The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd; Morrow v Cordell Jigsaw Productions Pty Ltd (No 13)

1. [1]

   Mr Julian Morrow is a television writer, performer and producer.

2. [2]

   Mr Nicholas Murray is also a television producer.

3. [3]

   Both Mr Morrow and Mr Murray are legally qualified, although neither is currently in practice as a lawyer.

4. [4]

   In December 2010, Mr Morrow and Mr Murray agreed to work together on a consumer affairs television program.

5. [5]

   That project ultimately led to the consumer affairs television series “The Checkout”.

6. [6]

   It was a success.

7. [7]

   But during 2019 Mr Morrow and Mr Murray fell out. Bitterly.

8. [8]

   These proceedings are about the consequences of that falling out.

9. [9]

   In late 2010 and early 2011 Mr Morrow and Mr Murray agreed to engage in a joint venture to produce a consumer affairs television program; ultimately The Checkout (the “Joint Venture Agreement”).

10. [10]

    On or about 23 January 2012, Mr Morrow and Mr Murray caused companies of which they were both directors and shareholders, Giant Dwarf Pty Ltd and Cordell Jigsaw Pty Ltd respectively, to form a company then known as Jigsaw Dwarf Pty Ltd, and later known as The Checkout Pty Ltd (the “Joint Venture Company”).

11. [11]

    Their intention was that, for the purposes of the Joint Venture Agreement, the Joint Venture Company be the special purpose vehicle to produce a proposed consumer affairs television series.

12. [12]

    Each of Giant Dwarf and Cordell Jigsaw held 50% of the shares in the Joint Venture Company. Mr Morrow and Mr Murray were its sole directors. From around January 2014, Mr Morrow and Mr Murray agreed that the profits derived by the Joint Venture Company would be paid as to 60% to Giant Dwarf and as to 40% to Cordell Jigsaw.

13. [13]

    During 2014 drafts of a “Shareholders Agreement” were circulated, but never executed.

14. [14]

    The Joint Venture Company produced six series of The Checkout for the Australian Broadcasting Corporation (“ABC”) between 2013 and 2018. The last episode of The Checkout (episode 12 of series 6) was aired on the ABC in April 2018.

15. [15]

    In July 2018, the ABC informed Mr Morrow and Mr Murray that it proposed to place The Checkout “on hiatus” and that it did not propose to commission the Joint Venture Company to produce a seventh series, at that time.

16. [16]

    From July 2018, Mr Morrow sought to persuade the relevant executives of the ABC to change their minds about that decision.

17. [17]

    During the same period, and against the possibility that the ABC refused to change its position about this matter, Mr Morrow also discussed with the ABC executives the possibility of his company, Giant Dwarf, producing a “new” consumer affairs program. On 8 March 2019, Mr Morrow pitched to the ABC a proposed consumer affairs show called “Are You Being Served?”.

18. [18]

    Between February and April 2019 Mr Morrow negotiated with Mr Murray concerning the possible sale by Cordell Jigsaw to Giant Dwarf of its interest in the Joint Venture Company.

19. [19]

    Those negotiations culminated in the execution on 8 April 2019 by Giant Dwarf and Cordell Jigsaw of a “Share Sale Agreement”. By this agreement Cordell Jigsaw sold its shares in the Joint Venture Company to Giant Dwarf for $50 and on terms that included a payment be made by the Joint Venture Company to Cordell Jigsaw of 2% of the Joint Venture Company’s “cash budget” on any further series of The Checkout produced by the Joint Venture Company, Giant Dwarf or any affiliated company.

20. [20]

    During those negotiations, Mr Morrow did not mention to Mr Murray that he was, at the same time, in effect negotiating with the ABC to re-badge his proposed Are You Being Served program as the seventh series of The Checkout, subject only to a successful culmination of his negotiations with Mr Murray concerning Cordell Jigsaw’s shares in the Joint Venture Company.

21. [21]

    Immediately after the Share Sale Agreement was executed, and Cordell Jigsaw had transferred its shares in the Joint Venture Company to Giant Dwarf, the Joint Venture Company, now controlled by Mr Morrow, sought to negotiate a seventh series of The Checkout with the ABC.

22. [22]

    Mr Murray became aware of these negotiations and, unbeknownst to Mr Morrow, commenced email communications with ABC executives.

23. [23]

    Mr Morrow alleges that these email communications, and one conversation between Mr Murray and an ABC executive, were defamatory of him and that these, and later emails, constituted injurious falsehoods against the Joint Venture Company, Giant Dwarf and Mr Morrow.

24. [24]

    Immediately after it received the first of these email communications, the ABC informed Mr Morrow that a condition of commissioning any further series of The Checkout was the execution by Mr Murray and Cordell Jigsaw of a “Quit Claim Deed” under which, in effect, Mr Murray and Cordell Jigsaw released the Joint Venture Company and the ABC from any claim concerning any further series of The Checkout. The ABC did not inform Mr Morrow of Mr Murray’s email, or the later emails Mr Murray sent. Mr Morrow did not become aware of them until discovery in these proceedings.

25. [25]

    Between 30 May 2019 and 13 June 2019, Mr Morrow asked Mr Murray to cause Cordell Jigsaw to execute the Quit Claim.

26. [26]

    Mr Murray refused.

27. [27]

    On 28 June 2019, the Joint Venture Company and Giant Dwarf purported to terminate the Share Sale Agreement on the basis of Cordell Jigsaw’s alleged repudiation of it.

Two proceedings

1. [28]

   In those circumstances, Mr Morrow has caused two sets of proceedings to be instituted against Mr Murray and Cordell Jigsaw.

2. [29]

   In the first proceedings (the “Commercial Proceedings”) the Joint Venture Company, Giant Dwarf and Mr Morrow, allege that:

3. [30]

   In the Commercial Proceedings, Mr Murray and Cordell Jigsaw, by Cross Summons, allege that:

4. [31]

   In the second proceedings (the “Defamation Proceedings”) Mr Morrow seeks damages from Mr Murray and Cordell Jigsaw by reason of the allegedly defamatory statements made by Mr Murray and Cordell Jigsaw in the emails and conversation to which I referred.

5. [32]

   As I have said, Mr Morrow only became aware of these communications during discovery in the Commercial Proceedings.

6. [33]

   I heard both proceedings together, with evidence in one being evidence in the other.

7. [34]

   Neither Mr Morrow nor Mr Murray elected under s 21 of the Defamation Act 2005 (NSW) for the Defamation Proceedings to be tried by a jury.

8. [35]

   It is common ground that, by reason of the dates of publication of the allegedly defamatory material, I must apply the provisions of the Defamation Act as they stood prior to the amendments made effective on 1 July 2021.

Decision

1. [36]

   I find that:

The hearing

1. [37]

   The hearing was conducted, in person, over 10 days.

2. [38]

   Ms Chrysanthou SC appeared with Mr O’Neill for Mr Morrow and his related companies. Mr Katekar SC appeared with Ms Jeliba for Mr Murray and his related company. [2]

3. [39]

   I was greatly assisted by the efficient manner in which counsel, and their instructing solicitors, conducted the case in accordance with the protocols then applicable concerning the Covid-19 pandemic.

4. [40]

   I was also greatly assisted by the extensive oral and written submissions received at the conclusion of the evidence, and then after judgment was reserved. Much of what appears below, especially as to uncontroversial background matters, is taken with gratitude from those submissions.

Dramatis personae

1. [41]

   In the course of explaining what has happened between Mr Morrow and Mr Murray, it is necessary to refer to a large number of individuals working for Giant Dwarf, Cordell Jigsaw and the ABC.

2. [42]

   To assist the reader, I attach a dramatis personae prepared by the parties which records the positions held by the relevant persons at these companies. [42] Dramatis Personae (152656, pdf)

Credit

1. [43]

   Ms Chrysanthou and Mr Katekar both developed detailed submissions to the effect that the evidence given by Mr Murray and Mr Morrow, respectively, was unsatisfactory, evasive and unresponsive.

2. [44]

   Despite the length, and vehemence, of those submissions, I do not see this as a case that turns on the credit of either Mr Morrow or Mr Murray.

3. [45]

   Most of the communication relevant to the issues I must decide were in writing, primarily by email between Mr Morrow and Mr Murray on the one hand, and officers of the ABC on the other.

4. [46]

   There is some difference in the recollections of Mr Morrow and Mr Murray concerning a conversation they had on 19 February 2019 at the Duck Inn in Chippendale (the “Duck Inn Meeting”), but I am able to resolve those differences otherwise than by reference to Mr Morrow’s and Mr Murray’s credit.

5. [47]

   I am, in any event, conscious of the restraint I should exercise in forming a view about the credibility of Mr Morrow and Mr Murray based on their demeanour when giving evidence. Giving evidence is a stressful, alien experience for most people. I have in mind Atkin LJ’s familiar aphorism that “an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of the evidence with known facts, is worth pounds of demeanour”. [3]

6. [48]

   I must weigh my impressions as to demeanour “carefully against the probabilities” and “examine whether the disputed evidence is consistent with the incontrovertible facts”. [4]

7. [49]

   Nonetheless, as cross-examination of each of Mr Morrow and Mr Murray took place over a number of days, I had a lengthy period during which to observe the manner in which they gave their evidence.

8. [50]

   As I set out below, there are some important aspects of their evidence, particularly that of Mr Morrow, that I have been unable to accept.

9. [51]

   To the extent that I do not accept particular aspects of the evidence given by Mr Morrow or Mr Murray I will deal with that at the appropriate point in these reasons.

The role of the ABC in the proceedings

1. [52]

   Although Mr Morrow’s and Mr Murray’s communications with the ABC are central to the dispute, neither party called any officers of the ABC as witnesses in the proceedings.

2. [53]

   The ABC produced 31 packets of documents in response to the subpoenas from both parties. During argument on an interlocutory application on 14 December 2020, I was informed that the ABC had produced over 5,000 documents in response to the subpoenas. I was also informed that, leaving aside the time taken to search for the documents, the ABC has spent some 135 hours reviewing the documents sought and producing them to the Court. [5]

3. [54]

   The Court Book included a large number of emails produced by the ABC to and from Mr Morrow and Mr Murray, many internal emails between officers of the ABC, as well as notes taken by ABC officers of conversations with Mr Morrow.

4. [55]

   I admitted those documents only as evidence that documents in that form were within the records of the ABC. Thus, the documents themselves do not stand as evidence of the truth of what is recorded. But inferences are available from a number of them and, on occasions, other evidence points to the probability that what was recorded in the ABC documents was the true position.

5. [56]

   I will set out my conclusions as to what can be drawn from particular ABC documents during my consideration of the course of events.

The genesis of the joint venture relationship

1. [57]

   For a number of years prior to 2010 Mr Murray had communications with the ABC and with the Australian Consumers Association about the possibility of the ABC commissioning a consumer affairs show.

2. [58]

   In late 2010, Mr Morrow approach Mr Murray about the possibility of collaborating on such a program.

3. [59]

   In December 2010, Mr Morrow and Mr Murray met at a bar in Surry Hills and “shook hands on the idea of Giant Dwarf and Cordell Jigsaw working together on a consumer affairs TV show project”. [6]

4. [60]

   Neither Mr Murray nor Mr Morrow gave an account in their affidavits as to what was said at this meeting. However, they each said they “agreed on” and “shook hands on” the idea of Giant Dwarf and Cordell Jigsaw working together on “a consumer affairs TV show project”.

5. [61]

   The only contemporaneous record of what was agreed is in an email exchange between Mr Morrow and Mr Murray on 15 December 2010 as follows:

6. [62]

   Mr Morrow and Mr Murray had further email exchanges between 17 March 2011 and 8 April 2011.

7. [63]

   On 17 March 2011, Mr Morrow wrote to Mr Murray saying that “I’ve been thinking about the show” and raised the possibility of creating “a new entity just for this program”. It was implicit in this email that “the” show and “this” program would be one produced for the ABC.

8. [64]

   On 24 March 2011, Mr Murray wrote to Mr Morrow about “setting up a [Special Purpose Vehicle] with each owning 50%”.

9. [65]

   Mr Morrow replied on 8 April 2011 saying that “perhaps a [joint venture] is a way to go. It’s probably best that our ‘everything by agreement’ and ‘50/50 on everything’ arrangement is reflected in the formalities, which suggests a [joint venture]”.

10. [66]

    These communications suggest that what was contemplated by Mr Morrow and Mr Murray was the establishment of a special purpose vehicle to conduct a joint venture which would have the single purpose of pitching, and hopefully producing, a consumer affairs program for ABC television.

11. [67]

    This was the genesis of the Joint Venture Agreement.

12. [68]

    Mr Murray gave unchallenged evidence that:

13. [69]

    The Joint Venture Company was incorporated on 23 January 2012 to give effect to this arrangement. As I have said, Mr Morrow and Mr Murray were the sole directors of the Joint Venture Company and Giant Dwarf and Cordell Jigsaw were its equal shareholders.

14. [70]

    On 26 June 2012, the Joint Venture Company signed its first ABC Production and Licence Agreement for what became known as the first series of The Checkout.

15. [71]

    After series one was produced, Giant Dwarf and Cordell Jigsaw agreed to change the revenue split from 50/50 to 60/40. Mr Morrow and Mr Murray evidently saw this as better reflecting their contributions to the venture. The shareholding in the Joint Venture Company remained the same.

16. [72]

    Thus, on 24 January 2014, Ms Katie Shortland, Head of Business Affairs at Cordell Jigsaw sent Mr Morrow a “1 pager” giving effect to that agreement. Mr Morrow agreed to that document in May 2015.

17. [73]

    Also on 24 January 2014, Ms Shortland circulated a draft “Shareholders Agreement”.

18. [74]

    Proposed cl 2.1 of that document stated:

19. [75]

    Proposed cl 3.1(1) provided that:

20. [76]

    “Business” was defined to mean “the Company’s business of developing and producing television projects and any other business approved under clause 9.1” (which clause required a unanimous resolution of shareholders).

21. [77]

    Mr Murray agreed in cross-examination that the statement of objectives in proposed cl 2.1 was too broad and that “it probably should be limited to … consumer affairs programs to the ABC”.

22. [78]

    Clause 28.1 provided:

23. [79]

    Mr Morrow made no response to this draft until two years later, in January 2016.

24. [80]

    On 12 January 2016, Mr Morrow sent Mr Murray and Ms Shortland a “markup of the shareholder’s agreement” in which he suggested that cl 2.1 be changed to read:

25. [81]

    Mr Morrow also proposed that cl 3.1(1) refer only to The Checkout rather than to “television projects”; he did not suggest any change to the definition of “Business”.

26. [82]

    Mr Morrow’s proposed changes to cll 2.1 and 3.1 appear to have reflected the reality of the situation, namely, that the Joint Venture Company was engaged in only one project, being successive series of The Checkout.

27. [83]

    Mr Morrow suggested no change to cl 28.

28. [84]

    Clause 28 is a peculiar provision.

29. [85]

    Mr Murray agreed in cross-examination that it was “the standard clause that we would put in these kind of agreements”. On behalf of Mr Morrow, Ms Chrysanthou relied on this clause to show that Giant Dwarf and Cordell Jigsaw (and thus Mr Morrow and Mr Murray) agreed that there was no fiduciary relationship between Giant Dwarf and Cordell Jigsaw either as shareholders in the Joint Venture Company, or at all.

30. [86]

    But cl 28 also recites that the proposed Shareholder Agreement would not create “a joint venture … between the parties”. A matter that is agreed in the proceedings is that Mr Morrow and Mr Murray did establish a joint venture between Giant Dwarf and Cordell Jigsaw. There is no suggestion in the proceedings that the circulation of the drafts of the Shareholders Agreement was intended to alter that fundamental aspect of the arrangement. That suggests to me that proposed cl 28 was included in the drafts as a “boilerplate” provision and was not intended by either Mr Morrow nor Mr Murray to reflect or record their relationship as joint venturers.

31. [87]

    Ultimately, as the parties did not execute the Shareholders Agreement, the provision casts little, if any, light on the nature of their arrangement as joint venturers.

32. [88]

    Mr Murray made no response to Mr Morrow’s 12 January 2016 proposed “markup” of the Shareholders Agreement and neither Giant Dwarf nor Cordell Jigsaw executed either version of the Shareholders Agreement. There was thus no finalised written agreement between the two parties as to the precise scope of the joint venture. In particular, there is no express agreement as to whether it extended beyond The Checkout.

33. [89]

    As I have said, the Joint Venture Company produced six series of The Checkout for the ABC between 2013 and 2018: the last episode of which was aired in April 2018.

34. [90]

    Over that period, Mr Murray and Cordell Jigsaw played an increasingly minor role in the production of the series. Mr Morrow became the primary point of contact with the ABC for the show. Mr Morrow had responsibility for all day-to-day creative, legal, editorial and production issues in relation to series four, five and six of the show. Mr Murray had little active involvement in these latter series. Indeed, Mr Murray agreed he did not speak to Mr Morrow about The Checkout at all between July 2017 and April 2018; although he then sent a note of congratulations to Mr Morrow about the sixth series of The Checkout. In effect, Giant Dwarf took over the running of the Joint Venture Company from series 4 onwards.

35. [91]

    This caused some friction between Mr Morrow and Mr Murray.

36. [92]

    In November 2015, Mr Morrow offered to buy out Cordell Jigsaw’s interest in the joint venture for $200,000.

37. [93]

    That offer was not accepted. Thus, on 3 December 2015, Mr Murray sent a memo to Mr Morrow:

38. [94]

    Nonetheless, the series were profitable. Cordell Jigsaw earned about $170,000 from series three in 2015, $175,000 from series four in 2016, and $187,000 from each of series five in 2017 and series six in 2018. Mr Morrow calculated that Cordell Jigsaw was paid a little over $1 million from series one to six. He described it as the “worst deal I’ve ever done”.

39. [95]

    At around this time, Mr Murray assumed that Mr Morrow was negotiating with the ABC for the seventh season.

The terms of the Joint Venture Agreement

1. [96]

   On the pleadings [8] it is common ground that in the circumstances I have described:

   1. (1)

      in late 2010 Giant Dwarf and Cordell Jigsaw agreed to collaborate for the purpose of creating a consumer affairs television show for the ABC;

   2. (2)

      the parties thereby entered into the Joint Venture Agreement; and

   3. (3)

      it was a term of the Joint Venture Agreement that all decisions were to be made by agreement.

2. [97]

   Giant Dwarf and Mr Morrow contend that there were further terms of the Joint Venture Agreement that:

   1. (1)

      Giant Dwarf and Cordell Jigsaw were to be credited equally as production companies;

   2. (2)

      Mr Morrow and Mr Murray were to be Executive Producers;

   3. (3)

      Mr Morrow was to be the host of the program;

   4. (4)

      the “Producer Overhead” from each series budget was to be divided equally between Giant Dwarf and Cordell Jigsaw; [9] and

   5. (5)

      any revenue received in connection with the show, apart from the budget to produce a show or related project, was to be divided equally [10] between Giant Dwarf and Cordell Jigsaw.

3. [98]

   I do not understand any of these matters to be disputed.

4. [99]

   In their Cross-Claim List Statement Mr Murray and Cordell Jigsaw also contended that:

5. [100]

   In their Cross-Claim Response, Mr Morrow and Giant Dwarf admitted these matters and asserted that the Joint Venture Company “was incorporated as a special purpose vehicle to produce for the ABC the consumer affairs television series that later became known as The Checkout”.

6. [101]

   In these circumstances, and in the light of evidence I have set out, I find that:

   1. (1)

      there was a joint venture between Giant Dwarf and Cordell Jigsaw;

   2. (2)

      the sole purpose of the joint venture was to pitch and, if successful, produce a consumer affairs show, ultimately The Checkout, for the ABC;

   3. (3)

      it was a term of the joint venture that decisions would be made between Mr Morrow and Mr Murray by agreement and thus, in effect, that each shareholder had a power of veto in relation to any decision; [11] and

   4. (4)

      each of Giant Dwarf and Cordell Jigsaw could determine whether the Joint Venture Company continued to produce The Checkout for the ABC.

7. [102]

   It follows from these findings that there was a potential for deadlock between Giant Dwarf and Cordell Jigsaw, and thus, in effect, between Mr Morrow and Mr Murray, if either decided that he no longer wished to produce The Checkout within the joint venture. As I set out below, Mr Morrow’s case is that this was his position as at February 2019; that is, that he no longer wished to produce The Checkout so long as Cordell Jigsaw, and thus, in effect, Mr Murray, remained his joint venturer. There was no agreed mechanism for resolving any such deadlock. For practical purposes, the only means by which such a deadlock could be resolved would be for one of the joint venturers to buy out the other.

The alleged implied term of the Joint Venture Agreement

1. [103]

   Cordell Jigsaw and Mr Murray contend that it was an implied term of the joint venture that each joint venturer would inform the other of any “opportunity” to produce a further series of The Checkout, or a similar show, and to cause the joint venture to have the benefit of that opportunity.

2. [104]

   A critical question in the proceedings is whether there was any such implied term in the Joint Venture Agreement.

3. [105]

   If there was, this has significant implications for Cordell Jigsaw’s and Mr Murray’s case against Giant Dwarf and Mr Morrow concerning Giant Dwarf’s alleged breach of the Joint Venture Agreement, Mr Morrow’s alleged breach of his duty as a director of the Joint Venture Company and Mr Morrow’s and Giant Dwarf’s alleged engagement in misleading or deceptive conduct.

4. [106]

   Cordell Jigsaw and Mr Murray pleaded the implied term as follows:

5. [107]

   In closing submissions, Ms Chrysanthou did not dispute the term concerning cooperation referred to in subpar (a) of the previous paragraph.

6. [108]

   As to the terms alleged in subpars (b) to (d), it was common ground that such a term could only be implied into the Joint Venture Agreement if the five familiar requirements established by the authorities were made out namely that the proposed implied term was: [12]

7. [109]

   As to whether the posited implied term was reasonable and equitable, Ms Chrysanthou accepted that the term “may be equitable” but submitted that the term was “not reasonable because it unreasonably neutered each of the joint venturers”.

8. [110]

   That submission was not developed.

9. [111]

   Giant Dwarf and Cordell Jigsaw were independent television producers that were otherwise in competition with each other. It is no part of Mr Murray’s case that he and Mr Morrow could not, concurrently with the joint venture between them, produce consumer affairs television programs other than The Checkout.

10. [112]

    Each of Mr Morrow and Mr Murray acted as if they could, during the life of the joint venture, pitch and promote consumer television programs other than The Checkout. Mr Morrow stated, in terms, in cross-examination that:

11. [113]

    As I set out below, Mr Murray was, evidently, of the same opinion.

12. [114]

    An implied term of the kind advocated for by Mr Murray would not hinder or “neuter” such activity, as long as the proposed consumer affairs show was not The Checkout itself or an “equivalent” or “similar” show.

13. [115]

    The posited implied term would prevent Mr Morrow and Mr Murray pitching or producing a show able to be, or intended or designed to be, a substitute for The Checkout or a show actually to be called The Checkout.

14. [116]

    But it would not “unreasonably neuter” the joint venturers.

15. [117]

    As to whether the posited term was reasonably necessary to give business efficacy to the Joint Venture Agreement, Ms Chrysanthou simply asserted that it was “completely unnecessary” to imply the term, evidently because the Joint Venture Agreement “operated for 6 seasons” without the need for either party to resort to it.

16. [118]

    However, until the events with which these proceedings are concerned occurred, there was no cause to consider whether there was any term implied into the Joint Venture Agreement of the kind now suggested by Mr Murray.

17. [119]

    The Joint Venture Company was established for the sole purpose of pitching and producing the show that became The Checkout. If either party could, without informing the other, take advantage of an opportunity to produce a further series of The Checkout or an equivalent or similar show, and thus in effect step outside the joint venture by taking advantage of that opportunity for themselves, it would render nugatory the Joint Venture Agreement. Thus, the posited implied term is, in my opinion, necessary to give business efficacy to the Joint Venture Agreement.

18. [120]

    As to whether the posited term was so obvious that it went without saying, Ms Chrysanthou submitted that it was “not so obvious as to go without saying in light of the fact that the very structure of the joint venture could throw up a deadlock that could continue for the rest of … [the] mercantile endeavour”.

19. [121]

    It is true, as I have set out above, that there was no express mechanism for resolving any deadlock that might arise if either Mr Morrow or Mr Murray vetoed production by the Joint Venture Company of any further series of The Checkout. In that event, unless either joint venturer bought the other out, the Joint Venture Company would not produce any further series.

20. [122]

    But I do not see how it follows from this that the posited term was not obvious. It is directed to a different situation namely, relevantly to this case, one where one party purported to exercise the right of veto against the Joint Venture Company from producing a further series of The Checkout but, allegedly, was given an opportunity to produce a further series of the same show, or an equivalent or similar show.

21. [123]

    If there were no such term of the Joint Venture Agreement then if, at any stage, an opportunity arose for a further series of The Checkout, or of a show equivalent or similar to The Checkout to be produced, then either joint venturer could veto the Joint Venture Company from pursuing the opportunity and, without informing the other, step outside the joint venture and themself take the benefit of that opportunity.

22. [124]

    There is an issue in this case as to whether any such opportunity in fact arose. But I think it obvious that the parties intended that if that occurred the opportunity would be directed to the Joint Venture Company and not be appropriated by the party that had exercised the right of veto.

