Bruder Expedition Pty Ltd v Leigh [2019] QDC 116

DISTRICT COURT OF QUEENSLAND CITATION: Bruder Expedition Pty Ltd v Leigh [2019] QDC 116 PARTIES: BRUDER EXPEDITION PTY LTD (ACN 603 551 579) (applicant) v TRACY LEIGH (respondent) FILE NO/S: 2380 of 2019 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 12 July 2019 DELIVERED AT: Brisbane HEARING DATE: 10 July 2019 JUDGE: Sheridan DCJ ORDER: 1. The respondent forthwith do all such things as are necessary to remove any reference to the applicant and the products sold by it on a Facebook page entitled “Lemon Caravans & RVs in Aus”. 2. Until trial or earlier order that the respondent be restrained 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 it by any means whatsoever including but not limited to on a Facebook page entitled “Lemon Caravans & RVs in Aus”. 3. The order referred to in paragraph 2 does not prohibit the respondent from seeking funds for her defence of the proceedings brought by the applicant which proceedings are to be described as no more than proceedings brought by Bruder Expedition Pty Ltd against Tracy Leigh as administrator of the Facebook page entitled “Lemon Caravans & RVs in Aus” for injurious falsehood relating to the publication of statements concerning Bruder and Bruder’s products. -- 1 of 10 -- 2 CATCHWORDS: DEFAMATION – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – where respondent was administrator of Facebook group – where respondent made publications about applicant company on Facebook page – where applicant seeks injunction to remove existing posts and restrain respondent from making further posts - whether prima facie case made out – whether balance of convenience is made out in favour of granting of injunction Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, applied Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440, cited COUNSEL: M.D. Martin QC for the plaintiff/applicant The respondent was self-represented SOLICITORS: Mills Oakley for the plaintiff/applicant [1] On 10 July 2019, I heard an application for an interlocutory injunction to restrain the respondent, Ms Tracy Leigh, from publishing what was alleged to be injurious falsehoods. I granted an injunction and gave directions for the conduct of the proceedings the next day in the following terms: 1. The respondent forthwith do all such things as are necessary to remove any reference to the applicant and the products sold by it on a Facebook page entitled “Lemon Caravans & RVs in Aus”. 2. Until trial or earlier order that the respondent be restrained 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 it by any means whatsoever including but not limited to on a Facebook page entitled “Lemon Caravans & RVs in Aus”. 3. The order referred to in paragraph 2 does not prohibit the respondent from seeking funds for her defence of the proceedings brought by the applicant which proceedings are to be described as no more than proceedings brought by Bruder Expedition Pty Ltd against Tracy Leigh as administrator of the Facebook page entitled “Lemon Caravans & RVs in Aus” for injurious falsehood relating to the publication of statements concerning Bruder and Bruder’s products. 4. Service of orders of the court including this order be effected on the respondent by email to [email protected]. 5. The originating application filed 4 July 2019 be treated as a claim. 6. The applicant file and serve a statement of claim by 25 July 2019. 7. The respondent file and serve a defence by 8 August 2019. 8. The applicant file and serve a reply by 15 August 2019. 9. The parties complete disclosure by list to be delivered to the other party by 5 September 2019. -- 2 of 10 -- 3 10. The parties file and serve any experts reports on which they intend to rely at trial by 26 September 2019. 11. The experts if any in similar fields of expertise confer and file a joint report setting out the matters on which they agree, the matters on which they disagree and the reasons for such disagreement by 10 October 2019. 12. The parties agree an index to an agreed bundle of documents to be tendered by consent at the commencement of the trial by 10 October 2019 (the trial bundle). 13. The agreed trial bundle together with a working copy of such bundle and a working copy of the pleadings be filed by 14 October 2019. 14. The parties agree upon and file a trial plan by 14 October 2019. 