant and third defendants at T67.41-42 and T6.16-29. The various letters and emails of complaint sent by the Plaintiff to the defendants from May 2014 onwards (one of which I have set out at part [47]) and the conversations between the Plaintiff and Ms Barry concerning the documentary and the pre-release screenings of the documentary at various stages of its development in 2014 and 2015 and the accommodation by Ms Barry of some of the Plaintiff’s requests for correction of content do not, in my view, have any bearing on the questions which I have to decide, save as discussed at [56] (3).

Findings of Fact

61. I make the following findings of fact:

1. Ms Fifer in her first conversation with the Plaintiff between 4 and 6 March 2012 told the Plaintiff that she, Ms Fifer, wanted to interview and film the Plaintiff for an assignment at the AFTRS which was to create a ‘pitch’ for a potential documentary, and the Plaintiff agreed to meet with Ms Fifer in Sydney for that purpose.

2. At the end of the filmed interview on 7 March 2012 Ms Fifer said to the Plaintiff:

“This interview will be used for the AFTRS pitch assignment that I have next week but I do think your story about the political coup is a much larger story and I would like to come to Port Moresby to make this a longer documentary.”

The Plaintiff said words to the effect of:

   “Yes. That would be fine.”

Ms Fifer then said words to the effect of:

“Do you have any reservations about this that we could speak about?”

The Plaintiff then said words to the effect of:

“No I don’t and you could come when parliament will be sitting at the end of March.”

3. That as at and from 7 March 2012 the Plaintiff was aware that Ms Fifer was hoping to make a lengthy documentary about the Plaintiff’s involvement in the PNG political crisis and about her home life, and that filming by Ms Fifer on and after 7 March would or could be used in a documentary that Ms Fifer was hoping to make for public release. That this was Ms Fifer’s intention was made known to the Plaintiff by the emails and SMS messages sent by Ms Fifer to the Plaintiff to which I have earlier referred and the relevant parts of which have been marked in bold.

4. That in April 2012 in Melbourne the Plaintiff was handed a release form (Exhibit A p.13) by Dimity, and that the Plaintiff read that form and signed it. I find nothing was said by Dimity to the Plaintiff other than “here’s the form that I understand you have spoken to Hollie about.” Ms Fifer had rung the Plaintiff telling her she needed a consent form to obtain ABC funding: para 31 Fifer first affidavit.

5. That on 12 May 2012 the Plaintiff encouraged Ms Fifer to film the events at Paga Hill on that day.

6. That on 12 May 2012 the Plaintiff requested footage of what had been filmed by Ms Fifer and asked for her assistance in uploading the footage to YouTube, (giving Ms Fifer a name used by the Plaintiff’s late husband to ensure anonymity). Ms Fifer did assist in the upload and it was successfully loaded at the Plaintiff’s home although it is possible that the Plaintiff was unsure if that had been successful and thought that one of her children had uploaded it.

7. That to avoid possible confiscation of Ms Fifer’s camera by PNG Police the Plaintiff told Police in the presence of Ms Fifer that Ms Fifer was only a student and not a journalist.

8. That on a visit to the home of the Australian High Commissioner the Plaintiff informed the wife of the High Commissioner that Ms Fifer was a student. That information led Ms Martens to permit filming to take place without seeking the approval of her husband.

9. That from 7 March 2012 the Plaintiff was fully aware that Ms Fifer would be taking footage for a documentary that Ms Fifer hoped she could broadcast to the public and that the Plaintiff was positive about that idea at least until July 2012 and as far as Ms Fifer knew until at least late 2013.

10. That in July 2012 the Plaintiff decided that she did not any longer want to give free access to Ms Fifer and did not want to be the focus of the documentary that Ms Fifer had been originally hoping to make.

11. That the Plaintiff did say the words ascribed to her by Ms Fifer and set out in [39] above and that those words point to a clear acknowledgment by the Plaintiff that she was aware Ms Fifer was making a documentary. The failure of the Plaintiff to respond to the reference to ABC is consistent with her having been previously made aware (as she undoubtedly was by emails and SMS messages) that Ms Fifer was looking for, and then had obtained, funding.

12. That by July 2012 Ms Fifer had decided that the Paga Hill story was an important part of the documentary she wished to make, although she still wanted the Plaintiff’s life in politics to figure in the documentary as well: see Exhibit A p.52.

13. That by July 2013 the Plaintiff was concerned about the comments she had been recorded as making concerning Paga Hill and the PHDC.

14. That by December 2013 the Plaintiff had in contemplation entering into a contract with PHDC using a company controlled by her and that in March 2014 her company entered into a contract with PHDC, by which it was to receive the equivalent of approximately $A178,000.00 (from which her company would need to make payments to subcontractors.)

