Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 247 (16 March 2012)

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Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 247 (16 March 2012)

Last Updated: 24 May 2012

Supreme Court New South Wales

Case Title:	Menulog Pty Ltd v TCN Channel Nine Pty Ltd
Medium Neutral Citation:	[2012] NSWSC 247
Hearing Date(s):	16 March 2012
Decision Date:	16 March 2012
Jurisdiction:	Common Law
Before:	Davies J
Decision:	Upon the plaintiff, by its counsel, giving the usual undertaking as to damages, the Court: 1. Grants leave to the plaintiff to file in Court a summons in the form initialled by Davies J, together with the affidavit of Geoffrey Adelstein sworn 16 March 2012 (the "supporting affidavit"). 2. Orders that the defendant, whether by itself, its servants or agents or otherwise be restrained, until further order, from broadcasting or otherwise communicating to the public by any means whatsoever, including via the internet, the television broadcast promoted by the defendant under the name "Home Delivery Food Con" (the "Program"). 3. Orders that the defendant, whether by itself, its servants or agents or otherwise be restrained, until further order, from broadcasting or otherwise communicating to the public by any means whatsoever, including via the internet, any promotional material or promotional broadcast concerning the Program. 4. Orders that the defendant, whether by itself, its servants or agents or otherwise be restrained, until further order, from broadcasting or otherwise communicating to the public by any means whatsoever, including via the internet, any television broadcast or other material that represents: a. That the plaintiff is involved in, or is in any way knowingly concerned in, a home delivery food con or a home delivery 'switch-a-roo'. b. That the plaintiff has substituted food ordered by any customer from a restaurant with food obtained from another restaurant, or has been involved in, or has in any way been knowingly concerned in, such a practice. c. That the plaintiff has diverted business away from any restaurant to any other restaurant. d. That the plaintiff rips off restaurant proprietors. e. That the plaintiff rips off its customers or restaurant customers. f. That the plaintiff has deceived its customers in relation to the source of food ordered by them, g. That the plaintiff has used unmarked stores for the provision of food to its customers, h. That the plaintiff has been involved in, or has been in any way knowingly concerned in, a swindle or a scam, i. That the plaintiff is Australia's restaurant rebel. 7. Directs that the summons be returnable before the Common Law Duty Judge at 10am on 21 March 2012. 8. Grants liberty to apply on 24 hours' notice. 9. Reserves the question of costs. 10. Directs that these orders be entered forthwith.
Catchwords:	TORTS - injurious falsehood - interlocutory injunction to restrain publication - serious question to be tried on issues of falsity and malice - inferences available concerning falsity and malice.
Legislation Cited:
Cases Cited:	AMI Australia Holdings Pty Ltd & anor v Fairfax Media Publications Pty Ltd & ors [2010] NSWSC 1395 Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669 Joyce v Sengupta [1992] EWCA Civ 9; [1993] 1 All ER 897 Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 Schindler Lifts Australia Pty Ltd v Debelak [1989] FCA 311; (1989) 89 ALR 275
Texts Cited:
Category:	Interlocutory applications
Parties:	Menulog Pty Ltd (Plaintiff) TCN Channel Nine Pty Ltd (Defendant)
Representation
- Counsel:	D R Sibtain (Plaintiff) J Hmelnitsky (Defendant)
- Solicitors:	Diamond Conway (Plaintiff) Johnson Winter & Slattery (Defendant)
File number(s):	2012/85898
Publication Restriction:

JUDGMENT

1. This matter came before me in the Duty Judge List seeking an urgent injunction to restrain a telecast of a program scheduled that evening less than 3 hours after the application commenced. After hearing argument from both parties I indicated that I would issue the injunctions sought and provide my reasons at a later time. These are my reasons for adopting that course.

2. Although the application was made on short notice, because there had been correspondence passing between the parties prior to the making of the application, the Defendant was present when the application was made and presented argument in relation to what was sought.

3. The background to the matter appears in a concise form in the affidavit of the Plaintiff's solicitor of 16 March 2012 as follows.

