The former Network Ten political editor Peter van Onselen has lost a contract breach lawsuit against his former employer over a scathing column he wrote in the Australian.
“I am persuaded that the article is a one-off mistake,” the New South Wales supreme court justice David Hammerschlag said in his judgment on Friday.
“The making of a declaration is, in the particular circumstances of this case, sufficient assuagement for Ten of its grievance.”
Ten sought a declaration that Van Onselen had breached the contract and a permanent injunction restraining him from further breaching it.
Hammerschlag on Friday declared the article was in breach but did not grant the injunction, concluding “there is no realistic risk or possibility that Dr van Onselen will, in the light of my findings, breach” the contract again.
Van Onselen quit his position in March and signed an agreement not to disparage the network or its US-based owner, Paramount, in exchange for a $71,000 redundancy payout.
The network sued the political commentator and academic over the column in the Australian months later. The piece questioned Paramount’s plummeting share price and referred to Ten as “the minnow of Australian commercial television”.
Zooming into his hearing last month from the Amalfi coast in Italy, Van Onselen said he had not read the non-disparagement clause in his redundancy contract after being reassured by the Paramount human resources executive Anthony McDonald that he could disparage Ten in various circumstances.
“I used the phrase, ‘If the CEO was caught fucking a goat and the rest of the media was piling on then surely I would not be precluded from doing the same,’” Van Onselen told the court.
“I remember Mr McDonald being reassuring and saying something to the effect of, ‘Of course, hopefully it won’t come to that.’”
McDonald told the court there had been no such conversation.
Ten’s counsel, Arthur Moses SC, questioned the commentator about the phone call, saying he was using a “fabricated” memory to “get away from the impact of the non-disparagement clause”.
When Moses asked if he had read the final redundancy document before signing it, Van Onselen replied: “No, I did not.”
He earlier claimed his legitimacy as a journalist and media commentator was at risk by the media company’s contract rules.
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His barrister, Sue Chrysanthou SC, argued the non-disparagement clause and the court order sought to never disparage Paramount or its employees were overbearing.
She said the commentator could technically be in contempt of court if he was dissatisfied with his Paramount+ streaming service and wrote an email of complaint to the company.
“It puts him in breach if he says to his mates at the pub ‘I’m surprised Network Ten purchased that program, it’s not a good program’,” Chrysanthou told the court.
“It is a lifetime order being sought against a person whose profession it is to talk, and only being able to speak about Network Ten for his entire life in glowing terms would affect his legitimacy and professionalism as a commentator and as an academic.”
Hammerschlag queried her assertion: “Well then, why did he sign it? This is a contract case.”
Ten sought a declaration that Van Onselen had breached the contract and a permanent injunction restraining him from breaching it again.
Hammerschlag did not grant the injunction, concluding: “There is no realistic risk or possibility that Dr van Onselen will, in the light of my findings, breach.”
Ten made no claim for damages but has until 21 July to submit a claim for costs to the court.
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