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Safedrive International Pty Ltd v Dopson [2009] FMCA 329 (9 April 2009)

Last Updated: 16 April 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAFEDRIVE INTERNATIONAL PTY LTD v DOPSON

TRADE PRACTICES – Alleged misleading and deceptive conduct by representations – representations as to investigation of fraudulent or wrongful conduct.

TRADE PRACTICES – Representations made by postal, telegraphic or telephonic services – representations on website – emails forwarded with link to web site.

INJUNCTION – Principles for grant of interim injunction.


Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; (2006) 80 ALJR 1672; [2006] HCA 46
Australian Competition and Consumer Commission v Hughes (t/as Crowded Planet) [2002] FCA 270
Community Public Sector Union v The Commonwealth (2006) 157 IR 470; [2006] FCAFC 176

Applicant:
SAFEDRIVE INTERNATIONAL PTY LTD

Respondent:
GLENN HAROLD DOPSON

File Number:
PEG 45 of 2009

Judgment of:
Lucev FM

Hearing date:
9 April 2009

Date of Last Submission:
9 April 2009

Delivered at:
Perth

Delivered on:
9 April 2009

REPRESENTATION

Counsel for the Applicant:
Ms CA Dearing with Mr S Clune

Solicitors for the Applicant:
Deacons

For the Respondent:
No appearance

ORDERS

(1) Time for the service and hearing of the application be abridged and the matter be heard on an urgent basis.
(2) The hearing proceed on an ex-parte basis.
(3) Upon the provision of an undertaking as to damages by the Applicant and until further order, the Respondent, his servants, agents, contractors or otherwise be restrained pursuant to section 80 of the Trade Practices Act 1974 (Cth), further or alternatively, section 74 of the Fair Trading Act 1987 (WA) from printing, publishing, distributing or otherwise communicating or causing to be printed, published, distributed or otherwise communicated whether expressly or impliedly, the Representations in Schedule A, further or alternatively, the Alternate COD5 Representations in Schedule B, until any further order of the Court arising from the hearing referred to in paragraph 7 below.
(4) The injunction in the paragraph above is to take effect within 24 hours of being served on the respondent by email at the following email address:
(5) The costs of the application be in the cause.
(6) The parties have liberty to apply on 24 hours notice.
(7) The proceedings be adjourned to 9.00am on 15 April 2009 for directions.

SCHEDULE A

(a) COD5 is:

(Investigative Agency);

(b) COD5 has been engaged by the Applicant’s Clients to investigate allegations of fraud and unprofessional practices by service providers and contractors for oil, gas and resource companies;
(c) the Applicant’s Clients have agreed to acquire the services of COD5 in its role as an Investigative Agency;
(d) the services of the Respondent, as an investigator, further or alternatively, COD5 in its role as an Investigative Agency, are approved by or affiliated with the following of the Applicant’s clients:

(Applicant’s Clients);

(e) the Respondent is:
(f) alternatively, an Independent investigator engaged by unrelated third parties (in the sense that they are parties not related to the Respondent) to investigate allegations of fraud and unprofessional practices;
(g) alternatively, an Independent investigator engaged by unrelated third parties (in the sense that they are parties not related to the Respondent); or
(h) alternatively, an Independent investigator,

(Investigator);

(i) the Respondent is a Director of the “Investigations Branch” of an Investigative Agency;
(j) the Applicant is being investigated by the Respondent, as an Investigator, further or alternatively, an Investigative Agency known as COD5;
(k) the Respondent, as an Investigator, further or alternatively, COD5 in its role as an Investigative Agency, has received complaints or other information associated with or in connection with the Applicant;
(l) the Respondent, as an Investigator, further or alternatively, COD5 in its role as an Investigative Agency, is providing services to the Applicant’s Clients;
(m) the Applicant’s Clients have agreed to acquire the services of the Respondent, as an Investigator, further or alternatively, COD5 in its role as an Investigative Agency;
(n) the services of the Respondent, as an Investigator, further or alternatively, COD5 in its role as an Investigative Agency, are approved by or affiliated with the Applicant’s Clients; and
(o) COD 5 provides professional investigation, analysis and reporting services and had been engaged to investigate the Applicant.

