Rafiei Commercial Pty Ltd v Dokt (Interlocutory injunction)

Case [2025] FCA 764

FEDERAL COURT OF AUSTRALIA

Rafiei Commercial Pty Ltd v Dokt (Interlocutory injunction) [2025] FCA 764

File number: VID 560 of 2025
Judgment of: DOWLING J
Date of judgment: 11 July 2025
Catchwords:  PRACTICE AND PROCEDURE – application for interlocutory relief – whether prima facie case of breach of s 18 of the Australian Consumer Law or tort of deceit – whether posts to Google reviews and X in trade or commerce – whether balance of convenience favours interlocutory relief – interlocutory relief granted
Legislation: Competition and Consumer Act 2010 (Cth) Sch 2 s 18
Cases cited:

ACN 117 641 004 Pty Ltd (In Liq) v S&P Global, Inc (No 4) [2025] FCA 72

ALDI Foods Pty Ltd as General Partner of ALDI Stores (A Ltd Partnership) v Transport Workers' Union of Australia [2020] FCAFC 231; 282 FCR 174

Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148

Chopsonion Pty Ltd (Controllers Apptd) v Watts Meat Machinery Pty Ltd (No 2) [2025] FCA 4; 172 ACSR 228

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific [2009] FCA 726; 184 IR 333

Firewatch Australia Pty Ltd v Country Fire Authority [1999] FCA 761; 93 FCR 520

Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52

Houghton v Arms [2006] HCA 59; 225 CLR 553

Kazal v Thunder Studios Inc (California) [2023] FCAFC 174; 416 ALR 24

Madden v Seafolly Pty Ltd [2014] FCAFC 30; 313 ALR 1

Magill v Magill [2006] HCA 51; 226 CLR 551

Martin v Norton Rose Fulbright Australia [2021] FCAFC 216; 289 FCR 369

Russell v S3@Raw Pty Ltd [2023] FCA 305

Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238

Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8; 277 CLR 186

Warner-Lambert Co LLC v Apotex Pty Ltd [2014] FCAFC 59; 311 ALR 632
Division: General Division
Registry: Victoria
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Number of paragraphs: 51
Date of hearing: 7 July 2025
Counsel for the Applicants: Mr M J Hoyne
Solicitor for the Applicants: Ghaffari Lawyers
Counsel for the Respondent: The respondent appeared in person

ORDERS

VID 560 of 2025
BETWEEN:

RAFIEI COMMERCIAL PTY LTD

First Applicant

GHOLAMREZA RAFIEI

Second Applicant
AND:

JOSHUA DOKT

Respondent

ORDER MADE BY:

DOWLING J

DATE OF ORDER:

11 JULY 2025

PENAL NOTICE

TO: MR JOSHUA DOKT

IF YOU (BEING THE PERSON BOUND BY THIS ORDER):

(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR…

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AGLC
Rafiei Commercial Pty Ltd v Dokt (Interlocutory injunction) [2025] FCA 764
Case
[2025] FCA 764
Decision Date

CaseChat Overview and Summary

Rafiei Commercial Pty Ltd, represented by Mr Gholamreza Rafiei, brought an application for interlocutory relief against Dokt, seeking to restrain Dokt from making certain posts on social media and review sites. The applicants claimed that Dokt had posted false and defamatory material about the applicants' car dealership business, which had caused significant financial harm. The court was required to determine whether there was a prima facie case of breach of Section 18 of the Australian Consumer Law (ACL) or the tort of deceit, and whether the balance of convenience favoured interlocutory relief. The court found that there was a moderately strong prima facie case for contravention of Section 18 of the ACL and a strong balance of convenience in favour of granting the injunction. The court considered that damages would not adequately compensate the applicants if their case against Dokt succeeded, as the campaign could potentially destroy the car dealership. Therefore, the court granted interlocutory relief, ordering Dokt to remove certain posts and refrain from publishing similar material in the future. The matter was listed for a case management hearing, and costs were reserved.

