Amway of Australia v Clifone Pty Ltd (No. 1) [2008] FCA 228

Amway of Australia v Clifone Pty Ltd (No. 1) [2008] FCA 228

The first eleven contempt charges were not proved because the relevant emails either were not in connection with Amway's business activities for the purposes of Order 5(b), did not publish restrained correspondence within Order 5(d), did not assert that Mr Greig committed perjury or criminal conduct, or did not denigrate or disparage Amway or Mr Greig in the eyes of the relevant audience. The twelfth and thirteenth charges were proved because the 12 April 2007 email was sent to IBOs, referred to Amway's business, denigrated or disparaged Amway in the eyes of that audience, and contacted IBOs in connection with Amway's business activities. Orders 5(b), 5(c), 5(d), 5(e) and 5(f) were set...

Jurisdiction
Australia
Judgment Date
07 March 2008
Procedural Posture
Trade Practices Proceeding With Contempt Motions and Motions to Set Aside or Vary Interlocutory Orders / Reasons for Judgment on Interlocutory Motions
Outcome
The applicants' first contempt motion was dismissed; the second contempt motion was proved only in relation to the 12 April 2007 breaches of Orders 5(e)(iv) and 5(b) and was otherwise dismissed; the respondents' motion was upheld; the applicants' motion to vary Order 5(a) was upheld.
Legal Topics
['misleading or Deceptive Conduct' 'interlocutory Injunctions' 'wilful Disobedience of Court Orders' 'variation and Setting Aside of Interlocutory Orders' 'freedom of Speech']
['trade Practices' 'civil Procedure' 'contempt of Court'] ['misleading or Deceptive Conduct' 'interlocutory Injunctions' 'wilful Disobedience of Court Orders' 'variation and Setting Aside of Interlocutory Orders' 'freedom of Speech']

Case Brief

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Procedural Posture

Trade Practices Proceeding With Contempt Motions and Motions to Set Aside or Vary Interlocutory Orders / Reasons for Judgment on Interlocutory Motions

Legal Issues

  1. 1 ['Whether emails sent by the second respondent breached Orders 5(b), 5(d), 5(e)(i), 5(e)(iv) or 5(f) of the Orders made on 16 August 2006.' 'Whether wilful disobedience for contempt requires an intention to breach the order or is established by a deliberate act or omission that breaches the order unless casual, accidental or unintentional.' 'Whether Orders 5(b), 5(c), 5(d), 5(e) and 5(f) should be set aside or varied.' 'Whether Order 5(a) should be varied to include email addresses of IBOs.']

Ratio Decidendi

The first eleven contempt charges were not proved because the relevant emails either were not in connection with Amway's business activities for the purposes of Order 5(b), did not publish restrained correspondence within Order 5(d), did not assert that Mr Greig committed perjury or criminal conduct, or did not denigrate or disparage Amway or Mr Greig in the eyes of the relevant audience. The twelfth and thirteenth charges were proved because the 12 April 2007 email was sent to IBOs, referred to Amway's business, denigrated or disparaged Amway in the eyes of that audience, and contacted IBOs in connection with Amway's business activities. Orders 5(b), 5(c), 5(d), 5(e) and 5(f) were set...

Court Disposition

The applicants' first contempt motion was dismissed; the second contempt motion was proved only in relation to the 12 April 2007 breaches of Orders 5(e)(iv) and 5(b) and was otherwise dismissed; the respondents' motion was upheld; the applicants' motion to vary Order 5(a) was upheld.

Orders

  • ["The applicants' motion dated and filed 29 August 2006 be dismissed." "The applicants' charges that the second respondent's email of 12 April 2007 breached Orders 5(e)(iv) and 5(b) of the Orders made by the Court on 16 August 2006 are proved, but otherwise the applicants' motion dated and filed 24 April 2007 be...