10 July 2019

The Proper Officer
The Daily Telegraph
News Pty Ltd
2 Holt Street
SURRY HILLS NSW 2010

By email and Express Post: news@dailytelegraph.com.au

Dear Sir/Madam,

DEFAMATORY IMPUTATIONS | “NSW FOOD AUTHORITY NAME AND SHAME MORE THAN 50 WESTERN SYDNEY RESTAURANTS” PUBLISHED ON 1 JULY 2019

We refer to the abovementioned article published by the Daily Telegraph (“the Publication”).

The article contains false and misleading statements as regards Lettuce Deliver Organics Pty Ltdt/as Lettuce Deliver which has caused significant detriment to our business.

On the basis of the following, the imputations contained within the Publication constitute:

1. false, misleading and deceptive conduct under Schedule 2 of the Competition and Consumer Act 2010 (Cth); and

2. an injurious falsehood in respect of Lettuce Deliver.

Imputations

From a review of the Publication in its entirety, it would appear that the Daily Telegraph contends, either expressly or impliedly, that Lettuce Deliver:

1. Is one of the worst offenders prosecuted by the NSW Food Authority;

2. Is unethical;

3. Failed to store food properly;

4. Improperly labelled food;

5. Failed to employ appropriate hygiene conditions; and

6. Has pests on its site.

Moreover, despite the fact that Lettuce is far from the most significant offenders prosecuted by the NSW Food Authority, the Publication wrongly identifies Lettuce Deliver as one of the worst offenders.
So as to ensure that the Daily Telegraph is appraised of the matters in which Lettuce Deliver was fined by the NSW Food Authority, Lettuce Deliver:
1. Paid the fine issued by the NSW Food Authority on a no admissions basis following extensive reviews and appeals.

2. Is not one of the worst offenders, either by alleged conduct or quantum of the fine, charged by the NSW Food Authority;

3. Is an ethical business that complies with its statutory and regulatory obligations, particularly as regards compliance with food and marketing regulations;

4. Stores and labels its products in a manner that is consistent with its statutory and regulatory obligations;

5. Employs appropriate hygiene policies and processes to ensure that its products are safe to use in the manner prescribed; and

6. Does not have pests on site.

Accordingly, the imputations deriving from the Publication are false and misleading, and further, are causing significant harm to Lettuce Deliver.

Australian Consumer Law and Injurious Falsehood

Under the Australian Consumer Law (Cth) (“ACL”), the Daily Telegraph is prohibited from engaging in misleading or deceptive conduct in relation to Lettuce Deliver goods and services, and from making false or misleading representations regarding the standard and quality of Lettuce Deliver’s goods and services.

The Daily Telegraph’s conduct is aggravated by:

1. Its recklessness in publishing the Publication without regard for the whole substance of the fine;

2. It being aware of the falsity that Lettuce Deliver was one of the worst offenders; and

3. The contextual imputations derivable from the Publication and the way in which Lettuce Deliver is positioned within the Publication.

In the circumstances, the Publication constitutes false, misleading and deceptive conduct under sections 18 and 29 of the ACL. The same conduct is malicious and also constitutes the tort of injurious falsehood.

Damages Recoverable by Lettuce Deliver

We hereby put the Daily Telegraph on notice that the above conduct is damaging the reputation of Lettuce Deliver.

Lettuce Deliver has a strong reputation in its name and the services it provides. The statements and allegations made by the Publication are not only taken out of context and incorrect, but they are likely to create a false impression in the market in relation to the quality and integrity of the products sold by Lettuce Deliver. This, in turn, affects the public and professional reputation of our clients, their ability to generate future income and, accordingly, will cause actual loss and damage.

