AAMAC Warehousing and Transport Pty Limited v Fairfax Media Publications Pty Limited

[2009] NSWSC 1030

CITATION:	AAMAC Warehousing & Transport Pty Limited & Ors v Fairfax Media Publications Pty Limited & Ors [2009] NSWSC 1030
HEARING DATE(S):	24 September 2009
JUDGMENT DATE :	28 September 2009
JURISDICTION:	Equity
JUDGMENT OF:	Slattery J at 1
DECISION:	ORDERS: (1) The plaintiffs fail on their fresh application for injunctive relief against the defendants filed on 25 September 2009. (2) The plaintiffs fail on their application for restraints against the publication of the South Pacific representation and the criminal affiliation representation. (3) Dismiss the plaintiffs’ Notice of Motion dated 25 September 2009
CATCHWORDS:	EQUITY - equitable remedies - injunctions - ex parte injunction against publication discharged for the plaintiffs' deliberate non-disclosure - temporary stay granted - fresh application for injunction - plaintiffs' claim for injurious falsehood and misleading and deceptive conduct - no serious question to be tried on issues of malice and the application of s 60 Fair Trading Act - in substance a claim for defamation - defendant propses to defend - caution in interfering with defendants' right of free speech by prior restraint - injunction declined.
LEGISLATION CITED:	Fair Trading Act Trade Practices Act
CATEGORY:	Principal judgment
CASES CITED:	ACCC v Channel 7 Business Pty Limited [2009] HCA 19 ACCC v Chen [2003] FCA 897 Australian Broadcasting Corporation v O’Neill [2006] HCA 46 Australian Home Loans Limited (t/as Aussie Home loans) v Phillips (1998) 40 IPR 392 Gross v Weston [2007] NSWCA 1 Kaplan v Go Daddy Group [2005] NSWSC 636 Kolback Securities v Epoch Mining NL (1987) 8 NSWLR 533 Palmer Bruyn & Parker Pty Limited v Parsons (2001) 208 CLR 388 Roberts v Bass (2002) 212 CLR 1 Stocker v Mc Elhinney [No 2] (1961) NSWR 1043 Swinsure Laboratories Pty Limited v McDonald (1979) 2 NSWLR 796
PARTIES:	First Plaintiff: AAMAC Warehousing & Transport Pty Limited (ACN 100 947 091) Second Plaintiff: Peter Panayi Third Plaintiff: Bruce Clark First Defendant: Fairfax Media Publications Pty Limited (ACN 003 357 720) Second Defendant: Linton Besser Third Defendant: John Fairfax Limited (ACN 008 396 585) Fourth Defendant: Fairfax Media Limited (ACN 008 663 161)
FILE NUMBER(S):	SC 3397/09
COUNSEL:	Plaintiffs: Mr P E King Defendants: Mr A T S Dawson
SOLICITORS:	Plaintiffs: McKell's Solicitors Defendants: Johnson Winter & Slattery

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

MONDAY 28 SEPTEMBER 2009

3397/09 AAMAC WAREHOUSING & TRANSPORT PTY LIMITED (ACN 100 947 091); PETER PANAYI & BRUCE CLARK v FAIRFAX MEDIA PUBLICATIONS PTY LIMITED (ACN 003 357 720); LINTON BESSER; JOHN FAIRFAX LIMITED (ACN 008 396 585) & FAIRFAX MEDIA LIMITED (ACN 008 663 161)

JUDGMENT

HIS HONOUR:

Introduction:

1 On Monday 21 September 2009 I delivered my principal judgment in this matter, discharging injunctions that had been obtained by the plaintiffs ex parte on 24 June 2009. The ex parte injunctions were discharged because of the plaintiffs’ material non disclosure. Findings relating to the plaintiffs’ non disclosure are set out in the principal judgment. The principal judgment concludes that aspects of the plaintiffs’ non disclosure had been deliberate. I granted a temporary stay on these discharge orders. The plaintiffs have now brought a fresh application for injunctive relief in terms similar to the ex parte relief. The issue for determination in this judgment is whether injunctive relief should be granted on that fresh application.

