Sacrifice Scooters v Goudie
[2022] VSC 42
•11 February 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2019 03832
| SACRIFICE SCOOTERS PTY LTD (ACN 145 287 305) | Plaintiff |
| v | |
| BRADLEY GOUDIE | Defendant |
---
JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 February 2022 |
DATE OF JUDGMENT: | 11 February 2022 |
CASE MAY BE CITED AS: | Sacrifice Scooters v Goudie |
MEDIUM NEUTRAL CITATION: | [2022] VSC 42 |
---
DEFAMATION – Three publications on YouTube and Instagram in 2017, 2018 and 2019 – Proceedings commenced – Judgment entered in default of appearance – Damages assessed –Application by the plaintiff for relief by way of permanent injunction – Applicable principles - Application refused.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | LEP Magowan | Choice Legal Pty Ltd |
| For the Defendant | No appearance |
HIS HONOUR:
The plaintiff applies for a permanent injunction in the following terms –
The Defendant, either by himself or through his servants and agents, is permanently restrained from publishing or causing to be published any further publication or publications that:
(a)uses the phrase ‘Snaprifice’ in connection with the Plaintiff and its products and brands or at all; and
(b)states and/or implies that the Plaintiff’s scooters are unsafe and/or prone to snap.
The application comprises the residue of a defamation claim made by writ dated 23 August 2019.
The plaintiff identifies itself as being in the business of design, manufacture (through third parties), promotion and sale of ‘Sacrifice’ branded scooters and related paraphernalia. It seems that the plaintiff also conducts its business in or to other countries.
The plaintiff sought relief against the defendant in respect of publications on YouTube on 7 May 2017 and on Instagram on 31 August 2018 and 22 July 2019. By its pleading, the plaintiff avers that two of the three publications were later removed after complaint.
The plaintiff’s written submissions refer to affidavit material deposing to the defendant being ‘an active scooter rider’ in the business of publishing on YouTube and Instagram. In that connection, it is said that the defendant is –
The most well-known and prominent ‘journalist’ and media identity on the internet in relation to scooters. He literally has hundreds of thousands of followers.
Notwithstanding the above, the defendant – who appears to reside in New Zealand – did not appear in answer to the writ and, on 17 December 2019, interlocutory judgment was entered against him for, among other things, damages to be assessed.
The assessment occurred in mid-2021 before an Associate Justice of this Court. In the assessment, the plaintiff relied upon affidavit material from the sole director of the plaintiff, Mr Mills, as well as from a Mr Cassarino, who seems to have been the company accountant.
The gravamen of the plaintiff’s claim to damages was that the publications complained of had caused a ‘marked decline in the plaintiff’s sales and profitability’. That said, the Associate Justice recorded that by March 2021 the plaintiff’s business had ‘returned to form, demand has increased significantly and the business is struggling to fill orders’. That position was confirmed by counsel for the plaintiff in the present application.[1]
[1]Transcript (‘T’) 10.
The Associate Justice accepted a causal link between publication of the defamatory statements and claimed economic loss. However, his Honour assessed damages as a lesser percentage of the overall sum claimed. Nonetheless, his Honour assessed damages in the sum of $735,837.
By its statement of claim, the plaintiff also sought relief in the nature of a permanent injunction. On 3 June 2021, when his Honour ordered judgment for the plaintiff in the sum assessed (together with interest), it was also ordered that the application for injunctive relief be heard and determined ‘on a date to be fixed’. In October 2021, the Court ordered that the application be heard on 4 February 2022 and that the plaintiff file an outline of its submissions.
As it happened, the plaintiff did not file a further outline of submissions. Nor did the plaintiff file and serve any further affidavit material.
In the present application, the plaintiff relied upon its outline of written submissions dated 25 April 2021, which had been before the Associate Justice. Those submissions addressed the claim for permanent injunctive relief and referred to certain relevant authorities.
The plaintiff also sought to rely upon the reasons of the Associate Justice as well as a 29 page bundle of emails between the parties and the Court in the period 22 April to 10 June 2021. Not all of those emails were from the defendant to the Court.
In oral argument, the only email to which submissions were specifically directed was an email and attached document from the defendant to the Court (copied to the representatives of the plaintiff) dated 22 April 2021.
