First Plaintiff v Defendant

1 The first plaintiff is a producer of honey and the second plaintiff is its CEO. The defendant operates, with others, a website called 'Save the Bees', amongst other social media platforms.

2 On 15 February 2016, the plaintiffs sued the defendant in the Supreme Court of New South Wales, the first plaintiff alleging injurious falsehood and the second plaintiff alleging defamation. These claims were based on what the plaintiffs described as a persistent and damaging campaign against them by the defendant in online publications and social media that began in about June 2015. The plaintiffs considered that the defendant's campaign against them was designed to inflict commercial and reputational harm. The plaintiffs sought injunctions to restrain future conduct and did not seek damages.

3 On 25 May 2017, when the proceeding was called on for trial before Rothman J in the New South Wales Supreme Court, his Honour adjourned the trial and restrained the defendant from publishing certain representations and imputations regarding the plaintiffs ('Rothman J's orders').

4 The proceeding was transferred to this court. It has not been allocated a trial date and the parties have recently amended their pleadings. By summons filed 21 September 2018 the defendant sought to vary the restraints imposed on him by Rothman J's orders. For the reasons that follow, the defendant's application is refused.

5 The background relevant to Rothman J's orders was set out in an earlier ruling in the proceeding by McCallum J,[1] and I gratefully adopt her Honour's summary:

The proceedings have taken what might be considered an unusual course. The action was commenced by summons filed in this Court on 15 February 2016. On that date, the plaintiffs made an ex parte application to the duty judge for an order under s 15 of the Service and Execution of Process Act 1992 (Cth) permitting service of the originating process in another State (Victoria). They also sought an order under s 17 of that Act abridging the time within which Mr Mulvany would be required to enter an appearance. The basis for seeking that abridgment of time was the alleged urgency of the interlocutory relief sought: cf s 17(2) of the Act.

The matter was stood over to 23 February 2016 for an application by the plaintiffs for interim injunctions requiring Mr Mulvany to remove certain articles from the internet and restraining him from publishing certain representations and imputations. That application came before Campbell J. Mr Mulvany was represented by a Sydney-based solicitor, Mr D Fitzpatrick. By his solicitor, Mr Mulvany proffered undertakings to the Court in lieu of the injunctions sought. Justice Campbell noted the undertaking as follows:

"The Court notes the following undertakings proffered by the Defendant, without admission, to the Court: Until final hearing or further order of the Court, the Defendant will not, after 5pm, 24 February 2016, publish the following representations and imputations, or imputations and representations to the same effect:

a. That honey marketed and sold under the "Capilano" brand is made wholly or partially from honey that has been imported;

b. That honey marketed and sold by the First Plaintiff, whether under the "Capilano", "Allowrie", "Smiths", "Wescobee" or any other brand, is toxic or poisonous;

c. That honey marketed and sold by the First Plaintiff, whether under the "Capilano", "Allowrie", "Smiths", "Wescobee" or any other brand, is contaminated by antibiotics or pollution;

d. That the Plaintiffs deliberately mislead consumers to believe that honey marketed under "Allowrie" and "Smiths" brands does not contain imported honey;

e. That the Plaintiffs deliberately mislead consumers to believe that honey marketed and sold by the First Plaintiff, whether under the "Capilano", "Allowrie", "Smiths", "Wescobee" or any other brand, is not dangerous to their health;

f. The Second Plaintiff, as CEO of the First Plaintiff, is motivated by greed to sell toxic honey dumped in Australia to Australian consumers;

g. The Second Plaintiff, as CEO of the First Plaintiff, put the health of Australian consumers at risk in order to become rich; and

h. The Second Plaintiff, as CEO of the First Plaintiff, is dishonest in that he has permitted the First Plaintiff to use inferior untested imported honey, thereby putting the reputation of Australia as a producer of honey at risk, and then lying about it."

The interlocutory hearing having been resolved on the basis of the undertakings proffered, the proceedings were assigned to the Defamation List.

It was accepted that the matter should proceed on pleadings in accordance with the usual procedure in proceedings in that list. Three separate orders were made requiring the plaintiffs to file a statement of claim (by 3 June 2016, 12 August 2016 and 23 September 2016 respectively). The statement of claim was ultimately filed on 30 September 2016. The defendant, in turn, failed to comply with two orders to file a defence (by 30 November 2016 and 27 January 2017 respectively). A defence was ultimately filed on 5 April 2017.

The defence admitted publication of the matters complained of, denied that the representations and imputations pleaded arise or were published of and concerning the relevant plaintiff and otherwise pleaded no substantive defences. There were no further pre-trial applications and no orders were sought or made for discovery or interrogatories. The proceedings were listed for hearing for two days commencing on 25 May 2017.

Prior to the hearing date, the parties participated in a mediation. Mr Mulvany was at that time represented by Mr Smark SC, a Sydney-based barrister who had accepted instructions on a pro bono basis. At the conclusion of the mediation, which I understand was the night before the hearing, Mr Mulvany terminated Mr Smark's services. The following morning, Mr Mulvany sought to have the hearing date vacated. The defendants consented to that course on the basis that the undertakings given to the Court by Mr Mulvany at the hearing before Campbell J would be replaced by interlocutory injunctions. Justice Rothman was satisfied that the injunctions sought should be granted. On the application of the plaintiffs, his honour was also persuaded to make orders imposing additional restraints.

Justice Rothman made the following orders:

"1. Until further order, the defendant is restrained from publishing the representations and imputations set out in paragraph 2a-h of the Court's Order of 24 February 2017, or representations and imputations to like effect [this order was later corrected under the slip rule to reflect the correct date of Campbell J's orders, namely, 23 February 2016].

2. Until further order, the defendant is restrained from publishing the following representations and imputations, or representations and imputations to the following effect:

a. That honey marketed and sold by the First Plaintiff, whether under the "Capilano", "Allowrie", "Smiths", "Wescobee", or any other brand is dangerous or contaminated.

b. That the First Plaintiff, or any of its officers, are corrupt.

c. That the First Plaintiff, or any of its officers, are bullies.

d. That the First Plaintiff, or any of its officers, are dishonest.

e. That the First Plaintiff illegally imports and sells honey.

f. That the First Plaintiff exploits or mistreats bees.

g. That the First Plaintiff has demanded that retailers remove competitor brands from their shelves.

h. That the First Plaintiff or any of its officers are misogynist or sexist.

i. That the First Plaintiff has bribed Choice and/or public officials.

j. That the First Plaintiff is in breach of labelling laws.

k. That the First Plaintiff has lobbied for a change to labelling laws to dilute or weaken them.