15. That the first time the Plaintiff complained to anyone that she had always understood the filming to be for a student assignment was in a letter to Documentary Australia of 24 October 2014. I do not accept that the email of 14 May 2014 to Ms Fifer contains or could be understood to contain such an assertion.

16. That the Plaintiff invited Ms Fifer to film at Six Mile and told her that PHDC would pay for that filming and that she offered to organise a UN Media award for Ms Fifer.

62. I should note that even accepting the Plaintiff’s answers as honest they nevertheless lead to the conclusion that whether the Plaintiff realised it or not Ms Fifer had taken steps to adequately inform the Plaintiff of the matters contained in the emails, SMS messages and conversations. The contention that the contents of the email sent were ignored, or did not click in the Plaintiff’s mind (see for example T25.36 ) does not lead to the conclusion that Ms Fifer did not by any objective standard make clear to the Plaintiff from a very early time that the film she was making was a documentary intended for wide dissemination if funding could be obtained, later that funding had been obtained, that a professional experienced director in the form of Ms Barry and an experienced cameraman and producer were involved and that Ms Fifer had hopes to make a documentary that would have an impact in Australia and PNG.

63. I have referred to the Plaintiff’s attack on Ms Fifer both in correspondence and in the Court. There are several indications that the Plaintiff is angry with the documentary for reasons that have nothing to do with the basis on which she rests her case in these proceedings, namely:

1. That she contends that the documentary is biased because it presents PHDC in a bad light.

2. That she thinks that the documentary is factually incorrect and damaging to the reputation of PNG.

3. That the documentary presents Joe in a favourable manner.

4. That she feels that some people will, or do, think that she has “sold out” her former constituents at Paga Hill by joining forces with PHDC and receiving payment for her service, although she says she is not ashamed working with PHDC T113.4. She believes Ms Fifer is one of those who sees matters that way, and it may be that that perception cuts deep since there is no doubt that the Plaintiff welcomed Ms Fifer into her home and gave her an opportunity to film her. What may have seemed to the Plaintiff to be a nice way to finish her career in politics in PNG has turned sour for the Plaintiff because her words and actions were recorded in circumstances where they probably would not have been recorded had she not been willing to allow Ms Fifer to film her.

64. This case, I should emphasise, is not about whether the documentary is or is not biased, defamatory of the Plaintiff or anyone else, factually correct or overly favourable to Joe and unfavourable, or unfairly unfavourable to PHDC.

65. When one views the extreme weaknesses of the Plaintiff’s claim that she did not know on and from 7 March 2012 that Ms Fifer was hoping to make a documentary for public exhibition rather than a student assignment (whatever its topic) the impression gained is that the Plaintiff is prepared, for her own benefit and that of PHDC, to say anything to stop the footage taken of her by Ms Fifer being broadcast. I should note however that Ms Fifer took a more charitable view of the Plaintiff’s conduct accepting at T228.27 that the Plaintiff believed when she wrote her emails of complaint to Ms Fifer that she had not agreed to the footage being used. It is perhaps possible to reconcile the two views by regarding the Plaintiff as having convinced herself that she had not been told of matters of which she clearly was informed, just as she had in July 2012, it seems, forgotten that she had already signed a consent form: see [39] above.

The Claim in Contract

66. The conversation which the Plaintiff relies on I have found took place between 4-6 March 2012 but was in the terms deposed to by Ms Fifer (para 10 Fifer first affidavit) and set out at [50] above.

67. The Plaintiff’s case on contract is limited to that first conversation which was prior to the filming on 7 March. That was in the context of the student assignment and Ms Fifer asked the Plaintiff if she could film a short interview with the Plaintiff for the assignment. The Plaintiff agreed.

68. In Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 the High Court said (per Gaudron, McHugh, Kirby, Hayne and Callinan JJ):

[24]   “It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty." (46) To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet "[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts" (47).

[25]   Because the inquiry about this last aspect may take account of the subject matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances (48), not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the "intention to create contractual relations" requires an objective assessment of the state of affairs between the parties (49) (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word "intention" is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened(50) It is not a search for the uncommunicated subjective motives or intentions of the parties.”

69. See also for a recent application of these principles Ashton v Pratt [2015] NSWCA 12; (2015) 88 NSWLR 281, [69]-[91] per Bathurst CJ with whom McColl JA and Meagher JA agreed, a case dealing with very different circumstances I accept.

70. I am unable to accept that the parties, as a consequence of the first telephone conversation, objectively could be understood as having entered into a legally enforceable contract. If the Plaintiff had rung to withdraw her agreement for the interview on 7 March it cannot be suggested that Ms Fifer would have had any redress. The lack of enforceability, the lack of documentation, the absence of anything being said that conveyed to the other that what was promised was legally enforceable and the absence of any expression of the consideration passing between them are relevant matters: see [85], [89], [225] and [228] of Ashton as is the subject matter of the agreement, in contrast to Ermogenous where the contract was one, in effect, of employment. In my view the circumstances show that the parties did not intend, and cannot be regarded as having intended to enter into a legally enforceable contract.

