Madden v Seafolly Pty Ltd [2014] FCAFC 30 | Case summary

Federal Court of Australia (Full Court)|2014-03-24|Before: Robertson JJ

Ms Madden published side-by-side photographs on Facebook and emailed journalists suggesting Seafolly had copied White Sands swimwear designs. The Full Court held that those publications, read in context, conveyed false factual allegations of copying and therefore contravened the Trade Practices Act's prohibition on misleading or deceptive conduct; the publications were made in a commercial context. The Full Court removed one element (an allegation that Seafolly used 'underhanded means') from the earlier judge's declaration because the 2 September email did not reasonably convey that representation. Damages were remitted for reassessment. Seafolly's press releases denying copying and attacking Madden's motives were found to attract qualified privilege, so Seafolly was not liable in defamation for publishing them, but Seafolly did not prove the specific imputations of deliberate malice (justification failed). The appeal was thus allowed in part and the matter returned for reassessment of damages and for the parties to file amended orders.

What happened

In early September 2010 Leah Madden, who traded under the White Sands Swimwear name, published comparative material on social media and sent an email to media asserting or inviting the conclusion that Seafolly Pty Ltd had copied White Sands swimwear designs. The material consisted of paired photographs (one of a White Sands garment and one of a Seafolly garment), captions such as "White Sands 2009 - Seafolly 2010" and the subject line "The most sincere form of flattery?" (Full Court: Rares & Robertson JJ at [12], [15], [68]-[71]). Those publications were picked up by trade outlets (Pedestrian TV and Ragtrader) and prompted enquiries received by Seafolly's media relations agency (Rares & Robertson JJ at [16]-[18]).

Seafolly responded promptly with two press releases denying the allegations and asserting that the allegations were false and had been made maliciously to injure Seafolly; Seafolly indicated design release dates to rebut copying suggestions (Rares & Robertson JJ at [19], [31]). Litigation followed. At first instance the primary judge found that Ms Madden had contravened ss 52 and 53(a) of the Trade Practices Act 1974 (Cth) and awarded Seafolly $25,000 damages for reputational injury; the primary judge also found Seafolly's press releases defamatory but accepted Seafolly's justification defence (primary judge's reasons quoted at [31], [38], [46], [52], [136]). Ms Madden appealed.

The Full Court (Marshall, Rares & Robertson JJ) delivered reasons on 24 March 2014. The Full Court upheld most of the primary judge's findings that the Facebook posts and the 2 September email (with the exception of one alleged representation) were properly understood as conveying factual allegations that Seafolly had copied White Sands, and that those representations were false and likely to mislead under s 52 (Rares & Robertson JJ at [65]-[71]; Marshall J at [3]-[7]). The Full Court also concluded that the publications were made in trade or commerce (Rares & Robertson JJ at [97]-[98]; Marshall J at [9]). However, the Court allowed the appeal in part: it ordered deletion of the part of the declaration (order 1.6) that the 2 September email conveyed an allegation that Seafolly had used underhanded means to obtain photographs to copy White Sands designs, because on analysis the email did not reasonably convey that third representation (Rares & Robertson JJ at [68]-[69], [169]). The Court remitted the assessment of damages for reconsideration (Rares & Robertson JJ at [108], [167]) and allowed amendment to the appeal to challenge the trial judge's acceptance of Seafolly's qualified privilege defence (Rares & Robertson JJ at [147], [171]); ultimately the Full Court held Seafolly's press releases attracted qualified privilege though Seafolly had not established justification for imputations of deliberate malice (Rares & Robertson JJ at [149]-[160]; Marshall J at [20]-[22]).

Why the court decided this way

The Full Court applied objective principles of meaning and context in construing publications under the Trade Practices Act and defamation law. Several legal motifs guided its reasoning.

Objective, contextual assessment of meaning: The Court emphasised that determining whether a statement is misleading involves an objective assessment of what a reasonable member of the class of recipients would reasonably understand the publication to convey (Marshall J at [2]; Rares & Robertson JJ at [77]). The Court considered the language, images and medium together.
Fact v opinion: The Court assessed whether the communications asserted present or past facts (more likely to be treated as statements of fact) or were opinions. It noted that an opinion may nevertheless contravene s 52 if not honestly held, for example, if formed recklessly or without appropriate inquiry. The Court found Ms Madden's juxtaposed photos and captions and the specific date assertions to be naturally read as factual allegations of copying, not merely professional opinion (Rares & Robertson JJ at [66]-[69], [89]-[95]; Marshall J at [3]-[7]).
Trade or commerce: The Court held that the social media publications, though on a 'personal' page, were made in a commercial context because Ms Madden was the principal of the competing business White Sands, and she used those pages to influence customers and the trade; the presence of industry contacts among her 'friends' reinforced the commercial character (Rares & Robertson JJ at [97]-[98]; Marshall J at [9]).
Privilege and justification in defamation: The Court recognised a publisher attacked by public allegations may respond to vindicate itself. Qualified privilege protects reasonable, commensurate responses in that context. The Full Court concluded Seafolly's press releases were a legitimate vindicatory response and thus fell within qualified privilege. But qualification of truth (justification) requires proof of the imputations; the Full Court found that while Seafolly's responses were privileged, Seafolly had not established the particular imputations of deliberate malicious intent by Ms Madden (Rares & Robertson JJ at [149]-[160]; Marshall J at [13]-[16]).
Damages: The Court accepted that reputational injury to a corporation is compensable under s 82 and may be assessed by estimation where precise economic loss is not shown (Rares & Robertson JJ at [101]-[116]). However the damages award had to be recalibrated in light of the narrowed proven misrepresentations.

In short, the Court's analysis was driven by close, contextual readings of the publications (text and images), the intended audience, the commercial setting, and established principles about meaning, opinion, and the available defamation defences.

Before and after state of the law

Before: The legal framework applied is well-established in Australian jurisprudence: ss 52 and 53(a) of the TPA prohibit misleading/deceptive conduct and false representations; assessment is contextual and objective (Campomar, Parkdale, Nike principles adopted and cited by the Full Court at [77], [83]). Defamation law permits justification (truth) and qualified privilege as defences; the tests for commensurateness and malice derive from authorities such as Penton v Calwell and Harbour Radio/Trad (Rares & Robertson JJ at [149]-[156]).

After: The Full Court did not alter legal principles but clarified and illustrated their application in the social media age:

Publications on social media and personal pages can be 'in trade or commerce' when used in a commercial manner or to influence customers (Rares & Robertson JJ at [97]-[98]; Marshall J at [9]).
The juxtaposition of images with captions on social media can convey strong factual allegations; courts will assess meaning by how a reasonable member of the target class would read such material (Rares & Robertson JJ at [70]-[76]).
Recklessness in failing to check facts (e.g. release dates) may make an 'opinion' actionable under s 52, but recklessness alone is not automatically the equivalent of the deliberate malice required to justify imputations of intentional wrongdoing in defamation (Rares & Robertson JJ at [131]-[138]).

Thus the decision is a practical application of existing doctrines to social-media-driven publicity and trade-competition disputes; it signals that commercial actors who use social media in a competitive context face the same objective tests as for traditional publications.

Key passages with plain-English translation

Rares & Robertson JJ at [70]: "The juxtaposition of each pair of the photographs invited the reader to compare the two swimsuit designs in the context of the questions that Ms Madden had posed. The answer to those questions was not far to seek." Plain English: Lining up the two photos with captions and a provocative subject line effectively pushed readers to conclude Seafolly had copied White Sands designs.
Rares & Robertson JJ at [93]: "Ms Madden's mistaken belief about when Seafolly's designs were first publicly released cannot justify her then arguing that she was entitled to express an opinion about that false state of affairs." Plain English: You cannot hide behind 'this is my opinion' if your 'opinion' rests on key factual errors that you failed to verify.
Rares & Robertson JJ at [97]-[98]: "She thereby sought to influence the attitudes of customers and potential customers of Seafolly. In these circumstances, I consider that her statements were made 'in trade or commerce'." Plain English: Even a 'personal' Facebook post is commercial speech when a business owner uses it to influence customers or trade contacts.
Rares & Robertson JJ at [149]: "Seafolly's response, in my opinion, was commensurate with the serious allegations which had been levelled against it. Seafolly did not, itself, act maliciously." Plain English: Seafolly's press releases were a reasonable public defence to the public attack and not driven by spite.
Rares & Robertson JJ at [131]-[138]: Court's finding that recklessness does not equate to deliberate malice for defamation justification. Plain English: A defendant's careless failure to check facts (recklessness) does not automatically mean they set out to harm someone on purpose. For Seafolly to justify claiming Madden acted maliciously, it had to prove she deliberately intended to injure, which the Court found was not established.

What fact patterns trigger this precedent

A small or medium fashion/design business publicly compares its designs with a competitor's online (social media posts or email to press) using juxtaposed images and captions that assert or imply copying or plagiarism.
The publisher is the owner/principal of a competing commercial enterprise and publishes to an audience including trade contacts or potential customers.
The communication includes concrete factual assertions (dates of release, sequencing) which are critical to the inference of copying.
The competitor issues media statements denying copying and alleges malicious intent; litigation ensues on both misleading conduct and defamation grounds.

If a competitor posts comparative images and captions designed to invite an inference that copying has taken place, a court will apply the objective test and may find s 52/53 liability where the representations are false, even if the publication was on a 'personal' page, provided the context is commercial.

How later courts have treated it

This deep dive is limited to the judgment itself; the Full Court grounded its decision in existing authorities and tailored established principles to social media and publication context (Rares & Robertson JJ at [61]-[83], [149]-[156]). The Full Court applied Campomar/Nike principles on assessment of the effect of conduct on a class of persons, and restated that social-media postings must be judged by how an ordinary reasonable member of the relevant audience would read them. Practitioners should expect courts to follow this approach in similar fact patterns: analyse the totality of the publication (text and images), the medium, the audience, and the publisher's commercial context.

(For subsequent case law treatment beyond this judgment, researchers should consult reporting services and case citators; this document does not invent or summarise post-2014 treatment.)

Still-open questions

Degree of audience evidence appropriate when assessing how social-media posts are read: The Full Court noted limits to using reader comments or journalists' articles without evidence of how readers accessed and read the social media content (Rares & Robertson JJ at [71], [82]). The precise weight to accord contemporaneous comments or secondary reporting remains a practical question when bespoke audience evidence is sparse.
Quantification of reputational damage flowing from brief social-media publications: The Court accepted reputational damages can be awarded without direct proof of pecuniary loss and may be estimated (Rares & Robertson JJ at [111]-[116]), but the yardstick for assessing quantum in small-scale social-media episodes remains imprecise and fact-sensitive.
Boundary between opinion and fact in image-heavy publications: The decision demonstrates that juxtaposed images with suggestive captions can carry factual imputations. However, further judicial guidance may be needed on cases where the publisher more clearly frames comparisons as evaluative commentary or professional critique rather than factual allegation.
Interaction between trade/commerce and social media profiles: The Court’s conclusion that 'personal' pages can be commercial depending on use (Rares & Robertson JJ at [97]-[98]) leaves open borderline cases where the publisher’s business links are attenuated or the audience is truly private.
Defamation responses in the digital age: The qualified privilege analysis recognises that public attacks justify a vindicatory public response, but the correct limits (degree of speculation about motive, breadth of distribution of the reply) will continue to be litigated as online republishing makes the original attack and the response practically indistinguishable in reach.

Practitioners advising clients in the fashion, design and broader consumer-goods sectors should take from Madden v Seafolly that:

Comparative posts and emails combining images and captions can be treated as factual allegations and carry legal risk under consumer protection statutes.
Social-media publications by business principals can be 'in trade or commerce' if they aim to influence customers or the trade.
If acting publicly to rebut alleged copying, a measured, fact-based response is safest; but a proportionate public rebuttal can attract qualified privilege.
Verify critical factual predicates (release dates, provenance) before publishing comparisons presented as factual; failure to do so risks liability even where the publisher honestly believed the allegation.

Introduction 25 This is an appeal from the judgment and orders of the primary judge made on 29 November 2012: Seafolly Pty Ltd v Madden (2012) 297 ALR 337; (2012) 98 IPR 389; [2012] FCA 1346. 26 The case concerns ladies' swimwear. In early September 2010, the appellant, Ms Leah Madden, made statements on her own personal Facebook page, the Facebook page of her swimwear business "White Sands" and in emails to various media outlets that the respondent, Seafolly Pty Ltd, had copied eight of her swimwear designs. Seafolly then issued press releases in response which denied such copying and alleged that Ms Madden's accusations, which suggested wrongly that Seafolly had copied some of her designs, had been made maliciously. 27 Seafolly pleaded causes of action for misleading and deceptive conduct under both ss 52 and 53(a) of the Trade Practices Act 1974 (Cth), ss 38 and 40(a) of the Fair Trading act 1989 (Qld), and ss 42 and 44(a) of the Fair Trading act 1987 (NSW); in injurious falsehood; and for copyright infringement. 28 Ms Madden cross-claimed against Seafolly. Her claims were for defamation and misleading and deceptive conduct under s 52 of the Trade Practices Act. Both of Ms Madden's claims were founded on the statements in Seafolly's press releases that she had made various allegations against Seafolly with the malicious intent of damaging Seafolly. 29 An unusual aspect of the case at first instance was that, in opening her case, Senior Counsel advised the Court that Ms Madden did not contend that Seafolly had copied her designs. However, the primary judge noted, despite her counsel's statement, Ms Madden, under cross-examination and having heard all of the evidence called by Seafolly, declared that she did not know whether or not Seafolly had so acted. 30 The name "White Sands" is associated with Ms Madden's swimwear and her business named White Sands Swimwear, carried on by Leah Madden Pty Ltd.