At the hearing, counsel for the plaintiff emphasised what he described as a ‘pattern’ in the three publications in respect of which damages were assessed. He also emphasised the email and document from the defendant to the Court dated 22 April 2021.[2] In that communication it was evident that, among other things, the defendant maintained a belief in the truth of what he had said about the plaintiff’s scooters. That communication was not referred to in the plaintiff’s written submissions before the Associate Justice.[3] It is not clear what, if any, role it played in the hearing before his Honour. It is not referred to in the reasons of the Associate Justice.
[2]29 page bundle, pp.1-10.
[3]Although it may later have been provided to the Court independently by email from counsel for the plaintiff dated 26 April 2021 – see, 29 page bundle, p.14.
Counsel also emphasised both the damage that had been caused to what he described as a ‘small family business’ (and, I suppose implicitly, that damage might be at risk of being caused by future similar publications) as well as considerations of ‘finality’.[4] In that regard, counsel emphasised the injunctive relief recently ordered by Rares J in Chau v Australian Broadcasting Corporation (No 3).[5]
[4]As to the latter, counsel relied upon Chau v Australian Broadcasting Corporation (No 3) [2021] FCA 44 ‘Chau’, [191]-[192].
[5]Chau (n 4). Particularly, order 2.
Courts have recently considered the principles applicable in an application of the present kind.[6] It is evident that issues of complexity can arise.
[6]Hockey v Fairfax Media Publications Pty Ltd(No 2) [2015] FCA 750 ‘Hockey’; Rush v Nationwide News Pty Ltd (No 9) ‘Rush’ [2019] FCA 1383 and Chau (n 4).
The plaintiff’s written submissions referred to Rush v Nationwide News Pty Ltd (No 9),[7] in which Wigney J noted that the ‘main remedy’ provided by the Defamation Act is damages.[8] His Honour stated further, and relevantly, as follows –
The grant of a permanent injunction is discretionary. Reference has already been made to some of the key discretionary considerations: the degree or extent of the risk or apprehension of any republication of the defamatory imputations, the extent of the hardship that would be caused if the plaintiff or applicant was required to resort to new proceedings if the defamatory imputations were to be republished, the nature and seriousness of the defamatory imputations and the general undesirability of a multiplicity of actions between the parties.[9]
[7]Rush (n 6).
[8]Rush (n 6), [4].
[9]Rush (n 6), [44].
As to other possible discretionary considerations, Wigney J referred to ‘the public interest in the right to free speech’, as well as –
… any hardship that might be caused to the defendant if the injunction were granted, any inequitable conduct on the part of the plaintiff, the ability of the defendant to comply with the injunction, the prospect that compliance with the order will not ultimately benefit the plaintiff and any acquiescence or delay on the part of the plaintiff.[10]
[10]Rush (n 6), [46].
As to freedom of speech, which his Honour referred to as a ‘fundamental right which, subject to certain statutory and other exceptions, should generally not be interfered with or restricted’, his Honour had earlier stated –
Restraining an unsuccessful respondent in a defamation case from republishing defamatory statements or imputations which have not been shown to be substantially true should generally considered to be one of the types of cases where a restriction or limitation on the right of free speech may be warranted. Like any litigant, however, as unsuccessful defendant in a defamation case generally has the right, within certain limits, to comment on, express disagreement with, or even criticise a judgement of this or any other court, or express opinions about matters of public interest which may have been raised in the litigation. If the effect of a permanent injunction would be to materially restrict or curtail that right, it is difficult to see why that would not be regarded as a relevant consideration weighing against the grant of an injunction.[11]
[11]Rush (n 6), [11]. I note the arguably different weight to be afforded to considerations of freedom of speech in applications for interlocutory injunctive relief: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57.
In the present instance, counsel for the plaintiff readily acknowledged that injunctive relief is in the discretion of the Court and that, in the present context, freedom of speech is a relevant factor.
As to the specific matters emphasised by the plaintiff, a significant difficulty in the submission concerning the so-called ‘pattern’ is that it relies upon events that have not featured since about July 2019, which is prior to the commencement of the present proceeding. True it seems to be that there were publications in May 2017 and August 2018, the plaintiff complained, the defendant removed the publication, time passed and there was then a further publication – which was, in substance, said to comprise the so-called ‘pattern’. However, it was a ‘pattern’ that, on the evidence, precedes the litigation, and there is no evidence that the defendant has acted in that manner, or similarly, since that time.
