21 A non-disclosure will not be material unless it is likely to influence the Court in acceding to the application (see cases cited at Ritchie para 28.1.3).
22 If an ex parte injunction is dissolved on the ground of concealment, the plaintiff is not precluded from making another application for an injunction on the merits.
23 The last matter of alleged non-disclosure was not even arguably a relevant non-disclosure. It was plain from the affidavit before Hamilton J, that the plaintiffs had not reproduced the whole of the website. The defendant has not pointed to any other information on the website that may have afforded him a defence.
24 The other alleged non-disclosures are not material. As to the first, the fact that Ms Barnier had posted a complaint made nearly a year before on a different website, being a complaint which had nothing to do with fraud or overcharging, does nothing to lessen the sting of the inference that the second defendant was responsible for the statements which appeared.
25 As to the second alleged non-disclosure, it was not the whole truth for the website to state that Mr Kaplan had not admitted liability for the theft of motor vehicles. In relation to Mr English, the whole truth was that the matter had been placed in the hands of insurers, who, without admitting liability, had made an offer of what they contended to be the indemnity value of the vehicle, which was an offer Mr English had not accepted. There were other cases where vehicles had been stolen where Mr Kaplan agreed he had not admitted liability. As he carried insurance he could hardly be expected to do so. He said that the other such cases had been satisfactorily resolved. I do not consider that there was any material non-disclosure before Mr Justice Hamilton.
26 I return to the issue of whether there is a serious question to be tried that the second plaintiff has a cause of action in tort for injurious falsehood. The elements of that tort are that the second defendant has published statements which are false, that the false statements concern the business or property of the plaintiff, that they were published maliciously, and that they are calculated in the ordinary course of things to produce, and that they do produce, actual damage. Such damage must have been wilfully and intentionally caused by the defendant's publication. (Ratcliffe v Evans [1892] 2 QB 524 at 527 to 528; Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 692 to 694; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at paras 1, 52, 57, 114, 154 and 192.)
27 Although no special damage has yet been demonstrated an injunction can lie to restrain the commission of the tort, to prevent such damage (Swimsure Laboratories Pty Ltd v McDonald [1979] 2 NSWLR 796 at 802).
28 The only element of the tort that could be disputed is whether what the second defendant has published was false. As Hayne J said in Palmer Bruyn & Parker Pty Ltd v Parsons at paragraph 154, "If there is no false statement made it is not enough to establish injurious falsehood to show that the plaintiff is held up to ridicule." In the same way, it is not enough for the plaintiffs to show that the website was established maliciously for the purpose of disparaging the second plaintiff to its injury. To succeed at a final hearing the second plaintiff must show that the statements the second defendant published were false.
29 However, in identifying the statements published, the second plaintiff is not confined to the literal words of the representation. It would be sufficient if the words used conveyed an imputation which was false. (Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 409 to 410; Palmer Bruyn & Parker Pty Ltd v Parsons at paragraphs 34 and 157).
30 The first question is what did the second defendant publish?
31 He admittedly published the name of the site and the headline to the site "Hunter Holden Sucks".
32 There is also a serious question to be tried that he was the author of the other headings and comments on the site to which I have referred.
33 Even if he was not the author of those headings and comments, there is still a serious question to be tried as to whether he published the statements which appeared on the site. He established the site and thereby invited disparaging comments. He maintained some control over the site. He said that he, along with anyone else, could remove any of the comments from the site. The extent of his control over what was, or was not, published, was not fully explored, but it is seriously arguable that he was at least as much in control of the site and responsible for what appeared on it as was the internet service provider in Godfrey v Demon Internet Limited [2001] QB 201; [1999] 4 All ER 342, or the proprietors and secretary of a golf club which allowed a defamatory statement to remain on a notice board in Byrne v Deane [1937] 1 KB 818; 2 All ER 204. In Godfrey v Demon Internet Limited, it was held that an internet service provider was a publisher at common law of the defamatory comments posted on the site by an unknown user.
34 It is arguable that the words "Hunter Holden Sucks" convey the imputation that the business of Hunter Holden is poorly managed, and that it provides poor products and services. There may be other available imputations which are disparaging of the business and products of the second plaintiff. There is a serious question to be tried that such imputations are false.
35 There is also a serious question to be tried that the other comments and headings on the site which state or imply that the second plaintiff engages in fraud, and that overcharging of its customers is rife are false. As I have said, there is a serious question to be tried that the second plaintiff is the author or publisher of those comments.
36 There is therefore a serious question to be tried that the second defendant has committed and threatens to commit the tort of injurious falsehood.
