Bruder Expedition Pty Ltd v Leigh [2019] QDC 266

DISTRICT COURT OF QUEENSLAND CITATION: Bruder Expedition Pty Ltd v Leigh [2019] QDC 266 PARTIES: BRUDER EXPEDITION PTY LTD (ACN 603 551 579) (applicant/plaintiff) v TRACY LEIGH (respondent/defendant) FILE NO/S: BD No 2380 of 2019 DIVISION: PROCEEDING: Trial – Further orders ORIGINATING COURT: District Court at Brisbane (Date of Order: 1 November 2019) DELIVERED ON: 20 December 2019 DELIVERED AT: Brisbane HEARING DATE: On the papers JUDGE: Sheridan DCJ ORDER: 1. The second order made on 1 November 2019 is set aside. 2. In lieu thereof, it is ordered that the respondent be restrained by herself or her servants or agents from publishing, causing to be published, encouraging, requesting or enabling to be published by any means whatsoever any statements, comments or images with respect to the applicant and the products sold by any means whatsoever including but not limited to on a Facebook page entitled ‘Lemon Caravans and RV’s in Aus’ to the same effect or matters substantially to the same effect as statements, comments or images that: (a) Bruder produces off road caravans which are defective; (b) Bruder produces off road caravans which are of poor quality; (c) Bruder produces off road caravans which are unsafe; (d) Bruder’s off road caravans are overpriced and not good value for money; (e) Bruder refuses to assist its customers; (f) The application filed by Bruder was vexatious litigation; -- 1 of 8 -- 2 (g) Bruder sold a caravan which was severely defective; (h) Bruder was required to provide a refund to the owner of the severely defective caravan; (i) The severely defective caravan sold by Bruder could have killed the owner due to the suspension giving away whilst driving. 3. The orders made on 1 November 2019 are otherwise undisturbed. CATCHWORDS: DEFAMATION – INJUNCTIONS – where the defendant elected to a trial by jury – where the jury found that each of the four statements were published maliciously, and in the case of the third statement, published with a reckless disregard as to its truth, however, the jury found that only the publication of the first and fourth statements caused the plaintiff to suffer actual damage – where the form of injunctive relief sought by the plaintiff extended to the second and third statements – where the statements were interrelated – whether the court has jurisdiction in equity to grant injunctive relief on the terms sought by the plaintiff PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – where the plaintiff was successful in its claim for damages and injunctive relief – where the defendant sought to vary the order that the defendant pay the plaintiff its costs of and incidental to the proceeding – where the plaintiff succeeded on a significant majority of its pleaded case – where the plaintiff did not press parts of its pleaded case – whether the order that the defendant pay the plaintiff its costs of and incidental to the proceeding should be varied in the circumstances Uniform Civil Procedure Rules 1999, r 681 Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 BHP Coal Pty Ltd v O&K Orenstein & Kopple AG (No 2) [2009] QSC 64 Nursing and Midwifery Board of Australia v HSK [2019] QCA 272. Oshlack v Richmond River Council (1998) 193 CLR 72 Warman International Ltd v Dwyer (1995) 182 CLR 544 COUNSEL: M Martin QC for the applicant -- 2 of 8 -- 3 A Morris QC for the respondent SOLICITORS: Mills Oakley for the applicant Australian Law Partners for the respondent Background [1] On 4 July 2019, the plaintiff, Bruder Expeditions Pty Ltd, issued proceedings seeking injunctions and damages against the defendant, Tracy Leigh, for injurious falsehood. [2] Bruder operates a business involving the manufacturing and sale of off-road expedition caravan trailers to domestic and international customers from premises at Oxley in Queensland. Ms Leigh is the administrator of a closed Facebook group called Lemon Caravans & RVs in Australia. The Lemon Facebook group has approximately 47,000 members. In the period between on or about 5 May 2019 and 4 July 2019, Ms Leigh posted four statements on the Lemon Facebook group in which reference was made to Bruder’s off-road caravans. [3] Bruder contended that what Ms Leigh said about Bruder’s off-road caravans in each of the posts was false, that what Ms Leigh published on her Facebook page was published by Ms Leigh maliciously and that as a consequence of the posts Bruder suffered loss. [4] On 10 July 2019, I granted an interlocutory injunction and made orders for the progress of the proceedings towards a hearing in October, 2019.1 [5] At the election of Ms Leigh, the hearing of the claim proceeded before me in October, 2019 by way of a jury trial. The jury were given twelve principle questions to answer; with each containing five to sixteen sub-questions. In that way, the jury arrived at a very detailed verdict. [6] To summarise, the jury found that each of the four statements were published maliciously and in the case of the third statement published with a reckless disregard as to its truth and that the publication of the first and fourth statements caused Bruder to suffer actual damage. The jury assessed damages in respect of each of the first and fourth statements. The jury did not make a finding of actual damage in relation to the second and third statements. [7] In view of the answers given, Mr Martin QC, as counsel for Bruder, moved at that time for judgment for the plaintiff. One of the orders sought was a permanent injunction restraining Ms Leigh from further publishing statements which were the subject matter of these proceedings. It was accepted that the injunction could not restrain Ms Leigh in respect of anything in the future; that is, there had to be a connection back to these proceedings. 