SCHEDULE B

COD5 is:

(i) an independent investigative agency (in the sense that it and its owners, officers, employees and agents do not have any previous connection or relationship with the Applicant (Independent) engaged by unrelated third parties (in the sense that they are parties not related to COD5) to investigate allegations of potential unprofessional practices by service providers and contractors for oil, gas and resource companies; and
(ii) alternatively, an Independent investigative agency engaged by unrelated third parties (in the sense that they are parties not related to COD5) to investigate allegations potential unprofessional practices.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 45 of 2009

SAFEDRIVE INTERNATIONAL PTY LTD

Applicant


And


GLENN HAROLD DOPSON

Respondent


REASONS FOR JUDGMENT

(Ex tempore – edited from transcript)

  1. Before the Court is an application made urgently this afternoon by the applicant Safedrive International Pty Ltd against the respondent who is a named individual, Glenn Harold Dopson. The application involves Mr Dopson who, on the papers, appears to have been a former contractor to the applicant and who, on the papers, appears to have indicated that he intends to pursue a contractual claim against the applicant in relation to the termination of his services as a contractor by the applicant sometime in 2008.
  2. The application itself relates to conduct by the respondent which might briefly be described as electronic representations made to a variety of persons that the applicant, in the course of its business in the oil and gas industry, involving significant players in that industry, has engaged in conduct which is fraudulent and wrongful. The applicant seeks urgent interim injunctive relief in relation to that conduct and has also filed a detailed statement of claim in relation to the matter. The matter is said to be within this Court’s trade practices jurisdiction by reason of ss.86(1A), 52, and 6(3) of the Trade Practices Act 1974 (Cth).[1]
  3. At this stage, as the Court reads the statement of claim, the claim is limited to action under the TP Act; alternatively, the Fair Trading Act 1987 (WA).[2] Therefore, at this point in time, there does not appear to be any claim within the Court’s associated jurisdiction, or “accrued jurisdiction” as it is sometimes referred to.
  4. A number of affidavits were relied upon and taken as read in the application this afternoon. They were the affidavit of Alan George Hall sworn today, the affidavit of Jennifer Joy McGilvray affirmed today, the affidavit of Roger John Croucher affirmed today, and the affidavit of Katherine Ann Dowling sworn today.
  5. The conduct complained of is essentially this: that the general manager of the applicant, Mr Hall, became aware on various dates in March 2009 – namely 19, 20, 21 and 23 March 2009 – of statements contained in emails and subsequently on a website, the website address being www.cod5.biz, that Safedrive’s management team were under investigation by an entity described as COD5 and that COD5 was investigating not only Safedrive but other Safedrive entities. It appears from what is presently before the Court and what is said from the bar table that the applicant is part of a group of companies, the applicant being registered in Western Australia, but being a subsidiary in a group of companies, some of which are registered elsewhere and which, as is the nature of the oil and gas industry, has operations worldwide.
  6. The nature of the material contained in the emails and the website is reflected in various attachments to Mr Hall’s affidavit, and for present purposes it suffices to go to the extract from the website procured today and appearing at page 115 of Mr Hall’s affidavit. That page of the website at www.cod5.biz/current indicates that there are current investigations by COD5, in which it seeks to collect information on possible unprofessional practises by service providers and contractors for oil, gas and resource companies.
  7. The list of companies thought to have been the unknowing victims of the unprofessional practises are listed. There are 12 of those companies listed, including Schlumberger who are said to be the major client of the applicant accounting for something in the order of 40 per cent of its total business, but also including a number of other well known players in the oil and gas industry such as Shell and the Kuwait National Petroleum Company, amongst others. The current webpage indicates that the investigation is in its initial phase and the list of companies will undoubtedly grow.
  8. That webpage has, it would appear, in response to correspondence from the applicant’s former solicitors, been amended somewhat from an earlier version which appears at page 124 of Mr Hall’s affidavit and refers to a case currently being pursued in the Australian legal system but does not provide particulars of precisely what that case is, but goes on to refer to the provision of consulting in specialist services, lack of background compliance checks by companies leading to unskilled and unqualified consultants being hired on falsified CVs and qualifications, and that the provision of driver trainers, transport managers, land transportation and fleet management are the main areas of interest in this investigation. It appears from what is presently before the Court that those areas of business, or those business activities described, are the main business activities of the applicant.
