Fu v Winstar Group Pty Ltd
[2014] WASC 496
•19 DECEMBER 2014
FU -v- WINSTAR GROUP PTY LTD [2014] WASC 496
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 496 | |
| Case No: | CIV:2650/2014 | 9 DECEMBER 2014 | |
| Coram: | LE MIERE J | 19/12/14 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application granted in part | ||
| B | |||
| PDF Version |
| Parties: | HONG FU AHYEONG JEONG HANDS ON COMPUTER TRAINING INTERNATIONAL PTY LTD T/AS THE AUSTRALIAN INSTITUTE OF COMMERCE AND TECHNOLOGY WINSTAR GROUP PTY LTD BYOUNG JU CHA MEI VOON NG HAROLD KONRAD SIMON LEE |
Catchwords: | Tort Defamation Application for interlocutory injunction Prima facie case Whether inconvenience or injury the plaintiff would be likely to suffer if an injunction were refused outweighs or would outweigh the injury the defendant would suffer if injunction were granted Tort Injurious falsehood False statements concerning the plaintiff's business Publication of that statement by the defendant to a third party Malice on the part of the defendant Actual damage suffered as a result of the statement Application for interlocutory injunction Prima facie case Balance of convenience |
Legislation: | Education Services for Overseas Students Act 2000 (Cth), s 19 Rules of the Supreme Court 1971 (WA), O 12 r 1(2), O 59 r 5 |
Case References: | AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521 Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 Rana v Google Australia Pty Ltd [2013] FCA 60 Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 Tamiz v Google Inc [2013] 1 WLR 2151 Trkulja v Google (No 5) [2012] VSC 533 Wishart v Murray [2013] 3 NZLR 246 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
AHYEONG JEONG
Second Plaintiff
HANDS ON COMPUTER TRAINING INTERNATIONAL PTY LTD T/AS THE AUSTRALIAN INSTITUTE OF COMMERCE AND TECHNOLOGY
Third Plaintiff
AND
WINSTAR GROUP PTY LTD
First Defendant
BYOUNG JU CHA
Second Defendant
MEI VOON NG
Third Defendant
HAROLD KONRAD SIMON LEE
Fourth Defendant
Catchwords:
Tort - Defamation - Application for interlocutory injunction - Prima facie case - Whether inconvenience or injury the plaintiff would be likely to suffer if an injunction were refused outweighs or would outweigh the injury the defendant would suffer if injunction were granted
Tort - Injurious falsehood - False statements concerning the plaintiff's business - Publication of that statement by the defendant to a third party - Malice on the part of the defendant - Actual damage suffered as a result of the statement - Application for interlocutory injunction - Prima facie case - Balance of convenience
Legislation:
Education Services for Overseas Students Act 2000 (Cth), s 19
Rules of the Supreme Court 1971 (WA), O 12 r 1(2), O 59 r 5
Result:
Application granted in part
Category: B
Representation:
Counsel:
First Plaintiff : Mr J D MacLaurin
Second Plaintiff : Mr J D MacLaurin
Third Plaintiff : Mr J D MacLaurin
First Defendant : No appearance
Second Defendant : In person
Third Defendant : In person
Fourth Defendant : No appearance
Solicitors:
First Plaintiff : Cove Legal
Second Plaintiff : Cove Legal
Third Plaintiff : Cove Legal
First Defendant : No appearance
Second Defendant : In person
Third Defendant : In person
Fourth Defendant : No appearance
Case(s) referred to in judgment(s):
AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395
Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521
Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388
Rana v Google Australia Pty Ltd [2013] FCA 60
Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796
Tamiz v Google Inc [2013] 1 WLR 2151
Trkulja v Google (No 5) [2012] VSC 533
Wishart v Murray [2013] 3 NZLR 246
1 LE MIERE J: The first plaintiff, Mr Fu, is the chief executive officer, sole director and secretary of the third plaintiff, which I will refer to as AICT. AICT is a company that delivers training in information technology, business and English. The second plaintiff, Ms Jeong, who uses the preferred name of Vanessa Jeong, is AICT's international sales and marketing manager which involves administering and dealing with AICT's education agents and foreign students. The second defendant, who uses the preferred name of David Cha, and the third defendant, who uses the preferred name of Amanda Ng, are the directors of the first defendant, Winstar Group Pty Ltd. Winstar is a migration and education agent which until October 2014 acted as agent for AICT under a written agreement by which Winstar agreed to find suitable prospective students for enrolment and study at AICT's training locations in consideration for a commission for each student who is recruited, enrolled and pays the course fee to AICT. In October 2014, after differences had arisen between AICT and Winstar, both companies purported to terminate the agreement.