1 [2019] QDC 116. -- 3 of 8 -- 4 Form of order Oral submissions at close of trial [8] I adjourned for a short time to allow counsel time to consider the form of the order. Following discussion between Mr Martin QC, and counsel for Ms Leigh, Mr Morris QC, it was proposed that an order be made in the following terms: The respondent be restrained by herself or her servants or agents from publishing, causing to be published, encouraging, requesting or enabling to be published by any means whatsoever any statements, comments or images with respect to the applicant and the products sold by any means whatsoever including but not limited to on a Facebook page entitled ‘Lemon Caravans and RV’s in Aus’ to the same effect as the first, second, third and fourth statements referred to in the second further amended statement of claim filed on 28 October 2019 in these proceedings or matters substantially to the same effect as those matters.” [9] Subsequently, in oral submissions, Mr Morris said that he did not quibble with the form of words, but did object to the inclusion in the order of the reference to the second and third statements. Mr Morris submitted that Bruder lost entirely in respect of the second and third statements and therefore was not entitled to an injunction with respect to them. In making that submission, Mr Morris conceded that, in a practical sense, “It won’t make much difference to the ultimate operative effect of the injunction.” [10] In response, Mr Martin submitted that the court was not constrained in granting equitable relief just because the cause of action in respect of the second and third statements had not been made out. Mr Martin submitted that sitting as a court of equity, the court was entitled to make an order that was just in the circumstances and fits the remedy. [11] Mr Martin submitted that the only way to achieve that outcome was to say that in respect of everything that has been said in this claim, because all the statements are interrelated, the defendant was not to re-publish them in the future. Otherwise, he submitted, there was likely to be unnecessary disagreements. [12] Mr Martin accepted that the cause of action in relation to the second and third statements had not been made out because the jury did not find that loss had been suffered from the publication of those statements, but submitted that the jury found the remainder of the elements of the cause of action proven, including that Ms Leigh had acted maliciously in publishing those statements. [13] In the end it was accepted by both counsel that the most extensive form of order to which Bruder was entitled was in the form of order as proposed by Mr Martin, which referred to the first, second, third and fourth statements. Mr Morris’ position was that he would not object to the making of an order in those terms, subject to consideration of whether the reference to the second and third statements should continue after written submissions were provided. -- 4 of 8 -- 5 [14] By agreement, an order was made in broader terms and included an order as to costs.2 The order permitted a timetable for the filing of written submissions. It was agreed that the written submissions could also address the question of costs and the order as to costs, as like the injunctive relief, it would be subject to any re-assessment which I considered necessary or appropriate after consideration of the written submissions. Written submissions [15] In his written submissions, Mr Morris accepted that as a statement of principle the terms of any injunctive relief may be moulded to meet the circumstances of the case. However, he submitted, in the present context, in relation to the second and third statements, there was no jurisdiction to grant injunctive relief. Mr Morris submitted that there is no wrong at common law proven in relation to the second and third statements and so there is no basis for equity to intervene to restrain further re- publication of the second and third statements. [16] In his submissions in reply, Mr Martin referred to the purpose of the injunction being to protect the applicant from any further loss or damage by Ms Leigh making statements the same as, or similar to, the statements the subject of these proceedings. Counsel submitted that if the injunction was limited to the first and fourth statements invariably any comments