The School for Excellence Pty Ltd v Trendy Rhino Pty Ltd
[2018] VSC 514
•6 September 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2018 01115
| THE SCHOOL FOR EXCELLENCE PTY LTD (ACN 066 955 128) | Plaintiff |
| v | |
| TRENDY RHINO PTY LTD (ACN 623 293 952) & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 September 2018 |
DATE OF JUDGMENT: | 6 September 2018 |
CASE MAY BE CITED AS: | The School for Excellence Pty Ltd v Trendy Rhino Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2018] VSC 514 |
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INJUNCTIONS – Interlocutory injunction – Proceedings for breach of contractual undertakings including as to confidentiality and for defamation – Publication ongoing on Facebook – Publication causing harassment of the plaintiff and others – Whether exceptional circumstances - Whether damages adequate remedy - Where balance of convenience lies – Whether defences of qualified privilege and honest opinion reasonably arguable – Where alleged defamation occurred in context of ongoing dispute and in alleged breach of undertakings – Interlocutory injunction granted – Defamation Act 2005 (Vic) ss 30 and 31.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr D V Aghion | KCL Law |
| For the Defendants | Mr M D Tehan | Corrs Chambers Westgarth |
HIS HONOUR:
On 30 August 2018 the plaintiff (TSFX) applied, on notice to the defendants, for urgent interim injunctive relief in advance of commencing a proceeding.
I ordered that in exchange for the usual undertaking as to damages:
1.Until 5:00pm on 4 September 2018, the defendants, and each of them, by themselves, their servants, agents or howsoever, are restrained from making derogatory, defamatory, unsavoury, untrue or unfavourable comments in relation to the plaintiff or any person associated with it, including, without limitation, in relation to or on the subject of the complaints against the first and second defendants set out in the letter from KCL Law dated 24 July (24 July letter) and TSFX’s demands that the first and second defendants remove and cease making available the Offending Materials in accordance with the terms of the 24 July letter, and as undertaken by the first and second defendants on 24 July 2018.
2.Until 5:00pm on 4 September 2018, the defendants, and each of them, by themselves, their servants, agents or howsoever, are restrained from:
(a)breaching confidence in the matters set out in the 24 July letter;
(b)making any statement concerning the matters set out in the 24 July letter, except for the purpose of obtaining legal advice;
and as undertaken by the first and second defendants on 24 July 2018.
The summons returned on 4 September 2018, allowing the parties to prepare and file further material in respect of the relief being sought. On the return, the plaintiff sought to extend these orders to trial (in the form originally sought, which substituted ‘publishing or further publishing’ for ‘making’) and sought a further interlocutory injunction in these terms:
By 4.00pm on 31 August 2018, the defendants take all reasonable steps to remove from any website, electronic hosting service, or any other electronic facility any statement or publication that contains material that contravenes the undertakings described in orders 1 and 2 above.
The plaintiff claims to be an excluded corporation as defined by s 9 of the Defamation Act2005 (Vic) (the Act). Although the defendant queried the plaintiff’s excluded status, for present purposes I will assume it to be so.
The plaintiff provides lecture and curriculum programs to VCE students in Victoria and HSC students in New South Wales. Those materials include trial or practice exam papers. TSFX owns the copyright in those practice exams and licenses them to schools for substantial fees as well as providing access to a library of such exams to its enrolled fee-paying students. The practice exams are also used in an intensive 8-week tuition program covering a unit of study known as a ‘Master Class’.
The first defendant (Trendy Rhino) is a marketing company and the second to fourth defendants are three of its four directors. Trendy Rhino established Facebook discussion groups and sold advertising and marketing opportunity to third parties wishing to promote their services to members of such discussion groups. For present purposes Trendy Rhino had established a particular Facebook group known as ‘VCE DiscussionSpace’ (VCEDS) which had about 139,000 members. The VCEDS facilitated discussion and sharing of information and materials amongst past and current VCE students.
In late July 2018, Mr Andrew Murchie, a director of the plaintiff, became aware of a Google drive containing 1,467 trial exams of which 42 were TSFX practice exams. Trendy Rhino was providing access to these practice exams to members of VCEDS.
A discussion on VCEDS confirmed the second defendant was aware that providing access to the trial exams was in breach of copyright. The second defendant posted:
One of our beliefs at VCE DiscussionSpace is that resources should be free for all. so we don’t care about sharing resources that may be copywrited
On 19 July 2018, TSFX lodged a complaint with Facebook reporting the copyright breaches.