Orders made by primary judge 31 The orders at first instance were as follows. First there were the following declarations: THE COURT DECLARES THAT:

The Respondent has, in trade or commerce: 1.1 Engaged in conduct that was misleading and deceptive and was likely to mislead or deceive, in contravention of s 52 of the Trade Practices Act 1974 (Cth) ("the Act"); and 1.2 In connection with the supply and possible supply, and in connection with the promotion of the supply of swimwear, made false representations that those goods were of a particular style or model in contravention of s 53(a) of the Act; by: 1.3 On or before 2 September 2010, publishing or causing to be published on her Facebook page an album under the heading "The most sincere form of flattery?" containing 7 photos of models wearing Seafolly garments ("the Seafolly Photographs") under each of which the Respondent inserted the name of one of her garments followed by a question mark; 1.4 On or before 2 September 2010, updating or causing to be updated her Facebook page, and in the album under the heading "The most sincere form of flattery?", posting 8 photographs of models wearing White Sands garments ("White Sands Photographs") alongside the Seafolly Photographs with each pair of photos bearing the captions "White Sands as seen at [Rosemount Australian Fashion Week] RAFW in May - Seafolly September 2010" or "White Sands 2009 - Seafolly 2010"; 1.5 On 2 and 3 September 2010, publishing or causing to be published comments on her personal Facebook page and the White Sands Facebook page the comments set out at [10] - [12] and [23] of the reasons below; 1.6 On or before 2 September 2010, sending or causing to be sent an email from the email address wholesale@whitesandaustralia.com to the recipients set out at paragraph [13] of the reasons below with the subject line "The most sincere form of flattery?" followed by the words "Is it just us, or has Seafolly taken a little to (sic) much 'inspiration' from White Sands?" with the White Sands Photographs alongside the Seafolly photographs attached, with each pair of photos bearing the captions "White Sands as seen at RAFW in May - Seafolly September 2010" or "White Sands 2009 - Seafolly 2010"; and thereby representing: 1.7 that the Applicant copied the Respondent's garments designs depicted in the White Sands Photographs; 1.8 that the Applicant was not the creator of the Seafolly swimwear designs depicted in the Seafolly Photographs; and 1.9 that the Applicant had used underhanded means to obtain photographs of White Sands swimwear and copied the White Sands garments in order to create the Seafolly garments from those photographs; collectively, "the Representations", when, in fact: 1.10 Seafolly did not copy the garments; 1.11 The Seafolly garments were original designs created by employees of Seafolly and created without reference to the White Sands garments; and 1.12 Seafolly did not use underhanded means to obtain photographs of the White Sands garments and did not create the Seafolly garments using such photographs. The following orders were also made: 2. The Respondent pay the Applicant damages in the sum of $25,000 pursuant to s 82(1) of the Act for damage suffered by the Applicant caused by the conduct of the Respondent. 3. The Respondent, whether by herself, servants or howsoever otherwise, in trade or commerce, be restrained from: 3.1 reproducing or authorising the reproduction of the Seafolly Photographs without the consent of Seafolly; and 3.2 making the Representations or any other statements or claims similar to the Representations to third parties or aiding, abetting, counselling or procuring the making of the Representations or any other statements or claims similar to the Representations to third parties. 4. The Respondent pay the Applicant's costs of the application. 5. The cross-claim be dismissed with costs. 32 His Honour dismissed Seafolly's claims for injurious falsehood and copyright infringement. Nothing further needs to be said about them. 33 In light of his Honour's findings as to Ms Madden's liability under ss 52 and 53(a) of the Trade Practices Act the primary judge said it was not necessary for him to deal with Seafolly's respective claims under the relevant provisions of the Fair Trading act 1989 (Qld) and the Fair Trading act 1987 (NSW).

Statutory provisions 34 Sections 52 and 53(a) of the Trade Practices Act provided, relevantly: 52 Misleading or deceptive conduct (1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. (2) Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of subsection (1). … 53 False or misleading representations A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services: (a) falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; …

