Danny Jovica

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Section 18 of the ACL does not of itself prevent a competitor from copying the product of a rival.

A manufacturer does not contravene s 18 of the ACL merely by copying an existing product, provided that it does not represent that its product is the original.

No representation of this kind will be made provided the manufacturer has adopted an adequate branding strategy to identify the product as its own.

Thus, the mere copying of another’s product will not of itself mislead consumers, provided that the imitation product is sufficiently differentiated from the original through pricing, branding and branding positioning, promotional strategies and retail supply:


Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd
(1981) 149 CLR191;

Dr Martens Australia Pty Ltd v Rivers (Aust) Pty Ltd [2000] ATPR ¶41-734;

Moroccanoil Israel Ltd v Aldi Foods Pty Ltd [2017] FCA 823.

In fact there are businesses out there to help you get it right (and this is not an endorsement of that business, it just serves as example, I have never had contact with them nor examined their products in any way).


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Conduct that contravenes s.18 of the Australian Consumer Law's (which prohibit misleading and deceptive conduct) may give rise to a private proceeding commenced by individual consumers who are seeking an award of damages, compensation (s.236) and refunds (s.237).



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For instance you have a contract with FARM A to haul their organic tomatoes every year to market, but this year the neighboring farms pesticides affect the crop of FARM A and they lose their organic certification and therefore experience economic losses.

FARM A can sue in negligence but can the truck driver?

Indeterminacy of liability becomes the issue, meaning FARM B does not know what contracts FARM A has with whom and for how much for there to be a direct liability to the truck driver what is required is knowledge.   Perre v Appand (1999) 198 CLR 180.

If however the truck driver had put neighboring properties on notice that they had the contract with FARM A and perhaps offered their trucking services to neighboring properties on the basis of economies of scale (since you are in the area anyway) then even if FARM B did not accept your services they were aware of them and that you would be affected if they did something negligently that caused damage to FARM A.  Marsh v Baxter (2015) WASCA 169.





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CASE NOTE

Omega Plumbing Pty Ltd v Harbour Radio Pty Ltd t/as 2GB and 2GB 873

[2019] NSWSC 1576, ‘Omega

This case involved the tort of injurious falsehood with an application for an interlocutory injunction to prevent further publications pending the final hearing on the matter. The Defendants are 2GB radio and Ray Hadley their broadcaster who made a number of representations about the plaintiff’s plumbing business on his radio show and the issue is whether there was a prima facie case that those representations were made maliciously and/or with a reckless indifference to the truth or without belief in the truth of the allegations. With an absence of evidence to support the allegations made by the defendants a prima facie case was established with the balance of convenience test strongly favouring the plaintiff.

Facts


The plaintiff for the last 30 years has operated a service company primarily providing rapid response plumbing, electrical and air conditioning services in the Greater Sydney region employing over 80 staff1. The Defendants radio station and website (where they post articles and audio snippets) published materials over 4 consecutive days starting 29th of October 2019 based on consumer complaints, however fell into trouble when they added their own commentary and opinions which they could not support on the available evidence.

Issues and Arguments

In the tort of malicious falsehood and the question of whether to grant an interlocutory injunction, the plaintiff must establish that the defendants made a false statement about their business and that it was published maliciously.

The defendants made no submission on the question of falsity, however instead contested on the basis that there was no disclosed malice.

 


Therefore, much of the case was in relation to what constituted malice. It was argued that the defendants knowledge that what they said was false is ordinarily conclusive evidence of malice, the recklessness in the published comments amounted to wilful blindness on the part of the defendants which the law equates with knowledge, however the plaintiff needed to prove more than just that the defendant could not have had a positive belief in the truth of what they said the plaintiff needed to prove it was actuated by an improper motive for there to be malice (Omega at [15-17]).

To prove malice the intention of the defendants must be examined and whether there was a direct or indirect motive to cause injury to the plaintiff, however malice may exist without an actual intention to injure and must often be inferred from the “grossness and falsity of the assertions and the cavalier way in which they were expressed” and the knowledge of falsity is “almost conclusive evidence” that the defendant had some improper motive in publishing the material and that it actuated the publication (Omega at [18]).

 

In response to a letter of demand at [29], solicitors for the defendants asserted that the evidence did not disclose any prima facie case establishing malice. They rested on the argument that the material broadcast was substantially accurate and based on information obtained from several sources. Despite this they indicated a willingness to take down and not republish the broadcast and articles (Omega at [32]).

As the argument was about what constituted malice, the plaintiff argued that the broadcasts and publications went beyond merely publishing a news story but when words like “bloke who duds the elderly” and “charging them 10, 20 and 30 times more than a job's worth” were used it went beyond the facts and evinced malice. The plaintiff argued that many comments were made without basis or were knowingly false such as the statement that the plaintiff was not a member of the Master Plumbers Association, coupled with this was the extrapolation of a few complaints to assert general wrongdoing (Omega at [33]).

The Defence

The defence argued at [33] that revisiting the issue over a number of days did not evince malice as it was not with an intent to injure and that an enthusiastic belief in what is being published is insufficient to amount to malice, moreover they argued as the company was given opportunity to respond to allegations in such circumstances an inference of malice could not be drawn in contradistinction to situations where there was knowledge of falsity, wilful blindness, or even reckless indifference.