4. Menulog Pty Limited (Menulog) operates an on-line business that, amongst other things, allows members of the public to place on-line orders for food from particular restaurants. Menulog operates nationally throughout Australia and also in New Zealand.

5. Menulog has been in business for over four years. The business has grown quickly, approximately doubling in size each year. Menulog currently receives approximately $2 million worth of orders each month, and is the market leader in the provision of on-line restaurant ordering services.

6. Menulog acts as an intermediary between the public and restaurants, directing orders placed for the supply of food to the relevant restaurant.

7. In the case of approximately 98% of the orders placed with Menulog, Menulog has direct arrangements with the restaurants which supply the ordered food. In the case of those orders, the customer places an order on the Menulog internet site for the supply of food by a particular restaurant and the restaurant is notified of the order by Menulog. The restaurant, using its own delivery service, then delivers the food ordered directly to the customer, or the customer collects the food from the restaurant (in the case of a take-away order). Menulog earns a commission per order and charges this fee to the restaurant directly.

8. In addition to having direct arrangements with restaurants, Menulog also has, to a limited extent, arrangements with businesses that provide delivery services for restaurants that do not have their own delivery service. One such business is Cuisine Courier. Cuisine Courier is the proprietor of a business called "Cafe on Wheels".

9. In respect of approximately 2% of orders placed with Menulog, Cuisine Courier processes the order with the restaurant, collects the order and delivers it to the customer. Menulog earns a commission per order and charges this fee to Cuisine Courier.

10. As a result of the affiliate arrangement with Cuisine Courier, Menulog lists on its website restaurants with whom Menulog has no direct contractual arrangement. Cuisine Courier provides Menulog with a list of restaurants which it purports to represent, and Menulog lists those restaurants as restaurants with which customers may place orders for the supply of food. These restaurants have a direct contractual arrangement with Cuisine Courier, and the placement of orders with restaurants is effected entirely by Cuisine Courier. Further, Menulog relies upon the information provided by Cuisine Courier as to the restaurants with which Cuisine Courier has an arrangement and from which Cuisine Courier can supply food to customers.

11. The promotional broadcast for the program to be aired was played to the Court. A transcript of that broadcast is as follows:

Tracy Grimshaw: Tomorrow night we expose an elaborate home delivery swindle.
Here's a preview.

Voiceover: The great home delivery switch-a-roo.

[Screen text: Can you turn the camera off please]

[Screen image for remainder of broadcast: Home Delivery Food Con ]

Voiceover: On A Current Affair. You think you're ordering from your favourite restaurant, but your meal is really being made here.
Unknown interviewee: The customers are getting ripped off.
Voiceover: Even the delivery driver is part of the scam.

[Pixelated image of Dan Katz]

Voiceover: We bust Australia's restaurant rebel.

Dan Katz:: That cannot be us

Tracey Grimshaw: That story tomorrow only on ACA. Thank you for your company,
goodnight.

12. The first time the Plaintiff knew anything about this program or its subject matter was on 14 March at about 2:30pm when the Managing Director of the Plaintiff was in a meeting with a Director of the Plaintiff and another person. He was confronted outside the Plaintiff's office by a male reporter, presumably from the Defendant, who asked him whether it was good to rip off a small Brisbane-based family restaurant and rip off customers.

13. Mr Katz said that he did not know what the reporter was referring to and asked him to explain. The reporter said that there was a restaurant called Vecchia Roma in Brisbane for whom the Plaintiff was taking orders on its website but having the food delivered by a different restaurant. Mr Katz said that he had no knowledge of this restaurant or any such occurrence. He asked for the reporter's contact details so he could investigate and get back to him. Whilst this conversation was going on a cameraman was filming it, and it was the pixelated image of Mr Katz that appeared on the promotional broadcast.