2 AICT claims that the defendants maliciously published false statements about it that have resulted in, or are likely to result in, actual damage to AICT. The statements are on Winstar's Facebook page, in a pamphlet distributed to AICT's students and in a letter from Mr Lee to the Minister for Education and others which was published on Winstar's Facebook page. Mr Fu and Ms Jeong claim that the statements in those publications are defamatory of them. The plaintiffs have applied for an interlocutory injunction restraining the defendants from publishing any matter that conveys any of the 15 representations or imputations specified in the chamber summons and requiring Winstar, Mr Cha and Ms Ng to remove all material of, and concerning, the plaintiffs from Winstar's Facebook page.
3 The statements, or posts, on Winstar's Facebook page were made by Winstar or the fourth defendant, Mr Lee. Mr Lee is a director of Alexander Khan & Associates Pty Ltd, a migration and education agent. Alexander Khan acted as an agent for AICT for approximately two months until November 2014. On 25 November 2014 in a telephone conversation with Mr Fu, Mr Lee alleged that AICT's marketing manager had told other education agents that Mr Lee was a dodgy agent. Mr Lee said that AICT and Mr Fu were running a ghost school where students do not have to come to school but still pay the tuition fees. Mr Lee and Mr Fu have not spoken since.
Hearing of this application
4 The writ was issued on 2 December 2014. The matter came before me on 8 December 2014 as an urgent application seeking an interlocutory injunction to restrain the defendants from publishing the matters complained of and requiring the defendants to remove them from Winstar's Facebook page. The defendants were given notice of the application by email sent after business hours on Friday, 5 December. Mr Cha and Ms Ng accessed the email on 6 December. Mr Cha and Ms Ng have filed memoranda of appearance. Winstar has not filed a memorandum of appearance. Mr Cha and Ms Ng have sought leave to represent Winstar in this action. I refused them leave to do so because O 12 r 1(2) of the Rules of the Supreme Court 1971 (WA) provides that a corporation may not enter an appearance in the action or defend it otherwise than by a practitioner. There is no inherent power to permit the entry of appearance in or defence of proceedings by a corporation without a solicitor. However, I permitted Ms Ng to make submissions on behalf of Winstar. Mr Cha and Ms Ng each appeared at the hearing of this application and relied upon two affidavits sworn by Ms Ng. Ms Ng made submissions on her own behalf and on behalf of Mr Cha and Winstar. Mr Lee informed the plaintiffs' solicitors that he is out of Perth and unable to attend the hearing.
5 Order 59 r 5 provides that a chamber summons must be served seven days before the hearing. The summons was not served on the defendants seven days before the hearing. Mr Cha and Ms Ng appeared and, although they submitted they had not presented all of the evidence because of the short notice and they could present more evidence, they did not apply for an adjournment. Accordingly, I heard the plaintiffs' application for orders against Winstar, Mr Cha and Ms Ng.