2 Full background facts are set out in the principal judgment. To understand the issues to be considered on this fresh application some other specific background is necessary.

3 The ex parte injunctions restrained the defendants from publishing certain material concerning the plaintiffs. The terms of the ex parte injunctions were:

“1. The defendants be restrained from publishing or causing or permitting to be published any material or information of or concerning the plaintiffs to the effect that the plaintiffs or one of them is knowingly involved in or knowingly has affiliation with gangland or criminal activities by or through the operation of the first plaintiff’s business of clearing, handling and transportation of containers and goods from Sydney Wharves up to and including 5.00pm tomorrow 25 June 2009.

2. The defendants be restrained from publishing of causing or permitting to be published any material or information of or concerning the second and third plaintiffs to the effect that they are persons who are knowingly involved in or knowingly have affiliation with the conduct of pleasure cruises on the vessel “The South Pacific ” during which the services of prostitutes are knowingly provided or made available by the plaintiffs or one of them, up to and including 5.00pm tomorrow 25 June 2009.”

4 This judgment adopts the terminology in the principal judgment and describes the restrained publications in order 1 as the “criminal affiliation representation”. The restrained publication in order 2 is described as the “South Pacific representation

5 The principal judgment identified that a short stay on the orders discharging the injunctions might be needed until 5.00pm on Wednesday 23 September 2009 to permit the plaintiffs to seek leave to appeal. After a contest on that issue at the time of delivering the principal judgment, a stay was granted until 5.00pm on Thursday 24 September 2009.

6 On the morning of Thursday 24 September 2009 the plaintiffs sought an extension of the stay until Tuesday 6 October 2009. In the alternative they sought a stay until Monday 28 September 2009. In a judgment delivered at about midday on 24 September 2009 I declined to extend the stay, unless the plaintiffs filed and served an application for leave to appeal against my principal judgment by 5.00pm that same day, Thursday 24 September, 2009. If an application for leave to appeal were filed, the existing stay would be extended until 5.00pm on Friday 25 September 2009 to permit the plaintiffs to approach the Court of Appeal for an extension of the stay.

7 At about 3.30pm on Thursday 24 September 2009 the Court reconvened on the plaintiffs’ application. At this reconvened hearing the plaintiffs counsel, Mr King, indicated that the plaintiffs were in the course of filing an application for leave to appeal. The filing of this application would have the consequence that the stay would automatically be extended until 5.00pm the following day. Mr King also indicated that within that period that the plaintiffs proposed to file a fresh application for injunctions in nearly identical terms to those the subject of the discharge orders in the principal judgment. Mr King foreshadowed that he had an amended form of injunction application ready for that purpose.

8 At this reconvened hearing Mr Dawson, for the defendants, opposed any further extension of the injunction. Mr King requested that I determine the plaintiffs’ fresh application. It was desirable that this be determined quickly. I asked whether either party objected to my determining the fresh application, given that I had made serious findings adverse to the plaintiffs in the principal judgment. Neither side objected to my doing so.

9 The plaintiffs requested that I determine the fresh application on the basis of the submissions and evidence that had been advanced at the time of the contested interlocutory hearing on 25, 26, 29 and 30 June 2009. The defendants agreed to this course. Both parties accepted that in determining the fresh application that I could take into account my findings in the principal judgment including the findings of non disclosure. If the fresh application were filed I indicated to the parties that I would endeavour to give judgment on it the following day. To that end I directed the parties to provide to the Court any brief supplementary note of their submissions on the fresh application that evening. I also directed that the plaintiffs provide a copy of the fresh application to the Court and to the defendants.