14. Investigations were then instituted by the Plaintiff. When those investigations were completed a letter was sent by the Plaintiff's solicitors to the Legal Department of the Defendant. That letter provides a convenient summary of what was discovered on the investigation and what the Plaintiff had subsequently done. It is appropriate to set out the letter in full:

Dear Sir,
MENULOG PTY LTD ("Menulog")

We act on behalf of Menulog.

We are instructed that your program intends to put to air a story about our client and events concerning a restaurant known as "Vecchia Roma Italian Restaurant" located in Burleigh Heads Queensland.

Menulog has requested us to write to explain the facts of the matter so that should the story go to air there is no confusion as to exactly what has occurred. The facts are as follows:-

1. Menulog operates an on-line business that, amongst other things, allows members of the public to place on-line orders for the home delivery of food from particular restaurants who are featured on our client's site.

2. Menulog acts as an intermediary and collects a fee from the restaurant for arranging delivery of the order;

3. Menulog has affiliate arrangements with other businesses, including businesses that provide delivery services for venues that do not have their own delivery service;

4. One of the businesses with which Menulog has an affiliate arrangement is a company called "Cuisine Courier";

5. This arrangement permits Menulog to display on it's site restaurants that have contractual arrangements with Cuisine Courier for the ordering and delivery of food;

6. As a result there are restaurants listed on Menulog's site with whom Menulog has no direct contractual arrangement;

7. It appears that some years ago Cuisine Courier acquired a business known as "Cafe on Wheels" that operated a business offering delivery of food;

8. According to the restaurant owner, about five (5) years ago the restaurant known as Vecchia Roma ceased their arrangement with Cafe on Wheels. It is understood that under that arrangement Cafe on Wheels generated orders for the restaurant and handled delivery of food to customers;

9. Vecchia Roma has, until now, been listed on Menulog's website. This is a result of Vecchia Roma being a restaurant that has (as far as Menulog is aware) arrangements with Cuisine Courier (flowing from the acquisition of Cafe on Wheels). This means that Menulog does not have a direct relationship with Vecchia Roma and do not send orders to them directly;

10. The arrangement between Menulog and Cuisine Courier provides that orders are sent to Cuisine Courier who are responsible for confirming the order, picking it up and delivering it to customers;

11. Cuisine Courier has provided Menulog with the listing and menu details for Vecchia Roma. Menulog has listed Vecchia Roma on its website in good faith and in the belief that Vecchia Roma had appropriate contractual relationships with Cuisine Courier. It now appears that this may not be the case;

12. As a consequence Menulog has removed Vecchia Roma from the list of restaurant providers shown on its website;

13. Menulog's records indicate that an order for Vecchia Roma was placed on the Menulog website at 18.24 on 5 March 2012 and being a Cuisine Courier restaurant was referred to Cuisine Courier;

14. At 18.29 (Order number SVDED4), Cuisine Courier confirmed the order through Menulog's web interface;

15. The order confirmation would have triggered an auto SMS to the customer confirming delivery time;

16. Menulog has identified an order placed at 18.54 for Romana's Italian Restaurant & Pizzeria, for the same delivery address as order SVDED4. This order was placed by Cuisine Courier;

17. Menulog had no reason to believe or suspect that there was any connection between the order for Vecchia Roma at 18.24 and the order for Romana's Italian Restaurant & Pizzeria at 18.54. As far as Menulog was concerned these were two entirely different orders for different restaurants, processed along with thousands of others on that night.

Menulog now understands that the order intended to be placed with Vecchia Roma seems to have been redirected by Cuisine Courier to a different restaurant. This has only come to Menulog's attention now.

Menulog denies that it is in any way at fault in relation to the events described above. Menulog continues to investigate this matter but as far as it is able to determine this seems to be an isolated case.

Menulog has removed the Vecchia Roma listing from its site and has also removed all other Cuisine Courier delivery partner venues pending further investigation into their practices. Menulog considers this matter to be an extremely serious one, and in no way condones this behaviour.

Menulog delivers hundreds of thousands of orders directly to over 1,500 restaurants every year and is a trusted and reliable method for those restaurants to generate new business.

