Astra Resources Plc v Full Exposure Pty Ltd - [2012] FCA 1061

FEDERAL COURT OF AUSTRALIA
Astra Resources Plc v Full Exposure Pty Ltd [2012] FCA 1061

Citation: Astra Resources Plc v Full Exposure Pty Ltd [2012] FCA 1061

Parties: ASTRA RESOURCES PLC v FULL EXPOSURE PTY LTD

File number: SAD 239 of 2012

Judge: BESANKO J

Date of judgment: 3 October 2012

Catchwords:
PRACTICE AND PROCEDURE – Application for interlocutory injunction – where applicant claims respondent published statements on its website that are misleading and deceptive or likely to mislead or deceive in contravention of s 18 of the Australian Consumer Law – whether appropriate exercise of discretion to grant interlocutory injunction – where respondent non-trading company – whether respondent published statements “in trade or commerce” – whether applicant has established prima facie case – whether serious question to be tried – balance of convenience.

Held: It is appropriate to grant an interlocutory injunction upon the applicant giving the usual undertaking as to damages.

Legislation: Australian Consumer Law s 18
Trade Practices Act 1974 (Cth) s 52

Cases cited:
Advanced Hair Studio Pty Ltd and Anor v TVW Enterprises Ltd (1987) 18 FCR 1, cited
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, cited
Barker v Commonwealth Bank of Australia [2012] FCA 942, cited
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, cited
Castlemaine Tooheys Ltd v The State of South Australia (1986) 161 CLR 148, cited
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, cited
Crossman v Taylor (No 3) [2011] FCA 734, cited
Fasold v Roberts (1997) 70 FCR 489, cited
Houghton v Arms (2006) 225 CLR 553, cited

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, cited

Taylor v Crossman (No 2) (2012) 199 FCR 363
TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323, cited
Tobacco Institute of Australia v Woodward (1993) 32 NSWLR 559, cited

Dates of hearing: 21, 25, 26 September 2012

Place: Adelaide

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 37

Counsel for the Applicant: Mr A Harris QC with Mr N Swan

Solicitor for the Applicant: Warmings

Counsel for the Respondent: Mr T Mitchell (25 and 26 September 2012)
Mr J Catlin (21 September 2012)

Solicitor for the Respondent: Oliver Lane Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 239 of 2012

BETWEEN:
ASTRA RESOURCES PLC
Applicant

AND:
FULL EXPOSURE PTY LTD
Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

3 OCTOBER 2012

WHERE MADE:

ADELAIDE VIA VIDEO LINK WITH MELBOURNE

THE COURT ORDERS THAT:
1.Upon Astra Resources giving the usual undertaking as to damages (Practice Note CM 14) and until further order:
(1)The respondent, its servants, agents and employees remove all references to the applicant from the website Wikifrauds.net or any other website operated by it including by way of links to material on the internet.
(2)The respondent, its servants, agents and employees…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FCA 1061
Decision Date: 3 October 2012

CaseChat Overview and Summary

Astra Resources Plc sought an interlocutory injunction against Full Exposure Pty Ltd, claiming that Full Exposure published misleading and deceptive statements about Astra on its website, Wikifrauds.net, in breach of section 18 of the Australian Consumer Law. The Federal Court considered whether it was appropriate to grant the injunction and if Astra had established a prima facie case, a serious question to be tried, and the balance of convenience in its favour.

The court examined whether Full Exposure, a non-trading company, could be considered to have published the statements "in trade or commerce." Despite the suggestion by Astra that an undertaking as to damages was unnecessary, the court determined that including such an undertaking was prudent. The court concluded that Astra had established a prima facie case and that there was a serious question to be tried, with the balance of convenience favouring the grant of an interlocutory injunction.

The court found it appropriate to grant the interlocutory injunction, subject to Astra providing the usual undertaking as to damages. The orders required Full Exposure to remove all references to Astra from its website and to refrain from making specified representations about Astra. Full Exposure and any person who knowingly assists in breaching the order would be liable to imprisonment, sequestration of property, or punishment for contempt. The court made it clear that the entry of these orders is governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. Upon Astra Resources giving the usual undertaking as to damages (Practice Note CM 14) and until further order:

(1) The respondent, its servants, agents and employees remove all references to the applicant from the website Wikifrauds.net or any other website operated by it including by way of links to material on the internet.

(2) The respondent, its servants, agents and employees be restrained from directly or indirectly making the representations concerning the applicant contained in Schedule 1 to the Amended Statement of Claim.

NOTE:

The respondent will be liable to imprisonment, sequestration of property or punishment for contempt if it neglects or refuses to do the acts or things specified in this order or disobeys this order.

Any other person who knows of this order and does anything which helps or permits the respondent to breach the terms of this order may be similarly punished.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It was suggested by Astra Resources that in the circumstances it was not necessary for it to give an undertaking as to damages, although it said that it was prepared to do so. In absence of detailed argument on the point, I think the prudent course is to include an undertaking as to damages by Astra Resources in the orders I will make. CONCLUSIONS I note the undertaking as to damages. I will make an order that until further order:(1)The respondent, its servants, agents and employees remove all references to the applicant from the website Wikifrauds.net or any other website operated by it including by way of links to material on the internet.(2)The respondent, its servants, agents and employees be restrained from directly or indirectly making the representations concerning the applicant contained in Schedule 1 to the Amended Statement of Claim.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Astra Resources Plc v Full Exposure Pty Ltd [2012] FCA 1061
Parties:		ASTRA RESOURCES PLC v FULL EXPOSURE PTY LTD
File number:		SAD 239 of 2012
Judge:		BESANKO J
Date of judgment:		3 October 2012
Catchwords:		PRACTICE AND PROCEDURE – Application for interlocutory injunction – where applicant claims respondent published statements on its website that are misleading and deceptive or likely to mislead or deceive in contravention of s 18 of the Australian Consumer Law – whether appropriate exercise of discretion to grant interlocutory injunction – where respondent non-trading company – whether respondent published statements “in trade or commerce” – whether applicant has established prima facie case – whether serious question to be tried – balance of convenience. Held: It is appropriate to grant an interlocutory injunction upon the applicant giving the usual undertaking as to damages.
Legislation:		Australian Consumer Law s 18 Trade Practices Act 1974 (Cth) s 52
Cases cited:		Advanced Hair Studio Pty Ltd and Anor v TVW Enterprises Ltd (1987) 18 FCR 1, cited Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, cited Barker v Commonwealth Bank of Australia [2012] FCA 942, cited Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, cited Castlemaine Tooheys Ltd v The State of South Australia (1986) 161 CLR 148, cited Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, cited Crossman v Taylor (No 3) [2011] FCA 734, cited Fasold v Roberts (1997) 70 FCR 489, cited Houghton v Arms (2006) 225 CLR 553, cited Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, cited Taylor v Crossman (No 2) (2012) 199 FCR 363 TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323, cited Tobacco Institute of Australia v Woodward (1993) 32 NSWLR 559, cited
Dates of hearing:	21, 25, 26 September 2012
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	37
Counsel for the Applicant:	Mr A Harris QC with Mr N Swan
Solicitor for the Applicant:	Warmings
Counsel for the Respondent:	Mr T Mitchell (25 and 26 September 2012) Mr J Catlin (21 September 2012)
Solicitor for the Respondent:	Oliver Lane Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 239 of 2012

BETWEEN:	ASTRA RESOURCES PLC Applicant
AND:	FULL EXPOSURE PTY LTD Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	3 OCTOBER 2012
WHERE MADE:	ADELAIDE VIA VIDEO LINK WITH MELBOURNE