Amber Harrison loses battle against Seven West Media as court orders her to pay costs
Amber Harrison, the former lover of Seven West Media CEO Tim Worner, has comprehensively lost her battle against the broadcaster with the NSW Supreme Court ordering her to pay all of Seven’s legal costs.
Handing down his reasons Justice John Sackar said the case had been “scandalous” but noted he could not speak to the veracity of some of the claims that had been made during the hearings.
“These proceedings have, from the outset, been engulfed in a vitriolic atmosphere,” Sackar said.
“The allegations from both sides, whether entirely true or not, have often been personal, scandalous, and sadly ripe for media and public consumption.”
In a small and packed courtroom Sackar opened the proceedings saying the Harrison had been invited to phone in to hear the decision but she had declined.
Sackar said Harrison had pursued her case against Seven with a disregard for the implications.
“To persist in running a case without any admissible evidence to rely upon reflects a real disregard for any adverse cost consequences that naturally follow from such conduct.”
Alluding to the case of White V Overland, he said that “litigation is not a game”.
“If I may add, litigation is a serious business with serious consequences for both plaintiffs and defendants, winners and losers, alike.
“Rarely does even a successful party recoup its legal expenses, whether or not indemnity costs are awarded.”
Harrison: Signalled she was bowing out of the legal battle earlier this month
Sacker said that Harrison had every opportunity to avoid this outcome and if she had accepted an earlier offer could have avoided costs being awarded to the network.
“It’s a pity the defendant did not make a ‘realistic assessment’ of her case at an earlier stage as opposed to some five days before the commencement of this final hearing (see Tweet of 6 July 2017),” he said.
He also said that, having instructed senior barristers to represent her, he could not believe Harrison’s lawyers had not made her aware of the danger of pursuing the case with little or no evidence in her favour.
He described many of the claims by Harrison as unsupported by evidence “because no such evidence exists”.
He also rejected assertions by Harrison that her rights under contracts she had signed with Seven had been “manipulated”, saying she freely entered into the deed.
Worner: continues to enjoy support of the Seven West Media board
“With the defendant failing to honour the deed on numerous and repeated occasions, and persisting with her amended cross claim nonetheless, the plaintiffs had every entitlement to commence proceedings to protect their rights under the deed, and every entitlement to take the proceedings seriously given the reputational damage at stake,” he said.
Sackar also accepted Seven’s submission that it was not “deliberately” trying to increase legal costs and that the network had “conducted the proceedings in an entirely orthodox and proper fashion”.
In a major blow to Harrison, Sackar said he would not take her financial situation into account when ordering costs against her.
“I am also not disposed to factor in the defendant’s financial position in my determination of costs,” he said.
“The defendant’s assertion of impecuniosity as grounds for why costs orders should not be made against her is entirely unsupported by any evidence in admissible form that could be contested in court.”
He also rejected a fee waiver application sent by Harrison after the hearing on July 12 which contained evidence of her financial hardship.
“In my view, the time for filing evidence has passed, and I have not taken the material into account,” he said.
He went on to say that he had not been satisfied that he should take the “exceptional measure” of ordering each party to bear costs.
“I can only assume the defendant was given proper advice on the costs consequences of a belated capitulation in such hotly contested proceedings, and the need to devise a fall-back position regarding costs.”
Sackar also ordered Harrison to pay indemnity costs for a cross claim she filed against Seven, rejecting her claims such a move was punishing her.
“An order for indemnity costs is not, as the defendant frames it, punishing her for ‘taking a stand’, but rather necessary and appropriate to compensate the plaintiffs for the unreasonable costs incurred in these proceedings.”
Sackar took time in the judgement to deliver a scathing assessment of Harrison’s conduct since originally breaching the contract she had signed with Seven.
“Numerous epithets have been used to describe the defendant and her motivations,” Sackar said.
“I do not feel the need to join the histrionics. The evidence on any view is relevantly clear, unequivocal and largely uncontested.
“She had, and has, engaged in numerous breaches of the deed of employment contract, and these breaches have been consistent and flagrant. The allegations concerning the breaches are not, and have never been, challenged by admissible evidence in this court, although they have been the subject of what has been referred to as a media campaign waged by the defendant.”
In the minutes leading up to the decision, Harrison was active on Twitter, posting comments about the AFL’s handing of its own internal sex scandal where two senior executives have lost their jobs after having consensual affairs with other AFL employees.
