Supreme Court New South Wales Medium Neutral Citation: Shine Motor Corporation Pty Ltd v Australian Broadcasting Corporation [2024] NSWSC 800 Hearing dates: 27 June 2024 Date of orders: 28 June 2024 Decision date: 28 June 2024 Jurisdiction: Common Law Before: Button J Decision: Interlocutory injunction refused; ancillary orders made Catchwords: TORTS – economic torts – injurious falsehood – injunctions – application for interlocutory injunction restraining publication – asserted tort of injurious falsehood – plaintiff company asserts article published by defendant falsely states that plaintiff and its officers engaged in criminality – discussion of elements of tort – discussion of the matters needing to be established in order for injunction to be granted – arguable case with regard to many elements of tort – no sufficiently good case for element of malice – application for injunction dismissed – ancillary orders Cases Cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 Born Brands Pty Limited & Ors v Nine Network Australia Pty Ltd & Ors [2011] NSWSC 642 Jay v Petrikas [2023] NSWCA 297 Category: Procedural rulings Parties: Shine Motor Corporation Pty Ltd (Plaintiff) Australian Broadcasting Corporation (First Defendant) Elinya Chenery (Second Defendant) Representation: Counsel: M Hall (Plaintiff) M Lewis / G Morgan-Cocks (Defendants) Solicitors: Dina Lawyers (Plaintiff) ABC Legal (Defendants) File Number(s): 2024/229164 JUDGMENT 1. An application for an interlocutory injunction came before me in the Duty List yesterday. This judgment in its conciseness does a disservice to the diligence of both legal teams, and the detail of their written and oral submissions. Even so, because of the nature of the application, I believe it is incumbent upon me to decide the matter now; indeed, it is already somewhat delayed. 2. The background is that the plaintiff and applicant is a company engaged in scrap metal trading in Ingleburn, in the south-western suburbs of Sydney. The defendant is the national broadcaster. On 14 May 2024, the defendant posted online an article said to constitute the tort of injurious falsehood against the plaintiff. It is said to have been republished by the defendant by way of a hyperlink in a subsequent article of 22 May 2024. 3. Deeper background is that the police had arrested three men alleged to have stolen valuable copper wire from a storage centre in Sydney. The allegation was that they were going to sell it to receivers – that is, persons who were to take possession of it, well knowing that the metal was stolen – at the price discount well-known within the world of criminal dealings. 4. Separately, a search warrant had been executed at the business premises of the plaintiff, and metal that the parties agree had indeed been stolen was seized by the police. An interview was broadcast by the defendant the same morning, in which a senior police officer had spoken of the arrests, and the allegations, and the execution of the search warrants, but had not specifically linked the latter to the two former. In other words, in the interview, the police officer had not in terms alleged that the plaintiff, from whose premises the stolen metal had been seized, had done anything wrong, or indeed that it was alleged to have done so. 5. The crucial point is that the persons associated with the plaintiff have never been charged with receiving, or indeed any other offence. The proposition for the plaintiff is that the metal was stolen, it was sold at a discount to a dishonest receiver, and thereafter purchased by the plaintiff at fair market price, completely unwittingly. 6. There was evidence placed before me that the article of 14 May had been read by business associates of the plaintiff as implicating it in the alleged criminality. Many of those associates have either completely cut ties with the plaintiff, or reduced their business connection markedly, with devastating result on the profitability of the plaintiff. Indeed, I was given to understand that the plaintiff is in danger of "going under". 7. Turning now to legal matters, the parties were content with my straightforward approach to the question of whether one should grant an interlocutory injunction, in accordance with Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46, as follows. 8. First, can the plaintiff demonstrate the existence of a serious question to be tried, and a prima facie case? Only sufficient likelihood of success is necessary. 9. Secondly, does the balance of convenience, focusing on the relative hardships that would be visited upon the parties and any third parties, favour the granting of the injunction? I accept that in that regard there needs to be some reflection in this context on freedom of communication about matters of public interest. 10. Thirdly, the adequacy of damages as an alternative remedy to an injunction. 11. Reflecting on the first of those questions, and applying it to the alleged tort: the elements of the latter are as follows, again being straightforward in these circumstances. 12. First, the making of a false statement about or concerning the goods or business of the plaintiff. 