Court of Appeal Supreme Court New South Wales Medium Neutral Citation: CJZ Pty Ltd v Giant Dwarf Pty Ltd; CJZ Pty Ltd v Morrow [2023] NSWCA 135 Hearing dates: 22—24 May 2023 Decision date: 20 June 2023 Before: Ward P at [1]; Mitchelmore JA at [2]; Adamson JA at [3] Decision: Proceedings 2022/214060 (1) Dismiss the cross-appeal. (2) Grant leave to the applicants to appeal in respect of costs. (3) Set aside orders (7) and (8) made by Stevenson J on 23 June 2022 in proceedings 2019/343896 and in lieu thereof make the following order: Order the second and third plaintiffs to pay the first and second defendants' costs of the proceedings (including the amended summons and amended cross summons) on an indemnity basis. (4) Subject to (5), order the respondents to pay the applicants'/appellants' costs of the appeal. (5) If any application is to be made for a different order for the costs of the appeal, direct that the party send by email a notice of motion, together with any evidence and submissions in support, to the Associate to the Presiding Judge within 14 days hereof. Proceedings 2022/214083 (1) Grant leave to appeal on grounds 1, 2, 4, 6, 7, 8, 9 and 10 but otherwise refuse leave to appeal. (2) Allow the appeal. (3) Set aside orders (1), (2), (3) and (4) made by Stevenson J on 23 June 2022 in proceedings 2020/264993 and in lieu thereof make the following orders: (a) Judgment for the defendants. (b) Subject to (c) below, order the plaintiff to pay the defendants' costs of the proceedings. (c) If any application is to be made for a different order for the costs of the Defamation proceedings, direct that the party send by email a notice of motion, together with any evidence and submissions in support, to the Associate to the Presiding Judge within 14 days hereof. (4) Subject to (5), order the respondents to pay the applicants'/appellants' costs of the appeal. (5) If any application is to be made for a different order for the costs of the appeal, direct that the party send by email a notice of motion, together with any evidence and submissions in support, to the Associate to the Presiding Judge within 14 days hereof. (6) Release the second defendant from the undertaking given by him on his own behalf and on behalf of the first defendant, the making of which was noted by the primary judge in (3) of the orders and notations made on 23 June 2022. Catchwords: MISLEADING AND DECEPTIVE CONDUCT — cross-appeal — whether joint venturer engaged in misleading or deceptive conduct by failing to disclose negotiations for production of further series of television program, The Checkout — whether reasonable expectation of disclosure — whether execution of Share Sale Agreement induced by misleading or deceptive conduct — whether rescission of Share Sale Agreement an appropriate remedy COSTS — application for leave to appeal — Calderbank offers — whether primary judge erred in not awarding costs on indemnity basis — whether respondents would have been in a better position if they had accepted offer — circumstances in which costs discretion re-exercised on appeal DEFAMATION — application for leave to appeal — whether primary judge erred in application of test for defence of qualified privilege — whether express malice established Legislation Cited: Australian Consumer Law (Sch 2, Competition and Consumer Act 2010 (Cth)) s 237 Civil Procedure Act 2005 (NSW), s 98 Corporations Act 2001 (Cth), s 461(1)(k) Defamation Act 2005 (NSW) Evidence Act 1995 (NSW), ss 64(3), 69, 136 Parliamentary Privileges Act 1987 (Cth), s 16 Supreme Court Act 1970 (NSW), s 75A Cases Cited: Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Campomar Sociedad, Ltd v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24 Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Godfrey v Henderson (1944) 44 SR (NSW) 447 Horrocks v Lowe [1975] AC 135 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden (2020) 101 NSWLR 729; [2020] NSWCA 28 Marks v GIO Australia Holdings Limited (1998) 196 CLR 494; [1998] HCA 69 Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150 Onassis v Vergottis [1968] 2 Lloyds Rep 403 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 Papaconstuntinos v Holmes a Court (2012) 249 CLR 534; [2012] HCA 53 Ratcliffe v Evans [1892] 2 QB 524 Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82 Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632; [1934] HCA 15 The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd; Morrow v Cordell Jigsaw Productions Pty Ltd (No 13) [2022] NSWSC 444. The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd; Morrow v Cordell Jigsaw Productions Pty Ltd (No 14) [2022] NSWSC 835 The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd; Morrow v Cordell Jigsaw Productions Pty Ltd (No 14) [2022] NSWSC 835 Universal Cargo Carriers Corp. v Citati [1957] 2 QB 401 Watson v Foxman (1995) 49 NSWLR 315 Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 Wraydeh v Fairfax Media Publication Pty Limited; Wraydeh v Nationwide News Pty Ltd (2021) 105 NSWLR 254; [2021] NSWCA 153 Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65 Category: Principal judgment Parties: Proceedings 2022/214060 CJZ Pty Ltd (First Applicant / First Cross-Respondent) Nicholas Harvey Murray (Second Applicant / Second Cross-Respondent) Giant Dwarf Pty Ltd (First Respondent / Second Cross-Appellant) Julian Francis Xavier Morrow (Second Respondent / Third Cross-Appellant) The Checkout Pty Ltd (First Cross-Appellant) Proceedings 2022/214083 CJZ Pty Ltd (First Applicant) Nicholas Harvey Murray (Second Applicant) Julian Francis Xavier Morrow (Respondent) Representation: Counsel: Proceedings 2022/214060 B F Katekar SC / S Gaussen (Appellants / Cross-Respondents) S Chrysanthou SC / C P O'Neill (Respondent / Cross-Appellants) Proceedings 2022/214083 B F Katekar SC / M Lewis (Appellants) S Chrysanthou SC / C P O'Neill (Respondent) Solicitors: Bird & Bird (Appellants / Cross-Respondents) Kay & Hughes (Respondents / Cross-Appellants) File Number(s): 2022/214060; 2022/214083 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity Citation: The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd; Morrow v Cordell Jigsaw Productions Pty Ltd (No 13) [2022] NSWSC 444 The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd; Morrow v Cordell Jigsaw Productions Pty Ltd (No 14) [2022] NSWSC 835 Date of Decision: 13 April 2022; 23 June 2022 Before: Stevenson J File Number(s): 2019/343896; 2020/264993 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] This appeal arises out of a dispute relating to the production and broadcast of the ABC television program, The Checkout. CJZ Pty Ltd (CJZ) and its director Nicholas Murray sought leave to appeal, and The Checkout Pty Ltd, Giant Dwarf Pty Ltd (Giant Dwarf) and its director Julian Morrow cross-appealed, against orders made in two proceedings referred to as the commercial proceedings and the defamation proceedings, which were heard together. In the commercial proceedings, The Checkout Pty Ltd, Giant Dwarf and Mr Morrow claimed damages alleging that CJZ had breached the Share Sale Agreement and that CJZ and Mr Murray had engaged in misleading and deceptive conduct and committed the tort of injurious falsehood against Mr Morrow. These claims were dismissed. CJZ cross-claimed seeking an order that the Share Sale Agreement be rescinded on the basis that it had been induced to execute it as a consequence of Mr Morrow's misleading or deceptive conduct. On the cross-claim, the primary judge found that Giant Dwarf had breached the joint venture agreement and engaged in misleading or deceptive conduct, that Mr Morrow had breached his duty as a director of the joint venture company and engaged in misleading or deceptive conduct and that the Share Sale Agreement ought be rescinded. In the defamation proceedings, Mr Morrow claimed damages against CJZ and Mr Murray in respect of statements Mr Murray had made orally and in writing to the ABC about Mr Morrow. CJZ and Mr Murray relied on defences of justification, qualified privilege and honest opinion. Mr Morrow alleged express malice to defeat the defence of qualified privilege. The primary judge found that each of the matters complained of was defamatory and that only the defence of justification was made out in respect of two matters complained of. His Honour entered judgment for Mr Morrow and ordered CJZ and Mr Murray to pay general damages of $30,000 and aggravated damages of $5000 with interest, and Mr Morrow's costs of the proceedings. CJZ and Mr Murray sought leave to appeal against the orders made in the defamation proceedings, on the basis that the primary judge erred in determination of the defence of qualified privilege, and the costs orders made against them in the commercial proceedings, submitting that they were entitled to indemnity costs on the basis of three Calderbank offers. Giant Dwarf and Mr Morrow cross-appealed on the grounds that the primary judge erred in ordering recission of the Share Sale Agreement, because it proceeded upon erroneously finding the conduct of Giant Dwarf and Mr Morrow was misleading or deceptive, that Mr Morrow breached his duties as a director of the joint venture company and that there was an implied term of the joint venture agreement. The cross-appellants also filed a notice of motion for leave to adduce further evidence comprising emails sent by Mr Murray in March 2023. The Court held (Adamson JA, Ward P and Mitchelmore JA agreeing), dismissing the cross-appeal and allowing the applicants' appeals: Commercial proceedings Dismissing the cross-appeal Misleading or deceptive conduct (1) The primary judge was correct to find that Mr Morrow implicitly represented that his sole representation in wanting the Share Sale Agreement executed was to obtain access to the PDV rebate, and that his failure to disclose his negotiations with the ABC constituted misleading or deceptive conduct: [119], [121], [134]. (2) The effect of the order for rescission of the Share Sale Agreement was to deprive Mr Morrow and Giant Dwarf of the fruits of their misleading and deceptive conduct and to put the parties in the same position as if the wrongful conduct had not occurred: [142]. In circumstances where the primary judge had power to make an order for rescission and neither the injured parties nor the wrongdoer has proposed any other viable substantive relief, an order for recission is appropriate: [143]. Marks v GIO Australia Holdings Limited (1998) 196 CLR 494; [1998] HCA 69 at [41] (McHugh, Hayne and Callinan JJ), applied. (3) It is not necessary to decide whether the primary judge erred in finding an implied term as this was not a claim in contract for breach of an implied term and the reasonable expectation of disclosure was otherwise established: [131]-[133]. Damages for injurious falsehood (4) The cross-appellants were required to prove that the alleged injurious falsehoods were a substantial factor in causing them economic loss: [307]. The primary judge correctly found that Mr Morrow was the operative cause of the cross-appellants' loss. It was therefore not necessary to address the other grounds of the cross-appeal against the dismissal of the claim for injurious falsehood: [310]. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69, distinguished. In relation to costs (application for leave to appeal) (5) Leave to appeal against the costs order ought to be granted because the primary judge's discretion miscarried and his Honour relevantly mistook the facts: [330]-[331]. Wentworth v Rogers (No 3) (1986) 6 NSWLR 642; House v The King (1936) 55 CLR 499; [1936] HCA 40, applied. (6) CJZ and Mr Murray's letter of 19 June 2019 (via their solicitor) provided a detailed explanation as to why the claims against them would fail, which was vindicated by the primary judge's findings. Had Giant Dwarf accepted CJZ's subsequent offer of 1 November 2019, it would have been in a better position. On this basis, Giant Dwarf and Mr Morrow ought pay the applicant's costs of the commercial proceedings on an indemnity basis: [338]-[340]. Defamation proceedings (7) The primary judge erred in his application of the test for qualified privilege which was whether the communication was published on a privileged occasion and was relevant to the occasion: [250]. Horrocks v Lowe [1975] AC 135 at 149; Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [75] (Gaudron, McHugh and Gummow JJ); Wraydeh v Fairfax Media Publication Pty Limited; Wraydeh v Nationwide News Pty Ltd (2021) 105 NSWLR 254; [2021] NSWCA 153 at [44] (Simpson AJA, Bell P and Gleeson JA agreeing); Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at [9]-[10] (Gleeson CJ, Hayne and Heydon JJ). (8) The common law defence of qualified privilege is defeated by "express malice" if the dominant purpose of the communication was an improper purpose foreign to the privileged occasion: [251]. Express malice for the purposes of defeating qualified privilege is a different concept from malice for the purpose of aggravated damages: [259]. (9) Mr Murray established the defence of qualified privilege in respect of each of MCOs 3, 4, 5 and 6. Mr Morrow did not discharge his onus of proving express malice: [290]. Cross-appellants' Notice of Motion (leave to adduce further evidence) (10) As Mr Murray and CJZ have been successful in their appeal against the orders made in the defamation proceedings, there is no basis on which the Court could order injunctive relief instead of the undertaking. The notice of motion therefore ought to be dismissed: [341]-[342]. Mr Murray ought be released from his undertaking. JUDGMENT 1. WARD P: I have had the advantage of reading in draft the comprehensive reasons of Adamson JA, with which I agree. I also agree with the orders that her Honour proposes. 2. MITCHELMORE JA: I agree with the reasons of and orders proposed by Adamson JA. 3. ADAMSON JA: Before the Court there are two applications for leave to appeal and a cross-appeal. They arise from a dispute relating to the production and broadcast of The Checkout, a television program, between, on the one hand, CJZ Pty Ltd (CJZ), formerly known as Cordell Jigsaw Productions, the first applicant, and its director, Nicholas Murray, the second applicant, and, on the other, The Checkout Pty Ltd (the Joint Venture Company), the first cross appellant, Giant Dwarf Pty Ltd (Giant Dwarf), the second cross appellant, and Julian Morrow, the third cross appellant. Each party challenges orders made by Stevenson J (the primary judge) on 23 June 2022 in two proceedings, the Commercial proceedings and the Defamation proceedings (defined below) which were heard together in the Equity Division of the Supreme Court. The Commercial proceedings The claim by The Checkout Pty Ltd, Giant Dwarf Pty Ltd and Mr Morrow 1. On 1 November 2019, the Joint Venture Company, Giant Dwarf and Mr Morrow commenced proceedings in the Commercial List in the Equity Division against CJZ and Mr Murray (the Commercial proceedings). They claimed declarations, injunctions and damages, alleging that: 1. CJZ had breached an agreement made on 8 April 2019 (the Share Sale Agreement), including by repudiatory conduct, thereby entitling them to terminate the agreement; 2. CJZ and Mr Murray had engaged in misleading and deceptive conduct prior to the execution of the Share Sale Agreement; and 3. CJZ and Mr Murray had committed the tort of injurious falsehood by making injurious statements about Mr Morrow to the Australian Broadcasting Corporation (ABC). The cross claim by CJZ 1. CJZ cross-claimed against the Joint Venture Company, Giant Dwarf and Mr Morrow seeking an order that the Share Sale Agreement be rescinded on the basis of misleading or deceptive conduct, as well as damages and equitable compensation. The Defamation proceedings 1. On 11 September 2020, Mr Morrow commenced proceedings in the Common Law Division against CJZ and Mr Murray, seeking damages for defamation (the Defamation proceedings). The amended statement of claim filed on 12 February 2021 alleged the publication of six matters complained of (MCOs), which were alleged to be defamatory. CJZ and Mr Murray relied on defences of justification, qualified privilege (statutory and common law) and honest opinion. In his reply, Mr Morrow alleged express malice (including improper motive and knowledge of falsity) to defeat the defence of qualified privilege. The procedural background and the orders made 1. On 4 February 2021, the primary judge ordered that the Commercial proceedings and the Defamation proceedings be heard together. On 29 November 2021, the primary judge ordered that evidence in one proceedings be evidence in the other proceedings. The hearing commenced on 30 November 2021 and continued on 1, 2, 3, 7, 8, 20, 21 and 22 December 2021. Judgment was reserved. 2. Ms Chrysanthou SC appeared with Mr O'Neill at first instance and on appeal for Mr Morrow, Giant Dwarf and the Joint Venture Company (together, the cross-appellants). Mr Katekar SC appeared at first instance with Ms Jeliba and on appeal with Mr Lewis (on the application for leave to appeal against the orders in the Defamation proceedings) and Ms Gaussen (on all other matters). 3. On 13 April 2022, the primary judge published his reasons for decision and directed the parties to confer on the orders necessary to give effect to the reasons: The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd; Morrow v Cordell Jigsaw Productions Pty Ltd (No 13) [2022] NSWSC 444. 4. On 16 June 2022, the primary judge heard argument on costs. CJZ and Mr Murray sought costs in the Commercial proceedings on an indemnity basis on the basis that the claims made by the Joint Venture Company, Giant Dwarf and Mr Morrow were "hopeless". They also sought costs of their cross-claim on the basis of Calderbank offers made on 18 October 2019 and 1 November 2019. 5. In the Defamation proceedings, Mr Murray submitted that there ought be no order as to costs. 6. On 23 June 2022, the primary judge made orders in each of the two proceedings, including as to costs: The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd; Morrow v Cordell Jigsaw Productions Pty Ltd (No 14) [2022] NSWSC 835 (the Costs Judgment). 7. In the Commercial proceedings, Giant Dwarf made the following claims, each of which was rejected: 1. damages for breach of an implied term which required CJZ to sign the Quit Claim (to be explained below); 2. termination of the Share Sale Agreement based on CJZ's alleged repudiatory conduct in refusing to sign the Quit Claim; 3. misleading and deceptive conduct premised on CJZ's refusal to sign the Quit Claim; 4. damages for injurious falsehood (the primary judge found no loss); and 5. damages for breach of the mediation agreement (the primary judge found that Giant Dwarf suffered no harm). 1. Further, on Mr Murray and CJZ's cross-claim, the primary judge found that: 1. Giant Dwarf had breached the joint venture agreement and engaged in misleading or deceptive conduct; 2. Mr Morrow had breached his duty as a director of the Joint Venture Company and to CJZ (as shareholder of the Joint Venture Company) and engaged in misleading or deceptive conduct; and 3. the Share Sale Agreement ought be rescinded. 1. In the Commercial proceedings, the primary judge dismissed the amended summons and, on the cross-claim, ordered that the Share Sale Agreement be rescinded and that Giant Dwarf transfer to CJZ with effect from 8 April 2019 the shares in the Joint Venture Company that CJZ transferred to Giant Dwarf pursuant to the Share Sale Agreement and cause Mr Murray to be reinstated as a director of the Joint Venture Company. The primary judge also made orders requiring Giant Dwarf to pay to CJZ 40% of the Postal, Digital and Visual Offset tax rebate (the PDV rebate) for the first four series of The Checkout, together with interest. 2. In the Defamation proceedings, the primary judge found that, of the six MCOs made respectively on 21 May 2019 (MCO 1), 11 June 2019 (MCO 2), 12 June 2019 (MCO 3), 20 June 2019 (MCO 4), 5 July 2019 (MCO 5) and 12 August 2019 (MCO 6), each was defamatory; the defences of qualified privilege (common law or statutory) or honest opinion were not made out in respect of any of them; and the defence of justification was made out in respect of MCO 1 and 2, but not in respect of the other MCOs. His Honour entered judgment for Mr Morrow and ordered CJZ and Mr Murray to pay general damages of $30,000 and aggravated damages of $5,000, together with interest. His Honour also ordered CJZ and Mr Murray to pay Mr Morrow's costs of the proceedings. The proceedings in this Court 1. The matters before this Court comprise: 1. the cross-appeal brought by the cross-appellants against the substantive orders made by the primary judge in the Commercial proceedings on the claim and the cross-claim. (There is no cross-appeal against the orders made in the Defamation proceedings.); 2. CJZ's and Mr Murray's application for leave to appeal against the orders made in the Defamation proceedings; 3. CJZ's and Mr Murray's application for leave to appeal against the costs orders made against them by the primary judge in the Commercial proceedings; and 4. the cross-appellants' notice of motion filed on 11 May 2023 for leave to adduce further evidence comprising emails from Mr Murray sent between 9 March 2023 and 24 March 2023. 1. The applications in (2) and (3) above are relatively self-contained. However, the cross-appeal (1) is significantly broader. Grounds 1-6 and 7A of the cross-appeal concern the claim for damages for injurious falsehood and will be addressed separately in connection with that claim. In ground 7 the cross-appellants challenge 42 findings of fact made by the primary judge (some of which are addressed in the course of the summary of his Honour's findings while others are addressed in a table at the conclusion of these reasons). None of these challenges has been made out, for the reasons given below. The remaining grounds of the cross-appeal, 8 and 9, challenge the orders made on Mr Murray and CJZ's cross-claim and will be addressed first following the narrative of facts relating to the entry into the Share Sale Agreement on 8 April 2019. 2. Neither party sought, in the event that error was established, that this Court order a retrial or that any matter be remitted to the primary judge for determination. While the primary judge made some credit findings, the parties accepted that the primary judge's advantage in this respect ought not inhibit this Court from making all necessary findings pursuant to s 75A of the Supreme Court Act 1970 (NSW). In these circumstances, this Court is obliged to determine for itself whether there is an error in any of the factual findings challenged and, if so, what facts ought to have been found. Similarly, if the error alleged is failure to address an argument, a claim or a defence, it is this Court's task to address such argument, claim or defence for itself. The facts 1. Before turning to the various matters for this Court's determination, it is useful to summarise the facts as found by the primary judge. Because of the overlap between the facts and issues in the Commercial proceedings and the Defamation proceedings, the summary will contain facts which are germane to either or both. The references in square brackets are to paragraphs of the primary judge's reasons. 2. In order to avoid repetition, it is convenient, in some instances, to address a number of the challenges made by Mr Morrow to the factual findings as part of the chronology of facts. 3. There is a clear division between the period up to and including the Share Sale Agreement and what occurred thereafter. The claim by Mr Murray and CJZ for rescission of that agreement arises from those facts from the earlier period. The events subsequent to the entry into the Share Sale Agreement form the basis of the claims against Mr Murray in the Defamation proceedings and for damages for injurious falsehood in the Commercial Proceedings; and the claim that Giant Dwarf and the Joint Venture Company were entitled to terminate the Share Sale Agreement on the basis of Mr Murray's alleged repudiation of it. 4. In these circumstances, it is convenient to address the cross-appeal in so far as it challenges the order for rescission of the Share Sale Agreement before turning to the other challenges to the primary judge's orders, which turn on what occurred afterwards. The facts up to and including the Share Sale Agreement The genesis of the joint venture 1. In about December 2010, Mr Morrow and Mr Murray met at Surry Hills to discuss the idea of their respective companies (Giant Dwarf and CJZ) working together on a consumer affairs television program ([47]). They envisaged that the revenue would be split 50/50, that Mr Morrow would host the program and that they would each be involved in executive production ([59]-[61]). It was common ground that the only broadcaster contemplated by the parties was the ABC. 2. In 2011, Mr Morrow and Mr Murray communicated about how this could best be achieved ([63]-[68]). Ultimately, on 23 January 2012, the Joint Venture Company was incorporated. Its directors were Mr Morrow and Mr Murray and Giant Dwarf and CJZ were its shareholders ([69]). It was common ground that all decisions relating to the joint venture were to be made by agreement ([96]). Thus, each shareholder had a power of veto ([101]). The Checkout 1. In June 2012, the Joint Venture Company agreed with the ABC to make a series program, which became the first series of The Checkout ([70]). After the first series, Mr Morrow and Mr Murray agreed that the revenue would be split between them 60/40 (rather than 50/50 split as had originally been agreed) ([71]). Although Mr Morrow and Mr Murray discussed a shareholders' agreement, no such agreement was ever executed ([73]-[87]). 2. It was common ground that the Joint Venture Company owned certain intellectual property rights to The Checkout. 3. The Joint Venture Company produced six series of The Checkout for the ABC. It was common ground that after the third series, Mr Morrow took control of all creative, legal, editorial and production issues which caused Mr Murray to withdraw from active involvement. Although Mr Murray had other projects with the ABC, Mr Morrow was the prime contact with the ABC for the Joint Venture Company with respect to The Checkout ([90)]. 4. Production of series six of The Checkout was completed in April 2018 ([155]). Under the terms of the joint venture agreement referred to above, of the sum paid by the ABC to the Joint Venture Company, CJZ was paid a little over $1 million for the first six series of The Checkout ([94]). It was not disputed that Mr Morrow was disgruntled by the size of the payments which the joint venture agreement obliged the Joint Venture Company to make to CJZ. His attempt to buy out Mr Murray in 2015 was unsuccessful. 5. Because of the arrangement referred to above (and, in particular, the power of veto), the Joint Venture Company could only continue to produce The Checkout if both Mr Morrow (on behalf of Giant Dwarf) and Mr Murray (on behalf of CJZ) agreed to do so ([101]-[102]). 6. It was common ground that CJZ and Giant Dwarf were, other than in relation to the joint venture and the Joint Venture Company, competitors. As such, each would independently pitch ideas for programs to the ABC, without recourse to the other ([145]-[154]). The ABC's decision to put The Checkout "on hiatus" and Mr Morrow's attempts to reinstate The Checkout 1. On 4 July 2018, Josie Mason-Campbell, then Head of Non-Scripted Production at the ABC, told Mr Morrow that the ABC was unlikely to be able to fund The Checkout in the 2018/2019 financial year ([158]). She separately informed Mr Murray of this on the same day ([159]). Mr Morrow communicated with David Anderson, the then Director of Entertainment & Specialist at the ABC with a view to saving The Checkout ([162]). 2. On 6 July 2018, the ABC announced that it was putting The Checkout "on hiatus". In a tweet posted on that day, Mr Morrow was critical of the ABC. Mr Murray contacted him to chastise him about publicly criticising the ABC. This was the last occasion on which Mr Morrow and Mr Murray contacted each other until 13 February 2019 ([255]-[259]). 3. Mr Morrow continued to lobby the ABC with a view to persuading it to change its mind about putting The Checkout on hiatus ([166]-[201]). 4. On 25 September 2018, Mr Anderson (then the Acting Managing Director of the ABC) said in an ABC radio interview that the ABC would either reinstate The Checkout or produce another consumer affairs and advocacy program in the future ([205]). As the Joint Venture Company was the only entity which had the intellectual property rights to The Checkout, any further series of The Checkout would have to be produced by the Joint Venture Company (or an assignee or licensee of those rights) ([206]). The Postal, Digital and Visual Effects Offset Determination 1. On 19 December 2018, the Australian Taxation Office issued a certificate confirming that the Joint Venture Company was entitled to a Postal, Digital and Visual Offset, which entitled it to a PDV rebate of 30%. This amounted to approximately $585,000, which was payable (and was paid) on 25 January 2019 ([209], [225]). 2. In an email to Jacqui Crouch (the accountant for the Joint Venture Company and Giant Dwarf), Mr Morrow suggested that this sum be divided between the shareholders of the Joint Venture Company (Giant Dwarf and CJZ) 60/40 ([229]-[231]). Further discussions between Mr Morrow and the ABC regarding a consumer affairs program 1. There were further communications between Mr Morrow and the ABC about a consumer affairs program in late 2018 and early 2019. Because the ABC's budget had been cut, there was a question about how much the ABC could afford to pay for such a program. 2. In his findings about what had occurred in particular discussions with the ABC, the primary judge referred to internal records of the ABC which had been produced on subpoena and which purported to record (sometimes by persons not present for such meetings) what had transpired in discussions between Mr Morrow and the ABC. No witness from the ABC was called by either party. The primary judge rejected an application that these records be admitted as business records and admitted them pursuant to s 136 of the Evidence Act 1995 (NSW) for non-hearsay purposes. 3. However, the primary judge had regard to such records in making findings about what was said in the exchanges between Mr Morrow and the ABC on the basis of Mr Morrow's answers to questions in cross-examination regarding such records. 4. The primary judge found that Mr Morrow was communicating with the ABC about a "possible consumer show" on 19 and 20 December 2018 ([214]). His Honour did not accept Mr Morrow's (tentative) recollection that The Checkout was not mentioned in his conversation with Michael Carrington (then Acting Head of Content Distribution at the ABC) on 20 December 2018 ([218]-[219]), given that Mr Morrow had told Mr Anderson on 19 September 2018 that "the ABC should want The Checkout" ([219]). The primary judge noted that the inference that The Checkout was mentioned in Mr Morrow's conversation with Mr Carrington on 20 December 2018 was consistent with the email sent by Mr Carrington to Ms Mason-Campbell on that day, which referred to the call from Mr Morrow and referred to him and Mr Morrow having agreed to "pick up on the discussion to recommission [The Checkout] or potentially develop a new consumer show asap" (set out at [216]). The primary judge found that the reference in the email to "recommission" was "obviously a reference to recommissioning The Checkout." 5. Ms Chrysanthou criticised the primary judge for having regard to the email from Mr Carrington to Ms Mason-Campbell on 20 December 2018 in which he, in effect, said that he and Mr Morrow had discussed recommissioning The Checkout. She contended that the primary judge had used the evidence for an (impermissible) hearsay purpose, contrary to his Honour's ruling. I reject this submission: the fact that Mr Carrington raised the topic of recommissioning The Checkout with Ms Mason-Campbell on 20 December 2018 (a non-hearsay purpose) made it more likely that it had been the subject of discussion between Mr Carrington and Mr Morrow in their conversation earlier that day. Further, the primary judge did not make a finding that it had been raised because of what was said in the email. Rather, his Honour inferred from the objective probabilities (including Mr Morrow's view expressed in September 2018) that it was in fact raised and considered that the terms of the communication in the email of 20 December 2018 were consistent with that inference. This process of reasoning did not breach his Honour's ruling as to the limited use to which such communications could be put. 6. It is also noteworthy that the primary judge was careful, as the findings set out below indicate, to make clear that the finding of the misleading or deceptive conduct was based on the "genuine prospect", which arose from 8 March 2019, of The Checkout being recommissioned and Mr Morrow's failure to disclose that matter to Mr Murray ([470]). Thus, the findings about what happened in December 2018, while relevant to the background, were not ultimately dispositive. 