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

Background to the publications

1. The first defendant is a media company that owns and operates the radio station 2GB which broadcasts principally in the Greater Sydney metropolitan area, but distributes its broadcasts to 4GB in Queensland and numerous regional locations. The second defendant is an employee and broadcaster for the first defendant, and has a radio broadcast show that airs from 9am until midday, Monday to Friday. The shows are also uploaded to various online distributors including podcast services.
2. The first defendant also operates a website where snippets of audio, news articles and related material are posted.
3. The plaintiff complains in relation to four broadcasts on 29, 30, 31 October and 1 November 2019 and in respect of articles published on the first defendant's website on 30 and 31 October and 1 November 2019.
4. The plaintiff's complaint about the publications, identified in the form of the injunction it seeks, is that it identifies the defendants as saying that the plaintiff overcharges its customers for the services it provides, it rips off its customers, it engages in unethical and dishonest business practices, it steals from its customers, it charges its customers for services it does not provide, it targets vulnerable customers and it has been excluded from the Master Plumbers Association.
5. The broadcasts came about in this way. On 25 October 2019 someone from the second defendant's radio show telephoned John Hofmann at the plaintiff. The person followed up the phone call with a letter saying that the radio station had received a number of emails from listeners who had had negative experiences with the plaintiff in 2019. Some instances were provided of complaints that were made and questions asked in relation to those matters.
6. The plaintiff responded by seeking details of the specific complaints that had been made. The defendants answered by saying that listeners were not comfortable with the second defendant sharing their job numbers or any other identifying factor. The response accepted that this degree of anonymity limited the plaintiff's ability to answer in detail.
7. Later that day the plaintiff sent a lengthy response to the questions asked by the defendants. The plaintiff was only able to provide general information except in relation to one complainant. In relation to that complainant, the plaintiff said that it had checked all its job records from March 2019 and believed that it could identify the complainant. The plaintiff pointed out that the complainant had taken his grievance to the Office of Fair Trading, that there had been a ruling in favour of the plaintiff and that the complainant still had not paid an invoice rendered by it.

Legal principles

1. Before setting out the publications complained of, it is necessary to say something about the legal principles governing the tort of malicious falsehood and the granting of interlocutory injunctions where such tortious conduct is complained of.
2. In order to succeed on a claim for injurious falsehood the plaintiff must establish that the defendants have made a false statement concerning the plaintiff's property or business or goods and that the statement was published maliciously: Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69; DHR International, Inc a company incorporated in Delaware in the United States of America v Challis [2015] NSWSC 1567 at [31]. Since the plaintiff here seeks an interlocutory injunction, it must show a prima facie case on each of those elements. The defendants have quite properly said that they make no submission to the effect that there is no prima facie case disclosed on falsity or damages. However, they contest the plaintiff's submission that there is a prima facie case disclosed on malice.
3. In relation to the issue of what constitutes malice, my attention was directed to the Court of Appeal's decision in Gross v Weston (2007) 69 NSWLR 279; [2007] NSWCA 1. That was a case considering the defence of qualified privilege in a defamation case. The defendants submitted, however, that what was said by Hunt AJA at [52] was relevant for determining what constituted malice in a claim for injurious falsehood. I did not understand counsel for the plaintiff to demur in that regard. Acting Justice Hunt said this: [52] In my opinion, the joint judgment in Roberts v Bass [(2002) 212 CLR 1; [2002] HCA 57] is authority for the following propositions relevant to the present appeal: (1) Except where the defendant was under a legal duty to publish the matter complained of, the defendant's knowledge that it was false is ordinarily conclusive evidence that the publication was actuated by an improper motive. (2) Recklessness in the publication of the matter complained of does not establish knowledge of its falsity unless it amounts to wilful blindness on the part of the defendant which the law equates with knowledge. (3) Recklessness - when present with other evidence - may nevertheless be relevant to whether the defendant had an improper motive which actuated the publication. (4) If a plaintiff's case rises no higher than evidence that the defendant did not have a positive belief in the truth of what he published, there is no evidence that its publication was actuated by an improper motive. (5) The absence of a positive belief in the truth of what was published may nevertheless be relevant - with other evidence - to whether the defendant's improper motive actuated the publication, but it will not establish that fact by itself. (6) Where the plaintiff relies on the defendant's knowledge of the falsity of the matter complained of to establish an improper motive, it is unnecessary to identify that improper motive, as there can be no proper motive in those circumstances unless the defendant has a duty to publish the matter complained of.
4. Subsequently, although without reference to Gross v Weston, Brereton J (as his Honour then was) said in AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [31], [32] and [36]: [31] Again unlike in defamation, in injurious falsehood malice is also an essential element of the cause of action, to be proved by the plaintiff. While the notion of "malice" in the context of this tort is not easy to define [Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275, 291 (Pincus J)], it is a question of motive, intention or state of mind and it involves the use of an occasion for some indirect purpose or indirect motive such as to cause injury to another person [British Railway Traffic & Electric Co Ltd v CRC Co Ltd & London County Council [1922] 2 KB 260, 269; Browne v Dunn (1893) 6 R 67, 72; Dickson v Earl of Wilton (1859) 1 F&F 419, 427; (1859) 175 ER 790; Stuart v Bell [1891] 2 QB 341, 351; Shapiro v La Morta [1923] All ER Rep 378; Schindler Lifts Australia Pty Ltd v Debelak, 291]. The English Court of Appeal has said that the criteria for malice in injurious falsehood are the same as at common law for libel and slander [Spring v Guardian Assurance PLC [1993] 2 All ER 273, 288; reversed on other grounds Spring v Guardian Assurance PLC [1995] 2 AC 296]]. Its content has been variously described as "an intent to injure another without just cause or excuse" or "some indirect, dishonest or improper motive" [J Fleming, The Law of Torts, 9th ed (1998) LBC Information Services at 780; Palmer Bruyn, 423 [108] (Kirby J)], or "a purpose or motive that is foreign to the occasion and actuates the making of the statement" [cf Roberts v Bass (2002) 212 CLR 1, 30; [2002] HCA 57, [75] (Gaudron, McHugh & Gummow JJ)]. It involves that the statement was made mala fide or with a lack of good faith. In this context, while a person who acts in good faith is not liable [Joyce v Sengupta [1993] 1 All ER 897], malice may exist without an actual intention to injure [Wilts United Dairies Ltd v Thomas Robinson Sons & Co Ltd [1957] RPC 220; Wilts United Dairies v Thomas Robinson [1958] RPC 94]. [32] As motive must often be inferred from what the defendant did or said or knew, malice is commonly proved by inference [Horrocks v Lowe [1974] 1 All ER 662, 669 (Lord Diplock)]. Malice may be inferred from the "grossness and falsity of the assertions and the cavalier way in which they were expressed": Joyce v Sengupta, 905-6. Proof that the defendant knew that a statement was untrue is ordinarily conclusive evidence that its publication was actuated by an improper motive [Roberts v Bass, 31 [76]]. On the other hand, mere lack of affirmative belief in truth is insufficient of itself to establish malice [Roberts v Bass, 31 [78]]. But malice can be inferred not only where the false publication was made with knowledge of its falsity, but also where it was made with reckless indifference as to whether it was true or false [Schindler Lifts Australia Pty Ltd v Debelak, 291; Browne v Dunn, 72; Greers Ltd v Pearman & Corder Ltd (1922) 39 RPC 406, 417; Shapiro v La Morta; Kaye v Robertson (1990) 19 IPR 147, 152; Joyce v Sengupta, 905]. The defendants submitted that mere recklessness was insufficient to found a conclusion of malice, citing Roberts v Bass, in particular the following passage (at 32, [77]-[78]): If the defendant knew the statement was untrue when he or she made it, it is almost invariably conclusive evidence of malice. That is because a defendant who knowingly publishes false and defamatory material almost certainly has some improper motive for doing so, despite the inability of the plaintiff to identify the motive [Clarke v Molyneux (1877) 3 QBD 237, 247; Mowlds v Fergusson (1939) 40 SR (NSW) 311, 329]. In Barbaro v Amalgamated Television Services Pty Ltd, Hunt J said that "In some of the older authorities, an absence of honest belief on the part of the defendant is treated merely as some evidence of an indirect motive which alone is said to constitute express malice, but the better view, in my opinion, is to treat the two as different kinds of malice". His Honour cited no authority for this novel proposition. Some years later, in Hanrahan v Ainsworth [(1990) 22 NSWLR 73, 102-103], Clarke JA said that, since Horrocks , "It has been accepted that if it is proved that a person has made a defamatory statement without an honest belief in its truth or for a dominant improper purpose ... malice will be made out". The knowledge and experience of Justice Hunt in defamation matters is well recognised. But with great respect to His Honour and Clarke JA, they erred in asserting that lack of honest belief defeated a defence of qualified privilege. There is no basis in principle or authority for treating knowledge of falsity or lack of honest belief as a separate head of, or equivalent to, malice. In the law of qualified privilege, the common law has always regarded malice as the publishing of defamatory matter with an improper motive. Knowledge of falsity is "almost conclusive evidence" that the defendant had some improper motive in publishing the material and that it actuated the publication. That judges have treated knowledge of falsity as almost conclusive evidence of malice is no ground, however, for treating it as a separate head of, or equivalent to, malice. In some circumstances, lack of honest belief in what has been published may also give rise to the inference that the matter was published for a motive or purpose that is foreign to the occasion of qualified privilege. Nothing in Lord Diplock's speech in Horrocks supports treating the defendant's knowledge or lack of belief as a separate head of, or equivalent to, malice. Indeed, Lord Diplock expressly said [[1975] AC 135, 149-150] that, if it is proved that the defendant did not believe that what he or she published was true, it was "generally conclusive evidence" of improper motive. … [36] In my opinion, the above authorities establish that although mere carelessness or lack of honest belief in the truth of what is published is not conclusive of malice [Roberts v Bass, [78]], reckless indifference as to the truth of what is published, as well as knowledge of its falsity, will justify an inference of malice.
5. This judgment was recently quoted with approval by White J (as his Honour then was) in DHR International at [32].
6. Because the issue on the present application is whether there is a prima facie case on malice and because it is asserted, partly, that malice is demonstrated by taking account of how the issue developed in the broadcasts over the four day period, it is regrettably necessary to set out the entire transcript of the broadcasts and the articles. Highlighted portions assume relevance when considering whether there is prima facie evidence of malice.