15. The proceedings be set down for trial commencing 21 October 2019 for a period of 5 days. 16. Any review of the proceedings prior to trial be conducted before Sheridan DCJ. 17. Each party’s costs be their costs in the proceeding. [2] I indicated I would provide reasons for the grant of the injunction at a later time. These are my reasons. [3] The applicant, Bruder Expedition Pty Ltd, seeks an interlocutory injunction to require Ms Leigh to remove any reference to Bruder and its products on a Facebook page entitled “Lemon Caravans and RVs in Australia” and to restrain Ms Leigh until trial or earlier order from publishing any further statements, or images with respect to Bruder and its products by any means whatsoever including but not limited to on the Facebook page. [4] Ms Leigh is the administrator of the Lemon Facebook group and the owner of the business named “Lemon Caravans and RVs in Australia”. The Lemon Facebook group has approximately 47,000 members. The description tab on the Lemon Facebook group page says that the page is: “Open to everyone who has or had a Lemon caravan or have had trouble getting satisfactory repairs for their caravans from the dealer or manufacturer. We also welcome people who support Lemon laws for caravans and other vehicles and who know people who have suffered by having a Lemon caravan in Australia.” [5] Bruder is the manufacturer of high-end off-road expedition trailers which sell for approximately $170,000 to $240,000 each. The applicant sells approximately 25 to 30 expedition trailers per annum. [6] There is a currently a dispute between Bruder and Mr Charles Coles in relation to the purchase by Mr Coles in early 2018 of a Bruder EXP-6 trailer. Mr Coles has never commenced proceedings against Bruder. [7] In April or May 2019, Mr Coles published statements on a website established by him entitled “Bruder X World – my Bruder EXP-6 experiences campervan”. Mr Coles encouraged people who viewed the website to reconsider purchasing Bruder’s trailers. -- 3 of 10 -- 4 [8] The website was removed by Mr Coles on 15 May 2019 and an undertaking was given by Mr Coles on or about that date to Bruder that Mr Coles would not publish any comments or images about Bruder until resolution of any dispute between them. [9] On 20 June 2019, Bruder commenced proceedings in the Supreme Court of Queensland against Mr Coles for “injurious falsehood”. [10] On 5 may 2019, Lisa Desmond published a post on the Lemon Facebook page with a hyperlink to Mr Coles’ website. On that same day, Ms Leigh published a comment on the Lemon Facebook page which read as follows: Lisa thank you for your kindness to your friends. I am hoping by showing this to 45,000 members that Bruder might pick up their act. Losing a sale would cost them a fortune. (First Publication) (Emphasis added) [11] The post by Ms Leigh resulted in a number of responsive posts. [12] On 30 June 2019, Ms Leigh published a further post in the following terms: So many members are telling me that they have received a resolution to their claims but are gagged by extensive non-disclosure agreements in tough Deeds of Settlement so they can’t tell anyone any details, including their families. These agreements are very likely to be illegal after the ACCC v Thermomix case, but most solicitors will say that they are a ‘commercial reality’. That means, settle and be gagged or spend another $50k to $100k going to trial with all the risks. This of course protects the rogues from any consequences. They can afford to fight it all the way. Consumers can't and they know it. Who’s brilliant idea was it to put the burden of enforcement on consumers? The legislators and it was deliberate. BUT THERE IS WORSE Some RV companies are taking it one step further. They are either threatening to take action, or actually taking action, against their customers or owners of their brand with defective RVs who publish online. This action can include defamation, injurious falsehood and even misleading and deceptive conduct. The actual filed legal cases are available on court e-filing website and so are public. The following companies have engaged in this behaviour, Lotus Caravans more than once. If you have also been a victim and I haven’t listed that company, please PM me and I will edit the post without exposing the informant. If you do a search in this group, I was a victim too, being sued by Lotus Caravans for injurious falsehood and defamation. It failed, but not before costing a lot of money and stress. I was recently awarded costs but not all of them because costs are calculated on a scale, not on what you really pay. Such is the reality of being sued even if you are completely innocent. It was one of the worse years of my life. The legal system needs urgent review. Lotus Caravans Caravans WA Eagle Camper Trailers Bruder -- 4 of 10 -- 5 Supreme Jurgens Naming and shaming is not illegal if it is the truth. It is not defamation or injurious falsehood. Unfortunately, these companies are using their financial superiority to threaten and silence customers. For every story bravely told here, I get at least another 5 to 10 not published. The extent of the shameful behaviour and dangerous practices in this industry is far bigger than most would know. I have found the method of naming and shaming still to be the best method of getting a rogue trader to the table to negotiate. Most hate the negative publicity. Many will threaten but not go through with the threat when they realise that if the consumer is telling the truth (as they usually