7. Also of significance, the primary judge relied on Mr Morrow's acceptance (in the passage of cross-examination extracted at [250]) that "it was pretty well known that [he thought] the ABC should be broadcasting The Checkout [and that he had] made this point to the ABC several times", including on 13 February 2019 (when Mr Morrow had met with Mr Carrington and Richard Huddleston (then Supervising Executive Producer, Entertainment and Development at the ABC)) as his position "has been quite consistent". The primary judge drew the inference that Mr Morrow had told them that he "still wanted to do The Checkout" ([251]). After this meeting, Mr Morrow was confused about the ABC's intentions and considered that it had not yet decided what course would be taken ([253]). 8. Ms Chrysanthou was critical of the primary judge's findings concerning the ABC, including those at [233], [244], [247] and [404], for the separate reason that the primary judge did not have regard to the significance of s 16 of the Parliamentary Privileges Act 1987 (Cth) (the PP Act). This matter will be addressed towards the conclusion of these reasons. Exchanges between Mr Morrow and Mr Murray about the PDV rebate 1. Within minutes of the conclusion of this meeting on 13 February 2019, Mr Morrow sent Mr Murray a message to suggest talking about the PDV rebate ([255]). He made no mention of the discussions he had had with the ABC between 6 July 2018 and that day about reinstating The Checkout ([256]). The meeting at the Duck Inn on 19 February 2019 1. As a result of this message, Mr Murray and Mr Morrow agreed to meet at the Duck Inn in Chippendale (the Duck Inn meeting). Undisputed facts about the Duck Inn meeting 1. It was either common ground or not disputed that, at this meeting: 1. Mr Morrow told Mr Murray that he needed access to Giant Dwarf's share of the PDV rebate to help repay Giant Dwarf's loan regarding a Netflix show ([266]); 2. Mr Morrow raised the question of how the PDV rebate should be split ([266]); 3. Mr Murray suggested that Mr Morrow should speak to Simon Fraser, CJZ's Chief Financial Officer (who will be referred to throughout by his full name to avoid confusion with Hamish Fraser, who became CJZ's solicitor) about the best means to distribute the PDV rebate to Giant Dwarf and CJZ ([266]); 4. Mr Morrow suggested that it was time to "draw a line under" the joint venture, given the unlikely event of The Checkout ever returning ([267]); 5. Mr Morrow told Mr Murray that if it transpired that the ABC did want to broadcast a consumer affairs show, "it would make more sense" for Giant Dwarf to produce that show ([288]); 6. Mr Morrow told Mr Murray that "it would be better for everyone if we could find some way that The Checkout could be made again" ([289]); and 7. Mr Morrow made no mention of his discussions with the ABC about The Checkout or a further consumer affairs show, including the discussion which had occurred on 13 February 2019 referred to above ([268]). 1. The primary judge also found that it was likely that Mr Morrow had told Mr Murray on 19 February 2019 that he was not prepared to do another series of The Checkout under the current arrangements of the joint venture agreement between them (because Mr Murray was receiving 40% of the net revenue without having to perform work on the series) ([275]). 2. The basis for the primary judge's finding, which Mr Morrow accepted to be correct, was that, on 22 February 2019, Mr Morrow, Simon Fraser, Ms Crouch and her assistant, Ms Chen, met to discuss the best means to distribute the PDV rebate, and that, at that meeting, Ms Chen noted that the "current agreement does not incentivise" Mr Morrow "to continue doing more" series of The Checkout ([275]). 3. The primary judge inferred that the "way" Mr Morrow was suggesting for The Checkout to be made again was for CJZ to sell its shares in the Joint Venture Company to Giant Dwarf ([291]). His Honour considered that this finding was corroborated by the eventual terms of the Share Sale Agreement (referred to below) ([292]). Disputed facts and inferences about the Duck Inn meeting 1. The primary judge did not accept the reason Mr Morrow gave for not disclosing the discussions in (7) above to Mr Murray. Instead, his Honour found that it was more probable that Mr Morrow did not raise them because it would have been inconsistent with "drawing a line" under the joint venture to indicate that he was currently discussing the prospect of reinstating The Checkout with the ABC ([270]). It is significant that, while Mr Morrow's motive for not raising his communications with the ABC was relevant to the primary judge's assessment of his credit, it was not necessary to prove his intent in order to establish that his conduct was misleading or deceptive since the test is objective (although it can more easily be inferred that it was misleading or deceptive, if it was intended to mislead or deceive: Yorke v Lucas (1985) 158 CLR 661 at 666 (Mason ACJ, Wilson, Deane and Dawson JJ); [1985] HCA 65; Campomar Sociedad, Ltd v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12 at 63 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ)). 2. Mr Murray said, in paragraph 149 of his affidavit of 4 June 2020, that at the Duck Inn meeting Mr Morrow had told him that he was finding "making TV so unpleasant … that [he] never want[ed] to work in TV again" and that he could "get by doing corporate speaking gigs". Mr Murray's evidence was that he regarded this comment as incompatible with Mr Morrow having discussions with the ABC about The Checkout or another consumer affairs show. 3. In response Mr Morrow deposed (in paragraph 216 of his affidavit of 14 December 2020): "In reply to paragraph 149 of the Murray Affidavit, as at 19 February 2019 the ABC had not told me 'that the ABC wanted a consumer affairs show' or that it 'wanted The Checkout again'. I did not say that I 'did not want to work in television any more'." [Bold emphasis added.] 1. At first instance, Mr Morrow admitted that the statement in bold was not true. The primary judge found that the discussions between the ABC and Mr Morrow on 19 and 20 December 2018 and 13 February 2019 showed that the ABC was "open to the possibility of there being a further series of The Checkout, although no decision had yet been made about that" ([279]). The primary judge found that Mr Morrow's evidence as to this matter was untrue to his knowledge ([281]). 2. The primary judge accepted Mr Murray's evidence that Mr Morrow had said, at the Duck Inn meeting, that he never wanted to work in TV again. His Honour did so on the basis of Mr Murray's evidence (including his demeanour in the witness box), finding that he was "very confident that his recollection was correct" ([283]). His Honour also took into account the contents of an email sent by Mr Murray to Michael Easton (Mr Morrow and Giant Dwarf's then solicitor) on 13 June 2019, in which Mr Murray said, in part: "At the initial meeting Julian said that making TV was so unpleasant that he never wanted to work in TV again and would be happy to get by doing corporate speaking." 1. The primary judge found this email to be "a reasonably contemporaneous confirmation of the correctness of Mr Murray's recollection about what Mr Morrow said about this" ([285]). The primary judge also took into account Mr Morrow's false evidence in the paragraph of his affidavit extracted above and found that, for Mr Morrow to say that he never wanted to work in television again, "cannot have reflected his true state of mind" ([287]). 2. Ms Chrysanthou contended that the primary judge's finding that Mr Morrow had said at that meeting that he would not work in television again was erroneous. She argued that the email sent on 13 June 2019 could not be regarded as "reasonably contemporaneous" and that it was, in effect, glaringly improbable that Mr Morrow would have said any such thing. 3. I consider that it was open to the primary judge to make the finding at [287] that Mr Morrow had said that he never wanted to work in TV again. The assessment of credibility at first instance involves a number of factors, which include consistency of the statement with other statements and with the surrounding circumstances, motive and any corroboration which may be available: see generally Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431 (Pearce LJ); Watson v Foxman (1995) 49 NSWLR 315 at 318-319 (McLelland CJ in Eq). His Honour's careful reasons on this question indicated that he took into account the motive of Mr Morrow (which the primary judge found was to make Mr Murray believe that the purpose of the joint venture had come to an end so that he, Mr Morrow, could gain control of the Joint Venture Company); the fact that Mr Morrow had been prepared to make one knowingly false statement (that the ABC had not told him that it wanted a consumer affairs program or that it wanted to broadcast The Checkout again) and Mr Murray's apparently firm recollection of what Mr Morrow had said, which was confirmed by his email in June 2019. I have no reason to doubt the correctness of the primary judge's finding, which also reflected his Honour's advantage in seeing and hearing the witnesses: Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 (McHugh J); [1990] HCA 47; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 478-479 (Brennan, Gaudron and McHugh JJ); at 479-481 (Deane and Dawson JJ); [1993] HCA 78; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [41] (Gleeson CJ, Gummow and Kirby JJ); at [93] (McHugh J). The aftermath of the Duck Inn meeting 1. On 20 February 2019, Mr Morrow emailed Simon Fraser (copied to Mr Murray) suggesting a meeting to discuss how to distribute the PDV rebate. He also referred to his proposal to "draw a line under the joint venture", "given the hiatus-ing of The Checkout by the ABC" ([294]). His Honour found ([297]): "I think it likely that Mr Morrow composed the email with the object of suggesting to [Simon] Fraser, and through him Mr Murray, that his motivation in 'drawing a line under the Joint Venture' was concerned only with the PDV rebate. This email was the first in a series in which Mr Morrow in this way 'managed the message' [a term extracted from Mr Katekar's submissions] he was conveying to Mr Murray." 1. On 21 February 2019, Mr Morrow sent a follow-up message to Mr Murray ([298]) and their respective accountants (Simon Fraser and Ms Crouch) setting out how best to distribute the dividend, on two scenarios: first, the status quo (with Giant Dwarf and CJZ each continuing to own a share in the Joint Venture Company), and, second, if Giant Dwarf was the sole shareholder of the Joint Venture Company ([299]-[300]). Following his discussions with Ms Crouch, Simon Fraser sent an email to Mr Murray setting out the various options for distribution (non-franked dividend, loan or fee) ([301]) and said, in part, as follows: "If we have no position in future series, then we are probably ok to sell our share in [the Joint Venture Company] and contract to maintain our 40% entitlement to royalties. Potentially there is a format fee paid to us on ongoing series that we are not involved in the production of, say 2% (40% of a standard 5% Format fee.) This would be easier then novating the IP [intellectual property], and both parties keeping shares in a JV business. And do we want the name of the company to change as part of any possible sale by us?" [Emphasis in the primary judge's reasons for judgment.] 1. The primary judge inferred from the highlighted passage that the parties, at that time, contemplated that there was still a "possibility" that, if CJZ sold its shares in the Joint Venture Company to Giant Dwarf, there might be a further series of The Checkout ([302]). 2. On 22 February 2019, Simon Fraser spoke briefly with Mr Murray, Matthew Campbell (the CEO of CJZ) and Katie Shortland (Head of Business Affairs, CJZ). Mr Campbell and Ms Mason-Campbell were married, a matter on which Ms Chrysanthou placed some significance. In this conversation, Simon Fraser told them that he was about to meet with Mr Morrow and Ms Crouch about distributing the PDV rebate and, potentially, CJZ exiting the Joint Venture Company. Mr Campbell commented that The Checkout was not coming back, to which Mr Murray said, "Yeah, I think that's probably right but let's see what they have to say" ([304]). 3. After this discussion, Simon Fraser met with Mr Morrow, Ms Crouch and Ms Chen (who took notes). The only part of Ms Chen's notes which was not related to the PDV rebate was as follows (extracted at [307]): "Subsequent series, any format fee or some sort of fee? Need agreement with Nick [Murray]. • Current agreement does not incentivise Jules to continue doing more TCO [The Checkout] • Format fee can be gross or net". 1. The primary judge found that Ms Chen's note was reliable ([312]). His Honour also found that Mr Morrow had said (it not having been disputed by Simon Fraser) that Giant Dwarf would not be prepared to make The Checkout again under the present arrangement, that it would be better if The Checkout could be made again and that the value of past episodes of The Checkout would be greater if it were made again ([308]-[313]). Simon Fraser then raised the issue of a format fee for any future episodes of The Checkout, a possibility which he then considered to be low ([314]-[316]). 2. The primary judge noted that it was common ground that Mr Morrow made no mention of his ongoing discussions with the ABC at the meeting ([317]). 3. Following the meeting on 22 February 2019, Simon Fraser reported to Mr Murray by email ([319]) and Ms Chen reported to Mr Morrow about what had transpired. 4. The primary judge rejected Mr Morrow's evidence that an "agreement in principle", subject to Mr Murray's approval, had been reached at the meeting. His Honour referred to contemporaneous emails in support of this finding ([322]-[331]). His Honour found, at [331]: "These communications make clear to me that it was Mr Morrow's state of mind, and the fact, that no agreement, whether in principle or otherwise, had been reached between the two parties at this time." Subsequent discussions between Mr Morrow and the ABC 1. On 28 February 2019, Mr Morrow wrote to Mr Anderson to complain about the lack of progress in arranging a consumer affairs program ([335]). He said in part: "Overall the pattern looks and feels a lot more like being strung along in private and misrepresented in public than actually moving towards a new project that will fill the gap of quality public broadcast content left by dumping The Checkout." 1. This email elicited a response from Mr Carrington on 1 March 2019. There were further email exchanges between them between 1 and 4 March 2019 concerning the budget available to the ABC for such a program ([337]-[339]). Further communications between Mr Murray and Mr Morrow prior to the Share Sale Agreement 1. On 5 March 2019, Mr Morrow wrote to Mr Murray proposing a meeting. When Mr Murray phoned Mr Morrow that day or the next, Mr Morrow emphasised the urgency of resolving the issues between them so that Giant Dwarf could pay off the loan it had taken out for a Netflix show with the PDV rebate ([341]). The primary judge found that this was another example of Mr Morrow "manag[ing] the message" as to the reason why the "deal" ought be progressed ([342]). Mr Murray emailed Simon Fraser suggesting a proposed deal and seeking his advice ([343]). Reference was made to what would occur if future episodes of The Checkout were made, which led his Honour to infer that Mr Murray contemplated the possibility that Giant Dwarf would produce The Checkout again in the event that the share sale proceeded ([344]). The meeting between Mr Morrow and the ABC on 8 March 2019 and subsequent communications between CJZ and Giant Dwarf 1. On 8 March 2019, Mr Morrow and Rebecca Annetts, then an employee of Giant Dwarf who worked as a producer of The Checkout between 2017 and 2019, met with Mr Anderson and Mr Carrington at the ABC to discuss a consumer affairs program for the second half of 2019 ([347]-[351]). At the meeting Mr Anderson said that the ABC could make $3.2m available for such a program for two seasons and the previous creative control provisions would apply. Mr Morrow told the ABC ([349]) "if Nick and I can work something out which means it's possible to make The Checkout again, then I think it makes sense to do that" and "the ABC should want The Checkout". 2. Mr Morrow also told the ABC that Giant Dwarf and CJZ had reached agreement on, and were in the process of formalising, the terms for CJZ to exit "The Checkout's Production company" [the Joint Venture Company] ([351]). The primary judge found that this statement was not correct as no such agreement in principle was reached until later that day (8 March 2019) when Simon Fraser sent an email to Mr Morrow and Ms Crouch ([352]-[353]). 3. His Honour also found Mr Morrow's statement (made in an email to Mr Murray dated 13 June 2019) that he did not believe that there was a genuine prospect of The Checkout being recommissioned until "well after" CJZ and Giant Dwarf had agreed on the terms of CJZ's exit from the Joint Venture Company ([353]-[355]) to be knowingly untrue. 4. Later on 8 March 2019, as referred to above, Simon Fraser sent an email to Mr Morrow and Ms Crouch setting out the terms which CJZ proposed for the sale of CJZ's share in the Joint Venture Company to Giant Dwarf ([361]). Simon Fraser agreed that, at this point, there was an agreement in principle ([363]), which Mr Murray confirmed on 14 March 2019 in an email to Mr Morrow ([364]). 5. Later that day, Mr Morrow sent to the ABC a draft outline and term sheet for a consumer affairs program, which was to be called Are you being served? ([366]). The primary judge asked Mr Morrow to explain the differences between The Checkout and Are you being served?. Mr Morrow accepted the primary judge's observation that they sounded "quite different" and said that he believed that to be the case ([371]). 6. The primary judge said, at [372]: "Nonetheless, Mr Morrow plainly believed that a further series of The Checkout was substitutable for any series of Are You Being Served." 1. This finding was challenged by Ms Chrysanthou on the basis that it had neither been pleaded nor put to Mr Morrow. I do not consider this challenge to have been made out. It was plain, as the primary judge found, that Mr Morrow was proposing another consumer affairs program, Are you being served?, to the ABC pending Giant Dwarf's acquisition of CJZ's shares in the Joint Venture Company, following which he intended to propose further series of The Checkout ([351]). In that sense, they were substitutable since the ABC wanted one consumer affairs program and either met that description. These matters were not in dispute. There was no reason for this finding to be either pleaded or put to Mr Morrow. 2. The ABC considered Mr Morrow's proposal ([373]-[386]). In an email dated 15 March 2019, Georgina Waite (Head of Business Affairs at the ABC) asked Julia Pincus (the Senior Business Affairs Lead at the ABC) to compare the documents provided by Mr Morrow regarding Are you being served? with the corresponding documents for the sixth series of The Checkout to see if it was a "true comparison" ([378]). Ms Pincus responded later that day by email which said in part (as set out at [382]): "We have looked at the format proposal for 'Are you being Served' and in our view it is sufficiently similar to [T]he Checkout to constitute a 'spin off' from the format, whether we use the title 'Checkout' or not. The format was originally brought to us by [CJZ] who later brought on Giant Dwarf. As the format for [The Checkout] S 6 was owned 100% by the [the Joint Venture Company] as a first step, we need to ensure [CJZ] don't have a claim against Julian / Giant Dwarf in relation to this new consumer show. This could be achieved by Julian either providing us with the relevant documents to show that he now owns the 100% of the rights in the format or a 'quit claim' from [CJZ]. Ideally we would need information about any commercial arrangement reached between Giant Dwarf and [CJZ] in relation to any transfer of the format as this may impact the budget." [Emphasis in the primary judge's reasons.] 1. The primary judge was cognisant of the limited basis on which the ABC documents had been admitted ([385]). His Honour was entitled to infer that the ABC was sufficiently apprehensive about the similarity between Are you being served? and The Checkout to be concerned about a potential claim by CJZ against Mr Morrow or Giant Dwarf about Are you being served? and that the ABC had an interest in ensuring that such a claim would not be made. These inferences do not involve the hearsay use. The evidence was plainly relevant, including because it provided context to the ABC's subsequent request for a Quit Claim. 2. Later on 15 March 2019, Mr Carrington wrote to Ms Pincus as follows ([386]): "I've just spoken to Julian. The format discussions are ongoing between Giant Dwarf and [CJZ], but they seem to be headed in a positive direction. The proposal is for Giant Dwarf to own [the Joint Venture Company] to produce the series. Giant Dwarf are likely to pay a licence fee to allow the use of the title, 'Checkout'." 1. The email established that the ABC was aware of the discussions between Giant Dwarf and CJZ and understood (from previous communications) what Mr Morrow's objective was: that Giant Dwarf would own the Joint Venture Company so that The Checkout could be made again. 2. In the meantime, Mr Morrow continued to communicate with Simon Fraser with a view to finalising the share sale as soon as possible. He continued to refer to the PDV rebate as the reason for the urgency ([392]-[394]). 3. The primary judge found at [412]: "Mr Morrow's confidence that the new show, then being pitched as Are You Being Served, would 'become The Checkout' evidently reflected his confidence that he would successfully negotiate the purchase by Giant Dwarf of [CJZ's] shares in the Joint Venture Company." 1. His Honour also found, at [413], that Mr Morrow did not want Mr Murray to know of his negotiations with the ABC because he was concerned that, if Mr Murray did know, he would not sell CJZ's share in the Joint Venture Company to Giant Dwarf. To this end, Mr Morrow asked the ABC not to reveal to Mr Murray either that the ABC was in negotiations with Giant Dwarf about a new consumer affairs show or that, once CJZ had sold its share in the Joint Venture Company to Giant Dwarf, it was proposed that The Checkout be produced for broadcast ([431]). 2. Within the ABC, there were concerns about a potential conflict of interest (concerning Ms Mason-Campbell because of her husband's position in CJZ) but also the potential need for a Quit Claim. These concerns were the subject of an email between Simon Melkman (an Editorial Policy Advisor at the ABC) and Mr Carrington and Ms Waite, in which he said in part: "Georgina and I have discussed the conflict of interest issue in relation to Josie and the potential commissioning of a new consumer affairs show from Julian Morrow. She suggested it would be useful to put a few points in writing for you. We already have standard processes in place to manage conflicts arising from the fact that Josie's husband is the CEO of CJZ. She always needs to be removed from commissioning decisions relating to CJZ programs, and she needs to maintain strict confidentiality in relation to any information she gains via her ABC role that could have an impact on CJZ's business. This particular case has a few complications: (1) it's not a CJZ show per se, but it's directly related to a previous [Joint Venture Company] show - and the question of whether CJZ will be involved (I understand the intention is for them not to be involved) is a live issue with big consequences for CJZ; (2) there's apparently some tricky wrangling going on with Julian in relation to obtaining a [Quit Claim] from CJZ and licensing the Checkout title - he wants us to proceed with negotiations and commissioning decisions without informing CJZ, which would be both contentious and detrimental to CJZ; (3) Josie has a legitimate stake in the commissioning decision, since if the show is commissioned it will have a big impact on the rest of her slate (in terms of budgeting etc.), but also a clear conflict." 1. This email was not referred to by the primary judge but it was relied on by Mr Katekar in this Court and in the Court below in support of his submission, which I accept, that the ABC was alive to the potential need for a Quit Claim from CJZ over a month before Mr Murray sent his email of 21 May 2019, following which the ABC required a Quit Claim as a precondition of its further commissioning The Checkout (see below). 2. The ABC's concerns about the change in ownership led Ms Pincus to write to Mr Morrow on 2 April 2019 saying in part ([433]): "… I thought it would be useful to set out a brief summary of what we would require in that scenario as it may be relevant to your negotiations. Our preliminary thoughts are that we would need: • A quit claim from [CJZ] (and any relevant related company) releasing the [Joint Venture Company] and [Giant Dwarf] from all possible claims (including infringements of IP, breach of contract or breach of confidentiality). A transfer of rights will not in itself release the [Joint Venture Company] or [Giant Dwarf] of any claims and such claims could impact production of the program; • In order to confirm chain of title in relation to ownership of the Checkout format by [the Joint Venture Company], a solicitor's opinion in relation to the documentation which would need to trace the history of the ownership of the format. …" 1. In the meantime, on 1 April 2019, Mr Morrow sent a draft of the Share Sale Agreement to Mr Murray, referring again to the PDV rebate ([438]-[439]). On 2, 3 and 4 April 2019, Mr Morrow communicated with Mr Murray with a view to getting him to sign the Share Sale Agreement ([441], [447], [448]). The primary judge found ([449]-[450]): "Mr Morrow was obviously anxious to finalise the arrangements with Mr Murray. He agreed that he understood he then had no legally binding arrangement with Mr Murray. By now he had been offered a two-series deal at $3.2 million per season. He was intending that, if he could secure sole ownership of the Joint Venture Company, that show would be The Checkout. As Mr Katekar submitted, even if the return of The Checkout was, as at the time of the Duck Inn Meeting 'unlikely', by now the position had changed completely. Subject only to Mr Murray agreeing to sell [CJZ's] shares in the Joint Venture Company to Mr Morrow or Giant Dwarf, the return of The Checkout was a certainty." 1. The Share Sale Agreement was executed by all parties on 8 April 2019. It relevantly provided ([455]) that: 1. the Joint Venture Company would pay CJZ 40% of its net income from the exploitation of series 1-6 of The Checkout and any tax rebates relating to those series (cl 4.2); 2. CJZ would be paid 2% of the Joint Venture Company's cash budget for any subsequent series which it, or any affiliated company or subsidiary, produced (cl 4.3); 3. either of Giant Dwarf or CJZ were entitled to produce any other consumer affairs program as long as that program did not use the name of, the format of, or the intellectual property associated with, The Checkout (cl 4.6); 4. the parties acknowledge that the Joint Venture Company owned all intellectual property rights associated with The Checkout (cl 5.1); 5. the parties agreed to do all things necessary to protect the assignment in cl 5; 6. the parties gave mutual releases including relating to the transfer of shares (cll 7.1, 7.2); and 7. the parties agreed to do anything necessary to give effect to the agreement (cl 9.7). 1. Because of the importance of cl 5 to the allegation of malice to defeat the claim of qualified privilege in relation to MCOs 3-6, it is necessary to set it out in full: "5 CONFIRMATION OF INTELLECTUAL PROPERTY RIGHTS IN THE CHECKOUT 5.1. [CJZ] and [Giant Dwarf] each acknowledge that all Intellectual Property Rights in relation to The Checkout, including Format are owned exclusively by [the Joint Venture Company]. 5.2. To the extent that any IP Rights in The Checkout have not previously been assigned to [the Joint Venture Company], each of [Giant Dwarf] and [CJZ] hereby assigns to [the Joint Venture Company], with effect from the Completion Date: (a) all copyright both present and future in or to The Checkout, including in relation to Format, for the life of the copyright throughout the world; (b) all rights of action, powers and benefits accruing or the copyright subsisting in The Checkout, throughout the world, including but not limited to the right to bring proceedings and claim or recover damages for infringement of copyright or in respect of any acts of conversion arising out of any infringement of copyright, and irrespective of whether such actions, powers or benefits took place or arose before or after the date of this agreement; and (c) all other IP Rights in or to The Checkout. 5.3. [Giant Dwarf] and [CJZ] agree to do all things [the Joint Venture Company] considers reasonably necessary to perfect the assignment in this clause, including executing all documents and assisting as necessary in any application for trade mark registration in respect of The Checkout or in any protection or enforcement of the rights in The Checkout." 1. At first instance, Mr Morrow and Giant Dwarf relied on the releases in the Share Sale Agreement in answer to Mr Murray and CJZ's cross-claim in the Commercial proceedings and alleged that Mr Murray and CJZ had failed to comply with cl 9.7 by refusing to sign the Quit Claim (see below). The primary judge's rejection of these submissions was the subject of grounds of their cross-appeal (referred to below). 2. On 10 April 2019, Mr Morrow wrote to various persons at the ABC to inform them of the execution of the Share Sale Agreement and its effect ([459]). He said, in part: "In other words, the outcome I've been foreshadowing in our discussions has now happened and therefore we should now proceed on the basis that the 'Consumer Show – 2019' will be TCO 7 ie Series 7 of The Checkout, produced by the same entity that has made all previous series." 1. The primary judge concluded that this admission was true and that this was what Mr Morrow had set out to do and what he had achieved ([464]). His Honour found that Mr Morrow's motivation to persuade Mr Murray to sell CJZ's shares in Giant Dwarf was to put in place arrangements whereby Giant Dwarf would be prepared to make The Checkout again ([464]) and that Mr Morrow had deliberately concealed this purpose from Mr Murray by not disclosing it and by instructing the ABC not to divulge the negotiations to Mr Murray ([465]). 2. The primary judge found, in accordance with Mr Morrow's admission, that Mr Morrow had obtained all of the information relating to the prospect of making a further series of The Checkout in his capacity as a director of the Joint Venture Company ([474]). 3. His Honour made the following further findings, of which those in [481] and [483] are challenged by the cross-appellants: "481 It was in that context that, later on 8 March 2019, Mr [Morrow] pitched Are You Being Served to the ABC. Mr Morrow saw that show as being substitutable for The Checkout, notwithstanding any differences in format that may have existed between the two shows. 482 By 28 March 2019, the position became even clearer. By then Mr Morrow had told Ms Pincus that he was 'confident' the show Are You Being Served would become The Checkout, such confidence evidently reflecting Mr Morrow's assuredness that he would successfully consummate negotiations with Mr Murray in relation to [CJZ's] shares in the Joint Venture Company. 483 Certainly, by 1 April 2019 Mr Morrow must have seen that there was an 'opportunity' and a 'genuine prospect' of the ABC agreeing that the new consumer affairs show could be called The Checkout; and that this was an opportunity that was available not only to him, or to Giant Dwarf, but also to the Joint Venture Company. 484 Mr Morrow did not wish the Joint Venture Company to pursue that 'opportunity' so long as Mr Murray was the director of the Joint Venture Company and [CJZ] was its 50% shareholder. He asked the ABC to not inform Mr Murray of the opportunity. 485 Mr Morrow's position was that he had exercised Giant Dwarfs right of 'veto' as a member of the joint venture to disable the Joint Venture Company from pursuing the opportunity. 