Broadcast on 29 October 2019

1. The following is the transcript of two segments of the program broadcast on 29 October 2019: Presenter: ...things haven't changed for the better, when they should. Look, last week I received an email from Lester in Sydney raising concerns about a plumbing company they'd engaged, he wrote "I enjoyed your work concerning the plumbing detectives, could you do a similar piece on Omega Plumbing, it seems to me they're doing the same thing. I got ripped off of [sic] seven grand for a sewer blockage that wasn't even on my property. I should declare the company involved, Omega, did previously advertise on this station, and I'm told by sales they no longer advertise and we were the subject of many complaints, apparently about Omega, which they allegedly rectified. Well, we shouldn't be the ombudsman or the department of fair Trading. We're happy to do it, but we shouldn't have to rectify mistakes made by advertisers. Anyway, this is not the first time this company's been brought to my attention, so whether they're an advertiser or not, I've advised the sales team that I need to talk about them. Other people have raised concerns about overcharging, underqualified staff even doing unnecessary work. Now, my team got in touch with Omega Plumbing, also known as Omega Home Services, they've denied any wrongdoing. They say, and I quote; "our business is primarily an emergency response business. This means we regularly have to give our customers bad news, the repair can run to thousands of dollars. This can sometimes be misconstrued." They've also rejected any claim of underqualified staff. Omega [is] also deny pressuring customers for unnecessary work and reject suggestions any of their staff are misleading. They told me, "our mantra is simple; do not offer anything a customer does not want, need or cannot afford. We take this seriously along with our core value of liability, quality, safety, positivity and service." The company website, I know, says they're master plumbers, which would indicate to me they're members of the Master Plumbers Association. But after doing checks, they've been excluded from the Association for a long period of time, apparently. But we've also had confirmation from New South Wales Fair Trading an investigation is underway into the company. Upon checking Fair Trading's public database, we discovered Omega Plumbing has been issued now with eight infringement notices in the last year, for things like demanding excessive deposits and not having the right insurance. So, eight times in the last year, Omega plumbing has been issued with eight infringement notices. Now, given they advertised on the station previously, I would warn people [of] dealing with these people until the Department of Fair Trading have completed investigations. And you need to be careful because they trade under many, many names; Omega Plumbing Solutions, Omega Home Services, Omega Bathrooms, Superior Hot Water, Omega Drains, Super Drains, Superior Drains, Rapid Repair Drain Service, Rapid Repair Electrical, Rapid Repair Hot Water, Rapid Repair Plumbing, Omega Heating and Cooling, Omega Service Solutions, it looks to me for all the world like Omega have copied a business plan from the Plumbing, Electrical and Air-conditioning Detectives. Obviously I won't be doing their commercials. 131873 is the open line number and I advise people not to deal with them and check the Fair Trading website to see there have been eight offences in the last 12 months in relation to them, over a number of issues. 131873 is the open line number, 2GB.com/4BC.com.au I've got some good news if you like, Big Mac's now declared interest, they're one of our sponsors, they …