I. That the First Plaintiff has damaged or tarnished the Australian honey producing industry and Australian beekeepers.

3. Until further order, the defendant, by 4pm on 31 May 2017, remove or cause to be removed the following publications, tweets and posts:

a. the post referred to in paragraph 1aii of the Court's Order of 24 February 2017;

b. the matters set out under the heading "Relief Claimed" in paragraph 2i-liv of the statement of claim filed herein;

c. the matters set out in Schedule A to these orders;

d. the matters set out in Schedule B to these orders.

4. Until further order, the defendant is restrained from publishing the publications, tweets and posts referred to in order 3, or any publication, tweet or post to like effect."

In a judgment publishing reasons for making those orders, Rothman J said at [3] (emphasis added):

"Notwithstanding the prejudice to the plaintiff, they were prepared to consent to the vacation of the final hearing dates, but press, in the interim, the making of interlocutory orders and the continuation of interlocutory orders. The Court has treated the application for interlocutory orders as if they were made ex parte, notwithstanding the presence in the Court of the defendant. The reason is that, as earlier stated, the defendant was no longer represented and had dismissed his legal representatives the evening before the proceedings were due to commence."

His Honour reiterated that the orders should be regarded as having been made ex parte at [5] of the judgment, saying:

"While the defendant addressed the Court on the nature of the orders and whether there had been deliberate or reckless or careless breaches of previous undertakings, the lack of opportunity for the defendant to prepare properly for the application for interlocutory orders and/or the hearing is such that these interlocutory orders ought properly to be treated as if they were made ex parte."

The proceedings came back into the Defamation List on 16 June 2017. Shortly before that date (on 14 June 2017), Mr Mulvany (still acting for himself) served a notice of motion seeking to have the orders made by Rothman J varied so as to delete the restraint in order 2(c) (which restrained him from publishing an imputation to the effect "that first plaintiff, or any of its officers, are bullies"). The motion also sought other relief which was later acknowledged to be misconceived.

On 16 June 2017, in response to a request as to whether it would assist Mr Mulvany to have a referral for pro bono legal assistance, he said:

"Absolutely. Obviously, I'm quite ignorant to how it all works, even to have the proceedings here and not Melbourne. I'm a single father. I tragically lost my partner last summer, and my son's mum. I'm actually probably his full time carer, is really what I am." (emphasis added)

Asked what connection the proceedings had with Sydney, the plaintiffs submitted "that's where everybody was ... except Mr Mulvany". I referred Mr Mulvany to the Registrar for referral to a barrister or solicitor on the pro bono panel for the purpose of obtaining advice in relation to his notice of motion and representation at the hearing of that motion: Capilano Honey Ltd v Mulvany [2017] NSWSC 833.

Mr Mulvany subsequently obtained the services of a Victorian solicitor, Mr Morehead, who appeared at the hearing of the motion on 4 August 2017. Mr Morehead pressed only the relief sought in respect of order 2(c) of the orders of Rothman J. During that hearing, Mr Morehead reiterated Mr Mulvany's concern as to having to conduct the case in Sydney and foreshadowed an application to have the proceedings transferred to that State.

The plaintiffs sought to have Mr Mulvany's motion determined by reference to a proposed amendment to their pleading which had evidently been foreshadowed at the hearing before Rothman J but never filed. The hearing of the motion was adjourned to allow the plaintiffs to make that amendment. The amended pleading was filed on 14 August 2017 and I then heard further argument on the motion.

I determined Mr Mulvany's application on 1 September 2017, granting the narrowed relief sought: Capilano Honey Ltd v Mulvany (No 2) [2017] NSWSC 1237. On the same date, I directed the defendant to file any application to transfer the proceedings to Victoria by 22 September 2017 and to file and serve his amended defence by 20 October 2017.

The notice of motion seeking transfer of the proceedings to Victoria was filed on 26 September 2017. No amended defence was filed.

On four subsequent occasions, listings were vacated by consent on the basis that the parties were attempting to resolve the proceedings. The proceedings ultimately came back before the Court on 2 March 2018. On that date, I made a further direction requiring the defendant to file and serve any amended defence by 28 March 2018. At the same time, I listed the defendant's cross-vesting application for hearing on 20 April 2018. On that date, the parties were still engaging in settlement discussions and requested a further adjournment of 2 weeks.

In the meantime, on 5 April 2018, Mr Morehead filed a notice of ceasing to act. Accordingly, at the hearing of the application to have the proceedings transferred to Victoria, Mr Mulvany was again self-represented.

6 In New South Wales, issues arose between the parties that the defendant was not complying with the undertakings given to Campbell J. The plaintiffs identified extensive further publications by the defendant that they considered to be both actionable and in breach of the orders of Campbell J. The plaintiffs' statement of claim was not filed until 30 September 2016, the plaintiffs contending that the defendant contributed to their default in complying with directions by these ongoing extensive further publications. As McCallum J noted, the defence filed on 5 April 2017 pleaded no substantive defence and the proceeding was listed for a 2 day trial on 25 May 2017.

7 The plaintiffs placed before Rothman J on 25 May 2017 evidence of the defendant's conduct in making additional representations and publications since the undertakings were given to Campbell J.[2] Rothman J adjourned the trial of the proceeding with the plaintiffs' consent, notwithstanding accepted prejudice to them, to enable the defendant to obtain legal representation.

8 The defendant took the opportunity left expressly open by Rothman J's orders to exercise liberty to apply on 14 June 2017.[3] That application was heard by McCallum J.[4] On 1 September 2017, her Honour lifted the restraint that the defendant not publish any imputation that the first plaintiff, or any of its officers, 'are bullies.'

9 The plaintiffs continue to allege that since late October 2017, the defendant continued to publish material in breach of Rothman J's orders. By April 2018, they had identified 76 publications by the defendant in apparent breach of Rothman J's orders. On 4 May 2018, the plaintiffs initiated contempt proceedings against the defendant that are yet to be resolved. The plaintiffs asserted that the defendant has also provided material to third parties for publication, including Mr Shane Dowling (against whom the plaintiffs have also brought contempt proceedings). As recently as May 2018, the defendant allegedly published representations that the first plaintiff's honey is toxic and poisonous in apparent breach of paragraph 2(a) of Rothman J's orders.