486 Mr Morrow, however, had done this without revealing to his fellow director, Mr Murray, his plans to cause the opportunity to become available and, once it was available, to appropriate it for the benefit of Giant Dwarf." 1. Ms Chrysanthou challenged the finding in [483] that the opportunity to make The Checkout was available not only to Mr Morrow or to Giant Dwarf but also to the Joint Venture Company. She submitted that the opportunity was not, in fact, open to the Joint Venture Company because Mr Morrow's stated and firm position was that he would not make The Checkout again on the conditions of the joint venture agreement (which required the Joint Venture Company to pay 40% of the profits to CJZ) and, accordingly, while CJZ owned a share in the Joint Venture Company there was no prospect that the Joint Venture Company would be able to take up the opportunity to produce a further series of The Checkout. Thus, as the primary judge found at [485], Mr Morrow would exercise his veto to prevent the Joint Venture Company from taking up any such opportunity. 2. The primary judge's findings at [484]-[485] demonstrate his Honour's awareness of these very matters. It does not follow from the fact that the Joint Venture Company would not actually be able to take up the opportunity of producing a further series of The Checkout (because of Mr Morrow's position and veto power), that it was not an opportunity which was in fact available to the Joint Venture Company. The only reason it would not occur was because of Mr Morrow's discontent about having to pay 40% of the profits to CJZ. His veto did not give him a licence to manipulate the situation so that CJZ would no longer be a shareholder of the Joint Venture Company and would, because of the Share Sale Agreement, no longer be entitled to its 40%. 3. The finding at [486], which is also challenged, follows from the primary judge's findings as to Mr Morrow's motive and credit and reflects his Honour's advantage in seeing and hearing the witnesses as well as the primary judge's close attention to the sequence of events and the objective probabilities. 4. The Joint Venture Company could have produced The Checkout if Mr Morrow and Mr Murray had been able to resolve their differences in time for the ABC's commissioning timetable. Indeed, absent an assignment of such intellectual property rights as the Joint Venture Company held in The Checkout, no one other than the Joint Venture Company could have produced The Checkout. There were several ways in which this could have occurred: the best case for Mr Morrow was that Mr Murray would simply relinquish CJZ's rights to the 40% and be content with a % format fee referable to the cash budget. The best case for Mr Murray was that The Checkout would be made and he would receive 40% of the net profit. However, Mr Morrow's best case was only achievable (as the primary judge found) if Mr Murray was unaware of the genuine prospect that the ABC would recommission The Checkout and Mr Murray's best case was not achievable because of Mr Morrow's determination to use his veto. There must have been a possibility that they could come to an arrangement which was acceptable to them both to take up the opportunity which presented itself. The primary judge's finding was that, had Mr Murray known of the genuine prospect, he would not have signed the Share Sale Agreement on its then current terms ([544]-[545]). 5. For these reasons, the cross-appellants have not made out their challenges to the primary judge's findings at [483], [484] or [486] (facts 20, 21 and 22 in the schedule). Whether Mr Morrow's conduct on behalf of Giant Dwarf breached an implied term in the joint venture agreement 1. Mr Murray and CJZ alleged and the primary judge found ([103]-[131]) that, at least from 26 June 2012 until 8 April 2019, there was an implied term of the joint venture agreement that Giant Dwarf and CJZ would: "a. cooperate and do such things as are necessary to enable the other party to have the benefit of the JV Agreement; b. inform the other party of any opportunity to produce any further series of The Checkout (or any equivalent or similar consumer affairs program) for the ABC; c. direct any such opportunity to their joint venture company incorporated for that purpose, being [the Joint Venture Company]; d. not to divert or seek to capture any such opportunity for their personal benefit and to the exclusion of the other." 1. The implied term was relied on by Mr Murray and CJZ in two ways: first, it was alleged that its breach constituted a breach of the joint venture agreement which entitled them to damages; and, second, it was alleged that the terms of the implied term required Mr Morrow and Giant Dwarf to disclose to Mr Murray and CJZ the existence of the opportunity (thereby creating a duty to disclose) which meant that the failure to disclose the opportunity amounted to misleading and deceptive conduct by silence. 2. Ms Chrysanthou did not dispute that a. was an implied term of the joint venture agreement but she contended that b., c. and d. above were inconsistent with first, the circumstance that Giant Dwarf and CJZ were competitors; and, second, the parties' right of veto in respect of any project undertaken by the Joint Venture Company. 3. The primary judge found, at [490], that Giant Dwarf was in breach of the implied term which required it to disclose to CJZ (and thus to the Joint Venture Company) the opportunity to produce a further series of The Checkout. The cross-appellants challenge to the implied term will be addressed later in these reasons. Whether Mr Morrow was in breach of his duty as a director of the Joint Venture Company 1. Mr Murray and CJZ alleged that Mr Morrow owed the Joint Venture Company a fiduciary duty to act in its interests and not, without fully informed consent, to put himself in a position of conflict or misuse his position for advantage (paragraph 20 of the amended Commercial List cross-claim statement). They also alleged that Mr Morrow and Giant Dwarf each occupied a position of special advantage in relation to the Joint Venture Company on the bases that they had day-to-day management of its financial affairs, employed the staff who produced The Checkout, undertook negotiations on behalf of the Joint Venture Company with the ABC and knew that Mr Murray and CJZ trusted them and relied on them because of that special relationship (paragraph 21 of the amended Commercial List cross-claim statement). 2. Ms Chrysanthou submitted in this Court that the primary judge was not entitled to make findings on whether Mr Morrow and Giant Dwarf owed (and breached) a fiduciary duty to the Joint Venture Company and that his Honour's findings (at [491]-[502]) on those issues ought be "excised from the judgment". I reject this submission. CJZ had alleged such a breach of fiduciary duty (which was denied by Ms Chrysanthou's clients). Further, the amended response to cross-claim filed on behalf of Mr Morrow and Giant Dwarf, included in the issues likely to arise whether Mr Morrow or Giant Dwarf owed a fiduciary duty to the Joint Venture Company and whether such duty, if owed, was breached. The primary judge was not only entitled, but also required to determine the issues which the parties had identified in the pleadings and otherwise. The existence of the fiduciary duty was relevant to the question whether CJZ and Mr Murray had a reasonable expectation that Mr Morrow would disclose certain matters to them. 3. The primary judge found that Mr Morrow breached his duty as a director of the Joint Venture Company not to use his position to gain an opportunity for himself or for Giant Dwarf which would be to the detriment of the Joint Venture Company and that this opportunity required him to disclose the existence of the opportunity to Mr Murray (and through him, CJZ) and obtain informed consent before Mr Morrow or Giant Dwarf could take advantage of the opportunity ([491]-[502]). Whether Mr Morrow was in breach of any duty owed to CJZ as shareholder of the Joint Venture Company 1. Mr Murray and CJZ also alleged that Mr Morrow owed a fiduciary duty to CJZ, as a shareholder of the Joint Venture Company, which was breached by Mr Morrow's conduct in diverting the opportunity to make The Checkout away from the Joint Venture Company while CJZ was its shareholder (paragraphs 42 and 43 of the amended cross-claim statement). 2. Mr Katekar had relevantly submitted that the Joint Venture Company was akin to a partnership and that Mr Morrow had control over the Joint Venture Company's relationship with the ABC. Mr Katekar submitted that, in these circumstances, Mr Morrow was obliged to divulge information of which he knew CJZ to be ignorant, which would have influenced CJZ's decision whether to sell its interest in the Joint Venture Company ([508]-[510]). 3. His Honour said that it was not necessary for him to determine this question as he had already found that Mr Morrow had breached the duty which he owed to the Joint Venture Company. However, the primary judge said that, had it been necessary for him to decide the question, he would have found that there was such a duty and that it was breached ([513]). Although his Honour did not expressly accept Mr Katekar's submissions on why such a duty existed and had been breached, his Honour said at [511] that there "is substance in these submissions". Whether Mr Morrow and Giant Dwarf were guilty of misleading or deceptive conduct 1. The events referred to above form the basis of Mr Murray's claim for an order for rescission of the Share Sale Agreement on the basis that he had entered into it on the basis of Mr Morrow's misleading or deceptive conduct. (The primary judge made an order for rescission on that basis.) 2. As the primary judge considered that Mr Morrow acted on his own behalf and as agent for Giant Dwarf, his Honour referred to Mr Morrow's conduct without specific reference to Giant Dwarf as there was no relevant distinction ([516-517]). The motivation representation 1. The conduct which was alleged to be misleading or deceptive conduct comprised the "motivation representation", which consisted of representations that: 1. Giant Dwarf wanted to buy CJZ's shares in the Joint Venture Company in order to access the PDV rebate to repay a loan (the PDV representation); and 2. Giant Dwarf, through Mr Morrow, no longer wished to produce television programs ([519]-[520]). 1. As to (1), the primary judge found that Mr Morrow's communications with Mr Murray were apt, and intended, to convey that his sole motivation for wanting CJZ to sell its share in the Joint Venture Company to Giant Dwarf was to access the PDV rebate to repay a loan ([521]) and that Mr Morrow had, in fact, made the PDV representation ([528]). The finding in [528] is challenged in ground 7 (fact 29). 2. As to (2), the primary judge found that Mr Morrow had made the statement and had intended to deflect Mr Murray's attention from the prospect of Mr Morrow's future involvement in The Checkout, but that Mr Murray had not relied on it ([530]-[531]). 3. The cross-appellants challenged the finding that the PDV representation was made. Ms Chrysanthou submitted that the primary judge failed to have regard to or give necessary weight to that fact that the mention of the PDV rebate was made in the context of the discussions between Mr Murray and Mr Morrow, including at the Duck Inn on 19 February 2019, about "drawing a line" under the joint venture, in part because Mr Morrow was not prepared to produce The Checkout under the then current arrangements (which required him to pay 40% of the net profit to Mr Murray). 4. The primary judge accepted that Mr Morrow had referred to the benefit of producing The Checkout again ([524]) and that this was at least a possibility at the time Mr Morrow was pressing for the Share Sale Agreement to be executed so that he could use the PDV rebate to repay a loan. The primary judge's explanation for finding that the PDV representation was made appears substantially from [527] which appears immediately prior to the finding at [528] that it was made and said: "However, as Mr Murray said in a later email, this was a 'blue sky' statement. That is, it reflected as a matter of generality what Mr Murray must have contemplated Mr Morrow and Giant Dwarf might do in the future. But the form of the Share Sale Agreement, and Mr Morrow's emails and various communications in March and April 2019 did not reveal, or even suggest, that he had immediate plans, at least from 8 March 2019, to produce a series called The Checkout as soon [as] the share transfer from [CJZ] to Giant Dwarf was completed." 1. In my view, the primary judge was correct to find that Mr Morrow implicitly represented that his sole motivation in wanting the Share Sale Agreement executed was to obtain access to the PDV rebate. Although Mr Morrow had told Mr Murray that he would like to produce The Checkout again, this was not presented as an imperative, much less an urgent one, for the share to be transferred, whereas the need for cash to repay the loan for the Netflix show from the PDV rebate was repeatedly given as a reason to effect the share transfer. The cross-appellants have not made out their challenge to this finding. The PDV representation and the motivation representation were both made and were misleading or deceptive. The misrepresentation by silence 1. The primary judge summarised Mr Murray and CJZ's case that: 1. by not disclosing the nature and extent of Mr Morrow's communications with the ABC in the period leading up to the execution of the Share Sale Agreement, Mr Morrow engaged in misleading or deceptive conduct because CJZ had a reasonable expectation that Mr Morrow would disclose any information of which he was aware regarding the ABC's desire or intention to commission a further series of The Checkout or any similar or equivalent program; 2. such information was relevant to Mr Murray's decision whether to sell CJZ's share in the Joint Venture Company; and 3. Mr Morrow had deliberately withheld such information from CJZ because he knew that if Mr Murray knew of the communications, Mr Murray would be loath to sell CJZ's share in the Joint Venture Company and would not have done so ([532]). 1. The primary judge accepted these submissions and found, at [535], that Mr Morrow's silence (failure to disclose) in the period from 19 February 2019 to 8 April 2019 relating to the progress and status of his negotiations with the ABC and his "half-truths" (in the motivation representation) constituted misleading or deceptive conduct. In my view, the primary judge's findings were not only open but also correct, for the reasons given by his Honour. The alleged implied term 1. The primary judge found at [537] that the joint venture remained on foot until the execution of the Share Sale Agreement on 8 April 2019 and that it was an implied term of the joint venture agreement that "Giant Dwarf was obliged to inform [CJZ] of the 'opportunity' that … arose from 8 March 2019 to produce a further series of The Checkout or of any equivalent or similar consumer affairs program". This was a reference back to the implied term which was pleaded (as set out in [106]) and accepted at [131] (the implied term finding) as follows: "At least from 26 June 2012 until 8 April 2019, it was a term of the JV Agreement that Giant Dwarf and [CJZ] would: a. cooperate and do such things as are necessary to enable the other party to have the benefit of the JV Agreement; … b. inform the other party of any opportunity to produce any further series of The Checkout (or any equivalent or similar consumer affairs program) for the ABC; c. direct any such opportunity to their joint venture company incorporated for that purpose, being [the Joint Venture Company]; d. not to divert or seek to capture any such opportunity for their personal benefit and to the exclusion of the other". The finding of reasonable expectation 1. The primary judge found further: "538 It must follow from this that Mr Murray and [CJZ] had a reasonable expectation that Giant Dwarf would comply with this term and disclose the opportunity that I have found had been presented. 539 It may be that, throughout this period, Mr Murray's state of mind was that The Checkout was 'not coming back' and that it was 'dead'; as evidenced by Mr Campbell's statement immediately before Mr Simon Fraser's meeting with Mr Morrow, Ms Crouch and Ms Chen on 22 February 2019 and Mr Murray's statement to Mr David Knox on 17 March 2019. But that confirms, rather than contradicts, that there was a reasonable expectation on the part of Mr Murray and [CJZ] that Mr Morrow reveal that the opportunity had arisen and that there was a significant prospect of The Checkout 'coming back'." 1. The cross-appellants challenged the finding at [537] and contended that, instead of that finding, the primary judge ought to have found as follows: "At all times before executing the Share Sale Agreement, [CJZ] and Mr Murray relied on information obtained directly from the ABC (and not disclosed to Mr Morrow or Giant Dwarf) in making their assessment of the likelihood of the ABC funding a further series of The Checkout. [CJZ] obtained legal advice about the terms of the Share Sale Agreement before executing it. Mr Murray reviewed, multiple times, the terms of the Share Sale Agreement, including the reference to the production of future series of The Checkout and Giant Dwarf's exclusive rights, before executing it. In executing the Share Sale Agreement, Mr Murray relied on information and representations made by the CEO of [CJZ], Matthew Campbell." 1. The cross-appellants also challenged the finding at [538] that Mr Murray and CJZ had a reasonable expectation that Giant Dwarf would comply with the implied term and disclose the opportunity which had been presented (the reasonable expectation finding). Ms Chrysanthou contended that the primary judge ought to have found, instead, that: "At all times during the Joint Venture Agreement or alternatively after 22 February 2019, Mr Murray or [CJZ] did not have an expectation that Giant Dwarf or Mr Morrow would inform [CJZ] or the Joint Venture Company if Giant Dwarf had an opportunity to produce a television program that was not The Checkout." 1. Ms Chrysanthou contended that the implied term finding was fundamental to the reasonable expectation finding, which in turn formed the basis for the finding of misleading or deceptive conduct. She submitted that the implied term finding ought be set aside and that, if it were, the reasonable expectation finding and the finding of misleading or deceptive conduct could not stand. 2. Ms Chrysanthou submitted that the primary judge had failed to apply the five criteria for the implication of a term articulated in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283 (approved in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24): "(1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract." 1. Ms Chrysanthou submitted that the implied term found by the primary judge: 1. was neither reasonable nor equitable because Giant Dwarf and CJZ were competitors who retained the right to produce rival shows; 2. was unnecessary since the Joint Venture Company was the only entity which was entitled to produce The Checkout because it owned the intellectual property rights to the program and whether it did so or not depended on whether CJZ (Mr Murray) and Giant Dwarf (Mr Morrow) could agree to do so; 3. it was not capable of clear expression, as evidenced by the different ways in the which the implied term was formulated throughout the primary judge's reasons; and 4. it was contrary to the express terms of the joint venture agreement and, in particular, the right of each party to veto further production of The Checkout and the term that its sole purpose was to produce The Checkout and no other program. 1. In response, Mr Katekar contended that: 1. the primary judge was correct to find that the implied term was necessary to protect the parties' rights in the joint venture and that it was not to the point that the joint venture could have acted to enforce breach of its intellectual property rights (if both parties had agreed to co-operate for that purpose, which was not a given, in light of the shareholders' power of veto); 2. the shareholders' power of veto was not inconsistent with an obligation by, say, Giant Dwarf, of an obligation to inform CJZ of an opportunity to produce a new series of The Checkout; and 3. there was no error in extending the implied term to "an equivalent or similar show". 1. However, Mr Katekar also contended that although the existence of an implied term was a sufficient condition to give rise to a reasonable expectation of disclosure (so as to render failure to disclose misleading or deceptive), it was not a necessary condition because there were several bases on which a reasonable expectation of disclosure could arise and that these were also accepted by the primary judge. 2. It is not necessary to decide whether the primary judge erred in making the implied term finding. The finding is not determinative as this was not a claim in contract for breach of an implied term. Rather, it was a claim for rescission as a consequence of misleading or deceptive conduct which was said to arise from non-disclosure in circumstances where there was a reasonable expectation of disclosure such as to render non-disclosure misleading or deceptive (for the reasons I have given above and also for those which appear below). 3. The primary judge found, in my view correctly, that the reasonable expectation of disclosure arose not only from the putative implied term, but also from: 1. the PDV representation; 2. the nature and purpose of the joint venture agreement (to produce The Checkout) and the shareholding and identity of the directors of the Joint Venture Company (who owed fiduciary duties to act in its interests); 3. the information to which Mr Morrow was privy as a director of the Joint Venture Company as a consequence of his communications with the ABC about recommissioning The Checkout in the near future; 4. the steps which Mr Morrow took to ensure that Mr Murray, also a director, did not learn of his discussions with the ABC which bespoke an intention to mislead and deceive Mr Murray (who knew that The Checkout had been "axed" in July 2018) into believing that there was no genuine prospect of The Checkout returning in the near future; and 5. the circumstance that misleading or deceptive conduct can more readily be inferred when there is an intention to mislead or deceive (see the authorities referred to above). 1. Whereas the putative implied term principally arose from (2) above, the reasonable expectation of disclosure, the failure to disclose and the finding of misleading or deceptive conduct arose from each of (1)-(5). Thus, while the implied term required disclosure (which necessarily gave rise to a correlative expectation of disclosure), it was by no means the only source of the requirement or the correlative expectation, given the matters referred to above. I consider that the primary judge's findings as to the reasonable expectation of disclosure were amply warranted by the evidence. No error has been shown. 2. For the reasons given above, none of the various challenges made to the finding that Mr Morrow and Giant Dwarf engaged in misleading or deceptive conduct to induce, and which had the effect of inducing, Mr Murray and CJZ to enter into the Share Sale Agreement on the terms provided by that agreement has been made out. Causation 1. The primary judge found, on the basis of Mr Murray's evidence, which he accepted, that if Mr Morrow had disclosed to Mr Murray the nature of his discussions with the ABC and the opportunity which had arisen, he would not have caused CJZ to sell its share in the Joint Venture Company on the terms of the Share Sale Agreement ([544]-[545]). Ms Chrysanthou did not challenge this finding. The relief ordered as a consequence of the misleading and deceptive conduct claim 1. The primary judge's reasons for ordering rescission were ([546]): "I also accept the submission made on behalf of Mr Murray and [CJZ] that the appropriate relief that should be awarded to Mr Murray and [CJZ] in these circumstances is an order under s 237 of the Australian Consumer Law rescinding the Share Sale Agreement." The cross-appeal against the orders made on the cross-claim brought by CJZ against Giant Dwarf and Mr Morrow 1. The grounds of cross-appeal relating to the relief granted on the cross-claim are as follows: "8. The primary judge erred in ordering recission of the Share Sale Agreement, which error itself proceeded upon erroneously finding the conduct of [Giant Dwarf and Mr Morrow] was misleading or deceptive where he ought not to have found: (a1) Mr Morrow or Giant Dwarf engaged in misleading or deceptive conduct; (a) There was an implied term of the Joint Venture Agreement as identified at Judgment [36], [109], [114], [115], [119], [127], [130], [131], [428], [470], [490], [537] (b), [761], [1069], [1070] - [1072] and [1074]; (b) The conduct of [Mr Morrow] was unlawful or breached any duty owed as identified at Judgment [490] - [513], [514] - [549], [821], [822], [918], [958], [974]; (c) [CJZ] did not repudiate the Share Sale Agreement as identified at Judgment [670] - [671]; (e) The matters identified as erroneous in grounds 1 to 7A above; 9. The primary judge erred in the exercise of his discretion in ordering recission in the circumstances of the facts of the case." 1. Apart from 8(c), ground 8 has been addressed above. Ground 8(c) is addressed below. For the reasons given the ground has not been made out because none of the sub-paragraphs has been made out. 2. In support of ground 9, Ms Chrysanthou contended that [546] (extracted above) did not amount to reasons for rescission and that the primary judge had failed to address any of the arguments she had put as to why rescission was not an appropriate remedy even if misleading or deceptive conduct had been established. She submitted that, had the Share Sale Agreement not been executed, there would have been no further series of The Checkout, Mr Morrow would have made Are you being served? and Mr Murray would have been in no better position. She submitted that this Court ought set aside the order for rescission even if it did not disturb the findings that Mr Morrow's misleading or deceptive conduct had caused Mr Murray to sign the Share Sale Agreement. 3. Many of the reasons put forward by Ms Chrysanthou in her submissions as to why recission ought not have been granted pertain to challenges to findings of fact which have not been made out. However, she separately contended that rescission was an inappropriate remedy because it required parties who were obviously incompatible to remain as part of a joint venture whereas the effect and purpose of the Share Sale Agreement was to sever their relationship and enable each to continue as competitors without regard, or recourse, to the other. She submitted that this Court ought not intervene to set aside the order for rescission because otherwise, it would be forcing parties who wanted to separate back into a company where the only avenue for exit (given the unlikelihood of resolution by agreement) would be for the Joint Venture Company to be wound up on the just and equitable ground pursuant to s 461(1)(k) of the Corporations Act 2001 (Cth). 4. It is telling that Mr Morrow and Giant Dwarf did not propose, either at first instance or on appeal, an alternative remedy to rescission. While Mr Murray and CJZ sought damages, their claim was rejected by the primary judge because, as referred to above, his Honour accepted that Mr Morrow would have refused to produce The Checkout again on the terms of the joint venture agreement. In these circumstances, Ms Chrysanthou's criticism of the primary judge that his Honour failed to consider the full range of options would appear to be unwarranted. It would appear that they contend that there ought be no adverse consequence to them from their wrongful conduct. In other words, Mr Murray and CJZ are to be left without a remedy, if Ms Chrysanthou's argument is accepted. This is an unattractive submission, not least because the injured parties (Mr Murray and CJZ) sought rescission and therefore can be taken to have preferred it to being bound by the Share Sale Agreement. 5. The effect of the order for rescission of the Share Sale Agreement is to deprive Mr Morrow and Giant Dwarf of the fruits of their misleading or deceptive conduct and to put the parties in the position they would have been in had the conduct not occurred. This consequence is consistent with the related principle that, generally speaking, the appropriate measure of damages for misleading or deceptive conduct is the sum sufficient to put the injured party in the same position, as far as money can do it, as if the wrongful conduct had not occurred: Marks v GIO Australia Holdings Limited (1998) 196 CLR 494; [1998] HCA 69 (Marks v GIO) at [41] (McHugh, Hayne and Callinan JJ). Although relief under s 237 of the Australian Consumer Law is not to be confined to common law remedies (Marks v GIO at [40]), restoration of the parties to the status quo ante can often be an effective way of undoing the wrong. 6. I appreciate that it may be that the dismissal of the cross-appeal and, in particular, ground 9 may lead to further litigation (a winding-up application). However, it does not follow from the circumstance that orders will not finally resolve all of the issues between parties, that no orders ought be made, particularly where no other order has been sought. In circumstances where the primary judge had power to make an order for rescission of the Share Sale Agreement pursuant to s 237 of the Australian Consumer Law and neither the injured parties nor the wrongdoer has proposed any other viable substantive relief (apart from damages or equitable compensation, which was refused), I am not persuaded that the order for rescission was other than appropriate. 7. For the reasons given above, ground 9 has not been made out. Conclusion 1. For the reasons given above, I am not persuaded that any of the grounds of cross-appeal have been made out. The facts relating to the period after execution of the Share Sale Agreement on 8 April 2019 1. On 7 May 2019, Ms Pincus confirmed that Mr Carrington had approved two further series of The Checkout ([556]). On 13 May 2019, Mr Morrow sent his budget for The Checkout to the ABC. It was in the same format and contained almost the same figures as had appeared in the budget he had sent the ABC for Are You Being Served? ([557]-[558]). 2. Also on 13 May 2019, Craig Reucassel, who had been a writer and presenter of the first six series of The Checkout, and was a director and shareholder of Giant Dwarf, sent a text to Mr Murray intimating that The Checkout was rumoured to be returning ([561]). Mr Murray's response was sceptical. Mr Reucassel responded: "That's not what I hear. I'd be looking at your JV terms." The matters complained of and the alleged injurious falsehoods 1. Rather than list each of the MCOs and the alleged injurious falsehoods (IF), I propose to set them out largely in their place in the chronology (and identify them by headings). The email from Mr Murray to the ABC on 21 May 2019 (MCO 1 and IF 1) 1. On 21 May 2019, Mr Murray wrote to Mr Anderson with a copy to Mr Carrington in the following terms ([568]): "Last week I was contacted by Craig Reucassel saying that he had heard a rumour that The Checkout was bring recommissioned. He asked what I had heard. Some of our production staff have now heard the same - we assumed the rumour was possibly contingent on additional funding flowing from a Labor government being elected. However, given the way that Julian Morrow behaved when the show was put into hiatus, we also assumed there would be no chance of the show returning. Also Julian did not mention his negotiations with you to me at all. … Many of the key Checkout team have indicated their reluctance to work on the series without a circuit breaker protecting them from Julian. (For instance, even Craig has in the recent past asked me to take over from Julian). I will no longer be that circuit breaker as Julian has asked that [CJZ] leave the [Joint Venture Company]. We now believe that in doing so, he may have breached his duties as a director of the company by not informing us of the negotiations to bring the show back. Accordingly, if the show proceedings [sic], it is likely to be the subject of litigation which will probably result in internal ABC documents and correspondence between Julian and the ABC being subject to subpoena. We obviously would like to avoid that. I should say that I am not suggesting any wrongdoing on the part of the ABC - you were not to know the contents of the discussions between Julian and us about the JV. We had always believed that cheaper, fresher shows featuring some of the same key on air talent would be a more preferable course for the ABC than to bring back [T]he Checkout. As a result we have put a lot of effort and resources into that area. Could you as a matter of urgency let me know the situation with the production?". [The primary judge's reasons emphasised the defamatory imputations by red underlining (in bold above) and the words alleged to constitute the injurious falsehood in red text (in italics above).] 