On 20 July 2018, Facebook acknowledged TSFX’s complaint and soon thereafter removed the VCEDS from Facebook.
On 24 July 2018 the plaintiff’s lawyers wrote a detailed letter to the second defendant identifying the defendant’s breach of copyright and noting the plaintiff’s entitlement to an injunction, damages, or an account of profits. In addition, the solicitors noted the defendants’ conduct was likely in breach of Facebook and Google policy that, if invoked, might result in denial of future access to their Facebook groups. To avoid further consequences, the defendants were invited to, and immediately did, give extensive undertakings to the plaintiff.
I need not set out the undertakings in full. In summary, the defendants undertook to immediately and permanently remove and destroy all copies of the TSFX practice exams and any other TSFX copyrighted materials (defined as the Offending Materials) from all online and other platforms including any and all Google drives or similar accounts, databases or devices and that they immediately and permanently refrain from engaging further in such conduct. There were further undertakings to notify persons who may have accessed or downloaded the copyrighted material and post a message (an apology) requiring the return or deletion by members of the discussion group who had downloaded or accessed the copyrighted practice exams.
Of particular relevance for present purposes were two further undertakings given by the defendants:
8.That you will immediately permanently refrain from making derogatory, defamatory, unsavoury, untrue or unfavourable comments in relation to TSFX or any person associated with it, including, without limitation, in relation to or on the subject of the complaints made against you hereunder and TSFX’s demands that you remove and cease making available the offending materials in accordance with the terms of this letter; and
9.That except as otherwise provided hereunder, you will keep confidential the matters raised in this letter except if and for the purpose of obtaining legal advice.
The following day, Trendy Rhino formed a new Facebook group called VCE DiscussionSpace Backup (VCEDS (Backup)).
On 30 July 2018, the defendants’ solicitors requested that the plaintiff forthwith inform Facebook that the defendants had complied with the plaintiff’s requests and that the VCEDS Facebook group could recommence its operations.
On 31 July 2018, following discussions, the plaintiff agreed to retract its copyright complaint to Facebook and refrain from making any further report in consideration of the defendants continuing to abide by the undertakings they had given on 24 July 2018 and agreeing to certain arrangements to enable monitoring by the plaintiff of the VCEDS.
On 2 August 2018, the plaintiff notified Facebook that it retracted its copyright complaint. That same day, the fourth defendant posted a message to the VCEDS (Backup) group that included the following statements:
What happened to the original VCE discussionSpace?... boy do we have a story for you… help us recreate this temporary group and we’ll blow your minds with how one of the most engaged and active Facebook groups of 140,000 Victorian High School students got taken down (temporarily)… we’ll be making an announcement to update you very soon when this group is big enough.
On 7 August 2018, the plaintiff’s solicitors complained that Trendy Rhino had breached the 24 July undertakings in a number of particularised ways. An hour or so later the defendants’ solicitors confirmed receipt of that letter and noted that the VCEDS had not been restored, enquiring whether the plaintiff had received any further correspondence about restoration from Facebook. The following day the defendants’ solicitors requested an urgent response.
On 8 August 2018, Facebook acknowledged receipt of TSFX’s withdrawal of its complaint. The VCEDS was put back up on Facebook.
On 12 August 2018, Mr Murchie communicated with Facebook a second time, noting that while TSFX had retracted its complaint he was surprised that Facebook had reinstated the group. Mr Murchie drew Facebook’s attention to other copyright infringements in respect of which TSFX was not the copyright owner. He then stated:
Given blatant infringement continues on this group site, we would like to withdraw our consent for the group to be reinstated as emailed to you on 2 August 2018.
On 13 August 2018, the plaintiff’s solicitor again complained that the defendants remained in breach of the 24 July undertakings, noting that it had reported these further copyright breaches to Facebook.
On 14 August 2018, Facebook again took down the VCEDS group. For the following two weeks the solicitors exchanged correspondence in which the plaintiff asserted continuing breach of the undertakings and the defendants asserted that TSFX deliberately breached a fundamental term of the agreement between the parties when it made a second complaint to Facebook. Trendy Rhino gave notice that it accepted that repudiation and terminated the arrangement.
Then, on 29 August 2018 the fourth defendant published an email to members of the VCEDS, which was also posted on the VCEDS (Backup) group, that stated, in part:
Where did VCE DiscussionSpace go?
