Toll Transport Pty Ltd & Ors v Erikson
[2017] FCCA 3120
•7 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TOLL TRANSPORT PTY LTD & ORS v ERIKSON | [2017] FCCA 3120 |
| Catchwords: PRACTICE AND PROCEDURE – Application for relief on grounds that respondent committed tort of injurious falsehood by posting video footage on social media sites – held that the Court has associated jurisdiction to deal with the claims in tort under s.18 of the FCC Act – held satisfied that applicants established prima facie case that respondent committed tort of injurious falsehood and that balance of convenience favoured issuing interlocutory orders restraining respondent from engaging in specified conduct – interlocutory injunction made under s.18 of FCC Act restraining respondent from engaging in specified conduct. |
| Legislation: Fair Work Act 2009 (Cth), ss.50, 545 Federal Circuit Court Act 1999 (Cth), ss.15, 18 |
| Cases cited: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 Radio 2UE Sydney Pty Ltd v Ray Chesterton (2009) 238 CLR 460 ReGroup Pty Ltd v Kazal [2016] FCA 1485 |
| First Applicant: | TOLL TRANSPORT PTY LTD (ACN 006 604 191) |
| Second Applicant: | TOLL PERSONNEL PTY LTD (ACN 110 880 503) |
| Third Applicant: | TOLL HOLDINGS LTD (ACN 006 592 089) |
| Respondent: | NEIL LUKE ERIKSON |
| File Number: | MLG 2651 of 2017 |
| Judgment of: | Judge Jones |
| Hearing date: | 7 December 2017 |
| Date of Last Submission: | 7 December 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 7 December 2017 |
REPRESENTATION
| Counsel for the Applicants: | Mr Garrett |
| Solicitors for the Applicants: | Herbert Smith Freehills |
| There being no appearance by or on behalf of the Respondent. |
ORDERS
The proceedings are adjourned for directions on 18 December 2017 at 9.30am.
Leave be granted to the Applicants to file the affidavit of Anthony Andrew Keir Wood affirmed on 7 December 2017.
Pursuant to r.6.14 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”), leave is granted to the Applicants to serve the Respondent the Applicant’s Application, Statement of Claim, Genuine Steps Statement and Affidavit of Anthony Joseph Abraham filed on 6 December 2017 by email to the following two email addresses: [omitted].
Pursuant to r.1.06 of the FCC Rules, r.6.19 of the FCC Rules is dispensed with.
Pursuant to s.545(2)(a) of the Fair Work Act 2009 (Cth), the Respondent return to the Applicants at the offices of its lawyers located at level 43, 101 Collins Street Melbourne in the State of Victoria, uniforms of the Applicants’ and all other property of the Applicants’ within the Respondent’s possession or control, including but not limited to:
(a)1 claret coloured flinders boot;
(b)3 orange/green coloured polo tops with Toll branding;
(c)2 orange/green coloured shirts with Toll branding;
(d)1 orange/green coloured fleece tops with Toll branding;
(e)3 grey coloured drill cargo with Toll branding;
(f)1 grey coloured cap with Toll branding;
(g)1 grey coloured beanie with Toll branding;
(h)1 grey coloured wide-brim hat with Toll branding;
(i)1 orange/green coloured high visibility jacket with Toll branding;
(j)1 grey coloured drill cargo with Toll branding; and
(k)1 black coloured men’s belt with Toll branding.
Order 5 herein shall be complied with by no later than 14 December 2017.
Until the final determination of these proceedings and upon the usual undertakings as to damages given by the Applicants, the Respondent by himself, his employees, servants or agents be and are hereby restrained from:
(a)publishing on any media, electronic or otherwise, copies of videos listed in Schedule A to this Order;
(b)publishing any video or photograph on any media, electronic or otherwise, which identifies or has the effect of identifying any person who is not an employee of any of the Applicants, as an employee of any of the Applicants, whether by way of a uniform, or branding, or other livery of the Applicants or by direct statements that he or she is an employee of the Applicants; and
(c)publishing any video or statement on any media, electronic or otherwise, which refers to, directly or indirectly, the termination of his employment or the termination of another employee’s employment by any of the Applicants.
The Applicants forthwith serve on the Respondent a copy of today’s Order by email to the following email addresses: [omitted].
Any further documents are to be served on the Respondent by email to the following two email addresses: [omitted].
AND THE COURT NOTES THE FOLLOWING ENDORSEMENT:
A.The Respondent will be liable to imprisonment, sequestration of property and punishment for contempt if:
(a)the Respondent fails to comply with Orders 5 and 6 herein, or neglects or refuses to comply with Orders 5 and 6 herein; or
(b)the Respondent fails to comply with Order 7 or disobeys Order 7.
SCHEDULE A
A video posted on the Respondent’s Facebook page on or about 21 May 2015 in which he appeared in Toll Uniform.
A video posted on the Respondent’s Facebook page on or about 26 June 2015 in which he appeared in Toll Uniform, and expressed the view that Muslims in France were “beheading people” that accordingly France was in “lock down”.
A video posted on the Facebook page of the “United Patriots Front” on or about February 2016, in which he appeared in Toll Uniform, and criticised Toll, asserting that it had terminated his employment without justification.
A video posted on his Facebook page on or about 29 May 2017 in which the Respondent appeared in Toll uniform, played the voice recording of an officer of the Second Applicant terminating his employment, said that his employment was terminated in circumstances where he had not breached any term of the second employment agreement, said that Toll was persecuting him, and called for a boycott of Toll.
A video posted on the Respondent’s Facebook page, and on the “Vote No Australia” Facebook page on or about 19 August 2017 in which the Respondent appeared in Toll uniform, and made a series of statements opposing the legalisation of same sex marriage.
Footage that the Respondent had filmed of Senator Sam Dastyari and posted on the Facebook page of an organization called “Patriotic Blue” on or about 3 November 2017.
A video posted on the Respondent’s Facebook page on or about 18 November 2017, in which he asserted that Toll terminated Mr Scott Moerland’s employment without justification, asserted that Toll is a racist workplace that treats Indian people “like second class citizens” and asserted that Toll provided “a toilet for the white workers and a toilet for the brown workers.”
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2651 of 2017
| TOLL TRANSPORT PTY LTD (ACN 006 604 191) |
First Applicant
| TOLL PERSONNEL PTY LTD (ACN 110 880 503) |
Second Applicant
| TOLL HOLDINGS LTD (ACN 006 592 089) |
Third Applicant
And
| NEIL LUKE ERIKSON |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
On 6 December 2017, the Applicants filed an Application in the Fair Work Division of this Court, a Statement of Claim and an affidavit sworn by Anthony Joseph Abraham. At the hearing, leave was granted for the Applicants to file the affidavit of Mr Anthony Andrew Keir Wood (“Mr Wood”) affirmed on 7 December 2017.
This decision concerns the application for interlocutory orders in the nature of injunctions directed to the Respondent. For reasons which will become clear, this matter has been dealt with by the Court on an urgent basis.
The Applicants seek the following interim orders in its Initiating Application:
…
2. An interlocutory order injunction pursuant to s.545(2)(a) of the Fair Work Act, and at law, that within 7 days of the order, the Respondent deliver to the Applicant at the offices of its lawyers at Level 43, 101 Collins Street Melbourne, all ‘Toll Uniforms’ and other property of the Applicants as defined in the statement of claim.
3. An interlocutory order that, until the final determination of this proceeding or earlier further order, the Respondent, by himself, servants or agents, be restrained from publishing any of the ‘Injurious Falsehoods’ as defined in the Applicants’ statement of claims, or any representation substantially similar thereto.
During the hearing of the interlocutory application on 7 December 2017, five videos were produced by the Applicants, and, with leave of the Court, were played to the Court. The footage in each video showed the Respondent, and in one of the videos, an associate of the Respondent, Mr Ricky Turner. The dates of the videos are on or around 5 October 2015, 19 August 2017, 9 November 2017, 19 November 2017 and 23 November 2017.
The Applicants also tendered as an exhibit a copy of the front page of the Herald Sun newspaper dated 5 December 2017 (“Exhibit A”), which includes a photograph showing Mr Turner wearing a Toll uniform.