37 The balance of the convenience is all one way. The second defendant would suffer no damage if the injunctions are continued. On the other hand, if the injunctions are dissolved, the second plaintiff may suffer substantial damage which it could never prove as potential customers may be deterred from visiting it.
38 It was submitted for the second defendant that an injunction should not lie to prevent him and members of the public from exercising their right of free speech to comment on the second plaintiff's services and business. In Swimsure (Laboratories) Pty Ltd v McDonald, Hunt J, as his Honour then was, said that the concepts of free speech and discussion and liberty of the press had little relevance to an action for slander of goods. That action is one variety of the tort of injurious falsehood. His Honour said that some of the other categories of injurious falsehood may not be exempt from the special rule that applies in defamation cases.
39 The plaintiff cannot avoid that special rule merely by framing its case, not in defamation, but in another tort.
40 The basal reason why the "special rule", applicable to defamation actions, was held to be inapplicable in Swimsure (Laboratories) Pty Ltd v McDonald, was that the slander of the plaintiff's goods involved no matter of public interest or concern. Hunt J said (at 801):
"It is difficult, if not impossible, to see how these concepts of free speech and discussion and the liberty of the press can be involved in the ordinary slander of goods action. The conflict in defamation actions between the plaintiff's right to his unblemished reputation and the defendant's right publicly to discuss all matters of public interest, simply does not arise in an action for slander of goods. The issue is not whether the defendant in disparaging the plaintiff's goods had a right or privilege to do so, but rather whether he has done so maliciously and whether in doing so he has caused actual damage to the plaintiffs."
41 Here there is a prima facie case of falsity and malice to establish a case of injurious falsehood.
42 There is a prima facie case that the second defendant seeks to use the internet to publish anonymously false and misleading disparagements of the plaintiff following his dispute with it. The comments and headings on the website are posted anonymously. The evidence was not clear as to the extent to which the very establishment of the website was done anonymously. The plaintiffs identified the second defendant as the creator of the website by deduction, he being the person who made the complaint about the stolen car.
43 The name of the website and the comments posted on it do not relate to matters of public interest or concern any more than did the defendant's comments about the plaintiff's goods in Swimsure (Laboratories) Pty Ltd v McDonald.
44 Accordingly, I do not consider that the special rule which applies in defamation cases in relation to matters of public interest and concern, preclude the grant of an interlocutory injunction.
45 The orders made by Hamilton J should continue until further order, subject to consideration of their terms. The injunction in paragraph 3(b) of his Honour's orders has been complied with and is spent.
46 The second defendant justifiably complained as to the form of the latter part of the injunction in paragraph 3(a) which restrains him from displaying the material contained in the domain, or similar material, on any internet site. The evidence has not disclosed what was all of the material on the site. As the site has now been closed, it would be well nigh impossible to enforce an injunction in those terms.
47 However, I consider that a modified form of paragraph 3(a) should be made, to restrain the defendant, not only from maintaining the current domain, but from establishing or maintaining an internet website of the same or similar name. I also consider that the second defendant should be restrained from publishing false statements of or concerning the second plaintiff.
48 It is true that an injunction in those terms would go wider than the cause of action in injurious falsehood which requires that the second plaintiff establish additional elements. However, interlocutory injunctions may be granted, in appropriate cases, in such wider terms. In this case, I consider that there is strong evidence of the second defendant's malicious intent and the likelihood of special damage being occasioned to the second plaintiff if he publishes false statements concerning it.
49 For these reasons, I discharge the injunction granted by Mr Justice Hamilton on 17 June 2005 and continued to today. Upon the plaintiffs by their solicitor giving to the Court the usual undertaking as to damages, I order that until further order, the second defendant by himself, his servants and agents be restrained from maintaining the domain or establishing or maintaining an internet website of the same or similar name, and from publishing false statements of or concerning the second plaintiff.
50 On the question of costs, the second defendant asked for costs of the application. For the reasons I have given, I do not consider he is entitled to that order. Alternatively, the second defendant submitted that he was entitled to his costs of an appearance on 21 June 2005 when the matter was adjourned whilst the plaintiff obtained further evidence, and so that Mr Kaplan, who was in Melbourne could attend, to be cross-examined. The plaintiffs were forced to bring the proceedings urgently, and I consider that it cannot really fairly be said that the plaintiffs should be forced to bear their own costs, or pay the second defendant's costs for that day. The plaintiffs seek their costs of the interlocutory hearing. Although, as I have said, the conduct of the second defendant which has brought about the proceedings is deserving of criticism, I do not consider that to be a sufficient ground for not applying the usual rule on such an application, that costs of the interlocutory application be costs in the proceedings. The costs will be costs in the proceedings.
51 These orders may be entered forthwith.