…
An external company, a company we ALL know very well, an educational company based in MELBOURNE, had made a direct complaint to Facebook with the intention of taking our group down.
Find Out Who Took The Group Down
But for what?
There must have been a damn good reason for them, a company designed to ‘maximise students success’, to take down a resource that helps students during Year 12.
So why did they do it?
It turns out that several members of the group had uploaded copyrighted exams – exams that we IMMEDIATELY took down up their request.
Even after removing these exams, they put an exhaustive list of further demands in front of us.
These demands were unreasonable, and put simply – demeaning.
We were in a position where we had no choice – it was to comply with their requests or to say goodbye to the group we love so much – FOREVER.
So we did it, we agreed to everything they said.
The group was given back to us, and I distinctly remember the flood of relief that shook my body.
Life could return to normal. Finally.
But only a few days later I returned to Facebook only to see a message that had become all too familiar.
‘VCE DiscussionSpace has been removed for copyright breaches’
But why? We’d complied with EVERYTHING they requested, even to the detriment of our own pride and ego.
It turns out that they had gone through the group, found content from almost 1 YEAR AGO that was breaching copyright from ANOTHER COMPANY and encourage Facebook to have the group take down yet again.
Not only is this sneaky, but this is likely to be DIRECTLY against Facebooks own ‘Terms of Service’.
And, it may even constitute ‘misleading and deceptive conduct’ under Section 18 of the Australian Consumer Law.
It became clear to us, that this was not something we could address from a position of meek compliance.
They had crossed a line, by potentially breaching Section 18 of the Australian Consumer Law and engaging in misleading and deceptive conduct.
This is when we decided to take a stand.
We will no longer accept being bullied and strong armed by a company that claims to support students and their wellbeing and yet is actively taking down one of the most valuable student resources for their own ego and self interest.
This MUST stop.
VCE DiscussionSpace has now implored this company to do the right thing by very students they claim to care for and help us restore the group.
What would this take from them?
A simple two-line email to Facebook requesting the group be restored.
At 8pm we wil be releasing the name of this company to the group.
You deserve to know who had the group taken down.
Please help us restore the group by showing your support for VCE DiscussionSpace below and discuss this in more detail in the new VCE DiscussionSpace group.
Join VCE DiscussionSpace
Find Out Who Took The Group Down
Quote of the Day
“Stand up for what you truly believe and defend it with a ferocity that people will fear you for” – Shanaka Jayakody
Over the next hour or so the second to fourth defendants published ‘teaser’ posts to VCEDS (Backup) about the identity of the external company mentioned in that email. The fourth defendant then posted the following:
The company that took down VCE DiscussionSpace has not decided to have the group restored.
The company that took down VCE DiscussionSpace is a company designed for the very purpose of ‘maximising students Year 11 and 12 scores’ and yet they seem to be actively working against this mission by taking down our group.
This company was TSFX.
We must reclaim the group that is rightfully ours.
We are pursuing TSFX via legal measures
This post was followed by a further post to VCEDS (Backup) of a poll suggesting a contest between it and TSFX:
***IT’S TIME***
WHO WILL WIN?
VCE
DiscussionSpace
TSFX
VCEDS was represented by a heart emoji and TSFX was represented by an angry face emoji.
That is where matters stood when the plaintiff applied for and obtained the interim relief set out in the opening paragraphs of these reasons.
Although the plaintiff has only filed a generally endorsed writ, a proposed statement of claim identified three causes of action. First, a contractual claim in which the plaintiff sought specific performance of certain of the 24 July undertakings in addition to injunctions and damages arising out of the circumstances of the copyright infringement and the undertakings given in settlement of that dispute. This claim included relief in respect of the two undertakings set out above at paragraph 13.
Secondly, the plaintiff contended that the email of 29 August 2018 posted to the Facebook group, together with the subsequent teaser posts in the following hour, published words of and concerning the plaintiff that in their natural and ordinary meaning meant and were understood to mean that the plaintiff was:
(a) sneaky;
(b) potentially engaging in conduct that was misleading or deceptive;
(c) a bully;
(d) engaging in strongarm tactics;
(e) falsely claiming to support students and their wellbeing; and
(f) driven by ego and improper self-interest.
The third cause of action alleged was malicious falsehood but is unnecessary to consider that cause of action for the purposes of the present application.