Application for substituted service
The Respondent has not attended today at the hearing of these proceedings. The Respondent has not been called outside the Court. However, having regard to an affidavit affirmed by Mr Wood, I am satisfied that the Respondent is aware of the date and time of this hearing and has decided not to attend.
I am satisfied that the Respondent knew about this hearing and has decided not to attend because, included in the annexure to Mr Wood’s affidavit, there is an email dated 6 December 2017 sent from Mr Wood (who is a partner of the Applicants’ legal representative) to the two email addresses which are said to be the email addresses of the Respondent. The email addresses are: [omitted] (“the Gmail address”) and [omitted] (“the Respondent’s neil.com address”). The email is titled “URGENT: Federal Circuit Court hearing tomorrow – 2.15pm, Thursday 7 December: Toll and Neil Erikson.” [1] In that email, Mr Wood says the following:
[1] Affidavit of Anthony Andrew Keir Wood filed on 7 December 2017, Annexure AW:1, 85.
Dear Mr Erikson,
We act for Toll Transport Limited, Toll Personnel Limited and Toll Holdings Limited.
We attach, by way of service, an application, statement of claim and genuine steps statement filed on behalf of our clients at the Federal Circuit Court.
This matter has [sic] listed for an interlocutory hearing before Judge Jones at 2.15pm tomorrow, Thursday 7 December 2017, and therefore requires your urgent attention.
(Emphasis in original)
There is then a further email from Mr Wood sent to the Respondent a few hours later, attaching the Statement of Claim which had been inadvertently omitted in the previous email. [2]
[2] Ibid Annexure AW:1, 84.
The Respondent responded to Mr Wood’s email from his Gmail address today, at approximately 1am. The email is headed “WITHOUT PREJUDICE”. This reference to “without prejudice” is not to be understood in the usual way it is used in correspondence between parties to litigation, because it does not include an offer of compromise or offer of settlement. The Respondent says in this email: [3]
[3] Ibid.
Dear Anthony,
I am writing to advice [sic] I will not be in attendance at court as I have had insufficient notice to consult legal advice.
Thank You.
Furthermore, the Respondent has been on notice that the Applicants may well initiate legal proceedings. I am satisfied of this, having regard to a letter of demand dated 9 November 2017 from Mr Wood to the Respondent, sent by email to the Respondent’s Gmail address, demanding the immediate return of Toll uniforms in the Respondent’s possession.[4]
[4] Affidavit of Anthony Joseph Abraham filed on 6 December 2017, Annexure AA:1, 450-451.
There is a response to Mr Wood’s email dated 10 November 2017 from the Respondent’s neil.com address, in which the Respondent says: [5]
[5] Ibid Annexure AA:1, 452.
Good Morning Anthony, I will be returning the TOLL uniform as soon as possible and apologise for the media attention involving the company.
I never uploaded the footage of the uniform, Senator Sam Dystyari [sic] did. I was behind the camera in my footage.
I made an effort to inform the media that I no longer worked for TOLL at 8.40AM 9/11/17 on Neil Mitchells 3aw [sic] program and also through other Media Outlets.
I have removed any and all other references to TOLL from the social media that is under my control and will in future not wear or even mention anything related to TOLL to avoid possible Legal Action in the future.
This is not an admission of guilt but a good gesture to TOLL.
It will become apparent that, notwithstanding this undertaking provided by the Respondent, he has continued to engage in the conduct that the Respondent complained of, and further, failed to return the Toll uniform and property that the Applicants had demanded that he return, in accordance with the Respondent’s obligation under two enterprise agreements.
Mr Anthony Joseph Abraham (“Mr Abraham”) (employed by the Third Applicant as the Group General Manager, Compliance and Security) deposes that, notwithstanding their best efforts, the Applicants unsuccessfully attempted to effect service on the Respondent of their Initiating Application, Statement of Claim and Genuine Steps Statement by personal delivery to the only residential addresses on their records.[6] Mr Abraham deposes that service by email was therefore the only option available to the Applicants.
[6] Ibid at [43], [66]-[69].
The Applicants seek an order for substituted service, permitting the Applicants to serve any documents filed in these proceedings on the Respondent to his two email addresses.
I am satisfied that the Court should make an order for substituted service in the terms that the Applicants seek.
I am also satisfied that I should proceed to hear the Applicants’ Application in the absence of the Respondent.
Application for short service
The second issue that I must address is the time period for service under the Court’s rules. Rule 6.19 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) provides as follows:
Unless the Court orders otherwise, an application and any document filed with it may not be served:
(a) less than 3 days before the day fixed for the hearing of an application in a case; or
(b) less than 7 days before the day fixed for the hearing of any other application.
The Applicants served the Respondent yesterday, which is clearly less than the required three day time period. However, in the circumstances (which are dealt with later in this decision), I am satisfied that I should make an order dispensing with r.6.19 of the FCC Rules.
Background
The First and Second Applicants are wholly owned subsidiary companies of the Third Applicant (collectively referred to herein as “Toll”).
The Respondent was employed by Toll for two separate periods of time:
a)6 September 2011 to 3 March 2014 at the First Applicant’s site in Cambellfield, Victoria (“the first period of employment”); and
b)8 May 2017 to 24 May 2017 at the Second Applicant’s site in Burnie, Tasmania (“the second period of employment”).
The circumstances under which the Respondent was employed and his employment terminated are set out as follows in the Applicant’s Statement of Claim (at [5]-[9], [15]-[16], [18]-[23], [27]-[28]):
5. On about 11 September 2012, Toll Transport and [the Respondent] agreed that [the Respondent’s] employment under the First Employment Agreement would be on a full-time basis rather than a casual basis.
[The Respondent’s] First Criminal Conviction
6. On 12 February 2014, and while an employee of Toll Transport, [the Respondent]:
a) pleaded guilty in the Melbourne Magistrates Court and was convicted under section 21A of the Crimes Act 1958 (Vic) of the offence of having stalked Rabbi David Gutnick during the period 4 December 2012 to 26 January 2013;
b) received a Community Correction Order for a period of 12-months commencing that day, which required [the Respondent] to complete 150 hours of community work; and
c) was required pursuant to section 48D(3)(F) of the Sentencing Act 1991 (Vic), to undergo an Offender Behaviour Program, being Forensicare’s Problem Behaviour Program.
Particulars
A copy of the Magistrates Court ‘Notice of Order Made’ against [the Respondent] is in the possession of Toll’s solicitors and may be inspected by appointment.
7. [The Respondent] did not disclose the charge or conviction to Toll Transport, and Toll did not become aware that [the Respondent] had been charged or convicted until late May 2015, after [the Respondent] posted the 21 May 2015 Video referred to in paragraph 12 below.[7]
[7] The contents of [12] of the Applicants’ Statement of Claim are set out in Annexure A to this decision.
Termination of the First Employment Agreement for non-attendance
8. For a period of approximately three weeks commencing on or around the date of the conviction referred to above, [the Respondent] failed to attend work when required to do so, failed to communicate with Toll Transport, and failed to respond Toll Transport's attempts to communicate with him.
9. On 3 March 2014, in light of [the Respondent’s] failure to attend work, Toll Transport terminated the First Employment Agreement.
…
Charges leading to [the Respondent’s] Second Criminal Conviction
15. On 4 October 2015, [the Respondent] and two other men participated in a ‘mock decapitation’ on the steps of the Council Offices of the City of Greater Bendigo (the Bendigo Incident), in which they:
a) stated that they opposed a proposal to construct a mosque in Bendigo;
b) purported to dress and speak as members of the Islamic faith;
c) placed an effigy on the ground and decapitated it while stating ‘Allahu Akbar’; and
d) released imitation blood from the neck of the effigy.
16. In about December 2016, [the Respondent] was charged with offences arising from the Bendigo Incident, including the offence under section 25(2) of the Racial and Religious Tolerance Act 2001 (Vic) of inciting serious contempt, revulsion or ridicule of a class of persons on the ground of their religious belief.
…
[The Respondent’s] application for further employment with Toll
18. By letter dated 19 April 2017 enclosing a resume, [the Respondent] applied to Toll Personnel for employment as a Heavy Forklift/Machine Operator at its site in Burnie, Tasmania.