71. If contrary to the view that I have reached there was a legally enforceable agreement made on that occasion it was that Ms Fifer could only use the footage obtained on 7 March for the purposes of a student assignment. It would only be what was filmed on 7 March that could contractually be precluded from use. Whether that should be precluded by an injunction would need to be considered in the light of the conversation which occurred on 7 March after filming (and on which the Plaintiff does not rely on to assert a contract) in which Ms Fifer said that she would like to make this “a much longer documentary” to which the Plaintiff expressed her consent and said she had no reservations and the execution by the Plaintiff of the consent form on 12 April 2012. That leads into the second question which is whether Ms Fifer has engaged in unconscionable conduct that would support injunctive relief.

Unconscionable Conduct

72. There was agreement between Mr McClintock and Mr Potter that the judgment of Brennan J (as his Honour then was) in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 authoritatively sets out the matters which need to be established by a plaintiff asserting unconscionable conduct by a defendant p.428-429 namely that:

(1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.  

For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant's property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff’s reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs.

Reference should also be made to what his Honour said at p.420-423 and in particular (at p.423)

“The unconscionable conduct which it is the object of equity to prevent is the failure of a party, who has induced the adoption of the assumption or expectation and who knew or intended that it would be relied on, to fulfil the assumption or expectation or otherwise to avoid the detriment which that failure would occasion”

Further regard should be had to what was said by Mason CJ and Wilson J at p.406

“The foregoing review of the doctrine of promissory estoppel indicates that the doctrine extends to the enforcement of voluntary promises on the footing that a departure from the basic assumptions underlying the transaction between the parties must be unconscionable. As failure to fulfil a promise does not of itself amount to unconscionable conduct, mere reliance on an executory promise to do something, resulting in the promisee changing his position or suffering detriment does not bring promissory estoppel into play. Something more would be required. Humphreys Estate suggests, that this may be found, if at all, in the creation or encouragement by the party estopped in the other party of an assumption that a contract, will come into existence or a promise will be performed and that the other party relied on that assumption to his detriment to the knowledge of the first party. Humphreys Estate referred in terms to an assumption that the plaintiff would not exercise an existing legal right or liberty, the right or liberty to withdraw from the negotiations, but as a matter of substance such an assumption is indistinguishable from an assumption that a binding contract would eventuate. On the other hand the United States experience, distilled in the Restatement (2d, §90), suggests that the principle is to be expressed in terms of a reasonable expectation on the part of the promisor that his promise will induce action or forbearance by the promisee, the promise inducing such action or forbearance in circumstances where injustice arising from unconscionable conduct can only be avoided by holding the promisor to his promise.”

And also to what Deane J said at p.450

“Thus, even if the doctrines of estoppel by conduct are accepted as applying to representations or assumptions about future action or inaction in the same way as they apply to representations or assumptions of existing fact, a representation or assumption which is confined to the existence of a present intention and does not exclude the possibility of future change of mind will ordinarily be inadequate to found an effective estoppel. The reason why that is so is that, even if such a representation or assumption about existing intention were false at the time when it was made, an estoppel denying departure from it would have nothing to say in relation to future conduct since an estoppel precluding departure from the representation or assumption would not preclude any future change of mind. In such a case, the mistaken party would need to rely on causes of action (e.g., fraud or negligence) in which an estoppel precluding assertion of the falsity of the relevant representation or assumption would be a hindrance rather than an aid.”

73. In my view the Plaintiff’s assertion that she was not informed by Ms Fifer of her wish and intention to make a documentary quite unconnected with the student assignment for which Ms Fifer originally contacted the Plaintiff and for which she obtained her permission to record on 7 March 2012 is without any foundation whatsoever. The evidence that the Plaintiff was put on notice of Ms Fifer’s intention and was made aware of it in conversations, emails and SMS messages, is entirely inconsistent with such an assertion.

74. I accept that both the Plaintiff and Ms Fifer originally thought that the Plaintiff would be the principal focus of the documentary even if the political turmoil in PNG was part of the documentary as well. There were however a number of reasons why the focus of the documentary which Ms Fifer was originally proposing to make did not ultimately remain on the Plaintiff and even the political turmoil in PNG and the Plaintiff was herself responsible in part at least, for that change in focus:

1. The Plaintiff encouraged Ms Fifer to accompany her to Paga Hill.

2. The Plaintiff encouraged Ms Fifer to film and tell Australia about the incidents on 12 May 2012.

3. The Plaintiff actively sought to use the footage obtained by Ms Fifer on 12 May 2012 for broad dissemination and encouraged Ms Fifer to believe that the Plaintiff wanted as much exposure of Paga Hill issues as possible.