  9. If that were all, there would probably not be a sufficient basis for the injunction which is sought by the applicant. However, the evidence indicates that a number of emails have been forwarded to former contractors and/or employees, and perhaps even current contractors and employees, of the applicant or related entities and that the various emails, without going into much more detail, enable the recipients of those emails to access the webpage, or web pages just referred to. The emails have been sent over a period of time now, and indicate that persons who want to provide information or who would like to know more, should contact the director of the investigations branch of COD5.
  10. There is also in evidence and available to those who have been emailed, a profile of COD5, which indicates that it is engaged in the provision of, or undertakes the provision of investigative services which, for want of a better term, would normally be undertaken by a private investigator, and that appears to be the tenor of the material available to those who are invited to make further inquiries. Thus it is that it has been represented, it seems, to the Court in information presently before it, that the applicant is engaged or might be engaged in the activities described on the website and in the emails.
  11. Those activities are set out in those documents, but the documents also effectively make representations that COD5 is an independent investigative agency and that it has been engaged by third parties to investigate allegations of fraud or wrongful conduct or unprofessional practices by service providers and contractors in the oil and gas industry and which appear to be directed at least in part and specifically at the applicant. Alternatively, it appears that COD5 represents itself as being engaged by unrelated parties to undertake investigations of the type described.
  12. Various searches have been conducted by persons associated with the applicant, both internal to the applicant company, and by its external advisers and specifically its solicitors. Those searches on the material presently before the Court indicate that there is no investigative agency operating in Australia under the name of COD5 or in relation to the name of Dopson, or any variant of those names. That is relevant both because one would expect that if there were a business operating, or a business operated by a corporation in the private investigation industry, that such a business or corporation would be registered, either for corporate or taxation purposes or if operating in the private investigation service industry for licensing purposes, pursuant to, certainly, legislation that the Court is aware of that operates in this state and analogous, or comparable legislation, in other states.
  13. It appears that on the papers before the Court and the Court refers specifically to the email from Mr Dopson to Mr Timothy O’Leary, a senior associate at Blakiston and Crabb, the applicant’s former solicitors, which email appears at page 128 of Mr Hall’s affidavit, that there can be no dispute, at least at this stage and on the papers as they presently appear before the Court, that the website, www.cod5.biz, is one which is operated by or over which Mr Dopson has operating influence, he indicating to Mr O’Leary in that email, that he was prepared to amend the website and which, as already indicated, has been done to some degree, if one looks at a comparison of the documents at pages 115 and 124 of Mr Hall’s affidavit. But it also says in the email to Mr O’Leary that the allegations are irrefutably true and accurate and intimates that the website itself will not be removed and indeed it has not been removed, and up until today, the materials referred to remain on that website and available to any recipient of the emails referred to, or any person who otherwise accesses that website.
  14. The conduct complained of does, in my view, impact upon the applicant and there is evidence before the Court that the applicant’s commercial or business reputation is or may be affected by the information or the representations contained in the emails and on the website. Specifically, that evidence indicates that the applicant operates in a competitive industry and that Schlumberger, who are as indicated the principal client of the applicant, accounting for something in the order of 40 per cent of its business, are less than happy about having their name associated with emails and a website of this type, containing the allegations that are contained therein. The Court’s view is that allegations of this type broadcast in this way do have the potential to affect the commercial business reputation of the applicant in a manner for which damages may not be able to compensate, particularly if business simply does not arrive on the applicant’s doorstep as a consequence of a withdrawal of that business unknown to them, by reason of the representations affecting their current or future clients. It is the Court’s view that representations of this type, made in the manner that they have been made, do give rise to a real risk of loss and damage to the applicant’s commercial reputation, at least, for present purposes, the purposes of the interim injunction application.