Particulars
Copies of the application letter and resume are in the possession of Toll’s solicitors and may be inspected by appointment.
19. [The Respondent’s] application letter and resume falsely stated that [the Respondent] had worked in the ‘Toll Auto Logistics’ Division of Toll Transport between 2012 and 2017.
20. Shortly after 19 April 2017, Scott Moerland, who at that time was a Team Leader I Foreman employed by Toll Auto Logistics, provided a reference for [the Respondent] in which he falsely stated that [the Respondent]:
a) had worked for Toll Auto Logistics from March 2012 to February 2017;
b) had provided one months’ notice at the end of his period of employment; and
c) as an employee, was “reliable and always on time.”
Particulars
A copy of the ‘Reference Check Form’ recording Mr Moerland’s reference is in the possession of Toll’s solicitors and may be inspected by appointment.
21. On about 1 May 2017, [the Respondent] completed, signed and submitted to Toll Personnel a ‘Pre-employment Police Check Disclosure Form’, in which he falsely stated:
a) that he had never been interviewed by Police in relation to any matter;
b) that he had never attended Court as a defendant;
c) that he was not the subject of any criminal charges pending before a Court; and
d) that he not been found guilty or convicted of an offence as an adult within the previous 10 years.
Particulars
A copy of the ‘Pre-employment Police Check Disclosure Form’ is in the possession of Toll’s solicitors and may be inspected by appointment. The statements therein were false given [the Respondent’s] conviction on 12 February 2014 referred to in paragraph 6 above, and given that [the Respondent] had been charged in around December 2016 as referred to in paragraph 16 above.
22. On about 1 May 2017, [the Respondent] completed, signed and submitted to Toll Personnel an ‘Acceptance of Policies, Conditions and Guidelines Form’, in which [the Respondent]:
a) acknowledged receipt of copies of the Toll policies, guidelines and conditions referred to in that Form, which included the:
i. Toll Group Social Media Policy (the Social Media Policy); and
ii. Toll People Terms and Conditions (the Terms and Conditions);
b) stated that he understood and agreed to abide by the entirety of each of the policies, guidelines and conditions listed in that Form.
Particulars
Copies of the Form and of the documents listed in it, including the Social Media Policy, and the Terms and Conditions, are in the possession of Toll’s solicitors and may be inspected by appointment.
The Second Employment Agreement
23. On about 1 May 2017, in reliance on the documents referred to in paragraphs 20 to 22 above, Toll Personnel agreed to employ [the Respondent] on a casual basis as a Heavy Forklift Operator at its site in Burnie, Tasmania (the Second Employment Agreement).
Particulars
The Second Employment Agreement was in writing, and was constituted by the following documents, copies of which are in the possession of the Applicants’ solicitors and may be inspected by appointment:
a) the ‘Toll Group - TWU Enterprise Agreement 2013-2017’ (the Second Enterprise Agreement); and
b) the documents listed in the ‘Acceptance of Policies, Conditions and Guidelines Form’, including the Terms and Conditions, and the Social Media Policy.
…
[The Respondent] posts a video of the Bendigo Incident
27. On 23 May 2017, [the Respondent] appeared in the Melbourne Magistrates’ Court for a mention hearing in relation to the charges arising from the Bendigo Incident.
28. On 24 May 2017:
a) [the Respondent] posted a video on the Facebook page of ‘United Patriots Front’, referring to the Bendigo Incident; and
b) Toll Personnel became aware that [the Respondent] had posted that video on his Facebook page;
c) Toll Personnel thereby became aware that [the Respondent] had made the false statements as to his criminal record referred to in paragraph 21 above; and
d) an appropriate officer of Toll Personnel informed [the Respondent] orally that his employment was terminated.
Particulars
The United Patriot’s Front Facebook is no longer accessible. A copy of a newspaper article referencing the posts on the United Patriot’s Front Facebook page is in the possession of Toll’s solicitors and may be inspected by appointment.
(Emphasis in original, footnote 7 added)
Relevantly, the Applicants have set out in their Statement of Claim the circumstances under which the employment of Mr Scott Moerland (“Mr Moerland”) was terminated by the Applicants:[8]
20. Shortly after 19 April 2017, Scott Moerland, who at that time was a Team Leader/Foreman employed by Toll Auto Logistics, provided a reference for [the Respondent] in which he falsely stated that [the Respondent]:
a) had worked for Toll Auto Logistics from March 2012 to February 2017;
b) had provided one months’ notice at the end of his period of employment; and
c) as an employee, was ‘reliable and always on time.’
Particulars
A copy of the ‘Reference Check Form’ recording Mr Moerland’s reference is in the possession of Toll’s solicitors and may be inspected by appointment.
[8] The Applicants’ Statement of Claim filed on 6 December 2017 at [20], [41].
…
41. On about 16 November 2017, Toll Transport terminated the employment of Mr Moerland having regard to the false statements made by him providing the reference for [the Respondent] as referred to in paragraph 20 above.
In their Statement of Claim, the Applicants plead that the Respondent has breached s.50 of the Fair Work Act 2009 (Cth) (“the Fair Work Act”) which provides that “a person must not contravene a term of an enterprise agreement.” It is alleged by the Applicants that the Respondent has breached two separate enterprise agreements, which applied to both his first and second periods of employment.
The enterprise agreements that the Respondent is said to have breached are “Toll Group and Transport Workers Union Fair Work Agreement 2011-2013” (“the first enterprise agreement”) and the “Toll Group - TWU Enterprise Agreement 2013-2017” (“the second enterprise agreement”).[9]
[9] Copies of these enterprise agreements are contained in Exhibit AA:1 to the Affidavit of Anthony Joseph Abraham filed on 6 December 2017, 17-116, 201-290.
It is pertinent to note that the Applicants plead breaches of various clauses of the enterprise agreements, but for the purpose of today’s hearing and decision, the relevant clauses are cls.30(g) and 25.3 of the first enterprise agreement, which respectively require an employee on termination of employment to return Toll uniforms and Toll property to the Applicants. Likewise, the Applicants plead that the Respondent breached the relevant clauses of the second enterprise agreement are cls.37(g) and 24.3, which respectively require an employee, upon termination, to return Toll uniform and Toll property to the Applicants.
In accordance with both the first and second enterprise agreements, the Applicants plead that it provided Toll uniforms and property to the Respondent.
The Applicants plead that the Respondent, despite demands that he do so and assurances that he will do so, has not returned the Toll uniform and property that he has in his possession. Mr Abraham set out the uniform and property that the Respondent was provided with by the Applicants in a table in his affidavit.[10]
[10] Affidavit of Anthony Joseph Abraham filed on 6 December 2017 at [9].
The Applicants’ first claim in its Statement of Claim is that the Respondent breached s.50 of the Fair Work Act because he has breached, and continues to breach, the first and second enterprise agreements. Note 1 to s.50 of the Fair Work Act states that the section is a civil remedy provision.
The Applicants make a further claim in detinue, based on the same substratum of facts that underlie the claim of a breach of the first and second enterprise agreements.
The Applicants also include, in its Statement of Claim, a further common law claim against the Respondent, based on the tort of injurious falsehood. The Applicants set out the incidents which it describes as an “injurious falsehood claim”. The dates on which the injurious falsehood are said to have occurred, the description of the injurious falsehood claim, and relevant particulars pleaded in the Statement of Claim are set out in a table attached to this decision for convenience (“Annexure A”).
It is appropriate to refer to extracts from the affidavit of Mr Abraham in relation to these incidents which are said to be injurious falsehoods. Mr Abraham relevantly deposes:[11]
[11] Ibid at [12], [38].
12. [The Respondent] has had several unrestricted Facebook pages in recent years, which means that any member of the public can view the videos, printed messages, web links and other material that he posts on that site. [The Respondent’s] most recent Facebook page is accessible at [omitted].
