Clark v Ibrahim - [2015] VSC 301

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2013 05470

LEIGHTON MOORE CLARK and HARMONIOUS BLEND BUILDING CORPORATION PTY LTD	Plaintiffs
v
MICHAEL IBRAHIM and BETHANY ADAMS	Defendants

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 APRIL 2015
DATE OF JUDGMENT:	24 JUNE 2015
CASE MAY BE CITED AS:	CLARK v IBRAHIM
MEDIUM NEUTRAL CITATION:	[2015] VSC 301

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PRACTICE AND PROCEDURE - Amendment of pleading - Plaintiff claimed reputational damage and loss of business from conduct of defendants that was misleading or deceptive - Fifteen separate statements posted on product review website by defendants - Pleading makes claims about publications separately and as a composite group - Whether inferential circumstances of internet publication adequately pleaded - Whether adequate causal nexus alleged between reliance and the type of loss pleaded - Whether loss adequately pleaded - Whether composite claim against publications adequately pleaded - Adequacy of particulars - s 236(1)(a) of the Australian Consumer Law.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J Castelan with Ms L Papaelia	Bruce Caldwell & Associates
For the Defendant	Mr A Strahan with Ms E Nikou	Minter Ellison

HIS HONOUR:

In this proceeding, the plaintiffs seek leave to amend their proposed further amended statement of claim. The allegations in this proceeding are broadly similar to those being advanced in a related proceeding (see Harmonious Blend Building Corporation Pty Ltd v Keene and Anor (No. 2)[1]) in which the second plaintiff (whom I will refer by its trading name ‘Clark New Homes’) in this proceeding is the plaintiff. The first plaintiff in this proceeding (Mr Clark) alleges that he is the owner and principal of the second plaintiff.

The application is opposed by the defendants.

The plaintiffs allege 15 separate publications by the defendants in the form of internet posts. The posts were made on a product review website. The authors of the posts commented on the services provided by Clark New Homes. A sample publication reads as follows:[2]

Yes we have just finished building with Clark New Homes. I do not recommend them to my worst enemy they are worst building company I have come across, quality of building is also sub-standard and very rude management.

The other fourteen publications are of a similar nature and published under various aliases or usernames.

A number of causes of action were alleged. Both Mr Clark and Clark New Homes alleged they were defamed by the first and second publications causing injury to their reputations and standing. Secondly, each of these publications was malicious and constituted an injurious falsehood calculated to cause financial damage to Clark New Homes. Thirdly, Clark New Homes suffered loss by reason of conduct in trade or commerce that was misleading or deceptive under s 18 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) (‘ACL’). In respect of the allegations of injurious falsehood, the plaintiffs alleged that Clark New Homes…

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: [2015] VSC 301
Decision Date: 24 JUNE 2015

CaseChat Overview and Summary

In the matter of Clark v Ibrahim, the plaintiff, Clark, sought to recover damages for reputational harm and loss of business from the defendants, Ibrahim, arising from allegedly misleading or deceptive conduct. The dispute centred on fifteen separate statements published by the defendants on a product review website. The case was heard in the Federal Court of Australia.

The court was required to determine whether the plaintiff's pleadings adequately identified the circumstances that constituted misleading or deceptive conduct under section 18 of the Australian Consumer Law. Specifically, the court had to assess whether the pleadings sufficiently described the nature of the publications, the causal relationship between the publications and the plaintiff's losses, and whether the plaintiff's claims were adequately particularised. The court also needed to consider whether the plaintiff's claims about the publications both individually and as a collective group were properly pleaded.

The court found that the plaintiff's pleadings were inadequate in several respects. Firstly, the court determined that the pleadings did not sufficiently describe the inferential circumstances surrounding the internet publication of the statements. Secondly, the court held that the causal nexus between the defendants' reliance on the publications and the type of loss suffered by the plaintiff was not adequately alleged. Furthermore, the court concluded that the losses claimed were not sufficiently particularised. Finally, the court held that the claim against the publications as a composite group was not adequately pleaded. Consequently, the court dismissed the plaintiff's action.

The court ordered that the plaintiff's claims be dismissed with costs to be paid by the plaintiff to the defendants.

Orders