10 The statement of charge in the contempt motion is a substantial document of 22 pages of allegations and particulars supported by 17 pages of schedules and a copy of Rothman J's reasons.

11 In early July 2018, the Australian Honey Bee Industry Council ('AHBIC') asked the Australian government to begin using nuclear magnetic resonance ('NMR') testing to test honey imported into Australia as it is one of the best available methods of testing.

12 On 20 July 2018, the defendant stated to me in a directions hearing that all publications, perhaps as many as 300 articles, had been 'taken down'. On 22 August 2018, the plaintiffs contended in correspondence that contrary to that statement to the court, many publications remained accessible on social media and the internet, providing 25 URLs as examples of the continuing publications that the plaintiffs contended were in contempt of Rothman J's orders. The plaintiffs also provided a non-comprehensive list of 17 new, or recent publications, that appeared to be in breach of Rothman J's orders.

13 On 3 September 2018, Fairfax Media and ABC Television published the results of a joint investigation concerning NMR testing of honey. Fairfax Media published an article by Adele Ferguson and Chris Gillet titled 'Capilano, Australia's biggest honey producer, and supermarkets accused of selling "fake" honey'. That same day the ABC broadcast a program hosted by Adele Ferguson titled 'Bitter taste: Capilano and supermarkets accused of selling "fake" honey'. The following day, Fairfax Media published an editorial titled 'Honey fraud a threat to nation's reputation'.

14 The defendant has now filed an amended defence raising substantive defences. The plaintiffs, on 13 September 2018 in correspondence, challenged the sufficiency of this pleading contending that the justification defences and Hore Lacy variants alleged were deficient and ought to be struck out. The defendant was also invited to reconsider a defence of contextual truth and the adequacy of the particularisation of the defences. These issue do not appear to have been resolved between the parties to date.

15 On 17 September 2018, the defendant posted statements on Facebook under the heading 'Food Fraud - Honey Industry Whistleblower Vindicated' which the plaintiffs contended implied that the first plaintiff had been involved in food fraud, asserted that 'Capilano' branded honey is adulterated and that his arguments about 'truth in advertising, about tainted imported honey and protecting the local bee-keeping industry are finally being vindicated'.

16 The plaintiffs have put on affidavit a considerable body of evidence about the defendant's conduct in breach of the initial undertakings and Rothman J's orders that, although presently untested, to date has not been contradicted by the defendant, either by affidavit or in submission.

17 The first plaintiff responded to this media coverage by informing its customers and shareholders that it used validated internationally recognised testing of honey to determine authenticity. It noted that there is no consensus view from across the industry about the reliability of the NMR test describing its essential flaw to be its reliance on a database of referenced honeys that is not representative of Australian honey.

18 The same day, ABC radio interviewed the defendant in response to this recent media coverage.

19 On the following day, the ACCC announced it had launched an investigation into Australia's honey industry in response to the recent media.

20 On 5 September 2018 the first plaintiff was reported in Fairfax Media as having 'changed its tune' on a testing method for honey. Although initially rejecting the utility of German NMR results, the first plaintiff was offering to help fund an independent testing facility in Australia using NMR technology on a database appropriate for Australian honey.

21 The defendant's social media websites permit publication of comments by third parties. His Facebook account has been tagged with links to articles featured in the mainstream media since 3 September 2018. The defendant's solicitor asserted that it was difficult for the defendant to constantly monitor the feed of comments posted on his multiple social media platforms.

22 The defendant sought, on 21 September 2018, to vary Rothman J's orders by deleting various restraints as indicated below.

1. Until further order, the defendant is restrained from publishing the representations and imputations set out in paragraph 2a-h of the Court's Order of 24 23 February 2016, or representations and imputations to like effect. (Previously varied by Rothman J)

(c) That honey marketed and sold by the Frist Plaintiff, whether under the "Capilano", "Allowrie", "Smiths", "Wescobee" or any other brand, is contaminated by antibiotics or pollution;

(d) That the Plaintiffs deliberately mislead consumers to believe that honey marketed under the "Allowrie" and "Smiths" brands does not contain imported honey;

(e) That the Plaintiffs deliberately mislead consumers to believe that honey marketed and sold by the First Plaintiff, whether under the "Capilano", "Allowrie", "Smiths", "Wescobee" or any other brand, is not dangerous to their health;

(h) The Second Plaintiff, as CEO of the First Plaintiff, is dishonest in that he has permitted the First Plaintiff to use inferior untested imported honey, thereby putting the reputation of Australia as a producer of honey at risk, and then lying about it.

1. Until further order, the defendant is restrained from publishing the following representations and imputations, or representations and imputations to the following effect:

(a) That honey marketed and sold by the First Plaintiff, whether under the "Capilano", "Allowrie", "Smiths", "Wescobee", or any other brand is dangerous or contaminated.

(b) That the First Plaintiff, or any of its officers, are corrupt.

(c) That the First Plaintiff, or any of its officers, are bullies. [Previously varied by McCallum J][5]

(d) That the First Plaintiff or any of its officers are dishonest.

(d) That the First Plaintiff illegally imports and sells honey.

(e) That the First Plaintiff exploits or mistreats bees.

(f) That the First Plaintiff has demanded that retailers remove competitor brands from their shelves.

(g) That the First Plaintiff or any of its officer are misogynist or sexist.

(h) That the First Plaintiff has bribed Choice and/or public officials.

(j) That the First Plaintiff is in breach of labelling laws,

(i) That the First Plaintiff has lobbied for a change to labelling laws to dilute or weaken them.

(l) That the First Plaintiff has damaged or tarnished the Australian honey producing industry and Australian beekeepers.

1. Until further order, the defendant, by 4pm on 31 May 2017, remove or cause to be removed the following publications, tweets and posts:

(a) the post referred to in paragraph 1aii of the Court's Order of 24 February 2016;

(b) the mattes set out under the heading "Relief Claimed" in paragraph 2i-liv of the statement of claim filed herein

The 18 April 2016 Save the Bees Australia Facebook "Capilano Open Day Post:

(c) the matters set out in Schedule A to these orders

The publication "Chinese pollen at Capilano Honey Post" by Save the Bees Australia Facebook" dated 23 October 2016"

(d) the matters set out in Schedule B to these orders

1. Until further order, the defendant is restrained from publishing the publications, tweets and posts referred to in order 3, or any publication, tweet or post to like effect.

