Judo Bank Pty Ltd trading as Judo Bank Pty Ltd v Elali

1. [1]

   Between 9 and 11 December 2024, the defendants executed a short-lived but high-profile media campaign against the plaintiff (Judo Bank). The defendants’ chosen media were large, digital billboards in Melbourne, including on the Tullamarine Freeway, as well as advertising boards towed by bicycles in the Sydney and Melbourne central business districts. I will describe these publications collectively as the December 2024 campaign.

2. [2]

   The billboards read:

3. [3]

   The mobile advertising boards read:

4. [4]

   By a summons filed on 13 December 2024, Judo Bank seeks permanent injunctions to restrain the defendants from publishing any of the following representations or representations to substantially the same effect as:

   1. (1)

      Judo Bank is a fraudulent Bank;

   2. (2)

      Judo Bank is deliberately deceptive in its dealings with customers and third parties;

   3. (3)

      Judo Bank is deliberately dishonest with its customers and third parties; and

   4. (4)

      Judo Bank engages in criminal dealings.

5. [5]

   The basis of Judo Bank’s claim is the tort of injurious falsehood. However, it does not seek damages or other relief in relation to the December 2024 campaign. It has not sought to prove that it has yet suffered any loss. Rather, so far as the December 2024 campaign is concerned, it seeks findings that that campaign was actionable (save for the requirement of proving actual damage) as a step in its argument that future publications of the same or similar representations are likely also to be actionable and should therefore be restrained.

6. [6]

   Although the orders sought in the summons are cast in terms of any future publication of the representations, Judo Bank made clear that it does not seek to restrain all ‘publication’ in the sense that that expression is used in the tort of defamation: cf Dow Jones and Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at [26]. Rather, it seeks to restrain the defendants from ‘publishing’ the representations in the sense that that expression is used in the Court Suppression and Non-publication Orders Act 2010 (NSW), s 3 of which defines the word ‘publish’ as follows:

7. [7]

   The intent of this limitation was that the defendants should still be entitled to communicate the representations in a limited way, such as in a social setting, or to their lawyers, or on a confidential basis to persons such as financial regulators. Clearly enough, Judo Bank’s real concern is that the defendants will conduct another public media campaign like the one that occurred in December 2024. It is publication of that kind that is most likely to cause damage to the bank.

8. [8]

   There was no real dispute about most of the relevant facts, save for those in relation to the question of malice. In that regard, Judo Bank did not dispute that the first defendant, Mr Elali, who orchestrated the December 2024 campaign, had an honest belief in the truth of the representations. Rather, the bank’s case on malice was that Mr Elali had an improper purpose in conducting that campaign. Specifically, it submitted that Mr Elali’s purpose in waging the December 2024 campaign was to cause harm to the bank without just cause and that future publications are likely to be motivated by the same improper purpose.

The facts

1. [9]

   These proceedings arise against the background of an ongoing commercial dispute between Judo Bank and the second defendant, which is the trustee of the Captain Cook Trust. The Captain Cook Trust is a discretionary trust established in 2012, apparently at the behest of Mr Elali. Mr Elali was and remains a discretionary beneficiary of the trust. His nephew, Mr Mahmoud Elali, is the appointor of the trust. A major asset of the trust is a large, valuable commercial property at 260B Captain Cook Drive, Kurnell (the Kurnell property).

2. [10]

   The dispute concerns a loan facility provided by Judo Bank to Kurvest Pty Ltd (Kurvest), the former trustee of the Captain Cook Trust. In about December 2021, Kurvest as trustee granted a mortgage over the Kurnell property to Judo Bank to secure certain borrowings. Over time, Judo Bank made three loans to Kurvest on the security of that mortgage. The third such loan was advanced in March 2023 and was in the principal amount of $11 million (the Third Loan).

3. [11]

   On 9 June 2023, Kurvest was removed as trustee. It was replaced by the second defendant, Procent Pty Ltd (Procent), the sole director of which is Mr Elali’s son, Mr Isaac Elali.