The reasons of the primary judge 35 His Honour set out the background facts as follows (omitting the photographs). [3] The genesis of the present dispute can be traced back to 1 September 2010 although it was influenced by Ms Madden's perception of events which had occurred earlier in that year. [4] On 1 September 2010, Ms Madden saw a copy of the September/October edition of a magazine called "The Gold Coast Panache". The front cover was dominated by a picture of a well known model, Samantha Harris, who was, at the time, an "ambassador" for Seafolly. Ms Madden claimed that her immediate thought was that Ms Harris was wearing one of her (Ms Madden's) creations known as the 'High Society Bikini'. On turning to an inside page, however, Ms Madden discovered that Ms Harris was wearing a Seafolly 'Goddess' bikini. Ms Madden considered that the Seafolly garment was remarkably similar to her own design. [5] Ms Madden recalled that, earlier in the year, she had some dealings with Ms Julie McLaren. Ms McLaren had become an employee of Seafolly in about 2001. In her role as an Account Manager she had handled the account for the retail outlets conducted by Sunburn Company Pty Ltd ("Sunburn"). In 2009 Seafolly had acquired a 68% interest in Sunburn. Shortly afterwards Ms McLaren was employed as a buyer by Sunburn. [6] … [7] On 6 May 2010, Ms McLaren attended a pre-arranged buying appointment with Ms Madden at a Sydney hotel. They met in a suite. Ms Madden showed Ms McLaren samples of her White Sands swimwear range. Some of the garments were worn by a model who was present. Ms McLaren took some photographs on her Blackberry phone. On the following day Ms McLaren attended a ramp presentation of the White Sands range. Again she took some photographs on her Blackberry phone. [8] During their meeting Ms McLaren told Ms Madden that she liked some of the garments which she had seen but budgetary constraints were likely to make the placing of any orders difficult. Despite some follow-up contact by e-mail from Ms Madden, Ms McLaren placed no orders for White Sands products. Nor did she respond to the e-mails. [9] In July 2010, a major international swimwear show took place in Miami in the United States. Both Seafolly and White Sands ranges were on display. Each company had a booth or a stand at the show. As Ms Madden passed the Seafolly stand she saw Ms McLaren wearing a Seafolly badge. Ms McLaren explained that, because she had previously worked for Seafolly, she had been asked to help out at the Miami show. Her attendance in Miami had been paid for by Seafolly. [10] On 1 and 2 September 2010, Ms Madden posted on her personal Facebook page an album of photos under the heading "The most sincere form of flattery?" This caption was featured on each page of the album. On the front page of the album appeared seven photographs of Seafolly garments. Each of these photographs was taken from Seafolly's 2010 catalogue or from Seafolly's website or both. There was a caption below the photographs which stated "Why allowing 'buyers' to photograph your collection at RAFW can be a bad idea". Below this caption were the following comments, among others, from Ms Madden (Facebook user name "Leah Madden" or "White Sands Swimwear Australia") and other Facebook users: "Leah Madden Seriously, almost an entire line-line ripoff of my Shipwrecked collection. ... Leah Madden I know, the buyer from 'sunburn' (who, as it turns out, works for seafolly) Came to my suite at RAFW and photographed every one of these styles. Yvonne Yeo Nasty! Shame on 'em! Won't be buying Seafolly. WHITESANDS all the way. X Danielle Maree Bourke seafolly own everything! sunburn, miraclesuit and gottex and they used to own jets but sold it recently! and unfortunately they do rip off everyone, they have copied a design 2 chillies has been doing for years! a little frilly triangle, its so bad! Leah Madden Ripping off is always going to happen, but sending in a dummy 'buyer' to get photos is super sneaky! ... Susan Gallagher Disgusting! How people look at themselves in the mirror is beyond me. You do what you do Leah and forget them. They don't (sic) run their businesses with style and class not to mention principles and ethics ..... Maria is right it will bite them in the bum one day ..... how bout you post a list of your stockists so I can email it to my friends list ;) Zoe Emma Teasey well that is why you are always a step ahead! Take it as a compliment for now and NEVER allow them to come to another one of your shows with a camera!:) [11] Under the comments appeared a larger version of each of the seven photographs which depicted Seafolly garments. Under each Ms Madden inserted the name of one of her garments followed by a question mark. Ms Madden said that she wrote these names because she considered that they were her styles which she considered looked similar to the particular Seafolly costume. The successive photos had written below them: • Noemi? • Eshter? • Nelly? • Shelly? • Sylvia? • Anne? • Gracie? Below the photograph titled "Anne?" the following comments appeared: "White Sands Swimwear Australia Lucy and Holly!! These are the ripoffs Seafolly did! Jeeze, you girls. We have them in Black, in store now:) White Sands Swimwear Australia Even the lazer (sic) cut ruffle is a perfect copy!!! Gemma hand drew lace that (sic) for this style!" [12] Some time prior to 2.51 pm on 2 September 2010, Ms Madden updated her personal Facebook page and posted the eight White Sands Photographs alongside the Seafolly Photographs referred to in paragraph [11] above. Each set of photographs bore the caption "White Sands as seen at RAFW in May - Seafolly September 2010" or "White Sands 2009 - Seafolly 2010". Ms Madden posted the following further comments on her Facebook page: • "Why allowing 'buyers' to photograph your collection at RAFW can be a bad idea"; and, on her White Sands Facebook page: • "It wasn't a photographer. I had a private showing with a 'buyer' who came with a digital camera and took photos. As it turned out, that 'buyer' was Julie McLaren from Seafolly:( She also requested a seat at the show for her boss, Anth ..." … At the relevant time, Ms Madden had 518 "friends" on her personal Facebook page. [13] At 2:00 pm on 2 September 2010, Ms Madden sent an e-mail from to: • a journalist from the Sunday Telegraph newspaper; • journalists from the "Pedestrian TV" fashion industry publication; • the fashion industry publication "Ragtrader"; • the publishing company "Focal Attractions"; • the "Gold Coast Bulletin"; • ; and • her public relations agent Danijela Terzic. [14] At 2.48 pm Ms Madden also sent a copy of this e-mail to the Daily Telegraph/Sunday Telegraph newspaper. [15] The e-mail had the subject line "The most sincere form of flattery?" followed by the following words: "Is it just us, or has Seafolly taken a little to (sic) much 'inspiration' from White Sands?". Attached to the e-mail were eight photographs depicting a model wearing "White Sands" garments alongside a number of the Seafolly photographs. Each photograph bore the caption "White Sands as seen at RAFW in May - Seafolly September 2010" or "White Sands 2009 - Seafolly 2010". These pages appeared in identical layout to those in Ms Madden's Facebook postings, as follows (with the names of the various creations and their creator added): … [16] In the afternoon of 2 September 2010, the online publication "Pedestrian TV" published an article titled White Sands Swimwear Calls Seafolly Plagiarists. This article was circulated to Seafolly's media relations agency by means of an e-mail from Pedestrian Daily News to Alex Losung sent at 4.53 pm on 2 September 2010 listing the headlines of the "Daily Pedestrian" news for 2 September 2010. One of the Daily Pedestrian headlines listed in the email was titled WHITE SANDS SWIMWEAR ACCUSE SEAFOLLY OF COPYING. [17] Following the dissemination of the e-mail, the publication of the statements on Ms Madden's personal and White Sands Facebook pages and the publication of the Pedestrian TV article, Seafolly's media relations agency Torstar Communications received a substantial number of telephone calls and e-mails about Ms Madden's statements. [18] At 5.26 pm on 2 September 2010, a fashion industry publication "Ragtrader" forwarded the e-mail to Torstar Communications, which then forwarded it to Seafolly. Seafolly was told by its media relations agent that "Ragtrader" was going to run a story on the allegations made by Ms Madden against Seafolly and that Seafolly had until 7:00 pm on 2 September 2011 [sic] to submit a statement to Ragtrader before it published its story, and that Daily Pedestrian was also going to run a story on the allegations made by Ms Madden against Seafolly. [19] On the evening of 2 September 2010, Seafolly issued a press release about the allegation ("Seafolly's first press release"). The press release was sent to Pedestrian TV and Ragtrader. It read, in part: "Earlier today Seafolly became aware that Leah Madden of White Sands Swimwear has made allegations on her facebook page that Seafolly has copied 7 of her swimwear designs. Ms Madden has posted on her facebook page reproductions of photographs from Seafolly's catalogue showing the Seafolly garments which she claims are copies of swimwear garments designed by White Sands Swimwear. Seafolly has also become aware that Ms Madden has sent e-mails to media outlets attaching Seafolly's photographs together with photographs of the White Sands Swimwear garments making these allegations of copying. Seafolly denies these claims and says that they are completely false and without foundation and says that the claims have been made maliciously to injure Seafolly. Seafolly will be taking immediate action to cause Ms Madden to withdraw these allegations. Seafolly notes that many of the designs which Ms Madden claims Seafolly has copied were released into the marketplace by Seafolly before White Sands Swimwear released its relevant swimwear garment. Seafolly also says that the other designs which Seafolly is alleged to have copied were substantially progressed in development prior to White Sands Swimwear releasing it (sic) relevant swimwear garments into the market place." The press release was authorised by Mr Anthony Halas, the Chief Executive Officer of Seafolly. [20] At about 7:00 pm, Ms Madden took down the postings on her website. [21] Later that evening, the fashion publication Ragtrader published an article entitled "EXCLUSIVE Seafolly v White Sands: Swim labels at arms". Shortly prior to the release of the Ragtrader article, Ragtrader contacted Ms Madden and advised her that Ragtrader had received a statement by Seafolly's lawyers. [22] At 7.24 pm on 2 September 2010, Seafolly's solicitors filed a copyright complaint notification with Facebook in respect to the Seafolly Photographs posted by Ms Madden seeking the removal of that content from Facebook. On 3 September 2010, Facebook sent Seafolly's solicitors an e-mail confirming that it had removed the relevant content from Facebook. [23] On or before 3 September 2010, Ms Madden posted a number of comments on the White Sands Australia Swimwear Facebook page. They were: • "Thank you for your kind support, FYI, It wasn't US that said Plagiarist!" followed by a link to Pedestrian TV article "White Sands Swimwear Calls Seafolly Plagiarists" and one of the Seafolly Photographs next to one of the White Sands Photographs; and • "...It wasn't a photographer. I had a private showing with a 'buyer' who came with a digital camera and took photos. As it turned out, that 'buyer' was Julie McLaren from Seafolly :(She also requested a seat at the show for her boss, Anth ...". [This comment was posted in response to a message from Zoe Emma Teasey asking "Did a photographer really come to your showing?"]; and • "White Sands Australia says: 'bullies be gone and take your bully tactics with you! We tiny little fledgling designers will not be taken advantage of!'" … [24] During the morning of 3 September 2010, Ms Madden told a journalist from Ragtrader that she could quote Ms Madden as saying that "I am also not claiming outright copying, just questioning the issue of similarity, in light of the fact that they requested the viewing earlier in the year". [25] On 3 September 2010, Seafolly, through its solicitors, sent a letter of demand to Ms Madden. It alleged infringement of Seafolly's legal rights and demanded that Ms Madden remove the allegedly offending material from her website and that of Seafolly, provide a written apology acknowledging that the representations appearing in the e-mails were false and provide an undertaking not to republish such statements. [26] Ms Madden responded to the letter of demand on the same day by e-mail to Seafolly's solicitors. Ms Madden stated: "It would be really helpful if you could indicate where any representative of White Sands has claimed 'copying'. I realise that others have said this, but am not aware of this word being used by anyone from White Sands. Are you referring to 'The most sincere form of flattery?' as this is a question, not a statement. Any comments made or questions posed, on my personal facebook page were personal, not for publication, and were removed yesterday, as were all images. I will forward your email to my solicitor, whom I am sure will be in contact if he believes it is necessary." [27] Ms Madden then sent a further e-mail to Melinda Oliver of Ragtrader on 3 September 2010 which stated: "I really need to clarify that White Sands has at no stage accused Seafolly of 'repeatedly ripping of' (sic) designs. Those words did not come from me or anyone on my team. Which is why earlier today I gave the the (sic) quote 'I am not claiming outright copying, just questioning the issue of similarity, in light of the fact that they requested the viewing earlier in the year.' I did not offer those words to inflame the situation. The comparisons have been made, and can not be undone, but at no stage has anyone of my team claimed plagiarism. Wherever possible would you please clarify this, as I am sure Seafolly would appreciate it as much as I would." [28] On 3 September 2010, Ragtrader published a further article about this dispute on its website, titled "EXCLUSIVE White Sands speaks out". [29] Ms Madden has discovered Facebook messages on a confidential basis that she sent and received on 3 September 2010, and in the early morning of 4 September 2010. The messages passed between Ms Madden's White Sands Facebook account and Ms Zoe Teasey's personal Facebook account. The first message, sent at 9:31 am on 3 September, was sent to Ms Teasey by Ms Madden. It said: "Can you do me a massive favour, and ask me on facebook if a seafolly staff member DID pose as a buyer to photograph the collection? At least then I can get it out there in a legitimate forum!" Ms Teasey replied in the following terms: "Yes on this account or on your personal account? What is your PR saying? Maybe they should issue a press release ASAP and have something printed! ... No it is fine I will post something!" Ms Madden then sent a message to Charles Kelly at 12:47 am on 4 September in similar terms as follows: "help! Can you do me a massive favour and pose the question about seafolly posing as buyers and photographing the collection? I have told them I won't make a statement, but I really need to get that part out there! Hopefully seafolly will be forced to answer that question at some stage. They have very conveniently ignored that point." Mr Kelly immediately responded in terms that suggest he had done so: "FINALLY they posted my comments (twice - idiots), but I think I made the point clear." [30] Ms Madden did not comply with Seafolly's demands, and on Monday 6 September 2010, Seafolly issued this proceeding seeking urgent injunctive relief. Ms Madden ultimately consented to an interim order restraining her from: • reproducing or authorising the reproduction of Seafolly's photographs without the consent of Seafolly; and • making the allegations about copying or aiding, abetting, counselling or procuring the making of such allegations. [31] Between 8 and 13 September 2010, Seafolly issued a second press release ("Seafolly's second press release"). This press release was sent to journalists from Pedestrian TV, The Age, and the Gold Coast Bulletin. It contained the following passages: "On Thursday 2 September 2010 Seafolly became aware that Ms Madden made allegations on her facebook page that Seafolly copied 8 of her swimwear designs. Ms Madden claimed that Seafolly copied these designs after a buyer from Sunburn (a company partly owned by Seafolly) attended a White Sands Fashion Show in May 2010 and saw the White Sands swimwear on display. Ms Madden posted on her facebook page (without Seafolly's consent) reproductions of photographs from Seafolly's catalogue showing the Seafolly garments next to White Sands garments. In addition, Seafolly has become aware that Ms Madden sent emails to media outlets attaching these photographic comparisons and making false allegations of copying. Seafolly denies these claims and says that they are completely false and without foundation. Seafolly says that these claims have been made maliciously to injure Seafolly and its business. Five of the designs which Ms Madden claims Seafolly has copied were released into the market place by Seafolly in March 2010. One of the designs was released into the marketplace by Seafolly in March 2009. The remaining two designs which Seafolly is alleged to have copied were substantially progressed in development prior to White Sands Swimwear showing these swimwear products to the market. White Sands Swimwear held their fashion parade in May 2010 and as the Seafolly garments alleged to be copies of the White Sands Swimwear garments were either already released to market or nearly completely designed, it is impossible that Seafolly copied the White Sands Swimwear that was on display during this parade. To clarify further media reports, a Sunburn swimwear buyer attended the White Sands RAFW parade in May 2010. Sunburn is a multi-brand swimwear chain that is partly owned by Seafolly. The Sunburn buyer attended many swimwear brand showings during this time with the intention to purchase product for the Sunburn stores in 2010. Ms Madden was aware that Sunburn is partly owned by Seafolly. During the viewing of the range in May 2010 photographs were taken on a blackberry device by the Sunburn buyer. Taking photographs by buyers is standard practice for the use of referencing when placing orders. These photos were not downloaded. Any allegations that the Sunburn buyer showed photographs of the White Sands garments to employees at Seafolly is totally false." The press release ended by advising that the present proceeding had been issued. 36 Having set out the background facts, the primary judge turned first to the issue of misleading or deceptive conduct. His Honour said that it was not disputed that if Ms Madden's statements conveyed the representations for which Seafolly contended, they would have been likely to mislead or deceive their readers and were false. Those representations were that: Seafolly had copied Ms Madden's swimwear designs which appeared in the photographs; Seafolly was not the creator of the original "Seafolly" swimwear designs depicted in the various adjoining photographs and that it had copied the White Sands garments; and Seafolly had used underhanded means (in the taking of photographs by Ms McLaren) to obtain pictures of the White Sands garments and then copied the White Sands garments to create the Seafolly garments from those photographs. 37 Having referred to the legal principles relevant to ss 52 and 53(a) of the Trade Practices Act by reference to CPA Australia Ltd v Dunn (2007) 74 IPR 495 at 500-1, the primary judge said the issue in dispute was whether the impugned statements could fairly be understood as conveying the representations about which Seafolly complained. His Honour therefore examined the language employed by Ms Madden (read in context), with a view to determining whether the persons to whom her statements were addressed were at risk of being misled or deceived. 38 Having considered each of the representations, his Honour concluded at [59] that their common feature was that each claimed that Seafolly had copied costume designs created by Ms Madden and marketed them as Seafolly products. This copying had been possible, in part at least, because Seafolly had access to the photographs which had been taken by Ms McLaren in order to facilitate the deception. When read in context, each of the representations about which Seafolly complained was false and was likely to mislead and deceive their readers. His Honour said at [60]: I have concluded that, when Ms Madden published her various statements, she believed, erroneously, that Seafolly had copied her garments. Her choice of language was intended to and did convey to her readers that such copying had, as a matter of fact, occurred. 39 The primary judge then considered whether the statements were mere expressions of opinion as contended by Ms Madden. After referring to Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 88 and Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1 at 46-7, he said at [66]-[67]: In Industrial Equity Limited v North Broken Hill Holdings Limited (1986) 9 FCR 385 at 392-3, Burchett J emphasised that the necessary judgment had to be formed in the context in which the relevant statements were made. Like Hill J, his Honour considered that, where statements "assert some matter of physical observation", it is more likely that the statement will be treated as one of fact. His Honour also contemplated (at 393) that the expressing of an opinion could contravene s 52(1) if that opinion was not "honestly made": see Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191 at 213 [124] and the cases there cited. An opinion will not be treated as being honestly held if it is formed with reckless indifference to the true position and no serious attempt has been made to ascertain the true position: see Bateman v Slatyer (1987) 71 ALR 553 at 559. The expression of an opinion which is not "honestly held" will be indicative of malice: cf Harbour Radio Pty Limited v Trad (2012) [247 CLR 31 at [26]]. In my view, when read in context, the statements would not have been understood by the class of persons to whom they were directed as mere expressions of Ms Madden's opinions. My reasons for so concluding appear above at [50]-[59]. 40 The primary judge then considered and concluded, in the alternative, that even if, contrary to his view, each of the impugned statements made by Ms Madden constituted no more than the expression of opinions held by her, this defence failed because she was reckless in giving public expression to them and there was no adequate foundation for any of them. The reasoning was that an opinion could contravene s 52(1) of the Trade Practices Act if that opinion was not "honestly made" and an opinion will not be treated as being honestly held if it is formed with reckless indifference to the true position and no serious attempt is made to ascertain the true position. The primary judge held at [69] that Ms Madden's failure to take the steps his Honour identified (or some of them) was not merely careless. It resulted from her conviction that copying had occurred and her determination to expose what she saw as Seafolly's misconduct. He found that her resolve was such that she was prepared to and did make the statements not caring whether they were true or false. 41 The primary judge then went on to consider whether ss 52 and 53(a) of the Trade Practices Act applied to Ms Madden as a natural person and held that they did by virtue of s 6(3) as each of the impugned publications was promulgated using the internet and thus amounted to use by Ms Madden of telephonic services. 42 Next his Honour considered whether the impugned conduct occurred in trade and commerce. He concluded at [83] that it had as Ms Madden was the principal of White Sands, a trade competitor of Seafolly. He said her statements related to the manner in which Seafolly conducted its business. She alleged that Seafolly had engaged in conduct which was improper to the detriment of her own business. She thereby sought to influence the attitudes of customers and potential customers of Seafolly. In these circumstances, her statements were made "in trade or commerce". 43 Lastly on this aspect of the case the primary judge considered remedies. 44 As to damage, Seafolly's sales and profitability were, on its own figures, wholly unaffected by what occurred. 45 However, the primary judge awarded Seafolly damages under s 82 in the amount of $25,000 on the basis that compensation was available for damage to a corporation's reputation. 46 His Honour referred to Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167 at 183; Brabazon v Western Mail Limited (1985) 8 FCR 122 at 129; Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1986) 65 ALR 500 at 525; FAI General Insurance Company Ltd v RAIA Insurance Brokers Ltd (1992) 108 ALR 479; Nixon v Slater and Gordon (2000) 175 ALR 15; and Cryeng Pty Ltd v Loyola [2011] FCA 956. 47 The primary judge said the evidence established that Seafolly had a strong and positive image in the swimwear industry and that that reputation was important to it in a highly competitive environment. Any damage did not, however, appear to have been significant or ongoing. It was relevant, his Honour said, in attempting to quantify loss, as Wilcox J held in Typing Centre of NSW Pty Ltd v Northern Business College Ltd (1989) 13 IPR 627 at 641, to have regard to "the nature of the statements made by the respondents and to the manner and extent of their publication." Ms Madden's Facebook postings were accessible to the "friends" of the sites for less than two days while the White Sands Facebook postings were accessible for a slightly longer period. The numbers of people with access to the pages was relatively small. The same could not be said of the 2 September 2010 email to trade and general press outlets. The contents of this email had the potential to be widely published. In the event it did not appear that they were. They excited interest in the trade publications but did not seem to have led to any significant publicity in the mainstream press. His Honour referred to his previous finding that the allegations made by Ms Madden were a serious assault on Seafolly's business integrity. 48 The primary judge then considered injunctions and declarations. 49 The next issues arose from the cross-claims in defamation and misleading or deceptive conduct founded on each of the two press releases by Seafolly in stating Ms Madden's statements had "been made maliciously to injure Seafolly" or "made maliciously to injure Seafolly and its business." 50 The issues the primary judge considered in relation to defamation were: first, whether the two Seafolly press releases were defamatory of Ms Madden; second, whether the defence of justification was available on the basis that the publications were substantially true in that the statements attributed to Ms Madden had been made maliciously with the intent to injure Seafolly; third, the defence of fair comment; and fourth, the defence of qualified privilege. 51 As to the first of these issues, whether the two press releases were defamatory of Ms Madden, the primary judge held that Seafolly's statements were defamatory of Ms Madden: they asserted that she had acted in a malicious way in order to harm Seafolly's commercial interests. 52 As to the second and third of these issues, whether the defences of justification and contextual truth were available, the primary judge upheld Seafolly's defence of justification. The primary judge said, at [136], that he had already found that Ms Madden did act maliciously in the sense recognised by the authorities and referred to his reasons at [68]-[72]. 53 As to the fourth of these matters, fair comment, the primary judge held, at [142], that the matters complained of were not protected by the defence of fair comment because Seafolly's statements in its two press releases made allegations of fact: that Ms Madden had acted maliciously for the purpose of damaging Seafolly's commercial interests. 54 As to the fifth and last of these matters, the primary judge held that Seafolly had made good its defence of qualified privilege. He referred to Penton v Calwell (1945) 70 CLR 219 at 233-4, Harbour Radio Pty Limited v Trad (2012) 247 CLR 31 at [33] per Gummow, Hayne and Bell JJ and to Adam v Ward [1917] AC 309 at 321 per Earl Loreburn, which had been cited by Gummow, Hayne and Bell JJ and said, at [148]: Seafolly made the statements in its press releases in response to attacks made on it by Ms Madden. It sought to defend itself from the allegations, made by her, which it knew to be untrue. In replying, Seafolly impugned both the veracity and motivation of Ms Madden. Its allegation was that Ms Madden had acted maliciously in order to damage its business. Seafolly's response, in my opinion, was commensurate with the serious allegations which had been levelled against it. Seafolly did not, itself, act maliciously. 55 In relation to the cross-claim that the press releases contained representations by Seafolly, in trade and commerce, that Ms Madden had knowingly made false claims about the copying of her swimwear designs by Seafolly with the malicious intent of damaging Seafolly and that those representations were false, the primary judge, at [151]-[152], said that this part of the cross-claim also failed because Seafolly's claim that Ms Madden's statements about it having copied her garments being made maliciously for the purpose of injuring Seafolly were true and were not apt to mislead.