  15. In terms of the principles that apply to the issuance of an interim injunction, they are well known, and are set out by the Full Court of the Federal Court in Community Public Sector Union v The Commonwealth.[3] Suffice to say that in that judgment the Full Court referred[4] to the judgment of the High Court in Australian Broadcasting Corporation v O’Neill[5] and the judgment of Gleeson CJ and Crennan J referring to the need for a serious question to be tried as to the plaintiffs entitlement to relief, it being shown that the plaintiff is likely to suffer injury for which damages would not be an adequate remedy and that the balance of convenience favours the granting of an injunction.
  16. In relation to those issues, in the Court’s view, there is a serious question to be tried on the basis of the representations, as they are portrayed in the papers presently before the Court, in that those representations do give rise to an arguable case and a serious question to be tried as to whether or not they are misleading or deceptive conduct in the use of postal, telegraphic or telephonic services under ss.6(3) and 52 of the TP Act.[6] It is also the Court’s view, as previously indicated, that there is a likelihood of injury for which damages would not be an adequate remedy because of the possible damage to the applicant’s business or commercial reputation.
  17. The balance of convenience in the Court’s view also favours the grant of an interim injunction at this stage. The alleged representations made involve various, very serious, fraudulent and wrongful conduct and are capable, as previously indicated, of damaging the applicant’s business reputation, possibly in a manner which is incalculable at the end of the day. The Court is satisfied, from what is presently before it, that those representations are live and ongoing and that, at least for immediate purposes, there is no prospect of them being withdrawn without an interim injunction issuing. The Court has considered the question of whether or not there might be any harm to the defendant if the injunction is granted on an interim basis and it is the Court’s view that it cannot see that any harm would be done to the defendant by the injunction being granted on an interim basis. In those circumstances, the Court is of the view that the balance of convenience requires that the status quo prior to the representations being made ought to be restored.
  18. The Court did have, and raised at the outset with Ms Dearing who appeared as counsel for the applicant in the proceedings today, the question of whether the application ought to have been made ex parte on an urgent basis. The circumstances in which the application came to be made on that basis have been explained to the Court. The Court is satisfied that it was appropriate, in the circumstances, to make the application ex parte, and has regard in doing so to the possibility that information might be altered as, for example, the name of the website contact been altered since the approach from the applicant’s former solicitors. The Court also notes that, in the circumstances, there has been an undertaking as to damages tendered and signed by Mr Hall as a director of the applicant.
  19. In all the circumstances, the Court is prepared to grant an interim injunction, essentially in terms as requested in the application save for these changes: that there will need to be included as schedules A and B in any order that issues detail of the representations and the alternate COD5 representations as they are referred to in paragraph 12 of the application itself. They will need to be included as schedules A and B so that paragraph 12, as it presently appears, will refer to the representations in schedule A, further, or alternatively, the alternate COD5 representations in schedule B. Obviously, paragraph 13 would need to be amended to make reference to the injunction; probably most simply, in the paragraph above because that is what it will then be rather than paragraph 11.
  20. As indicated in exchanges, both with Ms Dearing and Mr Clune, the Court is prepared, in the circumstances, to order that service be effected on the respondent personally by email delivery to the last email address known to the applicant’s solicitors. That email address can be advised to my Associate and can be included in the order. Otherwise, the orders as they appear in paragraphs 10, 11, 15 and 16 will be made. There will also be an order that the interim injunction have effect until further order of the Court. There will also be an order listing the matter for further hearing at an appropriate time next week.

I certify that the preceding 20Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !twentytwenty (20) paragraphs are a true copy of the reasons for judgment of Lucev FM


Associate: S Gough


Date: 15 April 2009

[1] ”TP Act”.
[2] “FT Act”.
[3] (2006) 157 IR 470; [2006] FCAFC 176 (“CPSU”).
[4] CPSU, IR at 474 per Branson, Tamberlin and Madgwick JJ; FCAFC at para.16 per Branson, Tamberlin and Madgwick JJ.
[5] (2006) 227 CLR 57; (2006) 80 ALJR 1672; [2006] HCA 46 (“O’Neill”).
[6] Australian Competition and Consumer Commission v Hughes (t/as Crowded Planet) [2002] FCA 270.

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