…
38. I have ascertained, from canvassing publicly accessible website and social media platforms that [the Respondent] started his far-right wing activism in the neo-Nazi movement during 1990 at the age of 16. He left during 2012 and became a member of the UPF, a violent extremist right wing party. More recently [the Respondent] has formed his own group, ‘UPF Originals’. [The Respondent] also runs a YouTube Channel called ‘NRG Prop’ and publishes videos and articles about topics including ‘Nationalist Uprising’ and ‘Reclaim Australia’. Other associates of [the Respondent] on the website include Scott Moerland, who had made false statement on 3 May 2017 when providing a reference for [the Respondent], and who is described on the website as an “expert on Islam”. A copy of an email documenting my search result and resources is at pages 297 of Exhibit AA:1.
In relation to the incident on 21 May 2015 (also see Annexure A to this decision), Mr Abraham deposes:[12]
13. I am informed by Jaime Ruscoe (Toll’s Group Security Manager) (Mr Ruscoe) and believe that on or around 21 May 2015, [the Respondent] posted a video of himself on his Facebook page, espousing white supremacist views while dressed in a Toll-branded t-shirt (the 21 May 2015 Video). The video link is no longer accessible, however screen shots from the Facebook page appear at pages 117 of Exhibit AA: 1. The screen shots include an image of [the Respondent] in a Toll uniform making extremist comments about a range of people and issues. [The Respondent] was not a Toll employee at that time, his employment having been terminated on 21 May 2014.
14. I am informed by Mr Ruscoe and believe that on or around 21 May 2015, Toll Group received a series of complaints to a customer contact centre about videos being posted online by [the Respondent] wearing Toll uniforms.
15. I am informed by Mr Ruscoe and believe that on or around 21 May 2015, Toll sent a “cease and desist” letter to [the Respondent] requesting that he return the Toll uniforms that had been provided to him during his period of employment (May 2015 Letter).
16. I am informed by Jeremy Lewison (Toll’s Group Manager, Online Presence) that on 21 May 2015 he contacted Facebook and requested that the 21 May 2015 Video be removed; and that Facebook did not remove it at that time. Copies of Mr Lewison’s emails with Facebook in relation to that issue appear at pages 121 of Exhibit AA: 1.
(Formatting omitted)
[12] Ibid at [13]-[16].
In relation to the incident on 29 June 2015, Mr Abraham deposes:[13]
20. On 29 June 2015, I received an email from Mr Ruscoe alerting to me to a video of [the Respondent] posted on the ‘United Patriots Front’ Facebook account (the June 2015 Video). The video link is no longer accessible as the United Patriots Front Facebook account has been shut down, however the email attaching the screen shots from the Facebook page appear at pages 130 of Exhibit AA: 1.
21. At the time of receiving the email, I viewed the June 2015 Video. In the June 2015 Video, [the Respondent] made assertions about the conduct of Muslims in France, stating that France was in lock down and that Muslims in France were beheading people at the time of posting. In the June 2015 Video, [the Respondent] was wearing a high visibility Toll branded work jacket, with the Toll logo clearly visible. [the Respondent] was not a Toll employee at the time of posting the June 2015 Video.
(Formatting omitted)
[13] Ibid at [20]-[21].
In relation to the February 2016 incident, Mr Abraham deposes:[14]
22. On 15 February 2016, Shannon Gill (Toll’s Group Media and Communications Manager) informed me and I believe that Toll received a number of complaints at about that time after [the Respondent] posted a further video of himself on Facebook dressed in a Toll shirt and making reference to Toll sacking him (the February 2016 Video). In the video, [the Respondent] criticises Toll for having terminated his employment. A copy of that email appears at pages 134 of Exhibit AA:1. [The Respondent] was not a Toll employee at the time of posting the February 2016 Video.
(Formatting omitted)
[14] Ibid at [22].
In relation to the 29 May 2017 incident, Mr Abraham deposes:[15]
39. On or around 29 May 2017, [the Respondent] posted a video of himself on his Facebook page, dressed in a Toll-branded t-shirt, in which he played a voice recording of the discussion in which the manager had stood him down (the 29 May 2017 Video). In the 29 May 2017 Video, among other things [the Respondent]:
a) alleges that his employment at Toll had been terminated because he had been charged for offending Muslims;
b) names the person he asserts was responsible for firing him;
c) claims he was being persecuted for his behaviour outside of the workplace, and that he had been a good worker and had broken no rules; and
d) calls for a boycott of Toll.
(Formatting omitted)
[15] Ibid at [39].
In relation to the 19 August 2017 incident, Mr Abraham deposes:[16]
[16] Ibid at [41]-[42].
41. On 19 August 2017, [the Respondent] posted a video of himself on Facebook, campaigning against same sex marriage while dressed in a Toll shirt (the 19 August 2017 Video). [The Respondent] was not a Toll employee at that time. In the 19 August 2017 Video, [the Respondent] makes a series of statements inconsistent with Toll Group’s values including:
a) that legalising same sex marriage will lead to polygamy;
b) that legalising same sex marriage will lead to teaching children a highly sexualised curriculum under Safe Schools;
c) that the same sex marriage campaign is a Marxist agenda attempting to destroy the family unit; and
d) that gay people despise the Catholic Church.
[The Respondent] posted a link to the 19 August 2017 Video on the Facebook page of “Vote No Australia”. A copy of the screen shot of that Facebook page showing the link, is at pages 463 of Exhibit AA: 1.
42. During August 2017, Toll received at least 19 complaints from the general public regarding the 19 August 2017 Video. [The Respondent] was not a Toll employee at the time of posting the video.
(Formatting omitted)
Mr Abraham relevantly describes both the incident that occurred on
9 November 2017, and the subsequent complaints received by Toll in relation to the incident:[17]
[17] Ibid at [44]-[48].
44. On 9 November 2017, [the Respondent] appeared in video footage released by numerous media sources wearing a Toll uniform, and repeatedly calling Senator Sam Dastyari a “terrorist” in a public area (Dastyari Footage). The Dastyari Footage was filmed by a member of Senator Dastyari's party and posted to Twitter by the Senator. [The Respondent] filmed his own footage of the incident which was initially posted to the ‘Patriot Blue’ Facebook page, an organisation which [the Respondent] claims to be affiliated with. Both videos of the incident featured prominently on a wide variety of mainstream and social media outlets. A copy media alerts in relation to the issue appear at pages 301 of Exhibit AA:1.
45. In the Dastyari Footage, Senator Dastyari’s dining companion can be heard:
a) commenting on the fact that [the Respondent] is wearing a Toll uniform;
b) querying whether [the Respondent’s] actions are sanctioned by Toll;
c) saying that whilst [the Respondent] is wearing a uniform he is representing his employer; and
d) asking the men who accompanied [the Respondent] whether they also work for Toll.
Impact of [the Respondent’s ] conduct on Toll’s business
46. On around 9 November 2017, Toll received numerous complaints in relation to the Dastyari Footage via a number of communication channels including Twitter, Facebook and the Toll Website. Copies of these comments have been collated by Toll and appear at pages 382 of Exhibit AA: 1. Approximately 256 separate complaints about the Dastyari footage were received via our website feedback form alone. One complainant wrote to Toll’s Managing Director personally via email on 10 November 2017. I have reviewed a large number of these complaints and the consistent theme is disgust with Toll for appearing to endorse the extremist views of [the Respondent], questions about Toll’s ethics and integrity, and statements by numerous complainants to the effect that they “will never use Toll again.” A table recording the contents of 256 complaints appears at pages 330 of Exhibit AA: 1, and copies of 5 complaints appear at pages 373 of Exhibit AA: 1.
47. Additionally, on 9 November 2017, Toll received 30 media inquiries from across the print, online, broadcast TV and radio, and 35 inquiries from the public directly through our main switchboard and contact centres. There were 700 pieces of coverage about the incident by the close of business the following day to the incident being broadcast. A summary of media reports was produced by the Group Communications division on 10 November 2017, a copy of which is at pages 431 of Exhibit AA:1
48. [The Respondent’s] conduct has had a material impact on Toll’s business and revenue, as evidenced in these complaints. In particular, the number of complainants who say “will never use Toll again.” indicates that Toll has lost revenue as a result of [the Respondent’s] conduct.