6 The plaintiffs, in effect, sought an abridgement of the time for the hearing of their application for orders against Mr Lee. I refused that application. Mr Lee has been informed of the hearing of the application but stated in an email to the plaintiffs' solicitors that he was unable to attend because he was out of Perth attending to work commitments. I am not satisfied that the matter is so urgent that the application for orders against Mr Lee should be heard immediately. The material about which the plaintiffs complain has been posted on the Winstar website over a period commencing on 11 November, that is about four weeks ago. Furthermore, for the reasons which I set out below I will order Winstar, Mr Cha and Ms Ng to remove any statements about the plaintiffs posted by Mr Lee on the Winstar website. Accordingly, the plaintiffs will obtain the effective relief they seek in relation to the statements posted by Mr Lee on the Winstar website.
7 The plaintiffs have not filed a statement of claim and, necessarily, the defendants have not filed a defence. Ms Ng submitted that the statements by Winstar and Mr Cha posted on Winstar's website are true and the defendants will prove them to be true at trial. In her affidavits Ms Ng provided some evidence to support the defendants' contentions. In his affidavits Mr Fu denied the truth of the statements. Ms Ng informed the court that the defendants could present more evidence in support of their contentions that the statements complained of are true if they had more time to do so.
8 The plaintiffs and Ms Ng and Mr Cha filed further affidavits after the hearing of this application. In the circumstances I will give them leave to do so and have regard to those further affidavits.
The alleged false statements
9 The defamatory imputations, or false representations, that the plaintiffs complain of are set out in the plaintiffs' chamber summons. The representations relate to five principal matters. The first relates to ghost students, that is students who are enrolled and pay fees but do not attend classes or receive training. The majority of the imputations relate to this matter. The essence of the matter is the allegation that AICT enrols and receives payment from students to enable them to work in Australia but AICT does not intend, require or encourage the students to attend classes or receive training. The second matter is that the plaintiffs have engaged in criminal conduct by hacking into Winstar's computer systems or websites so as to, or attempt to, steal confidential information. The third matter is that AICT provides workers as escorts or who are otherwise involved in the sex industry. The fourth matter is that Mr Fu has an adulterous relationship with Ms Jeong and Ms Jeong is promiscuous. There are also imputations at a high level of generality, specifically that the plaintiffs are criminals, liars, idiots, dishonest, unprofessional or fools.
The claims by Fu and Jeong against Winstar, Cha and Ng
10 Mr Fu and Ms Jeong's claims are in defamation. The High Court considered the grant of interlocutory injunctions to restrain the publication of material alleged to be defamatory in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57. The Court held that in considering whether to grant an interlocutory injunction the court addresses itself to two main inquiries. The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it were there is a probability that at the trial of the action the plaintiff will be held entitled to relief. The second inquiry is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted. The phrase 'prima facie case' does not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the order he seeks.
11 The court does not conduct any form of preliminary trial. Its task is not to predict the result of a later trial based upon incomplete and untested materials. The court's function is to decide what the application of the organising principles in all the circumstances indicates is the correct balance of justice between the parties pending trial. The nature of the rights which the plaintiff asserts and the practical consequences for the parties which would flow from the interlocutory order sought if granted, govern the requisite strength or seriousness of the plaintiff's case for such an order being made.
12 The court in Australian Broadcasting Corporation v O'Neill emphasised the importance of the nature of the rights being asserted. Particular considerations were held to apply where the interlocutory injunction sought was to restrain an alleged defamation. Foremost among those considerations is the public interest in free speech. The public interest in free speech goes beyond the public benefit that may be associated with the particular communication sought to be restrained. The court should exercise exceptional caution before interfering with the right of free speech by granting an interlocutory injunction in a defamation case.