The grounds of appeal 56 The notice of appeal filed on 20 December 2012 and amended on 19 February 2013 listed the following grounds of appeal: Appeal against Judgment on the claim 1. The learned trial judge erred in holding that the Respondent to the proceeding (Madden) by her conduct referred to in paragraphs [10] to [15] of the Reasons for Judgment (the alleged statements) breached ss 52 and 53(a) of the Trade Practices Act 1974 (Cth) (Trade Practices Act), and ought to have held that Madden had not breached that Act. 2. The learned trial judge erred in law in that despite correctly stating in paragraph [62] of the Judgment, that he was required to consider each of the alleged statements separately to determine whether or not they conveyed the representations alleged and otherwise contravened the Act, he failed to do so (see paragraphs [50] - [59], [67] and [83] of the Judgment). 3. The learned trial judge erred in holding that the alleged statements would have been understood by those who read them to convey a statement of fact rather than the expression of an opinion by Madden (see paragraphs [66]; [67]; [50] - [60] of the Judgment). 4. The learned trial judge erred in holding that the alleged statements would have been understood by those who read them to convey a statement of fact rather than the expression of an opinion and in doing so he took into account irrelevant considerations including (a) the content of articles written in trade journals; (b) subsequent responses from unidentified readers of those articles; and (c) Madden's intention (see paragraphs [55] - [57] and [60] of the Judgment). 5. The learned judge erred in law in holding that if the alleged statements were merely an expression of Madden's opinions they were not honestly held (paragraph [66], [68] of the Judgment) and were malicious in circumstances where his Honour found that Madden had believed, albeit erroneously, that the Applicant in the proceeding (Seafolly) had copied her garments (see paragraphs [60] and [69] of the Judgment). 6. The learned trial judge erred in law in holding that if the alleged statements were merely an expression of Madden's opinions they were not honestly held in that he took into account the letter from Seafolly stating that the allegations were unfounded sent on 3 September 2010 (see paragraph [71] of the Judgment) after the alleged statements were made (see paragraphs [11] to [15] of the Amended Statement of Claim). 7. The learned trial judge erred in law in finding that a failure by Madden to make further enquiries as to the truth of the alleged statements was sufficient to support a finding of malice and lack of honest belief (see paragraphs [66], [68] and [69] of the Judgment). 8. The learned trial judge erred in law in holding that the alleged statements were made in trade and commerce, and ought to have found that they were not made in trade and commerce (see paragraphs [80] - [83] of the Judgment). 9. The learned trial judged erred in law in holding that the alleged statements were statements within the meaning of section 53(a) of the Trade Practices Act (see paragraphs [74] - [75] of the Judgment). 10. The learned trial judge erred in law in holding that Seafolly had suffered damage as a result of the conduct of Madden and erred in awarding the sum of $25,000 in damage (see paragraph [97] of the Judgment) to its reputation where his Honour found, consistent with the weight of evidence, that Seafolly had been wholly unaffected by the alleged statements (see paragraphs [87] and [88] of the Judgment) and had not suffered any pecuniary or economic loss, or any ongoing damage (see paragraph [95] of the Judgment). 11. The learned trial judge erred in finding that he had power to award damages to Seafolly pursuant to section 82 of the Trade Practices Act for damage to its reputation in circumstances where he also found that Seafolly had suffered no actual damage. 12. The learned trial judge erred in finding that Seafoly Seafolly had suffered damage to its reputation when there was no or insufficient evidence to support such a finding (see paragraph [114] of the Judgment). 13. The learned trial judge erred in law in that in determining what relief to grant Seafolly he took into account the reputation of Seafolly's employees (see paragraph [153] of the Judgment), a matter irrelevant to any pleaded cause of action. 14. The learned trial judge erred in law in that he failed to consider the argument raised by Madden that Seafolly was not the owner of reputation in the trade mark "SEAFOLLY" as elaborated in paragraphs [116] to [119] of the Respondent's Closing Written Submissions filed in the proceeding. Appeal against judgment on the cross-claim 15. For the reasons stated in grounds 5, 6 and 7 hereof, the learned trial judge erred in law in finding that Seafolly had justified the imputation relied upon by Madden in her cross-claim that she had acted maliciously. 16. For the reasons stated in grounds 5, 6 and 7 hereof, the learned trial judge erred in law in finding that Seafolly's statements which were the subject of Madden's cross-claim under section 52 of the Trade Practices Act were not likely to mislead or deceive (see paragraph [151] of the Judgment). 17. The learned trial judge ought to have found that Seafolly had breached section 52 of the Trade Practices Act and ought to have upheld the cross-claim on that basis (see paragraphs [151], [152] of the Judgment). 57 Grounds 6 and 13 were not pressed by the appellant and have been marked accordingly. 58 The appellant also sought leave to amend to add as a further ground: The learned trial judge erred in law in upholding Seafolly's defence of qualified privilege. 59 The appellant also submitted that order 1.6 made by the primary judge was wrong on any view as a matter of what the email in fact said.

Issues 60 The issues which arise on the appeal are as follows. (1) Whether the primary judge's approach to the Trade Practices Act claim was correct in six respects: (i) whether the primary judge erred by considering the publications together as a single course of conduct and by treating the readers of the publications as if they were a single class; (ii) whether the primary judge mischaracterised Ms Madden's representations as statements of fact rather than statements of opinion; (iii) whether the primary judge erred in determining what representations were conveyed by each publication by neglecting to take the nature of email and Facebook media into account; (iv) whether the primary judge erred in determining what a reasonable member of the class to which a publication was directed would reasonably understand it to convey because he had determined, or been assisted in determining, the meaning of the publications by reference to dubious presumptions as to the actual understanding of unidentified persons who posted comments, journalists who received the 2 September email and readers of two trade journals, none of whom gave evidence at the trial; (v) whether the primary judge erred in determining how members of each class to whom each of the publications was directed would have reasonably understood them by taking into account his conclusion as to Ms Madden's intention in making the publications; (vi) whether the primary judge erred in concluding that even if the representations were expressions of opinion, they contravened the Trade Practices Act because Ms Madden was reckless in forming them and acted precipitately. (2) Whether Ms Madden's 'personal' Facebook statements were 'in trade or commerce' for the purposes of the Trade Practices Act. (3) Whether the statements by Ms Madden were in connexion with the supply of goods or services within the meaning of s 53(a) of the Trade Practices Act. (4) Whether the primary judge erred in the award of damages. (5) In relation to Ms Madden's cross-claim, whether the primary judge erred in finding that Seafolly had made out the defence of justification. (6) In relation to the appellant's cross-claim, whether the appellant should have leave to add a ground of appeal as follows: The learned trial judge erred in law in upholding Seafolly's defence of qualified privilege. and, if leave were granted, whether that ground was made out. (7) Whether the primary judge erred in finding that Seafolly's publications were true and therefore not apt to mislead and, accordingly, that Ms Madden's cross-claim under the Trade Practices Act also failed. (8) Whether order 1.6 was wrong as a matter of what the email in fact said.