Further affidavits were filed for the return of the summons. Mr Murchie collated a series of posts to the VCEDS (Backup) Facebook group between 28 and 31 August 2018. Although these posts express a variety of views, it is significant many are derogatory or abusive of or towards the plaintiff and include posts by a poster identifying as ‘Shayden Ismat’. It is unclear whether this is a pseudonym. There was a post by Shayden Ismat:
So I called them at [number] and even the employees have no clue what’s going on … I say we continue the siege.
The personal Facebook page of one of the plaintiff’s employees was discovered and posted to with consequences that I will shortly describe. Other posts read:
· Fuck TSFX. They stuck their noses in our shit. You mess with the bull, you get the horns. And in this case, I’d say they messed with a pretty big fuckin bull.
· Then we just spam them will (sic) calls, emails etc for a few days, fuck up their business system One can also take down their website
· You guys should go to the TSFX page and change the tags from education and organisation to public toilet
· Ha I just googled it, the name isn’t there anymore but the main photo is of a toilet Good job
These posts were to a closed group of 11,000 members. They also referred to Google reviews of TFSX and discussed whether the posts could constitute defamation. Mr Murchie also identified Google reviews of TSFX in the period from 28 August to about noon on 4 September 2018, that is until shortly prior to the return of the summons, which were in many instances negative and abusive of it and which, it could be inferred, were not legitimate reviews of TSFX. The TSFX business was described in apparent Google material as a brothel and a public toilet. Apparent replicas of the TSFX website referred to the company ‘getting gangbanged by hundreds of students’. It is unnecessary, for present purposes, to set out further details of these posts which appeared on the VCEDS (Backup) Facebook group, the ‘I hate Camberwell High School’ Facebook group, Google reviews of the plaintiff’s business, the plaintiff’s Facebook page, in emails to the plaintiff and in the personal Facebook page of one of the plaintiff’s employees and his wife. What is evident is a real flavour of commercial harassment of the plaintiff through manipulation of the information about its business found on Google.
The plaintiff’s employee that I have mentioned swore an affidavit that a poster identified as ‘Shayden Ismat’, who was unknown to the deponent, posted a message in his Facebook feed ‘…what about your assault against the VCE DiscussionSpace’. That poster then sent a ‘friend request’ and a private message to the deponent, ‘Hey Matt! Why do you run’. Soon after, the deponent learned that his wife had also received a message from this same poster to her business page on Facebook seeking to book an appointment with her. This conduct has caused the deponent and his wife to minimise risk for themselves and their family by restricting access to their Facebook pages and removing publicly available personal information to avoid being further targeted on Facebook by that poster or others connected with the VCEDS.
It was unclear whether the defendants had the capacity to moderate comment appearing on the group page, but it was not in dispute that the group administrators, who were 2 of the defendants, have the capacity and power to remove material from the group page.
The applicable principles on this application are identified by the High Court in Australian Broadcasting Corporation v O’Neill.[1] They are summarised as follows:
[1](2006) 227 CLR 57, 68 [19] (Gleeson CJ and Crennan J), 81-87 [65]-[83] (Gummow and Heydon JJ) (‘O’Neill’); see also Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 216-218 [8]-[13] (Gleeson CJ); Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd [2015] VSCA 98 [108] (Kaye JA).
(a) The plaintiff must demonstrate a prima facie case. This requirement is to be understood as whether there is a serious question to be tried as to the plaintiff’s entitlement to relief, not whether it is more probably than not that the plaintiff will succeed at trial. The sense in which the test is understood is that the plaintiff must prove, prima facie, a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending trial. In context, it must show that it has a putative legal or equitable right in respect of which final relief is sought which will justify the restraint sought. The requisite strength of the probability of ultimate success depends on the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.
(b) The injury which the plaintiff is likely to suffer should interim relief not be granted must be one for which damages will not provide an adequate remedy.
(c) The balance of convenience must favour the granting of an injunction. The balance of convenience requires the consideration of the relevant matters favouring or militating against the granting of an injunction and will necessarily involve a consideration of the strength of the plaintiff’s claim assuming that a serious issue has been identified. In Victoria, this consideration is further clarified by the decision of the Court of Appeal in Bradto Pty Ltd v Victoria.[2] The court must, in determining whether to grant an interlocutory injunction, ‘take whichever course appears to carry the lower risk of injustice if it should turn out to have been “wrong”, in the sense of granting an injunction to a party who fails to establish his right at trial, or in failing to grant an injunction to a party who succeeds at trial’.[3]
(d) There may be other discretionary considerations which militate against the grant of an injunction.