13 I will not grant an injunction to restrain the defendants from publishing the statements made by Winstar, Mr Cha or Ms Ng on the Winstar website or in the pamphlet or the letter on the ground that they are defamatory of Mr Fu and Ms Jeong for the following reasons. First, the defendants assert that the statements are true and have offered some evidence in support of their contention. I cannot determine that the defendants' foreshadowed defence of justification cannot succeed, particularly in circumstances where they have received short notice of the application and have had little opportunity to answer the case put against them. Secondly, Ms Ng submitted that the statements made by Winstar are, at least in part, in reply to an attack by AICT, Mr Fu and Ms Jeong and Winstar was attempting to defend itself. A person whose character or conduct has been attacked is entitled to answer such attack and any defamatory statements he may make about the person who attacked him will be privileged provided they are published bona fide and are fairly relevant to the accusations made. Counsel for the plaintiffs submitted that the statements made by Winstar were, at best, mere retaliation which cannot be described as an answer or explanation. It is sometimes difficult to distinguish between a mere retaliation and attacking the credibility of your opponent in legitimate self-defence: see Gatley on Libel and Slander (12th ed) [14.51]. I am not satisfied that the statements by the first to third defendants will necessarily be found to be mere retaliation and not a reply to attacks upon them which give rise to qualified privilege. Thirdly, the public interest in the right of free speech is important notwithstanding that most of the statements complained of by Mr Fu and Ms Jeong are defamatory of Mr Fu and Ms Jeong in relation to the conduct of AICT's business. Fourthly, there is a public interest in the subject matter of the statements which relate to the treatment of students by Mr Fu and Ms Jeong in the conduct of AICT's business.
AICT's claims
14 AICT's cause of action is for the tort of injurious falsehood, now generally referred to as the tort of malicious falsehood in England. In Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 Gummow J listed the elements of the action:
Thus, generally, it is said that an action for injurious falsehood has four elements: (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 (404).
15 The plaintiffs submit that the usual restraint exercised for the grant of injunctive relief in defamation cases does not apply with the same force in cases of injurious falsehood. The plaintiffs referred to AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 [39]; Palmer Bruyn & Parker Pty Ltd v Parsons [58]; Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521; Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796.
Statements by Winstar, Cha and Ng
16 I will consider only the statements by Winstar, Ms Ng and Mr Cha. For the reasons I give later in these reasons I have determined that the statements posted by Mr Lee should be removed and Winstar, Mr Cha and Ms Ng should be restrained from publishing on the Winstar website any further statements by Mr Lee concerning AICT, Mr Fu or Ms Jeong.
17 I find that the statements made by Winstar, Mr Cha and Ms Ng, on Winstar's Facebook page, the pamphlet and the letter contain representations to the effect of the imputations or meanings set out in the plaintiffs' chamber summons, or to a similar effect, as follows:
(i) AICT has engaged in criminal conduct, by hacking into Winstar's computer systems or websites so as to, or attempt to, steal confidential information;
…
(iii) AICT has been engaged in fraudulent activity;
…
(v) AICT acts contrary to the interests of the students;
(vi) AICT cheats students out of money;
(vii) AICT intentionally does not comply with regulations that govern it;
(viii) AICT promotes to students benefits that it does not, is incapable of and/or has no intention of providing to students;
(ix) AICT is involved in the provision of female workers as escorts or otherwise involved in the sex industry;
(x) AICT actively seeks to enrol, at least as a matter of documentation and payment, students for AICT's courses with no intention or expectation that they will attend their courses;
…
(xii) AICT is involved in the provision of female workers as escorts or otherwise involved in the sex industry;
(xiii) AICT actively seeks to enrol, at least as a matter of documentation and payment, students for AICT's courses with no intention or expectation that they will attend their courses;
(xiv) AICT is a disgrace to the education sector or industry within which it works or conducts business.
18 The publications complained of do not give rise to the representation that AICT is a criminal. It is possible for a company to commit an offence but an ordinary reader would not understand the publications complained of to convey the meaning that AICT, as distinct from the people running it, is a criminal. Similarly, the publications complained of do not give rise to the representation that AICT is a liar, idiot, dishonest, unprofessional or a fool. Those are characteristics usually attributed to a natural person, not a corporation. There are two other imputations listed in the plaintiffs' chamber summons - imputations (iv) and (xi). The plaintiffs say that those imputations or representations arise from the statements made by Mr Lee. I have determined that Winstar, Mr Cha and Ms Ng should be restrained from publishing those statements and should remove them from Winstar's Facebook page. It is unnecessary to consider them further.