Broadcast on 30 October 2019

1. The following is the transcript of a number of separate portions of the broadcast on 30 October 2019: Ray: ...on Omega Plumbing yesterday I've been inundated with a series of complaints about overcharging, and I'm going to talk to the Minister for Fair Trading - even though he's not called that anymore, but that's what he is - in New South Wales. One I received covering documents proving what my listener is alleging [I] would suggest if you need a plumber in an emergency anywhere in Sydney you'd be giving this mob, Omega, a wide berth. Their total quote for relining sewer pipes came to almost $40,000. Sensibly the customer said, "Chewy on your boot." He went, would you believe, [to] another sponsor of ours, The Drain Man. Now, this Omega mob did sponsor here … l … I wouldn't welcome them back on my program any time in the foreseeable future; we're not that desperate for a quid here I wouldn't think, and I'll be making that point. But The Drain Man. You know, The Drain Man. Well, The Drain Man - I didn't know about this, but this particular listener went to The Drain Man; three and a half grand The Drain Man charged as opposed to Omega Plumbing, 39 and a half thousand dollars for the same job. Um, and I'll be talking to the Minister for Fair Trading who's dealing with complaints about this mob at the moment. And would you believe, a number of my listeners said yesterday they had no luck in contacting Omega Plumbing until all of a sudden yesterday when I started talking about them and one of the bosses started ringing around saying, "Oh, look, we need to help you and sort you out." Well, I'll tell you who'll sort you out, Department of Fair Trading. Anyone that deals with Omega Plumbing is as mad as a cut snake because they're just like The Plumbing Detectives; they're thieves. And I'll illustrate that via paperwork I've got in front of me in a mo... … Now, I mentioned Omega Plumbing as well, and uh, this comes from a listener, among many complaints, but this is - this is perhaps the most noteworthy. "Uh. we're not whingers but today we've listened to your program..." that's yesterday "...to the issue of Omega Plumbing. I want to write to you to support your case against this company if they go to a Tribunal." They'll be going to a tribunal. Um, "I discovered some spillage in our garden from sewage pipe overflow. The first available plumber to answer my telephone call was Omega. They came the same day, inspected the problem. I paid them for coming out, the call-out fee. Informed that … informed that further investigation was needed, they'll carry out the following day, give us a quote for the repair. A different guy came, inspected drain pipes again, painted a very grim picture of all the broken pipes. Anyway, according to them the entire sewage pipes needed relining. They gave me a quote, wanted me to sign on the spot. I would not. The following day I arranged another plumber, The Drain Man, one of your advertisers. They requested upfront payment, which I paid for the call-out fee obviously. They came and informed me there was a small part of the pipe which needed to be relined otherwise the rest was okay and would be okay for many years to come." So, this listener has sent me the quote and it's written in an almost childlike script, very unprofessional, from one of their technicians. It's dated the 1st of the 10th, 2019. "Option 1, reline from vertical dropper to boundary trap, $16,625. If you're a member..." whatever that means "...it's $14,144." If this is a club that they're members of I don't want to be a member of that club I can tell you to coin Groucho Marx. "Option 2, reline from [something] Fixture..." I can't read that "...to main sewer line, $24,920. Total cost $39,064. But there is an option for a member, if you're a member of this organisation, $33,000." Anyway, a much more professional quote comes from The Drain Man. "Clearing and relining." So, it says. "To clean the section of the drain..." which is all typed out "...to be relined with high-pressure water jet to reline from the 1.7 mark to the three metre mark downstream..." and so it goes on, "Conduct a final camera inspection of the relined section of the drain, record the vision and provide you with a copy of that vision." So, here it is, 2nd of the 10th, the day after the other mob made the quote. "Including GST, $3,564." I don't need to tell you which quote the gentleman went with. "The Drain Man got the mob and completed it successfully" according to our listener. But there's something drastically wrong when a plumbing company wants to charge someone $39,000 for a job that really costs $3,500. … Ray: As I said, I would avoid this mob, Omega, like the plague. Graham says from Old Toongabbie "Your topic about Omega Plumbing." Earlier this week they had a letterbox drop of a brochure from the same mob. "Various deals including free CCTV camera inspection as well as the $50 discount offer. Judging by what you've had to comment on both yesterday and then today I'll disregard the offer and suggest everyone else who received the brochure do the same." Thank you, Graham; that would be solid advice. 131873.2GB.com. Ron, g'day. Ron: Hello. Ray: Yes, Ron. Hello. Ron: Ray, Omega is the worst word I've ever heard in my life. Ray: What happened with you and Omega? Ron: Oh, mate, it took over a week to get a hot water system in and a leak fixed up; a little leak. The plumber came out after about two days. Two days, mind ya. And they just, uh, fixed the leak up and uh, they left and I'm waiting ... we found out, hey, we've got no hot water still. And he said, "Oh, you need a hot water system." I said, "That's what I said." For four days we went without a shower - Ray: Mm-hmm. Ron: - and we're lucky I had a mobile, uh, little home so we could have showers out there. Ray: Mm-hmm Ron: But the-the different prices they were giving. And eventually the fellow came out to get the money and I had a battle royal for about nearly an hour with him trying to get the price down. Ray: What-what...? Ron: I can't remember the price, Ray. Ray: Yeah. Ron: I should know because I work for Tradelink. But I was so - Ray: Well, listen, Ronnie - Ron: - frustrated. Ray: - Ronnie, I want you ... you're upset. I want you to go back, I want you to get me the price they tried to charge you and give me all the details and we'll pass it onto the Minister for Fair Trading now called "Better Regulation" but it means '"Fair Trading." So, just stay there, Ronnie. I don't want you to be upset but I want to make sure that you're fixed up. Now, the-the calls just keep coming in about this mob. G'day, Paul. Paul: Hi. Um, yeah, my ... I just want to tell you, Ray, after listening to what, uh, you've been saying about Omega, my partner had a similar experience. With all that wild weather we had just recently a tree came down and it took out two power poles - Ray: Mm-hmm. Paul: - so, there was no power in the street. Um, the neighbour thought he was doing the right thing and called Omega out and said, "Oh, go to the neighbour next door, the lady next door" and the guy had, uh, a similar sort of thing, the silver, gold and platinum club price. And uh, the - uh, another price if you don't join a club. And plus you get hit with the call-out fee. Now, they are clearly exploiting people that have got to make a decision on the spot because - Ray: Yeah. Paul: - because it's an emergency; you've got to get it done or else you've got no power. They-they go on about "Oh, if you go through insurance the insurance company will take "three or four months." Ray: Right. Paul: Um, and... Ray: So, this is electrical; this is not plumbing, this is electrical you're talking about, right? Paul: This this is electrical but it's the same company just a different group. Ray: Yes, I know that. But yeah. okay. Yeah, look, they've got the same method as the other mob we've been after, The Plumbing Detectives, Plumbing Airconditioners, Plumbing Electrical, uh. Detectives Electrical, all the rest of it. I mean the same, same way of dealing with people. It's almost verging on extortion and we'll be identifying these people. I believe that at their, um, base yesterday at north-western Sydney when we started talking about it they went into a real frenzy and started to ring people who they had ignored for weeks and weeks and weeks about complaints trying to play catch-up. But the Minister - I-I think the Minister needs to shut them down; that's what I think the Minister needs to do. He needs to really be strong on this one. Paul: I 100 per cent agree. Um, they just - they're too ... it's just exploitation and uh, at-at the vulnerable, and um, plus you know they're just-they're just a bad company to deal with; that's all I can say. Ray: Good on you, mate, well done. Thank you for the call. 131873.2GB... … Ray: ...com. 4BC.com.au. Um, one of my, uh, listeners said, uh, "This Omega mob, do they go by other names? Omega Home Services, are they..." Yes, they are. I went through it yesterday. And these are the people to avoid because they have the same business plan as Plumbing Detectives, Plumbing Aircondit... or Detective Airconditioning, Detective Electrical. Uh, Omega Plumbing Solutions, Omega Home Services, Omega Bathrooms, Superior Hot Water, Omega Drains, Super Drains, Superior Drains, Rapid Repair Drain Service, Rapid Repair Electrical, Rapid Repair Hot Water, Rapid Repair Plumbing, Omega Heating and Cooling, Omega Service Solutions. So, you know this is done to dupe people, to suggest that, you know, if you go to Rapid Repair Drain Service "Oh, no, we're not Omega." They're all owned by the same people. So, as I said, avoid them like the plague. One of my hard-working plumbers says to me "Ray, about a year ago they attended a job for a fellow I know and told him he needed his pipes dug up. seven and a half grand total cost. He called me. I went down with a camera, found absolutely nothing wrong. Um, I did the job for 750 bucks. Um, again over-charging. Um, I could find nothing wrong with my camera despite examining it for four hours. And they get ... well, they're cowboys, mate, and they need to be put out of business." R... … Ray: ...the program. "Recently we had a major blockage in our sewer. We have a friend who's a plumber who explained that the cost of relining the damaged price is calculated on how many metres are required." "The reline will cost you $550 a metre." "We had 25 metres. With additional set-up costs our bill was around 20K. They're all about the same." Well, Peter, of course, if you need a complete reline it will cost you that sort of money. But what we've been typifying this morning is over-quoting, saying you need a complete reline when, in fact, you need maybe three metres or in some cases four metres, but certainly not 25 metres. So, uh, you're not comparing apples with apples but rather apples... … Ray: ...says at West Pennant Hills "Omega employ many people, hardworking people, so stop with the assassination. This is hurting a great many employees and their families. It's untrue." Well, Deborah, I notice from your mobile number you don't answer it; in fact, it's not connected. I also notice your address is false as well. So, Deborah, if you're writing from the headquarters of Omega do me a favour, bugger-off. … Ray: ... 131873. 2GB.com. Deborah, I'm sorry if it's impacting on the hardworking people who work for this mob but at the end of the day if they're stealing off our listeners we've got to identify them and try to do something about it. … Interviewer: 131873 is the open line number, 2GB.com. I told you yesterday about this dodgy company, Omega Plumbing but they go by a stack of other names as well, Omega Plumbing is just part of it. Omega Plumbing Solutions, Omega Home Services, Omega Bathrooms, Superior Hot Water, Omega Drains, Super Drains, Superior Drains, Rapid Repair Drain Service, Rapid Repair Electrical, Rapid Repair Hot Water, Rapid Repair Plumbing, Omega Heating and Cooling, Omega Solutions or Service Solutions. We told you about this, we had received emails previously, they were previously advertising, I'm told, and surprisingly our sales department told me they had many complaints during that advertising campaign. Thankfully it's over. Hopefully it won't be back. I firstly got a note from a listener who said "I enjoyed your work concerning the plumbing detectives, could you do a similar piece on Omega Plumbing? It seems they're doing the same sort of thing. I got ripped off to the tune of $7,000 for a sewer blockage that wasn't even on my property." Now, I have declared they previously advertised on this station, I've told you they're currently under investigation by the New South Wales Department of Fair Trading. I've told you that on their website they call themselves "Master Plumbers" but they've been excluded from the Master Plumbers Association from a number of years. They've copped eight infringement notices over the past 12 months for things like demanding excessive deposits, not having the right insurance. Well, since I exposed Omega Plumbing, also going by other names as I've mentioned, including Super Drains, Omega Home Services and many, many more, I've been inundated with emails and calls from listeners who've dealt with them. Now, those emails include the most remarkable confirmed allegations. When I say "confirmed" I've got the paper work in front of me. This is perhaps the worst one. It's a gentleman who asked them to come out and look at some blocked drains. They came out, he paid a call out fee, which was quite substantial, given it's a call out fee, but then he got a handwritten quote from Omega Home Services and it was for re-aligning from vertical dropper to boundary trap and a few other things I can't read, it's almost illegible. That was a total of $16,000. Option two: reline from something fixture, I don't know what it says, to main sewer line, connecting to existing re-line. Three: robotic junction something, I can't read that. The option one and two combined; $39,064, but if you were a member, whatever membership means, and plus GST by the way, so it's another $3,000 or $4,000 GST, $33,000. So, my listener paid them for their callout fee and said "no, we won't be proceeding." So, by sheer coincidence, and I didn't know this when I first started dealing with them, they called another sponsor: the Drain Man. And they came out and gave a handwritten - or rather, a typed quote as opposed to a handwritten quote including the long term solution to reline sections of the sewer drain, to clean the section of the drain which is to be relined with high pressure water jet, to reline, from the 1.7 mark to the 3m mark downstream with the inspection to reline the 2.8 mark to the 3. Mark downstream to the inspection, opening located to the rear left of the property, second set of stairs to conduct a final camera inspection of the reline section of the drain, record the vision and provide you with a copy of the vision that will show the line section of drain we've repaired. The total cost $3,200 seems reasonable to me, compared to $39,000, with GST of 324 bucks total, $3564. So one organisation, the Drain Man, total price 3,500 including GST, Omega, over $40,000. This one's just come in, from Alyssa in the Eastern Suburbs of Sydney; I called Omega out to fix a leaking toilet. They said I need to change the cistern it would cost $500 plus. I took pictures of the cistern and leak and took it to Reece Plumbing Supply, they gave me a washer for $2 and instructions how to replace it. $2 and 10 minutes later it was fixed. This sort of overcharging continues. The Minister for Fair Trading, now known as the Minister for Better Regulation in New South Wales, Kevin Anderson on the line, Minister, good morning. Respondent: Good Morning, Ray. Interviewer: Has someone bought this mob to your attention previously, Omega, or are we the first ones to talk about it? Respondent: So, you're the one that has shone the spotlight on it fair and square. I can tell you that they are under investigation by Fair Trading and that investigation is continuing. So we are aware of what they're doing. Interviewer: What's the nature of the investigation, is it simply overcharging or are there other matters involved? Respondent: There are other matters involved, Ray, it's not just about overcharging and given the fact that there is an investigation underway, what I don't want to do is jeopardise that and let them get off the hook, so what I want to make sure that we do is stay on track with that investigation and if they have and