Kidu v Fifer & Ors [2016] NSWSC 488

Kidu v Fifer & Ors [2016] NSWSC 488

The plaintiff established a serious question to be tried on her contract, promissory estoppel and unconscionable conduct claims because the disputed evidence could not be resolved on an interlocutory application and her case was not speculative. The balance of convenience favoured preserving her claimed rights pending final hearing because breach of the alleged promises would be difficult to compensate in damages, but the restraint should be limited to footage from Ms Fifer's shoots with the plaintiff, exclude material already published on the internet, and be conditional on the plaintiff providing $250,000 security and the usual undertaking as to damages.

Jurisdiction
Australia
Judgment Date
22 April 2016
Procedural Posture
Equity Interlocutory Injunction Application / Interlocutory Hearing
Outcome
Interlocutory injunction granted on terms that the plaintiff provide satisfactory security in the sum of $250,000.
Legal Topics
['interlocutory Injunction' 'serious Question to Be Tried' 'balance of Convenience' 'unconscionable Conduct' 'negative Stipulation' 'freedom of Speech' 'documentary Film Publication']
['equity' 'civil Procedure' 'contract' 'promissory Estoppel' 'australian Consumer Law'] ['interlocutory Injunction' 'serious Question to Be Tried' 'balance of Convenience' 'unconscionable Conduct' 'negative Stipulation' 'freedom of Speech' 'documentary Film Publication']

Case Brief

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Procedural Posture

Equity Interlocutory Injunction Application / Interlocutory Hearing

Legal Issues

  1. 1 ["Whether there was a serious question to be tried that the plaintiff agreed to participate in filming only on the basis that footage would be used for the first defendant's film school work and limited subject matter." 'Whether the pleaded contract, promissory estoppel and unconscionable conduct claims were sufficiently arguable to support interlocutory relief.' 'Whether the balance of convenience, hardship and related factors favoured restraining publication, distribution or exhibition of parts of the documentary pending final hearing.' 'What terms, including security and exclusions for material already published on the internet, should attach to any interlocutory injunction.']

Ratio Decidendi

The plaintiff established a serious question to be tried on her contract, promissory estoppel and unconscionable conduct claims because the disputed evidence could not be resolved on an interlocutory application and her case was not speculative. The balance of convenience favoured preserving her claimed rights pending final hearing because breach of the alleged promises would be difficult to compensate in damages, but the restraint should be limited to footage from Ms Fifer's shoots with the plaintiff, exclude material already published on the internet, and be conditional on the plaintiff providing $250,000 security and the usual undertaking as to damages.

Court Disposition

Interlocutory injunction granted on terms that the plaintiff provide satisfactory security in the sum of $250,000.

Orders

  • ["The defendants are restrained until final hearing in substantially the form sought by the plaintiff, limited to material agreed to be the subject of Ms Fifer's film shoots with Dame Carol and excluding material already published at any time on the internet." 'As a condition of the injunction the plaintiff must...