4. [12]

   In October 2023, Procent and Judo Bank fell out over the Third Loan. Procent sought the consent of Judo Bank to transfer legal ownership of the Kurnell property to Procent as trustee but disputed that it was liable to repay the Third Loan. Procent commenced proceedings against Judo Bank on 21 December 2023. Its position, as set out in an amended statement of claim filed on 11 June 2024, was that the proceeds of the Third Loan had not been paid to Kurvest as trustee but had instead been paid directly to the vendor of a property in Mortdale as consideration for the transfer of that property to Anderson NSW Pty Ltd, an unrelated company. It contended that the Captain Cook Trust derived no benefit at all from the Third Loan and that Judo Bank’s conduct in advancing the loan in these circumstances had been unconscionable. Among other things, it sought a declaration that the Third Loan was not a liability of the trust and that Procent was not liable to repay it. I will refer to the proceedings commenced on 21 December 2023 as the 2023 proceedings.

5. [13]

   On 4 December 2023, Judo Bank caused a Default Notice and a Notice of Exercise of Power of Sale pursuant to s 57(2)(b) of the Real Property Act 1900 (NSW) to be served on Kurvest in respect of the loans secured by the mortgage over the Kurnell property, including the Third Loan.

6. [14]

   On 12 February 2024, Judo Bank appointed receivers and managers to the Kurnell property for the purpose of selling the property to recover the amounts outstanding under the mortgage. The receivers obtained possession of the property on that day.

7. [15]

   There is no doubt that Mr Elali was very much aggrieved by the actions of Judo Bank in making the Third Loan. Starting in late April 2024 and continuing through May 2024, Mr Elali sent a series of long emails to a number of people who, I infer, he considered may have an interest in his complaints about the bank. These emails (the April and May emails) were all very similar. For example, on 30 April 2024 he sent an email to a financial journalist at the Australian Financial Review who had previously published articles about Judo Bank. The body of the email was headed ‘Judo Bank’ and began:

8. [16]

   The email continued in this vein over several pages. It described all kinds of irregularities on the part of the bank, mostly concerning its financial reporting practices. It said that:

9. [17]

   Interspersed with the commentary about the bank’s financial reporting were references to circumstances surrounding the making of the Third Loan to Kurvest. These references were somewhat oblique and appear to have been included in an attempt to illustrate the more general perfidies attributed to the bank in the email.

10. [18]

    There was a further direct reference to the 2023 proceedings at the end of the email. After referring to the statement of claim filed on 21 December 2023, the email continued:

11. [19]

    Almost identical emails were sent to other financial and investigative journalists, as well as to current and former finance industry regulators and senior public servants.

12. [20]

    Some of Mr Elali’s emails included a request that the recipient conduct their own review of material relating to Judo Bank. For example, the email that Mr Elali wrote to Professor Alan Fels on 13 May 2024 included the following paragraph:

13. [21]

    Similar requests were made of others, including prominent economists as well as former counsel assisting the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry.

14. [22]

    In none of these emails did Mr Elali identify himself by name, but there was no dispute that the emails to which I have referred were written and sent by him.

15. [23]

    In around late May to mid-June 2024, negotiations took place between Procent and Judo Bank, via their respective solicitors, in relation to a possible resolution of the 2023 proceedings. The negotiations centred on a proposal that Judo Bank would forbear from enforcing its power of sale for a certain period to allow Procent to refinance.

16. [24]

    On 11 June, Mr Jason McCubbin of Mills Oakley, who were the solicitors for Judo Bank, wrote to Mr Luke Woodward and Mr Eric Herman of Sparke Helmore, the solicitors for Procent. The letter contained alternative settlement proposals, neither of which involved any monthly loan repayments by Procent and neither of which contained any reference to the amount of the rental income of the Kurnell property.

17. [25]

    On 13 June, Sparke Helmore replied, saying that Procent was interested in the first of the proposals. However, they made a number of additional observations to explain Procent’s position. As Judo Bank now emphasises, it was in these observations – by Procent’s own lawyers – that there was a first mention of the approximate monthly rental income from the Kurnell property. Specifically, the letter stated:

18. [26]

    The following day, Mills Oakley responded with a revised settlement proposal. The proposal was for a limited forbearance by Judo Bank to allow Procent to refinance the loans, an immediate payment of $900,000 and monthly payments of $220,000 during the period of forbearance. The figure of $220,000, it may be noted, reflected the previous day’s letter from Sparke Helmore. The letter included the following:

19. [27]

    The reference to the ‘Sunset Date’ was to 30 September 2024, being the end of the period of about three months during which the bank was proposing to forbear from taking further action to sell the property in order to allow a refinance to occur.

20. [28]

    There was further negotiation of the terms of settlement, but the term providing for monthly principal reductions of $220,000 until the Sunset Date was not revisited.