Whether the primary judge's approach to the Trade Practices Act claim was correct 61 As to (1), the primary judge's approach to the Trade Practices Act claim, Senior Counsel for Ms Madden submitted that the primary judge's reasoning was infected with two principal errors. The first was that his Honour treated three distinct publications with distinct characteristics compendiously. Secondly, it was submitted that his Honour erred in identifying the dividing line between fact and opinion in the s 52 jurisprudence by distinguishing, in effect, a mere expression of opinion on the one hand from everything else on the other. It was submitted that in this latter respect the primary judge should have drawn the dividing line between a fact, a statement of established or historic fact, on the one hand, and matters of comment upon facts, including the possible or probable existence of the facts and opinions, on the other. Reliance was placed on Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at [35], Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486 and Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304. 62 The trial proceeded on the basis that there were three publications, Ms Madden's Facebook postings, the White Sands Facebook posting, and the 2 September email: cf Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 at [102] emphasising that the 'conduct' with which s 52 deals is not confined to 'representations'. The primary judge, at [62], accepted the submission by Ms Madden that each of the three publications had to be examined separately and discrete decisions made as to whether the relevant statutory provisions had been contravened. 63 In so approaching the matter, which involves treating the conduct for the purposes of s 52 as three instances of conduct rather than one, we see no error in the primary judge's approach. 64 Importantly, his Honour noted at [42] that it was not disputed that if Ms Madden's statements conveyed the representations for which Seafolly contended, they would have been likely to mislead or deceive their readers and were false. 65 The only issue for the primary judge therefore, was whether each of Ms Madden's statements conveyed to the ordinary reasonable reader of the relevant publication the meanings for which Seafolly contended, that is, did it convey the meaning that Seafolly had copied Ms Madden's swimwear designs which appeared in the photographs, that Seafolly was not the creator of the original "Seafolly" designs and had copied the White Sands garments; and, in the cases of the Facebook postings, Seafolly had used underhanded means to obtain pictures of the White Sands garments and then copied the White Sands garments to create the Seafolly garments from those photographs. 66 We adopt, for present purposes, the approach contended for by Ms Madden as stated in Dynamic Hearing Pty Ltd v Polaris Communications Pty Ltd (2010) 273 ALR 696, [85]-[86], per Besanko J with whom Moore and Gordon JJ relevantly agreed. His Honour said: The weight to be given to the advantages enjoyed by the primary judge will depend on the nature of the alleged error under consideration. …. With these considerations in mind, I think this court must consider the evidence relevant to each alleged error and decide for itself the proper conclusion. If it is a conclusion which differs from the primary judge, then the proper conclusion is that the primary judge has erred. …. 67 Considering first Ms Madden's Facebook postings, it is in our opinion clear that Ms Madden's statements did convey the meanings found by his Honour. We see no error in the analysis of Ms Madden's Facebook postings made by the primary judge, especially at [51]. 68 Considering next the 2 September email, in our view it is clear that the email, sent, as the primary judge noted, to a number of journalists amongst others, conveyed the meanings that Seafolly had copied Ms Madden's swimwear designs which appeared in the photographs, that Seafolly was not the creator of the original "Seafolly" swimwear designs so depicted and that it had copied the White Sands garments. Senior Counsel for Seafolly conceded in argument before the Full Court that the 2 September email did not convey the third representation, that is, that Seafolly had used underhanded means (in the taking of photographs by Ms McLaren) to obtain pictures of the White Sands garments. 69 Apart from the matter so conceded, we see no error in the analysis by the primary judge at [15] and [54]-[57]. In our opinion, the central fact on this issue was the attachment to the email of the eight pairs of photographs with the captions "White Sands 2009 - Seafolly 2010" and "White Sands as seen at RAFW in May - Seafolly September 2010" in the context of the subject line "The most sincere form of flattery?" and the text "is it just us, or has Seafolly taken a little to [sic] much 'inspiration' from White Sands?". 70 The juxtaposition of each pair of the photographs invited the reader to compare the two swimsuit designs in the context of the questions that Ms Madden had posed. The answer to those questions was not far to seek. The primary judge was correct in his findings as to the meanings these publications conveyed. An ordinary reasonable reader would reason in the same way as his Honour found. The basis of that reasoning process was explained by the Privy Council in Jones v Skelton [1963] SR (NSW) 644 at 651 and Lloyd v David Syme & Co Ltd [1986] AC 350 at 363H-364A where publishers had used potentially ambiguous words to avoid saying directly what they were getting at in their publications. Their Lordships said in Jones: The reader, a jury might conclude, was invited to adopt a suspicious approach and so to be guided to the real explanation of what had taken place - an explanation which the writer … did not care or did not dare to express in direct terms. 71 Considering last the White Sands Facebook posting, Ms Madden submitted that it did not convey any of the three representations found by the primary judge. She submitted that the reasoning that led the primary judge to the contrary conclusion was not developed in the judgment, beyond the passage at [58]. There was a suggestion in that passage that his Honour may have taken into account the contents of the Pedestrian TV article in ascertaining the representations conveyed by the White Sands Facebook page. If so, she argued, the learned trial judge plainly erred. There was no evidence that anyone who had read the White Sands Facebook page had clicked through to and read the Pedestrian TV article. In the absence of evidence, there could be no such presumption. Ms Madden submitted that as none of the representations relied upon by Seafolly was conveyed by the White Sands Facebook page, the primary judge should have dismissed Seafolly's causes of action founded upon that publication. 72 Seafolly submitted that the untrue allegations of plagiarism were published on Ms Madden's White Sands Facebook page and referred to [12] of his Honour's reasons. Seafolly also submitted that the primary judge's reliance on reader responses was not misplaced as the responses were contemporary evidence of what readers of Ms Madden's statements understood by them, as followed from the nature of Ms Madden's dissemination. In oral submissions, Senior Counsel for Seafolly's primary submission was that the Court could look at the publication individually and deduce from it the representations found by the primary judge. Senior Counsel submitted that the bully tactics addressed the question of something that Seafolly had done to Ms Madden. Next he submitted that Ms Madden had republished the allegation of plagiarism and that she also impugned Ms McLaren from Seafolly in correcting Ms Teasey, who had suggested that a photographer came to the White Sands showing. Ms Madden stated that it was not a photographer, but a private showing with a 'buyer' who came with a digital camera and took photos. Ms Madden had posted on the White Sands Facebook page: "As it turned out, that 'buyer' was Julie McLaren from Seafolly …". As a result, Senior Counsel argued Ms Madden had republished the fact that her claim had been published in Pedestrian TV. He contended that the words posted on the Facebook page told the reader that Ms Madden had called Seafolly plagiarists and that plagiarism was a very damning accusation and showed that she had been prepared to make it. Ms Teasey had been following the saga from the day before. It would be naive to think that Ms Madden was not actually communicating, in the way in which the page would be read, that there was an assertion which Ms Madden adopted and published that White Sands had called Seafolly plagiarists and she had to be the source of it. 73 The White Sands Facebook page on the morning of 3 September 2010 initially appeared as depicted in the screenshot below but there was more content on the page because a reader could scroll further down it to read the earlier postings: 74 In our opinion, the central fact on this issue was the juxtaposition of two photographs, one of White Sands swimwear and one of Seafolly swimwear, against the statement (appearing below the invitation to write something) "White Sands Swimwear Calls Seafolly Plagiarists - Fashion News - Pedestrian TV". Added to this was White Sands' correction lower down the page that it was not a photographer who took the photos of the White Sands swimwear but a 'buyer' from Seafolly. We see no error in the analysis by the primary judge. It is true to say that the analysis in [58] and in [59] so far as concerns the White Sands Facebook page is limited but it is sufficient and we take the analysis to reflect the way the case was run at first instance. 75 An ordinary reasonable reader will read a publication as a whole before drawing a conclusion as to the meaning it conveys to him or her. There was no evidence before the primary judge as to how readers of Facebook postings would read them. Here, a continuous string of postings on the White Sands Facebook pages between 1 and 3 September 2010 discussed how Seafolly may have come to offer for sale the swimwear designs in the juxtaposed photographs. It is likely that the ordinary reasonable reader of the postings would not have read just the latest posting. 76 The context in which Ms Madden, as White Sands, made those postings included the preceding postings, lower down on the same page. The 3 September 2010 postings themselves referred back to White Sands' earlier postings that a reader would be drawn to lower down on the page. The way in which the ordinary reasonable person reads postings on a Facebook page is unlikely to be the same as the careful and analytical way in which he or she would read a document of great significance for him or her. Rather, the postings are of a conversational character involving a series of short or relatively short statements, often reactive to an earlier posting that appears, or can be found by scrolling, lower down on the same web-page. 77 Where a Court is required to find the meaning conveyed by a publication, document or conduct it must consider the characteristics of the addressee. Sometimes the addressee will be a particular individual or individuals whose actual state of mind can be ascertained at the time when he or she perceived the publication, document or conduct. On other occasions, such as here, there will be very many persons in the class of addressees with their own disparate, distinct characteristics so that it is not practicable or possible to analyse individual circumstances. In such cases, the Court must identify the characteristics of the ordinary reasonable person in the class of addressees and assess the issue by reference to how that hypothetical person would have understood the publication, document or conduct. These concepts are explained, as to issues of misleading or deceptive conduct, by Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ in Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 at 84-85 [100]-[103] and, as to issues of what meaning is conveyed, by Hunt CJ at CL, with whom Mason P and Handley JA agreed in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165B-167B. Each judgment emphasises the characteristic of reasonableness in the circumstances where the Court is analysing how the hypothetical addressee would have understood the publication or conduct complained of. 78 Here, the 2 and 3 September 2010 postings concerning the Seafolly designs did not appear on the White Sands Facebook page by themselves or out of context. They had been preceded by the earlier postings on the same subject. The ordinary reasonable reader would have read the newest posting in the context of those immediately below them on the same topic. It would be artificial to think that a reasonable reader who viewed either page without any earlier awareness of the preceding postings on the topic of the Seafolly designs would read only the latest posting. Indeed, the conversational style of the postings suggested that the uninformed ordinary reasonable reader would need to familiarise himself or herself with what was currently being discussed. By doing so, he or she would readily have concluded, as did the primary judge (at [59]), that the common feature of the representations complained of by Seafolly was that it had copied, or plagiarised, Ms Madden's designs. Read chronologically, each of the postings complained of reinforced that conclusion. That meaning was conveyed from first to last with each subsequent posting drawing on the earlier. 79 We are not persuaded that the primary judge made the first of the principal errors for which the appellant contends. Not only did the primary judge say, at [62], that it was necessary that each of the three publications had to be examined separately and discrete decisions made, but that is what the primary judge did at [51]-[53], [58] and [54]-[57] respectively and in summary, referring to each of the statements, at [59]. 80 We reject the submission that the primary judge erred by considering the publications together as a single course of conduct and by treating the readers of the publications as if they were a single class. We also reject the submission that the primary judge erred in determining what representations were conveyed by each publication by neglecting to take the nature of email and Facebook media into account: in our opinion, the primary judge plainly took into account those matters. 81 His Honour appears to have considered that each of the intention of Ms Madden to convey the representations complained of and the understanding of persons who read what she had published was relevant to ascertaining whether the representations complained of were, in fact, conveyed. In the end, his Honour correctly concluded that the three representations complained of were conveyed by White Sands' and Ms Madden's Facebook postings and that the first two were also conveyed by the 2 September 2010 email (but, as noted above, his Honour erred in finding that the third representation was conveyed by the email). 82 The question of what meaning each publication conveyed in its natural and ordinary meaning to the public or a class of persons is not determined by evidence of persons who may have read, saw or heard it for the purposes of the law of defamation or legislation as to whether conduct is misleading or deceptive or likely to mislead or deceive the public or class. The question of what is the natural and ordinary meaning conveyed by a publication or conduct is ascertained by the Court or jury applying an objective test of what ordinary reasonable readers, listeners, viewers or members of the class would have understood as the meaning. Thus, in Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506, Brennan J, with whom Gibbs CJ, Stephen, Murphy and Wilson JJ agreed (see too Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at 468 [7] per French CJ, Gummow, Kiefel and Bell JJ) explained the role of the judge or jury: Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation (Byrne v Deane [[1937] 1 KB 818 at p 833], being a standard common to society generally (Miller v David [(1874) LR 9 CP 118]; Myroft v Sleight [(1921) 90 LJKB 883]; Tolley v J.S. Fry & Sons Ltd [[1939] 1 KB 467 at p 479]). It follows that the challenged evidence was not admissible to show the meaning which the hypothetical referees would place upon the words in the book. In Abraham v The Advocate Co Ltd [[1946] 2 WWR 181 at p 182] Lord Goddard, delivering the advice of the Judicial Committee, said that witnesses "cannot be asked what meaning they attached to the words because that is the very question the jury have to decide". 83 In cases dealing with issues under s 52 and its analogues whether conduct is misleading or deceptive or likely to mislead or deceive, the Court in Nike 202 CLR at 85 [103] held that "… where the effect of conduct on a class of persons, such as consumers, was in issue, the section must be 'regarded as contemplating the effect of the conduct on reasonable members of the class'" citing what Gibbs CJ had said Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199. See too Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 304 ALR 186 at 195-198 [46]-[56] per French CJ, Crennan, Bell and Keane JJ. The intention of the publisher of defamatory matter to convey the imputations or meanings complained of can be, however, relevant to the issue of whether the publisher was actuated by express malice in making the publication. 84 It is then necessary to consider whether the primary judge erred in concluding that each of the three publications was not a mere expression or expressions of opinion. To repeat, the general submission on behalf of Ms Madden was that the primary judge erred in identifying the dividing line between fact and opinion in the s 52 jurisprudence. 85 The primary judge referred to articles written by journalists to whom Ms Madden had sent her email of 2 September 2010 and comments by readers of those articles (at [55]-[58]) on which Seafolly relied for its malicious falsehood claim. His Honour found that it was "evident from the terms of those articles … [that] the journalists who prepared them clearly understood the 2 September e-mail to contain allegations of copying, made by Ms Madden, against Seafolly. So too did the readers of the articles". The email was headed "The most sincere form of flattery?" and its text was "Is it just us, or has Seafolly taken a little to [sic] much 'inspiration' from White Sands?" together with the eight sets of captioned photographs. The primary judge was entitled to find that this email conveyed only the first two misleading representations referred to in declarations 1.7 and 1.8. The email invited its recipients to draw those conclusions. However, if the primary judge used the articles written by the journalists and the readers' responses to ascertain what the Facebook postings and email conveyed, he would have been in error. In the end, if his Honour made that error, it was of no consequence because he correctly identified the meanings that were conveyed. 86 Turning to the authorities relied on by Ms Madden, Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 was a s 52 case. At [32] French CJ said: It is important in considering whether conduct is misleading or deceptive to identify clearly the conduct to be characterised. If the conduct is said to consist of a statement made orally or in writing, the first question to be asked is what kind of statement was made. Was it a statement of historic or present fact made on the basis that its truth was known to its maker? Was it a statement of opinion? That is to say was it a statement of "judgment or belief of something as probable, though not certain or established". (footnotes omitted) 87 Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486 considered, relevantly, s 1041H of the Corporations Act 2001 (Cth) concerning misleading or deceptive conduct, or conduct likely to mislead or deceive, in relation to a financial product. The principle relied on by Ms Madden was what Heydon J said at [94]: At least in the context of this case, whether an agreement is a binding contract involves a question of law - that is, a question of opinion. That is the alternative way in which ASIC's case was put - the way it was put in paras 27(b) and 28(d). It was the way the trial judge approached the case. The ASX announcement was not expressly stated in the language of opinion, but what it said about the CREC agreement being a "binding contract" was identifiable as an opinion. The binding quality of an alleged contract is an inherently controversial matter of professional judgment. It is distinct from the historical facts that negotiation occurred and a written agreement was signed. (footnotes omitted) 88 Ms Madden submitted that whether something amounted to plagiarism inherently involved a question of professional judgment. Much the same as a legal judgment, it was a matter about which reasonable minds could differ. At what point does taking inspiration cross the line into plagiarism? She submitted that an allegation of copying or plagiarism, where it was based upon an evaluation of photographs as it was in the case of the email, must import an element of professional judgment rather than assertion of fact. 89 We reject this submission. In our opinion Ms Madden's statements included statements of historic or present fact. Each such statement was made on the basis that its truth was known to its maker. We note in this respect the following questions and answers in the cross-examination of Ms Madden: Now, you know that on that page you had made claims of copy - you don't deny that? --- On what page. On your personal Facebook page? --- Yes. You have made direct claims of copying? --- Yes. In any event, Ms Madden being a professional swimwear designer, the allegation of copying was apt to import an element of professional judgment rather than assertion of fact. 90 An opinion, generally, is an expression of a point of view based on an identified matter or state of affairs. In the common law of defamation, a defence of fair comment on a matter of public interest could not succeed if the publisher misstated the facts on which the opinion was based: Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 at 319-320 per Fletcher Moulton LJ; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 252-253 [4]-[6] per Gleeson CJ, 266 [41], 270 [47] per Gummow, Hayne and Heydon JJ. In essence, the common law defence was concerned to protect the right of persons to express their opinions about facts, such as an event in politics or other aspects of public life, a privileged occasion (such as what was said in a Parliament or a Court), the production of a film or play or the experience of dining at a restaurant. In theory, the common law assumed that either the critic set out, as part of what he or she communicated or referred his or her audience to, or assumed that the audience knew as notorious, a fact and then expressed a view about the fact. By referring to the fact, the critic allowed the audience to consider whether or not they agreed with his or her opinion about it. But, if the critic got the facts in his or her description of them wrong, the common law refused to let him or her defend what he or she said about those "facts" as an opinion. 91 In Thompson v Truth and Sportsman Ltd (1932) 34 SR (NSW) 21 at 24-25 Lord Thankerton, delivering the advice of the Privy Council, cited with approval what Fletcher Moulton LJ had said in Hunt [1908] 2 KB at 319 in rejecting a defence of fair comment and added "… the facts are not truly stated and the necessary foundation for any comment, if separable comment there be, is wanting …". See too Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 322 per Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ; Manock 232 CLR at 253 [5] per Gleeson CJ, 268 [45] per Gummow, Hayne and Heydon JJ. 92 In the present case, Ms Madden captioned six of the eight Seafolly photographs with incorrect dates of the release of the designs depicted in them. If the dates had been correct, it may have been open to her to argue that what she conveyed about Seafolly was an expression of her opinion. Indeed, Ms Madden's misstatements about the dates of Seafolly's designs going onto the market were part of the misleading nature of her conduct. The dates when Seafolly's designs were marketed were facts, not opinions. Ms Madden got the dates wrong. The dates were critical to her complaint, or on her case, her opinion of plagiarism. Obviously, if she had stated accurately that Seafolly had released its designs before the White Sands comparators, Ms Madden could not have made the assertions that she did. What Bowen CJ, Lockhart and Fitzgerald JJ said of a corporation in Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 at 88 is equally true of an individual, namely: If a corporation is alleged to have contravened s. 52(1) by making a statement of past or present fact, the corporation's state of mind is immaterial unless the statement involved the state of the corporation's mind. Whether or not s. 52(1) is contravened does not depend upon the corporation's intention or its belief concerning the accuracy of such statement, but upon whether the statement in fact contains or conveys a meaning which is false; that is to say whether the statement contains or conveys a misrepresentation. Most commonly, such a statement will contain or convey a false meaning if what is stated concerning the past or present fact is not accurate; but a statement which is literally true may contain or convey a meaning which is false. (emphasis added) 93 Ms Madden's mistaken belief about when Seafolly's designs were first publicly released cannot justify her then arguing that she was entitled to express an opinion about that false state of affairs. What she wrote was misleading or deceptive because she got the critical facts, from which she drew conclusions, wrong. 94 The primary judge considered that the statements complained of would not have been understood by the class of persons to whom they were addressed as mere expressions of Ms Madden's opinion. Indeed, they were not, for the statements included the critical, but false, dates she used for the comparisons in the juxtaposed photographs. Ms Madden did not put the dates or Ms McLaren's use of her photographs forward as her opinion. She built a house of cards on a false foundation. The falsity of the dates and what Ms McLaren did with her photos having been exposed, the opinions, if that is what they were, were as misleading and deceptive as the false premise with which they were conveyed. The collapse of the cards means that Ms Madden has failed to make good a defence based on expressing an opinion. 95 In our opinion there was no error in the conclusion of the primary judge that in the circumstances the representations were statements of fact and thus constituted misleading or deceptive conduct because the statements were false. We reject the submission that the primary judge mischaracterised Ms Madden's representations as statements of fact rather than statements of opinion. 96 The primary judge's findings as to Ms Madden's state of mind, from [67] and following, were in the alternative and it is not necessary in the present context to consider that issue, being whether the primary judge erred in concluding that, even if the representations were expressions of opinion, they contravened the Trade Practices Act because Ms Madden was reckless in forming them and acted precipitately. However, it will be necessary to consider those findings in dealing with Ms Madden's defamation claim at [118]-[164] below.