10 It was not possible to decide the fresh application the following day. I indicated to the parties that judgment would be delivered at 9.30am on Monday 28 September 2009. The defendants opposed any extension of the existing stay beyond 5.00pm on Friday 25 September 2009. They put short argument to that effect on the afternoon of 25 September 2009. In the result the matter was listed for judgment at 9.30am on Monday 28 September 2009 and I extended the stay until the conclusion of any hearing associated with the judgment.

11 The relationships of the parties have already been described in the principal judgment. The first plaintiff AAMAC Warehousing & Transport Pty Limited (“AAMAC”) provides warehouse, transport and container handling services on the waterfront of Sydney Harbour. The second plaintiff, Mr Peter Panayi is, with his brother, a 50 % shareholder in AAMAC. He also performs functions as a workshop manager in AAMAC’s business which is conducted from Homebush Bay. AAMAC employs the third plaintiff, Mr Bruce Clark, as a sales manager.

12 The first, third and fourth defendants are responsible for the publication of the Sydney Morning Herald, The Age and other printed and online publications in the Fairfax stable of publications. The second defendant, Mr Linton Besser is a journalist employed by the other defendants.

The Issues on the Fresh Application

13 With one additional issue, the issues being presented on the fresh application are the same as those relied upon by the parties in their previous submissions when they were seeking an extension of the ex parte injunction. In the principal judgment I discharged the ex parte injunction for non disclosure, so it did not become necessary to consider any issues relating to its extension. The fresh application requires me to consider those issues. The additional issue is the effect that my findings of non disclosure in the principal judgment have on my exercise of discretion on the fresh application. The fresh application seeks orders in the following terms:

“An order restraining the Defendants/Respondents by its servants or agents from publishing or causing or permitting to be published any material in the Sydney Morning Herald or The Age newspapers or any other publication, or information of or concerning the Plaintiffs/Applicants or one of them causing injurious falsehood to the effect that:

(a) The first and/or the second and/or the third named Plaintiffs/Applicants are knowingly involved in or knowingly have affiliation with gangland or criminal activities by or through the operation of the First Plaintiff’s/First Applicant’s business of clearing and handling containers and goods from Sydney wharves.

(b) The Second and/or Third named Plaintiffs/Applicants are involved in the conduct of pleasure cruises on “The South Pacific” during which the services of prostitutes are knowingly provided.”

14 The plaintiffs’ and the defendants’ written submissions on the fresh application raise the following issues for decision:

a whether there is a serious question to be tried in relation to the plaintiffs cause of action for injurious falsehood;
b whether there is a serious question to be tried in relation to the plaintiffs’ cause of action under section 44 Fair Trading Act
c if there is a serious question to be tried, is this in substance an action for defamation such that there are special discretionary reasons why an injunction should not be granted;
d are there any other discretionary factors, such as the findings of non disclosure made against the plaintiffs in the principal judgment that tell against the grant of an injunction; and
e the balance of convenience.

15 The parties contest all five of these issues. They are dealt with in this judgment in this order.

The Injurious Falsehood Claim

16 The plaintiffs rely upon the tort of injurious falsehood. The defendants submit that there is no serious question to be tried on this cause of action because there is no evidence to show that several of the elements of the tort can be made out.

17 There are four elements in the action of injurious falsehood which must be established to make out the tort: (1) a false statement of or concerning the plaintiff’s business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant; and (4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement: see Palmer Bruyn & Parker Pty Limited v Parsons (2001) 208 CLR 388 at [52] per Gummow J.

18 Three of these four elements were in contest on this application. The plaintiffs have provided sufficient evidence to show that the defendants propose to publish each of the South Pacific and the criminal affiliation representations. That can be inferred from the nature of the dispute now before the Court. The remaining issues between the parties are the elements of falsity of the representations, malice and actual damage.