23 The relevant principles were not in dispute. In Liu v The Age, McColl JA said:

The constrained approach courts take to permitting interlocutory orders to be revisited reflects the proposition that a court must remain in control of its interlocutory orders but, too, that a further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust.[6]

24 The overriding principle is do what the interests of justice require in the particular circumstances of the case.[7]

25 The defendant primarily sought to be released from restraints preventing him from making statements regarding adulteration in relation to Allowrie, submitting, in summary, that the interests of justice warranted the reopening and review of the Rothman J orders and required variation of the orders for three reasons. First, there has been a material change in circumstances since the orders were made. Second, the plaintiffs have insufficient prospects of success to justify continuing the restraints, and, thirdly, the balance of convenience favoured unfettering the defendant's speech, particularly having regard to the reticence of the law to restrain free speech.

26 The plaintiffs contended there was no basis to vary the orders in the manner sought, alternatively the evidence as a whole demonstrated there is a serious question to be tried on the plaintiffs' causes of action and the balance of convenience favours the continuation of Rothman J's orders. More specifically, the plaintiffs submitted that:

(a) the variations sought were unnecessary for the defendant's stated purposes, and in any event went beyond what was required for that purpose;

(b) what the interests of justice required in the circumstances prevailing when the orders were made supported the maintenance of the orders; and

(c) there was a strong prima facie case that each of the plaintiffs' causes of actions will be made out, and consequently a strong prima facie case of damage.

27 The defendant contended there had been a material change in circumstances since Rothman J's orders.

28 In making this submission, the defendant primarily relied on the recent media coverage:

(a) the article by Adele Ferguson and Chris Gillett published on 3 September 2018;

(b) the ABC broadcast hosted by Adele Ferguson on 3 September 2018;

(c) the Fairfax Media editorial on 4 September 2018;

(d) the plaintiffs' rejection of the accuracy of NMR testing on 4 September 2018;

(e) the ACCC investigation commenced on 5 September 2018 into the Australian honey industry; and

(f) the first plaintiff's announcement that it endorsed NMR testing on 5 September 2018.

29 The defendant submitted that the gist of these reports was that NMR testing undertaken in an international laboratory in Germany specialising in honey fraud found that almost half the samples from Australian supermarkets sold as pure honey were in fact 'adulterated', including six of eight samples of Allowrie branded honey. This disclosure was described by the defendant as fresh empirical evidence that the first plaintiff sold adulterated honey under the Allowrie brand.

30 I pause at this point to reject the defendant's contention that the recent media coverage established either proposition. There was no evidence before the court that could properly be described as 'fresh empirical evidence' that the first plaintiff sold adulterated honey under the Allowrie brand. Further, there was no proper evidence of the scope of the ACCC enquiry. The media discussion of that inquiry, which included a transcript of an interview on the 7.30 Report in which the chairman of the ACCC apparently participated, does not demonstrate that the ACCC's investigation was into the conduct of the first plaintiff. I am not persuaded that there has been any material change in circumstances.

31 What is of greater significance is that it would appear that Rothman J's orders did not effect a change in the defendant's behaviour. For present purposes, that inference is clearly open to be drawn where the defendant has neither stated, beyond the content of his recently amended defence, that the plaintiffs' allegations of ongoing conduct in breach of Rothman J's orders are disputed or identified the evidentiary basis for the conduct of that dispute at trial, notwithstanding a significant body of affidavit material put on record by the plaintiffs.

32 The plaintiffs acknowledged that an interlocutory injunction may be varied or discharged if 'new facts come into existence or are discovered which render its enforcement unjust'.[8] Changed circumstances must be established by evidence.[9]

33 The plaintiffs described Rothman J's orders as a condition of granting the defendant's application to adjourn the trial of the proceeding. That was clearly the case. Rothman J plainly accepted that the plaintiffs suffered prejudice by losing their trial date. His Honour's orders were interlocutory and their continuance beyond the trial will be a matter for the trial judge. The plaintiffs accepted that Rothman J dealt with the application to grant interlocutory injunctions on the basis that it was made ex parte, as the defendant had not had an opportunity to prepare for the application. This is a different consideration. The defendant was free, after he had obtained advice, to seek to vary Rothman J's orders, and he did so on 14 June 2017 when he applied to vary the orders to delete reference to the 'bully representation'. No other variation was sought at that time, or at any time thereafter until the recent media publicity.

34 The defendant drew on McCallum J's observations querying the 'juridical significance' of the orders being made as 'the price of the adjournment' of the trial.[10] Her Honour said 'I do not think it follows that those circumstances can properly inform or constrain the liberty expressly granted by his Honour to both parties to move the court for a variation of the orders made'.[11]

35 So much may readily be accepted. What is now required is a proper analysis of the nature of the change in circumstances alleged by the defendant and the relevance of proved changes to the principles governing the continuance, or variation, of interlocutory relief.

36 Three issues are determinative. The first issue is that the defendant's conduct has delayed the trial of the proceeding for a very substantial time. The plaintiffs have not had the opportunity to establish their claim for final relief in the proceeding. The second issue is that the recent media coverage has not changed the circumstances in which Rothman J's orders now operate to any appreciable extent. Thirdly, the public interest in discussion of issues about honey purity, as represented by the recent media coverage, cannot be conflated with the defendant's interest in disseminating his particular allegations against the plaintiffs.

37 The plaintiffs' claims were to be tried in May 2017, approximately 15 months after proceedings were commenced. The trial date was lost when the defendant dismissed experienced counsel appearing on a pro bono basis. Why that occurred was not explained, although McCallum J described the defendant terminating the services of his counsel. The plaintiffs were ready for trial, presumably in a position to persuade the court that their causes of action were made out and that they were entitled to permanent injunctions.

38 Some months later, the defendant, who had now retained Victorian solicitors, applied to vary Rothman J's orders as I have explained and once that application was resolved, in September 2017 applied for case transfer to Victoria. The past 12 months have been taken up with adjournments and directions associated either with the finalisation of the transfer of the proceeding or amendments to the pleadings.

39 During this time the plaintiffs, in theory, ought to have been protected by the force of Rothman J's orders, although, as I have noted, the plaintiffs allege that Rothman J's orders have been honoured in the breach, not in the observance. Having regard to the relief claimed in the proceeding, it is unsurprising that the plaintiffs have not pressed a self-represented defendant to trial as would be expected of an ordinary litigant. That said, the issues in the proceeding, until the defendant's recent amended defence, only warranted a short trial and such a trial could have been, I expect, readily accommodated some time ago in the New South Wales court.