19 The contentious issues are whether the statements complained of were published by Mr Cha and Ms Ng, whether they are false, whether their publication was actuated by malice, whether the statements resulted in, or are likely to result in, actual damage to AICT and having regard to the inconvenience or injustice to the defendants of granting an injunction and the inconvenience or injustice to the plaintiff in refusing an injunction should the court grant an injunction restraining Winstar, Mr Cha and Ms Ng from publishing the statements complained of.
Publication
20 Winstar published the statements posted on its website. There is no argument about that. Ms Ng and Mr Cha accept that, at least for the purposes of this application, they are responsible for publications by Winstar on the Winstar website. Mr Cha, Ms Ng and Winstar submit that they are not responsible for the statements posted on the Winstar website by Mr Lee or any other third person.
21 The liability of a website host for statements posted by others is a developing area of law: see Trkulja v Google (No 5) [2012] VSC 533, Rana v Google Australia Pty Ltd [2013] FCA 60; Tamiz v Google Inc [2013] 1 WLR 2151 and Wishart v Murray [2013] 3 NZLR 246. There is a prima facie case that Mr Cha, Ms Ng and Winstar published on the Winstar website the statements there posted by Mr Lee. They now know of the content of the statements posted by Mr Lee. There is uncontradicted evidence that they have the capacity to remove Mr Lee's statements from the website.
Are the statements false?
22 The plaintiffs must prove that the statements complained of are false. Mr Fu has sworn that the hacking allegations are false. The statements complained of were written in Chinese. Ms Ng disputes the translation of the Chinese characters put forward by the plaintiffs. Ms Ng says that the Chinese characters should be translated as attempting to log in rather than 'hacking'. For the purposes of this application it does not matter whether the statements published were to the effect that AICT had attempted to log in to Winstar's computer systems or to hack them. Ms Ng, Mr Cha and Winstar say that the statements are true and they will prove them to be true. Ms Ng has produced a screenshot of a LINE text message which says that there was an attempt to log in to Winstar's LINE account with the device 'AICT - CQ 10'. Ms Ng says that the device name identifies it as an AICT computer. Mr Fu says that a number of AICT students have also been Winstar staff members and Winstar's computer system enables staff to log into their work accounts over the internet. Mr Fu says that given the screenshot showing an attempt to log into Winstar's computer system from an ISP address within AICT's offices, he can only assume that a Winstar staff member sought to log in over the internet from AICT's offices. Ms Ng disputes that explanation. She says that the log in was attempted from AICT's offices, not from an AICT classroom. Further, she says that the screenshot shows that the log in was attempted from an AICT computer, not merely from a computer located in AICT's offices. The evidence produced by the defendants at this time is incomplete. It was put together by the defendants on short notice. Ms Ng says that in due course she will be able to produce further evidence to support the defendant's contention. It is not appropriate that I conduct any form of preliminary trial or attempt to predict the result of a later trial on the issue of the falsity of the hacking allegation. At this stage I observe that Mr Fu has gone on oath to deny the allegations. There is evidence that the allegations are false, albeit there is contrary evidence as well.
23 Mr Fu says that the allegations that AICT has enrolled and encourages ghost students and that AICT has told its students that they are not required to attend classes are false. Mr Fu says that these allegations distort the true position which has been stated by AICT in its communications to its students and agents. AICT complies with the Department of Immigration and Border Protection requirements regarding student visas with respect to attendance by assessing students on the basis of their progress with a course. If a student is not attending the classes, or undertaking sufficient work outside of the classes, then they will not pass the various tests and assignments. AICT has never represented to its students that they do not need to attend classes or that AICT does not care whether they attend classes.
24 Ms Ng and Mr Cha say that the allegations concerning ghost students are true. They have produced some evidence in support of their assertions. Ms Ng has produced what she says is the AICT class list for certificate II in spoken and listening English. The list contains 35 students but indicates only 11 of them attended class. Ms Ng says that there are 40 students enrolled in AICT's certificate III in spoken and listening English but that there were only 24 seats available to students in AICT classrooms.