23. [125]

    The matter may be tested this way. If, at their meeting in December 2010, Mr Murray had asked Mr Morrow whether, following six successfully produced series of the proposed consumer affairs show for the ABC, either one had vetoed further production but had then been approached by the ABC to produce a further series of the same or an equivalent or similar show, it would be open to that person to exploit that opportunity himself, what would Mr Morrow’s response have been? It is obvious that a reasonable person in Mr Morrow’s position would have responded: “of course not”.

24. [126]

    As to whether the posited term is capable of clear expression, Ms Chrysanthou submitted that the expressions “opportunity”, “consumer affairs program”, “equivalent” and “similar” were ambiguous and that “the Court cannot imply to a contract an uncertain term”.

25. [127]

    I see no uncertainty about these expressions. It may be that nice factual questions will arise as to whether they are established in this case. But the Court is well accustomed to dealing with such matters. It is, of course, for Mr Murray and Cordell Jigsaw to establish that the implied term has been engaged.

26. [128]

    Finally, as to whether the posited term is contradictory of an express term of the Joint Venture Agreement, Ms Chrysanthou submitted that the term contradicted the express term of the Joint Venture Agreement “being the production of a singular show for the ABC … by requiring concepts for any equivalent or similar consumer affairs program to also be brought to the joint venture”.

27. [129]

    I see no inconsistency between it being the object of the joint venture that the joint venturers produce a “singular” show and for it to be a term of the Joint Venture Agreement that the joint venturers direct any opportunity to produce further series of that “singular” show, or any equivalent or similar consumer affairs program, to the joint venture.

28. [130]

    Ms Chrysanthou also submitted that the posited implied term would be inconsistent with the express “all things by agreement” term because “this was not agreed”. The express term to which Ms Chrysanthou referred was that all decisions concerning the joint venture be made by agreement. Again, I see no inconsistency between that term and a term ensuring that further opportunities to produce the show for which the joint venture was established, or an equivalent or similar show, be directed to the joint venture.

29. [131]

    For these reasons, I am satisfied that there was an implied term of the Joint Venture Agreement of the kind contended for by Mr Murray and Cordell Jigsaw.

The nature of Mr Morrow’s duties as director of the Joint Venture Company

1. [132]

   In his Cross-Claim List Response, Mr Morrow admitted that ss 181, 182 and 191 of the Corporations Act 2001 (Cth) applied to him as a director of the Joint Venture Company.

2. [133]

   Mr Morrow thus accepted that he must:

3. [134]

   In the Cross-Claim List Statement, Mr Murray and Cordell Jigsaw also alleged that Mr Morrow owed the Joint Venture Company a fiduciary duty under the general law:

4. [135]

   In the Cross-Claim List Response, Mr Morrow and Giant Dwarf denied that the duty of each director of the Joint Venture Company was as expressed in the previous paragraph and contended that each of Mr Murray and Mr Morrow were aware that the other:

5. [136]

   The latter contentions evidently related to a submission made by Ms Chrysanthou that each of Mr Morrow and Mr Murray were free to compete with the Joint Venture Company.

6. [137]

   In this regard, Ms Chrysanthou pointed to the fact that Mr Murray and Cordell Jigsaw had pleaded that Mr Murray and Mr Morrow were appointed as directors of the Joint Venture Company “as a representative of” Cordell Jigsaw and Giant Dwarf respectively and submitted that “this is informed consent for each director to act in competition with the [Joint Venture Company]”.

7. [138]

   In closing oral submissions, Ms Chrysanthou put the proposition this way:

8. [139]

   We had this exchange:

9. [140]

   I do not accept that submission. While Mr Morrow and Mr Murray were no doubt appointed directors as representatives of Giant Dwarf and Cordell Jigsaw, they owed independent duties as directors to the Joint Venture Company. Although both Mr Morrow and Mr Murray knew that, outside of the joint venture, the other was engaging in television production, it cannot follow that as directors of the Joint Venture Company they could act otherwise than in that company’s interests.

Mr Murray’s and Cordell Jigsaw’s case concerning Mr Morrow’s breaches of duty

1. [141]

   As developed in final submissions, Mr Murray’s and Cordell Jigsaw’s case was that, as a director of the Joint Venture Company, Mr Morrow owed the Joint Venture Company:

2. [142]

   Mr Murray and Cordell Jigsaw also contended that, in the circumstances of this case, Mr Murray, as a director of the Joint Venture Company, owed a fiduciary duty to Cordell Jigsaw as a 50% shareholder in the Joint Venture Company, to:

3. [143]

   I will set out below how Mr Katekar developed these arguments.

4. [144]

   However, I will now turn to a narration of the events that led to the Share Sale Agreement. In the course of that narration, I will consider the question of whether a “commercial opportunity” of the kind for which Mr Murray and Cordell Jigsaw contended arose during Mr Morrow’s negotiations with the ABC.

Common ground that Mr Morrow and Mr Murray were free to develop and produce consumer affairs shows other than The Checkout or shows equivalent or similar to The Checkout?

1. [145]

   Before doing so, I observe that it is common ground that the Joint Venture Company was created with the single purpose of producing the consumer affairs show that ultimately became The Checkout.

2. [146]

   Mr Morrow and Mr Murray did not expressly agree that, apart from The Checkout, they would be free to develop and produce consumer affairs shows other than The Checkout or shows similar to or equivalent to The Checkout.

3. [147]

   However, during 2018 and 2019 both Mr Morrow and Mr Murray acted on this basis.

4. [148]

   I will set out in detail below the course of Mr Morrow’s discussions with the ABC; initially concerning his protestations against the ABC’s decision not to commission a further series of The Checkout in the 2018/2019 year and his subsequent negotiations for a “new” consumer affairs show that ultimately became The Checkout.

5. [149]

   During the 2018/2019 year, Mr Murray also contemplated the possibility that Cordell Jigsaw would pitch to the ABC a consumer affairs show to be tentatively described as “Fraud Squad”.

6. [150]

   Ultimately, nothing came of this.

7. [151]

   Mr Murray denied that this proposed show was a “consumer affairs” show, although it obviously was.

8. [152]

   However, I do not find Cordell Jigsaw’s flirtation with this possibility to have significance in this case.

9. [153]

   I also add, at this stage, that in the middle of 2019 Cordell Jigsaw was pitching to the ABC a show called “Reputation Rehab”. This was not a consumer affairs show and, again, despite the emphasis placed on it during counsels’ submissions, I do not find Mr Murray’s nor Cordell Jigsaw’s activities in relation to this show to have any relevance to the issues that I must decide.

10. [154]

    Accordingly, I make no further reference to these matters.

The decision of the ABC to place The Checkout on “hiatus” and Mr Morrow’s reaction

1. [155]

   As I have mentioned, production of series six of The Checkout finished in April 2018.

2. [156]

   At that point, if the ABC was going to commission series seven, it seems likely that the series would have been produced by the Joint Venture Company in the same way as before.

3. [157]

   It was not to be.

4. [158]

   On 4 July 2018, Ms Josie Mason-Campbell, then Head of Non-Scripted Production at the ABC, informed Mr Morrow by telephone that the ABC was unlikely to be able to fund The Checkout in the 2018/2019 financial year.

5. [159]

   On the same day, Ms Mason-Campbell and her colleague, Mr Richard Huddleston, then Supervising Executive Producer, Entertainment and Development at the ABC, told Mr Murray that the ABC was not going to produce further series of The Checkout.

6. [160]

   On 4 July 2018, Mr Michael Carrington, then Acting Head of Content Distribution at the ABC wrote to Mr David Anderson, then ABC Director of Entertainment & Specialist, and shortly thereafter the Acting Managing Director of the ABC, [14] and to Ms Mason-Campbell:

7. [161]

   At that time, the ABC was preparing a draft statement for the media about its decision.

8. [162]

   On the same day, Mr Morrow sent a text message to Mr Anderson, stating:

9. [163]

   There is no evidence Mr Anderson responded to this message.

10. [164]

    A short time later, Mr Morrow sent a message to Mr Murray:

11. [165]

    Mr Murray did not respond.

12. [166]

    At around 9.30 am on 6 July 2018, Ms Mason-Campbell telephoned Mr Morrow and told him that the ABC would not fund The Checkout in the 2018/2019 financial year. Mr Morrow said that he tried to persuade Ms Mason-Campbell that there were ways to make the show “which would cost the ABC less” but that Ms Mason-Campbell “refused, repeatedly, to countenance any of these proposals.” Mr Morrow said he concluded from this that “Josie had no intention of bringing The Checkout back to ABC Television”.

13. [167]

    A short time later, and before the ABC had made an announcement about putting The Checkout on hiatus, Mr Morrow published a Tweet as follows:

14. [168]

    The reference in the fifth paragraph of this Tweet to the “ABC’s Head of Non-Scripted Production” was to Ms Mason-Campbell.

15. [169]

    Mr Morrow had given the ABC no notice of his intention to publish the Tweet.

16. [170]

    During the afternoon of 6 July 2018, Mr Murray telephoned Mr Morrow to remonstrate Mr Morrow’s indirect reference to Ms Mason-Campbell in his Tweet. Mr Murray said:

17. [171]

    Mr Morrow said that, after that call, he said to a friend, Mr Sholto McPherson:

18. [172]

    Mr Morrow’s reference to the “CEO of Nick’s company” was a reference to Mr Matthew Campbell who was then the Chief Executive Officer of Cordell Jigsaw. Mr Campbell was then married to Ms Mason-Campbell.

19. [173]

    Mr Morrow and Mr Murray did not speak to each other again until the Duck Inn Meeting on 19 February 2019.

20. [174]

    The ABC made a public announcement about its decision later on 6 July 2018 as follows:

21. [175]

    As at 6 July 2018, Mr Murray believed, based on what he had heard from sources within the ABC, that The Checkout was not going to be made again.

22. [176]

    The following day, 7 July 2018, Mr Morrow sent a further text message to Mr Anderson:

23. [177]

    On 9 July 2018, Mr Morrow published a further Tweet:

24. [178]

    On 24 July 2018, Mr Morrow published a further Tweet:

25. [179]

    In his affidavit, Mr Murray said that he read these Tweets at the time. In cross-examination, he agreed that in fact he did not see them until after these proceeding were commenced. Ms Chrysanthou criticised Mr Murray about this but, as I have said, I do not see credit as a significant factor in this case.

26. [180]

    On 24 July 2018, Mr Morrow wrote to Ms Michelle Guthrie, then the Managing Director of the ABC, and Mr Justin Milne, then the Chairman of the ABC, arguing for the ABC to reconsider its decision.

27. [181]

    Mr Morrow’s letter included:

28. [182]

    Mr Morrow attached to that letter a document headed “Reactions to the ABC’S Decision Re The Checkout”.

29. [183]

    In that annexure it was stated, under Mr Morrow’s hand, that:

30. [184]

    Mr Morrow continued:

31. [185]

    On 31 July 2018, Mr Morrow met with Ms Guthrie from the ABC.

32. [186]

    In what evidently was a briefing note prepared for Ms Guthrie for the purpose of the meeting, it was stated, under the heading “Recommendation”:

33. [187]

    Mr Morrow said that Ms Guthrie did not say anything to this effect at the meeting.

34. [188]

    The following day, 1 August 2018, Mr Morrow sent an email to Ms Guthrie and Mr Anderson which concluded:

35. [189]

    On 14 August 2018, Mr Anderson participated in a radio interview with Mr Richard Glover during which they had the following exchange about The Checkout:

36. [190]

    This was the first public statement that the ABC had made about The Checkout since its announcement on 6 July 2018.

37. [191]

    Throughout August 2018, Mr Morrow continued to contact Mr Anderson seeking to convince the ABC to reverse its decision concerning The Checkout.

38. [192]

    Eventually, Mr Morrow was able to arrange a meeting with Mr Anderson on 17 August 2018. Mr Morrow said that during the meeting Mr Anderson said words to the effect of:

39. [193]

    In an email Mr Morrow later sent Mr Anderson on 8 October 2018, he said that, at the 17 August 2018 meeting:

40. [194]

    This appears to be the first occasion on which Mr Morrow communicated with the ABC about a “another TV project” as opposed to reinstatement of series seven of The Checkout.

41. [195]

    On 24 August 2018, Mr Morrow followed the matter up with Mr Anderson in a text message:

42. [196]

    In the meantime, Mr Morrow’s continuing disenchantment with the ABC’s decision to “hiatus” The Checkout was reflected in words attributed to him in the 30 August 2018 edition of the magazine Justinian.

43. [197]

    Under the heading “Why did Aunty can The Checkout?” Mr Morrow is quoted as saying:

44. [198]

    This material was included in the Court Book without objection, from which I infer that Mr Morrow agreed it to be accurate. It shows, as did Mr Morrow’s July 2018 Tweets, that Mr Morrow was not shy about publicly criticising the ABC; despite it being his long standing and major client.

Further discussions for a possible new “consumer show”

1. [199]

   On 4, 7 and 17 September 2018, with characteristic persistence, Mr Morrow followed up with Mr Anderson his enquiry of 24 August 2018 to “touch base” about “another consumer project”.

2. [200]

   Ultimately, on 19 September 2018 Mr Anderson telephoned Mr Morrow and they had this conversation:

3. [201]

   Although Mr Morrow suggested that he and Mr Anderson proceed on the basis that they were talking about a “new consumer show”, his language in this conversation bespeaks a continued desire, one way or another, to be involved in the production of a further series of The Checkout.

4. [202]

   Indeed, as I set out below, eight months later, on 4 June 2019, and almost two months after Giant Dwarf and Cordell Jigsaw had executed the Share Sale Agreement, Mr Morrow wrote to Mr Anderson:

5. [203]

   In cross-examination Mr Morrow said of this:

6. [204]

   Although Mr Morrow did say this to Mr Anderson on this occasion, the manner in which Mr Morrow expressed himself in the June 2019 email suggests to me that, as far back as October 2018, he had in mind the possibility of producing a further series of The Checkout; without any involvement of Mr Murray.

7. [205]

   Several days later, on 25 September 2018, Mr Anderson, who had by then been appointed Acting Managing Director of the ABC, was interviewed by Mr Michael Rowland on ABC News Breakfast. They had this exchange:

8. [206]

   This was the third public statement following the ABC’s decision to “hiatus” The Checkout. Notably, on this occasion, it was made by the newly appointed Acting Managing Director. It showed that the ABC’s public position was that it would likely produce a further consumer affairs show; and that it may well be a further series of The Checkout.

9. [207]

   As only the Joint Venture Company was entitled to produce The Checkout, this must have made clear to Mr Morrow that an opportunity may well exist for the Joint Venture Company to produce such a further series.

10. [208]

    On 8 October 2018, Mr Morrow again wrote to Mr Anderson. His email opened with the reference to their 17 August 2018 meeting that I have set out above, [16] and continued:

The Post, Digital and Visual Effects Offset determination

1. [209]

   On 19 December 2018, the Australian Taxation Office issued a certificate confirming the Joint Venture Company’s entitlement to a Post, Digital and Visual Effects Offset under ss 376-45 Div 376 of the Income Tax Assessment Act 1997 (Cth) of $963,018 for series five of The Checkout and $995,448 for series six. The Joint Venture Company was entitled to a rebate of 30% of this amount, some $585,000 payable on 25 January 2019.

2. [210]

   The parties referred to this as the “PDV Offset”. It assumes significance in relation to Mr Morrow’s discussions with Mr Murray and Cordell Jigsaw’s Chief Financial Officer, Mr Simon Fraser, in February 2019 concerning the sale of Cordell Jigsaw’s shares in the Joint Venture Company. I return to this below.

Mr Morrow’s discussions with the ABC continue

1. [211]

   Also on 19 December 2018, Mr Morrow spoke to Mr Anderson. Following that conversation, he sent an email to Mr Carrington:

2. [212]

   On 20 December 2018, Mr Morrow spoke to Mr Carrington. Mr Morrow’s note was that he said to Mr Carrington:

3. [213]

   Mr Morrow’s note was that Mr Carrington replied that he was “waiting on a brief from Ent”. [19]

4. [214]

   In his documents of 19 and 20 December 2018, Mr Morrow referred to a “possible project” and a “possible consumer show”.

5. [215]

   But I think it likely that Mr Morrow spoke to Mr Carrington about alternative possibilities: a new consumer affairs show; or a recommissioning of The Checkout.

6. [216]

   Thus, on the same day Mr Carrington sent an email to Ms Mason-Campbell and others at the ABC:

7. [217]

   Mr Carrington’s reference in this email to “recommission” was obviously a reference to the possibility of recommissioning The Checkout.

8. [218]

   In cross-examination Mr Morrow said that, during that conversation, Mr Carrington “didn’t mention The Checkout, and neither did I, I don’t think”.

9. [219]

   I think it unlikely that Mr Morrow’s recollection about this is correct. On 19 September 2018 Mr Morrow had told Mr Anderson that “I think the ABC should want The Checkout”. What Mr Carrington recorded in his email to Ms Mason-Campbell is consistent with that.

10. [220]

    Further, although this document was admitted only as evidence of what was contained in the ABC’s records, and not itself as evidence of the truth of its contents, Mr Morrow made reference to it in his affidavit dealing with his conversation with Mr Carrington. He did not then suggest that it did not accurately reflect the terms of their conversation.

11. [221]

    The email was evidently sent by Mr Carrington immediately after his telephone conversation with Mr Morrow. There was no reason why Mr Carrington would not give his colleagues an accurate summary of the conversation.

12. [222]

    In the circumstances, the inference I draw is that this email accurately records what was agreed.

13. [223]

    Accordingly, I find that on 20 December 2018 Mr Morrow and Mr Carrington agreed that discussions would resume about the possibility of recommissioning The Checkout or, alternatively, developing a new consumer show.

14. [224]

    Mr Morrow followed Mr Carrington up with an email on 24 January 2019:

15. [225]

    The following day, 25 January 2019 the Joint Venture Company received the PDV Offset of $585,692.09.

16. [226]

    Mr Morrow arranged to meet representatives from the ABC in early February 2019.

17. [227]

    On 1 February 2019 he wrote to Mr Carrington:

18. [228]

    This email shows that although on 20 December 2018 Mr Morrow and Mr Carrington had discussed a “new consumer show” as an alternative to a “recommission” of The Checkout, Mr Morrow was expressing himself here in terms of a “new half hour consumer affairs show”.

Mr Morrow consults Giant Dwarf’s accountants

1. [229]

   On 6 February 2019 Mr Morrow wrote to Ms Jacqui Crouch, the accountant acting for the Joint Venture Company and for Giant Dwarf.

2. [230]

   Mr Morrow’s email was headed “Shareholder arrangements & PDV Offset rebate distributions”. In his email, Mr Morrow suggested that the PDV Offset should be distributed between Giant Dwarf and Cordell Jigsaw on a 60/40 basis – $352,523.88 to Giant Dwarf and $235,015.92 to Cordell Jigsaw.

3. [231]

   Mr Morrow also said he had reviewed the draft Shareholder Agreements exchanged with Mr Murray in 2014 and 2016 and that:

The 13 February 2019 meeting at the ABC

1. [232]

   On 13 February 2019, Mr Morrow, together with Ms Rebecca Annetts, an employee of Giant Dwarf and the producer of series six of The Checkout, met with Mr Huddleston and Mr Carrington from the ABC.

2. [233]

   Mr Morrow’s note of the meeting is a little cryptic and includes these entries:

3. [234]

   Later on 13 February 2019 Mr Huddleston sent Mr Carrington an email which stated:

4. [235]

   Mr Carrington also sent a copy of these notes to Mr Anderson stating that he had had a follow up meeting with Mr Murray “regarding a consumer affairs show” and attached “the notes for your reference”.

5. [236]

   There was debate before me as to whether the document that Mr Carrington attached was a briefing note prepared before the meeting with Mr Morrow and Ms Annetts or was a record of what was said at the meeting.

6. [237]

   The note states under the heading “The Brief”:

7. [238]

   Under the heading “The Potential Models” the note referred to an hour long show launched once a month, a once a week “digital offer” and a “5-7 minute daily show”. These references appear to be consistent with Mr Morrow’s note of the meeting.

8. [239]

   The note continued:

9. [240]

   Like all of the documents produced by the ABC on subpoena, this document was admitted as evidence only of the fact that it was included in the ABC’s records. Mr Morrow said that he did not believe that he had said anything to that effect at the meeting. However, the language in the passage I have just set out suggests that this was a matter discussed at the meeting.

10. [241]

    Under the heading “The Questions”, the note stated:

11. [242]

    This part of the note reads as if it is out setting questions that the ABC was internally posing for its consideration. Mr Morrow said that these matters were not discussed at the meeting.

12. [243]

    Under the heading “Time Line Restrictions”, the note recorded:

13. [244]

    Mr Morrow said that he did not say this although it is hard to see why Mr Huddleston would record this in the note had it not been said.

14. [245]

    On the topic of this meeting, Ms Annetts said in her affidavit:

15. [246]

    In cross-examination, Ms Annetts said that her recollection did not extend beyond what she had said in her affidavit. In particular, she said that she did not recall there being any reference at this meeting to The Checkout.

16. [247]

    The following day, 14 February 2019, Mr Peter Munro, a Communications Lead and Entertainment Specialist at the ABC, sent an email to Ms Emma McDonald from the ABC in which he stated:

17. [248]

    Neither Mr Munro nor Ms McDonald was present at the 13 February 2019 meeting between Mr Morrow, Mr Carrington and Mr Huddleston. Evidently, Mr Munro’s statement about Mr Morrow stating that he “still wants to do The Checkout” was based on something that either Mr Carrington or Mr Huddleston said.

18. [249]

    Mr Munro’s email to Ms McDonald is in evidence only as evidence of the fact of the communication and not as evidence of the truth of its contents.

19. [250]

    However, in cross-examination Mr Morrow gave this evidence about this communication:

20. [251]

    In these circumstances, I draw the inference that, consistently with the statements he had earlier made to the ABC, Mr Morrow did say to Mr Carrington and Mr Huddleston at the meeting of 13 February 2019 that he “still wanted to do The Checkout”.

21. [252]

    I draw this inference, notwithstanding the limited basis upon which I admitted Mr Munro’s email to Ms McDonald and notwithstanding the fact that Mr Munro was not present at the meeting because:

22. [253]

    Mr Morrow said that, after the 13 February 2019 meeting, he was confused as to the ABC’s intentions. It does seem clear from the evidence that neither Mr Carrington nor Mr Huddleston had formed a view about what course the ABC would adopt concerning a future consumer affairs show.

23. [254]

    However, for the reasons I have set out, I find that while discussing a possible new consumer affairs show with Mr Carrington and Mr Huddleston, Mr Morrow again raised the possibility of recommissioning The Checkout; consistently with his discussions with Mr Carrington on 20 December 2018.

Mr Morrow resumes contact with Mr Murray

1. [255]

   Within minutes of his meeting with Mr Carrington and Mr Huddleston, Mr Morrow sent Mr Murray a message. This was Mr Morrow’s first communication with Mr Murray since the telephone call on 6 July 2018 in which Mr Murray chastised Mr Morrow for referring to Ms Mason-Campbell (albeit not by name) in his 6 July 2018 Tweet.

2. [256]

   Mr Morrow had not told Mr Murray about any of the communications he had had with representatives of the ABC between 6 July 2018 and 13 February 2019.

3. [257]

   Mr Morrow’s message read:

4. [258]

   Mr Morrow’s message was directed only to the issue of the PDV Offset. He made no mention of the discussion he had had with Mr Carrington and Mr Huddleston only minutes before sending his message, nor of any of his previous communications with the ABC.

5. [259]

   Mr Morrow and Mr Murray agreed to meet at the Duck Inn, in Chippendale, on 19 February 2019.

The 19 February 2019 meeting at the Duck Inn

1. [260]

   The Duck Inn Meeting between Mr Morrow and Mr Murray assumes importance in this case. Mr Morrow and Mr Murray have differing recollections of what was said.

2. [261]

   Neither Mr Morrow nor Mr Murray made a note of the conversation, although, as I set out below, Mr Morrow wrote about it to Mr Fraser the following day.

3. [262]

   Mr Morrow agreed that the meeting was “friendly” and that he did not wish to arouse Mr Murray’s “hostility”.

4. [263]

   Mr Morrow’s account of the conversation is as follows:

5. [264]

   Mr Morrow recounted that he also said:

6. [265]

   Mr Murray’s account of the conversation was as follows:

7. [266]

   Although Mr Morrow and Mr Murray have differing recollections as to the above emphasised aspects of their meeting, both agree that:

8. [267]

   Mr Morrow and Mr Murray further agree that Mr Morrow suggested that it was time to “draw a line under” the joint venture and that Mr Morrow spoke of the “unlikely event” of The Checkout returning. [22]

9. [268]

   It is also common ground that Mr Morrow did not mention to Mr Murray his communications since July 2018 with the ABC, including his meeting with Mr Carrington and Mr Huddleston on 13 February 2019.

10. [269]

    In that regard, Mr Morrow gave this evidence in response to questions from me:

11. [270]

    I did not find Mr Morrow’s response to my questions to be convincing. If, as Mr Morrow said, he thought that Giant Dwarf was entitled to make a consumer affairs project without reference to the Joint Venture Company or Cordell Jigsaw, consistently with his understanding of the terms of the Joint Venture Agreement, there was no reason for him not to mention to Mr Murray those communications. A more likely reason for Mr Morrow not to have said anything to Mr Murray about this was his understanding that the ABC remained open to the possibility of recommissioning The Checkout; a matter that I find Mr Morrow did not wish to raise with Mr Murray in the context of “drawing a line” under the joint venture.