1. The primary judge found that the alleged imputations in this email were not defamatory (there is no challenge to this finding). 2. Mr Anderson responded on 22 May 2019, assuring Mr Murray "that the ABC takes the matters raised in your email extremely seriously." Later that day, Mr Carrington sent an email to Mr Morrow which attached a letter, which included the following: "As you will appreciate going forward with the next series of The Checkout is a significant and strategic decision for the ABC, both financially and from an audience reach perspective. … I understand that you have provided us with a redacted copy of the Share Sale Agreement between Giant Dwarf and [CJZ]. ABC Legal have reviewed this and whilst on its face it confirms the intellectual property chain of title in favour of Giant Dwarf, on this occasion our risk tolerance for the project is extremely low and we will require more comfort from you. To assure the ABC that all relevant matters are in order, could you please arrange for a quit claim from [CJZ] and any relevant related company confirming that they have no claim against the ABC, yourself, Giant Dwarf, [the Joint Venture Company], and any relevant related company in relation to further series of The Checkout." 1. The primary judge's finding that Mr Murray's email of 21 May 2019 had brought about this letter was not challenged. Nor was his Honour's finding that Mr Murray's email had caused the ABC to "revive its requirement that Mr Morrow produce a Quit Claim from [CJZ]" ([574]), in circumstances where the ABC had previously been content to accept that the transfer of shares in the Joint Venture Company from CJZ to Giant Dwarf was sufficient to protect the ABC's interests ([575]). 2. On 29 May 2019, Mr Carrington sent an email to Ms Pincus informing her of his intention to "pull [The Checkout] project" if no signed Quit Claim was received ([577]). On 30 May 2019, Kate Gilchrist, the Acting Head of Legal Operations at the ABC, sent a final version of the Quit Claim to Mr Morrow, requiring it to be signed by the morning of 4 June 2019 before the Content Executive meeting on that day ([578]). Later on 30 May 2019, Mr Morrow sent the draft Quit Claim to Mr Murray for his signature, relying on cl 5.3 of the Share Sale Agreement (which required the parties to do all things necessary to transfer the intellectual property rights in The Checkout to the Joint Venture Company). 3. The operative clause of the Quit Claim was: "2.3 [CJZ] releases and discharges: (a) [the Joint Venture Company], other than as set out in clause 4.3 [which provided that the Joint Venture Company pay CJZ the 2% fee] of the Share Sale Agreement; and (b) the ABC, and their related entities, and current and former officers, employees and agents as applicable, from any and all existing and future Claims wherever, whenever and however arising, known or unknown, which arise out of or are incidental to the production of any series of The Checkout produced subsequent to the date of this Deed." 1. As Mr Morrow had not received a response from Mr Murray by 4 June 2019, he sent Mr Anderson an email which said: "As you know, we have been talking since October last year about the prospect of bringing The Checkout back to ABC TV. As I write to you this morning, The [Joint Venture Company] (the same entity which has produced the previous six series of The Checkout and is now a wholly owned subsidiary of Giant Dwarf Pty Ltd) stands ready, willing and able to produce a seventh series. In order to deliver [Season] 7 to meet the ABC's preferred broadcast date, pre-production needs to commence on 17 June 2019. I have provided to the ABC documentary proof that all intellectual property rights in The Checkout are held by The Checkout Pty Ltd. (I set out relevant terms of the Share Sale Agreement between [CJZ] and Giant Dwarf were set out in my email to you and Michael [Carrington] on 22 May 2019, but it is also attached). There is, with respect, no convincing basis for a realistic concern about the chain of title in the series at this point. Even if there was, the TC07 contract includes a warranty from The Checkout Pty Ltd that it holds 'full right and title' to make the series, and an indemnity in the ABC's favour re any breach of that indemnity. … The situation we are in however is that it seems unlikely I will be able to provide the fully executed Deed of Quit claim by the morning. … I will continue to make all reasonable efforts to provide the executed Deed of Quit claim to the ABC as soon as possible." [Emphasis added to indicate the passage which the primary judge considered to be notable at [204] and [588].] 1. Later on 4 June 2019, Mr Carrington emailed Mr Morrow to confirm that the ABC required the Quit Claim before commissioning the program ([589]). Communications ensued between Mr Morrow and Mr Murray in the course of which Mr Murray expressed his disinclination to sign the Quit Claim. In an email to CJZ's in-house lawyer, Mandy Chapman, Simon Fraser and Ms Shortland (all in-house to CJZ), Mr Murray set out his position ([599]). He concluded the email by saying: "Perhaps we could negotiate to rescind the [Share Sale Agreement], or hold out completely." 1. On 11 June 2019, Mr Carrington wrote to Mr Morrow, acknowledging receipt of the Share Sale Agreement ([600]). He said: "… The ABC has previously said that, on its face, the Share Sale Agreement appears to confirm the intellectual property chain of title in favour of Giant Dwarf. That is not the issue we are seeking to address with the quit claim. We want to ensure that [CJZ] cannot make any claim in relation to further series of The Checkout, for example, in respect of the validity of the Share Sale Agreement." The conversation between Mr Murray and Ms Pincus on 11 June 2019 (MCO 2 and a particular of injurious falsehood) 1. On 11 June 2019, Mr Murray spoke to Ms Pincus, who recorded the substance of the conversation in an email to Ms Waite sent on the same day. The email said: "I called Nick Murray this afternoon following his call to you earlier today and summarise the brief conversation as follows: ● I explained that you had been away for 5 weeks and were now at home ill but you were keen for me to call him back on your behalf; ● Nick explained that he had been provided with a quit claim marked 'draft 8' and wanted to understand who it had come from; ● I explained that, given the history of [The Checkout], we have requested a quit claim to ensure all relevant parties aware of and happy for a possible production of a subsequent series of [The Checkout] to proceed. As it was at our request, [Mr Morrow] had asked us to provide our standard quit claim doc. We agreed but made clear that we would not get involved in the negotiation of the document; ● [Mr Murray] says he is not wanting to 'deny' the show being made but thinks has been misled … 7 meetings held leading to the signing of the share transfer agreement; ● [Mr Murray] says that [Mr Morrow] said that he needed share transfer as he needed to get access to cash in the bank account – made no reference to possible further production of [The Checkout]; ● I asked if he had given [Mr Morrow] indication of why not signing quit claim and he said he had but that [Mr Morrow] 'is the new millennials' [S]teve [V]izard ([S]teve [Vizard] had penalty imposed by [Federal Court] for breach of director's duty). ● [Mr Murray] said that he was just this moment about to reply to a letter from [Mr Morrow's] lawyer to set out again why he was not prepared to sign the quit claim. ● [Mr Murray] thanked me for returning his call. He did not give the impression that he was in any way angry with the way ABC had handled the matter (perhaps not surprisingly)." [The primary judge's reasons emphasised the defamatory imputations by red underlining (in bold above) and the words alleged to constitute the injurious falsehood in red text (in italics above).] The email from Mr Murray to Ms Pincus and Ms Chapman dated 12 June 2019 (MCO 3) 1. After the conversation with Mr Pincus (documented above), Mr Murray sent an email to Ms Pincus and Ms Chapman, as follows: "Thanks for your time yesterday afternoon. As noted, we are in a very unfortunate situation with Julian Morrow and Giant Dwarf which relates to Julian's conduct between late 2018 and 8 April 2019, when we transferred out interest in The Checkout to Giant Dwarf at Julian's urgent request. Julian represented that he urgently needed to access PDV funds held by our Joint Venture [C]ompany to repay a loan connected to another production in a tax effective way. We had been told by both the ABC and Julian that there was no chance of the show returning for a seventh series. In reliance on those representations, we agreed to transfer our shares in the [Joint Venture Company] to Giant Dwarf without payment. It appears that Julian was not transparent regarding discussions he had been having with the ABC surrounding a further series of The Checkout and another consumer affairs program (which would itself have been problematic for the [joint venture]). It also appears that he may have intentionally omitted critical details he was obliged to disclose as a director of Jigsaw Dwarf, to us as a 50% shareholder. As I mentioned, Julian has now instructed the solicitor Michael Easton to represent him. Accordingly, due to the pressure Julian and his lawyer are putting us under to sign the Quit Claim, we will also need to instruct external counsel. I hope that we can find a resolution to the issues we have with Julian without further involving the ABC. However, we will not be in a position to execute the Quit Claim in the near future and need to put the ABC on notice that there is a dispute concerning the ownership of the underlying IP for [T]he Checkout and the ownership of The Checkout Pty Ltd (formerly Jigsaw Dwarf) as a result of Julian's conduct." [The primary judge's reasons emphasised the defamatory imputations by red underlining (in bold above) and the words alleged to constitute the injurious falsehood in red text (in italics above).] 1. Later that day, Mr Morrow wrote to Mr Murray saying that it would be a shame if their disagreement stopped The Checkout ([607]). 2. Mr Easton (Giant Dwarf's then solicitor) sought copies of Mr Murray's correspondence from the ABC, which refused to provide it but said that it would ask Mr Murray to provide it to Giant Dwarf. Ms Gilchrist also said in her email of 14 June 2019 ([610]), implicitly referring to Mr Murray's email of 12 June 2019 to Ms Pincus: "The ABC acknowledges that the Share Sale Agreement appears to demonstrate on its face that [the Joint Venture Company] is the sole owner of all copyright and other intellectual property subsisting in the program. Please note the ABC first requested a quit claim from your client on 2 April 2019 prior to the execution of this Share Sale Agreement. We confirm that [CJZ] has written to the ABC to put the ABC on notice that there is a dispute concerning the ownership of the underlying intellectual property for The Checkout and the ownership of [the Joint Venture Company]." The email from Mr Murray to Ms Pincus dated 14 June 2019 (alleged to constitute an injurious falsehood) 1. On 14 June 2019 Mr Murray sent an email to Ms Pincus, on which Mr Morrow (on behalf of Giant Dwarf) relied to support its injurious falsehood claim ([619]-[620]). The email said: "Thanks for this - and yes, of course it makes sense that the ABC would require a corresponding Quit Claim from us if the position were reversed. You are right about the contents of the ABC press release and [CJZ] was completely on board with the reasons for the hiatus. Craig Reucassel and I were very disappointed about Julian's public response to this news. His actions at that time resulted in various ABC representatives telling us (i.e. [CJZ]) that the show was now cancelled instead of on hiatus, and would not be returning under any circumstances. At that time, Julian also had a massive and very public argument in the foyer of the ABC with David Anderson who threw Julian out of the building. The clear impression from witnesses was Julian would never be welcome back. Re Michael Easton's request for documents, you may not be aware that Michael has now ceased acting for Julian as of last night. He has been replaced by Ben Kay from Kay & Hughes. This morning Ben has sent us a very aggressive, formal legal letter giving notice of proposed legal action to be commenced on Monday 17th June with a return date of Wednesday 19th June. Accordingly, it may be preferable to wait until that occurs at which time, the correspondence between all the parties and the ABC will be subpoenaed by both sides. This is what we were trying to avoid. Julian is continuing to apply unreasonable pressure to us when he has been told on multiple occasions that we are not able to obtain our independent advice until after the weekend when Hamish Fraser from Bird and Bird returns to Australia. Julian appears to be doing [the] same to the ABC. It is very unfortunate that Julian's actions have affected the ABC at all, and we regret that. As an aside, Julian and his legal team are fully aware of our grievances and should be in no doubt about our resolve concerning his actions. I hope he is no longer misrepresenting our position." [The primary judge's reasons emphasised words alleged to constitute the injurious falsehood in red text (in italics above).] The purported termination of the Share Sale Agreement 1. The primary judge addressed Mr Morrow's contention that he was entitled to terminate the Share Sale Agreement as part of his duty to make all relevant findings (in order to avoid unnecessary remitter following an appeal) although, on the basis of his Honour's decision that the agreement ought be rescinded ab initio, the question of termination was moot. Ms Chrysanthou contended that the order for rescission ought be set aside and a finding made that Mr Morrow was entitled to terminate the Share Sale Agreement. 2. The refusal by Mr Murray to sign the Quit Claim became the subject of correspondence between the parties' lawyers. Mr Morrow retained Ben Kay from Kay & Hughes and Mr Murray retained Hamish Fraser from Bird & Bird. 3. Mr Morrow's lawyers contended that Mr Murray (and CJZ) were in breach of the following clauses of the Share Sale Agreement because Mr Murray had refused to sign the Quit Claim: "5.3: [Giant Dwarf] and [CJZ] agree to do all things [the Joint Venture Company] considers reasonably necessary to perfect the assignment in this clause, including executing all documents and assisting as necessary in any application for trade mark registration in respect of The Checkout or in any protection or enforcement of the rights in The Checkout". (Emphasis in original.) … 9.7 Each party must do anything (including executing any document) that any other party may reasonably require to give full effect to this agreement." 1. Both parties' lawyers communicated with each other and the ABC about the form of the Quit Claim. 2. There were settlement discussions between the parties on 17 June 2019, in the course of which Mr Murray asked Mr Morrow how many series of The Checkout the ABC was proposing to commission. When Mr Morrow said "one" (which he admitted in evidence was false since the ABC was proposing to commission two), Mr Murray disbelieved him, which brought to an end the settlement discussions ([673]-[676]). 3. Ms Chrysanthou challenged these findings (ground 7, fact 33 in [676]) and contended that the primary judge ought to have found that: "Mr Murray was incorrect in his belief that Mr Morrow gave a dishonest answer on 17 June 2019 to a question about how many series of The Checkout the ABC was proposing to commission." 1. Ms Chrysanthou relied on evidence as to what the term "commission" means within the ABC and the specific evidence of discussions regarding when series 8 of The Checkout would be commissioned. I am not persuaded that this evidence renders the primary judge's finding erroneous. On 19 March 2019, in an email to Mr Morrow, Mr Carrington confirmed a "two year deal", with 10 episodes of "the consumer show" for each year ([390]). In a subsequent email to the ABC dated 28 October 2019, Mr Morrow confirmed that what was reflected in the 19 March 2019 email represented what had been agreed at a meeting on 8 March 2019: namely, that the ABC had "on the basis of a two series deal over two years … decided to move forward to commission … a new consumer affairs program". Mr Morrow also accepted this in cross-examination. The "new consumer affairs program" became The Checkout once Mr Morrow confirmed that he controlled the Joint Venture Company. However, when Mr Morrow was cross-examined about his statement to Mr Murray that the ABC had only commissioned one series, he maintained that what he said was true. The primary judge was entitled to prefer what Mr Morrow had said in writing on 28 October 2019 to his oral evidence. The challenge to the finding in [676] has not been shown to be in error. 2. Ultimately, the discussions culminated in Mr Kay sending Hamish Fraser an alleged "breach notice" on 19 June 2019 which imposed a final deadline of 5pm on 21 June 2019 for the execution of the Quit Claim. Mr Kay also said that Mr Morrow required Mr Murray to confirm that: 1. the Joint Venture Company owned all intellectual property rights in The Checkout; 2. he had no claims against the ABC: 3. he "stood by" the validity of the Share Sale Agreement and would uphold its terms; and 4. that he would not pursue any injunctive relief attempting to prevent the production, broadcast or other exploitation of The Checkout ([631]-[632]). 1. On 19 June 2019 Hamish Fraser responded that Mr Murray was prepared to confirm (a) and (b) but not (c) or (d) and that it was Mr Murray's view that the Share Sale Agreement did not compel him to sign the Quit Claim "in its current form (or at all)" ([633]). Hamish Fraser then set out Mr Murray's key contentions that he was misled into signing the Share Sale Agreement and that, if he had been aware of "the true status of The Checkout", he would not have sold CJZ's shares in the Joint Venture Company ([634]). Hamish Fraser also said ([635]): "our client will not agree to execute a Quit Claim that forfeits its rights to challenge [the Share Sale Agreement]." 1. Hamish Fraser's open letter of 19 June 2019 is also significant to CJZ and Mr Murray's application for leave to appeal against the costs order and is addressed in greater detail in that context. 2. The primary judge found at [636]: "In my opinion, [Hamish] Fraser's statement that Mr Murray and [CJZ] were of the view that the Share Sale Agreement did not compel it to sign a Quit Claim in its current form 'or at all' should be read in this context. [Hamish] Fraser was making clear that his instructions were that Mr Murray and [CJZ] would not execute a Quit Claim that was so broadly drawn that it would prevent Mr Murray and [CJZ] pursuing such rights as may be available to them arising from the misleading conduct of which they complained, and which I have found has been made out." 1. Further communications ensued, including with the ABC, which extended the deadline for the Quit Claim to 28 June 2019 ([639]). 2. On 25 June 2019, Mr Kay wrote to Hamish Fraser. He alleged that Mr Murray's and CJZ's failure to comply with Mr Morrow's request pursuant to cl 5.3 of the Share Sale Agreement to execute the Quit Claim was a breach which would deprive the Joint Venture Company "of substantially the whole benefit it was intended to obtain from" the Share Sale Agreement, namely the "exclusive right to exercise the powers and benefits subsisting in The Checkout". Mr Kay asserted that this amounted to a "renunciation" (repudiation) of the Share Sale Agreement and gave a "final notice" requiring Mr Murray to execute the Quit Claim ([640]). 3. On 26 June 2019, Hamish Fraser responded, putting Mr Murray's position that: Mr Murray would not sign the undertakings because they were broader than the Quit Claim; the discussions between Mr Murray, Mr Morrow and Simon Fraser before April 2019 were not on the basis that the revival of The Checkout was imminent or that Mr Morrow was trying to revive it; if Mr Murray had known about the discussions which Mr Morrow was having with the ABC he would not have signed the Share Sale Agreement; Mr Morrow was in breach of the duties he owed to CJZ as a consequence of his being a director of the Joint Venture Company; and the Quit Claim and proposed undertaking both required Mr Murray to give up his claim to challenge the Share Sale Agreement ([641]). 4. On 28 June 2019, Mr Kay wrote to Hamish Fraser purporting to terminate the Share Sale Agreement on the basis of Mr Murray's repudiation. 5. The primary judge found that cl 5.3 was not relevant since the Quit Claim did not ask CJZ to perfect any assignment of intellectual property ([658]-[659]). The primary judge further found: "663 It is true the Share Sale Agreement contemplated the possibility that the Joint Venture Company may pay [CJZ] 'a fee of 2%' of the cash budget 'on subsequent series of The Checkout produced' by the Joint Venture Company, Giant Dwarf or any affiliated company or subsidiary. Thus, it contemplated the possibility that the Joint Venture Company or Giant Dwarf might produce a further series of The Checkout. 664 But the Quit Claim not only required [CJZ] to release the Joint Venture Company from any claim it might have in relation to any such further series. It also obliged [CJZ] to release the ABC and its 'current and former officers, employees and agents' from all 'existing and future' claims 'wherever, whenever or however arising, known or unknown' from any such further series. 665 This went far beyond anything that the Share Sale Agreement contemplated and far beyond anything Mr Morrow or Giant Dwarf could reasonably require [CJZ] to do to 'give the full effect of this agreement'." 1. The primary judge found that because Mr Murray had been misled by Mr Morrow into signing the Share Sale Agreement, his refusal to "stand by" the Share Sale Agreement could not have been a repudiation of it ([654]-[655]). Ms Chrysanthou contended that this did not follow. This contention will be addressed below. 2. On this basis, the primary judge concluded that CJZ did not repudiate the Share Sale Agreement; and that, in purporting to terminate the Agreement, the Joint Venture Company and Giant Dwarf themselves repudiated it ([670]). Challenge to the finding that CJZ did not repudiate the Share Sale Agreement 1. The cross-appellants contended that the primary judge was in error in finding that CJZ did not repudiate the Share Sale Agreement. For the reasons his Honour gave, this finding was not necessary for the decision as his Honour had found that CJZ was entitled to an order for rescission of the Share Sale Agreement. Because I consider that the order for rescission should stand, I can be relatively brief in addressing this challenge. 2. The cross-appellants argued that Mr Murray (and CJZ) had repudiated the Share Sale Agreement in the following two ways, which will be addressed in turn: 1. Mr Murray's refusal to confirm that he was prepared to "stand by" the Share Sale Agreement; and 2. Mr Murray's refusal to sign the Quit Claim. Mr Murray's refusal to "stand by" the Share Sale Agreement 1. If a person has been induced to sign an agreement as a result of misleading or deceptive conduct, it cannot amount to repudiation of that agreement for the party to insist on his or her rights under the Australian Consumer Law or to refuse to contract out of them (which appears to have been the intended effect of the undertaking sought by Mr Morrow's solicitors from Mr Murray that he "stand by" the Share Sale Agreement). This situation is to be distinguished from the situations considered in Universal Cargo Carriers Corp. v Citati [1957] 2 QB 401 at 437-438 (Devlin J), where the example was given of someone who announces that he or she will not perform a contract before the time for performance has arrived, or the cases envisaged by the majority in DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 where one party who insists on an untenable construction of the agreement may be held to have repudiated it. Mr Murray's refusal to sign the Quit Claim 1. It was a question of construction whether the Share Sale Agreement required Mr Murray to sign the Quit Claim in the form sought by the ABC. The primary judge found that it imposed no such obligation. No challenge was made to that finding. 2. For these reasons, the cross-appellants have not made out their challenge to the primary judge's finding that CJZ did not repudiate the Share Sale Agreement. Mr Murray's email to Mr Carrington dated 20 June 2019 (MCO 4) 1. On 20 June 2019 Mr Murray sent an email to Mr Carrington as follows: "I thought I should give you an update on our discussions with Julian regarding sorting out [T]he Checkout debacle. Here at [CJZ] we have dedicated the entire last week trying to grapple with the problem we find ourself in. Julian has also changed lawyers and we faced a barrage of legal letters, threats and deadlines from the new legal team. On Monday three of us (Simon Fraser our CFO, Mandy Chapman in house lawyer and me) spent all day at our external lawyer's office including the afternoon in a delightful settlement conference with Julian and his lawyer. From that meeting and with additional information gleaned since, we have been able to put a settlement proposal to Julian yesterday. While I don't know the prospects of that offer, in our view we've put a reasonable resolution on the table which is capable of being accepted by Julian. We didn't expect to find ourselves in this position, and it arises purely because Julian had revived the show while engaged in negotiations with us about us transferring our 50% share in the [Joint Venture Company] to Julian's company for nothing. We would never have given him the shares had we known about the resurrection of the show (about which Julian was obliged to inform us, but didn't). We are aware of the ABC's looming Monday deadline to sign the quit claim document and our efforts this week have been to try to achieve that by resolving all of the issues. We are hoping that can be done without Julian commencing legal proceedings - despite his repeated threats to do so. If the show can't proceed due to the dispute, then we are truly sorry. It isn't our intention to be difficult, but we have a genuine grievance arising from Julian's conduct. Our current position is supported by a key business partner of Julian's too. So we stand by our position. Hopefully you will have clarity one way or the other shortly. Many thanks for your patience." [The primary judge's reasons emphasised the defamatory imputations by red underlining (in bold above).] 1. MCO 4 arises in connection with the application for leave to appeal against the orders in the Defamation proceedings (which are considered separately below). Ms Chrysanthou separately challenged the primary judge's finding at [820] (ground 7, fact 35) that: "… Mr Reucassel [who was identified as the key business partner of Mr Morrow] expressed some support for Mr Murray's 'current position' of not executing a Quit Claim." 1. The primary judge's finding was based on Mr Murray's evidence (extracted at [819]) that: "[Mr Reucassel] said - when I told him that we - it didn't look like we were going to be signing the quit claim, he said these words: 'Go for it.'" 1. The primary judge explained his conclusion in [820]: "Although Mr Reucassel was then a director and shareholder in Giant Dwarf, Mr Morrow did not call him to contradict this evidence. I see no reason to doubt it. Assuming that Mr Reucassel did say the words attributed to him by Mr Murray, it shows that Mr Reucassel expressed some support for Mr Murray's 'current position' of not executing a Quit Claim." 1. Although the primary judge used the word "assuming", it is plain that his Honour accepted Mr Murray's uncontradicted evidence of what Mr Reucassel had said to him and also (by implication) drew the Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference that, if called, Mr Reucassel's evidence would not have assisted Mr Morrow. No error in this finding has been shown. 2. Nor do I consider this finding to be impugned by Mr Reucassel's response to Mr Kay's email (both dated 12 May 2020) in which Mr Kay asked him to confirm whether, as at 20 June 2019, he "had expressed to CJZ that [he] supported their position in the dispute regarding CJZ's exit from [the Joint Venture Company]." Mr Reucassel responded: "On the day that the initial TV deal fell over I spoke to Julian and Nick and implored them both to make the show happen. It seemed to be against both of their interests, and all of the staff's interests, for it not to go ahead. My position to both sides has consistently been that the show should go ahead. But I have not become involved in the details and am unaware of what CJZ's position regarding CJZ's exit from [the Joint Venture Company] is, nor how I could have supported it." 1. It was open to the primary judge to accept Mr Murray's evidence of his conversation with Mr Reucassel (set out above). Mr Reucassel's email shows an understandable reluctance to go onto the record in support of either side but does not gainsay his expression of limited support to Mr Murray in the conversation to which Mr Murray referred. For these reasons, the challenge to [998] (ground 7, fact 38) also fails (the balance of this challenge is addressed in the table at the conclusion of these reasons). 2. On 27 June 2019, Mr Murray asked the ABC for copies of correspondence with the Joint Venture Company, on the basis that he had, until 8 April 2019, been one of its directors. The ABC refused ([681]-[682]). Email from Mr Murray to Ms Gilchrist, Mr Carrington, Mr Anderson and Ms Pincus dated 28 June 2019 (alleged to constitute an injurious falsehood) 1. On 28 June 2019, Mr Murray wrote to Ms Gilchrist and Mr Carrington, with a copy to Mr Anderson and Ms Pincus, as follows: "We have just received a notice from Julian Morrow's lawyers terminating the Share Sale Agreement for The Checkout [Joint Venture] [C]ompany The Checkout Pty Ltd (formerly Jigsaw Dwarf Pty Ltd). They also say they will not provide the correspondence between Julian and the ABC contrary to the ABC's request for them to do so. We remain enthusiastic and willing to participate in the production of The Checkout or another consumer affairs show contemplated by the discussions between Julian and the ABC since October last year. However if a production proceeds involving Julian but without us, we will be forced to commence action to protect our rights against Julian and any company associated with him. We are confused about why they have taken this approach while negotiations were still proceeding. None-the-less, we remain convinced that Julian behaved improperly and are determined to defend our position. I am available to talk this through if you would like." 1. On 28 June 2019, Mr Morrow wrote to Mr Anderson requesting an urgent meeting to discuss the situation ([685]). 2. By email dated 5 July 2019, Connie Carnabuci, the ABC's General Counsel, wrote to Mr Murray and Mr Morrow to inform them that the ABC was not able to commission The Checkout "due to [their] inability to resolve [their] dispute by [the ABC's] deadline" ([686]). Email from Mr Murray to Ms Carnabuci dated 5 July 2019 (MCO 5 and alleged injurious falsehood) 1. On 5 July 2019, Mr Murray responded to Ms Carnabuci as follows: "Thanks for your letter today. It is indeed unfortunate that Giant Dwarf and [CJZ] have been unable to resolve The Checkout dispute. I broadly agree with your proposed method of assurance going forward. [CJZ] remained optimistic about being able to meet the ABC's revised July 1 deadline until the derailment of the negotiations last Friday morning via Giant Dwarf's notice of termination of the Share Sale Agreement. No attempt has been made by Julian to settle this dispute since then. I want to clarify two points. 