Consequently, Lettuce Deliver is considering making the following claims against News Pty Ltd:

1. Compensation for reputational damage;

2. Damages for loss of profit; and

3. The costs of repairing its reputational, professional and commercial standing in the market.

Action Required of News Pty Ltd and the Daily Telegraph

We hereby demand that News Pty Ltd and the Daily Telegraph immediately undertake to cease and desist from disparaging, defaming or making injurious, false and misleading allegations against Lettuce Deliver in any manner whatsoever. For the avoidance of doubt, the publication of further articles, either electronically or in physical copies, will be considered to be a further breach.

Moreover, Lettuce Deliver hereby demands that News Pty Ltd, the Daily Telegraph and any related bodies corporate that have published the same or similar articles as regards Lettuce Deliver remove all publications, including the Publication, regarding Lettuce Deliver and the matters complained of above, by no later than 5:00pm Friday 12 July 2019.

Should News Pty Ltd and the Daily Telegraph fail to comply with this demand, Lettuce Deliver will take all necessary and appropriate steps to protect its name, business, goodwill and reputation without any further notice to you.

We look forward to return correspondence that News Pty Ltd, the Daily Telegraph and all related bodies corporate have complied with the above demand.

Yours faithfully,


Emma Slade
Director

 

Update: 17th July - Daily telegraph has not made any contact with me or Lettuce Deliver but the article has been changed on line to now read:

Lettuce Deliver Organics at Homebush West was fined $1320 for selling a “raw milk product that was not treated, packaged or labelled in a manner that deters human consumption.

....instead of the original wording which was

One of the worst offences came at Lettuce Deliver Organics at Homebush West, where it was fined $1320 for selling a “raw milk product that was not treated, packaged or labelled in a manner that deters human consumption”.

 


23 July 2019

The Proper Officer
The Daily Telegraph & The Parramatta Advertiser
News Pty Ltd
2 Holt Street
SURRY HILLS NSW 2010

By email and Express Post: news@dailytelegraph.com.au

Dear Sir/Madam,

DEFAMATORY IMPUTATIONS | “NSW FOOD AUTHORITY NAME AND SHAME MORE THAN 50 WESTERN SYDNEY RESTAURANTS” PUBLISHED ON 1 JULY 2019

We refer to our previous correspondence on 10 July 2019.

We note that, shortly following receipt of our letter, the Telegraph retracted its statement that Lettuce Deliver Organics was one of the worst offenders from its online publication.

By virtue of this retraction, it is apparent that the News Pty Ltd concedes that the imputations arising from its allegation that Lettuce Deliver Organics was one of the worst offenders was indeed defamatory and injurious to Lettuce Deliver Organics. 

Notwithstanding this concession and the matters contained within our letter, News Pty Ltd continued to publish the same material, that being that Lettuce Deliver Organics was one of the worst offenders fined by the NSW Food Authority, in a related printed newspaper, the Parramatta Advertiser.  It may well be the case that New Pty Ltd published the article in the Parramatta Advertiser prior to the online publication, regardless, the loss and damage suffered requires further attention.

It is inarguable, by virtue of News Pty Ltd.’s concession, that the matters complained of were defamatory and/or injurious to Lettuce Deliver Organics and, despite this, News Pty Ltd has continued to publish such matters in alternate newspapers.

Lettuce Deliver Organics continues to suffer loss and damage by virtue of News Pty Ltd.’s publication of such matters and reserves its rights to protect its name, business, goodwill and reputation in a court of competent jurisdiction.

However, to avoid such an approach, we hereby demand that News Pty Ltd publish an article, both in the Telegraph and the Parramatta Advertiser, and in print and electronically, that Lettuce Deliver Organics was not one of the worst offenders fined by the NSW Food Authority and further, issuing an apology to Lettuce Deliver Organics for slandering its name and goodwill in the community.

We trust that it will not prove necessary, however, should News Pty Ltd fail to comply with this demand, Lettuce Deliver Organics may commence formal proceedings against News Pty Ltd without further notice to you.

We look forward to return correspondence that News Pty Ltd and all related bodies corporate, including all related newspaper brands that issued a publication relating to the matters complained of herein, have complied with the above demand.

Yours faithfully

 

Emma Slade
Director