[2](2006) 15 VR 65.
[3]Ibid 73 [35]; Magna Alloys and Research Pty Ltd v Coffey [1981] VR 23.
The defendants conceded, by their counsel, that for the purposes of this application there are serious questions to be tried in relation to the causes of action for contractual breach and defamation.
That concession limited the issues on the application to be whether, if interlocutory relief was not granted, damages would not be an adequate remedy and whether the balance of convenience favoured granting the injunctions. These considerations essentially informed the plaintiff’s entitlement to relief in the form sought by extending the interim relief until trial. However the further relief sought, essentially a ‘take-down’ injunction, was based upon the plaintiff’s prima facie entitlement to relief pursuant to the two undertakings in its contractual claim noted above at [13] that included an obligation to maintain confidentiality and its cause of action in defamation, in respect of which there was overlap.
It is well established that the court has power to grant an injunction before or at trial to restrain the publication of defamatory material.[4] It is accepted that in defamation cases the power to grant an interlocutory injunction ‘is exercised with great caution and only in very clear cases’, and will be refused if the publication is merely arguably defamatory, in recognition of the importance of free speech.[5]
[4]Bonnard v Perryman [1891] 2 CH 269; R v MacFarlane; ex parte O’Flanagan (1923) 32 CLR 518, 573 (Higgins J); O’Neill (2006) 227 CLR 57, 68 [19] (Gleeson CJ and Crennan J), 81 [65] (Gummow and Heydon JJ).
[5]Stocker v McElhinney [No 2] [1961] NSWR 1043, 1048, cited with approval in O’Neill (2006) 227 CLR 57, 66-68 [16]-[18] (Gleeson CJ and Crennan J); Duthie v Nixon (2015) 47 VR 355, 361-362 [20]; QBH Commercial Pty Ltd v Nine Network Australia Pty Ltd [2016] VSC 441.
The defendants contended that damages will be an adequate remedy but I am not persuaded by this submission. There are two responses. First, the fourth named defendant, who described himself as self-employed, has stated that the removal of the VCEDS Facebook group has resulted in Trendy Rhino losing its entire revenue stream of more than $50,000 per month in advertising fees. Three advertising partners were identified and the deponent stated that one of those organisations had formally terminated its sponsorship agreement with Trendy Rhino while the remaining advertising partners have ceased paying fees. It appears that Facebook policies do not allow material in respect of which there are unresolved concerns about copyright infringement. It has not been suggested that there is any prospect of reinstatement of the VCEDS Facebook group by appeal to Facebook in the immediate future. Trendy Rhino’s counsel accepted that its financial future looked bleak but pointed to the fact that the plaintiff had also sued three individuals as defendants. There was no evidence of the financial capacity of those individuals. On the balance of convenience, the prospect of recovery of any damages awarded is far from assured.
The second matter is that the defendants undertook an obligation of confidentiality in consideration of the plaintiff not proceeding to enforce its rights for copyright breach. The obligation of confidentiality was voluntarily entered into by the defendants. Although the email of 29 August 2018 referred to the defendants’ agreement to everything demanded by the plaintiff because they had no choice, that statement cannot be construed as a fundamental attack on the validity of the bargain. That contention has never been put by the defendants’ solicitors in correspondence between solicitors when the defendants challenged the enforceability of the undertakings on the basis of repudiation and termination. It must follow that the defendants had not given instructions to that effect.
Once it is accepted that an obligation of confidence was willingly given for valuable consideration, courts usually protect that obligation of confidence by injunction recognising the inadequacy of damages as a remedy for a breach of confidence. This is a strong consideration when evaluating where the lesser injustice will lie.
In the circumstances I am not persuaded that damages will be an adequate remedy.
Turning to the defamation claim, ordinarily, issues of whether a publication raises defamatory imputations and any questions of fact relevant to defences are pre-imminently questions for a jury. In defamation, the practice of courts is to only grant an interlocutory injunction where the judge is satisfied that the publications are plainly defamatory and that a jury verdict to the contrary would be set aside as unreasonable.[6]
[6]Stocker v McElhinney[No 2] [1961] NSWR 1043, 1048; Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344, 349; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153, 158.
The defendant contended that defences of qualified privilege and honest opinion could be taken and that it was not possible, at this early stage, to assess the extent to which such defences might come into play in the proceeding. Bearing in mind that the power to grant an interlocutory injunction in cases of defamation is exercised with great caution and only in very clear cases, there are reasonable grounds to anticipate that these defences do not enjoy reasonable prospects of success.