The court's reasoning was based on the principles established in Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd, which require the court to identify the conduct in question, consider whether it occurred in trade or commerce, determine its meaning, and assess whether it was misleading or deceptive. The court found that Dokt's posts of images of damaged vehicles and banners with defamatory text conveyed a misleading impression to the public about the applicants' car dealership business. The court also considered the impact of Dokt's campaign on the applicants' revenue and reputation, which supported the grant of interlocutory relief. The court emphasised the importance of clear and understandable orders, which described the conduct rather than its effect, and referenced the material exhibited to the applicants' affidavit. The court rejected Dokt's late affidavit as it was not filed in accordance with the court's orders and could not be responded to or tested by the applicants.

Orders

Orders of the court

1. Within 14 days of the date of this order, the respondent take down the following material which he has published, whether by himself, his servants or agents:

(a) photographs of damaged vehicles which have been posted on the Google Business Profile of either of the applicants (including posting material in relation to Google reviews of the applicants or Google maps of the business location of either of the applicants) (which internet sites are referred to in these orders as the “Applicant’s Google Pages”). This includes photographs of the damaged vehicles annexed at GR-6 and GR-28 of the affidavit of Mr Gholamreza Rafiei dated 6 May 2025 and photographs of a similar type.

(b) words published on the Applicant’s Google Pages to the effect that the applicants, or either of them, buy and sell damaged vehicles. This includes the statement that “Used Cars Centre buys Salvage vehicles and repairs them. sells lemons [sic]” annexed at GR-30 of the affidavit of Mr Gholamreza Rafiei dated 6 May 2025 and words of a similar type.

(c) words published on the Applicant’s Google Pages or photographs on the internet which state that the applicants, or either of them, have sold defective vehicles. This includes posts or photographs of the banner annexed at GR-26 of the affidavit of Mr Gholamreza Rafiei dated 6 May 2025 and words or photographs of a similar type.

(d) words or photographs published on x.com (formerly known as Twitter.com) to the effect that the applicants, or either of them, buys damaged vehicles and sells them to the public. This includes the words or photographs annexed at GR-20 of the affidavit of Mr Gholamreza Rafiei dated 6 May 2025 and words or photographs of a similar type.

2. Until the hearing and determination of this proceeding the respondent, whether by himself, his servants or agents, be restrained from publishing the following:

(a) photographs of damaged vehicles on the Applicant’s Google Pages;

(b) words on the Applicant’s Google Pages to the effect that the applicants, or either of them, buy and sell damaged vehicles;

(c) words on the Applicant’s Google Pages or photographs on the internet which state, or have the effect of stating, that the applicants, or either of them, have sold defective vehicles;

(d) words or photographs on x.com (formerly known as Twitter.com) to the effect that the applicants, or either of them, buys damaged vehicles and sells them to the public.