The Court’s associated jurisdiction
In relation to the Applicants’ claim in detinue and claim of the tort of injurious falsehood, it is well-settled that this court may deal with common law causes of action under its associated jurisdiction pursuant to s.18 of the Federal Circuit Court Act 1999 (Cth) (“the FCC Act”). Section 18 of the FCC Act provides:
Jurisdiction in associated matters
To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit Court of Australia in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit Court of Australia is invoked.
This Court’s jurisdiction is clearly invoked via the Applicants’ claim under s.50 of the Fair Work Act.
The key question in determining whether the Court’s associated jurisdiction under s.18 of the FCC Act is invoked can be appropriately summarised as whether the associated matters fall within the substratum of facts underlying the controversy before the Court of which the Court is seized of jurisdiction; in these proceedings, the Fair Work Act: see Re Wakim; Ex parte McNally (1999) 198 CLR 511 per Gummow and Hayne JJ at [139]-[141]; Macteldir Pty Ltd v Dimovski [2005] FCA 1528 per Allsop J (as his Honour then was) at [67]-[70] in relation to s.32 of the Federal Court of Australia Act 1976 (Cth), which was then in similar terms to the current s.18 of the FCC Act.
I am satisfied that when one has regard to the incidents summarised as “injurious falsehoods”, the description of those incidents and, in particular, the wearing of Toll uniforms by the Respondent, the claims of the tort of injurious falsehood and claim in detinue fall within what can be described as “associated matters” under s.18 of the FCC Act.
None of the incidents identified under the heading “Injurious Falsehood Claims” in Toll’s Statement of Claim fall during periods of the Respondent’s employment with Toll.
Save for one incident (which occurred on 18 November 2017), the characteristic that links each of these incidents (setting aside any statements that the Respondent made), is that the Respondent appeared in the videos posted on various electronic/social media wearing a uniform provided by the Applicants, with Toll’s branding. The Applicants argue that in these videos the Respondent represented to those viewing the videos that he was a Toll employee when in fact he was not a Toll employee and was required, under the relevant statutory instruments, to have returned to Toll any Toll uniforms and property in his possession. In these circumstances, I am satisfied that these incidents are associated with the matters within the Court’s jurisdiction.
The footage of the incident which occurred on 18 November 2017 arises out of the circumstances in which the Respondent was terminated on 24 May 2017, and in my opinion, can be said to be associated with matters in which the jurisdiction of this Court has been invoked under the Fair Work Act.
Application for injunctions
Statutory basis
The power of this Court to make the interlocutory orders sough arises from s.15 of the FCC Act, rr.16.01 and 16.06 of the FCC Rules, and s.545(2) of the Fair Work Act.
Section 15 of the FCC Act provides:
Making of orders and issue of writs
The Federal Circuit Court of Australia has power, in relation to matters in which it has jurisdiction, to:
(a) make orders of such kinds, including interlocutory orders, as the Federal Circuit Court of Australia thinks appropriate; and
(b) issue, or direct the issue of, writs of such kinds as the Federal Circuit Court of Australia thinks appropriate.
Rules 16.01 and 16.06 of the FCC Rules provide, respectively:
16.01 Court may make any judgment or order
The Court may, at any stage in a proceeding on the application of a party, give any judgment or make any order even if the claim was not made in an originating process.
16.06 Undertakings
Unless the Court otherwise orders, an undertaking to the Court has the same force and effect as an order of the Court.
Subsection 545(1) of the Fair Work Act provides:
(1) The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.
I am satisfied that there is a prima facie face that the Respondent has contravened a civil remedy provision; s.50 of the Fair Work Act.
Subsection 545(2) of the Fair Work Act relevantly provides:
(2) Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following:
(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
…
Subsection 545(4) of the Fair Work Act provides:
When orders may be made
(4) A court may make an order under this section:
(a) on its own initiative, during proceedings before the court; or
(b) on application.
In Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 (“ABC”), the High Court of Australia summarised the principles to be applied to the granting of interlocutory injunctions. In a joint judgment, Gummow and Hayne JJ expressed the applicable test as follows (at [65]):
65. The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:
“The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.”
By using the phrase “prima facie case” their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:
“How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.”
(Footnotes omitted)
Consideration
The first question to determine is whether the Applicants have made out a prima facie case.
I am satisfied that the Applicants have made out a prima facie case that the Respondent, by retaining the relevant Toll uniform and property after the cessation of his employment, has breached the first and second enterprise agreements. Having regard to the affidavit of Mr Abraham filed on 6 December 2017, I am satisfied that the Applicants have taken reasonable steps to have the Respondent return the Toll uniforms and property to Toll.[18] The Respondent has not done so.
[18] Ibid at 450-452.
The Applicants have, by leave of the Court, shown videos of various incidents involving the Respondent. It is apparent that the Respondent is wearing a Toll uniform in some of the videos. I can safely infer that he has not returned the Toll uniform to the Applicants in accordance with his obligations under the enterprise agreements.
The orders that the Applicants seek for the immediate return of those uniforms and property, in my opinion, impose no injury on the Respondent that would outweigh that suffered by the Applicants. The Respondent is simply required to do what he was required under the first and second enterprise agreements.
The injury that the Applicants claim that they suffer is that the Respondent retains the Toll uniform, and continues to, either by himself or his agent (Mr Turner), wear the Toll uniform in videos published online while espousing controversial views. This has had the effect of identifying either the Respondent or Mr Turner as an employee of Toll, which is false, and conveying to the public controversial views that the Applicants do not hold.
The Applicants’ Statement of Claim identified various incidents in which the Respondent has posted video footage, all of which, save for one, the Respondent appears in a Toll uniform. However, Mr Abraham has deposed in his affidavit to further ongoing incidents which involve the Respondent.
The first further incident that Mr Abraham deposes to occurred on 23 November 2017, regarding the involvement by the Respondent and his associate, Mr Turner, in disrupting a protest in relation to refugees on Manus Island.[19]
[19] Ibid at [62].
The Respondent identifies Mr Turner as his associate in the videos shown to the Court by the Applicants, including in the footage of the incident on 23 November 2017 in which the Respondent and Mr Turner were involved in disrupting a protest in relation to refugees detained on Manus Island. The footage was recorded and posted online by the Respondent on 24 November 2017. The Respondent identifies Mr Turner as his associate in another video recorded on 19 November 2017, in which the Respondent is critical of Toll for terminating the employment of Mr Moerland.
I am satisfied that Mr Turner is an associate of the Respondent. I am satisfied that the person who appears on the Herald Sun newspaper’s front page on 5 December 2017 (Exhibit A1), and who is wearing a Toll uniform, is the Respondent’s associate; Mr Turner.
In his affidavit, Mr Abraham refers to a video posted by the Respondent on 28 November 2017 on Facebook, in which the Respondent criticises the Applicants for wasting taxpayers’ dollars by asking the Victoria Police to contact him to seek the return of his Toll uniform, then asserts that the uniform belongs to him, and states that he will not be returning it.[20] The Respondent then accuses Toll of unfairly sacking him, simply for appearing in Court and appearing on the news, and further, for unfairly sacking Mr Moerland for giving the Respondent an employment reference over one year ago.
[20] Ibid at [63].
Mr Abraham further deposes that on 30 November 2017, the Respondent posted on his Facebook page “I’ve got a surprise for TOLL - coming soon.”[21] Mr Abraham deposes that he considered this to be a threat, that he has reported the Facebook post to the Victoria Police, and hired additional site security officers for the Toll head office, to protect the staff of Toll.
[21] Ibid at [64], Annexure AA:1, 471.
Mr Abraham deposes to a further incident on 30 November 2017, in which the Respondent posted a further comment on his Facebook page asserting that Toll is guilty of harassing hundreds of employees in relation to their political beliefs, that Toll has sacked casual workers because of their online support for One Nation, and that Toll sacked him and Mr Moerland unfairly. Mr Abraham deposes that the Facebook post asserted that Toll is “shameful and UnAustralian”.[22]
[22] Ibid, Annexure AA:1, 471.
In the Court’s view, this evidence establishes that, rather than cease posting video footage, or commenting on social media, as the Respondent promised in his email to the Applicants on 10 November 2017, the Respondent has continued to engage in the conduct that the Applicants complain of. Therefore, at least in relation to the online posts of videos in which he and/or his agent appear in a Toll uniform, the balance of convenience favours the Applicants for the purpose of an injunction.
