GG Australia Pty Ltd v Sever [2015] FCA 1043

GG Australia Pty Ltd v Sever [2015] FCA 1043

The Court granted limited interlocutory restraint because the three written communications and other evidence established a prima facie case that Mr Sever made false or misleading insolvency and payment statements in the context of an ongoing commercial dispute, those statements were strongly arguable to have been made in trade or commerce, the applicants had evidence of damage to their business, brand, landlord relations, staff and reputation, damages were not an adequate remedy, and the balance of convenience favoured preventing further damaging statements despite caution about prior restraint. The relief was confined to communications about the financial position, solvency, and ability...

Jurisdiction
Australia
Judgment Date
18 September 2015
Procedural Posture
Application Before the Start of a Proceeding Under R 7.01 of the Federal Court Rules 2011 (cth) for Interlocutory Restraining Orders / Interlocutory Application Before Start of Proceeding
Outcome
Application granted in part; restraining orders made subject to undertakings; costs reserved.
Legal Topics
['application Before Start of Proceeding' 'interlocutory Injunction' 'misleading or Deceptive Conduct' 'injurious Falsehood' 'tortious Interference in Contractual Relations' 'defamation' 'prior Restraint' 'insolvency Statements']
['corporations' 'trade Practices' 'torts' 'civil Procedure'] ['application Before Start of Proceeding' 'interlocutory Injunction' 'misleading or Deceptive Conduct' 'injurious Falsehood' 'tortious Interference in Contractual Relations' 'defamation' 'prior Restraint' 'insolvency Statements']

Case Brief

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Procedural Posture

Application Before the Start of a Proceeding Under R 7.01 of the Federal Court Rules 2011 (cth) for Interlocutory Restraining Orders / Interlocutory Application Before Start of Proceeding

Legal Issues

  1. 1 ['Whether the applicants established a prima facie case that the respondents, particularly Mr Zoran Sever, made misleading or deceptive statements that the applicant companies were insolvent or unable to pay employees or contractors.' 'Whether the impugned statements were arguably made in trade or commerce so as to support jurisdiction under the Australian Consumer Law.' "Whether claims for injurious falsehood, tortious interference in contractual relations and defamation could be brought under the Court's accrued jurisdiction if Australian Consumer Law jurisdiction existed." 'Whether the balance of convenience justified interlocutory restraint despite the need for exceptional caution in restraining publication of allegedly defamatory or other unlawful statements.' 'Whether the restraining orders sought were too broad and should be limited.']

Ratio Decidendi

The Court granted limited interlocutory restraint because the three written communications and other evidence established a prima facie case that Mr Sever made false or misleading insolvency and payment statements in the context of an ongoing commercial dispute, those statements were strongly arguable to have been made in trade or commerce, the applicants had evidence of damage to their business, brand, landlord relations, staff and reputation, damages were not an adequate remedy, and the balance of convenience favoured preventing further damaging statements despite caution about prior restraint. The relief was confined to communications about the financial position, solvency, and ability...

Court Disposition

Application granted in part; restraining orders made subject to undertakings; costs reserved.

Orders

  • ["Upon the applicants jointly and severally giving the usual undertaking as to damages and an undertaking under rule 7.01(3) of the Federal Court Rules 2011 (Cth) to start a proceeding in relation to the subject matter of the application within 14 days, each of Sphere Projects Pty Ltd (ACN 136 601 664) and Mr Zoran...