40 While I accept that the defendant has not had legal representation for all of this time, one way for him to be relieved of the restraint is to successfully conduct his defence. It cannot be said that the plaintiffs bear primary responsibility for the meandering progress of this proceeding towards resolution. It is unfortunate that the factual issues originally in issue in the trial have, through this delay, been overtaken to some extent by other developments, principally the recent media coverage and a substantially amended defence.

41 Turning to the recent media coverage, the plaintiffs contended that the defendant is not restrained from participating in the debate, as he plainly wants to do. The difficulty has been that the defendant's history of alleged breach of the existing restraints did not engender comfort that the defendant can participate in a public debate while observing Rothman J's orders.

42 Of the representations, or imputations to the same effect, published by the defendant that the plaintiffs seek to continue to restrain, they identified the following as most relevant to this application:

(a) that honey marketed and sold by the First Plaintiff, whether under the "Capilano", "Allowrie", "Smiths", "Wescobee" or any other brand, is contaminated by antibiotics or pollution;

(b) that the Plaintiffs deliberately mislead consumers to believe that honey marketed under the "Allowrie" and "Smiths" brands does not contain imported honey;

(c) that the Plaintiffs deliberately mislead consumers to believe that honey marketed and sold by the First Plaintiff, whether under the "Capilano", "Allowrie", "Smiths", "Wescobee" or any other brand, is not dangerous to their health;

(d) the Second Plaintiff, as CEO of the First Plaintiff, is dishonest in that he has permitted the First Plaintiff to use inferior untested imported honey, thereby putting the reputation of Australia as a producer of honey at risk, and then lying about it;

(e) that honey marketed and sold by the First Plaintiff, whether under the "Capilano", "Allowrie", "Smiths", "Wescobee", or any other brand is dangerous or contaminated;

(f) that the First Plaintiff, or any of its officers, are corrupt;

(g) that the First Plaintiff or any of its officers are dishonest;

(h) that the First Plaintiff illegally imports and sells honey;

(i) that the First Plaintiff exploits or mistreats bees;

(j) that the First Plaintiff is in breach of labelling laws; and

(k) that the First Plaintiff has damaged or tarnished the Australian honey producing industry and Australian beekeepers.

43 The difficulty for the defendant's contention of changed circumstances is that he could not identify anything in the recent media coverage that supported his contention that the plaintiffs no longer could show a sufficient likelihood of success to justify the preservation of the status quo pending trial. Nothing in the recent media coverage suggested that:

(a) any of the first plaintiff's honey was contaminated by antibiotics or pollution, or was otherwise dangerous or contaminated;

(b) the plaintiffs deliberately mislead consumers to believe that honey marketed under the "Allowrie" and "Smith" brands did not contain imported honey;

(c) the first plaintiff was knowingly involved with the production/sale of adulterated honey;

(d) the second plaintiff was dishonest in that he permitted the first plaintiff to use inferior untested imported honey, thereby putting the reputation of Australians as a producer of honey at risk and then lying about it;

(e) the first plaintiff or any of its officers were dishonest;

(f) the first plaintiff illegally sells honey;

(g) the first plaintiff exploits bees;

(h) the first plaintiff was in breach of labelling laws; or

(i) the first plaintiff has damaged or tarnished the Australian honey producing industry and Australian beekeepers.

44 The plaintiffs rejected the defendant's contention that the recent media coverage 'all of a sudden' proved 'everything that the defendant has been saying for the last two years', or that there were 'serious question marks over the veracity of the NMR testing in relation to the Australian environment'. Although the coverage spoke of adulteration, it went no further.

45 I agree. As I have already noted, the recent media coverage cannot be characterised as fresh empirical evidence that the first plaintiff sold adulterated honey under the Allowrie brand or that it otherwise constitutes restatement from an alternative and justified source of the representations and imputations of the type that the defendant is currently restrained from publishing.

46 Within the existing restraints, the defendant can, and appears to have, reported on the recent media coverage, without breaching the terms of Rothman J's orders. The plaintiffs expressed a wish not to curtail the defendant's legitimate commentary on matters regarding the honey industry. Their concern was that the defendant was publishing false material about the plaintiffs and their business as a foundation for his participation in such a discussion and seemingly as a way to raise his profile in such discussions. The plaintiffs' allegation of persistent and repeated publications in breach of undertakings and Rothman J's orders was the basis for their concern that the defendant was determined to cause them and their business harm by the publication of false material. As I will later explain, the plaintiffs have an arguable claim that the defendant has been, and continues to be, malicious.

47 The plaintiffs submitted, with some force, that the defendant's published material demonstrated a tendency to push the limits of Rothman J's orders including by selective misquoting of those orders. Further, the defendant continued to publish assertions that the plaintiffs contended are false, including:

(a) the defendant is justified in using the word 'poison' in relation to Capilano Ltd because it could cause cancer;

(b) the first plaintiff attempted to cover up an incident involving a truck and buried millions of bees alive;

(c) feeding Chinese pollen to Australian bees means the honey produced is 'Chinese';

(d) imported honey is poisonous and/or a biosecurity risk;

(e) the first plaintiff's honey contains alkaloids and/or toxins; and

(f) the first plaintiff illegally imports and sells honey.

48 The plaintiffs contended that the defendant achieved a wide reach by publishing materially similar content across multiple platform and by republishing older material to refresh its currency. This followed from requests and encouragement of his 'followers' and/or other members of the public to 'share' his publications on social media.

49 There is no impediment on the defendant commenting, for example, on the suitability of NMR testing or on the testing regimes operated by government. The variations sought by the defendant went far beyond that required to report or comment on that media coverage. I do not accept that the plaintiffs' participation in the recent media coverage has opened the way for the defendant to publish comment directed at the plaintiffs on the matters that are the subject of Rothman J's orders. To vary the orders in the manner sought by the defendant would be to permit the defendant to step well beyond the scope of the controversy addressed by the recent media coverage. That is because the crux of the restraints is not to prevent public discussion on matters of significant public interest. It is rather to prevent actual damage to the first plaintiff's business and the second plaintiff's reputation by malicious publication of false statements pertaining to the first plaintiff's business. The restraints prevent the defendant publishing statements about the conduct or characteristics of the plaintiffs in particular respects. Absent that focus, there is no impediment on public comment about honey importation, testing, purity, health considerations, labelling laws, the treatment of bees or honey fraud.

