Kyle Sandilands argues Jackie O case should not delay Federal Court bid for KIIS FM reinstatement

Kyle Sandilands’ push to fast-track his legal battle with ARN and return to the airwaves within weeks has been dealt a major blow, with the Federal Court setting down a trial for October and ruling the case cannot proceed urgently.

In a significant case management decision on Friday, Justice Angus Stewart said both Sandilands’ case and a separate lawsuit by former co-host Jackie “O” Henderson would be prepared for a joint trial, provisionally listed for two weeks from October 12.

The judge indicated the cases would likely have to be heard together, citing substantial overlap in the evidence and issues, despite arguments from both sides to keep them separate.

The ruling effectively ends Sandilands’ bid for an expedited June hearing, with the judge confirming the earlier provisional dates would be vacated.

Central to the dispute was Sandilands’ attempt to secure specific performance which is a rare legal remedy that would effectively force ARN to reinstate him to KIIS FM.

But Justice Stewart signalled early scepticism about the strength of that claim.

“As I currently see things… there are insufficient prospects of the specific performance claim succeeding,” he said.

That finding significantly contributed to the court’s decision not to fast-track the matter.

Sandilands’ barrister, Scott Robertson SC, had argued for an urgent June hearing, telling the court his client was suffering ongoing damage the longer he remained off air.

“This is not a case that’s just about money,” he said.

“Mr Sandilands wants to get back before the microphone.”

He argued Sandilands’ controversial and abrasive on-air persona was not misconduct but part of what ARN had contracted and profited from.

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

“This is not the opera singer who doesn’t want to sing.

“This is the broadcaster and performer who wants to get behind the microphone ASAP.”

ARN’s barrister, Tom Blackburn SC, strongly opposed any fast-tracked hearing, attacking the legal basis of Sandilands’ claim.

He argued the chances of specific performance being granted were “vanishingly small” and the claim itself was “close to hopeless”.

Mr Blackburn told the court the pleadings did not properly connect the alleged wrongdoing, described as unconscionable conduct, with the losses claimed by Sandilands.

He said the damages relied upon instead resembled a reputational or misrepresentation-style claim, unrelated to the alleged conduct underpinning the case.

“That claim must fail at the outset,” he said.

A key issue for the court was whether Sandilands’ case should proceed separately from Henderson’s.

Both presenters are suing ARN and its subsidiary Commonwealth Broadcasting Corporation after their $100 million, 10-year contracts were terminated following a public on-air clash in February.

Henderson has claimed she was subjected to “persistent and relentless bullying” and left “psychologically unwell”, seeking up to $82 million.

While both sides initially resisted combining the matters, Justice Stewart indicated the practical reality pointed toward a joint hearing.

The court heard there was significant overlap in the underlying conduct, key witnesses, contractual interpretation and ARN’s cross-claims for lost advertising revenue.

The judge also rejected, at this stage, a proposal to split the proceedings into separate liability and damages hearings, citing the risk of overlapping evidence.

“It seems to me… there is likely overlap in the evidence on all the issues,” he said.

Henderson’s barrister Vanja Bulut told the court her client did not want to be forced into extended courtroom proceedings alongside Sandilands.

“My client’s preference is not to be in a closed space for weeks on end,” she said.

Ms Bulut emphasised Henderson had not brought a claim against Sandilands personally, but against ARN, and argued her case – based on workplace rights under the Fair Work Act – involved fundamentally different legal questions.

However, ARN argued the overlap in factual issues, particularly around the nature and impact of Sandilands’ conduct, made it impractical to separate the cases.

Justice Stewart ordered both matters to proceed on a common timetable, with the next phase focused on completing pleadings and filing evidence.

The judge said he would revisit the question of whether the cases should be heard together after that material was filed, but indicated the current expectation was that they would proceed jointly.

For now, both matters will be prepared on the basis they will be heard together in October, with the possibility of concurrent or consecutive hearings to be determined later.

This morning, Sandilands made a theatrical arrival at court in a black Rolls Royce, greeted by a large media scrum.

Asked if he had a message for ARN, he said: “Put me back on the radio, let’s get the share price back up.”

There was also a moment of levity when he warned a photographer backing towards a restricted area on the court steps.

“I’m always saving one of your guys from near death,” he said.