Falsity

19 When the ex parte injunctions were obtained the plaintiffs’ two witnesses, Mr Clark and Mr Panayi gave oral evidence as to the falsity of both the South Pacific and the criminal affiliation representations. The contest about the plaintiffs’ non disclosure on the ex parte application, on which the defendants were successful, focussed on evidence proving the truth of both the South Pacific and the criminal affiliation representations. However the evidence adduced by the defendants so effectively in relation to the plaintiffs’ non disclosure, did not go so far as to establish the truth of the representations beyond contest. There is a serious question to be tried on that issue.

20 The defendants’ arguments to the contrary of this conclusion are based on criticism of the quality of Mr McKell’s hearsay evidence about the falsity of the representations. The defendants’ argument appears to overlook the direct oral evidence of Messrs Panayi and Mr Clark on the issue of falsity on 24 June 2009. The defendants’ real point in relation to falsity is not that they have already established the truth of the representations beyond argument but that the picture presented by the cross examination of Mr Clark is so close to the substance representations that it does not warrant equity’s intervention. This is discussed below in relation to the discretionary considerations that are engaged here, in an action analogous to a defamation action.

Malice

21 Malice is the element on which the plaintiffs have greatest difficulty in showing that there is a serious question to be tried. The plaintiffs submit that there is some evidence of malice. The plaintiff alleges several matters to make out malice.

a Mr Besser’s recklessness in his dealings with Mr Clark.
b Mr Bessers’s arrogance in a telephone conversation with Mr McKell.
c Mr Besser’s role at the APSAC Conference in July 2009.
d The photographs of the plaintiffs taken on 25 June 2009.

The defendant denies that any of these matters is capable of establishing malice.

22 The allegations about Mr Besser’s dealings with Mr Clark and Mr McKell must be scrutinised carefully to determine whether his conduct could amount to recklessness at all and whether whatever was established could constitute malice. Adapted from the proof of malice in defamation actions, the relevant principles are that: (1) recklessness in the publication of matter does not establish knowledge of its falsity unless it amounts to wilful blindness on the part of the defendant, which the law equates with knowledge, (2) recklessness – when present with other evidence – may nevertheless be relevant to whether the defendant had an improper motive which actuated the publication, and (3) if a plaintiff’s case rises no higher than evidence that the defendant did not have a positive belief in the truth of what he published, there is no evidence that its publication was actuated by an improper motive: Roberts v Bass (2002) 212 CLR 1 and Gross v Weston [2007] NSWCA 1, per Hunt AJA [52].

23 The plaintiffs evidence of recklessness in the publication of these representations is extremely weak and there is in my view no other material from which wilful blindness or improper motive could be inferred. In the conversation between Mr Besser and Mr Clark just before the ex parte injunctions were obtained, Mr Clark says that he “...strongly formed the impression that he intended to publish material about me and Peter Panayi whether they were true or false and I consider he is acting recklessly”. This subjective impression is unsupported by the objective evidence of what was done by Mr Besser, which merely shows a journalist making such enquires as he could before publication. The fact the conversation between Mr Besser and Mr Clark was taking place at all is inconsistent with recklessness.

24 The same can be said about Mr Besser’s contact with Mr McKell on 24 June 2009 which the plaintiffs say is evidence of recklessness or worse. Mr McKell, the solicitor for the plaintiffs, contacted Mr Besser that evening to say that ex parte relief had been granted. Nothing in that contact shows anything more than a journalist who is telephoned by a solicitor to say that court orders have been made, properly declining to engage with Mr McKell other than through the solicitors for the defendants. A short pause was needed to allow the defendant solicitors to be engaged.

25 There is nothing in the plaintiffs suggestion that Mr Besser’s proposed participation in an APSAC conference in July 2009 is evidence of recklessness or malice. Indeed there is nothing that connects Mr Besser’s proposed attendance at that conference with the defendant’s publication of anything about the plaintiffs.

26 Finally, the plaintiffs rely upon the fact that photographs were taken of Mr Clark outside the Supreme Court during the interlocutory hearing. That does not and could not show recklessness in relation to any proposed publication by the defendants, nor any improper motive on their part.