I now turn to consider whether the Applicants have made out a prima facie case based on the tort of injurious falsehood.
The Applicants claim that, by his conduct in posting the videos on various social media sites in which he appears in a Toll uniform, and/or in which he criticises Toll about the termination of his employment or the termination of Mr Moerland’s employment, the Respondent has committed the tort of injurious falsehood.
The High Court of Australia has addressed the distinction between the tort injurious falsehood and the injury to a business, or person of a business, in an action for defamation in Radio 2UE Sydney Pty Ltd v Ray Chesterton (2009) 238 CLR 460 (“Radio 2UE”). In Radio 2UE, the plurality said (at [11]):
11. The remedy which the law provides for injury to a person’s business or professional reputation must be distinguished from that for malicious statements which result in damage not to the reputation but to the business or goods of a person. The former is provided by an action for defamation, the latter by that for injurious falsehood. Lord Esher MR explained the distinction in South Hetton Coal Co Ltd v North‑Eastern News Association Ltd [[1894] 1 QB 133]. A false statement that a wine merchant’s wine is not good, which is intended to and does cause loss to the wine merchant's business, is an injurious (or “malicious”) falsehood. A statement reflecting upon that person’s judgment about the selection of wine, and therefore upon the conduct of his business, may be defamatory of him. Gummow J observed in Palmer Bruyn & Parker Pty Ltd v Parsons [(2001) 208 CLR 388 at 406 [59]] that the action for injurious falsehood is more closely allied to an action for deceit.
(Footnotes omitted)
In Capilano Honey Ltd v Mulvany (No 2) [2017] NSWSC 1237 (“Capilano”), Justice McCallum summarised the authorities in relation to the elements of the tort of injurious falsehood (at [21]):
21. The elements of the tort of injurious falsehood were stated by the High Court in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 as follows (recorded in the judgment of Brereton J in AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at par [29]):
The elements of the tort of malicious falsehood comprise (1) a false statement of or pertaining to the plaintiff’s goods or business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant; and (4) actual damage as a consequence [Ratcliffe v Evans [1892] 2 QB 524, 527-8; Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388, 404 [52] (Gummow J), 425 [114] (Kirby J)].
In its Outline of Submissions, the Applicants identified the elements that they are required to establish in order to succeed in a claim for injurious falsehood:[23]
[23] The Applicants’ Outline of Submissions filed on 7 December 2017 at [27].
27. In order to establish a claim for injurious falsehood, Toll must show that [the Respondent]:
(1) made false statements regarding Toll’s goods or business;
(2) published those statements to one or more third persons;
(3) published those statements with malice; and
(4) in doing so cause actual loss to Toll.
There is a helpful summary of the four elements of the tort of injurious falsehood in a decision by Griffiths J in ReGroup Pty Ltd v Kazal [2016] FCA 1485 (“ReGroup”) at ([28]-[35]):
28. Other cases which stand for similar principles as those identified by Davies J include the decision of Harrison J in Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521; the decision of McCallum J in Neville Mahon v Mach 1 Financial Services Pty Ltd [2012] NSWSC 651; and the decision of Brereton J in AMI Australia Holdings & Anor Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395. My attention was also drawn to an earlier decision of Hunt J in Swimsure (Laboratories) Pty Limited v McDonald [1979] 2 NSWLR 796, which may state a more conservative approach to that which is reflected in the subsequent cases referred to above.
29. Turning to the issue whether or not there is a serious question to be tried in respect of the claims of injurious falsehood against the two respondents, I deal with the four elements identified above which make up the relevant tort. In my view, sufficient evidence has been adduced in the Court by the applicants to establish, on a prima facie basis, that false statements have been made pertaining to both the first and second applicant’s business. As Mr Leopold SC emphasised, the gravamen of the various pleaded representations is directed very much to business or commercial matters. That is reflected in the various examples given above of the statements which have, for example, appeared on the website, on the vans and in the other representations which are pleaded. Significant, to my mind in this context too, is the fact that the vans have reportedly been seen parked not only outside Mr Singh’s private residence, but also, more significantly perhaps, immediately outside the premises of the company of which he is both managing director and a shareholder.
30. The second element is publication of a statement by the defendant to a third person. Again, it seems to me plain, at least on a prima facie basis, that the representations that are pleaded in the statement of claim are representations which have been published to sections of the public by the first or second respondent respectively.
31. As noted above in respect of the senior executive representation, that publication may have only been to a small circle of people. But in the case of the other pleaded representations, the publication is very much to the world at large, as is reflected by the ubiquitous nature of the posters and the mobility of the vans displaying the statements which form part of the representations complained about. Also relevant is the encouragement given to those who happen to see the posters or signs to follow up the accusations by further reference to the website identified above.
32. As to the third element, i.e. malice on the part of the defendant, I accept Mr Leopold’s submission that, at this stage of the proceeding, there is prima facie evidence of malice. That is particularly so by reference to the prima facie fact – which was not contested – that the proceedings in the Cayman Islands have not resulted in findings which would provide any basis to suggest that there is any substance in the very serious, perhaps almost the most serious type of allegations that one could conceive of, being made against an individual heavily involved in business and commercial activities as is the case with Mr Singh.
30. The fourth element is also adequately established at this stage of the proceedings (i.e. on a prima facie basis) concerning actual damage as a consequence of the injurious falsehoods. The damage that has occurred, and I accept is also threatened to continue to occur unless the behaviour is restrained, includes the necessity for Mr Singh to engage various persons to seek to deal with these serious allegations and claims being made against him, including media advisors and also security personnel. I accept Mr Leopold’s submission that, given the nature of the business activities of the first applicant and its involvement in recycling and other infrastructure projects, together with the very strong allegations being made against Mr Singh, existing and prospective business partners may well be influenced by that and make decisions which would not be in the commercial interests of either the first or second applicants having regard to the most serious claims being made against Mr Singh personally.
34. Turning to the balance of convenience, it seems to me that, while the Court generally hesitates to restrain individuals being able to exercise their rights of freedom of speech, nevertheless this is a case where injunctive relief properly should lie. This is partly by reference to the relative strength of the prima facie case which I have summarised above. Also relevant is the resistance of both the first and second respondents to interlocutory relief being granted in respect of that aspect of the case that relates to injurious falsehood. Furthermore, if one compares the relative inconvenience of the restraints which would be imposed upon the respondents by the grant of interlocutory relief with the inconvenience to the first and second applicants, were the respondents to continue unrestrained to publish the types of statements to which I have made reference above, I have no doubt in concluding that the balance of convenience strongly favours the applicants.
35. For all those reasons, I am satisfied that this is an appropriate case in which to grant interlocutory relief in the terms sought in the amended interlocutory application.
As stated above, I am satisfied that the Applicants have made out a prima facie case that the Respondent committed the tort of injurious falsehood in respect of some or all of the incidents from the Applicants’ Statement of Claim and summarised in Annexure A herein.
The first element – false statements
I am satisfied that, in posting the video footage online showing the Respondent wearing a Toll uniform, the Respondent falsely represented that he was a Toll employee, knowing that he was not. The Respondent was well aware that this representation was false, because all of the incidents occurred when the Respondent was not an employee of Toll. Further, by making statements which are without a doubt controversial in the Australian community, whilst wearing a Toll uniform, the Respondent falsely represented that these statements were statements that either Toll supported, or which were attributable to Toll.
I am satisfied that a member of the public viewing the footage could reasonably conclude, and, in fact did conclude,[24] that the statements expressed by the Respondent were statements that either Toll supported, or which were attributable to Toll
[24] Affidavit of Anthony Joseph Abraham filed on 6 December 2017, Annexure AA:1, 373.
I emphasise that it is irrelevant to the Court what statements the Respondent made in the videos. Those matters are not relevant to the Court.
The issue that the Court need consider is that the Respondent knew the falsity of his representation that he was a Toll employee, and the cavalier manner in which he made the representation, while espousing controversial views.