prove to have done the wrong thing, like now the countless calls and emails that you've received and obviously from Fair Trading as well, they should have the books thrown at them, and let's see how that plays out. Interviewer: So should alarm bells go off when we have organisations, and I dealt with the Plumbing Detectives as you know, previously, with all the plumbing electricians and air-conditioning detectives and something else and something else, they had about 20 names: should the alarm bells go off when companies try to use all these different trade names? And I've got here one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen names starting with Omega Plumbing Solutions, Omega Home Services, Omega Bathrooms, Superior Hot Water, Omega Drains, Super Drains, Superior Drains, Rapid Repair Drain Service, Rapid Repair Electrical, Rapid Repair Hot Water, Rapid Repair Plumbing, Omega Heating and Cooling, Omega Service Solutions, should that ring alarm bells for members of the public? Respondent: Yeah, look, I've been on their website as well, had a look through and you're right, there's lots of different arms, it's like an octopus and whether each particular arm of that business operates independently I don't know, but it looks pretty good on the website, but you know, if it's too good to be true it generally is. These guys - and again, Ray, I can't say too much because I do not want to let them get away with what they have been doing if we jeopardise the investigation, Fair Trading are on it, and I'm very happy to come back to you with progress on how that works and how it plays out, but if they've done the wrong thing then they should feel the full force of the law and ultimately, the people who have been ripped off, then I think they need to be brought into play as well. Interviewer: In relation to the action you can take, without reference to this particular organisation, what powers are available to you as minister for better regulation or Fair 'Trading? What can you ultimately do? Respondent: 'There are penalties including fines and/or jail time or both. Interviewer: I mean, one of the things and one of my listeners who hasn't given her real name says "there's really hard-working people there" I mean, well, the part of it all is I've got a name here on the quote for $39,000 for a job that costs $3,500. I mean, someone going out and doing that, even though they're not the owner of it, they're part of a wrought [sic]. I mean, if someone's going to go out and give a handwritten quote for $39,000 knowing the job's only worth $3,000 or $1,500 or $2,000, I mean, even though they're only an employee, they're part of the problem. Respondent: But if someone puts a quote in for $39,000, hand on heart, if you do that, how-the hell can you sleep at night knowing, you know, that the other job, as you said, with the Drain Man, they had a $3,000 quote, you know there's a massive discrepancy - well, you know in your heart, like you know when you go -whether you get your car done or whether you get a service or a trade in, you know if you're getting touched up, you know it's not quite right and you feel it in your gut, you're going "I'm just not sure about this, mate. I'm just going to get another quote on it." So if you think it's wrong, if you think you're getting touched up, stop, get another quote, and if you think you're being ripped off or have been ripped off, report it to Fair Trading. And look, if you know in your heart, you get a feeling and you just go "this is crap -" sorry Ray - Interviewer: No, no, it is crap, don't apologise, it is crap. It is crap. I mean, one of the things is, you know, in my area, there would be six or seven plumbers that I know, not by name, but recommendation who I could use and they're local trades people, so if I have a plumbing or electrical problem I've got three or four people to go to depending on how busy they are, they'll come out and fix the problem as quickly as they can. But someone says to me "Wayne, I always find it best to use local trades people." Now, they're [in the problem] as well because what happens they'll list themselves on the internet, just say they're based at Thornleigh and you're at [Bondi], you go and say "best plumber in Bondi" and they pop up. You know, they're able to, in some way illustrate - Respondent: Manipulate Google, yeah, absolutely. Manipulate Google and their location devices to say that they're nearest to where the action is. Interviewer: Exactly. Exactly. Respondent: Yeah, yeah, yeah. Interviewer: Okay, well I'll leave it with you, I know that you're on a difficult path to make sure this all gets pulled together, but in the meantime I just - I can't stop people ringing me because there are hundreds of thousands of people who don't listen to the program and they go out there, they ring them and then all of a sudden they say "oh, Ray Hadley was talking about that, you'd better ring him" and that's what happened with the Plumbing Detectives, when I started to identify them and we went out and told people, then I started to get an tsunami of emails from people who didn't hear me warn them and say "you wouldn't believe it, I've done this" and it's a bit like Viagogo, you know, you want to buy a ticket to the grand final or to a concert and I get all these emails from people saying "I paid $700 for tickets that are worth 180 what do I do now?" Well, they're based in Switzerland and despite the best efforts of your predecessor, [Matt Keane], we can't do too much about them either, except keep warning people "if you go to the search engine and something called Viagogo comes up, run a mile! Shut it down and go somewhere else." Respondent: Well, we fixed that, the [ACC] is shut that down, there's actually huge fines fir [sic] Viagogo doing what they were doing, but you're right Ray, by the way, if it smells good, looks good, is good, then it's probably too good to be true, do your homework and if you think you're getting ripped off, put a stop to it. And quite often the flood gates will open; once one person starts to talk about it, they go "oh yeah, #metoo" and if that's the case, then that's got to stop." Interviewer: Okay. Appreciate your time, thank you, Kevin. Respondent: Thanks Ray. Interviewer: Kevin Anderson there, New South Wales, Minister for Better Regulation. … Ray: Uh, very simple, uh, for Deborah and others wanting support or not, uh, but she's the only one supporting Omega. If they start doing the right thing and acting responsibly as an organisation and having a corporate conscience, well, then we'd be happy to support them. But while they're ripping people off and have a business plan that makes sure people are ripped off we can't support them despite the fact that some of the people who work there might be decent people. But if the policy of the company is so poisoned that they want to rip people off in the manner that they've been ripping off for a number of years, by the look of it, to the extent that the Master Plumbers Association give them a wide berth, well, so should their customers give them a really wide berth. 131873, 2GB.com. Speaking of such things, have you got d… … Ray: ...dinkum. Making an elderly couple sign this agreement to get their lousy $300 back out of the $1500 … they gave you for doing absolutely nothing. Just incredible. 131873 is the open-line number. 2GB.com, 4BC.com.au. Coming up to seven minutes to 11.00, seven to 10.00 in Queensland. I think what I might do, uh, that -uh, with, uh, Deborah who's defending, uh, Omega, I might just inundate Deborah by her email address I've got here with all the complaints I received so she can pour [sic] over them before she starts abusing me in the future about these poor buggers who've been left in the lurch by Omega. So, Deb, thank you for your email address; I'll send that to you right now, the various complaints from all those listeners. You have a look at them and see who is in the right and who's in the wrong. 131873 is the open-line number. 2GB.com, 4BC.com.au. News in three and a half minutes. … Ray: .com.au. Took, I've had a call off-air from a company called Omega Fire Protection who specialise in fire safety inspection and maintenance in Sydney. They're receiving calls given their name and similarity of the name of the other mob. They're not in any way associated with Omega Plumbing, so please take note, Omega Fire Protection, just an unfortunate coincidence, have no connection with Omega Plumbing or their subsidiaries. So, uh, don't wipe them off your list, Omega Fire Protection they have nothing to do with the other mob. 13 1873 is the open-line number. 2GB.com. "I advertised for a person to put up five basic blinds. It took a lovely man two hours. He gave ... it cost me $120. I got a quote sent to me from one company saying if d take two men a full day, $1700" says Jenny. "You've got to shop around, Ray." Exactly. 131873. 2GB.com, 4BC.com.au. "Get into 'em, Ray. Watch your blood pressure. Someone's living high in the hog over the over-the-top profits being made there." 131873.2GB.com. "Are you sure it's not the same company or company directors as the Detectives?" No, it's not Gail; we checked all that out, uh, well and truly in advance, nothing to do with them. Uh, just the same sort of practices. 131873. 2GB.com. Click on the "Feedback" icon. "I recently had a problem with a hot water system less than three years old. Omega came out. I said I ... they said I needed a new-new system. 'The quote was for $1522. Eventually they charged me $2413 and my hot water still isn't working. When I phoned them, uh, they knew what was wrong. I had to get an electrician to check the regulator in the meter box. It was replaced free of charge by the energy supplier. Um, so, Omega replaced the hot water system safe in the knowledge that the problem was a regulator, not the hot water system. It cost me $2413." Dear, oh dear, oh dear. 131873. 2GB.com, 4BC.com.au, if you would like to join us. "Are you sure they're not affiliated with the Plumbing Detectives?" says a listener in regional New South Wales. As we understand it, it's not. … Ray: "...that work for Omega Plumbing and the other names involved, they're not better than their employee. I hope Fair Trading check if the contractors are licensed because if they're ripping people off they shouldn't be blaming their employer because they're part of the wrought [sic]." Um, yeah, Max, l-I understand what you're saying. Um, Deborah, by the way, has written to me again; she's very sad, Deborah. She's called me a bully and she said, mm-hmm, "Everyone has to live on earth in peace. You've made my day so sad. Thanks for that." Well, Deborah, I'd rather be sad, not for you, but for the 90-year-olds being ripped-off by this organisation to the tune of $1500, among the many other people being ripped-off. So, Deborah, what I'd like you to do, if you're sad, is spare a thought for people in a much worse position from you because you haven't been ripped-off. 131873 is the open-line number. 2GB.com, 4BC.com.au. Birthdays today... … Ray: Um, Shane has sent me a detailed note about Omega Plumbing, I think it is, and uh, his poor mother, um, who has likewise been, uh, dealt a severe blow in her dealings with it. So, um, I'll forward that to all my staff, Shane; it's going to take a fair while to go through all of that and we probably won't get it today given we're only here for another 23 minutes. But we'll certainly, uh, deal with it tomorrow. Uh, another one of the Omega debacles. "I've been trying to get justice for my elderly mother for a while, no avail. Uh, please use this information to expose they're a corrupt, unethical mob. Keep up the great work" says Shane. Thank you, Shane. I notice in one part of the letter - I don't know how much he's paid because I haven't gone through it all. But from August this year; it's the same standard letter sent to the elderly couple in north western Sydney where they agree to provide a refund of $71.00 and they agree only to give the refund if "(1) The parties both forfeit rights to seek further compensation through alternate methods including, but not limited to, Fair Trading NSW, NSW Civil Admin Tribunal, triple - CTTT and other agencies; and (2) The parties both enter a non-disparagement agreement. Both agree to take no action, which is intended or would reasonably be expected to harm both parties or their reputation at which reasonably..." blah, blah, blah, blah. "Social media, media review or radio." Um, so, that's a stock-standard letter. They must send a lot of them out offering paltry, of course, refunds based on large amounts they've extracted from elderly people. So, mate, we'll deal with that. I'll go through it in some detail when we... … Interviewer: ... or 11.00 in Queensland. And so the Omega fiasco continues. Yet another email from yet another listener, uh, many of them not getting ripped-off because they simply refused to proceed. But this particular lady got them out to, uh, have a look at, uh, some blocked drains, sewer pipes I believe. She paid $390 for a high-pressure jet CCTV and then they gave her a quote. And uh, it's handwritten again, almost illegible. Uh, "Extensive jet and CCTV on sewer to clear all tree roots, install section reline. $6480. Carry out two sections of reline, $10080. Carry out vapour [something or other] on sewer line $1840." So, I guess we're looking at a quote of what looks to be somewhere between 10 and $16,000 according to this listener. And she tells me that what she did next was she phoned a father/son plumbing outfit locally; they did it for $240. That's perhaps the biggest difference I've encountered so far in the last two days; $240. Now, one of my listeners makes a very good point, and I appreciate him making the point. Uh, he says, um, that "What you need to do, Ray, in relation to his, you'll find everyone in their area has one of those plumbing wholesaler/retailers Reece Plumbing or you know, or even I guess Bunnings have a Plumbing department there, who deal with plumbers, reputable plumbers, all the time. So, here's the tip..." he says "...given that I work in the industry." Why don't people simply, when they want a job done I guess when it's an emergency it's a bit different. But if they want a plumbing job done simply go to that local outlet, Reece Plumbing or your local you know plumbing supply shop who deal with these people all the time and say, "Mate, can you give me the name of a reputable plumber? Or even talk to your friends. Talk to your son, your daughter, you know people in the area "Do you know a good plumber?" "Oh, yeah, Bill. He's down the road. He did a job for me once, he's a really good bloke and he's got two young apprentices, and go and give him a yell. Give him a yell. I mean that's what people need to start doing because there's no ... and if you get something in the mail that's to stick on the fridge; I don't care what it is. I know there are some rep-reputable people that deal .. but you can't take the risk; just put it in the bin. Absolutely put it in the bin because more times than not it's something that will absolutely lead to, uh, you paying more than you should. 131873. 2GB.com, 4BC.eom.au. If you would like to join us pick up the phone, dial the number and have your say. Um, "Ray, on the basis that you won't identify me I can inform you about Omega Plumbing, that one of the Principals has another company; the company offer to sell business plan with coaching to other plumbers on how to target people and as best I can de-describe extract as much money out of them as possible. As a person in the same trade it makes me sick to think there are people ruining this great trade." Um, "Perhaps it's not Omega that copied your friends from Plumbing Detectives but maybe it was Omega that taught the Plumbing Detectives how to do it." Um, yeah, look, I've had a few other emails about this, um, and you're right. Uh, my understanding is the company is called Service Professionals Australia, and what one of the Principals of Omega does, he holds seminars where he allegedly coaches other businesses on how to target customers and then extract as much money as possible - legally, I would hope - from those customers. So, we'll put all these things to, uh, the Principal involved and see if we can get a response from him. Um, I'd love him to come on the program and explain to us how he simply does that, uh, in all good conscience. And I'm sure he'd be more than willing to do that seeing as he's a reputable businessman. Uh, we hope he is anyway. G'day, Joe. Joe: Hey, buddy, how are you?