27 Thus there is nothing the plaintiffs have advanced in this application that shows that there is a serious question to be tried on the issue of malice as part of the plaintiffs’ cause of action for injurious falsehood. The reason for this is that this is really a defamation case as it discussed below.

Actual Damage

28 The defendants say that the plaintiffs have not adduced any evidence about the impact on AAMAC’s business of the publication of the representations. The matters the defendants point to on this issue do not demonstrate an insufficiency of evidence. Rather they show that there is a mix of competing inferences available on the damages evidence. This is indicative of a serious question to be tried.

29 The defendants say that similar material has been published on prior occasions and it has not had the catastrophic effect that the plaintiffs’ evidence says that they fear. However, the prior publications relied on by the defendants, such as Exhibit 1, the article in the Weekend Edition of the Sydney Morning Herald of 16-17 September 2006, did not have the range and severity of the allegations about AAMAC that are evident in the South Pacific and the criminal affiliation representations.

30 The defendants describe Mr McKell’s evidence, in his affidavit of 26 June 2009, in support of the plaintiffs’ claim of a likelihood of actual damage as “unreliable”. Reliability is an issue for trial. This evidence cannot just be dismissed. In his affidavit of 26 June 2009 Mr McKell deposes to conversations with Mr Panayi who said he had spoken to a Mr Roland Trapani the manager of Schenkers, one of AAMAC’s customers. Mr Trapani foreshadowed to Mr Tom Panayi (Mr Peter Paayi’s brother) that if the publications went ahead that AAMAC would lose Schenkers’ business. There is other similar evidence in Mr McKell’s affidavit of 26 June 2009. This material can be criticised for its hearsay character, as the defendants do criticise it. It is however sufficient for this kind of interlocutory hearing.

31 There was also oral evidence on 24 June 2009 from Mr Panayi that the publication of the South Pacific and criminal affiliation representations would be likely to cause loss of business to the plaintiff. The defendant’s submissions appear to overlook that direct evidence. The inference of actual damage from publication is greatly assisted by the content of the two representations which are inherently likely to cause a loss of business of the kind alleged, particularly the criminal affiliation representation.

The Fair Trading Act Claim

32 The defendants submit that plaintiffs have not demonstrated a serious question to be tried on the Fair Trading Act cause of action. The issue on this cause of action really comes down to whether ss 42 and 44 of the Fair Trading Act are engaged by reason of the threshold operation of section 60. The other subsequent issues about whether the elements of a cause of action under s 42 or s 44 are made out are all determined by considerations similar to those discussed above in relation to the malicious falsehood cause of action. There is some evidence of misleading and deceptive conduct or the making of false representations at least to the level of a serious question to be tried for the reasons set out above under “Falsity” under the Malicious Falsehood heading. Similarly the reasoning set out above under “Actual Damage” applies to the element of prospective damage for the Fair Trading Act cause of action. On both those issues the plaintiffs have shown there is a serious question to be tried.

33 The remaining issues in relation to the Fair Trading Act cause of action involve the construction of ss44 of the Act to ascertain whether it applies to the present circumstances and the question of whether there is sufficient evidence to show that s 60 applies to exempt the defendants’ proposed publication from the operation of ss42 and 44. Sections 42, 44 and 60 of that Act are in the following terms:

“42 Misleading or deceptive conduct

( TPA s 52)

(1) A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in this Part shall be taken as limiting by implication the generality of subsection (1).