25 Ms Ng has referred to an AICT student, Chiu Yu Ting. Ms Chiu's certificate of enrolment is dated 18 August 2014. Her orientation should have been on 18 August 2014. Section 19 of the Education Services for Overseas Students Act 2000 (Cth) provides that a registered provider must give the Secretary certain information within 14 days after the specified event. The information includes prescribed information about an accepted student who does not begin his or her course when expected and any change in the identity or duration of an accepted student's course. Further, a registered provider must give the Secretary particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs. Ms Ng says that Ms Chiu did not attend AICT classes within 14 days of the specified date. Ms Ng has produced a screenshot of a text message sent to her by Ms Jeong which refers to Ms Chiu. The message says that the student had not attended class since she started, that the student was required to 'show up at least once for immigration purpose' and requested that Ms Ng 'ask the student to come so we can write immigration that she has come'. One of the chain of text messages is a message from Ms Jeong saying '[t]hey don't need to come every time just need to show up at least once for the first two weeks'. Ms Ng says that failing to inform the Secretary that Ms Chiu had not attended classes AICT was in breach of the legislative requirements.
26 Ms Ng has produced what she says is the transcription of a discussion between an AICT staff member, Austin Zhou, and students in the course of which Mr Zhou said that if a student's attendance is poor AICT does not report it to the Department. That might suggest that AICT does not encourage students to attend classes and does not comply with its regulatory requirements. That is denied by Mr Fu.
27 In a letter to the Immigration Department Mr Lee says that Winstar keeps receiving complaints from its customers stating that they are not satisfied with both the study time and arrangements of AICT, that the clients were told they do not need to attend class at all once they had paid the tuition fees and pass the exams and that AICT trainers never check students' attendance.
28 This is an interlocutory hearing not a preliminary trial. It is not appropriate, even if it were possible, for the court to determine whether or not the statements complained of are true on the basis of the incomplete evidence before it. Furthermore, the defendants say that because of the short notice they have received they have not been able to produce all the evidence they might have otherwise have produced.
29 Mr Fu says that the allegation that AICT is involved in the provision of female workers as escorts or otherwise involved in the sex industry is false. The defendants have not produced any evidence to support that allegation. The defendants say that the statements published do not give rise to that meaning. However, there is a statement on the Winstar Facebook page that arguably could be understood to mean that.
Malice
30 The authors of the 10th edition of Flemings Law of Torts say at [30.240] that today the dominant view seems to be that malice, in the sense of some indirect, dishonest or improper motive, or at any rate an intent to injure without just cause or excuse, must be proved by the plaintiff. Hazel Carty in An Analysis of the Economic Torts (2nd ed) Oxford University Press, (at page 212) says that it is consistent with leading modern case law to define malice as either 'deceit' malice or 'motive' malice. Deceit malice arises from knowledge of the falsity of a statement. Recklessness as to the falsity of the allegation is sufficient but mere carelessness is not. Motive malice arises from an improper motive. Aiming to injure rather than to further legitimate concerns will render the motive impermissible.
31 There is a commercial dispute between AICT and Winstar and animosity between Mr Fu and Ms Jeong on the one hand and Mr Cha and Ms Ng on the other. Ms Ng has produced a number of publications which are defamatory of Ms Ng, Mr Cha or Winstar, but there is no or no sufficient evidence that the plaintiffs are responsible for a number of those publications.
32 AICT says that an arguable case of malice has been established from the nature of the publications, the manner of their publication, their calculation to damage the commercial and personal reputations of the plaintiffs, the prospect of financial gain to the defendants through damaging the plaintiffs' reputations, and the background to their campaign against the plaintiffs, that is the breakdown in the commercial relationship between AICT and Winstar.