21. [29]

    On 16 June, the parties reached a settlement (the June settlement agreement). The terms included a provision for monthly principal reductions of $220,000 until the Sunset Date.

22. [30]

    Procent did not make any payments to Judo Bank, despite the settlement. On 13 September 2024, around two weeks prior to the Sunset Date, Procent commenced fresh proceedings (the 2024 proceedings) in which it claimed to have rescinded the June settlement agreement and in which it sought orders setting aside the agreement.

23. [31]

    Procent’s case in the 2024 proceedings includes an allegation that on 14 and 16 June 2024, Judo Bank represented to Procent that the monthly rental receipts from the Kurnell property were $220,000. It alleges that by the time Judo Bank made these representations, the true position was that certain tenants had vacated the Kurnell property, leading to a reduction in monthly rental income of about $32,000. In circumstances where it was not in possession of the property and where (so it alleges) it was unable to determine the true rental position, Procent contends that it was misleading and deceptive of the bank to make these representations. Procent contends that it relied on these representations to its detriment by entering into the June settlement agreement. Procent specifically alleges that Judo Bank’s representations were ‘fraudulent misrepresentations’, that the bank had no honest belief in the representations, and that the representations were made with the intention that Procent would rely on them.

24. [32]

    Judo Bank has denied these allegations. It points out in its defence that the figure of $220,000 was suggested by Procent. It also points out that by 29 April 2024, Procent was aware that the rental income of the Kurnell property was $192,238.26 because that figure was contained in an Information Memorandum which was provided to Mr Elali on that day.

25. [33]

    The 2024 proceedings are ongoing.

26. [34]

    In October 2024, Mr Elali started to plan his advertising campaign, which he did with the assistance of an advertising agency. He initially proposed that the signage would read:

27. [35]

    However, during November he decided against including a reference to the ‘Supreme Court of NSW’ or the proceeding number. He did so because his opinions about Judo Bank were not limited to his experience in the court case but also included his research into the bank’s practices generally. The former proposition is drawn from part of Mr Elali’s affidavit tendered by Judo Bank as an admission on this issue. The latter explanatory proposition was tendered by the defendants as qualifying context to the former proposition. However, in circumstances where Mr Elali has not given evidence, I am not inclined to place much weight on an apparently exculpatory explanation tendered by him from an affidavit that was not read.

28. [36]

    On 30 October, at about the same time as he was planning his advertising campaign, Mr Elali wrote an email which was addressed to the solicitors acting for Judo Bank at Mills Oakley and to the Judo Bank officers with involvement in his dispute. It was copied to his own solicitors. The email included the following:

29. [37]

    The email referred to the numerous recipients of the April and May emails (paragraphs [15]-[22] above). It then listed 17 ‘queries’ to which answers were sought.

30. [38]

    Some of Mr Elali’s queries related to issues raised in either the 2023 proceedings or the 2024 proceedings. For example, the first four questions were:

31. [39]

    However, many questions did not seem to relate to either proceedings at all. Rather, they were directed to the various financial reporting matters raised in Mr Elali’s April and May emails. For example, questions 13 to 17 were as follows:

32. [40]

    On the same day, Mr Elali wrote to a class action lawyer care of info@echolaw.com.au. The email was in these terms:

33. [41]

    He did not receive an email in response.

34. [42]

    The advertising blitz planned by Mr Elali went ahead. On 9 December, at least two digital billboards displayed the message set out at paragraph [2] above, commencing at 5:00AM. Both were taken down by no later than 9:18AM the same day. The billboard on the Tullamarine Freeway appeared as follows:

35. [43]

    The mobile billboard campaign occurred on 11 December in Sydney and Melbourne, but an email from the agency responsible for the billboards states that ‘the campaign was pulled before most components commenced’. The bicycle billboards in Sydney appeared as follows:

36. [44]

    These proceedings were commenced by summons filed on 13 December 2024. Mr Elali has given an undertaking to the Court that he will not publish the representations pleaded by the bank (paragraph [4] above) until after the delivery of judgment.

