Menulog Pty Ltd v TCN Channel Nine Pty Ltd

(Plaintiff) TCN Channel Nine Pty Ltd (Defendant) Representation: D R Sibtain & L Brown (Plaintiff) J Hmelnitsky (Defendant) Diamond Conway (Plaintiff) Johnson Winter & Slattery (Defendant) File Number(s): 2012/85898

Judgment 1This matter came before me in the Duty Judge List seeking an urgent injunction to restrain a telecast of a program scheduled that evening less than 3 hours after the application commenced. After hearing argument from both parties I indicated that I would issue the injunctions sought and provide my reasons at a later time. These are my reasons for adopting that course. 2Although the application was made on short notice, because there had been correspondence passing between the parties prior to the making of the application, the Defendant was present when the application was made and presented argument in relation to what was sought. 3The background to the matter appears in a concise form in the affidavit of the Plaintiff's solicitor of 16 March 2012 as follows. 4Menulog Pty Limited (Menulog) operates an on-line business that, amongst other things, allows members of the public to place on-line orders for food from particular restaurants. Menulog operates nationally throughout Australia and also in New Zealand. 5Menulog has been in business for over four years. The business has grown quickly, approximately doubling in size each year. Menulog currently receives approximately $2 million worth of orders each month, and is the market leader in the provision of on-line restaurant ordering services. 6Menulog acts as an intermediary between the public and restaurants, directing orders placed for the supply of food to the relevant restaurant. 7In the case of approximately 98% of the orders placed with Menulog, Menulog has direct arrangements with the restaurants which supply the ordered food. In the case of those orders, the customer places an order on the Menulog internet site for the supply of food by a particular restaurant and the restaurant is notified of the order by Menulog. The restaurant, using its own delivery service, then delivers the food ordered directly to the customer, or the customer collects the food from the restaurant (in the case of a take-away order). Menulog earns a commission per order and charges this fee to the restaurant directly. 8In addition to having direct arrangements with restaurants, Menulog also has, to a limited extent, arrangements with businesses that provide delivery services for restaurants that do not have their own delivery service. One such business is Cuisine Courier. Cuisine Courier is the proprietor of a business called "Cafe on Wheels". 9In respect of approximately 2% of orders placed with Menulog, Cuisine Courier processes the order with the restaurant, collects the order and delivers it to the customer. Menulog earns a commission per order and charges this fee to Cuisine Courier. 10As a result of the affiliate arrangement with Cuisine Courier, Menulog lists on its website restaurants with whom Menulog has no direct contractual arrangement. Cuisine Courier provides Menulog with a list of restaurants which it purports to represent, and Menulog lists those restaurants as restaurants with which customers may place orders for the supply of food. These restaurants have a direct contractual arrangement with Cuisine Courier, and the placement of orders with restaurants is effected entirely by Cuisine Courier. Further, Menulog relies upon the information provided by Cuisine Courier as to the restaurants with which Cuisine Courier has an arrangement and from which Cuisine Courier can supply food to customers. 11The promotional broadcast for the program to be aired was played to the Court. A transcript of that broadcast is as follows: Tracy Grimshaw: Tomorrow night we expose an elaborate home delivery swindle. Here's a preview. Voiceover: The great home delivery switch-a-roo. [Screen text: Can you turn the camera off please] [Screen image for remainder of broadcast: Home Delivery Food Con ] Voiceover: On A Current Affair. You think you're ordering from your favourite restaurant, but your meal is really being made here. Unknown interviewee: The customers are getting ripped off. Voiceover: Even the delivery driver is part of the scam. [Pixelated image of Dan Katz] Voiceover: We bust Australia's restaurant rebel. Dan Katz:: That cannot be us Tracey Grimshaw: That story tomorrow only on ACA. Thank you for your company, goodnight. 12The first time the Plaintiff knew anything about this program or its subject matter was on 14 March at about 2:30pm when the Managing Director of the Plaintiff was in a meeting with a Director of the Plaintiff and another person. He was confronted outside the Plaintiff's office by a male reporter, presumably from the Defendant, who asked him whether it was good to rip off a small Brisbane-based family restaurant and rip off customers. 13Mr Katz said that he did not know what the reporter was referring to and asked him to explain. The reporter said that there was a restaurant called Vecchia Roma in Brisbane for whom the Plaintiff was taking orders on its website but having the food delivered by a different restaurant. Mr Katz said that he had no knowledge of this restaurant or any such occurrence. He asked for the reporter's contact details so he could investigate and get back to him. Whilst this conversation was going on a cameraman was filming it, and it was the pixelated image of Mr Katz that appeared on the promotional broadcast. 14Investigations were then instituted by the Plaintiff. When those investigations were completed a letter was sent by the Plaintiff's solicitors to the Legal Department of the Defendant. That letter provides a convenient summary of what was discovered on the investigation and what the Plaintiff had subsequently done. It is appropriate to set out the letter in full: Dear Sir, MENULOG PTY LTD ("Menulog") We act on behalf of Menulog. We are instructed that your program intends to put to air a story about our client and events concerning a restaurant known as "Vecchia Roma Italian Restaurant" located in Burleigh Heads Queensland. Menulog has requested us to write to explain the facts of the matter so that should the story go to air there is no confusion as to exactly what has occurred. The facts are as follows:-