33 AICT does not allege that Winstar, Mr Chu and Ms Ng knew their statements to be false. In the course of submissions counsel for AICT suggested that the defendants made unwarranted assumptions on inadequate evidence. Counsel did not expressly state that AICT alleged that the defendants published the statements recklessly whether they were true or not. It appears to be more an allegation of carelessness. AICT's case appears to be primarily one of motive malice.
34 There is evidence, in the form of a transcript of a recording, that Austin Zhou made allegations against Winstar including statements to students that Winstar forged student's signatures, charged students extra tuition fees, conducted illegal activities, and was threatening students that their visas will be cancelled. A letter from AICT to its students includes allegations that AICT had received phone calls from students alleging that AICT had threatened to report them to the Department of Immigration and Border Protection for poor attendance and cancel their visa if they did not withdraw from AICT. The letter also said that Winstar had made a lot of false allegations and unprofessional remarks using Facebook, messaging and slandering pamphlets. Ms Ng has produced the translation of a notice which she says was distributed by AICT to students which alleges that 'the agent', which the defendants say is understood to be a reference to Winstar, demands that students withdraw complaints they have made to the Ombudsman or the agent will report their unsatisfactory attendance to the Immigration Department.
35 Ms Ng says that the statements by the defendants which are complained of by AICT are a response in defence to attacks upon them by the plaintiffs. AICT says that its statements were in response to allegations made against it by the defendants.
Prima facie case
36 AICT has led some evidence to establish its claims against the defendants. The defendants allege that their statements are true and they are acting in defence to attacks upon them by AICT. I am not able, and it in any event would be inappropriate, to attempt to assess the likelihood that AICT will be able to prove that the statements complained of are false. As to malice, AICT may face difficulties in establishing malice, either in that the defendants knew the statements to be false or that they acted for an improper motive. However, I find that AICT has made out a prima face case that at the trial of the action AICT will be entitled to relief, although I am unable to make any assessment of the strength of AICT's case.
Balance of convenience
37 I find that the balance of convenience favours the grant of an injunction. There is evidence that the statements made by the defendants is likely to cause AICT a loss of enrolments and hence a pecuniary loss. Mr Fu has sworn that in November 2014 AICT enrolments dropped by around 31% on the prior month, having consistently increased over the previous six months. Mr Fu says he believes that the sudden drop in enrolments is explicable by reference to Winstar and Mr Lee's actions. He is not aware of any other circumstance that would bear upon the drop in enrolments. In addition, Mr Fu says there has been a sudden spike in student course cancellations which he says can only be explained by reference to Winstar and Mr Lee's actions. He is unaware of any other circumstance or event that could account for this.
38 Ms Ng disputes that AICT has suffered a loss of enrolments because of statements made by the defendants. Ms Ng says that Winstar sent at least 25 students per month to AICT and therefore a drop in enrolments should be expected after AICT cancelled Winstar's contract. Further, Ms Ng says that other agents do not sent students to AICT because AICT did not pay agent's commission.
39 Winstar, Mr Cha and Ms Ng should be free to make statements to appropriate public authorities about AICT's treatment of students. Further, those defendants should be free to communicate to present or former AICT students introduced by Winstar about matters concerning the treatment of students by AICT and Winstar's side of the dispute between AICT and Winstar. However, publication to a wider audience through Facebook should be restrained until the trial of the action. That is subject to one qualification. The defendants should only be restrained from making statements on Facebook concerning AICT's business and its treatment of its students so long as AICT does not publish to anyone other than appropriate public authorities or AICT students introduced by Winstar any statements about Winstar. If AICT makes statements about Winstar, Mr Cha or Ms Ng other than to appropriate public authorities or AICT students introduced by Winstar then the court may not continue the interlocutory injunction. There will be liberty to apply to the defendants to dissolve or vary the injunction granted for that or any other proper reason.