Nonetheless, as I have noted, the plaintiff emphasised the communications with the Court, and particularly the document emailed to the Court dated 22 April 2021. In argument, counsel for the plaintiff correctly acknowledged the limits of that submission, and did not seek to ‘press it too far’.[12] In any event, while the email and document of 22 April 2021 might be said to display a maintenance of belief, it does not seem to me to constitute any part of the so-called ‘pattern’: among other things, it was not a publication to other than the Court and the participants in the litigation.
[12]T7.
The same may be said concerning the other potentially relevant communications in the bundle, the last of which was dated 10 June 2021. None was other than to the Court and the participants in the litigation. Further, in those communications, such defiance as may be evident in the stance of the defendant might be said to have waned and been replaced by bewilderment and distress.
Since that time there is, in fact, no evidence of any fresh communications by the defendant with the Court, let alone the public or world at large. Indeed, counsel for the plaintiff confirmed that in the lead up to the hearing there were emails to the defendant which, it seems, went entirely unanswered.[13] Further, unlike what might be thought to have been the defendant’s intention behind the email and document dated 22 April 2021, the defendant did not seek to either appear at or contribute in any way to the hearing of the present application.
[13]T2-3.
In my view, it cannot now be said that there is much if any ‘pattern’ evident after July 2019. Nor can it be said that the defendant’s communications with the Court and participants in the litigation are part of any such ‘pattern’. Indeed, if those communications may be said to be indicative of anything, that seems to me to be more likely to be an initially sullen defiance lapsing into bewilderment and distress and ultimately into silence. Silence seems to have prevailed for many months. And in that time there is no evidence of any fresh publication or re-publication to the public.
Whether or not there could be said to be a ‘pattern’, however, the issue seems to be one of risk or apprehension of repetition. It is always possible to be apprehensive about behaviour thought to be adverse to one’s interests,[14] but it is important not to lose either perspective or any proper sight of the evidence. On the evidence, since mid-2019, which is now 2½ years ago, the defendant has not acted anew in the manner complained of by the plaintiff. He has also had occasion to continue to display defiance, but seems not recently to have done so. In those circumstances, while the risk or apprehension of repetition obviously cannot be entirely dismissed, it should not be overstated.
[14]Particularly, perhaps, for lawyers.
The flip side of any future possible relevant publication by the defendant, however, is both a risk of damage to the business of the plaintiff and the extent to which appropriate remedies might be available should that occur.
The risk of damage should there be further publication cannot be dismissed, albeit that the fact and extent of that damage was, strictly speaking, an uncontested issue in the present proceedings owing to the manner in which it came to be addressed. Nonetheless, as I have noted, his Honour’s assessment of damages was plainly in a very significant sum.
On the other hand, if were there to be further publication, and economic loss suffered or at risk of being suffered by the plaintiff company, the plaintiff is plainly of sufficient means to again investigate and, if appropriate, take action should it choose to do so.
That raises an issue concerning s 23 of the Defamation Act 2005 (Vic) (‘Defamation Act’),[15] which was indirectly relied upon by counsel for the plaintiff in argument. That section provides, relevantly, as follows –
(2) The person may not bring a further defamation proceeding for damages against a previous defendant or an associate of a previous defendant in relation to the same or like matter, except with the leave of the court in which the further proceeding is to be brought.
[15]‘Defamation Act’ for the purposes of this judgment refers to the ‘uniform’ Acts of the same name in both Victoria and New South Wales. The wording of s 23 in the two Acts is identical.
The interpretation of the phrase ‘same or like matter’ has been considered in this Court.[16] Upon that construction, a future publication by the defendant may not necessarily be caught. In Rush, however, Wigney J identified and discussed other authorities that have doubted the correctness of a purposive approach to the construction of s 23.[17]
[16]Buckley v The Herald and Weekly Times Pty Ltd (No 2) [2008] VSC 475. Cf., Buckley v The Herald & Weekly Times Pty Ltd (2009) 24 VR 129.