Whether 'personal' Facebook statements were 'in trade or commerce' for the purposes of the Trade Practices Act 97 As to (2), whether Ms Madden's 'personal' Facebook statements were 'in trade or commerce' for the purposes of the Trade Practices Act, the primary judge at [81]-[83] referred to Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 604, Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) 179 ALR 449 and Fire Watch Australia Pty Ltd v Country Fire Authority (1999) 93 FCR 520. The primary judge then said that in the present case, Ms Madden was the principal of White Sands, a trade competitor of Seafolly. Her statements related to the manner in which Seafolly conducted its business. She alleged that Seafolly had engaged in conduct which was improper to the detriment of her own business. She thereby sought to influence the attitudes of customers and potential customers of Seafolly. 98 We would add to the last point that the evidence showed that a substantial number of those who made comments on the personal Facebook page were in the fashion industry. Ms Madden posted comments on her personal site using both her own name and the name "White Sands Swimwear Australia" responding to the postings of her Facebook "friends" or, perhaps more accurately, correspondents. For example, she wrote on her personal page under the White Sands name: "Lucy and Holly!!! These are the rip offs Seafolly did! Jeeze, you girls. We have them in Black, in store now:)". Taking these matters in combination it should not be concluded, in our opinion, that any of the Facebook statements were of a private character and in our opinion there was no error in the conclusion of the primary judge that the statements had a trading or commercial character. It follows that Ground 8 fails.

Whether the statements by Ms Madden were in connexion with the supply of goods or services within the meaning of s 53(a) of the Trade Practices Act 99 As to (3), whether the statements by Ms Madden were in connexion with the supply of goods or services within the meaning of s 53(a) of the Trade Practices Act, considering it as a distinct ground, her Senior Counsel conceded that it was unlikely to have any consequences for the ultimate disposition of the appeal. Nevertheless, it was put on her behalf that there has to be a nexus between the publication and the supply, or the promotion of the supply of goods, and that that nexus was not present in respect of any of the publications: Ms Madden was raising, in one form or another, her allegations of copying, and she was not doing so with a sufficiently close nexus to the supply or possible supply, or the promotion of the supply of goods. 100 In our opinion, put generally, as this ground of appeal was put, it must fail because Ms Madden was stating to those to whom she was communicating that they should purchase her swimwear as the original, rather than Seafolly's alleged copies. This was, in our opinion, a sufficiently close connexion with the supply or possible supply of goods or services and with the promotion by any means of the supply of goods within the meaning of s 53(a) of the Trade Practices Act. It follows that Ground 9 fails.

Whether the primary judge erred in the award of damages 101 As to (4), whether the primary judge erred in the award of damages, the appellant accepted that damage to the commercial reputation of a corporation may be compensated under s 82(1) of the Trade Practices Act and did not challenge Loyola v Cryeng Pty Ltd [2012] FCAFC 71. 102 Ms Madden relied on JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237 and Advanced Building Systems Pty Ltd v Ramset Fasteners (Australia) Pty Ltd (1995) AIPC 91-129; (1995) ATPR (Digest) 46-144 per Hill J (appeal allowed on another ground: Ramset Fasteners (Australia) Pty Ltd v Advanced Building Systems Pty Ltd (1996) 66 FCR 151). 103 She submitted that s 82 of the Trade Practices Act operated only where a person had suffered loss or damage by conduct of the contravening party. The primary judge found that Seafolly had not suffered any loss or damage that sounded in money. Indeed, his Honour found that Seafolly's sales figures and profitability continued, on an upward trajectory, uninterrupted by any effect from the publications. In those circumstances, she submitted he should not have awarded any sum by way of damages to Seafolly. 104 Ms Madden put two further points in relation to the award of damages. The first was there were a number of companies within the Seafolly group and the primary judge did not analyse why the award of $25,000, if it was calculated as being the damage to this particular entity within the group, was the appropriate measure, as distinct from the damage to reputation suffered by the general brand "Seafolly", which was not owned by the applicant company but by P & Y Halas Pty Ltd. The second point was there was evidence from Seafolly that it had other materials that it could have provided to the Court, but it did not do so, and the primary judge in the end plucked a figure from the air. 105 Seafolly submitted that the primary judge only had regard to its position as applicant. Contrary to the submission of Ms Madden, the primary judge did not find that Seafolly was "wholly unaffected" by the misrepresentations. Even if sales and profitability were unaffected, goodwill may be injured. It argued that s 82 did not require that an applicant suffer actual damage in the sense of demonstrable pecuniary loss. 106 Seafolly accepted that it could not receive damages on behalf of other companies in its group but submitted that the primary judge did not award damages on this basis. The primary judge found that 70% of the group's business was conducted in Australia and that Seafolly conducted a significant part of that business in Australia. Seafolly submitted that it was essentially the key trading vehicle using the intellectual property under licence. It was the vehicle through which the business was actually being conducted. P & Y Halas Pty Ltd had nothing to do with it other than being an intellectual property holding company. The primary judge found that the allegations made by Ms Madden were a serious assault on Seafolly's business integrity. 107 On the question of not requiring proof of actual loss, Seafolly referred to Cryeng Pty Ltd v Loyola [2011] FCA 956 at [97]-[105], upheld on appeal in Loyola v Cryeng Pty Ltd [2012] FCAFC 71, and to Typing Centre (NSW) Pty Ltd v Northern Business College Ltd (1989) 13 IPR 627 per Wilcox J. 108 Turning to consider these submissions, the primary judge took into account that the communications were not long-lasting. He had regard to the nature of the statements made and the manner and extent of the publication, consistently with Typing Centre (NSW) Pty Ltd v Northern Business College Ltd (1989) 13 IPR 627 at 641. The primary judge assessed damages having found that all three publications conveyed the three misrepresentations complained of. However, he was in error in respect of the 2 September 2010 email which only conveyed the first two misrepresentations. Accordingly, the overall award of damages of $25,000 must be reconsidered. 109 As found by the primary judge, Ms Madden made a serious assault on the business integrity of the owner of the Seafolly brand name. Its reputation was not dependent on the intellectual property or the ownership of the intellectual property. This is not therefore a case for nominal damages. 110 Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd (1995) AIPC 91-129; (1995) ATPR (Digest) 46-144 was quite a different case: Hill J said that in that case s 82 required Advanced to show a loss of sales and resultant profit. It was not a loss of reputation case. 111 Similarly, JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237 concerned what was held at first instance to be a number of untrue representations of fact, amounting to misleading or deceptive conduct, as to movement sensors in the alarm system at the arcade in which a shop, which had been broken into, was located. It is in that context that the learned discussion by Brooking J of the dividing line between cases in which guesswork is permissible in assessing damages and cases in which it is not, is to be understood. Even in that context, his Honour said at 243 that there was no rigid dividing line and the borderline between guesswork and rational assessment was itself indistinct, as was the line between evidence that was "precise" and evidence that was not. 112 A defamatory statement to the effect that a trading company carries on business in a dishonest manner is likely to injure its reputation in the way of its business and the Court can award damages to compensate the company for that damage: Barnes & Co Ltd v Sharpe (1910) 11 CLR 462 per Griffith CJ at 474, per O'Connor J at 478-479, per Higgins J at 485. Indeed, such a defamatory statement can attract substantial damages even where the company does not lead any evidence to establish any actual damage in terms of financial loss: Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 per Smithers J at 560, per Neaves J at 586-588, per Pincus J at 599-605. 113 In Comalco 12 FCR 510 the Full Court awarded $100,000 damages for a nationally broadcast television program that conveyed serious, false defamatory meanings about a company's reputation where, as Pincus J observed (at 604) there was "not a sentence of evidence to prove that any real damage, slight or large had been done". And in RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164 per Beaumont and Spender JJ at 178-181, with whom Davies J agreed, upheld an award of $15,000 for commercial loss made under s 82 of the Trade Practices Act. There the primary judge had inferred on "extremely exiguous" material that an insurer had suffered from the misleading and deceptive conduct of a broker in giving an inaccurate appraisal of its policy wording in circumstances where it was difficult to lead precise evidence of loss of premium income. 114 The assessment of damages under s 82 and its analogues, in a situation where no actual financial loss is established, requires the Court to have regard to the nature of the representations or conduct complained of and to the manner and extent of their publication: RAIA 41 FCR at 179. 115 Here, Ms Madden published the three misrepresentations to persons who were "friends" on each of the White Sands' and her personal Facebook web pages. Apart from the limited number of those "friends" who posted comments on each page, there was no evidence of how many other "friends" read the publications complained of on either page during the period between Ms Madden posting that material and her removing it from each page. She removed it from her personal page at about 7:00 pm on 2 September 2010. But, the material remained on the White Sands Facebook site for a longer period during which Ms Madden and "friends" added material in response to the media stories that the 2 September 2010 email had generated and to Seafolly's complaints. In addition, the email led to the two media articles that provoked reader responses, based on the articles' repetition of Ms Madden's first two misrepresentations of plagiarism. The primary judge made no finding about the circulation figures or readership of each of those two articles. 116 While the trade mark "Seafolly" may have been owned by another company in the group, the applicant below had the word "Seafolly" as part of its corporate name and traded in Australia. It is likely to have suffered some damage to its business reputation by Ms Madden's misleading and deceptive conduct. This was not a case for nominal damages. A serious attack of this nature by a commercial competitor, that attracted not insubstantial publicity, will have caused some real damage to Seafolly's business reputation that is insusceptible of any precise calculation. The Court in such cases can only estimate a sum necessary to compensate for that damage caused by the contravention of s 52: cf Comalco 12 FCR 510, Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257 at 266 [38] per Hayne J with whom Gleeson CJ, McHugh and Kirby JJ agreed at 259 [6]-[7]. 117 We would award $20,000 in lieu of the primary judge's award of $25,000 since it is likely that the media articles got much wider readership than the Facebook pages and they did not have the "underhanded" allegation.