For the purposes of examining a possible defence of qualified privilege, I will accept that the defendant could prove that members of the Facebook groups have an interest or an apparent interest in having information on why the group had been closed by Facebook and that the matter relied on by the plaintiffs as a defamatory publication was published to those persons in the course of giving them information on that subject.
The insurmountable difficulty is that the defendants could not establish that in the circumstances their conduct in publishing the defamatory matter was reasonable. In making that assessment the court takes into account the matters set out in s 30(3) of the Act.
The plaintiff submitted that s 30(3)(h) was relevant because the email did not contain the substance of the plaintiff’s side of the story and no reasonable attempt was made by the defendants to obtain and publish a response from the plaintiff. For the reasons that I will develop when looking at the defence of honest opinion there is merit in this submission. Further, without attempting to prejudge the way a jury might approach the issue of reasonableness, if it was left to it, the prospect that the defendants may establish the occasion of publication of the email to be one of qualified privilege seems close to fanciful. Assessing the balance of convenience necessarily involves considering the strength of the defendants’ claim of qualified privilege. In my view the greater risk of injustice in the present circumstances lies in accepting that a defence of qualified privilege has a real prospect of success at trial.
The defence of honest opinion under s 31 of the Act has no greater prospect of success. That the opinions expressed related to a matter of public interest may be doubted but, more significantly, the defendant must establish that the opinions are based on proper material. This requirement is satisfied where the facts upon which the opinions are alleged to be based appear in the publication or are notorious. The court is only here concerned with the former requirement. The proper material on which opinions may be based, if not shown to be substantially true, must have been published on an occasion of privilege or have otherwise attracted a defence under s 28 or s 29 of the Act. The defendants face the difficulty that to the extent that proper material appears in the email it cannot be shown to be substantially true. So much is plain from the correspondence between solicitors that objectively states the way the dispute developed, its parameters, and the manner of its resolution.
In terms of assessing the prospect that the publication is merely arguably defamatory, I have not been persuaded that either of the foreshadowed defences has sufficient merit to sap the plaintiff’s claim of considerable strength. For the limited purpose of assessing the balance of convenience, the impugned material is plainly defamatory.
The plaintiff submitted that notwithstanding the interim relief granted last week the poison of the defamatory imputations has continued to be spat at the plaintiff in a manner that is an entirely predictable consequence of the defendants’ conduct. The plaintiff submitted that Trendy Rhino, who admits severe financial stress, continued to allow the Facebook group to be used to stimulate or encourage a response, akin to a grapevine response, from others to the significant detriment of the plaintiff. It submitted that the defendants ought to, consistent with the undertakings that they gave, self-sensor or self-monitor the Facebook group.
Further, and significantly, the continual posting by third parties of comments damaging to the plaintiff’s reputation has progressed to circumstances of harassment. The plaintiff submit that they will be entitled at trial to argue that it was entirely foreseeable, even intended, that vicious and abusive comment of the kind posted by Shayden Ismat for example would follow from the content and tenor of the defendants’ posts on the 29 August 2018.
The plaintiff submitted that the evidence clearly demonstrated a continuing course of comment flowing from the defendants’ conduct, even after the interim relief was granted by the court, that is causing damage to the plaintiff that could be alleviated by a suitable restraint. I am satisfied that the defendants’ conduct in maintaining the material they posted on 29 August 2018, having regard to the nature of that material, is fomenting and provoking conduct directed against the plaintiff that is likely to continue. In the context of my earlier observations concerning the adequacy of damages, continuing aggravation of the plaintiff also calls into question the adequacy of that remedy.
Although the traditional view of the common law emphasised the importance of free speech and is that damages are an adequate remedy in defamation, the cases show that in exceptional circumstances injunctive relief in defamation proceedings may be appropriate. Such circumstances may include:
(a) where a defendants’ persistence in making repeated defamatory publications has ‘the flavour of a vendetta’ against the plaintiffs;[7]
[7]RSPCA v Davies [2011] NSWSC 1445 [67]-[77]; Graham v Powell (No 4) [2014] NSWSC 1319 [45].
