Supreme Court
New South Wales

Medium Neutral Citation:

Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 440

Hearing dates:

26-27 March 2012

Decision date:

04 May 2012

Before:

Hislop J

Decision:

1. Notice of motion filed by the defendant on 26 March 2012 dismissed.

2. The defendant pay the plaintiff's costs of the notice of motion.

3. The proceedings be listed for directions before the registrar on 9 May 2012.

Catchwords:

Torts - injurious falsehood - interlocutory injunction to restrain publication - application to dissolve injunction - no material change of circumstances

Cases Cited:

Brimaud v Honeyset Instant Print Pty Limited (1988) 217 ALR 440 at [46]
Sundararajah v Teachers Federation Health Limited (No 3) [2010] NSWSC 471 at [7]

Category:

Interlocutory applications

Parties:

Menulog Pty Limited (Plaintiff)
TCN Channel Nine Pty Limited (Defendant)

Representation:

D.R. Sibtain/L. Brown (Plaintiff)
J. Hmelnitsky (Defendant)
Diamond Conway (Plaintiff)
Johnson Winter & Slattery (Defendant)

File Number(s):

2012/85898

Judgment

Introduction

1The plaintiff, by summons filed in this court on 16 March 2012, sought an injunction against the defendant inter alia prohibiting the broadcasting or communication to the public of a television broadcast promoted by the defendant under the name "Home delivery food con".

2The summons came on for hearing before Davies J as duty judge on 16 March 2012. The defendant, at short notice, appeared and opposed the making of the orders sought.

3Davies J granted the injunctive relief sought. He noted that the defendant may wish to argue further on an interlocutory basis that the injunction be dissolved. Accordingly he stood the matter over to the duty judge's list on 21 March 2012 to enable further consideration of that matter.

4On 21 March the matter came before me as duty judge. The defendant informed the Court that it wished to argue further on an interlocutory basis that the injunction be dissolved. The matter was stood over to 26 March for that purpose.

5On 26 March 2012 the defendant, pursuant to its notice of motion filed on that date sought that "Orders 2, 3, 4(a)-(i) of the Judgment/Order made in the proceedings on 16 March 2012 be set aside."

Background

6The business operated by the plaintiff was described by Davies J in the following terms:

"4 [The plaintiff] operates an on-line business that, among other things, allows members of the public to place on-line orders for food from particular restaurants...

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."

7His Honour noted the transcript of a promotional broadcast for the programme was in the following terms:

"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."

8The only evidence before Davies J was contained in the affidavit of the plaintiff's solicitor, Mr Adelstein sworn 16 March 2012 from which the following evidence was taken.

9The first time the plaintiff knew anything about this programme or its subject matter was on 14 March at about 2:30pm when the Managing Director of the plaintiff (Mr Katz) was confronted outside his 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.

10Mr 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.

11Investigations 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. Davies J, in his judgment, set out the text of the letter which was dated 15 March 2012 as follows:

"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."

12After the letter was sent Mr Katz rang the reporter in Brisbane for the programme 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 programme was still to be aired. The reporter said that it was because he believed that there was a story.

13The 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."

14Later 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.

Further evidence

15Additional evidence has been adduced since 16 March 2012 by the solicitors for each party. That evidence, in short, is as follows:

16Mr Arvier, a journalist with A Current Affair, on three occasions utilised the plaintiff's website to place an order by clicking a listing for Vecchia Roma. On the first occasion, after placing the order, a note appeared on the website indicating the food would be delivered by Menulog's partner, Cuisine Courier. The journalist then received a message on his telephone which stated, inter alia, Menulog order confirmed by James at Vecchia Roma. The order was delivered by a delivery person from a restaurant on the Gold Coast unrelated to Vecchia Roma. Similarly, with the second order. On the second occasion, Mr Arvier said he received a phone call from a person with an Indian phone number stating he was from Menulog and inquiring if the order had gone okay. On the third occasion Mr Arvier said he was telephoned by a person who identified himself as Marlon Segal from Cuisine Courier. Mr Segal said the driver for Vecchia Roma was unavailable and inquired if Mr Arvier would be happy for a pizza to come from another restaurant. Mr Arvier agreed and the food was supplied as arranged.

17The proprietor of the Vecchia Roma restaurant said he had operated the restaurant for approximately six years. He had not given permission to the plaintiff or Cuisine Courier to list Vecchia Roma. He apparently was not asked by the defendant if Vecchia Roma had a relationship with Café on Wheels. The menu on the website was not that of Vecchia Roma and was considerably more expensive than Vecchia Roma's. He said there had been a fire at the restaurant on about 20 July 2010. It took six months for the restaurant to be rebuilt and during that time the restaurant did not trade. It would not have sold any meals on either 31 July 2010 or 14 August 2010 by reason of the fire. The restaurant was always closed on Tuesdays and as such would not have sold a meal on Tuesday 4 October 2011.

18An order was passed to a Cuisine Courier restaurant, Cinnamon on the Park, on 9 January 2012 and a possible copy order was received from a Cuisine Courier restaurant on the same evening.