The Respondent knew that the reason that his employment was terminated after the second period of employment was because, upon applying for employment with the Second Applicant, he provided information that was false.[25] The Respondent was required to provide information in the “Toll Pre-Employment Police Check Disclosure Form” (“Toll Police Check”), and in relation to questions two to five, the Respondent provided false information.
[25] Ibid Annexure AA:1, 138-139.
At the time that the Respondent completed this pre-employment form, the Respondent had a criminal conviction, and had been charged in relation to other matters.[26] Question two to the Toll Police Check was “[h]ave you ever been interviewed by police in relation to any matter?” The Respondent answered in the negative. Question three to the Toll Police Check was “[h]ave you ever attended Court as a defendant or witness (all countries included)?” The Respondent again answered in the negative. Question four to the Toll Police Check was “[a]re you the subject of criminal charges still pending before a court or under any investigation for any criminal offence?” The Respondent answered in the negative, which is clearly false as he was under investigation at the time, and was later convicted for that charge. Question five to the Toll Police Check was “[h]ave you been found guilty or convicted of an offence as an adult within the past 10 years?” The Respondent again answered in the negative.
[26] Ibid at [18]-[19], [51]-[52], Annexure AA:1, 124, 128, 444, 446.
Mr Abraham deposed that, upon Toll ascertaining that the Respondent had provide a false statement to Toll in his pre-employment material, they decided to terminate his employment.[27] The Respondent was informed that the reason for the termination of his employment was his provision of false statements to the Applicants.
[27] Ibid at [36]-[37].
Mr Abraham deposed to and annexed a standard form titled “Reference Check Form” that is completed in relation to a potential Toll candidate.[28] The reference check form is completed Mr Scott Moerland, who was a foreman and team leader at the time. Mr Moerland answered the question “[w]hat dates [was the Respondent] employed?” with “March 2012 to Feb 2017”. That was patently false. In response to the question “[w]hy did they leave the company?” Mr Moerland answered that the Respondent had “[r]elocated.” Again, that was patently false.
[28] Ibid at [26]-[27], Annexure AA:1, 140.
The Respondent was terminated after the first period of employment because of his abandonment from work on 3 March 2014; three years before the Respondent applied for his second position with the Applicants. Mr Abraham deposed that Mr Moerland was terminated because Toll became aware that he had provided a false reference for the Respondent.[29] Therefore, the Respondent’s statements in a video posted at large to anyone who viewed the footage that Mr Moerland was unfairly terminated, and was terminated just because he gave a reference for the Respondent, was false.
[29] Ibid at [27].
Consequently, I am satisfied that the Respondent’s conduct in posting those videos and making statements in which he asserted that the Applicants had unfairly terminated both his employment and the employment of Mr Moerland, were false statements.
The second element – published to third persons
I am satisfied that the above-mentioned videos that represented false statements were published online by the Respondent to third persons; that is, that the videos were published to anyone who was able and chose to view any of the video footage posted on his own Facebook page, or on the Facebook page of other organisations (such as the United Front). In the case of the incident on 9 November 2017, the Respondent posted footage he videoed of himself, in Toll uniform, on the ‘Patriot Blue’ Facebook page.
The third element – malice
As to what constitutes malice on the part of the Respondent, Counsel for the Applicants has taken the Court to the following extract of a decision of Brereton J of the New South Wales Supreme Court in AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 (“AMI Australia”) (at [32]):[30]
32. As motive must often be inferred from what the defendant did or said or knew, malice is commonly proved by inference… Malice may be inferred from the “grossness and falsity of the assertions and the cavalier way in which they were expressed”… But malice can be inferred not only where the false publication was made with knowledge of its falsity, but also where it was made with reckless indifference as to whether it was true or false…
(Citations omitted)
[30] AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [32]
I am satisfied that, in relation to the videos which the Respondent posted on social media sites wearing the Toll uniform, that it can be inferred that the Respondent did act with malice on his part. It can be inferred because the Respondent knew that he was not an employee of Toll at the relevant times. The Respondent chose to wear the Toll uniform in those videos. The Respondent can be said to have understood that he would be seen to be a Toll employee. Nevertheless, the Respondent chose to proceed to make statements which, by any account, could be said to be controversial in the Australian community.
The Respondent would know that his statements were controversial. I take judicial notice of the fact that the statements that he expressed would be considered controversial in the Australian community. Consequently, it is the knowledge of the falsity of, or his reckless indifference to his representation that he was a Toll employee, and that the statements he expressed were statements that either Toll supported or which were attributable to Toll, that constitute malice in this case.
Likewise, I am satisfied that the statements made by the Respondent about the termination of his employment and the termination of Mr Moerland’s employment were made by the Respondent, knowing that they were false statements. The Respondent’s statements about the manner in which Toll treats its employees were false, or at the very least, were made with reckless indifference.
The fourth element – actual damage suffered
I now turn to the question of actual damage. Counsel for the Applicants relies on the following extract from the decision of Griffiths J in ReGroup (at [35]):
35. …existing and prospective business partners may well be influenced by that and make decisions which would not be in the commercial interests of either the first or second applicants having regard to the most serious claims being made against [the second applicant] personally.
In a decision provided to the Court by Counsel for the Applicants, Swimsure (Laboratories) Pty Ltd v McDonald & Anor [1979] 2 NSWLR 796 (“Swimsure”), the headnote states that actual damage to the plaintiff (in that case) could result from such continued publication.
In the decision of AMI Australia, Brereton J said (at [38]):
38. The requirement for “actual damage” does not, however, preclude the grant of injunctive relief to restrain a threatened publication, in which circumstance it will suffice to establish a reasonable probability, as opposed to the actual incurring, of such damage…
In this matter, the evidence provided to the Court is that there has in fact been actual damage suffered by the Applicants. There was a complaint submitted to Toll on 9 November 2017 that states:[31]
I am withdrawing around $45,000 worth of business from the Tollgroup. I have used your company for 18 years and cannot support a business that harbours racists nor condone a worker in uniform racially abusing members of Parliament…
[31] Ibid, Annexure AA:1, 373.
This evidence satisfies the Court that the Applicants have established actual damage.
In any event, the various 256 complaints that are set out in the table in the annexure to Mr Abraham’s affidavit[32] satisfies the Court that there is, without doubt, to use the words of Brereton J, a reasonable probability of actual damage incurring through the continuing threatened publication by the Respondent. I have already referred to the continuing postings, and ongoing conduct of the Respondent that has occurred subsequent to the incidents described in the Statement of Claim. I am satisfied that, absent any injunction issued, the Respondent’s conduct will not cease. From the evidence provided in Mr Abraham’s affidavit, it appears that the Respondent’s conduct is escalating. Therefore in my view, there is satisfactory evidence of threatened actual damage because of this conduct.
[32] Ibid, Annexure AA:1, 330-381.
For that reason, I am satisfied that the Applicants have made a prima facie case in relation to the elements of injurious falsehood; both in relation to the postings that involve the Respondent wearing a Toll uniform, but also the posting of videos online in which the Respondent has made statements in relation to the termination of his employment, and the termination of the employment of Mr Moerland.
I now turn to the question of the balance of convenience. As I have already indicated, I have formed a view that the likelihood is that the Respondent will continue the behaviour that he has engaged in, of which the Applicants are aggrieved, and which is the subject of the application before the Court.
I am satisfied there is a risk that, even if the Court were to make an order requiring that the Respondent return the Toll uniform and property, the Respondent may not comply. There is a significant risk that he will continue to engage in the behaviour by way of continuing to post video footage online of him wearing a Toll uniform. I am also satisfied that, without a restraining injunction, the Respondent is likely to continue to engage in the behaviour by way of continuing to post video footage online, and make online comments which are either controversial or directed to the termination of his employment and Mr Moerland’s employment by Toll.
I am satisfied that the injury to the Applicants far outweighs the injury to the Respondent. The only foreseeable injury to the Respondent is that he would be required not to post videos of him engaging in the behaviour that he has thus far while wearing a Toll uniform, or of an associate who is not a Toll employee wearing a Toll uniform. It can hardly be said to be an injury to the Respondent.
Further, I am satisfied that damages would not be an adequate remedy in relation to the matters that are the subject of the Statement of Claim.