Applicable principles

1. [45]

   In Ratcliffe v Evans [1892] 2 QB 524 at 527-528, Bowen LJ delivering judgment for the Court said:

2. [46]

   The action which his Lordship was there describing was recognised by the High Court as early as 1910: Hall-Gibbs v Mercantile Agency Ltd v Dun (1910) 12 CLR 84; [1910] HCA 66 at 92 (Griffith CJ), 95 (Barton J), 102 (O’Connor J). That same action is now almost uniformly described as the tort of injurious falsehood, the elements of which were described by Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 (‘Palmer Bruyn’) at [52] as follows:

3. [47]

   In relation to the first element, the defendants submitted that it was necessary to determine whether what was published was conveyed as a statement of fact or a statement of opinion. The significance of this distinction was said to be that a statement of opinion may only be falsified by proving that the defendant did not honestly hold the opinion. This was the view of Tugendhat J in Euromoney Institutional Investor Plc v Aviation News Ltd [2013] EWHC 1505 (QB). His Honour said at [102] and [103]:

4. [48]

   See also McCallum J in Australand Holdings Limited v Transparency & Accountability Council Incorporated [2008] NSWSC 669 (‘Australand’) at [101].

5. [49]

   However, it has also been suggested that some opinions are capable of being proved true, such as an opinion that the plaintiff is dishonest, and that the plaintiff in such a case can, in principle, succeed by showing that he or she is not dishonest: Tinkler v Ferguson [2021] EWCA Civ 18 at [16]; Haven Solicitors Ltd v Police Federation of England and Wales [2020] EWHC 2233 (QB) at [42]; see also Gatley on Libel and Slander (13th ed, 2022, Thomson Reuters) at [22-010].

6. [50]

   There is a limit to how far these propositions can be taken. If they are intended to establish that (a) where a defendant publishes a statement of opinion, the statement may only be falsified by proving that the defendant did not honestly hold the opinion; or that (b) where a defendant publishes an opinion that is capable of being proved wrong, a plaintiff may always falsify the statement by proving that the opinion was wrong, then I am unable to accept them, at least expressed in those absolute terms. That is not to say that these distinctions are unimportant. Rather, it is to say that the question of what is false – and the related question of whether the publication of that falsehood has caused any damage – ultimately depends on the content of the statement as a whole and the context in which it was made.

7. [51]

   As to the second element, by the time of the final hearing it was not in dispute that both defendants had caused the billboards to be published in December 2024.

8. [52]

   As to the third element, malice, the position is less straightforward. In Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) [2023] NSWCA 288 (‘Chandrasekaran’), Gleeson JA (Leeming and Adamson JJA agreeing) at [189] and [191] approved the following statements from Fleming’s The Law of Torts (which appear identically in the 11th edition of the text at [28.260]):

9. [53]

   To like effect, Griffiths J observed in National Roads & Motorists’ Association Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1491; (2019) 291 IR 28 (‘NRMA v CFMMEU’) at [192] that ‘[m]alice is often understood to involve an intent to injure another without just cause or excuse or by some indirect, dishonest of improper motive’.

10. [54]

    There are some circumstances in which malice can be demonstrated in a fairly straightforward way, such as where the defendant can be shown to have been reckless as to the truth or falsity of the publication: see NRMA v CFMMEU at [195]; AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395; [2011] Aust Torts Reports 82-077 (‘AMI’) at [36] (Brereton J).

11. [55]

    Greater difficulties of proof arise where the defendant has an honest belief in the truth of the publication. Although honest belief in the truth of a statement is ordinarily indicative of propriety of purpose in publishing it, the former is not conclusive of the latter. A person may yet be actuated by malice in publishing a statement in which they have an honest belief where, for example, they do so with ‘an intent to injure without just cause or excuse’. In Wilts United Dairies v Thomas Robinson Sons & Co [1957] RPC 220 at 237, Stable J hypothesised that liability in that manner might arise as follows:

12. [56]

    The difficulty in such a case is to pin down what would be a ‘just cause or excuse’ in the particular circumstances. The parameters of impropriety of purpose have quite appropriately been described as ‘elusive’: Australand at [156].

13. [57]

    Difficulties such as these justify the observation of Gleeson JA in Chandrasekaran at [189] that ‘the requirement of malice is well-recognised as causing the most difficulties for courts in resolving cases of injurious falsehood’. However, for the most part, these difficulties tend to be difficulties of proof, not difficulties of legal principle.

14. [58]

    It is also important to keep in mind that malice is a serious matter and that the Briginshaw standard applies to its proof: Jay v Petrikas [2023] NSWCA 297 at [104] (Griffiths JA, Payne and Kirk JJA agreeing); Evidence Act 1995 (NSW) s 140(2).

