Seafolly Pty Ltd v Madden (No 4) [2014] FCA 980

Seafolly Pty Ltd v Madden (No 4) [2014] FCA 980

Ms Madden was granted leave to amend her particulars to include reputational damage because the issue had been litigated at trial. She did not prove a sufficient causal connection between Seafolly's misleading representations and claimed loss of business, but the misleading allegation that she acted maliciously was a cause of her hurt and offence. Damages under s 82 were confined to actual loss or damage and did not include a premium for grapevine effect, future republication risk, aggravation, lack of apology or failure to retract. An award of $40,000 was appropriate and proportionate for the hurt and offence caused by Seafolly's contravention of s 52.

Jurisdiction
Australia
Judgment Date
12 September 2014
Procedural Posture
Cross Claim for Damages for Misleading and Deceptive Conduct Under S 52 of the Trade Practices Act 1974 (cth) / Remitted Assessment of Damages and Outstanding Costs Issues After Full Court Appeal
Outcome
Seafolly ordered to pay Ms Madden $40,000 damages under s 82(1) of the Trade Practices Act 1974 (Cth); outstanding costs issues reserved for further submissions.
Legal Topics
['assessment of Damages Under S 82 of the Trade Practices Act 1974 (cth)' 'misleading and Deceptive Press Releases' 'reputational Damage and Hurt and Offence' 'causation of Business Loss' 'grapevine Effect and Aggravated Damages']
['trade Practices' 'misleading or Deceptive Conduct' 'damages' 'defamation Related Reputational Harm'] ['assessment of Damages Under S 82 of the Trade Practices Act 1974 (cth)' 'misleading and Deceptive Press Releases' 'reputational Damage and Hurt and Offence' 'causation of Business Loss' 'grapevine Effect and Aggravated Damages']

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Procedural Posture

Cross Claim for Damages for Misleading and Deceptive Conduct Under S 52 of the Trade Practices Act 1974 (cth) / Remitted Assessment of Damages and Outstanding Costs Issues After Full Court Appeal

Legal Issues

  1. 1 ["Whether Ms Madden should have leave to amend her particulars so that reputational damage was included as damage arising from Seafolly's contravention of s 52 of the Trade Practices Act 1974 (Cth)." "Whether Seafolly's misleading representations caused recoverable loss or damage to Ms Madden or her White Sands business under s 82 of the Trade Practices Act 1974 (Cth)." 'Whether damages under s 82 could include compensation for the grapevine effect, future republication risk, aggravation, lack of apology or failure to retract.' 'What amount of damages was appropriate for hurt and offence and reputational harm caused by the misleading representation.']

Ratio Decidendi

Ms Madden was granted leave to amend her particulars to include reputational damage because the issue had been litigated at trial. She did not prove a sufficient causal connection between Seafolly's misleading representations and claimed loss of business, but the misleading allegation that she acted maliciously was a cause of her hurt and offence. Damages under s 82 were confined to actual loss or damage and did not include a premium for grapevine effect, future republication risk, aggravation, lack of apology or failure to retract. An award of $40,000 was appropriate and proportionate for the hurt and offence caused by Seafolly's contravention of s 52.

Court Disposition

Seafolly ordered to pay Ms Madden $40,000 damages under s 82(1) of the Trade Practices Act 1974 (Cth); outstanding costs issues reserved for further submissions.

Orders

  • ['The applicant/cross-respondent pay the respondent/cross-claimant damages in the sum of $40,000 pursuant to s 82(1) of the Trade Practices Act 1974 (Cth) for damage suffered by the respondent/cross-claimant caused by the conduct of the applicant/cross-respondent.' "The parties confer and, on or before 26 September...