3. The matter be listed for a case management hearing at 9:30am on a date to be fixed.

4. Costs reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Relevant to the present application, an application for interlocutory relief must, in showing the balance of convenience favours that outcome, point to inconvenience for which an award of damages at trial would not be a sufficient remedy: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 (Mason ACJ); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific [2009] FCA 726; 184 IR 333 at [21] (Greenwood J). The question of whether damages will be an adequate remedy will always need to be considered when the Court has an application for interlocutory injunctive relief before it. It is an important factor in the Court’s determination of where the balance of convenience and justice lies: Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238 at [62]-[63] (Dowsett, Foster and Yates JJ).THE EVIDENCE The applicants rely on two affidavits in support of the interlocutory orders sought. The relevant parts of those affidavits are summarised below.First affidavit of Mr Rafiei The first affidavit of Mr Rafiei was sworn on 6 May 2025. In that affidavit Mr Rafiei relevantly deposes:(1)In July 2018, Mr Rafiei incorporated Rafiei Commercial. In December 2018, Rafiei Commercial purchased a carwash business in Moorabbin. In close proximity to the carwash was Prestige Repair, a panel beating business owned by Mr Dokt.(2)Mr Dokt and Mr Rafiei had “some dealings” in 2019. The nature of those dealings is not specified.(3)In late 2019, Mr Rafiei began operating a car dealership at the same premises as the car wash. The car dealership operated under the names “Used Car Centre” and “UCC Motors”. In September 2021, Mr Rafiei moved the car dealership business to a new location and sold the carwash business. (4)The car dealership operates out of an indoor premises without visible cars from the street. Without passing trade, it relies on internet advertising, including through carsales.com.au and Facebook Marketplace. Potential clients will also “frequently look at the online reviews”, with the most common platform being Google reviews.(5)In early 2022, Mr Dokt parked outside the car dealership and Mr Dokt yelled: “I’ve found you. I will get back to you soon”. This was Mr Rafiei’s first direct contact with Mr Dokt since 2019. Mr Rafiei came to learn that Mr Dokt believed that Mr Rafiei was responsible for allegations that Mr Dokt was involved in insurance fraud. Mr Rafiei “categorically state[s]” that he is not involved in these allegations.(6)In July 2022, Mr Rafiei noticed dozens of photographs of damaged or salvaged vehicles uploaded to the Google reviews page for the car dealership. These photos were posted under the account name “FRAUDSTERR REZA RAFIEI”. None of the photos posted were of vehicles sold through the car dealership. (7)In August 2022, two men came to the car dealership and said: “Stop fucking around with Joshua or we will come back to kill you”. (8)From August 2022 to October 2023, over 1000 photos were posted to the Google reviews page of the car dealership under the name “FRAUDSTERR REZA RAFIEI”, “Reza Rafiei fraudster”, “Reza Rafiei Fraudster in Australia” or “shifty Reze Rafiei”. Mr Rafiei contacted Google to have these posts removed, but as quickly as the posts came down, new posts would emerge. (9)In October 2023, Mr Dokt sent Mr Rafiei threatening text messages. Following this, 24 photos of damaged or salvaged vehicles were posted to the car dealership’s Google reviews page under the name “J D”. One of those posts stated: “Used cars centre repairs Salvage cars and sell them to public. Cars are lemons. DO NOT BUY ANY CAR FROM THIS FAMILY OF FOUR”. Accompanying this post were two pictures of badly damaged vehicles. None of the photos posted comprised cars which were offered for sale by the car dealership. (10)In late October 2023, Mr Dokt sent Mr Rafiei a number of text messages that implied that Mr Dokt was responsible for the Google reviews posts. A text message also stated that Mr Dokt will take Mr Rafiei to the “county court for the money which you owe me for repairs that I have done on your cars”.(11)In March 2024, additional posts were made by “Reza Rafiei fraudster” to the Google reviews page comprising photos of damaged or salvaged cars accompanied by text reading “expert in selling s.a.l.v.a.g.e cars to the public. best in Australia”. (12)In November 2024 to May 2025, more posts comprising damaged or salvaged vehicles were made under the account name “J D” on the car dealership’s Google reviews page. Mr Rafiei says that it is apparent that these posts came from Mr Dokt because there are photographs of Mr Dokt on that account. During this time, Mr Dokt also posted to x.com (X) messages that relevantly stated that Mr Rafiei should “run for [his] life”, and that Mr Dokt will “make sure [Mr Rafiei] pay[s] the price for [his] lies”. (13)In March 2025, security cameras at the car dealership showed Mr Dokt placing a banner against the front entrance which stated: “USED CARS CENTRE sold us LEMON. Do NOT BUY FROM Them”. Following this, 15 photos of the banner were posted under the name “J D” to the car dealership’s Google reviews page. Later in March, Mr Dokt published additional posts to X which contained statements to the same effect as the banner. Mr Rafiei denies that Mr Dokt ever purchased a car from the applicants. Further posts of damaged vehicles were posted to the Google reviews page in April 2025. Some of these posts were accompanied by text that warned potential customers to “be careful” of purchasing from the applicants. (14)On 23 April 2023, Mr Rafiei’s solicitors wrote to Mr Dokt demanding Mr Dokt remove his posts. Mr Dokt responded on the same day and stated that Prestige Repairs has evidence that when Mr Rafiei first started running the car dealership, Mr Rafiei was buying salvaged cars, having Mr Dokt repair those cars, and selling those repaired cars without paying income tax. Mr Rafiei admits that Mr Dokt did “minor repair work” on a “small number of vehicles”, and those vehicles were subsequently sold by the applicants. However, Mr Rafiei denies the other allegations made by Mr Dokt in the correspondence. (15)The posts from late 2024 to 2025 have had a significant impact on the applicants’ revenue: in the period November 2023 to April 2024, the car dealership had sales of $3,481,220.28 whereas the sales for the period November 2024 to April 2025 were $1,625,534.65. Mr Rafiei cannot explain the reduction in sales by any means other than Mr Dokt’s campaign. Additionally, prior to November 2024, 30-40% of people who rang to inquire about the car dealership’s address would not show up, but in April 2025, the number of people who would not show up is 80-90%. Some potential customers have also enquired about the damaged cars on the Google reviews page. (16)Damages would not adequately compensate the applicants if their case against Mr Dokt succeeds. This campaign could destroy the car dealership and the applicants cannot maintain the business with the level of sales achieved in April 2025. If Mr Dokt is able to continue to post allegations pertaining to the car dealership, it is likely the applicants’ business will never recover. Second affidavit of Mr Rafiei