50 The Ferguson and Gillet article stated that the first plaintiff was facing 'accusations' of 'unwittingly' selling fake honey. It expressly stated 'there is no suggestion that ... Capilano or other brands were aware of the adulteration'.

51 The Fairfax editorial did not refer to the plaintiffs or any other honey seller. It suggested that 'the investigation [into honey fraud] clearly shows Australian consumers are being misled and defrauded' presumably by the 'clandestine dilution of honey by domestic and international producers'.

52 The AHBIC asked the Australian government to begin using NMR testing to test imported honey, however:

[s]ince that time AHBIC has become aware of questions about the veracity of the NMR testing on its own as an appropriate testing regime and is continuing discussions with Government as to what is the most effective and reliable suite of testing measures that need to be used to identify adulterated honey.

53 There was no reference to the first plaintiff or any other importer. Further, the position of the AHBIC appears consistent with that of the first plaintiff about the suitability of the German NMR testing for Australian imports of honey. The defendant's characterisation of the first plaintiff's announcement as a changed response was not accurate. The first plaintiff called into question the accuracy of NMR testing, but it acknowledged '[i]t is essential for consumers to have confidence in that they are buying 100% pure honey. We cannot have one test saying one thing and another saying honey is 100% pure. That is where we find ourselves today'.

54 The defendant's characterisation of the plaintiffs position and their response to the recent media coverage was inaccurate. Rather than a sudden reversal of position as the defendant would have it, the first plaintiff stated its intention to help research and fund the best quality assurance methods for honey that are able to generate consistent and credible results, whether or not those quality assurance methods are NMR based. This position was consistent with its first media announcement of 4 September 2018.

55 The ABC report 'ACCC launces investigation into "fake" honey', only referred to accusations of unwittingly selling fake honey. Again, '[t]here is no suggestion any of the companies were aware of the alleged adulteration and the honeys had all passed tests used by Australian authorities - but not the NMR test'.

56 The Sydney Morning Herald article, 'Capilano honey offers to fund lab to sweeten new testing deal' included the following statements:

(a) 'Capilano, the nation's largest honey producer, has changed its tune on a testing method that has shown some of its products were impure, and now wants to fund a lab to carry out the tests in Australia';

(b) 'Professor Fels also said...regulators needed to question what Capilano had done to prevent tainted produce entering its supply chain';

(c) 'The ACCC is, meanwhile, investigating whether Capilano has been selling adulterated products';

(d) The ACCC 'did not have a firm view on NMR testing, but noted it was complicated and expensive, while the ACCC was resource constrained'; and

(e) 'Agriculture Minister David Littleproud said his department was working on a "suite of measures" to restore trust in confidence in Australian honey, including considering the NMR test'.

57 A media release on 12 September 2018 regarding testing of imported honey issued by the Department of Agriculture and Water Resources included the following statements:

(a) With respect to honey, no biosecurity or food safety issues have been identified;

(b) The department currently tests imported honey using a 'C4 sugar analysis', which is the internationally recognised approach to detect if certain sugars have been added. This includes C4 sugars, such as sugar cane or corn syrup;

(c) The department has been evaluating for some time the use of other laboratory analytical methods to verify the integrity of imported honey, including...NMR [testing] which can detect C3 sugars, such as sugar beet syrup. This would significantly improve the department's testing;

(d) Australia does not currently have a laboratory capable of performing NMR analysis. This is because there is currently no internationally accepted database to support NMR analysis, nor the expertise required to interpret the results for regulatory purposes; and

(e) In short, NMR testing is not yet able to be used in Australia as a reliable testing tool on its own for regulatory purposes.

58 I accept the plaintiffs contention that the following conclusions can be drawn from the recent media coverage:

(a) it referred to the potential for adulteration by addition of syrups, but not allegations of contamination with pollution, antibiotics, or being dangerous;

(b) there was no suggestion that the first plaintiff was knowingly involved in the production or sale of adulterated honey; and

(c) there was no reference to exploitation of bees, or that the plaintiffs have been dishonest or deliberately misleading.

59 For these reasons, I cannot accept the defendant's contention that the variations he seeks to Rothman J's orders rise no higher than the recent media coverage. Nor do I accept that the orders prevent the defendant from engaging with the recent media coverage and the matters raised in it. Accordingly I reject the defendant's submission that there has been a material change in circumstances that would warrant the variations sought.

60 If the onus on this application remains on the plaintiffs to justify the continuance of the restraint, the defendant has not disputed the matters the plaintiffs relied on to establish a prima facie case. In the present circumstances I am persuaded that the plaintiffs have a prima facie case with a sufficient likelihood of success to justify the preservation of the status quo pending trial.

61 The defendant noted that in defamation the power to injunct publication is exercised with great caution, and only in very clear cases,[12] but submitted that such reticence did not apply to injurious falsehood.[13]

62 The defendant's point was that the plaintiffs rely on the same factual foundation for both claims and the first plaintiff's injurious falsehood claim was an expedient framing of its case to avoid the restraint ordinarily exercised in granting injunctions to restrain defamation.[14]

63 The defendant cited AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd in which Brereton J noted:

It has been said that the special rules relating to the grant of injunctive relief in defamation cases cannot be avoided by the expedient of framing the plaintiff's case in injurious falsehood rather than in defamation. Typically, injunctions have been granted in injurious falsehood cases where questions of public interest, free speech and discussion and liberty of the press are not involved. But High Court authority now recognises that the restraint exercised in the grant of injunctive relief in defamation cases does not apply, at least with the same force, in cases of injurious falsehood. In Palmer Bruyn & Parker Pty Ltd v Parsons, Gummow J said that the inhibition on injunctive relief to restrain further publication of defamatory material does not apply to injurious falsehood[15]

64 In Re.Group Pty Ltd v Kazal Griffith J observed that, even in the context of an injurious falsehood claim, 'the Court generally hesitates to restrain individuals being able to exercise their rights of freedom of speech'.[16]

65 The defendant submitted that this case is distinguishable from ordinary cases of injurious falsehood, as it raises matters of public interest,[17] which was demonstrated by the editorial appearing in Fairfax Media in which the editorial writer observed '[i]t is about protecting our reputation as well as much of our ecosystem. It is about food security and viable agriculture, and the status quo is not an option'.

66 The plaintiffs submitted that the first plaintiff's claim in injurious falsehood was not expedient, it was the only cause of action available to the first plaintiff.[18] I accept that submission. I am not persuaded that the first plaintiff's claim in injurious falsehood is 'expedient'. It is the only cause of action of its type available to it.