15. [59]

    As to the fourth element, the plaintiff did not lead evidence of actual loss arising from the December 2024 publications. If the only issue in the proceedings were the defendants’ liability for those publications, the claims would therefore have failed. However, in circumstances where the claim is for a quia timet injunction to prevent any future publications, the relevant question is whether there is a reasonable probability that future publications of the same representations will cause damage to the bank. The fact that those future publications would only be actionable upon proof of damage is no bar to the grant of an injunction to prevent them occurring: s 66(2) Supreme Court Act 1970 (NSW); Australand at [169]; AMI at [38].

16. [60]

    Be that as it may, the fact that the plaintiff has not demonstrated any damage from the December 2024 campaign is a matter that may be taken into account on the question of whether future publications are likely to cause damage: ALDI Foods Pty Ltd v Transport Workers' Union of Australia [2020] FCA 269; (2020) 294 IR 407 at [153].

Conclusions in relation to the December 2024 campaign

1. [61]

   The two main areas of factual dispute in relation to the December 2024 campaign were whether the billboards and signs conveyed the representations alleged by Judo Bank and whether, in causing them to be published, the defendants were actuated by malice. My conclusions in relation to those issues are as follows.

2. [62]

   The signs and billboards published in December 2024 were all in the form depicted at paragraphs [42] and [43] above. In my view, they conveyed the meanings alleged by the plaintiff. I do not read them as mere statements of opinion. Rather, they are bald statements of fact about the bank, all of which are capable of being proven false.

3. [63]

   The defendants submitted that the inclusion of the words ‘approved by 260CCD@ProCent.com.au’ supports a conclusion that the signs would have been understood as expressing somebody’s opinion. It was submitted that the inclusion of these words makes clear that what was being asserted was merely someone’s opinion that Judo Bank is fraudulent.

4. [64]

   I cannot agree with that submission. The fact that the message on the signs was said to have been ‘approved’ by someone is neutral. It does not necessarily mean that the person approving the message was only expressing an opinion. Political campaign messages are typically said to have been approved or authorised by someone yet often contain factual statements. Such was the case in Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57. At least one of the false posters complained of was said to have been ‘authorised by’ the defendant: see the poster reproduced in the reasons of Callinan J at 87.

5. [65]

   The one matter that causes me to doubt the plaintiff’s case on this point concerns the overall context of the signage. The signs were so abrupt and outlandish that people may have had a tendency to treat them as they would treat a sign displayed on a sandwich board carried outside a bank branch by a crank, namely as the expression of a recalcitrant and wrong-headed opinion. However, the signs were not written on a sandwich board and they were not carried by a disgruntled crank. They had been artfully constructed by an advertising agency and were carefully displayed on well-presented, obviously-expensive, digital canvases. The statements were all frank and conclusory in nature. They offered no context, save that they were ‘approved’ by someone. On balance, I consider that they would have been understood by the ordinary and reasonable viewer of the billboards as containing factual assertions.

6. [66]

   I also find that the representations were false. Judo Bank approached this issue on the reasonable assumption that the particular respects in which it was charged with fraud and dishonesty were those particularised in the statement of claim in the 2024 proceedings. Its evidence in relation to those issues was uncontested. I accept that evidence.

7. [67]

   One thing that may be said with a degree of certainty about Mr Elali’s purpose is that he had an honest belief in the truth of his message. I reach this conclusion despite the fact that Mr Elali did not give evidence and even taking into account the Jones v Dunkel inference that is therefore available on this issue.

8. [68]

   From April 2024, Mr Elali’s correspondence shows a persistent and even obsessive interest in the financial reporting practices of Judo Bank. His interest was not limited to the matters which were the subject of the 2023 proceedings or the 2024 proceedings, although the circumstances surrounding the making of the Third Loan were undoubtedly a large part of his gripe. Even in relation to that issue, however, he saw the circumstances of the Third Loan as symptomatic of a wider malaise affecting the bank.

9. [69]

   Mr Elali’s email of 30 October (paragraphs [36]-[39] above), which postdates the commencement of the 2024 proceedings, shows an intensification of his focus on what he saw as the bank’s improper reporting practices. But even then, Mr Elali was focused on the bank’s conduct generally. To the extent his 17 questions concerned Procent’s circumstances, they were all about the making of the Third Loan, not the particular matters that had become the subject of the 2024 proceedings. The email in fact did not even mention Procent’s allegations about the negotiation of the settlement agreement or the 2024 proceedings. I also note that the 30 October email included references to the ‘handling of fraudulent documents’ and ‘criminality’, which was a development from the April and May emails.

