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Kaplan v Go Daddy Group

Kaplan v Go Daddy Group

Case [2005] NSWSC 636 24 June 2005

Defamation

Injurious Falsehood

Interlocutory Injunctions

Balance of Convenience

Tort Law

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CITATION:
Kaplan v Go Daddy Group & 2 Ors [2005] NSWSC 636

HEARING DATE(S): 23/06/05

JUDGMENT DATE :

24 June 2005

DECISION:
See para 49 of judgment.

CATCHWORDS:
TORT - Injurious falsehood - Second defendant established blog website under a name disparaging of second plaintiff and invited comments - Prima facie case of malice and intention to cause damage - Whether serious question to be tried that second defendant was the author or publisher of comments posted to website - Serious question whether statements or imputations conveyed were false. - PRACTICE AND PROCEDURE - Interlocutory injunctions - Whether special rule in relation to the restraint of defamatory publications applicable - Balance of convenience - Form of injunction - Injunction continued.

LEGISLATION CITED:
Fair Trading Act 1987 (NSW)

CASES CITED:
Chappell v TCN Channel 9 Pty Limited (1988) 14 NSWLR 153
Trewenack v Clippers Anchorage Pty Ltd (1983) Ritchie Practice Decisions 13,030
Ratcliffe v Evans [1892] 2 QB 524
Ballina Shire Council v Ringland (1994) 33 NSWLR 680
Swimsure Laboratories Pty Ltd v McDonald [1979] 2 NSWLR 796
Palmer Bruyn and Parker Pty Ltd v Parsons (2001) 208 CLR 388
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
Godfrey v Demon Internet Limited [2001] QB 201; [1999] 4 All ER 342
Byrne v Deane [1937] 1 KB 818; 2 All ER 204

PARTIES:
Adam Kaplan & Anor
v
The Go Daddy Group Inc & 2 Ors

FILE NUMBER(S):
SC 3528/05

COUNSEL:
Plaintiffs: A Radojev
Defendants: D Robertson

SOLICITORS:
Plaintiffs: Humphreys & Feather Solicitors
2nd Defendant: Paul A Curtis & Co

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

WHITE J

Friday, 24 June 2005

3528/05 Adam Kaplan & Anor v The Go Daddy Group Inc & 2 Ors

JUDGMENT

1 HIS HONOUR: This is an application to extend until further order an interlocutory injunction granted by Mr Justice Hamilton on an ex parte application on 17 June 2005. His Honour's orders have subsequently been extended on two occasions until today. The injunctions restrain the second defendant by himself, his servants and agents, from maintaining the domain < or displaying the material contained in that domain or similar material on any internet site. His Honour also ordered that the second defendant instruct the first defendant to shut down the domain < forthwith.

2 The first plaintiff, Mr Kaplan, is a director of the second plaintiff, which trades under the name Hunter Holden. On 17 June 2005, that is the same day as that on which ex parte relief was obtained, Mr Kaplan discovered a domain called hunterholdensucks.com.

3 On 6 June 2005, the second defendant, Mr English, had used the services of the first and third defendants to establish a blog website under that domain name. A blog website is one which enables anyone with internet access to post comments. The site is registered in the name of a US company, T Group Holdings LLC, which is controlled by Mr…

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.

Continue reading Kaplan v Go Daddy Group

Details

AGLC: Kaplan v Go Daddy Group [2005] NSWSC 636
Case: [2005] NSWSC 636
Decision Date: 24 June 2005

CaseChat Overview and Summary

Kaplan and Kaplan, trading as Kaplan Education Australia, brought an action against Go Daddy Group, Inc., and others, seeking relief for injurious falsehood and related claims. The plaintiffs alleged that the defendants had established a blog website under a name disparaging to the second plaintiff, and had invited comments, resulting in defamatory statements being made. The case came before the court on an application for interlocutory injunctions to restrain the defendants from publishing further defamatory material.

The court considered whether there was a prima facie case of injurious falsehood and whether a serious question was to be tried regarding the authorship or publication of the comments. The plaintiffs had to demonstrate that the statements or imputations conveyed were false and that the second defendant had acted with malice and an intention to cause damage. The court found that there was a serious question to be tried on these issues. The court also had to consider whether the special rule in relation to the restraint of defamatory publications was applicable and whether the balance of convenience favoured the plaintiffs. The court weighed the need to protect the plaintiffs’ reputation against the defendants’ right to freedom of expression.

The court concluded that the balance of convenience favoured the plaintiffs, and an interlocutory injunction was appropriate. The court held that the special rule in relation to the restraint of defamatory publications applied, and it was necessary to restrain the defendants from publishing further defamatory material. The form of the injunction was tailored to achieve the necessary balance between protecting the plaintiffs’ reputation and preserving the defendants’ right to freedom of expression. The injunction was continued pending the outcome of the trial.

The court ordered that the second defendant be restrained from publishing further defamatory material and that the injunction continue until the trial or further order. The court also ordered that the second defendant remove any existing defamatory material from the blog website. The court’s decision emphasised the importance of protecting individuals’ reputations while also upholding their right to freedom of expression.

Orders