44 False representations

( TPA s 53)

A person shall not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:
(a) falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use,
(b) falsely represent that services are of a particular standard, quality, value or grade,
(c) falsely represent that goods are new,
(d) falsely represent that a particular person has agreed to acquire goods or services,
(e) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have,
(f) represent that the person has a sponsorship, approval or affiliation the person does not have,
(g) make a false or misleading representation concerning the price of goods or services,
(h) make a false or misleading representation concerning the availability of facilities for the repair of goods or of spare parts for goods,
(i) make a false or misleading representation concerning the place of origin of goods,
(j) make a false or misleading representation concerning the need for any goods or services,
(k) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy,
(l) make a false or misleading representation concerning a person’s rights or obligations under a residential tenancy agreement (within the meaning of the Residential Parks Act 1998) under which the residential premises consist of a residential site in a residential park or a moveable dwelling on such a residential site (within the meaning of that Act), or
(m) make a false or misleading representation concerning a person’s rights or obligations under a village contract (within the meaning of the Retirement Villages Act 1999), or
(n) make a false or misleading representation concerning a person’s rights or obligations under an occupation agreement (within the meaning of the Holiday Parks (Long-term Casual Occupation) Act 2002) under which the residential premises consist of a site in a holiday park (within the meaning of that Act).

60 Application of certain provisions to prescribed information providers

( TPA s 65A)

(1) Nothing in section 42, 44, 45, 49, 50 or 54 applies to a prescribed publication of matter by a prescribed information provider, other than:
(a) a publication of matter in connection with:
(i) the supply or possible supply of goods or services,
(ii) the sale or grant, or possible sale or grant, of interests in land,
(iii) the promotion by any means of the supply or use of goods or services, or
(iv) the promotion by any means of the sale or grant of interests in land,
where:
(v) the goods or services were relevant goods or services, or the interests in land were relevant interests in land, as the case may be, in relation to the prescribed information provider, or
(vi) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with:
(A) a person who supplies goods or services of that kind, or who sells or grants interests in land, being interests of that kind, or
(B) a body corporate that is related to a body corporate that supplies goods or services of that kind, or that sells or grants interests in land, being interests of that kind, or
(b) a publication of an advertisement.
(2) For the purposes of this section, a publication by a prescribed information provider is a prescribed publication if:
(a) in any case—the publication was made by the prescribed information provider in the course of carrying on a business of providing information, or
(b) in the case of a person who is a prescribed information provider by virtue of paragraph (a), (b) or (c) of the definition of prescribed information provider in subsection (3) (whether or not the person is also a prescribed information provider by virtue of another operation of that definition)—the publication was by way of a radio or television broadcast by the prescribed information provider.
(3) In this section:
consortium has the same meaning as it has in Part IIIB of the Broadcasting and Television Act 1942 of the Commonwealth.

prescribed information provider means a person who carries on a business of providing information and, without limiting the generality of the foregoing, includes:

(a) a person to whom, or each of the members of a consortium to which, a licence has been granted under Part IIIB of the Broadcasting and Television Act 1942 of the Commonwealth,
(b) the Australian Broadcasting Corporation, and
(c) the Special Broadcasting Service.

relevant goods or services, in relation to a prescribed information provider, means goods or services of a kind supplied by the prescribed information provider or, where the prescribed information provider is a body corporate, by a body corporate that is related to the prescribed information provider.

relevant interests in land, in relation to a prescribed information provider, means interests in land, being interests of a kind sold or granted by the prescribed information provider or, where the prescribed information provider is a body corporate, by a body corporate that is related to the prescribed information provider.”

34 The plaintiffs’ case is that if published the representations would be a contravention of s44(f) Fair Trading Act, as the defendants would be representing that the plaintiffs have a “sponsorship, approval or affiliation” that they do not have, namely with criminal or gangland activities. The defendants argue that the plaintiffs have misread s44 and that it cannot apply to the circumstances of this case. In answer the plaintiffs say that even if that is right they can rely on the general prohibition against misleading and deceptive conduct in s42.

35 The defendants complained that the plaintiffs’ reliance on s42 was not clearly articulated early in their application. I see no reason why on an interlocutory application such as this, where arguments shift to respond to arguments seen for the first time from the other side, why the plaintiffs cannot rely on s42 as well as s44. There was no obvious prejudice to the defendants in their doing so. This means that it is not strictly necessary for me to decide whether s44 applies and it is not appropriate for me to do so on an interlocutory application of this nature: Kolback Securities v Epoch Mining NL (1987) 8 NSWLR 533 at 535E per McLelland J. The focus therefore turns to the application of s 60.