10. [70]

    Furthermore, I have no reason to doubt that Mr Elali saw – and continues to see – Judo Bank’s actions in connection with the settlement of the 2023 proceedings as involving seriously improper conduct. Procent’s statement of claim in the 2024 proceedings does not go quite as far as the December campaign in this respect in alleging illegality, but it does at least include an allegation that the bank made ‘fraudulent misrepresentations’ about the rent on the Kurnell property. That pleading has not been struck out. In fact, a defence has been filed and the issue will go to trial in due course.

11. [71]

    Finally in relation to this issue, it is relevant that Judo Bank did not try to dissuade me from the conclusion that Mr Elali had an honest belief in the truth of the statements published in December 2024. It explicitly eschewed a case based on lack of honest belief.

12. [72]

    Rather, the plaintiff’s case on malice was put on the basis that the defendants had published with an improper motive, namely for the purpose of causing injury to the bank without just cause. Judo Bank submitted that the publications were made with an intention to injure per se, and that Mr Elali’s motivation to do so was to exert pressure on the bank in the context of the proceedings.

13. [73]

    It is not necessary to prove an intention to injure in order to demonstrate an improper purpose. The concepts are distinct: see the remarks of Callinan J in Palmer Bruyn at [193]. Nevertheless, proof of a deliberate intention to cause injury to another without just cause will ordinarily amount to proof of an improper purpose and will therefore amount to malice: AMI at [31].

14. [74]

    Judo Bank particularly relied on the following part of Mr Elali’s 30 October email:

15. [75]

    It submitted that this passage tended to reveal Mr Elali’s true intention, namely that he would cause harm to the bank by publishing the billboards unless the bank capitulated to his demands. It relied, by analogy, on the conclusions reached by McCallum J (and her Honour’s reasoning) in Australand concerning the threats made by the defendants to publish the results of their ‘investigation’ unless the plaintiff capitulated to Mr Baltinos’s (one of the defendants’) demands.

16. [76]

    I do not read the 30 October email as supporting the conclusion for which Judo Bank contends. The case is not analogous to Australand. In that case, the defendants’ main object was to publish false and damaging reports to induce Australand ‘to compensate Mr Baltinos for his perceived losses under threat of the harm that would be likely to flow from the publication of the material’: at [163]. Their purpose was to ‘pursue a campaign by means of a threat, not to publish the truth…’: [163]-[164]. These conclusions must be understood in the context of what had occurred in that case, namely that a false report purporting to convey the investigation and findings of an authoritative body was provided confidentially to Australand on terms that ‘if there was no resolution [of Mr Baltinos’s complaints], the final report would be released to the public’: [8].

17. [77]

    That, however, is not quite what happened here. The 30 October email did not seek any particular resolution of the 2024 proceedings. Nor were the 17 questions limited to matters arising in those proceedings. I agree that the reference to Mr Elali’s ‘stance’ being ‘dissolved’ probably meant that the ‘advertising blitz’ may not have gone ahead if the 17 questions were all answered. But Mr Elali was not demanding that the bank capitulate in the proceedings. He was, as the email says, demanding answers to 17 matters that I infer greatly concerned him about the bank’s conduct generally.

18. [78]

    The plaintiff generally submitted that the December 2024 campaign was an improper attempt to put pressure on it, or to retaliate against it, in relation to the 2024 proceedings. The plaintiff did not go so far as to allege that the December 2024 campaign constituted a contempt of those proceedings, but it did not need to. Judo Bank was entitled to rely on this circumstance in its attempt to show that Mr Elali’s purpose in publishing the billboards was malicious regardless of whether it was also a contempt.

19. [79]

    The facts as a whole lead me to doubt that Mr Elali’s purpose, or his motive, in instigating the December 2024 campaign was to cause harm to the bank as retaliation for the 2024 proceedings or to put pressure on the bank to capitulate in those proceedings. As mentioned above, Mr Elali’s April and May emails had been concerned with financial reporting issues going way beyond the subject of Procent’s claims. It is evident from this correspondence that by at least April 2024, Mr Elali had developed a deeply held conviction that Judo Bank was committing a whole raft of improper financial reporting practices.