[17]Rush (n 6), [32]-[43].
In any event, in the present case, as in Rush, it is unnecessary to further consider that issue. Even if it were ever necessary for the plaintiff to seek leave under s 23, it does not follow that that requirement ‘would constitute a significant or material hurdle’, especially if the publication concerned ‘gives rise to new or additional damage’.[18] So much was readily, and correctly, acknowledged by counsel for the plaintiff in argument.[19]
[18]Rush (n 6), [43].
[19]T18.
Nonetheless, in argument counsel for the plaintiff sought to emphasise a need for permanent injunctive relief as an aid to ‘finality in relation to all of the subject matters’.[20] Counsel pointed to certain paragraphs in the reasoning of Rares J in Chau[21] as well as to the form of order 2 there made.
[20]Ibid.
[21]Chau (n 4), [191]-[192].
In my view, real care must be taken when considering invitations to ‘finality’ in the present context, particularly in respect of orders in the form presently sought.
The orders sought seek to restrain ‘any further publication’ using the term ‘Snaprifice’ in connection with ‘the Plaintiff and its products and brands or at all’ and which states or ‘implies’ the ‘the Plaintiff’s scooters are unsafe and/or prone to snap’.
In argument, counsel for the plaintiff described the relief sought as ‘narrow’.[22] I disagree. It is directed to any ‘further publication’ at any time about any product of the plaintiff with the term and implications there identified. That is, it speaks to the future, but without tethering the prohibition to any action or conduct in the past.[23] In that way, it is quite unlike order 2 made by Rares J in Chau.
[22]T19.
[23]Cf., Hockey (n 6), [28].
Further, it has the potential to pose a significant restriction upon freedom of speech in respect of events and products that are presently unknown and, perhaps, unknowable. That is, it is directed to the plaintiff and its products and brands ‘or at all’, without limitation as to particular products, time or other. And that seems to be in respect of products and potential future products sold in or supplied to many countries.
One need only consider the problem in this wholly hypothetical way: if, next year, the plaintiff were to release a model of scooter that subsequently had a sequence of incidents in which a particular component snapped; would the defendant be able to report upon those events knowing that he was not in breach of the permanent injunctive order sought? Anyone with any experience in defamation practice would know that it would not take much in the defendant’s publication before it might be said to ‘imply’ that such scooters are ‘unsafe’. That is particularly so if those hypothetical events were published in connection with the pejorative label ‘Snaprifice’.
Yet, in the hypothetical circumstances which I have described (and one can imagine other similar scenarios), it might be that the underlying facts are true and the label presents as no more than a comment or expression of honest opinion. Such a comment might present in a form that is arguably defensible under the provisions of the Defamation Act.[24] However, were relief of the present kind to be ordered, the publication could render the defendant liable to imprisonment.[25]
[24]Defamation Act, s 31.
[25]Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51, 56.
Even if it were not clear that the order were breached by such a publication, the potential need to have an argument about the real ambit of the restraint ordered and whether or not it had been breached demonstrates that, in the present circumstances, relief in the terms sought is neither desirable nor appropriate.
In the circumstances described –
(a) the main remedy in defamation is damages and permanent injunctive relief does not follow as a matter of course – something ‘additional’ must be shown;[26]
[26]Hockey (n 6), [15].
(b) the plaintiff has obtained a very significant award of damages against the defendant;
(c) the risk of further publication by the defendant is not minimal, but should not be overstated;
(d) if there were to be further such publication, there is a risk to the plaintiff of further economic loss that might, conceivably, be significant;
(e) if that occurred, the plaintiff seems to have the means available to seek relief;
(f) even if s 23 of the Defamation Act were to apply (which may well be debateable), the leave requirement in that section may not, in the circumstances, present as any significant hurdle; and
(g) there is an element of overreach in the form of orders sought, as they are not tethered to past events or conduct and in are some respects debateable as to what they might restrain and so have a significant potential to limit the defendant’s freedom of future speech in an undesirable way.
While there is a conceivable future prospect that the plaintiff could obtain permanent injunctive relief in response to further publications by the defendant (if that were to occur), in my view, on the evidence, and in the present circumstances, the relief sought by the plaintiff must be refused.
0
5
0