36 I observe however that were it necessary to decide the question, that the defendants’ submission that s44(f) has no application to the circumstances of this proposed publication is highly persuasive. It is difficult to read s44(f) in any other way than that contended for by the defendants. The words “the person” in s44(f) are a reference to “a person” at the opening of the section. To contravene s44 the person making the representation must also be the person falsely said to have the relevant sponsorship approval or affiliation. That is how the provision has commonly been applied: see for example ACCC v Chen [2003] FCA 897 and Australian Home Loans Limited (t/as Aussie Home loans) v Phillips (1998) 40 IPR 392. Also s44(f) could not have any application to the South Pacific representation in any event. That representation says nothing about the sponsorship, approval or affiliation of the defendants, Mr Payani and Mr Clark. It is merely a representation about their alleged conduct.

37 There is no issue between the parties that the defendant, other than perhaps the second defendant, are “prescribed information providers[s]” within s 60. The plaintiffs submit that there is a cause of action available to them under s 42 because the exemption in s 60 is subject to the exception here in s 60(1)(vi)(A). The plaintiffs say that the defendant obtained the information in order to make the representations from “competitors of AAMAC who wished to damage AAMAC’s business”. In ACCC v Channel 7 Business Pty Limited [2009] HCA 19 the High Court decided that the Trade Practices Act equivalent of s 60 (s 65A Trade Practices Act) should be construed so that the reference to “goods or services of that kind” in s 60(1)(vi)(A) is a reference to the goods or services referred to in s 60(1)(a)(i) being the goods or services the subject matter of the publication referred to in s 60(1)(a).

38 An interlocutory application is not the place to decide whether or not the representations restrained are in respect of “the supply or possible supply of goods or services”. Although I have doubts about that question for present purposes I would assume it in favour of the plaintiffs. The real problem for the plaintiffs’ argument is that there is no evidence of any “contract arrangement or understanding” between the defendant and any of the other persons, competitors, who the plaintiffs say supplied information to the defendants. The only evidence of any contact between the defendants and anyone else supplying goods or services of the kind supplied by AAMAC are certain telephone conversations with a Mr Toohey or with a Mr Temelkov. This evidence is set out in the affidavit of Peter Brian McKell of 26 June 2009. That material does not suggest that any information was actually provided to the defendants by Mr Toohey or Mr Temelkov and even less that there was any “contract, arrangement or understanding” between the defendants and either for them or anyone else competing with the plaintiffs. Even an “arrangement or understanding” as provided for in s 60 “ordinarily involves an element of reciprocal commitment even though it may not be legally enforceable”: ACCC v Channel 7 Business Pty Limited [48]. The evidence here is to the contrary of such commitment. In my opinion the plaintiff has not made out even to the level of a serious question to be tried that the exception applies to the exempting provision in s 60. The exempting provision in s 60 applies so that the defendants as “proscribed information providers” are not relevantly constrained either by ss 42 or 44.

A Defamation Action

39 It is difficult to avoid the conclusion that this proceeding should not be characterised as a case of injurious falsehood at all. The absence of cogent evidence of malice indicates this. Rather it is, as the defendants say, a publication concerned with the reputation of the defendants rather than any aspect of their business. It does not have the usual features of injurious falsehood cases of competitors making deliberately false claims about the plaintiff’s business, such as in Swinsure Laboratories Pty Limited v McDonald (1979) 2 NSWLR 796, or of disgruntled customers expressing their discontent through publications about the plaintiff such as in Kaplan v Go Daddy Group [2005] NSWSC 636.