Article published 30 October 2019

1. The following is the heading and text of an article published on the first defendant's website on 30 October 2019: 'This is crap!': Ray Hadley exposes more shonky plumbers ripping off listeners Ray Hadley has torn into Omega Plumbing, a dodgy plumbing business overcharging customers by thousands of dollars. Ray has heard from dozens of listeners being ripped off by Omega, who are quoting services at up to ten times the cost other businesses are charging. Minister for Better Regulation Kevin Anderson tells Ray NSW Fair Trading is currently investigating the company. 'They should have the book thrown at them," he says 'If they've done the wrong thing, they should feel the full force of the law." The extreme mark-up on their services was enough to put off some listeners, but Omega charged them upfront for the quote. Mr Anderson was irate, "if you do that, how the hell can you sleep at night?" Omega is trading under 13 different company names, making it even more difficult for customers to avoid their shonky practices. 'There's lots of different arms, it's like an octopus," Mr Anderson says. This latest exposé comes on the heels of Ray's tussle with the Plumbing Detectives last year. Listeners have been warned not to trust tradie companies on the basis of Google search results alone. A business can manipulate the system to make its website a top result, making them look more reliable than they really are. "If it smells good, looks good, is good, then it's probably too good to be true," Mr Anderson summarised. Ray had a stern message for Omega Plumbing. "Give them all their money back, because you did bloody nothing. And start acting like a reasonable company, and do the right thing by your customers. Because at this particular stage, you're just thieves."

