Madden v Seafolly Pty Ltd (No 2)

In Madden v Seafolly Pty Ltd (No 2), the Federal Court of Australia was asked to review and amend certain aspects of a decision originally made in the Federal Court by Rares and Robertson JJ, with the dissent of Marshall J. The primary dispute involved a claim by Ms Madden against Seafolly Pty Ltd for misleading and deceptive conduct under the Australian Consumer Law. The case revolved around whether certain communications by Seafolly and Ms Madden constituted misleading or deceptive conduct. The court had to determine the appropriate scope and wording of declarations concerning the misleading representations made by both parties and the resulting orders for damages and declarations.

The legal issues the court needed to decide included the correct scope and wording of declarations regarding the misleading representations made by Seafolly and Ms Madden, the appropriate amount of damages to be awarded, and whether the declarations should be adjusted to accurately reflect the scope of the misleading conduct. Additionally, the court had to consider the form and content of the declarations in light of the misleading representations made by both parties and the need for clarity and precision in the final orders.

The court concluded that the original declarations needed to be amended to accurately reflect the misleading conduct found in the case. The court held that the primary judge had erred in making certain declarations, particularly regarding Ms Madden’s email sent on 2 September 2010. The Full Court suggested that certain declarations be deleted or amended to ensure they accurately reflected the scope of the misleading conduct. The court also found that Ms Madden was successful on her cross-claim against Seafolly and ordered that the matter be remitted for assessment of damages based on Seafolly's misleading conduct. The court directed that the declarations be reworked to clarify that certain representations related only to specific publications.

The final orders of the court included allowing the appeal in part, requiring the appellant to file an additional ground of appeal, varying the orders made by the primary judge, and remitting the matter for the assessment of damages and costs. The court also ordered that the appellant pay a significant portion of the respondent's costs of the appeal.