“Having a relationship with a consenting work colleague should not be a sackable offence,” Harrison Tweeted.
Having a relationship with a consenting work colleague should not be a sackable offence. https://t.co/OEnnr5v9nE
— Amber Harrison (@_Amber_Harrison) July 17, 2017
How it unfolded
In mid December, Harrison contacted journalists and publishers across the country, including Mumbrella, detailing her affair with Worner which took place when she was executive assistant to then-boss of Seven West Media’s Pacific Magazines Nick Chan in 2012.
Harrison alleged the affair began to unravel when Pacific Magazine’s management operations were transferred to Seven West Media’s Pyrmont headquarters at the end of 2013 and the two had to deal with each other on a regular basis in the workplace.
This, she said, led her to have an emotional breakdown before the network launched an investigation into her credit card use in July 2014.
When Harrison left Seven acrimoniously in late 2014, she signed two deeds which entitled her to a six-figure payout, provided she did not speak out against the company or reveal details of the affair.
Harrison said the legal discussions about the financial agreement had broken down, prompting her to take the story public.
After Harrison’s allegations became national news, the board of the media company ordered an inquiry into the CEO and the sex scandal.
At the time, the board noted it continued to support its embattled CEO, but said the “independent” inquiry had been commissioned “to allay any concerns that our shareholders may have”.
Before the year was over, two TV personalities launched urgent court action to keep their names out of the public domain after a website alleged they too had engaged in affairs with Worner.
In February, the Seven West Media board cleared Worner of misconduct following the investigation by Richard Harris, a litigation and investigations partner at Allens Linklaters.
The inquiry looked into a bonus payment made to Harrison, the investigation into her corporate credit card expenses and those of Worner, allegations of drug use, the duo’s “personal yet inappropriate” relationship and allegations of other inappropriate relationships between Worner and staff.
The board said it was satisfied Mr Worner did not have any involvement in the way the company dealt with Harrison after the relationship between them became known by the company, and noted many of the other allegations could not be substantiated.
A statement from the company said Worner has been “disciplined by the chairman [Kerry Stokes] and the board and provided an undertaking this behaviour will not be repeated, as well as an apology.”
Stokes: Dealt with Worner
The board concluded “there [were] no grounds to take any further disciplinary action against Mr Worner beyond the action which was taken in 2014 when the company become aware of the inappropriate relationship”.
Harrison was quick to slam the findings, dubbing it a “whitewash” and saying it was a “green light” for male executives to “prey on female staff”.
After a series of Tweets by Harrison which included the release of emails and internal documents, Seven obtained an interim, ex parte injunction against her in the Supreme Court of NSW. The network was looking to stem the tide of documents, letters and receipts she had been releasing on social media and said she had no right to “hold, access or release” them.
In the days following the urgent court action, Seven released its financial results, which included a 27.7% drop in earnings before interest and tax on revenues of $905.1m.
The results briefing was widely anticipated as Worner’s return to the public eye, with the CEO noting despite the ongoing distractions the results – which included a 40.8% share in TV advertising revenue – were strong.
During the release of the results on 15 February, Worner said “much had been written about and discussed” since news of the affair broke, but he did not want to “give any more oxygen” to things that did or did not happen”.
A week later the network was back in court as Fairfax and News Corp requested the injunction be dropped, so they could hear Harrison’s side of the story.
Fairfax and Nationwide News – the subdivision of News Corp which publishes The Daily Telegraph – said the media companies were being thwarted in their attempts to cover the story because they could not approach Harrison for comment.
Seven however was successful in having its injunction extended in a court battle which revealed Harrison had vowed a “reign of terror” against her former lover.
During the proceedings, the network alleged Harrison had used the media to tell her story, deliberately ignoring the agreement they had in place which would have seen her paid more than $420,000. Harrison’s legal team countered that she had been left defenceless against the might of the media giant and attacks by former Victorian premier and Seven West Media board member Jeff Kennett.
The protracted legal battle then saw Stokes and Kennett condemned by Supreme Court judge Justice Robert McDougall for their interactions with Harrison – who herself had been “reckless or indifferent” to the collateral damage she was causing to others.
Kennett: Engaged in a war of words with Harrison on Twitter
“Mr Stokes and Mr Kennett likewise descended into a welter of accusation and counter accusation,” he said.
