Peter van Onselen breached redundancy contract with Ten in The Australian article, court finds
A decision has been handed down in the legal battle between journalist Peter van Onselen and his former employer, Network Ten.
Journalist and political commentator Peter van Onselen has received a blow in court over the civil case brought by his former employer, Network Ten.
Ten initiated urgent proceedings against its ex-political editor to the NSW Supreme Court last month, seeking a declaration Dr van Onselen had breached a non-disparagement clause in his redundancy contract when he left the broadcaster in March.
Under the clause, both sides agreed not to disparage the other or make any statement or publication which may bring the other into disrepute or ridicule, or affect their reputations.
On Friday morning, Justice David Hammerschlag ruled Dr van Onselen did in fact breach his contract in an opinion piece he wrote for The Australian newspaper on May 29.
But he stopped short of making a permanent injunction preventing Dr van Onselen from criticising Ten and its associated platforms such as Paramount, as the broadcaster had sought, due to being persuaded the breach was a “one-off mistake”.
A former host of The Project, Dr van Onselen left Ten after four years in his senior role to return to academia, after declining to move to Canberra to continue his political editor role.
He was paid out $165,000.
He went on to describe Ten in The Australian column as the “minnow of Australian commercial television”.
In the piece, he questioned the viability of Ten and its US owners Paramount, blamed ratings problems on “brand and management” and noted Paramount’s plummeting share price.
“You could choose to be a little more upbeat about Paramount (and Ten’s) future if the streaming part of the business was firing, but it’s not,” Dr van Onselen wrote.
Delivering his judgment on Friday, Justice David Hammerschlag said the article did breach the non-disparagement clause.
In his published reasons for his decision, he said the type of disparagement used in the article can “self-evidently undermine the confidence of investors or potential investors in Ten. That is not a trivial or insignificant matter”.
During the one-day hearing on June 29, Dr van Onselen’s lawyer Sue Chrysanthou SC argued her client largely repeated information that was already public in the article.
She said the injunction sought by Ten equated to a wide-ranging “lifetime order” against someone “whose profession it is to talk”.
“He would have to ensure he only speaks in glowing terms of Network Ten ... and (this) would affect his legitimacy and professionalism as a commentator and academic,” she said.
Justice Hammerschlag questioned why he signed the contract in the first place.
During cross-examination by Ten’s lawyer Arthur Moses, Dr van Onselen said he understood the clause in question meant he could not disparage Ten, but only in regards to his “employment and the (court) proceedings”.
But he acknowledged he did not read the final version of the deed of release.
“I was putting myself in the hands of my lawyer,” he said.
The court heard Dr van Onselen threatened to become a public whistleblower against Ten after he was first emailed their allegation of breaching the non-disparagement clause.
It heard he accused the broadcaster of harassing him by pushing an “invalid” clause which denied his freedom of speech.
Bizarrely, much of the hearing centred around a supposed crude joke Dr van Onselen made during a phone call with Paramount’s Human Resources Vice-President, Anthony McDonald.
Dr van Onselen told the court that during contract negotiations, he asked Mr McDonald: “I assume the deed doesn’t shut down my right to comment forever about the network … but if the CEO f***ed a goat and everyone was piling on Ten for not sacking them, surely I can pile on too”.
He alleged Mr McDonald laughed in response and said: “Of course mate, that sounds fair’.”
Dr van Onselen told the court he took that exchange as an assurance he could continue to do his job after leaving the network.
But as he was cross-examined by Ms Chrysanthou, Mr McDonald denied that conversation, saying he would remember “such extreme language” and that he did not know the details of deeds because he is “not a lawyer”.
Mr Moses accused Dr van Onselen of “making up” the conversation about the goat.
“He (Dr van Onselen) has come to court to give dishonest evidence in terms of what happened with Mr McDonald, which was plainly false, in an attempt to walk away from his obligations,” he said.
In his written reasoning remarks, Justice Hammerschlag said he believed McDonald’s version of events regarding that conversation.
He ordered the parties to exchange brief written submissions and forward them to his associate with respect to costs by July 21.
“There is no scope to make an award of nominal damages because the Summons does not claim one,” he ruled.