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[2012] NSWSC 247
plaintiff. On Menulog’s undertaking as to damages, leave was granted to file the summons and supporting affidavit, and Channel Nine was restrained until further order from broadcasting the program, its...
Davies J temporarily stopped Channel Nine from broadcasting a promoted story about Menulog. The Court considered that the promotional language could imply a broad dishonest scheme, although the available material appeared to relate to a particular restaurant order processed through Menulog's delivery affiliate. Menulog's explanation, the proposed broadcast's language, and Channel Nine's failure to provide the program or information about other transactions supported a serious question to be tried about falsity and malice. The Court also accepted that the broadcast could damage Menulog's business and that a short delay would not cause demonstrated prejudice to Channel Nine. The Court did not decide whether Menulog would ultimately prove its claim.
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2,468 words · generated 30/09/2026
This was an urgent interlocutory application in the Supreme Court of New South Wales, heard by Davies J on 16 March 2012. Menulog sought orders preventing TCN Channel Nine from broadcasting an A Current Affair story scheduled to go to air that evening. The application began less than three hours before the proposed broadcast. Channel Nine appeared and made submissions, despite the short notice ([1]-[2]).
No linked legislation citations have been extracted yet.
Menulog operated an online food-ordering service. In most cases, it had direct arrangements with restaurants: customers ordered through Menulog, the restaurant received the order and supplied the food, and Menulog charged the restaurant a commission ([4]-[7]). For a smaller proportion of orders, Menulog had arrangements with delivery businesses, including Cuisine Courier. Cuisine Courier processed orders, collected food and delivered it. Menulog listed some restaurants based on information supplied by Cuisine Courier, even though Menulog did not contract directly with those restaurants ([8]-[10]).
The dispute arose around Vecchia Roma, a restaurant in Queensland. The material before the Court suggested that an order was placed for Vecchia Roma through Menulog on 5 March 2012 and referred to Cuisine Courier. Cuisine Courier confirmed that order through Menulog's web interface. A later order for another Italian restaurant, Romana's, was placed by Cuisine Courier for the same delivery address ([14]). Menulog's solicitors said that the company had no reason to connect the two orders and had not known that an order intended for Vecchia Roma might have been redirected. Menulog removed Vecchia Roma from its website and later removed other Cuisine Courier venues pending investigation ([14]).
A reporter confronted Menulog's managing director, Dan Katz, on 14 March. The questions concerned whether Menulog was ripping off a small Brisbane-based restaurant and its customers. Katz said he did not know what the reporter meant and asked for further information ([12]-[13]). The promotion for the proposed program described “an elaborate home delivery swindle”, “the great home delivery switch-a-roo”, customers being “ripped off”, and Menulog as “Australia's restaurant rebel” ([11]).
Menulog's solicitors sent Channel Nine an account of the company's understanding of the transaction and its role. They said that Menulog had listed Vecchia Roma in good faith on information from Cuisine Courier, that Cuisine Courier handled the relevant order, and that Menulog had removed the listing. They disputed any suggestion of knowing involvement in wrongdoing ([14]). The solicitors then objected to the promotional language and asked for assurance that the program would not make the disputed allegations. They also asked to see the proposed program, but it was not provided to the Court at the hearing ([16]-[19]).
Davies J granted interim restraints. They covered the program, its promotional material, and broadcasts or other material making specified representations about Menulog, including that it knowingly participated in a food-delivery con, diverted business, ripped off customers or restaurants, or deceived customers about the source of food. The orders applied until further order, and the matter was listed again for 21 March 2012 ([orders], [35]).
The application was advanced as a claim in injurious falsehood. Davies J noted the four elements identified in the cited authority: a false statement concerning the plaintiff's goods or business, publication to a third person, malice, and actual damage ([22]). The urgent dispute focused particularly on falsity and malice ([23]).
The distinction from defamation mattered. In injurious falsehood, the plaintiff bears the burden of proving falsity. Davies J also relied on the point that an absence of evidence justifying a damaging imputation may still matter when assessing whether falsity can be inferred ([23], discussing AMI at [30]). At this hearing, however, the Court was not deciding the claim finally. Because Menulog sought an interlocutory injunction, the immediate threshold was whether there was a serious question to be tried ([25]).
On falsity, the Court compared the language of the promotion with what the material appeared to show. The reporter's inquiry had identified one restaurant and one order. The available account suggested that Menulog transferred the order to Cuisine Courier and did not know what happened after that ([26], [29]). Against that background, descriptions such as “an elaborate home delivery swindle” and “the great home delivery switch-a-roo” could arguably overstate a single incident and imply systematic dishonesty. Davies J considered that they could therefore support an inference of falsity ([27]).