67 The defendant's contentions were put at a high level of generality. He submitted that the plaintiffs had not demonstrated a sufficient likelihood of success and that the inconvenience or injury the defendant would suffer if Rothman J's orders were not varied outweighed the injury the plaintiffs were likely to suffer Rothman J's orders were varied.[19]

68 The elements of injurious falsehood were not in dispute, and were clearly stated in Palmer Bruyn & Parker Pty Ltd v Parsons,[20] and summarised by Brereton J in AMI Australia,[21] as comprising:

(a) a false statement of or pertaining to the plaintiff's goods or business;

(b) publication of that statement by the defendant to a third person;

(c) malice on the part of the defendant; and

(d) actual damage as a consequence, however this element will not preclude injunctive relief to restrain a threatened publication.[22]

69 The plaintiffs contended they have shown a prima facie case in respect of each element. There appeared to be no dispute that the representations pertained to the first plaintiff's goods or business, or that the representations had been published by the defendant to others.

70 As to the falsity of the representations, the plaintiffs' relied on the affidavit of their solicitor Alexander Maile Latu that was read on the application. This affidavit was not contested by the defendant save to the extent that he argued that the recent media coverage vindicated his earlier publications, as discussed above. Further, the amended defence, which first raised substantive defences about 2 ½ years after the proceeding was commenced, is, in a pleading sense, contentious. It was not supported by any affidavit seeking to verify material allegations of fact. For present purposes I am satisfied that there is a serious question for trial that the representations alleged were false.

71 The plaintiffs submitted there was prima facie case of malice on the part of the defendant, as malice can be inferred where a false publication is made with knowledge of, or reckless indifference to, its falsity.[23] The plaintiffs pointed to communications between the second plaintiff and the defendant prior to publication, the language and tone of the publications, a concession that the defendant had not tested any of the first plaintiff's honey, the apparent 'absence of any scientific evidence for the defendant's claims about the first plaintiff's products'. After particular impugned posts about adulteration had been published, the defendant asked for evidence that rice syrup is unhealthy, indicating, it will be alleged, the defendant's reckless indifference to the truth or falsity of his claims.

72 The plaintiffs further submitted that continuing malice was indicated by the defendant's non-compliance with and breach of undertakings made to the court, his alleged contempt of Rothman J's orders, his further publications, and the tone and language used in those publications.

73 I will discuss the plaintiffs' case as to actual damage, and the reasonable probability of damage, below. I am satisfied that the plaintiffs have a prima facie case of sufficient strength to justify the maintenance of the status quo, as established by the undertaking given to Campbell J and Rothman J's orders, until the trial of the proceeding.

74 The defendant submitted that the risk of irreparable injury for which damages would be inadequate compensation 'diminished to vanishing point in light of the damage already done' by the recent media coverage. The defendant coupled the absence of a risk of irreparable injury with the substantial public interest in public dissemination and discussion of the defendant's allegations against the plaintiffs.

75 I pause to note that I do not cavil with the contention that there is a substantial public interest in food purity and in public trust that Australian honey is not adulterated. As I have stated, the defendant is not restrained from participation in that debate only from republishing the allegations about the plaintiffs identified in the orders of Rothman J.

76 The plaintiffs submitted that for present purposes there was clear evidence of ongoing risk of irreparable injury. First, there was evidence of members of the public expressing confusion about the plaintiffs honey directly as a result of statements made by the defendant. Further, there was evidence of members of the public stating their intention to boycott the first plaintiff's business by refusing to purchase its honey.

77 Secondly, the defendant directly targeted, and affected, the first plaintiff's share price in publications in 2017 that included a large graphic 'time to sell' and recommended that investors sell shares in the first plaintiff. Such recommendations were distributed by the defendant. The first plaintiff contended that the defendant misquoted information from third parties to rationalise a recommendation that the first plaintiff's shares be sold on the basis of its importation of overseas honey.

78 The first plaintiff will contend at trial that such publication did not simply affect it. The negative impact could and did extend to its employees and suppliers as well as to consumers of honey. The submission continued that consumer confidence in food stuffs and classes of food stuffs like honey was fragile and that the honey industry as a whole suffered from decreased consumer confidence. Damage to consumer confidence is enormously difficult to remediate. More than 500 small family operated beekeeper businesses are dependent on supply contracts with the first plaintiff for their livelihood.

79 Further, the plaintiffs do not seek damages in the proceeding and having regard to the impecuniosity of the defendant could never be compensated in damages even if they were sought.

80 For the reasons I have already given, the defendant does not face any significant prejudice in his opportunities to exercise his rights of free speech or to participate in the ongoing public debate. In the meantime, the defendant's circumstances and conduct has prevented a timely resolution of the issues raised in the proceeding. In this context, the defendant is seeking the opportunity to comment well beyond the parameters of the current debate by lifting the restraint on his comments about the plaintiffs, to enable him to repeat statements that, until recently, he did not seek to justify (or otherwise defend) and in respect of which the reformulation of his defences is being contested.

81 I am satisfied that by refusing to vary Rothman J's orders I am taking the course that appears to carry the lower risk of injustice if it should turn out to have been wrong. This course produces the lower risk of injustice between the parties should the plaintiffs fail to establish their rights at the trial.[24] Bearing in mind the caution to be exercised in restraining free speech, I am satisfied the balance of convenience favours maintaining the restraints imposed by Rothman J and I will not vary those orders.

83 Although the Charter of Human Rights and Responsibilities was generically raised in written submissions, no argument was developed and I say no more about it.

84 The defendant also sought to vary the orders to enable him to republish two video posts although he only sought to publish or re-publish the video content and not the text that accompanied the original posts.

85 Rothman J's orders restrained publication of the videos in combination with the written posts accompanying them. The videos themselves are not the subject of an express order.

86 The first video was said to depict a Capilano beekeeper feeding bees. When asked what the bees are being fed the beekeeper says he is feeding the bees irradiated Chinese pollen. The second video was said to depict the defendant outside the perimeter fence of the first plaintiff's Maryborough plant, after being refused access to the plant for what was described as an 'open day'. The defendant makes various assertions about the first plaintiff and its operations, which are said by the defendant's solicitor, on instructions, to be in part based upon a conversation the defendant had with an unidentified processing plant manager at the Maryborough plant.