19The rough cut of the proposed broadcast was tendered. It refers to the home delivery scam, an elaborate con where customers think they are ordering food from one restaurant but actually receiving it from another, that customers and Vecchia Roma were getting ripped off, and a network of dodgy deals was being exposed. The programme posed the question of who was responsible for the scam. It depicted a pizza divided in such a way as to suggest the plaintiff and/or Cuisine Courier was in a position of equal or alternate culpability.

20The agreement between the plaintiff and Cuisine Courier Pty Limited dated 22 March 2007 was placed in evidence. It had been formally terminated by the plaintiff in March 2010 but it continued to govern the relationship. It permitted Cuisine Courier to grant the plaintiff access to its database to obtain restaurant and menu information. In practice Cuisine Courier provided to the plaintiff details of the restaurants with which it had a contractual relationship and requested that the plaintiff add them to the plaintiff's website. It was an essential part of the relationship that the plaintiff did not contact Cuisine Courier's restaurants directly to check the information or otherwise. The plaintiff relied on information provided by Cuisine Courier as to the currency of the relationship between Cuisine Courier and the restaurant and as to menu and price information. The plaintiff would pass on all online orders for Cuisine Courier's restaurants to Cuisine Courier who would then take payment, collect the order, deliver the order to the customer, and pay the restaurant and the plaintiff. Once an order was placed on the plaintiff's website for a Cuisine Courier restaurant, the system sends the order to Cuisine Courier by email and it appears in the plaintiff's password restricted interface. Cuisine Courier staff then log into the plaintiff's order processing interface to process their orders from the plaintiff's website in real time. The customer is provided with Cuisine Courier's contact number to call if there are any issues with the order.

21The plaintiff made a search of its database to identify all orders sent to Cuisine Courier between 7 June 2007 and 14 March 2012 and from those orders to identify possible copy orders, that is any orders submitted to the site within two hours of the initial order and potentially to the same customer. These orders were detected by identifying the same telephone number, same name or similar delivery address. The search revealed 44,364 orders in the period from which four anomalies were identified. Two of those anomalies appear to have been the result of orders placed by the journalist, one of the remaining anomalies concerned a restaurant Cinnamon on the Park which had been removed from the website following investigation resulting from cancelled orders and there was no information in respect of the remaining anomaly.

22A search was also run on the database to identify orders placed with Vecchia Roma from the time it was listed on the website in 2009. That search revealed 22 orders, 19 of which were completed, three of which were cancelled. A manual check for any similar orders placed on the website for another restaurant on the same night, the same telephone number, same name or similar delivery address revealed only two anomalies, namely those on 5 March 2012 and 8 March 2012 which were the orders placed by the journalist.

Determination

23It was accepted by the parties that "The ordinary rule of practice is that an application to set aside, vary or discharge an interlocutory order must be founded on a material change of circumstances since the original application was heard, or on the discovery of new material which could not reasonably have been put before the court on the hearing of the original application" - Brimaud v Honeyset Instant Print Pty Limited (1988) 217 ALR 440 at [46], Sundararajah v Teachers Federation Health Limited (No 3) [2010] NSWSC 471 at [7].

24The plaintiff's action is in respect of the tort of injurious falsehood. Davies J identified the four elements of that tort as:

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

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

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

(iv) actual damage as a consequence.

Davies J concluded that each of those elements was seriously arguable on the evidence before him. The question for present determination was whether the evidence given after 16 March 2012 established that there had been a material change of circumstances such as to require that the injunction be dissolved or substantially varied. This question is considered hereunder in respect of each of the elements identified by Davies J.

A false statement of or pertaining to the plaintiff's goods or business

25The basis for the programme as presented to Davies J was a single order to one restaurant. Davies J concluded that to describe a single order to one restaurant in the language used by the defendant amounted to such a gross exaggeration as to give rise to the inference that the basis of the programme was arguably false.

26Further, it was false to suggest the plaintiff was involved in, or had knowledge of, the substitution of meals.

27Davies J held that:

"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...

...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."

28The defendant submitted there had been a material change as there were now, arguably, four instances of orders being placed for one restaurant and then subsequently being filled by food from another restaurant. Furthermore, there were 22 orders placed with Vecchia Roma from 2009 to the present. Nineteen orders were shown as completed, three cancelled. These included two during the period the restaurant was not functioning due to fire damage and one on a Tuesday when the restaurant did not open. There was thus evidence of an additional nineteen food substitutions. In those circumstances there was no basis to support a finding of gross exaggeration from which falsity could be inferred.

29The plaintiff submitted that in the scheme of things, where the plaintiff was generating $2 million of orders per month and dealing with thousands of orders per year, the change from one to four instances warranting explanation did not evidence a material change from the position before Davies J. The nineteen orders in relation to Vecchia Roma (excluding two which were orders placed by the journalist) did not evidence food substitution there being no copy orders save in respect of the orders placed by the journalist.

30The evidence did not establish a systematic scheme of food substitution. Even if it be assumed that the anomalies were not simply erroneous they did not reflect upon the behaviour of the plaintiff.