13. Secondly, the publication of that statement by the defendant to a third party. 14. Thirdly, malice on the part of the defendant. 15. Fourthly, proof by the plaintiff of actual damage. 16. Applying that analysis, as I understood it the defendant was prepared to accept (for the sake of argument only, and at this stage) that the second and fourth elements were at the least arguable by the plaintiff. But the first and third, in particular, the element of malice, were said to be unestablished even at this contingent level. 17. Resolving a few further issues: without becoming too granular about the first element of the tort, for the sake of this stage of the litigation I think that there is a sufficiently arguable case that the statement contained in the first article was false. I say that accepting that the article makes no express statement to the effect that the plaintiff and those who run it were engaged in criminal activity. 18. But reading it as a whole, reflecting in particular on the photographs attached to it that possess, I believe, a potential to identify the particular premises of the plaintiff, and also taking into account – for abundant caution – the evidence that many persons involved in the industry in question have immediately recognised the premises as being those of the plaintiff, I believe that the article could be read in the way of which the plaintiff complains. 19. As for the second element of publication to a third party, as I said it is conceded for the current purposes, and surely established in any event. 20. As for the fourth, again, there is ample evidence placed before me by the plaintiff of actual damage arising to it from the publication. 21. Turning now to readily resolved questions regarding the application for the injunction: I think the second, the balance of convenience, would favour making it. After all, the plaintiff seeks only that a few words be deleted from the article; other articles published by other media outlets do not offend in the same way; and, despite the digital possibility of old and unamended versions of the article being available to persons on the Internet, even so I think any order would be efficacious. And to repeat: reflecting on freedom of communication about matters of public interest, an injunction as sought would restrict it, but only to a very small degree. 22. As for the third question in an interlocutory injunction of the adequacy of damages, I accept for the purposes of this stage that the plaintiff is in danger of going into liquidation, and damages months or years from now could indeed be inadequate, if not completely fruitless. 23. That leaves then only the question of whether there is sufficient likelihood of success in the plaintiff proving malice on the part of the defendant. 24. To my respectful understanding, the meaning of that concept in this context remains a little Delphic. I have held as my touchstones what McCallum J said in Born Brands Pty Limited & Ors v Nine Network Australia Pty Ltd & Ors [2011] NSWSC 642 at [21], and what the Court of Appeal said quite recently in Jay v Petrikas [2023] NSWCA 297 at [104]. 25. Applying those authorities, I approach the question on the basis that the plaintiff must show "an evil or harmful state of mind", or a state of mind that "involves the use of an occasion of publication for some improper purpose foreign to the occasion". I also accept the submission for the plaintiff that "reckless indifference to the truth may suffice". Having said that, that recklessness "must be so gross as to constitute wilful blindness which the law will treat as being equivalent to knowledge". Patently in my opinion, even in the lesser context of reckless indifference, the authorities are speaking of a very highly negative state of mind on the part of the defendant for the purposes of this tort. 26. Applying that learning here, and taking a broad approach in accordance with the contingent question at this stage, I cannot accept that there is sound evidence of malice so understood. At most, I think that the plaintiff has a good arguable case to show, perhaps, a lack of care in understanding the distinction drawn in the interview with the police officer; or lack of precision, or infelicity of expression in the article; or all of those attributes. 27. But taken at its highest, I do not believe that there is a good arguable case or a sufficient likelihood of success in the establishment of malice, so understood, for me to grant an injunction at this stage. 28. On that basis, the application must fail, and that part of the recently filed originating process is dismissed. 29. As for the remainder of it, as foreshadowed by me, the matter will return to the Common Law Registrar at 9 AM a little over one week from today, on Tuesday 9 July 2024. 30. Finally, as also foreshadowed by me, costs of the proceedings before me are reserved. If that issue is unable to be resolved by the parties in the next several days, my associate will provide a timetable for the filing of written submissions, with an eye to the question being resolved by me in Chambers. ********** 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: 28 June 2024