12. [271]

    There is a dispute between Mr Morrow and Mr Murray as to whether Mr Morrow said anything to the effect that there was a “terminal disincentive” to Giant Dwarf being involved in any further series of The Checkout or anything to the effect that “the way things stand, Giant Dwarf just wouldn’t make The Checkout again”.

13. [272]

    Mr Morrow relied upon these statements as evidence of him exercising the right of veto that, as I have set out above, was a term of the Joint Venture Agreement.

14. [273]

    Mr Murray’s evidence was that Mr Morrow “did not use the words ‘terminal disincentive’ in that conversation” and that “the financial viability of the Joint Venture was never discussed”.

15. [274]

    I am not persuaded that Mr Morrow spoke as emphatically as he asserted he did about this matter.

16. [275]

    At a meeting which took place three days later, on 22 February 2019, between Mr Morrow, Mr Fraser, Ms Crouch and her assistant Ms Chen, Ms Chen made a contemporaneous note that the “current agreement does not incentivise” Mr Morrow to “continue doing more” series of The Checkout. Ms Chen’s note is likely to be an accurate summary of what was said on 22 February 2019. This suggests to me that it is likely Mr Morrow also said something to this effect to Mr Murray at the 19 February 2019 meeting at the Duck Inn. I return to Ms Chen’s note below.

17. [276]

    There was also a dispute as to whether, as Mr Murray deposed, Mr Morrow said anything to the effect that he was finding “making TV so unpleasant myself that I never want to work in TV again” and that he could get by “doing corporate speaking gigs”.

18. [277]

    In his affidavit evidence, Mr Morrow responded to this evidence by stating:

19. [278]

    Mr Morrow accepted in cross-examination that it was incorrect for him to have deposed that the ABC had not told him they “wanted a consumer affairs show”.

20. [279]

    As the evidence I have set out above shows, and as Mr Morrow must have known when he made his affidavit, the ABC had made clear on a number of occasions prior to 19 February 2019 that it did wish to produce a further consumer affairs show. Further, the discussions on 19 and 20 December 2018 and 13 February 2019 show that the ABC was open to the possibility of there being a further series of The Checkout, although no decision had yet been made about that.

21. [280]

    In that regard, Mr Morrow gave this evidence, again, in response to questions from me:

22. [281]

    I did not find this to be a satisfactory explanation for the evidence that Mr Morrow gave in his affidavit. The evidence was simply untrue, as Mr Morrow must have known.

23. [282]

    This provides the context for Mr Morrow’s denial of having said words to the effect that “I never want to work in TV again”. It seems unlikely that this truly represented Mr Morrow’s state of mind. He had spent the last seven months trying to persuade the ABC to make a consumer affairs television show that he would produce and, six days earlier, had the meeting with Mr Carrington and Mr Huddleston to discuss that possibility.

24. [283]

    In cross-examination, Ms Chrysanthou suggested to Mr Murray that he had “made up” his evidence about Mr Morrow having said he never wanted to work again in television. Mr Murray appeared to me to be very confident that his recollection was correct.

25. [284]

    Some months later, on 13 June 2019, Mr Murray wrote to Mr Morrow’s and Giant Dwarf’s then solicitor, Mr Michael Easton:

26. [285]

    I find this email to be a reasonably contemporaneous confirmation of the correctness of Mr Murray’s recollection about what Mr Morrow said about this.

27. [286]

    Ms Chrysanthou pointed out that the email was sent almost four months after the 19 February 2019 meeting at the Duck Inn. However, I do not see this as a reason to doubt that it accurately reflects Mr Murray’s recollection of what Mr Morrow said on 19 February 2019.

28. [287]

    Mr Morrow’s denial of having said words to this effect should, in my opinion, be seen in the context of his immediately preceding, and false, evidence that the ABC had not told him, as at 19 February 2019, that it wished to present a consumer affairs show. I find that Mr Morrow did say the words attributed to him by Mr Murray. They cannot have reflected his true state of mind. They must have been said to deflect Mr Murray’s attention from the prospect of Mr Morrow’s further involvement in any potential recommissioning of The Checkout.

29. [288]

    In his affidavit dealing with the conversation at the Duck Inn Meeting, Mr Murray did not dispute that Mr Morrow said words to the effect that if it turned out that the ABC did wish to broadcast a consumer affairs show “it would make more sense” for Giant Dwarf to produce that show.

30. [289]

    Nor did Mr Murray dispute that Mr Morrow had said that it “would be better for everyone if we could find some way that The Checkout could be made again”.

31. [290]

    In those circumstances, I accept that Mr Morrow did say something to this effect.

32. [291]

    It appears that the “way” in which Mr Morrow was suggesting that “we” (that is he and Mr Murray) could “find” for The Checkout to be made again was for Cordell Jigsaw to sell its shares in the Joint Venture Company to Giant Dwarf.

33. [292]

    That idea was eventually reflected in the terms of the Share Sale Agreement making provision for the Joint Venture Company to pay Cordell Jigsaw a 2% fee on the Joint Venture Company’s cash budget “on subsequent series of The Checkout produced by” the Joint Venture Company, Giant Dwarf “or any affiliated company or subsidiary”.

34. [293]

    I return to these matters below.

Events following the Duck Inn Meeting

1. [294]

   The following day, 20 February 2019, Mr Morrow sent an email to Mr Simon Fraser, the Chief Financial Officer of Cordell Jigsaw, with a copy to Mr Murray:

2. [295]

   The terms of the email were apt to direct Mr Fraser’s attention to the question of how the PDV Offset should be dealt with. The email was headed “PDV Rebate Distribution”. The first three paragraphs refer to Mr Morrow’s discussion with Mr Murray about distribution of the PDV Offset, how that should be achieved, and why Giant Dwarf wished the matter to be dealt with in the near future.

3. [296]

   In the email, Mr Morrow does refer to his suggestion to Mr Murray the previous day that they draw “a line under the Joint Venture”, but only in the context of “options for the PDV Offset Rebate”.

4. [297]

   I think it likely that Mr Morrow composed the email with the object of suggesting to Mr Fraser, and through him Mr Murray, that his motivation in “drawing a line under the Joint Venture” was concerned only with the PDV Offset. This email was the first in a series in which Mr Morrow in this way “managed the message” [24] he was conveying to Mr Murray.

5. [298]

   On the same day, Mr Morrow sent Mr Murray a message:

6. [299]

   The following day, 21 February 2019, Mr Fraser telephoned Ms Crouch. They discussed possible ways of distributing the PDV Offset. The possibilities discussed included:

7. [300]

   Mr Fraser said:

8. [301]

   On 21 February 2019, Mr Fraser sent an email to Mr Murray concerning his telephone conversation with Ms Crouch:

9. [302]

   The passage I have emphasised suggests that Mr Fraser contemplated the possibility that Cordell Jigsaw might sell its share in the Joint Venture Company to Giant Dwarf, and that thereafter there might be an “ongoing series” of The Checkout; to be produced by Giant Dwarf or some other entity associated with Mr Morrow. This possibility had been foreshadowed by Mr Morrow at the Duck Inn Meeting when he said it would make “more sense” for Giant Dwarf to produce any new consumer affairs show for the ABC and that it would be better if “we” found “some way” for The Checkout to be made again.

22 February 2019 meeting

1. [303]

   On 22 February 2019, Mr Fraser met with Mr Morrow and with Ms Crouch and Ms Chen.

2. [304]

   Mr Fraser said that, immediately before the meeting, he spoke briefly with Mr Murray, Mr Matthew Campbell (who, it will be recalled, was the Chief Executive Officer of Cordell Jigsaw and then married to Ms Mason-Campbell, the Head of Non-Scripted Production at the ABC) and Ms Shortland from Cordell Jigsaw. Mr Fraser said the following conversation took place:

3. [305]

   As I have mentioned, Ms Chen made a contemporaneous note of what was discussed at the meeting.

4. [306]

   Ms Chen’s note shows that the bulk of the discussions at the meeting concerned the manner in which the PDV Offset should be distributed.

5. [307]

   The only reference in Ms Chen’s note to any future possible series of The Checkout is that to which I have referred. That part of the note reads, in full:

6. [308]

   Mr Morrow gave evidence that the following conversation occurred with Mr Fraser:

7. [309]

   Thus, on Mr Morrow’s account of it, he repeated at this meeting the statement that he said he made to Mr Murray at the Duck Inn Meeting; namely, that the “existing arrangements” between Giant Dwarf and Cordell Jigsaw were a “terminal disincentive” to there being any further series of The Checkout.

8. [310]

   In his account of this meeting, Mr Fraser did not, in terms, dispute that Mr Morrow had said this. Mr Fraser said that he could not recall the precise words used at the meeting and considered that, to the best of his recollection, Ms Chen’s notes were “an accurate summary of the matters discussed”.

9. [311]

   Mr Fraser said that he recalled Mr Morrow saying words to the effect that Mr Morrow did not believe the joint venture was “viable”; which Mr Fraser took to mean that Mr Morrow “did not wish to continue the joint venture with Mr Murray given his relationship with Mr Murray”.

10. [312]

    That evidence confirms in my mind the conclusion that Ms Chen’s note, that the “current agreement does not incentivise [Mr Morrow] to continue doing more [episodes of The Checkout]”, is the most reliable record of what was said.

11. [313]

    Mr Fraser did not dispute that Mr Morrow said that it would be “best if we can move on in a way that makes it possible for The Checkout to be made again” and that “if there are more series of The Checkout, that’s good for everyone”.

12. [314]

    Consistently with not having denied those matters, Mr Fraser said in his affidavit that he recalled saying at the meeting words to the effect that in the event that a further series of The Checkout was produced, Cordell Jigsaw “would be entitled to a format fee”.

13. [315]

    In that regard, in his affidavit Mr Fraser said:

14. [316]

    Mr Fraser said that he mentioned the format fee during the meeting “simply as a prudent step to take commercially”.

15. [317]

    It was common ground that, at this meeting, Mr Morrow did not mention his ongoing discussions with the ABC.

16. [318]

    These matters provide further confirmation that Mr Fraser, and I would infer, ultimately, Mr Murray, contemplated the possibility of Giant Dwarf producing a further series of The Checkout after any sale by Cordell Jigsaw of its shares in the Joint Venture Company to Giant Dwarf.

17. [319]

    On the same day, 22 February 2019, Mr Fraser sent an email to Mr Murray:

18. [320]

    On 24 February 2019, Ms Crouch’s assistant, Ms Kitty Chen, sent Mr Morrow an email summarising her understanding of what had occurred at the meeting on 22 February 2019:

19. [321]

    The following day, 25 February 2019, Mr Morrow sent Mr Murray a copy of Ms Chen’s email and added:

An “agreement in principle”?

1. [322]

   It is Mr Morrow’s and Giant Dwarf’s case that an “agreement in principle” was reached at the meeting of 22 February 2019 to the effect that Cordell Jigsaw would sell to Giant Dwarf its shares in the Joint Venture Company for $1 each, $50 in total, together with a “format fee” of 2% of the production budget of any new series of The Checkout. Mr Morrow said, however, that he “understood that the agreement in principle reached was subject to approval by Mr Murray”.

2. [323]

   The evidence does not support the conclusion to which Mr Morrow says he came.

3. [324]

   Ms Crouch said in her affidavit that:

4. [325]

   In that regard, Ms Crouch gave this evidence in cross-examination:

5. [326]

   This evidence is consistent with the documents I have set out which were generated after the meeting.

6. [327]

   Mr Fraser’s email to Mr Murray spoke of a “transfer ownership of the business” being “another option” in relation to the distribution of the PDV Offset and that he had told Mr Morrow and Ms Crouch that “we’re happy to talk further on the sale of shares”; but that if that proved “too complicated” another means (“the fee/loan process”) could be adopted to answer the PDV Offset question.

7. [328]

   Ms Chen’s email spoke of Giant Dwarf agreeing to pay Cordell Jigsaw a share of future royalties. But that statement was made in the context of summarising “the proposal we discussed last week”.

8. [329]

   Mr Morrow’s email to Mr Murray of 25 February 2019 spoke of the 22 February 2019 meeting as being a “big picture discussion” which he was forwarding to Mr Murray “to tee off a discussion between us about that stuff.”

9. [330]

   The same day, Mr Morrow wrote to Ms Crouch and Ms Chen saying that he had forwarded to Mr Murray Ms Chen’s email and stating that “fingers crossed we can sort this relatively quickly and without too much hassle”.

10. [331]

    These communications make clear to me that it was Mr Morrow’s state of mind, and the fact, that no agreement, whether in principle or otherwise, had been reached between the two parties at this time.

Mr Fraser’s draft response to Mr Morrow and Ms Crouch

1. [332]

   On 25 February 2019, Mr Fraser prepared a draft email to be sent to Mr Morrow and Ms Crouch which included:

2. [333]

   Mr Fraser did not send the final version of that draft to Mr Morrow and Ms Crouch until 8 March 2019. It was not until then that it could be said that any “agreement in principle” was in place.

3. [334]

   By then discussions had moved on between Mr Morrow and the ABC.

Mr Morrow’s discussions with the ABC continue

1. [335]

   On 28 February 2019 Mr Morrow wrote the Mr Anderson:

2. [336]

   On 1 March 2019 Mr Carrington wrote to Mr Morrow:

3. [337]

   Mr Morrow replied the same day:

4. [338]

   Mr Carrington replied:

5. [339]

   On 4 March 2019, Mr Carrington wrote to Mr Morrow:

Further communications with Mr Murray

1. [340]

   On 5 March 2019, Mr Morrow sent Mr Murray a message:

2. [341]

   Mr Murray gave evidence that on either 5 or 6 March 2019 he telephoned Mr Morrow and that they had this conversation:

3. [342]

   Again, Mr Morrow’s language was apt to suggest to Mr Murray that his motivation to “progress the deal” was the PDV Offset, receipt of which Mr Morrow had said was necessary so that Giant Dwarf could pay off the loan to which Mr Morrow referred. I think it likely that this was Mr Morrow’s intention. He was continuing to “manage the message” in this way.

4. [343]

   On 6 March 2019, Mr Murray sent an email to Mr Fraser:

5. [344]

   Mr Murray’s references in pars 7-8 to Cordell Jigsaw “taking a fee” and Giant Dwarf being able to “use the name The Checkout” suggests that he had contemplated the possibility of Mr Morrow and Giant Dwarf producing a further series of the show in the event the sale of shares was to proceed.

6. [345]

   As I set out below, late on Friday 8 March 2019, Mr Fraser sent Mr Morrow and Ms Crouch the final version of the draft email he prepared on 25 February 2019, following his 22 February 2019 meeting with Mr Morrow, Ms Crouch and Ms Chen.

7. [346]

   In the meantime, on each of 6, 7 and 8 March 2019, Mr Morrow sent Mr Murray emails pressing for a response. Mr Morrow’s emails were expressed politely but reflected Mr Morrow’s practice of persistent communication when seeking resolution to his satisfaction of the issue at hand.

The 8 March 2019 meeting at the ABC

1. [347]

   At 9 am on 8 March 2019, Mr Morrow and Ms Annetts met with Mr Anderson and Mr Carrington at the ABC.

2. [348]

   Mr Katekar described this as a “critical meeting, in light of the events that followed”.

3. [349]

   Ms Chrysanthou did not dispute the following summary, taken from Mr Katekar’s submissions, of Mr Morrow’s evidence about this meeting:

4. [350]

   Mr Morrow’s affidavit evidence was that “at the end of the 8 March 2019 ABC Meeting, I raised the topic of The Checkout”.

5. [351]

   Mr Morrow recounted that he said words to the effect of:

6. [352]

   Mr Morrow was not correct to say to the ABC that Giant Dwarf and Cordell Jigsaw had “reached agreement on the terms for [Cordell Jigsaw] to exit The Checkout’s production company”.

7. [353]

   No “agreement in principle” was reached until later on 8 March 2019 when Mr Fraser sent Mr Morrow and Ms Crouch the final version of the email he had drafted on 25 February 2019.

8. [354]

   As I set out below, on 13 June 2019, Mr Morrow wrote to Mr Murray stating:

9. [355]

   Mr Morrow’s evidence, extracted and emphasised at [351] above, shows that by 8 March 2019, he did believe that there was a “genuine prospect” of the ABC recommissioning The Checkout.

10. [356]

    Mr Morrow said nothing to Mr Murray about these matters.

11. [357]

    Mr Morrow agreed that he “didn’t just forget to tell Mr Murray that [he was] talking to the ABC”. Mr Morrow said that he did not think he needed to tell Mr Murray about those discussions for two reasons. The first was because Mr Morrow said he “understood that the deal from the outset of the joint venture was that either party could make another project if it didn’t involve the [intellectual property] of [the Joint Venture Company]”. Second, Mr Morrow thought he had an agreement in principle with Mr Murray arising out of his discussions with him on 19 February 2019 and discussions with Mr Fraser on 22 February 2019.

12. [358]

    I have found that there was no “agreement in principle” at this stage. And, as I set out below, whether or not Mr Morrow understood there to be “an agreement in principle” at this stage that Cordell Jigsaw would sell out to Giant Dwarf, Mr Morrow must have understood that unless and until that “agreement in principle” was consummated by a transfer of shares in the Joint Venture Company, the Joint Venture continued to subsist.

13. [359]

    Later on 8 March 2019, and following his meeting with Mr Morrow and Ms Annetts, Mr Carrington wrote a note to Ms Natalie Edgar, another employee of the ABC. The email was headed “Hiatus Ending…”. The email read:

Mr Fraser’s 8 March 2019 email

1. [360]

   Still later on 8 March 2019, at around 5.30 pm, Mr Fraser sent an email to Mr Morrow and Ms Crouch with a copy to Mr Murray and Ms Chen. This was the final version of the email Mr Fraser had drafted on 25 February 2019. It was the first formal communication from Cordell Jigsaw in response to Mr Morrow’s 19 February 2019 suggestion about “drawing a line” under the joint venture and to the matters discussed by Mr Fraser, Mr Morrow and Ms Crouch at the 22 February 2019 meeting.

2. [361]

   Mr Fraser’s email read:

3. [362]

   I think Mr Katekar was correct to characterise this email as Mr Fraser putting “forward a framework by which ownership of the [Joint Venture Company] could be transferred to Giant Dwarf although the terms still needed to be drafted and the payment figures still needed to be finalised”.

4. [363]

   Mr Fraser agreed that by this point there was an agreement in principle “subject to working out the financial stuff”. Mr Fraser said:

5. [364]

   Consistently with this, several days later, on 14 March 2019, Mr Murray wrote to Mr Morrow:

6. [365]

   Of course, Mr Murray entered this “agreement in principle” in ignorance of the discussions that Mr Morrow was simultaneously having with the ABC.

The “New Consumer Show” – Are You Being Served

1. [366]

   Still later on 8 March 2019, at around 9.30 pm, Mr Morrow sent Mr Carrington and Mr Anderson a draft “Outline” and draft “Term sheet” for a “New Consumer Show – 2019/20”.

2. [367]

   Mr Morrow said:

3. [368]

   The “Outline” was of a show to be called Are You Being Served. The show was described as “a BRAND NEW program” and “the FUTURE of consumer affairs TV…”.

4. [369]

   The “working title” of the show, Are You Being Served was described as being “subject to rights check” and was described to be:

5. [370]

   The “Outline” continued:

6. [371]

   I asked Mr Morrow to explain what he saw as being the distinction between the proposed Are You Being Served and the most recent series of The Checkout. We had this exchange:

7. [372]

   Nonetheless, Mr Morrow plainly believed that a further series of The Checkout was substitutable for any series of Are You Being Served.

8. [373]

   Thus, he gave this evidence:

Events after 8 March 2019

1. [374]

   On 11 March 2019 Mr Morrow wrote to Mr Carrington:

2. [375]

   Mr Carrington replied on 11 March 2019:

3. [376]

   On 12 March 2019 Mr Carrington wrote to Ms Mason-Campbell:

The “New Consumer Show” may be called “[The] Checkout”

1. [377]

   On 14 March 2019, with customary persistence, Mr Morrow sent a message to Mr Anderson:

2. [378]

   On 15 March 2019, Ms Georgina Waite, the Head of Business Affairs at the ABC sent an email to Ms Julia Pincus, the Senior Business Affairs Lead:

3. [379]

   There is no direct evidence as to why Ms Waite thought the “new consumer show” “may be called ‘Checkout’”. The inference I draw is that Ms Waite was informed by either Mr Anderson or Mr Carrington of what Mr Morrow had said on 8 March 2019, particularly in the passage set out at [351] above that I have emphasised.

4. [380]

   Ms Waite’s comment that Mr Morrow had “based his first draft on [The] Checkout Series 6” was no doubt based on Mr Morrow’s statement to that effect in his 8 March 2019 email to Mr Carrington and Mr Anderson.

5. [381]

   Ms Waite’s request that Ms Pincus compare Mr Morrow’s Are You Being Served material with The Checkout Series 6 “to see if it’s a true comparison” evidently reflected Ms Waite’s apprehension that there may be some similarity between the two programs.

6. [382]

   A short time later on 15 March 2019, Ms Pincus sent an email to Mr Carrington at the ABC:

7. [383]

   This communication is the first reference in the evidence to the possibility that, were the ABC to proceed to broadcast Mr Morrow’s proposed consumer affairs show, that it would be necessary that Mr Morrow procure from Cordell Jigsaw a Quit Claim.

8. [384]

   Later evidence makes clear that, in using this expression, the ABC representatives were referring to a document whereby Cordell Jigsaw released the Joint Venture Company and the ABC from any claim that Cordell Jigsaw might have in respect of The Checkout.

9. [385]

   I did not receive Ms Pincus’s above statement that she and Ms Waite had formed a view that Mr Morrow’s proposed Are You Being Served show was sufficiently similar to The Checkout to constitute a ‘spinoff’ as itself evidence that in fact that there was such similarity. Like all ABC documents, Ms Pincus’s email was received as evidence that such a document was within the records of the ABC. However, I am able to infer from the document that this was the ABC’s apprehension about the matter.

10. [386]

    A short time late on 15 March 2019, Mr Carrington wrote to Ms Pincus:

11. [387]

    Again, I did not receive Mr Carrington’s note as evidence of the truth of its contents. However, in cross-examination Mr Morrow agreed that he had had a conversation with Mr Carrington on 15 March 2019. He denied that he said during that conversation anything to the effect of the second paragraph I have set out in the preceding paragraph.

12. [388]

    But Mr Morrow said that the conversation on this occasion was “in substance”, the same as what he had said to Mr Carrington and Mr Anderson on 8 March 2019; that is, if it were possible to make The Checkout again “it makes sense to do that”, that he had reached agreement with Mr Murray about the terms on which Cordell Jigsaw would “exit” the Joint Venture Company and that “we’re in the process of formalising that”. [30] This suggests that Mr Carrington’s note accurately reflects what Mr Morrow said to him.

13. [389]

    On 17 March 2019, Mr Murray wrote to Mr David Knox, who is associated with a publication known as “TV Tonight”, saying:

14. [390]

    On 19 March 2019, Mr Carrington wrote in a note:

15. [391]

    On 20 March 2019, Mr Morrow wrote to Mr Carrington:

16. [392]

    On 20 March 2019, Mr Morrow sent a further email to Mr Fraser.

17. [393]

    Mr Morrow’s email included:

18. [394]

    Again, the wording chosen by Mr Morrow was apt to lead Mr Fraser to believe that Giant Dwarf’s keenness “to sort this asap” was so that Giant Dwarf could have access to its share of the PDV Offset. Again, I think it likely that Mr Morrow chose his words deliberately and with the intention that they convey this impression: managing the message.

19. [395]

    On 22 March 2019, Mr Morrow wrote to Mr Carrington:

20. [396]

    On 27 March 2019, Mr Morrow sent an email to Mr Murray and Mr Fraser:

The events of 28 March 2019

1. [397]

   In the morning of the 28 March 2019, Mr Morrow wrote to Mr Carrington and Mr Anderson:

2. [398]

   A short time later, Mr Carrington wrote to Mr Morrow:

3. [399]

   Mr Carrington then sent an email to Mr Morrow:

4. [400]

   Ms Pincus arranged to place a telephone call to Mr Morrow at 2.30pm that day.

5. [401]

   Ms Pincus made a contemporaneous handwritten note about what she and Mr Morrow discussed at this meeting. Ms Pincus caused that note to be recorded in a typewritten file note which she sent by email to Ms Waite that evening.

6. [402]

   I received Ms Pincus’s handwritten note, and her email as evidence only of the fact that those documents were included in the records of the ABC.

7. [403]

   However, Mr Morrow has given a detailed account of this conversation in his affidavit and stated that he had “also reviewed various documents produced by the ABC in these proceedings which appear to relate to this phone call”. Included in those notes were Ms Pincus’s manuscript and typed notes of the meeting.

8. [404]

   There is not a great difference between Mr Morrow’s asserted recollection and Ms Pincus’s contemporaneous notes. Further, Mr Morrow did not, in his affidavit, suggest that there was any error in Ms Pincus’s notes. As Ms Pincus’s documents were created during, and then immediately after the conversation, I think it likely that they are the most accurate record as to what was said. As Mr Morrow did not dispute the accuracy of those notes, and notwithstanding the limited basis upon which I admitted them, I infer that they are an accurate record of what was said.

9. [405]

   Ms Pincus’s note read:

10. [406]

    Mr Katekar asked Mr Morrow whether he said words to the effect of those attributed to him by Ms Pincus. For the most part, Mr Morrow agreed that Ms Pincus’s note was accurate but denied that he made some of the comments that Ms Pincus has recorded.

