‘You buy Kyle, you get Kyle’: Sandilands on-air antics a contractual obligation, lawyers say

Lawyers for Kyle Sandilands – one half of the controversial Kyle & Jackie O radio show – said he would likely admit to a number of misconduct allegations but intends to argue his behaviour was contractually required and monetised by his former employer.

Appearing in the Federal Court on Friday, 24 April, Kyle Sandilands and counsel Scott Robertson SC said the KIIS FM shock jock was prepared to admit to a string of misconduct claims that were either aired or otherwise recorded but did not make it onto the radio show.

On the latter, Robertson said the court will be able to access audio and a transcript because the show was like “Big Brother” in that every communication between Sandilands and co-host Jacqueline Henderson – professionally known as Jackie O – was recorded.

Sandilands will argue that his contract and that of his company, Quasar Media Services, were terminated for this misconduct despite it being contractually required, and then monetised by, ARN Media and the Commonwealth Broadcasting Corporation (CBC).

“If you buy Kyle, you get Kyle,” Robertson said.

“While I don’t like this conduct, me as a citizen says that it is not nice conduct … it does not amount to conduct of a kind that entitled the ARN respondents to terminate his contract.”

Friday’s case management hearing dealt with the question of having both Sandilands’ and Henderson’s proceedings heard at the same time. The court has tentatively set aside 10 days in late October.

Robertson agreed there was “certainly an overlap” in relation to the two cases, at least as far as they related to the same evidence of the alleged misconduct on Sandilands’ part, but there will be a “separate legal debate as to what that means” for each proceeding.

He did push to have the proceedings heard expeditiously, submitting that Sandilands was a “broadcaster and performer who wants to get back behind the microphone as soon as possible”.

On this issue, Robertson flagged concerns Henderson and her lawyers may not be prepared as Sandilands’ “substantial legal team”, which has apparently worked around the clock to analyse ARN’s case.

Appearing for Henderson, Vanja Bulut said her client would be at risk of further costs – particularly as her case is running in the Fair Work jurisdiction, which is no-cost – if she is made to sit through what would be “substantially longer” proceedings with Sandilands.

Bulut said Henderson’s preference was also to “not be in an enclosed space [with Sandilands] for weeks on end”.

As for expedition, Bulut said her legal team would “ensure my client’s case will be ready” at the same time as Sandilands’.

Appearing for ARN Media, Tom Blackburn SC was in staunch opposition to the proceedings running separately, citing there was “too much of a risk of inconsistent findings” being made.

For instance, the question of whether Henderson’s contract was validly terminated would be relevant to Sandilands’ contract, and the issues ventilated in the Henderson proceedings could be relevant to the decision to terminate Sandilands’ contract, Blackburn argued.

“It would be, on our submission, an entirely unsatisfactory result if the court were to find there was no valid repudiation by the Henderson parties but decide the Sandilands’ parties on the finding there was a valid repudiation,” Blackburn said.

Blackburn also raised a concern around Sandilands’ specific performance claim, which he said relies on Sandilands’ proving his loss and damage was suffered because of unconscionable conduct.

That alleged conduct is said to be ARN Media requiring Sandilands to remedy his dispute with Henderson to return to business as usual, but at the same time terminating Henderson’s contract.

On ARN’s case, the damages claimed by Sandilands “has absolutely nothing to do with the unconscionable conduct”.

“Sandilands’ damages claim is something else altogether,” he said.

“The claim for specific performance based on the unconscionable conduct fails at the outset. One can say with confidence it must be very weak … [and] there is no specific pleading that anyone is suffering any loss from not being on the radio.”

Justice Angus Stewart did not make a final decision but flagged that it was likely the cases would be heard together.

“Both proceedings can be prepared for trial, whether they proceed together or separately, on the dates I have available in the latter half of October,” Justice Stewart said.