Box Hill Institute of TAFE v Withall
[2012] FCA 1023
•11 September 2012
FEDERAL COURT OF AUSTRALIA
Box Hill Institute of TAFE v Withall [2012] FCA 1023
Citation: Box Hill Institute of TAFE v Withall [2012] FCA 1023 Parties: BOX HILL INSTITUTE OF TAFE v ANDREW WITHALL File number: VID 651 of 2012 Judge: MURPHY J Date of judgment: 11 September 2012 Catchwords: INJUNCTIVE RELIEF – relevant principles Date of hearing: 11 September 2012 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Counsel for the Applicant: Mr S Sapountsis Solicitor for the Applicant: Moores Legal Counsel for the Respondent: The Respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 651 of 2012
BETWEEN: BOX HILL INSTITUTE OF TAFE
ApplicantAND: ANDREW WITHALL
Respondent
JUDGE:
MURPHY J
DATE OF ORDER:
11 SEPTEMBER 2012
WHERE MADE:
MELBOURNE
UPON THE UNDERTAKING OF BOX HILL INSTITUTE OF TAFE by its Counsel to commence a proceeding in relation to the subject matter of the application by 21 September 2012.
THE COURT ORDERS THAT:
1.Andrew Withall by himself, his servants and agents is, until 5.00 pm on 28 September 2012 or further order, restrained from:
(a)publishing on the website or on any related or networked website, any statement referring to or in relation to Box Hill Institute of TAFE which includes the following words or words to the effect of:
(i)“Account suspended”;
(ii)“Student Warning: Account Suspended”; or
(iii)“Student Warning: A number of Organisations within the Education sector are experiencing troubled financial times, some have gone into receivership and/or bankruptcy. Others are unable to pay their bills or to guarantee provision of courses that students have enrolled into. Currently we are in dispute with this particular Education Provider regarding an outstanding invoice and as such we have been left with no alternative other than to suspend their account until the matter is resolved.”
(b)Publishing on the website or on any related or networked website, the corporate logo, trade mark or trade indicia of Box Hill Institute of TAFE, without the prior written consent of Box Hill Institute of TAFE.
(c)Publishing in any medium a claim or any statement to the effect that Box Hill Institute of TAFE owes any monies to Mr Withall or his businesses known as “Courses Directory” or “OD Australia”.
2.Service of this order upon Andrew Withall be effected by being attached to an email sent to his email address namely [email protected] and also by ordinary mail to his address at 31 Wondaree Street, Rye, Victoria.
3.The application is listed for directions, including as to the continuation of the injunction, on 28 September 2012 at 9.30 am.
4.Costs reserved.
NOTICE PURSUANT TO RULE 41.06 OF THE FEDERAL COURT RULES 2011
TO: Andrew Withall
You are liable to imprisonment, sequestration of property or to punishment for contempt if:
(a)where this order requires you to do an act or thing within a specified time, you refuse or neglect to do the act within that time; or
(b)where this order requires you not to do an act or thing, you disobey the order.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 651 of 2012
BETWEEN: BOX HILL INSTITUTE OF TAFE
ApplicantAND: ANDREW WITHALL
Respondent
JUDGE:
MURPHY J
DATE:
11 SEPTEMBER 2012
PLACE:
MELBOURNE
REASONS FOR JUDGMENT (Revised from transcript)
This proceeding is an urgent ex-parte application for an injunction brought by Box Hill Institute of TAFE against Mr Andrew Withall. The application is supported by an affidavit of Ms Joanne James, chief financial controller of Box Hill TAFE, sworn on 7 September 2012, together with various annexures thereto, and an affidavit by Mr Steven Sapountsis of Moores Legal, the solicitor for Box Hill TAFE, sworn 11 September 2012 together with various annexures.
Ms James deposes that:
(a)Mr Withall owns the registered business name OD Australia;
(b)Mr Withall owns the internet domain name “coursesdirectory.com.au”;
(c)OD Australia operates the website “coursesdirectory.com.au” (“Courses Directory”); and
(d)The Courses Directory website and database purports to list available tertiary education courses for students and to link interested students with tertiary education institutions offering a particular course.
Ms Jones details a dispute which has developed between Courses Directory and Box Hill TAFE. She deposes that Box Hill TAFE was first informed by Courses Directory in August 2011 that its courses had been listed on the Courses Directory website as a free service. However, Box Hill TAFE was invited to upgrade that free listing to what was called a “paid premium listing”. The Box Hill TAFE representative advised that it would not purchase such a listing, and sought that the free listing be deleted. In an email of 18 June 2012 to the solicitor for Box Hill TAFE, Mr Withall accepts that there was a request by Box Hill TAFE that it be delisted, but he states that Courses Directory was unsure of the identity or authority of the Box Hill TAFE representative to make such a request and accordingly did not perform it.
Courses Directory is seeking payment of an invoice which totalled $5,676.00 as at 4 June 2012, for services it says that it has performed for Box Hill TAFE, apparently in directing student enquiries to it. Box Hill TAFE denies any obligation to meet the invoice, and the correspondence illustrates that it has consistently taken this stance since the invoice was first rendered. The correspondence records that Courses Directory through its employee Tanya, and Mr Withall, have become increasingly unhappy about the failure of the Box Hill TAFE to pay the invoice.
