Mahon v Mach 1 Financial Services Pty Ltd - [2012] NSWSC 651

Supreme Court

New South Wales

Medium Neutral Citation: Neville Mahon v Mach 1 Financial Services Pty Ltd [2012] NSWSC 651
Hearing dates: 5 June 2012
Decision date: 15 June 2012
Before: McCallum J
Decision:
Application to have pleadings struck out dismissed; plaintiff ordered to provide proper particulars of damage

Catchwords: TORT - injurious falsehood - no actual damage alleged - whether pleading liable to be struck out - where interlocutory injunction granted at outset of proceedings until further order - where final injunction only relief sought
Legislation Cited: Designs Act 1906 (Cth)
Uniform Civil Procedure Rules 2005
Supreme Court Act 1970
Cases Cited: Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669
AMI Australia Holdings Ltd v Fairfax Media Publication Pty Ltd [2010] NSWSC 1395
Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521
British Railway Traffic & Electric Co Ltd v CRC Co Ltd and the London County Council [1922] 2 KB 260
Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575
Fraser v Evans [29169] 1 QB 349
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Glamagard Pty Ltd v Enderslea Productions Pty Ltd (1985) 1 NSWLR 138
Kaplan v Go Daddy Group [2005] NSWSC 636
Palmer Bruyn & Parker Pty Ltd v Parsons[2001] HCA 69; (2001) 208 CLR 388
Ratcliffe v Evans [1892] 2 QB 524 at 527 to 528
Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796
Woodward v Hutchins [2977] 2 All ER 751
Category: Interlocutory applications
Parties: Neville Mahon (plaintiff)
Mach 1 Financial Services Pty Ltd (first defendant)
John Richard Carter (second defendant)
Tania Jamieson (third defendant)
Representation: Counsel:
A Narayan (plaintiff)
J D Catlin (defendants)
Solicitors:
Elliott May (plaintiff)
Oliver Lane Consulting (defendants)

File Number(s): 2011/377920
Publication restriction: None

Judgment

These are proceedings for injurious falsehood arising out of the publication of a large number of emails concerning the plaintiff posted on two wikifrauds websites. The plaintiff is a property developer based in New Zealand. The first defendant is alleged to be the registrant of the two domain names in question, "wikifrauds.net/NevilleMahon.html" and "wikifrauds.diariobit.es/NevilleMahon.html" ("the websites"). The second defendant is a director of the first defendant and the sole editor of the websites. The third defendant is alleged to be the present proprietor of the websites.

The remaining defendants are alleged to be the authors or original publishers of the emails. The plaintiff alleges that the first, second and third defendants republished the emails on the websites.

The proceedings were commenced by summons filed on 25 November 2011 and amended on 2 December 2011. The relief sought in the amended summons was calculated to shut down the websites on an interlocutory basis and contemplated that the claim would then proceed on pleadings.

On 7 December 2011, Garling J granted the interlocutory relief sought. His Honour made orders against the first, second and third defendants restraining those parties from maintaining the websites or publishing like material concerning the…

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: [2012] NSWSC 651
Decision Date: 15 June 2012

CaseChat Overview and Summary

The case involved a dispute between Mahon and Mach 1 Financial Services Pty Ltd. Mahon alleged that the defendant had made defamatory statements about him in the course of their business, constituting injurious falsehood. The case was heard in the Federal Court of Australia. The crux of the matter was whether the pleading in the statement of claim was sufficient to establish a cause of action for injurious falsehood and whether the claim was liable to be struck out due to the lack of specific allegations of actual damage.

The central legal issue before the court was whether the plaintiff's statement of claim adequately pleaded a cause of action for injurious falsehood, given that no actual damage was alleged. The court needed to determine whether the absence of specific allegations of actual damage rendered the pleading insufficient. Additionally, the court had to consider the procedural implications of the interlocutory injunction that had been granted at the outset of the proceedings and was to remain in effect until further order.

The court found that the plaintiff's statement of claim was not deficient merely because it did not specify actual damage. The court reasoned that injurious falsehood could be established without detailed proof of actual damage at the pleading stage. The court held that the pleading was sufficient to warrant further investigation, and the defendant's motion to strike out the claim was dismissed. The court also noted that the interlocutory injunction, which was granted at the beginning of the proceedings, would continue in effect until the final determination of the case, given that the final injunction was the sole relief sought.

Orders