Broadcast on 31 October 2019

1. The following is the transcript of the part of the broadcast on 31 October 2019 concerning the plaintiff: Earlier this week I told you about Omega Plumbing. We spoke about them briefly last week as well. This company was brought to my attention by a Sydney listener who raised concerns about their dodgy practices. Now, I declared, at the time - and I declare again - Omega Plumbing previously advertised on this station, I didn't read their commercials. Since then, I've been inundated with emails from listeners who've had shocking experiences with the company. I told you yesterday about an elderly couple who engaged Omega Plumbing because of a sewerage pipe overflow. The couple was given a quote of $39,000 without GST. And so they were pressured into signing on the spot. Luckily, they wouldn't sign on the spot. The next day, they engaged the services of The Drain Man which is a current advertiser with the station, I don't do their ads either, and The Drain Man charged them $3,600 as opposed to $39,000. And by the way, the $39,000 was not inclusive of GST. There was another amount, which was a bit less than the $39,000, I think $36,000, if you were a club member. I wouldn't want to be a member of anything to do with Omega, I can tell you. I also told you about an elderly lady who's been fighting to get a refund for a deposit she paid twice to Omega Plumbing. Not only has the company offered to repay only a small portion of the deposit, they also sent the lady a document that can be described only as a non-disclosure agreement. Now, I've noted a number of these and the offer is for $71, by accepting this refund and signing below, Omega Home Services and yourself, the parties, agree to the following in relation to the above number; the parties both forfeit rights to seek any compensation through alternate methods, including not limited to Fair Trading New South Wales Civil Admin Tribunal, the CTTT and other agencies; 2) the parties both enter a non-disparagement agreement, both agree to take no action, which is intended or [would reasonably be expected] to harm both parties or the reputation or which would reasonably be expected to lead to unwanted unfavourable publicity to the parties through any form of publication, social media review or radio. Worried about me obviously. So, we go there. Not only has the company offered to repay that, but a very small amount, $71, but they want that thing signed, she won't sign in. She's not the only person who's been sent this document. A couple of examples out of hundreds I've received over the last couple of days, there are cases of serious overpricing, dodgy work, questionable work practice, just to name a few. Yesterday on the show I said I'd given the owner of Omega Plumbing the chance to respond. The company accepted that offer but put a number of conditions down, before they would appear on the program. Now, we don't accept conditions here. We're going to get told what we can ask. It said "thanks for the email. Happy to facilitate an interview with our owner and founder. Would like him to come into the studio face-to-face? Obviously given the communication from Mr Hadley on his show and the calls you've had from some of our customers and their representatives, we'd appreciate some information on the names, addresses, job numbers so we can prepare to answer all questions put forward. As requested last week, can you please supply some information as it seems to be anonymous information." Well, it's anonymous to you, but not to me. I know who they all are. They've supplied - but I'm not going to tell you who they are. That's none of your business. "While we understand that not all questions will be pre-prepared, could you advise any questions that will be asked of Alan? Otherwise we need to take specific areas on notice." Well, no, we don't do - whether it's a prime minister or Alan, in this case, the company, we don't pre-prepare, because Alan's answers would lead to the next question, as I've said previously. Anyway, my staff responded and we won't be complying with their requests, so they came back over night and said "no, we won't be appearing." They declined. "With no information it makes it difficult to prepare for any kind of interview." Well, what about telling the truth? That's always a good fall-back position. You come on the program, whether you're a politician or the proprietor of a company, which appears to be one of dubious methods, and you tell the truth. That's always the fall-back position. So let me tell you, anyone that comes on this program for an interview, they've never even pre-prepared questions, not a minister, high profile people, not even a prime minister. Who does this fellow think he is? Overnight I was approached by former staff of Omega Plumbing and its many subsidiaries. Omega Plumbing Solutions, Omega Home Services, Omega Bathrooms, Superior Hot Water, Omega Drains, Super Drains, Superior Drains, Rapid Repair Drain Service, Rapid Repair Electrical, Rapid Repair Hot Water, Rapid Repair Plumbing, Omega Heating and Cooling, Omega Service Solutions. Those people who formally worked with this company told me about the company's practices and directives of staff and it's pretty shocking. They informed me that a number of staff are employed as service technicians, but the role is akin to being a salesman. The focus of the company is closing the sale, not genuinely fixing people's problems. In fact, I'm told the company flies in sale gurus from the U.S to teach them different tactics on how to deal with customers. Now, if you remember, in all the Omega Plumbing quotes I mentioned on air yesterday, there are always two prices; a regular price and a member price. Former staff have confirmed they're encouraged to sign as many customers as possible into the membership, which apparently costs more than $1,000. I think $1,200 has been mentioned to me. This membership entitles you to a free safety inspection, which I've been told is treated as an opportunity to find more work. And when business is low, Omega Plumbing will call these members and tell them their inspection is due. The company charges a fixed hourly rate of $550 per person, basically a labour fee, regardless of the level of qualification or experience of the technician. That means that Omega Plumbing, you're paying $550 an hour to do work on your home, could be a plumber with 30 years' experience, it could be a first year apprentice. These whistle-blowers confirmed allegations of overpricing. In fact, all of the former staff I've spoken to say they felt guilty working for Omega Plumbing because they knew they were charging way too much. But the staff at Omega Plumbing have targets. One former employee has told me his target for his first month was $60,000. He said some colleagues had targets or $90,000 or $125,000. Apparently Omega Plumbing has a handbook with fixed prices for all the different jobs they do. And there's another common theme in all the correspondence I've received from former staff, the company targets elderly people and affluent immigration communities. Now, as you know, I've spoken with the New South Wales Minister for Better Regulation, in other words, Fair Trading, Kevin Anderson on the show yesterday who confirmed once again, Omega Plumbing are currently being investigated. In the past year they've copped eight infringement notices from Fair Trading. The company has been excluded for a number of years by the Master Plumbers Association because they don't like the way they operate either. Now, as I said previously, there'll be an investigation by this radio program and I'm told now by current affairs, channel 9 are also getting inundated with complaints after they've sought answers from Omega Plumbing and from the proprietor. So, I'll take part in that presentation from current affairs sometime in the foreseeable future. I've indicated to them I'm more than happy to talk to them about my experiences via my listeners with Omega Services, Omega Plumbing, Omega Electrical Air Conditioning, whatever else they do. And to those people currently working at Omega Plumbing I'd say this to you; look at your conscience. I mean, there are plenty of people looking for good plumbers across the Sydney metro region at the moment. Do you really need to be associated with a company that allegedly preys on the elderly? Preys on immigrant families in wealthy areas who don't have English as their first language. Do you really need to do that? I know you've got to pay the mortgage, pay the rent, look after the kids and all the other things, but do you really need, in all conscience, to come home from work knowing that you spent the day ripping people off? Is that what sort of life you want to lead? I don't think so. Not if you're a fair and reasonable person. … Things to respond to. First of all he wanted to know all the questions I'd ask him and then he wanted me to give him a list of all the complainants. Well, there's two things we do here; we don't, offer a list of complainants who are going to the Department of Fair Trading so they can be targeted, point 1. Point 2, we have a Minister of the Crown, Peter Dutton, on very shortly this morning; he comes on every Thursday. He never gets a list of the questions I'm about to ask him. We've had two Ministers on the program from New South Wales Government in the past day; they don't get a list of questions. We've had the Prime Minister on the program in the last week and a half; he doesn't get a list of questions. So, some bloke running a company/electrical company in north-western Sydney, even though he thinks he's very important, won't be getting a list of questions from me. If he wants to plop himself down on the radio the first question will be "Well, mate, how do you feel about being a bloke who duds the elderly and charging them 10, 20 and 30 times more than a job's worth; how do you feel about that?" And the second question will be a statement. "You know, having you in the studio makes my skin crawl." So, if he comes in that's what he can expect, but he won't get a list of questions I'm about to ask him from Omega Plumbing. Sport. There's obviously a problem for Sam Burgess. He's been charged with intim... … Well, I think you might be wrong, Craig; I think he's well-versed in dealing with the media. But mate, I will never have a policy on this program of being pushed to the brink by people I'm going to interview by demanding questions. And I don't operate on the basis you say, "Give him some questions then there'll be others." No, if they want to present themselves on the program I don't give them forewarning what I'm going to ask because you see, many times what I ask is determined by what the answer to the previous question was. So, it's no good coming into a studio to do an interview with a list of predetermined questions because you must listen to the answers, and that leads to the next question. But I would never, ever succumb to someone demanding, whoever they are, be it the Prime Minister, the Treasurer or a politician or some bloke running a plumbing mob demanding to know what I'm going to ask him. Come in here and find out what I'll ask you, old mate.

Article published 31 October 2019

1. The following is the heading and text of an article published on the first defendant's website on 31 October 2019: Omega Plumbing silences the victims of their rorts Ray Hadley can reveal cowboy plumbers Omega Home Services are coercing dissatisfied customers into non-disclosure agreements. Ray has heard from dozens of listeners being ripped off by Omega, who are quoting services at up to ten times the cost other businesses are charging. One of Ray's listeners has sent him a copy of a document they received from Omega, after seeking a refund for an overpaid deposit. Not only were Omega intending to refund a fraction of what the listener deserved, the document also included a clause requesting they "enter a Non-Disparagement agreement" to "take no action .. to harm both the parties or their reputation or which would.. lead to unwanted or unfavourable publicity." The NDA also signs away the unhappy customer's right to take up their complaint with Fair Trading NSW. Ray has offered Omega's owner the right of reply. He initially accepted, then declined on the basis of Ray's refusal to provide questions and case details ahead of time. 'They came back overnight and said .'With no information, it makes it difficult to prepare for any kind of interview.' "Well, what about telling the truth? That's always a good fallback [sic] position."
2. Attached to this article was a form of the plaintiff's concerned with refunds that contained a clause to be signed by the person receiving the refund that they would not subsequently make a claim for compensation or publish adverse comments including on social media.