11. [407]

    In response to my question, Mr Morrow denied that in this telephone call he said anything to the effect recorded in the last sentence of Ms Pincus’s note, namely, that he suspected if Cordell Jigsaw became aware that he was pitching his show to the ABC, the chances of that show becoming The Checkout “would drastically reduce”.

12. [408]

    But in his affidavit he deposed that, at the relevant part of the conversation, he said to Ms Pincus:

13. [409]

    I can see no difference, in substance, between what Mr Morrow has deposed he said at this part of the conversation and what Ms Pincus recorded Mr Morrow as saying. And yet, in response to my question, Mr Morrow was prepared to deny the accuracy of Ms Pincus’s note.

14. [410]

    This suggests to me that, when he thought it suited him, Mr Morrow was prepared to give evidence that he could not have been sure to be correct.

15. [411]

    In effect, what Mr Morrow said to Ms Pincus was that:

16. [412]

    Mr Morrow’s confidence that the new show, then being pitched as Are You Being Served, would “become The Checkout” evidently reflected his confidence that he would successfully negotiate the purchase by Giant Dwarf of Cordell Jigsaw’s shares in the Joint Venture Company.

17. [413]

    Mr Morrow confirmed that he did not wish Mr Murray to know of his negotiations with the ABC for fear that Mr Murray would not sell out of the Joint Venture in the following passage of evidence, initially in response to questions from me:

18. [414]

    Later on 28 March 2019, Mr Morrow, persistent as ever, sent Mr Murray a message:

19. [415]

    A short time later, Mr Morrow and Mr Murray had the following SMS exchange:

29 March 2019

1. [416]

   The following day, 29 March 2019, Mr Carrington wrote to Mr Morrow:

2. [417]

   Mr Carrington’s email shows that he saw a strong similarity between Mr Morrow’s proposed “new” show and The Checkout. The proposal was, in his view, “importing what has gone before”.

3. [418]

   A short time later, Mr Morrow wrote to Ms Louise Porter, ABC’s Production Executive TV Entertainment and Events attaching a proposed budget for Are You Being Served. As emerges below, immediately after the Share Sale Agreement was executed on 8 April 2019, Mr Morrow produced a budget for a show entitled “The Checkout” which was virtually identical to the budget sent to Ms Porter.

4. [419]

   Later on 29 March 2019, Mr Morrow replied to Mr Carrington’s email sent earlier in the day:

5. [420]

   Mr Morrow explained what he meant by moving forward “on the basis of a new format”:

Mr Morrow’s 1 April 2019 conversation with Ms Waite and Ms Pincus

1. [421]

   On 1 April 2019, Mr Morrow had a further conversation with Ms Waite and Ms Pincus.

2. [422]

   Again, Ms Pincus took contemporaneous notes of the conversation. In an affidavit, Mr Morrow gave an account of the conversation and, once again, said that he had “reviewed” Ms Pincus’s notes and did not suggest that Ms Pincus’s notes did not accurately reflect the terms of the conversation.

3. [423]

   Ms Pincus’s notes included recording Mr Morrow saying:

4. [424]

   Ms Pincus’s notes record Ms Waite as saying that “we will not reach out to [Cordell Jigsaw]”.

5. [425]

   The first of these notes corresponds with Mr Morrow’s evidence that he said to Ms Pincus:

6. [426]

   As to the second matter recorded in Ms Pincus’s notes, Mr Morrow’s evidence was that he said:

7. [427]

   Mr Morrow gave this evidence, in answer to questions from me:

8. [428]

   Mr Morrow’s evidence confirms the accuracy of Ms Pincus’s note, and makes clear that Mr Morrow’s state of mind at this point was that there was a “genuine prospect”, to use the words of his email to Mr Murray of 13 June 2019 (to which I have referred) and an “opportunity” (for the purposes of the implied term of the Joint Venture Agreement that I have found) to produce a further series of The Checkout.

9. [429]

   That “genuine prospect” had arisen after Giant Dwarf and Cordell Jigsaw had, on 8 March 2019, agreed in principle on the terms of Cordell Jigsaw’s sale to Giant Dwarf of its shares in the Joint Venture Company.

10. [430]

    Mr Morrow did not see the “opportunity” as one that should be made available to the Joint Venture Company. That was because he was not prepared to be involved in production of a further series of The Checkout by the Joint Venture Company as long as Cordell Jigsaw held 50% of shares in that company. Mr Morrow’s position was that he was only prepared to be involved in the production of a further series of The Checkout if Giant Dwarf was the owner of all shares in the Joint Venture Company or, possibly, if Giant Dwarf itself produced the show.

11. [431]

    Mr Morrow insisted that the ABC not “reach out to Cordell Jigsaw” (the words in Ms Pincus’s note) or “insert itself into the negotiations” (Mr Morrow’s affidavit). That is, Mr Morrow insisted that the ABC not inform Mr Murray of the fact that, first, Mr Morrow was negotiating with the ABC for the production of a further consumer affairs show, and second, his intention was that once Cordell Jigsaw had sold to Giant Dwarf its shares in the Joint Venture Company that consumer affairs show become the seventh and eighth series of The Checkout.

12. [432]

    Also on 1 April 2019, Mr Morrow wrote to Mr Carrington:

13. [433]

    On 2 April 2019, following their conversation on 1 April 2019, Ms Pincus sent an email to Mr Morrow:

14. [434]

    Mr Morrow replied the same day:

15. [435]

    The “format issues” to which Mr Morrow referred in his communications with Mr Carrington and Ms Pincus were obviously the question of whether the “new” consumer affairs shows would be called Are You Being Served, or The Checkout; with Mr Morrow’s ambition being the latter.

16. [436]

    In cross-examination, Mr Morrow said he was confused about what Ms Pincus meant in her email. I do not accept that evidence. His response shows he laboured under no such confusion.

17. [437]

    In the meantime, Mr Morrow continued communicating with Mr Murray, without mentioning his communications with the ABC.

18. [438]

    On 1 April 2019, Mr Morrow had sent an email to Mr Murray attaching a draft share sale agreement and stating:

19. [439]

    Once again, Mr Morrow’s words were apt to suggest to Mr Murray that his only motivation in seeking to “finalise this as soon as possible” was Giant Dwarf’s need to access the PDV Offset. In cross-examination Mr Morrow denied this, and said he was motivated by a “sincere desire not to be in business with Mr Murray and Cordell Jigsaw any longer”. Mr Morrow may well have been so motivated, but he was careful to give Mr Murray the impression that his only concern was access to the PDV Offset.

20. [440]

    I also find that, in fact, the reason Mr Morrow wanted to “finalise this as soon as possible” was so that he could inform the ABC that the “format issues” had been resolved and that he was, whether through the Joint Venture Company or Giant Dwarf, free to produce a “new” consumer affairs show to be the seventh series of The Checkout. As I set out below, this is what happened, as soon as the Share Sale Agreement was finalised.

21. [441]

    Persistent as ever, the next day, 2 April 2019, Mr Morrow sent messages to Mr Murray:

22. [442]

    Later on 2 April 2019, Ms Pincus sent Mr Morrow a “table setting out the deal terms of The Checkout S6, your proposed terms for a new consumer show and the ABC’s position re each of those terms.”

23. [443]

    The table attached to Mr Pincus’s email contained four columns headed “Terms”, “Checkout S6”, “New Consumer Show (Proposed Terms – 2019)” and “ABC Response”. It also set out, in relation to each of those subjects, entries for items such as “Producer”, “Program”, “Budget”, “Creative Approvals” and the like.

24. [444]

    Ms Pincus populated the table with the relevant details from the sixth series of The Checkout, Mr Morrow’s proposals for the “New Consumer Show” and the ABC’s response to those proposals. A copy of the table is attached to these reasons. The details recorded for the sixth series of The Checkout, and the “New Consumer Show” were almost exactly the same. [444] ABC comparative table (318397, pdf)

25. [445]

    The table is a vivid illustration of how closely aligned the ABC and Mr Morrow now saw Mr Morrow’s proposed Are You Being Served show and The Checkout.

26. [446]

    On 3 April 2019, Mr Carrington wrote to Mr Morrow dealing with disagreements which had arisen in relation to certain of the “deal terms” for the “New Consumer Show” (which differences are not presently relevant) and concluding:

27. [447]

    On the same day, Mr Morrow sent Mr Murray a further message:

28. [448]

    On 4 April 2019 Mr Morrow sent Mr Murray a further message:

29. [449]

    Mr Morrow was obviously anxious to finalise the arrangements with Mr Murray. He agreed that he understood he then had no legally binding arrangement with Mr Murray. By now he had been offered a two-series deal at $3.2 million per season. He was intending that, if he could secure sole ownership of the Joint Venture Company, that show would be The Checkout.

30. [450]

    As Mr Katekar submitted, even if the return of The Checkout was, as at the time of the Duck Inn Meeting “unlikely”, by now the position had changed completely. Subject only to Mr Murray agreeing to sell Cordell Jigsaw’s shares in the Joint Venture Company to Mr Morrow or Giant Dwarf, the return of The Checkout was a certainty.

31. [451]

    Later on 4 April 2019, Mr Murray replied to Mr Morrow:

32. [452]

    On 5 April 2019, Mr Morrow replied with an email to Mr Murray which included:

The Share Sale Agreement

1. [453]

   On 8 April 2019, Mr Murray executed the draft Share Sale Agreement and wrote to Mr Fraser and Cordell Jigsaw’s inhouse lawyer, Ms Mandy Chapman:

2. [454]

   On 8 April 2019, Giant Dwarf, Cordell Jigsaw and the Joint Venture Company executed the Share Sale Agreement.

3. [455]

   The Share Sale Agreement provided that:

4. [456]

   I will return to the terms of the Share Sale Agreement later in these reasons.

5. [457]

   I note at this point, however that:

6. [458]

   At the same time that he executed the Share Sale Agreement, Mr Murray resigned as the Director of the Joint Venture Company.

Events immediately following execution of the Share Sale Agreement

1. [459]

   On 10 April 2019, two days after the Share Sale Agreement was executed, Mr Morrow wrote to Ms Pincus, Ms Porter, Mr Anderson, Mr Carrington and Ms Waite at the ABC:

2. [460]

   Mr Morrow attached to his email a revised copy of the “deal terms” table that Ms Pincus had sent him on 2 April 2019.

3. [461]

   Mr Morrow substituted for the previous heading “New Consumer Show (Proposed Terms – 2019)” the heading “TC07 – The Checkout S7” and changed the “producer” of the company from Giant Dwarf to the Joint Venture Company.

4. [462]

   Otherwise, the documents were in almost exactly the same terms.

5. [463]

   Thus, as Mr Morrow had foreshadowed in his discussions with the ABC since 8 March 2019, now that Mr Murray had caused Cordell Jigsaw to sell to Giant Dwarf its shares in the Joint Venture Company, Mr Morrow was proposing that the “new” consumers affairs show that he had been pitching to the ABC since 8 March 2019 be re-badged from Are You being Served to The Checkout: fait accompli.

6. [464]

   Mr Morrow’s motivation in entering the Share Sale Agreement was revealed several months later when his then solicitor, Mr Michael Easton, said in an email to Mr Murray:

7. [465]

   This was certainly Mr Morrow’s “fundamental purpose”, a purpose his numerous communications concerning the PDV Offset were, I have found, designed to conceal from Mr Murray. Although Mr Morrow said to Mr Murray at the Duck Inn Meeting that it would be “better” if “we” could find some way to make The Checkout again, and although for the reasons I have set out, including the terms of the Share Sale Agreement itself, Mr Murray must have contemplated the possibility that the Joint Venture Company might eventually produce a further series of The Checkout, there is no suggestion in the evidence that Mr Murray saw the “fundamental purpose” of the Share Sale Agreement to be as Mr Morrow stated. Mr Murray had no knowledge of Mr Morrow’s communications with the ABC, nor of the advanced state of his negotiations with them. Indeed, Mr Morrow, in effect, instructed the ABC not to inform Mr Murray of those matters.

8. [466]

   Ms Pincus forwarded this email to Mr Carrington who, on 11 April 2019, replied:

9. [467]

   Much happened thereafter.

10. [468]

    The events leading to the defamation and injurious falsehood claims in these proceedings occurred after this date; as did the events leading to Cordell Jigsaw’s alleged repudiation of, and Giant Dwarf’s and the Joint Venture Company’s purported termination of, the Share Sale Agreement.

11. [469]

    However, I will pause the course of events here to consider, and make findings about the parties’ position as at 8 April 2019.

There was an opportunity to produce a further series of The Checkout

1. [470]

   The events that I have set out make clear that from 8 March 2019 there was a “genuine prospect” (to use the words in Mr Morrow’s 13 June 2019 email to Mr Murray) and an “opportunity” within the meaning of the implied term of the Joint Venture Agreement that I have found for there to be a further series of The Checkout.

2. [471]

   For some months after the ABC announced the “hiatus” of The Checkout in July 2018, Mr Morrow sought to persuade the ABC to change its decision both by public announcements (the Tweets in July 2018) and direct negotiation with Ms Guthrie on 31 July 2018 and later with Mr Anderson on and following 17 August 2018.

3. [472]

   During this time the ABC made public announcements to the effect that it was open to broadcasting a further or new consumer affairs shows in the future; for example Mr Anderson’s interview with Mr Richard Glover on 14 August 2018 and with Mr Michael Rowland on 25 September 2018.

4. [473]

   Mr Anderson said words to this effect to Mr Morrow in their 17 August 2018 meeting, their 19 September 2018 telephone conversation and their 19 December 2018 telephone conversation.

5. [474]

   Mr Morrow accepted that he obtained all this information in his capacity as a director of the Joint Venture Company.

6. [475]

   As early as August 2018, Mr Morrow’s discussions with the ABC moved beyond producing a further series of The Checkout to producing a different TV project.

7. [476]

   However, I find that throughout this period, Mr Morrow still had in mind the possible production of a further series of The Checkout, without the involvement of Mr Murray or Cordell Jigsaw.

8. [477]

   In late December 2018, Mr Morrow’s communications with Mr Anderson, and also Mr Carrington were about a new consumer affairs show or, as an alternative, the “recommissioning” of The Checkout.

9. [478]

   This led to Mr Morrow’s meetings with ABC’s representatives on 13 February 2019 in which a new consumer affairs show was discussed and at which Mr Morrow expressed a desire to “still do The Checkout”.

10. [479]

    As I have set out, it was immediately after this meeting that Mr Morrow resumed contact with Mr Murray for the first time since the previous July to commence negotiations about “drawing a line” under the joint venture. This led to his meeting with Mr Murray at the Duck Inn and his meeting with Mr Simon Fraser, Ms Crouch and Ms Chen on 22 February 2019.

11. [480]

    At his meeting with the ABC on 8 March 2019, Mr Morrow raised the possibility of a further series of The Checkout “if Nick and I can work something out”. It is thus clear, by this time, that Mr Morrow was actually looking for an opportunity of recommissioning The Checkout albeit only, as he was seeking to negotiate, if he could persuade Mr Murray to sell Giant Dwarf the shares of Cordell Jigsaw in the Joint Venture Company.

12. [481]

    It was in that context that, later on 8 March 2019, Mr Murray pitched Are You Being Served to the ABC. Mr Morrow saw that show as being substitutable for The Checkout, notwithstanding any differences in format that may have existed between the two shows.

13. [482]

    By 28 March 2019, the position became even clearer. By then Mr Morrow had told Ms Pincus that he was “confident” the show Are You Being Served would become The Checkout, such confidence evidently reflecting Mr Morrow’s assuredness that he would successfully consummate negotiations with Mr Murray in relation to Cordell Jigsaw’s shares in the Joint Venture Company.

14. [483]

    Certainly, by 1 April 2019 Mr Morrow must have seen that there was an “opportunity” and a “genuine prospect” of the ABC agreeing that the new consumer affairs show could be called The Checkout; and that this was an opportunity that was available not only to him, or to Giant Dwarf, but also to the Joint Venture Company.

15. [484]

    Mr Morrow did not wish the Joint Venture Company to pursue that “opportunity” so long as Mr Murray was the director of the Joint Venture Company and Cordell Jigsaw was its 50% shareholder. He asked the ABC to not inform Mr Murray of the opportunity.

16. [485]

    Mr Morrow’s position was that he had exercised Giant Dwarf’s right of “veto” as a member of the joint venture to disable the Joint Venture Company from pursuing the opportunity.

17. [486]

    Mr Morrow, however, had done this without revealing to his fellow director, Mr Murray, his plans to cause the opportunity to become available and, once it was available, to appropriate it for the benefit of Giant Dwarf.

Mr Morrow and Giant Dwarf did not inform Mr Murray and Cordell Jigsaw of that opportunity and sought to divert that opportunity for their benefit

1. [487]

   There is no dispute that Mr Morrow did not inform Mr Murray of his negotiations with the ABC. And he asked the ABC not to do so.

2. [488]

   On 10 April 2019, immediately after execution by Giant Dwarf and Cordell Jigsaw of the Share Sale Agreement on 8 August 2019, Mr Morrow informed the ABC that Cordell Jigsaw had withdrawn from the Joint Venture Company and that “we should now proceed” to produce series seven of The Checkout.

3. [489]

   By now, Giant Dwarf was the sole shareholder of the Joint Venture Company. It sought to appropriate the opportunity to produce series seven of The Checkout and to reap the benefits of that opportunity.

Breach of the implied term of the Joint Venture Agreement

1. [490]

   It follows from these matters that Giant Dwarf was in breach of the implied term of the Joint Venture Agreement to disclose such an opportunity to its joint venturer, Cordell Jigsaw, and thus, in effect, to the Joint Venture Company.

Breach of Mr Morrow’s duty as a director of the Joint Venture Company

1. [491]

   Mr Morrow’s duties, as a director of the Joint Venture Company, to exercise his powers and discharge his duties in good faith and in the best interests of the Joint Venture Company, and to exercise those powers for a proper purpose, necessarily imposed on him a duty to cause the Joint Venture Company to abide by the terms of the Joint Venture Agreement; and not to cause the Joint Venture Company to act in breach of a term of the Joint Venture Agreement.

2. [492]

   That duty necessarily involved a duty to cause the joint venturer with which he was associated, Giant Dwarf, to inform the other joint venturer, Cordell Jigsaw (that is, for all practical purposes, Mr Murray), of any opportunity to produce any further series of The Checkout (or any equivalent or similar consumer affairs show).

3. [493]

   As director of the Joint Venture Company, Mr Morrow had a duty not to use his position to gain an advantage for himself or for a company with which he was associated or to cause detriment to the Joint Venture Company.

4. [494]

   He also had a duty to give his fellow director, Mr Murray, notice of any material personal interest in any matter that related to the affairs of the Joint Venture Company.

5. [495]

   It was in the Joint Venture Company’s interest, and indeed its duty, to act consistently with the Joint Venture Agreement.

6. [496]

   It was not in the Joint Venture Company’s interest to act inconsistently with the Joint Venture Agreement.

7. [497]

   This, in my opinion, placed Mr Morrow in a position of conflict between his interests in having Giant Dwarf become sole shareholder of the Joint Venture Company and thus to produce a seventh series of The Checkout solely for its own benefit, and his duty to disclose to the Joint Venture Company, and to his fellow director, that such an opportunity was available.

8. [498]

   Mr Morrow was not entitled himself to decide that the Joint Venture Company would take advantage of that opportunity unbeknownst to his co-director; and only after the other joint venturer, Cordell Jigsaw, had transferred its interest in the Joint Venture Company to Giant Dwarf.

9. [499]

   Mr Katekar put the matter this way:

10. [500]

    My conclusion is that the “opportunity” presented to Mr Morrow in relation to The Checkout arose in March 2019, rather than August 2018 as Mr Katekar submitted. Otherwise, I think Mr Katekar’s submission is correct.

11. [501]

    In March 2019, an opportunity arose for there to be a seventh series of The Checkout. Mr Morrow became aware of that opportunity by reason of discussions that he had had, in the eight months leading to March 2019, with officers of the ABC. He had those discussions in his capacity as a director of the Joint Venture Company. Through those discussions, an opportunity arose that Mr Morrow should have, as a director of the Joint Venture Company, disclosed to the Joint Venture Company and thus, to his fellow director, Mr Murray.

12. [502]

    My conclusion is that Mr Murray and Cordell Jigsaw have established the case that they propounded in the Amended Cross-Claim List Statement that Mr Morrow’s conduct, as I have set out above, was in breach of his duty as a director to the Joint Venture Company because:

13. [503]

    Mr Murray and Cordell Jigsaw also alleged that Mr Morrow, as a director of the Joint Venture Company, owed a “fiduciary duty, or alternatively an equitable duty” to Cordell Jigsaw to, relevantly:

14. [504]

    In light of my conclusions in relation to the nature of Mr Morrow’s duty as a director of the Joint Venture Company to the Joint Venture Company, and the conclusions to which I come below concerning Mr Morrow’s and Giant Dwarf’s misleading or deceptive conduct, it is not necessary that I reach any conclusion in relation to this aspect of Mr Murray’s and Cordell Jigsaw’s claim.

15. [505]

    I will, nonetheless, deal with the submission, albeit briefly.

16. [506]

    There is no recognised category of fiduciary relationship between a director and an individual shareholder. [40]

17. [507]

    Occasionally, a fiduciary relationship may be found to exist between a director and a shareholder in particular circumstances. For example, such a relationship has been found to exist where the sole effective director and majority shareholder of a company took advantage of his special knowledge of a proposed sale of the company business to acquire the shares of the only other shareholder at a gross undervalue without disclosing the negotiations. [41]

18. [508]

    Mr Murray and Cordell Jigsaw contended that such a duty existed in this case and asserted that Mr Morrow and Giant Dwarf “each occupied a special position of advantage in relation to Cordell Jigsaw”. This was said to be because Mr Morrow and Giant Dwarf conducted the day to day management of the Joint Venture Company and because Mr Morrow had carriage of negotiations with the ABC on behalf of the Joint Venture Company from July 2018 onwards.

19. [509]

    Mr Katekar submitted that the Joint Venture Company was a “closely-held company akin to a partnership”, that Mr Morrow had control of the Joint Venture Company’s relationship with the ABC, and that in that capacity Mr Morrow was given information of which he knew Cordell Jigsaw was ignorant, and which might reasonably and objectively have controlled or influenced Cordell Jigsaw’s judgment in deciding to sell its interest in the Joint Venture Company.

20. [510]

    Mr Katekar submitted that Mr Morrow had, in effect, taken over conduct of the Joint Venture Company to the exclusion of Mr Murray and “surreptitiously pursued an opportunity with the ABC, creating the basis for the transaction through his conscientious efforts”; and yet that “Mr Morrow then deliberately kept all of that secret from his co-director Mr Murray and, through him, Giant Dwarf’s joint venture partner, knowing that if Mr Murray found out, the share sale would never have occurred”; at least not for the consideration set forth in the Share Sale Agreement.

21. [511]

    In my opinion, there is substance in these submissions.

22. [512]

    No doubt, it would have been possible for Mr Murray to make his own enquiries of the ABC. However, on Mr Morrow’s account of his conversation with Mr Murray at the Duck Inn Meeting, and for the reasons I outline more fully below concerning whether Mr Morrow and Giant Dwarf engaged in misleading or deceptive conduct, what Mr Morrow asserts he told Mr Murray on 19 February 2019 was apt to lead Mr Murray to the conclusion that Mr Morrow was not yet in discussions with the ABC and that he would not be taking any steps to seek to revive production of The Checkout until the posited share sale transaction had been consummated.

23. [513]

    In that circumstance, were it necessary for me to decide whether Mr Morrow owed Cordell Jigsaw a duty of the kind of which Mr Murray contends, I would have found such a duty existed, and was breached.

Mr Morrow’s and Giant Dwarf’s alleged misleading or deceptive conduct

1. [514]

   The primary ground upon which Mr Murray and Cordell Jigsaw advanced their case against Mr Morrow and Giant Dwarf was on the basis of Mr Morrow’s and Giant Dwarf’s conduct which was alleged to be misleading or deceptive within the meaning of s 18 of the Australian Consumer Law.

2. [515]

   In their Amended Cross-Claim List Statement, Mr Murray and Cordell Jigsaw at times allege that it was Giant Dwarf that engaged in misleading or deceptive conduct and at times that it was both Mr Morrow and Giant Dwarf that did so. Alternatively, it is alleged that each of Mr Morrow and Giant Dwarf were accessorily liable for the misleading or deceptive conduct of the other.

3. [516]

   However, in oral and written submissions reference was made only to Mr Morrow’s alleged misleading or deceptive conduct. I understood that the substance of Mr Murray’s and Cordell Jigsaw’s complaint was that Giant Dwarf, by reason of Mr Morrow’s actions, engaged in such conduct.

4. [517]

   As neither party suggested anything turns on the distinction between Giant Dwarf and Mr Morrow, I will, for the sake of simplicity, adopt the parties’ practice of referring only to Mr Morrow in this regard.

5. [518]

   There was no dispute about the general principles. They were summarised by Mr Katekar as follows:

6. [519]

   Mr Murray and Cordell Jigsaw alleged that by reason of matters discussed between Mr Murray and Mr Morrow during the Duck Inn Meeting, as well as the communications by email and telephone between the parties on 20 February 2019, 27 February 2019, 5 or 6 March 2019, 20 March 2019, 1 April 2019, 2 April 2019 and 5 April 2019, Giant Dwarf represented to Cordell Jigsaw that:

7. [520]

   In their Amended Cross-Claim List Statement, Mr Murray and Cordell Jigsaw called these representations, together, the “Motivation Representation”.

8. [521]

   As to the representation at (a), which Ms Chrysanthou characterised as the “PDV Representation”, I have found that the email and SMS communications that Mr Morrow had with Mr Murray and upon which Mr Murray relies were apt to, and intended by Mr Morrow to, suggest to Mr Murray that Mr Morrow’s sole motivation in seeking to cause Giant Dwarf to acquire Cordell Jigsaw’s shares in the Joint Venture Company was to access the PDV Offset so that Giant Dwarf could repay a loan it had taken out in relation to a Netflix project.

9. [522]

   Mr Morrow did not say in any of those communications that his only reason for seeking to have Giant Dwarf acquire Cordell Jigsaw’s shares was to access the PDV Offset. But the emails were apt to, and I have found calculated to, create that impression and to convey that access to the PDV Offset was Mr Morrow’s only immediate motivation.

10. [523]

    However, by 8 March 2019, by which date Mr Morrow sent 4 of the 10 communications upon which Mr Murray relies, it is clear, for the reasons I have set out, that Mr Murray’s motivation, not mentioned in any of the emails, was to produce a further series of The Checkout without any involvement by Mr Murray or Cordell Jigsaw.

11. [524]

    I have found that at the Duck Inn Meeting Mr Morrow said to Mr Murray that “I think it would be better for everyone if we could find some way that The Checkout could be made again”.

12. [525]

    It is evidently Mr Morrow’s case that the way the “we” found a way to make The Checkout again was by entering into the Share Sale Agreement.

13. [526]

    It is also true that the terms of the Share Sale Agreement reflected the possibility that the Joint Venture Company might make a further series of The Checkout following transfer by Cordell Jigsaw to Giant Dwarf of its shares in the Joint Venture Company (hence the 2% agreed fee on any further series of The Checkout).

14. [527]

    However, as Mr Murray said in a later email, this was a “blue sky” statement. That is, it reflected as a matter of generality what Mr Murray must have contemplated Mr Morrow and Giant Dwarf might do in the future. But the form of the Share Sale Agreement, and Mr Morrow’s emails and various communications in March and April 2019 did not reveal, or even suggest, that he had immediate plans, at least from 8 March 2019, to produce a series called The Checkout as soon the share transfer from Cordell Jigsaw to Giant Dwarf was completed.

15. [528]

    In those circumstances I find that Mr Morrow did make the “PDV Representation” to Cordell Jigsaw.

16. [529]

    As to the representation in (b) at [519] above (which Ms Chrysanthou characterised as the “Never Again Representation”) I have found that Mr Morrow did say the words attributed to him by Mr Murray.

17. [530]

    I have also found that Mr Morrow made this statement in an effort to deflect Mr Murray’s attention from the prospect of Mr Morrow’s further involvement in any potential recommissioning of The Checkout.

18. [531]

    However, I find it hard to see what reliance Mr Murray could have placed on it. It must have become apparent to Mr Murray from the immediately succeeding events that Mr Morrow did propose to continue producing television programs. For example, after the 22 February 2019 meeting, Mr Fraser reported to Mr Murray that Cordell Jigsaw might have an “entitlement to a format fee on subsequent series” of The Checkout. In Mr Fraser’s email to Mr Morrow of 8 March 2019, which was copied to Mr Murray, there was a further reference to Cordell Jigsaw having an “entitlement to a format fee on subsequent series of The Checkout produced by [Giant Dwarf] or affiliated company/subsidiary”. Mr Murray must have understood from these matters that, despite what Mr Morrow said on 19 February 2019, he proposed to remain involved in the business of producing television programs.

19. [532]

    Mr Murray’s and Cordell Jigsaw’s case is that by not disclosing to Mr Murray the nature and extent of his communications with the ABC, Mr Morrow engaged in misleading or deceptive conduct because:

20. [533]

    In Fabcot Pty Ltd v Port Macquarie – Hastings Council [49] Sackville AJA said [50] in a passage which has been endorsed by the Court of Appeal: [51]

21. [534]

    More recently, Bell P [52] summarised [53] the “key propositions to emerge from the High Court’s important decision” in Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd as follows:

22. [535]

    In my opinion, Mr Morrow’s silence in the period from 19 February 2019 to 8 April 2019 concerning the progress and status of his negotiations with the ABC, combined with his “half truth” communications with Mr Murray in the meantime, constituted misleading or deceptive conduct.

23. [536]

    I am able to reach this conclusion assuming [55] that:

24. [537]

    Nonetheless, the facts remain that:

25. [538]

    It must follow from this that Mr Murray and Cordell Jigsaw had a reasonable expectation that Giant Dwarf would comply with this term and disclose the opportunity that I have found had been presented.

26. [539]

    It may be that, throughout this period, Mr Murray’s state of mind was that The Checkout was “not coming back” and that it was “dead”; as evidenced by Mr Campbell’s statement immediately before Mr Simon Fraser’s meeting with Mr Morrow, Ms Crouch and Ms Chen on 22 February 2019 and Mr Murray’s statement to Mr David Knox on 17 March 2019. But that confirms, rather than contradicts, that there was a reasonable expectation on the part of Mr Murray and Cordell Jigsaw that Mr Morrow reveal that the opportunity had arisen and that there was a significant prospect of The Checkout “coming back”.

27. [540]

    I see nothing in any of the evidence to suggest that Mr Murray should have, himself, made enquiries of Mr Morrow or the ABC between 19 February 2019 and 8 April 2019. Indeed, the statement that Mr Morrow says he made to the effect that it would be better for everyone if “we” found a way to make The Checkout again (that is, by the Share Sale Agreement) was apt to suggest to Mr Murray that Mr Morrow would take no steps to cause The Checkout to be “made again” until that “way” had been achieved; that is, that Giant Dwarf had acquired Cordell Jigsaw’s shares in the Joint Venture Company.

28. [541]

    In closing submissions, Ms Chrysanthou put:

29. [542]

    It seems to me that this submission emphasises the point. On Mr Morrow’s evidence he told Mr Murray that he may well seek to produce a further series of The Checkout if he and Mr Murray could reach an agreement; that is, an agreement that Mr Murray cause Cordell Jigsaw to sell its shares in the Joint Venture Company to Giant Dwarf. Mr Morrow seems to have thought that once an agreement “in principle” had been reached, he was free to pursue the possibility of producing a new series of The Checkout. A reasonable person in his position would have understood that until any such agreement “in principle” had been perfected, in this case by the transfer of shares, the Joint Venture was still on foot and Giant Dwarf remained bound by its terms.

30. [543]

    My conclusion is that, coupled with the misleading nature of the communications constituting what Ms Chrysanthou characterised as the “PDV Representations”, Mr Morrow’s silence in these circumstances amounted to misleading or deceptive conduct on his part.

31. [544]

    Mr Murray’s evidence was that, had Mr Morrow disclosed the nature of his discussions with the ABC and the opportunity that had thereby arisen, he would not have caused Cordell Jigsaw to sell to Giant Dwarf its shares on the terms of the Share Sale Agreement.

32. [545]

    I accept that evidence.

33. [546]

    I also accept the submission made on behalf of Mr Murray and Cordell Jigsaw that the appropriate relief that should be awarded to Mr Murray and Cordell Jigsaw in these circumstances is an order under s 237 of the Australian Consumer Law rescinding the Share Sale Agreement.

34. [547]

    I will consider below, the implications of rescission of the Share Sale Agreement as to:

35. [548]

    One such implication arises immediately, and that is that the “Bar to Action” in cl 7.2 of the Share Sale Agreement is no answer to Mr Murray’s and Cordell Jigsaw’s claims.

36. [549]

    Another relates to Mr Morrow’s and Giant Dwarf’s case that Mr Murray and Cordell Jigsaw engaged in misleading or deceptive conduct.

Misleading or deceptive conduct by Mr Murray and Cordell Jigsaw

1. [550]

   Giant Dwarf alleges that Mr Murray and Cordell Jigsaw themselves engaged in misleading or deceptive conduct.

2. [551]

   In closing submissions, Ms Chrysanthou summarised Giant Dwarf’s claim as follows:

3. [552]

   Ms Chrysanthou did not develop this submission.

4. [553]

   In my opinion, there is no substance to it.

5. [554]

   It cannot survive my conclusion that, because of Mr Morrow’s misleading or deceptive conduct, the Share Sale Agreement should be rescinded.

Events following the execution of the Share Sale Agreement

1. [555]

   I return now to the course of events.

2. [556]

   On 7 May 2019, Ms Pincus wrote to Mr Nick Heydon, then Entertainment Manager at the ABC, and Ms Porter under the heading “TCO S7”, stating that Mr Carrington had “given [the] green light to go ahead” two further series of The Checkout.

3. [557]

   On 13 May 2019, Mr Morrow sent Ms Porter a budget for series seven of The Checkout. This budget was in the same format as the budget Mr Morrow sent Ms Porter on 29 March 2019 for Are You Being Served. It was populated with almost the same figures. The opening slides of each budget were virtually identical.

4. [558]

   Thus, that for Are You Being Served was:

5. [559]

   That for The Checkout series seven was:

Mr Murray hears of The Checkout series seven

1. [560]

   Mr Murray had no knowledge of a proposed seventh series of The Checkout until 13 May 2019 when he had a text message exchange with Mr Craig Reucassel, another television producer, and then a director of and shareholder in Giant Dwarf.

2. [561]

   Mr Murray had sent Mr Reucassel a text message congratulating Mr Reucassel on a television show that had evidently just been aired. Mr Reucassel thanked Mr Murray for his note and replied:

3. [562]

   Mr Murray replied:

4. [563]

   Mr Reucassel replied, ominously:

5. [564]

   Mr Reucassel’s message appears to have been what prompted Mr Murray to write an email to the ABC that constitutes the first communication alleged by Mr Morrow to be defamatory of him.

6. [565]

   Mr Morrow did not become aware of any of these allegedly defamatory communications until after the commercial proceedings were commenced.

The first allegedly defamatory communication – Mr Murray’s 21 May 2019 email to Mr Anderson and Mr Carrington

1. [566]

   On 21 May 2019, Mr Murray sent an email to Mr Anderson with a copy to Mr Carrington.

2. [567]

   I have marked up this and the later emails to show:

3. [568]

   The 21 May 2019 email was in the following terms

4. [569]

   Mr Anderson replied the following day, 22 May 2019:

5. [570]

   Mr Murray’s email obviously caused some concern within the ABC.

6. [571]

   Thus, despite Mr Anderson’s somewhat conciliatory response to Mr Murray’s 21 May 2019 email, later on the same day Mr Carrington wrote to Mr Morrow:

7. [572]

   The “attached letter”, addressed to Mr Morrow as “MD & Co-Founder” of Giant Dwarf, was formally written on ABC letterhead, and included:

8. [573]

   Mr Carrington made no reference in this letter to the email from Mr Murray. [57] However, it is obvious that it was prompted by Mr Murray’s email.

9. [574]

   Thus, obviously motivated by Mr Murray’s 21 May 2019 email, the ABC revived its requirement that Mr Morrow procure a Quit Claim from Cordell Jigsaw.

10. [575]

    The ABC had last raised the question of a Quit Claim on 2 April 2019. Evidently, the ABC had decided not thereafter to insist on such a requirement once satisfied that Mr Murray would cause Cordell Jigsaw to transfer its shares in the Joint Venture Company to Giant Dwarf.

11. [576]

    In the following days, there were discussions between Mr Morrow and the ABC as to the form of the Quit Claim.

12. [577]

    On 29 May 2019, Mr Carrington sent an email to Ms Pincus:

13. [578]

    On 30 May 2019, Ms Kate Gilchrist, the Acting Head of Legal Operations at the ABC, forwarded the final version of the Quit Claim to Mr Morrow with a note:

14. [579]

    Later on 30 May 2019, Mr Morrow sent Mr Murray an email headed “ABC superfluous paperwork re The Checkout” which stated:

15. [580]

    As I have set out above, cl 5.3 of the Share Sale Agreement, to which Mr Morrow referred, obliged both Giant Dwarf and Cordell Jigsaw to do all things that the Joint Venture Company “considers reasonably necessary to perfect the assignment in this clause, including executing all documents”.

16. [581]

    The form of Quit Claim attached to Mr Morrow’s email was in the terms that the ABC had required. The only parties to the proposed document were Cordell Jigsaw and the Joint Venture Company (which by now had changed its name to The Checkout Pty Ltd). Its operative clause was:

17. [582]

    Clause 4.3 of the Share Sale Agreement, the subject of the carve-out in cl 2.3(a), was the provision in the Share Sale Agreement that the Joint Venture Company pay Cordell Jigsaw the 2% fee.

18. [583]

    A matter in dispute in these proceedings is whether Cordell Jigsaw was obliged by either or both of cll 5.3 or 9.7 of the Share Sale Agreement to execute a Quit Claim in this form. I return to this below.

19. [584]

    The following day, Mr Morrow sent a message to Mr Murray:

20. [585]

    As I have set out, Ms Gilchrist stated in her 30 May 2019 email to Mr Morrow that the ABC required an executed Quit Claim by the morning of 4 June 2019, so that the ABC could commence the “commissioning process” for The Checkout at the Content Executive meeting to be held on that day.

21. [586]

    On the morning of 4 June 2019, Mr Morrow had not heard from Mr Murray about the Quit Claim. Accordingly, he emailed Mr Anderson:

22. [587]

    Mr Morrow attached to that email a “Chain of Title Opinion” that he received from his then solicitor, Mr Michael Easton, in which Mr Easton expressed an opinion about Cordell Jigsaw’s “ongoing entitlements”.

23. [588]

    As I have mentioned earlier, a notable aspect of Mr Morrow’s email to Mr Anderson is his statement that they had been discussing since October 2018 “the prospect of bringing The Checkout back to ABC TV”.

24. [589]

    Mr Carrington responded later on 4 June 2019, firmly:

25. [590]

    Mr Morrow replied a short time later:

26. [591]

    A short time later, Mr Morrow sent a further message to Mr Murray:

27. [592]

    The following day, 5 June 2019, Mr Morrow sent an email to Mr Murray:

28. [593]

    As short time later, Mr Murray sent an email to Mr Fraser:

29. [594]

    Mr Murray was, of course, correct in suspecting that Mr Morrow had had negotiations with the ABC prior to execution of the Share Sale Agreement. I have set out above my findings as to whether that meant that Mr Morrow was in breach of his duties as a director of the Joint Venture Company to “us as a shareholder”.

30. [595]

    On 7 June 2019, Mr Carrington wrote to Mr Morrow saying that, as Mr Morrow had suggested, he had spoken to Mr Murray but that “Nick has not been able to give the ABC the comfort it requires”. Mr Carrington continued:

31. [596]

    Later on 7 June 2019, Mr Murray wrote to Mr Morrow:

32. [597]

    On 9 June 2019, Mr Easton wrote to Mr Murray. I have referred to this email earlier.

33. [598]

    Mr Easton stated:

34. [599]

    The following day, 10 June 2019, Mr Murray sent an email to Ms Mandy Chapman, Cordell Jigsaw’s inhouse lawyer, Mr Fraser and to Ms Katie Shortland:

35. [600]

    On 11 June 2019, Mr Carrington sent to Mr Morrow:

36. [601]

    Later on 11 June 2019, Mr Murray replied to Mr Easton’s 9 June email. His response included:

The second allegedly defamatory communication – Mr Murray’s 11 June 2019 conversation with Ms Pincus

1. [602]

   On 11 June 2019, Mr Murray had a conversation with Ms Pincus at the ABC in which he described Mr Morrow as “the new millennials’ Steve Vizard”. Mr Morrow contends this statement was defamatory of him.

2. [603]

   Ms Pincus recorded the substance of her conversation with Mr Murray in an email to Ms Waite on 11 June 2019.

3. [604]

   A copy of Ms Pincus’s email to Ms Waite, marked up in the same manner as Mr Murray’s 21 May 2019 email:

The third allegedly defamatory communication – Mr Murray’s 12 June 2019 email to Ms Pincus and Ms Chapman

1. [605]

   A little over an hour later, Mr Murray sent an email to Ms Pincus, copied to Ms Chapman, this being the third communication from Mr Murray to the ABC that Mr Morrow contends was defamatory of him.

2. [606]

   A copy of the email, marked up in the manner I have described, follows:

3. [607]

   Several hours later, on the same day, Mr Morrow sent an email to Mr Murray which included:

4. [608]

   On 13 June 2019, Mr Easton wrote to Ms Gilchrist of the ABC requesting “copies of the relevant correspondence from [Cordell Jigsaw], so that my client may review and respond to these claims”.

5. [609]

   On 14 June 2019, Ms Gilchrist replied to Mr Easton, stating that the ABC would not provide a copy of the correspondence requested.

6. [610]

   Ms Gilchrist’s email read:

7. [611]

   Ms Gilchrist was here obviously referring to Mr Murray’s 12 June 2019 email to Ms Pincus.

8. [612]

   Ms Gilchrist continued:

9. [613]

   In the meantime, on 13 June 2019, Mr Murray wrote the email to Mr Easton to which I have earlier referred:

10. [614]

    On 13 June 2019, Mr Morrow wrote Mr Murray the email referring to a “genuine prospect” of The Checkout being recommissioned to which I also earlier referred.

11. [615]

    The relevant part of the email read, in full:

12. [616]

    It may well be that Mr Morrow did not know whether there was a “genuine prospect” that The Checkout would be recommissioned at the time of the Duck Inn Meeting with Mr Murray, or at the time of his meeting with Mr Fraser, Ms Crouch and Ms Chen on 22 February 2019, being the dates by which, on Mr Morrow’s case, Cordell Jigsaw and Giant Dwarf “had agreed on the ‘terms’ of Cordell Jigsaw’s ‘exit’ from the Joint Venture Company”.

13. [617]

    I have, however, found that there was no “agreement in principle” about that matter until 8 March 2019.

14. [618]

    Assuming, in Mr Morrow’s favour, that there was no “genuine prospect” of The Checkout being recommissioned on those dates, it is nonetheless plain, for the reasons I have set out, that from 8 March 2019, and certainly by early April at the latest, there was not only a “genuine prospect” that The Checkout would be recommissioned. It was, subject to Mr Murray causing Cordell Jigsaw to execute the Share Sale Agreement, a certainty.

15. [619]

    On 14 June 2019 Mr Murray sent an email to Ms Pincus.

16. [620]

    That email, marked up to show the passages allegedly constituting an injurious falsehood, follows:

17. [621]

    As Mr Murray stated in this email, on or about 14 June 2019, Mr Morrow retained Mr Ben Kay, from Kay & Hughes, to act for him and Giant Dwarf, in place of Mr Easton.

18. [622]

    On or about 16 June 2019, Mr Hamish Fraser from Bird & Bird commenced to act for Mr Murray and Cordell Jigsaw.

The events leading to the purported termination of the Share Sale Agreement

1. [623]

   An exchange of correspondence between Mr Kay and Mr Fraser then ensued that led to the Joint Venture Company’s and Giant Dwarf’s purported termination of the Share Sale Agreement on the basis of Cordell Jigsaw’s alleged repudiation of it.

2. [624]

   As I have found that the Share Sale Agreement should be rescinded under s 237 of the Australian Consumer Law by reason of Mr Morrow’s misleading or deceptive conduct, whether or not Cordell Jigsaw did repudiate the Share Sale Agreement, and whether or not Giant Dwarf was entitled to terminate it is of less moment.

3. [625]

   However, in deference to the detailed submissions I received on the question, and lest I be wrong in concluding that the Share Sale Agreement should be rescinded, I interrupt these reasons here to deal with that correspondence and set out my findings on this question.

4. [626]

   As these clauses are mentioned in the correspondence exchanged between Mr Kay and Mr Fraser I will set out, again, the text of cll 5.3 and 9.7 of the Share Sale Agreement.

5. [627]

   Clause 5.3 provided:

6. [628]

   Clause 9.7 provided:

7. [629]

   On 14 June 2019, Mr Kay wrote to Murray stating that:

8. [630]

   On 16 June 2019, Mr Fraser notified Mr Kay of his retainer and on 19 June 2019 sent Mr Kay an email saying that:

9. [631]

   On 19 June 2019, Mr Kay sent Mr Fraser a document headed “Breach Notice” in which he imposed a “Final Deadline” of 5pm on Friday 21 June 2019 by which date Cordell Jigsaw should execute the Quit Claim.

10. [632]

    Mr Kay also stated that Mr Morrow “required” Mr Murray to confirm by the following day that:

11. [633]

    On 19 June 2019, Mr Fraser replied to Mr Kay’s letters of 14 and 19 June 2019:

12. [634]

    Mr Fraser then set out his instructions as to Cordell Jigsaw’s “contention that it was misled in the lead up to the execution” of the Share Sale Agreement and that had Cordell Jigsaw’s “officers been aware of the true status of The Checkout, it would simply not have proceeded with the sale of its shares” in the Joint Venture Company.

13. [635]

    In that context, Mr Fraser continued “our client will not agree to execute a Quit Claim that forfeits its rights to challenge” the Share Sale Agreement.

14. [636]

    In my opinion, Mr Fraser’s statement that Mr Murray and Cordell Jigsaw were of the view that the Share Sale Agreement did not compel it to sign a Quit Claim in its current form “or at all” should be read in this context. Mr Fraser was making clear that his instructions were that Mr Murray and Cordell Jigsaw would not execute a Quit Claim that was so broadly drawn that it would prevent Mr Murray and Cordell Jigsaw pursuing such rights as may be available to them arising from the misleading conduct of which they complained, and which I have found has been made out.

15. [637]

    Finally, Mr Fraser said that Mr Murray and Cordell Jigsaw confirmed the matters in (a) and (b) set out at [632] above but were not prepared to confirm matters (c) and (d).

16. [638]

    On 21 June 2019, Mr Fraser sent an email to Mr Kay contending that:

17. [639]

    On 25 June 2019, Mr Fraser wrote to Mr Kay noting that the ABC had agreed to extend the deadline for execution of the Quit Claim to 28 June 2019. This was the last extension that the ABC granted in relation to execution of the Quit Claim.

18. [640]

    On 25 June 2019 Mr Kay replied to Mr Fraser:

19. [641]

    On 26 June 2019, Mr Fraser wrote to Mr Kay stating that:

20. [642]

    On 27 June 2019, Mr Kay sent an email to Mr Fraser disputing the matters in Mr Fraser’s email and repeating the demand for the undertakings to be given, this time by 9am on 28 June 2019.

21. [643]

    On 28 June 2019 Mr Kay wrote to Mr Fraser:

Repudiation?

1. [644]

   The term “repudiation” is used in two senses. [59]

2. [645]

   The first is where there has been a “renunciation” [60] by one party of the contract as a whole or of a fundamental obligation under the contract. [61] The question in such a case is whether a party to the contract has evinced an unwillingness [62] to render substantial performance under the contract and either to be no longer bound by the contract at all, or, more relevantly here, to fulfil it “only in a manner substantially inconsistent” with its obligations and “not in any other way”. [63]

3. [646]

   The test is whether the conduct of one party is such as to convey “to a reasonable person, in the situation of the other party, repudiation or disavowal either of the contract as a whole or of a fundamental obligation under it”. [64]

4. [647]

   In this context it has been held that there is a difference between evincing an intention to carry out the contract “only if and when” it suits the party to do so and evincing an intention to carry out the contract “as and when” it suits the party to do so. In the former case, “the party intends not to carry out the contract at all in the event that it does not suit him”. In the second case, “the party intends to carry out the contract, but only to carry it out as and when it suits him”. Repudiation may be found in either case, but more easily in the former. [65]

5. [648]

   Repudiation is a “serious matter, not to be lightly found or inferred” [66] and must constitute a breach “so serious that it goes to the root of the contract, and thus deprives the other party of substantially the whole benefit of the contract”. [67]

6. [649]

   The second sense in which the term “repudiation” is used is where there has been a breach of contract which justifies termination by the other party. [68] Repudiation in this sense describes the effect of the breach of a condition or of an intermediate term. [69]

7. [650]

   There may be cases where a party’s conduct amounts to repudiation in both of these senses. [70]

8. [651]

   Mr Morrow and Giant Dwarf contend for repudiation in the first sense by reason of Mr Fraser’s statement in his 19 June 2019 email that Cordell Jigsaw “will not agree to clause 25(c)” contained in Mr Kay’s email of the same date; which, as I have stated, called for Cordell Jigsaw to confirm its “express and full acceptance” that it “stands by the validity” of the Share Sale Agreement and “will uphold its terms”. [71]

9. [652]

   Thus, Ms Chrysanthou submitted:

10. [653]

    Mr Fraser made clear in his 19 June 2019 letter that the reason Cordell Jigsaw would not give that confirmation was its belief that it “was misled in the lead up to execution” of the Share Sale Agreement and was not prepared to “forfeit its rights to challenge” the Share Sale Agreement on that basis.

11. [654]

    I have held that, just as Mr Fraser contended in this letter, Mr Morrow had misled Mr Murray “in the lead up to execution” of the Share Sale Agreement.

12. [655]

    Accordingly, Mr Murray’s refusal to “stand by” the Share Sale Agreement could not have been a repudiation of it.

13. [656]

    Alternatively, Mr Morrow and Giant Dwarf contend for repudiation in the second sense, by reason of Cordell Jigsaw’s refusal to execute the Quit Claim. [72]

14. [657]

    Resolution of that issue requires consideration of whether cl 5.3 or cl 9.7 of the Share Sale Agreement required Cordell Jigsaw to execute the Quit Claim.

15. [658]

    In my opinion cl 5.3 does not have any application here.

16. [659]

    I think Mr Katekar was correct to submit that the Quit Claim did not ask Cordell Jigsaw to perfect any assignment of any intellectual property and that the clause has no operative effect in the context of the Quit Claim.

17. [660]

    Clause 9.7 is a “further assurance” clause requiring, relevantly, Cordell Jigsaw to do anything, including executing a document that Giant Dwarf reasonably required “to give full effect to this agreement”.

18. [661]

    As Mr Katekar submitted, such clauses are “a very common type of clause, its purpose being to make sure that the purchaser obtains what it bargained for, no less and no more”. [73]

19. [662]

    A clause such as this “cannot operate upon some subject matter wider than that delineated by the deed itself” and “does not contemplate that its operation will pay attention to matters outside the document’s purview”. [74]

20. [663]

    It is true the Share Sale Agreement contemplated the possibility that the Joint Venture Company may pay Cordell Jigsaw “a fee of 2%” of the cash budget “on subsequent series of The Checkout produced” by the Joint Venture Company, Giant Dwarf or any affiliated company or subsidiary. Thus, it contemplated the possibility that the Joint Venture Company or Giant Dwarf might produce a further series of The Checkout. [75]

21. [664]

    But the Quit Claim not only required Cordell Jigsaw to release the Joint Venture Company from any claim it might have in relation to any such further series. It also obliged Cordell Jigsaw to release the ABC and its “current and former officers, employees and agents” from all “existing and future” claims “wherever, whenever or however arising, known or unknown” from any such further series.

22. [665]

    This went far beyond anything that the Share Sale Agreement contemplated and far beyond anything Mr Morrow or Giant Dwarf could reasonably require Cordell Jigsaw to do to “give the full effect of this agreement”.

23. [666]

    In any event, what is reasonably required will depend upon the circumstances leading to the request. By the time Mr Murray and Cordell Jigsaw finally refused to execute the Quit Claim they had, I have found, a reasonable basis to suspect that Mr Morrow had been in negotiations with the ABC throughout the time he was negotiating with Mr Murray concerning the terms of the Share Sale Agreement.

24. [667]

    I have found that Mr Fraser was correct to say, in his email of 26 June 2019 to Mr Kay, that the discussions between Mr Murray and Mr Morrow and between Mr Simon Fraser and Mr Morrow prior to execution of the Share Sale Agreement on 8 April 2019 “did not contemplate” that The Checkout “was to be imminently re-enlivened or that there were, at that time, attempts being made to re-enliven it”.

25. [668]

    In those circumstances, I cannot see how Mr Morrow or Giant Dwarf or the Joint Venture Company could reasonably require Mr Murray or Cordell Jigsaw to execute a document that “forfeited its rights” to challenge the Share Sale Agreement on this basis. As I have set out above, I have upheld that challenge.

26. [669]

    In any event, as I have set out above, it appears to be Mr Morrow’s own position that the Quit Claim was not reasonably necessary to give effect to the Share Sale Agreement as, according to Mr Kay, Mr Morrow had sought to so persuade the ABC. [76]

27. [670]

    Cordell Jigsaw did not repudiate its obligations under the Share Sale Agreement.

28. [671]

    The Joint Venture Company and Giant Dwarf were not entitled to terminate the Share Sale Agreement and in purporting to do so, themselves repudiated the Share Sale Agreement.

29. [672]

    In view of my decision to rescind the Share Sale Agreement under s 237 of the Australian Consumer Law it is not necessary for me to determine whether or not Cordell Jigsaw accepted that repudiation.

Settlement discussions

1. [673]

   In the meantime, on 17 June 2019, Mr Morrow and Mr Murray participated in a settlement conference. At that conference Mr Murray asked Mr Morrow how many series of The Checkout the ABC was proposing to commission.

2. [674]

   Mr Morrow agrees that he answered by saying “one”.

3. [675]

   In fact, as Mr Morrow knew, the ABC was contemplating the possibility of there being two further series.

4. [676]

   Mr Murray, it appears correctly, took that to be a dishonest answer and the settlement “fell over” as a result.

The fourth allegedly defamatory communication – Mr Murray’s 20 June 2019 email to Mr Carrington

1. [677]

   I return now to the course of events.

2. [678]

   On 20 June 2019, Mr Murray sent a further email to Mr Carrington headed “Checkout shenanigans update” which, Mr Morrow contends, contains further defamatory statements about him.

3. [679]

   A copy of that email, marked up in the manner I have described above, follows:

4. [680]

   Mr Carrington replied the following day:

5. [681]

   On 27 June 2019, Mr Murray wrote to Ms Gilchrist and Mr Carrington requesting that the ABC supply “us with The Checkout correspondence as we owned 50% of the company until 8th April, I was a director until 9th April and [Executive Producer] of [T]he Checkout at all relevant times” and that “this is getting more urgent and if this is to be resolved at all, we need access to the documents everyone else has”.

6. [682]

   Ms Gilchrist replied the same day declining to provide that correspondence.

7. [683]

   On 28 June 2019, Mr Murray wrote to Ms Gilchrist and Mr Carrington, with a copy to Mr Anderson and Ms Pincus.

8. [684]

   That email, marked up to the passages allegedly constituting an injurious falsehood, follows:

9. [685]

   Later on 28 June 2019, Mr Morrow wrote to Mr Anderson:

5 July 2019 – the ABC terminates discussions concerning The Checkout

1. [686]

   On 5 July 2019, the ABC, under the hand of its General Counsel, Ms Connie Carnabuci, wrote a formal letter to Mr Morrow and Mr Murray as directors of Giant Dwarf and The Checkout and Cordell Jigsaw terminating discussions for a further series of The Checkout.

2. [687]

   Ms Carnabuci wrote:

The fifth allegedly defamatory communication – Mr Murray’s 5 July 2019 email to Ms Carnabuci

1. [688]

   That letter prompted Mr Murray to write to Ms Carnabuci.

2. [689]

   Mr Morrow contends this letter contained further defamatory statements about him, as well as statements constituting an injurious falsehood.

3. [690]

   A copy of that email, marked up in the manner I have described, follows:

4. [691]

   On 23 July 2019, Ms Carnabuci wrote to Mr Murray:

5. [692]

   On the same day, Ms Carnabuci wrote a corresponding letter to Mr Morrow.

6. [693]

   Mr Murray replied on 29 July 2019 in an email which Mr Morrow contends contains injurious falsehoods. That email, marked up in the manner I have described, follows:

7. [694]

   Ms Gilchrist replied to Mr Murray on 8 August 2019:

The sixth allegedly defamatory communication – Mr Murray’s 12 August 2019 email to Ms Gilchrist

1. [695]

   Four days later, on 12 August 2019, Mr Murray replied to Ms Gilchrist’s email. This is the final email in which Mr Morrow contends that Mr Murray made defamatory statements about him.

2. [696]

   A copy of that email, marked up in the manner I have described follows:

The mediation

1. [697]

   On 18 October 2019, Mr Morrow and Mr Murray attended a mediation.

2. [698]

   Mr Simon Fraser was also in attendance. Following the mediation, Mr Simon Fraser wrote to Ms Gilchrist from the ABC attaching copies of a number of versions of the Quit Claim required by the ABC and stating:

3. [699]

   In cross-examination, Mr Simon Fraser readily agreed that this information was given to him during the mediation and that, by providing the information to Ms Gilchrist, he acted in breach of the confidentiality provisions in the mediation agreement.

4. [700]

   In closing submissions, Ms Chrysanthou submitted that this “unauthorised disclosure obviously and necessarily interfered with the plaintiffs’ relationship and ongoing negotiations with the ABC”.

5. [701]

   However, there is no evidence that the disclosure had any effect on Mr Morrow’s, Giant Dwarf’s, or the Joint Venture Company’s relationship with the ABC, as the following account of Mr Morrow’s negotiations with the ABC concerning the proposed “Help Desk” program reveals.

“The Help Desk” negotiations

1. [702]

   Back on 4 July 2019, Mr Morrow had written to Mr Anderson and Mr Carrington attaching “Giant Dwarf’s letter proposing a new consumer affairs TV project, The Help Desk”.

2. [703]

   Mr Morrow wrote:

3. [704]

   On 19 August 2019 Mr Carrington wrote to Mr Morrow:

4. [705]

   A dispute arose between Mr Morrow and the ABC concerning the production terms on which the ABC might commission The Help Desk.

5. [706]

   Mr Morrow understood that, at his meeting of 8 March 2019 with Mr Anderson concerning what Mr Carrington then described as “a new series (to be named)” and which later that day Mr Morrow pitched as Are You Being Served, Mr Anderson had agreed to give Mr Morrow sole creative control over the new program.

6. [707]

   Now that Mr Morrow was pitching The Help Desk to the ABC, the ABC insisted on its “standard editorial approvals”; which involved creative input from the ABC and did not give Mr Morrow sole creative control.

7. [708]

   Thus, on 24 August 2019, Mr Carrington wrote to Mr Morrow:

8. [709]

   Evidently, this was not acceptable to Mr Morrow.

9. [710]

   On 28 October 2019, Mr Morrow wrote to Mr Anderson and Mr Carrington noting that the ABC’s proposed terms for pursuing The Help Desk including “ABC’s standard terms re ‘creative approvals’” and stating that those terms were “inferior” to what Mr Morrow asserted Mr Anderson had agreed to on 8 March 2019.

10. [711]

    Mr Morrow concluded:

11. [712]

    On 1 November 2019 Ms Gilchrist wrote to Mr Morrow:

12. [713]

    Later on 1 November 2019 Ms Porter at the ABC sent an email to Ms Pincus concerning a telephone call she had just had with Mr Morrow:

13. [714]

    Although I only received that document as evidence of the contents of the ABC’s records, it in fact reflects that Mr Morrow wrote to Mr Anderson and Mr Carrington on 28 October 2019.

14. [715]

    Mr Morrow commenced the Commercial Proceedings on that day.

15. [716]

    On 18 November 2019, Mr Morrow, under letterhead of the Joint Venture Company, wrote to Mr Anderson raising “concerns” about a “potential breach of Editorial Standard 1.3” arising from “the ABC’s decision to ban personnel from The Checkout working on a ‘new consumer affairs program’.”

16. [717]

    On 21 November 2019, Mr Morrow wrote to Mr Carrington again complaining about the ABC’s decision concerning “creative approvals” and concluding:

17. [718]

    On 22 November 2019, Mr Carrington wrote to Mr Morrow:

18. [719]

    Mr Morrow replied on the same day:

19. [720]

    Later that day, 2019 Mr Carrington wrote to Ms Pincus and Ms Waite:

20. [721]

    As I have said earlier, I have received the internal communications within the ABC as evidence only of the fact that they are within the ABC’s records and not, themselves, evidence of the truth of their contents. I include them here merely to show how things progressed, as the ABC recorded matters.

21. [722]

    That evening, Mr Carrington wrote to Mr Morrow:

22. [723]

    Mr Morrow replied within minutes:

23. [724]

    That was a remarkably robust response for Mr Morrow to make to Mr Carrington’s assurance that the ABC did not intend to damage its relationship with Giant Dwarf and to Mr Carrington’s personal assurance that the had been Mr Morrow’s “champion throughout”. In effect, Mr Morrow was accusing Mr Carrington of making a statement he knew to be untrue.

24. [725]

    On 24 November 2019, Mr Morrow published on The Checkout’s Twitter account:

25. [726]

    The Tweet also included the following image:

26. [727]

    This was a quotation from an email sent to Mr Morrow from the ABC’s head of “Acquisitions and Productions - Legal" on 24 October 2019.

27. [728]

    That prompted the ABC, under the hand of Ms Carnabuci on 26 November 2019, to write to Mr Morrow, under the heading “Breach of Confidence”:

28. [729]

    On 5 December 2019, Mr Carrington wrote to Mr Morrow:

29. [730]

    Mr Carrington’s words were measured, but clear. The ABC was clearly most unhappy that Mr Morrow had, again, taken his dissatisfaction with the ABC’s decisions into the public arena and, on this occasion, had chosen to publish material the ABC regarded as confidential.

30. [731]

    That same day, the ABC issued the following public statement from its Media Centre:

31. [732]

    I will return to these matters when considering Mr Morrow’s claim for economic loss in the context of his defamation claim against Mr Murray and his and Giant Dwarf’s corresponding claim in relation to injurious falsehood.

The alleged injurious falsehoods

1. [733]

   In the meantime, between 13 September 2019 and 26 November 2019, Mr Murray sent emails to various persons at the ABC that Mr Morrow and Giant Dwarf allege contained further injurious falsehoods. The alleged injurious falsehoods in these emails are in addition to those in the passages in red text in the emails to which I have already referred.

2. [734]

   Those emails were, with the alleged injurious falsehoods in red text, as follows:

3. [735]

   I will return to these allegedly injuriously false emails below.

4. [736]

   I now turn to consider Mr Morrow’s contentions concerning the six allegedly defamatory communications made by Mr Murray to the ABC.

Defamation

1. [737]

   Mr Murray does not dispute that he published the five emails in question nor that he had the conversation with Ms Pincus recorded in her email of 11 June 2019.

2. [738]

   Nor does Mr Murray dispute that if those publications had the meanings for which Mr Morrow contends, they were defamatory of Mr Morrow in that they would tend to lower Mr Morrow’s reputation in the minds of right thinking ordinary members of the community. [77]

3. [739]

   In the case of four of the six allegedly defamatory publications, there is a dispute as to the meaning of what was said.

4. [740]

   In relation to each publication, Mr Murray relied on the defences of:

5. [741]

   I will deal with each of the allegedly defamatory publications in sequence and, in the course of dealing with those publications, set out the relevant principles.

6. [742]

   I have set out the text of this email at [568] above.

7. [743]

   Mr Murray sent this email after receiving the text messages from Mr Reucassel to which I have referred.

8. [744]

   In this email, Mr Murray said, in the allegedly defamatory passages, that:

9. [745]

   Mr Murray also said that he was “not suggesting any wrongdoing on the part of the ABC” as “you were not to know the contents of the discussions between [Mr Morrow] and us about the [joint venture]”: thus making clear that he was “suggesting” that Mr Morrow had engaged in “wrongdoing”.

10. [746]

    Mr Morrow also stated, in the part of the email which is not alleged to be defamatory, that “Craig”, that is Mr Reucassel, “has in the recent past asked me to take over from Julian”. Mr Murray accepted that he was “gilding the lily” about this in that Mr Reucassel had made that request in April or May 2017 and thus, at least arguably, not in the “recent past”. I will return to this below.

11. [747]

    There was a dispute as to the meaning of the allegedly defamatory passages from this email.

12. [748]

    The question is, what meaning would be conveyed from the publication about the reputation of Mr Morrow from the perspective of the “ordinary reasonable reader”. [78] The “ordinary reasonable reader” is a person of fair average intelligence, not avid for scandal but, equally, prone to a degree of loose thinking and capable of reading between the lines. [79]

13. [749]

    The analysis is not of the precise wording of the publication, but the meaning that an ordinary, reasonable reader would attribute to the publication analysed in the context of its overall tone or tenor. [80] That meaning can include any implication or inference which the ordinary reasonable reader would derive from the publication, guided by general knowledge and unfettered by strict legal rules of construction. [81]

14. [750]

    Ms Chrysanthou submitted that the meaning of this email was that Mr Morrow had “acted unlawfully in negotiating the [Share Sale Agreement] with [Cordell Jigsaw]”.

15. [751]

    On the other hand, Mr Katekar submitted that the meaning conveyed was that “Mr Morrow did not mention his negotiations with the ABC about The Checkout when he asked [Cordell Jigsaw] to leave the Joint Venture Company, which may have been in breach of Mr Morrow’s director’s duties”.

16. [752]

    In my opinion, the meaning contended for by Ms Chrysanthou is what the ordinary, reasonable reader would understand.

17. [753]

    Ms Chrysanthou submitted that “unlawful conduct (as understood by a lay person) is deliberately unlawful conduct” or “knowingly illegal” conduct. I do not agree. In my opinion, the ordinary reasonable reader of this email would understand Mr Murray to be saying that Mr Morrow had behaved unlawfully in the sense of behaving in a manner “not conforming to or permitted by the law”. [82] I see nothing in Mr Murray’s words that would convey to an ordinary reasonable reader that Mr Murray was alleging that Mr Morrow’s conduct was knowingly unlawful.

18. [754]

    It is true that the allegedly defamatory statements were made in the context of Mr Murray saying, earlier in the email, that he had “heard a rumour that The Checkout was being recommissioned”, suggesting Mr Murray was not saying that he actually knew what had occurred.

19. [755]

    However, as I have said, Mr Murray’s statement that he was not suggesting “any wrongdoing on the part of the ABC” carried the implication that he was suggesting that Mr Morrow had engaged in wrongdoing, namely having acted in breach of his duties as a director of the Joint Venture Company.

20. [756]

    Under s 25 of the Defamation Act (“the Act”), it is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter are “substantially true”. [83]

21. [757]

    Section 4 of the Act defines “substantially true” as meaning “true in substance or not materially different from the truth”.

22. [758]

    It is necessary to establish that “every material part” of each imputation is “substantially true”. [84] However, an error in detail does not mean the defence will necessarily fail. [85]

23. [759]

    In my opinion, what Mr Murray said in this email was substantially true.

24. [760]

    Mr Morrow “did not mention his negotiations” with the ABC to Mr Murray.

25. [761]

    I have found that Mr Morrow did act in breach of his duties as a director of the Joint Venture Company by causing Giant Dwarf to act in breach of the implied term of the Joint Venture Agreement that he would inform Cordell Jigsaw of any opportunity to produce a further series of The Checkout or any equivalent or similar consumer affairs show.

26. [762]

    Thus, it was substantially true for Mr Murray to say that Mr Morrow may have breached his duties to the Joint Venture Company by “not informing us of the negotiations to bring the show back”; and for Mr Murray to say, by implication, that Mr Morrow had engaged in “wrongdoing”.

27. [763]

    For that reason, my conclusion is that Mr Murray has made out a defence of justification under s 25 of the Act.

28. [764]

    That being so, it is not necessary to consider what other defences Mr Murray may have had in relation to this publication.

29. [765]

    I have set out the text of this Ms Pincus’s email recording of what Mr Murray said to her at [604] above.

30. [766]

    Mr Murray had this conversation with Ms Pincus after receiving Mr Morrow’s request that he execute the Quit Claim.

31. [767]

    In the email of 11 June 2019, Ms Pincus recorded that Mr Murray had told her that he thought he had been “misled” in the meetings “leading to the signing of” The Checkout Share Sale Agreement, that in those negotiations Mr Morrow had made reference only to his need to gain access to the PDV Offset and had “made no reference to the possible further production of” The Checkout and that Mr Morrow was “the new millennials’ Steve Vizard”.

32. [768]

    Ms Chrysanthou submitted the ordinary reasonable person in the position of Ms Pincus would have understood Mr Murray’s statements to mean that Mr Morrow had acted unlawfully in negotiating the Share Sale Agreement with Cordell Jigsaw and had misled Cordell Jigsaw into signing the Share Sale Agreement.

33. [769]

    On the other hand, Mr Katekar submitted that the ordinary reasonable person in Ms Pincus’s position would have understood Mr Murray to be saying that Mr Morrow “may have” misled Mr Murray and Cordell Jigsaw and breached his director’s duties in that he told Mr Murray that the Share Sale Agreement was needed so he could access cash in a bank account, but did not tell them about a possible further production of The Checkout before the Share Sale Agreement was signed.

34. [770]

    In my opinion, a reasonable person in Ms Pincus’s position would have understood Mr Murray to be saying that Mr Morrow had in fact misled him and Cordell Jigsaw by not revealing, in the course of negotiations in relation to the Share Sale Agreement, his concurrent negotiations with the ABC; and that Mr Morrow had in fact acted in breach of his duties as a director of the Joint Venture Company by not disclosing the opportunity to produce a further series of The Checkout or an equivalent or similar consumer affairs show.

35. [771]

    That is, in effect, what I have found to have occurred. I have found Mr Morrow to have engaged in misleading or deceptive conduct by remaining silent about the opportunity presented during March and April 2019. I have found that Mr Murray was in fact misled in the course of the negotiations leading to the Share Sale Agreement. I have also found that, in his written communications with Mr Murray between the Duck Inn Meeting and the execution of the Share Sale Agreement, Mr Morrow continually stated that he needed Cordell Jigsaw to transfer its shares in the Joint Venture Company to Giant Dwarf so that Giant Dwarf could access the PDV Offset and “made no reference to possible further production of” The Checkout. [86]

36. [772]

    It is true that at the Duck Inn Meeting and in his meeting with Mr Simon Fraser on 22 February 2019 Mr Morrow made oblique references to future possible productions of The Checkout and that the provisions in the Share Sale Agreement for a 2% fee of the Joint Venture Company’s budget on any subsequent series of The Checkout produced by the Joint Venture Company, Giant Dwarf or any affiliated company or subsidiary reflected that oblique reference. But Mr Morrow did not reveal the imminence of the likely production of further series of The Checkout.

37. [773]

    I have also found that Mr Morrow acted in breach of his duties as a director of the Joint Venture Company.

38. [774]

    In other words, my conclusion is that what Mr Murray said in his email was substantially true and that a defence of justification under s 25 of the Act is made out.

39. [775]

    It is, again, therefore unnecessary to consider the other defences relied upon by Mr Murray.

40. [776]

    I have set out this email at [606] above.

41. [777]

    Mr Murray sent this email to Ms Pincus, with a copy to Ms Chapman, the day following his conversation with Ms Pincus on 11 June 2019.

42. [778]

    In this email, in the allegedly defamatory passages, Mr Murray said to Ms Pincus and Ms Chapman that:

43. [779]

    It is common ground that the meanings conveyed by these passages were that Mr Morrow had acted unlawfully in negotiating the Share Sale Agreement with Cordell Jigsaw and that Mr Morrow had deceived Cordell Jigsaw into selling its shares in the Joint Venture Company to Giant Dwarf without payment.

44. [780]

    I have found that Mr Morrow engaged in misleading or deceptive conduct and in breach of his duties as a director of the Joint Venture Company and have, in that sense, found that Mr Morrow acted unlawfully and deceived Cordell Jigsaw into selling its shares in the Joint Venture Company to Giant Dwarf.

45. [781]

    It was not true, however, for Mr Murray to say that the transfer had been “without payment” as there was consideration for the transfer, in addition to the nominal figure of $50, [87] being the promise by the Joint Venture Company to pay Cordell Jigsaw the 2% fee to which I have referred.

46. [782]

    More significantly, it was not true for Mr Murray to say that there was a “dispute concerning the ownership of the underlying IP for The Checkout”.

47. [783]

    As I have set out above, a short time after 12 June 2019, on 19 June 2019 Mr Fraser, no doubt on instructions from Mr Murray, confirmed to Mr Kay that Mr Murray agreed that “all intellectual property rights in The Checkout were held exclusively by the [Joint Venture Company] as stated in the Quit Claim Deed”.

48. [784]

    Mr Murray must have known this when he wrote the email on 12 June 2019.

49. [785]

    Accordingly, I am not satisfied that what he said in this email was substantially true in all respects.

50. [786]

    It follows that the defence of justification is not made out in relation to this email. “Partial justification”, that is a plea which fails to justify every material part of every pleaded imputation is not a defence. [88]

51. [787]

    The question of what damage Mr Morrow has suffered by reason of those aspects of this email that were not substantially true is another matter, to which I will return.

52. [788]

    As s 30(1) of the Act provides:

53. [789]

    A vital element in this defence is that the recipient has an “interest or apparent interest” in having information on the subject.

54. [790]

    In this context, “interest” is used in its broadest popular sense. [89] Nonetheless, I cannot see what interest, or apparent interest, the ABC had in hearing from Mr Murray about the matters he set out in this email.

55. [791]

    It may be that the ABC had an interest or apparent interest in knowing, as a general matter, that there was a dispute between Mr Morrow and Mr Murray concerning any entitlement to produce a further series of The Checkout. That might have been relevant to the ABC’s decision about commissioning a further series. But the ABC had no interest or apparent interest in hearing the detail of Mr Murray’s contentions about that matter.

56. [792]

    It certainly had no interest, or apparent interest, in being told, contrary to the fact, that Cordell Jigsaw had agreed to transfer its shares in the Joint Venture Company to Giant Dwarf “without payment”; and that there was a dispute concerning the ownership of the underlying intellectual property of The Checkout.

57. [793]

    Mr Murray’s conduct in including incorrect information about these matters was not reasonable.

58. [794]

    The defence of statutory qualified privilege is not made out.

59. [795]

    The defence of common law qualified privilege is made out where the communication is made, relevantly, where a person has an interest in making the statement on an occasion and the recipient has a corresponding interest in receiving it. That is, there must be a reciprocity of, in this case, the interest of the publisher and the interest of the recipient. [90]

60. [796]

    Mr Murray may have had an interest in making the complaint set out in this email to the ABC. But, for the same reasons I have set out in relation to the defence of statutory qualified privilege, I cannot see what interest the ABC had in receiving the information in this email, particularly as not all of it was correct.

61. [797]

    In relation to this publication, Mr Murray also relied upon the defence of honest opinion.

62. [798]

    Section 31(1) of the Act provides:

63. [799]

    In this context, an opinion is “something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, judgment, remark, observation etc”. [91] The test is whether the ordinary reasonable person would understand the defamatory meaning as an expression of opinion, rather than a statement of fact in the context of the matter complained of. [92]

64. [800]

    In my opinion, an ordinary, reasonable reader of this email would not read the first or third parts of this email as Mr Murray expressing an opinion. He alleges that Mr Morrow made certain representations and that there was in fact a dispute concerning ownership of the intellectual property.

65. [801]

    It is true that Mr Murray prefaces the second of his statements with the words “it appears that”. But an ordinary reasonable person reading this email would take Mr Murray as stating that Mr Morrow had in fact not been transparent regarding discussions and had in fact intentionally omitted critical details.

66. [802]

    In any event, I cannot see how what Mr Murray said in this email could possibly relate to a matter of public interest.

67. [803]

    The test is whether the conduct engaged in “inherently, expressly or inferentially invites public criticism or discussion”. [93]

68. [804]

    This was a private dispute between Mr Murray and Mr Morrow. Mr Murray was sharing details of that private dispute with the ABC. Assuming, contrary to my opinion, that the ABC had an interest in knowing about the details of that dispute, as set out in this email, those details did not relate to any matter of public interest.

69. [805]

    The defence of honest opinion is not made out.

70. [806]

    I have set out this email at [679] above.

71. [807]

    Mr Murray sent this email to Mr Carrington immediately following the exchange of correspondence between Mr Kay and Mr Fraser on 19 June 2019 to which I have referred.

72. [808]

    In the allegedly defamatory passages in this email, Mr Murray said to Mr Carrington that:

73. [809]

    Ms Chrysanthou submitted that the meaning conveyed by these words was that Mr Morrow had acted unlawfully in negotiating the Share Sale Agreement with Cordell Jigsaw, had deceived Cordell Jigsaw into selling its shares in the Joint Venture Company to Giant Dwarf without payment and that he had engaged in fraud against Cordell Jigsaw.

74. [810]

    On the other hand, Mr Katekar submitted that the meaning conveyed by this email is that Mr Murray and Cordell Jigsaw had grievances with Mr Morrow’s failure to inform them of the resurrection of The Checkout when negotiating with them about the transfer of 50% of the shareholding in the Joint Venture Company to Giant Dwarf.

75. [811]

    In my opinion, the ordinary reader of this email would conclude that Mr Murray was going further than saying he had “grievances” about Mr Morrow’s failure to inform him of the “resurrection of the show”.

76. [812]

    Mr Murray asserted that Mr Morrow was “obliged to inform us” about the “resurrection” of The Checkout but had failed to comply with that obligation.

77. [813]

    An ordinary and reasonable reader of this email would conclude that Mr Murray was asserting that Mr Morrow had deceived him into transferring the shares.

78. [814]

    To that extent, I accept Ms Chrysanthou’s submission.

79. [815]

    However, I do not think an ordinary and reasonable reader would conclude that Mr Murray was alleging, in this email, that Mr Morrow had engaged in fraud.

80. [816]

    Mr Murray’s statement that the shares were transferred “for nothing” and that “we would never have given him the shares” also suggests that the shares were transferred without payment.

81. [817]

    As I have set out, that was not true.

82. [818]

    As to Mr Murray’s statement that his position was “supported by a key business partner” of Mr Morrow’s, Mr Murray agreed that his reference was to Mr Reucassel.

83. [819]

    In that regard, Mr Murray gave this evidence in cross-examination:

84. [820]

    Although Mr Reucassel was then a director and shareholder in Giant Dwarf, Mr Morrow did not call him to contradict this evidence. I see no reason to doubt it. Assuming that Mr Reucassel did say the words attributed to him by Mr Murray, it shows that Mr Reucassel expressed some support for Mr Murray’s “current position” of not executing a Quit Claim.

85. [821]

    I have found that Mr Morrow “was obliged to inform” Mr Murray “about the resurrection of the show” as Mr Murray said in this email.

86. [822]

    I have also found that Mr Morrow engaged in misleading or deceptive conduct and acted in breach of his duty as the director of the Joint Venture Company; and thus, as Mr Murray said, Mr Murray had a “genuine grievance arising out of Julian’s conduct”.

87. [823]

    To that extent, what Mr Murray said in this email was substantially true.

88. [824]

    However, it was not true to say that Cordell Jigsaw had transferred its shares in the Joint Venture Company to Giant Dwarf “for nothing” or that the shares had been “given” to Giant Dwarf.

89. [825]

    To that extent, what Mr Murray said in this email was not true.

90. [826]

    It follows that the defence of justification is not made out in relation to this email.

91. [827]

    Again, the question of what damage Mr Morrow has suffered by reason of those aspects of this email that were not substantially true is another matter, to which I will return.

92. [828]

    The heading of this email was “Checkout shenanigans update”. Its opening words were that “I thought I should give you an update on our discussions with Julian regarding sorting out The Checkout debacle”.

93. [829]

    The ABC had no interest in receiving any such “update”.

94. [830]

    Mr Murray was not expressing any opinion and nothing he said in this email related to a matter of public interest.

95. [831]

    Thus, the defences of statutory qualified privilege, common law qualified privilege, and honest opinion are not made out.

96. [832]

    I have set out this email at [690] above.

97. [833]

    This email was Mr Murray’s reply to Ms Carnabuci’s email addressed to both Mr Murray and Mr Morrow, sent earlier that day, advising that “the ABC is not able to commission The Checkout for this year due to your inability to resolve your dispute by our deadline”.

98. [834]

    In that letter, Ms Carnabuci had emphasised:

99. [835]

    Nonetheless, Mr Murray replied and, in the passages alleged to be defamatory, stated that:

100. [836]

     Mr Chrysanthou submitted that these passages conveyed the meaning that Mr Morrow had acted unlawfully in negotiating the Share Sale Agreement with Cordell Jigsaw and had engaged in fraud against Cordell Jigsaw.

101. [837]

     Mr Katekar submitted that the meaning conveyed in this document was that the timing of Mr Morrow’s negotiations with the ABC about The Checkout had caused Mr Murray and Cordell Jigsaw to suspect and allege that Mr Morrow and Giant Dwarf had engaged in fraudulent misrepresentation, breach of director’s duties and misleading and deceptive conduct.

102. [838]

     In my opinion, the ordinary and reasonable reader of this email would conclude that Mr Murray was not merely reciting a suspicion that Mr Morrow had engaged in fraud. He was accusing Mr Morrow of fraud. Although Mr Murray referred to “our allegations” of fraudulent misrepresentation, breach of director’s duties and misleading and deceptive conduct, he went on to say that such “allegations” would “easily have been proven or disposed of” had Mr Murray had access to the relevant communications and that, critically, “our assumptions about the timing of the negotiations have not been denied”.

103. [839]

     The ordinary and reasonable reader of this email would conclude Mr Murray was saying that, as his “allegation” of fraud (among other things) could have been proven or disposed of, but had not been denied, it was, in effect, made out.

104. [840]

     To the extent Mr Murray alleges that Mr Morrow engaged in misleading or deceptive conduct and acted in breach of his director’s duties, I have found this imputation to be substantially true.

105. [841]

     However, Mr Murray has not, in these proceedings, alleged that Mr Morrow made any fraudulent misrepresentation; and I have made no such finding.

106. [842]

     The words used by Mr Murray are “fraudulent misrepresentation”. Those words were used in conjunction with, and in addition to the following words: “breach of director’s duties, and misleading and deceptive conduct”. The ordinary reasonable reader of the words “fraudulent misrepresentation” would take them to mean something more than breach of duty or misleading or deceptive conduct and to bespeak knowingly dishonest conduct.

107. [843]

     My findings about Mr Morrow may bespeak a serious misunderstanding on his part about his legal position. And it may be, as Mr Katekar submitted, that Mr Morrow’s management of the message he was sending Mr Murray prior to the execution of the Share Sale Agreement, was “sharp”. But my findings are a far cry from fraud.

108. [844]

     In closing submissions, Mr Katekar boldly submitted that “the ‘fraud’ imputation is substantially true”.

109. [845]

     Mr Katekar submitted:

110. [846]

     But in this email, Mr Murray is speaking of “fraudulent misrepresentation” in contrast to “breach of director’s duties” and in contrast to “misleading and deceptive conduct”.

111. [847]

     In that context, the ordinary reasonable reader of this email would understand “fraudulent misrepresentation” to mean a knowingly false statement, that is, knowingly dishonest conduct; not the “fraud-lite” the subject of Mr Katekar’s submissions.

112. [848]

     In written submissions, the parties drew my attention to the decision of Le Miere J in Green v Fairfax Media Publications Pty Ltd, [95] handed down on 23 December 2021, the day after I reserved judgment.

113. [849]

     In the very different circumstances of that case, which included the plaintiff’s claim that she had been defamed by an accusation, the imputation of which was said to be that she “defrauds the public and investors”, his Honour observed that “fraud is deceptive conduct”. [96] So it is. But the converse, that deceptive conduct is necessarily fraudulent, does not follow; and nothing his Honour said supports any such conclusion. The decision does not advance Mr Murray’s case.

114. [850]

     The matter was compounded by the following passage from Mr Katekar’s oral address in relation to this email:

115. [851]

     Mr Katekar confirmed, later, that the allegation was withdrawn. I return to this when considering the question of aggravated damages.

116. [852]

     Ms Chrysanthou was, in my opinion, correct to submit:

117. [853]

     It follows that Mr Murray has not made out a defence of justification.

118. [854]

     There can be no question here of any defence of qualified privilege as Ms Carnabuci had made it perfectly clear in her email, to which Mr Murray was replying, that the ABC did not “wish to have any involvement in the dispute between you”. The ABC had no interest in receiving an email in the terms of Mr Murray’s email of 5 July 2019.

119. [855]

     As far as concerns the defence of honest opinion, Mr Murray was not expressing any opinions in this email. In any event, nothing he said relates to a matter of public interest.

120. [856]

     I have set out this email at [696] above.

121. [857]

     This email was Mr Murray’s reply to Ms Gilchrist’s email of 8 August 2019 in which Ms Gilchrist stated, “what claims can you actually substantiate in relation to a consumer affairs show involving Julian Morrow that are not related to The Checkout”, and asked Mr Murray to “notify Julian of your continuing claims and take appropriate action to test those claims now to resolve the dispute”.

122. [858]

     In my opinion, Ms Gilchrist was not inviting Mr Murray to explain to her what claims he could substantiate. Ms Gilchrist was inviting Mr Murray to communicate with Mr Morrow to “resolve the dispute”.

123. [859]

     In the allegedly defamatory parts of this email, Mr Murray:

124. [860]

     It is common ground that the meaning conveyed by this email was that Mr Morrow had engaged in fraud against Cordell Jigsaw and had acted unlawfully in negotiating the Share Sale Agreement.

125. [861]

     There can be no justification for Mr Murray’s allegation in this email that Mr Morrow had been “involved in a fraud”.

126. [862]

     As I have said, no such allegation is made by Mr Murray in these proceedings and I have made no such finding.

127. [863]

     The opening words of Mr Murray’s email showed that he was attempting to persuade the ABC not to work with Mr Morrow again.

128. [864]

     In relation to that passage, Mr Murray gave this evidence:

129. [865]

     For the same reasons that I have set out in relation to Mr Murray’s email to Ms Carnabuci of 5 July 2019, no other defences are available to Mr Murray.

130. [866]

     There can be no question of qualified privilege. The ABC had no interest in receiving an email from Mr Murray in these terms. As I have said, the email from Ms Gilchrist to which Mr Murray was replying, in terms, suggested that he deal with Mr Morrow about any allegation that he thought he could substantiate.

131. [867]

     There can also be no question of an honest opinion defence. Nothing in this email relates to a matter of public interest.

132. [868]

     For those reasons, my conclusions in relation to the six allegedly defamatory publications are:

Damages

1. [869]

   By reason of s 35 of the Act, the maximum amount of damages for non-economic loss that may be awarded in this case is $432,500. [97]

2. [870]

   The cap does not require the Court to engage in a scaling exercise. Rather it is a “cut off” amount. [98]

3. [871]

   If a plaintiff establishes matters of aggravation, damages for economic loss can be awarded in excess of the cap of $432,500.

4. [872]

   If a plaintiff proves that the publication of a defamatory matter was actuated by malice, a defence of qualified privilege under s 30(1) of the Act and the common law is defeated. [99] However, as I have found that Mr Murray has not established the defence of qualified privilege in relation to any of the impugned publications, this question does not arise.

5. [873]

   The making of a defamatory publication actuated by malice is also relevant to the question of whether aggravated damages should be awarded. Accordingly, I will consider the question of malice before turning to the question of aggravated damages.

6. [874]

   As I have found that Mr Murray has established a defence of justification in relation to the first two publications, his email of 21 May 2019 to Mr Anderson and his conversation with Ms Pincus on 11 June 2019, the question of malice does not arise in relation to anything said in those publications. Nonetheless, I will deal with Ms Chrysanthou’s submissions about those publications.

7. [875]

   Malice is an improper motive that actuates the publication: that is, a motive which is foreign to the occasion which gives rise to the occasion of privilege. To establish malice, it is necessary to demonstrate more than mere ill-will, spite or prejudice. A lack of a positive belief in the truth of the defamatory matter does not necessarily bespeak malice. But a positive belief in the falsity of defamatory material is generally conclusive proof of malice. [100]

8. [876]

   If established, malice is relevant to the question of whether aggravated damages should be awarded.

9. [877]

   Mr Katekar submitted that Mr Murray’s motivation in making the impugned statements was to “address the dispute at hand”.

10. [878]

    Mr Katekar pointed to evidence from Mr Murray that his explanation for making the publications in question was to:

11. [879]

    However, I am satisfied that Mr Murray’s motivations went beyond these anodyne matters.

12. [880]

    In Mr Murray’s email to Mr Anderson of 21 May 2019, he concluded by saying:

13. [881]

    That shows, in my opinion, that part of Mr Murray’s motivation in writing to Mr Anderson was to sway Mr Anderson, and thus the ABC (Mr Anderson was then the Acting Managing Director) not to proceed with any further series of The Checkout. This was going further than seeking documents, conveying Cordell Jigsaw’s position or seeking to protect Cordell Jigsaw’s legitimate interests.

14. [882]

    However, I have found that Mr Murray has established the defence of justification in relation to this email, and Mr Morrow did not allege that what was conveyed by imputation in this email included that the ABC should not proceed with any further series of The Checkout with him. That appears to limit the relevance of this material to the question of aggravated damages.

15. [883]

    On 11 June 2019, Mr Murray described Mr Morrow to Ms Pincus as “the new millennials’ Steve Vizard”.

16. [884]

    In that regard, Mr Murray gave this evidence:

17. [885]

    Although Mr Murray denied he was deliberately seeking to harm Mr Morrow’s reputation in this passage, and despite Mr Murray’s references to Mr Morrow being an amusing dinner companion, Mr Murray agreed that he had told Ms Pincus that Mr Morrow was not someone “you want to be in business with”. This was at a time when, as Mr Murray knew, Mr Morrow was negotiating with the ABC about a further series of The Checkout. In that evidence, Mr Murray, in effect, agreed that his motivation was to deter the ABC from doing business with Mr Morrow.

18. [886]

    However, once again, as I have found that Mr Murray has established the defence of justification in relation to this communication, and as Mr Morrow has not alleged that the defamatory material conveyed a meaning that Mr Morrow was not a person the ABC should be in business with, I again find that the relevance of this material is limited to the question of aggravated damages, which I will address shortly.

19. [887]

    In relation to Mr Murray’s 12 June 2019 email sent to Ms Pincus the day following his conversation with her, Mr Murray agreed in cross-examination that his object was to “stonewall” Mr Morrow’s negotiations with the ABC. Mr Murray also included in that email a statement, that he must have known to be untrue, that there was a “dispute concerning the ownership of the underlying IP for The Checkout”.

20. [888]

    The inclusion in a defamatory publication of a statement that the publisher knows to be untrue is a matter capable of bespeaking malice and thus being a matter relevant to aggravated damages. I have found that Mr Murray has not established the defence of justification in relation to this email as, as well as wrongly asserting that the transfer of the shares in the Joint Venture Company was “without payment” Mr Murray made this statement about the ownership of the “underlying IP” to which I have referred.

21. [889]

    As to the emails Mr Murray sent to Ms Carnabuci on 5 July 2019 and to Ms Gilchrist on 12 August 2019, I think Ms Chrysanthou was correct to submit that Mr Morrow’s obvious motivation, as revealed by the words he used, was to shame Mr Morrow in the eyes of the ABC.

22. [890]

    Both emails contained an allegation that Mr Morrow had behaved fraudulently, and the 12 August 2019 email opened with the words:

23. [891]

    In that passage, Mr Murray was openly seeking to dissuade the ABC from dealing with Mr Morrow.

24. [892]

    In this respect, Mr Murray’s motivations went far beyond those for which Mr Katekar contended and were foreign to the occasion and calculated and intended to harm Mr Morrow and Giant Dwarf.

25. [893]

    Mr Murray agreed that he had spoken to “many, many” people about the allegations the subject of his communications to the ABC.

26. [894]

    Thus, he gave this evidence in cross-examination:

27. [895]

    Ms Chrysanthou did not explore with Mr Murray the extent, if any, to which he repeated to others the allegation of fraud made in his emails of 5 July 2019 and 12 August 2019.

28. [896]

    Mr Murray agreed that he had, in effect, engaged in a campaign. Thus he gave this evidence in response to Ms Chrysanthou’s suggestion that his aim, in writing to the ABC, was to promote his proposed program Reputation Rehab:

29. [897]

    The following persons gave evidence of Mr Morrow’s prior good reputation:

30. [898]

    Mr Katekar did not cross-examine any of these witnesses. Their evidence is unchallenged, and I accept that evidence.

31. [899]

    Mr Murray pleaded that, nonetheless, Mr Morrow had a bad reputation within the ABC being that of:

32. [900]

    I shall deal, immediately, with the last of these allegations, being that Mr Morrow had had a confrontation with Mr Anderson in the public foyer in the ABC offices at Ultimo on 31 July 2018.

33. [901]

    The maintenance by Mr Murray of this allegation was a low point in the proceedings.

34. [902]

    Mr Murray’s contention that there had been such an incident arose from a text message exchange between Ms Mason-Campbell and Mr Anderson on 31 July 2018 as follows:

35. [903]

    Mr Morrow denied that there had been any such altercation. He said that Mr Anderson:

36. [904]

    On 1 April 2021, in the course of the dispute concerning the subpoenas served on the ABC to which I have referred in earlier judgments, the solicitor for the ABC, Ms Katherine Haddock said:

37. [905]

    In closing submissions Mr Katekar sought to make something of the fact that Ms Haddock had said that the ABC did not consider there to have been a dispute or interaction “of any significance” on the day in question.

38. [906]

    But Ms Haddock’s letter makes clear, in my opinion, that from the ABC’s perspective, nothing happened on 31 July 2018 that would warrant any conclusion being made as to Mr Morrow’s reputation within the ABC. Mr Anderson was not called to give an account of what is said to have occurred.

39. [907]

    Otherwise, the matters relied upon by Mr Murray to establish that Mr Morrow had a bad reputation within the ABC comprised, first, a number of emails which, as I have emphasised above, I admitted only as evidence of the fact of their existence in the ABC’s records, and not as evidence of the truth of their contents.

40. [908]

    Second, Mr Murray also relied on his own understanding, the basis of which Mr Murray did not explain, “that Morrow has a bad reputation within the ABC”, and evidence of a former employee of Giant Dwarf. Third, Mr Murray relied on the evidence of Ms Kirsten Drysdale, who has worked with Mr Morrow and who gave evidence of a particular altercation she had with Mr Morrow in February 2018 and who asserted that Mr Morrow had “a reputation in the industry as someone who is combative, aggressive, intimidating, manipulative, controlling and very difficult to work with”.

41. [909]

    I do not find these general assertions a sufficient basis to draw any conclusion as to Mr Morrow’s reputation within the ABC.

42. [910]

    It is common ground that damage to reputation by a defamatory publication is presumed. [101]

43. [911]

    The following of Mr Morrow’s reputation witnesses gave evidence of having become aware of the allegations made by Mr Murray: Mr Jones, Mr McEvoy, Ms Main, Ms Agzarian, Mr Brody, Dr Swan and Ms Annetts.

44. [912]

    It is true, as Mr Katekar submitted, that there was no evidence of actual damage to Mr Morrow’s reputation among those who received the defamatory communications, being Mr Anderson, Mr Carrington, Ms Pincus, Ms Chapman, Ms Carnabuci and Ms Gilchrist.

45. [913]

    It is also true that the communications were made to representatives of the ABC who had already been dealing with Mr Morrow, and who may well have formed their own view about Mr Morrow’s reputation before receipt of the publications. It must have been obvious to those ABC representatives, from the words Mr Murray used, that Mr Murray felt deeply aggrieved about what he understood Mr Morrow had done and, particularly, about Mr Morrow’s negotiations with the ABC leading up to the execution of the Share Sale Agreement. The ABC knew Mr Morrow did not want Mr Murray to know about those discussions, as Mr Morrow’s statement to Ms Pincus on 28 March 2019 made clear. Accordingly, it is likely that the targeted recipients of Mr Murray’s communications took his statements with a grain of salt. But as neither side called any of the ABC recipients as witnesses, I am not able to reach any final conclusions about these matters nor, more generally, about what the recipients made of Mr Murray’s communications.

46. [914]

    A further factor is that Mr Morrow did not know of Mr Murray’s communications until after discovery was given in the Commercial Proceedings.

47. [915]

    Obviously, any rumours as to what Mr Murray had said about Mr Morrow had not reached Mr Morrow’s ears until then. It is not clear from Mr Morrow’s damage to reputation witnesses whether they heard anything about what Mr Murray had said to the ABC before Mr Morrow learned of those matters.

48. [916]

    Those factors tend to suggest, although by no means decisively, that knowledge within the television industry of what Mr Murray said to the ABC about Mr Morrow has to a large extent been generated by these proceedings, as well as by the publications themselves.

49. [917]

    Mr Morrow has not made another television program for the ABC since the matters complained of were published, although he still appears on ABC radio. However, as I discuss below in relation to Mr Morrow’s claim for damages for economic loss, Mr Morrow’s behaviour concerning The Help Desk negotiations must be considered in this context.

50. [918]

    Finally, to the extent that Mr Morrow’s reputation has been damaged by Mr Murray’s statements that Mr Morrow engaged in misleading or deceptive conduct and acted in breach of his duty as a director of the Joint Venture Company, I have found those statements to have been justified.

51. [919]

    Mr Morrow gave evidence of his hurt to his feelings arising from the matters complained of. I accept Ms Chrysanthou’s submission that although Mr Morrow was stoic in the witness box, he was plainly upset giving his oral evidence when asked about his reaction to the matters complained of. I do not accept Mr Katekar’s submission that Mr Morrow appeared “wooden” when giving evidence about his reaction to Mr Murray’s publications.

52. [920]

    In cross-examination, Mr Katekar put to Mr Morrow that he did not feel “any sense of upset” arising from the communications.

53. [921]

    Thus, this exchange occurred:

54. [922]

    Mr Morrow was clearly offended by being asked those questions.

55. [923]

    His wife, Dr Pryor, gave unchallenged evidence in her affidavit that Mr Morrow was still upset.

56. [924]

    Further, extensive evidence was given by a number of Mr Morrow’s reputation witnesses as to how it appeared to them that Mr Morrow had been hurt by what Mr Murray had said of him. This included Ms Rickard, Dr Swan, Ms Moody, Mr Brody, Mr Edwards, Mr Smark, Ms Main, Ms Agzarian, Mr McEvoy, Ms Annetts and Mr Asher.

57. [925]

    Mr Katekar did not seek to cross-examine any of those witnesses.

58. [926]

    However, Mr Morrow’s evidence as to his hurt feelings must be seen in the context of my findings that he did engage in misleading or deceptive conduct, and did act in breach of his duties as a director of the Joint Venture Company. Thus, to the extent that his feelings have been hurt by Mr Murray’s statements to that effect, I have found those statements to be justified.

59. [927]

    An award of aggravated damages may be made where a respondent’s conduct towards a plaintiff is found to have been improper, unjustifiable or lacking in bona fides. [102]

60. [928]

    The following factors are capable of relevance to an award of aggravated damages:

61. [929]

    As I have said, if the Court is satisfied that an award of aggravated damages should be made, the statutory cap is not applicable. [104]

62. [930]

    Circumstances of aggravation can be found in a respondent’s conduct from the date of publication up to the date of judgment. The manner in which a respondent conducts the defamation litigation can provide a basis for an award of aggravated damages. [105]

63. [931]

    Once again, when considering the extent to which the damages recoverable by Mr Morrow should include aggravated damages, it must be borne in mind that I have found that Mr Murray has substantiated the allegations he made to the effect that Mr Morrow engaged in misleading or deceptive conduct and acted in breach of his duties as a director of the Joint Venture Company.

64. [932]

    This goes to the extent that damages have been mitigated, rather than aggravated. Mitigation of damages will arise where there has been partial success in the defence of justification (often misleadingly called “partial justification”). [106]

65. [933]

    To the extent that I have found that Mr Murray was actuated by malice in relation to, particularly, the emails to Ms Carnabuci of 5 July 2019 and to Ms Gilchrist of 12 August 2019, those matters are relevant to the extent to which aggravated damages should be awarded.

66. [934]

    Ms Chrysanthou relied on the following further matters of aggravation.

67. [935]

    Section 38(1)(a) of the Act provides that evidence of an apology is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory material, the defendant has made an apology to the plaintiff.

68. [936]

    Conversely, a failure to make an apology is capable of relevance to the question of aggravated damages. [107]

69. [937]

    In closing submissions Mr Katekar said:

70. [938]

    I do not agree, particularly in relation to the statements made by Mr Murray in his emails to Ms Carnabuci of 5 July 2019 and to Ms Gilchrist of 12 August 2019 to the effect that Mr Morrow had behaved fraudulently.

71. [939]

    I find that an aggravating factor is Mr Murray’s maintenance of his defence in relation to the allegations of fraud made in those two emails.

72. [940]

    Mr Murray did not allege fraud against Mr Morrow in these proceedings and has not been able to justify the allegations of fraud made in these two emails.

73. [941]

    As I have already said, the matter was compounded by Mr Katekar’s closing submission “we do say that he fraudulently made a representation to us”. [108] The submission was immediately withdrawn but only because of my response to it.

74. [942]

    As I have said, Mr Murray agreed that he had, in effect, engaged in a campaign against Mr Morrow. That is a matter relevant to an award of aggravated damages.

75. [943]

    I have set out the slender basis on which Mr Murray contended that Mr Morrow had a bad reputation within the ABC.

76. [944]

    I find this also to be a matter relevant to aggravation.

77. [945]

    I have set out above, Mr Katekar’s cross-examination of Mr Morrow was to the effect that he did not, in truth, feel upset about Mr Murray’s communications with the ABC.

78. [946]

    This matter was put to Mr Morrow despite the unchallenged evidence of many witnesses including Dr Pryor, Mr Morrow’s wife, testifying to Mr Morrow’s upset.

79. [947]

    Mr Murray admitted that he had spoken to a journalist from the Sydney Morning Herald and told them that Mr Morrow had served 26 affidavits in the proceedings, including some of the names of these witnesses.

80. [948]

    It was, obviously, unwise and inappropriate for Mr Murray to have spoken to the media about the evidence that Mr Morrow had adduced in these proceedings. That is a matter capable of relevance to aggravation of damages although, it should be said that the resultant publicity was, if anything, more favourable to Mr Morrow.

81. [949]

    Along with the evidence regarding Mr Anderson’s alleged fight with Mr Morrow in the foyer of the ABC on 31 July 2018, this was another low point in the proceedings.

82. [950]

    Ms Agzarian is one of Mr Morrow’s reputation witnesses. Ultimately, as I have said, Ms Agzarian was not required for cross-examination. Ms Chrysanthou cross-examined Mr Murray about a statement Mr Murray made to Ms Agzarian, shortly before the hearing, in the corridors of the ABC to the effect “see you in court next week”.

83. [951]

    Ms Chrysanthou submitted:

84. [952]

    However, Ms Agzarian was not called to give an account of how she “took” Mr Murray’s statement and, on Mr Murray’s account of it, he had not spoken to Ms Agzarian in an intimidating manner.

85. [953]

    The matter should not have been raised in these proceedings at all.

86. [954]

    If a party is defamed in relation to their business or professional reputation, they are also entitled to recover damages for general loss of business or custom flowing from the publication of the defamatory material. [109]

87. [955]

    A party is also entitled to plead and prove pecuniary loss resulting from the publication of defamatory material. [110]

88. [956]

    Mr Morrow’s claim for economic loss is based on his evidence that he has not been engaged to make a television program for broadcast by the ABC since 17 April 2018, when the last episode of series six of The Checkout was aired. Mr Morrow has said that this was the longest period in his career that he has not been engaged by the ABC to make a television program.

89. [957]

    I am not satisfied that Mr Morrow has established that Mr Murray’s publications to the ABC are the cause of the situation in which Mr Morrow now finds himself.

90. [958]

    Ms Carnabuci’s email of 5 August 2019 made clear that the reason that the ABC decided not to commission a further series of The Checkout was due to Mr Morrow’s and Mr Murray’s “inability to resolve your dispute by our deadline”. Mr Morrow caused that dispute by engaging in misleading or deceptive conduct and acting in breach of his duty as a director of the Joint Venture Company which has led, in the circumstances I have set out above, to my conclusion that Mr Murray is now entitled to an order under s 237 of the Australian Consumer Law rescinding the Share Sale Agreement.

91. [959]

    Any economic loss that Mr Morrow or Giant Dwarf have suffered is caused by those circumstances, and not by Mr Murray’s publications.

92. [960]

    Further, and leaving aside the rescission of the Share Sale Agreement, I have concluded that cll 5.3 and 9.7 of the Share Sale Agreement did not require Cordell Jigsaw to execute a Quit Claim in the form required by the ABC. Accordingly, Cordell Jigsaw’s refusal to execute the Quit Claim did not cause Mr Morrow or Giant Dwarf loss in respect of which they can look to Cordell Jigsaw for compensation.

93. [961]

    The evidence that I have set out above shows that, despite Ms Carnabuci’s email of 5 July 2019, the ABC was prepared to entertain the possibility of Mr Morrow producing a new show, The Help Desk.

94. [962]

    At one point in his cross-examination, Mr Morrow said:

95. [963]

    Mr Morrow has not made out any such case. There is no evidence to suggest that anything Mr Murray said led Mr Morrow to reach any such conclusion or a change in the ABC’s position.

96. [964]

    The material that I set out above shows that the ABC was interested in having Mr Morrow produce The Help Desk and that the reason that that project did not proceed was Mr Morrow’s own conduct, particularly his Tweet of 24 November 2019; and perhaps also his 22 November 2019 accusation to Mr Carrington that “nothing in that first paragraph seems remotely true”. [111]

97. [965]

    That led to the ABC, under the hand of Mr Carrington, writing to Mr Morrow on 5 December 2019 terminating “discussions with you and Giant Dwarf for The Help Desk” because of “your decision to publish our confidential editorial communications”. Mr Carrington said this publication showed a “lack of good faith in your dealings with our editorial team” and that Mr Morrow and the ABC “are not aligned in the creative direction for The Help Desk”. [112] This was measured, but steely, language. It bespoke the ABC’s serious unhappiness with Mr Morrow’s decision, yet again, [113] to take into the public sphere his dissatisfaction with the ABC’s conduct; exacerbated in this case by Mr Morrow’s public revelation of his confidential communications with the ABC.

98. [966]

    The matter was made even clearer by the ABC’s published statement, later on 5 December 2019, that it had ended discussions with Giant Dwarf:

99. [967]

    Mr Morrow has not adduced evidence of any circumstances following these events which might cast light on why it is that the ABC has not invited him to produce any further television programs.

100. [968]

     Such evidence as is before me points firmly to the conclusion that it is a matter that Mr Morrow has brought upon himself and is not a matter that has anything to do with Mr Murray’s defamatory publications.

101. [969]

     I now turn to the difficult question of the quantum of the damages to be awarded to Mr Morrow.

102. [970]

     For the reasons I have explained, there can be no damages for economic loss.

103. [971]

     As to general damages, I must engage in what is necessarily an impressionist exercise which is not capable of precise intellectual analysis.

104. [972]

     The sting of the libel in this case is Mr Murray’s accusations, in his emails to Ms Carnabuci of 5 July 2019 and to Ms Gilchrist of 12 August 2019, that Mr Morrow had behaved fraudulently. This is obviously a serious allegation. It was, however, made to a targeted audience being the two individuals at the ABC to whom the emails were sent, and those within the ABC with whom Mr Murray must have thought would hear of the allegations.

105. [973]

     Despite the gravity of the allegations, they do not seem to have affected the ABC’s inclination to deal with Mr Morrow. Things fell apart between the ABC and Mr Morrow at the end of 2019 for different reasons; being reasons for which Mr Morrow can blame no one but himself.

106. [974]

     Mr Murray repeated the allegations to “many, many” people although, as I have set out, the evidence does not reveal the extent to which Mr Murray passed on allegations that I found to be justified (misleading or deceptive conduct and breach of director’s duty) as opposed to allegations which I have found not to be justified (fraud).

107. [975]

     And all this must be seen in the context where I have found that Mr Murray was justified in making the obviously defamatory assertions that Mr Morrow had engaged in misleading or deceptive conduct and acted in breach of his duty to the Joint Venture Company.

108. [976]

     Further, there are circumstances of aggravation that I have set out.

109. [977]

     During argument, my attention was drawn to other cases in which “comparable awards” were said to have been given. I attach a schedule which sets out a summary of those other cases. [977] Comparable awards (198102, pdf)

110. [978]

     Those cases, obviously, deal with factual circumstances very different from those before me. They, however, do suggest that the award for damages in this case must be very much less than in most of those cases.

111. [979]

     The conclusion I have come to is that, in all the circumstances I have described, the appropriate award of damages for the defamatory statements made by Mr Murray for which there is no justification is $30,000, to which I add $5,000 on account of aggravation.

112. [980]

     It was common ground that Mr Morrow should be awarded interest on those damages.

113. [981]

     There was, however, a dispute in the written submissions as to the rate of interest. I will hear further submissions about that matter following publication of these reasons.

114. [982]

     Ms Chrysanthou submitted that I should also issue an injunction restraining Mr Murray and Cordell Jigsaw from further publishing any of the imputations found to have been conveyed.

115. [983]

     At the moment, I am unable to see that there is any real risk that Mr Murray will repeat the imputations that I have found to be defamatory of Mr Morrow and not to be justified. Accordingly, I am not able to see why any injunctive relief should be granted.

116. [984]

     However, I will invite further submissions about that matter following delivery of judgment.

Injurious falsehood

1. [985]

   It is common ground that the elements of the tort of injurious falsehood are that:

2. [986]

   On behalf of Mr Morrow and Giant Dwarf, this aspect of the case was developed by reference to a schedule entitled “Table of Falsehoods”. That schedule listed 15 allegedly false representations, all of which are said to be contained in email communications sent by Mr Murray to various officers of the ABC, including in the emails in which the allegedly defamatory statements were made.

3. [987]

   The parties have cooperated to produce an expanded version of that schedule to include Mr Murray’s and Cordell Jigsaw’s response to Mr Morrow’s and Giant Dwarf’s contentions.

4. [988]

   I will deal with each of the alleged “falsehoods” but record at this stage that the short answer to Mr Morrow’s and Giant Dwarf’s case concerning injurious falsehood is that, just as Mr Morrow has failed to show that he has suffered any economic loss as a result of Mr Murray’s allegedly defamatory communications to the ABC, for the same reasons, he has failed to establish any loss by him or Giant Dwarf as a result of the allegedly false statements subject of his injurious falsehood claim.

5. [989]

   Further, in relation to some of the falsehoods alleged, Mr Morrow and Giant and Dwarf have not established that they were actuated by malice.

6. [990]

   I will deal with each of the alleged falsehoods in turn.

7. [991]

   The first alleged false representation arises from the statement made by Mr Murray in his 21 May 2019 email to Mr Anderson that:

8. [992]

   Mr Morrow alleges that the following false representation arises from this passage:

9. [993]

   That is not how I read the relevant passage of Mr Murray’s email to Mr Anderson. Rather, I read Mr Murray as saying that many key members of The Checkout team would be reluctant to work on a new season of The Checkout were Mr Morrow to be involved; and were Mr Murray to not also be involved as a “circuit breaker”, whatever that may mean.

10. [994]

    Mr Murray has not adduced evidence from any “key member of The Checkout team” to prove that they were reluctant “to work on the series without a circuit breaker protecting them from” Mr Morrow.

11. [995]

    On behalf of Mr Morrow, reference was made to the evidence of Ms Drysdale, called in Mr Murray’s case, that she was “excited about the prospect of returning to work on The Checkout”. However, Ms Drysdale qualified that evidence by saying that she would only be so excited “if the way to do that was through Crikey because it meant I would not have to work directly with Julian”.

12. [996]

    As for Mr Murray’s reference to Mr Reucassel having asked him in the “recent past” to “take over from Julian” I have already referred to Mr Murray’s evidence that he agreed that he was “gilding the lily” about this.

13. [997]

    Mr Murray was referring to a conversation that he said he had with Mr Reucassel during the production of series five of The Checkout in April or May 2017. Mr Murray said that Mr Reucassel told him:

14. [998]

    In cross-examination, Mr Murray adhered to his evidence that Mr Reucassel had said something to this effect. Mr Morrow did not call Mr Reucassel to contradict that evidence, notwithstanding the fact that, as I have said, Mr Reucassel is a director and shareholder of Giant Dwarf.

15. [999]

    I find that what Mr Reucassel is reported to have said to Mr Murray provides a basis for what Mr Murray said in his email of 21 May 2019 to Mr Anderson.

16. [1000]

    On behalf of Mr Morrow, reference was made to indirect evidence that other named persons, evidently associated with The Checkout in an earlier series, would have been prepared to participate in a seventh series.

17. [1001]

    To this limited extent, Mr Morrow has demonstrated falsity in relation to what Mr Murray said to Mr Anderson in this email.

18. [1002]

    However, I see no basis to conclude that Mr Murray was actuated by malice in making this statement. Indeed, Mr Murray’s evidence as to what Mr Reucassel said to him provides some basis for it.

19. [1003]

    This allegedly false representation arises from the same passage in Mr Murray’s 21 May 2019 email to Mr Anderson that is the subject of the first allegedly false representation.

20. [1004]

    The alleged representation is:

21. [1005]

    As I have said, Mr Murray accepted that he was “gilding the lily” when he said the statements by Mr Reucassel upon which Mr Murray relied were made “in the recent past”. They were in fact made in April or May 2017; not the “recent past”.

22. [1006]

    However, I see no reason to doubt that Mr Reucassel did make this statement to Mr Murray.

23. [1007]

    Thus, although it was untrue to the extent if referred to “the recent past”, I do not find it was made maliciously.

24. [1008]

    This representation is:

25. [1009]

    It is said to arise from a number of Mr Murray’s allegedly defamatory emails to the ABC.

26. [1010]

    I have found that, in substance, this is what happened. Thus, the representation was not false.

27. [1011]

    This representation, said to arise from a number of the allegedly defamatory emails, is:

28. [1012]

    Again, in effect, I have found that Mr Morrow and Giant Dwarf did act unlawfully and that Mr Morrow acted in breach of his duties as director of the Joint Venture Company and engaged in misleading or deceptive conduct. Thus, this representation was not false.

29. [1013]

    This representation, said to arise from a number of the allegedly defamatory emails, is:

30. [1014]

    Again, this is in substance what I have found. The representation was not false.

31. [1015]

    This representation is:

32. [1016]

    This alleged representation is based on the statement in Mr Murray’s 12 June 2019 email to Ms Pincus and Ms Chapman that:

33. [1017]

    I have found that it was not correct of Mr Murray to allege that there was a “dispute” concerning the ownership of the intellectual property underlying The Checkout. Mr Murray’s solicitor, Mr Fraser confirmed, several days after this email, that this matter was not disputed.

34. [1018]

    Mr Murray must have known that this statement was not correct. It was in my opinion made with malice.

35. [1019]

    This representation is:

36. [1020]

    This allegedly false representation is also based on the passage from Mr Murray’s email to Ms Pincus of 12 June 2019.

37. [1021]

    Mr Murray must have known the statement was not true. I find it was made maliciously.

38. [1022]

    This representation is:

39. [1023]

    This representation arises from Mr Murray’s statements to that effect in his emails of 12 June 2019 to Ms Pincus and 20 June 2019 to Mr Carrington.

40. [1024]

    As I set out earlier, it was not true that Cordell Jigsaw sold its shares in the Joint Venture Company to Giant Dwarf “without payment” and to this extent this representation is not correct.

41. [1025]

    However, I have found that, in effect, Mr Morrow and Giant Dwarf did deceive Cordell Jigsaw into selling its shares in the Joint Venture Company. This is the substance of the misrepresentation. I cannot conclude that the addition of the incorrect statement that the transfer was “without payment” bespeaks malice on Mr Murray’s part.

42. [1026]

    This representation is:

43. [1027]

    This alleged representation is based on the statement made by Mr Murray in his 12 June 2019 email to Ms Pincus that:

44. [1028]

    Mr Murray did not say in this email that Giant Dwarf had made any representation about the likelihood of The Checkout returning.

45. [1029]

    In cross-examination, Mr Murray said that “the impression that we had” from what Mr Morrow had said was that there was “no chance” of The Checkout returning but that Mr Morrow had not said “in those words” that there was no such chance.

46. [1030]

    Thus, what Mr Murray said was, literally, not true.

47. [1031]

    However, I see no reason to conclude that he made this statement maliciously.

48. [1032]

    This representation is:

49. [1033]

    This is based on the statements made by Mr Murray in his 12 June 2019 to Ms Pincus to which I have referred. I reach the same conclusion here as I have in relation to the sixth and seventh allegedly false representations.

50. [1034]

    This representation is:

51. [1035]

    On behalf of Mr Morrow and Giant Dwarf, four of Mr Murray’s emails were identified as containing this representation.

52. [1036]

    In the sixth paragraph of Mr Murray’s 12 August 2019 email to Ms Gilchrist, Mr Murray said:

53. [1037]

    Mr Murray then set out the text of cl 4.6 of the Share Sale Agreement.

54. [1038]

    Mr Murray continued:

55. [1039]

    Thus, Mr Murray’s statement was qualified by reference to Mr Morrow’s purported termination of the Share Sale Agreement. His point was, evidently, that as Mr Morrow had purported to terminate the Share Sale Agreement, he was no longer entitled to rely on cl 4.6 of that document. But it would not follow from that that Mr Morrow had “no right to pitch a replacement consumer affairs show”.

56. [1040]

    The statement was thus false to this extent. But I cannot conclude it was made maliciously. More likely, it bespoke a misunderstanding on Mr Murray’s part of the consequences to Giant Dwarf of its purported termination of the Share Sale Agreement.

57. [1041]

    This alleged representation is:

58. [1042]

    Mr Morrow and Giant Dwarf identified three of Mr Murray’s emails as containing this representation.

59. [1043]

    Mr Morrow and Giant Dwarf appear to be relying upon the statement in Mr Murray’s 12 August 2019 email to Ms Gilchrist:

60. [1044]

    However, when read in the context of the whole email, it is clear that Mr Murray is referring to the possibility of subpoenas being served on the ABC were he to commence proceedings against Mr Morrow, Giant Dwarf and the Joint Venture Company, and of the ABC thereby incurring expense.

61. [1045]

    Mr Murray’s statement was thus not only true, but it was prescient. As I have recorded in earlier judgments, the ABC was served with a large number of subpoenas and has spent a very large amount of money responding to them.

62. [1046]

    This representation is that:

63. [1047]

    Again, Mr Morrow and Giant Dwarf refer to a number of Mr Murray’s emails as allegedly containing this representation.

64. [1048]

    The alleged representations appears to derive from a passage in Mr Murray’s email to Ms Pincus of 14 June 2019 where he stated:

65. [1049]

    Mr Murray was here recording what he said Cordell Jigsaw had been told in or since July 2018 by ABC representatives.

66. [1050]

    My attention has not been directed to any evidence to show that this was not correct.

67. [1051]

    Looking at the matter more widely, by Ms Carnabuci’s email of 4 July 2019, the ABC did in effect “cancel” The Checkout, rather than continue it being “on hiatus”. In substance, I have found that Mr Morrow’s conduct did cause this to happen.

68. [1052]

    This representation is:

69. [1053]

    This alleged representation relates to the statement made by Mr Murray in his 20 June 2019 email to Mr Carrington that:

70. [1054]

    This was a reference to Mr Reucassel’s statement to Mr Murray that he should “go for it” so far as concerns the Quit Claim.

71. [1055]

    As I have said above, I am satisfied that, to this extent, Mr Reucassel did “support” Cordell Jigsaw’s position.

72. [1056]

    This representation is:

73. [1057]

    This representation arises from Mr Murray’s 5 July 2019 email to Ms Carnabuci and his 12 August 2019 email to Ms Gilchrist.

74. [1058]

    For the reasons I have discussed earlier, this representation was false.

Conclusion concerning injurious falsehood

1. [1059]

   To the limited extent that I have set out in the preceding paragraphs, I find that Mr Morrow’s and Giant Dwarf’s case concerning injurious falsehood has been made out.

2. [1060]

   However, as I said at the outset of my discussion on that subject, I am not satisfied that Mr Morrow or Giant Dwarf have suffered any loss as a result of those injurious falsehoods.

The Joint Venture Company’s and Giant Dwarf’s claim for damages for breach of the Share Sale Agreement

1. [1061]

   The Joint Venture Company and Giant Dwarf claim damages from Cordell Jigsaw for alleged breaches by Cordell Jigsaw of the Share Sale Agreement.

2. [1062]

   The breach alleged is Cordell Jigsaw’s failure to execute the Quit Claim.

3. [1063]

   The Joint Venture Company and Giant Dwarf allege that as a result of this failure, the ABC declined to commission series seven of The Checkout and that the Joint Venture Company and Giant Dwarf have suffered a loss which is said to be a function of:

4. [1064]

   The amount claimed by the Joint Venture Company is $1,218,660. The amount claimed by Giant Dwarf is $1,812,640.

5. [1065]

   The manner in which those figures were calculated was set out in detail in closing written submissions.

6. [1066]

   It is not necessary for me to deal with the manner in which those damages claims are calculated because there are two fundamental reasons why neither the Joint Venture Company nor Giant Dwarf is entitled to recover such damages.

7. [1067]

   The first is that I have found, by reason of Giant Dwarf’s misleading or deceptive conduct, that Cordell Jigsaw is entitled to an order rescinding the Share Sale Agreement. Accordingly, no question of any breach by Cordell Jigsaw of the Share Sale Agreement can arise for consideration.

8. [1068]

   Second, and in any event, I have found that by declining to execute the Quit Claim, Cordell Jigsaw did not act in breach of any provision of the Share Sale Agreement.

9. [1069]

   I have found that had Mr Morrow caused Giant Dwarf to fail to comply with the implied term of the Joint Venture Agreement. I have also found that, by his silence, Mr Morrow caused Giant Dwarf to engage in misleading or deceptive conduct. And that, but for those matters, Mr Murray would not have caused Cordell Jigsaw to execute the Share Sale Agreement.

10. [1070]

    It may well be that, if Mr Morrow had not sought to negotiate a sale by Cordell Jigsaw to Giant Dwarf of its shares in the Joint Venture Company, had not caused Giant Dwarf to act in breach of the implied term of the Joint Venture Agreement, had not acted in breach of his duties as a director to the Joint Venture Company and not engaged in the misleading or deceptive conduct, Mr Morrow could have caused Giant Dwarf to proceed to produce a show called Are You Being Served; provided, of course, that it was not in a format that was similar or equivalent to The Checkout. And it may well be that Giant Dwarf may have profited from that venture.

11. [1071]

    But these are not the “facts as they actually existed”. It is “often of no avail” for a company director who has disposed of company property by acting in breach of fiduciary duty to show that “the property could have been taken from the company, by some means other than that actually employed, without any breach of fiduciary duty”. [116]

12. [1072]

    So too here. It is not to the point that Mr Morrow may have been able to produce a show called Are You Being Served without engaging in the conduct I have found. That is not what happened. The reason Giant Dwarf has suffered any such loss is its own conduct in not complying with the implied term of the Joint Venture Agreement and its director engaging in the misleading or deceptive conduct that I have found. Any such loss has not been caused by any breach by Cordell Jigsaw of the Share Sale Agreement.

Remedies claim by Cordell Jigsaw

1. [1073]

   I have found that Cordell Jigsaw is entitled to an order under s 237 of the Australian Consumer Law rescinding the Share Sale Agreement.

2. [1074]

   Cordell Jigsaw also seeks damages on the basis that had Giant Dwarf disclosed to Cordell Jigsaw the opportunity that I have found to have arisen in March 2019 to produce a further series of The Checkout, or an equivalent or similar consumer affairs program, and thus not acted in breach of the implied term of the Joint Venture Agreement and in an manner that was misleading or deceptive:

3. [1075]

   I am not persuaded that matters would have proceeded this way had Mr Morrow, and thus Giant Dwarf, disclosed to Mr Murray and Cordell Jigsaw the opportunity that I have found arose in March 2019 concerning a further series of The Checkout.

4. [1076]

   I see no reason to doubt Mr Morrow’s evidence that he no longer wished to work with Mr Murray in relation to The Checkout and that, had matters so transpired, Mr Morrow would have exercised what he described as being his right of “veto” over the Joint Venture Company engaging in any further production of The Checkout.

5. [1077]

   Had Mr Morrow told Mr Murray about the ABC’s interest in producing a further series of The Checkout, Mr Murray may well have declined to cause Cordell Jigsaw to sell its shares in the Joint Venture Company to Giant Dwarf. In that event, Mr Morrow, and thus Giant Dwarf, would have refused to engage any further television production activities with Mr Murray and Cordell Jigsaw concerning The Checkout.

6. [1078]

   For those reasons, I am not satisfied that Cordell Jigsaw has suffered the damage for which it contends.

7. [1079]

   As I propose to make an order rescinding the Share Sale Agreement there will be consequences so far as concerns the PDV Offsets already received by the Joint Venture Company and those receivable in the future.

8. [1080]

   I invite submissions as to the orders that should be made in regard to these matters.

Conclusion

1. [1081]

   I will now invite submissions from the parties as to whether there are any further matters to be determined in relation to these proceedings and as to the orders that should be made to give effect to my reasons.

2. [1082]

   I will also seek submissions as to costs. It may be that the appropriate order is that there be no order as to costs, with the intent that each party pays his or its own costs of the proceedings.