AAMAC Warehousing & Transport Pty Limited & Ors v Fairfax Media Publications Pty Limited & Ors

AAMAC Warehousing & Transport Pty Limited & Ors v Fairfax Media Publications Pty Limited & Ors - [2009] NSWSC 1030 - NSWSC 2009 case summary — Zoe

[21]

23 The plaintiffs evidence of recklessness in the publication of these representations is extremely weak and there is in my view no other material from which wilful blindness or improper motive could be inferred. In the conversation between Mr Besser and Mr Clark just before the ex parte injunctions were obtained, Mr Clark says that he "...strongly formed the impression that he intended to publish material about me and Peter Panayi whether they were true or false and I consider he is acting recklessly". This subjective impression is unsupported by the objective evidence of what was done by Mr Besser, which merely shows a journalist making such enquires as he could before publication. The fact the conversation between Mr Besser and Mr Clark was taking place at all is inconsistent with recklessness. 24 The same can be said about Mr Besser's contact with Mr McKell on 24 June 2009 which the plaintiffs say is evidence of recklessness or worse. Mr McKell, the solicitor for the plaintiffs, contacted Mr Besser that evening to say that ex parte relief had been granted. Nothing in that contact shows anything more than a journalist who is telephoned by a solicitor to say that court orders have been made, properly declining to engage with Mr McKell other than through the solicitors for the defendants. A short pause was needed to allow the defendant solicitors to be engaged. 25 There is nothing in the plaintiffs suggestion that Mr Besser's proposed participation in an APSAC conference in July 2009 is evidence of recklessness or malice. Indeed there is nothing that connects Mr Besser's proposed attendance at that conference with the defendant's publication of anything about the plaintiffs. 26 Finally, the plaintiffs rely upon the fact that photographs were taken of Mr Clark outside the Supreme Court during the interlocutory hearing. That does not and could not show recklessness in relation to any proposed publication by the defendants, nor any improper motive on their part. 27 Thus there is nothing the plaintiffs have advanced in this application that shows that there is a serious question to be tried on the issue of malice as part of the plaintiffs' cause of action for injurious falsehood. The reason for this is that this is really a defamation case as it discussed below.

[29]

A person shall not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services: (a) falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use, (b) falsely represent that services are of a particular standard, quality, value or grade, (c) falsely represent that goods are new, (d) falsely represent that a particular person has agreed to acquire goods or services, (e) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have, (f) represent that the person has a sponsorship, approval or affiliation the person does not have, (g) make a false or misleading representation concerning the price of goods or services, (h) make a false or misleading representation concerning the availability of facilities for the repair of goods or of spare parts for goods, (i) make a false or misleading representation concerning the place of origin of goods, (j) make a false or misleading representation concerning the need for any goods or services, (k) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy, (l) make a false or misleading representation concerning a person's rights or obligations under a residential tenancy agreement (within the meaning of the Residential Parks Act 1998) under which the residential premises consist of a residential site in a residential park or a moveable dwelling on such a residential site (within the meaning of that Act), or (m) make a false or misleading representation concerning a person's rights or obligations under a village contract (within the meaning of the Retirement Villages Act 1999), or (n) make a false or misleading representation concerning a person's rights or obligations under an occupation agreement (within the meaning of the Holiday Parks (Long-term Casual Occupation) Act 2002) under which the residential premises consist of a site in a holiday park (within the meaning of that Act). 60 Application of certain provisions to prescribed information providers

[37]

37 There is no issue between the parties that the defendant, other than perhaps the second defendant, are "prescribed information providers[s]" within s 60. The plaintiffs submit that there is a cause of action available to them under s 42 because the exemption in s 60 is subject to the exception here in s 60(1)(vi)(A). The plaintiffs say that the defendant obtained the information in order to make the representations from "competitors of AAMAC who wished to damage AAMAC's business". In ACCC v Channel 7 Business Pty Limited [2009] HCA 19 the High Court decided that the Trade Practices Act equivalent of s 60 (s 65A Trade Practices Act) should be construed so that the reference to "goods or services of that kind" in s 60(1)(vi)(A) is a reference to the goods or services referred to in s 60(1)(a)(i) being the goods or services the subject matter of the publication referred to in s 60(1)(a). 38 An interlocutory application is not the place to decide whether or not the representations restrained are in respect of "the supply or possible supply of goods or services". Although I have doubts about that question for present purposes I would assume it in favour of the plaintiffs. The real problem for the plaintiffs' argument is that there is no evidence of any "contract arrangement or understanding" between the defendant and any of the other persons, competitors, who the plaintiffs say supplied information to the defendants. The only evidence of any contact between the defendants and anyone else supplying goods or services of the kind supplied by AAMAC are certain telephone conversations with a Mr Toohey or with a Mr Temelkov. This evidence is set out in the affidavit of Peter Brian McKell of 26 June 2009. That material does not suggest that any information was actually provided to the defendants by Mr Toohey or Mr Temelkov and even less that there was any "contract, arrangement or understanding" between the defendants and either for them or anyone else competing with the plaintiffs. Even an "arrangement or understanding" as provided for in s 60 "ordinarily involves an element of reciprocal commitment even though it may not be legally enforceable": ACCC v Channel 7 Business Pty Limited [48]. The evidence here is to the contrary of such commitment. In my opinion the plaintiff has not made out even to the level of a serious question to be tried that the exception applies to the exempting provision in s 60. The exempting provision in s 60 applies so that the defendants as "proscribed information providers" are not relevantly constrained either by ss 42 or 44.

At a glance

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Before

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Judgment (50 paragraphs)

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Cases Cited (12)

Cited By (1)