The defence continued at [34-37] arguing that making comments with evidence of complaints could not constitute malice nor was it reckless to assert there were problems with the company, even their expression of disgust in the company was not evidence of malice and they had no evidence to suggest the complaints were false to imply reckless indifference. They argued that their legitimate desire to stop the misfeasance by a company was not with a motive of ruining the company, but one of protecting consumers, they also argued against an injunction on the basis it would prevent them and other media outlets reporting on the outcome of the Fair Trading Investigation.

The Courts analysis at [40] commenced with the premise that the test on an interlocutory injunction is whether there is a prima facie an arguable case that the publications were made maliciously. The difficulty was that the plaintiff at this early pre-trial stage did not establish that the defendant published material they knew to be false, therefore with the case resting on the question of malice, it was insufficient for there to be just recklessness, it would need to be wilful blindness citing Gross (Omega at [52]).

The Court then considered at [41] that malice could be inferred, if, without evidence to support a positive belief in the truth, by the comments “grossness and falsity of the assertions and the cavalier way in which they were expressed” citing Joyce v Sengupta [1993] 1 All ER 897 at 905-6.

The Court then went on at [42-51] with 5 examples of malice it had identified, starting with the statement
“to the extent that the Master Plumbers Association give them a wide berth” in that it was false to imply that membership of the association was linked to ripping off customers and prima facie amounted to malice.


Secondly, the claim that the company went by a number of names was “done to dupe people”, there was no complaint or evidence to support that position and “in that sense the assertion that the various names were used by the plaintiff to dupe people was made without any belief in the truth of the statement”.



Thirdly the Court equated puffery with malice, where it found that despite one listener being quoted 10 times the price of another plumber, the statement that the public were dealing with a person “who duds the elderly and charges them 10, 20 and 30 times more than a jobs worth” was again unsupported by any belief in its truth or evidence, with the Court distinguishing a quote (which was not accepted) from being actually invoiced an amount.



Fourthly the allegation that the company was targeting “affluent immigration communities” and “immigrant families in wealthy areas who don’t have English as their first language” along with targeting elderly was not supported by any evidence to the point that there was no evidence to even consider where such a claim originated.

Fifthly claims of deposits being paid twice and statements that the plaintiff to give disgruntled customers all their money back “because you did bloody nothing” were again unsupported by any evidence to suggest that the company had taken money and did nothing and that “they were thieves”. Without evidence to support those statements it was held they were made without a positive belief in their truth and absent that positive belief it would be malice, relying on Brereton J in AMI at [32]:

Malice may be inferred from the “grossness and falsity of the assertions and the cavalier way in which they were expressed”.

HELD:

The specific portions of the broadcast transcripts the Court highlighted became the foundation for the determination of malice due to being unsupported by facts and ipso facto an injurious falsehood.


On the question of an injunction the Court applied the “balance of convenience” test holding that free speech is outweighed in cases of injurious falsehood where there is no dispute concerning the prima facie case on falsity, and where it is found a prima facie case exists in relation to malice, the balance of convenience strongly favours the plaintiff, with the Court deciding to frame the injunction in a way that would allow publication of findings by Fair Trading.

In conclusion, had the radio station stuck with the facts that their listeners were alleging and resisted the urge to ad-lib with commentary, commentary that they could not substantiate or support with the facts, they might not be facing this situation as the case rested on the issue of malice, malice that was inferred due to the shock-jock style radio broadcasts that the station is known for that sensationalise events with grossness and falsity in a cavalier way to bring in the ratings.



1 Omega Plumbing Pty Ltd v Harbour Radio Pty Ltd t/as 2GB and 2GB 873

[2019] NSWSC 1576, ‘Omega’, 2.

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When it comes to Family Law matters, defamation law is rarely considered by lawyers, however as this case shows, if one of the parties takes to social media to vent, not only might they be in breach of s.121 of the Family Law Act and Family Court Orders which too many take too lightly but now with defamation proceedings available as a sword and the offended party sure of payment from the settlement of property in proceedings if no where else, it shows the risks of using social media to vent. 

In the case of Dabrowski v Greeuw (2014) WADC 175, the husband was awarded $12,500 in damages after his ex. was held to have defamed him on Facebook.

After the couple separated, the ex.wife took to facebook to vent with the comment:

“…separated from Miro Dabrowski after 18 years of suffering domestic violence and abuse. Now fighting the system to keep my children safe.”

The husband initiated defamation proceedings citing the impact of the statement on his employment as a teacher and the effect on his standing in the community. 

The wife in her defence argued that she didn't post it and even if she did post it, that it did not have any defamatory imputations, and even if it was defamatory that she was justified in posting it, pursuant to s.25 of the Defamation Act, because it was true.

Despite her claims of domestic violence and a previous interim IVO, she was not able to prove to the Court on the balance of probabilities that Domestic violence had occurred and the Court sided with the husband ordering not only the damages but an injunction preventing the ex.wife making similar allegations in the future. 