Ms Madden's cross claim 118 We turn now to the grounds of appeal arising from the cross-claim. 119 No specific attention appears to have been paid to the operation of the Defamation Act 2005 (Vic) as it applied to Ms Madden's claims in defamation or Seafolly's defences. That Act supplemented and to some extent amended the common law (s 6). 120 The primary judge held that Seafolly's two press releases were defamatory of Ms Madden. His Honour found (which neither party challenged on appeal) that each press release conveyed first, the defamatory imputation pleaded by Ms Madden and, secondly, the additional meaning pleaded by Seafolly in support of its defence of justification being, respectively: (1) Ms Madden has knowingly made false claims that her competitor, Seafolly, has copied some of her swimwear designs, with the malicious intent of damaging Seafolly. (2) Ms Madden made false claims of copying by Seafolly which were recklessly indifferent to the truth of such allegations [sic] and did so with the malicious intent of damaging Seafolly. 121 In its amended defence to cross claim, Seafolly abandoned reliance on the statutory defence of contextual truth under s 26 of the Defamation Act. It relied on the common law variant of the defence of justification that allows a publisher to plead the truth of another imputation than that relied on by the plaintiff (or applicant) where both imputations have a common sting in the way developed by the decisions in Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 and David Syme & Co Ltd v Hore-Lacy [2000] 1 VR 667. It was common ground below and on appeal that Seafolly could rely on this defence and its legal foundation need not be further considered. 122 The primary judge dealt with the justification defences tersely at [136]. He found simply that Seafolly had justified, based on his earlier findings at [68]-[72], that Ms Madden had acted maliciously in making her claims. He held that she "must be taken reasonably to have known (or been blind to the issue) that her statements would be damaging to Seafolly's commercial reputation. What was said by Seafolly was substantially true". 123 The primary judge upheld Seafolly's defence of justification at [137] and held that Seafolly had made good its defence of qualified privilege at [149]. At [151]-[152], the primary judge held that Seafolly's claim that Ms Madden's statements about it having copied her garments had been made maliciously for the purpose of injuring Seafolly were true and, so, were not apt to mislead. Accordingly Ms Madden's cross-claim under the Trade Practices Act also failed.

Justification 124 As to (5) and (7), whether the primary judge erred in finding that Seafolly's publications were true and therefore not apt to mislead and, accordingly, that Ms Madden's cross-claim under s 52 of the Trade Practices Act failed, it is important in assessing the material to note at the outset that there is no notice of contention on the part of Seafolly seeking to support the findings of the primary judge on this matter on an alternative basis. 125 Ms Madden contended that his Honour erred by finding that her failure to make further enquiries as to the truth of what she had said on the White Sands and her personal Facebook postings and in the 2 September 2010 email was sufficient to support a finding against her of malice and a lack of honest belief in the truth of what she published. Her Senior Counsel at the trial had conceded that if the primary judge found on Seafolly's claims that Ms Madden had been malicious, Seafolly would have made good its defence of justification. 126 Ms Madden's attack on the primary judge's finding confused the technical legal meaning of malice in the law of defamation with Seafolly's use of "malicious" in its two press releases and the two imputations. The issue of whether Seafolly had proved that Ms Madden was "malicious" so as to make good its defence had to be decided based on the ordinary and natural meaning of "malicious" as used in each of the imputations. The readers of the press releases and their republications were not conversant with the fine points of defamation law. The sense in which the word "malicious" was used in the publications complained of was that Ms Madden set out deliberately to injure or damage Seafolly by what she had published. The Oxford English Dictionary online defines "malicious" as including "characterised by malice, full of hate, addicted to sentiments or acts of ill will", and "malice" as "the intention or desire to do evil or cause injury to another person". The Macquarie Dictionary online defines "malice" as including "desire to inflict injury or suffering on another". His Honour's findings that the ordinary reasonable reader would have understood each of Seafolly's press releases to convey both imputations required an assessment of whether those ordinary and natural meanings were substantially true. 127 Ms Madden made claims that Seafolly had copied some of her designs. His Honour found that she knew that the nature of those allegations had the potential to damage Seafolly's reputation (at [70]). He also found that despite Seafolly warning her on 3 September 2010 that her claims had no foundation, within hours, Ms Madden was soliciting questions from friends, whom she hoped would appear to be disinterested parties, to enable her to reiterate her allegations. The primary judge found that, throughout the circumstances leading to the publications by Seafolly that she complained of, she had not paused to ascertain the true position. His Honour had based those findings on Ms Madden's recklessness in making her allegations against Seafolly without checking the facts to ascertain when the Seafolly swimsuits she used as comparators had first been put on the market. Six of the eight had been publicly released and sold prior to May 2010 when Ms McLaren took photographs of White Sands' range. 128 His Honour found that, as Ms Madden conceded in evidence, there were varying degrees of design differences between the designs she used as comparators. Critically, the primary judge found (at [68]-[69]) that Ms Madden had failed to take some or all of the prudent steps of making enquiries of retailers to establish when the Seafolly comparators were placed on the market, physically examining all or some of those garments at a retailer or enquiring of Seafolly when the comparators had been designed and released on the market. His Honour found that: Her failure to take those steps (or some of them) was not merely careless. It resulted from her conviction that copying had occurred and her determination to expose what she saw as Seafolly's misconduct. Her resolve was such that she was prepared to and did make the statements not caring whether they were true or false. 129 His Honour's finding that Ms Madden had a conviction that copying had occurred entailed that she could not have known the contrary. Thus, Seafolly could not have proved that the first imputation, being the one imputation that Ms Madden pleaded, was true. A person cannot be said to knowingly make a false claim with an evil intention of damaging another when he or she is convinced that the claim is true. The person may have been reckless in doing so, but that is not the same as deliberately saying something is true when knowing it is false. 130 The second imputation, being the imputation pleaded by Seafolly, refocused attention on whether Ms Madden's state of mind was recklessly indifferent to whether what she published was true or false. 131 His Honour did not analyse or make findings on the two separate imputations. And, because the primary judge at [151] dealt with this claim (Seafolly's claim that Ms Madden's statements were made maliciously for the purpose of injuring Seafolly were true) by reference to his earlier findings, it is necessary to trace those findings to ascertain whether there was an earlier finding of fact that Ms Madden intended to harm Seafolly. It is also necessary to examine whether Seafolly's imputation was justified. 132 In examining the findings of the primary judge, the statements made by his Honour at [111] are significant. There, in considering Seafolly's claim of injurious falsehood, his Honour noted that one of the elements was malice on the part of the defendant. His Honour said at [112] that for reasons which he had already given in dealing with the misrepresentation issues, that element of the tort had been established. "Ms Madden falsely stated that Seafolly had copied her designs and had sent Ms McLaren to photograph her garments. The statements were published to a number of third parties and Ms Madden acted maliciously." 133 Again, when dealing with the defence of justification, the primary judge said at [135]-[136] that Seafolly had said that it had a proper basis for asserting that Ms Madden had acted maliciously: that basis was reckless indifference to the truth. Particulars of the truth of the two meanings were provided. The primary judge said that he had already dealt with the issue. He had found that "Ms Madden did act maliciously in the sense recognised by the authorities: see above at [68]-[72]. She did so in circumstances where she must be taken reasonably to have known (or been blind to the issue) that her statements would be damaging to Seafolly's commercial reputation." 134 From these references the relevant finding or findings of fact must be sought in [68]-[72]. They are to be considered against the finding by the primary judge at [60] that when Ms Madden published her various statements, she believed, erroneously, that Seafolly had copied her garments. We refer also, as noted above, to the finding at [69] that Ms Madden had a "conviction that copying had occurred". (The reference at [63] to Ms Madden honestly believing that the copying had occurred is no more than a restatement by the primary judge of a submission made by Ms Madden.) 135 At [68]-[72], the primary judge found that Ms Madden was reckless and acted precipitately. Before acting as she did she failed to take a number of steps which would have elicited facts inconsistent with the notion that any copying of her garments had occurred. The primary judge then set out what Ms Madden would have become aware of if she had taken some or all of those prudent steps. The primary judge said that Ms Madden's failure to take those steps (or some of them) was not merely careless. Her resolve was such that she was prepared to and did make the statements not caring whether they were true or false. She would have known from the nature of the allegations that they would have had the potential to harm Seafolly's reputation. This knowledge should have caused her to adopt a cautious approach. Even if the impugned statements were no more than the expression of opinions held by her, she was reckless in giving public expression to them and there was no adequate foundation for any of them. 136 In our opinion, these facts as found by the primary judge were insufficient to found the conclusion that Ms Madden made the claims maliciously to injure Seafolly. It seems that in so concluding, the primary judge accepted Seafolly's submission that Ms Madden was reckless and on that basis it was established that she had acted maliciously: see [135]-[136]. However, in our opinion, a finding of recklessness without more did not establish that Ms Madden acted with the malicious intent of damaging Seafolly at least where the primary judge had held that Ms Madden believed that Seafolly had copied her garments. Bateman v Slatyer (1987) 71 ALR 553 at 559, cited by the primary judge at [66] does not, in our opinion, stand for any contrary proposition. 137 His Honour found that Ms Madden recklessly leapt to a conclusion that Seafolly had copied her designs. Her reason for publishing what turned out to be false claims of copying by Seafolly was that she believed that those claims were true, not that she published claims recklessly indifferent to whether they were true or not with the evil or deliberate intention to damage Seafolly. The primary judge did not find that Ms Madden was recklessly indifferent to the truth of what she published. He found that she was reckless because she did not make reasonable enquiries. But that was not a finding that she did not care whether what she published was true or not. To the contrary, she believed it was true, having leapt to that conclusion on a basis that, after examination, turned out to be false. 138 Our conclusion is that there was not an earlier finding of fact that Ms Madden did what she did with the deliberate intention of harming Seafolly. Accordingly, Seafolly failed to justify either imputation.