Decision

Reasons for decision

In these circumstances I consider there is a strong balance of convenience in favour of granting the injunction.CONCLUSION AND DISPOSITION I weigh together that there is a moderately strong prima facie case for contravention of s 18 of the ACL, and a strong balance of convenience, in favour of granting the injunction. I therefore consider it appropriate to grant interlocutory relief. It is necessary for me to comment on the nature and format of the orders I will make. The applicants originally sought orders which required that Mr Dokt remove and be restrained from posting any material on the internet which represented that he had purchased a vehicle from the applicants, that the applicants sell defective vehicles, or that the applicants sell or offer to sell vehicles which are or have been seriously damaged. During the hearing the applicants provided amended orders directed at a description of the conduct (by reference to the four categories described above) rather than the effect of the conduct. I consider those orders are clearer and more understandable for the respondent. The orders will also reference the material exhibited to Mr Rafiei’s affidavit dated 6 May 2025. Again, I consider that reference assists in enabling the respondent to fully understand them and be clear about what is being asked. I will otherwise list the substantive matter for case management hearing. The date for that hearing will be allocated after consultation with the parties. For all of the above reasons I make the following orders:1.Within 14 days of the date of this order, the respondent take down the following material which he has published, whether by himself, his servants or agents:(a)photographs of damaged vehicles which have been posted on the Google Business Profile of either of the applicants (including posting material in relation to Google reviews of the applicants or Google maps of the business location of either of the applicants) (which internet sites are referred to in these orders as the “Applicant’s Google Pages”). This includes photographs of the damaged vehicles annexed at GR-6 and GR-28 of the affidavit of Mr Gholamreza Rafiei dated 6 May 2025 and photographs of a similar type. (b)words published on the Applicant’s Google Pages to the effect that the applicants, or either of them, buy and sell damaged vehicles. This includes the statement that “Used Cars Centre buys Salvage vehicles and repairs them. sells lemons [sic]” annexed at GR-30 of the affidavit of Mr Gholamreza Rafiei dated 6 May 2025 and words of a similar type. (c)words published on the Applicant’s Google Pages or photographs on the internet which state that the applicants, or either of them, have sold defective vehicles. This includes posts or photographs of the banner annexed at GR-26 of the affidavit of Mr Gholamreza Rafiei dated 6 May 2025 and words or photographs of a similar type. (d)words or photographs published on x.com (formerly known as Twitter.com) to the effect that the applicants, or either of them, buys damaged vehicles and sells them to the public. This includes the words or photographs annexed at GR-20 of the affidavit of Mr Gholamreza Rafiei’s dated 6 May 2025 and words or photographs of a similar type.2.Until the hearing and determination of this proceeding the respondent, whether by himself, his servants or agents, be restrained from publishing the following: (a)photographs of damaged vehicles on the Applicant’s Google Pages;(b)words on the Applicant’s Google Pages to the effect that the applicants, or either of them, buy and sell damaged vehicles; (c)words on the Applicant’s Google Pages or photographs on the internet which state, or have the effect of stating, that the applicants, or either of them, have sold defective vehicles; (d)words or photographs on x.com (formerly known as Twitter.com) to the effect that the applicants, or either of them, buys damaged vehicles and sells them to the public.3.The matter be listed for a case management hearing at 9:30am on a date to be fixed. 4.Costs reserved.