20. [80]

    By at least 30 October 2024, Mr Elali’s conviction had hardened to the point where he was beginning to see the bank’s conduct as involving criminality. Even though the 30 October email was addressed to lawyers and others involved in the 2023 and 2024 proceedings, it is clear from its terms that Mr Elali’s concerns were at this point directed to matters extraneous to the litigation.

21. [81]

    Mr Elali had for many months been expressing his concerns about the bank to people who had nothing to do with the 2023 and 2024 proceedings and who could not have assisted him in the litigation, namely financial journalists, economists, regulators and senior public servants. Although he had not raised the serious allegations of fraud and criminality with these people, his emails do strongly suggest that he was seeking to engage on the topic of Judo Bank’s alleged financial reporting anomalies quite independently of his pursuit of the 2023 and 2024 proceedings. The December 2024 campaign seems as much in line with what he was pursuing on that front as with what he was pursuing in the proceedings.

22. [82]

    A further matter that tends to support the conclusion that Mr Elali did not have an improper purpose is that the billboards all included an email address at which he could be reached. Judo Bank is right to point out that, as actually displayed on 9 and 11 December 2024, the email address would have been very difficult to read, especially from a moving vehicle. But the question here is as to his intention. I consider that the inclusion of an email address, coupled with the fact that he decided not to include a reference to the proceedings, tends to support the conclusion that Mr Elali’s purpose was to get his own general message across about the bank.

23. [83]

    Other evidence shows that Mr Elali’s concerns about the bank related to the position of the public generally and not only to Procent’s circumstances. The whole tenor of his April and May emails was that the bank posed a danger to the public. His 30 October email expressly stated that the ‘advertising blitz’ had been scheduled ‘to share our conclusion with others subjected to similar irregularities’. To the same end, he made an attempt, albeit rather feeble, to contact a class action lawyer about his concerns on the same day: paragraph [40] above.

24. [84]

    I do accept that Mr Elali would have appreciated that the December 2024 campaign was likely to cause injury to the bank. The overall nature of the campaign, including the placement, timing and overall getup of the billboards, make it difficult to escape the conclusion that he knew that the campaign would cause harm to Judo Bank. The fact that he had an honest belief in what he was publishing does not alter this conclusion. Even a person with an honest belief in the truth of the statements on the billboards must have appreciated that they would have a tendency to do harm. It would, I think, be unreal to conclude that a person could instigate the December 2024 campaign without an appreciation of the harm that it might cause.

25. [85]

    Be that as it may, the mere fact that a person appreciated the likelihood of harm being occasioned by their publication, or that harm did in fact occur, is not conclusive of an intention to injure. There will be no malice where a statement is made ‘in the belief, even a careless belief, that it was true but without any hostile motive to injure the plaintiff’, even if injury is a likely incidental result: Leigh v Bruder Expedition Pty Ltd (2020) 6 QR 475; [2020] QCA 246 (‘Leigh’) at [20] (Sofronoff P, Davis and Wilson JJ agreeing) citing Balden v Shorter [1933] Ch 427. The following examples given by the Court of Appeal in Leigh at [22] serve to illustrate the point:

26. [86]

    Although I consider the question to be quite finely balanced, I am not persuaded that either Mr Elali or Procent was actuated by malice in causing the December 2024 campaign to be conducted. I am not persuaded that Mr Elali’s dominant purpose was to injure Judo Bank without just cause, nor that it was to exert pressure on the bank in the context of its position in the 2023 and 2024 proceedings. Although his cause – exposing the financial reporting irregularities of the bank – may have been misguided, I do not consider that his motivation to pursue that cause by way of the December 2024 campaign was improper within the meaning of the authorities. His overall motivation was the ‘exposure of perceived misconduct … in the public interest’: Australand at [163]. I do not accept the submission that his intention was, as the plaintiff put it, to injure the bank per se.

Overall conclusions and orders

1. [87]

   Given the way the matter was argued, my conclusion on the question of malice means that it would not be appropriate to make the final orders sought in the summons. Even though I accept that there is a reasonable likelihood that similar future publications would cause damage to Judo Bank’s commercial interests, the only basis on which it was submitted I could reach the necessary conclusion on malice was by reference to the events surrounding the December 2024 campaign.

2. [88]

   My conclusions do not mean that future publications of similar matter will not be actionable injurious falsehoods. It is just that the question of malice would need to be considered in the context of any such publication.

3. [89]

   The orders of the Court will therefore be as follows:

   1. (1)

      The summons is dismissed with costs.