1. The third bullet point in your letter assumes that Julian's purported termination of the Share Sale Agreement would result in the reinstatement of the [joint venture]. Our shareholders assumed that too, but apparently not. It is very confusing, but without us commencing legal proceedings, Giant Dwarf may be able to keep our shares in the [joint venture] and has none of the obligations contained in the [Share Sale Agreement]. So the [joint venture] has not been automatically revived, [CJZ] has not at this stage been reinstated as shareholder, nor do we have a director on the company board. Unfortunately therefore, production cannot proceed on the basis you outline in that point. 2. We have spent a huge sum on legal fees since this dispute began. Julian asked the ABC to set 4 different deadlines for us to work to, which we did in good faith without knowing the deadlines were being extended. However, our allegations against Julian and Giant Dwarf of fraudulent misrepresentation, breach of directors duties, and misleading and deceptive conduct (ironically under the Australian Consumer Law) would easily have been proven or disposed of, had we had access to the relevant communications between the ABC and Julian. We note however that our assumptions about timing of the negotiations have not been denied. It is that timing discrepancy which caused this dispute. We are extremely unhappy about the result and have made reasonable offers to settle including the effective reinstatement of the [joint venture]. These offers have been rejected by Julian. We also believe Julian continued to lie to us about the nature of the proposed [The] Checkout commission during the settlement negotiations. Again, we have not had the requisite access to documents to confirm these suspicions. But I would like to thank you and the team at the ABC for the calm manner in which this has been handled at your end. We would also be disappointed if The Checkout did not return – although that is becoming increasingly likely." [The primary judge's reasons emphasised the defamatory imputations by red underlining (in bold above) and the words alleged to constitute the injurious falsehood in red text (in italics above).] 1. On 23 July 2019, Ms Carnabuci wrote separately to Mr Morrow and Mr Murray, indicating that the ABC would be willing to consider a pitch for a new consumer affairs TV show from either of them and that this would not require the undertakings set out in the letter of 5 July 2019. Email from Mr Murray to Ms Gilchrist dated 29 July 2017: alleged injurious falsehood 1. On 29 July 2019, Mr Murray wrote to Ms Gilchrist as follows: "I refer to your letter of 23rd July 2019. I have just tried to call you so I can get some understanding of the context for the most recent letter. As I stated in my reply email to your letter of 5th April 2019, we were broadly in agreement with the mechanisms outline in your letter. That approach is fair, given the parties have been unable to reach any resolution despite [CJZ's] best attempts. However, your letter last week seeks to significantly reduce the protections for [CJZ]. We don't understand why there has been a dilution of the approach you set out on 5th July. We are very uncomfortable about this change. You should be under no misapprehension about our resolve in this matter. If the ABC commissions a Consumer Affairs program involving Julian Morrow, we will have no choice but to commence legal proceedings in relation to the matters we have previously outlined. Unfortunately there will be no way to insulate the ABC from the associated discovery and subpoena process. If you have a moment, I would appreciate the opportunity to discuss this on the phone or in person." [The primary judge's reasons emphasised the words alleged to constitute the injurious falsehood in red text (in italics above).] 1. On 8 August 2019, Ms Gilchrist responded to Mr Murray ([694]) in the following terms: "What claims can you actually substantiate in relation to a consumer affairs show involving Julian Morrow that are not related to The Checkout? We ask you to notify [Mr Morrow] of your continuing claims and take appropriate action to test those claims now to resolve the dispute. Otherwise, the ABC sees no impediment to going ahead with such a show in the future. As a matter of courtesy, we are advising [Mr] Morrow of your intention to commence legal proceedings if the ABC commissions a consumer affairs program involving him. The ABC would of course comply with any validly issued subpoena." Email from Mr Murray to Ms Gilchrist dated 12 August 2019 (MCO 6) 1. On 12 August 2019, Mr Murray wrote to Ms Gilchrist in the following terms: "I refer to your email of 8th August and thanks for your time on Friday. I just want to emphasise two points: 1. Why would the ABC be considering commissioning a replacement program from Julian who has wrecked an ABC brand and been involved in a fraud designed to take shares and IP in that brand from a loyal ABC partner - [CJZ]? We are about to start Gruen which is usually the ABC's top rated series. Julian's output isn't in that ball park. There is no way commissioning a show designed to avoid The Checkout will not result in serious blowback for the ABC. … There is no way that any 'replacement consumer affairs program' discussed at that time is owned by Julian. 2. Julian is also asserting he is able to pitch an alternative consumer affairs program to the ABC by virtue of the provision in the [S]hare [S]ale [A]greement which gave each of us the right to pitch new consumer affairs programs. 4.6 Other consumer affairs shows. All parties acknowledge that [Giant Dwarf] and [CJZ] each has the separate right to produce another consumer affairs show provided that show does not use the name or format of The Checkout or any Intellectual Property or Works owned by [the Joint Venture Company]. Of course the problem he now has, is that he unilaterally terminated that agreement on 28th June. He has no right to pitch a replacement consumer affairs show to the ABC without our involvement. Following our conversation, I will today instruct our solicitors to commence proceedings against Julian, Giant Dwarf Pty Ltd and The Checkout Pty Ltd. Thanks for confirmation that the ABC will comply with a subpoena issued under those proceedings. I confirm our resolve in this matter. Our shareholders, directors and executive are unanimous in their positions that Julian can no longer be allowed to benefit from his appalling behaviour. We can't stand by while he profits from his unlawful actions." [The primary judge's reasons emphasised the defamatory imputations by red underlining (in bold above) and the words alleged to constitute the injurious falsehood in red text (in italics above).] The mediation on 18 October 2019 1. There was a mediation between Mr Murray and Mr Morrow on 18 October 2019. Following the mediation, Simon Fraser (who had been present at the mediation) wrote to the ABC, attaching various versions of a Quit Claim and asking which would be acceptable to the ABC. In cross-examination, Simon Fraser accepted that he had obtained the documents in the course of the mediation and that he was in breach of the confidentiality provisions of the mediation agreement. 2. The primary judge rejected Ms Chrysanthou's submission that this "unauthorised disclosure obviously and necessarily interfered with the plaintiff's relationship and ongoing negotiations with the ABC", on the basis that there was no evidence to establish that it had ([697]-[701]). "The Help Desk" negotiations 1. Mr Morrow claimed that he and Giant Dwarf had suffered damage as a result of Mr Murray's defamation and injurious falsehood and that this damage included the loss of the opportunity to produce a new consumer affairs show, The Help Desk. 2. On 4 July 2019, Mr Morrow wrote to Mr Anderson and Mr Carrington proposing The Help Desk. In the course of negotiations, a disagreement arose between Mr Morrow and the ABC which resulted in Mr Morrow writing to the ABC on 28 October 2019 asserting that the ABC's terms for The Help Desk were not as good as those which the ABC had offered for Are You Being Served? Mr Morrow refused to accept the ABC's standard terms and conditions as a starting point for negotiations and accused the ABC of damaging the successful working relationship it had had with Giant Dwarf. On 22 November 2019, Mr Carrington wrote to Mr Morrow ([722]): "… Let me reassure you, there is no intention to damage the ABC's relationship with Giant Dwarf. I have been your champion throughout and I want this partnership to work. Thanks for getting back to me so quickly. [Ms Pincus] will liaise with you asap to move the development agreement forward." 1. As the primary judge noted at [723], Mr Morrow replied within minutes: "Hi Michael – nothing in that first paragraph seems even remotely true". 1. Mr Morrow aired his grievance with the ABC by publishing a tweet ([725]): "So much for 'hiatus' … Now @ABCTV is also banning personnel from #thecheckout from a new consumer show … quite the F.U. for the talented, hard-working folks who worked on the Tube. Working on the only consumer show on TV for 6 series disqualifies you from consumer show ???" 1. The tweet included an image with the ABC's logo, which read: "Please note: As already discussed, both the onscreen talent and some of the senior production personnel ie: producers and writers need to be different from the individuals who worked on THE CHECKOUT." 1. The ABC responded to the tweet by informing Mr Morrow that it considered the tweet to be an unauthorised disclosure of confidential information ([728]). 2. Ultimately, on 5 December 2019, Mr Carrington wrote to Mr Morrow as follows ([729]): "Far from wanting to damage the ABC's relationship with Giant Dwarf as you assert, my editorial team and I have been seeking to work with Giant Dwarf on The Help Desk since July. The ABC has consistently and clearly communicated the need for our standard creative approvals from our earliest discussions about The Help Desk. The ABC has also been clear from the outset of our discussions that any new consumer affairs show would need to be substantially different from The Checkout, for editorial and legal reasons. Despite this, you have made misleading public statements about the ABC via The Checkout social media accounts for not seeking to use The Checkout talent on The Help Desk. Your decision to publish our confidential editorial communications with you demonstrates a lack of good faith in your dealings with our editorial team. It is clear from your public statements, correspondence and our protracted discussions over several months that we are not aligned in the creative direction for The Help Desk, which is a necessary first step when considering development of a new program. Therefore, the ABC has decided to cease discussions with you and Giant Dwarf for The Help Desk." [Emphasis in the primary judge's reasons.] 1. At [731], the primary judge found: "That same day, the ABC issued the following public statement from its Media Centre: 'The ABC had preliminary discussions with producer Giant Dwarf to develop a consumer affairs program that offers something new to our audiences, showcasing fresh ideas and diverse Australian talent. We have ended those discussions after Giant Dwarf's public statements and correspondence and dealings with the ABC made it clear that we are not creatively aligned, which is a necessary first step when considering development of a new program. We were also clear from the outset of those discussions that we are unable to commission a seventh series of The Checkout due to editorial and legal reasons, including current court proceedings between third parties. The ABC continues to look at ways to build on the consumer affairs content of our News, Factual and Specialist teams across radio, television and online. Meanwhile, we are working with Giant Dwarf on other unrelated projects.'" [Emphasis in primary judge's reasons.] Further alleged injurious falsehoods between 13 September 2019 and 26 November 2019 1. Mr Morrow particularised a total of 21 injurious falsehoods, of which 12 were alleged to have been made on or after 13 September 2019 (these are set out at [734] of the reasons of the primary judge). 2. For the reasons which appear later in these reasons, it is not necessary to set them all out since I am not persuaded that the primary judge was in error in finding that none of them was an operative cause of the loss claimed by the cross-appellants. The claim for damages by Giant Dwarf and the Joint Venture Company for damages for breach of the Share Sale Agreement 1. The primary judge rejected this claim on the following bases: 1. CJZ was entitled to an order for rescission of the Share Sale Agreement (which meant that it could not be terminated by Giant Dwarf) ([1067]); 2. CJZ was not in breach of the Share Sale Agreement by refusing to execute the Quit Claim ([1068]); and 3. Giant Dwarf had itself failed to comply with the Share Sale Agreement ([1069]). 1. The primary judge also found, at [1072]: "It is not to the point that Mr Morrow may have been able to produce a show called Are You Being Served without engaging in the conduct I have found. That is not what happened. The reason Giant Dwarf has suffered any such loss is its own conduct in not complying with the implied term of the Joint Venture Agreement and its director engaging in the misleading or deceptive conduct that I have found. Any such loss has not been caused by any breach by [CJZ] of the Share Sale Agreement." Remedies claimed by CJZ 1. CJZ claimed that, but for the misleading or deceptive conduct by Mr Morrow, the joint venture agreement would have remained on foot and Giant Dwarf would have produced further series of The Checkout. The primary judge was not satisfied of this counterfactual. His Honour considered that, in that event, Mr Morrow would have exercised his right of veto and that Mr Murray would have refused to sell CJZ's share in the Joint Venture Company ([1076]-[1077]), thereby preventing any further production of The Checkout. For this reason, the primary judge was not satisfied that CJZ had suffered any damage as a result of the misleading or deceptive conduct ([1078]). The primary judge's findings in the Defamation proceedings relevant to the application for leave to appeal 1. The application for leave to appeal on behalf of Mr Murray is confined. There is no cross-appeal in the Defamation proceedings. It was accepted that each of the MCOs was published and that, if each bore the imputation for which Mr Morrow contended, each was defamatory. The real issue turned on the defences raised by Mr Murray. Accordingly it is not necessary to address all of the primary judge's findings or reasons. It is sufficient to summarise them in the following table (by reference to each MCO) before turning to the matters in respect of which leave to appeal is sought. MCO/date Justification Common law qualified privilege Honest opinion 1/21 May 2019 Made out [763] Unnecessary to decide ([764]) Unnecessary to decide ([764]) 2/11 June 2019 Made out [774] Unnecessary to decide ([775]). Unnecessary to decide ([775]) 3/12 June 2019 Not made out in full ([786]) Not made out ([796]) Not made out ([797]-[805]) 4/20 June 2019 Not made out. Statements substantially true, apart from statement that shares were transferred for nothing ([821]-[826]) Not made out ([831]) Not made out ([831]) 5/5 July 2019 Not made out in relation to alleged fraudulent misrepresentation ([840]-[853]) Not made out ([854]) Not made out ([855]) 6/12 August 2019 Not made out in relation to the allegation of fraud ([861]) Not made out ([866]) Not made out ([867]) Relevant findings relating to the defence of justification 1. As the primary judge's findings on the defence of justification were relied on in relation to qualified privilege, it is convenient to set them out before turning to the defence of qualified privilege. 2. In rejecting the defence of justification for MCO 3, the primary judge said: "780 I have found that Mr Morrow engaged in misleading or deceptive conduct and in breach of his duties as a director of the Joint Venture Company and have, in that sense, found that Mr Morrow acted unlawfully and deceived [CJZ] into selling its shares in the Joint Venture Company to Giant Dwarf. 781 It was not true, however, for Mr Murray to say that the transfer had been 'without payment' as there was consideration for the transfer, in addition to the nominal figure of $50, being the promise by the Joint Venture Company to pay [CJZ] the 2% fee to which I have referred. 782 More significantly, it was not true for Mr Murray to say that there was a 'dispute concerning the ownership of the underlying IP for The Checkout'. 783 As I have set out above, a short time after 12 June 2019, on 19 June 2019 [Hamish] Fraser, no doubt on instructions from Mr Murray, confirmed to Mr Kay that Mr Murray agreed that 'all intellectual property rights in The Checkout were held exclusively by the [Joint Venture Company] as stated in the Quit Claim Deed. 784 Mr Murray must have known this when he wrote the email on 12 June 2019. 785 Accordingly, I am not satisfied that what he said in this email was substantially true in all respects." 1. These findings were relied on by Ms Chrysanthou in response to Mr Katekar's submission that malice did not defeat the defence of qualified privilege (which he contended ought be found by this Court if leave to appeal were granted in respect of the orders in the Defamation proceedings). 2. The primary judge addressed the defence of justification with respect to MCO 5 as follows: "840 To the extent Mr Murray alleges that Mr Morrow engaged in misleading or deceptive conduct and acted in breach of his director's duties, I have found this imputation to be substantially true. 841 However, Mr Murray has not, in these proceedings, alleged that Mr Morrow made any fraudulent misrepresentation; and I have made no such finding. 842 The words used by Mr Murray are 'fraudulent misrepresentation'. Those words were used in conjunction with, and in addition to the following words: 'breach of director's duties, and misleading and deceptive conduct'. The ordinary reasonable reader of the words 'fraudulent misrepresentation' would take them to mean something more than breach of duty or misleading or deceptive conduct and to bespeak knowingly dishonest conduct. 843 My findings about Mr Morrow may bespeak a serious misunderstanding on his part about his legal position. And it may be, as Mr Katekar submitted, that Mr Morrow's management of the message he was sending Mr Murray prior to the execution of the Share Sale Agreement, was 'sharp'. But my findings are a far cry from fraud. 844 In closing submissions, Mr Katekar boldly submitted that 'the 'fraud' imputation is substantially true'. 845 Mr Katekar submitted: 'The meaning of 'Fraud' in the ordinary sense of the word includes misleading conduct, or deceit, trickery, sharp practice, or breach of confidence by which it is sought to gain some unfair or dishonest advantage, a particular instance of deceit or any deceit, or an individual who makes deceitful pretences.' And later: 'The present task is to assess the sting of the fraud imputations as the ordinary reasonable reader would understand them, not as practising lawyers would who have a unique understanding of the gravity of the notion of fraud. Of course, the Court will have to be satisfied to the Briginshaw standard. The defendants maintain that the Court can be persuaded of the truth or substantial truth of [the imputations of fraud] because the evidence before the Court proves Mr Morrow's conduct in connection with the Share Sale Agreement (in the whole of its context, including the historical arrangements between the parties) was at the least, sharp. His conduct violated the rules of fair dealing.' (Emphasis in original.) 846 But in this email, Mr Murray is speaking of 'fraudulent misrepresentation' in contrast to 'breach of director's duties' and in contrast to 'misleading and deceptive conduct'. 847 In that context, the ordinary reasonable reader of this email would understand 'fraudulent misrepresentation' to mean a knowingly false statement, that is, knowingly dishonest conduct; not the 'fraud-lite' the subject of Mr Katekar's submissions." 1. Ms Chrysanthou relied on these findings in support of her submission that, if MCO 5 was otherwise communicated on an occasion of qualified privilege, the privilege was defeated by malice, as Mr Murray's purpose in sending it was an improper one, foreign to the occasion of qualified privilege (which will be addressed below). Common law qualified privilege 1. The primary judge stated the following test to determine whether the defence of qualified privilege at common law had been made out at [795] as follows: "… where a person has an interest in making the statement on an occasion and the recipient has a corresponding interest in receiving it. That is, there must be reciprocity of, in this case, the interest of the publisher and the interest of the recipient." [Footnote omitted.] 1. The primary judge applied the test set out above to MCO 3 and said at [796]: "Mr Murray may have had an interest in making the complaint set out in this email to the ABC. But, for the same reasons I have set out in relation to the defence of statutory qualified privilege, I cannot see what interest the ABC had in receiving the information in this email, particularly as not all of it was correct." 1. The reference to statutory qualified privilege was a reference to [791] where the primary judge said: "It may be that the ABC had an interest or apparent interest in knowing, as a general matter, that there was a dispute between Mr Morrow and Mr Murray concerning any entitlement to produce a further series of The Checkout. That might have been relevant to the ABC's decision about commissioning a further series. But the ABC had no interest or apparent interest in hearing the detail of Mr Murray's contentions about that matter." Malice 1. The primary judge addressed the question of malice as follows: "872 If a plaintiff proves that the publication of a defamatory matter was actuated by malice, a defence of qualified privilege under s 30(1) of the Act and the common law is defeated. However, as I have found that Mr Murray has not established the defence of qualified privilege in relation to any of the impugned publications, this question does not arise. 873 The making of a defamatory publication actuated by malice is also relevant to the question of whether aggravated damages should be awarded. Accordingly, I will consider the question of malice before turning to the question of aggravated damages. 874 As I have found that Mr Murray has established a defence of justification in relation to the first two publications, his email of 21 May 2019 to Mr Anderson and his conversation with Ms Pincus on 11 June 2019, the question of malice does not arise in relation to anything said in those publications. Nonetheless, I will deal with Ms Chrysanthou's submissions about those publications." [Footnotes omitted.] 1. The primary judge, at [875]-[892], addressed the question of malice with respect to MCOs 1 and 2. The primary judge, under the heading, "Malice", expressed what can be taken to be his Honour's understanding of the relevant principle: "875 Malice is an improper motive that actuates the publication: that is, a motive which is foreign to the occasion which gives rise to the occasion of privilege. To establish malice, it is necessary to demonstrate more than mere ill-will, spite or prejudice. A lack of a positive belief in the truth of the defamatory matter does not necessarily bespeak malice. But a positive belief in the falsity of defamatory material is generally conclusive proof of malice. 876 If established, malice is relevant to the question of whether aggravated damages should be awarded." 1. The primary judge addressed Mr Katekar's submissions as to Mr Murray's purpose in sending MCO 1 and relevantly found, at [881]: "… part of Mr Murray's motivation in writing to Mr Anderson was to sway Mr Anderson, and thus the ABC (Mr Anderson was then the Acting Managing Director) not to proceed with any further series of The Checkout. This was going further than seeking documents, conveying [CJZ's] position or seeking to protect [CJZ's] legitimate interests." 1. As the primary judge found that the defence of justification was made out in connection with MCO 1 and MCO 2, no question of damages in relation to these two MCOs arose, although Mr Murray's state of mind was potentially relevant to aggravated damages for the other MCOs in respect of which no defence was made out: [882]-[886]. 2. The primary judge said, in relation to the subsequent MCOs: "887 In relation to Mr Murray's 12 June 2019 email [MCO 3] sent to Ms Pincus the day following his conversation with her, Mr Murray agreed in cross-examination that his object was to 'stonewall' Mr Morrow's negotiations with the ABC. Mr Murray also included in that email a statement, that he must have known to be untrue, that there was a 'dispute concerning the ownership of the underlying IP for The Checkout'. 888 The inclusion in a defamatory publication of a statement that the publisher knows to be untrue is a matter capable of bespeaking malice and thus being a matter relevant to aggravated damages. I have found that Mr Murray has not established the defence of justification in relation to this email as, as well as wrongly asserting that the transfer of the shares in the Joint Venture Company was 'without payment' Mr Murray made this statement about the ownership of the 'underlying IP' to which I have referred. 889 As to the emails Mr Murray sent to Ms Carnabuci on 5 July 2019 [MCO 5] and to Ms Gilchrist on 12 August 2019, I think Ms Chrysanthou was correct to submit that Mr Morrow's obvious motivation, as revealed by the words he used, was to shame Mr Morrow in the eyes of the ABC. 890 Both emails contained an allegation that Mr Morrow had behaved fraudulently, and the 12 August 2019 email [MCO 6] opened with the words: 'Why would the ABC be considering commissioning a replacement program from Julian who has wrecked an ABC brand and been involved in a fraud designed to take shares and IP in that brand from a loyal ABC partner - [CJZ].' 891 In that passage, Mr Murray was openly seeking to dissuade the ABC from dealing with Mr Morrow. 892 In this respect, Mr Murray's motivations went far beyond those for which Mr Katekar contended and were foreign to the occasion and calculated and intended to harm Mr Morrow and Giant Dwarf." 1. The primary judge addressed the spread of the defamatory matter at [893]-[896] and the unchallenged evidence of Mr Morrow's prior good reputation at [897]-[898]. The primary judge noted that damage to reputation was presumed. His Honour accepted Mr Katekar's submission that there was no evidence of actual damage to Mr Morrow's reputation from anyone who received the emails ([912]). Hurt to feelings and aggravated damages 1. The primary judge summarised the evidence relating to "hurt to feelings" at [919]-[926] before turning to aggravated damages. His Honour accepted, as circumstances of aggravation, Mr Murray's failure to apologise ([935]-[938]); his maintenance of the allegations of fraud ([939]); that Mr Murray had engaged in a "campaign" against Mr Morrow ([942]); and that Mr Murray had pressed a "bad reputation" defence ([944]). 2. In the context of aggravated damages, the primary judge said: "Maintenance of the defence in relation to the allegations of fraud 939 I find that an aggravating factor is Mr Murray's maintenance of his defence in relation to the allegations of fraud made in those two emails [MCO 5 and MCO 6]. 940 Mr Murray did not allege fraud against Mr Morrow in these proceedings and has not been able to justify the allegations of fraud made in these two emails. 941 As I have already said, the matter was compounded by Mr Katekar's closing submission 'we do say that he fraudulently made a representation to us'. The submission was immediately withdrawn but only because of my response to it." 1. Ms Chrysanthou challenged the primary judge's finding in [940]. I am not persuaded that this challenge ought succeed. It is plain that the primary judge drew a distinction between, on the one hand, an allegation of fraud (such as an allegation of fraudulent misrepresentation) as the basis for a cause of action and, on the other hand, the defence of justification in response to an MCO which carries an imputation of fraud. When [940] is read fairly, the primary judge was simply observing, as was the case, that no allegation of fraud had been made by Mr Murray or CJZ as the basis for a claim for relief in the proceedings. Damages for economic loss 1. When assessing damages for economic loss, the primary judge made the following findings, which Ms Chrysanthou alleged were erroneous: "956 Mr Morrow's claim for economic loss is based on his evidence that he has not been engaged to make a television program for broadcast by the ABC since 17 April 2018, when the last episode of series six of The Checkout was aired. Mr Morrow has said that this was the longest period in his career that he has not been engaged by the ABC to make a television program. 957 I am not satisfied that Mr Morrow has established that Mr Murray's publications to the ABC are the cause of the situation in which Mr Morrow now finds himself. 958 Ms Carnabuci's email of 5 August 2019 made clear that the reason that the ABC decided not to commission a further series of The Checkout was due to Mr Morrow's and Mr Murray's 'inability to resolve your dispute by our deadline'. Mr Morrow caused that dispute by engaging in misleading or deceptive conduct and acting in breach of his duty as a director of the Joint Venture Company which has led, in the circumstances I have set out above, to my conclusion that Mr Murray is now entitled to an order under s 237 of the Australian Consumer Law rescinding the Share Sale Agreement." 1. In effect, the primary judge found that any economic loss that Mr Morrow or Giant Dwarf have suffered has been brought on them by Mr Morrow himself and not by Mr Murray's defamatory publications ([956]-[968]). 2. Ms Chrysanthou challenged the findings at [963] and [968] (ground 7, fact 37) which appear in the following passage from the primary judge's reasons: "962 At one point in his cross-examination, Mr Morrow said: 'It's my case that the statements of Mr Murray resulted in the ABC's proposal for The Help Desk being one that I didn't think it was in the best interests in Giant Dwarf to pursue.' 963 Mr Morrow has not made out any such case. There is no evidence to suggest that anything Mr Murray said led Mr Morrow to reach any such conclusion or a change in the ABC's position. 964 The material that I set out above shows that the ABC was interested in having Mr Morrow produce The Help Desk and that the reason that that project did not proceed was Mr Morrow's own conduct, particularly his Tweet of 24 November 2019; and perhaps also his 22 November 2019 accusation to Mr Carrington that 'nothing in that first paragraph seems remotely true'. 965 That led to the ABC, under the hand of Mr Carrington, writing to Mr Morrow on 5 December 2019 terminating 'discussions with you and Giant Dwarf for The Help Desk' because of 'your decision to publish our confidential editorial communications'. Mr Carrington said this publication showed a 'lack of good faith in your dealings with our editorial team' and that Mr Morrow and the ABC 'are not aligned in the creative direction for The Help Desk'. This was measured, but steely, language. It bespoke the ABC's serious unhappiness with Mr Morrow's decision, yet again, to take into the public sphere his dissatisfaction with the ABC's conduct; exacerbated in this case by Mr Morrow's public revelation of his confidential communications with the ABC. 966 The matter was made even clearer by the ABC's published statement, later on 5 December 2019, that it had ended discussions with Giant Dwarf: '… after Giant Dwarf's public statements and correspondence and dealings with the ABC made it clear that we are not creatively aligned, which is a necessary first step when considering development of a new program.' 967 Mr Morrow has not adduced evidence of any circumstances following these events which might cast light on why it is that the ABC has not invited him to produce any further television programs. 968 Such evidence as is before me points firmly to the conclusion that it is a matter that Mr Morrow has brought upon himself and is not a matter that has anything to do with Mr Murray's defamatory publications." 1. Ms Chrysanthou submitted that the primary judge ought to have found: "After Mr Murray's communications to the ABC, the ABC offered Giant Dwarf substantially less favourable terms for a new consumer affairs show." 1. I consider that the challenge to [963] and [968] should be rejected for the reasons given by the primary judge. The ABC was entitled to propose its standard terms for The Help Desk and did so for its own reasons which were not shown to be related to anything Mr Murray had said or done. Mr Morrow's response to the ABC in these circumstances was, as his Honour correctly found, the reason why The Help Desk was not commissioned. 