Injunction Sought Against to Alleged Defamatory Publications

Sacrifice Scooters v Goudie [2022] VSC 42 (11 February 2022)

The plaintiff sought relief against the defendant in respect of publications on YouTube on 7 May 2017 and on Instagram on 31 August 2018 and 22 July 2019.  The plaintiff applies for a permanent injunction for the Defendant from publishing or causing to be published any further publication or publications that uses the phrase ‘Snaprifice’ in connection with the Plaintiff and its products and brands.  The Court, in resolving this dispute, assessed the effect of a permanent injunction.

Facts:

The plaintiff applies for a permanent injunction for the Defendant, either by himself or through his servants and agents, that they are permanently restrained from publishing or causing to be published any further publication or publications that uses the phrase ‘Snaprifice’ in connection with the Plaintiff and its products and brands or at all; and states and/or implies that the Plaintiff’s scooters are unsafe and/or prone to snap.  

The application comprises the residue of a defamation claim made by writ dated 23 August 2019.  The plaintiff identifies itself as being in the business of design, manufacture (through third parties), promotion and sale of ‘Sacrifice’ branded scooters and related paraphernalia.  The plaintiff sought relief against the defendant in respect of publications on YouTube on 7 May 2017 and on Instagram on 31 August 2018 and 22 July 2019.

The plaintiff avers that two of the three publications were later removed after complaint.  The plaintiff’s written submissions refer to affidavit material deposing the defendant as being ‘an active scooter rider’ in the business of publishing on YouTube and Instagram.  The defendant – who appears to reside in New Zealand – did not appear in answer to the writ and, on 17 December 2019, interlocutory judgment was entered against him for, among other things, damages to be assessed.  The gravamen of the plaintiff’s claim to damages was that the publications complained of having caused a ‘marked decline in the plaintiff’s sales and profitability’. 

The Associate Justice recorded that by March 2021 the plaintiff’s business had ‘returned to form, demand has increased significantly and the business is struggling to fill orders’.  The Associate Justice accepted a causal link between publication of the defamatory statements and claimed economic loss.  However, his Honour assessed damages as a lesser percentage of the overall sum claimed.  Nonetheless, his Honour assessed damages in the sum of $735,837.

By its statement of claim, the plaintiff also sought relief in the nature of a permanent injunction.  On 3 June 2021, when his Honour ordered judgment for the plaintiff in the sum assessed (together with interest), it was also ordered that the application for injunctive relief be heard and determined ‘on a date to be fixed’.  In October 2021, the Court ordered that the application be heard on 4 February 2022 and that the plaintiff file an outline of its submissions.  The plaintiff did not file a further outline of submissions.

Issue:

Whether or not the plaintiff's claim for permanent injunctive relief should be granted. 

Applicable law:

Defamation Act s 31 - relied upon in holding that such a comment might present in a form that is arguably defensible. 

Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750 - recently considered the principles applicable in an application of the present kind. 

Chau v Australian Broadcasting Corporation (No 3) - held that damage might be at risk of being caused by future similar publications) as well as considerations of ‘finality’.

Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 - provided that if the effect of a permanent injunction would be to materially restrict or curtail that right, it is difficult to see why that would not be regarded as a relevant consideration weighing against the grant of an injunction.

Buckley v The Herald and Weekly Times Pty Ltd (No 2) [2008] VSC 475 - the interpretation of the phrase ‘same or like matter’ has been considered in this Court.  Upon that construction, a future publication by the defendant may not necessarily be caught.

Animal Liberation (Vic) Inc v Gasser [1991] VicRp 5; [1991] 1 VR 51 - relied upon in holding that were relief of the present kind to be ordered, the publication could render the defendant liable to imprisonment.

Analysis:

At the hearing, counsel for the plaintiff emphasised what he described as a ‘pattern’ in the three publications in respect of which damages were assessed.  He also emphasised the email and document from the defendant to the Court dated 22 April 2021.  In that communication it was evident that, among other things, the defendant maintained a belief in the truth of what he had said about the plaintiff’s scooters.  That communication was not referred to in the plaintiff’s written submissions before the Associate Justice.

It is not clear what, if any, role it played in the hearing before his Honour. It is not referred to in the reasons of the Associate Justice.  Restraining an unsuccessful respondent in a defamation case from republishing defamatory statements or imputations which have not been shown to be substantially true should generally be considered to be one of the types of cases where a restriction or limitation on the right of free speech may be warranted.  

If the effect of a permanent injunction would be to materially restrict or curtail that right, it is difficult to see why that would not be regarded as a relevant consideration weighing against the grant of an injunction.  The risk of damage should there be further publication cannot be dismissed but his Honour’s assessment of damages was plainly in a very significant sum and if were there to be further publication, and economic loss suffered or at risk of being suffered by the plaintiff company, the plaintiff is plainly of sufficient means to again investigate and, if appropriate, take action should it choose to do so.

Conclusion:

The Court concluded that while there is a conceivable future prospect that the plaintiff could obtain permanent injunctive relief in response to further publications by the defendant (if that were to occur), in my view, on the evidence, and in the present circumstances, the relief sought by the plaintiff must be refused.