Menulog is merely one of many possible outlets used by Cuisine Courier to generate orders for the restaurants for whom they make deliveries. Unfortunately, even though Menulog has done everything in its power to assist Vecchia Roma, they, along with any other out of contract Cuisine Courier restaurants in a similar position may continue to have their orders diverted by Cuisine Courier.

It is clear from the facts that Menulog has not been responsible for any wrongdoing or any improper conduct in relation to these events.

Needless to say any information that is broadcast in your program that reflects badly upon our client is very likely to result in significant damage to our client's business. Accordingly, we are instructed to advise that if the story goes to air and contains any allegations or "facts" that are not in accordance with the facts as set out in this letter, or in any way misrepresent the facts, then our client will take such action as it is advised to seek compensation for any damages suffered as a consequence.

15. After the letter was sent Mr Katz rang the reporter in Brisbane for the program to ask if he had received the letter. The reporter said that he had, and he asked Mr Katz if he intended to terminate the agreement with Cuisine Courier. Mr Katz said that he did not think that was relevant but he had removed Cuisine Courier's venues from their site pending a response from them and pending the Plaintiff's further investigation to assess whether there were any other venues or orders where a similar situation had occurred. Mr Katz asked if the program was still to be aired. The reporter said that it was because he believed that there was a story.

16. The following day the Plaintiff's solicitors wrote again to the Legal Department of the Defendant as follows:

Dear Sir,

MENULOG PTY LTD ("Menulog")

We refer to our letter 15 March 2012 addressed to the Legal Department and sent by email at 5.08 p.m. and which we note was accessed by Mr Tim Arvier shortly thereafter, although we note there has been no formal response. That letter made clear that the incident in question occurred through no fault of our client. From the tenor of a promotional broadcast last evening by Ms Grimshaw from A Current Affair, there is to be suggested in tonight's program that our client engaged in systematic and deliberate substitution. That suggestion is entirely false.

The promotional broadcast made by Ms Grimshaw last evening states unequivocally that the story involves "an elaborate home delivery swindle". The promotion includes footage of Mr Dan Katz, a Director of our client. There is a clear inference that Mr Katz and our client are involved in this "swindle".

Our letter made clear our client's position and its innocence in the situation that occurred. We require your assurance that the program will not include material that is highly critical of the services provided by our client and that no such material will be broadcast. If we do not have your confirmation by 2 p.m. today we put you on notice that we will be applying to the Supreme Court of NSW for an injunction without further notice.

Menulog is the market leader in the provision of online restaurant take-away services, processing an excess of $2m per month of take-away orders. Our client is of the view that the broadcast of any program which suggests that Menulog in any way was knowingly concerned or otherwise involved in the switching of take-away meals, or a home delivery swindle would be highly damaging and entirely without foundation. For this reason we require your assurance by the deadline, failing which we will proceed as indicated.

17. Later that day the Plaintiff's solicitors wrote again to the Legal Department of the Defendant requesting as a matter of urgency a copy of the proposed broadcast by 2pm on that day. It was not provided. The application was made to the Court at about 3:15pm.

18. The Defendant did not tender a copy of the proposed program broadcast at the hearing of the application. I enquired if the program would range wider than the incident involving the Vecchia Roma restaurant but Mr Hmelnitsky for the Defendant was unable to tell me.

19. The Defendant did not suggest that, by reason of the timing of the application, it was not in a position to tender the proposed broadcast as evidence on the application. Bearing in mind that the broadcast was due to go to air within 2 - 3 hours of the application's being made it seems unlikely that it would not have been possible for the Defendant to produce it if it had wanted to do so.