Conclusion
Consequently, I will make injunctive orders requiring the Respondent to return the Toll uniform and property. I will also order an injunction to restrain the Respondent from further engaging in the conduct which is the subject of the Applicants’ Statement of Claim.
I am not satisfied that some of the orders sought by the Applicants in their Application in relation to restraining the Respondent from engaging in his conduct would be enforceable. Consequently, I have framed orders to the effect of those as sought by the Applicants, but have done so in terms which, in the Court’s view, avoid uncertainty and secure compliance.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate: Vanessa Bacchetti
Date: 14 December 2017
Annexure A
| Date | Injurious Falsehood Claim | Description/Contents | Particulars |
| 21 May 2015 | 101. [43] The 21 May 2015 Video its natural and ordinary meaning, was meant and understood to convey the following imputations, namely: (a) that [the Respondent] was a Toll employee at the time of the 21 May 2015 Video; (b) that Toll holds the views expressed by [the Respondent] in the 21 May 2015 Video; and (c) that Toll supports white supremacist beliefs. | [12] On 21 May 2015, [the Respondent] posted a video on his Facebook page (21 May 2015 Video), in which he appeared in Toll Uniform, and expressed white supremacist views. | 102. [The Respondent] shut down his Facebook page on about 4 December 2017. Copies of posts made to his Facebook page on around 21 May 2015 are in the possession of Toll’s solicitors and may be inspected by appointment. |
| 26 June 2015 | 103. [44] The 26 June 2015 Video its natural and ordinary meaning, was meant and understood to convey the following imputations, namely: (a) that [the Respondent] was a Toll employee at the time of the 26 June 2015 Video; (b) that Toll holds the views expressed by [the Respondent] in the 26 June 2015 Video; and (c) that Toll supports believes that Muslims in France were “beheading people” and that as a result, France was in “lock down” | 104. [13] On 26 June 2015, [the Respondent] posted a video on his Facebook page (26 June 2015 Video), in which he appeared in Toll Uniform, and expressed the view that Muslims in France were “beheading people” that accordingly France was in “lock down”. 105. | 106. A copy of a print-out from [the Respondent’s] Facebook page depicting a still image of the 26 June 2015 Video is in the possession of Toll’s solicitors and may be inspected by appointment. 107. |
| February 2016 | 108. [45] The February 2016 Video its natural and ordinary meaning, was meant and understood to convey the following imputations, namely: (a) that Toll Transport had acted without justification in terminating [the Respondent’s] employment under the First Employment Agreement; and (b) that Toll Transport had terminated [the Respondent’s] employment unfairly. | 109. [14] In February 2016, [the Respondent] posted a video on the Facebook page of the United Patriots Front (February 2016 Video), in which he appeared in Toll Uniform, and criticised Toll, asserting that it had terminated his employment without justification. 110. | 111. The Facebook page of the United Patriots Front is no longer accessible. A copy of a print-out from that Facebook page at that time is in the possession of Toll’s solicitors and may be inspected by appointment. 112. |
| 29 May 2017 | 113. [46] The 29 May 2017 Video its natural and ordinary meaning, was meant and understood to convey the following imputations, namely: (a) that at the time [the Respondent] was terminated on 24 May 2017, [the Respondent] had not breached any terms of the Second Employment Agreement; (b) that by terminating the [the Respondent’s] employment at that time, Toll Personnel had breached the Second Employment Agreement; (c) that Toll Personnel had terminated [the Respondent’s] employment unfairly; (d) that Toll Personnel was persecuting [the Respondent]; and (e) that Toll Personnel mist-treats its employees. | 114. [30] On 29 May 2017, in breach of the Social Media Obligation,[33] [the Respondent] posted a video on his Facebook page (the 29 May 2017 Video), in which he: (a) appeared in Toll uniform, despite not being a Toll employee at that time; (b) played the voice recording referred to in paragraph 29 above;[34] (c) asserted that Toll Personnel had terminated his employment in circumstances where he had not breached any term of the Second Employment Agreement; (d) asserted that Toll was persecuting him; and (e) called for a boycott of Toll. | 115. |
| 19 August 2017 | 116. [47] The 18 August 2017[35] Video its natural and ordinary meaning, was meant and understood to convey the following imputations: (a) that [the Respondent] was a Toll employee at the time of the 18 August 2017 Video; (b) that Toll holds the views expressed by [the Respondent] in the 18 August 2017 Video; and (c) that Toll is opposed to the legalisation of same sex marriage. | 117. [31] On about 19 August 2017, in breach of the Social Media Obligation, [the Respondent] posted a further video on his Facebook page, and on the “Vote No Australia” Facebook page (the 19 August 2017 Video), in which he: (a) appeared in Toll uniform, despite not being a Toll employee at the time; and (b) made a series of statements opposing the legalisation of same sex marriage, including statements that legalising same sex marriage will lead to polygamy, and will lead to children being taught a highly sexualised curriculum in schools; (c) stated that the same sex marriage campaign is a Marxist agenda attempting to destroy the family unit; and (d) stated that gay people despise the Catholic Church. | 118. [The Respondent’s] Facebook page is no longer accessible and no longer contains a link to the 19 August 2017 Video. A copy of a print-out from the Video on his Facebook page at that time is in the possession of Toll’s solicitors and may be inspected by appointment. |
| 9 November 2017 | [48] The 9 November 2017 Video its natural and ordinary meaning, was meant and understood to convey the following imputations, namely: (a) that [the Respondent] was a Toll employee at the time he was engaging in the conduct depicted in the Dastyari News Reports and in the 9 November 2017 Video; (b) that Toll endorses that conduct; (c) that Toll holds the views expressed by [the Respondent] as stated in the Dastyari News Reports and in the 9 November 2017 Video; (d) that Toll is of the view that Senator Dastyari is a terrorist. | 119. [35] On about 9 November 2017, and while dressed in a Toll Uniform, [the Respondent]: (a) approached Senator Tom Dastyari[36] in a public bar; (b) filmed Senator Dastyari on a mobile telephone, while repeatedly calling Senator Dastyari a “terrorist”; (c) when doing so, was filmed by an associate of Senator Dastyari. 120. [36] On about 9 November 2017, shortly following the events referred to in paragraph 35: (a) the video footage filmed by Senator Dayari’s associate appeared on television news report, showing [the Respondent] wearing a Toll Uniform, filiming Senator Dastyari and repeatedly calling him a “terrorist” (the Dastyari News Report); (b) [the Respondent], in breach of the Social Media Obligation, posted the footage he had filmed of Senator Dastyari on the Facebook page of an organization called “Patriot Blue” (the 9 November 2017 Video). | 121. Examples of recordings of the Dastyari News Reports, and copies of screen shots of the 9 November 2017 Video, are in the possession of Toll’s solicitors and may be inspected by appointment. |
| 18 November 2017 | 122. [49] The 18 November 2017 Video its natural and ordinary meaning, was meant and understood to convey the following imputations, namely: (a) that Toll Transport had terminated Mr Moerland’s employment without any proper basis for doing so; (b) that Toll discriminates against Indian employees; (c) that Toll discriminates against brown-skinned employees; and (d) that there is a racist culture within Toll. | 123. On about 18 November 2017, in breach of the Social Media Obligation, [the Respondent] posted a further video on his Facebook page (the 18 November 2017 Video), in which he: (a) asserted that Toll terminated Mr Moreland’s[37] employment without justification; (b) asserted that Toll is a racist workplace; (c) asserted that Toll treats Indian people “like second class citizens”; (d) asserted that Toll provided “a toilet for the white workers and a toilet for the brown workers.” | 124. A copy of a print-out from [the Respondent’s] Facebook page containing a still image of the 18 November 2017 Video is in the possession of Toll’s solicitors and may be inspected by appointment. |
[33] The reference to the ‘Social Media Obligation’ is a reference to a clause under the second enterprise agreement that prohibits employees posting certain information or statements on social media.
[34] This is said to be a reference to a voice recording made by the Respondent of a conversation in which an officer of Toll informed him that his employment was terminated.
[35] This date should be 19 August 2017.
[36] This is a typographical error and the name should be “Sam”.
[37] This is a typographical error and the name should be “Moerland”.
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