by Ms Leigh in relation to the second and third statements would have to be similar to the matters arising out of the first and fourth statements. [17] It was submitted by Mr Martin that the court has jurisdiction to grant an injunction because a cause of action for injurious falsehood had been established. In the exercise of its jurisdiction, it was submitted, that the terms of any injunction must be fashioned to fit the case.3 Further, it was submitted that the second and third statements significantly overlapped the first and fourth statements. It was said that even if the second and third statements had not been the subject of proceedings that would not mean the court was precluded from restraining Ms Leigh from making statements the same as or similar in order to prevent the repetition of a legal wrong. Analysis [18] The factual position submitted by Mr Martin is no doubt correct. There is significant overlap between the four statements. Both parties evidently recognised and agreed that the terms of the order should include the words “and matters substantially to the same effect as those matters”. Further, unnecessary argument or uncertainty as to the effect of the order would likely follow if the order only made reference to the first and fourth statements and that is a matter to be avoided in framing injunctive relief. [19] Nevertheless, the jurisdiction to grant an injunction is limited to circumstances where there is a cause of action.4 Although the present proceedings contained one claim for damages for injurious affection, it was based upon four statements and the jury considered each statement separately and awarded damages in respect of two of them separately. It may have been that the jury considered that the second and third statements were tortious, but that the damages suffered were already encapsulated by the damages awarded in respect of the first statement. Whatever the process of 2 Order dated 1 November 2019. 3 Warman International Ltd v Dwyer (1995) 182 CLR 544, 559. 4 Australian Broadcasting Corp v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199. -- 5 of 8 -- 6 reasoning, the finding imposes a hurdle in the grant of an injunction in support of a common law wrong expressly referring to the second and third statements. [20] There is another way of approaching the form of the order and that is to frame an order in relation to the statements which the jury found conveyed meanings that were false, that were made with the intention of causing financial harm and which caused actual loss. As regards the first statement that involves statements that: (a) Bruder produces off road caravans which are defective; (b) Bruder produces off road caravans which are of poor quality; (c) Bruder produces off road caravans which are unsafe; (d) Bruder’s off road caravans are overpriced and not good value for money; (e) Bruder refuses to assist its customers. [21] As regards the fourth statement, that involves statements that: (a) The application filed by Bruder was vexatious litigation; (b) Bruder sold a caravan which was severely defective; (c) Bruder was required to provide a refund to the owner of the severely defective caravan; (d) The severely defective caravan sold by Bruder could have killed the owner due to the suspension giving away while driving. [22] Adopting the form of order otherwise agreed between counsel, that would involve an injunction in the following terms: The respondent be restrained by herself or her servants or agents from publishing, causing to be published, encouraging, requesting or enabling to be published by any means whatsoever any statements, comments or images with respect to the applicant and the products sold by any means whatsoever including but not limited to on a Facebook page entitled ‘Lemon Caravans and RV’s in Aus’ to the same effect or matters substantially to the same effect as statements, comments or images that: (a) Bruder produces off road caravans which are defective; (b) Bruder produces off road caravans which are of poor quality; (c) Bruder produces off road caravans which are unsafe; (d) Bruder’s off road caravans are overpriced and not good value for money; (e) Bruder refuses to assist its customers; (f) The application filed by Bruder was vexatious litigation; (g) Bruder sold a caravan which was severely defective; (h) Bruder was required to provide a refund to the owner of the severely defective caravan; (i) The severely defective caravan sold by Bruder could have killed the owner due to the suspension giving away whilst driving. [23] An injunction in these terms would not necessarily mean that Ms Leigh would be free to repeat the posts that were the subject of the complaints in respect of the second and third statements. If any future posts were the same or to substantially the same effect as the statements referred to in sub-paragraphs (a) to (i), there would be an obvious transgression of the order and hence contempt of court. Whether or not any posts did so would be for a future court to determine. -- 6 of 8 -- 7 [24] I will vary the previous