31The defendant also asserted that Vecchia Roma had been listed on the plaintiff's website since 2009 without its authority, the plaintiff was paid commission by Cuisine Courier and the prices on the menu were inflated. It submitted it was wrong to say the plaintiff had no knowledge of what happened to orders that went to Cuisine Courier as it had customer service representatives who called customers to whom the Cuisine Courier meals had been delivered.

32The plaintiff submitted there was evidence Vecchia Roma had contracted with Café on Wheels which had been purchased by Cuisine Courier. There was no contract between Café on Wheels and the plaintiff. The agreement between the plaintiff and Cuisine Courier entitled the plaintiff to put Cuisine Courier's restaurants on its website. Cuisine Courier provided the plaintiff with the listing and menu details for Vecchia Roma. There was no evidence the plaintiff was aware the menu price for Vecchia Roma supplied by Cuisine Courier was inflated by reference to the actual prices charged by Vecchia Roma. Knowledge on the part of the plaintiff cannot be inferred merely from the fact that it received a commission from Cuisine Courier.

33There was no evidence before Davies J that the plaintiff had been knowingly involved in food substition or that it had any reason to suspect it or be alerted to the possibility of its occurrence. That remains the position. No material change has been demonstrated.

Publication of the statement by the defendant to a third person

34It was common ground the promotional material was broadcast to third persons and the defendant intended, and intends, in the absence of an injunction, to broadcast the programme to third persons.

Malice on the part of the defendant

35Davies J held an intention to broadcast a programme in the terms of the promotional broadcast was arguably malicious by reason of what appeared 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 programme to the plaintiff, could equally be said to be publishing with reckless indifference to the truth of the way the plaintiff conducted and conducts its business. If there was only the one transaction, words suggesting a continuing or systematic course of wrongful behaviour are arguably malicious.

36The defendant submitted that

(a) the plaintiff's case was that the suggestion the plaintiff was involved in a scam in any way was so assuredly false that to permit any suggestion of its involvement in a scam amounted to reckless or wilful blindness as to the truth;

(b) this was not the reality as there was evidence of some nineteen substitutions with Vecchia Roma, excessive prices were listed on the Vecchia Roma menu and the plaintiff was aware of Cuisine Courier's involvement in respect of Cinnamon on the Park.

37The plaintiff submitted that Davies J concluded that the intention to publish in the face of the explanations that had been given by the plaintiff was, arguably, tantamount to reckless indifference as to the truth or falsity of the statements that the defendant intended to make about the plaintiff and its business. The evidence of the plaintiff is that subsequently an audit was conducted which revealed no misconduct on the part of the plaintiff, or notice of misconduct. The defendant's maintenance of its intention to publish, in the face of that further evidence, further supports the contention that the defendant remains recklessly indifferent, to the point of wilful blindness, as to truth or falsity. The defendant's own evidence in the rough cut of the programme leads to a conclusion that it is wilfully blind to the truth or falsity of serious allegations of misconduct by the plaintiff. On any view the defendant's evidence does not establish any misconduct on the part of the plaintiff or any knowledge by the plaintiff of any food substition by its affiliate Cusine Courier. The defendant appears not to care whether there is an innocent explanation for the anomalies of the orders that were placed or if the explanation involved some misconduct, who was responsible for it. The defendant bundles together a criticism of the offence and recklessly points the finger at everyone that may have been involved. There is simply no basis on the evidence for such a broadcast.

38I accept this submission. No material change has been demonstrated.

Actual damage

39Davies J held where injunctive relief was sought to restrain a threatened publication it would be sufficient only to establish probability of actual damage. Davies J was 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. The risk of irreparable damage to the plaintiff's business loomed large.

40The defendant submitted that if the plaintiff succeeded in its action it would recover damages to fully compensate it for its loss. Damages would be an adequate remedy and a continuance of the injunction should be refused.

41The plaintiff submitted there was evidence that it had been in business for over four years, the business had grown quickly, approximately doubling in size each year. The plaintiff currently received approximately $2 million of orders each month and was the market leader in the provision of on-line restaurant ordering services. The obvious inference is that damage to a business would result from trenchant criticism by one of the highest rating television shows on Channel 9. The inadequacy of damages arises because of the difficulty in quantification of damage particularly as the business was in growth mode.

42I accept the plaintiff's submission. In my opinion, it is probable that if the programme was broadcast actual damage to the plaintiff would result for which damages would be an inadequate remedy.

Balance of convenience

43Davies J held the balance of convenience favoured the grant of injunctive relief. 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.

44The defendant submitted that considerations of press freedom arise and must be taken into account in assessing the balance of convenience. There is difficulty in crafting an injunction that adequately protects the plaintiff's interest but does not impinge on the defendant's function as a national news broadcaster.

45The plaintiff submitted that the consideration advanced by the defendant was not applicable to a case of injurious falsehood. In my opinion, irrespective of whether regard is had to the defendant's function as a news broadcaster, the balance of convenience favours the continuation of the injunction.

Conclusion

46In my opinion the notice of motion filed by the defendant on 26 March 2012 should be dismissed and the defendant should pay the plaintiff's costs in relation thereto.

Orders

47The orders of the Court are: