When it’s strictly business: the tort of injurious falsehood
Whereas an action for defamation seeks to address harm to reputation, the lesser known — or, perhaps at least, attracting less attention in the tabloids — tort of injurious falsehood is concerned with the impact of false statements on commercial activity.
The recent decision of the New South Wales Supreme Court in Judo Bank Pty Ltd v Elali[1] elucidated the principles relevant to the tort of injurious falsehood. The decision is noteworthy also because it suggests the limits of the tort as a basis for restraining future publications, that is, as a means of obtaining injunctive relief against a defendant to prevent further harm.
Facts
The defendants carried out what the Court described as a ‘short-lived but high-profile media campaign’ against the plaintiff, a bank.[2] By use of large digital billboards and other signage, the defendants described the bank as being ‘fraudulent’, ‘dishonest’, and other words besides.
By summons, the plaintiff bank sought a permanent injunction to restrain the defendants from publishing certain representations, including anything that would insinuate that the bank was fraudulent, deceptive in its dealings, and so forth. In suing, the bank did not allege it had suffered any loss and did not seek to recover damages. The bank did not seek orders restraining the defendants from making such representations at all, but rather, essentially, the restraint was to prevent any further media-style statements of the kind the defendants had disseminated.
The Court’s decision
Justice Hmelnitsky gave the Court’s judgment. In determinig the plaintiff bank’s claim, his Honour began by addressing the doctrine and elements of the tort of injurious falsehood.
Elements of the tort
The tort, arising in jurisprudence in the late 19th century, features four elements. As his Honour noted, those elements were articulated by the High Court in Palmer Bruyn & Parker Pty Ltd v Parsons[3] and require:
(1) a false statement of or concerning the plaintiff's goods or business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant; and (4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement.
In expanding on some of those elements, Hmelnitsky J noted the following:
False statement. ‘[T]he question of what is false … ultimately depends on the content of the statement as a whole and the context in which it was made’.[4] Where the injurious statement involves an opinion, his Honour considered that it is not necessarily the case that falsehood can be proven simply by showing that the person expressing an opinion did not honestly hold that opinion, nor by proving that the relevant opinion was wrong.
Here, his Honour looked to both the content of the publications and the means or manner in which they had been made. As to the former, his Honour noted that the ‘[t]he signs [on which the statements were displayed] were so abrupt and outlandish that people may have had a tendency to treat them as they would treat a sign displayed on a sandwich board carried outside a bank branch by a crank, namely as the expression of a recalcitrant and wrong-headed opinion’.[5] As to the latter, and weighing against the meme of the sandwich-board-carrying crank, was the fact that the signage had been ‘artfully constructed by an advertising agency’ and that the statements were displayed on ‘well-presented, obviously-expensive’ media.[6] The overall impression, his Honour held, was that an ‘ordinary and reasonable viewer’ would have understood the signage as containing ‘factual assertions’.[7]
The Court then held that those factual assertions were false; in previous proceedings involving the parties, the plaintiff bank had disproved, by uncontested evidence, the assertions about fraud, dishonesty and the like.
Malice. His Honour noted that the real issue in dispute between the parties was whether the defendants possessed the requisite ‘malice’. His Honour noted the difficulty in establishing this element generally.[8]
It is easier to prove malice in some cases, his Honour noted, such as ‘where the defendant can be shown to have been reckless as to the truth or falsity of the publication’.[9] On the other hand, where the defendant has an honest belief in the truth of the publication it is more difficult to prove malice. That said, malice can nonetheless be established if an honestly made publication is made ‘with “an intent to injure without just cause or excuse”’.[10] His Honour noted that the notion of a ‘just cause or excuse’ is difficult to pin down.
Elsewhere, his Honour held that ‘the mere fact that a person appreciated the likelihood of harm being occasioned by their publication, or that harm did in fact occur, is not conclusive of an intention to injure’, and that this is so ‘even if injury is a likely incidental result’ of a publication.[11]
His Honour noted, finally, that because an allegation of malice is a serious one it requires proof of a quality beyond the usual civil standard, namely the so-called Briginshaw standard.[12]
On the facts here, his Honour concluded that the defendants honestly believed the truth of their published messages. The defendants did not give evidence in the case before his Honour, but the Court still inferred such honesty from the context in which the statements had been made; his Honour had ‘no reason to doubt’ the defendants’ perception of the plaintiff bank as having engaged in seriously improper conduct arising from the defendants’ particular prior experience in dealing with the bank.[13]
Here, the plaintiff bank had not sought to argue against any honestly held belief. Instead, it claimed that the defendants had published the statements with an improper purpose and that the publications therefore were made with an intent to injure and to exert pressure on the bank in the context of other legal proceedings. Looking at the evidence, his Honour rejected this characterisation; the evidence showed that the publications were part of a broader campaign on which the defendants had embarked and were not sufficiently linked to the particular proceedings with the plaintiff bank.
Finally, it was relevant to the Court’s conclusion about a lack of intention to injure that, albeit in small print, the billboards featured an email address at which the defendants could be contacted. This suggested, in his Honour’s impression, that the defendants’ purpose was to ‘get [their] own general message across’ about the plaintiff.[14]
Here, although finding that the defendants had made false statements, his Honour concluded that the requisite malice was not there; the action for the tort of injurious falsehood therefore had failed; the bank had argued for the presence of malice by reference to previous proceedings between the parties, but the Court rejected any connection between the publications and those proceedings.
Limits of injunctive relief
In this case, the plaintiff bank had not sought to sue for damages for any loss. Instead, it had sought to prevent future publication of similar statements. His Honour noted that ‘[t]he fact those future publications would only be actionable upon proof of damage is no bar to the grant of an injunction to prevent them occurring.[15]
Although his Honour noted that such future publications might carry a ‘reasonable likelihood’ of causing damage to the plaintiff bank’s interests,[16] the question of whether they could support a claim of injurious falsehood would depend on the facts at the future point in time. His Honour concluded:
My conclusions do not mean that future publications of similar matter will not be actionable injurious falsehoods. It is just that the question of malice would need to be considered in the context of any such publication.[17]
Principally for that reason, his Honour declined to grant an injunction on the terms the plaintiff bank had sought and dismissed its claim.
Comment
A reading of the Court’s reasons in this case suggests the following:
Whether a statement expresses an opinion or asserts a fact can depend on the substance of the statement — that is, the particular words and what they say — and the manner in which the statement is made. Here, while allegations about a bank could be seen as unremarkable and, in a way, inoffensive, they were made in a high-profile and lavish manner.
Malice is difficult to prove, particularly when it is necessary to articulate the context in which the publication was made in order to show some intention to injure (or, at least, to exert commercial pressure). A court generally might require convincing evidence to support an allegation of malice.
It will be difficult to restrain by an injunction any future publications, even if they appear likely to cause damage to a business, unless it can be shown that, in the particular context in which those future statements will be made, they possess among other things the requisite malice. Such things are inherently speculative and it is doubtful they would sustain injunctive relief even on the basis of quia timet (that is, based on an apprehension of harm).
[1]: [2026] NSWSC 48.
[2]: Ibid [1].
[3]: (2001) 208 CLR 388, 404 [52].
[4]: Judo Bank Pty Ltd v Elali [2026] NSWSC 48, [50].
[5]: Ibid [65].
[6]: Ibid.
[7]: Ibid.
[8]: Ibid [52], citing Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388, 407 [61].
[9]: Judo Bank Pty Ltd v Elali [2026] NSWSC 48, [54].
[10]: Ibid [55], quoting National Roads & Motorists’ Association Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2019) 291 IR 28, 76 [192].
[11]: Judo Bank Pty Ltd v Elali [2026] NSWSC 48, [85].
[12]: Ibid [58], citing Jay v Petrikas [2023] NSWCA 297, [104].
[13]: Judo Bank Pty Ltd v Elali [2026] NSWSC 48, [70].
[14]: Ibid [82].
[15]: Ibid [59].
[16]: Ibid [87].
[17]: Ibid [88].