Qualified privilege 139 As to (6), the defence of qualified privilege, the first issue here is whether Ms Madden should have leave to amend her notice of appeal to challenge his Honour's finding that Seafolly's publications were made under qualified privilege at common law as relevant and proportionate responses to the attacks on it that Ms Madden had made. 140 The circumstances were that the outline of written submissions filed on behalf of Ms Madden dated 23 April 2013 contended, under the heading "qualified privilege" at [49]-[50], that the primary judge erred in making the finding at [148] of the judgment that Seafolly's response was commensurate with the serious allegations which had been levelled against it by Ms Madden and that Seafolly did not itself act maliciously. 141 Seafolly's written outline of submissions dated 1 May 2013 contended that the amended notice of appeal entirely failed to deal with this defence and Seafolly did not consent to Ms Madden now "turning her mind" to the significance of this omission. Those submissions then went on, under cover of such objection, to deal with the substance of the ground at [46]-[49]. 142 In the written outline of submissions in reply on behalf of Ms Madden, dated 8 May 2013, the criticism of the omission of the ground from the amended notice of appeal was accepted and it was stated that Ms Madden would seek leave at the hearing of the appeal to add the additional ground. She submitted that the proposed amendment caused no prejudice. Seafolly had responded to her submissions in support of the proposed additional ground. 143 At the commencement of the appeal on 22 May 2013, Senior Counsel for Ms Madden applied to amend the amended notice of appeal. Senior Counsel for Seafolly opposed the amendment for a number of reasons. 144 As we understood that opposition the reasons were as follows. First, it was submitted that the form of the proposed amendment was deficient. We would not refuse the amendment on this ground given that it was already developed in written submissions. 145 Secondly, the primary judge dealt with the question of malice in a particular way and did not deal with an alternative pleading as to engaging in knowingly false statements. There was a concession made below and it was inappropriate to raise a ground of appeal suggesting reliance upon the concept of knowing falsehood. The concession was as follows: Your Honour, there's a defence of justification. If your Honour finds on the main claim in the proceeding that Ms Madden was malicious, then the applicant will have justified the defamation, but we say that, in our submission, your Honour won't make that finding or ought not to make that finding. The point was further developed by taking the Full Court to [129] of Ms Madden's written outline of opening submissions before the primary judge which was in the following terms: Misleading and Deceptive Conduct The publication of the [sic] each of the Press Releases was distributed by Seafolly in the course of trade and commerce. Each conveyed a representation as to fact that Madden had engaged in conduct maliciously, expressly using that term. This was false and Madden was not malicious and, as a consequence, Seafolly has breached section 52 of the TPA. Seafolly submitted that in addressing the cross claim issues the Full Court was confined by the way the case below was conducted and it was conducted on the footing that if Seafolly could show malice, as distinct from proving knowingly made false claims, the cross claim would fail. 146 In our opinion the proposed amendment to the amended notice of appeal does not cause prejudice to Seafolly as contended for. We are not persuaded that [129] of Ms Madden's written outline of opening submissions before the primary judge or the concession establishes that prejudice. It seems to us that the concession was both limited and logical, in that, if the primary judge found that Ms Madden had acted maliciously, then it must follow that Seafolly's statements were not actionable. This does not appear however to be relevant to the qualified privilege ground. 147 We would grant leave to Ms Madden to amend her amended notice of appeal and direct that a further amended notice of appeal, containing the ground that the primary judge erred in law in upholding Seafolly's defence of qualified privilege, be filed within 14 days of the date of this judgment. 148 Ms Madden contended that Seafolly's responses to her attacks travelled beyond what was allowed to it on any occasion of qualified privilege. She did not contend, on appeal, that Seafolly was actuated by express malice in making the publications complained of. Thus, the sole issue between the parties in relation to qualified privilege was whether Seafolly's responses went further than was commensurate with its right to defend itself from Ms Madden's attacks. 149 It is a question of law whether, first, an occasion of qualified privilege exists and, secondly, whether the defendant (or respondent) published, as Earl Loreburn explained in Adam v Ward [1917] AC 309 at 321, "something beyond what was germane and reasonably appropriate to the occasion or has given to it a publicity incommensurate to the occasion". 150 The privilege protects the publication of untrue or defamatory matter provided that there is an occasion supporting both the publication itself and its being published to the persons in the audience to whom it is made. Thus, if a person published defamatory matter to a limited audience, of say, one or two individuals in a private meeting, the person defamed would have a privileged occasion to respond to that publication by putting his or her case to the audience, but, ordinarily, would not be able to argue that a response in a public broadcast in the media or on the internet was within a privileged occasion. The principle was explained by Dixon J in Penton v Calwell (1945) 70 CLR 219 at 233-234 in the following passage that was approved by Gummow, Hayne and Bell JJ in Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31 at 48-49 [32] and applied by the primary judge (at [145]): The foundation of the privilege is the necessity of allowing the party attacked free scope to place his case before the body whose judgment the attacking party has sought to affect. In this instance, it is assumed to be the entire public. The purpose is to prevent the charges operating to his prejudice. It may be conceded that to impugn the truth of the charges contained in the attack and even the general veracity of the attacker may be a proper exercise of the privilege, if it be commensurate with the occasion. If that is a question submitted to or an argument used before the body to whom the attacker has appealed and it is done bona fide for the purpose of vindication, the law will not allow the liability of the party attacked to depend on the truth or otherwise of defamatory statements he so makes by way of defence. 151 The common law defence of qualified privilege requires that there be a reciprocity of interest and duty between a publisher and the persons to whom the publication is made in receiving the publication itself. Hence, the consideration of the questions of law requires the judge to evaluate both the circumstances and the relationship of the matter complained of to the occasion for which privilege is claimed. This consideration occurs before the tribunal of fact, judge or jury, considers whether the publisher was actuated by express malice in making the publication. The defence allows, as Parke B explained in Toogood v Spyring (1834) 1 Cr M & R 181 at 193, communications of false defamatory matter "by a person in discharge of some private or public duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned". His Lordship said that such communications are protected for the common convenience and welfare of society provided that they are "fairly warranted by any reasonable occasion or exigency, and honestly made … and the law has not restricted the right to make them within any narrow limits". The privilege permits a reply to an attack within limits as Gummow, Hayne and Bell JJ said in Trad 247 CLR at 49 [34]-[35]: Earlier, in Loveday v Sun Newspapers Ltd [(1938) 59 CLR 502 at 516] Starke J had said that the privilege is not absolute, and that the answer by the person attacked "must be relevant to the attack and must not be actuated by motives of personal spite or ill will". In Bashford v Information Australia (Newsletters) Pty Ltd [(2004) 218 CLR 366 at 378 [27]], Gleeson CJ, Hayne and Heydon JJ asked "whether the matter which defamed the appellant was sufficiently connected to the privileged occasion to attract the defence". These notions of what is "commensurate with the occasion", "relevant to the attack", and "sufficiently connected" reflect the idea captured by Parke B in Toogood v Spyring [(1834) 1 Cr M & R 181 at 193 [149 ER 1044 at 1049-1050]] in the phrase "fairly warranted by any reasonable occasion or exigency". That the matter complained of is sufficiently connected to the privileged occasion to attract the defence may appear upon any one of several considerations. The matter may be sufficiently connected with the content of the attack, or it may go to the credibility of the attack, or to the credibility of the person making that attack. Questions of degree inevitably will be presented. 152 The owner of a business is entitled at once to repel under qualified privilege a false attack on it even where actual damage has not yet been done, if the attack was likely, in the ordinary course, to produce that result: Norton v Hoare [No 1] (1913) 17 CLR 310 per Barton ACJ at 318, per Isaacs, Gavan Duffy and Rich JJ at 322-323, Trad 247 CLR at 45 [26]. 153 Seafolly's first press release of 2 September 2010 responded immediately to Ms Madden's attacks on it in her 2 September 2010 email, her personal and White Sands' Facebook sites. Ms Madden's publications were made to sections of the media as well as to whoever might visit either or both Facebook pages. They were, in effect, published to as wide an audience as she could reach and, at least, so far as the email was concerned, to sections of the media with the obvious hope that her allegations against Seafolly of copying would be republished. Ms Madden's attack was directed at the public as a criticism of the way in which Seafolly conducted itself. 154 Seafolly's first press release conveyed both imputations as its substantive responsive message to that audience. The second press release responded to Ms Madden's elaboration of her claims on White Sands' Facebook page. It referred to, and set out Seafolly's position in respect of, further media reports dealing with Ms McLaren's visit to White Sands' parade and the photographs she took there. Again, the substantive messages of the second press release were the two imputations it conveyed. White Sands' Facebook page was open to the public using the internet. It was a commercial site. Ms Madden used it on and from 3 September 2010, as his Honour found at [58], to distance herself from one of the media headlines, that Seafolly was a plagiarist, that her 2 September 2010 email had generated. 155 In our opinion, the thrust of Ms Madden's attacks was that Seafolly itself had been dishonest on a substantial scale by copying her swimwear designs. And, from 3 September 2010, she used her White Sands Facebook site to elaborate on Ms McLaren's and Seafolly's visit to her May 2010 showing. The primary judge had found, at [95], that Seafolly had a strong and positive image in the swimwear industry and that that reputation was important to it in a highly competitive environment. Next, Seafolly's allegation that Ms Madden's claims had been made maliciously went to the credibility of Ms Madden's attack. Third, Seafolly's statement that Ms Madden's claims had been made maliciously went to her credibility as the person making the attack and underscored its denial of Ms Madden's claims and Seafolly's statements that those claims were completely false and without foundation. This was in the context where Seafolly said that, as a matter of chronology, it could not have copied the White Sands designs. 156 May CJ's dictum in Dwyer v Esmonde (1878) 2 LR Ir 243, at 254, that a person responding to an attack cannot bring fresh allegations against his adversary, relied on by Ms Madden as a statement of principle, is in different terms to the more recent statements of principle by the High Court and should not be applied. She also relied on remarks by Eady J in Hamilton v Clifford [2004] EWHC 1542 (QB) at [66]. However, nothing his Lordship said there applies here. Seafolly was entitled to hit back at a false attack on it by a commercial competitor by impugning Ms Madden's reliability, veracity and motives. It is clear however that questions of fact and degree are involved. 157 Ms Madden's point was a short one: it was not reasonably necessary for Seafolly to speculate about her motives. She contended that Seafolly went too far and thereby lost the protection of the privilege. 158 In our opinion, this approach does not capture adequately the question of whether the matter complained of was sufficiently connected to the privileged occasion to attract the defence. The question is not one of reasonable necessity but whether impugning the truth of the charges contained in the attack and the general veracity of the attacker is commensurate with the occasion. 159 Seafolly was putting its case in each press release in response to the attacks that Ms Madden had made on it. Her attack was broader from 3 September 2010, but both press releases conveyed the same messages in the form of the two imputations they conveyed. Seafolly was using the occasions to publish matter to prevent damage being done to its reputation by impugning the truth of Ms Madden's attacks and her general veracity. The press releases referred to the facts on which Seafolly based the meanings that were conveyed as the imputations. Ms Madden did not demonstrate how either press release went beyond a riposte that objectively was "commensurate with the occasion" of defending itself from her attack: Trad 247 CLR at 48-49 [33]-[35]. Seafolly was entitled to respond through press releases given the public attacks that Ms Madden had made on it: Norton 17 CLR at 318, 322-323; Loveday v Sun Newspapears Ltd (1938) 59 CLR 503 at 512, 514 per Latham CJ, 516 per Starke J, 523 per Dixon J. 160 Our conclusion is that there was no error on the part of the primary judge in concluding that Seafolly had made good its defence of qualified privilege. His Honour decided the question by observing that Seafolly's statements were in response to attacks made on it by Ms Madden, which attacks were damaging to Seafolly's commercial reputation being allegations of copying designs in the swimwear design business. His Honour observed that Seafolly sought to defend itself from the allegations made by Ms Madden which Seafolly knew to be untrue. 161 We also refer back to our opinion that in Seafolly's statements the word "maliciously" was used in its ordinary and natural meaning to convey that the claims made by Ms Madden were intended to cause injury to Seafolly: see [126] above. 162 We reject the submission put on behalf of Ms Madden that a "relevant and proportionate response to the publications would have confined itself to pointing out the factual errors made by (Ms) Madden and identifying the true facts …". 163 As Latham CJ and Williams J said in Penton 75 CLR at 243: When a person has been attacked seriously and abusively, the terms of his reply are not measured in very nice scales, but excess in reply may so exceed a reasonable view of the necessities of the occasion as to provide evidence from which malice may be inferred. 164 It follows that, because Seafolly succeeded in its qualified privilege defence, it is not liable to Ms Madden in defamation. However, its failure to justify has a significant consequence for Ms Madden's s 52 claim.

Ms Madden's s 52 claim 165 The first imputation complained of was also the basis of Ms Madden's claim that Seafolly had contravened s 52 of the Trade Practices Act by making a representation in each press release in the same terms. Since his Honour found that Ms Madden believed in the truth of what she had published, the pleaded representation, that she knowingly made a false claim, was falsified. Accordingly, Ms Madden is entitled to an appropriate remedy under ss 82 and or 87 of the Trade Practices Act. 166 The Full Court is not asked to, and is not in a position to, make alternative or additional findings on this issue of Ms Madden's intention. 167 Although Ms Madden submitted, it appears, that the Full Court was in a position to assess the amount of damages by reference to certain paragraphs of an affidavit of Ms Madden read before the primary judge, we do not accept that submission. By reason of his conclusions, the primary judge did not assess loss or damage. The Full Court has only the most exiguous material for that purpose and was not taken to, and does not have before it, the entirety of the affidavit evidence or to any oral evidence or business records of Ms Madden. 168 In our opinion the appeal should be allowed on this ground and the matter remitted to the primary judge for the assessment of loss or damage.

Whether order 1.6 was wrong as a matter of what the email in fact said 169 As to (8), whether order 1.6 was wrong, Senior Counsel for Seafolly conceded that the third representation pleaded at [16] of the further amended statement of claim, that Seafolly had used underhanded means to obtain photographs of the White Sands Garments and then copied the White Sands Garments to create the Seafolly Garments from those photographs, could not be shown in the sending of the 2 September 2010 email. He did not concede that this would upset the award of damages but it follows that the appeal should be allowed at least to the extent necessary to amend order 1.6.

Conclusion and orders including costs 170 The parties should file agreed short minutes to give effect to these reasons within 14 days of the date of this judgment. If short minutes cannot be agreed then each party should file the short minutes for which that party contends within 21 days of the date of this judgment together with any short submission of not more than five pages in support of the orders for which that party contends. 171 The short minutes should include that leave be granted to the appellant to amend her amended notice of appeal to include the ground "the learned trial judge erred in law in upholding Seafolly's defence of qualified privilege" and that a further amended notice of appeal, containing that ground, be filed within 14 days of the date of the orders. 172 The short minutes should also include varying the declarations by deleting declaration 1.6 and reproducing the text of that declaration but without reference to the third representation that the applicant had used underhanded means to obtain photographs of White Sands swimwear and copied the White Sands garments in order to create the Seafolly garments from those photographs. 173 The short minutes and any such submissions should also deal with the question of costs. So as to assist the parties, our tentative view in relation to costs is that Ms Madden should have her costs of the cross appeal and pay 90% of the costs of the appeal. As to the costs of the proceedings below, our tentative view is that the question of those costs should be remitted to the primary judge. I certify that the preceding one hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Rares and Robertson.

Trade Practices Act 1974(Cth)

Penton v Calwell (1945) 70 CLR 219 Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257 Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164 Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 Roberts v Bass (2002) 212 CLR 1 Thompson v Truth and Sportsman Ltd (1932) 34 SR (NSW) 21 Toogood v Spyring (1834) 1 Cr M & R 181 Typing Centre of NSW Pty Ltd v Northern Business College Ltd (1989) 13 IPR 627

Outcomemixed

Disposition:

Appeal allowed in part. The Full Court upheld findings that most of Ms Madden's publications conveyed false representations of copying in contravention of s 52 (and, in context, s 53(a)), but ordered deletion of the declaration that the 2 September email asserted Seafolly used underhanded means (order 1.6), remitted assessment of damages under s 82 to the primary judge (noting the award should be reconsidered; Full Court suggested $20,000 in lieu of $25,000), granted leave to amend the notice of appeal to challenge qualified privilege, and gave directions as to short minutes and costs (Rares & Robertson JJ at [169]-[172]; Marshall J at [23]-[24]).

Madden v Seafolly Pty Ltd

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