Broadcast on 1 November 2019

1. The following is the text of the broadcast on 1 November 2019 relevant to the plaintiff: Interviewer: I've spent much of the last week and a bit before that telling you about the questionable practices of a company called Omega Plumbing, also Omega Electrical, Omega Air Conditioning, they go by a stack of names, which I've enunciated here. Much of the information was provided to me by former staff, who decided to contact me after hearing me talk about the company on air. Of course, a lot of the information comes from disgruntled customers, or would be customers. Well, overnight, even more people have come forward. One is a local plumber in the Ermington area of Sydney West. He's alerted me to another Omega Plumbing business, they call themselves "Ermington Plumbers". It's not registered as an official business under the company's ABN, but at a look at the fine print at the bottom of the website confirms it's part of the Omega Service Solutions, one of Omega Plumbing's many subsidiaries. I've also been contacted by more former employees confirming what I told you yesterday and sharing more details about the culture within Omega Plumbing, and that culture is to make as much money as possible, in whatever way they can. Now, just on the plumber from Ermington, now, he's a sole trader, doing a good job, building up a good reputation, and in the area - and you know, that's what I told people, you want to find a plumber? Go to your local area, [someone will know one], the butcher, the fruit shop, they'll say "yeah, I know that bloke, he's a good plumber.'' So people go on the search engine, put in "Ermington plumber" his business doesn't come up, Omega does. Not the decent sole trader, but this company who is intent on ripping people off. A quick scroll through the owner's other business, Service [unintelligible 00:01:48] Australia makes the attitude pretty clean. I'm talking about the owner, of course, of Omega Plumbing. And because - if you go to his website there's a screenshot from the film "The Wolf of Wall Street" and there is [scil. it] says "don't say my prices are too high, just be honest, say you can't afford me, it makes more sense." That's on his Facebook page, the owner of Omega Plumbing. One former employee called the open line at the end of the show yesterday and told my staff he is prepared to speak with me about Omega Plumbing. We won't identify him by his real name, we'll call him Paul. Good day, mate. Respondent: Hi, how are you going? Interviewer: Good thank you. How long were you part of the business? Respondent: Several months. My stint with Omega was relatively short for obvious reasons, but, um, yeah, so ... I was there for long enough to pick up a few things and sort of realise the sort of company - or the animals that I was dealing with. So … Interviewer: Were you employed as a plumber, as a trader? Respondent: Well, that's the thing, when I first applied for that job, the idea - or the pretext was that I was going to be hired as a plumber. What I found out on the day of the interview is that I was actually going to be hired as a salesman, or as they call it, a tech, a technician. Um, so I thought that was a little bit strange, but I needed the job at the time. Um, what I found interesting is the, uh, the lack of information, or as they call it, information management, that they don't particularly offer or disclose too much initially. I think that's part of the actual culture there, I mean, it potentially starts with the employees and works the way down to the customers as well. So ... Interviewer: They put their focus, by the look of it, on sales and marketing, not necessarily relining your pipes, so to speak and they seem to have a policy of overpricing. And that's evident not from staff members, although staff members have indicated to me that's the case, but it comes from the customer base who - I mean, there's one famous one that I've dealt with this week where an elderly lady was quoted $39,000 plus GST and got it done by another plumber for about $3,500 with no justification for the $39,000 they quoted in the first place. Respondent: So there's definitely an emphasis on the actual price, most definitely. The way we - or the way they operate is they use an [option sheet]. The objective is to basically have as many options as humanly possible. You kind of have the first option, all the way down to, you know, option, say six, seven. It's usually encouraged that you have as many options as you can, giving the illusion that the customer has the freedom of choice, but in actual fact, you know, the price is significantly higher than what you would pay normally. In addition to that, there is a sense of urgency that is pushed onto the customer in terms of getting certain things done. So, you know, "if you don't get these things done today, the problem is going to be so much worse" and so therefore they're kind of forced or obligated to sort of sign on the line that very day and then you're then - your main objective is to basically get as much money on the deposit as humanly possible. So - and that's essentially where they get you. So the idea is that you would go in there, you'll take a large deposit, you know the customer is committed and you proceed with the job the following day or-or whatever. In fact, the way it usually works is the person that goes out there and actually upsells the actual job will be the technician. Usually it's a trained plumber or someone who's masquerading as a plumber but in actual fact you're a salesman. And so then, you know, you upsell the job, you leave the site and then another plumber, probably an apprentice would then come and actually complete the job in itself. Interviewer: See, I've got it in front of me - and this is a document from Omega - annual earnings goal, it starts at 150 and goes up to 325, the salary is always 80,000, that's the base salary, the bonuses go from 70,000 to 95,000 to 120,000 to 145,000 to 170,000 to 195,000. Now, I'll pick the - in your sales you're required to get to 70,000, you've got to upsell 1.1 million, if you want to earn 225,000 a year you've got to upsell over 2 million, if you want to get 275,000 a year on an 80,000 base with 195,000 bonus you've got to upsell 2.7 million. Respondent: Absolutely. Yeah. Interviewer: And this is a document we've obtained from people like you and that's the graph that shows exactly what you can earn if in fact you do as they tell you and upsell between 1.1 million and 3.5 million to earn 250 -or 325,000 a year. Respondent: Well, the culture there is actually quite interesting in that regard because they have these weekly, if not, um, fortnightly meetings where they promote, um, you know, the sales sort of mentality. And in actual fact, they would present you with, you know, bonus cheques and those cheques are kind of like fake cheques, but the idea is that you want to build competition amongst the employees and so therefore, you know, get issued a cheque and, you know, I witnessed one guy actually walk away with a $20,000 cheque in the course of a month in addition to his $80,000 base salary and whatever he's made over the course of the week, which is obviously other-other bits and pieces in terms of, you know, sales and so forth. Interviewer: Just shocking, you've confirmed exactly what we thought. I appreciate your time, a former Omega Plumbing employee. And they've confirmed, many people, that Omega, actively target the elderly and affluent immigrant communities. … Ray: ... person worked with him as well. Please don't identify me. Everything you've spoken about this company is true; don't relent on them. It's a toxic culture targeting the vulnerable. I've seen it first-hand. You're right about the Facebook page put there by the owner. Don't whinge if you can't afford it. Pressuring crus - customers into jobs 10 times what they should be charged. The owner dismissed the negative online reviews as fake alleging it was done by competitors to sabotage him. Um, just terrible; a terrible organisation. Keep up the fight against this selfish, arrogant organisation. Another one from a lady. Thanks for the exposé on Omega Plumbing. Let me set the scene. "Lose my job. Expecting twins in January. Had family coming to stay. Celebrating another child's Birthday. The toilet and shower started to overflow. We get a quote from this mob, $20,000, beaten down to $8000. Um, it's a temporary fix. I couldn't do anything else; I needed it fixed. Um, said they'd do it. Did it. Fifty per cent deposit. Worked for three days. Took a month to get them back. Predatory sales techniques. Three quotes on me as well. After listening to your program I've gone back to them and said, "I want 4K of my 8K back. The five-star Google reviews must be fake." Well, of course they are. "Must be fake." And another one. A-a fridge magnet this time directed someone towards them, and uh, taking advantage of a lady, 70. Thankfully her hus - her son, 36, was at home at the time and was able to intervene and save her. Um, they were talking about $15,000 for a job that should have been done for 1500. And there's email after email after email don-documenting the same sort of thing by these predators. Now, you wouldn't believe it, the Reverend Dr Matthew Murdoch Mills. … Ray: "...give other good, honest, hardworking plumbers like my husband a bad name and people should always get a second opinion even if it's an emergency. My husband would never treat anyone like that." Um, well, I'm sure he wouldn't. Look, most of the tradies I know, be they electricians, plumbers, whatever they may be, chippies, the like, you know, roofers, they're like, they're all decent, hardworking people; they're not there to rip people off. And you're right it does give people a bad name. Um, she says, "A while ago my husband was working on a house at Condor Park, south-western Sydney. A little old lady across the road came and asked the neighbour if the plumber could look at something at their house. They hadn't had water for three days. My husband went over when he finished the first job. They were a frail couple, piles of neatly stacked coins on the table. My husband fixed the problem. The elderly lady asked how much. My husband saw-saw the change on the table and refused any offer of payment. Um, he said, "I get paid with a hug today." Another happy customer; it made his and her day. Um, we've never paid one day of advertising; it's always been word-of mouth. He's a good man and many other[s] out there." Well, I'm glad you've written that because it-it-it typifies what I've been saying, the bulk of the trades are good, decent people and they shouldn't be brought down by the likes of this mob and other mobs like them. 131873. 2GB.com. Now, police hunting for an alleged sexual predator in Sydney's east have released more CCTV footage aft...

Article published 1 November 2019

1. The following is the text of an article published on the first defendant's website on 1 November 2019: Omega Plumbers employees making millions by targeting the elderly and immigrants Whistleblower 'Paul' tells Ray Hadley Omega employees earn hundreds of thousands in bonuses by giving customers the illusion of choice. 'Paul' worked for Omega for several months, "long enough to pick up a few things, and realise the animal l was dealing with." Despite applying for the job as a plumber, he discovered at the interview he was actually being hired as a salesman - or 'technician', as Omega refers to them - who 'masquerade' as plumbers to convince customers to spend more. The technicians then provide customers with a smorgasbord of options, "giving the illusion that customers have a freedom of choice." 'Paul' shared an example with Ray, an invoice he created during his time working for Omega, it details 'good', 'better' and 'best solutions, with a $2000 range across them. Even the cheapest option cost $7300 - or $6200 for 'members'. He also explains how technicians are encouraged to pressure customers into signing off on a deposit, by implying they're dealing with an emergency. "Your main objective is to basically get as much money on the deposit as humanly possible," The extent of Omega Plumbing's toxic, greedy company culture is revealed in a document sent to Ray, exposing annual bonuses of up to $245,000 for employees who rake in $3.5 million for the company. 'Paul' says he witnessed weekly sales meetings where employees are awarded 'fake bonus cheques' to encourage competition between them.
2. On 1 November 2019 the solicitors acting for the plaintiff wrote to the defendants complaining of the broadcasts and the articles. The letter endeavoured to answer the matters which the plaintiff identified had been wrongly stated in the publications. The letter demanded that by 4pm on 1 November 2019 the first defendant immediately remove the articles and audio recordings from the website and refrain from publishing or republishing any material capable of conveying the false statements identified.
3. It may be accepted that that letter was received by the first defendant after the second defendant's program went to air on that day.
4. At some time after receipt of that letter and before 5 November 2019, the audio recordings and articles were removed from the first defendant's website. On 4 November 2019 I had given leave to the plaintiff to commence the proceedings at short notice to the defendants.
5. On 6 November 2019 solicitors for the defendants wrote to the plaintiff's solicitors asserting that the evidence did not disclose any prima facie case establishing malice. They asserted that the material broadcast was substantially accurate and based on information obtained from a number of sources. They indicated a willingness to take down and not republish the broadcast and articles that appeared at specified pages in the exhibit HG-1 to the affidavit of Hamish Geddes sworn 4 November 2019 and not to publish any allegations suggesting that the plaintiff is not a member of the Master Plumbers and Mechanical Services Association of Australia.