87 The plaintiffs pointed to what they said were inaccurate descriptions of the videos. Principally the plaintiffs said the Maryborough plant did not have an open day as asserted by the defendant, but was used as the site for a picnic which was not hosted by the first plaintiff. The defendant's claims that he was denied access to an open day, or witnessed representations made at an open day, are inaccurate.

88 I watched the videos, but their relevance and provenance remained obscure. I cannot be satisfied that the defendant's description of them was accurate. As the video itself, removed from context, did not appear to be subject to Rothman J's orders, and whether the videos breached such orders was not in issue, I say no more about them.

89 After I reserved my judgment on this application, the defendant's solicitors, without seeking leave to reopen submissions, submitted a copy of the New South Wales Court of Appeal's decision in Capilano Honey Ltd v Dowling (No 2) ('Dowling'),[25] asserting its relevance to this proceeding and asserting an obligation to submit it by virtue of Rule 19.6.2 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015. That rule appeared not to create such obligation.

90 However, I proposed granting leave to the parties to reopen their argument and file brief supplementary submissions on the implications, if any, of this decision. The plaintiffs did not object to this course, so I need not express a view on whether Rule 19.6 was applicable.

91 I am not satisfied that that decision in Dowling is relevant to the determination of the present application.

92 As the plaintiffs' observed, there were three primary reasons given in Dowling that justified revisiting the injunctions. First, there had been no contested hearing regarding the injunctions. Secondly, there was confusion as to the scope and duration of the injunctions in their originally form. Thirdly, the plaintiffs' had delayed in prosecuting the proceeding. None of these reasons apply or are analogous to the circumstances of the present application. Even if these elements were also present in the current case, that would not be determinative.

93 The procedural history in Dowling is significantly different to this proceeding. The different procedural history is relevant to understanding how the respective applications have been determined. The circumstances in which Rothman J's orders were made in this case are set out earlier in these reasons. The circumstances in Dowling are set out in the judgment of both the trial judge and the Court of Appeal.[26] It is not necessary in these reasons to recite and compare the differences, they are readily apparent. There is also an important substantive difference in the applications in that here the defendant only seeks to vary Rothman J's orders, and does so primarily on the basis of the recent media coverage with respect to NMR testing.

94 In any event, the defendant did not address these matters in his supplementary submissions. The defendant submitted:

McCallum J held that "the debate is one of broad public concern raising complex questions of trade regulation and health safety regulation". Her Honour was not persuaded that it is appropriate to restrain Mr Dowling from participating in that debate. And further: "I am not persuaded that this is the kind of case in which interlocutory orders should pre-empt the final hearing."

The Justices of Appeal unanimously approved of McCallum J's decision:

It was open to the trial judge to conclude the orders imposed significant restraints on the respondent's ability to engage in public debate regarding questions of trade, and health and safety regulation: [55]. Evidence was not required to establish the existence of public concern about these issues; if it were required, it could be found in the corporate applicant's own case about the alleged damage the articles could cause it: [57].

The Defendant respectfully submits that on the balance of convenience, after such a long period of 'temporary' injunctions having been in force, he ought no longer be restrained from participating in that same public debate such that the application to vary the Rothman J orders made on 25 May 2017 be granted.

95 As discussed above, there is no restriction on the defendant engaging in the public debate constituted by the recent media coverage. To do so would involve some care about what he said, in order to comply with Rothman J's orders. The defendant's contention that he is restrained from participating in public debate is misconceived.

96 Secondly, a long period of 'temporary' injunctions is not a matter that properly arises from Dowling, and is not encompassed in the limited leave given for supplementary submissions. In any event, what I have said above concerning the reasons for delay would dispose of that submission, if permitted to be advanced.

97 Subject to any further submissions from counsel as to costs, the defendant's application will be dismissed with costs.

[1] Capilano Honey Ltd v Mulvany (No.3) [2018] NSWSC 767.

[2] Affidavit of Richard Michael Keegan sworn 25 May 2017.

[3] Capilano Honey Ltd v Mulvany [2017] NSWSC 833.

[4] Capilano Honey Ltd v Mulvany (No.2) [2017] NSWSC 1237.

[5] Capilano v Mulvany (No 2) [2017] NSWSC 1237.

[6] [2016] NSWCA 115; (2016) 92 NSWLR 679, 715 [169] (McColl JA).

[8] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 178 (Gibbs CJ, Ackin, Wilson and Brennan JJ).

[10] Capilano v Mulvany (No 2) [2017] NSWSC 1237 [17].

[12] Stocker v McElhinney [No 2] [1961] NSWR 1043, 1048, cited with approval in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57, 66-68 [16]-[18] (Gleeson CJ and Crennan J); Duthie v Nixon [2015] VSC 672; (2015) 47 VR 355, 361-362 [20]; QBH Commercial Pty Ltd v Nine Network Australia Pty Ltd [2016] VSC 441.

[13] Citing Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 247 [21]-[23].

[14] Church of Scientology of California Inc v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344, 349.

[15] [2010] NSWSC 1395 [39] (citations omitted, emphasis added by the defendant) ('AMI Australia').

[16] [2016] FCA 1485 [34].

1. [17] Citing Cf: Swimsure at 801; Broderick Motors Pty Ltd v Rothe Pty Ltd (1986) Aust Tort rep 80-059; Kaplan v Go Daddy Group 7 [2005] NSWSC 636, [40]-[42]; Construction Industry Long Service Leave board r v Odco Pty Ltd (1988) 11 IPR 577, 593.25 [PUT IN ALR REFERENCE]; Commercial Bank of Australia Ltd v Insurance Brokers Association of Australia [1909] ArgusLawRp 121; (1977) 16 ALR 161, 167-8.

[18] See Defamation Act 2005 (Vic), s 9.

[19] Citing Beecham Group Ltd v Bristol Laboratories [1968] HCA 1; (1968) 118 CLR 618, 622-623; ABC v O'Neill [2006] HCA 46; (2006) 227 CLR 57, 68 [19], 81-82 [65].

[20] (2001) 208 CLR 388, 404 [52] (Gummow J), 425 [114] (Kirby J).

[21] [2010] NSWSC 1395 [29].

[22] Ibid [38]; Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669 [169].

[23] AMI Australia [2010] NSWSC 1395 [31]-[32].

[24] Bradto Pty Ltd v Victoria [2006] VSCA 89; (2006) 15 VR 65.

[25] [2018] NSWCA 217; on appeal from Capilano Honey Ltd v Dowling (No 2) [2018] NSWSC 865.