4. The Plaintiff permitted Ms Fifer to film her meeting with Paga Hill leaders and with Dr Kristian Lasslett, and in Ms Fifer’s presence permitted Dr Lasslett, to audio record the interview as well.

5. The Plaintiff subsequently sought to restrict Ms Fifer’s access to the Plaintiff and then asked her to leave her house and did not cooperate with Ms Fifer in providing further footage of the Plaintiff except on occasions connected with Paga Hill and even then with restrictions.

6. The Plaintiff encouraged Ms Fifer to contact other PNG female politicians.

7. The Plaintiff later sought to have Ms Fifer film Six Mile and was upset when Ms Fifer declined the Plaintiff’s offer to have PHDC fund either the filming (on Ms Fifer’s evidence) or Ms Fifer’s plane trip to PNG (on the Plaintiff’s evidence) for that purpose.

75. Whatever the precise legal effect of the release form signed by the Plaintiff the fact that the Plaintiff read it, signed and handed it back to Dimity for transmission to Ms Fifer is yet another circumstance pertinent to Ms Fifer’s understanding of what she was permitted to do with whatever footage she obtained.

76. There is viz a viz the Plaintiff no conduct of Ms Fifer identified which can be described as “showing no regard for conscience; irreconcilable with what was right and reasonable” see Qantas Airways Ltd v Cameron (1996) 66 FCR 246 at p 262, nor any conduct “specifically reprehensible and repellent characterizable as unfairness” per Henry J in Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 both cited in Heydon’s Competition & Consumer Law Thomas Reuters at 170.140.

77. I am satisfied, on the balance of probabilities, that the Plaintiff knew that the focus of the documentary was, by May 2012, and then August 2012 changed from what had been envisaged originally and even more clearly by July 2013.

78. When regard is had to Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447, Australian Competition and Consumer Commission (ACCC) v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51, Attorney-General (NSW) v World Best Holdings Ltd World (2005) 63 NSWLR 557 and Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389 there is a need in a claim of unconscionable conduct to identify:

A disability or circumstance seriously affecting the ability of the innocent party to make judgment in that person’s own best interests: see Gleeson CJ at [5] and Gummow and Hayne JJ at [56] of Berbatis and see p.476-478 of Amadio per Deane J. That may be for example because of age, infirmity, inexperience, impaired faculties, financial need see Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362, 415 per Kitto J cited in Berbatis at p.64 per Gummow and Hayne JJ and p.115 per Callinan J.

And to demonstrate in the defendant:

A “high” or at least a significant or real “level of moral obloquy:” see World Best Holdings at [121] for “high” per Spigelman CJ, and Edmonds J in Australian Competition and Consumer Commission (ACCC) v Zanok Technology Pty Ltd [2009] FCA 1124 at [16] and Tonto [293] per Allsop P for “significant or real,” involving at least knowing exploitation of the special disadvantage.

79. The Plaintiff was an experienced, forthright and well-connected politician who had achieved the status of leader of the Opposition. Ms Fifer was a 25 year old recent graduate who looked up to the Plaintiff and was inspired by her. Whilst I accept that the Plaintiff had a busy life and had to deal with many issues I am unable to accept that the Plaintiff was “vulnerable” in any respect or that there was any “situational” special disadvantage, of which Ms Fifer was or should have been aware or therefore that Ms Fifer took unfair advantage of an opportunity presented by reason of a disadvantage affecting the Plaintiff: see Australian Competition and Consumer Commission (ACCC) v Samton Holdings Pty Ltd (2002) 117 FCR 301 at p.321-32 and Zanok [16].

80. The Plaintiff has not made out the claim in the pleadings that she was under a special disadvantage, or that Ms Fifer acted unconscionably towards her by filming the Plaintiff and then using the film for a documentary which, as matters have transpired, the Plaintiff does not like.

81. As a separate point the final footage involving the Plaintiff (filmed on 24 July 2014) was shot at a time after the Plaintiff’s email of 14 May 2014 to Ms Fifer when the Plaintiff even on her own evidence must have been completely cognisant of the nature of the documentary.

82. Even were I to accept that the Plaintiff had from early March 2012 a continuing belief or view about the documentary of the sort she now advances (which I do not) Ms Fifer did nothing to induce that belief or view and had no reason to believe that the Plaintiff held that incorrect belief or view. Ms Fifer has not acted against conscience by utilising the footage of the Plaintiff (filmed by Ms Fifer or at her direction) for the documentary ‘The Opposition’ and the Plaintiff is not entitled to any injunctive relief.

Conclusion

83. It follows that there should be judgment for the defendants on the Second Further Amended Statement of Claim I will hear the parties on the issue of costs and as to how the question of how any claim for damages by the defendants is to be dealt with.

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Decision last updated: 15 July 2016