Submissions

1. The plaintiff relies on the following matters to demonstrate malice. (a) In the broadcast on 31 October, the second defendant said this: If he wants to plop himself down on the radio the first question will be "Well, mate, how do you feel about being a bloke who duds the elderly and charging them 10, 20 and 30 times more than a job's worth;" (b) In the same broadcast the second defendant said this: And the second question will be a statement. "You know, having you in the studio makes my skin crawl." The plaintiff asserted that the plaintiff's officer was being ridiculed because he requested the questions in advance so that he could understand and provide substantive answers. (c) The defendants conducted a campaign supported and maintained without further enquiry and without regard to objective material. A campaign carries with it a suggestion of an intent to injure. (d) In the broadcast on 30 October 2019 the second defendant said: But if the policy of the company is so poisoned that they want to rip people off in the manner that they've been ripping off for a number of years, by the look of it, to the extent that the Master Plumbers Association give them a wide berth, … The plaintiff points to the defendants' acceptance that the statement that the plaintiff was not a member of the Master Plumbers Association was false. The linking of that false statement with the ripping off of people is said to constitute malice. (e) In the broadcast on 30 October 2019, the second defendant when addressing a listener said: I'd rather be sad, not for you, but for the 90-year-olds being ripped-off by this organisation to the tune of $1500, among the many other people being ripped-off. (f) In the article published on 30 October 2019 the defendants refer to: A dodgy plumbing business overcharging customers by thousands of dollars. Ray has heard from dozens of listeners being ripped off by Omega, who are quoting services at up to ten times the cost other businesses are charging. (g) In the same article the following appears: Omega is trading under 13 different company names, making it even more difficult for customers to avoid their shonky practices. (h) In the same article the second defendant is quoted as saying to Omega: Give them all their money back, because you did bloody nothing. And start acting like a reasonable company, and do the right thing by your customers. Because at this particular stage, you're just thieves. (i) Other assertions made with no basis such as the plaintiff targeting and preying upon the elderly and migrants, and charging 20 and 30 times what other plumbers charge. Coupled with this was the extrapolation from a few complaints to assert general wrongdoing.
2. The defendants submitted that coming back to the matter over four or five days with the rhetoric becoming a little more extreme could not be said to amount to an intent to injure and, therefore, evince malice. The defendants submitted that an enthusiastic belief in what is being published is not sufficient to amount to malice.
3. The defendants submitted that what was present in this case was a competition between dissatisfied customers and former employees on the one hand making complaints, and a company asserting on the other hand that it had good policies and procedures, and transparent pricing. In such circumstances an inference of malice could not be drawn in contradistinction to situations where there was knowledge of falsity, wilful blindness, or even reckless indifference.
4. The defendants submitted that extrapolating from a number of complaints to make general comments about the plaintiff's business did not constitute malice. The defendants submitted that if they had evidence of some complaints they were not being reckless in asserting problems with the company.
5. The defendants submitted that even expressing disgust about the way the defendants perceived the company was operating was not evidence of a malicious state of mind. The defendants submitted that there was no evidence that they knew the complaints were false nor were they recklessly indifferent to whether they were true or false.
6. The defendants say that a desire on the part of the defendants to stop misfeasance by a company on the one hand should not be confused with an intent to injure or malice on the other hand. The defendants suggest that it is legitimate for entities in their position to want to stop wrong practices even though it may be accepted that such action might have a negative effect on the business of the company. In that way the motive is not to ruin the business but to stop consumers dealing with a business that does not behave properly.
7. The defendants say that an injunction should not be granted in the Court's discretion. That is because it would prevent the defendants, but no other media organisation, from publishing almost anything negative about the plaintiff or its business when a Fair Trading investigation is ongoing. In that way, the result may be that the defendants would not be able to publish the results of that investigation if it was critical of the plaintiff.

Consideration

1. This is an application for an interlocutory injunction. To succeed in its claim for a permanent injunction or for damages, the plaintiff would be obliged to establish malice on the part of the defendants. However, the test on an interlocutory injunction is whether there is a prima facie or arguable case that the publications were made maliciously. The plaintiff in the present case does not establish that the defendants published the material with knowledge that it was false. The question of whether malice is established on a prima facie basis depends, in the first instance, upon the plaintiff showing recklessness on the part of the defendants. As is made clear in Gross at [52]: … (2) recklessness alone is not sufficient to establish knowledge of falsity unless it amounts to wilful blindness on the part of the defendant.
2. On the other hand, in circumstances where recklessness is present with other evidence or the absence of a positive belief in the truth of what is published with other evidence, malice may be inferred (as Brereton J noted in AMI at [32]) from the "grossness and falsity of the assertions and the cavalier way in which they were expressed", quoting Joyce v Sengupta [1993] 1 All ER 897 at 905-6.
3. The only evidence put forward by the defendants in the present case concerns what they were told about the plaintiff's membership of the Master Plumbers Association. That information was wrong as the defendants now accept. I cannot find, nevertheless, in the light of the conversation set out in the affidavit of Antonia Rosen with Paul Naylor of the Master Plumbers Association, that the defendants had knowledge of that falsity.
4. However, a number of matters establish that the plaintiff demonstrates a prima facie case of malice in relation to the publications.
5. First, the second defendant asserted that the plaintiff had been ripping off people for a number of years "to the extent that the Master Plumbers Association give them a wide berth". There was no basis in what was said by Mr Naylor to the defendants that any link could be made between a previous failure to renew the membership of the plaintiff with the Association and ripping customers off. That connection was made with reckless indifference to its truth, and, when coupled with the false statements that the plaintiff was not member of the Master Plumbers Association, is sufficient on a prima facie basis to amount to malice.
6. Secondly, the second defendant claimed in the broadcast of 30 October 2019 that the plaintiff went by a number of names and that this was "done to dupe people". None of the complaints aired before or after that time concerned the identity of the company with whom the complainants dealt. There was simply no evidence that the use of different business names or companies (it was never made clear which) was a relevant issue. In that sense the assertion that the various names were used by the plaintiff to dupe people was made without any belief in the truth of the statement. The "other evidence" to satisfy what is required in sub-para (5) of [52] of Gross is the fact that the complaints did not concern that issue. In that way it was an entirely gratuitous statement made without a positive belief in its truth.
7. Thirdly, in the broadcast of 31 October 2019 the second defendant said that his first question to the representative of the plaintiff who came on his program would be how he felt about being a bloke "who duds the elderly and charging them 10, 20 and 30 times more than a jobs worth." Nothing in any of the material that preceded or post-dated that statement lent any support to the plaintiff charging anyone, let alone the elderly, 20 and 30 times more than a job's worth. The allegation was reckless and there was a complete absence of material to justify its being made.
8. On the other hand, the defendants were entitled to assert that the plaintiff was prepared to charge ten times more than another plumber on the basis of one complaint comparing a quote of something between $33,000 and $39,000 with that of another plumber for $3,000 or $4,000. Of course, it cannot be determined at the present time if that allegation was justified because it is not known whether the same work was being performed. However that was one of the complaints made by a listener. I note further, of course, that the complainant was not charged that amount by the plaintiff because the quote provided by the plaintiff was not accepted. Much of the second defendant's commentary elided charging with quoting. In most or all of the specific examples given, the plaintiff's quote was not accepted.
9. Fourthly, there was the allegation made on a number of occasions that the plaintiff targets elderly people and affluent migrant communities. There was nothing in any of the material published that provided a basis for that repeated claim. It is true that there appear to have been two elderly people who claimed to have had difficulties with the plaintiff and the way it went about its business including its charging. That is an entirely different matter from a targeting of such people and others, and preying upon them, which goes way beyond two complaints from elderly people about the way they were dealt with. It is far from clear where the targeting of "affluent immigration communities" and "immigrant families in wealthy areas who don't have English as their first language" originated.
10. Fifthly, in the broadcast on 31 October 2019 the second defendant said that he had told his listeners the day before about an elderly lady who had been fighting to get a refund for a deposit she paid twice to the plaintiff. An examination of what was said the day before does not bear out any information suggesting that the woman had twice paid a deposit. Coupled with that was the statement in the article published on the website on 30 October 2019 where the second defendant told the plaintiff to give disgruntled customers all their money back "because you did bloody nothing". Nothing in the material earlier broadcast suggested that the plaintiff had taken money and done nothing. That allegation should also be seen with the assertion on 30 October 2019 that "they were thieves". There was no evidence to support any of those statements. It can be inferred that they were made without any positive belief in their truth.
11. Finally, there is the matter of the repetition together with the increasing rhetoric over the period. I accept the defendants' submission that returning to the subject over a number of days is not in itself any evidence of malice. The way the second defendant's program operates almost necessarily means that a subject will be returned to because of listener and other response to what is first raised. I accept also the defendants' submission that the mere fact that there was an enquiry being conducted by Fair Trading was no basis for suggesting that the defendants should not continue to air matters relevant to the complaints.
12. It is interesting, however, to compare the balanced tone adopted by the second defendant in the broadcast of 29 October where he fairly quoted from the written response provided by the plaintiff to questions asked by the defendants. It was in the days following that the allegations escalated by the use of highly colourful language such as "thieves", "extortion", "dupe people", "preys on the elderly", "having you in the studio makes my skin crawl" (even before the second defendant had heard what the plaintiff's representative would say), "making millions by targeting the elderly and immigrants". In that regard, I refer again to the statement of Brereton J in AMI at [32]: Malice may be inferred from the "grossness and falsity of the assertions and the cavalier way in which they were expressed".
13. I am satisfied from the combination of the foregoing that, on a prima facie basis, malice is able to be inferred from the publications already made.
14. The balance of convenience must be considered. I accept that free speech is a consideration in that regard, but less so where injurious falsehood is alleged than where the claim is made in defamation. The defendants are only minimally disadvantaged by being prevented from publishing negative comments and allegations concerning the plaintiff. There is no shortage of other information and issues about which the defendants can broadcast. Where there is no dispute concerning the prima facie case on falsity, and where I have found a prima facie case in relation to malice, the balance of convenience strongly favours the plaintiff.
15. Although the defendants suggest disadvantage if the enquiry by Fair Trading results in findings against the plaintiff, the injunction the plaintiff seeks is confined to specific matters. There is no reason that the injunction cannot be so framed to take account of any negative findings which might be made by Fair Trading. Further, it is always open to the defendants to seek to vary the restrictions imposed by the terms of the injunction.
16. In those circumstances, the parties should confer on the terms of the interlocutory injunction to provide whatever exceptions are considered appropriate in the light of the ongoing enquiry by Fair Trading. The plaintiff is entitled to an injunction in the terms sought subject to the exceptions I have mentioned.
17. In those circumstances, the order I make is that the parties are to bring in short minutes to reflect these reasons and to define the terms of the interlocutory injunction which will be granted until the final hearing of the proceedings.

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: 15 November 2019