are) their corporate dirty laundry will be publically exposed over and over again in a public court case. If you have been threatened, make sure you let me know ASAP. I have a few techniques to make it go away. Not guaranteed but does mostly work. (Second Publication) (Emphasis added) [13] On 2 July 2019, the solicitors for Bruder wrote to Ms Leigh demanding that she remove the offending publications. It was said that the ordinary reasonable reader of the publications would understand the words used in, and the reference to the website to mean: 1. For the First Publication: (a) Our client produces off-road caravans which are defective; (b) Our client produces off-road caravans which are of poor quality; (c) Our client produces off-road caravans which are unsafe; (d) Our client’s off-road caravans are overpriced and not good value for money; and (e) Our client refuses to assist its customers; and 2. For the Second Publication: (a) Our client is a bully; (b) Our client commences legal proceedings without proper reasons; (c) Our client threatens its customers; (d) Our client is a rogue trader; (e) Our client is unscrupulous; (f) Our client is dishonest and misleading in the conduct of its business; (g) Our client produces off-road caravans which are defective; (h) Our client produces off-road caravans which are of poor quality; and (i) Our client’s off-road caravans are overpriced and not good value for money. [14] In the letter, it was said that there is no evidence to support the imputations arising out of the publications. Ms Leigh was asked to remove the first and second publications from the Facebook page group, provide a public apology and undertake not to make, or allow to be made, disparaging and unsubstantiated statements or representations about Bruder that might give rise to the imputations stated above. Ms Leigh responded by letter the same day. In her response, Ms Leigh concluded by saying: So my suggestion, in good faith, is to advise your client to cease this aggressively litigious behaviour, comply with their ACL obligations and -- 5 of 10 -- 6 then I will report a good outcome. The alternative is extensive and ongoing negative publicity, significant costs and potential loss of sales. [15] In the course of responding, Ms Leigh further stated: Additionally, if your client does choose to file action against me, I will report it every single step of the way. I have already published your letter. I will vigorously defend any attempt at an injunction. I know that courts are very, very reluctant to give injunction in defamation actions as it stifles freedom of opinion and expression where a case has not yet been proven. [16] Ms Leigh stated: From what I know of Mr Coles’ case, the imputations you have outlined… which are denied to have arisen from the publications, are in fact true, and there is substantial evidence to prove the truth of the publications. [17] On that same day, Ms Leigh edited the second publication by attaching a copy of the letter from the solicitor’s for Bruder dated 2 July 2019 and stating the following: UPDATE THREE: INJURIOUS FALSEHOOD THREAT LETTER FROM BRUDER EXPEDITION PTY LTD What are they demanding? An apology, removal of all reference to them in the group by 5pm today, including in this post, and not to be naughty again and dare expose the intimidatory practices and poor production quality of this company. This culture of silencing is no better illustrated than by the letter from this company. See attached. I have only posted the truth and my honest opinion based on proper material. There is a clear public interest. The imputations are a beat up because they are actually true in every regard. Therefore they will fail in their attempt to prove injurious falsehood and spend a lot of money for nothing, which they could have used to comply with the ACL. The usual story….. So Bruder, you can obviously see this as you have screen shots of the posts. If you think I am going to be intimidated, think again. I only publish the truth and have the evidence to back it up. I will formally respond to your threat letter shortly.” (Third Publication) (Emphasis added) [18] The originating application commencing these proceedings was filed on 4 July 2019. [19] In response to service of the claim, on the same day Ms Leigh made a further publication in the following terms: BRUDER FILES INJURIOUS FALSEHOOD CLAIM AGAINST ME Today I received service of documents by email for a claim for injurious falsehood, and seeking an injunction against me, to silence me in future and remove everything about them, which is two posts and multiple comments. This is filed in the District Court of Brisbane which has a limit of $750,000. This is the second one, the first in 2016/17 from Lotus Caravans, the manufacturer of my lemon caravan. I was successful in that case when they discontinued two days before they had to give me five years of their statements to prove economic loss. I argued for