20. The application was put on the basis that what was sought to be restrained was an injurious falsehood. It was said that, if the program was broadcast, it would convey the following false representations:

a. That the Plaintiff is involved in, or is in any way knowingly concerned in, a home delivery food con or a home delivery 'switch-a-roo'.

b. That the Plaintiff has substituted food ordered by any customer from a restaurant with food obtained from another restaurant, or has been involved in, or has in any way been knowingly concerned in, such a practice.

c. That the Plaintiff has diverted business away from any restaurant to any other restaurant.

d. That the Plaintiff rips off restaurant proprietors.

e. That the Plaintiff rips off its customers or restaurant customers.

f. That the Plaintiff has deceived its customers in relation to the source of food ordered by them.

g. That the Plaintiff has used unmarked stores for the provision of food to its customers.

h. That the Plaintiff has been involved in, or has been in any way knowingly concerned in, a swindle or a scam,

i. That the Plaintiff is Australia's restaurant rebel.

21. In relation to whether an injunction should issue at all in the type of case such as the present, the authorities have distinguished between cases of defamation and cases where injurious falsehood is claimed. The usual restraint exercised for the grant of injunctive relief in defamation cases does not apply with the same force in cases of injurious falsehood: AMI Australia Holdings Pty Ltd & anor v Fairfax Media Publications Pty Ltd & ors [2010] NSWSC 1395 at [39]; Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 at [58].

22. In AMI Brereton J identified at [29] the 4 elements of the tort of malicious falsehood as follows:

(1) a false statement of or pertaining to the plaintiff's goods or business;

(2) publication of that statement by the defendant to a third person;

(3) malice on the part of the defendant; and

(4) actual damage as a consequence.

23. Argument before me focussed on the first and third of those elements and, in particular, on the issue of malice and whether the Plaintiff had shown that there was an arguable case of malice. The Defendant correctly submitted that, unlike in defamation, in injurious falsehood the Plaintiff bears the onus of proving falsity. In that regard it is worth considering what Brereton J said in AMI :

[30] In injurious falsehood, unlike in defamation, the plaintiff bears the onus of proving falsity [ Palmer Bruyn , 406 [58]]. From time to time, AMI's submissions slipped into the form that there was no evidence to support or justify an imputation, and therefore that it was false. This is not the way in which the tort of injurious falsehood works; unlike in defamation, where it is for a defendant to justify an imputation, in injurious falsehood the plaintiff must prove the imputation to be false. However, the absence of evidence to justify a falsehood is not without significance: where there is nothing to justify it, it may take very little to establish, on balance, that the imputation is false.

24. In relation to the issue of malice Brereton J said:

[31] Again unlike in defamation, in injurious falsehood malice is also an essential element of the cause of action, to be proved by the plaintiff. While the notion of "malice" in the context of this tort is not easy to define [ Schindler Lifts Australia Pty Ltd v Debelak [1989] FCA 311; (1989) 89 ALR 275, 291 (Pincus J)], it is a question of motive, intention or state of mind and it involves the use of an occasion for some indirect purpose or indirect motive such as to cause injury to another person [ British Railway Traffic & Electric Co Ltd v CRC Co Ltd & London County Council [1922] 2 KB 260, 269; Browne v Dunn (1893) 6 R 67, 72; Dickson v Earl of Wilton [1859] EngR 26; (1859) 1 F&F 419, 427; [1859] EngR 26; (1859) 175 ER 790; Stuart v Bell [1891] 2 QB 341, 351; Shapiro v La Morta [1923] All ER Rep 378; Schindler Lifts Australia Pty Ltd v Debelak , 291]. The English Court of Appeal has said that the criteria for malice in injurious falsehood are the same as at common law for libel and slander [ Spring v Guardian Assurance PLC [1993] 2 All ER 273, 288; reversed on other grounds Spring v Guardian Assurance PLC [1995] 2 AC 296]]. Its content has been variously described as "an intent to injure another without just cause or excuse" or "some indirect, dishonest or improper motive" [J Fleming, The Law of Torts , 9th ed (1998) LBC Information Services at 780; Palmer Bruyn , 423 [108] (Kirby J)], or "a purpose or motive that is foreign to the occasion and actuates the making of the statement" [cf Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, 30; [2002] HCA 57, [75] (Gaudron, McHugh & Gummow JJ)]. It involves that the statement was made mala fide or with a lack of good faith. In this context, while a person who acts in good faith is not liable [ Joyce v Sengupta [1992] EWCA Civ 9; [1993] 1 All ER 897], malice may exist without an actual intention to injure [ Wilts United Dairies Ltd v Thomas Robinson Sons & Co Ltd [1957] RPC 220; Wilts United Dairies v Thomas Robinson [1958] RPC 94].