order so as to make an order in the terms above. Costs Submissions [25] In his written submissions, Mr Morris accepted that Ms Leigh must pay the costs of the proceedings including reserve costs in respect of the two causes of action in respect of which Bruder succeeded. However, it was submitted, by parity of reasoning, that Ms Leigh was entitled to the costs of defending the proceeding in respect of the two causes of action upon which Bruder failed. [26] Mr Morris acknowledged that the publication of the second and third statements may have been tortious, but for the fact that any injury which was going to be suffered by Bruder had already been caused by the publication of the first statement. Against that, Mr Morris says that the jury was clearly instructed that they had to consider the assessment of damages for each of the four statements. [27] Further, Mr Morris submitted that the costs in relation to the issues pleaded in sub- paragraph 13(g) of the statement of claim, given the abandonment by Bruder of all but two of the allegations in the final address to the jury, should be excluded from the costs awarded to Bruder and added to Ms Leigh’s costs of her (plainly successful) defence. [28] Mr Martin submitted that costs should follow the event and there was no justification here to depart from the general rule. Mr Martin said there was no basis for making any special order in relation to costs solely on the basis that the applicant did not succeed in proving any loss with respect to the second and third statements. It was said that even if the second and third statements had not formed part of the applicant’s case, all of the evidence adduced at the trial would have been led in any event. It was said that it could not be said the second and third statements were so substantially different from the first and fourth statements that different evidence would have been adduced or a significant amount of time would have been saved if they did not form part of the applicant’s case. [29] Further, it was submitted that the fact that Bruder did not establish the factual matters pleaded in paragraph 13 (g), other than in one respect, does not justify a special order for costs. It was submitted that it could not be said that the proceedings were in anyway prolonged because of what was alleged in paragraph 13(g) of the further amended statement of claim. Analysis [30] Pursuant to r 681 of the Uniform Civil Procedure Rules 1999, costs of a proceeding are in the discretion of the court, but follow the event unless the court orders otherwise. The primary purpose of an award of costs is to indemnify the successful party, not to punish the unsuccessful party.5 [31] Having regard to the terms of the final order, Bruder has been successful in its claim for damages and injunctive relief. 5 Oshlack v Richmond River Council (1998) 193 CLR 72, 97. -- 7 of 8 -- 8 [32] It would not be accurate to say that Bruder failed entirely in relation to the second and third statements. Each of them was found to be untrue and made with the intention of causing financial loss. It would be more accurate to say that Bruder failed on the basis that the jury did not attach any loss in relation to those statements. Given the time frames and the findings, this may have been only because the jury concluded that any injury which was suffered by reason of these two statements had already been caused by publication of the first statement. [33] In any event, Bruder succeeded in relation to a significant majority of the issues litigated. Even if the second and third statements had not formed part of Bruder’s pleaded case, I accept that all of the evidence adduced at the trial would have been led (and contested) in any event. [34] Likewise, I do not accept that a special order is appropriate in relation to the allegations in paragraph 13 which were ultimately not pursued. I do not accept that the proceedings were prolonged because of those allegations. [35] Ordinarily the fact that a successful party fails on particular issues does not mean that the party is to be deprived of some of its costs.6 [36] Rule 684 permits the court to make an order in relation to a particular part of a proceeding. This rule was not relied upon by Mr Morris. He was correct not to do so as application of the rule would necessarily require an enquiry as to what was it in the present case which warrants a departure from the general rule? In BHP Coal, McMurdo J (as his Honour then was) described the circumstances required to engage the rule as those which were “exceptional”.7 That approach has been expressly adopted by the Court of Appeal on a number of occasions.8 [37] In my view there are no circumstances in the present case which would justify Bruder not being awarded its costs of and incidental to the proceedings, including reserve costs. Accordingly, I will not vary the terms of my previous order as to costs. 6 BHP Coal Pty Ltd v O&K Orenstein & Kopple AG (No 2) [2009] QSC 64, [8] (BHP Coal). 7 Ibid. [7]. 8 Nursing and Midwifery Board of Australia v HSK [2019] QCA 272. -- 8 of 8 --