that disclosure and won. -- 6 of 10 -- 7 To prove injurious falsehood they have to prove that the publication is untrue and malicious and cost them actual economic loss. All three have to be proven. They don’t have a hope in my honest opinion as I have evidence of the truth of the publication. So again in my honest opinion, this is vexatious litigation designed to silence anyone who dares criticise them. Those with deep pockets have far too much power. This is known as SLAPP, Strategic Litigation Against Public Participation. The owner of the severely defective Bruder is also being sued for injurious falsehood rather than pay him the refund he is entitled to, based on his evidence. It could have potentially killed him due to suspension giving way while driving. This is why he went public in this group, to try and warn others to check theirs. That landed him with the injurious falsehood claim. Bruders start at about $170k. You would think that for that money that they would be as close to perfect as humanely possible and, if not, bend over backwards for their customers. I tried to make the argument that a refund will be good for their reputation and litigation bad, but they prefer the latter approach. So it is time to crowd fund again so that I can get my defence written by a solicitor and barrister. I won’t be able to afford to have them represent me, these cases can cost hundreds of thousands in legal fees. So I will self represent again unless someone knows an expert defamation solicitor and barrister in Queensland who will work pro bono or no win no fee. This is in the public interest. The culture of silencing in this industry is worsening. Please donate for the greater good to protect us all from these vexatious threats. VOLUNTARY MEMBERSHIP CONTRIBUTION FUND: Account name: Tracy Leigh BSB: 306-032 Account number: 0143481 Narration: Your Facebook name (Fourth Publication) (Emphasis added) Legal principles [20] The relevant issues where an interlocutory injunction is sought were stated by Gleeson CJ and Crennan J in Australian Broadcasting Corporation v O’Neill1 approving statements by Doyle CJ in Jakudo Pty Ltd v South Australian Telecasters Ltd as: … a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction.2 [21] Gleeson CJ and Crennan J described these as “...the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed.” Gleeson CJ and Crennan J agreed with 1 (2006) 227 CLR 57, [19] (O’Neill). 2 Ibid, [19]. -- 7 of 10 -- 8 the explanation of the organising principles as stated in the reasons of Gummow and Hayne JJ. Gummow and Hayne JJ referred to the two main inquiries as stated by the court in Beecham Group Ltd v Bristol Laboratories Pty Ltd3which the court must address: 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.4 [22] Gummow CJ and Hayne J commented that, 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. [23] It is accepted that the grant of an interlocutory injunction in the context of a defamation case requires a particularly cautious approach. The main reason for caution is the public interest in free speech. Gleeson CJ and Crennan J in O’Neill explained: In the context of a defamation case, the application of those organising principles will require particular attention to the considerations which courts have identified as dictating caution. Foremost among those considerations is the public interest in free speech.5 [24] These observations are equally applicable to a claim for an injunction to restrain injurious falsehood. Has Bruder shown a prima facie case? [25] Bruder claims damages for injurious falsehood. The elements of such a cause of action are: (a) A false statement of or concerning the plaintiff’s goods or business; (b) Publication of that statement by the defendant to a third person; (c) Malice on the part of the defendant; and (d) Proof by the plaintiff of actual damage suffered as a result of the statement. [26] For Bruder, it is submitted that all of the publications contained false statements. The first publication it was said contained a link to the website created by Mr Coles in which Bruder’s off-road caravans were described as defective, of poor quality, unsafe, not good value for money and Bruder refusing to assist its customers. The position of Bruder is that all of those statements are untrue. It is said those comments were endorsed by Ms Leigh when she posted on 5 May 2019 that she hoped Bruder might “pick up their act”. 3 (1968) 118 CLR 618 at 622-623. 4 Supra n 1, [65]. 