“I do not think the war Mr Kennett waged was well advised.”
By the time April rolled around, the two parties were ordered into mediation by the Federal Court over Fair Work claims lodged by Harrison against the network.
Then, once the end of the NSW-based legal action neared, Harrison announced she was bowing out.
After switching legal teams a number of times, Harrison conceded she had made a “realistic assessment of the court case” and had asked her legal team not to represent her anymore.
I have made a realistic assessment of the court case and am choosing not to run it on Monday. I’ve asked my legal team not to represent me.
— Amber Harrison (@_Amber_Harrison) July 7, 2017
At the time, Seven declined to comment.
Timeline of Amber Harrison’s legal battle with Seven:
19 December: Seven boss Tim Worner’s affair with staffer exposed as legal battle rages over payments
19 December: Seven West Media says Tim Worner will stay as boss as shares fall $100m over scandal
22 December: Seven West Media board orders inquiry into CEO Tim Worner’s sex scandal
23 December: TV stars launch court bid to keep names out of Tim Worner scandal
3 February: Seven West Media board clears CEO Tim Worner of misconduct following probe
10 February: Amber Harrison tweets emails between Worner and Seven board members relating to AFP raids
13 February: Seven takes out injunction against Amber Harrison to stop release of confidential documents
15 February: Seven earnings down as Worner delivers first results since Harrison scandal revealed
15 February: Worner returns to the public eye bullish on Seven but apologetic as Stokes steps in to take media heat
21 February: Seven and Harrison head back to court as Fairfax and News ask for injunction to be dropped
21 February: Amber Harrison vowed ‘reign of terror’ over Tim Worner, but Seven wins bid to have injunction extended
22 February: Judge criticises Stokes and Kennett over Amber Harrison media attacks
7 April: Tim Worner’s decision to quit Swans board increases pressure on Seven
28 April: Seven and Amber Harrison ordered into mediation by Federal Court
7 July: Amber Harrison concedes defeat in legal fight with Seven
Im not sure bankrupting the poor lady is the right approach. There has obviously been some poor behaviour on all sides, seems tragic that one side walks away bankrupt while the other in effect has a protective cape.
Poor outcome for 7. I wouldn’t be celebrating to hard, just feels like a big corporate hitting someone really small really hard in order to set an example for all the other skeletons in its corporate wardrobe.
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Two to tango.
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A sad sorry tale that seemed to be remarkable in many ways.
Amber H’s ability to snatch defeat from the jaws of victory being one such way.
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The sun, for sorrow, will not show his head:
Go hence, to have more talk of these sad things:
Some shall be pardon’d, and some punished:
For never was a story of more anger
Than this of Worner and his Amber.
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Don’t take on the establishment or deep-pocketed corporate world without iron-clad evidence and a better lawyer than you can probably afford…
The law is an ass and the establishment protects its own. Amber had zero chance of winning this case without concrete evidence and whoever advised her to continue (assuming of course that a legal team did) should be made to pay all costs. Lawyers must be made more accountable for the advice they give… instead of chasing fees regardless of the chances of success.
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Seven must be very proud.
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Hardly a good look for Seven in the court of public opinion regardless of who was right or wrong & whilst we are not privy to the full story it doesn’t reflect well on Seven’s culture or its legal practices that this situation was allowed to fester & to drag on to the point it did . No doubt a bunch of well fed corporate & legal types will be celebrating their victory tonight whilst a single mother ponders how she’ll pay Sevens exorbitant legal bill .. nice work guys .. you’ve done the brotherhood proud !
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Besmirched, attacked, this goliath awoke
Gnashing and snarling, dispersing the smoke
That arose from the fire,so entwined their existence
With swords and with wigs were they quelling resistance
So futile, so pointless, now licking her wounds
From the shoeing by Seven’s executive goons
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No winners out of all of this. Sad.
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She has no one to blame but herself. It takes two to tango, she is just as culpable as Worner is, she fully knew he was married. No one forced her to enter a relation, she could of walked away.
Seven compensated her on the condition she would remain silent. She accepted this but then decided to change her mind and blab to the media. It just doesn’t work that way and she is now facing the consequences.
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Test
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She absolutely has no one to blame but herself.
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I don’t know the full story. But one party sounds a bit cray-cray. And I’m all for punishing cray-cray.
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