Posts by Mr Lee
40 As I have said, Mr Cha, Ms Ng and Winstar submitted that they are not responsible for the statements posted on the Winstar website by Mr Lee. However, for the reasons I have given, I find there is a prima facie case that Mr Cha, Ms Ng and Winstar are liable for the statements posted on the Winstar website by Mr Lee. Mr Cha, Ms Ng and Winstar did not seek to justify those statements. Mr Lee has not entered an appearance and did not appear to answer the case made by the plaintiffs in relation to the statements made by him on the Winstar Facebook page. Winstar, Mr Cha and Ms Ng should be restrained from publishing the posts or statements by Mr Lee on the Winstar website and should remove from the website the statements that have been posted by Mr Lee.
Form of order
41 The order proposed by the plaintiffs restrains the defendants from publishing any matter that contains or conveys any of the specified imputations or any similar meanings or meanings to the same effect. The order should not restrain the plaintiffs from publishing matter that contains or conveys specified imputations. The usual form of order is to restrain the defendants from publishing the words complained of or any similar words defamatory of the plaintiff. That form of order more clearly conveys to the defendants what is required of them. In this case it is appropriate to restrain the defendants from publishing statements to the effect of those set out in the chamber summons or similar statements.
42 The order proposed by AICT excludes from the restraint publications made to or at the request of a proper public authority or to each other or to their legal advisers or by way of documents filed in or for the purposes of filing in court proceedings. There should be a further exclusion. The defendants should be permitted to make statements to present or former AICT students introduced by Winstar. That is necessary to enable Winstar to give its side of its dispute with AICT to the students it has introduced and to explain its position in relation to AICT.
43 There should be orders, upon the plaintiffs undertaking as to damages, to the following effect:
(a) until after judgment in this action, or further order, the first, second and third defendants be restrained from publishing upon the first defendant's Facebook page or otherwise but subject to (c) below, and save and except for publications made or caused to be made to or at the request of an appropriate public authority or to each other or to their legal advisers or for the purposes of court proceedings or to current or former students of the first plaintiff introduced to the first plaintiff by the first, second or third defendants, any of the following statements or any similar statements to the same effect:
(1) that AICT has been engaged in criminal conduct, including (but not limited to) by hacking into third party computer systems or websites so as to, or attempt to, steal confidential information;
(2) that AICT's school business is a sham operation;
(3) that AICT is involved, as part of its operations, in the creation of sham documents or documents that contain knowingly false details or representations;
(4) that AICT has been engaged in fraudulent activity;
(5) that AICT does not or is not capable of providing proper schooling or educational services to its students;
(6) that AICT acts, in relation to AICT's operations, contrary to the interests of the students;
(7) that AICT cheats students out of money;
(8) that AICT intentionally does not comply with the applicable regulations that govern it;
(9) that AICT promotes to students benefits that it does not, is incapable of and/or has no intention of providing to students;
(10) that AICT is involved in the provision of female workers as escorts or otherwise involved in the sex industry;
(11) that, for their own greedy motives and financial gain, AICT seeks to enrol, at least as a matter of documentation and payment, students for AICT's courses with no intention or expectation that they will attend their courses;
(12) that AICT is a disgrace to the education sector or industry within which it works or conducts business;
(13) any statement posted on the first defendant's Facebook page by the fourth defendant.
(b) Until after judgment in this action, or further order, the first, second and third defendants within eight hours from the making of these orders:
(1) remove all material of and concerning AICT from the first defendant's Facebook page, that contain the statements set out in (a) above; and
(2) take all reasonable measures to block the fourth defendant from publishing material upon that Facebook site.
(c) The restraints in respect to the first defendants' Facebook site:
(i) in respect to matter already on the site as at the date of the making of these orders, is only to operate as and from eight hours after the making of these orders;
(ii) in respect to any matter that may be published upon the first defendant's Facebook site in the future, other than publications by the plaintiffs or any of them, is only to operate from eight hours from the time of the publication of such material upon the Facebook site.
2. The defendants have liberty to apply, on 24 hours' prior notice to the plaintiffs, to dissolve or vary this injunction.
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