(b) where it is likely a defendant will in future publish similar allegations ‘despite having been afforded an opportunity to defend those allegations and despite those allegations having been found by a court of competent jurisdiction to be unwarranted’.[8] Perhaps because of ‘an irrational view of the truth of the allegations he makes’;[9]
(c) where a defendant has revealed ‘a disinclination to conform to anticipated findings of the court which may verge on disrespect for legal process’;[10] and/or
(d) where the vehemence of the language used by a defendant indicates that they will continue to defame the plaintiff unless restrained from so doing.
[8]Ibid.
[9]Higgins v Sinclair [2011] NSWSC 163 [246].
[10]Ibid.
In my view, publication that causes circumstances of harassment of a plaintiff by third parties as appears to have occurred here also constitutes exceptional circumstances that may warrant injunctive relief. Since the interim order was made and notwithstanding it, the defendants have persisted in maintaining the offending material on their Facebook group despite their original undertakings and despite attention being drawn in argument at the hearing of the interim application that a jury could conclude that the publisher could have reasonably anticipated at the time of publication that the presence of that material on Facebook would encourage a continuing abusive attack on the reputation of the plaintiff. Further, that it was reasonable to anticipate that response from group members is consistent with subsequent events. For that reason, I do not accept that the defendants can contend that they bear no responsibility for publication of those further posts that respond to their ‘call to arms’ to ‘reclaim the group that is rightfully ours’.
There is a prospect that some of this continuing attack is occurring by the use of pseudonyms, or anonymously, which deprives the plaintiff of the opportunity of redress against those directly responsible for the publication of such comments.
These considerations suggest that the plaintiff has good prospects of establishing exceptional circumstances that would warrant injunctive relief as a final remedy and such conduct is properly to be regarded as exceptional circumstances in the context of interlocutory injunctive relief for defamatory publication.
Taking all of these matters into account and bearing in mind that I must proceed with extreme caution, I am satisfied that granting the plaintiff injunctive relief, although not in the wide terms sought, is the course that appears to carry the lower risk of injustice if it should turn out to have been wrong.
Subject to the plaintiff continuing its undertaking as to damages until the trial of the proceeding, I will order that:
1. Until the trial of the proceeding or earlier order, the defendants, and each of them, by themselves, their servants, agents or howsoever, be restrained from publishing or further publishing derogatory, defamatory, unsavoury, untrue or unfavourable comments in relation the plaintiff or any person associated with it including, without limitation, in relation to or on the subject of the complaints against the first and second defendant set out in the letter from KCL Law to Charlie Franklyn dated 24 July 2018 and the plaintiff’s demands that the first and second defendants remove and cease making available the offending materials as defined in that letter and as undertaken by the terms of the nine undertakings recorded therein.
2. Until the trial of the proceeding or earlier order, the defendants, and each of them, by themselves, their servants, agents or howsoever, be restrained from:
(a) breaching confidence in the matters set out in the 24 July 2018 letter; and
(b) publishing or further publishing any statement concerning the matters set out in the said letter.
3. By 5 pm on 7 September 2018, the defendant shall take all reasonable steps to remove from the VCE DiscussionSpace Facebook group and the VCE DiscussionSpace (Backup) Facebook group–
(a) the post of Shanaka Jayakody on 29 August at 18.45 headed ‘***BREAKING: WHY DID VCE DISCUSSION SPACE GET TAKEN DOWN***’;
(b) the subsequent posts of Mr Jayakody, Mr Franklyn and Mr Fonseka on that day that anticipated the post by Mr Jayakody containing the ‘Who will win?’ material;
(c) any statement or publication that contains material that contravenes the undertakings described in orders 1 and 2.
Subject to any further submission from counsel, I will further order and direct that -
4. The plaintiff’s costs of and incidental to the application, including reserved costs, are reserved.
5. The plaintiff shall file and serve its statement of claim by 21 September 2018.
6. The defendants shall file and serve their defences and any counterclaim by 12 October 2018.
7. The plaintiff shall file and serve any reply and defence to counterclaim by 26 October 2018.
8. The proceeding is listed for further directions in the Major Torts List on 8 November 2018.
SCHEDULE OF PARTIES
S ECI 2018 01115
BETWEEN:
| THE SCHOOL OF EXCELLENCE PTY LTD (ACN 066 955 128) | Plaintiff |
| -and- | |
| TRENDY RHINO PTY LTD (ACN 623 293 952) | First Defendant |
| CHARLIE FRANKLYN | Second Defendant |
| HIMASHA FONSEKA | Third Defendant |
| SHANAKA JAYAKODY | Fourth Defendant |
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