CASE NOTE

Omega Plumbing Pty Ltd v Harbour Radio Pty Ltd t/as 2GB and 2GB 873

[2019] NSWSC 1576, ‘Omega’

This case involved the tort of injurious falsehood with an application for an interlocutory injunction to prevent further publications pending the final hearing on the matter. The Defendants are 2GB radio and Ray Hadley their broadcaster who made a number of representations about the plaintiff’s plumbing business on his radio show and the issue is whether there was a prima facie case that those representations were made maliciously and/or with a reckless indifference to the truth or without belief in the truth of the allegations. With an absence of evidence to support the allegations made by the defendants a prima facie case was established with the balance of convenience test strongly favouring the plaintiff.

Facts

The plaintiff for the last 30 years has operated a service company primarily providing rapid response plumbing, electrical and air conditioning services in the Greater Sydney region employing over 80 staff¹. The Defendants radio station and website (where they post articles and audio snippets) published materials over 4 consecutive days starting 29^th of October 2019 based on consumer complaints, however fell into trouble when they added their own commentary and opinions which they could not support on the available evidence.

Issues and Arguments

In the tort of malicious falsehood and the question of whether to grant an interlocutory injunction, the plaintiff must establish that the defendants made a false statement about their business and that it was published maliciously.

The defendants made no submission on the question of falsity, however instead contested on the basis that there was no disclosed malice.

Therefore, much of the case was in relation to what constituted malice. It was argued that the defendants knowledge that what they said was false is ordinarily conclusive evidence of malice, the recklessness in the published comments amounted to wilful blindness on the part of the defendants which the law equates with knowledge, however the plaintiff needed to prove more than just that the defendant could not have had a positive belief in the truth of what they said the plaintiff needed to prove it was actuated by an improper motive for there to be malice (Omega at [15-17]).

To prove malice the intention of the defendants must be examined and whether there was a direct or indirect motive to cause injury to the plaintiff, however malice may exist without an actual intention to injure and must often be inferred from the “grossness and falsity of the assertions and the cavalier way in which they were expressed” and the knowledge of falsity is “almost conclusive evidence” that the defendant had some improper motive in publishing the material and that it actuated the publication (Omega at [18]).

In response to a letter of demand at [29], solicitors for the defendants asserted that the evidence did not disclose any prima facie case establishing malice. They rested on the argument that the material broadcast was substantially accurate and based on information obtained from several sources. Despite this they indicated a willingness to take down and not republish the broadcast and articles (Omega at [32]).

As the argument was about what constituted malice, the plaintiff argued that the broadcasts and publications went beyond merely publishing a news story but when words like “bloke who duds the elderly” and “charging them 10, 20 and 30 times more than a job's worth” were used it went beyond the facts and evinced malice. The plaintiff argued that many comments were made without basis or were knowingly false such as the statement that the plaintiff was not a member of the Master Plumbers Association, coupled with this was the extrapolation of a few complaints to assert general wrongdoing (Omega at [33]).

The Defence

The defence argued at [33] that revisiting the issue over a number of days did not evince malice as it was not with an intent to injure and that an enthusiastic belief in what is being published is insufficient to amount to malice, moreover they argued as the company was given opportunity to respond to allegations in such circumstances an inference of malice could not be drawn in contradistinction to situations where there was knowledge of falsity, wilful blindness, or even reckless indifference.

The defence continued at [34-37] arguing that making comments with evidence of complaints could not constitute malice nor was it reckless to assert there were problems with the company, even their expression of disgust in the company was not evidence of malice and they had no evidence to suggest the complaints were false to imply reckless indifference. They argued that their legitimate desire to stop the misfeasance by a company was not with a motive of ruining the company, but one of protecting consumers, they also argued against an injunction on the basis it would prevent them and other media outlets reporting on the outcome of the Fair Trading Investigation.

The Courts analysis at [40] commenced with the premise that the test on an interlocutory injunction is whether there is a prima facie an arguable case that the publications were made maliciously. The difficulty was that the plaintiff at this early pre-trial stage did not establish that the defendant published material they knew to be false, therefore with the case resting on the question of malice, it was insufficient for there to be just recklessness, it would need to be wilful blindness citing Gross (Omega at [52]).

The Court then considered at [41] that malice could be inferred, if, without evidence to support a positive belief in the truth, by the comments “grossness and falsity of the assertions and the cavalier way in which they were expressed” citing Joyce v Sengupta [1993] 1 All ER 897 at 905-6.

The Court then went on at [42-51] with 5 examples of malice it had identified, starting with the statement “to the extent that the Master Plumbers Association give them a wide berth” in that it was false to imply that membership of the association was linked to ripping off customers and prima facie amounted to malice.

Secondly, the claim that the company went by a number of names was “done to dupe people”, there was no complaint or evidence to support that position and “in that sense the assertion that the various names were used by the plaintiff to dupe people was made without any belief in the truth of the statement”.

Thirdly the Court equated puffery with malice, where it found that despite one listener being quoted 10 times the price of another plumber, the statement that the public were dealing with a person “who duds the elderly and charges them 10, 20 and 30 times more than a jobs worth” was again unsupported by any belief in its truth or evidence, with the Court distinguishing a quote (which was not accepted) from being actually invoiced an amount.

Fourthly the allegation that the company was targeting “affluent immigration communities” and “immigrant families in wealthy areas who don’t have English as their first language” along with targeting elderly was not supported by any evidence to the point that there was no evidence to even consider where such a claim originated.

Fifthly claims of deposits being paid twice and statements that the plaintiff to give disgruntled customers all their money back “because you did bloody nothing” were again unsupported by any evidence to suggest that the company had taken money and did nothing and that “they were thieves”. Without evidence to support those statements it was held they were made without a positive belief in their truth and absent that positive belief it would be malice, relying on Brereton J in AMI at [32]:

“Malice may be inferred from the “grossness and falsity of the assertions and the cavalier way in which they were expressed”.

HELD:

The specific portions of the broadcast transcripts the Court highlighted became the foundation for the determination of malice due to being unsupported by facts and ipso facto an injurious falsehood.

On the question of an injunction the Court applied the “balance of convenience” test holding that free speech is outweighed in cases of injurious falsehood where there is no dispute concerning the prima facie case on falsity, and where it is found a prima facie case exists in relation to malice, the balance of convenience strongly favours the plaintiff, with the Court deciding to frame the injunction in a way that would allow publication of findings by Fair Trading.

In conclusion, had the radio station stuck with the facts that their listeners were alleging and resisted the urge to ad-lib with commentary, commentary that they could not substantiate or support with the facts, they might not be facing this situation as the case rested on the issue of malice, malice that was inferred due to the shock-jock style radio broadcasts that the station is known for that sensationalise events with grossness and falsity in a cavalier way to bring in the ratings.