40 This is a case where the Court should be cautious in interfering with the defendant’s right of free speech by prior restraint, a caution the authorities have consistently emphasised: Stocker v Mc Elhinney [No 2] (1961) NSWR 1043 at 1048 per Walsh J and Australian Broadcasting Corporation v O’Neill [2006] HCA 46 (2006) 227 CLR 57, at [32].

41 The factors that emphasise that caution in this case are the following:

(a) The defendants proposed publication, as the article actually published on 25 June shows, is an issue of public interest beyond the business interest of AAMAC and concerns possible corruption on the waterfront in Sydney;

(b) after full disclosure was made by the plaintiffs, the nature of the contest at a final hearing as presented in my principal judgment, especially at paragraph [40] and [57] presentS a narrow contest in which the defendants may succeed in establishing truth and where even if successful the plaintiffs may only recover relatively nominal damages; and

(c) the defendant has material upon which it proposes to justify the representations.

42 On these considerations I decline to grant the relief requested in the fresh application.

The Findings in relation to Non Disclosure

43 I reach the conclusion that I have without taking into account the deliberate non disclosures found in my previous judgment. However the finding made in the principal judgment [82] reinforce my conclusion. Whether or not these non disclosures should be seen as precluding relief because of the plaintiff’s unclean hands, they will certainly be part of the contest of evidence at a final hearing and will tend to strengthen the defendants defence of truth.

The Balance of Convenience

44 The balance of convenience cannot be considered in this case separately from the discretionary factors that apply to defamation cases which have been discussed above. It can be accepted that a refusal to grant relief would cause substantial damage to the plaintiffs. But as ABC v O’Neill shows, the grant of relief is not without cost to the right of free speech.

The Separate Position of the Plaintiffs

45 A factor that differentiates the fresh application from the original ex parte application is that orders are now being sought severally by each plaintiff. I found in the principal judgment at [89] that it was not possible to separate the positions of each of the plaintiffs on issues of non disclosure. The court is not dealing now with issues of non-disclosure. Nevertheless some of the same problems arise again as arose on the contest about non disclosure. In relation to the criminal affiliation representation it is hard to distinguish the corporate plaintiff AAMAC from its officers and employees, Mr Clark and Mr Panayi in relation to its business. A complete separation my well be impossible, where the terms of the proposed restraint in relation to the criminal affiliation representation includes “gangland or criminal activities by or through [AAMAC’s] business”.

46 Despite the approach in the fresh application, the plaintiffs remain represented by the same counsel and solicitors. They relied upon the same evidence and legal submissions. It was not really explained how and on what basis either Mr Clark or Mr Panayi should have the benefit of injunctive relief when the other plaintiffs did not.

47 In any event the evidence with respect to both the criminal affiliation representation and the South Pacific representation does not so obviously distinguish between the conduct of each of Mr Panayi and Mr Clark to justify considering a different exercise of discretion for each of them.

Conclusion and Orders

48 In the result I have found that the plaintiffs fail on their fresh application for injunctive relief against the defendants filed on 25 September 2009. The plaintiffs fail with respect to their application for restraints against each of the South Pacific representation and the criminal affiliation representation. No specific order is necessary as a result of these reasons other than to dismiss the plaintiffs’ Notice of Motion dated 25 September 2009 and I so order.

49 The immediate discharge of these orders may prejudice the plaintiffs’ rights of appeal. It is appropriate therefore for the Court to allow a very brief period for the plaintiffs to assess their position in relation to a possible application for leave to appeal. I will stand the matter in the list to allow the parties to analyse these reasons and to put submissions to me on the question of any stay in light of these reasons.

50 The defendants have been successful in opposing the grant of fresh injunctive relief sought in the Notice of Motion filed on 25 September 2009. Costs would normally follow the event and the plaintiffs would be ordered to pay the defendants costs of this application. The plaintiffs or the defendants may wish to contend for a different order than the one I have foreshadowed. The matter will stand in the list. Once the parties have read the judgment I will hear any submissions that any party wishes to put on costs.

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