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In family law related cases we see all too often the problem of domestic violence against women and children who are in a vulnerable position as a result of the break-up.

If an offender repeatedly breaches a bond and an apprehended violence order-imposed by the Court and continues to inflict violence upon a woman in breach of orders that involved similar past behavior and the same victim, he should expect to be imprisoned, and not for an insubstantial period.

This applies especially in cases of the more vulnerable victims such as
Unemployed persons, Person's cut off from friends and family, person's with disabilities.

Even more so if it involves crimes against children, o
ne of the statutory aggravating features is that if the offence was committed in the presence of a child under 18 years of age and/or party to the protection order.

It does not matter whether the offender is a parent of the child or not, although if it is a parent this will be particularly aggravating.


Penalties and sentencing for breach of protection orders

The maximum penalties for breach of a protection order vary significantly across state and territory jurisdictions.The table below sets out the maximum penalties in each jurisdiction.

Jurisdiction

Maximum Penalty

NSW

Imprisonment for two years or 50 penalty units ($5,500) or both (s 14 of NSW Act)

Victoria

Imprisonment for two years or 240 penalty units ($27,220.80) or both (ss 123 and 27 of Victorian Act)

Queensland

Imprisonment for one year or 40 penalty units ($40,000) for first offence, and imprisonment for two years for third and subsequent offences within a period of three years (s 80 of Qld Act)

WA

Imprisonment for two years and fine of $6,000 or both (s 61 WA Act)

SA

Imprisonment for two years—but if breach of ‘intervention order’ under s 13 (order to undertake intervention program)—maximum penalty is $1,250 (s 31 of SA Act)

Tasmania

Tiered penalties: imprisonment for one year or fine of 20 penalty units ($2,400) for first offence to imprisonment for five years for fourth or subsequent offence (s 35 of Tas Act)

ACT

Imprisonment for 5 years or 500 penalty units ($50,000)or both (s 90 of ACT Act)

NT

Imprisonment for 2 years or 400 penalty units( $44,000) or both (ss 121, 122 of NT Act)

Under the Model Domestic Violence Laws, breach of a protection order is a summary offence which attracts a maximum penalty of:

  • $24,000 or imprisonment for one year for a first offence; and
  • imprisonment for two years for a second offence.

 Source : ALRC

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FLAST CASE BRIEF : HABIB & IBRAHIM [2019] FamCA 116

This was an Interim parenting proceeding where there were earlier final orders placing child in father’s primary care.  The matter is back to court due to the mother’s conduct again causing concern, the issue is what is in the best interests of the child.  

HELD:  Time with the mother be suspended pending psychiatric evaluation and treatment.

In the meantime that the child live with the father and that the father have sole parental responsibility for major long term issues relating to the child.

Where appropriate to reconsider child time with the mother after she obtains a psychiatric review and after ongoing therapeutic intervention.

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  • I am in the middle of a trial at the moment which has similarities to this so very timely.

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    FLAST CASE SUMMARY  

    Case : Bangi & Belov [2019] FamCA 42 (6 February 2019)

    - Time With

    This case involved one child, 13 years of age, where the matter was remitted by the Full Court for to the Family Court for consideration of a discrete issue.

    The dispute relates to the proportion of time the child will spend with each parent during school terms, the dispute arose because the police have attended the mother’s residence on multiple occasions due to reported and conflict between the mother and her [new] partner.

    The father seeks more time in the father’s household and less time in the mother’s household to reduce the child’s risk of exposure to violence, conflict and alcohol abuse. The father sought orders whereby the child live with the mother on alternate weekends and for one night in each intervening week during school term and otherwise with him.

    Parental Responsibility

    Additionally there was a dispute as to which school the child attends and an order is made specifying which school the child will attend.

    Practice and  
    Where the father seeks to rely on findings made by an earlier Court in the same proceedings, the Courts consideration of case law and s 69ZX of the Family Law Act 1975 (Cth). Where the Court is able, but not required, to adopt unchallenged findings made by the trial judge in earlier proceedings.

    Issue : Although in her written submissions the mother objected to all of the affidavits in the father’s case, the only objection she pressed at the commencement of the hearing was in respect of the affidavit of Mr JJ. The father’s counsel said that the deponent would not be available for cross-examination. In the normal course, an affidavit would be excluded where the deponent is not made available for cross-examination, without a justifying circumstance.

    Reasoning: However, as with other aspects of the proceedings, the affidavit in question was part of the evidence before Hannam J in the earlier hearing. The evidence of Mr JJ was not challenged in those earlier proceedings. That is because the mother failed to attend the parts of the hearing which occurred after that affidavit was sworn and filed. However, there was no appeal by the mother in relation to the orders of Hannam J and although she attended a procedural hearing (about expedition) she failed to attend at the hearing of the father’s appeal. As a result there was no challenge on appeal to the findings of Hannam J in respect of Mr JJ’s evidence.

    HELD : 

    Where orders are made that the child lives with the father and spends substantial and significant time with the mother.

    Additionally in regards to schooling : I have ordered that he mainly live with his father. Largely for that reason I ordered that the child attend the public School (as opposed to private school mother wanted) nearest the father, commencing in the 2019 school year.


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