Higgins and Ors v Sinclair [2011] NSWSC 163

Higgins and Ors v Sinclair [2011] NSWSC 163

The Defendant published the website and emails complained of to persons significant to the Plaintiffs, including potential customers and distributors. The website conveyed defamatory imputations that Mr Higgins conspired to steal intellectual property and that Mr Higgins and Mr Sharp knowingly permitted sale of a dangerous product to schools, and that Mr Sharp cynically promoted a failing product at public expense. The Defendant failed to prove substantial truth: the evidence showed the Mainline system had been tested, complied with relevant standards and was not shown to be materially more dangerous than conventional power point systems, and the First and Second Plaintiffs did not know...

Jurisdiction
Australia
Judgment Date
18 March 2011
Procedural Posture
Defamation and Misleading or Deceptive Conduct Proceeding Under the Fair Trading Act 1987 / Judge Alone Trial; Principal Judgment After Final Hearing
Outcome
The Plaintiffs succeeded on the defamation and Fair Trading Act 1987 claims; the defence of justification failed.
Legal Topics
['internet and Email Publications' 'defence of Justification' 'substantial Truth' 'misleading or Deceptive Conduct in Trade or Commerce' 'representations as to Future Matters' 'patent Ownership and Inventorship' 'assessment of Defamation Damages' 'final Injunctive and Declaratory Relief']
['defamation' 'consumer Law' 'intellectual Property' 'civil Procedure'] ['internet and Email Publications' 'defence of Justification' 'substantial Truth' 'misleading or Deceptive Conduct in Trade or Commerce' 'representations as to Future Matters' 'patent Ownership and Inventorship' 'assessment of Defamation Damages' 'final Injunctive and Declaratory Relief']

Case Brief

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Procedural Posture

Defamation and Misleading or Deceptive Conduct Proceeding Under the Fair Trading Act 1987 / Judge Alone Trial; Principal Judgment After Final Hearing

Legal Issues

  1. 1 ['The extent of publication of the website and email matters complained of.' 'Whether the pleaded imputations were conveyed and were defamatory of the First and Second Plaintiffs.' 'Whether the Defendant proved the defence of justification under s.25 Defamation Act 2005 by establishing substantial truth of the safety and intellectual property allegations.' "Whether the Defendant's website and emails constituted misleading or deceptive conduct, or conduct likely to mislead or deceive, in trade or commerce under the Fair Trading Act 1987." 'Whether the Defendant had reasonable grounds for representations with respect to future matters under s.41 Fair Trading Act 1987.' 'What damages should be awarded to the First and Second Plaintiffs for defamation.' 'Whether injunctive relief for defamation and injunctive and declaratory relief under the Fair Trading Act 1987 should be granted.']

Ratio Decidendi

The Defendant published the website and emails complained of to persons significant to the Plaintiffs, including potential customers and distributors. The website conveyed defamatory imputations that Mr Higgins conspired to steal intellectual property and that Mr Higgins and Mr Sharp knowingly permitted sale of a dangerous product to schools, and that Mr Sharp cynically promoted a failing product at public expense. The Defendant failed to prove substantial truth: the evidence showed the Mainline system had been tested, complied with relevant standards and was not shown to be materially more dangerous than conventional power point systems, and the First and Second Plaintiffs did not know...

Court Disposition

The Plaintiffs succeeded on the defamation and Fair Trading Act 1987 claims; the defence of justification failed.

Orders

  • ['Each of the First and Second Plaintiffs is to be awarded damages in the sum of $100,000.00 together with interest.' 'The Plaintiffs are entitled to appropriate orders by way of injunctive and declaratory relief.' "The Third Plaintiff's claim for damages under s.68 Fair Trading Act 1987 was put to one side and no...