[32] As motive must often be inferred from what the defendant did or said or knew, malice is commonly proved by inference [ Horrocks v Lowe [1974] 1 All ER 662, 669 (Lord Diplock)]. Malice may be inferred from the "grossness and falsity of the assertions and the cavalier way in which they were expressed": Joyce v Sengupta , 905-6. Proof that the defendant knew that a statement was untrue is ordinarily conclusive evidence that its publication was actuated by an improper motive [ Roberts v Bass , 31 [76]]. On the other hand, mere lack of affirmative belief in truth is insufficient of itself to establish malice [ Roberts v Bass , 31 [78]]. But malice can be inferred not only where the false publication was made with knowledge of its falsity, but also where it was made with reckless indifference as to whether it was true or false.
...

[36] In my opinion, the above authorities establish that although mere carelessness or lack of honest belief in the truth of what is published is not conclusive of malice [ Roberts v Bass , [78]], reckless indifference as to the truth of what is published, as well as knowledge of its falsity, will justify an inference of malice.

25. In the absence of a viewing of the program itself it is necessary principally to rely upon what is contained in the promotional broadcast and the surrounding circumstances to determine whether or not what will be broadcast will be false, and whether malice is demonstrated. Since what is being sought is an interlocutory injunction it is necessary only for the Plaintiff to show that there is a serious question to be tried about these matters.

26. It is reasonable to assume, in this context, that the program is based upon the incident involving the Vecchia Roma restaurant because when Mr Katz asked the reporter to explain what he was talking about the reporter identified that restaurant. Further, the reporter said "An order for Vecchia Roma was delivered by another restaurant." It is reasonable to infer from those comments that one incident is being spoken about. That appears also to be borne out by the investigations carried out by the Plaintiff which discovered an order for that restaurant at 18:24 on 5 March 2012 and then a subsequent order at 18:54 on for another Italian restaurant for the same delivery address as the earlier order, this latter order being placed by Cuisine Courier.

27. Bearing in mind that in a conversation between the reporter and Mr Katz on 14 March all that was referred to was one restaurant and one order, statements such as "an elaborate home delivery swindle", "the great home delivery switch-a-roo", "the customers are getting ripped off" and "Australia's restaurant rebel" amount to such gross exaggerations of what the reporter suggested was the basis for the program can arguably be inferred to be false. Further, words such as "swindle", "ripped off" and "scam" almost necessarily imply fraud and dishonesty. When one bears in mind the way the Plaintiff's business operates, and bearing in mind the detailed explanation for what was discovered about the order placed with the restaurant Vecchia Roma involving nothing more than hits on the Plaintiff's website, there is a strongly arguable case that what is contained in the promotional broadcast and, therefore, what is likely to be contained in the full broadcast, are false statements pertaining to the Plaintiff's business. I note in particular the statement of Brereton J in AMI at [30] that:

...the absence of evidence to justify a falsehood is not without significance: where there is nothing to justify it, it may take very little to establish, on balance, that the imputation is false.

28. The Defendant argued that the Plaintiff was involved in the incident concerned by virtue of its contractual arrangement with Cuisine Courier, and accordingly that there was no falsity in the claims made. It said that the two transactions occurred by means of arrangements to which the Plaintiff is a party. The Plaintiff had taken a fee for the two orders that were placed. The Defendant responded to the suggestion that the Plaintiff knew nothing of the problem involving that restaurant until confronted by the Defendant's reporter on 14 March by saying that the affidavit material only showed that the Managing Director did not know of it. The Defendant suggested that the Plaintiff had knowledge of it because it was advertising the restaurant on its website to enable orders to be placed at that restaurant.