Box Hill TAFE has advised in writing that it intends to report Mr Withall and Courses Directory to the ACCC and to Consumer Affairs Victoria. It has also demanded the removal of Box Hill TAFE from the website. On 6 July 2012 Courses Directory threatened to lodge a credit default notification in relation to the alleged debt. The solicitors for Box Hill TAFE advised in response that they would deal with any such “illegal registration” of the debt if Courses Directory took this course.
In my view up to this point there could be no justification for injunctive relief. What has occurred is no more than a contractual dispute between the parties as to whether Courses Directory is entitled to payment for its services or not.
However, Ms Jones deposes that on 3 September 2012 Courses Directory sent an email to Ms Jones threatening to add Box Hill TAFE to a “name and shame” file and to have the following message displayed across all 78 sites which it said it had access to within a network of education and training websites, reaching over 1.5 million visitors monthly:
Student warning: account suspended;
Student warning: a number of organisations within the education sector are experiencing troubled financial times. Some have gone into receivership and or bankruptcy; others are unable to pay their bills or to guarantee provision of courses that students have enrolled into. Currently we are in dispute with this particular education provider regarding an outstanding invoice, and as such we are left with no alternative other than to suspend their account until the matter is resolved – sorry for any inconvenience this may cause.
By letter dated 4 September 2012 Box Hill TAFE’s solicitors wrote to Mr Withall advising that the email of 3 September 2012 made an improper threat of blackmail, that the proposed “naming and shaming” was illegal, and that the threatened publication threatened to do Box Hill TAFE irreparable harm. The solicitors sought a written undertaking by midday on Friday, 7 September 2012 that the threatened publication would not take place, and that Mr Withall would not pursue the alleged invoice for unsolicited services. Failing the undertaking, the solicitors advised they were instructed to commence proceedings for injunctive relief without further notice.
Notwithstanding that letter, by email dated 5 September 2012 Courses Directory advised that they did propose to suspend Box Hill TAFE’s account and advise students across all 78 sites within the network of that fact.
In his affidavit Mr Sapountsis deposes to a further email from Courses Directory to Ms Jones on 10 September 2012, again indicating its intention to publish the material about which Box Hill TAFE complains. The threat made was as follows:
Unfortunately, we are left with no other option other than to add your organisation to our name and shame file and to have the following messages displayed across all 78 sites within our network of education and training websites, reaching over 1.5 million visitors monthly. The following message will appear across your website…
A screenshot of the websites attached to the email shows the Box Hill TAFE logo with the words “account suspended” in red capital font across it. The other words regarding “student warning” previously threatened are not included.
Box Hill TAFE have undertaken to commence proceedings against Mr Withall by 21 September 2012. It proposes proceedings for misleading or deceptive conduct or conduct likely to mislead or deceive in breach of the Australian Consumer Law (‘ACL’), and for defamation. It may be that other causes of action are also pleaded.
The question before me is whether the circumstances justify the grant of an urgent ex-parte interim injunction. The principles to be applied in an application for interlocutory relief are well-established:
(a)The Court must consider whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief;
(b)A prima facie case means that the applicant must show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo – it does not mean that the applicant must show that it is more probable than not, or in excess of a 50 per cent chance that the applicant will succeed at trial;
(c)How strong the probability needs to be depends upon the nature of the rights that the applicant asserts and the practical consequences likely to flow from the order it seeks;
(d)Secondly, the Court must consider whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted.
In the absence of the respondent having any opportunity to put its side of the story, I can form no firm view as to the strength of the Box Hill TAFE’s claim. However based upon the material in the affidavit of Ms Jones and Mr Sapountsis, the applicant has made out a prima facie case. On its sworn evidence it appears that the respondent has sent invoices for services not requested, and sought to enforce payment to which he is not entitled by threatening damage to Box Hill TAFE’s reputation and standing. Even the threat to record Box Hill TAFE’s account as suspended, when Box Hill TAFE says it never asked for an account in the first place might be likely to mislead or deceive in breach of the ACL.
The question of the balance of convenience poses little difficulty in the circumstances of this case. What is sought is a short-term injunction only, until 28 September 2012. Should Mr Withall appear on that day and persuade the court that the injunction should not be continued then it will operate only for 17 days.
No great inconvenience is suffered by Mr Withall if that is the result. The debt, if it be a debt, first arose late last year. A restraint on his ability to publish the suspension of the account of Box Hill TAFE or his ability to refer to the debt in public cannot cause any great inconvenience for the short term of this order. Compared to this, the loss of reputation and possible reduction in student enrolments that may be suffered by Box Hill TAFE might prove to be significant. It might also be largely irreparable if ultimately Box Hill TAFE makes out its case.
I note too that the threat to “name and shame” Box Hill TAFE in relation to a debt which is in dispute can be said to illustrate an intention to cause it commercial harm. In those circumstances I may more readily infer that it will.
The balance of convenience plainly supports the grant of an injunction.
I make the orders sought subject to a number of variations. I note the undertaking by Box Hill Institute of TAFE to commence a proceeding in relation to the subject matter of the application by 21 September 2012.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy. Associate:
Dated: 18 September 2012
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