The Court also considered Menulog's business arrangements. Channel Nine argued that Menulog was involved because it had contractual arrangements with Cuisine Courier and received fees associated with orders. Davies J considered that those facts did not, on the material before him, establish that Menulog knew about or participated in what happened after an order was transferred to Cuisine Courier. Menulog's role as the recipient and electronic transmitter of orders did not itself implicate the company in fraud or dishonesty ([28]-[29]).
Malice was assessed as a state of mind that may be inferred from a defendant's words, conduct and knowledge. Davies J stated that reckless indifference to whether a publication is true or false can support an inference of malice, while mere carelessness or lack of affirmative belief is not conclusive by itself ([24], [30]). The Court considered relevant that Channel Nine had received Menulog's explanation before the proposed broadcast. The intention to broadcast the promotion despite that explanation could arguably show reckless indifference. The absence of information about any other transactions, and the failure to provide the proposed program, also formed part of the Court's assessment ([31]-[32]).
The Court expressly guarded against treating that reasoning as a reversal of the burden of proof. Menulog retained the onus of proving falsity and malice. The point was narrower: at an interlocutory stage, the surrounding circumstances could make it easier to draw an inference that a serious question existed ([32]).
For damage, Davies J accepted that a threatened publication did not require final proof of loss before an interlocutory restraint could be considered. A probability of actual damage was sufficient for that purpose. The Court found a reasonable probability that adverse publicity would create doubt among potential customers and harm Menulog's business ([33]).
Finally, the balance of convenience favoured a short period of restraint. Channel Nine accepted that if there was a serious issue about malice, the balance favoured a short delay. No detrimental prejudice from delaying the broadcast was argued or shown, whereas the Court considered the risk of irreparable damage to Menulog's business significant ([34]). This supported temporary relief, not a final determination of the tort claim.
The judgment presented its analysis as an application of existing principles, rather than announcing a new rule. It distinguished injurious falsehood from defamation on two points central to the application: the plaintiff bears the burden of proving falsity, and malice is an essential element of the tort ([22]-[24]). The Court also treated the established interlocutory threshold as requiring a serious question to be tried, rather than a final determination of the disputed facts ([25]).
The judgment's practical contribution lies in its application of those principles to a threatened broadcast. Davies J considered the promotional language, the apparent gap between the single incident described to the reporter and the broader claims in the promotion, Menulog's account of its role, and Channel Nine's conduct after receiving that account ([26]-[32]). The decision illustrates how those circumstances can be considered together when deciding whether there is a serious question about falsity and malice.
The Court did not hold that a media defendant must provide a proposed program to a plaintiff, nor that failure to do so automatically proves malice. Its reasoning was conditional and evidentiary: in the circumstances before it, the absence of further information and the failure to disclose the program could contribute to an inference at the interlocutory stage ([31]-[32]). Nor did Davies J decide that Menulog had proved falsity, malice or actual damage at a final hearing. The orders restrained publication “until further order”, and the case was stood over for further consideration ([orders], [35]).
The supplied judgment does not set out a later court's treatment of this decision. It therefore does not establish whether later courts followed, distinguished or otherwise developed its reasoning. The authorities Davies J cited are addressed below only to the extent that this judgment itself discusses them.
At [25], Davies J said: “Since what is being sought is an interlocutory injunction it is necessary only for the Plaintiff to show that there is a serious question to be tried about these matters.” In plain English, the urgent hearing was not the trial. Menulog needed to show a real issue requiring determination, rather than establish its whole case conclusively.
At [27], Davies J considered the promotional descriptions in the context of the apparent factual basis. The concern was that language suggesting an “elaborate” or general scheme could be a substantial exaggeration if the story concerned one order and one restaurant. In plain English, the breadth and tone of the promotion could matter when deciding whether its implied claims were arguably false.
At [29], the judge stated that Menulog's right to receive a fee under its arrangement with Cuisine Courier did not “elevate” its knowledge or involvement. In plain English, a commercial connection and payment did not, on their own, show that Menulog knew of or joined in the alleged diversion.
At [30]-[31], the Court addressed malice. It considered whether the proposed broadcast, after Channel Nine had received Menulog's explanation, could show reckless indifference to truth. In plain English, the judge considered whether the publisher's conduct could support an inference that it proceeded without proper regard to whether the broad claims were accurate.