2. As to damages, the primary judge found: "972 The sting of the libel in this case is Mr Murray's accusations, in his emails to Ms Carnabuci of 5 July 2019 and to Ms Gilchrist of 12 August 2019, that Mr Morrow had behaved fraudulently. This is obviously a serious allegation. It was, however, made to a targeted audience being the two individuals at the ABC to whom the emails were sent, and those within the ABC with whom Mr Murray must have thought would hear of the allegations. 973 Despite the gravity of the allegations, they do not seem to have affected the ABC's inclination to deal with Mr Morrow. Things fell apart between the ABC and Mr Morrow at the end of 2019 for different reasons; being reasons for which Mr Morrow can blame no one but himself." Award of damages for defamation 1. On this basis, the primary judge concluded that the appropriate award of damages for the defamatory statements made by Mr Murray for which there is no justification (MCOs 3-6) was $30,000 for general damages plus $5,000 for aggravated damages, plus interest and costs ([979]). His Honour made orders to this effect on 23 June 2022. In the principal judgment, his Honour expressed a view that injunctive relief ought not be granted ([983]). Whether leave to appeal from the orders in the Defamation proceedings ought be granted 1. Mr Murray and CJZ require leave to challenge the orders made against them in the Defamation proceedings as the appeal involves a matter in issue which is less than $100,000: s 101(2)(r) of the Supreme Court Act. 2. Mr Katekar argued that leave ought be granted because there was an error of principle in determining whether the defence of qualified privilege had been made out and that this Court ought intervene to correct it. 3. Ms Chrysanthou submitted that leave ought not be granted because there was no error of principle. She submitted further that the findings which the primary judge made with respect to malice for the purposes of awarding aggravated damages were also applicable to the question whether malice defeated the defence of qualified privilege, thereby rendering any finding on appeal that the communications were protected by qualified privilege irrelevant to the result. She submitted that, in these circumstances, the result would be no different, even if this Court were to find that the defence of qualified privilege had otherwise been made out. 4. Ms Chrysanthou's submission that the primary judge's findings on malice (which were expressed to be for the purposes of determining whether aggravated damages ought be awarded) would defeat the defence in any event was premised on the submission that the primary judge had relevantly found malice for the purposes of defeating the defence of qualified privilege. The primary judge said in [872] that the question of whether malice defeated the defence of qualified privilege did not arise (because the defence of qualified privilege had not been made out for any of MCOs 3-6). As set out above, the primary judge did make findings at [887]-[892] concerning MCOs 3-6 and identified in respect of each of them that Mr Murray's purpose was, in part at least, an improper one. However, the primary judge neither found, nor purported to find, that malice had been established (it being unnecessary to do so in light of the primary judge's findings regarding qualified privilege). Nor did his Honour apply the correct test which required Mr Morrow and Giant Dwarf to prove that Mr Murray's dominant motive was an improper one. 5. In these circumstances, I am not persuaded that his Honour actually made findings of malice for the purposes of qualified privilege. If I have misunderstood his Honour's findings at [887]-[892], then I consider that this Court ought review them since his Honour did not pose the correct test. Accordingly, no assumption can be made that, if this Court overturned his Honour's rejection of the defence of qualified privilege, the result would be the same. 6. As the question whether leave ought be granted is affected by whether there has been an error of principle, I propose to turn to the grounds of appeal. 7. There is considerable overlap in the grounds of appeal. The questions of principle substantially turn on the defence of qualified privilege. In ground 1, Mr Murray and CJZ allege that, in failing to find that MCO 3 was published on an occasion of qualified privilege, the primary judge: 1. conflated the notion of "interest" for the purposes of the defence of qualified privilege pursuant to the Defamation Act 2005 (NSW) with the notion that applied in the context of the common law defence of qualified privilege; and 2. applied an overly narrow test (whether the ABC had an interest in knowing the details of the dispute between Mr Murray and Mr Morrow) to determine whether the ABC, as the recipient of MCO 3, had an interest in knowing of the dispute between Mr Morrow and Mr Murray as a general matter. 1. The grounds which challenge the findings for each of MCO 4, 5 and 6 repeat (2) above. There are further grounds which will be considered if leave is granted. The principal questions are those set out in the applicants' summary of argument as follows: 1. what is the correct test to determine whether there is a reciprocal interest between the publisher of a communication and the recipient(s) for the purpose of common law qualified privilege? 2. did his Honour fail to apply that test to the four publications found not to be privileged? 3. to the extent that his Honour determined that two of the four publications were actuated by malice for the purpose of consideration of aggravated damages, do those findings apply to defeat the defence of qualified privilege should those publications be found to be privileged on appeal (this submission has been addressed in part above)? 4. did his Honour err in finding that the second applicant was actuated by (relevant) malice in respect of those two publications? The test for the common law defence of qualified privilege 1. The test the primary judge applied is set out above. In effect, the primary judge found that although the ABC had an interest in the parties' entitlement to produce the television series for it, it had no specific interest in the details of the dispute and therefore there was no reciprocity of interest for the purposes of qualified privilege with respect to MCOs 3-6. For the reasons which follow, this was not the correct question. Instead of asking whether the recipient was interested in receiving the particular statements which comprised the publication, his Honour should have determined whether the defendant had proved that: 1. the communication was published on a privileged occasion; and 2. the communication was relevant to the occasion. 1. The common law defence of qualified privilege is defeated by a particular kind of malice, sometimes referred to as "express malice": Horrocks v Lowe [1975] AC 135 at 149, approved in Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [75] (Gaudron, McHugh and Gummow JJ). To prove express malice, the plaintiff must prove that the dominant purpose of the communication was unrelated to the privileged occasion: that is, that the dominant purpose was an improper purpose, being a purpose which was foreign to the privileged occasion. The identification of the privileged occasion and whether the communication was related to the privileged occasion 1. The first step, the identification of a privileged occasion, requires consideration of the communality, or reciprocity, of interest between the publisher (in this case, Mr Murray) and the recipient (the ABC) in the subject matter of the communication (rather than the precise terms of the communication): Wraydeh v Fairfax Media Publication Pty Limited; Wraydeh v Nationwide News Pty Ltd (2021) 105 NSWLR 254; [2021] NSWCA 153 at [44] (Simpson AJA, Bell P and Gleeson JA agreeing). 2. An occasion will be privileged if a person has an interest or duty of a legal, social or moral nature to make a statement on an occasion and the recipient has a corresponding interest or duty to receive it: Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 (Bashford) at [9]-[10] (Gleeson CJ, Hayne and Heydon JJ). The concept of reciprocal duty and interest is a broad and general one and is founded on public utility: Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 657 (Evatt J); [1934] HCA 15. The circumstances of the case, the situation of the parties, the relations of all concerned and the events leading up to and surrounding the publication are all relevant to the identification of the occasion and the determination whether it is privileged: Bashford at [10]. 3. In Papaconstuntinos v Holmes a Court (2012) 249 CLR 534; [2012] HCA 53, the plurality (French CJ, Crennan, Kiefel and Bell JJ) said of present relevance at [38]: "The modern emphasis in the formulation of the defence of qualified privilege is upon duties and interests rather than the state of mind of the defendant, the latter of which would include the defendant's motive. If the defendant has a legitimate interest which the defendant seeks to protect in making the defamatory statement, the occasion for the privilege arises. There is no case which holds that self-interest operates as a disqualification or requires something more, such as some compelling need or urgency, to justify a statement …" [Footnote omitted.] 1. The second question, which is one of characterisation is: was the communication related to the privileged occasion. Whether qualified privilege is defeated by malice because the plaintiff has proved that the publisher's dominant purpose in publishing the communication was foreign to the privileged occasion and therefore improper 1. Where a communication attracts qualified privilege, there is a presumption of honesty on the part of a publisher which casts on the plaintiff the onus of rebutting the presumption: Roberts v Bass at [96]-[97]. 2. In KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden (2020) 101 NSWLR 729; [2020] NSWCA 28 (KSMC) at [59]-[61], this Court (Payne JA, Basten and White JJA agreeing) summarised the principles on proof of malice to defeat qualified privilege: "59 The respondent was obliged to establish a predominantly improper motive in publishing the matter complained of and overcome the presumption that the publisher acted honestly, that is, with a proper purpose: Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [96]–[97]. 60 Proof of ill-will, prejudice, bias, recklessness, lack of belief in truth or some motive other than duty or interest for making the publication is insufficient of itself to establish that malice actuated the publication: Roberts v Bass at [74]–[76] (Gaudron, McHugh and Gummow JJ); Fraser v Holmes (2009) 253 ALR 538; [2009] NSWCA 36 at [50]–[68] (Tobias JA with whom McColl and Basten JJA agreed); Cush v Dillon at [27]. 61 A plaintiff has a heavy onus to discharge to establish malice. Malice is a serious matter and the principles set out in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–363; [1938] HCA 34 apply to such a finding." 1. It is also of significance that the plurality (Gaudron, McHugh and Gummow JJ) said in Roberts v Bass at [103]-[104]: "103 Carelessness of expression or carelessness in making a defamatory statement never provides a ground for inferring malice. The law of qualified privilege requires the defendant to use the occasion honestly in the sense of using it for a proper purpose; but it imposes no requirement that the defendant use the occasion carefully. Even irrationality, stupidity or refusal to face facts concerning the plaintiff is not conclusive proof of malice although in 'an extreme' case it may be evidence of it. And mere failure to make inquiries or apologise or correct the untruth when discovered is not evidence of malice. 104 Finally, in considering whether the plaintiff has proved malice, it is necessary that the plaintiff not only prove that an improper motive existed but that it was the dominant reason for the publication. In Godfrey, Jordan CJ said: 'It is of the utmost importance in the case of statements made on occasions of qualified privilege, that the privilege which the law casts around such statements should not be nullified by a readiness to treat as evidence of express malice destroying the privilege anything which does not definitely, and as a matter of commonsense, point to the actual existence of some express malice which was really operative in the making of the statement; and substantial evidence is required, not surmise or a mere scintilla: Oldfield v Keogh. Any other approach to the subject would in substance destroy the doctrine of qualified privilege altogether.'" [Footnotes omitted.] 1. I note that at first instance, the parties agreed on the applicable principles and the relevant authorities and that there was a distinction between malice for the purposes of qualified privilege and malice for the purposes of aggravated damages. On appeal, there was a departure from this position by Ms Chrysanthou who maintained, "malice is malice is malice", which I understood to be a submission that a finding of malice for the purposes of aggravated damages was tantamount to a finding of malice to defeat the defence of qualified privilege. In so far as I have understood the submission, I reject it. Malice for the purposes of defeating qualified privilege is a different concept from malice for the purposes of aggravated damages. Whether the communication was made on an occasion of qualified privilege and was related to that occasion 1. Each MCO was a communication to the ABC concerning production of The Checkout. The ABC had an interest in knowing of the dispute between Mr Murray and Mr Morrow for several reasons. 2. First, it was considering commissioning further series and had an interest (which it shared with Mr Murray) in knowing about a dispute between the putative controlling minds of the Joint Venture Company (solely Mr Morrow if the Share Sale Agreement was not rescinded or Mr Morrow and Mr Murray if the Share Sale Agreement was rescinded) which had the potential to upset the production of The Checkout, or cause it to be abandoned by the Joint Venture Company. It also had a related interest in knowing why Mr Murray was refusing to sign the Quit Claim which the ABC had prepared with a view to protecting its own interests. Further, even if the Share Sale Agreement was not rescinded, it provided for Mr Murray to receive a format fee, which meant that he had a continuing personal and financial interest in the broadcasting of The Checkout. 3. Secondly, the ABC (and Mr Murray) had an interest in protecting the integrity and credibility of The Checkout, which was itself a consumer affairs program. Consumer affairs is concerned with such topics as the availability of remedies for misleading or deceptive conduct. As a public broadcaster, the ABC was in a pre-eminent position to expose matters of concern relating to consumer affairs (in a way that commercial broadcasters may be less able to do because of their financial dependence on advertising income). In these circumstances, Mr Murray's allegation that Mr Morrow's misleading or deceptive conduct had caused him to execute the Share Sale Agreement and his claim that the agreement ought accordingly be rescinded had the capacity to impugn the credibility of the program and the ABC, as its broadcaster. 4. Thirdly, whether Mr Morrow's conduct had in fact been misleading or deceptive depended in large measure on his communications with the ABC. Thus, there was a substantial risk (which ensued in the proceedings) that the interstices of the ABC's decision-making processes about programming arising from its communications with Mr Morrow would be made public (when the ABC would otherwise have kept them confidential) and that the ABC would be subject to the cost, expense and inconvenience of answering subpoenas (for documents and, potentially, for its staff to give evidence). 5. It is necessary to address each MCO in turn to apply the correct tests for qualified privilege and express malice. MCO 3: email dated 12 June 2019 from Mr Murray to the ABC 1. MCO 3 arose from Mr Murray's conversation with Ms Pincus on the previous day (11 June 2019) in which he had asked Ms Pincus for information about the provenance of the Quit Claim which Mr Morrow had requested that he sign. In MCO 3, Mr Murray explained to the ABC, by reference to his dispute with Mr Morrow, why he would not be in a position to sign the Quit Claim "in the near future". 2. In these circumstances and in light of my reasons (set out above) and the ABC's interest in knowing why Mr Murray refused to sign the Quit Claim, I consider that the primary judge's misstatement of the test for qualified privilege misled his Honour into mischaracterising the privileged occasion and falling into error in finding that MCO 3 was neither made on a privileged occasion nor arose from that occasion, when his Honour ought to have found to the contrary. MCO 3: malice (or dominant improper purpose) 1. It is thus necessary to address the question whether Mr Morrow has proved that Mr Murray's dominant purpose was improper (that is, foreign, or unrelated, to the privileged occasion). Ms Chrysanthou submitted that Mr Murray's object in publishing MCO 3 was to harm Mr Morrow and his companies and to secure a commercial advantage for CJZ and to "stonewall" the process of recommissioning a further series of The Checkout. 2. Ms Chrysanthou referred to two matters which she alleged were false statements and on which she relied in support of the submission that malice had been established: 1. the alleged dispute about the intellectual property rights; and 2. the reference to a transfer of CJZ's shares in the Joint Venture Company "without payment". 1. Ms Chrysanthou submitted that these two statements revealed that Mr Murray's true motive was to harm Mr Morrow's reputation, which was a purpose foreign to the privileged occasion. In support of this submission, Ms Chrysanthou relied on the primary judge's findings at [781]-[784] (extracted above). 2. I shall address the question of a dispute relating to the intellectual property rights first. Mr Murray's evidence was that he believed that he still had an interest in the intellectual property for The Checkout (as he had not executed an all-rights assignment of any intellectual property which he retained in the show). The primary judge found, at [782]-[784] and [887] (extracted above) that Mr Murray must have known that it was untrue that there was a dispute about the intellectual property rights. I do not consider this finding to follow. Indeed, cl 5.2 of the Share Sale Agreement (extracted above at [91]) contemplated that it was the Share Sale Agreement which effected a final assignment of intellectual property rights from, relevantly, CJZ to the Joint Venture Company. In addition, cl 5.3 required CJZ to execute documents to perfect any such assignment. Mr Murray's evidence that he had not actually executed documents to perfect any such assignment effected by the Share Sale Agreement was not challenged. Thus, if the Share Sale Agreement was rescinded (on the basis of Mr Morrow's misleading or deceptive conduct), there would be a dispute about the intellectual property rights because (as would appear from the premise of cl 5) some would be owned by CJZ, some by Giant Dwarf and some by the Joint Venture Company. 3. Further, even if Mr Murray's belief that there was a dispute about the intellectual property rights was incorrect (and this was the reason why the defence of justification failed in relation to MCO 3), it did not follow that Mr Murray knew that it was incorrect: see Roberts v Bass at [103]-[104] (extracted above). The warning at [104] of Roberts v Bass, taken from Godfrey v Henderson (1944) 44 SR (NSW) 447 at 454 (Jordan CJ) is apposite. A finding of express malice is not the obverse of the defence of justification. The defendant must prove the imputation to be true in fact to make out the defence of justification. However, in order to prove express malice, a plaintiff must prove improper purpose, which may be proved by establishing (to the Briginshaw standard) both that the imputation was false and that the defendant actually knew it to be false. If this requirement is not rigorously guarded, there is a risk that the defence of qualified privilege will have no independent operation to the defence of justification, when its purpose and parameters are quite distinct. 4. It is also important to address the primary judge's finding, at [783], that on 19 June 2019, a short time after 12 June 2019 (the date of MCO 3), Hamish Fraser, on behalf of Mr Murray, confirmed to Mr Kay that he agreed that all intellectual property rights in The Checkout were held by the Joint Venture Company. This finding ignores the fact that the letter of 19 June 2019 was intended to resolve the dispute about the form of the Quit Claim. In a letter sent earlier on 19 June 2019, Mr Kay had required that Mr Murray confirm, first, that all intellectual property rights in The Checkout were held by the Joint Venture Company; second, that Mr Murray had no claim against the ABC; third, that Mr Murray "stands by the validity" of the Share Sale Agreement; and, fourth, that he would not seek injunctive relief to prevent the broadcast of The Checkout. Hamish Fraser confirmed that Mr Murray "is willing to confirm" the first two matters, but not the third or the fourth. Mr Murray's expression of willingness to confirm that the Joint Venture Company held the intellectual property rights to The Checkout was put in the context of a wider proposal to settle the proceedings and did not, in my view, amount to an admission that, absent resolution of the dispute as a whole, Mr Murray was prepared to agree to those two matters or that he accepted that the Joint Venture Company did hold all the intellectual property rights to The Checkout. 5. Further, there was an issue about its ownership because there was an issue about the ownership of the Joint Venture Company since a search of the Australian Securities and Investment Commission register would reveal that Giant Dwarf was the sole shareholder, which would prove to be inaccurate if the Share Sale Agreement were set aside. Mr Murray understood that Mr Morrow could not proceed with his negotiations with the ABC without a Quit Claim because of the ABC's concerns. 6. The second matter which was said to be false was Mr Murray's statement that CJZ had transferred its share in the Joint Venture Company "without payment" when in fact the Share Sale Agreement provided for payment of $50 plus the promise by the Joint Venture Company to pay CJZ a fee of 2% of the cash budget for future series of The Checkout. At the time Mr Murray signed the Share Sale Agreement, he had (as a consequence of what he had been told by Mr Morrow and what he had heard from the ABC) no real expectation that there would ever be any future series of The Checkout. Thus, in this context, the 2% fee was speculative. Mr Murray's evidence, which was not disputed, was that the $50 had not in fact been paid. Thus, no monies had actually been paid to Mr Murray for CJZ's share in the Joint Venture Company. I am not satisfied that the strictly true, but perhaps slightly exaggerated, statement that the transfer was "without payment" is sufficient to establish that Mr Murray's dominant motive in communicating MCO 3 was a purpose foreign to the occasion of qualified privilege. Further, Mr Murray's belief that he had received no payment was in fact true. 7. Each of these matters was relevant to the (proper) purpose of the communication. Even Mr Murray's "stonewalling" was related to the proper purpose because it preserved the status quo, pending resolution of the dispute between Mr Murray and Mr Morrow as to the validity of the Share Sale Agreement. In these circumstances, I am not persuaded that Mr Morrow has discharged his onus of proving that Mr Murray's dominant purpose for the publication of MCO 3 was an improper one. Conclusion with respect of MCO 3 1. It follows from my reasons set out above that grounds 1(a) and (b) (alleged error of principle relating to qualified privilege) and ground 2 (erroneous finding of malice, if such a finding was made) are made out. In ground 3, the primary judge's rejection of the justification defence with respect to MCO 3 is challenged. I do not consider that this raises an issue of principle and, accordingly, I am not persuaded that leave to appeal ought extend to this ground. In any event, it is irrelevant as Mr Murray and CJZ have established the common law defence of qualified privilege with respect to MCO 3. MCO 4: email dated 20 June 2019 from Mr Murray to the ABC 1. The primary judge found that because Mr Murray sent an "update" to the ABC on the discussions he had had with Mr Morrow on the matter in which his Honour had found, in relation to MCO 3, the ABC had no interest in the communication and that, accordingly, it was not protected by qualified privilege ([828]-[829]). 2. In MCO 4 Mr Murray communicated information to the ABC about the dispute between him and Mr Morrow concerning the Share Sale Agreement. For the reasons given above in relation to MCO 3, this attracted qualified privilege as it was relevant to the occasion of qualified privilege. 3. The allegation of malice (in this context, improper motive) was not the subject of a specific finding by the primary judge. Ms Chrysanthou submitted that his Honour's findings (in respect of other matters) "span[ned] the entire period during which the matters complained of were published" and were "consistent" with a finding of malice. Ms Chrysanthou accepted that the primary judge's malice findings pre-dated MCOs 4-6 but relied on the word "campaign" which his Honour used to describe what Mr Murray had done ([896] and [942]). I do not consider that these findings can properly be read as amounting to a finding of malice to defeat qualified privilege in respect of MCO 4. 4. As I consider that Mr Murray has established the defence of qualified privilege in respect of MCO 4, it is necessary to address Ms Chrysanthou's argument that Mr Morrow established malice (or rebutted the presumption of honesty of purpose). Ms Chrysanthou relied on the primary judge's finding (for the purposes of the justification defence to MCO 3) at [781]-[784] (set out above) and said that Mr Murray's statements that the transfer of shares had been without payment and that there was a dispute about the intellectual property rights were untrue to his knowledge. For the reasons given above in respect of MCO 3, I am not satisfied that Mr Morrow discharged his onus of proving that Mr Murray's dominant motive was an improper one. MCO 5: email dated 5 July 2019 from Mr Murray to the ABC 1. In MCO 5, Mr Murray continued to update the ABC about the dispute. The additional statement which had not previously been made referred to "[Mr Murray and CJZ's] allegations against [Mr Morrow] and Giant Dwarf of fraudulent misrepresentation". 2. The primary judge rejected the defence of qualified privilege on the following basis (which I have found, for the reasons given above, to be erroneous) at [854]: "There can be no question here of any defence of qualified privilege as Ms Carnabuci had made it perfectly clear in her email, to which Mr Murray was replying, that the ABC did not 'wish to have any involvement in the dispute between you'. The ABC had no interest in receiving an email in the terms of Mr Murray's email of 5 July 2019." 1. The primary judge's findings on the defence of justification for MCO 5 at [840]-[847] have been extracted above. In substance, his Honour found that "the ordinary reasonable reader" would understand "fraudulent misrepresentation" to mean a knowingly false statement. As referred to above, Ms Chrysanthou relied on this finding in support of her submission that, as MCO contained a false statement by Mr Murray, the defence of qualified privilege, if established, would be defeated by malice. 2. Mr Murray was cross-examined extensively on MCO 5. He said that he used the word "allegations" to qualify "fraudulent misrepresentations" to make it clear that they were just allegations at that time. He agreed that he did not press such allegations in the Defamation proceedings. Mr Murray explained that he was making allegations but referring in the same sentence to documents which he did not then have (correspondence between Mr Murray and the ABC) which would be capable of proving or disproving the allegations (see the text of MCO 5 set out above). He accepted that he was alleging fraudulent misrepresentations but said that the ABC itself would know whether there were actually fraudulent misrepresentations because the ABC would know whether Mr Morrow was negotiating with them about the return of The Checkout before 8 April 2019 (the date he signed the Share Sale Agreement). Mr Murray confirmed in cross-examination that his purpose in writing to the ABC was to obtain from them the relevant documents (communications between the ABC and Mr Morrow about the return of The Checkout before 8 April 2019). He denied that his purpose was to "shame" Mr Morrow. Indeed, when Ms Chrysanthou put to him that MCO 5 was a "gratuitous attack on [Mr Morrow] in order to harm him", Mr Murray responded that if that was the case he would have sent it to a "wide distribution list" rather than to "one person at the ABC". 3. It is not to the point that Mr Murray did not press the allegations of fraudulent misrepresentations in the Commercial proceedings. The statutory prohibition on misleading or deceptive conduct in trade and commerce was a significant advance in the law in that it did not require proof of intent, in contrast to fraudulent misrepresentations. It would appear that Mr Murray appreciated that an allegation of fraudulent misrepresentation implies that the representor believed the representation to be false at the time it was made. Indeed, this was his belief. He had learned that Mr Morrow had been negotiating with the ABC for a future series of The Checkout prior to 8 April 2019 in circumstances where Mr Morrow had, at the same time, been representing to him that there was no real prospect of that occurring. Mr Murray's evidence was that he believed the allegation (of fraudulent misrepresentation) to be true but that he could not actually know as he did not have the documents (which were in the ABC's possession) which were necessary to prove or disprove it. 4. In these circumstances, it cannot be inferred that Mr Murray knew the allegation to be untrue for the purposes of express malice. Indeed, there were grounds for him to believe it to be true since Mr Morrow had in fact been speaking to the ABC about bringing The Checkout back at the very time when he had been telling Mr Murray to the contrary. Just as there is a significant difference between suspicion and belief (George v Rockett (1990) 170 CLR 104 at 115-116; [1990] HCA 26), there is a significant difference between belief and knowledge. 5. The primary judge's finding about what an "ordinary reasonable reader" (which was made in the course of determining whether the defence of justification was made out) would understand by the statement is not to the point. What is relevant for a determination of malice in this context is Mr Murray's state of mind. What he was trying to do in sending MCO 5 was to obtain documents from the ABC to determine one way or the other what the true facts were with a view to resolving the issue relating to the validity of the Share Sale Agreement with Mr Morrow. This was central to the occasion of qualified privilege. He was, at that time, making several allegations against Mr Morrow, all of which, but for the fraudulent misrepresentation, were pressed in the Commercial proceedings and made out. 6. In these circumstances, Mr Morrow failed to discharge the onus of proving an improper motive for MCO 5. Accordingly, Mr Murray was entitled to the benefit of qualified privilege and is not liable in defamation for MCO 5. MCO 6: email dated 12 August 2019 from Mr Murray to the ABC 1. The email dated 12 August 2019 was similar in import to MCO 5. It repeated the allegation of fraud but did not use the word allegation. Mr Murray continued to update the ABC about the dispute between himself and Mr Morrow and informed the ABC that he would commence proceedings against Mr Morrow (which he, of course, eventually did). He also informed the ABC that Mr Morrow had terminated the Share Sale Agreement. The matters addressed in this email related to the occasion of qualified privilege. While the language of the paragraph which commenced with the rhetorical question beginning, "Why would the ABC…" was both angry and intemperate, it was relevant (indeed, central) to the occasion of qualified privilege and not in any way foreign to it. For these reasons, Mr Morrow has failed to discharge the onus of establishing malice for the purposes of defeating the defence of qualified privilege in respect of MCO 6. Conclusion 1. I am satisfied that Mr Murray has made out the defence of qualified privilege in respect of each of MCOs 3, 4, 5, and 6 and that Mr Morrow has not discharged his onus of proving malice (in the relevant sense of improper, or foreign, purpose) in respect of any of these publications. For these reasons, there should be judgment for Mr Murray and CJZ in the Defamation proceedings. The orders I propose are set out at the conclusion of these reasons. Claim for damages for injurious falsehood 1. At [988], the primary judge found that: "… the short answer to Mr Morrow's and Giant Dwarf's case concerning injurious falsehood is that, just as Mr Morrow has failed to show that he has suffered any economic loss as a result of Mr Murray's allegedly defamatory communications to the ABC, for the same reasons, he has failed to establish any loss by him or Giant Dwarf as a result of the allegedly false statements subject of his injurious falsehood claim." 