Ratio Decidendi

Legal Principle Established

Mr Dokt emailed a further affidavit to my chambers three days after the hearing. It is not appropriate that I take that affidavit into account. It was not filed in accordance with orders I made for the hearing of the interlocutory application and cannot be responded to or tested by the applicants. In any event, its contents do not alter the conclusions that I reach below.CONSIDERATIONPrima facie case The applicants submit that there is an “overwhelming” prima facie case for the relief that is sought. The applicants press two causes of action, misleading or deceptive conduct in breach of s 18 of the ACL, and fraudulent misrepresentation under the common law. Is there a prima facie case that Mr Dokt contravened s 18 of the ACL? Section 18(1) of the ACL provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. The principles which govern the application of s 18 of the ACL are clear. They were recently summarised by the High Court (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ) in Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8; 277 CLR 186 at [80]-[82], as follows:(1)First, the Court must identify with precision the “conduct” said to contravene s 18. This involves asking what the conduct is, and whether the evidence establishes that the person engaged in that conduct;(2)Second, the Court must consider whether the identified conduct was conduct “in trade or commerce”;(3)Third, the Court must consider what meaning that conduct conveyed to its intended audience. This involves determining whether the alleged representations are established by the evidence; and(4)Fourth, the Court must determine whether that conduct, in light of its meaning, was misleading or deceptive or likely to mislead or deceive. At [83], the High Court went on to say that the third and fourth steps must be undertaken by reference to the effect or likely effect of the conduct on the ordinary and reasonable members of the relevant class of persons. The relevant class of persons may be defined according to the nature of the conduct, by geographical distribution, age or some other common attribute, habit or interest. It is necessary to isolate an ordinary and reasonable “representative member” (or members) of that class to objectively attribute characteristics and knowledge to that hypothetical person (or persons), and to consider the effect or likely effect of the conduct on their state of mind. I first deal with the first, third and fourth steps identified in Self Care, then return to the second step, which proved to be the most contentious issue in this proceeding.What is the conduct in question? From the evidence and submissions of the applicants, I understand the conduct in question to be as follows:(1)Category 1: Mr Dokt’s posts of images of salvaged, seriously damaged or defective vehicles to the car dealership’s Google reviews page, with the posts unaccompanied by any supporting text.(2)Category 2: Mr Dokt’s posts of images of salvaged, seriously damaged or defective vehicles to the car dealership’s Google reviews page with the posts accompanied by text that, in effect, advises the public not to purchase cars from the car dealership.(3)Category 3: Mr Dokt’s posts to the car dealership’s Google reviews page which show an image of a banner that reads: “USED CARS CENTRE sold us LEMON. DO NOT BUY FROM Them”. (4)Category 4: Mr Dokt’s posts of images to X showing salvaged, seriously damaged or defective vehicles, or the banner referred to in Category 3, together with text that effectively states that the applicants sell salvaged, seriously damaged or defective vehicles or “Lemons”.