29. It is apparent that the purpose of the program was to demonstrate wrongdoing on some person's part ("swindle", "switch-a-roo" "ripped off", "scam"). By the approach made to the Plaintiff it is a reasonable inference that the Plaintiff is the object, or one of the main objects of attention. The evidence discloses that the Plaintiff, through its website, was the passive recipient of orders placed, which orders were electronically transferred to Cuisine Courier without any knowledge on the Plaintiff's part of what happened thereafter in relation to those orders. The fact that the Plaintiff was entitled to receive a fee by virtue of its contractual arrangements with Cuisine Courier does not elevate the Plaintiff's knowledge or involvement in what happened, nor does it remotely implicate (in the commonly understood meaning of the word) the Plaintiff in any fraud, dishonesty or other turpitudinous behaviour described by the words I have mentioned.

30. Malice may be inferred from the "grossness and falsity of the assertions and the cavalier way in which they are expressed": Joyce v Sengupta [1992] EWCA Civ 9; [1993] 1 All ER 897 at [905]. Reckless indifference as to the truth of what is published as well as knowledge of its falsity will justify an inference of malice: Palmer Bruyn at [192] - [194]; Schindler Lifts Australia Pty Ltd v Debelak [1989] FCA 311; (1989) 89 ALR 275 at 291.

31. It seems to me that in the face of the material provided by the Plaintiff to the Defendant in its letter of 15 March 2012, particularly seen in the light of what the Defendant's reporter claimed was the basis of his statements and questions, an intention to broadcast a program in the terms of the promotional broadcast is arguably malicious by reason of what appears to be the Defendant's reckless indifference to the truth concerning the way the Plaintiff operated its business, that transaction and any others that the Defendant intended to rely on. If there were other transactions intended to be relied upon, the failure of the Defendant to provide any information about those, including providing an advance copy of the program to the Plaintiff, can equally be said to be publishing with reckless indifference to the truth of the way the Plaintiff conducted and conducts its business. If there is only the one transaction, words suggesting a continuing or systematic course of wrongful behaviour ("elaborate...swindle", "great home delivery switch-a-roo". "scam") are arguably malicious.

32. None of this is to shift the onus to the Defendant. The proof of falsity and malice remains always with the Plaintiff. Nevertheless, it may be easier to infer these matters if the Defendant choses to act in particular ways including not adducing any evidence or being prepared to disclose the full content of the program to be broadcast. At least on an interlocutory basis inferences may more easily be drawn that there is a serious question to be tried on the issues of falsity and malice. I have found that there is such a serious question to be tried on these matters.

33. In relation to actual damage, I accept what was said by Brereton J in AMI at [38] and also by what was said by McCallum J in Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669 at [169] that where injunctive relief is sought to restrain a threatened publication it will be sufficient only to establish probability of actual damage. I am satisfied that if this broadcast had gone to air there was a reasonable probability of actual damage to the Plaintiff's business through the adverse publicity it would bring by reason of the doubt that would be placed in the minds of those who might avail themselves of the Plaintiff's business in the future.

34. The Defendant accepted that if malice was able to be demonstrated, or at least that there was a serious issue to be tried with regard to malice, the balance of convenience favoured a short period of time where the broadcast was enjoined. That concession was properly made. No prejudice was argued or shown that delaying this broadcast would detrimentally affect the Defendant. On the other hand, the risk of irreparable damage to the Plaintiff's business loomed large.

35. As to the future course of the proceedings, the Plaintiff argued that arrangements should be made for a final hearing in the matter, and that a longer period of adjournment should be granted. The Defendant argued that, after being able to consider the matter at greater leisure than had been allowed by the urgent application, it may well wish to argue further on an interlocutory basis that the injunction should be dissolved. In the circumstances I stood the matter over to the Duty Judge's list on 21 March 2012 to enable further consideration of that matter.

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