1. The primary judge addressed IFs 1-15 at [991]-[1058] before concluding at [1059]-[1060] (and referring back to [988]) that although to the "limited extent" set out, the case concerning injurious falsehoods had been proved, neither Mr Morrow nor Giant Dwarf had suffered any loss as a result of the injurious falsehoods. The cross-appeal against the rejection of the claim for damages for injurious falsehood 1. The grounds of cross-appeal relating to this claim are as follows: "1. The primary judge erred in characterising [IFs 1, 2 and 8] as 'to an extent' false in circumstances where [they] were false: Judgment [1001], [1007] and [1024]. 2. The primary judge erred in failing to determine that [CJZ] was actuated by malice in making the IFs. 3. The primary judge erred in finding that [Mr Murray] was not actuated by malice in making [IFs 1, 2, 3, 8, 9 and 11] Judgment [1002], [1007], [1025], [1031] and [1040]; cf [875],[892] and [993]. 4 . The primary judge erred in failing to determine that [Mr Murray] was actuated by malice in making [IFs 4, 5, 12, 13, 14 and 15]. 5 . The primary judge erred in determining that the loss and damage of [Giant Dwarf and Mr Morrow] was caused other than by [CJZ's and Mr Murray's] publication of the IFs: Judgment [958] - [968], [973], (986] - (988] and [1059] - [1060]. 6. The primary judge erred in failing to determine the cross-appellants ' claims for loss in injurious falsehood, which loss ought to have been determined in the amount of: (a) [The Joint Venture Company]: (i) $1,000,000 in respect of income from the Production Company Overhead for 4 further series of The Checkout; (ii) an amount to be determined by the court in respect of damage to goodwill; (b) [Giant Dwarf]: (i) $730,400 in respect of loss of income from provision of Production Facilities for 4 further series of The Checkout or The Help Desk; (ii) $485,600 in respect of loss of income from providing the services of a Series Producer and Production Manager on 4 further series of The Checkout or The Help Desk; and (iii) an amount to be determined by the court in respect of damage to goodwill; (c) [Mr Morrow] (i) $596,640 being the loss of income in respect of working as Executive Producer on 4 series of The Checkout or The Help Desk; (ii) an amount to be determined by the court in respect of damage to reputation. … 7A. The primary judge erred in finding on the evidence before him that [IFs 3, 4, 5, 12, 13, 14] were not false. …" 1. The key challenge in the cross-appeal relating to the injurious falsehood claim is ground 5, which challenges the primary judge's finding that the cross-appellants had not established that any of the IFs had caused any loss suffered by them. In order to address the cross-appeal, I propose to address this challenge first.If it is not made out, there is no utility in addressing the other grounds since the claim for damages for injurious falsehood must fail as the cross-appellants were required to prove that they had suffered actual loss as a result of the IFs (see the list of elements of the tort of injurious falsehood at [985] of the primary judge's reasons, which were said to be common ground). 2. Ms Chrysanthou submitted that the primary judge had erred by addressing only the economic loss suffered by Mr Morrow and Giant Dwarf and making no finding as to the economic loss suffered by the Joint Venture Company. 3. The primary judge referred only to Mr Morrow and Giant Dwarf when finding that neither had established loss as a consequence of the IFs. However, it is, in my view, inconceivable that a different conclusion in respect of the Joint Venture Company could be reached as the Joint Venture Company was, after 8 April 2019, under Mr Morrow's control (since Mr Murray was no longer a director from 9 April 2019 and CJZ was no longer a shareholder). Therefore the findings relating to the reason why The Checkout (or any other show associated with Mr Morrow) was not broadcast were relevant to the question of whether economic loss had been established to be the result (in terms of the natural and probable consequence) of the injurious falsehood. 4. Ms Chrysanthou also submitted, in reliance on Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 (Palmer Bruyn), that it was not necessary for the cross-appellants to established that their loss was actually caused by the alleged IFs but that it was sufficient if they established that: 1. loss was in fact sustained (because the ABC did not commission The Checkout or The Help Desk); and 2. the loss was intended by Mr Murray; or 3. the loss was the natural and probable consequence of making each IF. 1. I am not persuaded that Palmer Bruyn provides any support for the proposition that it is enough for a plaintiff to prove that the loss in fact sustained was intended by the maker of the injurious falsehoods in circumstances where the plaintiff cannot show that the loss was the natural and probable consequence of the injurious falsehoods and, indeed, a substantial cause. 2. In Palmer Bruyn, McDonald's had retained Palmer Bruyn to provide surveying services for the preparation of a development application for a new restaurant at Wallsend near Newcastle. Before the Council meeting to decide the issue, one Councillor created a hoax letter on Palmer Bruyn's letterhead falsely suggesting (among other things) that the recipient Councillor would receive "4 Big Macs and 2 choc sundaes per week" if he supported it. 3. The local newspaper reported the details of the hoax letter in an article which was not critical of Palmer Bruyn. The article caused McDonald's to reconsider its retainer of Palmer Bruyn and terminated the contract. Palmer Bruyn sued the author of the hoax letter for injurious falsehood. The issue in that case was not whether Palmer Bruyn's loss of the McDonald's contract was caused by the falsehoods in the hoax letter, but whether its author should be held liable for that loss when he had no intention of causing it. This required consideration of the sufficiency of the connection between the publication of the false statement and the damage caused by it, which was a question of "remoteness". 4. In Palmer Bruyn at [57], Gummow J (with whom Gleeson CJ agreed) approved the statement in Ratcliffe v Evans [1892] 2 QB 524 at 527-528 that: "an action will lie for written or oral falsehoods, not actionable per se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage …" 1. Gummow J continued at [73]: "… Where it is established by evidence that the defendant intended to cause the harm that eventuated, and provided the other elements of the tort are satisfied, the defendant will generally be held liable for that harm. …" 1. His Honour said at [75]: "… At least in the context of injurious falsehood, the question of whether there is a sufficient relation between the damage 'intended' and the damage suffered will generally depend upon whether the damage suffered was the 'natural and probable result' of the false statement." 1. Gummow J stressed the significance of the concept of "natural and probable result" in [81] where his Honour said: "Where there is a finding that the wrongdoer 'intended' a certain consequence, the issue of whether the wrongdoer should be liable for a consequence different in kind will depend largely … upon the relation of that which the wrongdoer intended to the consequences which actually resulted. This relation will generally be assessed by asking whether the damage was the 'direct and natural result' of the publication of the falsehood." 1. In Palmer Bruyn, the harm was neither intended by the author of the hoax letter, nor was the harm the "natural and probable result" of its publication. Gummow J also addressed the applicable principles of causation in such a case and, at [96], confirmed the principle that "the publication of an injurious falsehood is a legal cause of pecuniary loss if 'it is a substantial factor in bringing about the loss' …". 2. Thus, although the hoax letter "caused" the loss of Palmer Bruyn's contract with McDonald's in the "but for" sense (since but for the letter, the newspaper article would not have been written and McDonald's would not have been concerned about the adverse publicity and would not have terminated its contract with Palmer Bruyn), this was insufficient to establish liability for the tort of injurious falsehood. 3. In the present case, the cross-appellants were required to prove, in accordance with Palmer Bruyn, that the alleged IFs were a substantial factor in causing them economic loss. The question of remoteness (which was a live issue in Palmer Bruyn) did not arise in the present case because the primary judge found that the reason the ABC did not recommission The Checkout was because the parties could not resolve their dispute over the Share Sale Agreement ([716], [731], [958] and [1060]). This dispute also included Mr Murray's refusal to sign the Quit Claim (which was found to be justified). Thus, the primary judge was satisfied that the operative cause of this aspect of the loss claimed by the cross-appellants was not the IFs. 4. As to the second aspect of the loss claimed, the primary judge found that the reason the ABC refused to commission The Help Desk was because of Mr Morrow's own conduct, which was unrelated to anything Mr Murray had said or written ([729] and [731]). Thus, Mr Morrow was the operative cause of the cross-appellants' loss. 5. The primary judge's reasoning and conclusion are in accordance with the principles in Palmer Bruyn, which have been cited and applied by this Court: see, for example, TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82 at [100] (Spigelman CJ, Mason P and Grove J agreeing). Accordingly, ground 5 of the cross-appeal has not been made out. 6. In these circumstances, it is not necessary to address the other grounds (1, 2, 3, 4, 6 and 7A) of the cross-appeal against the dismissal of the claim for injurious falsehood since the rejection of ground 5 is dispositive of this aspect of the cross-appeal: Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [7]-[8] (Kiefel CJ, Gageler and Keane JJ), [101] (Bell, Nettle, Gordon and Edelman JJ) and applied by this Court in Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150 (Leeming JA, Mitchelmore JA and Simpson AJA agreeing). The cross-appellants' challenge to findings concerning the ABC arising from the PP Act 1. Section 16 of the PP Act relevantly provides: "… (3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of: (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament. (4) A court or tribunal shall not: (a) require to be produced, or admit into evidence, a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera, or admit evidence relating to such a document; or (b) admit evidence concerning any oral evidence taken by a House or a committee in camera or require to be produced or admit into evidence a document recording or reporting any such oral evidence; unless a House or a committee has published, or authorised the publication of, that document or a report of that oral evidence. …" 1. As referred to above at [45], Ms Chrysanthou contended that the primary judge was in error in failing to address the consequences of the PP Act when considering the effect of documents which had been tendered from those produced on subpoena by the ABC. She submitted that "a large and significant subset of ABC documents" had been excluded or redacted by reason of s 16(3) of the PP Act and that this necessarily affected the primary judge's fact-finding function. Ms Chrysanthou contended that: 1. exclusions and redactions were made to otherwise relevant evidence by reason of the PP Act; 2. the primary judge had access to documents by reason of s 16(5) of the PP Act; and 3. the primary judge was obliged, and failed, to have regard to the PP Act when drawing inferences from the ABC documents. 1. However, Ms Chrysanthou has not identified any error in fact-finding by the primary judge or alternative finding which ought to have been made as a consequence of the effect of the PP Act. It is understandable that no such identification could be made because to embark on that process would inevitably breach the relevant privilege. 2. The record shows that after the cross-appellants had raised the issue of the PP Act with Mr Murray and CJZ, the parties agreed on what ought be excluded and redacted. Thus, the primary judge did not need to make rulings on the effect of the PP Act on particular documents. Nor was the primary judge privy to such material since it was not admitted into evidence (and was removed from the court books). It may be that the operation of the PP Act worked to the forensic disadvantage of the parties. But it is impossible to tell whether it did so and whether the forensic disadvantage of one party was greater than that of the other. None of these matters is relevant in the circumstances of the present case where the parties conducted their cases on the basis that certain material ought not be tendered because it was inadmissible. 3. The primary judge was bound to decide the case according to the evidence. His Honour was not entitled, much less obliged, to take into account the absence of "evidence" in circumstances where the putative evidence was inadmissible. Nor was the primary judge entitled to speculate about what the documents which were not tendered (because of the PP Act) would have revealed. No error in the primary judge's approach has been demonstrated. The Costs judgment 1. On 16 June 2022, there was a further hearing day for submissions on the appropriate orders, including costs. On 23 June 2022, the primary judge delivered the Costs Judgment: The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd; Morrow v Cordell Jigsaw Productions Pty Ltd (No 14) [2022] NSWSC 835. It is necessary only to address those aspects of his Honour's orders which are the subject of the application for leave to appeal by Mr Murray and CJZ. 2. Before the primary judge, Mr Murray and CJZ relevantly submitted that they were entitled to indemnity costs of the Commercial proceedings on the basis of either of their three Calderbank offers dated 19 June 2019, 18 October 2019 and 1 November 2019. 3. The offers, together with other relevant correspondence, are set out below. Hamish Fraser's open letter to Mr Kay of 19 June 2019 1. As referred to above, on 19 June 2019, Hamish Fraser wrote an open letter to Mr Morrow's solicitor which set out his client's position in significant detail and said: 1. clauses 5.3 and 9.7 of the Share Sale Agreement were "further assurance clauses" and, thus, would not be interpreted to extend the ambit of the agreement and did not oblige Mr Murray to sign the Quit Claim, in part because the Quit Claim contained mutual releases; 2. further, if Mr Murray signed the Quit Claim, this would impede his ability to challenge the Share Sale Agreement on the basis that it had been procured by Mr Morrow's misleading or deceptive conduct; 3. Hamish Fraser contacted the ABC to see if the Quit Claim could be confined but the ABC required the Quit Claim to be signed in its then current form (which required mutual releases); 4. had Mr Murray been aware of the true status of further series of The Checkout, he would not have signed the Share Sale Agreement; 5. neither Mr Murray nor CJZ was in breach of the Share Sale Agreement by refusing to sign the Quit Claim; 6. further series of The Checkout could be produced if the parties could resolve the issues between them; thus, Mr Murray is not responsible for the show not proceeding; and 7. Mr Murray was prepared to confirm (a) (the Joint Venture Company owned all intellectual property rights in The Checkout) and (b) (Mr Murray had no claims against the ABC), but not (c) (that he "stood by" the Share Sale Agreement) or (d) (that he would not pursue injunctive relief relating to The Checkout). Mr Murray's Calderbank offer of 19 June 2019 1. As the primary judge found at [74] of the Costs judgment, Mr Murray's Calderbank offer of 19 June 2019 (which was rejected the following day) was to the following effect: "(a) Giant Dwarf transfer back to [CJZ] its 50% shareholding in the Joint Venture Company; (b) [CJZ] nominate as a non-executive director of the Joint Venture Company someone other than Mr Murray; (c) [CJZ] execute the Quit Claim as proposed by the ABC; (d) [CJZ] release Mr Morrow and Giant Dwarf from any claims arising from the negotiations leading to the Share Sale Agreement; and (e) the new series of The Checkout be produced on commercial terms between Giant Dwarf and [CJZ] equivalent to those that had applied to series two to six, although without Mr Murray's involvement." Mr Morrow's offer of 20 June 2019 1. It is also of significance, for reasons that appear below, that Mr Kay, on behalf of Mr Morrow and Giant Dwarf made a Calderbank offer on 20 June 2019 to Hamish Fraser, which included an offer to settle the matter on the following basis: "1. The Share Sale Agreement stands and continues to remain in force; 2. Clause 4.3 of the Share Sale Agreement be amended to provide that The Checkout Pty Ltd will pay CJP the following percentage of the co-producer cash budget in subsequent series of The Checkout (as produced in accordance with clause 4.3 (a) of the Share Sale Agreement): (a) Series 7 (TCO7) - 3% (b) Subsequent Series beyond Series 7 - 2% 3. Your client executes the Quit Claim in the form currently proposed by the ABC on or before 5pm on Friday 21 June 2019 …' 4. The parties release each other from all of their respective claims in relation to this matter; and 5. The parties enter a proper settlement deed incorporating these terms." 1. The offer was expressed to be open until 21 June 2019 "after which time this offer will permanently lapse." Mr Murray's Calderbank offer of 18 October 2019 1. In their offer dated 18 October 2019 (which was put after the mediation which had taken place on the same day), Mr Murray and CJZ offered to settle "the matter" on the basis that the parties treat the Share Sale Agreement as reinstated subject to the provision in the Share Sale Agreement that the Joint Venture Company pay CJZ a 2% fee being replaced with a provision that it pay CJZ $59,000 for each of series seven and eight of The Checkout and that CJZ sign the Quit Claim required by the ABC. This offer was withdrawn on 21 October 2019, apparently because of concerns that Mr Morrow was intending to produce a consumer affairs show other than The Checkout, as Mr Murray had learned that the ABC had a preference for a different show. The offer of 1 November 2019 1. On 1 November 2019, Ms Chapman, on behalf of Mr Murray and CJZ, made another Calderbank offer. She explained that the 18 October 2019 Calderbank offer was premised on the understanding that the ABC had a preference for The Checkout but that it now appeared that this was not the case. The terms of the offer (to settle the whole dispute) was as follows: "1. Reinstatement of the Share Sale Agreement with the following changes: Clause 4.3(a) is deleted and replaced with the following: "[The Joint Venture Company] must pay CJP a fee of 2% of the cash budget ("The Jigsaw Checkout Fee'') on subsequent series of The Checkout and/or on series 1 and 2 of any alternative consumer affairs program produced by [the Joint Venture Company], [Giant Dwarf] or any affiliated company, subsidiary, or any third party producer or production partner of [the Joint Venture Company], [Giant Dwarf] or Julian Morrow', together with further relevant amendments required to effect the above. The reason for this is that we are now aware that your clients have approached other established production companies requesting that they take over production of the future series of The Checkout, which would potentially have the effect of avoiding the royalty payments set out in the Share Sale Agreement. 2. The parties to sign a version of the Quit Claim approved by the ABC containing reciprocal releases. [CJZ] will sign this document on the basis that it is not considered an admission that the Share Sale Agreement's further assurance clause requires it. This offer is open until 3pm Tuesday, 5th November 2019." 1. Mr Morrow's solicitors rejected this offer on 4 November 2019 saying that it "fails to remedy the damage our clients have suffered." 2. His Honour said, of present relevance, of the offer of 1 November 2019: "92 The offer was made at a time when Mr Morrow's position then was that Giant Dwarf had terminated the Share Sale Agreement. It is not clear what Mr Morrow (or Mr Murray for that matter) understood the implications of this to be so far as concerns [CJZ's] shareholding in the Joint Venture Company nor as to [CJZ's] entitlement to cause Mr Murray to be reappointed as a director of the Joint Venture Company. 93 By now, the ABC had made clear it was not going to commission a further series of The Checkout for FY2020 although it had stated it was 'willing to consider a pitch for a new consumer affairs TV show'. Further, the dispute between Mr Morrow and the ABC concerning the terms on which the ABC might commission The Help Desk was coming to a head. 94 However, the offer was made, literally, at the outset of the proceedings and long before the parties' positions were finally articulated. As I have set out, Mr Murray had by then made known the substance of his complaints, but [CJZ's] contentions as to the implied term of the Joint Venture Agreement had not then been articulated. 95 In all these circumstances, although by this offer [CJZ] proposed an outcome for Mr Morrow and Giant Dwarf that was considerably better than Mr Morrow and Giant Dwarf have achieved, and significantly less favourable than [CJZ] has achieved, I am not able to conclude that it was unreasonable for Mr Morrow and Giant Dwarf not to have accepted the offer." [Emphasis added to indicate what Mr Katekar relied on as an error and footnotes omitted.] The application for leave to appeal against the Costs judgment Whether leave to appeal ought be granted 1. There are considerable obstacles in the way of an application for leave to appeal against a costs order. Ordinarily it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is not sufficient merely to show that the trial judge was arguably wrong: Wentworth v Rogers (No 3) (1986) 6 NSWLR 642. Where (as here) the decision under appeal is a decision made in the exercise of the Court's costs discretion (under s 98 of the Civil Procedure Act 2005 (NSW)), it is necessary to point to a House v The King (1936) 55 CLR 499; [1936] HCA 40 error. This requires the Court to be satisfied that the judge acted upon a wrong principle, took into account extraneous or irrelevant matters, mistook the facts, failed to take into account a material consideration, or where upon the facts the outcome is unreasonable or plainly unjust. Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. 2. Mr Katekar argued that, by the time the offer was made on 1 November 2019, Giant Dwarf's claim against CJZ had been finally articulated (that CJZ had breached the Share Sale Agreement by refusing to sign the Quit Claim) and CJZ's response had also been articulated in its letter of 19 June 2019 (that it was not obliged to sign the Quit Claim and that it had been misled into executing the Share Sale Agreement). Mr Katekar submitted, in effect, that the error highlighted in the passage extracted above from his Honour's reasons caused the primary judge's discretion as to costs to miscarry in the House v The King sense and that, accordingly, this Court should re-exercise the costs discretion on a basis which reflected the true position. Mr Katekar also relied on the primary judge's finding at [76] of the Costs judgment: "By this point, Mr Murray had made clear that he believed that Mr Morrow may have misled him in the circumstances leading to the execution of the Share Sale Agreement and may have acted in breach of his duties as director of the Joint Venture Company." 1. I accept Mr Katekar's submission that the primary judge's discretion miscarried. Hamish Fraser's letter of 19 June 2019 articulated comprehensively CJZ's and Mr Murray's claim against Mr Morrow and Giant Dwarf and refuted, also comprehensively, Mr Morrow and Giant Dwarf's claim against them. In this sense, the primary judge relevantly "mistook the facts". It was not to the point that, as at 1 November 2019, CJZ's cross-claim had not been brought since CJZ's offers included a release from all claims which it could have brought against Giant Dwarf, Mr Morrow or the Joint Venture Company. Both the 18 October and 1 November 2019 Calderbank offers invited Giant Dwarf to accept terms that reflected the fact that its claim that CJZ had breached the Share Sale Agreement for refusing to execute the Quit Claim would fail and offered mutual releases (which were contained in the Quit Claim, which CJZ was offering to sign). Thus, it was irrelevant that, for example, the implied term (which formed part of the case on reasonable expectation of disclosure) had not yet been formulated, since a general release was offered. 2. I consider that leave to appeal against the costs order ought be granted because of the particular circumstances of the present case, more fully referred to below, but which include the offeror's detailed expatiation of the legal position well in advance of the hearing, which was vindicated in the primary judge's reasons and the significant compromise reflected in the offer. The re-exercise of the costs discretion 1. In these circumstances, it is necessary to exercise the discretion afresh. In my view, the relevant offer is that of 1 November 2019 because the offer of 18 October 2019 was withdrawn before its expiry date. 2. The policy behind the awarding of costs on an indemnity basis as a consequence of a Calderbank offer is to encourage the parties to assess the strengths and weaknesses of their respective cases (including at an early stage). The principle was articulated in SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 at [37], where Giles JA said: "The making of an offer of compromise in the form of a Calderbank letter (from Calderbank v Calderbank (1976) Fam 93), where the offeree does not accept the offer but ends up worse off than if the offer had been accepted, is a matter to which the court may have regard when deciding whether to otherwise order, but it does not automatically bring a different order as to costs. All the circumstances must be considered, and while the policy informing the regard had to a Calderbank letter is promotion of settlement of disputes an offeree can reasonably fail to accept an offer without suffering in costs. In the end the question is whether the offeree's failure to accept the offer, in all the circumstances, warrants departure from the ordinary rule as to costs, and that the offeree ends up worse off than if the offer had been accepted does not of itself warrant departure …" 1. Ms Chrysanthou submitted that it was not unreasonable for Mr Morrow and Giant Dwarf to reject the 18 October 2019 and 1 November 2019 Calderbank offers because they could not be expected to give up potentially valuable claims (such as the claim for damages against CJZ for breach of the Share Sale Agreement). She contended, orally: "Hindsight reasoning in relation to whether a party has engaged in an unreasonable failure to accept an offer is not of assistance. One must have regard to the position the person was in at that time. … coming to the end of the case and saying, you lost the case, therefore you should have known to accept the offer in the first place, doesn't make a lot of sense." 1. Further, Ms Chrysanthou submitted that there was a very significant distinction between Mr Morrow's offer of 20 June 2019 and Mr Murray's offer of 1 November 2019 despite their apparent similarities. Mr Morrow's offer of 20 June 2019 limited the format fee (expressed as a percentage of the co-producer cash budget) to "subsequent series of The Checkout", whereas Mr Murray's offer of 1 November 2019 extended the format fee to "subsequent series of The Checkout and/or on series 1 and 2 of any alternative consumer affairs program produced by [the Joint Venture Company], [Giant Dwarf] or any affiliated company, subsidiary, or any third party producer or production partner of [the Joint Venture Company], [Giant Dwarf] or Julian Morrow". Ms Chrysanthou, in somewhat hyperbolic oral submissions, described Mr Murray's offer as "absurd" and said that it had the effect that Mr Morrow "can never make a consumer affairs show again." 2. It is true, as Ms Chrysanthou submitted, that for Mr Morrow and Giant Dwarf to accept the offer of 1 November 2019 would have required them to relinquish their damages claim for alleged breach of the Share Sale Agreement, which they must have assessed as having some value to warrant its being brought. On the other hand, acceptance of the offer would have freed Mr Morrow and Giant Dwarf from the joint venture agreement and given them control of the Joint Venture Company, to the exclusion of Mr Murray. It was an offer which delivered almost everything Mr Morrow wanted in terms of a future business model and was made at a time when Mr Morrow may have been able to salvage his relationship with the ABC (which he had harmed by his conduct relating to The Help Desk). The offer represented a very substantial compromise on the part of Mr Murray and CJZ, particularly having regard to their legal position, which was relatively strong and was, as I have said, vindicated by the primary judge. 3. I reject Ms Chrysanthou's argument that the 1 November 2019 Calderbank offer was "absurd" or uncommercial. It made allowance for the real prospect that, instead of recommissioning The Checkout for another two series, the ABC would decide to commission another consumer affairs show, such as The Help Desk. What the 1 November 2019 offer did was to give Mr Murray a return on the first two series of any such substitute program. There was no indication that the ABC had any appetite for The Checkout as well as another consumer affairs program. It had, as early as 9 March 2019, approved the proposal of a further two series of a consumer affairs show. When the 1 November 2019 offer is viewed by reference to the surrounding circumstances (which include the terms of Mr Morrow's 20 June 2019 offer, which was substantially similar but limited to The Checkout), I consider it to have been unreasonable of Mr Morrow not to accept the 1 November 2019 offer. 4. It would, in my view, be unreasonable and plainly unjust to deprive Mr Murray and CJZ of their costs on an indemnity basis, particularly in circumstances when their offer of 1 November 2019 had been preceded, in the open letter of 19 June 2019. In that letter, Hamish Fraser's detailed explanation (by reference to the facts and legal authority) as to why Mr Morrow and Giant Dwarf's claims against them would fail was vindicated by the primary judge's findings (which have not been disturbed on appeal) as follows: 1. the Quit Claim went beyond the scope of the Share Sale Agreement; 2. the Share Sale Agreement did not require Mr Murray to sign the Quit Claim; 3. Mr Murray and CJZ were induced by Mr Morrow and Giant Dwarf's misleading or deceptive conduct into entering into the Share Sale Agreement; 4. but for Mr Morrow and Giant Dwarf's misleading or deceptive conduct, Mr Murray and CJZ would not have entered into the Share Sale Agreement; and 5. neither Mr Murray nor CJZ was in breach of the Share Sale Agreement or had repudiated that agreement by either refusing to sign the Quit Claim or by refusing to "stand by" the Share Sale Agreement. 