5 Ibid. -- 8 of 10 -- 9 [27] Ms Leigh in her submissions spent considerable time directing the court’s attention to the evidence presented by Mr Coles as to the problems Mr Coles had experienced with the trailer he purchased and said that the court would find at trial that the trailer was defective, of poor quality, unsafe and not good value for money. [28] Bruder submitted that the statements contained in the second publication were false, namely that the applicant had engaged in “shameful behaviour” and “dangerous practices”, and was within a group of companies that used its “financial superiority to threaten and silence customers”. [29] In addition, in publishing the statement to her Facebook site that each of the imputations referred to in the letter from the solicitors for Bruder were true in any regard, Counsel for Bruder submitted that Ms Leigh was confirming her view that Bruder was a bully, commenced legal proceedings without proper reason, threatened its customers, was a rogue trader, was unscrupulous, engaged in dishonest and misleading conduct, produces off-road caravans which were defective and of poor quality, were overpriced and not good value for money. [30] Whether or not Bruder could succeed in showing all of these statements are false cannot be determined on this application. It is sufficient to observe that the statements are broad and extend beyond reference to the trailer purchased by Mr Coles. On the face of it triable issues are raised as to this element. [31] As to publication to a third person, the Facebook page has 47,000 members. [32] As to malice, counsel for Bruder said that Ms Leigh “clearly intends to cause the applicant financial harm”. In one of her posts, Ms Leigh refers to “the threat of naming and shaming to be the best method of getting a rogue trader to the table to negotiate.” Counsel for Bruder in referring to Ms Leigh’s letter to the solicitors for Bruder, submitted that the letter contained a clear threat, “If you don’t comply, you will suffer economic loss.” In the letter, Ms Leigh concluded by saying: So my suggestion.. is to advise your client to cease this aggressively litigious behaviour, comply with their ACL obligations and then I will report a good outcome. The alternative is extensive and ongoing negative publicity, significant costs and potential loss of sales.” [33] Ms Leigh makes it clear that she is aware of the potential impact of the publicity. In her submissions, Ms Leigh said all that she is doing is “publishing in the public benefit” and any loss “is actually on their own heads”. [34] As to damage, there is evidence before the court in relation to a number of posts by readers as to the impact that the posts have had on their intentions to purchase. On 6 July 2019 a potential customer sent a text message to one of the directors of Bruder stating, after seeing a post by Ms Leigh about Bruder, that he had removed Bruder from his list of entities from whom he might buy. There is further evidence from Bruder that it is concerned about current contracts with customers in the Middle East. The evidence is suggestive that some general loss of business could flow from the posts. [35] Accordingly, in my view Bruder has shown there is a prima facie case. -- 9 of 10 -- 10 Balance of Convenience [36] It is necessary to consider whether the inconvenience or injury which Bruder would be likely to suffer, if the injunction were refused, outweighs or is outweighed by the injury which Ms Leigh would suffer if an injunction were granted. [37] The damage claimed by Bruder is the loss of sales, and damage to its business reputation. [38] Ms Leigh says that she is on a disability pension and admits she has no assets. Her website post includes requests to be “crowd funded” for the costs of these proceedings. The only indication that she may be able to meet any award for damages or costs in these proceedings is an assertion that she has current litigation from which she says she expects to recover an award of damages and costs. [39] If successful in its claim, there is a good prospect that Bruder may not be able to achieve compensation for any loss. [40] Against that scenario is the public interest in freedom of communication about matters of public or general interest. That interest weighs heavily against the grant of an interlocutory injunction in a case of this kind. [41] In her letter to the solicitors for Bruder and in making submissions in this application, Ms Leigh referred to her intention to keep publishing. If proceedings are commenced, she refers to everything being reported “step by step by step through every interlocutory application.” In referring to the media, Ms Leigh stated that she was “quite a well-known public figure”. She stated, “And if they were seeking to not have publicity, this is the absolute worst possible way they could have proceeded.” [42] A final factor guiding the assessment is that a hearing in this matter can be accommodated in the October sittings of this Court. If an injunction were not granted there is potentially a three month period when Bruder would suffer loss for which it would likely not be compensated. On the other hand, if an injunction were granted it is a relatively short period when Ms Leigh would not be able to publish material about Bruder and its products. [43] In the circumstances, the balance of convenience favoured the grant of an injunction. -- 10 of 10 --