At [32], Davies J said that the plaintiff's burden remained the same. The defendant's choice not to provide evidence or disclose the program could affect the inferences available at the interim stage, but it did not transfer the legal onus to Channel Nine.
At [33], the judge accepted a “reasonable probability of actual damage” from adverse publicity. In plain English, the Court considered it likely enough at this stage that the broadcast could undermine confidence in Menulog and harm its business.
The judgment is relevant to an urgent application where a plaintiff says that a planned publication will make damaging false statements about its business and seeks restraint before publication. Its reasoning is particularly tied to a situation in which the publication's promotional material is available, the full program is not, and the plaintiff has provided the publisher with a detailed account disputing the apparent allegations ([11], [14], [16]-[19]).
The factual comparison mattered. Davies J had material suggesting that the reporter's inquiry concerned a particular restaurant order, while the promotion used language that appeared to describe a broader dishonest practice ([26]-[27]). A similar analytical question could arise where there is a gap between the specific facts known at the interlocutory hearing and the sweeping or categorical claims in the proposed publication. The judgment does not establish that such a gap will always prove falsity; it shows that the gap may support a serious question to be tried on the facts before the Court.
The decision also concerned an intermediary business whose affiliate performed the relevant order processing and delivery. The Court considered whether the plaintiff's contractual relationship and fee were enough to show knowing involvement. It concluded only that those matters did not, on the available evidence, establish such involvement at the interlocutory stage ([28]-[29]). The reasoning is fact-dependent and does not determine what different evidence might show.
The malice analysis may be relevant where a publisher receives information that disputes the proposed allegations, but proceeds without revealing the broader factual basis on which it intends to rely. Here, Davies J treated the failure to provide information about any other transactions and the program itself as potentially relevant, while preserving the plaintiff's burden ([31]-[32]). The judgment does not make non-disclosure a standalone rule of liability.
The provided text is the 16 March 2012 decision itself and contains no later judgments addressing its treatment by other courts. It is therefore not possible, from this source alone, to say whether a later court followed, distinguished, applied or limited Menulog v TCN Channel Nine.
Davies J did discuss several earlier authorities. He relied on AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd for the distinction between defamation and injurious falsehood, the plaintiff's burden on falsity, and the relevance of the absence of evidence justifying an imputation ([21], [23], [27], [33]). He referred to Palmer Bruyn & Parker Pty Ltd v Parsons on the difference between the tort and defamation and on malice ([21], [23], [30]). Joyce v Sengupta and Schindler Lifts Australia Pty Ltd v Debelak were cited in the discussion of inferences of malice ([24], [30]). Australand Holdings Ltd v Transparency & Accountability Council Inc was cited in connection with the probability of damage required when restraining threatened publication ([33]).
Those citations show the legal sources Davies J used in reaching the interim decision. They do not supply a history of how later courts treated Menulog itself, and no such history appears in the supplied judgment.
The main open question was what the full program would actually say. The Court did not have the proposed broadcast before it, and Channel Nine's counsel could not tell Davies J whether the program would go beyond the Vecchia Roma incident ([18]-[19]). That limited the Court to the promotional broadcast and surrounding circumstances when assessing the threatened publication ([25]).
A further question was whether Channel Nine intended to rely on other transactions or evidence of a wider practice. Davies J reasoned conditionally: if there were other transactions, the absence of information about them could be relevant; if there was only one transaction, the promotional terms suggesting a systematic course could arguably be malicious ([31]). The judgment did not resolve which factual position applied.
The evidence would also need to be developed on Menulog's actual knowledge, the operation of its arrangements with Cuisine Courier, and what happened to the orders. Davies J considered that the material then available indicated that Menulog was a passive recipient of orders transferred to Cuisine Courier, but this was an interlocutory assessment, not a final factual finding ([29], [32]).
Finally, the injunction was temporary. Channel Nine indicated that, after having more time to consider the matter, it might seek to have the injunction dissolved. Davies J listed the matter for 21 March 2012 for further consideration ([35]). The judgment therefore left open the subsequent course of the interlocutory proceedings and any final determination of falsity, malice and damage.
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(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:-
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: 20 March 2012
Menulog Pty Ltd
TCN Channel Nine Pty Ltd
On Menulog’s undertaking as to damages, leave was granted to file the summons and supporting affidavit, and Channel Nine was restrained until further order from broadcasting the program, its promotional material, or material making the specified representations about Menulog; the matter was listed for 21 March 2012, liberty to apply on 24 hours’ notice was granted, and costs were reserved.