1. As I have said, had Giant Dwarf accepted CJZ's offer, it would have been in a better position and CJZ would not have incurred substantial costs in defending itself against the claim in the Commercial proceedings and successfully prosecuting its cross claim for rescission of the Share Sale Agreement. Further, Giant Dwarf ought to have accepted that its claim was doomed to fail for the reasons given by Hamish Fraser (and subsequently the primary judge) and accepted CJZ's offer. 2. For these reasons, I consider that the application for leave to appeal in the Commercial proceedings ought be granted and that the appeal ought be allowed. Instead of the costs order that was made, the order should be that the respondents pay the applicants' costs of the Commercial proceedings on an indemnity basis. Application for leave to adduce further evidence 1. By notice of motion filed on 11 May 2023, the cross-appellants sought leave to adduce further evidence which comprised emails from Mr Murray sent between 9 March 2023 and 24 March 2023. The purpose of the notice of motion was to support the cross-appellants' claim that the undertaking given by Mr Murray on his own behalf and on behalf of CJZ and noted by the Court in the Defamation proceedings (that he would not publish any statement to the effect that the plaintiff [Mr Morrow] engaged in fraud against the first defendant (CJZ)) was insufficient and that this Court ought grant injunctive relief instead. 2. As Mr Murray and CJZ have been successful in their appeal against the orders made in the Defamation proceedings, there is no basis on which the Court could order injunctive relief instead of the undertaking. In these circumstances, I propose that the notice of motion be dismissed. Further, it is necessary to release Mr Murray from the undertaking which the primary judge noted in (3) of the orders made in the Defamation proceedings on 23 June 2022, as, the appeal having been allowed, there is no longer any basis for requiring the undertaking. Proposed orders 1. For the reasons given above, I propose the following orders: In proceedings 2022/214060 (the Commercial proceedings) 1. Dismiss the cross-appeal. 2. Grant leave to the applicants to appeal in respect of costs. 3. Set aside orders (7) and (8) made by Stevenson J on 23 June 2022 in proceedings 2019/343896 and in lieu thereof make the following order: Order the second and third plaintiffs to pay the first and second defendants' costs of the proceedings (including the amended summons and amended cross summons) on an indemnity basis. 1. Subject to (5), order the respondents to pay the applicants'/appellants' costs of the appeal. 2. If any application is to be made for a different order for the costs of the appeal, direct that the party send by email a notice of motion, together with any evidence and submissions in support, to the Associate to the Presiding Judge within 14 days hereof. In proceedings 2022/214083 (the application for leave to appeal against orders made in the Defamation proceedings) 1. Grant leave to appeal on grounds 1, 2, 4, 6, 7, 8, 9 and 10 but otherwise refuse leave to appeal. 2. Allow the appeal. 3. Set aside orders (1), (2), (3) and (4) made by Stevenson J on 23 June 2022 in proceedings 2020/264993 and in lieu thereof make the following orders: 1. Judgment for the defendants. 2. Subject to (c) below, order the plaintiff to pay the defendants' costs of the proceedings. 3. If any application is to be made for a different order for the costs of the Defamation proceedings, direct that the party send by email a notice of motion, together with any evidence and submissions in support, to the Associate to the Presiding Judge within 14 days hereof. 1. Subject to (5), order the respondents to pay the applicants'/appellants' costs of the appeal. 2. If any application is to be made for a different order for the costs of the appeal, direct that the party send by email a notice of motion, together with any evidence and submissions in support, to the Associate to the Presiding Judge within 14 days hereof. 3. Release the second defendant from the undertaking given by him on his own behalf and on behalf of the first defendant, the making of which was noted by the primary judge in (3) of the orders and notations made on 23 June 2022. ********** Adamson JA's reasons with respect to findings of fact challenged in ground 7 of the cross-appeal # Para Finding of primary judge Material facts the cross-appellants contend the Court below should have found Reasons of Adamson JA 1. 3 Both Mr Morrow and Mr Murray are legally qualified, although neither is currently in practice as a lawyer. Mr Murray held a current solicitor's practising certificate from July 2021 (T346.31-48). Finding correct but fact immaterial. When he was cross-examined, Mr Murray explained that he obtained a practising certificate because it was more cost-effective to be able to sign the chain-of-title documents himself (as a solicitor) rather than to retain one to sign them for him (the ABC apparently required the documents to be signed by a solicitor). 2. 20 During those negotiations, Mr Morrow did not mention to Mr Murray that he was, at the same time, in effect negotiating with the ABC to re-badge his proposed Are You Being Served program as the seventh series of The Checkout, subject only to a successful culmination of his negotiations with Mr Murray concerning [CJZ's] shares in the Joint Venture Company. During the negotiations between CJZ and Giant Dwarf about the Share Sale Agreement, Mr Morrow was not negotiating with the ABC to "re-badge" Are You Being Served? as The Checkout Series 7. This finding appears at the beginning of the primary judge's reasons in a summary of the significant events which led to the proceedings and therefore must be read in light of the more detailed findings made later in the judgment. The expression "rebadge" ought, in this context, not be read as implying that Are You Being Served was in substance the same as The Checkout, but rather that they were both consumer affairs shows which were substitutable for each other in the sense that the ABC would only broadcast one consumer affairs show. 3. 86 Proposed cl 28 was included in the drafts as a "boilerplate" provision and was not intended by either Mr Morrow nor Mr Murray to reflect or record their relationship as joint venturers. It was a common understanding of Giant Dwarf and CJZ at all times before 8 April 2019 that there was no fiduciary relationship between the parties. Clause 28 was contained in a draft agreement which was never signed and was inconsistent with the parties' agreement to enter into a joint venture, which imposed fiduciary duties. 4. 152 CJZ'S "flirtation" in 2018/2019 with the possibility that CJZ would pitch to the ABC a consumer affairs show to be tentatively described as "Fraud Squad" did not have significance in this case. In 2018/2019 CJZ worked to create a new consumer affairs show "Fraud Squad" to be produced exclusively by CJZ. Factual finding reflected the primary judge's advantage in hearing and seeing the witnesses and his acceptance of Mr Murray's evidence that nothing came of the possibility, which was, in any event, not pitched to the ABC. 5. 252(d) There is no obvious reason why Mr Munro would, a day after the meeting, have misremembered or misquoted what had been told to him by Mr Carrington or Mr Huddleston about the meeting. The email on 14 February 2019 from Peter Munro to Emma McDonald refers to a meeting on 13 February 2019 which Mr Munro did not attend. The primary judge's finding reflected his understanding that Mr Munro was not present at the meeting and had been told what had happened by Mr Carrington and Mr Huddleston, who were present. 6. 270 If, as Mr Morrow said, he thought that Giant Dwarf was entitled to make a consumer affairs project without reference to the Joint Venture Company or CJZ, consistently with his understanding of the terms of the Joint Venture Agreement, there was no reason for him not to mention to Mr Murray those communications. A more likely reason for Mr Morrow not to have said anything to Mr Murray about this was his understanding that the ABC remained open to the possibility of recommissioning The Checkout; a matter that [the primary judge found] Mr Morrow did not wish to raise with Mr Murray in the context of "drawing a line" under the joint venture. Giant Dwarf was entitled to make a consumer affairs project without reference to the Joint Venture Company or CJZ provided the new project did not use the intellectual property of the Joint Venture Company. The finding is supported by Mr Morrow's admissions contained in his email dated 4 June 2019, which is set out at [202] and [586]. The fact for which the cross-appellants contended is not inconsistent with the primary judge's finding about the reason for Mr Morrow's non-disclosure to Mr Murray about the possibility of the ABC recommissioning The Checkout. No error has been shown in the primary judge's finding. 7. 285 [The primary judge found] this email to be a reasonably contemporaneous confirmation of the correctness of Mr Murray's recollection about what Mr Morrow said about this. Mr Murray's email dated 13 June 2019 is not a reasonably contemporaneous record of what Mr Morrow said to Mr Murray on 19 February 2019. Mr Murray's email of 13 June 2019 did not need to be "reasonably contemporaneous" with the conversation of 19 February 2019 to be admissible under s 64(3) of the Evidence Act. It was open to the primary judge to regard the email as "reasonably contemporaneous". No error has been demonstrated. 8. 287 Mr Morrow's denial of having said words to this effect [that he never wanted to work in television again] should, in my opinion, be seen in the context of his immediately preceding, and false, evidence that the ABC had not told him, as at 19 February 2019, that it wished to present a consumer affairs show. After the meeting on 13 February 2019 with the ABC executives Michael Carrington and Richard Huddleston, Mr Morrow did not have a clear sense of what the ABC wanted in terms of a new consumer affairs television project or whether the ABC did in fact intend to air a prime time consumer affairs television project in the second half of 2019 (ExA04.1256 para 106). Factual finding reflected the primary judge's advantage in hearing and seeing the witnesses and his acceptance of Mr Murray's evidence. The finding was immaterial, except as to Mr Morrow's credit, because the primary judge found that Mr Murray did not rely on it: [531]. 9. 287 I find that Mr Morrow did say the words attributed to him by Mr Murray. Mr Morrow did not say to Mr Murray on 19 February 2019 that he "never wanted to work in television again". See above, for fact 8. 10. 287 They cannot have reflected his true state of mind. They must have been said to deflect Mr Murray's attention from the prospect of Mr Morrow's further involvement in any potential recommissioning of The Checkout. On 19 February 2019, Mr Morrow described the non-television projects he was working on to Mr Murray and told him he was focussing on those projects. He also referred to other television projects Giant Dwarf had in development that he was supporting. (ExA04.1401-2) See above, for fact 8. 11. 331 It was Mr Morrow's state of mind as at 25 February 2019, and the fact, that no agreement, whether in principle or otherwise, had been reached between the two parties at this time. It was Mr Morrow's state of mind after 22 February 2019 that there was an agreement in principle between Giant Dwarf and CJZ about the terms on which CJZ would exit the Joint Venture Company. The primary judge's finding has not been shown to be in error, and was correct for the reasons given by his Honour at [322]-[331]. It was Simon Fraser's state of mind after 22 February 2019 that Giant Dwarf and CJZ were "broadly in agreement" on the terms on which CJZ would exit the Joint Venture Company (ExA10.4017). 12. 341-342 The language Mr Morrow used in a telephone conversation with Mr Murray on or around 5 or 6 March 2019 was apt to suggest to Mr Murray that Mr Morrow's motivation to "progress the deal" was the PDV Offset. The language Mr Morrow used in his communications with Mr Murray and CJZ in relation to "progressing the deal" was not apt to suggest to Mr Murray or CJZ that the PDV Offset was the sole purpose of or motivation for the Share Sale Agreement. Mr Morrow and Mr Murray gave conflicting accounts about subsequent telephone conversations between them (ExA04.1263, ExA04.1404, ExA05.1637). Mr Murray accepted that on 27 February 2019, Mr Morrow rejected his offer of a short term loan from the Joint Venture Company to Giant Dwarf to repay the Netflix loan. Mr Murray's evidence (ExA05.1637) was that Mr Morrow said "we may as well sort it all out at once rather than having to have two different transactions". The two different transactions Mr Morrow was referred to were: (a) the Joint Venture Company paying Giant Dwarf its share of the Series 5 & 6 PDV Rebate; (b) the sale of CJZ's shares in the Joint Venture Company to Giant Dwarf. Mr Murray gave evidence of a further conversation with Mr Morrow on 5 or 6 March 2019 (ExA05.1639), which Mr Morrow said was an account of the 27 February 2019 conversation. If a second conversation occurred on 5 March 2019, it happened in the context of the 27 February 2018. In that context, the language Mr Murray ascribed to Mr Morrow was not misleading. The primary judge's finding was consistent with the chronology and the objective probabilities. Mr Morrow's continued reference to the need to progress the transfer to enable him to access his share of the PDV rebate was a constant theme of his communications with Mr Murray about the share transfer. No error has been shown in the primary judge's finding, which was correct, about Mr Morrow's attempts to "manage the message" ([297]). 13. 352 Mr Morrow was not correct to say to the ABC that Giant Dwarf and CJZ had "reached agreement on the terms for [CJZ] to exit The Checkout's production company". It was accurate for Mr Morrow to say to the ABC on 8 March 2019 that Giant Dwarf and CJZ had "reached agreement on the terms for [CJZ] to exit The Checkout's production company" and that the parties were "in the process of formalising" that. The primary judge's finding, which was correct, was based on the timing of Mr Morrow's meeting with the ABC on the morning of 8 March 2019 ([347]-[351]) at which this statement was made and the receipt later on 8 March 2019 of the email from CJZ which confirmed the terms on which CJZ was prepared to sell its share in the Joint Venture Company (set out at [332]). 14. 385 Ms Pincus's statement that she and Ms Waite had formed a view that Mr Morrow's proposed Are You Being Served show was sufficiently similar to The Checkout to constitute a 'spinoff' justified an inference that this was the ABC's apprehension about the matter. Are You Being Served? would not have been not a spinoff of The Checkout under the definition of "spinoff" in The Checkout Series 6 contract (ExA07.2763). The terms of primary judge's finding at [385] indicate that his Honour did not purport to address whether the proposed show was in fact a spin-off but rather, that his Honour understood the basis for the ABC's apprehension (which, in turn, explained the ABC's sensitivity to issues about the ownership of intellectual property). No error in the primary judge's finding has been demonstrated. 15. 404 As Ms Pincus's documents were created during, and then immediately after the conversation, I think it likely that they are the most accurate record as to what was said. Ms Pincus did not give evidence about the circumstances in which her handwritten notes were made, or the purpose they were made for. Ms Pincus handwritten notes are not the most accurate record as to what was said. They were admitted subject to a limitation pursuant to s 136 of the Evidence Act. The limitation imposed by the primary judge affected admissibility under s 69 of the Evidence Act but did not affect the admissibility of the document pursuant to s 64(3). Ms Pincus' notes about what was said at the meeting between herself and Mr Morrow were admissible under s 64(3) of the Evidence Act to prove what Mr Morrow said at the meeting (since he was called to give evidence). It was not disputed that Ms Pincus made her notes contemporaneously. The primary judge's finding has not been shown to be in error. 16. 404 As Mr Morrow did not dispute the accuracy of those notes, and notwithstanding the limited basis upon which [the primary judge] admitted them, [the primary judge inferred] that they [were] an accurate record of what was said. Ms Pincus' handwritten notes were admitted subject to a limitation pursuant to s 136 of the Evidence Act and cannot be taken to be an accurate record of the conversation on 28 March 2019. Mr Morrow's account differed from Ms Pincus' notes. As for (15) above. 17. 428 Mr Morrow's evidence confirms the accuracy of Ms Pincus's note, and makes clear that Mr Morrow's state of mind at this point was that there was a "genuine prospect", to use the words of his email to Mr Murray of 13 June 2019 … and an "opportunity" (for the purposes of the implied term of the Joint Venture Agreement …) to produce a further series of The Checkout. To the extent Mr Morrow's affidavit evidence differs from Ms Pincus' notes, Mr Morrow did not accept the accuracy of Ms Pincus' notes. The conversation between Mr Morrow and Ms Pincus on 28 March 2019 did not give rise to any obligations under the Joint Venture Agreement. This factual finding reflected the primary judge's advantage in hearing and seeing Mr Morrow give evidence and be cross-examined. The primary judge accepted Mr Morrow's concession in cross-examination (referred to at [427]) as his Honour was entitled to do. 18. 465 There is no suggestion in the evidence that Mr Murray saw the "fundamental purpose" of the Share Sale Agreement to be as Mr Morrow stated. Mr Murray's account of the conversation with Mr Morrow at the Duck Inn on 19 February 2019 (ExA05.1634) was Mr Morrow said "it's probably a good time to draw a line under the Joint Venture and also deal with the IP rights in the show in the unlikely event it returns." [267] When [465] is read as a whole, it is plain that the primary judge was juxtaposing Mr Morrow's fundamental purpose in seeking the Share Sale Agreement (to be able to produce further series of The Checkout in a more profitable way (because he would not have to pay 40% of the profits to Mr Murray)) with Mr Murray's ignorance of that purpose. No error has been shown. At all times from 19 February 2019, Mr Murray understood that the purpose of the discussions between Giant Dwarf and Cordell was to end CJZ's involvement in the Joint Venture Company and to deal with the parties' rights in relation to potential future series of The Checkout. When Mr Morrow spoke to Mr Murray on 19 February 2019 and 27 February 2019 (and 5 or 6 March 2019, if that occurred), Giant Dwarf and the ABC were not in a state of advanced negotiations in relation to a new consumer affairs television project. 19. 465 Mr Murray had no knowledge of Mr Morrow's communications with the ABC, nor of the advanced state of his negotiations with them. On 28 February 2019, Mr Morrow's state of mind was that there had been "no meaningful progress" in the discussions with the ABC The primary judge, in [465] was addressing Mr Murray's state of knowledge as at the time the Share Sale Agreement was entered into (this being a crucial finding for the misleading or deceptive conduct claim). His Honour's finding was correct. about a new consumer affairs television project and he was concerned he was "being strung along" by the ABC: (ExA10.4041). 20. 483 Certainly, by 1 April 2019 Mr Morrow must have seen that there was an "opportunity" and a "genuine prospect" of the ABC agreeing that the new consumer affairs show could be called The Checkout; and that this was an opportunity that was available not only to him, or to Giant Dwarf, but also to the Joint Venture Company. On 19 February 2019, Mr Morrow advised Mr Murray that:(i) Giant Dwarf would not agree to further production of The Checkout while CJZ remained a shareholder of the Joint Venture Company, and (ii) Giant Dwarf would instead make a new consumer affairs program instead of The Checkout. This is addressed in Adamson JA's reasons at [97]-[98]. After 22 February 2019, an opportunity for there to be a seventh series of The Checkout could not arise unless Giant Dwarf withdrew its veto on further production of The Checkout. By no later than 22 February 2019, Giant Dwarf had exercised its right to veto further production of The Checkout and/or communicated to CJZ an intention to veto further production of The Checkout. 21. 484 Mr Morrow did not wish the Joint Venture Company to pursue that "opportunity" so long as Mr Murray was the director of the Joint Venture Company and CJZ was its 50% shareholder. He asked the ABC to not inform Mr Murray of the opportunity. Mr Morrow asked the ABC not to inform CJZ that the ABC was in discussions with Giant Dwarf about a new consumer affairs television program. This is addressed in Adamson JA's reasons at [97]-[98]. At all times from 2018, it was a common assumption of Giant Dwarf and CJZ that the Joint Venture Agreement did not require a party to inform the other about an opportunity to make a television program which was not The Checkout. On 19 February 2019, Mr Morrow advised Mr Murray that: 22. 486 Mr Morrow, however, had done this without revealing to his fellow director, Mr Murray, his plans to cause the opportunity to become available and, once it was (i) Giant Dwarf would not agree to further production of The Checkout while CJZ remained a shareholder of the Joint Venture Company, and The primary judge's finding at [486] is a conclusion based on a number of anterior findings, which are correct. See also Adamson JA's reasons at [99]-[101]. available, to appropriate it for the benefit of Giant Dwarf. (ii) Giant Dwarf would instead make a new consumer affairs program instead of The Checkout. Mr Morrow did not plan to, and did not, appropriate an opportunity of The Checkout for the benefit of Giant Dwarf. 23. 501 In March 2019, an opportunity arose for there to be a seventh series of The Checkout. See findings contended for at paragraph [J483] above. The finding was plainly correct and supported by the evidence of what Mr Morrow knew of the ABC's intentions in March 2019. Mr Morrow became aware of the opportunity for Giant Dwarf to produce a new consumer affairs program as a result of communications from David Anderson to Mr Morrow in his capacity as a director of Giant Dwarf, not in his capacity as a director of the Joint Venture Company. 24. 501 Mr Morrow became aware of that opportunity by reason of discussions that he had had, in the eight months leading to March 2019, with officers of the ABC. On 14 August 2018, the ABC Managing Director indicated publicly on ABC Radio that there was an opportunity for The Checkout to return to ABC television after July 2019: ExA09.3588. The finding at [501] set out in (24) was correct and would not appear to be genuinely in dispute. On 25 September 2018, the ABC Managing Director indicated publicly on ABC News Breakfast (ExA09.3628) that the ABC intended to pursue a consumer advocacy on television "whether it's The Checkout or another program in the future." 25. 501 He had those discussions in his capacity as a director of the Joint Venture Company. On 19 September 2019, the ABC Managing Director Mr Anderson telephoned Mr Morrow about an opportunity to make a new consumer affairs television program: ExA04.1250. This is a legal conclusion which was open to the primary judge and which was correct having regard to the ambit of the joint venture between Giant Dwarf and CJZ with respect to The Checkout. Mr Anderson contacted Mr Morrow on 19 September 2019 in his capacity as managing director of Giant Dwarf. 26. 501 Through those discussions, an opportunity arose that Mr Morrow should have, as a director of the Joint Venture Company, disclosed to the Joint Venture Company and thus, to his fellow director, Mr Murray. The Joint Venture Agreement did not give rise to an obligation of a shareholder to inform the Joint Venture Company of an opportunity to make a television program that was not The Checkout. As for (25). 27. 512 …what Mr Morrow asserts he told Mr Murray on 19 February 2019 was apt to lead Mr Murray to the conclusion that Mr Morrow was not yet in discussions with the ABC and that he would not be taking any steps to seek to revive production of The Checkout until the posited share sale transaction had been consummated. What Mr Morrow asserts he told Mr Murray, and in fact said, on 19 February 2019 was not apt to lead Mr Murray to the conclusion that Mr Morrow was not yet in discussions with the ABC. The finding at [512] is a conclusion which follows from the primary judge's findings. No error has been shown in this finding which is consistent with the objective probabilities and the evidence. 28. 522 Mr Morrow did not say in any of those communications that his only reason for seeking to have Giant Dwarf acquire CJZ's shares was to access the PDV Offset. But the emails were apt to, and I have found calculated to, create that impression and to convey that access to the PDV Offset was Mr Morrow's only immediate motivation. Mr Morrow did not represent that his only immediate motivation for entering into the Share Sale Agreement was to enable Giant Dwarf to access its share of the PDV Offset rebate. The finding at [522] is based on earlier findings at [257], [258], [265], [266], [294], [301], [342], [438] [439], [451], [465], [512]-[522]. The finding was open to his Honour and reflected his advantage in seeing and hearing the witnesses, and in particular Mr Murray and Mr Morrow. 29. 528 Mr Morrow did make the "PDV Representation" to CJZ. Mr Morrow did not make the "PDV See reasons of Adamson JA at [119]. Representation" to CJZ. 30. 535 Mr Morrow's silence in the period from 19 February 2019 to 8 April 2019 concerning the progress and status of his negotiations with the ABC, combined with his "half truth" communications with Mr Murray in the meantime, constituted misleading or deceptive conduct. At all times before executing the Share Sale Agreement, CJZ and Mr Murray relied on information obtained directly from the ABC (and not disclosed to Mr Morrow or Giant Dwarf) in making their assessment of the likelihood of the ABC funding a further series of The Checkout. CJZ obtained legal advice about the terms of the Share Sale Agreement before executing it Mr Murray reviewed, multiple times, the terms of the Share Sale Agreement, including the reference to the production of future series of The Checkout and Giant Dwarf's exclusive rights, before executing it. In executing the Share Sale Agreement, Mr Murray relied on information and representations made by the CEO of CJZ, Matthew Campbell. See reasons of Adamson JA at [121]. 31. 538 Mr Murray and CJZ had a reasonable expectation that Giant Dwarf would comply with this term and disclose the opportunity that [the primary judge] found had been presented. At all times during the Joint Venture Agreement or alternatively after 22 February 2019, Mr Murray or CJZ did not have an expectation that Giant Dwarf or Mr Morrow would inform CJZ or the Joint Venture Company if Giant Dwarf had an opportunity to produce a television program that was not The Checkout. See reasons of Adamson JA at [131]-[134]. 32. 540 I see nothing in any of the evidence to suggest that Mr Murray should have, himself, made enquiries of Mr Morrow or the ABC between 19 February 2019 and 8 April 2019. Mr Murray did not make enquiries of Mr Morrow and/or the ABC between 19 February 2019 and 8 April 2019 about the possibility of making another series The Checkout. It was common ground that Mr Murray did not make such enquiries during that period. The primary judge was correct to regard this matter as confirming Mr Murray's expectation that if there was a genuine prospect of The Checkout being made again, Mr Morrow would tell him about it. On 14 June 2019 (ExA12.5348), Giant Dwarf proposed a resolution of the impasse in relation to the execution of the Quit Claim which reserved CJZ's rights to pursue claims not related to the "Checkout IP", a proposal CJZ rejected. The Breach Notice dated 19 June 2019 (ExA 12.5363) issued by Giant Dwarf to CJZ stated (in para 20) that CJZ's "communications with the ABC and dealing with our client evidence a clear intention to rescind or not be bound by the terms of the SSA" and identified the conduct evidencing that intention. 33. 670 CJZ did not repudiate its obligations under the Share Sale Agreement. By letter dated 19 June 2019 (ExA12.5373), CJZ expressly refused to stand by Unnecessary to decide in light of Adamson JA's reasons to dismissing the cross-appeal from the order for rescission. However, it is addressed in reasons of Adamson JA at [184]-[185]. the validity of the SSA. 34. 676 Mr Murray, it appears correctly, took that to be a dishonest answer and the settlement "fell over" as a result. Mr Murray was incorrect in his belief that Mr Morrow gave a dishonest answer on 17 June 2019 to a question about how many series of The Checkout the ABC was proposing to commission. See reasons of Adamson JA at [169]. 35. 820 Mr Reucassel expressed some support for Mr Murray's "current position" of not executing a Quit Claim. Mr Reucassel did not express support for Mr Murray's position of not executing a Quit Claim. The statement in Mr Murray's email to Mr Carrington on 20 June 2019 that his position of not executing a Quit Claim was supported by a director of Giant Dwarf was false. ExA14.6278-81. See reasons of Adamson JA at [190]-[192]. 36. 940 Mr Murray did not allege fraud against Mr Morrow in these proceedings and has not been able to justify the allegations of fraud made in these two emails. Mr Murray alleged fraud against Mr Morrow repeatedly in the proceedings without justification. See reasons of Adamson JA at [234]. 37. 963, 968 There is no evidence to suggest that anything Mr Murray said led Mr Morrow to reach any such conclusion or a change in the After Mr Murray's communications to the ABC, the ABC offered Giant Dwarf substantially less favourable terms for a new consumer affairs program. See reasons of Adamson JA at [239]. ABC's position. 38. 998 Mr Morrow did not call Mr Reucassel to contradict that evidence, notwithstanding the fact that, as I have said, Mr Reucassel is a director and shareholder of Giant Dwarf. Mr Reucassel was not a director of Giant Dwarf at any time from 2019 onwards. In Mr Reucassel's communications with Mr Ben Kay (ExA14.6278-81), Mr Reucassel did not agree with Mr Murray's claims about Mr Reucassel's conduct. This finding is related to fact 35 above: see the reasons of Adamson JA at [190]-[192]. Mr Reucassel was a director of Giant Dwarf at the relevant time (2019); therefore although there is a slight error in the primary judge's use of the present tense, it is immaterial. 39. 1002 I see no basis to conclude that Mr Murray was actuated by malice in making this statement. Indeed, Mr Murray's evidence as to what Mr Reucassel said to him provides some basis for it. Mr Murray was actuated by malice towards Mr Morrow at all times on and after 21 May 2019. Not necessary to decide as causation not established. 40. 1006 I see no reason to doubt that Mr Reucassel did make this statement to Mr Murray. Craig Reucassel did not recently before 21 May 2019 ask CJZ or Mr Murray to take over management and production of The Checkout. Not necessary to decide as causation not established. 41. 1007 [A]lthough it was untrue to the extent it referred to "the recent past", [the primary judge did] not find it was made maliciously. Mr Murray was actuated by malice towards Mr Morrow at all times on and after 21 May 2019. Not necessary to decide as causation not established. 42. 1044-45 …when read in the context of the whole email, it is clear that Mr Murray is referring to the possibility of subpoenas being served on the ABC were he to commence proceedings against Mr Morrow, Giant Dwarf and the Joint Venture Company, and of the ABC thereby incurring expense. Mr Murray's statement was thus not only true, but it was prescient. Mr Murray made a false representation that if the ABC commissioned The Checkout or any other consumer affairs programs involving Mr Morrow or Giant Dwarf without the involvement or consent of CJZ, CJZ would cause the ABC to suffer commercial damage. Not necessary to decide as causation not established. Amendments 18 July 2023 - "23 June 2023" replaced by "23 June 2022": Coversheet - Decision; [3], [342] "Defamation Act 1974" replaced by "Defamation Act 2005": Coversheet - Legislation; [248(1)] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 July 2023